Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Michigan; Redesignation of Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benton Harbor, Benzie County, Cass County, Huron County, and Mason County 8-Hour Ozone Nonattainment Areas to Attainment for Ozone, 27425-27437 [E7-9289]
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Federal Register / Vol. 72, No. 94 / Wednesday, May 16, 2007 / Rules and Regulations
As a result of the implementation of
this computerized system on November
27, 2006, the revisions to 20 CFR
404.459 and 419.1340 expanding the
situations where administrative
sanctions may be imposed became
applicable. A person is subject to a
sanction for failing to disclose
information that is material to
determining title II/title XVI benefit
eligibility or amounts if:
• The person knows or should know
the information is material to benefit
eligibility or amount; and
• The person knows or should know
the withholding of the information is
misleading; and
• The failure to disclose occurred
after November 27, 2006.
We have revised our instructional
manuals and other documents to reflect
this additional instance where
administrative sanctions may be
imposed.
Dated: May 8, 2007.
Michael J. Astrue,
Commissioner of Social Security.
[FR Doc. E7–9226 Filed 5–15–07; 8:45 am]
BILLING CODE 4191–02–P
SOCIAL SECURITY ADMINISTRATION
20 CFR Part 498
[Docket No. SSA–2006–0044]
Applicability of Amendment—
Additional Instances Where Civil
Monetary Penalties and/or
Assessments Can Be Imposed
Office of the Inspector General
(OIG), Social Security Administration
(SSA).
ACTION: Announcement of applicability
date.
AGENCY:
This document announces
that on November 27, 2006, the
Commissioner of Social Security
(Commissioner) implemented the
centralized computer file described in
section 202 of the Social Security
Protection Act of 2004 (SSPA). Until
this centralized computer file was
implemented, the portion of the final
rules published on May 17, 2006, at 71
FR 28574, relating to the imposition of
civil monetary penalties and/or
assessments for withholding of
information from, or failure to disclose
information to, SSA, was not in effect.
DATES: The amendment to 20 CFR
498.102(a)(3) published May 17, 2006
(71 FR 28574) became applicable
November 27, 2006.
FOR FURTHER INFORMATION CONTACT:
Kathy A. Buller, Chief Counsel to the
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SUMMARY:
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Inspector General, Social Security
Administration, Office of the Inspector
General, Room 3–ME–1, 6401 Security
Boulevard, Baltimore, MD 21235–6401,
(410) 965–2827. For information on
eligibility or filing for benefits, call our
national toll-free number, 1–800–772–
1213 or TTY 1–800–325–0778, or visit
our Internet Web site, Social Security
Online, at https://
www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION: Section
201(a)(1) of the SSPA, Public Law 108–
203, amended section 1129 of the Social
Security Act (Act) (42 U.S.C. 1320a–8),
to allow for the imposition of civil
monetary penalties and/or assessments
for the withholding of information from,
or failure to disclose information to,
SSA.
Pursuant to section 201(d) of the
SSPA, this amendment to section 1129
of the Act ‘‘shall apply with respect to
violations committed after the date on
which the Commissioner of Social
Security implements the centralized
computer file described in section 202’’
of the SSPA. Section 202 of the SSPA
provided for the implementation by the
Commissioner of ‘‘a centralized
computer file recording the date of the
submission of information by a disabled
beneficiary (or representative) regarding
a change in the beneficiary’s work or
earnings status.’’
On May 17, 2006, at 71 FR 28574, the
OIG published the final rules reflecting
and implementing the amendments to
sections 1129 and 1140 of the Social
Security Act made by the SSPA and
Public Law 106–169, the Foster Care
Independence Act of 1999, including
section 201(a)(1) of the SSPA. At that
time we stated the following regarding
the implementation of section 201(a) of
the SSPA:
Applicability Date: Section 498.102(a)(3),
as it relates to the withholding of information
from, or failure to disclose information to,
SSA, will be applicable upon
implementation of the centralized computer
file described in section 202 of Public Law
108–203. If you want information regarding
the applicability date of this provision, call
or write the SSA contact person. SSA will
publish a document announcing the
applicability date in a subsequent Federal
Register document. The remainder of
§ 498.102(a)(3), currently in effect, is
unaffected by this delay.
On November 27, 2006, SSA fully
implemented the centralized computer
file described in section 202 of the
SSPA. Therefore, pursuant to the
requirements of section 201 of the SSPA
and the final rules published at 71 FR
28574, this notice announces that 20
CFR 498.102(a)(3), as it relates to the
withholding of information from, or
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failure to disclose information to, SSA,
is applicable to violations committed
after November 27, 2006.
Dated: April 23, 2007.
Patrick P. O’Carroll, Jr.,
Inspector General, Social Security
Administration.
