61 FR 5707

Federal Register Vol. 61, No. 31

Rules and Regulations

ENVIRONMENTAL PROTECTION AGENCY (EPA)

40 CFR Part 81

[MI39-03-7248; FRL-5421-9]

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

61 FR 5707

DATE: Wednesday, February 14, 1996

ACTION: Final rule.

SUMMARY: On August 8, 1995 the USEPA simultaneously published a direct final notice of rulemaking and notice of proposed rulemaking in which USEPA published its decision to correct erroneous ozone designations made in 1980 for the Allegan County, Barry County, Battle Creek (Calhoun County), Benton Harbor (Berrien County), Branch County, Cass County, Gratiot County, Hillsdale County, Huron County, Ionia County, Jackson (Jackson County), Kalamazoo (Kalamazoo County), Lapeer County, Lenawee County, Montcalm (Montcalm County), Sanilac County, Shiawassee County, St. Joseph County, Tuscola County, and 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, the USEPA published the designation correction of these areas to attainment/unclassifiable for ozone. The 30-day comment period concluded on September 7, 1995. During this comment period, the USEPA received two comment letters in response to the August 8, 1995, rulemaking. This final rule summarizes comments and USEPA's responses, and finalizes the USEPA's decision to correct the designations of 20 of these areas to attainment/unclassifiable for ozone. The USEPA will respond to comments relevant to Allegan County, Michigan and publish a final rulemaking on this area in a separate rulemaking action in a future Federal Register.

EFFECTIVE DATE: This action will be effective March 15, 1996.

ADDRESSES: Copies of the documents relevant to this action are available for inspection at the following address: (It is recommended that you telephone Jacqueline Nwia at (312) 886-6081 before visiting the Region 5 Office.) United States Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Jacqueline Nwia, 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, Telephone Number (312) 886-6081.

SUPPLEMENTARY INFORMATION:

I. Background Information

On August 8, 1995, the USEPA published a direct final rulemaking (60 FR 40297) correcting the designation for 21 of 23 ozone nonattainment nonclassified incomplete/no data and transitional areas in Michigan to attainment/unclassifiable due to the lack of in-county ozone monitoring data showing violations of the 0.12 parts per million (ppm) National Ambient Air Quality Standard (NAAQS).

At the same time that the USEPA published the direct final rule, a separate notice of proposed rulemaking was published in the Federal Register (60 FR 40338). This proposed rulemaking specified that USEPA would withdraw the direct final rule if adverse or critical comments were filed on the rulemaking. The USEPA received two letters containing adverse comments regarding the direct final rule within 30 days of publication of the proposed rule and withdrew the direct final rule on October 2, 1995 (60 FR 51360).

The specific rationale the USEPA used to correct certain ozone nonattainment nonclassified areas to attainment is explained in the direct final rule and will not be restated here.

This final rule contained in this Federal Register addresses the comments which were received during the public comment period and announces USEPA's final action regarding these determinations, with the exception of comments relevant to and a final determination regarding Allegan County.

II. Public Comments and USEPA Responses

Two letters were received in response to the August 8, 1995, direct final rulemaking. One was a letter from the Citizens Commission for Clean Air in the Lake Michigan Basin (Citizens Commission) and the other from the New York State Department of Environmental Conservation (NYSDEC). The following discussion summarizes and responds to the comments received, with the exception of those relevant to Allegan County. Comments received relevant to and a final action on Allegan County will be published in a future rulemaking action.

Citizens Commission Comment

The commenter states that the rulemaking is improper and an abuse of the Administrator's authority to correct errors in designation of areas pursuant to Clean Air Act (Act) section 110(k)(6). The commenter restates section 110(k)(6) emphasizing the provision that determinations pursuant to 110(k)(6) and their basis must be provided to the State and public. The commenter further states that the basis of the direct final rule, the lack of air quality data in the affected areas during the 1970s and 1980s, is insufficient grounds for changing the designation of the affected areas under the Act.

