[Federal Register Volume 65, Number 227 (Friday, November 24, 2000)]
[Rules and Regulations]
[Pages 70490-70499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30004]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[MI75-7284a; FRL-6907-1]


Approval and Promulgation of State Implementation Plans; Michigan

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The United States Environmental Protection Agency (EPA) is 
adjusting the applicability date for reinstating the 1-hour ozone 
National Ambient Air Quality Standard (NAAQS) in Allegan County, 
Michigan and is determining that the area has attained the 1-hour ozone 
NAAQS. This determination is based on 3 consecutive years of complete, 
quality-assured, ambient air monitoring data for the 1997-1999 ozone 
seasons that demonstrate the area has attained the ozone NAAQS. On the 
basis of this determination, EPA is also determining that certain 
attainment demonstration requirements, and certain related requirements 
of part D of subchapter I of the Clean Air Act (CAA), do not apply to 
the Allegan area.
    EPA is also approving the State of Michigan's request to 
redesignate Allegan County to attainment for the 1-hour ozone NAAQS. 
Michigan submitted the redesignation request for the Allegan area in 
two submittals dated September 1, 2000 and October 13, 2000. In 
approving this redesignation request, EPA is also approving the

[[Page 70491]]

State's plan for maintaining the 1-hour ozone standard for the next 10 
years as a revision to the Michigan State Implementation Plan (SIP). In 
this direct final rule, EPA is also notifying the public that we 
believe the motor vehicle emissions budgets for volatile organic 
compounds (VOC) and oxides of nitrogen (NOX) in the Allegan, 
MI submitted maintenance plan are adequate for conformity purposes and 
approvable as part of the maintenance plan.
    In the proposed rules section of this Federal Register, EPA is 
proposing approval of, and soliciting comments on, this SIP revision. 
If we receive adverse comments on this action, we will withdraw this 
final rule and address the comments received in response to this action 
in a final rule on the related proposed rule. We will not open a second 
public comment period. Parties interested in commenting on this action 
should do so at this time.

DATES: This ``direct final'' rule is effective January 16, 2001, unless 
EPA receives adverse written or critical comments by December 26, 2000. 
If the rule is withdrawn, EPA will publish timely notice in the Federal 
Register.

ADDRESSES: Send written comments to: Carlton T. Nash, Chief, Regulation 
Development Section, Air Programs Branch (AR-18J), United States 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604. (We recommend that you telephone John Mooney at (312) 
886-6043 before visiting the Region 5 Office.)
    A copy of the SIP revision is available for inspection at the 
Office of Air and Radiation (OAR) Docket and Information Center (Air 
Docket 6102), Room M1500, United States Environmental Protection 
Agency, 401 M Street SW., Washington, DC 20460, (202) 260-7548.

FOR FURTHER INFORMATION CONTACT: John M. Mooney, 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, (312) 886-6043.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Adjustment of Applicability Date for Reinstating the 1-Hour Ozone 
Standard
    A. Why did EPA revoke the 1-hour ozone standard in Allegan?
    B. Why did EPA reinstate the 1-hour ozone standard in Allegan?
    C. What does reinstatement mean for Allegan?
II. Determination of Attainment
    A. What action is EPA taking?
    B. Why is EPA taking this action?
    C. What would be the effect of this action?
    D. What is the background for this action?
    E. Where is the public record and where do I send comments?
III. Redesignation Request
    A. What action is EPA taking?
    B. What would be the effect of the redesignation?
    C. What is the background for this action?
    D. What are the redesignation review criteria?
    E. What is EPA's analysis of the request?
    F. Where is the public record and where do I send comments?
IV. Disclaimer Language Approving SIP Revisions
V. What administrative requirements did EPA consider?
    A. Executive Order 12866
    B. Executive Order 13045
    C. Executive Order 13084
    D. Executive Order 13132
    E. Regulatory Flexibility
    F. Unfunded Mandates
    G. Submission to Congress and the Comptroller General
    H. National Technology Transfer and Advancement Act
    I. Petitions for Judicial Review

I. Adjustment of Applicability Date for Reinstating the 1-Hour 
Ozone Standard

A. Why Did EPA Revoke the 1-hour Ozone Standard in Allegan?

    On June 5, 1998 (63 FR 31014), July 22, 1998 (63 FR 39432) and June 
9, 1999 (64 FR 30911), the EPA revoked the 1-hour ozone NAAQS in many 
areas around the country in anticipation of implementing the new 8-hour 
ozone NAAQS that was established in 1997. EPA revoked the 1-hour 
standard to allow areas that were showing attainment to redirect their 
focus toward meeting the new 8-hour standard. On June 9, 1999, the EPA 
revoked the 1-hour standard for the Allegan area because ozone monitors 
were showing attainment of the ozone NAAQS.

B. Why Did EPA Reinstate the 1-hour Ozone Standard in Allegan?

    On May 14, 1999, the U.S. Court of Appeals for the District of 
Columbia Circuit issued a decision on the 8-hour ozone NAAQS that 
blocked EPA's ability to implement the new standard. That action left 
nearly 3,000 U.S. counties without any federal public health standard 
for ozone. To remedy this situation, on July 20, 2000, EPA published a 
final rulemaking action in the Federal Register (65 FR 45181) to 
reinstate the 1-hour standard in areas where it had been revoked, 
including Allegan.

