Determination of Attainment of Ozone Standard for Salt Lake and Davis Counties, Utah, and Determination Regarding Applicability of Certain Reasonable Further Progress and Attainment Demonstration Requirements

[[Page 36723]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[UT24-1-7128; FRL-5261-1]

Determination of Attainment of Ozone Standard for Salt Lake and

Davis Counties, Utah, and Determination Regarding Applicability of

Certain Reasonable Further Progress and Attainment Demonstration

Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On June 8, 1995, the EPA published a direct final and proposed

rulemakings determining that the Salt Lake and Davis Counties, Utah,

moderate ozone nonattainment area had attained the ozone National

Ambient Air Quality Standard (NAAQS). Based on this determination, the

EPA also determined 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 (CAA), as

amended in 1990, are not applicable to the area so long as the area

continues to attain the ozone NAAQS. The 30-day comment period

concluded on July 10, 1995. During this comment period, the EPA

received two comment letters in response to the June 8, 1995,

rulemaking. This final rule summarizes all comments and EPA's

responses, and finalizes the EPA's determination that the area has

attained the ozone standard and that certain reasonable further

progress and attainment demonstration requirements as well as other

related requirements of part D of the CAA are not applicable to these

areas as long as the area continues to attain the ozone NAAQS.

EFFECTIVE DATE: This action is effective July 18, 1995.

ADDRESSES: Copies of the documents relevant to this action are

available for inspection at the following address: United States

Environmental Protection Agency, Region 8, Air Programs Branch, 999

18th Street, Suite 500, Denver, Colorado 80202-2466.

FOR FURTHER INFORMATION CONTACT: Tim Russ, Air Programs Branch (8ART-

AP), United States Environmental Protection Agency, Region 8, 999 18th

Street, Suite 500, Denver, Colorado 80202-2466, Telephone Number (303)

293-1814.

SUPPLEMENTARY INFORMATION:

I. Background Information

On June 8, 1995, the EPA published a direct final rulemaking (60 FR

30189) determining that the Salt Lake and Davis Counties moderate ozone

nonattainment area has attained the NAAQS for ozone. In that

rulemaking, the EPA determined that, as a consequence of that

determination, the requirements of section 182(b)(1) concerning the

submission of a 15 percent reasonable further progress 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. In addition, the EPA

determined that the sanctions clock started on January 19, 1994, for

this area for failure to submit the section 182(b)(1) reasonable

further progress requirements and section 172(c)(9) contingency

measures would be stopped since the deficiencies on which it was based

no longer exist.

At the same time that the EPA published the direct final rule, a

separate notice of proposed rulemaking was published in the Federal

Register (60 FR 30217). This proposed rulemaking specified that EPA

would withdraw the direct final rule if adverse or critical comments

were filed on the rulemaking. The EPA received two letters containing

adverse comments regarding the direct final rule, within 30 days of

publication of the proposed rule, and is withdrawing the direct final

rule in a separate notice published in this Federal Register.

The specific rationale and air quality analysis the EPA used to

determine that the Salt Lake and Davis Counties ozone nonattainment

area had attained the ozone NAAQS and is not required to submit State

Implementation Plan (SIP) revisions for reasonable further progress,

attainment demonstration and related requirements are explained in the

direct final rule and will not be restated here.

This final rule contained in this Federal Register addresses the

comments which were received during the public comment period and

announces EPA's final action regarding these determinations.

II. Public Comments and EPA Responses

Two letters were received in response to the June 8, 1995, proposal

and direct final Federal Register notices. One was a joint comment from

the Utah Chapter of the Sierra Club and the Wasatch Clean Air Coalition

(Wasatch Coalition) and the other was from the Citizens Commission for

Clean Air in the Lake Michigan Basin (Citizens Commission). The

following discussion summarizes and responds to the comments received.

Comment 1.: According to the Sierra Club and Wasatch Coalition, the

procedure used by EPA unlawfully circumvents the formal redesignation

process required by section 107(d) of the CAA. The commentors stated

that Utah has not met the technical and legal requirements for

redesignation of the Salt Lake and Davis Counties nonattainment area to

attainment for ozone and that, as a result, EPA's finding that certain

CAA requirements do not apply is illegal and inappropriate. According

to the commentors, EPA may not redesignate an area to attainment unless

the criteria of section 107(d)(3) of the CAA have been satisfied and

EPA may not allow nonattainment areas to avoid requirements by meeting

only one of the five criteria of section 107(d)(3) (the requirement

that a nonattainment area has attained the standard). The commentors

assert that Part D expressly defines attainment or nonattainment

exclusively by reference to the section 107(d) redesignation process

and that the statutory provisions of Part D at issue are tied expressly

to the formal designation process of section 107(d). The commentors

conclude that the ozone nonattainment plan provisions of Part D apply

expressly to areas classified under section 181, which include all

areas designated nonattainment under section 107(d), and that all of

the requirements of section 182(b) apply to all areas designated

nonattainment and classified as moderate under section 181. The

commentors also contend that an area may be excused from sanctions only

on the basis of redesignation to attainment under section 107(d).

