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

[MI43-03-7258; FRL-5525-4]

Approval and Promulgation of Implementation Plans and Designation

of Areas for Air Quality Planning Purposes; State of Michigan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On April 2, 1996 the Environmental Protection Agency (EPA)

published a proposal to approve the redesignation to attainment and

associated section 175A maintenance plan for the ozone National Ambient

Air Quality Standard (NAAQS) for the two-county Grand Rapids, Michigan

area as a State Implementation Plan (SIP) revision. The 30-day comment

period concluded on May 2, 1996. A total of 1 comment letter was

received in response to the April 2, 1996 proposal. On May 1, 1996, the

EPA published a 14-day partial extension of the comment period on the

redesignation request and section 175A maintenance plan, limited to the

State's April 11, 1996 revision to the section 175A maintenance plan

which was not available in EPA's docket prior to April 15, 1996. The

reopened comment period concluded on May 16, 1996. One additional

comment letter was received in response to the May 1, 1996, extension

of public comment period. This final rule summarizes all comments and

EPA's responses, and finalizes the approval of the redesignation to

attainment for ozone and associated section 175A maintenance plan for

the Grand Rapids area.

EFFECTIVE DATE: This action will be effective June 21, 1996.

ADDRESSES: Copies of the SIP revisions, public comments and EPA'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 (AR-18J), Air Programs 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 redesignation request and maintenance plan for the Grand Rapids

and Muskegon moderate ozone nonattainment areas discussed in this rule

were submitted on March 9, 1995 and May 1, 1995 (with a revision on

April 11, 1996), by the Michigan Department of Environmental Quality

(MDEQ). However, the April 2, 1996 proposal and this final rule address

only the Grand Rapids area, which consists of Kent and Ottawa Counties.

On April 2, 1996, (61 FR 14522) the EPA published a proposal to approve

the redesignation request and associated section 175A maintenance plan

as a revision to the Michigan ozone SIP. On May 1, 1996 (61 FR 19233),

the EPA published a partial 14-day extension of the comment period on

the redesignation request and section 175A maintenance plan, limited to

the State's April 11, 1996 revision to the section 175A maintenance

plan, which was not available in EPA's docket prior to April 15, 1996.

The reopened comment period concluded on May 16, 1996. 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 EPA's final action regarding

the redesignation and section 175A maintenance plan for the Grand

Rapids

[[Page 31832]]

area. A more detailed discussion in response to each comment is

contained in the EPA's Technical Support Document (TSD), dated XXX,

1995 from Jacqueline Nwia to the Docket, entitled ``Response to

Comments on the April 2, 1996 Proposal to Approve the Redesignation to

Attainment for Ozone and Section 175A Maintenance Plan for the Grand

Rapids Area,'' which is available from the Region 5 office listed

above.

II. Public Comments and EPA Responses and Final Rulemaking Actions

The following discussion summarizes and responds to the comments

received regarding the redesignation of the Grand Rapids area to

attainment for ozone.

Comment: The commentor requested additional time to review and

provide comments on the proposed redesignation because: the proposal

was contingent on Michigan's submittal of a revision to the section

175A maintenance plan which was not available for public review until

April 15, 1996; the proposed action concerns the public health of many

of the requestor's members; and the proposed action incorporates new

guidance and policy which have broad implications throughout the Lake

Michigan basin and beyond. The commentor requested a minimum of 30 days

beyond the date of Michigan's most recent submittal or May 15, 1996.

Response: EPA extended the public comment period only for those

portions of the redesignation and section 175A maintenance plan

pertaining to Michigan's April 11, 1996 maintenance plan SIP that did

not become available in EPA's docket until April 15, 1996. The 14-day

extension concluded on May 16, 1996. The EPA believes this provides the

commentor with an adequate opportunity to review and submit comments on

the subject of this rulemaking action.

Comment: The commentor notes that the proposed redesignation

violates the specific and general intent of Congress in specifying

requirements for redesignation. The commentor elaborates by stating

that the proposed approval violates redesignation requirements of the

Clean Air Act Amendments of 1990 (Act) by lowering the threshold for

redesignation of these areas by reinterpretation of longstanding

redesignation guidance and granting of waivers and exemptions of

applicable statutory requirements. The waivers granted to the Grand

Rapids area include: waiver from adoption of volatile organic compounds

(VOC) reasonably available control technology (RACT) rules; waiver of

the reasonable further progress (RFP) requirement; waiver of the part D

New Source Review (NSR) requirement and waiver from the adoption of

conformity rules.

Response: At the outset, EPA rejects the contention that its

actions violate the redesignation requirements of the Act. The EPA has

not granted the Grand Rapids area ``waivers,'' or ``exemptions'' from,

nor reinterpreted longstanding guidance pertaining to, RFP requirements

or conformity. The EPA did propose an exception to current policy

regarding the need to adopt certain VOC RACT rules prior to

redesignation and applied the October 14, 1994 memorandum from Mary

Nichols, Assistant Administrator for Air and Radiation entitled ``Part

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

Redesignation to Attainment,'' 1 regarding the requirements for

part D NSR.

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\1\ Hereinafter referred to as ``October 1994 Nichols

memorandum.''

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With respect to the RFP requirement, on July 20, 1995, the EPA made

a determination regarding the applicability of certain RFP and

attainment demonstration requirements. This final rule determined that

since the Grand Rapids area had demonstrated attainment of the ozone

standard, a factual determination based on 3 years of complete quality

assured monitoring data, certain provisions of the Act, whose explicit

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

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

attain the standard. Those provisions include RFP, the section

172(c)(9) contingency measures and attainment demonstration. The EPA

believes it is reasonable to interpret provisions regarding RFP and

attainment demonstrations, along with certain other related provisions,

so as not to require SIP submissions if an ozone nonattainment area

subject to those requirements is monitoring attainment of the ozone

standard (i.e., attainment of the NAAQS demonstrated with three

consecutive years of complete, quality-assured, air quality monitoring

data). As explained in a memorandum from John S. Seitz, Director,

Office of Air Quality Planning and Standards, entitled ``RFP,

Attainment Demonstration, and Related Requirements for Ozone

Nonattainment Areas Meeting the Ozone National Ambient Air Quality

Standard,'' dated May 10, 1995,2 EPA believes it is appropriate to

interpret the more specific RFP, attainment demonstration and related

provisions of subpart 2 in the same manner as EPA had previously

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

(sections 171 and 172).

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\2\ Hereinafter referred to as ``May 1995 Seitz memorandum.''

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EPA has explained at length in other notices, including the July

20, 1995 determination of attainment regarding the Grand Rapids area

(60 FR 37366), its rationale for the reasonableness of that

interpretation of the Act and incorporates those explanations by

reference here. See Approval and Promulgation of Implementation Plans

and Designation of Areas for Air Quality Planning Purposes; Ohio, 61 FR

20458 (May 7, 1996); Determination of Attainment of Ozone Standard for

Salt Lake and Davis Counties, Utah, 60 FR 36723 (July 18, 1995). EPA

emphasizes that it has not suspended or granted the Grand Rapids area

an exemption from any applicable requirements. Rather, EPA has

interpreted the requirements of sections 182(b)(1)(A)(I) and 172(c)(9)

as not being applicable once an area has attained the standard, as long

as it continues to do so. This is not a waiver of requirements that by

their terms clearly apply; it is a determination that certain

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

attaining the standard.

The May 1995 Seitz memorandum was clear about the consequences of

the policy for redesignations. First, it made plain that a

determination of attainment is not tantamount to a redesignation of an

area to attainment. Attainment is only one of the criteria set forth in

section 107(d)(3)(E). To be redesignated, the State must satisfy all of

the criteria of section 107(d)(3)(E), including the requirement of a

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

permanent and enforceable reductions, and the requirements that the

area have a fully-approved SIP which meets all of the applicable

section 110 and part D requirements, and a fully approved maintenance

plan.

Upon a determination of attainment, however, the section

182(b)(1)(A)(I) requirements of RFP and attainment plans, and the

section 172(c)(9) requirement of contingency plans are no longer

considered applicable requirements under section 107(d)(3)(E). They

would no longer be included among those measures whose approval is part

of the requirement of having a fully approved SIP.

EPA is not diluting the redesignation requirements of section

107(d). What EPA has done is make a determination that since the area

is attaining the standard, which is a factual determination, certain

provisions of the

[[Page 31833]]

Act, whose express purpose is to achieve attainment of the standard, do

not require SIP revisions to be made by the State for so long as the

area continues to attain the standard. This has long been EPA's policy

with respect to the section 172(c)(9) contingency measures and section

172(c)(2) RFP requirement. See general preamble at 57 FR 13498. EPA has

also made determinations regarding section 182(f) NOX waivers at

or before the redesignation of an area and therefore not required

NOX RACT submissions to approve such redesignations. See the Bay

Area redesignation at 59 FR 49361 and Detroit-Ann Arbor redesignation

at 60 FR 12459.

EPA's statutory analysis was explained in detail in the July 20,

1995 final rulemaking and in the May 1995 Seitz memorandum. To the

extent here pertinent, such portions of that notice, including the

responses to comments, are incorporated herein by reference.

Thus, EPA disagrees with the commentors' view that EPA is not

complying with all the redesignation requirements of section

107(d)(3)(E). EPA has interpreted SIP submission requirements of

section 182(b)(1) regarding reasonable further progress and attainment

demonstration plans, and of section 172(c)(9) regarding contingency

measures to be implemented in the event an area fails to make

reasonable further progress or attain the standard by the attainment

date, not to apply for so long as the area continues to attain the

standard. Since they are not applicable, fulfillment of these

requirements is not necessary to meet the redesignation criteria of

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

The commentor challenges EPA's authority to determine certain SIP

requirements inapplicable, and then bootstraps that argument to

complain that since Grand Rapids has not met these requirements, the

redesignation request only partially fulfills section 107(d)(E)(v). The

commentor argues that this is because the State has not met all

``applicable'' requirements under section 110 and part D; but the

requirements it points to are the very ones that EPA has determined are

inapplicable.

EPA rejects this kind of circular argument. Since EPA has

determined that the statute does not require certain submissions so

long as the area is in attainment, those inapplicable requirements

cannot serve as the basis for concluding that the redesignation request

is defective. Under the criteria of section 107(d)(E)(3) itself, a

State need only meet all applicable requirements, and have a fully

approved plan that contains all required elements. Thus EPA's

interpretation is fully consistent with the criteria of section

107(d)(3). Since EPA has determined that the 15 percent, attainment

demonstration, and section 172(c)(9) contingency plan requirements are

not applicable to Grand Rapids, and has found the SIP to be fully

approvable without them, the Grand Rapids area has fairly met the

criteria of section 107(d)(3). Certainly EPA, after determining that

these requirements are inapplicable, could not in good faith conclude

that the redesignation request is defective because it fails to meet

them.

Thus EPA concludes that, where it has made a determination of

attainment that results in the suspension of requirements, it may rely

on that determination and its consequences in considering the

approvability of a redesignation request.

For the reasons stated above and elsewhere in this document, in the

July 20, 1995 Federal Register notice (60 FR 37366) pertaining to the

Grand Rapids area, in the May 1995 Seitz memorandum, in the Utah notice

(60 FR 36723, July 18, 1995) and in the Cleveland-Akron-Lorain notice

(May 7, 1996, 61 FR 20468), EPA does not believe that the rulemaking

violates any section of the Act, nor does it dilute the redesignation

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

With respect to the full adoption of VOC RACT rules, it should

first be noted that Michigan has submitted and EPA has approved all of

the sections 182(b)(2)(B) and 182(b)(2)(C) VOC RACT requirements

applicable to the Grand Rapids area on September 7, 1994 (59 FR 46182)

and October 23, 1995 (60 FR 54308). Therefore, the EPA assumes that the

commentor is concerned about the section 182(b)(2)(A) requirement of

the Act which requires States to develop VOC RACT rules for sources

``covered by a CTG document issued by the Administrator between

November 15, 1990, and the date of attainment'' for moderate and above

ozone nonattainment areas. The EPA has not granted the Grand Rapids

area a ``waiver'' or ``exemption'' from this requirement either. In

fact, EPA's proposed rulemaking action acknowledges the applicability

of these rules in light of current EPA guidance (See ``Procedures for

Processing Requests to Redesignate Areas to Attainment,'' from John

Calcagni, Director, Air Quality Management Division, dated September 4,

1992),3 since the due date for the CTG RACT rules at issue

preceded the submission of the redesignation request, and consequently,

generally require full adoption, submission and approval of these rules

prior to approval of the redesignation request.4

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\3\ Hereinafter referred to as ``September 1992 Calcagni

memorandum.''

