[Federal Register Volume 60, Number 106 (Friday, June 2, 1995)]
[Rules and Regulations]
[Pages 28729-28731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13461]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

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


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

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: The USEPA is determining, through direct final procedure, that 
the Grand Rapids (Kent and Ottawa Counties) and Muskegon (Muskegon 
County) ozone nonattainment areas have attained the National Ambient 
Air Quality Standard (NAAQS) for ozone. This determination is based 
upon 3 years of complete, quality assured ambient air monitoring data 
for the years 1992-1994 that demonstrate that the ozone NAAQS has been 
attained in these areas. On the basis of this determination, USEPA is 
also determining that certain reasonable further progress and 
attainment demonstration requirements, along with certain other related 
requirements, of part D of Title 1 of the Clean Air Act are not 
applicable to the areas for so long as the areas continue to attain the 
ozone NAAQS. In the proposed rules section of this Federal Register, 
USEPA is proposing these determinations and soliciting public comment 
on them. If adverse comments are received on this direct final rule, 
USEPA will withdraw this final rule and address these comments in a 
subsequent final rule on the related proposed rule which is being 
published in the proposed rules section of this Federal Register. No 
additional opportunity for public comment will be provided. Unless this 
direct final rule is withdrawn no further rulemaking will occur on this 
action.

EFFECTIVE DATE: This action will be effective July 17, 1995 unless 
notice is received by July 3, 1995 that someone wishes to submit 
adverse comments. If the effective date is delayed, timely notice will 
be published in the Federal Register.

ADDRESSES: Written comments can be mailed to: Carlton T. Nash, Chief, 
Regulation Development Section, Air Toxics and Radiation Branch, (AT-
18J), United States Environmental Protection Agency, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.
    A copy of the air quality data and USEPA's analysis are available 
for inspection at the following address: (It is recommended that you 
telephone Madelin Rucker at (312) 886-0661 before visiting the Region 5 
office).

FOR FURTHER INFORMATION CONTACT: Madelin Rucker, Regulation Development 
Section, Air Toxics and Radiation Branch (AT-18J), United States 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604. Telephone: (312) 886-0661.

SUPPLEMENTARY INFORMATION:

I. Background

    Subpart 2 of part D of Title I of the Clean Air Act (Act) contains 
various air quality planning and state implementation plan (SIP) 
submission requirements for ozone nonattainment areas. USEPA believes 
it is reasonable to interpret provisions regarding reasonable further 
progress (RFP) and attainment demonstrations, along with certain other 
related provisions, so as not to require SIP submissions if an ozone 
nonattainment area subject to those requirements is monitoring 
attainment of the ozone standard (i.e., attainment of the NAAQS 
demonstrated with three consecutive years of complete, quality assured 
air quality monitoring data). As described below, USEPA has previously 
interpreted the general provisions of subpart 1 of part D of Title I 
(sections 171 and 172) so as not to require the submission of SIP 
revisions concerning RFP, attainment demonstrations, or contingency 
measures. As explained in a memorandum dated May 10, 1995 from John 
Seitz to the Regional Air Division Directors, entitled ``Reasonable 
Further Progress, Attainment Demonstration, and Related Requirements 
for Ozone Nonattainment Areas Meeting the National Ambient Air Quality 
Standard,'' USEPA believes it is appropriate to interpret the more 
specific RFP, attainment demonstration and related provisions of 
subpart 2 in the same manner.
    First, with respect to RFP, section 171(1) states that, for 
purposes of part D of Title I, RFP ``means such annual incremental 
reductions in emissions of the relevant air pollutant as are required 
by this part or may reasonably be required by the Administrator for the 
purpose of ensuring attainment of the applicable national ambient air 
quality standard by the applicable date.'' Thus, whether dealing with 
the general RFP requirement of section 172(c)(2), or the more specific 
RFP requirements of subpart 2 for classified ozone nonattainment areas 
(such as the 15 percent plan requirement of section 182(b)(1)), the 
stated purpose of RFP is to ensure attainment by the applicable 
attainment date.1 If an area has in fact attained the standard, 
the stated purpose of the RFP requirement will have already been 
fulfilled and USEPA does not believe that the area need submit 
revisions providing for the further emission reductions described in 
the RFP provisions of section 182(b)(1).

