60 FR 40297

Federal Register

Vol. 60, No. 152 Rules and Regulations

ENVIRONMENTAL PROTECTION AGENCY (EPA)

40 CFR Part 81 [MI39-01-6921a; FRL-5272-9]

Designation of Areas for Air Quality Planning Purposes; Correction of Designation of Nonclassified Ozone Nonattainment Areas; State of Michigan

60 FR 40297

DATE: Tuesday, August 8, 1995

ACTION: Direct final rule.

SUMMARY: This action announces the USEPA decision to correct erroneous ozone designations made in 1980 for the Allegan County (Allegan County), Barry County (Barry County), Battle Creek (Calhoun Couny), Benton Harbor (Berrien County), Branch County (Branch County), Cass County (Cass County), Gratiot County (Gratiot County), Hillsdale County (Hillsdale County), Huron County (Huron County), Ionia County (Ionia County), Jackson (Jackson County), Kalamazoo (Kalamazoo County), Lapeer County (Lapeer County), Lenawee County (Lenawee County), Montcalm (Montcalm County), Sanilac County (Sanilac County), Shiawassee County (Shiawassee County), St. Joseph County (St. Joseph County), Tuscola County (Tuscola County), and Van Buren County (Van Buren County) nonattainment nonclassified/ incomplete data areas and the Lansing-East Lansing (Clinton County, Eaton County, and Ingham County) nonattainment nonclassified/transitional area. Pursuant to section 110(k)(6) of the Act, which allows the USEPA to correct its actions, the USEPA is publishing the designation correction of these areas to attainment/unclassifiable for ozone. The rationale for this approval is set forth in this final rule; additional information is available at the address indicated below. In the proposed rules section of this Federal Register, USEPA is proposing approval of and soliciting public comment on this action. If adverse comments are received on this direct final rule, USEPA will withdraw this direct final rule and address the comments received in a subsequent final rule on the related proposed rule which is being published in the proposed rules section of this Federal Register. No additional opportunity for public comment will be provided. Unless this direct final rule is withdrawn no further rulemaking will occur on this action.

DATES: This action will be effective October 10, 1995 unless notice is received by September 7, 1995 that someone wishes to submit adverse comments. If the effective date is delayed, timely notice will be published in the Federal Register.

ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief, Regulation Development Section, Air Toxics and Radiation Branch (AT-18J), United States Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois, 60604.

Copies of the USEPA's analysis are available for inspection at the following address: United States Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois, 60604. Telephone Jacqueline Nwia at (312) 886-6081 before visiting the Region 5 Office.

FOR FURTHER INFORMATION CONTACT: Jacqueline Nwia, Air Toxics and Radiation Branch, Regulation Development Section (AT-18J), United States Environmental Protection Agency, Region 5, Chicago, Illinois, 60604, (312) 886-6081.

SUPPLEMENTARY INFORMATION:

I. Background

Pursuant to the 1977 amendments to the Clean Air Act (Act), the States identified and the USEPA designated nonattainment areas with respect to the 0.08 parts per million (ppm) photochemical oxidant National Ambient Air Quality Standard (NAAQS). For such areas, States submitted State Implementation Plans (SIP) to control emissions and achieve attainment of the NAAQS. On December 30, 1977, Michigan submitted an analysis which included, pursuant to section 107(d) of the 1977 Act, designations of areas for photochemical oxidants as nonattainment, attainment, or unclassifiable. The State concluded that the 37 county area in southern Michigan, which was designated by the State to be the target area for the photochemical oxidants SIP revision and implementation of the Federal Emission Offset Policy (December 21, 1976), should be designated as nonattainment for photochemical oxidants. The nonattainment designations were based on sparse monitoring data from 1974, 1975, and 1976 (monitoring in the Bay, Kent, Genesee, Oakland, Port Huron and Wayne Counties) showing violations of the 0.08 ppm photochemical oxidant NAAQS in those counties, the States' knowledge of volatile organic compound emission sources in the areas and comparison of the areas with other similar monitored areas. These areas were originally designated as nonattainment for photochemical oxidants on March 3, 1978 (43 FR 8962).