C. What Does Reinstatement Mean for Allegan?

    For areas with clean air quality data, like Allegan, the July 20, 
2000 rulemaking (65 FR 45182) specifies that reinstating the 
nonattainment designation will occur 180 days after EPA published the 
rulemaking, on January 16, 2001. EPA believes that it is appropriate to 
provide nonattainment areas with clean air quality data since 
revocation additional time to complete the redesignation process. 
Therefore, EPA delayed the applicability date of the final rule for 180 
days for areas that were designated nonattainment at the time of 
revocation and continue to have clean data, to allow States to submit 
redesignation requests and EPA time to act on them prior to the January 
16, 2001 applicability date. The July 20, 2000 rule specifies a 
procedure by which EPA can synchronize the effective date of the 
reinstatement and the redesignation. EPA is using that procedure in 
this action.

II. Determination of Attainment

A. What Action Is EPA Taking?

    The EPA is determining that the Allegan ozone nonattainment area 
has attained the NAAQS for ozone. On the basis of this determination, 
EPA is also determining that certain CAA requirements do not apply to 
the Allegan area as long as it continues to attain the ozone NAAQS. 
These requirements are (section 172(c)(1)) attainment demonstration 
requirements and (section 172(c)(9)) contingency measure requirement.

B. Why Is EPA Taking This Action?

    EPA believes it is reasonable to interpret provisions regarding 
attainment demonstrations and certain related provisions to not require 
SIP submissions, as described further below, if an ozone nonattainment 
area subject to those requirements is monitoring attainment of the 
ozone standard (i.e., attainment of the NAAQS is demonstrated with 
three consecutive years of complete, quality-assured, air quality 
monitoring data). EPA made this interpretation, and described our legal 
rationale for it in a memo from John Seitz dated May 10, 1995. EPA is 
basing the determination that Allegan County has attained the ozone 
standard upon three years of complete, quality-assured, ambient air 
monitoring data for the 1997 to 1999 ozone seasons recorded at the 
Allegan monitoring site. These data demonstrate that Allegan County has 
attained the ozone NAAQS. Preliminary ozone monitoring data for 2000

[[Page 70492]]

continue to show that this area is attaining the ozone NAAQS.

C. What Would Be the Effect of This Action?

    The requirements of section 172(c)(1) concerning the submission of 
a plan to ensure reasonable further progress (RFP) plan and the ozone 
attainment demonstration and the requirements of section 172(c)(9) 
concerning contingency measures for RFP or attainment will not apply to 
Allegan County.
    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 determination in this document does not shield an area from 
future EPA 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, 
any other states with respect to the NAAQS (see section 110(a)(2)(D)). 
The EPA has authority under sections 110(a)(2)(A) and 110(a)(2)(D) of 
the CAA to require such emission reductions if necessary and 
appropriate to deal with transport situations.

D. What Is the Background for This Action?

    The EPA believes it is reasonable to interpret provisions regarding 
RFP and attainment demonstrations and certain related provisions to not 
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). EPA has 
interpreted the general provisions of subpart 1 of part D of Subchapter 
I (sections 171 and 172) as not requiring the submission of SIP 
revisions concerning RFP, attainment demonstrations, or contingency 
measures, as explained in a memorandum from John S. Seitz, Director, 
Office of Air Quality Planning and Standards, entitled ``Reasonable 
Further Progress, Attainment Demonstration, and Related Requirements 
for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air 
Quality Standard,'' dated May 10, 1995 (See Sierra Club v. EPA, 99 F.3d 
1551 (10th Cir. 1996)).
    The attainment demonstration requirements of section 182(b)(1) are 
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 the CAA.'' If 
an area has in fact monitored attainment of the relevant NAAQS, EPA 
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 EPA in the General Preamble to Title I of the 
Clean Air Act Amendments of 1990 (1990 Act). As EPA stated in the 
Preamble, no other measures to provide for attainment would be needed 
by areas seeking redesignation to attainment since ``attainment will 
have been reached'' (57 FR 13564). 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.
    Similarly, the EPA has previously interpreted the contingency 
measure requirement of section 172(c)(9) as no longer applying once an 
area has attained the standard since those ``contingency measures are 
directed at ensuring RFP and attainment by the applicable date'' (57 FR 
13564). EPA has exercised this policy most recently in approvals for 
the Cincinnati, OH and Muskegon, MI areas (65 FR 37879 and 65 FR 
52651).
    The EPA has reviewed the ambient air monitoring data for ozone 
(consistent with the requirements contained in 40 CFR part 58 and 
recorded in AIRS) for Allegan County from the 1997 through 1999 ozone 
seasons, as recorded at the Allegan monitoring site. This data is 
summarized in Table 1 of this document covering EPA's analysis of the 
redesignation request. Preliminary monitoring data for 2000 show the 
area continues to attain the 1-hour ozone NAAQS. On the basis of this 
review, EPA determines that this area has attained the 1-hour ozone 
standard during the 1997-1999 period, which is the most recent three-
year time period of air quality monitoring data. The State therefore is 
not required to submit an attainment demonstration, RFP, or a section 
172(c)(9) contingency measure plan.