\4\ The EPA also notes that the Synthetic Organic Chemical

Manufacturing (SOCMI) Distillation and Reactor CTG was issued on

November 15, 1993, prior to the submission of the Grand Rapids

redesignation request. That CTG, however, established a due date for

State submittal of the SOCMI Distillation and Reactor rules of March

23, 1995 (See March 23, 1994, 59 FR 13717), a date after submission

of a request to redesignation Grand Rapids to attainment. Thus,

those rules are not applicable for purposes of this redesignation.

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The EPA does, however, believe that in the context of the

particular circumstances of this redesignation, that it is reasonable

and permissible to depart from that policy and instead accept a

commitment to implement these RACT rules as contingency measures in the

maintenance plan rather than require full adoption and approval of the

rules prior to approval of the redesignation. The reasons justifying

this departure from EPA's general policy were explained in the proposed

action and are presented below.

EPA believes that several factors in combination justify allowing

this exception to current EPA policy with respect to the Grand Rapids

redesignation. First, the RACT rules at issue came due after the end of

the ozone season in which Grand Rapids attained the standard and were

not needed to bring about attainment of the ozone standard in Grand

Rapids. Second, the State has demonstrated continued maintenance of the

ozone standard through 2007 without the implementation of these

measures. Third, the State has placed other contingency measures in the

maintenance plan that would bring about far greater emission reductions

than the VOC RACT rules and would therefore be substantially more

effective in terms of correcting violations attributable to local

emissions from the Grand Rapids area that may occur after

redesignation. EPA's analysis of the emission reductions shows that the

implementation of enhanced inspection and maintenance (I/M), Stage II

or low Reid Vapor Pressure (RVP) (to 7.8 psi) programs would bring

about greater reductions than VOC RACT rules for wood furniture

coating, plastic parts coating and industrial clean-up solvents in

aggregate, and substantially greater reductions than any of these RACT

rules individually. Consequently, EPA believes that the other, more

effective contingency measures, should and

[[Page 31834]]

would be implemented first even if the RACT rules were to be fully

adopted prior to redesignation. The detailed analysis of these emission

reduction estimates is contained in the TSD for the proposed rulemaking

action dated March 20, 1996 entitled ``TSD for the Request to

Redesignate the Grand Rapids, Michigan Moderate Nonattainment Area to

Attainment for Ozone and Proposed Revision to the Michigan Ozone SIP

for a Section 175A Maintenance Plan'' and TSD for this action dated XX,

1996, entitled ``Response to Comments on the April 2, 1996 Proposal to

Approve the Redesignation to Attainment for Ozone and Section 175A

Maintenance Plan for the Grand Rapids Area.''

EPA emphasizes that even under this departure from its policy

regarding this action, the requirement for these RACT rules remains an

applicable requirement for purposes of evaluating the redesignation

request since it predated the submission of the request. The

requirement, however, is met in the form of the submission and full

approval of a commitment to adopt and implement these rules as

contingency measures in the maintenance plan. (Under EPA's existing

policy, contingency measures in maintenance plans may consist of

commitments to adopt and implement measures upon a violation of the

standard. See September 1992 Calcagni Memorandum.)

EPA further notes that even without this exception to its general

policy, the State would have been able to have the RACT rules become a

part of the contingency measures in the maintenance plan upon approval

of the redesignation. That could have occurred only after or upon EPA's

full approval of the adopted RACT rules, however. Thus, the only

difference between EPA's general policy and the exception to that

policy described in this action is that a commitment to adopt and

implement the RACT rules in an expeditious manner, rather than fully-

adopted RACT rules, would be among the contingency measures in the

maintenance plan. In light of the combination of factors discussed

above, including in particular the inclusion of other, significantly

more effective, contingency measures in the maintenance plan, EPA

believes that this difference has no significant environmental

consequence and that it is permissible to approve the Grand Rapids

redesignation on this basis. The EPA believes that this exception to

its general policy is legally permissible under the statutory

provisions governing redesignations. As noted above, the VOC RACT

requirements remain applicable requirements under section 107 and EPA

believes that their treatment in the contingency plan as commitments is

consistent with the manner in which EPA has accepted other commitments

to adopt and implement contingency measures in maintenance plans under

section 175A.

The EPA believes that the Grand Rapids area may be redesignated to

attainment notwithstanding the lack of a fully-approved part D NSR

program meeting the requirements of the 1990 Act amendments and the

absence of such a part D NSR program from the contingency plan. This

view has been set forth by the EPA as its policy in the 1994 Nichols

memorandum.

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

approved part D 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 EPA has the authority to establish de

minimis exceptions to statutory requirements where the application of

the statutory requirements would be of trivial or no environmental

value. See also EDF v. EPA, Nos. 94-1044 and 94-1062, Slip Op. at 28-29

(D.C. Cir. April 19, 1996).

Plainly, the part D NSR provisions of section 110 and part D are

requirements that were applicable to the Grand Rapids area 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 EPA have fully-approved a part D NSR program meeting

the requirements of the Act before the areas could be redesignated to

attainment.

Under the EPA'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 Grand Rapids area. For the following

reasons, the EPA 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.

The Grand Rapids area 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 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 part D NSR,

significant point source emissions growth would not occur. Michigan

assumed that part D NSR would not apply after redesignation to

attainment and instead 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, 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 to provide for continued maintenance of the

ozone NAAQS.

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

program might serve would be to ensure that part D 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 part D NSR program must be included

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

the control of the pertinent air pollutants.

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 part C PSD and part D NSR permitting programs. For

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

[[Page 31835]]

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 sections 110(a)(2) (A) and (C)

had been intended to include part C PSD and part D 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

sections 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 EPA 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 EPA 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 part C PSD and part

D NSR from its scope, the EPA believes it is reasonable to interpret

``measure,'' as used in section 175A(d), not to include part D 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.5 This

distinguishes part D 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 EPA believes that those

other required programs are clearly within the scope of the term

``measure.'' 6

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\5\ The EPA is not suggesting that part D NSR and prevention of

significant (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 EPA 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

oxides of nitrogen (NOX) offsets are necessary. See October

1994 Nichols memorandum.

\6\ The 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.

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The EPA'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 EPA is not permitting part D NSR to

be removed without a demonstration that maintenance of the standard

will be achieved. Moreover, the EPA 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 EPA believes

that the part D NSR requirement differs from other requirements, and

does not believe that the rationale for the part D NSR exception

extends to other required programs.

As noted above, this change in policy was detailed in the October

1994 Nichols memorandum 7. The position taken in this action is

consistent with the EPA's current national policy detailed in the

October 1994 Nichols memorandum. That policy permits redesignation to

proceed without otherwise required part D 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.

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\7\ Which has been applied in other areas such as Detroit,

Michigan, Preble, Columbiana, Clinton, Youngstown, Columbus, Canton,

Cleveland, Toledo and Dayton, Ohio.

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The EPA has not ``waived'' the requirement for adoption and

implementation of conformity regulations. Rather, EPA has determined

that those requirements will continue to apply after the area is

redesignated, and therefore need not be fulfilled as a condition of

redesignation. The State of Michigan, in fact, has submitted

transportation and general conformity SIP revisions on November 24,

1994 and November 29, 1994, respectively. The issue is full approval of

these rules prior to redesignation. As presented in the April 2, 1996

(61 FR 14522) proposal, the EPA believes that it is reasonable to

interpret the conformity requirement as not being applicable for

purpose of redesignation under section 107(d). The rationale for this

is based on a combination of two factors. First, the requirement to

submit SIP revisions to comply with the conformity provisions of the

Act continue to apply to areas after redesignation to attainment, since

such areas would be subject to a section 175A maintenance plan.

Therefore, the State remains obligated to adopt the transportation and

general conformity rules even after redesignation and would risk

sanctions for failure to do so. While a redesignation of an area to

attainment enables the area to avoid further compliance with most

requirements of section 110 and part D, since those requirements are

linked to the nonattainment status of an area, the conformity

requirements apply to both nonattainment and maintenance areas. Second,

EPA's federal conformity rules require the performance of conformity

analyses in the absence of state-adopted rules. Therefore, a delay in

adopting State rules does not relieve an area from the obligation to

implement conformity requirements.

Because areas are subject to the conformity requirements regardless

of whether they are redesignated to attainment and must implement

conformity under Federal rules if State rules are not yet adopted, the

EPA believes it is reasonable to view these requirements as not being

applicable requirements for purposes of evaluating a redesignation

request.

For the reasons just discussed, the EPA believes that the ozone

redesignation request for the Grand Rapids area may be approved

notwithstanding the lack of fully approved State transportation and

general conformity rules. This policy was also exercised in the Tampa,

Florida and Cleveland-Akron-Lorain ozone redesignations finalized on

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December 7, 1995 (60 FR 52748) and May 7, 1996 (61 FR 20458),

respectively.

According to the Federal transportation and general conformity

rules, conformity applies to nonattainment areas as well as maintenance

areas. Once redesignated, the Grand Rapids area will be a maintenance

area and 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. 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. Michigan has established a motor

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

Comment: The commentor notes that between December 1, 1990 and June

1, 1995, EPA has redesignated 54 areas from nonattainment to

attainment. Several of these redesignated areas, such as Kansas City,

Kansas/Missouri, Detroit, Michigan, San Francisco, California,

Charlotte, North Carolina; Huntington-Ashland, West Virginia/Kentucky

violated the ozone standard after redesignation. The commentor states

that the EPA's ``permissive'' SIP revision requirements for these areas

made future violations inevitable and ensure that inadequate

contingency measures are adopted. The commentor also notes that the

Grand Rapids and Muskegon areas observed 5 exceedances each after

receiving a determination of attainment.

Response: To date the EPA has redesignated a total of 41 areas

8 to attainment for ozone. Of these areas, only 4, Detroit,

Michigan, Memphis, Tennessee, San Francisco, California, and Kansas

City, Kansas-Missouri, subsequently violated monitored violations of

the ozone standard. EPA believes that this, in fact, demonstrates that

for the vast majority of instances the redesignation policy is

appropriate since most of the redesignated areas have not violated the

ozone NAAQS to date. Furthermore, the Act and Congress contemplated

that such events may occur and therefore, required that the

Administrator fully approve a maintenance plan for the area consistent

with the requirements of section 175A before the area can be

redesignated to attainment. Section 107(d)(3)(E)(iv). Section 175A(d)

requires that a maintenance plan contain contingency provisions deemed

necessary by the Administrator to assure that the State will promptly

correct a violation of the standard which occurs after the

redesignation of the area to attainment. Clearly, the Act and Congress

anticipated that areas redesignated to attainment may violate the NAAQS

in the future and ensured that control measures to remedy the violation

are available. Areas redesignated to attainment have approved

maintenance plans with contingency measures that are and will be

implemented in order to address the violations monitored in the area

after redesignation. The maintenance plans for these areas were deemed

appropriate and adequate for purposes of addressing a future violation

as they were fully approved into the area's SIPs. Furthermore, if the

contingency measures implemented by the State do not address future

violations of the NAAQS, EPA has the authority to call for a plan

revision requiring the adoption of additional control measures and/or

redesignate the area to nonattainment which in turn would require the

area to adopt and implement additional control measures appropriate for

its classification. See sections 110(k)(5) and 107(d)(3).

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\8\ This includes 28 classified and 13 nonclassified areas. The

28 classified areas include the Ohio portion of the Youngstown-

Warren-Sharon area.

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With respect to the adequacy of the maintenance plan for Grand

Rapids, the EPA would like to note that all aspects of the maintenance

plan were reviewed and deemed appropriate. The commentor does not

provide any specific arguments to support the comment.

For clarification purposes, the number of exceedances cited by the

commentor is the total number of exceedances monitored in the Grand

Rapids area and Muskegon area. The Grand Rapids area monitored one

exceedance at each of the three monitors located within the two-county

area in 1995. Taken into account with the previous two years, 1994 and

1993, the Grand Rapids area continues to demonstrate attainment of the

ozone NAAQS with a number of expected exceedances less than or equal to

1.0.

Comment: The commentor states that the April 2, 1996 proposal

jeopardizes the efforts currently being undertaken by the Ozone

Transport Assessment Group (OTAG).