Response to Comment 1: In response, EPA first notes that with this

action, EPA is neither redesignating the Salt Lake and Davis Counties

nonattainment area, nor avoiding the redesignation requirements of

section 107(d). All of those requirements remain in effect and must be

satisfied for EPA to approve the pending redesignation request for the

Salt Lake and Davis Counties area. What EPA is doing is making a

determination that since the area is attaining the standard, which is a

factual determination, certain provisions of the CAA, whose express

purpose is to achieve attainment of the standard, do not require SIP

revisions to be made by the State for so long as the area continues to

attain the standard. In sum, this action is not and does not purport to

be a redesignation to attainment pursusant to section 107(d).

Consequently, the criteria of section 107(d)(3) do not apply to this

action.

EPA disagrees with the commentors' analysis of the language and

structure of the CAA. EPA's statutory analysis was

[[Page 36724]]

explained in detail in the June 8, 1995, direct final rule and in the

May 10, 1995, memorandum from John Seitz, Director, Office of Air

Quality Planning and Standards, referred to in the June 8, 1995,

Federal Register notice. EPA will not recount that analysis here, but

will respond to the arguments presented by the commentors regarding the

statutory language and structure of Part D of Title I of the CAA as it

relates to EPA's action.

In sum, EPA's legal rationale is based upon the statutory

definition of ``reasonable further progress'' in section 171(1), the

concept that additional reductions are not needed to attain the

standard in an area already attaining the standard, and the language of

section 172(c)(9) requiring contingency measures ``if the area fails to

make reasonable further progress, or to attain the national primary

ambient air quality standard by the attainment date applicable under

this part.'' As the commentors acknowledge, section 171(1) defines

``reasonable further progress'' as ``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.''

The commentors, however, assert that EPA is ignoring the definition

of ``nonattainment area'' in section 171(2). The commentors then

proceed to argue that as Part D ozone requirements are linked with the

classification under section 181 of areas designated nonattainment for

ozone under section 107(d), EPA cannot excuse ozone nonattainment areas

from full compliance with section 182 unless all requirements of

section 107(d)(3) are met.

In response, EPA first notes that the commentors appear to equate

the designation of an area as attainment or nonattainment with the

factual issue of whether an area, regardless of its designation, is

attaining the standard. These are two distinct issues, however. Title I

of the CAA, including Part D, contains provisions that distinguish

between the concept of whether an area is attaining a standard and an

area's designation as attainment or nonattainment.

Indeed, section 107(d)(3) itself clearly demonstrates the

distinction as only one of the five criteria for redesignation of a

nonattainment area to attainment is the determination that the area

``has attained the national ambient air quality standard.'' (Section

107(d)(3)((E)(i).) Plainly, the CAA clearly contemplates that there

will be areas designated nonattainment that are attaining the standard

as there could be a nonattainment area that meets the air quality

criterion for redesignation to attainment without satisfying the other

criteria. Such an area would need to remain designated nonattainment

even though it was attaining the standard.

A provision of Part D that demonstrates the distinction between

attaining the standard and the designation of an area as attainment or

nonattainment is section 182(f), which authorizes EPA to waive NOx

reduction requirements that apply to ozone nonattainment areas by

virtue of their designation and classification if EPA determines that

the NOx reductions would ``not contribute to attainment of the''

standard. EPA has interpreted and applied this provision on numerous

occasions to waive NOx emission reduction requirements for areas that

have attained the standard since such reductions in areas that have

already attained the standard would not contribute to attainment. See,

e.g., 60 FR 3760 (January 19, 1995) (final action on NOx waivers for

Toledo and Dayton, Ohio). Thus, that provision clearly contemplates

that areas designated nonattainment that have attained the standard may

have certain specified requirements waived.

