Determination of Attainment of Ozone Standard by Grand Rapids and Muskegon, Michigan; Determination Regarding Applicability of Certain Reasonable Further Progress and Attainment Demonstration Requirements

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MI42-01-7027a; FRL-5213-3]

Determination of Attainment of Ozone Standard by Grand Rapids and

Muskegon, Michigan; Determination Regarding Applicability of Certain

Reasonable Further Progress and Attainment Demonstration Requirements

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: The USEPA is determining, through direct final procedure, that

the Grand Rapids (Kent and Ottawa Counties) and Muskegon (Muskegon

County) ozone nonattainment areas have attained the National Ambient

Air Quality Standard (NAAQS) for ozone. This determination is based

upon 3 years of complete, quality assured ambient air monitoring data

for the years 1992-1994 that demonstrate that the ozone NAAQS has been

attained in these areas. On the basis of this determination, USEPA is

also determining that certain reasonable further progress and

attainment demonstration requirements, along with certain other related

requirements, of part D of Title 1 of the Clean Air Act are not

applicable to the areas for so long as the areas continue to attain the

ozone NAAQS. In the proposed rules section of this Federal Register,

USEPA is proposing these determinations and soliciting public comment

on them. If adverse comments are received on this direct final rule,

USEPA will withdraw this final rule and address these comments in a

subsequent final rule on the related proposed rule which is being

published in the proposed rules section of this Federal Register. No

additional opportunity for public comment will be provided. Unless this

direct final rule is withdrawn no further rulemaking will occur on this

action.

EFFECTIVE DATE: This action will be effective July 17, 1995 unless

notice is received by July 3, 1995 that someone wishes to submit

adverse comments. If the effective date is delayed, timely notice will

be published in the Federal Register.

ADDRESSES: Written comments can be mailed to: Carlton T. Nash, Chief,

Regulation Development Section, Air Toxics and Radiation Branch, (AT-

18J), United States Environmental Protection Agency, 77 West Jackson

Boulevard, Chicago, Illinois 60604.

A copy of the air quality data and USEPA's analysis are available

for inspection at the following address: (It is recommended that you

telephone Madelin Rucker at (312) 886-0661 before visiting the Region 5

office).

FOR FURTHER INFORMATION CONTACT: Madelin Rucker, Regulation Development

Section, Air Toxics and Radiation Branch (AT-18J), United States

Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,

Illinois 60604. Telephone: (312) 886-0661.

SUPPLEMENTARY INFORMATION:

I. Background

Subpart 2 of part D of Title I of the Clean Air Act (Act) contains

various air quality planning and state implementation plan (SIP)

submission requirements for ozone nonattainment areas. USEPA believes

it is reasonable to interpret provisions regarding reasonable further

progress (RFP) and attainment demonstrations, along with certain other

related provisions, so as not to require SIP submissions if an ozone

nonattainment area subject to those requirements is monitoring

attainment of the ozone standard (i.e., attainment of the NAAQS

demonstrated with three consecutive years of complete, quality assured

air quality monitoring data). As described below, USEPA has previously

interpreted the general provisions of subpart 1 of part D of Title I

(sections 171 and 172) so as not to require the submission of SIP

revisions concerning RFP, attainment demonstrations, or contingency

measures. As explained in a memorandum dated May 10, 1995 from John

Seitz to the Regional Air Division Directors, entitled ``Reasonable

Further Progress, Attainment Demonstration, and Related Requirements

for Ozone Nonattainment Areas Meeting the National Ambient Air Quality

Standard,'' USEPA believes it is appropriate to interpret the more

specific RFP, attainment demonstration and related provisions of

subpart 2 in the same manner.

First, with respect to RFP, section 171(1) states that, for

purposes of part D of Title I, RFP ``means such annual incremental

reductions in emissions of the relevant air pollutant as are required

by this part or may reasonably be required by the Administrator for the

purpose of ensuring attainment of the applicable national ambient air

quality standard by the applicable date.'' Thus, whether dealing with

the general RFP requirement of section 172(c)(2), or the more specific

RFP requirements of subpart 2 for classified ozone nonattainment areas

(such as the 15 percent plan requirement of section 182(b)(1)), the

stated purpose of RFP is to ensure attainment by the applicable

attainment date.1 If an area has in fact attained the standard,

the stated purpose of the RFP requirement will have already been

fulfilled and USEPA does not believe that the area need submit

revisions providing for the further emission reductions described in

the RFP provisions of section 182(b)(1).

