Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Michigan

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[MI21-04-6753, MI18-03-6754; FRL-5160-6]

Approval and Promulgation of Implementation Plans and Designation

of Areas for Air Quality Planning Purposes; State of Michigan

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Final rule.

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SUMMARY: On July 21, 1994 the USEPA published a proposal to approve the

1990 base year emission inventory, basic vehicle inspection and

maintenance (I/M) and the redesignation to attainment and associated

section 175A maintenance plan for the ozone National Ambient Air

Quality Standard (NAAQS) for the seven-county Detroit-Ann Arbor,

Michigan area as a State Implementation Plan (SIP) revisions. The 30-

day comment period concluded on August 22, 1994. A total of 72 comment

letters were received in response to the July 21, 1994 proposal, 62

favorable, 9 adverse and 1 request to extend the comment period. On

September 8, 1994, however, the USEPA published a correction document

and 15-day extension of the comment period as a result of the

inadvertent omission of a number of lines from the July 21, 1994

proposal. The reopened comment period concluded on September 23, 1994.

An additional 25 comment letters were received in response to the

September 8, 1994, extension of public comment period regarding the

July 21, 1994 proposal approval, 2 favorable, 22 adverse and 1

informational. This final rule summarizes all comments and USEPA's

responses, and finalizes the approval of the 1990 base year emission

inventory, and basic I/M, and the redesignation to attainment for ozone

and associated section 175A maintenance plan for the Detroit-Ann Arbor

area.

EFFECTIVE DATE: This action will be effective April 6, 1995.

ADDRESSES: Copies of the SIP revisions, public comments and USEPA's

responses are available for inspection at the following address: (It is

recommended that you telephone Jacqueline Nwia at (312) 886-6081 before

visiting the Region 5 Office.) United States Environmental Protection

Agency, Region 5, Air and Radiation Division, 77 West Jackson

Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Jacqueline Nwia, Regulation

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

Radiation Division, United States Environmental Protection Agency,

Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, Telephone

Number (312) 886-6081.

SUPPLEMENTARY INFORMATION:

I. Background Information

The 1990 base year emission inventory, basic I/M, and redesignation

[[Page 12460]] request and maintenance plan discussed in this rule were

submitted on January 5, 1993 (with revisions on November 15, 1993),

November 15, 1994 and November 12, 1994, respectively, by the Michigan

Department of Natural Resources (MDNR) for the Detroit-Ann Arbor

moderate ozone nonattainment area. The Detroit-Ann Arbor area consists

of Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne

counties. On July 21, 1994, (59 FR 37190) the USEPA published a

proposal to approve the 1990 base year emission inventory, basic I/M,

and redesignation request and associated section 175A maintenance plan

as revisions to the Michigan ozone SIP. On September 8, 1994 (59 FR

46479 and 46380), the USEPA published a correction notice and 15-day

extension of the comment period as a result of the inadvertent omission

of a number of lines from the July 21, 1994 proposal. Adverse comments

were received regarding the proposed rule. The final rule contained in

this Federal Register addresses the comments which were received during

the public comment periods and announces USEPA's final action regarding

the 1990 base year emission inventory, basic I/M, and redesignation and

section 175A maintenance plan for the Detroit-Ann Arbor area. A more

detailed discussion in response to each comment is contained in the

USEPA's Technical Support Document (TSD), dated February 3, 1995 from

Jacqueline Nwia to the Docket, entitled ``Response to Comments on the

July 21, 1994 Proposal to Approve the 1990 Base Year Emission

Inventory, Basic I/M, and Redesignation to Attainment for Ozone and

Section 175A Maintenance Plan for the Detroit-Ann Arbor Area,'' which

is available from the Region 5 office listed above.

II. Public Comments and USEPA Responses and Final Rulemaking Actions

Table of Contents

A. 1990 Base Year Emission Inventory

I. Public Comments and USEPA Response

II. Final Rulemaking Action

B. Inspection and Maintenance

I. Public Comments and USEPA Response

II. Final Rulemaking Action

C. Redesignation

I. Public Comments and USEPA Response

II. Final Rulemaking Action

A. 1990 Base Year Emission Inventory

I. Public Comments and USEPA Responses

The following discussion summarizes and responds to the comments

received regarding the 1990 base year emission inventory.

Comment

Two commentors note an error in the 1990 base year emission

inventory portion of the proposed action. One of these commentors notes

that the total tons of volatile organic compounds (VOC) per summer

weekday emitted from non-road mobile sources is listed as 531.03 for

this source category. The correct number submitted by MDNR is 111.67.

USEPA Response

The USEPA acknowledges this error. The VOC emissions per summer

weekday from the non-road mobile source category in the July 21, 1994

proposal (p. 37192) will be changed to reflect the number submitted by

MDNR, 111.67. In addition, the total tons of VOC per summer weekday in

the same table will be changed to 971.92. The Daily VOC Emissions table

is changed and appears as follows:

Daily VOC Emissions From All Sources--Tons/Summer Weekday

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

On-road Non-road

Point Area source mobile mobile Biogenic Total

Ozone nonattainment area source emissions source source emissions emissions

emissions emissions emmissions

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

Detroit/Ann Arbor................. 167.08 252.27 327.00 111.67 113.90 971.92

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II. Final Rulemaking Action

The USEPA approves the ozone emission inventory SIP submitted to

the USEPA for the Detroit-Ann Arbor area as meeting the section

182(a)(1) requirements of the Clean Air Act (Act) for emission

inventories.

B. Inspection and Maintenance

I. Public Comments and USEPA Responses

The following discussion summarizes and responds to the comments

received regarding Inspection and Maintenance.

Comment

One commentor suggests that the USEPA's redesignation decision

should be explicitly conditioned upon the requirement for the Michigan

Department of Transportation to implement enhanced I/M 240 as a

contingency measure. At a bare minimum, the maintenance plan should

include the BAR 90 emissions test with visual anti-tampering check for

all cars newer than 1975 with no Medicaid waiver.

USEPA Response

The Act requires that nonattainment areas classified as moderate

adopt and submit as a SIP revision provisions for implementation of a

basic I/M program. See sections 182(a)(2)(B)(i) and (b)(4). Since the

Detroit-Ann Arbor area was classified as moderate nonattainment for

ozone, the Act requires an I/M program that meets the basic I/M

performance standard. The Detroit-Ann Arbor area has implemented an I/M

program since 1986, as required by the pre-1990 Act. The area,

therefore, must provide for upgrades to the current I/M program to the

level of a basic I/M program. Under recent revisions to the national I/

M rule (January 5, 1995, 60 FR 1735), however, areas that have

requested redesignation to attainment, and are otherwise eligible to

obtain approval of the request, may defer adoption and implementation

of otherwise applicable requirements established in the originally

promulgated I/M rule1. The State was required to submit and has

submitted, as a contingency measure within the section 175A maintenance

plan a commitment, legislative authority and an enforceable schedule

for adoption and implementation of a basic I/M program. The contingency

plan is described in detail in a subsequent USEPA response within this

Federal Register.

\1\I/M rule was promulgated on November 5, 1992, 57 FR 52950.

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Comment

One commentor requests that the USEPA delay approval of the

redesignation request until Michigan's Joint Committee on

Administrative Rules completes its review of the I/M legislation and

the USEPA confirms that the essential elements listed at 59 FR

[[Page 12461]] 37193-94 regarding basic I/M, upon which redesignation

approval relies, are still in place.

USEPA Response

The USEPA cannot delay approval of the redesignation, since

Michigan has submitted the elements required and necessary to establish

basic I/M as a contingency measure in the section 175A maintenance plan

as provided for by the revisions to the national I/M rule. As presented

in the July 21, 1994 proposal, the State submittal contains the

essential elements listed at 59 FR 37193-94. Basic I/M, if implemented

as a contingency measure, may be implemented in Wayne, Oakland, and

Macomb counties and expanded to Washtenaw county.

Comment

One commentor is concerned that expanding upgraded2 basic

I/M to Washtenaw, St. Clair, Livingston and Monroe counties is subject

to potential legislative veto after the need for contingency measures

is triggered. The commentor states that because Michigan's legislature

can unilaterally rescind the provisions to extend basic

I/M programs to Washtenaw, St. Clair, Livingston and Monroe counties

(1993 Mich. Pub. Act 232 Sec. 8(2)(c) & (d)), Michigan's provisions do

not appear to meet even the relaxed standards proposed in the June 28,

1994 revisions to the national I/M rule, 59 FR 33237, as being fully

self-implementing and enforceable under all circumstances. Therefore,

Michigan's basic I/M SIP is not complete or approvable. Consequently,

the Detroit-Ann Arbor area is not eligible for redesignation.

\2\The Act requires States to make changes to improve existing

I/M programs or implement new ones. Section 182(a)(2)(B)(i) requires

States to submit SIP revisions for any ozone nonattainment area

which has been classified as marginal, pursuant to section 181(a) of

the Act, with an existing I/M program that was part of a SIP prior

to enactment of the Act or any area that was required by the Act, as

amended in 1977, to have an I/M program, to bring the program up to

the level required in pre-1990 USEPA guidance, or to what had been

committed to previously in the SIP, whichever was more stringent.

Areas classified as moderate and worse were also subject to this

requirement to improve programs to this level. The Detroit-Ann Arbor

area, a moderate ozone nonattainment area, had in effect an I/M

program pursuant to the 1977 Act. The area, therefore, was required

to improve its existing I/M program to meet the basic I/M program

requirements.

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USEPA Response

Sections 8(2)(c) and (d) of Michigan's Enrolled House Bill 5016

only apply if the redesignation request is disapproved and basic I/M

must be implemented in the entire 7-county Detroit-Ann Arbor area

(Wayne, Oakland, Macomb, Washtenaw, St. Clair, Livingston, and Monroe

counties). The 45-day notification period in section 8(2)(d) of

Michigan Enrolled House Bill 5016 is only applicable, as described in

section 8(2)(c), if the redesignation is not approved and the State

must implement basic I/M to meet the section 182(b) requirements.

Clearly, the 45-day notification period is not applicable for

implementation of I/M as a contingency measure. It is important to

acknowledge that only notification to the legislature is required, and

that no affirmative action on the part of the legislature is necessary

to allow the program to be implemented. In addition, States at any time

are able to amend existing rules and/or regulations for any required

program as a matter of State law. This ability is not a reason for

disapproval of any State submittal because such unilateral State action

would not affect the Federal enforceability of the version of the State

law or regulation the USEPA had approved into the SIP. The I/M

legislation for the Detroit-Ann Arbor area satisfies the requirements

of the revisions to the national I/M rule.

Sections 8(2)(a) and (b) of the legislation apply if the area is

redesignated, and basic I/M is implemented as a contingency measure or

as a condition for approval of the redesignation request. In

particular, section 8(2)(a) provides that basic I/M may be implemented

as a contingency measure in Wayne, Oakland and Macomb county and also

expanded to Washtenaw county, if necessary. Together, the basic I/M

submittal and redesignation request and the section 175A maintenance

plan for the Detroit-Ann Arbor area (1) provide for the adoption of

implementing regulations for a basic I/M program, meeting the national

basic I/M requirements without further legislation, (2) provide for the

implementation of basic I/M upgrades as a contingency measure in the

maintenance plan upon redesignation, (3) contain, as a contingency

measure within the maintenance plan, a commitment by the Governor to

adopt regulations to implement I/M in response to a specified

triggering event, and (4) contain a commitment including an enforceable

schedule for adoption and implementation of a basic I/M program, as

provided in the revisions to the national I/M rule. The revisions to

the I/M rule do not, however, require that the basic I/M SIP be fully

self-implementing. Consequently, contrary to the commentor's statement,

the basic I/M SIP is complete and approvable and the Detroit-Ann Arbor

area is eligible for redesignation.

Comment

One commentor states that the USEPA cannot redesignate the Detroit-

Ann Arbor area because Michigan's basic I/M SIP submission does

not even satisfy the requirements of the USEPA's unlawful policy. In

particular, the commentor argues that since the legislature could at

any time amend the legislative authority, the USEPA should require the

State to submit adopted regulations with a basic I/M SIP. The commentor

further argues that Michigan did not submit a sufficiently specific and

enforceable schedule for adoption and implementation of a basic I/M

program upon a specified triggering event. The commentor also notes

that if the State has not adopted the regulations necessary to

implement the contingency measure, such measure will not correct any

violation promptly as required by the Act and USEPA guidance.

USEPA Response

The commentor states that the 45-day notice provided in the

legislation prior to implementation of a required I/M program ensures

that the legislature can repeal the legislative authority before it

takes effect. This commentor's interpretation of Michigan's Enrolled

House Bill 5016 is incorrect. The 45-day notification period in section

8(2)(d) of Michigan Enrolled House Bill 5016 is only applicable under

the scenario described in section 8(2)(c), if the redesignation is not

approved and the State must implement basic I/M to meet the section

182(b) requirements. Thus, as discussed earlier, the 45-day

notification period is not applicable for implementation of I/M as a

contingency measure.

The USEPA further responds that Michigan has submitted as part of

the 175A maintenance plan an enforceable schedule for adoption and

implementation of basic I/M as a contingency measure. Section 6.8.3 of

the State's submittal indicates that adoption and implementation

schedules for contingency measures would be consistent with those

specified in the Act and any corresponding regulations and submitted as

part of the technical urban airshed modeling (UAM) analysis. The I/M

redesignation rule provides the relevant adoption and implementation

schedules. If the Governor chooses I/M to be implemented as the

contingency measure, under the schedule of the I/M redesignation rule

Michigan incorporated by reference, the State would need to adopt I/M

within one year of the trigger date. Michigan's submittal defined the

trigger date as the [[Page 12462]] date that the State certifies to the

USEPA that the air quality data are quality assured, which will be no

later than 30 days after an ambient air quality violation is monitored.