In sum, the CAA clearly does not equate the factual issue of

whether an area is attaining the standard with the area's designation

status as attainment or nonattainment. It expressly contemplates

situations in which areas designated nonattainment may be attaining the

standard. Thus, the definition of ``nonattainment area'' in section

171(2), which provides that, for purposes of Part D, a nonattainment

area means an area that ``is designated `nonattainment' with respect to

[a particular] pollutant within the meaning of section 107(d)'' does

not detract from EPA's interpretation of the language of section 171(1)

defining ``reasonable further progress'' requirements in terms of

reductions for the purpose of ``ensuring attainment.''

EPA agrees with the commentors' basic conception of the Part D

ozone nonattainment area requirements, which is that the classification

of an area designated nonattainment for ozone determines the set of

requirements of subpart 2 to which the area is subject. For example,

areas such as the Salt Lake and Davis Counties area that are classified

as moderate pursuant to section 181 are subject to the requirements of

section 182(b), while areas that are classified as serious are subject

to the requirements of section 182(c).

The question at issue in this rulemaking concerns the substance of

some of those requirements. As a general matter, section 182(b)(1) and

section 172(c)(9) apply to moderate ozone nonattainment areas. However,

in this rulemaking EPA is interpreting section 182(b)(1) and 172(c)(9)

such that they do not impose SIP submission requirements on an area

classified as a moderate ozone nonattainment area that is attaining the

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

standard. This is not a waiver of requirements that by their terms

clearly apply; it is a determination that certain requirements are

written so as to be operative only if the area is not attaining the

standard. If, prior to the redesignation of such an area to attainment,

the area violates the ozone NAAQS, that determination will no longer

apply. That area, by virtue of its continuing designation and

classification as a moderate ozone nonattainment area, will once again

be faced with an obligation to submit SIP revisions pursuant to

sections 172(c)(9) and 182(b)(1).

Moreover, other requirements of part D that are not written in such

a way as to require submissions only if an area is not attaining the

standard continue to apply solely by virtue of the area's

classification and designation as a moderate ozone nonattainment area.

For example, the Volatile Organic Compound (VOC) Reasonably Available

Control Technology (RACT) requirements of section 182(a)(2) and

182(b)(2) apply regardless of whether an area is attaining the

standard. Similarly, the requirements of part D new source review

(e.g., sections 182(a)(2)(C) and (b)(5)) continue to apply to areas

designated nonattainment solely by virtue of their continuing

nonattainment designation.

In sum, EPA disagrees with the commentors' view that this

rulemaking is a de facto redesignation to attainment without complying

with all of the redesignation requirements of section 107(d)(3)(E). The

Salt Lake and Davis Counties area remains a moderate ozone

nonattainment area and remains subject to the requirements of the CAA

applicable to such areas pursuant to sections 172(c) and 182(b). These

include requirements such as VOC RACT and part D new source review,

whose applicability is linked solely to the area's status as a

designated ozone nonattainment area that has been classified as

moderate. What EPA is determining is that the SIP submission

requirements of section 182(b)(1) regarding 15% reasonable further

progress and attainment demonstration

[[Page 36725]]

plans and of section 172(c)(9) regarding contingency measures to be

implemented in the event an area fails to make reasonable further

progress or attain the standard by the attainment date can and should

be interpreted not to apply for so long as the area continues to attain

the standard. Whether the Salt Lake and Davis Counties nonattainment

area may be redesignated to attainment pursuant to section 107(d)(3)(E)

is a matter still pending before EPA and is not the subject of this

rulemaking action.

EPA also disagrees with the commentors' contentions regarding

sanctions. The basis for the initiation of a sanctions clock in this

instance was a finding that plan revisions required by the CAA were not

submitted (see section 179(a)). If EPA determines that the requirement

that led to that finding no longer applies, then the basis for the

initiation of the sanctions clock no longer exists and mandatory

sanctions under section 179 should not apply 18 months after the

finding as they would if the deficiency (the failure to make a required

SIP submission) that led to the finding still existed.

Comment 2: The Sierra Club and Wasatch Coalition commented that

EPA's procedure violates an important policy goal of the CAA--the

assurance that standards will be maintained in the future. According to

the commentors the four criteria, other than having attained the

standard, that must be satisfied for an area to be redesignated to

attainment are intended to assure continued attainment of the standard.