Response: The commentor's statement is unsupported. In the April 2,

1996 proposal, the EPA specifically stated that the redesignation of

the Grand Rapids area to attainment in no way removes the State's

obligation to get further reductions in emissions to address the

broader transport phenomenon currently being investigated as part of

the OTAG process. The issue of transported ozone and ozone precursors

is being addressed by the OTAG which is composed of industry,

environmental groups and Federal, State and local governments from the

eastern part of the United States. The Lake Michigan States of

Illinois, Indiana, Wisconsin and Michigan are all participating, at

some level, in the OTAG process (Phase I/Phase II attainment

demonstrations as provided for in the March 2, 1995 memorandum from

Mary Nichols, Assistant Administrator for Air and Radiation, entitled

``Ozone Attainment Demonstrations''). Phase II of this analysis will

assess the need for regional control strategies and refine local

control strategies. Phase II will also provide the States and EPA the

opportunity to determine appropriate regional strategies to resolve

transport issues including any impacts the Grand Rapids area may have

on ozone concentrations in its downwind areas. The EPA has the

authority under sections 110(a)(2)(A) and 110(a)(2)(D) of the Act to

require emission reductions where appropriate based on the results of

this effort or any other relevant information.

Comment: The commentor stated that exempting ozone nonattainment

areas from compliance with part D NSR regulations presents special

problems since PSD and preconstruction review rules ``do not fully

address how emissions of ozone precursors should be treated to assure

that major new or modified sources do not cause or contribute to a

NAAQS violation.'' In addition, the commentor contends that the Alabama

Power Co. v. Costle 9 court cautioned that ``to exempt de minimis

situations from a statutory command is not an ability to depart from

the statute, but rather a tool to be used in implementing the

legislative design.''

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\9\ EPA's policy to redesignate areas notwithstanding the

absence of fully adopted and approved part D NSR SIP is based, in

part, on EPA's authority to establish de minimis exceptions to

statutory requirements when the requirement would be of trivial or

no value environmentally under the Alabama Power Co. v. Costle court

decision.

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

Response: EPA emphasizes that contrary to the commentor's

contention, ozone nonattainment areas are not exempt from compliance

with part D NSR regulations. The October 1994 Nichols memorandum

suggests that areas that are otherwise eligible for redesignation need

not have a fully approved part D NSR program as a prerequisite to

redesignation since the part C PSD program would apply once the area

has been redesignated to attainment. The part D NSR program

[[Page 31837]]

requirements apply to the area until the area is redesignated to

attainment.

The October 1994 Nichols memorandum's statement that EPA

regulations (40 CFR 51.165(b)(3) and appendix S) ``do not fully address

how ozone precursor emissions should be treated to ensure that major

new or modified sources do not cause or contribute to an ozone NAAQS

violation'' is based on the difficulty in modeling the impact of

emissions from specific sources on ozone formation. The policy,

however, also states that for areas with preconstruction monitoring or

other information that indicate that the area is not meeting the ozone

standard after redesignation to attainment, Appendix S or 40 CFR

51.165(b) apply. These areas should then require major new or modified

sources to obtain VOC emission offsets of at least 1:1 ratio. In

addition, the PSD program allows BACT in place of LAER if the less

stringent control technology can be justified based on an economic,

energy and environmental impacts analysis. Consequently, the State may

impose a more stringent level of control other than what may be

selected as BACT in an area redesignated to attainment but not meeting

the NAAQS. With these elements, the preconstruction review programs can

assure that major new or modified sources achieve the statutory goals

of part D NSR.

With respect to the cautions of the Costle court of the Alabama

Power decision, EPA believes that the exercise of its de minimis

authority in this instance is fully consistent with them. EPA is using

its authority to facilitate the implementation of the statute and the

legislative design behind it. EPA also notes that the D.C. Circuit, the

court that decided the Alabama Power case, recently decided another

case upholding EPA's exercise of its de minimis authority under the

Act. Referring to EPA's authority to create de minimis exceptions as

being inherent in the statutory scheme, the court stated that ``the

same deference due to an agency's reasonable interpretation of an

ambiguous statute may also be due to an agency's creation of a de

minimis exception.'' EDF v. EPA, Nos. 94-1044 and 94-1062, Slip Op. at

28-29 (D.C. Cir. April 19, 1996).

Comment: The commentor contends that the EPA cannot use the May

1995 Seitz memorandum to substitute its own criteria for redesignation

over congressional instruction. The commentor rationalizes that the

part D requirements are defined by the nonattainment or attainment

designation of an area. The EPA, therefore, does not have the

``authority to modify the operation of the Act, and substitute its own

judgement for that of Congress.'' Furthermore, SIP requirements are

joined to the classification of a nonattainment area (see sections 182

and 181).

Response: The May 1995 Seitz memorandum does not substitute EPA's

criteria for congressional instruction. Instead, the May 1995 Seitz

memorandum presents EPA's interpretation of the statutory language of

the Act regarding RFP and related provisions as they relate to areas

demonstrating attainment of the ozone NAAQS.

With respect to the commentor's statement that SIP requirements are

joined to the classification of a nonattainment area, the EPA would

note that the commentor is equating the designation of an area as

attainment or nonattainment with the fact finding of whether an area is

attaining the standard, regardless of its designation. EPA believes

that these are two distinct issues. Title I of the Act, including part

D, contains provisions that distinguish between the concept of

attainment of a NAAQS shown through monitoring data, and an area's

designation as attainment or nonattainment.

The fact that only one of the five criteria for redesignation of a

nonattainment area to attainment is the determination that the area

``has attained the national ambient air quality standard,''

demonstrates that section 107(d)(3)(E)(I) itself recognizes this

distinction. Clearly, the Act anticipates there will be areas

designated nonattainment that are attaining the standard, that there

could be a nonattainment area that meets the air quality criterion for

redesignation to attainment without satisfying the other criteria. Such

an area would need to remain designated nonattainment even though it

was attaining the standard.

In addition, the distinction between attaining the standard and the

designation of an area as attainment or nonattainment is again

demonstrated in the part D provision of section 182(f), which

authorizes EPA to waive the NOX reduction requirements that apply

to ozone nonattainment areas if EPA determines that the NOX

reductions would ``not contribute to attainment of the'' ozone NAAQS.

This provision has been applied on numerous occasions to waive NOX

emission reduction requirements for areas that have attained the

standard, since such reductions in areas that have already attained the

standard would not contribute to attainment. Thus, this provision

clearly contemplates that areas designated nonattainment that have

attained the standard may have certain specified requirements waived.

In conclusion, the Act does not equate the factual issue of whether

an area is attaining the standard with the area's designation status as

attainment or nonattainment. It explicitly expects situations in which

areas designated nonattainment may be attaining the standard. Thus, the

definition of ``nonattainment area'' in section 171(2), which provides

that, for purposes of part D, a nonattainment area means an area that

``is designated ``nonattainment'' with respect to [a particular]

pollutant within the meaning of section 107(d)'' does not contradict

EPA's interpretation of the language of section 171(1) defining ``RFP''

requirements in terms of reductions for the purpose of ``ensuring

attainment.''

EPA believes that, in general, the classification of an area

designated nonattainment for ozone determines the set of requirements

of subpart 2 to which the area is subject.

The issue becomes the substance of some of those requirements. In

general, section 182(b)(1) and section 172(c)(9) apply to moderate

ozone nonattainment areas. EPA, however, has interpreted section

182(b)(1) and 172(c)(9) such that additional SIP submission

requirements are not necessary for an area classified as a moderate

ozone nonattainment area that is attaining the ozone standard, for so

long as the area continues to attain the standard. This is not a waiver

of the requirement that by their terms clearly apply; it is a

determination that certain requirements are written so as to be

applicable only if the area is not attaining the standard. If prior to

the redesignation of such an area to attainment, the area violated the

ozone NAAQS, that determination would no longer apply. That area will

once again be faced with an obligation to submit SIP revisions pursuant

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

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

a way continue to apply solely by virtue of the area's classification

and designation as a moderate ozone nonattainment area. For example,

the VOC RACT requirement of section 182(a)(2) applies regardless of

whether an area is attaining the standard. Similarly, the requirements

of part D new source review continue to apply to areas designated

nonattainment solely by virtue of their continuing nonattainment

designation.

Comment: The Administrative Procedures Act (APA) requires that

``substantive rules of general applicability'' be subjected to public

comment before promulgation. EPA's

[[Page 31838]]

guidance interpreting section 107(d)(3)(E) requirements constitutes

substantive rules of general applicability and thus, required to be

subjected to public comment.

Response: EPA's reference to and reliance on guidance documents

interpreting section 107(d)(3)(E),10 all of which are either

published or publicly available and a part of the record of the July

20, 1995 rulemaking and this rulemaking, is in no way illegal under

provisions of either the Act or the APA. The commentor cites the APA's

requirement that ``substantive rules of general applicability'' be

published in the Federal Register and subject to public comment before

promulgation. These documents do not purport to be anything but

guidance. That is precisely why EPA performed the July 20, 1995

rulemaking, and this rulemaking action, a notice and comment rulemaking

to take comment on its statutory interpretations and factual

determinations in order to make a binding and enforceable determination

regarding the Grand Rapids area. The April 2, 1996 notice referred to

EPA's policy memorandum not as binding the Agency to adopt the

interpretations being proposed therein, but rather as useful

descriptions of rationale underlying those proposed interpretations.

EPA has explained the legal and factual basis for its rulemaking in the

April 2, 1996 rulemaking and afforded the public a full opportunity to

comment on EPA's proposed interpretation and determination fully

consistent with the applicable procedural requirements of the APA.

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

\10\ It is presumed that the commentor is referring to such

documents as the October 1994 Nichols, May 1995 Seitz, and September

1992 Calcagni memoranda as well as the General Preamable (April 16,

1992, 57 FR 13498).

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

Comment: The 1993 Nichols and 1995 Seitz memoranda are inconsistent

with earlier redesignation guidance (General Preamble, Calcagni and

Shapiro memoranda) pertaining to required SIP revisions for

redesignations.

Response: The October 1994 Nichols memorandum and the May 1995

Seitz memorandum represented modifications of earlier policies. That

does not necessarily mean these memoranda were by any means completely

inconsistent with prior policies. For example, the May 1995 Seitz

memorandum interpreted the more specific RFP requirements of section

182(b)(1) in a manner consistent with EPA's previous interpretation of

the more general section 171 and 172 requirements. Furthermore, EPA

notes that it is permissible to revise its policies provided that the

revised policies, as is the case with these, are legally justified and

reasonable.

Comment: The commentor contends that ozone remains a significant

public health threat in Grand Rapids since it fails to demonstrate

attainment of the ozone NAAQS. The commentor proceeds to discuss an

analysis of eight hour ozone concentration averages in the Grand Rapids

Consolidated Metropolitan Statistical Area for 1995. The commentor

states that on 26 days at least one monitor recorded ozone

concentrations at or above 80 parts per billion (ppb) and represent

days when at-risk populations were exposed to unhealthy levels of air

pollution. The commentor states that by examining ground level wind

directions and speeds and comparing results of monitors upwind (Jenison

or Parnell) from Grand Rapids to downwind observations (Parnell or

Jenison), the commentor has determined that 18 of these episodes

indicate that local emissions significantly exacerbate the formation of

unhealthy levels of ozone.

Response: The EPA determines attainment and nonattainment based on

the current NAAQS of 0.12 parts per million (ppm) not 80 ppb.

Therefore, the EPA must evaluate the eligibility for redesignation on

the basis of the current, health based standard. The EPA agrees with

the commentor's contention that ozone and ozone precursor emissions

from the Grand Rapids urbanized area may contribute to ozone

concentrations in downwind areas (downwind areas are relative to wind

directions) by virtue of the fact that the area is an urbanized area.

Nonetheless, the Grand Rapids area has demonstrated attainment of the

current ozone NAAQS in the three year period 1992-1994, and continues

to demonstrate attainment for the period 1993-1995.

The EPA evaluated the winds on July 13, 1995, where exceedances of

the ozone NAAQS were recorded at all 3 monitors in the Grand Rapids

area: Jenison at 0.133 ppm; Grand Rapids at 0.163 ppm; and Parnell at

0.134 ppm. Given that the winds were predominantly from the southwest

and west/southwest, one would deduce that the exceedances were a result

of ozone transport into the area. This is especially likely in view of

the fact that the Jenison monitor, which is the Grand Rapids upwind

monitor,11 recorded an ozone concentration of 0.133 ppm.

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

\11\ An upwind monitor would indicate background levels of ozone

entering an area.

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

Comment: The commentor acknowledges that emissions from the

Milwaukee-Chicago-Gary corridor were transported north out of the basin

on June 16, 1994, under high south/south-southeasterly winds. However,

the commentor attributes an exceedance recorded in Grand Rapids on June

17, 1994, at a level of 149 ppb, to emissions from the Grand Rapids

area since winds were still to light.