On February 8, 1979 (44 FR 8202), the USEPA revised the NAAQS from 0.08 ppm to 0.12 ppm and the regulated pollutant from photochemical oxidants to ozone. On November 8, 1979, Michigan submitted a revised analysis which considered the change in the NAAQS and its affect on designations. The State concluded that changes to the status of the designated nonattainment areas were not warranted and noted that this position would be re-evaluated as more data on rural ozone levels became available. Monitoring data recorded in Bay, Genesee, Kent, Macomb, Muskegon, Oakland, St. Clair and Wayne Counties for 1975-1978 showed violations of the 0.12 ppm NAAQS. The State retained the nonattainment designation for these areas based on the available monitoring data and the remainder of the southern Michigan counties on the basis of their proximity to urban nonattainment areas. The revised analysis and conclusion to retain the prior designations were approved by the USEPA on June 2, 1980 (45 FR 37188).

Under the 1990 amendments to the Act, these areas retained their designation of nonattainment by operation of law pursuant to section 107(d) upon the date of enactment of the Act. Nonattainment areas were further classified based on their monitored design value, pursuant to section 181(a), as marginal, moderate, serious or severe. The nonattainment areas in Michigan were classified as follows: the Detroit-Ann Arbor area, Muskegon area and Grand Rapids area were classified as moderate; the Flint area and Lansing-East Lansing area were classified as nonclassifiable/transitional pursuant to section 185B of the Act, since they had 3 complete years of air quality data demonstrating attainment of the ozone NAAQS for the period 1987-1989; and, the remainder of the nonattainment areas were classified as nonclassifiable/incomplete data, since ozone monitoring data for these areas was either not available or incomplete. See 56 FR 56694 (November 6, 1991).

II. Summary of This Action

Section 110(k)(6) of the Act provides the USEPA with the authority to correct designation determinations that it determines were in error. It states:

Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public.

Twenty-three counties were designated nonclassifiable/transitional or nonclassifiable/incomplete data. They are: Allegan County (Allegan County), Barry County (Barry County), Battle Creek (Calhoun County), Benton Harbor (Berrien County), Branch County (Branch County), Cass County (Cass County), Gratiot County (Gratiot County), Hillsdale County (Hillsdale County), Huron County (Huron County), Ionia County (Ionia County), Jackson (Jackson County), Kalamazoo (Kalamazoo County), Lapeer County (Lapeer County), Lenawee County (Lenawee County), Montcalm (Montcalm County), Saginaw-Bay City-Midland (Bay County, Midland County, and Saginaw County), Sanilac County (Sanilac County), Shiawassee County (Shiawassee County), St. Joseph County (St. Joseph County), Tuscola County (Tuscola County), and Van Buren County (Van Buren County) as nonattainment nonclassified/incomplete data areas and Flint (Genesee County), and Lansing-East Lansing (Clinton County, Eaton County, and Ingham County) as nonattainment nonclassified/transitional areas.

The USEPA's June 2, 1980 action approving the retention of the nonattainment designations for 21 of the 23 nonclassifiable areas was in error. That action was based on the State's November 9, 1979 submittal. The USEPA believes that the information submitted by Michigan was inappropriately used to designate 21 of the 23 nonclassifiable areas nonattainment for ozone due to the lack of in-county ozone monitoring data showing violations of the 0.12 ppm NAAQS. Accordingly, in this action, the USEPA is correcting this error by correcting the designations for these areas to attainment/unclassifiable.

In order to demonstrate a violation of the ozone NAAQS, the average annual number of expected exceedances of the NAAQS must be greater than 1.0 per calendar year, pursuant to 40 CFR @ 50.9. The USEPA reviewed the basis of the original ozone designation for these areas. Ambient air quality monitoring data for ozone was retrieved from the Aerometric Information Retrieval System (AIRS) as well as the docket containing Michigan's 1977 SIP. The USEPA found that of the 23 nonattainment nonclassifiable areas in Michigan, only Ingham, Bay and Genesee Counties had established ambient photochemical oxidant monitors in the mid-1970's. Of these three counties, only Ingham did not record levels of photochemical oxidants above 0.12 ppm to constitute a violation of the NAAQS. The AIRS ozone data report for Michigan is located in the docket for this rulemaking. Therefore, 21 of the nonclassified areas did not violate the 0.12 ppm NAAQS during the years pertinent to the June 2, 1980 final rulemaking. In fact, none of these areas had in-county ozone monitors during these timeframes except for those discussed above.