The commentors stated that if EPA exempts Salt Lake and Davis Counties

from the RFP and contingency plan requirements there may be little

incentive for the State to proceed with redesignation of the area and

the additional requirements would not be met. In addition, the

commentors contend that the State is having difficulty demonstrating

that the NAAQS will be maintained over the next 15 years due to

anticipated growth and that some current emission reductions are not

due to permanent and enforceable requirements. According to the

commentors, EPA's proposed action regarding the section 182(b)(1) and

section 172(c)(9) requirements and sanctions would circumvent the

preventive approach of the CAA. The commentors assert that the

nonconservative approach of having the excused requirements being

retriggered in the event of a violation is inappropriate and

inconsistent with congressional intent since it does not assure that

adequate controls are in place to prevent violations; it relies on

correcting inadequate programs only after harm occurs, which will

result in residents being required to breathe unhealthy air that should

have been prevented.

Response to Comment 2: As discussed above, this proceeding is not a

redesignation and EPA is not required to apply the criteria of section

107(d)(3)(E) in determining whether the Salt Lake and Davis Counties

nonattainment area has attained the standard for purposes of

determining whether the area is presently required to submit SIP

revisions pursuant to sections 182(b)(1) and 172(c)(9). That does not

mean that EPA is not concerned with the area's ability to continue to

maintain the NAAQS in the future.

First, as discussed above, EPA's action applies only to certain

requirements. It does not relax any existing SIP control measures,

e.g., VOC RACT requirements. Those requirements will continue to apply,

as well as federal requirements such as the federal motor vehicle

control program, which will produce additional emission reductions in

the future due to fleet turnover, and Reid Vapor Pressure (RVP)

requirements. These measures have produced permanent and enforceable

emission reductions in the period leading to the area's attainment of

the standard and will continue to produce such emission reductions.

Second, EPA's action is contingent upon the area continuing to

attain the NAAQS. Unless the area is redesignated, it will remain an

ozone nonattainment area, subject to the risk that if a violation

occurs it will have to adopt and implement a 15% VOC emission reduction

plan and a plan that demonstrates attainment pursuant to section

182(b)(1), as well as the section 172(c)(9) contingency measures. Thus,

if it turns out that the existing SIP control measures and other

requirements are not adequate to prevent a violation, additional

control measures will be required.

EPA acknowledges the concern of the commentors that EPA's approach

may mean that those control measures would not be adopted and

implemented as quickly as they would be if EPA continued to require the

section 182(b)(1) and 172(c)(9) SIP submissions at this time. EPA

believes, however, that a countervailing policy objective is to reduce

the burden on states and sources of adopting and implementing

additional control measures that are not necessary to attain the

standard. The Salt Lake and Davis Counties nonattainment area has been

in attainment of the standard since the 1991-93 period and continues to

be in attainment. Indeed, no exceedances of the standard have been

monitored since 1991 and only one exceedance was monitored in 1991.

(For a violation to occur, the expected exceedances must amount to four

over a three-year period at the same monitoring location.) In such a

case, where an area has attained the standard, EPA believes it

appropriate and justifiable to adopt an approach that alleviates the

burdens of adopting and implementing additional control measures that

do not appear necessary to achieve the objective of attaining the

standard.

As noted previously, the Salt Lake and Davis Counties nonattainment

area will be at risk of having to adopt a 15% reasonable further

progress plan, attainment demonstration, and section 172(c)(9)

contingency measures unless it is redesignated to attainment. In order

to be redesignated to attainment, however, the area will have to

satisfy all of the criteria of section 107(d)(3)(E), including the

requirement that EPA fully approve a maintenance plan satisfying the

requirements of section 175A, which requires a plan to maintain the

standard for a period of 10 years after an area is redesignated. As the

sufficiency of the State's maintenance plan is an issue for the

proceeding that evaluates the merits of the State's pending

redesignation request, and not this rulemaking, the comments regarding

the adequacy of that plan will be considered in the redesignation

proceeding.

EPA believes that, contrary to the suggestion of the commentors,

that the State will have adequate incentives to continue to seek the

redesignation of the Salt Lake and Davis Counties area to attainment.

Those incentives include being able to eliminate the risk of being

subject to the 15% plan requirement, rather than have to address a

requirement to achieve 15% VOC emission reductions in the event of a

violation. Furthermore, if the area violates the standard prior to

redesignation, it will be subject to the ``bump-up'' provisions of

section 181(b)(2), which require the area to be ``bumped up'' to the

next higher classification (serious) and subject to additional

requirements above and beyond the requirements applicable to moderate

ozone nonattainment areas. This provides an additional substantial

incentive for the State to satisfy the requirements for redesignation

to attainment. In addition, unless an area is redesignated, part D new

source review, rather than part C prevention of significant

deterioration requirements, must continue to apply.