Response: The EPA acknowledges that local emissions, those from the

Grand Rapids urbanized area, may affect ozone concentrations in the

area and any downwind area. However, the extent of any contribution to

ozone levels from the Grand Rapids area cannot be determined with any

degree of certainty based on the information provided by the commentor,

particularly in light of indications that the Grand Rapids area is the

recipient of significant levels of transported ozone. Regardless of its

origin, this exceedance does not constitute a violation of the ozone

NAAQS. Thus, the area continues to be eligible for redesignation based

on monitoring data showing no violations of the ozone NAAQS for the

periods 1992-1994 and 1993-1995.

Comment: The commentor suggests that the 1992-1994 period cannot be

used to demonstrate improvements in air quality due to permanent and

enforceable emission reductions. Otherwise, the Chicago-Milwaukee-Gary

severe-17 ozone nonattainment area could be downgraded to moderate

ozone nonattainment. The commentor also alludes to the Detroit's

assessment of contingency measures necessary to reduce domain-wide

peaks in Tiverton, Ontario (Canada) below 200 ppb.

Response: The November 6, 1991 (56 FR 56694) classifications served

to determine a control strategy adequate to achieve emissions

reductions that would improve the air quality in an area to a level

that would demonstrate attainment of the NAAQS. Consequently as an area

implemented its control strategy it is anticipated that the air quality

would continually improve until the area demonstrated attainment of the

NAAQS. Upon demonstration of attainment, an area could request

redesignation pursuant to section 107(d)(3) of the Act. The EPA has not

allowed any area to reclassify based on 1992-1994 monitoring data or

any other data sets outside of the data sets used in the November 1991

designations and classifications. Furthermore, pursuant to the General

Preamble (April 16, 1992, 57 FR 13498), it is appropriate to

redesignate any area to attainment based on the most recent consecutive

3 years of air quality data demonstrating attainment of the ozone NAAQS

if the area satisfies the other redesignation criteria of section

107(d)(3)(E) including a demonstration that the improvement

[[Page 31839]]

in air quality was due to permanent and enforceable emission

reductions. Since the Grand Rapids area demonstrated attainment of the

ozone NAAQS in the period 1992-1994, it is an appropriate period to be

used as the basis for redesignation of the area to attainment

particularly since the area has also satisfied the other section

107(d)(3) redesignation criteria including a reasonable demonstration

that of permanent and enforceable emission reductions were the cause of

the improvement in air quality in the area. The Grand Rapids area

achieved 0.6 and 2.4 tons per day of VOC and NOX emission

reductions between 1991 and 1994. In addition, since the Grand Rapids

area is the recipient of significant levels of transported ozone,

Michigan also attributes the improvement in air quality, in part, to

emission reductions achieved throughout the Lake Michigan region.

The comment regarding Detroit, Michigan is unclear and irrelevant

to this rulemaking action.

Comment: Based on a table comparing number of days with

temperatures above 90 degrees and number of monitored exceedances in

Chicago, the commentor states that the years for which the Grand Rapids

area demonstrated attainment, 1992-1994, fail the requirement that

attainment can not be due to ``unusually favorable meteorology'' since

that time period represents ``a statistically significant (Chi

square=14.6, Alpha=0.005) negative deviation'' from the number of days

conducive to formation of ozone or days with temperatures above 90

degrees.

Response: Section 107(d)(3)(E)(iii) requires that, for the EPA to

approve a redesignation, it must determine that the improvement in air

quality is due to permanent and enforceable reductions in emissions.

The September 1992 Calcagni memorandum, at page 4, clarifies this

requirement by stating that ``[attainment 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

April 2, 1996 Federal Register notice, the Grand Rapids area has

reasonably 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 a nonattainment year, 1991 to an attainment year,

1994) of VOC and NOX achieved primarily through implementation of

the Federal Motor Vehicle Control Program (FMVCP) from 1991-1994, in

line with the September 1992 Calcagni memorandum. The total reductions

achieved from 1991 to 1994 were 0.6 tons of VOC and 2.4 tons of

NOX per day. The State claimed credit only for emission reductions

achieved as a result of implementation of this federally enforceable

control measure. The emission reductions claimed are conservative since

they do not include the emission reductions resulting from other

control measures and programs implemented during this time period, such

as the VOC RACT fix-ups and catch-ups. The State, therefore, adequately

demonstrated that the improvement in air quality is due to permanent

and enforceable emission reductions. Furthermore, the State has always

maintained that the Grand Rapids area is significantly affected by

ozone transported from the Chicago-Milwaukee-Gary severe-17 ozone

nonattainment area. Consequently, emission reductions occurring in

these areas are also attributable to the improvement in air quality in

the Grand Rapids area.

With respect to the commentor's contention that meteorological

conditions were not conducive to ozone production during the 1992-1994

period, the commentor provided an analysis of the number of days with

temperatures equal to or greater than 90 degrees Fahrenheit at

Chicago's O'Hare airport and the total number of monitored exceedance

days from 1981-1995 throughout the Lake Michigan area. Since, the data

is not limited to the Grand Rapids area, i.e. the number of 90 degree

days in Chicago not Grand Rapids and the number of monitored exceedance

days throughout the Lake Michigan area not only Grand Rapids, it would

not be accurate to conduct a statistical analysis or draw conclusions

pertaining to the Grand Rapids area based on this data, particularly in

light of the transport phenomena affecting Grand Rapids. EPA, however,

conducted a general statistical analysis of the meteorological

parameters in the Grand Rapids area of maximum monthly temperatures and

days with temperatures greater than 90 degrees Fahrenheit for the

periods of April through September, 1992 through 1994, with the 10-year

(1982-1991) averages for these parameters. The 1992-1994 averages for

these parameters agreed with those for the 10-year averages with only

minor differences. Based on averaged parameters, it can be concluded

that the 1992-1994 period was typically conducive to ozone formation.

Finally, the EPA notes that the Grand Rapids area has been in

attainment for the two 3-year periods (1992-1994, and 1993-1995), 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: The commentor contends that the Ottawa County ozone

monitoring network is inadequate to permit redesignation. The commentor

notes that every monitor located on the eastern shoreline of Lake

Michigan recorded a violation of the NAAQS in 1995, and finds it

inconceivable that residents of southeastern Ottawa County were not

exposed to ozone at levels above the NAAQS. This, the commentor

concludes, should compel the EPA to require the State to site a monitor

along the lakeshore in Ottawa County. The commentor is particularly

concerned that EPA refuses to acknowledge that violations recorded at

the Holland monitor, in Allegan County, which it contends, indicates

violations of the NAAQS in Ottawa County. The commentor further states

that it agrees with Michigan's contention that the Holland monitor ``*

* * is representative of the conditions in Ottawa County.''

Response: As discussed in detail in the April 2, 1996, EPA believes

that the monitoring network for the Grand Rapids area satisfies the

requirements of 40 CFR part 58, appendix D. Michigan established a

number of monitors on the west side of the State for purposes of

gathering field data for the Lake Michigan Ozone Study (LMOS) during

1989-1991. Based on the field study data, the State decided to locate

an ozone monitor in Holland, an urbanized area in Allegan County (just

south of Ottawa County). However, at the encouragement of EPA, the

State reestablished a monitor in Ottawa County, i.e. the Jenison site,

in 1994. This in addition to the two monitors that already exist in

Kent County. Thus, an ozone monitor is established in Ottawa County,

however, the monitor is not at the lakeshore but inland and represents

background ozone concentrations for the Grand Rapids urban area. The

EPA has not taken any action to disapprove the network, but continually

works with the State to improve the quality of the ambient monitoring

network throughout the State. The fact that EPA and the State undertake

actions that may result in improvements to the network, does not mean

that EPA views the monitoring

[[Page 31840]]

data which shows attainment of the standard in the Grand Rapids area as

being inadequate or unreliable. EPA continually reviews monitoring

networks to determine how they can be improved. However, the fact that

a monitoring network is susceptible to improvement does not mean that

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

that the data collected from the existing network should be ignored or

discounted. EPA believes that the monitoring data fully supports a

determination that the Grand Rapids area has attained the standard and

is, therefore, eligible for redesignation to attainment. EPA does not

believe that there is a basis for discounting the data which shows

attainment of the standard.

EPA further notes that the additional monitor established in Ottawa

County as part of the ongoing network improvements did not monitor an

exceedance in 1992 when it operated for part of the ozone season, and

has monitored only one exceedance since the monitor was reestablished

in 1994. While that monitor has yet to be in operation for three full

years, those initial results support the finding that the area has

attained the standard. As a violation does not occur unless four

exceedances occur at a single monitor over a three-year period, the

data from the Grand Rapids area support the determination that the area

has attained the standard and is, therefore, eligible for

redesignation.

Michigan contends that the Holland monitor ``* * * data is included

in this request as representative of levels of transported ozone coming

into the area.'' This can be interpreted to mean that the Holland

monitor is representative of ozone that is being transported into

Ottawa County. However, as explained in the proposal, the Allegan

monitor cannot be considered part of the Grand Rapids area since it is

outside the two county nonattainment area and the State of Michigan has

never formally requested that it be made part of the Grand Rapids

area's monitoring network. Furthermore, the Holland monitor is not

representative of ozone concentrations resulting from ozone precursor

emissions from the Grand Rapids area. The EPA is making its conclusion

about the air quality data that has been collected from the valid

network that currently exists in the Grand Rapids area.

Comment: The commentor is concerned about the validity of

monitoring data collected at the Jenison monitor, specifically, the

commentor alleges that of the years 1992-1994 only the 1994 data set is

usable and is supplemented with 1995. In addition, the commentor

questions the interpretation of the missing daily ozone value for July

14, 1995, from the Ottawa County ozone monitor. The commentor suggests

that the missing daily ozone value for July 14, 1995 cannot be assumed

to be less than the level of the standard since the maximum ozone

concentration on the preceding day exceeded the standard.

Response: The Jenison monitor is one of three monitors in the Grand

Rapids area. The other two monitors have operated in Kent County since

1980 and recorded a complete data set for 1992-1994 that demonstrate

attainment of the ozone NAAQS consistent with EPA guidance including

the September 1992 Calcagni memorandum and January 1979 document

entitled ``Guideline for the Interpretation of Ozone Air Quality

Standards''. The April 2, 1996 proposal noted that the Jenison monitor

operated for 63 percent of the 1992 ozone season with no exceedances of

the ozone NAAQS. The monitor was relocated to Holland, as discussed

previously, based on the LMOS. However, at the encouragement of EPA,

the State reestablished a monitor in Ottawa County, i.e. at Jenison, in

1994. Thus, the Jenison monitor has partial 1992 data and complete data

for 1994 and 1995. No exceedances of the ozone NAAQS were recorded in

1992 and 1994 and one was recorded in 1995 at 0.133 ppm. As noted in

the April 2, 1996 proposal, the ``Guideline for the Interpretation of

Ozone Air Quality Standards'' suggests that evaluation ozone data

requires the use of all ozone data collected at a site during the past

3 calendar years. If no data are available for a particular year then

the remaining years are used. Since 1992 data is incomplete and 1993

data is unavailable for this monitor, it would suffice to use ozone

monitoring data for the remaining most recent calendar years, 1992-

1995. The Ottawa County monitor demonstrates attainment of the ozone

NAAQS with the average number of expected exceedances of 0.5, a value

less than 1.0.

It is unclear to EPA why the commentor believes that the missing

daily ozone value for July 14, 1995 has been assumed to be less than

the level of the standard. AIRS reports consistently show that there

were no missing days assumed to be less than the standard for the

Ottawa County monitor for 1995. The monitor captured 179 of a potential

183 days of monitoring data (98 percent data completeness). The 4

missing days (183-179=4) were not assumed to be less than the standard,

but rather were accounted for in the calculation of the number of

expected exceedances consistent with 40 CFR 51 (appendix H). The four

missing days of data included July 14, 1995.

Comment: The commentor states that Michigan fails to comply with

the section 176 conformity requirements and provides discussion to

support the comment.

Response: This specific comment was submitted by the commentor to

EPA in response to the EPA's February 2, 1996 (61 FR 3815-3817) direct

final rulemaking to approve Michigan's general conformity SIP. As a

result the EPA withdrew the direct final rulemaking in an action

published on March 25, 1996 (61 FR 12030). This comment is not relevant

to redesignation and therefore, will be addressed in the final

rulemaking action on Michigan's general conformity SIP. See also the

discussion above in the response on conformity requirements as they

pertain to redesignation.