Pursuant to the I/M redesignation rule, the trigger date is the date no

later than when the USEPA notifies the State of a violation. As long as

the trigger date as defined by Michigan occurs prior to the date the

USEPA notifies the State of a violation, Michigan's timeframe for

implementing I/M as a contingency measure is consistent with the I/M

redesignation rule. Because it often takes several months for the USEPA

to obtain the data and confirm a violation, it is unlikely that the

trigger date as defined by Michigan will be later than that defined in

the I/M redesignation rule. However, if the USEPA does notify the State

of a violation prior to the State certifying to the USEPA that the

ambient air quality data assure a violation, then the trigger date will

be the date of the USEPA notification to the State, consistent with the

I/M redesignation rule. The basic I/M program, if selected as a

contingency measure, must be implemented within 24 months of the

trigger date, or 12 months after the adoption of implementing

regulations. This schedule is consistent with the I/M redesignation

rule, which is the applicable regulation for purposes of establishing

an adoption and implementation schedule. This schedule is specific and

enforceable since it will be incorporated into the SIP as part of the

section 175A maintenance plan. The section 175A(d) requirement for

contingency provisions is that they must promptly correct a violation

of the NAAQS. The USEPA believes that the schedule provided for

implementation of a basic I/M program within the Detroit-Ann Arbor

area's section 175A maintenance plan is sufficient to address this

requirement in light of the logistics of adopting and implementing a

basic I/M program.

The commentor also indicated that the Michigan submittal does not

satisfy the USEPA's requirement of a ``specified and enforceable

schedule'' because it does not include a timetable of steps necessary

to get the required regulations adopted. As discussed above, because

Michigan incorporated by reference the timetable of the I/M

redesignation rule, adoption of I/M regulations is specified to occur

within one year of the trigger date. The only other interim step

necessary to get the required regulations adopted is the proposal of

draft regulations. Although the Michigan submittal did not specify a

date for the proposal, the State's commitment to a date for

promulgation of the final rule implies that the draft regulations will

be proposed on a date no later than that necessary to provide for

notice and comment and a hearing on the draft regulations. Because

Michigan's submittal specified a timetable to get the final regulations

adopted, the Michigan submittal has met the requirement to provide a

specified and enforceable schedule.

A commentor also suggested that a determination that actual

emissions from mobile sources actually exceed those predicted in the

emission inventories should also be included as a triggering event.

This is neither a requirement of the Act nor of USEPA policy, although

it has been suggested as a possible triggering event in guidance, and

States are encouraged to use it.

Comment

One commentor challenges the adequacy of Michigan's demonstration

that its I/M program did not contribute to Southeast Michigan's

attainment, and urged reconsideration of the proposed elimination of

the program after 1995.

USEPA Response

Michigan did not claim that the current I/M program did not

contribute to the Detroit-Ann Arbor's attainment, nor did it claim

credit for the emission reductions achieved as a result of the program

within the attainment demonstration. Furthermore, neither the State nor

the USEPA has proposed or suggested that the current I/M program be

eliminated after 1995. In fact, the State must continue to implement

its current I/M program as well as all other SIP control measures that

were contained in the SIP prior to the submittal of a complete

redesignation request. The September Shapiro3 memorandum reviews

and reinforces the USEPA's policy on SIP relaxations, particularly in

the context of redesignation. The memorandum notes that the USEPA's

general policy is that a State may not relax the adopted and

implemented SIP for an area upon the area's redesignation to attainment

unless an appropriate demonstration, based on computer modeling, is

approved by the USEPA. Existing control strategies must continue to be

implemented in order to maintain the standard. Although section 175A

recognizes that SIP measures may be moved to the contingency plan upon

redesignation, such a SIP revision may be approved only if the State

can adequately demonstrate that such action will not interfere with

maintenance of the standard. A demonstration for an area redesignated

to attainment for ozone would entail submittal of an attainment

modeling demonstration with the USEPA's current Guideline on Air

Quality Models, showing that the control measure is not needed to

maintain the ozone NAAQS. Also, see memorandum from Gerald A. Emison,

April 6, 1987, entitled Ozone Redesignation Policy.

\3\September 17, 1993 memorandum from Michael H. Shapiro,

entitled SIP Requirements for Areas Submitting Requests for

Redesignation to Attainment of the Ozone and Carbon Monoxide NAAQS

on or after November 15, 1992.

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Comment

One commentor states that the USEPA's policy of approving a basic

I/M SIP revision that does not include adopted regulations is unlawful.

USEPA Response

The USEPA's specific response to these comments is published in the

USEPA's final rulemaking on the revisions to the national I/M rule. See

January 5, 1995, 60 FR 1735. In that rulemaking, the commentor also

submitted similar remarks and the USEPA's responses to those comments

appear in the docket for that rulemaking. It is appropriate for the

USEPA to rely on the final I/M rule revisions in taking today's final

action, and this rulemaking is not the appropriate forum in which to

challenge the validity of the I/M rule revisions.

II. Final Rulemaking Action

The USEPA approves the basic I/M program submitted to the USEPA for

the Detroit-Ann Arbor area as meeting the revised national I/M rule

(January 5, 1995, 60 FR 1735) for areas redesignated from nonattainment

to attainment, consequently satisfying the requirements of section

182(a)(2)(B)(i) of the Act.

C. Redesignation

I. Public Comments and USEPA Responses

The following discussion summarizes and responds to the comments

received regarding the redesignation of the Detroit-Ann Arbor area to

attainment for ozone.

Comment

One commentor notes that if an expeditious review and approval of

MDNR's request had occurred prior to the 1994 ozone season, then any

ozone violation thereafter would have prompted the implementation of a

contingency measure from the maintenance plan to correct the air

quality problem. [[Page 12463]]

USEPA Response

The Act authorizes the USEPA up to 18 months from submittal to act

on a State's request to redesignate. See section 107(d)(3)(D). The

process for redesignating areas to attainment is a complex one which is

designed not only to identify areas which currently have clean air, but

also to assure that clean air will be maintained in the future. There

are many statutory requirements which must be satisfied before the

redesignation request can be processed, including review and approval

of all revisions to the SIP for programs whose deadlines came due prior

to submittal of the redesignation request to the USEPA. See September

Calcagni4 memorandum and September Shapiro. Before the USEPA could

finally redesignate the area to attainment, all remaining items had to

be finally approved, including: (1) the State regulations for

Reasonable Available Control Technology (RACT) for VOC,5 (2) the

section 182(f) oxides of nitrogen (NOX) RACT exemption petition,

and 3) revisions to the national motor vehicle I/M rule. The USEPA

could not redesignate the Detroit-Ann Arbor area until these actions

were finalized. Because all these actions were finalized, the Federal

action on the redesignation can be completed. Furthermore, if a

violation had occurred during the pendency of the USEPA's review of the

ozone redesignation request, the USEPA could not approve the request

since the area would not have remained in attainment. As a consequence,

further control measures would have been required under the Act.

\4\September 4, 1992 memorandum from John Calcagni, entitled

Procedures for Processing Requests to Redesignate Areas to

Attainment.

\5\The VOC RACT rules were approved in a final rulemaking

published on September 7, 1994 in the Federal Register (59 FR 46213

and 46182).

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In any case, the commentor's concern is moot, since no violations

of the ozone NAAQS occurred during the 1994 ozone season.

Comment

One commentor suggests that redesignation requests should be Table

I decisions to ensure national consistency.

USEPA Response

An October 4, 1993 memorandum from Michael H. Shapiro, Acting

Assistant Administrator for Air and Radiation, revised the SIP tables

initially published in the Federal Register on January 19, 1989 (54 FR

2214). The USEPA revised these tables in conjunction with the Office of

Management and Budget (OMB). The revisions classified all

redesignation, except those for total suspended particulate, as Table 2

actions. These actions require the Regional Administrator's decisions

and concurrence, but provide a 40-day opportunity for Headquarters

review before concurrence by the Regional Administrator. The 40-day

Headquarters review is intended to function as a check for national

consistency and the USEPA believes that this system provides adequate

assurances of consistency.

Comment

One commentor notes that the USEPA's proposed redesignation relies

on data from 1993 which was not included in Michigan's November 12,

1993 request, and was not subject to public comment. Further, there is

an inconsistency between the years offered by Michigan as a basis for

redesignation 1990-92 and the years selected by the USEPA as the basis

for considering and actually proposing the redesignation (1991-1993).

Therefore, Michigan's redesignation request was not ``complete'' on

November 12, 1993.

USEPA Response

As stated in the proposed rulemaking, Michigan submitted ambient

data for 1990-1992 in its November 12, 1993 submission, but did not

submit 1993 ozone data because it was not completely quality-assured at

the time the request was being developed. Under the guidance of the

USEPA, the State submitted the 3 most recent consecutive years of

complete air monitoring data (1990-1992), with the understanding that

shortly thereafter, the 1993 ozone season data would be available in

AIRS for the USEPA to review. The 1993 ozone data was considered by the

USEPA and was subject to public comment as a result of the July 21,

1994 proposed rulemaking. Regardless of which years of data are used,

1990-1992 or 1991-1993, Michigan has demonstrated attainment of the

ozone NAAQS in the Detroit-Ann Arbor area by providing monitoring data

with no violations. Completeness of a SIP submittal is based on the

criteria established in 40 CFR part 51, appendix V. Using these, the

USEPA found the November 12, 1993 submittal complete in a letter to

Michigan dated January 7, 1994. The use of 1993 ozone season data that

was not completely quality-assured at the time of the November 12, 1993

submission does not alter the conclusion that the submission, which the

USEPA found complete was based on 3 consecutive years of air monitoring

data.

Comment

One commentator alleges that USEPA's notice of proposed approval of

the redesignation is a product of undue haste since the action was

incomplete and failed to give adequate notice of plans for verification

of continued attainment. The action skips portions of paragraph (b)

Demonstration of Maintenance and paragraph (C) Verification of

Continued Attainment on pages 37198-37199. In addition, three

paragraphs on page 37198 duplicate text on page 37197.

USEPA Response

The omission of paragraph (B) and (C) and duplicated text is

acknowledged. Unfortunately, the Office of Federal Register,

inadvertently excluded a number of lines from these two sections of the

action. For this reason, the comment period on the July 21, 1994,

redesignation was reopened on September 8, 1994, (59 FR 46479 and

46380) for 15 days in order to provide the public an opportunity to

appropriately comment on it.

Comment

One commentor requested additional time for reviewing and providing

comments on the proposed redesignation due to insufficient time to

comment on such a complex proposal.

USEPA Response

As discussed above, the comment period was extended for the

redesignation and section 175A maintenance plan in order to give the

public sufficient time to review and to submit comments. The correction

document and extension of public comment period action were published

on September 8, 1994. The USEPA does not believe that any additional

extension of time is necessary as an adequate comment period has

already been provided.

Comment

One commentor requested a formal USEPA public hearing on the

redesignation.

USEPA Response

Under the Act, States can submit proposed implementation plans (and

revisions) to the USEPA for approval only after they have afforded

interested parties ``reasonable notice and public hearing * * *.'' See

Section 110(a)(1) and (a)(2). The State held a public hearing on the

proposed redesignation to attainment for ozone and revision to

[[Page 12464]] the Michigan SIP, i.e., maintenance plan, on October 22,

1993. There are no provisions, however, requiring the USEPA to hold its

own hearings. The USEPA is required to provide the opportunity for

public comment. The USEPA announced opportunities on July 21, 1994 and

September 8, 1994 for the public to submit comments. The USEPA believes

those opportunities represent a more than ample opportunity for public

input and comment on this redesignation.

Comment

One commentor states that the air quality in the area has been poor

and has gotten worse in the past 10 years. Offensive odors are apparent

when it is slightly overcast or during the night when a local

incinerator is burning.

USEPA Response

This redesignation pertains to solely to ozone, and would not

affect offensive odors from an incinerator, regardless of whether these

odors are evident during slightly overcast skies or at night.

Redesignating the area to attainment for ozone would neither solve nor

contribute to the problem. The incinerator must continue to operate

existing control equipment in compliance with its own applicable

permits, rules and regulations. Ambient monitoring data from 1990

through 1994 demonstrates that the area is attaining the ozone NAAQS.

This evidences that the air quality has improved at least since the

period 1987-1989, the years of air quality data which were used to

designate the area nonattainment for ozone.

Comment

A number of commentors urge the USEPA to reconsider the NAAQS for

ground level ozone. One commentor notes that Canada's ozone standard'

is 82 parts per billion (ppb) while the United States' (U.S.) is 125

ppb.6 This disparity in limits continues to be debated in the U.S.

courts with the American Lung Association and others, who contend that

the U.S. must lower its limit to 82 ppb, or lower, for health based

reasons. Another commentor states that the current ozone NAAQS is not

protective of the public health, and should be made more stringent to

comply with the Congressional mandate to protect public health with an

``adequate margin of safety.''

\6\This is equivalent to 0.125 parts per million (ppm). This is

the reference used by the commentor, presumably, to illustrate the

difference between the Canadian objective and U.S. standard.

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USEPA Response

The USEPA is currently in the process of reevaluating the ozone

NAAQS and expects to make a final decision in mid-1997. Until any

change is made, however, the USEPA is bound to implement the provisions

of the Act as they relate to the current standard, including those

relating to designations and redesignation.

