[Federal Register Volume 74, Number 123 (Monday, June 29, 2009)]
[Rules and Regulations]
[Pages 30950-30953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14750]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2009-0219; FRL-8921-2]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Michigan; Redesignation of 
the Detroit-Ann Arbor Area to Attainment for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is making a determination under the Clean Air Act (CAA) 
that the Detroit-Ann Arbor nonattainment area has attained the 8-hour 
ozone National Ambient Air Quality Standard (NAAQS). The Detroit-Ann 
Arbor area includes Lenawee, Livingston, Macomb, Monroe, Oakland, St. 
Clair, Washtenaw, and Wayne Counties. This determination is based on 
quality-assured ambient air quality monitoring data for the 2006-2008 
ozone seasons that demonstrate that the 8-hour ozone NAAQS has been 
attained in the area. EPA is approving a request from the State of 
Michigan to redesignate the Detroit-Ann Arbor area to attainment of the 
8-hour ozone NAAQS. The Michigan Department of Environmental Quality 
(MDEQ) submitted this request on March 6, 2009. In approving this 
request, EPA is also approving, as a revision to the Michigan State 
Implementation Plan (SIP), the State's plan for maintaining the 8-hour 
ozone NAAQS in the area through 2020. EPA is approving the 2005 base 
year emissions inventory for the Detroit-Ann Arbor area as meeting the 
requirements of section 182(a)(1) of the CAA. EPA also finds adequate 
and is approving the State's 2020 Motor Vehicle Emission Budgets 
(MVEBs) for the Detroit-Ann Arbor area. EPA proposed these actions on 
April 23, 2009. EPA provided a 30-day review and comment period, which 
closed on May 26, 2009. EPA received comments in support of the 
redesignation from Consumers Energy and the Southeast Michigan Council 
of Governments. EPA received no comments in opposition to the proposal.

DATES: This final rule is effective June 29, 2009.

ADDRESSES: EPA has established a docket for this action: Docket ID No. 
EPA-R05-OAR-2009-0219. All documents in the docket are listed on the 
http://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically at http://www.regulations.gov or in hard copy at the 
U.S. Environmental Protection Agency, Region 5, Air and Radiation 
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This 
facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding Federal holidays. We recommend that you telephone Kathleen 
D'Agostino, Environmental Engineer, at (312) 886-1767 before visiting 
the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental 
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), 
U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-1767, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

Table of Contents

I. What Is the Background for This Rule?
II. What Comments Did We Receive on the Proposed Rule?
III. What Action Is EPA Taking?
IV. Statutory and Executive Order Reviews

I. What Is the Background for This Rule?

A. What Is the General Background Information?

    On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone 
standard of 0.08 parts per million (ppm). EPA published a final rule 
designating and classifying areas under the 1997 8-hour ozone NAAQS on 
April 30, 2004 (69 FR 23857).
    On March 12, 2008, EPA promulgated a more stringent 8-hour ozone 
standard of 0.075 ppm which was published in the Federal Register on 
March 27, 2008 (73 FR 16436). EPA will designate nonattainment areas 
under the 2008 8-hour ozone standard in 2010. Today's approval of 
Michigan's SIP revision addresses only the status of the Detroit-Ann 
Arbor area with respect to the 1997 8-hour ozone standard.
    The background for today's actions with respect to the 1997 ozone 
standard is discussed in detail in EPA's April 23, 2009, proposal (74 
FR 18479). In that rulemaking, we noted that, under EPA regulations at 
40 CFR part 50, the 8-hour ozone standard is attained when the three-
year average of the annual fourth-highest daily maximum 8-hour average 
ozone concentrations is less than or equal to 0.08 ppm. (See 69 FR 
23857 (April 30, 2004) for further information.) The data completeness 
requirement is met when the average percent of days with valid ambient 
monitoring data is greater than 90%, and no single year has less than 
75% data completeness, as determined in accordance with appendix I of 
part 50.
    Under the CAA, EPA may redesignate nonattainment areas to 
attainment if sufficient complete, quality-assured data are available 
to determine that the area has attained the standard and that it meets 
the other CAA redesignation requirements in section 107(d)(3)(E).
    On March 6, 2009, MDEQ submitted a request to redesignate the 
Detroit-Ann Arbor area to attainment of the 8-hour ozone standard. The 
request included three years of complete, quality-assured data for the 
period of 2006 through 2008, indicating the 8-hour NAAQS for ozone had 
been achieved. The April 23, 2009, proposed rule provides a detailed 
discussion of how Michigan met this and other CAA requirements.