Comment: The commentor states that the Michigan City, Indiana ozone

monitor (18-091-0005) in LaPorte County in northeastern Indiana

recorded six exceedances during 1995, including daily ozone values of

0.154 ppm and 0.149 ppm. The commentor argues that several of the

exceedances recorded in the Michigan City area are attributable, in

part, to ozone and precursors originating in west Michigan.

The commentor notes that in response to EPA's June 2, 1995 proposed

rulemaking pertaining to the determination of attainment for the Grand

Rapids area, they submitted a comment regarding LMOS modeling for June

20-21 (Episode 4) which confirms that emissions from western Michigan

contribute to exceedances of the ozone NAAQS. The commentor further

notes that Episode 4 conditions are ``associated with a lesser, yet

significant, number of historical ozone episodes.''

The commentor suggests that EPA stated that it has an ``affirmative

responsibility'' to address transported emissions from upwind areas

that significantly contribute to air quality problems in downwind

areas. See 60 FR 37368.

The commentor notes that Michigan only cites LMOS modeling which

shows that ozone and ozone precursors are transported into the Grand

Rapids area. The commentor is concerned that Michigan refuses to

acknowledge LMOS modeling that indicates that ozone and precursor

emissions originating from Grand Rapids under certain meteorological

conditions which occur with regular frequency, contribute to

[[Page 31841]]

exceedances in downwind areas, including Michigan City, Indiana.

Response: The EPA has reviewed wind speeds and wind directions in

Grand Rapids and Michigan City, Indiana for the 6 days on which

exceedances were recorded in Michigan City, Indiana in 1995. The winds

on the days at issue in Grand Rapids were predominantly from the south/

southwest, i.e. into the Grand Rapids area with the exception of June

15, 1995, when the winds in Grand Rapids were predominantly from the

easterly. The winds in Michigan City on the same days were also

predominately from the south/southwest. Since Michigan City, Indiana is

south-southwest of the Grand Rapids area, the exceedances on these days

in 1995 were clearly not attributable to emissions from the Grand

Rapids area but likely from the Chicago-Gary severe-17 nonattainment

area.

The commentor has not clearly indicated what version of the

modeling is used as the basis of their comment. It must be emphasized

that the version of the LMOS modeling approved for regulatory purposes

by EPA on December 15, 1994, for Episode 4 (June 20-21), does not

clearly indicate the extent of the contribution of emissions from the

Grand Rapids area to exceedances in the Michigan City, Indiana or any

other downwind area. Since the extent of Grand Rapids' contribution to

exceedances downwind cannot be determined with any degree of certainty

given the information currently available, it would be premature for

EPA to issue a finding pursuant to section 110(a)(2)(D). The commentor

does not provide any additional information that would cause the EPA to

determine that the imposition of additional control requirements in the

area is warranted at this time. As further information becomes

available, however, such a finding may be warranted.

In light of the preliminary information currently available, EPA

does not believe that it would be justifiable to disapprove the

redesignation request on the basis of concerns regarding transported

emissions. The redesignation does not mean, however, that the Grand

Rapids area might not have to achieve additional reductions pursuant to

other provisions of the Act if it is determined in the future that such

reductions are necessary to deal with transport from the Grand Rapids

area to downwind areas. Finally, EPA would note that the issue of

transported ozone and ozone precursors is being addressed by EPA

through the OTAG which is composed of industry, environmental groups,

Federal, State and Local governments from the eastern half of the

United States. The Lake Michigan States of Illinois, Indiana,

Wisconsin, and Michigan are all participating, at some level, in the

OTAG process (Phase I/Phase II attainment demonstrations as provided

for in the March 2, 1995 memorandum from Mary Nichols, Assistant

Administrator for Air and Radiation, entitled ``Ozone Attainment

Demonstrations''). In addition, Phase II of this analysis will assess

the need for regional control strategies and refine local control

strategies. Phase II will also provide the States and EPA the

opportunity to determine appropriate regional strategies to resolve

transport issues including any impacts the Grand Rapids area may have

on ozone concentrations in its downwind areas.

The commentor references the July 20, 1995 final rule regarding the

determination of applicability of certain RFP and attainment

demonstration requirements to the Grand Rapids area, and claims that

EPA stated that it has an ``affirmative responsibility'' to address

transported emissions from upwind areas that significantly contribute

to air quality problems in downwind areas. EPA was, in fact, responding

to a comment from the same commentor regarding the impacts of Grand

Rapids on downwind areas. The EPA stated that it has the authority

under sections 110(a)(2)(A) and 110(a)(2)(D) of the Act to ensure that

the required and necessary reductions are achieved in Grand Rapids,

should subsequent modeling become available, such as the modeling that

will be available through completion of the Phase II analysis, or any

other subsequent modeling data. The EPA acknowledged in that final rule

and in the April 2, 1996 proposal to redesignate Grand Rapids that

preliminary modeling indicates that western Michigan is the recipient

of transported ozone and that the area may also contribute to ozone

concentrations in downwind areas. However, the LMOS modeling is being

refined and is intertwined with the OTAG Phase I/Phase II process.

Indeed, should the Phase II or any other modeling become available that

demonstrates that reductions in ozone precursor emissions from the

Grand Rapids area are necessary, the EPA has the authority to ensure

that these emission reductions are achieved. In summary, currently no

technically supportable basis exists for EPA to exercise its

responsibility to take appropriate action to seek additional emission

reductions in the Grand Rapids area.

Finally, Michigan submitted LMOS modeling which illustrated ozone

and ozone precursor transport into the Grand Rapids area in the context

of an overwhelming transport petition. Since Episode 4 models

northeasterly wind patterns, it would not be relevant in demonstrating

overwhelming transport into the area.

Comment: The commentor states that the maintenance plan submitted

by Michigan is inadequate because Michigan's attainment emission

inventory does not comply with EPA requirements and implies that there

are insufficient enforceable pollution control measures available to

ensure attainment and promptly correct any violations. The commentor

appears to be saying that the SIP revision requirements of section 110

and part D should initially reduce ozone pollution, and subsequently

maintain the improvement in air quality. The commentor also suggest

that the emission inventory projections in the maintenance plan

underestimate emissions growth in Grand Rapids.

Response: The commentor does not provide support for the contention

that the attainment emission inventory does not comply with EPA

requirements. EPA has reviewed Michigan's attainment emission inventory

and believes that the inventory, in fact, is sufficient and meets EPA's

requirements and guidance regarding emission inventories. With respect

to the sufficiency of control measures necessary to ensure attainment

and promptly correct a violation, the EPA would note first that

Michigan has included inspection and maintenance, Stage II, low Reid

Vapor Pressure fuel at 7.8 psi, and VOC RACT for major plastic parts

coating, wood furniture coating and industrial clean-up solvents as

control measures to be implemented to address a violation not

attributable to transport. EPA believes that these control measures are

adequate for purposes of contingency measures. The control measures

already implemented in the area were obviously sufficient to allow the

area to attain the ozone standard. Furthermore, the State has

demonstrated that VOC and NOX emissions will continue to decrease

from the 1991 atttainment year levels through the 10 year maintenance

period.

EPA agrees with the commentor that emission controls under section

110 and part D should reduce ozone pollution and subsequently maintain

improvements in air quality. Although Michigan did not claim permanent

and enforceable emission reductions credit for emission reductions

achieved as a result of implementing section 110 and part D

requirements, the State must continue to implement these programs even

after redesignation.

[[Page 31842]]

It should be recognized that approval of the redesignation is not

expected to result in an increase in ozone precursor emissions. In

fact, a decrease in both VOC and NOX emissions from the Grand

Rapids area is expected over the 10-year maintenance period. See 61 FR

14522, April 2, 1996. It should be noted that redesignation does not

allow States to automatically remove control programs which have

contributed to an area's attainment of a NAAQS for any pollutant. The

EPA'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 modeling

12 or adequate justification 13, is approved by the EPA. In

this case no previously implemented control strategies are being

relaxed as part of this redesignation.

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\12\ 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 EPA's current Guideline on Air Quality Models.

\13\ See September 1992 Calcagni memorandum.

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Further, apart from Title I requirements related to the cessation

of the Grand Rapids 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 FMVCP

requirements.

The commentor does not provide any support for its contention that

the emissions growth projections in the maintenance plan are

underestimated for the Grand Rapids area. The emissions projections in

the maintenance plan are based on the 1991 emission inventory developed

for the LMOS modeling effort. The projections are based on growth

factors extracted from the EPA's Economic Growth Analysis System and

supplemental information used in the development of emission

projections. Point source growth factors for utilities are based on

source specific data provided by the utility companies. Area source

growth factors were supplemented with population and gasoline sales/

marketing data. The stationary source emission estimates (point and

area) were developed using the geocoded emissions modeling and

projections system (GEMAP) which employs projection methodologies

equivalent to those in the EPA's Emissions Projections System. EPA's

MOBILE5a model was used to develop the mobile source emission

estimates. Therefore, the emission projections methods are consistent

with EPA's guidance.

Comment: The commentor cites two separate provisions of the Act,

sections 182(c)(9) and 175A(d) that demand that maintenance plans

include ``specific measures to be undertaken if the area fails to meet

any applicable milestone. Such measures shall be included in the plan

revision as contingency measures to take effect without further action

by the State or Administrator upon a failure by the State to meet the

applicable milestone.'' Section 182(c)(9). The commentor argues that

Michigan's triggering mechanism is patently illegal and unacceptable

under the Act.

The commentor states that the triggering mechanism defeats the

meaning and purpose of the ozone standard (40 CFR 50.9) in that the

ozone standard does not account for transport, i.e. an area is either

in attainment or nonattainment due to observed ozone violations and

that the designation and classification are purely a function of

observed ozone values and not a function of the origin of ozone.

The commentor also questions the evaluation criteria utilized by

Michigan, calling it ``extremely suspect.''

Response: Section 182(c)(9) contains the requirements for serious

and above areas to adopt contingency measures pertaining to RFP, and is

not relevant to this redesignation. Section 175A(d), however, is

relevant and states that `` * * * plan revision submitted under this

section shall contain 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.'' The mechanism that would trigger the

implementation of contingency measures in the Grand Rapids area is ``an

actual monitored ozone violation of the NAAQS, as defined in 40 CFR

50.9, determined not to be attributable to transport from upwind

areas.'' The EPA believes that this triggering mechanism is appropriate

for the Grand Rapids area, given the overwhelming evidence

demonstrating that the area is the recipient of transported ozone and

ozone precursors from the Milwaukee-Chicago-Gary severe-17

nonattainment areas. EPA believes that this triggering mechanism

satisfies the requirement of section 175A(d), because if a violation is

due to transport, then control measures implemented in the Grand Rapids

area will not likely correct the violation. Thus, when violations are

occurring as a result of transport, an attempt to impose control

measures in the Grand Rapids area would be futile. EPA believes that it

is implicit in the Act that the purpose of control measures is to

achieve attainment.

Because violations due to transport are not accounted for in the

ozone NAAQS at 40 CFR 50.9 does not mean that transport cannot be taken

into account for purposes of implementing a control strategy to correct

a violation. Although areas are designated and classified based on

monitored violations, regardless of their origin, areas redesignated to

attainment will be provided an opportunity to implement contingency

measures to correct the violation before EPA would exercise its

authority to redesignate the area back to nonattainment.

As part of the contingency plan for the Grand Rapids area, Michigan

will conduct a technical analysis of meteorological conditions leading

up to and during the exceedances contributing to a violation in order

to determine local culpability. The commentor is concerned about the

criteria to be used to evaluate transport, although the commentor does

not provide any specifics about what criteria they are concerned.

Furthermore, EPA notes that any analysis conducted by Michigan to

determine local culpability will be subject to a public process. As

part of the contingency plan, Michigan has incorporated procedures to

involve EPA and afford the public the opportunity to review and

participate in the determination of whether transport or local sources

are reasonable for a violation.

Comment: The commentor contends that the only contingency measure

actually adopted by Michigan is low RVP to 7.8 psi during the ozone

season. The commentor notes that implementation of the I/M program was

stayed by the Governor of Michigan on December 29, 1994, and that the

Michigan legislature rescinded implementation of the Stage II vapor

recovery program once the EPA promulgated its on board canister rule.