Comment 3: The Sierra Club and Wasatch Coalition disagree that the

[[Page 36726]]

relevant data demonstrate that the Counties have attained the NAAQS for

ozone. The commentors argue that the State should have to conclusively

demonstrate that the NAAQS for ozone is being met, and, in their view,

the State has not done so. The commentors note that EPA has expressed

concern over the number and placement of monitoring stations and that

studies of the monitoring network conducted in the summers of 1993 and

1994 concluded that additional monitoring stations should be

established and that existing stations were not well placed to measure

maximum ozone concentrations. The commentors argue that only one year

of preliminary data are available from new stations established as a

result of these studies and that attainment cannot be demonstrated

based on only one year of data from the new sites. The commentors also

cite the complexity of meteorological patterns in the affected area,

which may result in variable ozone levels at different locations at

different times. Because of this meteorological complexity, the

commentors argue that it is inappropriate to extrapolate a finding of

areawide compliance from a few monitoring sites. According to the

commentors, these problems may lead to a false conclusion of attainment

throughout the nonattainment area. In the commentors' view, this

concern is far more serious because data from monitoring locations is

so close to the applicable standard and very small increases at

different locations would indicate nonattainment with the standard. The

commentors feel it is premature to conclude that the standard has been

met.

The Citizens Commission expresses similar concerns regarding the

air quality monitoring data upon which EPA based its proposal.

Response to Comment 3: EPA has approved the monitoring network for

the Salt Lake and Davis Counties nonattainment area as meeting the

requirements of its regulations. EPA has not taken any action to

disapprove the network but, as described in detail below, has been

working with the State of Utah to improve the quality of the network.

Although EPA and the State are undertaking studies that may result in

improvements to the network, that does not mean that EPA views the

monitoring data showing attainment of the standard as being inadequate

or unreliable. EPA continually reviews the monitoring networks to

determine how they can be improved. However, the fact that a monitoring

network may be able to be improved does not mean that the existing

network does not meet EPA's regulations, nor does it mean that the data

collected from the existing network should be ignored or discounted.

EPA believes that the monitoring data fully support a determination

that the Salt Lake and Davis Counties area has attained the standard.

That network remains a fully approved network and EPA does not believe

that there is a basis for discounting the data showing attainment of

the standard since 1990.

EPA further notes that no exceedances have been monitored in the

area since 1991, and only one was monitored in 1991. (Contrary to the

assertion of the commentors, EPA's methodology of rounding down a

monitored reading of up to .124 to .12 is not inconsistent with 40 CFR

Part 50, App. H. That is EPA's long-standing approach to determining

whether exceedances occur and is fully justified and appropriate.)

Also, not only did the existing network fail to record an exceedance in

1994, but none of the additional monitors established as part of the

ongoing studies discussed below monitored an exceedance. While those

monitors have yet to be in operation a full three years, those initial

results support the finding that the area has attained the standard. As

a violation does not occur unless four exceedances occur at a single

monitor over a three-year period, the data from the Salt Lake and Davis

Counties area amply support the determination that the area has

attained the standard.

What follows is a more detailed explanation of EPA's reviews of the

ozone monitoring network and the ongoing studies being conducted to

evaluate it. The Utah Division of Air Quality conducted network reviews

and submitted packages of information describing reviews of the State's

air monitoring network (including ozone monitoring stations) covering

the period of 1991 through 1994. EPA has reviewed the submittals.

In a letter from Marshall Payne to Burnell Cordner dated September

1, 1992 regarding the State's network review submittal of May 1 and May

15, 1992, EPA concluded the network review met the requirements of 40

CFR, Part 58.20(d). In a letter from Marshall Payne to Russell Roberts

dated January 13, 1994 regarding the State's network review submittal

of June 2, 1993, EPA commented on the results of the 1993 saturation

study and requested that the State submit a plan to revise the ozone

monitoring network. The State's response to that request was dated

March 4, 1994; EPA replied in a letter from Marshall Payne and Douglas

Skie dated April 13, 1994. In the April 13, 1994 letter, EPA urged the

State to proceed with proposed additions to the ozone network for the

1994 ozone season. The State added several ozone stations, which

collected data in the 1994 ozone season.

