[Federal Register Volume 60, Number 137 (Tuesday, July 18, 1995)]
[Rules and Regulations]
[Pages 36722-36729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17755]



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[[Page 36723]]



ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

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


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On June 8, 1995, the EPA published a direct final and proposed 
rulemakings determining that the Salt Lake and Davis Counties, Utah, 
moderate ozone nonattainment area had attained the ozone National 
Ambient Air Quality Standard (NAAQS). Based on this determination, the 
EPA also determined that certain reasonable further progress and 
attainment demonstration requirements, along with certain other related 
requirements, of part D of Title 1 of the Clean Air Act (CAA), as 
amended in 1990, are not applicable to the area so long as the area 
continues to attain the ozone NAAQS. The 30-day comment period 
concluded on July 10, 1995. During this comment period, the EPA 
received two comment letters in response to the June 8, 1995, 
rulemaking. This final rule summarizes all comments and EPA's 
responses, and finalizes the EPA's determination that the area has 
attained the ozone standard and that certain reasonable further 
progress and attainment demonstration requirements as well as other 
related requirements of part D of the CAA are not applicable to these 
areas as long as the area continues to attain the ozone NAAQS.

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

ADDRESSES: Copies of the documents relevant to this action are 
available for inspection at the following address: United States 
Environmental Protection Agency, Region 8, Air Programs Branch, 999 
18th Street, Suite 500, Denver, Colorado 80202-2466.

FOR FURTHER INFORMATION CONTACT: Tim Russ, Air Programs Branch (8ART-
AP), United States Environmental Protection Agency, Region 8, 999 18th 
Street, Suite 500, Denver, Colorado 80202-2466, Telephone Number (303) 
293-1814.

SUPPLEMENTARY INFORMATION:

I. Background Information

    On June 8, 1995, the EPA published a direct final rulemaking (60 FR 
30189) determining that the Salt Lake and Davis Counties moderate ozone 
nonattainment area has attained the NAAQS for ozone. In that 
rulemaking, the EPA determined that, as a consequence of that 
determination, the requirements of section 182(b)(1) concerning the 
submission of a 15 percent reasonable further progress plan and ozone 
attainment demonstration and the requirements of section 172(c)(9) 
concerning contingency measures are not applicable to the area so long 
as the area does not violate the ozone standard. In addition, the EPA 
determined that the sanctions clock started on January 19, 1994, for 
this area for failure to submit the section 182(b)(1) reasonable 
further progress requirements and section 172(c)(9) contingency 
measures would be stopped since the deficiencies on which it was based 
no longer exist.
    At the same time that the EPA published the direct final rule, a 
separate notice of proposed rulemaking was published in the Federal 
Register (60 FR 30217). This proposed rulemaking specified that EPA 
would withdraw the direct final rule if adverse or critical comments 
were filed on the rulemaking. The EPA received two letters containing 
adverse comments regarding the direct final rule, within 30 days of 
publication of the proposed rule, and is withdrawing the direct final 
rule in a separate notice published in this Federal Register.
    The specific rationale and air quality analysis the EPA used to 
determine that the Salt Lake and Davis Counties ozone nonattainment 
area had attained the ozone NAAQS and is not required to submit State 
Implementation Plan (SIP) revisions for reasonable further progress, 
attainment demonstration and related requirements are explained in the 
direct final rule and will not be restated here.
    This final rule contained in this Federal Register addresses the 
comments which were received during the public comment period and 
announces EPA's final action regarding these determinations.