E. Where Is the Public Record and Where Do I Send Comments?

    The official record for this direct final rule is at the addresses 
in the ADDRESSES section at the beginning of this document. The 
addresses for sending comments are also provided in the ADDRESSES 
section at the beginning of this document. If we receive adverse 
comments on this action, we will withdraw this final rule and address 
the comments received in response to this action in a final rule on the 
related proposed rule. We will not open a second public comment period. 
Parties interested in commenting on this action should do so at this 
time.

III. Redesignation Request

A. What Action Is EPA Taking?

    The EPA is approving the redesignation request for the Allegan area 
because three years of ambient monitoring data demonstrate that the 
ozone NAAQS has been attained and the area has satisfied the other 
requirements for redesignation. The EPA is approving the maintenance 
plan submitted by the Michigan Department of Environmental Quality 
(MDEQ) as a revision to the SIP. The EPA is also notifying the public 
that we believe the motor vehicle emissions budgets for VOC and 
NOX are adequate for conformity purposes and approvable as 
part of the maintenance plan.

B. What Would Be the Effect of the Redesignation?

    The redesignation would change the official designation of Allegan 
County from nonattainment to attainment for the 1-hour ozone standard. 
It would also put a plan in place to maintain the 1-hour ozone standard 
for the next 10 years. This plan includes contingency measures to 
correct any future violations of the 1-hour ozone standard. It also 
includes motor vehicle emissions budgets for VOC and NOX 
which would be used in any conformity determination that is made on or 
after the effective date of the maintenance plan approval.

C. What Is the Background for This Action?

    The EPA originally designated the Allegan area as an ozone 
nonattainment area under section 107 of the 1977 CAA on March 3, 1978 
(43 FR 8962). The EPA revisited this original designation in 1991 to 
reflect new designation requirements contained in the 1990 Act. On 
November 6, 1991 (56 FR 56694), the EPA designated Allegan County as an 
ozone nonattainment area. At the time of the 1991 designations, up to 
date monitoring data was not available for this area, nor had the State 
completed a redesignation request showing that it complied with the 
requirements of section 107 of the Act. Based on this, the EPA 
designated the area as nonattainment, but did not establish a 
nonattainment classification, establishing the area as an incomplete

[[Page 70493]]

data ozone nonattainment area. The preamble for the original 
designation contains more detail on this action (56 FR 56694).
    The Allegan area has since recorded three years of complete, 
quality-assured, ambient air quality monitoring data for 1997-1999, 
thereby demonstrating that the area has attained the 1-hour ozone 
NAAQS.
    On September 1, 2000, the State of Michigan submitted a 
redesignation request and section 175A maintenance plan for the Allegan 
ozone nonattainment area. This revised plan includes updated emissions 
inventory calculations and air quality monitoring data.

D. What Are the Redesignation Review Criteria?

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, section 107(d)(3)(E) allows for 
redesignation providing that: (1) The Administrator determines that the 
area has attained the NAAQS; (2) the Administrator has fully approved 
the applicable implementation plan for the area under section 110(k); 
(3) the Administrator determines that the improvement in air quality is 
due to permanent and enforceable reductions in emissions resulting from 
implementation of the applicable state implementation plan and 
applicable federal air pollutant control regulations and other 
permanent and enforceable reductions; (4) the Administrator has fully 
approved a maintenance plan for the area as meeting the requirements of 
section 175(A); and, (5) the state containing such area has met all 
requirements applicable to the area under section 110 and part D.
    The EPA provided guidance on redesignation in the State 
Implementation Plans; General Preamble for the Implementation of Title 
I of the Clean Air Act Amendments of 1990, on April 16, 1992 (57 FR 
13498) and supplemented the guidance on April 28, 1992 (57 FR 18070). 
The EPA has provided further guidance on processing redesignation 
requests in the following documents:

    1. ``Part D New Source Review (part D NSR) Requirements for 
Areas Requesting Redesignation to Attainment,'' Mary D. Nichols, 
Assistant Administrator for Air and Radiation, October 14, 1994. 
(Nichols, October 1994)
    2. ``Use of Actual Emissions in Maintenance Demonstrations for 
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' D. Kent Berry, 
Acting Director, Air Quality Management Division, November 30, 1993.
    3. ``State Implementation Plan (SIP) Requirements for Areas 
Submitting Requests for Redesignation to Attainment of the Ozone and 
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) 
on or after November 15, 1992,'' Michael H. Shapiro, Acting 
Assistant Administrator for Air and Radiation, September 17, 1993.
    4. ``State Implementation Plan (SIP) Actions Submitted in 
Response to Clean Air Act Deadlines,'' John Calcagni, Director, Air 
Quality Management Division, October 28, 1992. (Calcagni, October 
1992)
    5. ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' John Calcagni, Director, Air Quality Management 
Division, September 4, 1992.
    6. ``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' G.T. Helms, Chief, Ozone/Carbon Monoxide Programs 
Branch, June 1, 1992.