A letter from Douglas Skie to Russell Roberts dated May 5, 1995

regarding the State's network review submittal of September 30, 1994,

stated that, in general, EPA supported the modifications to the ozone

network resulting from the 1993 and 1994 saturation studies. In the

same letter, EPA urged the State to designate National Air Monitoring

Stations both in Ogden and the Provo-Orem area. In the May 5, 1995

letter, EPA also acknowledged the State's request to discontinue the

Springville ozone station due to low observed concentrations; EPA

concurred that this station, having been established based upon the

saturation study of 1993, had fulfilled its purpose and was no longer

needed. The Salt Lake City station (610 South Second East) was

discontinued late in 1994 due to permanent structural changes on the

roof of the Health Department building.

The State submitted a report, ``Wasatch Front Ozone Saturation

Study, Summer, 1994'' under a letter dated April 3, 1995. The report

cited limitations of the passive sampling devices used in the study;

those limitations impede the ability to confidently select sites for

maximum concentration stations on the basis of saturation studies

alone. Because of differences in meteorological conditions between 1993

and 1994, EPA contends the results of the 1994 study suggest it is

important to operate a network of ozone monitoring stations with

diverse exposures in the Wasatch Front. Maximum ozone concentrations

were measured relatively close to the urban core of Salt Lake City,

while some high concentrations may still occur in the periphery. The

report suggested the possibility of establishing an ozone monitoring

station on the east bench of Salt Lake City (viz., in the vicinity of

Sandy and Draper, Utah). EPA has supported the plan to install such a

station and has urged the State to proceed.

Concentrations of air pollutants, particularly ozone, are dynamic

and air monitoring networks should continually be reviewed and

transformed to ensure pollutant concentrations are accurately reflected

in the national data base. EPA has, through the network review process,

examined submittals bearing upon the design of the ozone network in the

Wasatch Front, made comments on changes recommended in the network

design, and concurred on the design of the ozone network during the

period of

[[Page 36727]]

1991 to 1994. Results of the saturation studies of 1993 and 1994 were

also reviewed by EPA. EPA expressed concerns regarding the network

design during the period 1991 to 1994 and requested that the State make

modifications; however, the proposed changes evolved as part of the

normal process of network design review. The State took action to

address the concerns and modified the network. The ozone standard has

not been violated in the Wasatch Front during the period from 1991 to

1994; there have been no exceedances since 1991. It is EPA's position

that the State of Utah modified, sited, and operated the ozone

monitoring network consistent with 40 CFR Part 58 during those years

and that the resulting data can reasonably be relied upon to

characterize the ozone attainment status of Salt Lake and Davis

Counties.

Comment 4: The Citizens Commission stated that the rulemaking is an

abuse of agency discretion and violates sections 172(c)(9), 179(a) and

182(b)(1) of the Act. According to the commentor, EPA may suspend the

applicablility of SIP requirements only through a redesignation to

attainment pursuant to section 107(d)(3)(E).

Response to Comment 4: For the reasons stated above, in the June 8,

1995, Federal Register notice, and in the May 10, 1995, memorandum from

John Seitz, the EPA does not believe that the rulemaking violates any

section of the CAA. The commentor has not offered any persuasive

reasoning for EPA to depart from the rationale spelled out in the

previous documents. The EPA believes that since the area has attained

the ozone standard, it has achieved the stated purpose of the section

182(b)(1) reasonable further progress and attainment demonstration

requirements, as well as the section 172(c)(9) contingency measures

requirement. As described above, this action is not a redesignation,

nor does it circumvent the requirements for a redesignation under

section 107(d)(3)(E).

Comment 5: The Citizens Commission stated that EPA's action is not

a reasonable interpretation of EPA's nondiscretionary mandate under

section 101(b)(1) to ``protect and enhance the quality of the Nation's

air resources so as to promote the public health and welfare and the

productive capacity of its population.''

Response to Comment 5: The EPA disagrees with the commentor's

statement that its action violates section 101(b)(1). Section 101(b)(1)

does not establish a nondiscretionary duty; it is a statement of

purpose--a purpose that EPA is not disregarding in this action. The

area has attained the primary ozone standard, a standard designed to

protect public health with an adequate margin of safety (see section

109(b)(1)). EPA's action does not relax any of the requirements that

have led to the attainment of the standard. Rather, its action has the

effect of suspending requirements, for additional pollution reductions,

above and beyond those that have resulted in the attainment of the

health-based standard.