\1\USEPA notes that paragraph (1) of subsection 182(b) is

entitled ``PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS'' and

that subparagraph (B) of paragraph 182(c)(2) is entitled

``REASONABLE FURTHER PROGRESS DEMONSTRATION,'' thereby making it

clear that both the 15 percent plan requirement of section 182(b)(1)

and the 3 percent per year requirement of section 182(c)(2) are

specific varieties of RFP requirements.

---------------------------------------------------------------------------

USEPA notes that it took this view with respect to the general RFP

requirement of section 172(c)(2) in the General Preamble for the

Interpretation of Title I of the Clean Air Act Amendments of 1990 (57

FR 13498 (April 16, 1992)), and it is now extending that interpretation

to the specific provisions of subpart 2. In the General Preamble, USEPA

stated, in the context of a discussion of the requirements applicable

to the evaluation of requests to redesignate nonattainment areas to

attainment, that the ``requirements for RFP will not apply in

evaluating a request for redesignation to attainment since, at a

minimum, the air quality data for the area must show that the area has

already attained. Showing that the State will make RFP towards

attainment will, therefore, have no meaning at that point.'' (57 FR at

13564.)2

\2\See also ``Procedures for Processing Requests to Redesignate

Areas to Attainment,'' from John Calcagni, Director, Air Quality

Management Division, to Regional Air Division Directors, September

4, 1992, at page 6 (stating that the ``requirements for reasonable

further progress * * * will not apply for redesignations because

they only have meaning for areas not attaining the standard'')

(hereinafter referred to as ``September 1992 Calcagni memorandum'').

[[Page 28730]]

---------------------------------------------------------------------------

Second, with respect to the attainment demonstration requirements

of section 182(b)(1), an analogous rationale leads to the same result.

Section 182(b)(1) requires that the plan provide for ``such specific

annual reductions in emissions * * * as necessary to attain the

national primary ambient air quality standard by the attainment date

applicable under this Act.'' As with the RFP requirements, if an area

has in fact monitored attainment of the standard, USEPA believes there

is no need for an area to make a further submission containing

additional measures to achieve attainment. This is also consistent with

the interpretation of certain section 172(c) requirements provided by

USEPA in the General Preamble to Title I, as USEPA stated there that no

other measures to provide for attainment would be needed by areas

seeking redesignation to attainment since ``attainment will have been

reached.'' (57 FR at 13564; see also September 1992 Calcagni memorandum

at page 6.) Upon attainment of the NAAQS, the focus of State planning

efforts shifts to the maintenance of the NAAQS and the development of a

maintenance plan under section 175A.

Similar reasoning applies to other related provisions of subpart 2

such as the contingency measure requirements of section 172(c)(9).

USEPA has previously interpreted the contingency measure requirement of

section 172(c)(9) as no longer being applicable once an area has

attained the standard since those ``contingency measures are directed

at ensuring RFP and attainment by the applicable date.'' (57 FR at

13564; see also September 1992 Calcagni memorandum at page 6.)

USEPA emphasizes that the lack of a requirement to submit the SIP

revisions discussed above exists only for as long as an area designated

nonattainment continues to attain the standard. If USEPA subsequently

determines that such an area has violated the NAAQS, the basis for the

determination that the area need not make the pertinent SIP revisions

would no longer exist. The USEPA would notify the State of that

determination and would also provide notice to the public in the

Federal Register. Such a determination would mean that the area would

have to address the pertinent SIP requirements within a reasonable

amount of time, which USEPA would establish taking into account the

individual circumstances surrounding the particular SIP submissions at

issue. Thus, a determination that an area need not submit one of the

SIP submittals amounts to no more than a suspension of the requirement

for so long as the area continues to attain the standard.

The State must continue to operate an appropriate air quality

monitoring network, in accordance with 40 CFR part 58, to verify the

attainment status of the area. The air quality data relied upon to

determine that the area is attaining the ozone standard must be

consistent with 40 CFR Part 58 requirements and other relevant USEPA

guidance and recorded in USEPA's Aerometric Information Retrieval

System (AIRS).