II. Public Comments and EPA Responses

    Two letters were received in response to the June 8, 1995, proposal 
and direct final Federal Register notices. One was a joint comment from 
the Utah Chapter of the Sierra Club and the Wasatch Clean Air Coalition 
(Wasatch Coalition) and the other was from the Citizens Commission for 
Clean Air in the Lake Michigan Basin (Citizens Commission). The 
following discussion summarizes and responds to the comments received.
    Comment 1.: According to the Sierra Club and Wasatch Coalition, the 
procedure used by EPA unlawfully circumvents the formal redesignation 
process required by section 107(d) of the CAA. The commentors stated 
that Utah has not met the technical and legal requirements for 
redesignation of the Salt Lake and Davis Counties nonattainment area to 
attainment for ozone and that, as a result, EPA's finding that certain 
CAA requirements do not apply is illegal and inappropriate. According 
to the commentors, EPA may not redesignate an area to attainment unless 
the criteria of section 107(d)(3) of the CAA have been satisfied and 
EPA may not allow nonattainment areas to avoid requirements by meeting 
only one of the five criteria of section 107(d)(3) (the requirement 
that a nonattainment area has attained the standard). The commentors 
assert that Part D expressly defines attainment or nonattainment 
exclusively by reference to the section 107(d) redesignation process 
and that the statutory provisions of Part D at issue are tied expressly 
to the formal designation process of section 107(d). The commentors 
conclude that the ozone nonattainment plan provisions of Part D apply 
expressly to areas classified under section 181, which include all 
areas designated nonattainment under section 107(d), and that all of 
the requirements of section 182(b) apply to all areas designated 
nonattainment and classified as moderate under section 181. The 
commentors also contend that an area may be excused from sanctions only 
on the basis of redesignation to attainment under section 107(d).
    Response to Comment 1: In response, EPA first notes that with this 
action, EPA is neither redesignating the Salt Lake and Davis Counties 
nonattainment area, nor avoiding the redesignation requirements of 
section 107(d). All of those requirements remain in effect and must be 
satisfied for EPA to approve the pending redesignation request for the 
Salt Lake and Davis Counties area. What EPA is doing is making a 
determination that since the area is attaining the standard, which is a 
factual determination, certain provisions of the CAA, whose express 
purpose is to achieve attainment of the standard, do not require SIP 
revisions to be made by the State for so long as the area continues to 
attain the standard. In sum, this action is not and does not purport to 
be a redesignation to attainment pursusant to section 107(d). 
Consequently, the criteria of section 107(d)(3) do not apply to this 
action.
    EPA disagrees with the commentors' analysis of the language and 
structure of the CAA. EPA's statutory analysis was 

[[Page 36724]]
explained in detail in the June 8, 1995, direct final rule and in the 
May 10, 1995, memorandum from John Seitz, Director, Office of Air 
Quality Planning and Standards, referred to in the June 8, 1995, 
Federal Register notice. EPA will not recount that analysis here, but 
will respond to the arguments presented by the commentors regarding the 
statutory language and structure of Part D of Title I of the CAA as it 
relates to EPA's action.
    In sum, EPA's legal rationale is based upon the statutory 
definition of ``reasonable further progress'' in section 171(1), the 
concept that additional reductions are not needed to attain the 
standard in an area already attaining the standard, and the language of 
section 172(c)(9) requiring contingency measures ``if the area fails to 
make reasonable further progress, or to attain the national primary 
ambient air quality standard by the attainment date applicable under 
this part.'' As the commentors acknowledge, section 171(1) defines 
``reasonable further progress'' as ``such annual incremental reductions 
in emissions of the relevant air pollutant as are required by this part 
or may reasonably be required by the Administrator for the purpose of 
ensuring attainment of the applicable national ambient air quality 
standard by the applicable date.''
    The commentors, however, assert that EPA is ignoring the definition 
of ``nonattainment area'' in section 171(2). The commentors then 
proceed to argue that as Part D ozone requirements are linked with the 
classification under section 181 of areas designated nonattainment for 
ozone under section 107(d), EPA cannot excuse ozone nonattainment areas 
from full compliance with section 182 unless all requirements of 
section 107(d)(3) are met.
    In response, EPA first notes that the commentors appear to equate 
the designation of an area as attainment or nonattainment with the 
factual issue of whether an area, regardless of its designation, is 
attaining the standard. These are two distinct issues, however. Title I 
of the CAA, including Part D, contains provisions that distinguish 
between the concept of whether an area is attaining a standard and an 
area's designation as attainment or nonattainment.
    Indeed, section 107(d)(3) itself clearly demonstrates the 