Comment 6: The Citizens Commission asserts that EPA's action

violates the Administrative Procedure Act and the CAA through its

reliance on unpublished memoranda and the General Preamble for the

Implementation of Title I of the Clean Air Act Amendments of 1990, 57

FR 13498 (April 16, 1992). According to the commentor, reliance on

those documents is inappropriate and illegal since those documents were

issued without opportunity for notice and comment and are not

enforceable regulations. The commentor also states that EPA's action is

barren of any statement of legal authority.

Response to Comment 6: EPA's reference to and reliance on those

documents, all of which are either published or publicly available and

a part of the record of this rulemaking, is in no way illegal under

provisions of either the CAA or the Administrative Procedures Act. (The

commentor cited no specific provisions of either act.) EPA agrees that

such documents do not establish enforceable regulations; they do not

purport to be anything but guidance. That is precisely why EPA has

performed this rulemaking--a notice-and-comment rulemaking to take

comment on its statutory interpretations and factual determinations in

order to make a binding and enforceable determination regarding the

Salt Lake and Davis Counties area. The June 8, 1995, Federal Register

notices referred to EPA's prior policy memoranda not as binding the

Agency to adopt the interpretations being proposed therein, but rather

as a useful description of the rationale underlying those proposed

interpretations. EPA has explained the legal and factual basis for its

rulemaking in the June 8, 1995, Federal Register notices and afforded

the public a full opportunity to comment on EPA's proposed

interpretation and determination fully consistent with the applicable

procedural requirements of the Administrative Procedures Act. (The

procedural requirements of section 307(d) of the CAA do not apply to

this rulemaking since it is not among the rulemakings listed in section

307(d)(1).)

Comment 7: The Citizens Commission states that the suspension of

the contingency measure requirement is particularly inappropriate given

the dubious adequacy of the monitoring network. According to the

commentor, EPA's action threatens to subject citizens to acute ozone

episodes to which neither the State nor EPA are likely to be able to

respond effectively due to the lack of implemented measures that would

otherwise have been required.

Response to Comment 7: The response to Comment 3 above contains

EPA's discussion of the adequacy of the monitoring network in the Salt

Lake and Davis Counties area. As noted in the response to Comment 2

above, EPA acknowledges the concerns of the commentors regarding the

likelihood that additional control measures may not be adopted and

implemented as quickly as if EPA continued to require their adoption

and submission at this time, but believes that countervailing policy

considerations exist. Moreover, EPA notes that additional emission

reductions will continue to occur as existing control measures are not

being relaxed and the federal motor vehicle control program will

continue to produce additional reductions through fleet turnover. As

the language quoted by the commentor from EPA's June 8, 1995, Federal

Register notice indicates, EPA would take individual circumstances into

account, which would include the severity of any problems, in

establishing the period in which the State would have to address the

SIP requirements. EPA believes that it and the State would be able to

respond effectively and promptly in the event a violation occurs.

Comment 8: The Citizens Commission states that the Salt Lake and

Davis Counties nonattainment area cannot be temporarily redesignated in

this manner, especially solely on the basis of marginal air quality

data indicating momentary achievement of the standard.

Response to Comment 8: As explained elsewhere in this notice, EPA's

action is not a redesignation and is both appropriate and legally

justified. Moreover, as explained above, the air quality data

underlying the determination is sufficient. Finally, the data are not

marginal and do not indicate ``momentary achievement'' of the standard.

No exceedances have been monitored over the most recent full 3-year

period and only one exceedance was monitored in 1991. Thus, the area

has had clean data for an extended period of time during which emission

reductions have occurred due to the

[[Page 36728]]

imposition of various control measures such as the federal motor

vehicle control program, VOC RACT requirements, and RVP requirements.

Final Rulemaking Action

The EPA is making a final determination that the Salt Lake and

Davis Counties ozone nonattainment area has attained the ozone standard

and continues to attain the standard at this time. As a consequence of

this determination, the requirements of section 182(b)(1) concerning

the submission of the 15 percent reasonable further progress 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.

The EPA emphasizes that these determinations are contingent upon

the continued monitoring and continued attainment and maintenance of

the ozone NAAQS in the affected area. When and if a violation of the

ozone NAAQS is monitored in the Salt Lake and Davis Counties

nonattainment area (consistent with the requirements contained in 40

CFR Part 58 and recorded in AIRS), the EPA 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 determination that these areas have

attained the NAAQS and that the reasonable further progress and

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

contingency measure requirement of section 172(c)(9) do not presently

apply, these are no longer requirements within the meaning of 40 CFR

Sec. 52.31(c)(1). Consequently, the sanctions clock started by EPA on

January 19, 1994, for failure to submit SIP revisions required by the

provisions of the CAA is hereby stopped.