Response: The Grand Rapids moderate ozone nonattainment area was

required to adopt and implement a basic I/M program. An enhanced I/M

program was adopted by Michigan and fully approved by EPA into the SIP

on October 11, 1994 (59 FR 51379), and was to have commenced operation

on January 1, 1995. By the end of 1994, the Grand Rapids area had

attained the ozone standard and was therefore, eligible for

redesignation. The January 5, 1995 (60 FR 1735) revisions to the

national I/M rule stipulate that areas

[[Page 31843]]

otherwise eligible for redesignation may submit the following in order

to satisfy the I/M component of the SIP: legislative authority for

basic I/M; a provision in the SIP providing that I/M be placed in the

contingency measure portion of the maintenance plan; and an enforceable

schedule and commitment by the Governor or his designee for adoption

and implementation of a basic I/M program upon a triggering event.

Also, see September 17, 1993 memorandum from Michael H. Shapiro, Acting

Assistant Administrator for Air and Radiation, entitled, ``SIP

Requirements for Areas Submitting Requests for Redesignation to

Attainment of the Ozone, Carbon Monoxide NAAQS on or after November 15,

1992,'' 14 memorandum. With this, the Governor stayed the

implementation of the I/M program in the Grand Rapids area. The Grand

Rapids area, therefore, only needs to satisfy the items noted above.

The legislative authority to implement an I/M program is contained in

Michigan's Enrolled House Bill No. 4165, which provides that I/M may be

implemented as a contingency measure consistent with an area's

maintenance plan if it is not necessary for maintenance. The section

175A maintenance plan provides for the implementation of I/M as a

contingency measure and also provides an enforceable schedule for the

implementation of I/M as a contingency measure.

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\14\ Hereinafter referred to as the ``September 1993 Shapiro

memorandum.''

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With respect to the commentor's concern regarding the rescission of

Stage II, section 10c(3) of Michigan's Enrolled Senate Bill No. 726 for

Stage II suspends implementation of the Stage II program once EPA has

promulgated the final onboard rule. However, section 10c(3) also

retains the authority to implement Stage II as a contingency measure in

a maintenance plan for an area redesignated to attainment. Thus, once

Grand Rapids is redesignated to attainment, Stage II may be implemented

by the State as a contingency measure pursuant to the maintenance plan.

In conclusion, the State has adopted legislative authority to

implement I/M, Stage II and low RVP to 7.8 psi as contingency measures.

Comment: The commentor notes that the January 24, 1996 letter from

Dennis Drake, Chief of the Air Quality Division, Michigan Department of

Environmental Quality to Valdas Adamkus, Regional Administrator, Region

5, and the State's April 11, 1996 contingency plan SIP revision imply

that the VOC non-CTG RACT rules were at least adopted when in fact they

were not.

Response: The January 24, 1996 letter merely notified EPA of the

State's intention to revise the Grand Rapids area's maintenance plan to

include a commitment to adopt and implement non-CTG VOC RACT rules for

major sources of plastic parts coating, wood furniture coating and

industrial clean-up solvents as contingency measures for the Grand

Rapids area. The actual revision to the maintenance plan SIP, dated

April 11, 1996, states that rules to apply non-CTG RACT to major

sources of plastic parts coating, wood furniture coating and industrial

clean up solvents have been ``drafted.'' The State specifically notes

that the promulgation process requires additional steps including

``approval of the proposed rules by the Office of Regulatory Reform,

the Legislative Services Bureau, and the Joint Legislative Committee on

Administrative Rules.'' The State clearly indicated that the rules are

draft and additional steps are necessary for promulgation. Furthermore,

EPA explained in the April 2, 1996 proposal that the contingency

measure for this element is that the State would commit to adopt and

implement non-CTG VOC RACT rules for the three source categories noted

previously.

Comment: The commentor suggests that the State's failure to adopt

and implement the VOC non-CTG RACT rules in accordance with section

182(b)(2)(A) of the Act violates the sections 110 and 107(d)(3)(E)(v)

requirements. Section 107(d)(3)(E) requires the State to adopt a

complete part D nonattainment plan, which these non-CTG VOC RACT rules

are part of, prior to redesignation.

Response: In the April 2, 1996 proposal, the EPA acknowledges that

the section 182(b)(2)(A) requirement for non-CTG VOC RACT rules is an

applicable requirement and that current EPA redesignation policy

requires that these rules be fully adopted, and if not necessary for

maintenance of the NAAQS, be moved to the contingency plan portion of

the maintenance plan. However, the EPA, in this instance, proposed an

exception to this policy based on a combination of three factors as

previously discussed. The commentor, however, has not provided comments

specific to the rationale used as the basis of the exception.

EPA emphasizes that, even without this exception to its general

policy, the State would have been able to have the RACT rules become a

part of the contingency measures in the maintenance plan upon approval

of the redesignation. However, that could have occurred only after or

upon EPA's full approval of the adopted RACT rules. Therefore, the only

difference between EPA's general policy and the exception to that

policy proposed for Grand Rapids is that a commitment to adopt and

implement the RACT rules in an expeditious manner, rather than fully-

adopted RACT rules, would be among the contingency measures in the

maintenance plan. As previously discussed, the EPA believes that this

exception to its general policy is legally permissible under the

statutory provisions governing redesignation. The VOC RACT requirements

remain applicable requirements under section 107 and EPA believes that

their treatment in the contingency plan as commitments is consistent

with the manner in which EPA has accepted other commitments to adopt

and implement contingency measures in maintenance plans under section

175A.

Comment: The commentor states that the contingency measures

provided for in the maintenance plan are inadequate and illusory. The

commentor further elaborates that none of the contingency measures are

adopted with the necessary legislative authority or described with

sufficient specificity, nor do they include milestones to insure prompt

implementation as required by section 175A(d) or EPA guidance.

Response: Contrary to the commentor's statement, legislative

authority is adopted for three of the contingency measures, I/M, Stage

II and low RVP to 7.8 psi. Further, the State has submitted an

enforceable commitment to implement the three non-CTG VOC RACT rules.

Neither the Act nor redesignation guidance require milestones to track

the State's compliance with adoption and implementation of contingency

measures. The September 1992 Calcagni memorandum suggests that the

contingency plan identify the contingency measure to be adopted,

provide a schedule and procedure for adoption and implementation, and

provide a specific time limit for action by the State. The Grand Rapids

area's contingency plan identifies the measure to be adopted, provides

a procedure for adoption of the non-CTG VOC RACT rules (``promulgation

involves * * * additional steps * * * approval of the proposed rules by

the Office of Regulatory Reform, the Legislative Services Bureau * * *

'' See April 11, 1996, SIP revision) and provides a schedule for

implementation (e.g. 20 months from the Governor's decision to employ

these rules as contingency measures). It is noted that the critical

component of this schedule is not the

[[Page 31844]]

State's internal schedule for adoption of the rule(s) but the schedule

for full implementation.

It is further noted that the contingency measure implementation

schedules for the Grand Rapids area were derived from the Act, and

applicable State and Federal regulations. The schedule established for

the implementation of contingency measures provides for the

implementation of such measures as soon as within 1 year of a violation

15. The EPA 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.

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

\15\ Phased in implementation of Stage II commences within 6

months of the Governor's decision to employ Stage II or one year of

a monitored violation.

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

Comment: The commentor states that EPA guidance requires that a

maintenance plan ``ensure prompt correction of any violation of the

NAAQS.'' Yet the Grand Rapids maintenance plan SIP revision of April

11, 1996 allows implementation of the non-CTG RACT rules within 26

months of an ozone violation. The commentor is concerned that 26 months

for implementation of the non-CTG VOC RACT rules does not ensure prompt

correction of a violation. In addition, the maintenance plan lacks

adequate milestones to track the State's compliance.

Response: The 26-month schedule to implement the non-CTG VOC RACT

rules takes into account 6 months to quality assure the monitoring data

indicating a violation of the ozone NAAQS, conduct an analysis to

determine local culpability with respect to a violation, and to afford

the public an opportunity to participate in the determination of local

culpability, 8 months for full adoption of any of the non-CTG RACT

rule(s) chosen as a contingency measure, and 12 months for full

implementation.16 The EPA believes that this is an expeditious

schedule for adoption and implementation of these rules.

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

\16\ See March 16, 1989 memorandum from John Calcagni, Director,

Air Quality Management Division and John Seitz, Director, Stationary

Source Compliance Division entitled ``Compliance Schedules for

Volatile Organic Compounds.'' This memorandum clarifies that the

``presumptive norm'' for source compliance with a new or revised

rule is recommended to be 1 year or less.

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

Furthermore, neither the Act nor redesignation guidance requires

milestones to track the State's compliance with adoption and

implementation of contingency measures. The September 1992 Calcagni

memorandum suggests that the contingency plan identify the contingency

measure to be adopted, provide a schedule and procedure for adoption

and implementation, and provide a specific time limit for action by the

State. The Grand Rapids area's contingency plan identifies the measure

to be adopted, provides a procedure for adoption of the non-CTG VOC

RACT rules (``promulgation involves * * * additional steps * * *

approval of the proposed rules by the Office of Regulatory Reform, the

Legislative Services Bureau * * * '' See April 11, 1996, SIP revision)

and provides a schedule for implementation (e.g. 20 months from the

Governor's decision to employ these rules as contingency measures). The

critical component of this schedule is not the State's internal

schedule for adoption of the rule(s) but the schedule for full

implementation.

Finally, there are other more effective contingency measures than

the non-CTG VOC RACT rules that could be implemented more expeditiously

such as Stage II and low RVP gasoline (to 7.8 psi).

Comment: The commentor states that allowing the State to commit to

subsequent adoption of the three required VOC non-CTG RACT rules as

contingency measures is ``extraordinary and prohibited * * *

preferential treatment'' for Michigan and is inconsistent with EPA

guidance and recent actions on other moderate area redesignation

requests. The commentor believes that such preferential treatment

rewards the State for its failure to satisfy Act requirements. This is

particularly so, since the EPA penalized adjacent States that did not

adopt and implement these non-CTG VOC RACT rules and other control

measures. Preferential treatment is ``illegal'' and undermines the

cooperation of other States implementing future control measures to

reduce ozone and ozone precursor emissions and other efforts such as

LMOS and OTAG. The commentor further states that the EPA's preferential

treatment is especially evident in its allowing Michigan to determine

the need for implementation of contingency measures based on parameters

developed by Michigan.

Response: EPA again notes that, even without the exception to its

general policy proposed in the April 2, 1996 rulemaking, the State

would have been able to have the RACT rules become a part of the

contingency measures in the maintenance plan upon approval of the

redesignation. However, that could have occurred only after or upon

EPA's full approval of the adopted RACT rules. Consequently, the only

difference between EPA's general policy and the exception to that

policy described in the proposal is that a commitment to adopt and

implement the RACT rules in an expeditious manner, rather than fully-

adopted RACT rules, would be among the contingency measures in the

maintenance plan. EPA would also note that, in general, contingency

measures need not be fully adopted. See September 1992 Calcagni

memorandum. Thus, EPA is acknowledging that allowing Michigan to

incorporate these non-CTG VOC RACT measures into the contingency plan

without fully adopted rule is an exception to policy. The commentor,

however, has not provided any basis to dispute the rationale for this

exception and factors presented in the April 2, 1996 proposal.

The EPA disagrees with the commentor's contention that EPA is

affording Michigan ``preferential treatment.'' EPA guidance and

policies have been, or can be, applied to all areas, including Grand

Rapids, in an equitable manner. EPA periodically will make an exception

to policy where an exception is warranted and appropriate. Allowing an

exception to policy for a particular area does not constitute

preferential treatment for that area but instead is a neutral

determination that is available to other areas that could also

demonstrate circumstances that would warrant the same exception. This

is the first instance that the issue of full adoption of these

particular non-CTG VOC RACT rules has arisen in the context of

redesignation. As such, it is in this action that the exception to

policy is being exercised.

The commentor does not cite any instances, nor is EPA aware of any

instances, where EPA penalized an adjacent State that did not adopt and

implement these non-CTG VOC RACT rules. The commentor does not specify

the ``other control measures'' referred to.

In addition, with respect to the Grand Rapids maintenance plan,

Michigan has incorporated a process not only to involve the EPA but to

afford the public an opportunity to participate in the process to

determine the necessity to select and implement contingency measures

based on a technical analysis to determine local culpability. Thus,

although Michigan will be conducting the analysis an opportunity for

the public review and participate will be provided.

Comment: The commentor states that the non-CTG VOC RACT rules

should have been adopted and implemented by November 15, 1994. The

commentor also notes that neither Michigan nor EPA acknowledges this.

The commentor adds that EPA has failed to enforce

[[Page 31845]]

sections 182(b)(2)(A) at that time and is failing to enforce section

175A of the Act, now.