distinction as only one of the five criteria for redesignation of a 
nonattainment area to attainment is the determination that the area 
``has attained the national ambient air quality standard.'' (Section 
107(d)(3)((E)(i).) Plainly, the CAA clearly contemplates that there 
will be areas designated nonattainment that are attaining the standard 
as there could be a nonattainment area that meets the air quality 
criterion for redesignation to attainment without satisfying the other 
criteria. Such an area would need to remain designated nonattainment 
even though it was attaining the standard.
    A provision of Part D that demonstrates the distinction between 
attaining the standard and the designation of an area as attainment or 
nonattainment is section 182(f), which authorizes EPA to waive NOx 
reduction requirements that apply to ozone nonattainment areas by 
virtue of their designation and classification if EPA determines that 
the NOx reductions would ``not contribute to attainment of the'' 
standard. EPA has interpreted and applied this provision on numerous 
occasions to waive NOx emission reduction requirements for areas that 
have attained the standard since such reductions in areas that have 
already attained the standard would not contribute to attainment. See, 
e.g., 60 FR 3760 (January 19, 1995) (final action on NOx waivers for 
Toledo and Dayton, Ohio). Thus, that provision clearly contemplates 
that areas designated nonattainment that have attained the standard may 
have certain specified requirements waived.
    In sum, the CAA clearly does not equate the factual issue of 
whether an area is attaining the standard with the area's designation 
status as attainment or nonattainment. It expressly contemplates 
situations in which areas designated nonattainment may be attaining the 
standard. Thus, the definition of ``nonattainment area'' in section 
171(2), which provides that, for purposes of Part D, a nonattainment 
area means an area that ``is designated `nonattainment' with respect to 
[a particular] pollutant within the meaning of section 107(d)'' does 
not detract from EPA's interpretation of the language of section 171(1) 
defining ``reasonable further progress'' requirements in terms of 
reductions for the purpose of ``ensuring attainment.''
    EPA agrees with the commentors' basic conception of the Part D 
ozone nonattainment area requirements, which is that the classification 
of an area designated nonattainment for ozone determines the set of 
requirements of subpart 2 to which the area is subject. For example, 
areas such as the Salt Lake and Davis Counties area that are classified 
as moderate pursuant to section 181 are subject to the requirements of 
section 182(b), while areas that are classified as serious are subject 
to the requirements of section 182(c).
    The question at issue in this rulemaking concerns the substance of 
some of those requirements. As a general matter, section 182(b)(1) and 
section 172(c)(9) apply to moderate ozone nonattainment areas. However, 
in this rulemaking EPA is interpreting section 182(b)(1) and 172(c)(9) 
such that they do not impose SIP submission requirements on an area 
classified as a moderate ozone nonattainment area that is attaining the 
ozone standard for so long as the area continues to attain the 
standard. This is not a waiver of requirements that by their terms 
clearly apply; it is a determination that certain requirements are 
written so as to be operative only if the area is not attaining the 
standard. If, prior to the redesignation of such an area to attainment, 
the area violates the ozone NAAQS, that determination will no longer 
apply. That area, by virtue of its continuing designation and 
classification as a moderate ozone nonattainment area, will once again 
be faced with an obligation to submit SIP revisions pursuant to 
sections 172(c)(9) and 182(b)(1).
    Moreover, other requirements of part D that are not written in such 
a way as to require submissions only if an area is not attaining the 
standard continue to apply solely by virtue of the area's 
classification and designation as a moderate ozone nonattainment area. 
For example, the Volatile Organic Compound (VOC) Reasonably Available 
Control Technology (RACT) requirements of section 182(a)(2) and 
182(b)(2) apply regardless of whether an area is attaining the 
standard. Similarly, the requirements of part D new source review 
(e.g., sections 182(a)(2)(C) and (b)(5)) continue to apply to areas 
designated nonattainment solely by virtue of their continuing 
nonattainment designation.
    In sum, EPA disagrees with the commentors' view that this 
rulemaking is a de facto redesignation to attainment without complying 
with all of the redesignation requirements of section 107(d)(3)(E). The 
Salt Lake and Davis Counties area remains a moderate ozone 
nonattainment area and remains subject to the requirements of the CAA 
applicable to such areas pursuant to sections 172(c) and 182(b). These 
include requirements such as VOC RACT and part D new source review, 
whose applicability is linked solely to the area's status as a 
designated ozone nonattainment area that has been classified as 
moderate. What EPA is determining is that the SIP submission 
requirements of section 182(b)(1) regarding 15% reasonable further 
progress and attainment demonstration 

