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Approval and Promulgation of Implementation Plan: Michigan; NOX Exemption Request for East Lansing and Genesee County Transitional Areas

 [Federal Register: December 28, 1994]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MI34-01-6662, MI35-01-6663; FRL-5126-3]

Approval and Promulgation of Implementation Plan: Michigan; 
NOX Exemption Request for East Lansing and Genesee County 
Transitional Areas

AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.



SUMMARY: The EPA is proposing to grant oxides of nitrogen (NOX) 
exemptions to the East Lansing (Ingham, Eaton and Clinton Counties) and 
Genesee County transitional ozone nonattainment areas. This proposed 
approval would exempt these areas from the NOX provisions of the 
general conformity and transportation conformity requirements of the 
Clean Air Act (Act).
    The State of Michigan submitted NOX exemption requests on July 
1, 1994 and July 8, 1994 for the East Lansing and Genesee County 
transitional areas, respectively. Ozone monitors in these areas 
indicated that the average number of exceedances of the National 
Ambient Air Quality Standard for ozone (ozone standard) during the most 
recent 3-year monitoring period, 1991 through 1993, is fewer than one 
per year. Based upon this demonstration that additional reductions of 
NOX would not contribute to attainment of the ozone standard, 
Michigan requested that EPA approve a revision to Michigan's State 
Implementation Plan (SIP) exempting these areas from the requirement to 
provide conformity analyses for NOX.
    Additional information is available at the address indicated.


DATES: Comments must be received by January 27, 1995.


ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief, 
Regulation Development Section, Air Toxics and Radiation Branch (AT-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604-3590. Copies of the request and 
EPA's analysis are available for inspection at the same address. Please 
telephone Douglas Aburano at (312) 353-6960 before visiting the Region 
5 office.


FOR FURTHER INFORMATION CONTACT:
Douglas Aburano, Air Toxics and Radiation Branch (AT-18J), U.S. 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604-3590, (312) 353-6960.


SUPPLEMENTARY INFORMATION:


I. Background


    Section 176 of the Act, 42 U.S.C. 7506, prohibits the Federal 
Government from engaging in, supporting, providing financial 
assistance, licensing, permitting or approving any activity which does 
not conform to a SIP after the SIP is promulgated pursuant to section 
110 of the Act, 42 U.S.C. 7410. Regulations promulgated pursuant to 
section 176 of the Act provide for the granting of exemptions from 
certain NOX requirements of section 176 for a specific 
nonattainment area, if the Administrator of EPA determines under 
section 182(f) of the Act that additional reductions of NOX would 
not contribute to attainment of the ozone standard in the area. 58 FR 
62188, 62218 (November 24, 1993) (to be codified at 40 CFR 
51.394(b)(3)(i)) and 58 FR 63214, 63248 (November 30, 1993) (to be 
codified at 40 CFR 51.852).
    Section 182(f) of the Act, 42 U.S.C. 7511a(f), requires that major 
stationary sources of NOX in marginal and above ozone 
nonattainment areas comply with SIP provisions required for major 
stationary sources of volatile organic compounds unless, inter alia, 
the Administrator of EPA determines that an exemption from these 
requirements is appropriate. The EPA has determined that it would grant 
to a State an exemption from the NOX requirements of section 
182(f) for an area that did not implement the section 182(f) 
requirements, if the average number of exceedances of the ozone 
standard in the area over the prior 3-year period was less than or 
equal to one per year. See memo entitled, ``Section 182(f) Nitrogen 
Oxides (NOX) Exemptions--Revised Process and Criteria'' signed by 
John S. Seitz, Director, Office of Air Quality Planning and Standards 
(May 27, 1994).
    EPA adopted this position based upon the theory that the section 
182(f) controls were not necessary for an area which already had 
attained the ozone standard without the controls. A State could prove 
that the section 182(f) controls were not necessary by demonstrating 
that the nonattainment area in question had not experienced any 
violations of the ozone standard for the most recent 3 years. However, 
in order for EPA to approve an exemption request, the air quality data 
relied upon for this demonstration must be consistent with 40 CFR part 
58 requirements and other relevant EPA guidance, and must be recorded 
in EPA's Aerometric Information Retrieval System. Moreover, EPA will 
not approve the exemption request if there is evidence, such as 
photochemical grid modeling, showing that the NOX exemption would 
interfere with attainment or maintenance in the area petitioning for 
exemption or in any downwind areas. See ``Guideline for Determining the 
Applicability of Nitrogen Oxides requirements Under Section 182(f)'' 
(December 1993).
    Section 182(f) of the Act applies only to ozone nonattainment areas 
classified as marginal and above. Because section 176(c) applies to all 
ozone nonattainment areas, EPA has extended the procedure for 
exemptions under section 182(f) to areas not affected by the section 
182(f) requirements, that is, submarginal, transitional, and 
incomplete/no data areas. See ``Conformity; General Preamble for 
Exemption from Nitrogen Oxides Provisions,'' 59 FR 31238 (June 17, 
1994).
    On July 1, 1994 and July 8, 1994 the State of Michigan submitted to 
EPA petitions requesting that EPA approve SIP revisions which would, in 
effect, exempt the East Lansing and Genesee County transitional ozone 
nonattainment areas from the NOX conformity requirements of 
section 176(c).