The determinations that are being made with this action are not

equivalent to the redesignation of the area to attainment. Attainment

of the ozone NAAQS is only one of the criteria set forth in section

107(d)(3)(E) that must be satisfied for an area to be redesignated to

attainment. To be redesignated the State must submit and receive full

approval of a redesignation request for the area that satisfies all of

the criteria of that section, including the requirement of a

demonstration that the improvement in the area's air quality is due to

permanent and enforceable reductions and the requirements that the area

have a fully-approved SIP meeting all of the applicable requirements

under section 110 and part D and a fully-approved maintenance plan.

Furthermore, the determinations made in this action do not shield

an area from future USEPA action to require emissions reductions from

sources in the area where there is evidence, such as photochemical grid

modeling, showing that emissions from sources in the area contribute

significantly to nonattainment in, or interfere with maintenance by,

other nonattainment areas. USEPA has authority under sections

110(a)(2)(A) and 110(a)(2)(D) to require such emission reductions if

necessary and appropriate to deal with transport situations.

II. Analysis of Air Quality Data

The USEPA has reviewed the ambient air monitoring data for ozone

(consistent with the requirements contained in 40 CFR Part 58 and

recorded in AIRS) for the Grand Rapids and Muskegon ozone nonattainment

areas in the State of Michigan from 1992 through the present time. On

the basis of that review USEPA has concluded that the area attained the

ozone standard during the 1992-1994 period and continues to attain the

standard at this time. For ozone, an area may be considered attaining

the NAAQS if there are no violations, as determined in accordance with

the regulation codified at 40 CFR 50.9, based on three (3) consecutive

calendar years of complete, quality assured monitoring data. A

violation occurs when the ozone air quality monitoring data show

greater than one (1) average expected exceedance per year at any site

in the area at issue. An exceedance occurs when the maximum hourly

ozone concentration exceeds 0.124 parts per million (ppm). The data

should be collected and quality-assured in accordance with 40 CFR part

58, and recorded in the AIRS in order for it to be available to the

public for review.

The Grand Rapids and Muskegon areas have demonstrated attainment of

the ozone NAAQS based on ozone monitoring data for the years 1992

through 1994. The ozone monitoring network in Grand Rapids consists of

two monitors located in Kent County. A monitor was established in

Ottawa County in 1989 and relocated to Allegan County in 1993. The

State, however, did reestablish a monitor in Ottawa county in 1994. Two

exceedances of the ozone standard have been monitored since 1992 in the

Grand Rapids area, both of these occurred at the Grand Rapids monitor

in Kent County. At this site, the first exceedance of 0.156 ppm

occurred in 1993, and the second exceedance of 0.149 ppm occurred in

1994. The ozone monitoring network in Muskegon consists of one monitor

located in Muskegon County. Three exceedances of the ozone standard

have been monitored since 1992 in the Muskegon area, all three of these

occurred at the Muskegon monitor in Muskegon County. At this site, one

exceedance was recorded during each of the years 1992, 1993, and 1994

at concentrations of 0.129 ppm, 0.141 ppm, and 0.146 ppm, respectively.

Data stored in AIRS was used to determine the annual average expected

exceedances for each area for the years 1992, 1993, and 1994. Data

contained in AIRS have undergone quality assurance review by the State

and USEPA. Since the annual average number of expected exceedances for

each monitor during the most recent three years is equal to 1.0, the

Grand Rapids and Muskegon areas are considered to have attained the

standard. A more detailed summary of the ozone monitoring data for the

area is provided in the USEPA technical support document dated May 12,

1995.

III. Final Action

USEPA determines that the Grand Rapids and Muskegon ozone

nonattainment areas have attained the ozone standard and continue to

attain the standard at this time. As a consequence of USEPA's

determination that the Grand Rapids and Muskegon [[Page 28731]] areas

have attained the ozone standard, the requirements of section 182(b)(1)

concerning the submission of the 15 percent plan and ozone attainment

demonstration and the requirements of section 172(c)(9) concerning

contingency measures are not applicable to the area so long as the area

does not violate the ozone standard.