E. What Is EPA's Analysis of the Request?

1. The Area Must Be Attaining the 1-Hour Ozone NAAQS
    For ozone, an area may be considered attaining the 1-hour ozone 
NAAQS if there are no violations, as determined according to 40 CFR 
50.9 and appendix H, based on three complete, consecutive calendar 
years of quality assured monitoring data. A violation of the 1-hour 
ozone NAAQS occurs when the annual average number of expected daily 
exceedances is equal to or greater than 1 per year at a monitoring 
site. A daily exceedance occurs when the maximum hourly ozone 
concentration during a given day is 0.125 parts per million (ppm) or 
higher. The data must be collected and quality-assured in accordance 
with 40 CFR part 58, and recorded in AIRS. The monitors should have 
remained at the same location for the duration of the monitoring period 
required for demonstrating attainment.
    The MDEQ submitted ozone monitoring data for the 1996-1998 and the 
1997-1999 ozone seasons. Table 1 below summarizes the air quality data.

         Table 1.--1-Hour Ozone Exceedances in the Allegan Area
------------------------------------------------------------------------
                                               Exceedances    Expected
                 Site                   Year    measured     exceedances
------------------------------------------------------------------------
Allegan Monitor: 26-005-0003.........   1996             1             1
                                        1997             0             0
                                        1998             1             1
                                        1999             1             1
------------------------------------------------------------------------

    This data has been quality assured and is recorded in AIRS. During 
the 1997-1999 time period, the monitor recorded two exceedances of the 
ozone NAAQS, resulting in a three year average of .67 exceedances per 
year. Preliminary 2000 ambient air quality monitoring data indicates 
that the area continues to meet the ozone NAAQS, although an exceedance 
may have occurred on June 9, 2000. If this June 9, 2000 exceedance is 
confirmed, the annual number of expected daily exceedances would be 1 
for Allegan County and the area would still show attainment of the 1-
hour standard.
2. The Area Must Have a Fully Approved SIP Under Section 110(k); and 
the Area Must Have Met All Applicable Requirements Under Section 110 
and Part D
    Before the Allegan area may be redesignated to attainment for 
ozone, it must have fulfilled the applicable requirements of section 
110 and part D. The Calcagni memorandum dated September 4, 1992, states 
that areas requesting redesignation to attainment must fully adopt 
rules and programs that come due prior to the submittal of a complete 
redesignation request.

Section 110 Requirements

    General SIP elements are delineated in section 110(a)(2) of the 
CAA. These requirements include but are not limited to the following: a 
SIP submittal containing rules the state adopted after reasonable 
notice and public hearing; provisions to establish and operate 
appropriate apparatus, methods, systems and procedures necessary to 
monitor ambient air quality; a permit program to implement provisions 
of part C, Prevention of Significant Deterioration (PSD), and part D, 
New Source Review (NSR) permit programs; criteria for stationary source 
emission control measures, monitoring and

[[Page 70494]]

reporting; provisions for modeling; and provisions for public and local 
agency participation.
    For purposes of redesignation, EPA reviewed the Michigan SIP to 
ensure that it satisfied all requirements under the amended CAA through 
approved SIP provisions. A number of the requirements did not change in 
substance and, therefore, EPA believes that the pre-amendment SIP met 
these requirements. The EPA has analyzed the Michigan SIP and 
determined that it is consistent with the requirements of amended 
section 110(a)(2). (See also 61 FR 20458 and Southwestern Growth 
Alliance v. Browner, 144 F.3d 984 (6th Cir. 1998)).

Part D: General Provisions for Nonattainment Areas

    Before Allegan County may be redesignated to attainment, the area 
must fulfill the applicable requirements of part D. Under part D, an 
area's classification indicates the requirements to which it is 
subject. Subpart 1 of part D sets forth the basic nonattainment 
requirements applicable to all nonclassifiable nonattainment areas. 
Subpart 2 of part D establishes additional requirements for ozone 
nonattainment areas classified under section 186 of the Act. As 
described in the ``General Preamble for the Implementation of Title I 
of the Clean Air Act Amendments of 1990,'' specific requirements of 
subpart 2 may override subpart 1's general provisions (57 FR 13501 
(April 16, 1992)). However, as noted in the General Preamble, the 
subpart 2 requirements do not apply to ``not classified'' ozone 
nonattainment areas (57 FR 13525). EPA designated Allegan County as a 
``not classified'' ozone nonattainment areas (56 FR 56694, November 6, 
1991), codified at 40 CFR 81.323. Therefore, to be redesignated to 
attainment, the State must meet the applicable requirements of subpart 
1 of part D--specifically sections 172(c) and 176, but not the 
requirements of subpart 2 of part D.