B. What Are the Impacts of the December 22, 2006, and June 8, 2007, 
United States Court of Appeals Decisions Regarding EPA's Phase 1 
Implementation Rule?

    On December 22, 2006, in South Coast Air Quality Management Dist. 
v. EPA, the U.S. Court of Appeals for the District of Columbia Circuit 
vacated EPA's Phase 1 Implementation Rule for the 8-hour ozone standard 
(69 FR 23951, April 30, 2004). 472 F.3d 882 (D.C. Cir. 2006). On June 
8, 2007, in response to several petitions for rehearing, the D.C. 
Circuit Court clarified that the Phase 1 Rule was vacated only with 
regard to those parts of the rule that had been successfully 
challenged. Id., Docket No. 04-1201. Therefore, the Phase 1 Rule 
provisions related to classifications for areas currently classified 
under subpart 2 of Title I, part D of the CAA as 8-hour nonattainment 
areas, the 8-hour attainment dates, and the timing for emissions 
reductions needed for attainment of the 8-hour ozone NAAQS remain 
effective. The June 8th decision left intact the Court's rejection of 
EPA's reasons for implementing the 8-hour standard in certain 
nonattainment areas under subpart 1 in lieu of subpart 2. By

[[Page 30951]]

limiting the vacatur, the Court let stand EPA's revocation of the 1-
hour standard and those anti-backsliding provisions of the Phase 1 Rule 
that had not been successfully challenged. The June 8th decision 
reaffirmed the Court's December 22, 2006, decision that EPA had 
improperly failed to retain four measures required for 1-hour 
nonattainment areas under the anti-backsliding provisions of the 
regulations: (1) Nonattainment area New Source Review (NSR) 
requirements based on an area's 1-hour nonattainment classification; 
(2) Section 185 penalty fees for 1-hour severe or extreme nonattainment 
areas; (3) measures to be implemented pursuant to section 172(c)(9) or 
182(c)(9) of the CAA, contingent on an area not making reasonable 
further progress toward attainment of the 1-hour NAAQS, or for failure 
to attain that NAAQS; and (4) certain transportation conformity 
requirements for certain types of Federal actions. The June 8th 
decision clarified that the Court's reference to conformity 
requirements was limited to requiring the continued use of 1-hour motor 
vehicle emissions budgets until 8-hour budgets were available for 8-
hour conformity determinations.
    For the reasons set forth in the proposal, EPA does not believe 
that the Court's rulings alter any requirements relevant to this 
redesignation action so as to preclude redesignation. EPA believes that 
the Court's December 22, 2006, and June 8, 2007, decisions impose no 
impediment to moving forward with redesignation of this area to 
attainment, because, even in light of the Court's decisions, 
redesignation is appropriate under the relevant redesignation 
provisions of the CAA and longstanding policies regarding redesignation 
requests.
    With respect to the requirement for transportation conformity under 
the 1-hour standard, the Court in its June 8th decision clarified that, 
for those areas with 1-hour motor vehicle emissions budgets in their 
maintenance plans, anti-backsliding requires only that those 1-hour 
budgets must be used for 8-hour conformity determinations until 
replaced by 8-hour budgets. To meet this requirement, conformity 
determinations in such areas must comply with the applicable 
requirements of EPA's conformity regulations at 40 CFR part 93.