Specific to the Salt Lake and Davis Counties' ozone nonattainment

area, Governor Michael Leavitt submitted a Redesignation Request and

Maintenance Plan on November 12, 1993. On January 13, 1995, the

Governor submitted revisions to that initial submittal that included

revised emission inventories.

Because the State submitted an Ozone Redesignation Request and

Maintenance Plan SIP revision for Salt Lake and Davis Counties, in lieu

of a 15 percent SIP revision, Salt Lake and Davis Counties have been

subject to the motor vehicle emissions budget in the Ozone

Redesignation Request and Maintenance Plan SIP revision for

transportation conformity purposes (see 40 CFR 93.128(i)).

Pursuant to EPA's new May 10, 1995, policy, the State may continue

to demonstrate conformity to this submitted motor vehicle emissions

budget, or the State may choose to withdraw the applicability of the

motor vehicle emissions budget in the Ozone Redesignation Request and

Maintenance Plan SIP revision for transportation conformity purposes,

through the submittal of a letter from the Governor. If the

applicability of the submitted motor vehicle emissions budget is

withdrawn for transportation conformity purposes, only the build/no-

build and less-than-1990 tests will apply until the Ozone Redesignation

Request and Maintenance Plan are approved. If the applicability of the

submitted motor vehicle emissions budget is not withdrawn for

transportation conformity purposes, it will continue to apply.

The EPA finds that there is good cause for this action to become

effective immediately upon publication because a delayed effective date

is unnecessary due to the nature of this action, which is a

determination that certain Act requirements do not apply for so long as

the areas continue to attain the standard. The immediate effective date

for this action is authorized under both 5 U.S.C. Sec. 553(d)(1), which

provides that rulemaking actions may become effective less than 30 days

after publication if the rule ``grants or recognizes an exemption or

relieves a restriction'' and Sec. 553(d)(3), which allows an effective

date less than 30 days after publication ``as otherwise provided by the

agency for good cause found and published with the rule.''

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

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, EPA may certify that the rule will not have a

significant economic 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. Today's determination does not create any new

requirements, but suspends the indicated requirements. Therefore,

because this notice does not impose any new requirements, I certify

that it does not have a significant impact on small entities affected.

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA

must prepare a budgetary impact statement to accompany any proposed or

final rulemaking that includes a Federal mandate that may result in

estimated costs to State, local, or tribal governments in the

aggregate; or to the private sector, of $100 million or more. Section

203 requires the EPA to establish a plan for informing and advising any

small governments that may be significantly or uniquely impacted by the

rule. Under section 205, the EPA must select the most cost-effective

and least burdensome alternative that achieves the objectives of the

rule and is consistent with statutory requirements.

The EPA has determined that this final rule action does not include

a Federal mandate that may result in estimated costs of $100 million or

more to either State, local or tribal governments in the aggregate, or

to the private sector. This Federal action imposes no new Federal

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

Under section 307(b)(1) of the Act, petitions for judicial review

of this final rule action determining that the Salt Lake and Davis

Counties ozone nonattainment area has attained the NAAQS for ozone and

that certain reasonable further progress and attainment demonstration

requirements of section 182(b)(1) and the contingency measures

provisions of section 172(c)(9) no longer apply must be filed in the

United States Court of Appeals for the appropriate circuit by September

18, 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 CAA section

307(b)(2)).

Executive Order 12866

The Office of Management and Budget has exempted this rule from the

requirements of Section 6 of Executive Order 12866.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Nitrogen oxides,

Ozone, Volatile organic compounds,

[[Page 36729]]

Intergovernmental relations, Reporting and record keeping requirements.

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

Dated: July 13, 1995.

Jack W. McGraw,

Acting Regional Administrator.

40 CFR part 52, Subpart TT, 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 TT--Utah

2. Section 52.2332 is added to read as follows:

Sec. 52.2332 Control Strategy: Ozone.

Determinations--EPA is determining that, as of July 18, 1995, the

Salt Lake and Davis Counties ozone nonattainment area has attained the

ozone standard based on air quality monitoring data from 1992, 1993,

and 1994, 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

Salt Lake and Davis Counties ozone nonattainment area, these

determinations shall no longer apply.

[FR Doc. 95-17755 Filed 7-17-95; 8:45 am]

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