    \1\USEPA notes that paragraph (1) of subsection 182(b) is 
entitled ``PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS'' and 
that subparagraph (B) of paragraph 182(c)(2) is entitled 
``REASONABLE FURTHER PROGRESS DEMONSTRATION,'' thereby making it 
clear that both the 15 percent plan requirement of section 182(b)(1) 
and the 3 percent per year requirement of section 182(c)(2) are 
specific varieties of RFP requirements.
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    USEPA notes that it took this view with respect to the general RFP 
requirement of section 172(c)(2) in the General Preamble for the 
Interpretation of Title I of the Clean Air Act Amendments of 1990 (57 
FR 13498 (April 16, 1992)), and it is now extending that interpretation 
to the specific provisions of subpart 2. In the General Preamble, USEPA 
stated, in the context of a discussion of the requirements applicable 
to the evaluation of requests to redesignate nonattainment areas to 
attainment, that the ``requirements for RFP will not apply in 
evaluating a request for redesignation to attainment since, at a 
minimum, the air quality data for the area must show that the area has 
already attained. Showing that the State will make RFP towards 
attainment will, therefore, have no meaning at that point.'' (57 FR at 
13564.)2

    \2\See also ``Procedures for Processing Requests to Redesignate 
Areas to Attainment,'' from John Calcagni, Director, Air Quality 
Management Division, to Regional Air Division Directors, September 
4, 1992, at page 6 (stating that the ``requirements for reasonable 
further progress * * * will not apply for redesignations because 
they only have meaning for areas not attaining the standard'') 
(hereinafter referred to as ``September 1992 Calcagni memorandum''). 
[[Page 28730]] 
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    Second, with respect to the attainment demonstration requirements 
of section 182(b)(1), an analogous rationale leads to the same result. 
Section 182(b)(1) requires that the plan provide for ``such specific 
annual reductions in emissions * * * as necessary to attain the 
national primary ambient air quality standard by the attainment date 
applicable under this Act.'' As with the RFP requirements, if an area 
has in fact monitored attainment of the standard, USEPA believes there 
is no need for an area to make a further submission containing 
additional measures to achieve attainment. This is also consistent with 
the interpretation of certain section 172(c) requirements provided by 
USEPA in the General Preamble to Title I, as USEPA stated there that no 
other measures to provide for attainment would be needed by areas 
seeking redesignation to attainment since ``attainment will have been 
reached.'' (57 FR at 13564; see also September 1992 Calcagni memorandum 
at page 6.) Upon attainment of the NAAQS, the focus of State planning 
efforts shifts to the maintenance of the NAAQS and the development of a 
maintenance plan under section 175A.
    Similar reasoning applies to other related provisions of subpart 2 
such as the contingency measure requirements of section 172(c)(9). 
USEPA has previously interpreted the contingency measure requirement of 
section 172(c)(9) as no longer being applicable once an area has 
attained the standard since those ``contingency measures are directed 
at ensuring RFP and attainment by the applicable date.'' (57 FR at 
13564; see also September 1992 Calcagni memorandum at page 6.)
    USEPA emphasizes that the lack of a requirement to submit the SIP 
revisions discussed above exists only for as long as an area designated 
nonattainment continues to attain the standard. If USEPA subsequently 
determines that such an area has violated the NAAQS, the basis for the 
determination that the area need not make the pertinent SIP revisions 
would no longer exist. The USEPA would notify the State of that 
determination and would also provide notice to the public in the 
Federal Register. Such a determination would mean that the area would 
have to address the pertinent SIP requirements within a reasonable 
amount of time, which USEPA would establish taking into account the 
individual circumstances surrounding the particular SIP submissions at 
issue. Thus, a determination that an area need not submit one of the 
SIP submittals amounts to no more than a suspension of the requirement 
for so long as the area continues to attain the standard.
    The State must continue to operate an appropriate air quality 
monitoring network, in accordance with 40 CFR part 58, to verify the 
attainment status of the area. The air quality data relied upon to 
determine that the area is attaining the ozone standard must be 
consistent with 40 CFR Part 58 requirements and other relevant USEPA 
guidance and recorded in USEPA's Aerometric Information Retrieval 
System (AIRS).
    The determinations that are being made with this action are not 
equivalent to the redesignation of the area to attainment. Attainment 
of the ozone NAAQS is only one of the criteria set forth in section 
107(d)(3)(E) that must be satisfied for an area to be redesignated to 
attainment. To be redesignated the State must submit and receive full 
approval of a redesignation request for the area that satisfies all of 
the criteria of that section, including the requirement of a 
demonstration that the improvement in the area's air quality is due to 
permanent and enforceable reductions and the requirements that the area 
have a fully-approved SIP meeting all of the applicable requirements 
under section 110 and part D and a fully-approved maintenance plan.
    Furthermore, the determinations made in this action do not shield 
an area from future USEPA action to require emissions reductions from 
sources in the area where there is evidence, such as photochemical grid 
modeling, showing that emissions from sources in the area contribute 
significantly to nonattainment in, or interfere with maintenance by, 
other nonattainment areas. USEPA has authority under sections 
110(a)(2)(A) and 110(a)(2)(D) to require such emission reductions if 
necessary and appropriate to deal with transport situations.

