[Federal Register Volume 59, Number 153 (Wednesday, August 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19450]


[[Page Unknown]]

[Federal Register: August 10, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[MI26-01-6294B; FRL-5029-2]

 

Approval and Promulgation of Implementation Plan; Michigan

AGENCY: United States Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The United States Environmental Protection Agency is granting 
an exemption to the Detroit-Ann Arbor ozone nonattainment area from 
applicable oxides of nitrogen (NOX) requirements found in the 
Clean Air Act (Act). Approval of the exemption would apply for various 
NOX including adoption and implementation of regulations 
addressing general conformity, transportation conformity, inspection 
and maintenance, reasonably available control technology, and new 
source review. A NOX exemption request was submitted by the State 
of Michigan on November 12, 1993. A subsequent letter dated May 31, 
1994 clarified this earlier submittal. This request is based on the 
fact that the Detroit-Ann Arbor area has not monitored a violation of 
the ozone standard for a 3-year period; 1991 to 1993. Given this 
monitoring data, Michigan may petition for an exemption from the 
NOX requirements based on a demonstration that additional 
reductions of NOX would not contribute to attainment of the ozone 
standard.
    The rationale for this approval is set forth in this final rule; 
additional information is available at the address indicated below. 
Elsewhere in this Federal Register, EPA is proposing approval of, and 
soliciting public comment on, this requested SIP revision. If a 
comment, or a notice of intent to comment is received on this direct 
final rule by August 25, 1994, EPA will then use this rulemaking as a 
proposed rule. Comments received will be addressed in a separate final 
rulemaking. Unless this final rule is commented upon, no further 
rulemaking will occur on this requested State Implementation Plan (SIP) 
revision.
    This shortened comment period and expedited effective date is 
needed to follow provisions found in the Act which require EPA to 
either grant or deny exemption requests within 6 months of receipt. 
Although this notice may not be published within the timeframe 
specified by the Act, it is EPA's intention to try and publish as close 
to the 6 month deadline as possible.

DATES: This final rule will be effective September 9, 1994, unless 
notice is received within 15 days of this publication that someone 
wishes to submit adverse comments. If the effective date is delayed, 
timely notice will be published in the Federal Register.

ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief, 
Regulation Development Section, Air Toxics and Radiation Branch (AT-
18J), EPA, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 
60604-3590.
    Copies of the request and the EPA's analysis are available for 
inspection at the following address: (It is recommended that you 
telephone Douglas Aburano at (312) 353-6960 before visiting the Region 
5 office.) EPA, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604-3590.

FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Air Toxics and 
Radiation Branch (AT-18J), EPA, Region 5, Chicago, Illinois 60604, 
(312) 353-6960.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 12, 1993 the State of Michigan submitted a petition to 
the EPA requesting that the Detroit-Ann Arbor ozone nonattainment area 
be exempted from the requirement to implement NOX RACT controls 
pursuant to section 182(f) of the Act. The exemption request is based 
upon monitoring data which demonstrate that the ozone standard has been 
attained in the Detroit-Ann Arbor area for a 3-year period; 1991 
through 1993.

II. Description and Analysis of State Submittal

    The NOX RACT petition was submitted in accordance with section 
182(f) of the Act and a May 27, 1994 John Seitz memorandum entitled, 
``Section 182(f) Nitrogen Oxides (NOX) Exemptions--Revised Process 
and Criteria.'' According to this memorandum and a December 1993 EPA 
guidance document entitled, Guideline for Determining the Applicability 
of Nitrogen Oxides Requirements Under Section 182(f), NOX RACT and 
NSR requirements of section 182(f) do not apply if additional 
reductions of NOX would not contribute to attainment of the NAAQS 
for ozone. In an area that did not implement the section 182(f) 
NOX requirements, but did attain the ozone standard, it is clear 
that the additional NOX reductions required by section 182(f) 
would not contribute to attainment.
    In its submittal, the State included data from ozone monitors for 
the most recently recorded years, 1991-1993. These data showed that 
over this 3-year period a violation of the ozone standard was not 
monitored in the Detroit-Ann Arbor area. This is the main criterion by 
which EPA judges 182(f) exemption petitions based on monitoring data. 
Given the fact that the Detroit-Ann Arbor area has not implemented the 
section 182(f) NOX requirements and has submitted adequate 
monitoring data showing no violations of the ozone NAAQS over the last 
3 years in the area, EPA finds that the State submittal is approvable.
    Under the May 27, 1994 John Seitz memorandum and the December 1993 
section 182(f) NOX guidance referenced above, the section 182(f) 
demonstration cannot be approved if there is evidence, such as 
photochemical grid modeling, showing that the NOX exemption would 
interfere with attainment or maintenance in the area petitioning for 
exemption or in any downwind areas. No such evidence exists.