Response: Although EPA's general redesignation policy requires that

rules and programs for requirements that come due prior to submittal of

a complete redesignation request be adopted and fully approved into the

area's SIP, it also allows for these measures to be moved into the

area's maintenance plan as contingency measures if they are not yet

implemented and not necessary for maintenance of the standard.

September 1993 Shapiro memorandum. Thus, the non-CTG VOC RACT rules

should have been adopted but not necessarily implemented. The rules

would have been moved over into the area's maintenance plan since they

were not needed for maintenance.

The April 2, 1996 proposal to approve the Grand Rapids

redesignation does, in fact, acknowledge that the non-CTG VOC RACT

rules were required to be submitted to EPA by November 15, 1994 and

implemented by November 15, 1995. See 61 FR 14526. The State's April

11, 1996 submittal also acknowledges that these rules were due on

November 15, 1994.

For the reasons explained above, however, EPA believes that its

treatment of these rules in this redesignation is justifiable and

appropriate.

Comment: The commentor is concerned that Michigan's contingency

plan lacks milestones and is inconsistent with the specificity that the

EPA required of contingency plans in other areas such as the Toledo,

Ohio contingency plan, which included a number of milestones to gauge

the State's progress.

Response: Neither the Act nor redesignation guidance require

milestones to track the State's compliance with adoption and

implementation of contingency measures. The September 1992 Calcagni

memorandum suggests that the contingency plan identify the contingency

measure to be adopted, provide a schedule and procedure for adoption

and implementation, and provide a specific time limit for action by the

State. The Grand Rapids area's contingency plan identifies the measure

to be adopted, provides a procedure for adoption of the non-CTG VOC

RACT rules (``promulgation involves * * * additional steps * * *

approval of the proposed rules by the Office of Regulatory Reform, the

Legislative Services Bureau * * * '' See April 11, 1996, SIP revision)

and provides a schedule for implementation (e.g. 20 months from the

Governor's decision to employ these rules as contingency measures). The

critical component of this schedule is not the State's internal

schedule for adoption of the rule(s), but the schedule for full

implementation.

Comment: The commentor is concerned that the schedule for

implementation of the non-CTG VOC RACT rules for the three source

categories identified would not ``promptly correct any violation of the

standard'' since it allows over 2 years after an ozone violation before

adopting and implementing a selected contingency measure.

Response: As noted previously, the 26-month schedule to implement

the non-CTG VOC RACT rules takes into account: 6 months to quality

assure the monitoring data indicating a violation of the ozone NAAQS,

conduct an analysis to determine local culpability with respect to the

violation, and afford the public an opportunity to participate in the

determination of local culpability; 8 months for full adoption of any

of the non-CTG RACT rule(s) chosen as a contingency measure; and 12

months for full implementation. The EPA believes that this is an

adequate and expeditious schedule for adoption and implementation of

these rules. In addition, the contingency plan contains other measures

that provide for implementation of a measure as soon as within 1 year

of a violation.17

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

\17\ See footnote 15.

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

Comment: The commentor suggests that the September 1992 Calcagni

memorandum requires States to implement all the control measures prior

to redesignation but that a revision to the SIP to remove measures may

be submitted. The commentor interprets this to mean that the State must

have adopted and implemented the ``applicable control measures'' in the

area. The commentor notes that Michigan did not adopt and implement the

non-CTG VOC RACT rules for plastic parts coating, wood furniture

coating and clean-up solvents as required by section 182(b)(2)(A). In

addition, Michigan did not adopt rules for non-CTG source categories

which it deemed unnecessary due to the absence of existing sources.

Response: The September 1992 Calcagni memorandum interprets section

175A(d) as requiring the continued implementation of all measures

contained in the area's part D nonattainment plan and that removal of

these implemented measures would require a demonstration that the

measures are not necessary for attainment or maintenance. In addition,

once removed those measures are required to be incorporated into the

area's contingency plan as contingency measures. The non-CTG VOC RACT

rules, however, were not adopted by the State or approved by EPA into

the area's part D nonattainment SIP. As such, the non-CTG VOC RACT

rules were not required to be implemented as a prerequisite for

redesignation since they were not incorporated into the part D

nonattainment SIP. Furthermore, EPA's general redesignation policy does

not require the implementation of all measures that were applicable to

the area instead, it allows unimplemented measures to be moved into an

area's maintenance plan as contingency measures if they are not

necessary for maintenance. See Detroit redesignation with respect to

Stage I (March 7, 1995, 60 FR 12459).

It is unclear to EPA why the commentor would be concerned that the

State did not adopt rules applicable to sources which do not exist in

the State. Appendix E of the supplement to the General Preamble (April

28, 1992, 57 FR 18070) stipulated that the States submit a list of

major stationary sources that are expected to be subject to one of the

11 source categories for which EPA was to issue a CTG. Michigan

submitted such a list on November 15, 1992. States have not been

required to adopt rules for non-CTG source categories for which no

sources exist in the State.

Comment: The commentor states that EPA noted to Michigan, in its

preliminary review of the Grand Rapids area's redesignation request,

that adopted rules for the applicable source categories in Appendix E

should be submitted. In response, the State committed to adopt these

non-CTG VOC RACT rules as contingency measures should they be chosen as

contingency measures. The commentor believes this is an ``inadequate

and unacceptable substitute'' for adoption and implementation of these

rules.

Response: EPA's comments merely represented a preliminary review of

the State's redesignation request. As discussed in the April 2, 1996

proposal, current EPA policy, in fact, would require the State to have

submitted adopted non-CTG VOC RACT rules for the 3 source categories at

issue before the area could be redesignated to attainment. As discussed

previously, however, EPA proposed to make an exception to policy in

this instance for several reasons, including the fact that the RACT

rules at issue came due after the end of the ozone season in which

Grand Rapids attained the standard and were not needed to bring about

attainment of the ozone standard in Grand Rapids. In addition, the

State has

[[Page 31846]]

demonstrated continued maintenance of the ozone standard through 2007

without the implementation of these measures and other contingency

measures are included in the maintenance plan that would bring about

far greater emission reductions than the VOC RACT rules, and would

therefore be substantially more effective in terms of correcting

violations attributable to local emissions from the Grand Rapids area

that may occur after redesignation. Again, the commentor does not

challenge the rational used to make the exception to policy pertaining

to the non-CTG RACT rules.

EPA's general redesignation policy requires that rules and programs

for requirements that come due prior to submittal of a complete

redesignation request be adopted and fully approved into the area's

SIP. The policy also allows for these measures to be moved into the

area's maintenance plan as contingency measures if they are not

necessary for maintenance of the standard. September 1993 Shapiro

memorandum. Thus, the non-CTG VOC RACT rules should have been adopted

but may have been moved over into the area's maintenance plan, if the

area demonstrated that the measure(s) was not necessary for

maintenance.

Comment: The commentor submits that the EPA is prohibited from

accepting commitments by a State to adopt and implement contingency

measures in place of fully adopted and implemented rules as required

for SIP revisions pursuant to section 110(k)(4). Natural Resources

Defense Counsel (NRDC) v. U.S. EPA.

Response: EPA does not believe that the D.C. Circuit's decision in

NRDC v. U.S. EPA, 22 F.3d 1125 (D.C. Cir. 1994) concerning the use of

commitments under section 110(k)(4) prohibits EPA from fully approving

commitments by a State to adopt and implement contingency measures in a

section 175A maintenance plan. The NRDC decision concerned the use of

the section 110(k)(4) conditional approval mechanism, which

contemplates the conversion of a conditional approval to a disapproval

if a State fails to comply with a commitment to adopt specific

enforceable measures by a date certain, which may be no later than one

year after the conditional approval. In contrast, the commitments

regarding contingency measures in a section 175A maintenance plan

become enforceable commitments once they are fully-approved into the

maintenance plan. As these commitments are fully approved into the SIP,

they, like other provisions of a fully-approved plan, are enforceable

pursuant to the provisions of the Act. See September 1992 Calcagni

memorandum at p. 12 (stating that ``the contingency plan is considered

to be an enforceable part of the SIP''). EPA notes that it has not

relied on the section 110(k)(4) conditional approval mechanism for

dealing with commitments regarding maintenance plan contingency

measures either before or after the NRDC decision, but has consistently

fully-approved such commitments, thereby making them an enforceable

part of the SIP. In sum, EPA does not believe that its authority to

accept such commitments was affected by the NRDC decision.

Comment: The commentor cites the September 1992 Calcagni memorandum

which provides that, ``for purposes of section 175A, a State is not

required to have fully adopted contingency measures that will take

effect without further action by the State in order for the maintenance

plan to be approved,'' and interprets this language to imply that

contingency measures need not be self-executing and provides the State

discretion in selection of a contingency measure from a host of

``adopted contingency measures.''

Response: The September 1992 Calcagni memorandum citation noted by

the commentor is valid. However, the September 1992 Calcagni memorandum

goes on to say in the next sentences that ``the contingency plan * * *

should ensure that the contingency measures are adopted expediently

once they are triggered.'' Clearly, this indicates that contingency

measures need not be fully adopted since the contingency plan should

ensure expeditious adoption of contingency measures.

Comment: The commentor is concerned that the State did not

implement an enhanced I/M program as scheduled in December 1994 and

that the State has partially rescinded the legal authority for the I/M

program.

Response:The Grand Rapids moderate ozone nonattainment area was

required to adopt and implement a basic I/M program. An enhanced I/M

program was adopted by Michigan and fully approved by EPA into the SIP

on October 11, 1994 (59 FR 51379) and was to have commenced

implementation on January 1, 1995. By the end of 1994, the Grand Rapids

area had attained the ozone standard and therefore, was eligible for

redesignation. The January 5, 1995 (60 FR 1735) revisions to the

national I/M rule stipulate that areas otherwise eligible for

redesignation, may submit the following in order to satisfy the I/M

component of the SIP: legislative authority for basic I/M; a provision

in the SIP providing that I/M be placed in the contingency measure

portion of the maintenance plan; and an enforceable schedule and

commitment by the Governor or his designee for adoption and

implementation of a basic I/M program upon a triggering event. Also,

see September 1993 Shapiro memorandum. With this, the Governor stayed

the implementation of the I/M program in the Grand Rapids area. In

order to satisfy the I/M component of the SIP, therefore, the State

needs to satisfy only the items noted above. The legislative authority

to implement an I/M program is contained in Michigan's Enrolled House

Bill No. 4165 which provides that I/M may be implemented as a

contingency measure consistent with an area's maintenance plan if it is

not necessary for maintenance. The 175A maintenance plan provides for

the implementation of I/M as a contingency measure, and also provides

an enforceable schedule for the implementation of I/M as a contingency

measure.

Finally, EPA is not aware of any revocation of the legal authority

of the I/M program. In fact, discussions with the State verified that

Michigan's Enrolled House Bill No. 4165 has not been revoked or

repealed but is still valid.

Comment:The commentor conducted an analysis of 1995 ambient

monitoring data and concluded that the emissions from the Grand Rapids

area produces tropospheric ozone. Adoption and implementation of the

non-CTG VOC RACT rules for plastic parts coating, wood furniture

coating and industrial clean-up solvents would have achieved

considerable, cost-effective reduction in local VOC emissions as well

as lessened the exposure of the community to toxic air pollutants. The

commentor states that, if EPA had enforced part D nonattainment plan

requirements for the Grand Rapids area, significant VOC emission

reductions would have occurred.

Response: The EPA does not dispute the commentor's contention that

ozone and ozone precursor emissions from the Grand Rapids urbanized

area contribute to the formation of ozone nor that implementation of

the non-CTG VOC RACT rules for the three source categories would have

achieved reductions in local VOC emissions. Based on the current ozone

standard, 0.12 ppm, however, the Grand Rapids area has demonstrated

attainment of the current ozone NAAQS in the three year period 1992-

1994 and continues to demonstrate attainment for the period 1993-1995

even without the implementation of these rules.

With respect to the EPA's enforcement of part D nonattainment

[[Page 31847]]

plan requirements, EPA's general redesignation policy provides that

part D nonattainment plan requirements that have been adopted but

unimplemented may be moved into the area's maintenance plan as

contingency measures if the area demonstrates that these rules are not

necessary for maintenance of the ozone NAAQS. Even if EPA had made a

finding of failure to submit after the State of Michigan's failure to

submit the non-CTG VOC RACT rules at issue, there is no assurance that

those rules would have been adopted and implemented prior to

redesignation of the Grand Rapids area. Assuming that the State of

Michigan would have adopted and submitted such rules to EPA after a

finding of failure to submit, such rules would not have had to have

been implemented prior to this redesignation. Indeed, as explained

above, since maintenance of the standard has been demonstrated in the

Grand Rapids area without such rules, the State would probably have

simply included such rules on the list of contingency measures in the

maintenance plan and not implemented them prior to the redesignation.