Furthermore, available in-county monitoring data for some of these areas since 1978 demonstrates that violations of the 0.12 ppm NAAQS have not been recorded in these areas with the exceptions of Allegan and possibly Lenawee counties. Allegan County recorded a violation of the ozone NAAQS in 1990-1991 at a monitor established as a special purpose monitor for the Lake Michigan Ozone Study. Monitoring data collected during 1992-1994 in Allegan County demonstrated attainment of the ozone NAAQS. More recently, preliminary data for 1995 (which has not yet been quality assured) indicates that violations of the ozone NAAQS in Allegan and Lenawee counties have probably occurred in the period 1993-1995. The USEPA believes, however, that this data does not alter the conclusion regarding the erroneous retention of the nonattainment designation for these counties in 1980. If these two areas had been correctly designated as attainment/unclassifiable at that time they would be treated, today, as would any other attainment area that violates the ozone NAAQS. The USEPA is including these two areas in this designation correction and will decide what appropriate actions, if necessary, should be taken once this preliminary data is quality assured. The USEPA may utilize its authority under section 110 of the Act to require the State to correct the inadequacy of the SIP, or designate such areas to nonattainment pursuant to section 107 to address violations of the ozone NAAQS in areas designated as attainment.

III. Rulemaking Action

In this action, the USEPA is promulgating a correction to the designation status of the Allegan County (Allegan County), Barry County (Barry County), Battle Creek (Calhoun County), Benton Harbor (Berrien County), Branch County (Branch County), Cass County (Cass County), Gratiot County (Gratiot County), Hillsdale County (Hillsdale County), Huron County (Huron County), Ionia County (Ionia County), Jackson (Jackson County), Kalamazoo (Kalamazoo County), Lapeer County (Lapeer County), Lenawee County (Lenawee County), Montcalm (Montcalm County), Sanilac County (Sanilac County), Shiawassee County (Shiawassee County), St. Joseph County (St. Joseph County), Tuscola County (Tuscola County), and Van Buren County (Van Buren County) nonattainment nonclassified/incomplete data and the Lansing-East Lansing (Clinton County, Eaton County, and Ingham County) nonattainment nonclassified/transitional area to attainment/unclassifiable pursuant to section 110(k)(6). The public should be advised that this action will be effective 60 days from the date of this final rule. However, if notice is received within 30 days that someone submits adverse or critical comments, this action will be withdrawn, and a subsequent final notice will be published that addresses the comments received.

The USEPA is publishing a separate document in today's issue of the Federal Register publication, which constitutes a "proposed approval" of the requested SIP revisions and clarifies that the rulemaking will not be deemed final if timely adverse or critical comments are filed. The "direct final" approval shall be effective on October 10, 1995, unless the USEPA receives adverse or critical comments by September 7, 1995.

If the USEPA receives comments adverse to or critical of the approval discussed above, the USEPA will withdraw this approval before its effective date by publishing a subsequent Federal Register document which withdraws this final action. All public comments received will then be addressed in a subsequent rulemaking notice. Any parties interested in commenting on this action should do so at this time. If no such comments are received, the USEPA hereby advises the public that this action will be effective on October 10, 1995.

Under section 307(b)(1) of the Act, 42 U.S.C. 7607(b)(1), petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 10, 1995. Filing a petition for reconsideration by the Administrator of this final rule neither affects the finality of this rule for the purposes of judicial review nor extends 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) of the Act, 42 U.S.C. 7607(b)(2).

Under Executive Order (EO) 12291, the USEPA is required to judge whether an action is "major" and therefore subject to the requirements of a regulatory impact analysis. The Agency has determined that the correction would result in none of the significant adverse economic effects set forth in section 1(b) of the EO as grounds for a finding that an action is "major." The Agency has, therefore, concluded that this action is not a "major" action under EO 12291.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the USEPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, the USEPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. Correction of designation status of these nonattainment areas to attainment under section 110(k)(6) of the Act does not create any new requirements and therefore will not have a significant impact on a substantial number of small entities.