Comment

One commentor notes that MDNR has taken the position that the

measured concentration must exceed 125 ppb before a legally actionable

exceedance that contributes to a 3 year running average on the number

of days with exceedances is triggered. As a result, MDNR has not

included as excursions days with maximum numbers that actually do

exceed the published standard of 0.12 ppm.

USEPA Response

Published guidance (Guideline for the Interpretation of Ozone Air

Quality Standards, January 1979, EPA-450/4-79-003), which is part of

the ozone standard by reference in 40 CFR part 50, appendix H, notes

that the stated level of the standard is determined by defining the

number of significant figures to be used in comparison with the

standard. For example, a standard level of 0.12 ppm means that

measurements are to be rounded to two decimal places (0.005 rounds up),

and therefore, 0.125 ppm is the smallest three-decimal concentration

value in excess of the level of the standard. Therefore, MDNR is

following USEPA national guidance.

Comment

The commentor objects to the USEPA's proposed disapproval of the

redesignation request if a monitored violation of the ozone NAAQS

occurs prior to final USEPA action on the redesignation. The commentor

notes further that since the area has reached attainment of the NAAQS

and has requested redesignation, a requirement to implement contingency

measures to correct the problem would be sound policy in the event of a

violation during 1994.

USEPA Response

Section 107(d)(3)(E) of the Act establishes five criteria which

must be satisfied in order for the USEPA to redesignate an area from

nonattainment to attainment. One of these criteria is that the

Administrator determine that the area has attained the NAAQS. See

section 107(d)(3)(E)(i). This requirement clearly prohibits the

Administrator from redesignating areas that have not attained the

NAAQS. If a violation had occurred prior to the USEPA's final action,

the Detroit-Ann Arbor area would no longer have been in attainment and

the USEPA could not redesignate the area to attainment. Furthermore,

only a final rulemaking action can change an area's designation under

40 CFR part 81. Despite the July 21, 1994 proposal, the area must

continue to meet this criterion until final rulemaking is published. As

a result, the USEPA must consider air quality data that is collected

until the date of final rulemaking and revision of the area's

nonattainment status under 40 CFR part 81.

In addition, the USEPA's September Calcagni memorandum, page 5,

states that Regions should advise States of the practical planning

consequences if the USEPA disapproves the redesignation request or if

the request is invalidated because of violations recorded during

USEPA's review. This policy has been followed in disapproving the

Richmond, Virginia redesignation, which was disapproved due to

violations of the ozone NAAQS occurring prior to final action on a

proposed approval of the redesignation (May 3, 1994, 59 FR 22757).

With respect to a requirement to implement contingency measures in

the event of a violation prior to final approval of a redesignation,

the USEPA notes that the Detroit-Ann Arbor area, like any other

nonattainment area, is subject to the contingency measure requirements

of section 172(c)(9) until the area is redesignated to attainment.

In any case, the commentor's concern is moot, since no violations

of the ozone NAAQS occurred during the 1994 ozone season.

Comment

Several commentors request that the Detroit-Ann Arbor area be

denied redesignation to attainment until it is clearly shown, using

1994 data, that the area is in attainment. Other commentors noted that

although the Detroit-Ann Arbor area experienced only one ozone

exceedance from 1991 to 1993 or 1990 to 1992, it experienced at least

three ozone exceedances in 1994 alone. Commentors provided specific

monitored ozone values recorded at Detroit-Ann Arbor area monitors

during the 1994 ozone season. The following ozone concentrations from

Detroit-Ann Arbor area monitors were provided: 133 ppb at the Algonac

monitor, 142 ppb at the New Haven monitor, 145 ppb at the Warren

monitor, 178 ppb at the Port Huron monitor, and 127 ppb at the Oak Park

monitor. [[Page 12465]]

USEPA Response

As discussed above, the USEPA could not approve the redesignation

if a violation occurred during the USEPA's review of the request.

Consequently, while the July 21, 1994 action proposed to approve the

redesignation, it also proposed, in the alternative, to disapprove the

redesignation if violations of the ozone NAAQS occur before the USEPA

took final action on the redesignation.

Title 40 CFR part 50.9 establishes the ozone NAAQS, measured

according to appendix D, as 0.12 ppm (235 micrograms per cubic meter

(ug/m3)). The standard is attained when the expected number of days per

calendar year with maximum hourly average concentrations above 0.12 ppm

(235 ug/m3) is equal to or less than 1 as determined by 40 CFR part 50

appendix H. Further discussion of these procedures and associated

examples are contained in the document Guideline for Interpretation of

Ozone Air Quality Standards, January 1979, EPA-450/4-79-003. Simply,

the number of exceedances at a monitoring site would be recorded for

each calendar year and then averaged over the past 3 calendar years to

determine if this average is less than or equal to 1. The net result is

that each monitor in an area is allowed to record 3.0 expected

exceedances in a 3 year period. More than 3.0 expected exceedances in a

3-year period would constitute a violation of the ozone NAAQS. As

explained in the July 21, 1994 proposed rulemaking (59 FR 37190), the

Detroit-Ann Arbor area has attained the ozone NAAQS during the 1990-

1992 and 1991-1993 periods. The 1994 ozone season has concluded and

while there have been some recorded ozone exceedances in the Detroit-

Ann Arbor area, they do not (in consideration with 1992 and 1993 data)

constitute a violation of the ozone standard. Consequently, the

Detroit-Ann Arbor area continues to attain the ozone standard at this

time. The USEPA has considered all air quality data collected prior to

final rulemaking on the redesignation request.

Comment

One commentor questions whether actual attainment and maintenance

of the standard was achieved and suggests that paper demonstrations of

attainment and maintenance should not be given more weight in

decisionmaking when compared to actual adverse air quality monitoring

data showing unhealthy concentrations of ozone, or data that is

marginally so.

USEPA Response

The USEPA notes that it has not given ``paper'' (or more properly,

analytical) demonstrations of attainment more weight than ambient

monitoring data. As discussed above, the ambient air quality monitoring

data for the Detroit-Ann Arbor area demonstrates attainment of the

ozone NAAQS over the time periods of 1990-1992, 1991-1993, and 1992-

1994. Furthermore, continued maintenance of the ozone NAAQS will be

determined by continued ambient monitoring.

Comment

One commentor asserted that the USEPA cannot redesignate the

Detroit-Ann Arbor area because the USEPA must determine the relevant

applicable requirements at the time of approval of an area's

redesignation request and the State must satisfy them. According to the

commentor, section 175A(c) of the Act requires that all requirements of

subpart D remain in force until an area is redesignated. The commentor

argued that the USEPA's interpretation of section 107(d)(3)(E),

pursuant to which the USEPA determines whether an area seeking

redesignation has met the Act requirements applicable prior to or at

the time of the submission of a redesignation request, is inconsistent

with section 175A(c). Specifically, the commentor argued that the Act

prohibits the redesignation of the Detroit-Ann Arbor area because the

area has not submitted by November 15, 1993, an approvable SIP revision

providing for 15 percent VOC reductions, nor satisfied the basic I/M

and New Source Review (NSR) requirements that came due prior to the

submission of the redesignation request. Moreover, the commentor

claimed that the USEPA's interpretation encourages States to delay

implementation of the Act since delay in implementing requirements that

come due after the submission of a redesignation request would not

affect the approvability of the request.

USEPA Response

The USEPA has interpreted section 107(d)(3)(E) to mean that the

section 110 and part D provisions that are required to be fully

approved in order for a redesignation to be approved are those which

came due prior to or at the time of the submittal of a complete

redesignation request. At the same time, however, the USEPA has

maintained that States continue to be statutorily obligated to meet any

SIP requirements that come due after the submission of the

redesignation request before the USEPA takes final action to

redesignate an area. As a consequence, the USEPA has also followed a

policy of issuing findings of failure to submit if a State that has

submitted a redesignation request fails to comply with a SIP submittal

requirement that comes due after the submission of a redesignation

request. See September and October Calcagni7 memorandums,

September Shapiro memorandum, and the memorandum dated January 7, 1994,

from John S. Seitz to Regional Air Division Directors, entitled

``Procedures for SIP Elements Due November 15, 1993.'' The USEPA

believes that its approach is both reasonable and harmonizes the

pertinent provisions of the Act in a workable manner that is consistent

with the language and intent of the Act. Moreover, the USEPA believes

that the interpretation advocated by the commentor would be unworkable

and make it virtually impossible for areas to be redesignated to

attainment.

\7\October 28, 1992 memorandum from John Calcagni entitled SIP

Actions Submitted in Response to Clean Air Act Deadlines.

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

The pertinent provisions of the Act are as follows. Section

107(d)(3)(E)(v) of the Act provides that a State must have met ``all

requirements applicable to the area under section 110 and part D'' in

order to be redesignated. Furthermore, section 107(d)(3)(E)(ii)

provides that the USEPA must have fully approved the SIP for the area

seeking redesignation. Finally, section 175A(c) provides that the

requirements of part D remain in force and effect for an area until

such time as it is redesignated.

The USEPA believes that it is both logical and reasonable to

interpret section 107(d)(3)(E)(ii) and (v) so that, for purposes of the

evaluation of a redesignation request, the only requirements that are

``applicable'' and for which the SIP must be fully approved before the

USEPA may approve the redesignation request are those that came due

prior to or at the time of the submission of a complete redesignation

request.

The first reason that it is reasonable to determine the

approvability of a redesignation request on the basis of compliance

with only Act requirements applicable prior to or at the time of the

submission of the request is that holding the State to a continuing

obligation to comply with subsequent requirements coming due after the

submission of the request for purposes of the redesignation would make

it impossible in many instances for the USEPA to act on redesignation

requests in accordance with the 18-month deadline mandated

[[Page 12466]] by Congress for such actions in section 107(d)(3)(C).

This is because each Act requirement coming due during the pendency of

the USEPA's review of a redesignation request carries with it a

necessary implication that the USEPA must also fully approve the SIP

submission made to satisfy that requirements in order for the area to

be redesignated. Otherwise, the area would fail to satisfy the

redesignation requirement of section 107(d)(3)(E)(ii) to have a fully-

approved SIP. As Congress limited the USEPA to an 18-month period to

take final action on complete redesignation requests, Congress could

not have intended that, for those requests to be approved, States make

additional SIP submissions that would require the USEPA to undertake

action that would necessarily delay action on the redesignation request

beyond the 18-month time frame. (The delay would occur due to the time

needed for the USEPA to take action regarding the determinations as to

whether to find those SIP submissions complete and to approve or

disapprove them. Congress accorded the USEPA up to 18 months from the

submission of a SIP revision to take such action. See section 110(k).)

Another reason that the USEPA's interpretation is reasonable is

that the fundamental premise for a request to redesignate a

nonattainment area to attainment is that the area has attained the

relevant NAAQS. Thus, an area for which a redesignation request has

been submitted should have already attained the NAAQS as a result of

the satisfaction of Act requirements that came due prior to the

submission of the request, and it is reasonable to view the only

requirements applicable for purposes of evaluating the redesignation

request as those that had already come due since those requirements

were the ones that presumably led to attainment of the NAAQS--which is

the primary purpose of title I of the Act. To require that a State

continue to satisfy requirements coming due during the pendency of the

USEPA's review of a complete redesignation request in order to have the

redesignation approved would require the State to do more than was

needed to attain the NAAQS.

The USEPA's interpretation by no means eliminates the obligation of

States to comply with requirements coming due after the submission of a

redesignation request. Rather, it simply means that areas may be

redesignated even though the State may not have complied with those

requirements. As the USEPA's policy makes clear, in accordance with the

requirements of section 175A(c), the statutory obligation of the States

to fulfill those requirements remains in effect until the USEPA takes

final action to redesignate an area to attainment. Thus, the USEPA's

policy is to issue findings of failure to submit if a State fails to

submit a SIP revision to fulfill such a requirement, thereby triggering

a clock that will result in the imposition of mandatory sanctions,

under section 179 of the Act, 18 months after the issuance of the

finding unless the USEPA approves the redesignation request prior to

the expiration of the sanctions clock.

Thus, if a State chooses not to submit a complete and approvable

SIP revision to comply with a requirement that comes due after the

submission of a redesignation request, it runs the risk it will be

sanctioned in the event that the USEPA does not approve the

redesignation request. For example, in the case of the Detroit-Ann

Arbor area, on January 21, 1994, the USEPA started the 18-month

sanctions clock for the 15 percent reduction plan required by section

182(b)(1) to be submitted by November 15, 1993 after the State had

submitted its complete redesignation request for the Detroit-Ann Arbor

area, by finding the area's 15 percent plan incomplete. If the USEPA

were not now approving the redesignation request, the sanctions clock

would continue to run and the State would continue to be subject to the

risk that sanctions would be imposed. Notably, a State seeking

redesignation for an area is in the same position as to the initiation

of sanctions clocks for the failure to make a submittal as any other

State. Thus, if Michigan had not submitted a redesignation request for

the Detroit-Ann Arbor area and nevertheless had failed to submit a

complete 15 percent plan by November 15, 1993, it would also have been

subject to a finding of failure to submit and the consequent

commencement of a sanctions clock.

For this reason, the USEPA disagrees with the comment's contention

that the USEPA's interpretation regarding the requirements applicable

for purposes of evaluating redesignation requests encourages States to

delay implementation of the Act. States seeking redesignation for areas

are subject to sanctions for failure to submit SIP revisions in

accordance with the Act's requirements in the same way that States not

seeking redesignation are. To the extent that the USEPA's

interpretation results in States not adopting measures they might

otherwise have had to, such a result is a consequence of the only

workable interpretation of the provisions of section 107 concerning

applicable requirements and that result does not justify rejecting that

interpretation. This is particularly so since the only areas that

benefit from this interpretation are those that have attained the

ambient air quality standards and have demonstrated that they will

continue to maintain them in the future.