II. Analysis of Air Quality Data

    The USEPA has reviewed the ambient air monitoring data for ozone 
(consistent with the requirements contained in 40 CFR Part 58 and 
recorded in AIRS) for the Grand Rapids and Muskegon ozone nonattainment 
areas in the State of Michigan from 1992 through the present time. On 
the basis of that review USEPA has concluded that the area attained the 
ozone standard during the 1992-1994 period and continues to attain the 
standard at this time. For ozone, an area may be considered attaining 
the NAAQS if there are no violations, as determined in accordance with 
the regulation codified at 40 CFR 50.9, based on three (3) consecutive 
calendar years of complete, quality assured monitoring data. A 
violation occurs when the ozone air quality monitoring data show 
greater than one (1) average expected exceedance per year at any site 
in the area at issue. An exceedance occurs when the maximum hourly 
ozone concentration exceeds 0.124 parts per million (ppm). The data 
should be collected and quality-assured in accordance with 40 CFR part 
58, and recorded in the AIRS in order for it to be available to the 
public for review.
    The Grand Rapids and Muskegon areas have demonstrated attainment of 
the ozone NAAQS based on ozone monitoring data for the years 1992 
through 1994. The ozone monitoring network in Grand Rapids consists of 
two monitors located in Kent County. A monitor was established in 
Ottawa County in 1989 and relocated to Allegan County in 1993. The 
State, however, did reestablish a monitor in Ottawa county in 1994. Two 
exceedances of the ozone standard have been monitored since 1992 in the 
Grand Rapids area, both of these occurred at the Grand Rapids monitor 
in Kent County. At this site, the first exceedance of 0.156 ppm 
occurred in 1993, and the second exceedance of 0.149 ppm occurred in 
1994. The ozone monitoring network in Muskegon consists of one monitor 
located in Muskegon County. Three exceedances of the ozone standard 
have been monitored since 1992 in the Muskegon area, all three of these 
occurred at the Muskegon monitor in Muskegon County. At this site, one 
exceedance was recorded during each of the years 1992, 1993, and 1994 
at concentrations of 0.129 ppm, 0.141 ppm, and 0.146 ppm, respectively. 
Data stored in AIRS was used to determine the annual average expected 
exceedances for each area for the years 1992, 1993, and 1994. Data 
contained in AIRS have undergone quality assurance review by the State 
and USEPA. Since the annual average number of expected exceedances for 
each monitor during the most recent three years is equal to 1.0, the 
Grand Rapids and Muskegon areas are considered to have attained the 
standard. A more detailed summary of the ozone monitoring data for the 
area is provided in the USEPA technical support document dated May 12, 
1995.