USEPA Response

The USEPA disagrees with the commentor's contention that the rulemaking is an improper use and/or abuse of section 110(k)(6). The commenter doesn't provide information or a rationale for this comment. Consistent with section 110(k)(6), the USEPA determined that the designations of these 21 nonattainment nonclassified areas were in error based on the lack of in county monitoring data and, consequently, acted to correct the designation in the same manner as the original designation n1 without requiring any further submission from the State. The determination and its basis were provided to the State and the public through the publication of the direct final and proposed rulemaking actions in the Federal Register.

n1 The original designations were processed in a proposal and subsequent final Federal Register document. The direct final process used in this instance requires a simultaneous proposal and thus, affords the public the opportunity to comment.

The commenter does not explain why they believe that the basis of the correction is insufficient grounds for changing the designation of the affected areas under the Act. These areas were designated nonattainment based on their proximity to nonattainment areas and the regional nature of the ozone problem (45 FR 25092, April 14, 1980). This could imply that, if the areas had monitored elevated ozone levels, the elevated levels likely could have been a result of ozone and precursors transported from adjacent nonattainment areas. It would be unreasonable to impose the rigorous redesignation requirements of the Act amendments to these areas where an ozone problem, which could be due to transport from other areas, was not monitored but assumed.

Furthermore, the USEPA believes that this basis is appropriate particularly in light of the 1990 Act which significantly relies on ambient monitoring data to classify areas and establish control requirements.

Citizens Commission Comment

The commenter states that the direct final rule is inconsistent with prior agency policy established in the General Preamble (General Preamble for the Implementation of Title 1, 57 FR 13501, April 16, 1992) regarding transitional and incomplete data areas. The General Preamble establishes that incomplete data or no data areas are subject to section 172(b) requirements and requires States to submit a redesignation request and maintenance plan as defined in section 107(d)(3)(E) for such areas. (The commenter cited section 107(d)(1)(E). USEPA believes that this was a typographical error since this section of the Act does not address redesignation requirements.) According to the General Preamble designation of such areas may be changed by individual redesignation requests and not by a correction.

USEPA Response

Since this rulemaking is not based on the redesignation criteria of section 107(d)(3)(E), USEPA redesignation policy or the general preamble redesignation criteria and requirements are irrelevant to this rulemaking. The rulemaking is consistent with section 110(k)(6) of the Act.

Citizens Commission Comment

The commenter states the USEPA is deliberately ignoring the Lake Michigan Ozone Study (LMOS) modeling results, which indicate that many of these areas are not in attainment of the standard, and is, therefore, countering efforts of neighboring nonattainment areas struggling to satisfy the Title I requirements. The commenter states that the current LMOS modeling, which USEPA has accepted and approved for purposes of demonstrating attainment, predicts continued exceedances for many of these Michigan counties in the future. The commenter refers to Episode 4 which shows that exceedances of the NAAQS observed in northwest Indiana can be attributed to emissions originating from many of the Michigan counties proposed for redesignation. The commenter maintains that this finding is verified by recently completed back trajectories for Episode 4. (Trajectories provided by the commenter). The commenter believes that this redesignation is particularly outrageous, given the 6 exceedances recorded in Michigan City, Indiana in the summer of 1995. The commenter further suggests that USEPA use the ambient monitoring data collected during the 1991 LMOS field study to designate Delta, Benzie, and Mason Counties to nonattainment.

USEPA Response

The USEPA is not ignoring the LMOS. The USEPA recognizes that the Lake Michigan States of Michigan, Wisconsin, Illinois and Indiana are conducting urban airshed modeling (UAM) which is being coordinated by LADCO that will be used for purposes of demonstrating attainment throughout the Lake Michigan region. The modeling is currently being refined. The USEPA also recognizes the importance of the modeling effort and subsequent results. The USEPA has determined that the model performance evaluation for UAM, Version V, submitted by LADCO on behalf of the Lake Michigan States on October 1, 1994, could be used for regulatory purposes. This means, however, that the method of showing attainment has been approved, rather than that actual attainment demonstrations have been approved.