[[Page 36725]]
plans and of section 172(c)(9) regarding contingency measures to be 
implemented in the event an area fails to make reasonable further 
progress or attain the standard by the attainment date can and should 
be interpreted not to apply for so long as the area continues to attain 
the standard. Whether the Salt Lake and Davis Counties nonattainment 
area may be redesignated to attainment pursuant to section 107(d)(3)(E) 
is a matter still pending before EPA and is not the subject of this 
rulemaking action.
    EPA also disagrees with the commentors' contentions regarding 
sanctions. The basis for the initiation of a sanctions clock in this 
instance was a finding that plan revisions required by the CAA were not 
submitted (see section 179(a)). If EPA determines that the requirement 
that led to that finding no longer applies, then the basis for the 
initiation of the sanctions clock no longer exists and mandatory 
sanctions under section 179 should not apply 18 months after the 
finding as they would if the deficiency (the failure to make a required 
SIP submission) that led to the finding still existed.
    Comment 2: The Sierra Club and Wasatch Coalition commented that 
EPA's procedure violates an important policy goal of the CAA--the 
assurance that standards will be maintained in the future. According to 
the commentors the four criteria, other than having attained the 
standard, that must be satisfied for an area to be redesignated to 
attainment are intended to assure continued attainment of the standard. 
The commentors stated that if EPA exempts Salt Lake and Davis Counties 
from the RFP and contingency plan requirements there may be little 
incentive for the State to proceed with redesignation of the area and 
the additional requirements would not be met. In addition, the 
commentors contend that the State is having difficulty demonstrating 
that the NAAQS will be maintained over the next 15 years due to 
anticipated growth and that some current emission reductions are not 
due to permanent and enforceable requirements. According to the 
commentors, EPA's proposed action regarding the section 182(b)(1) and 
section 172(c)(9) requirements and sanctions would circumvent the 
preventive approach of the CAA. The commentors assert that the 
nonconservative approach of having the excused requirements being 
retriggered in the event of a violation is inappropriate and 
inconsistent with congressional intent since it does not assure that 
adequate controls are in place to prevent violations; it relies on 
correcting inadequate programs only after harm occurs, which will 
result in residents being required to breathe unhealthy air that should 
have been prevented.
    Response to Comment 2: As discussed above, this proceeding is not a 
redesignation and EPA is not required to apply the criteria of section 
107(d)(3)(E) in determining whether the Salt Lake and Davis Counties 
nonattainment area has attained the standard for purposes of 
determining whether the area is presently required to submit SIP 
revisions pursuant to sections 182(b)(1) and 172(c)(9). That does not 
mean that EPA is not concerned with the area's ability to continue to 
maintain the NAAQS in the future.
    First, as discussed above, EPA's action applies only to certain 
requirements. It does not relax any existing SIP control measures, 
e.g., VOC RACT requirements. Those requirements will continue to apply, 
as well as federal requirements such as the federal motor vehicle 
control program, which will produce additional emission reductions in 
the future due to fleet turnover, and Reid Vapor Pressure (RVP) 
requirements. These measures have produced permanent and enforceable 
emission reductions in the period leading to the area's attainment of 
the standard and will continue to produce such emission reductions.
    Second, EPA's action is contingent upon the area continuing to 
attain the NAAQS. Unless the area is redesignated, it will remain an 
ozone nonattainment area, subject to the risk that if a violation 
occurs it will have to adopt and implement a 15% VOC emission reduction 
plan and a plan that demonstrates attainment pursuant to section 
182(b)(1), as well as the section 172(c)(9) contingency measures. Thus, 
if it turns out that the existing SIP control measures and other 
requirements are not adequate to prevent a violation, additional 
control measures will be required.
    EPA acknowledges the concern of the commentors that EPA's approach 
may mean that those control measures would not be adopted and 
implemented as quickly as they would be if EPA continued to require the 
section 182(b)(1) and 172(c)(9) SIP submissions at this time. EPA 
believes, however, that a countervailing policy objective is to reduce 
the burden on states and sources of adopting and implementing 
additional control measures that are not necessary to attain the 
standard. The Salt Lake and Davis Counties nonattainment area has been 
in attainment of the standard since the 1991-93 period and continues to 
be in attainment. Indeed, no exceedances of the standard have been 
monitored since 1991 and only one exceedance was monitored in 1991. 
(For a violation to occur, the expected exceedances must amount to four 
over a three-year period at the same monitoring location.) In such a 
case, where an area has attained the standard, EPA believes it 
appropriate and justifiable to adopt an approach that alleviates the 
burdens of adopting and implementing additional control measures that 
do not appear necessary to achieve the objective of attaining the 
standard.
    As noted previously, the Salt Lake and Davis Counties nonattainment 
area will be at risk of having to adopt a 15% reasonable further 
progress plan, attainment demonstration, and section 172(c)(9) 
contingency measures unless it is redesignated to attainment. In order 
to be redesignated to attainment, however, the area will have to 
satisfy all of the criteria of section 107(d)(3)(E), including the 
requirement that EPA fully approve a maintenance plan satisfying the 
requirements of section 175A, which requires a plan to maintain the 
standard for a period of 10 years after an area is redesignated. As the 
sufficiency of the State's maintenance plan is an issue for the 
proceeding that evaluates the merits of the State's pending 
redesignation request, and not this rulemaking, the comments regarding 
the adequacy of that plan will be considered in the redesignation 
proceeding.
    EPA believes that, contrary to the suggestion of the commentors, 
that the State will have adequate incentives to continue to seek the 
redesignation of the Salt Lake and Davis Counties area to attainment. 
Those incentives include being able to eliminate the risk of being 
subject to the 15% plan requirement, rather than have to address a 
requirement to achieve 15% VOC emission reductions in the event of a 
violation. Furthermore, if the area violates the standard prior to 
redesignation, it will be subject to the ``bump-up'' provisions of 
section 181(b)(2), which require the area to be ``bumped up'' to the 
next higher classification (serious) and subject to additional 
requirements above and beyond the requirements applicable to moderate 
ozone nonattainment areas. This provides an additional substantial 
incentive for the State to satisfy the requirements for redesignation 
to attainment. In addition, unless an area is redesignated, part D new 
source review, rather than part C prevention of significant 
deterioration requirements, must continue to apply.
    Comment 3: The Sierra Club and Wasatch Coalition disagree that the 