Subpart 1 of Part D--Section 172(c) Provisions

    Section 172(c) sets forth general requirements applicable to all 
nonattainment areas. Under 172(b), the section 172(c) requirements are 
applicable as determined by the Administrator, but no later than 3 
years from the date of the nonattainment designation.
    EPA has determined that Michigan's redesignation request for 
Allegan County has satisfied all of the requirements under section 
172(c) necessary for the area's redesignation to attainment. Many of 
the general requirements contained in section 172(c) are addressed by 
the State's pre-amendment submittal which EPA approved on May 6, 1980 
(45 FR 29801). In part 2 of this rulemaking, entitled ``Determination 
of Attainment,'' EPA is determining that several of the section 172(c) 
requirements do not apply since the area has attained the ozone NAAQS. 
The requirements for emissions inventories under section 172(c)(3) and 
permits programs under section(c)(5) still need to be addressed in 
order to redesignate the areas. Section 172(c)(3) requires submission 
and approval of a comprehensive, accurate, and current inventory of 
actual emissions. The base year emissions inventory for Allegan County 
is satisfied by the State's submittal of the 1991 inventory for this 
county in the redesignation request.
    Section 172(c)(5) requires permits to construct and operate new and 
modified major stationary sources anywhere in the nonattainment area (a 
NSR program). The EPA has determined that areas being redesignated do 
not need an approved NSR program prior to redesignation provided that 
the area demonstrates maintenance of the standard without a NSR program 
in effect. A memorandum from Mary Nichols dated October 14, 1994 
describes the rationale for this decision. See discussion in the Grand 
Rapids, Michigan document published on June 21, 1996 (61 FR 31831). EPA 
has also applied this policy in redesignations of Youngstown-Warren, 
Columbus, Canton, Cleveland-Akron-Lorain, Dayton-Springfield, Toledo, 
Preble County, Columbiana County, Clinton County, and Cincinnati Ohio, 
as well as Detroit, Michigan. Additional information on EPA's rationale 
is in the approval of the redesignation request for the Cincinnati area 
(65 FR 37879).
    The State has demonstrated that Allegan County can maintain the 
standard without a NSR program in effect, and, therefore, the State 
need not have a fully approved NSR program prior to approval of the 
redesignation request for the area. The MDEQ's federally delegated PSD 
program will become effective in Allegan County upon redesignation to 
attainment.

Section 176 Conformity Requirements

    Section 176(c) of the CAA requires that federally supported or 
funded projects conform to the air quality planning goals in the 
applicable SIP. This requirement applies to transportation plans, 
programs and projects developed, funded or approved under title 23 
U.S.C. of the Federal Transit Act (``transportation conformity''), and 
to all other federally supported or funded projects (``general 
conformity''). Section 176(c) of the CAA requires transportation 
conformity. EPA's transportation conformity rule requires that 
transportation plans, programs, and projects conform to state air 
quality implementation plans (SIPs) and establishes the criteria and 
procedures for determining whether or not they do. Conformity to a SIP 
means that transportation activities will not produce new air quality 
violations, worsen existing violations, or delay timely attainment of 
the national ambient air quality standards.
    Section 176(c) provides that state conformity revisions must be 
consistent with Federal conformity regulations that the CAA requires 
EPA to promulgate. The Federal general conformity regulations were 
finalized on November 30, 1993, and the Federal transportation 
conformity regulations were finalized on November 24, 1993. The Federal 
general conformity regulations have remained the same since that time, 
but the Federal transportation conformity regulations have been amended 
several times since 1993. EPA approved Michigan's general and 
transportation conformity SIPs on December 18, 1996 (61 FR 66607).
    The Federal transportation conformity regulations were amended on 
August 15, 1997 (40 CFR parts 51 and 93 Transportation Conformity Rule 
Amendments: Flexibility and Streamlining). Michigan submitted new 
transportation conformity rules on November 30, 1998, in response to 
the 1997 changes to the Federal transportation conformity regulations. 
However, the Michigan rules will need to be revised again due to the 
March 2, 1999 court decision (Environmental Defense Fund v. 
Environmental Protection Agency, U.S. Court of Appeals District of 
Columbia Circuit, No. 97-1637) which rescinded several sections of the 
Federal transportation conformity rule and asked EPA to revise several 
sections of the Federal rule.
    EPA believes it is reasonable to interpret the conformity 
requirements as not applying for purposes of evaluating the 
redesignation request 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 Clean Air 
Act continues to apply to areas after redesignation to attainment, 
since such areas would be subject to a section 175A maintenance plan. 
Second, EPA's Federal conformity rules require the performance of 
conformity analyses in the absence of federally approved state rules.

[[Page 70495]]