II. What Comments Did We Receive on the Proposed Rule?

    EPA provided a 30-day review and comment period. The comment period 
closed on May 26, 2009. EPA received comments in support of the 
redesignation from Consumers Energy and the Southeast Michigan Council 
of Governments. EPA did not receive any adverse comments.

III. What Action Is EPA Taking?

    EPA is making a determination that the Detroit-Ann Arbor area has 
attained the 8-hour ozone NAAQS. EPA is also approving the maintenance 
plan SIP revision for the Detroit-Ann Arbor area. EPA's approval of the 
maintenance plan is based on Michigan's demonstration that the plan 
meets the requirements of section 175A of the CAA. After evaluating 
Michigan's redesignation request, EPA has determined that it meets the 
redesignation criteria set forth in section 107(d)(3)(E) of the CAA. 
Therefore, EPA is approving the redesignation of the Detroit-Ann Arbor 
area from nonattainment to attainment for the 8-hour ozone NAAQS. EPA 
is approving the 2005 base year emissions inventory for the Detroit-Ann 
Arbor area as meeting the requirements of section 182(a)(1) of the CAA. 
Finally, EPA also finds adequate and is approving the State's 2020 
MVEBs for the Detroit-Ann Arbor area.
    In accordance with 5 U.S.C. 553(d), EPA finds there is good cause 
for this action to become effective immediately upon publication. This 
is because a delayed effective date is unnecessary due to the nature of 
a redesignation to attainment, which relieves the area from certain CAA 
requirements that would otherwise apply to it. The immediate effective 
date for this action is authorized under both 5 U.S.C. 553(d)(1), which 
provides that rulemaking actions may become effective less than 30 days 
after publication if the rule ``grants or recognizes an exemption or 
relieves a restriction,'' and section 553(d)(3) which allows an 
effective date less than 30 days after publication ``as otherwise 
provided by the agency for good cause found and published with the 
rule.'' The purpose of the 30-day waiting period prescribed in section 
553(d) is to give affected parties a reasonable time to adjust their 
behavior and prepare before the final rule takes effect. Today's rule, 
however, does not create any new regulatory requirements such that 
affected parties would need time to prepare before the rule takes 
effect. Rather, today's rule relieves the State of planning 
requirements for this 8-hour ozone nonattainment area. For these 
reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action 
to become effective on the date of publication of this action.

IV. Statutory and Executive Order Reviews

Executive Order 12866; Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, September 30, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget.

Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Regulatory Flexibility Act

    This action merely approves State law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by State law. Redesignation of an area to attainment under 
section 107(d)(3)(E) of the CAA does not impose any new requirements on 
small entities. Redesignation is an action that affects the status of a 
geographical area and does not impose any new regulatory requirements 
on sources. Accordingly, the Administrator certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.).

Unfunded Mandates Reform Act

    Because this rule approves pre-existing requirements under State 
law, and does not impose any additional enforceable duty beyond that 
required by State law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it 
does 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 (64 FR 43255, August 
10, 1999). Redesignation is an action that merely affects the status of 
a geographical area, does not impose any new requirements on sources, 
or allows a State to avoid adopting or implementing other requirements, 
and does not alter the relationship or the distribution of power and 
responsibilities established in the CAA.

[[Page 30952]]

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This rule also does not have Tribal implications because it will 
not have a substantial direct effect on one or more Indian Tribes, on 
the relationship between the Federal government and Indian Tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian Tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000).

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    This rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' this action 
is also not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001).

National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use 
technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impracticable. In 
reviewing program submissions, EPA's role is to approve State choices, 
provided that they meet the criteria of the CAA. Absent a prior 
existing requirement for the State to use voluntary consensus 
standards, EPA has no authority to disapprove a program submission for 
failure to use such standards, and it would thus be inconsistent with 
applicable law for EPA to use voluntary consensus standards in place of 
a program submission that otherwise satisfies the provisions of the 
Act. Redesignation is an action that affects the status of a 
geographical area but does not impose any new requirements on sources. 
Thus, the requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
    The Congressional Review Act, 5 U.S.C. 801, et seq., enacted 
pursuant to 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 
action 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).
    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 August 28, 2009. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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 the action. This 
action may not be challenged later in proceedings to enforce its 
requirements. (See 42 U.S.C. 7607(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Ozone, 
Volatile organic compounds.