Thus, the USEPA believes it may approve the Detroit-Ann Arbor

redesignation request notwithstanding the lack of a fully approved 15

percent plan. Such action is consistent with the USEPA's national

policy and is permissible under the Act. (The commentor's contentions

regarding the basic I/M plans and NSR review program are dealt with as

part of the responses to other comments on those programs elsewhere in

this document.)

Comment

One commentor stated that the requirement of both general and

transportation conformity is an important element of Michigan's

attainment SIP and that the USEPA's notice has not addressed conformity

in the context of the redesignation. Adverse consequences will stem

from failure to continue to require conformity analyses and measures.

Another commentor states that redesignation does not excuse the State

from submitting a conformity SIP revision for the Detroit-Ann Arbor

area or from including a motor vehicle emission budget for NOX in

the area's maintenance plan. The commentor further states that the

NOX waiver available under section 182(f), has no connection with

the conformity requirements for transportation plans and programs

contained in section 176(c)(2)(A) and 176(c)(1)(B).

USEPA Response

The July 21, 1994 proposal (59 FR 37190) did state that the

November 24, 1993 (59 FR 62188) transportation and November 30, 1993

(59 FR 63214) general conformity rules require States to adopt

transportation and general conformity provisions in the SIP for areas

designated nonattainment or subject to a maintenance plan approved

under section 175A of the Act. The proposal further explained that,

although conformity is applicable in these areas, since the deadline

for submittal had not come due for these rules at the time Michigan

submitted a redesignation request, the approval of the redesignation is

not contingent on these submittals to comply with section

107(d)(3)(E)(v). The Detroit-Ann Arbor area must comply with the

section 176 conformity regulations as required by the conformity rules

and the Conformity General Preamble (June 17, 1994, 59 FR

[[Page 12467]] 31238)8. According to these rules, conformity

applies to nonattainment areas as well as maintenance areas. Once

redesignated, the Detroit-Ann Arbor area will be a maintenance area

which will be required to conduct emission analyses to determine that

the VOC and NOX emissions remain below the motor vehicle emission

budget established in the maintenance plan. Transportation and general

conformity apply to maintenance areas and therefore, the Detroit-Ann

Arbor area must comply with these rules. The Conformity General

Preamble to the conformity regulations further clarifies this issue,

particularly as it pertains to areas requesting and obtaining a section

182(f) NOX exemption. According to the conformity rules and

preamble, the Detroit-Ann Arbor area's conformity test will be to

remain within the VOC and NOX budgets established in the section

175A maintenance plan. Michigan has established a motor vehicle

emission budget for NOX in the area's maintenance plan.

\8\On November 18, 1994 and November 29, 1994, Michigan

submitted SIP revisions to comply with the Transportation and

General conformity rules.

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

The commentor's suggestion that the section 182(f) exemption has no

connection to the conformity requirements for transportation plans and

programs contained in section 176(c)(2)(A) and 176(c)(1)(B) was made in

response to the August 10, 1994 proposal to approve the section 182(f)

NOX exemption for the Detroit-Ann Arbor area. The USEPA's response

is, therefore, articulated in the final rulemaking approving the

section 182(f) NOX exemption petition for the Detroit-Ann Arbor

area published elsewhere in this Federal Register.

Comment

One commentor states that areas are requesting exemptions from the

NOX control measures based on incomplete modeling studies (i.e.

Lake Michigan and Southeast Michigan Ozone Studies) which do not

accurately predict the relative contribution of mobile source emissions

because the mobile source emissions inventory understates its

contribution to ozone production. Furthermore, given the uncertainty of

mobile source NOX contributions to ozone and the inaccuracy of

mobile source inventories, it is inappropriate to remove from the SIP

any NOX or VOC conformity analysis.

USEPA Response

Exemption from the section 182(f) NOX requirements is provided

for in sections 182(f)(1)(a) and 182(f)(3) of the Act. Michigan

submitted such an exemption request on November 12, 1993 for the

Detroit-Ann Arbor area based on 3 consecutive years of clean air

quality monitoring data, not on a modeling study or analysis. In

addition, approval of an exemption based on monitoring data will be

contingent on the area's maintenance of the ozone NAAQS. As noted

previously, a section 182(f) NOX exemption will not exempt areas

from compliance with the conformity regulations. The USEPA refers the

commentor to the final rulemaking approving the section 182(f) NOX

exemption petition for the Detroit-Ann Arbor area published elsewhere

in this Federal Register.

Comment

One commentor notes that there is no reasonable or adequate basis

for eliminating Michigan's existing NSR program from the current SIP.

Another commentor states that the USEPA cannot redesignate the Detroit-

Ann Arbor area because Michigan has not met the NSR requirements under

section 182(b)(5).

USEPA Response

The USEPA believes that the Detroit-Ann Arbor area may be

redesignated to attainment notwithstanding the lack of a fully-approved

NSR program meeting the requirements of the 1990 Act amendments and the

absence of such an NSR program from the contingency plan. This view,

while a departure from past policy, has been set forth by the USEPA as

its new policy in a memorandum from Mary Nichols, Assistant

Administrator for Air and Radiation, dated October 14, 1994, entitled

Part D New Source Review (part D NSR) Requirements for Areas Requesting

Redesignation to Attainment.

The USEPA believes that its decision not to insist on a fully-

approved NSR program as a pre-requisite to redesignation is justifiable

as an exercise of the Agency's general authority to establish de

minimis exceptions to statutory requirements. See Alabama Power Co. v.

Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979). Under Alabama Power Co.

v. Costle, the USEPA has the authority to establish de minimis

exceptions to statutory requirements where the application of the

statutory requirements would be of trivial or no value environmentally.

In this context, the issue presented is whether the USEPA has the

authority to establish an exception to the requirements of section

107(d)(3)(E) that the USEPA have fully-approved a SIP meeting all of

the requirements applicable to the area under section 110 and part D of

title I of the Act. Plainly, the NSR provisions of section 110 and part

D are requirements that were applicable to the Michigan area seeking

redesignation at the time of the submission of the request for

redesignation. Thus, on its face, section 107(d)(3)(E) would seem to

require that the State have submitted and the USEPA have fully-approved

a part D NSR program meeting the requirements of the Act before the

areas could be redesignated to attainment.

Under the USEPA's de minimis authority, however, it may establish

an exception to an otherwise plain statutory requirement if its

fulfillment would be of little or no environmental value. In this

context, it is necessary to determine what would be achieved by

insisting that there be a fully-approved part D NSR program in place

prior to the redesignation of the Detroit-Ann Arbor area. For the

following reasons, the USEPA believes that requiring the adoption and

full-approval of a part D NSR program prior to redesignation would not

be of significant environmental value in this case.

Michigan has demonstrated that maintenance of the ozone NAAQS will

occur even if the emission reductions expected to result from the part

D NSR program do not occur. The emission projections made by Michigan

to demonstrate maintenance of the NAAQS considered growth in point

source emissions (along with growth for other source categories) and

were premised on the assumption that the Prevention of Significant

Deterioration (PSD) program, rather than the part D NSR, would be in

effect, during the maintenance period. Under NSR, significant point

source emissions growth would not occur. Michigan assumed that NSR

would not apply after redesignation to attainment, and therefore,

assumed source growth factors based on projected growth in the economy

and in the area's population. (It should be noted that the growth

factors assumed may be overestimates under PSD, which would restrain

source growth through the application of best available control

techniques.) Thus, contrary to the assertion of the commentor, Michigan

has demonstrated that there is no need to retain the part D NSR as an

operative program in the SIP during the maintenance period in order to

provide for continued maintenance of the NAAQS. (If this demonstration

had not been made, NSR would have had to have been retained in the SIP

as an operative program since it would have been needed to maintain the

ozone standard.) [[Page 12468]]

The other purpose that requiring the full-approval of a part D NSR

program might serve would be to ensure that NSR would become a

contingency provision in the maintenance plan required for these areas

by sections 107(d)(3)(E)(iv) and 175A(d). These provisions require

that, for an area to be redesignated to attainment, it must receive

full approval of a maintenance plan containing ``such contingency

provisions as the Administrator deems necessary to assure that the

State will promptly correct any violation of the standard which occurs

after the redesignation of the area as an attainment area. Such

provisions shall include a requirement that the State will implement

all measures with respect to the control of the air pollutant concerned

which were contained in the SIP for the area before redesignation of

the area as an attainment area.'' Based on this language, it is

apparent that whether an approved NSR program must be included as a

contingency provision depends on whether it is a ``measure'' for the

control of the pertinent air pollutants.

As the USEPA noted in the proposal regarding this redesignation

request, the term ``measure'' is not defined in section 175A(d) and

Congress utilized that term differently in different provisions of the

Act with respect to the PSD and NSR permitting programs. For example,

in section 110(a)(2)(A), Congress required that SIPs to include

``enforceable emission limitations and other control measures, means,

or techniques* * *as may be necessary or appropriate to meet the

applicable requirements of the Act.'' In section 110(a)(2)(C), Congress

required that SIPs include ``a program to provide for the enforcement

of the measures described in subparagraph (A), and regulation of the

modification and construction of any stationary source within the areas

covered by the plan as necessary to assure that NAAQS are achieved,

including a permit program as required in parts C and D.'' (Emphasis

added.) If the term measures as used in section 110(a)(2) (A) and (C)

had been intended to include PSD and NSR there would have been no point

to requiring that SIPs include both measures and preconstruction review

under parts C and D (PSD or NSR). Unless ``measures'' referred to

something other than preconstruction review under parts C and D, the

reference to preconstruction review programs in section 110(a)(2)(C)

would be rendered mere surplusage. Thus, in section 110(a)(2) (A) and

(C), it is apparent that Congress distinguished ``measures'' from

preconstruction review. On the other hand, in other provisions of the

Act, such as section 161, Congress appeared to include PSD within the

scope of the term ``measures.''

The USEPA believes that the fact that Congress used the undefined

term ``measure'' differently in different sections of the Act is

germane. This indicates that the term is susceptible to more than one

interpretation and that the USEPA has the discretion to interpret it in

a reasonable manner in the context of section 175A. Inasmuch as

Congress itself has used the term in a manner that excluded PSD and NSR

from its scope, the USEPA believes it is reasonable to interpret

``measure,'' as used in section 175A(d), not to include NSR. That this

is a reasonable interpretation is further supported by the fact that

PSD, a program that is the corollary of part D NSR for attainment

areas, goes into effect in lieu of part D NSR.9 This distinguishes

NSR from other required programs under the Act, such as inspection and

maintenance and RACT programs, which have no corollary for attainment

areas. Moreover, the USEPA believes that those other required programs

are clearly within the scope of the term ``measure.''10

\9\The U.S. EPA is not suggesting that NSR and PSD are

equivalent, but merely that they are the same type of program. The

PSD program is a requirement in attainment areas and designed to

allow new source permitting, yet contains adequate provisions to

protect the NAAQS. If any information including preconstruction

monitoring, indicates that an area is not continuing to meet the

NAAQS after redesignation to attainment, 40 CFR 51 appendix S

(Interpretive Offset Rule) or a 40 CFR 51.165(b) program would

apply. The USEPA believes that in any area that is designated or

redesignated as attainment under section 107, but experiences

violations of the NAAQS, these provisions should be interpreted as

requiring major new or modified sources to obtain VOC emission

offsets of at least a 1:1 ratio, and as presuming that 1:1 NOX

offsets are necessary. See October 14, 1994 memorandum from Mary

Nichols entitled Part D New Source Review (part D NSR) Requirements

for Areas Requesting Redesignation to Attainment.

\10\The U.S. EPA also notes that in the case of the Michigan

area, all permits to install for major offset sources and major

offset modifications issued by the State in the moderate

nonattainment areas since November 15, 1992 have complied with the

1.15 to 1.0 offset ratio. In addition, permits to install cannot be

issued under the PSD program unless the applicant can demonstrate

that the increased emissions from the new or modified source will

not result in a violation of the NAAQS. Michigan's Rule 702, which

is part of the SIP, requires the installation of Best Available

Control Technology regardless of size or location of all new and

modified sources in the State. In addition, Michigan's Rule 207,

also approved in the SIP, requires denial of any permit to install

if operation of the equipment will interfere with attainment or

maintenance of the NAAQS.

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

The USEPA's logic in treating part D NSR in this manner does not

mean that other applicable part D requirements, including those that

have been previously met and previously relied upon in demonstrating

attainment, could be eliminated without an analysis demonstrating that

maintenance would be protected. As noted above, Michigan has

demonstrated that maintenance would be protected with PSD in effect,

rather than part D NSR. Thus, the USEPA is not permitting part D NSR to

be removed without a demonstration that maintenance of the standard

will be achieved. Moreover, the USEPA has not amended its policy with

respect to the conversion of other SIP elements to contingency

provisions, which is that they may be converted to contingency

provisions only upon a showing that maintenance will be achieved

without them being in effect. Finally, as noted above, the USEPA

believes that the NSR requirement differs from other requirements, and

does not believe that the rationale for the NSR exception extends to

other required programs.

As the USEPA has recently changed its policy, the position taken in

this action is consistent with the USEPA's current national policy.

That policy permits redesignation to proceed without otherwise required

NSR programs having been fully approved and converted to contingency

provisions provided that the area demonstrates, as has been done in

this case, that maintenance will be achieved with the application of

PSD rather than part D NSR.