Therefore, 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 
approved, EPA believes it is reasonable to view these requirements as 
not applying for purposes of evaluating a redesignation request. See, 
for example Grand Rapids redesignation at 61 FR 31835-31836 (June 21, 
1996).
    EPA has explained its rationale and applied this interpretation in 
numerous redesignation actions. See, Tampa, Florida and Cleveland-
Akron-Lorain redesignations 60 FR 52748 (December 7, 1995), and 61 FR 
20458 (May 7, 1996), respectively. Consequently, EPA may approve the 
ozone redesignation request for Allegan County notwithstanding the lack 
of a fully approved conformity SIP.
    The on-highway motor vehicle budgets for Allegan are 9.8 tons of 
NOX/day and 5.3 tons of VOC/day, based on the area's 2011 
level of emissions. Allegan, MI must use the motor vehicle emissions 
budgets from the maintenance plan in any conformity determination made 
on or after the effective date of the maintenance plan approval.
    The EPA believes the motor vehicle emissions budgets for VOC and 
NOX are adequate for conformity purposes and approvable as 
part of the maintenance plan. Interested parties may comment on the 
adequacy and approval of the budgets by submitting their comments on 
this direct final rule.
    If EPA receives adverse written comments with respect to the 
adequacy and approval of the Allegan emissions budgets, or any other 
aspect of our approval of this SIP, by the time the comment period 
closes, we will publish a timely withdrawal of the direct final rule 
informing the public that the rule will not take effect. In this case, 
we will either respond to the comments on the emissions budgets in our 
final action or proceed with the adequacy process as a separate action.
    We will also announce our action on the Allegan emissions budgets 
on EPA's conformity website: http://www.epa.gov/oms/traq, (once there, 
click on the ``Conformity'' button, then look for ``Adequacy Review of 
SIP Submissions for Conformity'').
3. The Improvement in Air Quality Must Be Due to Permanent and 
Enforceable Reductions in Emissions
    Michigan maintains that the Allegan area is the recipient of 
overwhelming amounts of ozone transported from the upwind Gary-Chicago-
Milwaukee severe ozone nonattainment areas as demonstrated by its 
November 14, 1994 petition. The overwhelming transport demonstration 
includes urban airshed modeling (UAM) which shows that there is minimal 
to no change in ozone concentrations in Western Michigan even when 
Western Michigan VOC and NOX emissions are entirely 
eliminated. The State, therefore, concludes that emission reductions 
within Allegan County would have little or no impact on ozone 
concentrations within this area. The State maintains that the 
improvement in air quality in Allegan is largely due to emission 
reductions achieved throughout the Lake Michigan region.
    Nonetheless, the redesignation request demonstrates that permanent 
and enforceable emission reductions have occurred in the Allegan area 
as a result of the Federal Motor Vehicle Emission Control Program 
(FMVCP) and controls on industrial sources. The submittal provides a 
general discussion of development of the emission inventories for ozone 
precursors from 1991-1996 which includes estimates from EPA's NET 
inventory, Michigan's 1990 base year inventory, off-road mobile 
estimates from the Lake Michigan Air Directors Consortium (LADCO) 
inventory developed for use in the Lake Michigan Ozone Study (LMOS), 
and mobile source data using EPA's MOBILE5a mobile source emissions 
model. Although 1991 was not one of the years used to designate and 
classify the area, it was a nonattainment year. The VOC and 
NOX emission inventories for the years 1991 and 1996 
submitted by the State show a declining trend in emissions. The 1996 
emission inventory is provided as the attainment year emission 
inventory.
    According to the State's analysis, Allegan County reduced VOC 
emissions by 5.9 tons per day and NOX emissions by 0.6 tons 
per day between 1991 and 1996. The emission reductions are due to a 
combination of FMVCP and industrial source controls.
4. The Area Must Have a Fully Approved Maintenance Plan Meeting the 
Requirements of Section 175A
    Section 175A of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
The plan must demonstrate continued attainment of the applicable NAAQS 
for at least 10 years after the EPA approves a redesignation to 
attainment. Eight years after the redesignation, the state must submit 
a revised maintenance plan which demonstrates attainment for the 10 
years following the initial 10 year period. To address potential future 
NAAQS violations, the maintenance plan must contain contingency 
measures, with an implementation schedule to promptly correct any 
future air quality problems.
    Section 175A(d) requires that the contingency provisions include a 
requirement that the State will implement all control measures that 
were in the SIP prior to redesignation as an attainment area.
    An ozone maintenance plan should address the following five 
elements: Attainment inventory, demonstration of maintenance, 
monitoring network, verification of continued attainment, and a 
contingency plan.

Attainment Inventory

    The State has adequately developed an attainment emissions 
inventory for 1996 that identifies VOC and NOX emissions for 
the Allegan nonattainment area. EPA has determined that 1996 is an 
appropriate year on which to base attainment level emissions because 
monitors in the area showed attainment of the ozone NAAQS at the time. 
The methodologies used in developing these inventories are discussed in 
further detail in the State's redesignation submittal.
    The attainment level of emissions are summarized below:

 Table 2.--Allegan 1996 Attainment Inventory--VOC and NOX (tons per day)
------------------------------------------------------------------------
                  Source type                       VOC          NOX
------------------------------------------------------------------------
Onroad mobile.................................          6.5          9.8
Area..........................................          9.2          2.7
Point.........................................          4.5          8.4
                                               -------------------------
  Total.......................................         20.2         20.9
------------------------------------------------------------------------

Demonstration of Maintenance

    The 1991 emission inventory developed by MDEQ for the redesignation 
request is partially based on 1996 values using growth factors specific 
to Allegan County and the source classification code of each emitting 
process. The growth factors were made by the Economic Growth Analysis 
(EGAS) model for stationary sources (for point, stationary area, and 
nonroad mobile source categories). The State made onroad mobile 
estimates for 2011 using the MOBILE5a mobile source emissions model and 
Federal Highway Administration Performance Monitoring System traffic 
count data. Detailed information on the assumptions made in the 
inventory calculations are in EPA's TSD and in the State's submittal.