Section 202 of the Unfunded Mandates Reform Act of 1995 ("Unfunded Mandates Act") (signed into law on March 22, 1995) requires that the Agency prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in expenditure by State, local, and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year. Section 203 requires the Agency to establish a plan for obtaining input from and informing, educating, and advising any small governments that may be significantly or uniquely affected by the rule.

Under section 205 of the Unfunded Mandates Act, the Agency must identify and consider a reasonable number of regulatory alternatives before promulgating a rule for which a budgetary impact statement must be prepared. The Agency must select from those alternatives the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule, unless the Agency explains why this alternative is not selected or the selection of this alternative is inconsistent with law.

Because this final rule is estimated to result in the expenditure by State, local, and tribal governments or the private sector of less than $100 million in any one year, the Agency has not prepared a budgetary impact statement or specifically addressed the selection of the least costly, most cost-effective, or least burdensome alternative. Because small governments will not be significantly or uniquely affected by this rule, the Agency is not required to develop a plan with regard to small governments.

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, Hydrocarbons, National parks, Ozone, Volatile organic compounds, Wilderness areas.

Dated: July 25, 1995.

Carol M. Browner, Administrator.

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PURPOSES

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

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

2. In @ 81.323 the ozone table is amended by revising the entries for the Allegan County Area, Barry County Area, Battle Creek Area, Benton Harbor Area, Branch County Area, Cass County Area, Gratiot County Area, Hillsdale County Area, Huron County Area, Ionia County Area, Jackson Area, Kalamazoo Area, Lapeer County Area, Lenawee County Area, Montcalm Area, Sanilac County Area, Shiawassee County Area, St. Joseph County Area, Tuscola County Area, Van Buren County Area and Lansing-East Lansing Area to read as follows:

@ 81.323 -- Michigan. 
* * * * * 
                              Michigan--Ozone 

                                 Designation 
Classification 

Designated Areas    Date fn 1                Type 
Date    Type 

                                 * * * * ** 
Allegan County: 
Allegan County   October 10, 1995 Unclassifiable/Attainment 

Barry County Area: 
Barry County     October 10, 1995 Unclassifiable/Attainment 

Battle Creek Area: 
Calhoun County   October 10, 1995 Unclassifiable/Attainment 

Benton Harbor Area: 
Berrien County   October 10, 1995 Unclassifiable/Attainment 

Branch County Area: 
Branch County    October 10, 1995 Unclassifiable/Attainment 

Cass County Area: 
Cass County      October 10, 1995 Unclassifiable/Attainment 

                                * * * * * * 

Gratiot County Area: 
Gratiot County   October 10, 1995 Unclassifiable/Attainment 

Hillsdale County Area: 
Hillsdale County October 10, 1995 Unclassifiable/Attainment 

Huron County Area: 
Huron County     October 10, 1995 Unclassifiable/Attainment 

Ionia County Area: 
Ionia County     October 10, 1995 Unclassifiable/Attainment 

Jackson Area: 
Jackson County   October 10, 1995 Unclassifiable/Attainment 

Kalamazoo Area: 
Kalamazoo County October 10, 1995 Unclassifiable/Attainment 

Lansing-East Lansing Area: 
Clinton County   October 10, 1995 Unclassifiable/Attainment 

Eaton County     October 10, 1995 Unclassifiable/Attainment 

Ingham County    October 10, 1995 Unclassifiable/Attainment 

Lapeer County Area: 
Lapeer County    October 10, 1995 Unclassifiable/Attainment 

Lenawee County Area: 
Lenawee County   October 10, 1995 Unclassifiable/Attainment 

Montcalm Area: 
Montcalm County  October 10, 1995 Unclassifiable/Attainment 

                                * * * * * * 

Sanilac County Area: 
Sanilac County   October 10, 1995 Unclassifiable/Attainment 

Shiwassee County Area: 
Shiwassee County October 10, 1995 Unclassifiable/Attainment 

St. Joseph County Area: 
St. Joseph County October 10, 1995 Unclassifiable/Attainment 

Tuscola County Area: 
Tuscola County   October 10, 1995 Unclassifiable/Attainment 

Van Buren County Area: 
Van Buren County October 10, 1995 Unclassifiable/Attainment 

fn 1 This date is November 15, 1990, unless otherwise noted.

[FR Doc. 95-19507 Filed 8-7-95; 8:45 am]

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