[[Page 36726]]
    relevant data demonstrate that the Counties have attained the NAAQS for 
ozone. The commentors argue that the State should have to conclusively 
demonstrate that the NAAQS for ozone is being met, and, in their view, 
the State has not done so. The commentors note that EPA has expressed 
concern over the number and placement of monitoring stations and that 
studies of the monitoring network conducted in the summers of 1993 and 
1994 concluded that additional monitoring stations should be 
established and that existing stations were not well placed to measure 
maximum ozone concentrations. The commentors argue that only one year 
of preliminary data are available from new stations established as a 
result of these studies and that attainment cannot be demonstrated 
based on only one year of data from the new sites. The commentors also 
cite the complexity of meteorological patterns in the affected area, 
which may result in variable ozone levels at different locations at 
different times. Because of this meteorological complexity, the 
commentors argue that it is inappropriate to extrapolate a finding of 
areawide compliance from a few monitoring sites. According to the 
commentors, these problems may lead to a false conclusion of attainment 
throughout the nonattainment area. In the commentors' view, this 
concern is far more serious because data from monitoring locations is 
so close to the applicable standard and very small increases at 
different locations would indicate nonattainment with the standard. The 
commentors feel it is premature to conclude that the standard has been 
met.
    The Citizens Commission expresses similar concerns regarding the 
air quality monitoring data upon which EPA based its proposal.
    Response to Comment 3: EPA has approved the monitoring network for 
the Salt Lake and Davis Counties nonattainment area as meeting the 
requirements of its regulations. EPA has not taken any action to 
disapprove the network but, as described in detail below, has been 
working with the State of Utah to improve the quality of the network. 
Although EPA and the State are undertaking studies that may result in 
improvements to the network, that does not mean that EPA views the 
monitoring data showing attainment of the standard as being inadequate 
or unreliable. EPA continually reviews the monitoring networks to 
determine how they can be improved. However, the fact that a monitoring 
network may be able to be improved does not mean that the existing 
network does not meet EPA's regulations, nor does it mean that the data 
collected from the existing network should be ignored or discounted. 
EPA believes that the monitoring data fully support a determination 
that the Salt Lake and Davis Counties area has attained the standard. 
That network remains a fully approved network and EPA does not believe 
that there is a basis for discounting the data showing attainment of 
the standard since 1990.
    EPA further notes that no exceedances have been monitored in the 
area since 1991, and only one was monitored in 1991. (Contrary to the 
assertion of the commentors, EPA's methodology of rounding down a 
monitored reading of up to .124 to .12 is not inconsistent with 40 CFR 
Part 50, App. H. That is EPA's long-standing approach to determining 
whether exceedances occur and is fully justified and appropriate.) 
Also, not only did the existing network fail to record an exceedance in 
1994, but none of the additional monitors established as part of the 
ongoing studies discussed below monitored an exceedance. While those 
monitors have yet to be in operation a full three years, those initial 
results support the finding that the area has attained the standard. As 
a violation does not occur unless four exceedances occur at a single 
monitor over a three-year period, the data from the Salt Lake and Davis 
Counties area amply support the determination that the area has 
attained the standard.
    What follows is a more detailed explanation of EPA's reviews of the 
ozone monitoring network and the ongoing studies being conducted to 
evaluate it. The Utah Division of Air Quality conducted network reviews 
and submitted packages of information describing reviews of the State's 
air monitoring network (including ozone monitoring stations) covering 
the period of 1991 through 1994. EPA has reviewed the submittals.
    In a letter from Marshall Payne to Burnell Cordner dated September 
1, 1992 regarding the State's network review submittal of May 1 and May 
15, 1992, EPA concluded the network review met the requirements of 40 
CFR, Part 58.20(d). In a letter from Marshall Payne to Russell Roberts 
dated January 13, 1994 regarding the State's network review submittal 
of June 2, 1993, EPA commented on the results of the 1993 saturation 
study and requested that the State submit a plan to revise the ozone 
monitoring network. The State's response to that request was dated 
March 4, 1994; EPA replied in a letter from Marshall Payne and Douglas 
Skie dated April 13, 1994. In the April 13, 1994 letter, EPA urged the 
State to proceed with proposed additions to the ozone network for the 
1994 ozone season. The State added several ozone stations, which 
collected data in the 1994 ozone season.
    A letter from Douglas Skie to Russell Roberts dated May 5, 1995 
regarding the State's network review submittal of September 30, 1994, 
stated that, in general, EPA supported the modifications to the ozone 
network resulting from the 1993 and 1994 saturation studies. In the 
same letter, EPA urged the State to designate National Air Monitoring 
Stations both in Ogden and the Provo-Orem area. In the May 5, 1995 
letter, EPA also acknowledged the State's request to discontinue the 
Springville ozone station due to low observed concentrations; EPA 
concurred that this station, having been established based upon the 
saturation study of 1993, had fulfilled its purpose and was no longer 
needed. The Salt Lake City station (610 South Second East) was 
discontinued late in 1994 due to permanent structural changes on the 
roof of the Health Department building.
    The State submitted a report, ``Wasatch Front Ozone Saturation 
Study, Summer, 1994'' under a letter dated April 3, 1995. The report 
cited limitations of the passive sampling devices used in the study; 
those limitations impede the ability to confidently select sites for 
maximum concentration stations on the basis of saturation studies 
alone. Because of differences in meteorological conditions between 1993 
and 1994, EPA contends the results of the 1994 study suggest it is 
important to operate a network of ozone monitoring stations with 
diverse exposures in the Wasatch Front. Maximum ozone concentrations 
were measured relatively close to the urban core of Salt Lake City, 
while some high concentrations may still occur in the periphery. The 
report suggested the possibility of establishing an ozone monitoring 
station on the east bench of Salt Lake City (viz., in the vicinity of 
Sandy and Draper, Utah). EPA has supported the plan to install such a 
station and has urged the State to proceed.
    Concentrations of air pollutants, particularly ozone, are dynamic 
and air monitoring networks should continually be reviewed and 
transformed to ensure pollutant concentrations are accurately reflected 
in the national data base. EPA has, through the network review process, 
examined submittals bearing upon the design of the ozone network in the 
Wasatch Front, made comments on changes recommended in the network 
design, and concurred on the design of the ozone network during the 
period of 