[[Page 70496]]

    To demonstrate continued attainment, the State projected 
anthropogenic 1996 emissions of VOC and NOX to 2011. These 
emission estimates are in the tables below and demonstrate that the VOC 
and NOX emissions will decrease in future years. The results 
of this analysis show that the area is expected to maintain the air 
quality standard for at least ten years into the future. In fact, the 
emissions projections show that emissions will be reduced from 1996 
levels by .6 tons of VOC and 3.3 tons of NOX per day by 2011 
in the Allegan area. These emission reductions will result from the 
implementation of FMVCP, Federal on-board vapor recovery rules, Federal 
National Low Emission Vehicle and Tier 2 Regulations, Title IV 
NOX controls, and other federal rules expected to be 
promulgated for nonroad engines, autobody refinishing, commercial/
consumer solvents, and architectural and industrial maintenance 
coatings. These estimates are conservative as they do not reflect 
NOX reductions that will result from EPA's October 27, 1998 
(63 FR 57356) rulemaking which requires states to reduce statewide 
NOX emissions to address the regional transport of ground 
level ozone ( NOX SIP call).

 Table 3.--Allegan: VOC Maintenance Emission Inventory Summary (tons per
                                  day)
------------------------------------------------------------------------
                                                             Year
                    Source type                     --------------------
                                                      1991   1996   2011
------------------------------------------------------------------------
Point..............................................    3.9    4.5    5.7
Area...............................................   14.9    9.2    9.2
Onroad moble.......................................    7.3    6.5    4.7
                                                    --------------------
  Total............................................   26.1   20.2   19.6
------------------------------------------------------------------------


 Table 4.--Allegan: NOX Maintenance Emission Inventor Summary (tons per
                                  day)
------------------------------------------------------------------------
                                                             Year
                    Source type                     --------------------
                                                      1991   1996   2010
------------------------------------------------------------------------
Point..............................................    8.3    8.4    8.4
Area...............................................    3.3    2.7    2.5
Onroad mobile......................................    9.9    9.8    6.7
                                                    --------------------
  Total............................................   21.5   20.9   17.6
------------------------------------------------------------------------

    The emission projections show that the emissions are not expected 
to exceed the level of the base year 1996 inventory during the 10-year 
maintenance period.

Monitoring Network

    The State has committed to operate the ozone monitoring network in 
the Allegan area in accordance with 40 CFR part 58.

Verification of Continued Attainment

    Tracking--Continued attainment of the ozone NAAQS in the Allegan 
area depends, in part, on the State's efforts to track continued 
attainment during the maintenance period. The tracking plan for the 
Allegan area consists of continued ambient ozone monitoring in 
accordance with the requirements of 40 CFR part 58.
    Triggers--Michigan contends that the high concentrations of ozone 
monitored and modeled in the Allegan area are due to transport from 
upwind areas such as Chicago and Milwaukee. The State also submits that 
modeling to date indicates that total elimination of anthropogenic VOC 
and NOX emission sources in Allegan would not affect ozone 
concentrations in the area. The State concludes that continued 
maintenance of the ozone NAAQS is dependent on continued emission 
reductions from upwind areas. Consequently, the State identifies as the 
triggering event that will cause implementation of a contingency 
measure an actual monitored ozone violation of the NAAQS, as defined in 
40 CFR 50.9, which it determines not to be attributable to transport 
from upwind areas. The State's redesignation request establishes that 
if the State monitors a violation, the State will inform EPA that a 
violation has occurred, review 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. The State will submit a preliminary 
analysis to the EPA and afford the public the opportunity for review 
and comment. The State will also solicit and consider EPA's technical 
advice and analysis before making a final determination on the cause of 
the violation. The trigger date will be the date that the State 
certifies to the EPA that the State air quality data are quality 
assured, and that the State has determined the exceedances contributing 
to the violation are not attributable to transport from upwind areas. 
The trigger date will be within 120 days after the violation is 
monitored.
    If the EPA disagrees with the State's final determination and 
believes that the violation was not attributable to transport, but to 
the area's own emissions, authority exists under section 179(a) and 
110(k), to require the area to implement contingency measures, and 
section 107, to redesignate the area to nonattainment.

Contingency Plan

    Despite the best efforts to demonstrate continued compliance with 
the NAAQS, the ambient air pollutant concentrations may exceed or 
violate the NAAQS. Therefore, as required by section 175A of the CAA, 
Michigan has provided contingency measures with a schedule for 
implementation if a future ozone air quality problem occurs. Once the 
triggering event is confirmed, the State will implement one or more 
appropriate contingency measures. The Governor or the Governor's 
designee will select the contingency measure within 6 months of the 
triggering event. Contingency measures contained in the plan include a 
plastic parts coating rule, a wood furniture coating rule, and gasoline 
loading (Stage I vapor recovery) rules. The State will develop rules 
for the three measures should they be necessary to address a violation 
of the ozone NAAQS. The State will implement one or more of these rules 
within 24 months of the Governor's decision to implement a contingency 
measure.