UAM has been submitted to the USEPA on three occasions; November 14, 1994, with an attainment date extension request for the Western Michigan moderate ozone nonattainment areas, on November 15, 1994, with an attainment date extension request for Sheboygan, Manitowoc, and Kewaunee Counties in Wisconsin, and on July 13, 1994, with a section 182(f) NOx exemption request for areas in Michigan, Wisconsin, Illinois and Indiana. The UAM submitted to the USEPA to date does not and was not intended to demonstrate attainment. The USEPA has reviewed this modeling and cannot conclusively determine that the 20 nonclassified areas in Michigan subject to this correction are not attaining the standard, will not be attaining the standard in the future, or may contribute to ozone concentrations in downwind areas. Although, a few Episode 2 modeling runs indicate that portions of Berrien and Van Buren Counties fall between 120 ppb and 130 ppb isopleths n2 and, in two modeling runs, possibly between the 120 ppb and 140 ppb isopleths, the actual predicted ozone concentrations in these areas cannot be determined.

n2 Isopleths are the lines generated by the results of the urban airshed model indicating ozone concentrations.

The USEPA does not agree that Episode 4 (June 21-21, 1991) shows that exceedances of the NAAQS observed in northwest Indiana can be attributed to emissions originating from these areas and it is unclear how the trajectories provided by the commenter support this conclusion. Episode 4 illustrates the scenario of north-northeasterly winds. Although, Episode 4 modeling runs show that Michigan emissions may impact downwind areas, the modeling does not clearly demonstrate that the ozone precursor emissions from these counties are the cause of exceedances in the downwind areas. Similarly, although the trajectories may indicate north-northeasterly wind patterns and therefore, airflow from Michigan to Indiana, the extent to which the ozone precursor emissions from these counties contribute to ozone concentrations cannot be determined conclusively.

The USEPA is aware of monitored ozone exceedances in Michigan City, Indiana, during the 1995 ozone season. The USEPA does not expect this rulemaking to have an impact on the likelihood of Michigan City being designated to nonattainment.

Ozone monitoring data collected during the 1990 and 1991 field studies in Delta, Benzie and Mason counties are not relevant to this rulemaking action.

Finally, the USEPA would also note that the Lake Michigan States are participating in the Phase I/Phase II process as provided for within the March 2, 1995, memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, entitled Ozone Attainment Demonstrations. Phase II of the analysis would assess the need for regional control strategies and refine the local control strategies. Phase II would also provide the States and USEPA the opportunity to determine appropriate regional strategies to resolve transport issues including any impacts these areas may have on ozone concentrations in their downwind areas. The USEPA has the authority under sections 110(a)(2)(A) and 110(a)(2)(D) of the Act to ensure that the required and necessary reductions are achieved in these areas should subsequent modeling become available, such as the modeling that will be available through completion of the Phase II analysis, or any other subsequent modeling data. USEPA has authority, and the state has an obligation, under section 110(a)(2)(A) (in the case of intrastate areas) and section 110(a)(2)(D) (in the case of interstate areas), to address transported emissions from upwind areas that significantly contribute to air quality problems in downwind areas. This action, therefore, does not preclude the USEPA from requiring control measures in these areas in the future.

Citizens Commission Comment

The commenter believes that the State and USEPA were correct when they concluded in 1980 (the commenter cites 1989. However, USEPA believes this was a typographical error and that the commenter intended to cite 1980) that these Michigan counties should be designated as nonattainment and reevaluated once appropriate monitoring data become available. Appropriate monitoring data can only be obtained if the State establishes a comprehensive monitoring network and contributes to a comprehensive, regional attainment strategy.

USEPA Response

Michigan's November 8, 1979 analysis concluded that in light of the new 0.12 ppm standard, changes to the March 3, 1978 designations were not warranted and that the designations would be reevaluated as more data on rural ozone levels became available. The USEPA approved this submittal on June 2, 1980. Since 1979, the State of Michigan expanded the ozone monitoring network to Branch, Cass, Clinton, Eaton, Ingham (relocated), and Tuscola Counties and later to Benzie, Berrien, Huron, Kalamazoo, Lenawee, Montcalm, and Van Buren Counties. Exceedances of the 0.12 ppm NAAQS were recorded in a number of counties and violations were recorded in Huron County in 1980 (2 exceedances in 1980 at two separate monitors), n3 and Cass County in 1980 (3 exceedances in 2 years, 1979-1980) n4 and Tuscola County in 1988 (1 exceedances in 1988). n5 Subsequently, Cass, Huron and Tuscola Counties have monitored attainment.

n3 The monitor was established in 1980.

n4 This monitor was established in 1979.

n5 Poor data capture in 1980.