[[Page 36727]]
1991 to 1994. Results of the saturation studies of 1993 and 1994 were 
also reviewed by EPA. EPA expressed concerns regarding the network 
design during the period 1991 to 1994 and requested that the State make 
modifications; however, the proposed changes evolved as part of the 
normal process of network design review. The State took action to 
address the concerns and modified the network. The ozone standard has 
not been violated in the Wasatch Front during the period from 1991 to 
1994; there have been no exceedances since 1991. It is EPA's position 
that the State of Utah modified, sited, and operated the ozone 
monitoring network consistent with 40 CFR Part 58 during those years 
and that the resulting data can reasonably be relied upon to 
characterize the ozone attainment status of Salt Lake and Davis 
Counties.
    Comment 4: The Citizens Commission stated that the rulemaking is an 
abuse of agency discretion and violates sections 172(c)(9), 179(a) and 
182(b)(1) of the Act. According to the commentor, EPA may suspend the 
applicablility of SIP requirements only through a redesignation to 
attainment pursuant to section 107(d)(3)(E).
    Response to Comment 4: For the reasons stated above, in the June 8, 
1995, Federal Register notice, and in the May 10, 1995, memorandum from 
John Seitz, the EPA does not believe that the rulemaking violates any 
section of the CAA. The commentor has not offered any persuasive 
reasoning for EPA to depart from the rationale spelled out in the 
previous documents. The EPA believes that since the area has attained 
the ozone standard, it has achieved the stated purpose of the section 
182(b)(1) reasonable further progress and attainment demonstration 
requirements, as well as the section 172(c)(9) contingency measures 
requirement. As described above, this action is not a redesignation, 
nor does it circumvent the requirements for a redesignation under 
section 107(d)(3)(E).
    Comment 5: The Citizens Commission stated that EPA's action is not 
a reasonable interpretation of EPA's nondiscretionary mandate under 
section 101(b)(1) to ``protect and enhance the quality of the Nation's 
air resources so as to promote the public health and welfare and the 
productive capacity of its population.''
    Response to Comment 5: The EPA disagrees with the commentor's 
statement that its action violates section 101(b)(1). Section 101(b)(1) 
does not establish a nondiscretionary duty; it is a statement of 
purpose--a purpose that EPA is not disregarding in this action. The 
area has attained the primary ozone standard, a standard designed to 
protect public health with an adequate margin of safety (see section 
109(b)(1)). EPA's action does not relax any of the requirements that 
have led to the attainment of the standard. Rather, its action has the 
effect of suspending requirements, for additional pollution reductions, 
above and beyond those that have resulted in the attainment of the 
health-based standard.
    Comment 6: The Citizens Commission asserts that EPA's action 
violates the Administrative Procedure Act and the CAA through its 
reliance on unpublished memoranda and the General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990, 57 
FR 13498 (April 16, 1992). According to the commentor, reliance on 
those documents is inappropriate and illegal since those documents were 
issued without opportunity for notice and comment and are not 
enforceable regulations. The commentor also states that EPA's action is 
barren of any statement of legal authority.
    Response to Comment 6: EPA's reference to and reliance on those 
documents, all of which are either published or publicly available and 
a part of the record of this rulemaking, is in no way illegal under 
provisions of either the CAA or the Administrative Procedures Act. (The 
commentor cited no specific provisions of either act.) EPA agrees that 
such documents do not establish enforceable regulations; they do not 
purport to be anything but guidance. That is precisely why EPA has 
performed this rulemaking--a notice-and-comment rulemaking to take 
comment on its statutory interpretations and factual determinations in 
order to make a binding and enforceable determination regarding the 
Salt Lake and Davis Counties area. The June 8, 1995, Federal Register 
notices referred to EPA's prior policy memoranda not as binding the 
Agency to adopt the interpretations being proposed therein, but rather 
as a useful description of the rationale underlying those proposed 
interpretations. EPA has explained the legal and factual basis for its 
rulemaking in the June 8, 1995, Federal Register notices and afforded 
the public a full opportunity to comment on EPA's proposed 
interpretation and determination fully consistent with the applicable 
procedural requirements of the Administrative Procedures Act. (The 
procedural requirements of section 307(d) of the CAA do not apply to 
this rulemaking since it is not among the rulemakings listed in section 
307(d)(1).)
    Comment 7: The Citizens Commission states that the suspension of 
the contingency measure requirement is particularly inappropriate given 
the dubious adequacy of the monitoring network. According to the 
commentor, EPA's action threatens to subject citizens to acute ozone 
episodes to which neither the State nor EPA are likely to be able to 
respond effectively due to the lack of implemented measures that would 
otherwise have been required.
    Response to Comment 7: The response to Comment 3 above contains 
EPA's discussion of the adequacy of the monitoring network in the Salt 
Lake and Davis Counties area. As noted in the response to Comment 2 
above, EPA acknowledges the concerns of the commentors regarding the 
likelihood that additional control measures may not be adopted and 
implemented as quickly as if EPA continued to require their adoption 
and submission at this time, but believes that countervailing policy 
considerations exist. Moreover, EPA notes that additional emission 
reductions will continue to occur as existing control measures are not 
being relaxed and the federal motor vehicle control program will 
continue to produce additional reductions through fleet turnover. As 
the language quoted by the commentor from EPA's June 8, 1995, Federal 
Register notice indicates, EPA would take individual circumstances into 
account, which would include the severity of any problems, in 
establishing the period in which the State would have to address the 
SIP requirements. EPA believes that it and the State would be able to 
respond effectively and promptly in the event a violation occurs.
    Comment 8: The Citizens Commission states that the Salt Lake and 
Davis Counties nonattainment area cannot be temporarily redesignated in 
this manner, especially solely on the basis of marginal air quality 
data indicating momentary achievement of the standard.
    Response to Comment 8: As explained elsewhere in this notice, EPA's 
action is not a redesignation and is both appropriate and legally 
justified. Moreover, as explained above, the air quality data 
underlying the determination is sufficient. Finally, the data are not 
marginal and do not indicate ``momentary achievement'' of the standard. 
No exceedances have been monitored over the most recent full 3-year 
period and only one exceedance was monitored in 1991. Thus, the area 
has had clean data for an extended period of time during which emission 
reductions have occurred due to the 