Comment

One commentor suggests that the USEPA's rulemaking is an effort to

permit Michigan to avoid including the 15 percent Rate-of-Progress

(ROP) measures, required of moderate nonattainment areas in the SIP. It

is essential to have elements of the 15 percent ROP plan available as

contingency measure in the attainment plan. It is not clear that the

current rulemaking procedure will allow that to happen.

USEPA Response

As explained above, under the USEPA's interpretation of section

107, an area need not meet all section 110 and part D requirements that

become applicable after the submittal of a complete redesignation

request in order to have the request approved. Therefore, the 15

percent ROP plan, which was not due to be submitted until November 15,

1993, after the submission of the redesignation request, is not

required to be fully approved into the SIP before redesignating the

area to attainment. Similarly the section 175A contingency plan need

not include all measures that [[Page 12469]] would have been included

in the 15 percent plan since those measures were not required to be

included in the SIP prior to redesignation. Furthermore, some elements

of the incomplete 15 percent ROP plan that Michigan did submit for the

Detroit-Ann Arbor area are included in the maintenance plan and are

available as contingency measures in the maintenance plan. These

elements include basic I/M, Stage I expansion,11 and Stage II

vapor recovery. The USEPA believes that the menu of contingency

measures is adequate and that additional contingency measures are not

necessary.

\11\The expanded applicability of Stage I to county boundaries

of each nonattainment area classified as moderate and above.

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

As for the commentor's effort to ascribe subjective motivations to

the USEPA in acting on this redesignation, the USEPA believes such

contentions are simply irrelevant.

Comment

One commentor states that there can be no redesignation until

Michigan submits a complete and approvable 15 percent ROP plan. The

commentor alleges that since Michigan's application was not complete on

November 12, 1993, all moderate area provisions including the 15

percent plan must be in place to accomplish the redesignation. The

commentor notes that Stage II vapor recovery and an upgraded I/M

program should be in Michigan's SIP to assure continued maintenance of

the NAAQS.

USEPA Response

After the USEPA's review, on January 21, 1994, the redesignation

request was found complete on the basis of the completeness criteria

codified in 40 CFR part 51, appendix V. As explained above, the

November 12, 1993 request was based on three complete years of clean

data, and the consideration of subsequent air quality data does not

alter the conclusion that that request was complete. Thus, the November

12, 1993 redesignation request is complete and, in accordance with the

USEPA's policy on applicable requirements (described above), the 15

percent plan need not be submitted or approved prior to approval of the

redesignation.

With respect to the commentor's assertions regarding the need for

Stage II vapor recovery and an upgraded I/M program to assure

maintenance, the USEPA notes that the State has provided an adequate

demonstration that maintenance will occur even in the absence of those

programs. The State's emissions projections underlying the maintenance

demonstration are discussed in the proposal at 59 FR 37197, and the

commentor has provided no evidence that those projections are

erroneous. Furthermore, the USEPA notes that Stage II vapor recovery

and an upgraded I/M program were not implemented in the area in the

period of attainment and therefore, did not contribute to attainment of

the ozone NAAQS. Stage II vapor recovery and basic I/M, however, are

control measures included as contingency measures within the

maintenance plan. Thus, Stage II and basic I/M may be implemented in

the event a violation of the ozone NAAQS occurs during the maintenance

period. The basic I/M program included in the contingency plan would

upgrade and expand the current I/M program being implemented in the

Detroit area. As the Detroit-Ann Arbor area has demonstrated attainment

and maintenance of the ozone NAAQS without implementation of Stage II

and an upgraded I/M program those measures may be made part of the

contingency plan without implementation until such time as a violation

of the ozone NAAQS warrants their implementation. The State, however,

must continue to implement all programs currently in place in the

Detroit-Ann Arbor area including the existing I/M program.

Comment

Several commentors suggested that meteorological conditions

observed in Michigan and Canada were not conducive to ozone formation.

These meteorological conditions, coupled with a general reduction of

emissions in the Detroit-Ann Arbor area resulting from an economic

downturn, resulted in the attainment claimed by the Detroit-Ann Arbor

area. The commentors believe that the attainment claimed by Michigan is

not based on real reductions of ozone precursor gases (NOX and

VOC).

USEPA Response

Section 107(d)(3)(E)(iii) requires that, for the USEPA to approve a

redesignation, it must determine that the improvement in air quality is

due to permanent and enforceable reductions in emissions. The September

Calcagni memorandum, at page 4, clarifies this requirement by stating

that ``[a]ttainment resulting from temporary reductions in emission

rates (e.g., reduced production or shutdown due to temporary adverse

economic conditions) or unusually favorable meteorology would not

qualify as an air quality improvement due to permanent and enforceable

emission reductions.'' As discussed in the July 21, 1994 Federal

Register notice, the State of Michigan has demonstrated that permanent

and enforceable emission reductions are responsible for the recent

improvement in air quality. This demonstration was accomplished through

an estimate of the reductions (from the year that was used to determine

the design value for designation and classification) of VOC and

NOX achieved through Federal measures such as the Federal Motor

Vehicle Control Program (FMVCP) and fuel volatility rules implemented

from 1988-1993, as suggested by the September Calcagni memorandum. The

total reductions achieved from 1988 to 1993 were 226 tons of VOC and 45

tons of NOX per day. These emission reductions were primarily the

result of the FMVCP and RVP reductions from 11.0 pounds per square inch

(psi) in 1988, to 9.5 in 1990 and finally, to 9.0 in 1993. The State

only claimed credit for emission reductions achieved as a result of

implementation of these federally enforceable control measures. These

emission reductions claimed by Michigan are conservative since they do

not account for emission reductions resulting from other control

measures and programs implemented during this time period such as the

current I/M program and VOC RACT. The State, therefore, adequately

demonstrated that the improvement in air quality is due to permanent

and enforceable emission reductions of 226 tons VOC and 45 tons of

NOX per day as a result of implementing the federally enforceable

FMVCP and RVP reductions.

With respect to the issue of unusually favorable meteorology, the

commentors have not supplied and the USEPA is not aware of data

demonstrating that the meteorological conditions in the Detroit-Ann

Arbor area in 1990 and subsequent years were unusually favorable with

respect to the impact on ozone formation. The USEPA examined the

average meteorological parameters of maximum monthly temperatures,

monthly precipitation, and days with temperatures greater than 90

degrees Fahrenheit for the periods of April through September, 1991

through 1993, with the 9-year (1982-1990) averages for these

parameters. The 1991-1993 averages for these parameters agreed with

those for the 9-year averages with only minor differences. Based on

averaged parameters, it can be concluded that the 1991-1993 period was

typically conducive to ozone formation. Further, the USEPA notes that

the Detroit-Ann Arbor area has been in attainment for three consecutive

three-year periods (1990-1992, 1991- [[Page 12470]] 1993, and 1992-

1994), and that this, along with the fact that real emission reductions

have occurred, indicates that attainment is not due to unusually

favorable, temporary meteorological conditions.

Comment

A few commentors noted that ``Ozone Action!'' days were declared on

selected bad meteorology days, with extensive media publicity asking

the public to reduce activities having the potential to emit ozone

precursors. It is entirely possible that the voluntary reduction

program had an effect in the summer of 1994 to reduce potential ozone

excursions. The existence of the voluntary program should be considered

in evaluating the summer 1994 data. In addition, one commentor stated

that this is an attempt to deny industry's responsibility to reduce

emissions by shifting the burden onto private households though these

``Ozone Action!'' days.

USEPA Response

Attainment has been demonstrated for 1990-1992, and 1991-1993, and

an attainment level of emissions identified at which time no such

voluntary program was being implemented in the Detroit-Ann Arbor area.

Michigan has also demonstrated through emission projections that the

precursor emissions will remain below the attainment year levels

thorough the year 2005 without accounting for any emission reductions

that may have resulted from implementation of a voluntary program. With

respect to any possible impact of a voluntary emission reduction

program on 1994 emissions, the USEPA notes that the commentor has not

provided and the USEPA has no basis for attempting to assess the impact

of such program on emission and monitored air quality levels. Thus, the

USEPA has no basis for any determination regarding the impact of the

program, and does not believe that speculation regarding such impacts

provides a basis for disapproving the redesignation.

Comment

One commentor states that emission control programs mandated by the

Act cannot be converted to contingency measures, that the Act does not

authorize conversion of required emission reduction programs to

contingency measures and that section 175A(d) imposes a mandatory duty

on an area that is redesignated to continue the emission control

programs the area adopted prior to redesignation. The commentor further

elaborates by stating that ``the SIP implementation requirement is

included in the section discussing contingency provisions because

contingency provisions automatically become effective if an area fails

to implement the applicable SIP requirements. Inclusion of the

provision in section 175A(d) does not by any stretch of statutory

interpretation authorize converting a control measure that must be

complied with now to a contingency measure that only need be complied

with at some later date, if ever.'' The commentor also contended that

allowing the conversion of mandatory control programs to contingency

measures is bad policy since the public will suffer harmful exposure

during the time necessary to implement the program after the event

triggering the contingency measures occurs. According to the commentor,

the delay would be exacerbated due to the USEPA's failure to require

adopted regulations for the programs.

USEPA Response

The Act contains many requirements that States adopt certain

measures specifically for nonattainment areas. Those requirements do

not by their own terms continue to apply to an area after it has been

redesignated to attainment. Moreover, nothing in section 175A itself

suggests that these requirements must continue to be met in

redesignated areas. Section 175A(d) is specifically and clearly

applicable to contingency provisions and their inclusion in a section

175A maintenance plan. Section 175A(d) establishes that SIP revisions

submitted under 175A must contain contingency provisions, as may be

necessary, to assure that the State will promptly correct any violation

of the ozone NAAQS that occurs after redesignation to attainment. It

further requires that these contingency provisions include a

requirement for the State to implement all measures with respect to the

control of ozone that were in the nonattainment SIP before the area was

redesignated. This provision clearly demonstrates that section 175A(d)

contemplates that there may be fully adopted but unimplemented control

measures in the SIP prior to redesignation that will be shifted into

the maintenance plan as contingency measures. Nothing in section 175A

suggests that the measures that may be shifted into the contingency

plan do not include programs mandated by the Act when the area was

designated nonattainment. As section 175A(a) requires adoption and

implementation of measures to ensure maintenance, it indicates that

measures may not be converted to contingency provisions unless the

State demonstrates that the standard will be maintained in the absence

of the implementation of such measures.

The USEPA disagrees with the commentor's assertion that its policy

regarding the conversion of emission control programs mandated by the

Act to contingency measures is bad policy due to delays that could

occur. Programs required to be adopted and submitted to the USEPA prior

to the submission of a redesignation request will already have been

adopted and may be implemented with minimal delay in the event

contingency measures are triggered. Such measures satisfy the

requirement of section 175A(d) that the contingency provisions

``promptly correct any violation of the standard which occurs after

redesignation.''

With respect to the commentor's specific assertions that the USEPA

should require upgrades to basic I/M and NSR programs to be fully

adopted by the State and approved by the USEPA prior to redesignation,

the USEPA notes first that it does not interpret the Act to require

Michigan to adopt the I/M upgrades fully now if it otherwise qualifies

for redesignation to attainment. Rather, as evidenced in the USEPA's

final I/M rule revisions, described above and in the proposal, Michigan

is required only to adopt the upgrades as a contingency measure in

order to meet the requirements for basic I/M in section 182(a)(2)(B)(i)

and (b)(4). Michigan has done that. Under its submittal, Michigan must

implement basic I/M 18 months from the date the Governor decides to

implement the program as a contingency measure and Michigan's

contingency plan contains other control measures which would result in

near term emission reductions that will be more effective towards

correcting a violation of the NAAQS than a NSR program, such as Stage I

or Stage II vapor recovery.

The commentor also suggests that since the current ozone NAAQS is

not sufficiently protective of public health the USEPA should not be

concerned with over control. In response, as previously discussed, the

USEPA is currently reviewing the ozone NAAQS. Unless and until the

NAAQS is revised, the USEPA is to make judgements on the basis of the

current NAAQS, e.g., determine whether a maintenance plan assures

maintenance of the current ozone NAAQS.

Comment

One commentor noted that Stage II vapor recovery was expected to

account for at least 22.5 tons per day (TPD) or 17 percent of the 15

percent ROP plan, that mobile sources account for 50

[[Page 12471]] percent of air toxic emissions, and that refueling

automobiles is the most significant source of benzene exposure for the

average person. As proposed, the redesignation would finally eliminate

Stage II vapor recovery from the SIP. An improved I/M program was

expected to account for reductions of 61.6 TPD or nearly half of the 15

percent ROP. The commentor adds that these 15 percent ROP measures may

be contingency measures in the maintenance plan, rather than

immediately required at any point in the future. Nevertheless, any such

transfer of a maintenance measure in the SIP to a contingency measure,

to be required only if certain triggering events occurred, must be

accompanied by a demonstration that the SIP measures are no longer

necessary for maintenance. Any proposed transfer and demonstration of

justification of the transfer must be subject to public notice and

comment, as required by the Act.

USEPA Response

Air toxic emissions or benzene exposure are not relevant to this

rulemaking since it pertains to an ozone redesignation. Moreover, this

redesignation in no way exempts the area from the air toxics

requirements of section 112 or other provisions of the Act.