40 CFR Part 81

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

    Dated: June 11, 2009.
Walter W. Kovalick Jr,
Acting Regional Administrator, Region 5.

0
Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations 
are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart X--Michigan

0
2. Section 52.1170(e) is amended by adding an entry to the end of the 
table to read as follows:


Sec.  52.1170  Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions
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                                                                              State         EPA
    Name of nonregulatory SIP provision        Applicable geographic or     submittal     approval     Comments
                                                  nonattainment area           date         date
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                                                  * * * * * * *
8-hour ozone maintenance plan.............  Detroit-Ann Arbor (Lenawee,       3/6/2009    6/29/2009
                                             Livingston, Macomb, Monroe,
                                             Oakland, St. Clair,
                                             Washtenaw, and Wayne
                                             Counties).
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.1174 is amended by adding paragraph (z) to read as 
follows:


Sec.  52.1174  Control strategy: Ozone.

* * * * *
    (z) Approval--On March 6, 2009, Michigan submitted a request to 
redesignate the Detroit-Ann Arbor area (Lenawee, Livingston, Macomb, 
Monroe, Oakland, St. Clair, Washtenaw, and Wayne Counties) to 
attainment of the 1997 8-hour ozone National Ambient Air Quality 
Standard (NAAQS). As part of its redesignation requests, the State 
submitted a maintenance plan as required by section 175A of the Clean 
Air Act. Elements of the section 175 maintenance plan include a 
contingency plan and an obligation to submit subsequent maintenance 
plan revisions in 8 years as required by the Clean Air Act. If monitors 
in any of these areas record a violation of the 8-hour ozone NAAQS, 
Michigan will adopt and implement one or more contingency measures. The 
list of possible contingency measures

[[Page 30953]]

includes: Reduced VOC content in architectural, industrial, and 
maintenance (AIM) coatings rule; auto body refinisher self-
certification audit program; reduced VOC degreasing/solvent cleaning 
rule; diesel retrofit program; reduced idling program; portable fuel 
container replacement rule; and, food preparation flame broiler control 
rule. Also included in the Michigan's submittal were a 2005 base year 
emissions inventory and motor vehicle emission budgets (MVEBs) for use 
to determine transportation conformity in the area. For the Detroit-Ann 
Arbor area, Michigan has established separate MVEBS for the Southeast 
Michigan Council of Governments (SEMCOG) region (Livingston, Macomb, 
Monroe, Oakland, St. Clair, Washtenaw, and Wayne Counties) and for 
Lenawee County. MDEQ has determined the 2020 MVEBs for the SEMCOG 
region to be 106 tons per day for VOC and 274 tpd for NOX. 
MDEQ has determined the 2020 MVEBs for Lenawee County to be 2.1 tpd for 
VOC and 4.4 tpd for NOX.

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

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

0
2. Section 81.323 is amended by revising the entry for Detroit-Ann 
Arbor, MI in the table entitled ``Michigan-Ozone (8-Hour Standard)'' to 
read as follows:


Sec.  81.323  Michigan.

* * * * *

                                        Michigan-Ozone (8-Hour Standard)
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                                                             Designation \a\                   Classification
               Designated area               -------------------------------------------------------------------
                                                Date \1\                 Type                Date \1\     Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Detroit-Ann Arbor, MI:
    Lenawee County..........................    6/29/2009  Attainment.....................
    Livingston County.
    Macomb County...........................
    Monroe County...........................
    Oakland County..........................
    St. Clair County........................
    Washtenaw County........................
    Wayne County............................
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.

 [FR Doc. E9-14750 Filed 6-26-09; 8:45 am]
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