[[Page 36728]]
imposition of various control measures such as the federal motor 
vehicle control program, VOC RACT requirements, and RVP requirements.

Final Rulemaking Action

    The EPA is making a final determination that the Salt Lake and 
Davis Counties ozone nonattainment area has attained the ozone standard 
and continues to attain the standard at this time. As a consequence of 
this determination, the requirements of section 182(b)(1) concerning 
the submission of the 15 percent reasonable further progress plan and 
ozone attainment demonstration and the requirements of section 
172(c)(9) concerning contingency measures are not applicable to the 
area so long as the area does not violate the ozone standard.
    The EPA emphasizes that these determinations are contingent upon 
the continued monitoring and continued attainment and maintenance of 
the ozone NAAQS in the affected area. When and if a violation of the 
ozone NAAQS is monitored in the Salt Lake and Davis Counties 
nonattainment area (consistent with the requirements contained in 40 
CFR Part 58 and recorded in AIRS), the EPA will provide notice to the 
public in the Federal Register. Such a violation would mean that the 
area would thereafter have to address the requirements of section 
182(b)(1) and section 172(c)(9) since the basis for the determination 
that they do not apply would no longer exist.
    As a consequence of the determination that these areas have 
attained the NAAQS and that the reasonable further progress and 
attainment demonstration requirements of section 182(b)(1) and 
contingency measure requirement of section 172(c)(9) do not presently 
apply, these are no longer requirements within the meaning of 40 CFR 
Sec. 52.31(c)(1). Consequently, the sanctions clock started by EPA on 
January 19, 1994, for failure to submit SIP revisions required by the 
provisions of the CAA is hereby stopped.
    Specific to the Salt Lake and Davis Counties' ozone nonattainment 
area, Governor Michael Leavitt submitted a Redesignation Request and 
Maintenance Plan on November 12, 1993. On January 13, 1995, the 
Governor submitted revisions to that initial submittal that included 
revised emission inventories.
    Because the State submitted an Ozone Redesignation Request and 
Maintenance Plan SIP revision for Salt Lake and Davis Counties, in lieu 
of a 15 percent SIP revision, Salt Lake and Davis Counties have been 
subject to the motor vehicle emissions budget in the Ozone 
Redesignation Request and Maintenance Plan SIP revision for 
transportation conformity purposes (see 40 CFR 93.128(i)).
    Pursuant to EPA's new May 10, 1995, policy, the State may continue 
to demonstrate conformity to this submitted motor vehicle emissions 
budget, or the State may choose to withdraw the applicability of the 
motor vehicle emissions budget in the Ozone Redesignation Request and 
Maintenance Plan SIP revision for transportation conformity purposes, 
through the submittal of a letter from the Governor. If the 
applicability of the submitted motor vehicle emissions budget is 
withdrawn for transportation conformity purposes, only the build/no-
build and less-than-1990 tests will apply until the Ozone Redesignation 
Request and Maintenance Plan are approved. If the applicability of the 
submitted motor vehicle emissions budget is not withdrawn for 
transportation conformity purposes, it will continue to apply.
    The EPA finds that there is good cause for this action to become 
effective immediately upon publication because a delayed effective date 
is unnecessary due to the nature of this action, which is a 
determination that certain Act requirements do not apply for so long as 
the areas continue to attain the standard. The immediate effective date 
for this action is authorized under both 5 U.S.C. Sec. 553(d)(1), which 