III. Final Action

    The EPA is granting the Detroit-Ann Arbor section 182(f) exemption 
petition based upon the evidence provided by the State and the State's 
compliance with the requirements outlined in the Act and in EPA 
guidance. However, it should be noted that this exemption is being 
granted on a contingent basis; i.e., the exemption will last for only 
as long as the area's ambient monitoring data continue to demonstrate 
attainment of the ozone NAAQS.
    The EPA's transportation conformity rule1 and EPA's general 
conformity rule2 also reference the section 182(f) exemption 
process as a means for exempting affected areas from NOX 
conformity requirements, and the conformity requirements apply on an 
areawide basis. Since this petition for exemption is areawide, as 
opposed to source-specific, an approval would also exempt this area 
from the NOX conformity requirements of the Act (see John Seitz 
May 27, 1994 ``Section 182(f) Nitrogen Oxides (NOX) Exemptions--
Revised Process and Criteria'' memorandum). Additionally, the 
Inspection/Maintenance (I/M) Program Final Rule (57 FR 52950) allows 
for the omission of the basic I/M NOX requirements if a 182(f) 
exemption is granted to an area. Michigan does not currently have--or 
need--an enhanced I/M program. However, if the State did adopt such a 
program (because further emissions reductions necessary to address 
other portions of the Act could be obtained through an enhanced 
program), it would have to be designed to offset NOX increases 
resulting from the vehicle repairs due to hydrocarbon (HC) and carbon 
moNOXide (CO) failures.

    \1\``Criteria and Procedures for Determining Conformity to State 
or Federal Implementation Plans of Transportation Plans, Programs, 
and Projects Funded or Approved under Title 23 U.S.C. of the Federal 
Transit Act'' November 24, 1993 (58 FR 62188).
    \2\``Determining Conformity of General Federal Actions to State 
or Federal Implementation Plans; Final Rule'' November 30, 1993 (58 
FR 63214).
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    If, subsequent to the NOX waiver being granted, EPA determines 
that the area has violated the standard, the section 182(f) exemption, 
as of the date of the determination, would no longer apply. EPA would 
notify the State that the exemption no longer applies, and would also 
provide notice to the public in the Federal Register. If an exemption 
is revoked, the State must comply with any applicable NOX 
requirements set forth in the Act, such as those for NOX RACT, 
NSR, I/M, and conformity. The air quantity data relied on for the above 
determinations must be consistent with 40 CFR part 58 requirements and 
other relevant EPA guidance and recorded in EPA's Aerometric 
Information Retrieval System.
    The Federal Register notice revoking the NOX exemption would 
also establish the schedule for adoption and implementation of those 
NOX requirements the area was previously exempt from.
    On November 12, 1993 the State submitted a redesignation request. 
Section 175(A) requires submittal of a maintenance plan for areas that 
are redesignating to attainment. This maintenance plan must contain 
contingency measures which shall be implemented if a violation of the 
ozone standard occurs. Consequentially, the State's redesignation 
request is approved, the NOX requirements found in the maintenance 
plan for that area would thereafter apply as long as the area is 
designated attainment for the ozone standard.
    Because EPA considers this action noncontroversial and routine, we 
are approving it without prior proposal. This action will become 
effective on September 9, 1994. However, if we receive a notice of 
intent to comment by August 25, 1994, EPA will publish: (1) A document 
that withdraws today's action, and (2) address the comments received in 
the final rule on the requested SIP revision which has been proposed 
for approval in the proposed rules section of this Federal Register. 
The public comment will not be extended or reopened.

Miscellaneous

A. Applicability to Future SIP Decisions.

    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. The EPA shall consider each request for revision to the SIP in 
light of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

B. Executive Order 12866.

    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993 
memorandum from Michael Shapiro, Acting Assistant Administrator for Air 
and Radiation. The OMB has exempted this regulatory action from E.O. 
12866 review.

C. Regulatory Flexibility

    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 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 approval does not create any new requirements. Therefore, I 
certify that this action 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 the regulatory 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of the State action. The Act forbids EPA to base its 
actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
E.P.A., 427 U.S. 246, 256-66 (1976).

D. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 11, 1994. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review, nor does 
it extend the time within which a petition for judicial review may be 
filed and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Oxides of 
nitrogen, Incorporation by reference, Intergovernmental relations, 
Ozone.

    Dated: July 19, 1994.
Valdas V. Adamkus,
Regional Administrator.

    40 CFR part 52 is amended as follows.

PART 52--[AMENDED]

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

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

Subpart X--Michigan

    2. Section 52.1174 is amended by adding paragraph (c) to read as 
follows:


Sec. 52.1174  Control strategy: Ozone.

* * * * *
    (c) Approval--On November 12, 1993, the Michigan Department of 
Natural Resources submitted a petition for exemption from the oxides of 
nitrogen requirements of the Clean Air Act for the Detroit-Ann Arbor 
ozone nonattainment area. The submittal pertained to the exemption from 
the oxides of nitrogen requirements for conformity, inspection and 
maintenance, reasonably available control technology, and new source 
review. These are required by sections 176(c), 182(b)(4), and 182(f) of 
the 1990 amended Clean Air Act, respectively.

[FR Doc. 94-19450 Filed 8-9-94; 8:45 am]
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