Commitment To Submit Subsequent Maintenance Plan Revisions

    In accordance with section 175A(b) of the Act, the State has 
committed to submit a revised maintenance SIP 8 years after the area is 
redesignated to attainment. Such revised SIP will provide for 
maintenance for an additional 10 years.

F. Where Is the Public Record and Where Do I Send Comments?

    The official record for this direct final rule is located at the 
addresses in the ADDRESSES section at the beginning of this document. 
The addresses for sending comments are also provided in the ADDRESSES 
section at the beginning of this document. If EPA receives adverse 
written comments on this action, we will withdraw this final rule and 
address the comments received in response to this action in a final 
rule on the related proposed rule. We will not open a second public 
comment period. Parties interested in commenting on this action should 
do so at this time.
    If we receive adverse written comments with respect to the adequacy 
and approval of the Allegan emissions budgets, or any other aspect of 
our approval of this SIP, by the time the comment period closes, we 
will publish a timely withdrawal of the direct final rule informing the 
public that the rule will not take effect. In this case, we will

[[Page 70497]]

either respond to the comments on the emissions budgets in our final 
action or proceed with the adequacy process as a separate action.

IV. Disclaimer Language Approving SIP Revisions

    Ozone SIPs are designed to satisfy the requirements of part D of 
the CAA and to provide for attainment and maintenance of the ozone 
NAAQS. This redesignation should not be interpreted as authorizing the 
State to delete, alter, or rescind any of the ozone emission 
limitations and restrictions in the approved ozone SIP. The State 
cannot make changes to ozone SIP regulations which will render them 
less stringent than those in the EPA approved plan unless it submits to 
EPA a revised plan for attainment and maintenance and EPA approves the 
revision. Unauthorized relaxations, deletions, and changes could result 
in both a finding of nonimplementation (section 173(b) of the CAA) and 
in a SIP deficiency call made pursuant to section 110(a)(2)(H) of the 
CAA.

V. What Administrative Requirements Did EPA Consider?

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments, or EPA consults 
with those governments. If EPA complies by consulting, Executive Order 
13084 requires EPA to provide to the Office of Management and Budget, 
in a separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

D. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with state and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with state and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the CAA. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.

E. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
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 small governmental 
jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the CAA do not create any new requirements but 
simply approve requirements that the State is already imposing. 
Therefore, because the Federal SIP approval does not create any new 
requirements, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Moreover, 
due to the nature of the Federal-State relationship under the CAA, 
preparation of flexibility analysis would constitute Federal inquiry 
into the economic reasonableness of state action. The CAA forbids EPA 
to base its actions concerning SIPs on such grounds. Union Electric Co. 
v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule 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. Under section 205, EPA 
must select the most cost-

[[Page 70498]]

effective and least burdensome alternative that achieves the objectives 
of the rule and is consistent with statutory requirements. Section 203 
requires EPA to establish a plan for informing and advising any small 
governments that may be significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated 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 approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective January 16, 2001 unless EPA 
receives adverse written comments by December 26, 2000.

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

I. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 23, 2001. 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

    Air pollution control, Environmental protection, Hydrocarbons, 
Intergovernmental relations, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

40 CFR Part 81

    Air pollution control, Environmental protection, National parks, 
Wilderness area.

    Authority: 42 U.S.C. 7401-7671 et seq.

    Dated: November 15, 2000.
Gary Gulezian,
Acting Regional Administrator, Region 5.


    Chapter I, title 40 of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401 et seq.

Subpart X--Michigan

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


Sec. 52.1174  Control strategy: Ozone.

* * * * *
    (t) Approval--On March 9, 1995, the Michigan Department of 
Environmental Quality submitted a request to redesignate the Allegan 
County ozone nonattainment area to attainment. 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 a contingency plan, and an 
obligation to submit a subsequent maintenance plan revision in 8 years 
as required by the Clean Air Act. If the area records a violation of 
the 1-hour ozone NAAQS, determined not to be attributable to transport 
from upwind areas, Michigan will implement one or more appropriate 
contingency measure(s) which are in the contingency plan. The menu of 
contingency measures includes rules for plastic parts coating, wood 
furniture coating, and gasoline loading (Stage I vapor recovery).

PART 81--[AMENDED]

    1. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

    2. In Sec. 81.323 the table entitled ``Michigan--Ozone (1-hour 
standard)'' is amended by revising the entry for ``Allegan County Area: 
Allegan County'' and footnote to read as follows:


Sec. 81.323  Michigan.

* * * * *

                                        Michigan--Ozone (1-Hour Standard)
----------------------------------------------------------------------------------------------------------------
                                                            Designation                        Classification
            Designated area            -------------------------------------------------------------------------
                                                 Date\1\                    Type             Date\1\      Type
----------------------------------------------------------------------------------------------------------------
Allegan County Area:
    Allegan County....................  January 16, 2001........  Attainment..............
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------
\1\ This date is October 18, 2000, unless otherwise noted.


[[Page 70499]]

* * * * *
[FR Doc. 00-30004 Filed 11-22-00; 8:45 am]
BILLING CODE 6560-50-P