Regarding the State's contribution to a comprehensive, regional attainment strategy, as noted previously, the Lake Michigan States are participating in the Phase I/Phase II process. This process will provide the States and USEPA with information to determine appropriate regional strategies to resolve transport issues including any impacts these Michigan areas may have on ozone concentrations in their downwind areas. The USEPA has the authority to ensure that the required and necessary reductions are achieved in these areas should subsequent modeling become available.

Citizens Commission Comment

The commenter states that the direct final rule does not explain why the June 2, 1980 designation does not remain in effect pursuant to the general savings clause, section 193 of the Act. The general savings clause requires that "no control requirement in effect * * * may be modified after such enactment in any manner unless the modification insures equivalent or greater emission reductions of such air pollutant." The commenter states that if these areas are designated to attainment/ unclassifiable, they would not achieve equivalent or greater emission reductions in ozone precursor emissions.

USEPA Response

Section 193 of the Act states that each rule promulgated by the Administrator, in effect before November 15, 1990, must remain in effect, unless revised by the Administrator. This action is a correction to a designation, it is not a revision to any control requirement, so that section 193 is not applicable. In any event, section 193 also stipulates that no control requirement may be modified in any manner unless the modification insures equivalent or greater emission reductions. This component of section 193 was intended to preserve the control programs and measures already implemented in the area. Since programs and measures already implemented in the area that achieved emission reductions are not being removed, replacement reductions are not necessary.

NYSDEC Comment

The NYSDEC disagrees that an error was made in determining the ozone designations for the nonclassified areas in southern Michigan. The air monitoring network used by Michigan to designate these areas nonattainment in 1978 and uphold them in 1980, complied with the federal Act citing criteria and provisions for establishing air quality control regions. The NYSDEC also questions the rationale for correcting the ozone designation fifteen years later and believes that even if an error was made that it does not warrant a direct final rulemaking.

USEPA Response

The USEPA is not implying that the ambient monitoring network established by the Michigan Department of Natural Resources (MDNR) at that time was inadequate. The USEPA believes, however, that the monitoring network that operated during the mid-1970s was not appropriate for purposes of designating all of these areas to nonattainment. There was no data available demonstrating that these areas were in violation of the ozone NAAQS to warrant a nonattainment designation. However, the State of Michigan chose this designation for these areas based on their proximity to nonattainment areas and the regional nature of the ozone problem (45 FR 25092, April 14, 1980). The basis of the original designations and rationale implies that if the areas had monitored elevated ozone levels, the elevated levels likely would have been a result of ozone and precursors transported from adjacent nonattainment areas. It would be unreasonable to impose the rigorous redesignation requirements of the Act amendments to these areas if an ozone problem, likely due to transport from other areas, was not monitored but assumed. Furthermore, as previously noted, the USEPA believes that this basis is appropriate, particularly in light of the 1990 Act, which significantly relies on ambient monitoring data to classify areas and establish control requirements.

NYSDEC Comment

The commenter cites elevated ozone levels observed in southern Michigan and notes that the August 8, 1995, direct final rule states a violation in Lenawee County has probably occurred in the period 1993-1995.

USEPA Response

The correction is based on the ambient monitoring data available at the time the original designations were promulgated. The preliminary data which indicated that a violation may have occurred in Lenawee County were subsequently invalidated due to a malfunctioning ambient monitor which was replaced by the MDNR.

NYSDEC Comment

NYSDEC also requested additional time to review the AIRS data and documentation used in the USEPA's analysis of which they recently obtained copies.

USEPA Response

The public was afforded 30 days to comment on this rulemaking action. The USEPA does not believe that any extension of time is necessary as an adequate comment period has already been provided.