provides that rulemaking actions may become effective less than 30 days 
after publication if the rule ``grants or recognizes an exemption or 
relieves a restriction'' and Sec. 553(d)(3), which allows an effective 
date less than 30 days after publication ``as otherwise provided by the 
agency for good cause found and published with the rule.''
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000. Today's determination does not create any new 
requirements, but suspends the indicated requirements. Therefore, 
because this notice does not impose any new requirements, I certify 
that it does not have a significant impact on small entities affected.
    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rulemaking that includes a Federal mandate that may result in 
estimated costs to State, local, or tribal governments in the 
aggregate; or to the private sector, of $100 million or more. Section 
203 requires the EPA to establish a plan for informing and advising any 
small governments that may be significantly or uniquely impacted by the 
rule. Under section 205, the EPA must select the most cost-effective 
and least burdensome alternative that achieves the objectives of the 
rule and is consistent with statutory requirements.
    The EPA has determined that this final rule action does not include 
a Federal mandate that may result in estimated costs of $100 million or 
more to either State, local or tribal governments in the aggregate, or 
to the private sector. This Federal action imposes no new Federal 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.
    Under section 307(b)(1) of the Act, petitions for judicial review 
of this final rule action determining that the Salt Lake and Davis 
Counties ozone nonattainment area has attained the NAAQS for ozone and 
that certain reasonable further progress and attainment demonstration 
requirements of section 182(b)(1) and the contingency measures 
provisions of section 172(c)(9) no longer apply must be filed in the 
United States Court of Appeals for the appropriate circuit by September 
18, 1995. Filing a petition for reconsideration by the Administrator of 
this final rule does not affect the finality of this rule for the 
purposes of judicial review nor does it extend the time within which a 
petition for judicial review may be filed, and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements. (See CAA section 
307(b)(2)).

Executive Order 12866

    The Office of Management and Budget has exempted this rule from the 
requirements of Section 6 of Executive Order 12866.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen oxides, 
Ozone, Volatile organic compounds, 

[[Page 36729]]
Intergovernmental relations, Reporting and record keeping requirements.

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

    Dated: July 13, 1995.
Jack W. McGraw,
Acting Regional Administrator.

    40 CFR part 52, Subpart TT, is amended as follows:

PART 52--[AMENDED]

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

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

Subpart TT--Utah

    2. Section 52.2332 is added to read as follows:


Sec. 52.2332  Control Strategy: Ozone.

    Determinations--EPA is determining that, as of July 18, 1995, the 
Salt Lake and Davis Counties ozone nonattainment area has attained the 
ozone standard based on air quality monitoring data from 1992, 1993, 
and 1994, and that the reasonable further progress and attainment 
demonstration requirements of section 182(b)(1) and related 
requirements of section 172(c)(9) of the Clean Air Act do not apply to 
the area for so long as the area does not monitor any violations of the 
ozone standard. If a violation of the ozone NAAQS is monitored in the 
Salt Lake and Davis Counties ozone nonattainment area, these 
determinations shall no longer apply.

[FR Doc. 95-17755 Filed 7-17-95; 8:45 am]
BILLING CODE 6560-50-P