III. Final Action

    USEPA determines that the Grand Rapids and Muskegon ozone 
nonattainment areas have attained the ozone standard and continue to 
attain the standard at this time. As a consequence of USEPA's 
determination that the Grand Rapids and Muskegon [[Page 28731]] areas 
have attained the ozone standard, the requirements of section 182(b)(1) 
concerning the submission of the 15 percent plan and ozone attainment 
demonstration and the requirements of section 172(c)(9) concerning 
contingency measures are not applicable to the area so long as the area 
does not violate the ozone standard.
    USEPA emphasizes that these determinations are contingent upon the 
continued monitoring and continued attainment and maintenance of the 
ozone NAAQS in the affected areas. If a violation of the ozone NAAQS is 
monitored in the Grand Rapids and Muskegon areas (consistent with the 
requirements contained in 40 CFR part 58 and recorded in AIRS), USEPA 
will provide notice to the public in the Federal Register. Such a 
violation would mean that the area would thereafter have to address the 
requirements of section 182(b)(1) and section 172(c)(9) since the basis 
for the determination that they do not apply would no longer exist.
    As a consequence of the determinations that the areas have attained 
and that the reasonable further progress and attainment demonstration 
requirements of section 182(b)(1) and contingency measure requirements 
of section 172(c)(9) do not presently apply, the sanctions clocks 
started by USEPA as a result of the findings made on January 21, 1994 
regarding incompleteness of the section 181(b)(1) 15 percent plans and 
172(c)(9) contingency plans are hereby stopped as the deficiency for 
which the clocks were started no longer exists.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any state implementation plan. Each request for revision to the State 
implementation plan shall be considered separately in light of specific 
technical, economic, and environmental factors and in relation to 
relevant statutory and regulatory requirements.
    This action will become effective on July 17, 1995. However, if the 
USEPA receives adverse comments by July 3, 1995, then the USEPA will 
publish a notice that withdraws the action, and will address these 
comments in a subsequent final rule on the related proposed rule which 
is being published in the proposed rules section of this Federal 
Register.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, USEPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000. This action's determination does not create any new 
requirements, but allows suspension of the indicated requirements. 
Therefore, because the approval does not impose any new requirements, I 
certify that it does not have a significant impact on any small 
entities affected.
    Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded 
Mandates Act'') (signed into law on March 22, 1995) requires that the 
Agency prepare a budgetary impact statement before promulgating a rule 
that includes a Federal mandate that may result in expenditure by 
State, local, and tribal governments, in aggregate, or by the private 
sector, of $100 million or more in any one year. Section 203 requires 
the Agency to establish a plan for obtaining input from and informing, 
educating, and advising any small governments that may be significantly 
or uniquely affected by the rule.
    Under section 205 of the Unfunded Mandates Act, the Agency must 
identify and consider a reasonable number of regulatory alternatives 
before promulgating a rule for which a budgetary impact statement must 
be prepared. The Agency must select from those alternatives the least 
costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule, unless the Agency explains why 
this alternative is not selected or the selection of this alternative 
is inconsistent with law.
    Because this final rule is estimated to result in the expenditure 
by State, local, and tribal governments or the private sector of less 
than $100 million in any one year, the Agency has not prepared a 
budgetary impact statement or specifically addressed the selection of 
the least costly, most cost-effective, or least burdensome alternative. 
Because small governments will not be significantly or uniquely 
affected by this rule, the Agency is not required to develop a plan 
with regard to small governments.
    Under Section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 1, 1995. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See Section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen oxides, 
Ozone, Volatile organic compounds, Intergovernmental relations, 
Reporting and record keeping requirements.

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

    Dated: May 18, 1995.
Valdas V. Adamkus,
Regional Administrator.

    Part 52, chapter 1, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

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

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

Subpart X--Michigan

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


Sec. 52.1174  Control strategy: Ozone.

    (k) Determination--EPA is determining that, as of July 17, 1995, 
the Grand Rapids and Muskegon ozone nonattainment area has attained the 
ozone standard and that the reasonable further progress and attainment 
demonstration requirements of section 182(b)(1) and related 
requirements of section 172(c)(9) of the Clean Air Act do not apply to 
the area for so long as the area does not monitor any violations of the 
ozone standard. If a violation of the ozone NAAQS is monitored in the 
Grand Rapids and Muskegon ozone nonattainment area, these 
determinations shall no longer apply.

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