III. Final Rulemaking Action

In this action the USEPA is promulgating a correction to correct the ozone designation status of the Barry County, Battle Creek (Calhoun County), Benton Harbor (Berrien County), Branch County, Cass County, Gratiot County, Hillsdale County, Huron County, Ionia County, Jackson (Jackson County), Kalamazoo (Kalamazoo County), Lapeer County, Lenawee County, Montcalm (Montcalm County), Sanilac County, Shiawassee County, St. Joseph County, Tuscola County, and Van Buren County nonattainment nonclassified/ incomplete data and the Lansing-East Lansing (Clinton County, Eaton County, Ingham County) nonattainment nonclassified/transitional area to attainment/unclassifiable for ozone pursuant to section 110(k)(6).

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, USEPA may certify that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. Today's determination does not create any new requirements, but suspends the indicated requirements. Therefore, because this notice does not impose any new requirements, I certify that it does not have a significant impact on small entities affected. Under section 202 of the Unfunded Mandates Reform Act of 1995 ("Unfunded Mandates Act"), signed into law on March 22, 1995, the USEPA must prepare a budgetary impact statement to accompany any proposed or final rulemaking that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Section 203 requires the USEPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. Under section 205, the USEPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements.

The USEPA has determined that today's final action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local or tribal governments in the aggregate, or to the private sector. This Federal action imposes no new Federal requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

Under section 307(b)(1) of the Act, petitions for judicial review of this final action must be filed in the United States Court of Appeals for the appropriate circuit by April 15, 1996. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See Section 307(b)(2)).

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control.

Dated: February 7, 1996.

Carol M. Browner, Administrator.

40 CFR Part 81 is amended as follows:

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 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 fn1        Type              Date      Type 
* * * * * * 

Barry County Area,     Mar. 15, 1996   Unclassifiable/ 
Barry County 	                       Attainment 

Battle Creek Area,     Mar. 15, 1996   Unclassifiable/ 
Calhoun County	                       Attainment 

Benton Harbor Area,    Mar. 15, 1996   Unclassifiable/ 
Berrien County 	                       Attainment 

Branch County Area,    Mar. 15, 1996   Unclassifiable/ 
Branch County 	                       Attainment 

Cass County Area,      Mar. 15, 1996   Unclassifiable/ 
Cass County			                   Attainment 

* * * * * * * 

Gratiot County Area,   Mar. 15, 1996   Unclassifiable/ 
Gratiot County 		                   Attainment 

Hillsdale County Area, Mar. 15, 1996   Unclassifiable/ 
Hillsdale County 	                   Attainment 

Huron County Area,     Mar. 15, 1996   Unclassifiable/ 
Huron County                           Attainment 

Ionia County Area,     Mar. 15, 1996   Unclassifiable/ 
Ionia County		                   Attainment 

Jackson Area,          Mar. 15, 1996   Unclassifiable/ 
Jackson County                     	   Attainment 

Kalamazoo Area,        Mar. 15, 1996   Unclassifiable/ 
Kalamazoo County	                   Attainment 

Lansing-East Lansing Area: 

Clinton County         Mar. 15, 1996   Unclassifiable/ 
                                       Attainment 

Eaton County           Mar. 15, 1996   Unclassifiable/ 
                                       Attainment 

Ingham County          Mar. 15, 1996   Unclassifiable/ 
			                           Attainment 

Lapeer County Area,    Mar. 15, 1996   Unclassifiable/ 
Lapeer County		                   Attainment 

Lenawee County Area,   Mar. 15, 1996   Unclassifiable/ 
Lenawee County		                   Attainment 

Montcalm Area,         Mar. 15, 1996   Unclassifiable/ 
Montcalm County 		               Attainment 

* * * * * * * 

Sanilac County Area,   Mar. 15, 1996   Unclassifiable/ 
Sanilac County		                   Attainment 

Shiwassee County Area, Mar. 15, 1996   Unclassifiable/ 
Shiwassee County	                   Attainment 

St. Joseph County Area,Mar. 15, 1996   Unclassifiable/ 
St. Joseph County	                   Attainment 

Tuscola County Area,   Mar. 15, 1996   Unclassifiable/ 
Tuscola County		                   Attainment 

Van Buren County Area, Mar. 15, 1996   Unclassifiable/ 
Van Buren County	                   Attainment 

fn1 This date is November 15, 1990, unless otherwise noted.

[FR Doc. 96-3330 Filed 2-13-96; 8:45 am]

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