Since the area was able to demonstrate maintenance through an

emissions projection analysis showing that future VOC and NOX

emissions will remain below the attainment year level of emissions (the

level of emissions sufficient to attain the NAAQS), the USEPA concludes

that currently required and future mandated control programs (e.g.,

FMVCP) are sufficient to provide for attainment and maintenance of the

NAAQS. However, contingency measures in the maintenance plan are

required in accordance with section 175A(d). The maintenance plan for

the Detroit-Ann Arbor area contains contingency measures which would be

implemented when triggered by a violation of the ozone NAAQS. USEPA

guidance allows the transfer of SIP measures which came due prior to

submittal of a complete redesignation request to the maintenance plan

as contingency measures if the area demonstrates attainment without

implementation of these measures and therefore, are unnecessary for

attainment. The State has adequately demonstrated that maintenance will

occur in the absence of the implementation of the measures cited by the

commentor. Finally, the demonstration for the transfer was subject to

public notice and comment during Michigan's public comment period and

hearing, as well as the USEPA's comment period, as required by the Act.

Comment

One commentor notes that to be effective at restoring air quality

when a post-redesignation violation occurs, contingency measures must

include measures in the 15 percent ROP plan. In elaborating, the

commentor notes that a contingency plan which lacks a program for

enhanced I/M, Stage II and conformity is an empty box with no benefits.

The precedent of ``grandparenting'' in moderate areas by allowing

redesignation without requiring inclusion of the attainment plan's 15

percent plan as a contingency measure in the maintenance plan is a

dangerous precedent for Region 5 to set. It has the potential to result

in the gutting of the Act nationwide by a seemingly innocuous

rulemaking at the Regional level.

It is unclear that the verification and tracking measures described

at 59 FR 37199 (July 21, 1994) will ever actually trigger the

requirement to implement the contingency plan.

USEPA Response

The contingency plan contains, as contingency measures, all of the

unimplemented SIP control measures that were required prior to

submittal of the complete redesignation request, including basic I/M,

Stage II, Stage I expansion, and NOX RACT. As noted in the

proposal, Stage II is no longer a required measure due to the USEPA's

promulgation of on-board vapor recovery requirements. In addition, the

State has also included 7.8 RVP12 and intensified degreasing for

degreasing operations13 as contingency measures. The USEPA does

not believe that this contingency plan is an ``empty box with no

benefits'' instead that the contingency measures in the plan would

provide very real benefits in terms of potential emission reductions

that the USEPA believes are adequate to deal with potential future

violations. The area is not required to include all measures from its

15 percent plan in its contingency plan since the 15 percent plan was

not an applicable requirement at the time the State submitted a

complete redesignation request.

\12\Lower RVP to 7.8 psi may only be implemented as a

contingency measure if the State submits and the USEPA finds, under

section 211(c)(4)(C) of the Act, that the lower RVP requirement is

necessary for the area to achieve the ozone NAAQS.

\13\Intensified RACT for degreasing operations would entail

requiring more stringent controls than are currently specified in

Michigan Rules 611, 612, 613, and 614.

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

In addition, Region 5 is not setting a precedent of

``grandparenting'' of the 15 percent ROP requirement as contingency

measures in the maintenance plan. This is consistent with national

policy that has already been established and has been discussed above.

See September Calcagni and September Shapiro memorandums.

Regarding transportation conformity, once redesignated, the

Detroit-Ann Arbor area will be a maintenance area and, therefore,

required to conduct emission analyses to determine whether the VOC and

NOX emissions remain below the motor vehicle emission budget

established in the maintenance plan. The July 21, 1994 proposal (59 FR

37190) does address conformity with respect to the redesignation on p.

37196. The proposal further discusses that, although conformity is

applicable in these areas, since the deadline for submittal had not

come due for these rules, the approval of the redesignation is not

contingent on these submittals to comply with section 107(d)(3)(E)(v).

However, transportation and general conformity apply to maintenance

areas and therefore, the Detroit-Ann Arbor area must comply with these

rules once redesignated to attainment. The June 17, 1994 Conformity

General Preamble (59 FR 31238) to the conformity regulations further

clarifies this issue. According to the conformity rules and preamble,

the Detroit-Ann Arbor area's conformity test will be to remain within

the VOC and NOX budgets established in the section 175A

maintenance plan.

The July 21, 1994 notice does describe a tracking plan for updating

the emission inventory. As discussed, the redesignation request commits

Michigan to conduct periodic inventories every 3 years, provides a

schedule for these submittals, and lists the types of factors used in

projecting the emission inventories. The State notes that if the

factors change substantially, the State would reproject emissions for

the maintenance period to determine whether apparent increases in

emissions are due to changes in calculation techniques or actual

emissions. Although these periodic emission inventories are not a

mechanism to trigger implementation of contingency measures, if the

periodic inventories exceed the attainment level of emissions in the

maintenance plan, the USEPA may issue a SIP call to the area under

section 110(k)(5) on the basis that the State made inadequate

assumptions in projecting the inventory used to demonstrate

maintenance. In this event, the USEPA may require the State to correct

the projection inventory and, if increases are projected, propose and

[[Page 12472]] ultimately implement maintenance measure(s) to lower the

emissions to a level at or below the attainment year level. Since USEPA

policy only suggests that level of emissions be included as a

triggering mechanism or method of monitoring the area emissions, States

are provided the flexibility not to include such a triggering

mechanism.

The Detroit-Ann Arbor area's contingency plan contains one trigger,

a monitored air quality violation of the ozone NAAQS, as defined in 40

CFR section 50.9. The trigger date will be the date that the State

certifies to the USEPA that the air quality data are quality-assured,

and no later than 30 days after an ambient air quality violation is

monitored. Once the trigger is confirmed, the State will implement one

or more appropriate contingency measures based on a technical analysis

using a UAM analysis. The Governor will select the contingency measures

within 6 months of the trigger. The control measures which may be used

as contingency measures within the maintenance plan are I/M upgrades,

NOX RACT, Stage I expansion, Stage II, RVP reduction to 7.8 psi

and intensified RACT for degreasing operations. As explained in the

proposal, the USEPA believes that these measures are adequate to

restore air quality in the event of a post-redesignation violation.

Comment

The commentor notes that the Detroit-Ann Arbor area is the fastest

growing business area in Michigan, and that ``if regulations are not

implemented now, it will take years for companies to comply with new

regulations added later.'' [sic] Local industry should have to

implement common-sense, cost-effective, pollution-control measures to

protect the people in the area.

USEPA Response

The area is currently implementing numerous emission control

measures and will continue to do so even after redesignation to

attainment for ozone. While the area may be growing, the State has

considered the impacts of growth not just in mobile sources, but also

industrial sources of ozone precursors in its maintenance plan. The

State has adequately shown that permanent and enforceable controls will

continue to more than offset the impact of any such growth through the

maintenance period as its projections indicate that emissions will

decrease during the maintenance period. In the event, the area is

redesignated and happens to record a violation of the ozone NAAQS,

however, the section 175A maintenance plan specifies control measures

which would be implemented as contingency measures in accordance with

the schedules specified in the July 21, 1994 and this final rule.

Comment

One commentor notes that the maintenance plan and contingency

measures are not likely to protect maintenance of the NAAQS for ozone,

because the timeline for implementing corrective measures is too

protracted, providing too little protection, too late.

USEPA Response

For clarification, the contingency measures are intended to provide

for maintenance by addressing a violation of the ozone NAAQS;

maintenance measures serve to provide for maintenance of the NAAQS. The

contingency measure implementation schedules were derived from the Act

and applicable State and Federal regulations. As explained in the

proposal and this final action, the schedule established for the

implementation of contingency measures provides for the implementation

of such measures as soon as within one year of a violation. Also, as

explained in the proposal, the USEPA believes that this schedule

satisfies the criterion of section 175A regarding the need for

contingency measures to promptly correct violations of the standard

occurring during the maintenance period.

Comment

One commentor alleges that the maintenance demonstration relies on

fleet turnover with new cars required to have on-board canisters and

perhaps enhanced fuel efficiency to create reductions of VOC emissions

sufficient to compensate for the steady growth of VMT14 and keep

Southeast Michigan in attainment. With an average time for fleet

turnover of 10 to 15 years, those measures will have little effect on

maintenance of attainment in the near term.

\14\VMT is the number of miles traveled by vehicles of various

types, preferably for each link of the highway system.

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

USEPA Response

The State is not relying on on-board canisters in its emission

projections through the maintenance period. The maintenance

demonstration through emission projections must demonstrate that the

emissions will not exceed the attainment year inventory. See General

Preamble (April 16, 1992, 57 FR 13498) and September Calcagni

memorandum. Michigan has demonstrated that, by considering the effects

of permanent and enforceable control programs (not including the on-

board vapor recovery rule), as well as, growth in the area (including

VMT growth), through the year 2005 emissions will remain below the

attainment year inventory. See 59 FR 37190, tables on p. 37198. Neither

the Act nor USEPA guidance specifies or suggests that the State achieve

other emission reductions during the maintenance period. The USEPA

reviewed the projection inventory methodologies and found them to be

appropriate. Furthermore, transportation conformity provides another

emission management mechanism. The transportation conformity rules

(November 24, 1993, 58 FR 62188) and General Preamble (June 17, 1994,

59 FR 31238) apply to nonattainment and maintenance areas. The General

preamble clarifies that conformity analyses must demonstrate that VOC

and NOX emissions will remain within the motor vehicle emission

budget as approved in a section 175A maintenance plan.

Comment

One commentor states that an ozone precursor, NOX, can

scavenge ozone. For this reason, NOX controls can actually

increase ozone levels in metropolitan areas while beneficially

affecting downwind areas. The lack of NOX controls in the

Metropolitan Detroit area would help in attaining the 120 ppb ozone

standard but this approach would have no net benefit downwind

(southwestern Ontario). The commentor concludes that both NOX and

VOC must be controlled. Another commentor notes that there is too

little information about the interaction between VOC and NOX to

justify granting an exemption from NOX controls.

USEPA Response

Section 182(f)(1)(A) of the Act allows the Administrator to exempt

an area outside an ozone transport region from the section 182(f)

NOX requirements, if the USEPA determines that ``additional

reductions of [NOX] would not contribute to attainment'' of the

ozone NAAQS in the relevant area. It is clear that if an area has

demonstrated attainment of the ozone NAAQS with 3 consecutive complete

years of air quality monitoring data, additional NOX reductions

would not contribute to attainment, since the area has already

attained. Therefore, a State may submit a petition for a section 182(f)

exemption based on air quality monitoring data showing attainment of

the ozone NAAQS. The USEPA's approval of such [[Page 12473]] an

exemption is granted on a contingent basis, i.e., the exemption would

only be valid as long as attainment of the ozone NAAQS continues. If

prior to final action to redesignate the area to attainment the USEPA

determines that a violation of the NAAQS occurred, the section 182(f)

exemption would no longer apply, as of the date of such a

determination. See December 1993 guidance document Guideline for

Determining the Applicability of NOX Requirements under Section

182(f), and the May 27, 1994 memorandum from John Seitz, Section 182(f)

NOX Exemptions--Revised Process and Criteria. In addition, the May

27, 1994 Seitz memorandum, page 3, n. 7, states that while NOX

reductions in areas that request and are granted a section 182(f)

exemption may not contribute to attainment, they may contribute to

maintenance and must be addressed in the maintenance plan required for

redesignation. The Detroit-Ann Arbor area submitted a section 182(f)

NOX exemption on November 12, 1994 based on 3 consecutive years of

monitoring data demonstrating attainment of the ozone NAAQS. The

Detroit-Ann Arbor area submitted the appropriate NOX documentation

in their redesignation maintenance plan. By doing so, the State has

demonstrated a commitment to control NOX if it is deemed necessary

to maintain the ozone standard. The USEPA approved the section 182(f)

NOX exemption petition for the Detroit-Ann Arbor area in a final

USEPA action published elsewhere in this Federal Register.

With respect to the aspects of the comments relating to the effects

of NOX controls or the lack of NOX controls on ambient air in

Canada, the USEPA refers the reader to the responses to the comments

set forth below.

In addition, the redesignation request establishes VOC and NOX

emission budgets, establishing emission levels adequate to attain the

ozone NAAQS. The State has also demonstrated through emission

projections that the area's emissions will remain below the attainment

year inventory through the year 2005. Consequently, the State has

demonstrated that NOX levels will not exceed current levels

through the maintenance period.

In response to the commentors note that there is too little

information about the interaction between VOC and NOX to justify

granting an exemption from NOX controls, the USEPA refers the

commentor to the NOX/VOC Study released by the USEPA on July 31,

1993. Congress provided that USEPA decisions on personal petitions for

NOX exemptions under section 182(f)(3) be triggered by publication

of this 185B report. Consequently, the USEPA believes that this

provides evidence that Congress appears to have believed the results of

the 185B study would supply sufficient information for the Agency to

grant section 182(f) exemptions. The USEPA refers the commentor to the

final rulemaking approving the section 182(f) NOX exemption

petition for the Detroit-Ann Arbor area published elsewhere in this

Federal Register.

Nonetheless, as demonstrated by the emission projections for the

10-year maintenance plan submitted by Michigan, continuing reductions

in NOX emissions are expected (primarily from mobile sources as a

result of FMVCP). Also, additional NOX emission reductions are

expected from implementation of the NOX controls required by title

IV of the Act. Designation status of an area is irrelevant in the

applicability of title IV requirements; consequently, subject sources

in the Detroit-Ann Arbor area will be required to comply with these

requirements.

Comment

One commentor notes that the action of proposed redesignation is a

product of undue haste and that the final decision on redesignation

should await data from Canada's study of ozone levels at its receptors

which are down-wind of Southeast Michigan. A number of other commentors

suggested that the USEPA respond to concerns expressed by Ontario and

Canada prior to making any decision. Another commentor suggests that

the USEPA obtain and assess ambient ozone levels prior to proceeding

with the redesignation.