USEPA emphasizes that these determinations are contingent upon the

continued monitoring and continued attainment and maintenance of the

ozone NAAQS in the affected areas. If a violation of the ozone NAAQS is

monitored in the Grand Rapids and Muskegon areas (consistent with the

requirements contained in 40 CFR part 58 and recorded in AIRS), USEPA

will provide notice to the public in the Federal Register. Such a

violation would mean that the area would thereafter have to address the

requirements of section 182(b)(1) and section 172(c)(9) since the basis

for the determination that they do not apply would no longer exist.

As a consequence of the determinations that the areas have attained

and that the reasonable further progress and attainment demonstration

requirements of section 182(b)(1) and contingency measure requirements

of section 172(c)(9) do not presently apply, the sanctions clocks

started by USEPA as a result of the findings made on January 21, 1994

regarding incompleteness of the section 181(b)(1) 15 percent plans and

172(c)(9) contingency plans are hereby stopped as the deficiency for

which the clocks were started no longer exists.

Nothing in this action shall be construed as permitting or allowing

or establishing a precedent for any future request for a revision to

any state implementation plan. Each request for revision to the State

implementation plan shall be considered separately in light of specific

technical, economic, and environmental factors and in relation to

relevant statutory and regulatory requirements.

This action will become effective on July 17, 1995. However, if the

USEPA receives adverse comments by July 3, 1995, then the USEPA will

publish a notice that withdraws the action, and will address these

comments in a subsequent final rule on the related proposed rule which

is being published in the proposed rules section of this Federal

Register.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities (5 U.S.C. 603 and 604).

Alternatively, USEPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000. This action's determination does not create any new

requirements, but allows suspension of the indicated requirements.

Therefore, because the approval does not impose any new requirements, I

certify that it does not have a significant impact on any small

entities affected.

Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded

Mandates Act'') (signed into law on March 22, 1995) requires that the

Agency prepare a budgetary impact statement before promulgating a rule

that includes a Federal mandate that may result in expenditure by

State, local, and tribal governments, in aggregate, or by the private

sector, of $100 million or more in any one year. Section 203 requires

the Agency to establish a plan for obtaining input from and informing,

educating, and advising any small governments that may be significantly

or uniquely affected by the rule.

Under section 205 of the Unfunded Mandates Act, the Agency must

identify and consider a reasonable number of regulatory alternatives

before promulgating a rule for which a budgetary impact statement must

be prepared. The Agency must select from those alternatives the least

costly, most cost-effective, or least burdensome alternative that

achieves the objectives of the rule, unless the Agency explains why

this alternative is not selected or the selection of this alternative

is inconsistent with law.

Because this final rule is estimated to result in the expenditure

by State, local, and tribal governments or the private sector of less

than $100 million in any one year, the Agency has not prepared a

budgetary impact statement or specifically addressed the selection of

the least costly, most cost-effective, or least burdensome alternative.

Because small governments will not be significantly or uniquely

affected by this rule, the Agency is not required to develop a plan

with regard to small governments.

Under Section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by August 1, 1995. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See Section 307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Nitrogen oxides,

Ozone, Volatile organic compounds, Intergovernmental relations,

Reporting and record keeping requirements.

Authority: 42 U.S.C. 4201-7601q.

Dated: May 18, 1995.

Valdas V. Adamkus,

Regional Administrator.

Part 52, chapter 1, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart X--Michigan

2. Section 52.1174 is amended by adding new paragraph (k) to read

as follows:

* * * * *

Sec. 52.1174 Control strategy: Ozone.

(k) Determination--EPA is determining that, as of July 17, 1995,

the Grand Rapids and Muskegon ozone nonattainment area has attained the

ozone standard and that the reasonable further progress and attainment

demonstration requirements of section 182(b)(1) and related

requirements of section 172(c)(9) of the Clean Air Act do not apply to

the area for so long as the area does not monitor any violations of the

ozone standard. If a violation of the ozone NAAQS is monitored in the

Grand Rapids and Muskegon ozone nonattainment area, these

determinations shall no longer apply.

[FR Doc. 95-13461 Filed 6-1-95; 8:45 am]

BILLING CODE 6560-50-P