II. Description and Analysis of State Submittal


    The State of Michigan submitted petitions in accordance with 
section 182(f) of the Act and the Federal Register document entitled 
``Conformity; General Preamble for Exemption from Nitrogen Oxides'' (59 
FR 31238). In its submittals, the State included data for the most 
recent 3 year monitoring period, 1991-1993, from ozone monitors located 
in the two nonattainment areas. These data showed that, over the 3-year 
period, the monitors recorded that the average number of violations of 
the ozone standard in either the East Lansing or Genesee County areas 
was fewer than one per year.
    Given that these areas have not implemented the section 182(f) 
NOX requirements and have submitted adequate monitoring data 
demonstrating that there have been no violations of the ozone standard 
over the last 3 years, EPA finds that the State requests for exemption 
are approvable. Furthermore, EPA does not possess any evidence that the 
exemptions will interfere with attainment or maintenance of the ozone 
standard in the petitioning or any downwind areas.


III. Proposed Action


    EPA is proposing approval of Michigan's SIP revision request 
granting the East Lansing and Genesee County transitional ozone 
nonattainment areas section 182(f) NOX exemptions. This proposed 
approval would allow these areas exemption from the section 176(c) 
NOX conformity requirements. This proposed approval for exemption 
is based upon the evidence provided by the State and the State's 
compliance with the requirements outlined in the Act and in EPA 
guidance. However, EPA is granting these exemptions only on a 
contingent basis, that is, each exemption will continue only as long as 
the respective area's monitoring data continue to demonstrate 
attainment of the ozone standard. The State must continue to operate an 
appropriate air quality monitoring network, in accordance with 40 CFR 
part 58, to verify attainment status of the area (see ``Conformity; 
General Preamble for Exemption from Nitrogen Oxides'' (59 FR 31238)).
    If, subsequent to granting NOX exemptions to the East Lansing 
and Genesee County transitional nonattainment areas, EPA determines 
that either area has violated the ozone standard, the exemption for the 
area in which the violation occurred will no longer be valid. EPA will 
notify the State of Michigan that the exemption no longer applies to 
the area in which the violation occurred, and also will provide notice 
to the public in the Federal Register. If an exemption is revoked, the 
State must comply with any applicable NOX requirements set forth 
in the Act. The Federal Register notice revoking the NOX exemption 
also would establish the schedule for adoption and implementation of 
NOX RACT.


Miscellaneous


I. Applicability to Future SIP Decision


    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. EPA shall consider each request for revision to the SIP in light 
of specific technical, economic and environmental factors and in 
relation to relevant statutory and regulatory requirements.


II. Executive Order 12866


    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993 
memorandum from Michael Shapiro, Acting Assistant Administrator for Air 
and Radiation. The OMB has exempted this regulatory action from E.O. 
12866 review.


III. Regulatory Impact


    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq, EPA must 
prepare a regulatory flexibility analysis assessing the impact of any 
proposed or final rule on small entities (5 U.S.C. 603, 604). 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small businesses, small 
not-for-profit enterprises, and government entities with jurisdiction 
over populations of fewer than 50,000.
    This approval does not create any new requirements. Therefore, I 
certify that this action does not have a significant impact on any 
small entities affected. Moreover, due to the nature of the FederalState 
relationship under the Act, preparation of the regulatory 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of the State action. The Act forbids EPA to base its 
actions concerning SIPs on such grounds. Union Electric Co. v. United 
States Environmental Protection Agency, 427 U.S. 246, 256-66 (S.Ct. 
1976); 42 U.S.C. 7410(a)(2).


List of Subjects in 40 CFR Part 52


    Environmental protection, Air pollution control, Intragovernmental 
relations, Oxides of nitrogen, Ozone.


    Dated: December 9, 1994
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 94-31741 Filed 12-27-94; 8:45 am]
BILLING CODE 6560-50-M

 
 

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