USEPA Response

The USEPA has received comments and information from a number of

Canadian interests. All comments from commentors in Canada have been

considered as the USEPA made a final decision on this action, and are

addressed within this final rulemaking. As explained below, the USEPA

does not believe that these comments warrant a deferral of final action

on this redesignation.

Comment

One commentor states that between 60 percent-80 percent of toxic

air pollutants in Windsor's ambient air are transported from the City

of Detroit and other U.S. areas northwest of Windsor. Another commentor

suggests that the technology needed to reduce ozone closely parallels

the technology needed to abate toxic air pollutants in the region. By

designating the area as attainment, the region will no longer be

required to include ozone reduction technology in the State of

Michigan's SIP under the Act. This could eliminate further

technological improvements that would not only reduce ozone levels but

also contribute to the abatement of toxic air pollution. Since the

Governments of the United States and Canada, in their Reference to the

International Joint Commission (IJC), have emphasized that the IJC

address the impacts of toxic air pollution problems in the region, the

IJC cannot support any move that would result in less stringent

controls which have direct impact on minimization of ozone levels and

reduction of toxic chemical emissions. Consequently, the commentor

strongly disagrees with the proposed USEPA redesignation and recommends

against it. The commentor believes that the control requirements of the

Act for this area should be implemented.

USEPA Response

This redesignation is for ozone. Toxic air pollutants are not

relevant to the issue of whether an area should be redesignated due to

its attainment of the ozone NAAQS. Separate from this redesignation,

the State is required to meet other requirements of the Act

specifically to control air toxics emissions. The ozone redesignation

would not exempt the area from implementing section 112 of the Act,

which is intended to address the control of hazardous air pollutants.

Rules promulgated pursuant to section 112 are applicable to sources

regardless of an area's attainment status.

In addition, sources of ozone precursors in the Detroit-Ann Arbor

area must continue to implement all control equipment and/or measures

in accordance with applicable rules, regulations and permits.

Consequently, the redesignation would not result in less stringent

controls than are currently being implemented in the Detroit-Ann Arbor

area.

Comment

One commentor notes that Canada and Ontario are assembling data

from Canadian monitoring stations which are directly relevant to the

decision as to whether the Detroit-Ann Arbor area is currently meeting

the prescribed Act requirements with respect to ozone. The commentor

states that this information and other points will be provided to the

Department of State on October 17, 1994. (On October 17, 1994 a

document entitled Canada/Ontario Technical Component of the Canadian

Comment on the Michigan/Ann Arbor Ozone Redesignation Request was

submitted. [[Page 12474]] This document was prepared by Environment

Canada and the Ontario Ministry of the Environment and Energy). The

commentor expects that this information would be considered in any

final decision. A copy of the September 23, 1994 letter from the IJC to

Warren Christopher, Secretary of State, was attached. Another commentor

claims that the Canadians in Southern Ontario are affected by some of

the worst smog episodes in Canada. Many commentors state that much, if

not all, of the ground level ozone in Southern and Southeastern Ontario

is a result of transboundary movement of ozone and NOX from the

U.S. to Canada. Michigan is a significant source of the ozone and

NOX coming from the U.S. A number of commentors provided

monitoring data from monitors located in Southwestern Ontario and the

Detroit-Ann Arbor area and assert that high ozone levels recorded in

the Detroit-Ann Arbor area correspond directly with high ozone levels

which exceed Ontario's ozone standard. Some commentors noted that high

levels of ozone in Ontario may be the cause of increased respiratory

problems. Another commentor noted that a recent study in southern

Ontario indicates that hospital admissions for respiratory problems has

increased due to ozone and acidic air pollution. This situation is

occurring at ozone levels well below the 125 ppb averaged over one

hour. Another commentor suggests that being another sovereign nation

and not a neighboring State, Canada is denied protection available to

downwind States adversely affected by emissions from upwind neighbors

within the U.S. Another commentor notes the damaging effect of ozone on

agricultural crops.

USEPA Response

The USEPA has considered the October 17, 1994 submittal referred to

and all other information provided by the Canadian Government and other

commentors on these issues.

The following provides a synopsis of the USEPA's review of the

October 17, 1994 document submitted by Environment Canada and the

Ontario Ministry of the Environment and Energy. The document contains,

among other elements, some ozone monitoring data. However, the ozone

monitoring data was inadequate for the USEPA to assess whether a

violation of the U.S. ozone NAAQS occurred in Canada. Consequently, on

November 1, 3 and 24, and December 14 and 19, 1994 the USEPA obtained

clarifying information from the Ontario Ministry of the Environment and

Energy on the ozone monitoring data submitted.

In reviewing the Canadian ozone monitoring data, the USEPA examined

each 3-year interval from 1990 through 1994 as well as associated wind

patterns. Based on a review of the Canadian report and the clarifying

information, the monitoring data demonstrates that there has not been a

violation of the U.S. ozone NAAQS at the Windsor (University or South),

Sarnia, Merlin, Mandaumin, London, Longwoods, or Parkhill monitors for

the timeframe 1990-1992, 1991-1993, or 1992-1994. In fact, the only

monitors that have recorded violations of the U.S. ozone NAAQS are the

Grand Bend monitor and Tiverton monitor, which are located more than 90

miles and 140 miles away from the Detroit-Ann Arbor area, respectively.

The Grand Bend monitor recorded violations of the U.S. ozone NAAQS

during the timeframe 1990-1992 with a number of expected exceedances of

1.67 and during 1991-1993 of 2.0. However, for the 1992-1994 period,

there was no violation of the U.S. ozone NAAQS with a number of

expected exceedances at 0.33. The Tiverton monitor recorded violations

of the U.S. ozone NAAQS during the timeframes 1990-1992 and 1991-1993

with a number of expected exceedance of 2.0. However, during the 1992-

1994 period, there was no violation of the U.S. ozone NAAQS.15

\15\The October 17, 1994 submittal and subsequent clarifying

information revealed that the Tiverton monitor recorded one

exceedance in 1994. The exceedance, a value of 136 ppb, was recorded

on April 24, 1994 at 7:00 PM. However, based on clarifying

information provided by the Ontario Ministry of the Environment and

Energy, this ozone value was invalidated. The strip chart recorder

registered interference (electrical or otherwise) on April 24, 1994

between the hours of 5:00 PM through 8:00 PM and for 10:00 PM.

Consequently, the data for these hours was invalidated by the

Ontario Ministry of the Environment and Energy.

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

In addition, the modeling submitted on October 17, 1994 is limited

and insufficient for purposes of implicating the Detroit-Ann Arbor area

as the cause of elevated ozone levels in Ontario16.

\16\Among the inadequacies were that the submittal had limited

documentation on the model input parameters. The ADOM-GESIMA model

is not a USEPA guideline model as listed in the Guideline on Air

Quality Models, (revised in February 1993). Further model

documentation is necessary for a comparative evaluation against

USEPA guideline models.

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

The ground level wind trajectories presented in the October 17,

1994 submittal, indicate that winds into Tiverton and the Windsor area

pass through a number of urbanized areas in both the U.S. and Canada

(the Windsor urbanized area). The USEPA also notes that such

concentration may be attributable to or fostered by ozone precursor

emissions generated within Canadian borders, since Windsor itself is an

urban area with an estimated metropolitan population greater than

225,000. Thus, the extent of any contribution from the Detroit-Ann

Arbor area to monitored ozone levels in Ontario cannot be determined

with any degree of certainty on the basis of the information presently

available to the USEPA. The data provided in the October 17, 1994

submittal are inadequate to provide a basis for determining the extent

to which emissions from Michigan, and more specifically, the Detroit-

Ann Arbor area, are contributing to ambient ozone levels in Ontario. As

a consequence, the USEPA does not believe that the presently available

information provides any basis for affecting its decision regarding the

redesignation of the Detroit-Ann Arbor area.

The USEPA would like to note that the governments of the United

States and Canada are in the process of developing a joint study of the

transboundary ozone phenomena under the U.S.-Canada Air Quality

Agreement. It is envisioned that this regional ozone study will provide

the scientific information necessary to understand what contributes to

ozone levels in the region, as well as, what control measures would

contribute to reductions in ozone levels. Should this or other studies

provide a sufficient scientific basis for taking action in the future,

the USEPA will decide what is an appropriate course of action. The

USEPA may take appropriate action notwithstanding the redesignation of

the Detroit-Ann Arbor area. Therefore, the USEPA does not believe that

the contentions regarding transboundary impact currently provide a

basis for delaying action on this redesignation or disapproving the

redesignation. This is particularly true since approval of the

redesignation is not expected to result in an increase in ozone

precursor emissions and is not expected to adversely affect air quality

in Canada. In fact, a decrease in both VOC and NOX emissions from

the Detroit-Ann Arbor area is expected over the 10-year maintenance

period. See 59 FR 37190, July 21, 1994. It should also be noted that

redesignation does not allow States to automatically remove control

programs which have contributed to an area's attainment of a U.S. NAAQS

for any pollutant. As discussed previously, the USEPA's general policy

is that a State may not relax the adopted and implemented SIP for an

area upon the area's redesignation to attainment unless an appropriate

demonstration17, [[Page 12475]] based on computer modeling, is

approved by the USEPA. In this case, no previously implemented control

strategies are being relaxed as part of this redesignation.

\17\Such a demonstration must show that removal of a control

program will not interfere with maintenance of the ozone NAAQS and

would entail submittal of an attainment modeling demonstration with

the USEPA's current Guideline on Air Quality Models. Also, see

memorandum from Gerald A. Emison, April 6, 1987, entitled Ozone

Redesignation Policy.

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

The health effects of acidic air pollution are not relevant to this

ozone redesignation. However, the USEPA is aware of the study

referenced by the commentor and is considering this study in the

process of reevaluating the ozone NAAQS.

Further, apart from title I requirements related to the cessation

of the Detroit-Ann Arbor area's status as an ozone nonattainment area,

the area is and will continue to be required to satisfy all Act

requirements. Other control programs required by the Act will be

implemented in the area, regardless of the ozone designation, such as

title IV NOX controls, section 112 toxic controls and on-board

vapor recovery requirements.

Comment

One commentor notes that recent information indicates that

significantly high ozone readings have been recorded in the Town of

Kincardine this summer. Kincardine is halfway up the eastern shoreline

of Lake Huron, and therefore, the air quality in Kincardine is, for the

most part, a result of emissions from Michigan. The commentor requests

that the USEPA reconsider the redesignation of the area because it will

have drastic effects on the communities on the eastern shore.

USEPA Response

Kincardine is more than 100 miles northeast of the Detroit-Ann

Arbor area, the subject of the redesignation to attainment for ozone.

Consequently, attributing elevated ozone levels in Kincardine to the

Detroit-Ann Arbor area would be a complex task. It cannot be

conclusively stated that emissions emanating from the Detroit-Ann Arbor

area are, ``for the most part,'' responsible for elevated ozone

concentrations recorded at a monitor more than 100 miles away. As

demonstrated by the wind trajectories provided by Canada as part of the

October 17, 1994 submittal, it can be seen that air parcels travel

through several U.S. and Canadian urbanized areas. Again, it is noted

that the U.S. and Canada are cooperatively developing a regional ozone

study to investigate the transboundary ozone phenomena.

Comment

One commentor states that the transboundary ozone issue points to

the need to manage air quality in a regional context and notes that in

their meeting of July 25, 1994 in Washington, Carol Browner,

Administrator of the United States Environmental Protection Agency, and

Sheila Copps, Deputy Prime Minister, Minister of the Environment,

Canada, agreed to cooperate in regional management of the transboundary

ozone problem. The commentor suggests that the Great Lakes region

provides an ideal opportunity to advance this concept.

USEPA Response

Subsequent to the Browner/Copps meeting, the U.S. and Canadian

Governments have met to discuss and develop a regional pilot program to

address any potential regional transboundary ozone issue. This new

regional pilot effort is being developed as a priority under the U.S.-

Canada Air Quality Agreement.

Comment

One commentor states that the Southeast Michigan Council of

Governments has discussed the redesignation at past meetings of the

Windsor Air Quality Committee, at which local committee members pointed

out their concerns to no avail. All information available suggests that

the request for redesignation is without scientific merit at present,

and is premature at best.

USEPA Response

Ambient air monitoring data in the Detroit-Ann Arbor area

demonstrates that the area is attaining the ozone NAAQS. In addition,

the State has met all applicable requirements under section 107 of the

Act. As previously discussed, the U.S. and Canada are cooperatively

developing a regional ozone study to investigate the transboundary

ozone phenomena.

Comment

One commentor notes that the March 1991 formal agreement (the March

13, 1991 U.S.-Canada Air Quality Agreement) between the U.S. and Canada

called for other parties to take steps to avoid or mitigate the

potential risk posed by specific actions. On this basis, it is

requested that the USEPA reconsider the consequences of approving this

request for southeast Michigan. Another commentor refers to the March

13, 1991 Air Quality Agreement between Canada and the U.S. with respect

to the effort of the two countries to address transboundary air

pollution through ``cooperative and coordinated action.'' Alleging that

ground level ozone production in the Detroit-Ann Arbor area by its

movement across the U.S.-Canada border has a significant impact on

ozone production and general air quality in the Windsor Southwestern

Ontario region of Canada, the commentor expresses concern that the

Department of State chose not to provide the Canadian Government with

formal advance notice of the intention of the USEPA to act on an issue

which would have a major impact on transboundary air pollution.