In sum, no environmental benefit, and no reduction of emissions would

have been realized by EPA's enforcement of section 182(b)(2)(A) in this

case.

The commentor's calculations of emission reductions resulting from

the implementation of non-CTG VOC RACT in the plastic parts, wood

furniture and industrial clean up solvents are somewhat unclear and

inaccurate. However, the EPA agrees with the commentor's assumption

that in the calculations to determine the emissions on a tons per day

basis from a tons per year basis, the tons per year figure should be

divided by 365 days. Since the tons per year figures were based on a

theoretical emission value, assuming the facilities are operating 365

days per year, dividing by 365 is more accurate and appropriate than

dividing by 250. In its original calculations, the EPA erroneously

divided by 250 days assuming that the tons per year figure was based on

actual emissions and the facilities only operated on weekdays and not

on weekends or holidays.

The commentor references two documents as the basis of its

calculations, the ``Lake Michigan Ozone Control Program Evaluation of

Possible Control Measures: Control of Surface Coating of Plastic Parts;

Control of Emissions from Wood Furniture Coating [VOC], Evaluation of

Possible Control Measures for Solvent Metal Cleaning,'' developed

through the Lake Michigan Air Directors Consortium, April 16,

1993 \18\ and ``Meeting the 15-Percent Rate-of-Progress Requirement

Under the Clean Air Act: A Menu of Options,'' from STAPPA/ALAPCO,

September 1993.\19\

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

\18\ Hereinafter referred to as ``LADCO document.''

\19\ Hereinafter referred to as ``STAPPA/ALAPCO document.''

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

In calculating potential emission reductions for the plastic parts

coating source category, EPA believes that the commentor assumed a 95

percent reduction in emissions. This value appears to be based on the

LADCO document, which estimates a potential 40-95 percent emission

reduction depending on the level of control applied to the source

category. The 95 percent reduction assumes that these sources are

uncontrolled and that the State's rule would require the most stringent

of three control options that represent RACT. Since Michigan has a rule

applicable to plastic parts coating sources, the emission reductions

would be far less than the 95 percent assumed by the commentor. In

fact, according to Michigan's calculations, a non-CTG VOC RACT rule

would achieve, approximately, an additional 7 percent reduction to the

reductions already achieved by Michigan's Rule 632. The 7 percent

reduction represents the additional reductions that would be achieved

from the level of controls required by Michigan's current Rule 632 and

a level of RACT between the first and second control options available

in the draft CTG for this source category.

With respect to the wood furniture source category, the commentor

assumed a 70 percent emission reduction. It appears that this value,

again, was based on the LADCO document, which estimates a 50-70 percent

emission reduction in the wood furniture coating source category. In

its calculation of the emission reductions for this source category,

EPA assumed a 30 percent emission reduction. This was based on an

emission reduction estimate from the non-CTG document ``Control of

Volatile Organic Compound Emissions from Wood Furniture Manufacturing

Operations,'' September 7, 1995. Furthermore, the STAPPA/ALAPCO

document referred to by the commentor also estimates an emission

reduction of approximately 36 percent. While EPA's assumption is not as

optimistic as that assumed by the commentor, EPA believes that the 30

percent emission reduction is a reasonable assumption based on EPA

guidance and documentation, which estimates a range of reductions

between 20 and 47 percent depending on the process being controlled.

Furthermore, even if the optimistic 70 percent emission reduction is

assumed, emission reductions from the implementation of I/M or low RVP

(to 7.8 psi), at various time intervals, would achieve greater

reductions than the plastic parts coating, wood furniture coating and

industrial clean-up solvents in aggregate. In addition, emission

reductions from the implementation of I/M, low RVP or Stage II would

bring about far greater reductions than any of these non-CTG VOC RACT

rules individually, even with the 70 percent emission reduction assumed

by the commentor.

The commentor appears to be assuming a 15 percent emission

reduction for the industrial clean-up solvents source category. The EPA

based its calculations on an assumption of 25 percent reduction. Since

the basis of the 15 percent assumption is unclear and EPA assumed a

higher percentage emission reduction than did the commentor, this does

not appear to be an issue of contention.

Consequently, EPA's conclusion that the other, more effective

contingency measures, should and would be implemented first even if

these RACT rules were to be fully adopted prior to redesignation, is

not affected.

III. Final Rulemaking Action

The EPA approves the redesignation of the Grand Rapids, 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.

EPA finds that there is good cause for this redesignation to

attainment, and SIP revision to become effective immediately upon

publication because a delayed effective date is unnecessary due to the

nature of a redesignation to attainment which relieves the area from

certain Clean Air Act requirements that would other wise apply to it.

The immediate effective date for this redesignation is authorized under

both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may

become effective less than 30 days after publication if the rule

``grants or recognizes an exemption or relieves a restriction'' and

section 553(d)(3), which allows an effective date less than 30 days

after publication ``as otherwise provided by the agency for good cause

found and published with the rule.''

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

[[Page 31848]]

technical, economic, and environmental factors and in relation to

relevant statutory and regulatory requirements.

Ozone SIPs are designed to satisfy the requirements of part D of

the Act and to provide for attainment and maintenance of the ozone

NAAQS. This final redesignation should not be interpreted as

authorizing the State to delete, alter, or rescind any of the VOC or

NOX emission limitations and restrictions contained in the

approved ozone SIP. Changes to ozone SIP VOC regulations rendering them

less stringent than those contained in the EPA approved plan cannot be

made unless a revised plan for attainment and maintenance is submitted

to and approved by EPA. Unauthorized relaxations, deletions, and

changes could result in both a finding of nonimplementation [section

173(b) of the Act] and in a SIP deficiency call made pursuant to

section 110(a)(2)(H) of the Act.

This action has been classified as a Table 3 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by a July 10, 1995,

memorandum from Mary Nichols, Assistant Administrator for Air and

Radiation. The Office of Management and Budget has exempted this

regulatory action from Executive Order 12866 review.

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

must prepare a regulatory flexibility analysis assessing the impact of

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

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

significant economic impact on a substantial number of small entities.

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

enterprises, and government entities with jurisdiction over populations

of less than 50,000. This determination does not create any new

requirements, but suspends the indicated requirements. Therefore,

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

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

The EPA has determined that today's final action does not include a

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

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

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

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

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

The SIP approvals under section 110 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 any 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 EPA to base its actions on such grounds. Union Electric Co.

v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. section

7401(a)(2).

Under section 801(a)(1)(A) of the APA as amended by the Small

Business Regulatory Enforcement Fairness Act of 1996, EPA submitted a

report constraining this rule and other required information to the

U.S. Senate, the U.S. House of Representative and the Comptroller

General of the General Accounting Office prior to publication of the

rule in today's Federal Register. This rule is not a ``major rule'' as

defined by section 804(2) of the APA as amended.

Under section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

final rulemaking that includes a Federal mandate that may result in

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

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

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

small governments that may be significantly or uniquely impacted by the

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

and least burdensome alternative that achieves the objectives of the

rule and is consistent with statutory requirements.

Redesignation of an area to attainment under section 107(d)(3)(E)

of the Act does not impose any new requirements on small entities.

Redesignation is an action that affects the status of a geographical

area and does not impose any regulatory requirements on sources. The

Administrator certifies that the approval of the redesignation request

will not affect a substantial number of small entities.

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

of this final action must be filed in the United States Court of

Appeals for the appropriate circuit by August 20, 1996. 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, Incorporation by reference, Nitrogen oxides, Ozone,

Volatile organic compounds, Motor vehicle pollution, and reporting and

record keeping requirements.

40 CFR Part 81

Environmental protection, Air pollution control, Carbon monoxide,

National parks, Wilderness areas, Hydrocarbons, Nitrogen oxides, Ozone,

and Volatile organic compounds.

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

Dated: June 17, 1996.

David A. Ullrich,

Acting Regional Administrator.

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

amended as follows:

PART 52--[AMENDED]

Subpart X--Michigan

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

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

2. Section 52.1170 is amended by adding paragraph (c)(106) to read

as follows:

Sec. 52.1170 Identification of plan.

* * * * *

(c) * * *

(106) On March 9, 1995, 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 Grand

Rapids 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 an attainment emission inventory for

NOX and VOC, a demonstration of maintenance of the ozone NAAQS

with projected emission inventories to the year 2007 for NOX and

VOC, a plan to verify continued attainment, a contingency plan, and a

commitment to submit a subsequent maintenance plan revision in 8 years

as required by the Clean Air Act. If a violation of the ozone NAAQS,

[[Page 31849]]

determined not to be attributable to transport from upwind areas, is

monitored, Michigan will implement one or more appropriate contingency

measure(s) contained in the contingency plan. Once a violation of the

ozone NAAQS is recorded, the State will notify EPA, review the data for

quality assurance, and conduct a technical analysis, including an

analysis of meteorological conditions leading up to and during the

exceedances contributing to the violation, to determine local

culpability. This preliminary analysis will be submitted to EPA and

subjected to public review and comment. The State will solicit and

consider EPA's technical advice and analysis before making a final

determination on the cause of the violation. The Governor or his

designee will select the contingency measure(s) to be implemented

within six months of a monitored violation attributable to ozone and

ozone precursors from the Grand Rapids area. The menu of contingency

measures includes a motor vehicle inspection and maintenance program,

Stage II vapor recovery, gasoline RVP reduction to 7.8 psi, RACT on

major non-CTG VOC sources in the categories of coating of plastics,

coating of wood furniture, and industrial cleaning solvents. Michigan

submitted legislation or rules for I/M in House Bill No 4165, signed by

Governor John Engler on November 13, 1993; 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. 4165 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 paragraph (o) to read as

follows:

Sec. 52.1174 Control strategy: Ozone.

* * * * *

(o) Approval--On March 9, 1996, the Michigan Department of

Environmental Quality submitted a request to redesignate the Grand

Rapids ozone nonattainment area (consisting of Kent and Ottawa

Counties) to attainment for ozone. As part of the redesignation

request, the State submitted a maintenance plan as required by 175A of

the Clean Air Act, as amended in 1990. Elements of the section 175A

maintenance plan include an attainment emission inventory for NOX

and VOC, a demonstration of maintenance of the ozone NAAQS with

projected emission inventories to the year 2007 for NOX and VOC, a

plan to verify continued attainment, a contingency plan, and a

commitment to submit a subsequent maintenance plan revision in 8 years

as required by the Clean Air Act. If a violation of the ozone NAAQS,

determined not to be attributable to transport from upwind areas, is

monitored, Michigan will implement one or more appropriate contingency

measure(s) contained in the contingency plan. Once a violation of the

ozone NAAQS is recorded, the State will notify EPA, review the data for

quality assurance, and conduct a technical analysis, including an

analysis of meteorological conditions leading up to and during the

exceedances contributing to the violation, to determine local

culpability. This preliminary analysis will be submitted to EPA and

subjected to public review and comment. The State will solicit and

consider EPA's technical advice and analysis before making a final

determination on the cause of the violation. The Governor or his

designee will select the contingency measure(s) to be implemented

within 6 months of a monitored violation attributable to ozone and

ozone precursors from the Grand Rapids area. The menu of contingency

measures includes a motor vehicle inspection and maintenance program,

Stage II vapor recovery, RVP reduction to 7.8 psi, RACT on major non-

CTG VOC sources in the categories of coating of plastics, coating of

wood furniture, and industrial cleaning solvents. The redesignation

request and maintenance plan meet the redesignation requirements in

section 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, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 81--[AMENDED]

1. The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401-7871q.

2. Section 81.323 is amended by revising the attainment status

designation table entry for the Grand Rapids area for ozone to read as

follows:

Sec. 81.323 Michigan.

* * * * *

Michigan--Ozone

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

Designation Classification

Designated areas ----------------------------------------------------------------------------------------------------------------------

Date \1\ Type Date Type

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

* * * * * * *

Grand Rapids Area:

Kent County.................. June 21, 1996.................. Attainment...................

Ottawa County................ June 21, 1996.................. Attainment...................

* * * * * * *

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

\1\This date is November 15, 1990, unless otherwise noted.

[[Page 31850]]

[FR Doc. 96-15881 Filed 6-20-96; 8:45 am]

BILLING CODE 6560-50-P