USEPA Response

Paragraph 1 of Article V of the March 13, 1991 U.S.-Canada Air

Quality Agreement states that ``Each Party shall, as appropriate and as

required by its laws, regulations and policies, assess those proposed

actions, activities and projects within the area under its jurisdiction

that, if carried out, would be likely to cause significant

transboundary air pollution, including consideration of appropriate

mitigation measures.'' Paragraph 2, specifies that parties shall notify

each other of actions under paragraph 1. Since the action to

redesignate the Detroit-Ann Arbor area to attainment does not result in

a relaxation of existing control requirements or an increase in ozone

precursor emissions, the USEPA does not believe that formal

notification was necessary nor that this action poses a potential risk.

Canada is well aware of this redesignation at this time. However, in

the future, the U.S. intends to notify Canada of actions similar to

this action as early as possible regardless of whether notification is

required under the U.S.-Canada Air Quality Agreement. In addition, the

U.S. will work with Canada to address tropospheric ozone in the context

of the Air Quality Agreement as previously discussed.

Comment

A number of commentors believe that the air quality in the Detroit-

Ann Arbor area has not improved but deteriorated in recent years.

Recent developments have been detrimental to air quality, such as the

operation of a trash incinerator which emits foul smoke into the air

around the clock, particularly on weekends when businesses are closed.

Instead of recycling, the City of Detroit chooses to pollute southeast

Michigan and Ontario's air. Multitudes of industrial plants are located

on the Detroit River whose smokestacks cast gray haze over everything,

even on sunny days. One commentor lists a number of local facilities

which it claims causes visible emissions and [[Page 12476]] offensive

odors. Another commentor states that Wayne county ranked #1 in amount

of hazardous chemicals released through air emissions (as well as #1 in

``suspected'' carcinogens), and was fearful for her health and future

because of current air quality. Another commentor claimed breathing

problems caused by outdoor air. Wayne County was accused of posing

numerous pulmonary health risks for residents. Improvements in air

quality are necessary for the residents' safety and health.

USEPA Response

The July 21, 1994 Federal Register notice proposes to redesignate

the Detroit-Ann Arbor area to attainment solely for ozone. The Detroit-

Ann Arbor redesignation request satisfies the section 107(d)(3)(E)

requirements. Among these requirements is that the area demonstrate

attainment of the ozone NAAQS. See section 107(d)(3)(E)(i). The

Detroit-Ann Arbor area has demonstrated through 3 consecutive years of

complete air quality data, that the area has attained the ozone NAAQS.

The area is and will continue to be required to satisfy all Act

requirements pertaining to the emission of hazardous air pollutants.

Further, existing facilities must continue to operate existing air

pollution control equipment in accordance with applicable rules,

regulations and permits, and sources that are problematic in terms of

posing a nuisance to area residents may be referred to the State and

local environmental enforcement staff for investigation. Retaining the

area's current nonattainment designation for ozone would not affect

visible emissions and/or offensive odors from the existing incinerator.

In addition, certain new rules and regulations will still apply to area

sources even if the area is redesignated to attainment for ozone; for

example, Maximum Achievable Control Technology and additional controls

under section 112 (air toxics) of the Act. With respect to the

commentor's contention that improvements in air quality are necessary

for residents' safety and health, it should be recognized that section

109 of the Act requires that the NAAQS, which must be based on

established criteria and allow an adequate margin of safety, protect

the public health. Unless and until it is revised, the current ozone

NAAQS provides the pertinent standard for protecting public health.

Comment

Many commentors believe that designating the area to attainment

would exempt the area from stricter clean air regulations. They believe

that the USEPA should require local industry to implement common-sense,

cost-effective pollution control measures, more stringent automobile

emission testing (current testing is not effective), and service

stations to install anti-pollution devices on gasoline pumps (Stage

II). The USEPA should encourage that measures be taken to ensure that

no pollution problems occur in the future.

USEPA Response

Redesignating the area to attainment for ozone does not exempt the

State from implementing measures necessary for attainment. Further,

additional regulations such as a basic I/M program, Stage II vapor

recovery, or Stage I expansion are incorporated into the area's

maintenance plan as contingency measures. The contingency measures

selected by the State will be implemented if a violation is

experienced.

Comment

One commentor requests the USEPA to require, and to make public, an

independent, third party, statistical verification of air quality and

related environmental health data to support or dispute claims made by

local businesses, a senator and a governor. If monitoring in the

southwest section of Detroit is ongoing, then there would be no

question that tougher standards are needed.

USEPA Response

The State has established air monitoring networks, sampling and

analysis procedures as well as quality assurance and control procedures

that satisfy USEPA guidelines. The State will continue to operate its

monitoring network after redesignation. Third party statistical

verification of air quality data is not required by the guidelines

applicable for the purposes of this redesignation.

Comment

One commentor stated that the USEPA should not redesignate the

Detroit-Ann Arbor area because it is likely that the area will soon

have to be redesignated back to nonattainment. The commentor also

provided various information related to increasing VOC emissions and

petroleum usage.

USEPA Response

The USEPA believes that Michigan has shown that the Detroit-Ann

Arbor area has attained and can continue to maintain the NAAQS for

ozone. In the event that a violation of the ozone NAAQS does occur in

the future, however, the maintenance plan provides for the

implementation of the State's contingency measures under section 175A

to promptly correct any violations of the NAAQS, as required by the

Act.

With regard to the commentor's contentions concerning VOC emissions

and petroleum usage, the USEPA notes that in its showing of maintenance

over a 10-year period, the State has technically assessed not only the

impacts of reductions due to control programs, but also increases due

to growth in all potential sources of emissions. These potential

sources include petroleum usage in the mobile source and industrial

source sectors. The State has shown in these assessments that

reductions in emissions over the maintenance period will more than

offset any increases in emissions of VOC. The USEPA's decisions must be

based solely on whether Michigan's submission adequately addresses the

statutory requirements applicable to redesignation. The USEPA has

determined that it does, and is thus approving the redesignation

request. Again, in the event that violations of the ozone NAAQS occur,

Michigan must promptly implement its contingency measures such that the

ozone NAAQS is once again attained and maintained.

II. Final Rulemaking Action

The USEPA approves the redesignation of the Detroit-Ann Arbor,

Michigan ozone area to attainment and the section 175A maintenance plan

as a revision to the Michigan SIP. The State of Michigan has satisfied

all of the necessary requirements of the Act. The USEPA has also

approved the section 182(f) NOX exemption for the Detroit-Ann

Arbor area in an action published elsewhere in this Federal Register

which exempts the area from the section 182(f) NOX requirements.

As a consequence of this action, the USEPA also stops the sanctions

clocks that had been started as a result of the findings made on

January 21, 1994, regarding the incompleteness of the 15 percent ROP

plan and the section 172(c)(9) contingency plan for the Detroit-Ann

Arbor area and on May 11, 1994, regarding the basic I/M plan for the

area.

This action has been classified as a Table 2 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air [[Page 12477]] and Radiation. The OMB has exempted this regulatory

action from Executive Order 12866 review.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to any SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

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 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.

The SIP approvals under section 100 and subchapter I, part D, of

the Act do not create any new requirements, but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP-approval does not impose any new requirements, I certify

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

Moreover, due to the nature of the Federal-State relationship under the

Act, preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action. The

Act forbids USEPA to base its actions concerning SIPs on such grounds.

Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (1976).

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

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by May 8, 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

40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental relations, Motor vehicle pollution,

Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping

requirements, Volatile organic compounds.

40 CFR Part 81

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, National parks, Nitrogen oxides, Ozone, Volatile organic

compounds, Wilderness areas.

Dated: February 8, 1995.

Norman R. Niedergang,

Acting Regional Administrator.

Chapter I, 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 52.1170 is amended by adding paragraphs (c) (101) and

(102) to read as follows:

Sec. 52.1170 Identification of plan.

* * * * *

(c) * * *

(101) On November 15, 1993, the State of Michigan submitted as a

revision to the Michigan State Implementation Plan for ozone a State

Implementation Plan for a motor vehicle inspection and maintenance

program for the Detroit-Ann Arbor area. Michigan submitted House Bill

No. 5016, signed by Governor John Engler on November 13, 1993.

(i) Incorporation by reference.

(A) State of Michigan House Bill No. 5016 signed by the Governor

and effective on November 13, 1993.

(102) On November 12, 1993, the State of Michigan submitted as a

revision to the Michigan State Implementation Plan for ozone a State

Implementation Plan for a section 175A maintenance plan for the

Detroit-Ann Arbor area as part of Michigan's request to redesignate the

area from moderate nonattainment to attainment for ozone. Elements of

the section 175A maintenance plan include a base year (1993 attainment

year) emission inventory for NOX and VOC, a demonstration of

maintenance of the ozone NAAQS with projected emission inventories

(including interim years) to the year 2005 for NOX and VOC, a plan

to verify continued attainment, a contingency plan, and an obligation

to submit a subsequent maintenance plan revision in 8 years as required

by the Clean Air Act. If the area records a violation of the ozone

NAAQS (which must be confirmed by the State), Michigan will implement

one or more appropriate contingency measure(s) which are contained in

the contingency plan. Appropriateness of a contingency measure will be

determined by an urban airshed modeling analysis. The Governor or his

designee will select the contingency measure(s) to be implemented based

on the analysis and the MDNR's recommendation. The menu of contingency

measures includes basic motor vehicle inspection and maintenance

program upgrades, Stage I vapor recovery expansion, Stage II vapor

recovery, intensified RACT for degreasing operations, NOX RACT,

and RVP reduction to 7.8 psi. Michigan submitted legislation or rules

for basic I/M in House Bill No 5016, signed by Governor John Engler on

November 13, 1993; Stage I and Stage II in Senate Bill 726 signed by

Governor John Engler on November 13, 1993; and RVP reduction to 7.8 psi

in House Bill 4898 signed by Governor John Engler on November 13, 1993.

(i) Incorporation by reference.

(A) State of Michigan House Bill No. 5016 signed by the Governor

and effective on November 13, 1993.

(B) State of Michigan Senate Bill 726 signed by the Governor and

effective on November 13, 1993.

(C) State of Michigan House Bill No. 4898 signed by the Governor

and effective on November 13, 1993.

2. Section 52.1174 is amended by adding paragraphs (h) and (i) to

read as follows:

Sec. 52.1174 Control strategy: Ozone.

* * * * *

(h) Approval--On January 5, 1993, the Michigan Department of

Natural Resources submitted a revision to the ozone State

Implementation Plan for the 1990 base year emission inventory. The

inventory was submitted by the State of Michigan to satisfy Federal

requirements under section 182(a)(1) of the Clean Air Act as amended in

1990, as a revision to the ozone State Implementation Plan for the

Detroit-Ann Arbor moderate ozone nonattainment area. This area includes

Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne

counties.

(i) Approval--On November 12, 1993, the Michigan Department of

Natural Resources submitted a request to redesignate the Detroit-Ann

Arbor (consisting of Livingston, Macomb, Monroe, Oakland, St. Clair,

Washtenaw, and Wayne counties) ozone nonattainment area to attainment

for ozone. As part of the redesignation request, the State submitted a

[[Page 12478]] maintenance plan as required by 175A of the Clean Air

Act, as amended in 1990. Elements of the section 175A maintenance plan

include a base year (1993 attainment year) emission inventory for

NOX and VOC, a demonstration of maintenance of the ozone NAAQS

with projected emission inventories (including interim years) to the

year 2005 for NOX and VOC, a plan to verify continued attainment,

a contingency plan, and an obligation to submit a subsequent

maintenance plan revision in 8 years as required by the Clean Air Act.

If the area records a violation of the ozone NAAQS (which must be

confirmed by the State), Michigan will implement one or more

appropriate contingency measure(s) which are contained in the

contingency plan. Appropriateness of a contingency measure will be

determined by an urban airshed modeling analysis. The Governor or his

designee will select the contingency measure(s) to be implemented based

on the analysis and the MDNR's recommendation. The menu of contingency

measures includes basic motor vehicle inspection and maintenance

program upgrades, Stage I vapor recovery expansion, Stage II vapor

recovery, intensified RACT for degreasing operations, NOX RACT,

and RVP reduction to 7.8 psi. The redesignation request and maintenance

plan meet the redesignation requirements in sections 107(d)(3)(E) and

175A of the Act as amended in 1990, respectively. The redesignation

meets the Federal requirements of section 182(a)(1) of the Clean Air

Act as a revision to the Michigan Ozone State Implementation Plan for

the above mentioned counties.

PART 81--[AMENDED]

1. The authority citation for part 81 continues to read as follows:

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

2. In Sec. 81.323 the ozone table is amended by revising the entry

for the Detroit-Ann Arbor area for ozone to read as follows:

Sec. 81.323 Michigan.

* * * * *

Michigan--Ozone

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

Designation Classification

Designated areas --------------------------------------------------------------------------------

Date\1\ Type Date\1\ Type

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

* * * * * *

*

Detroit-Ann Arbor Area:

Livingston County.......... April 6, 1995........... Attainment

Macomb County.............. April 6, 1995........... Attainment

Monroe County.............. April 6, 1995........... Attainment

Oakland County............. April 6, 1995........... Attainmnet

St. Clair County........... April 6, 1995........... Attainment

Washtenaw County.......... April 6, 1995........... Attainment

Wayne County............... April 6, 1995........... Attainment

* * * * * *

*

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

\1\This date is November 15, 1990, unless otherwise noted.

* * * * *

[FR Doc. 95-5445 Filed 3-6-95; 8:45 am]

BILLING CODE 6560-50-P