[FR Doc. E7–9228 Filed 5–15–07; 8:45 am]
BILLING CODE 4191–02–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
[EPA–R05–OAR–2006–0517, EPA–R05–
OAR–2006–0563; FRL–8314–4]
Approval and Promulgation of
Implementation Plans and Designation
of Areas for Air Quality Planning
Purposes; Michigan; Redesignation of
Flint, Grand Rapids, Kalamazoo-Battle
Creek, Lansing-East Lansing,
Muskegon, Benton Harbor, Benzie
County, Cass County, Huron County,
and Mason County 8-Hour Ozone
Nonattainment Areas to Attainment for
Ozone
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
SUMMARY: EPA is making determinations
under the Clean Air Act (CAA) that the
nonattainment areas of Flint (Genesee
and Lapeer Counties), Grand Rapids
(Kent and Ottawa Counties), KalamazooBattle Creek (Calhoun, Kalamazoo, and
Van Buren Counties), Lansing-East
Lansing (Clinton, Eaton, and Ingham
Counties), Muskegon (Muskegon
County), Benton Harbor (Berrien
County), Benzie County, Cass County,
Huron County, and Mason County have
attained the 8-hour ozone National
Ambient Air Quality Standard
(NAAQS). For the Grand Rapids,
Kalamazoo-Battle Creek, Lansing-East
Lansing, Benzie County, Huron County,
and Mason County areas, these
determinations are based on two
overlapping three-year periods of
complete, quality-assured ambient air
quality monitoring data for the 2002–
2004 seasons and the 2003–2005
seasons that demonstrate that the 8-hour
ozone NAAQS has been attained in the
areas. Quality assured monitoring data
for 2006 show that the areas continue to
attain the standard. For the Flint,
Muskegon, Benton Harbor, and Cass
County areas, these determinations are
based on three years of complete
quality-assured ambient air quality
monitoring data for the 2004–2006
seasons that demonstrate that the 8-hour
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Federal Register / Vol. 72, No. 94 / Wednesday, May 16, 2007 / Rules and Regulations
ozone NAAQS has been attained in the
areas. In addition, quality-assured data
for 2003–2005 also demonstrate that the
8-hour NAAQS was attained during this
period.
EPA is approving requests from the
State of Michigan to redesignate the
Flint, Grand Rapids, Kalamazoo-Battle
Creek, Lansing-East Lansing, Muskegon,
Benton Harbor, Benzie County, Cass
County, Huron County, and Mason
County areas to attainment of the 8-hour
ozone NAAQS. The Michigan
Department of Environmental Quality
(MDEQ) submitted these requests on
May 9, 2006 and June 13, 2006, and
supplemented them on May 26, 2006,
August 25, 2006, and November 30,
2006. In approving these requests, EPA
is also approving, as revisions to the
Michigan State Implementation Plan
(SIP), the State’s plans for maintaining
the 8-hour ozone NAAQS through 2018
in these areas. EPA is also finding
adequate and approving, for purposes of
transportation conformity, the State’s
2018 Motor Vehicle Emission Budgets
(MVEBs) for the Flint, Grand Rapids,
Kalamazoo-Battle Creek, Lansing-East
Lansing, Muskegon, Benton Harbor,
Benzie County, Cass County, Huron
County, and Mason County areas.
DATES: This final rule is effective on
May 16, 2007.
ADDRESSES: EPA has established a
docket for this action as it relates to the
Grand Rapids, Kalamazoo-Battle Creek,
Lansing-East Lansing, Benzie County,
Huron County, and Mason County areas
under Docket ID No. EPA–R05–OAR–
2006–0517 and a docket for this action
as it relates to the Flint, Muskegon,
Benton Harbor, and Cass County areas
under Docket ID No. EPA–R05–OAR–
2006–0563. All documents in the docket
are listed on the 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. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the 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.
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FOR FURTHER INFORMATION CONTACT:
Kathleen D’Agostino, Environmental
Engineer, Criteria Pollutant Section, Air
Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886–1767,
dagostino.kathleen@epa.gov.
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 Actions?
III. What Are Our Final Actions?
IV. Statutory and Executive Order Review
I. What Is the Background for This
Rule?
Ground-level ozone is not emitted
directly by sources. Rather, emissions of
nitrogen oxides (NOX) and volatile
organic compounds (VOCs) react in the
presence of sunlight to form groundlevel ozone. NOX and VOCs are referred
to as precursors of ozone.
The CAA establishes a process for air
quality management through the
NAAQS. Before promulgation of the
current 8-hour standard, the ozone
NAAQS was based on a 1-hour
standard. At the time EPA revoked the
1-hour ozone NAAQS, on June 15, 2005,
the Flint, Grand Rapids, KalamazooBattle Creek, Lansing-East Lansing,
Muskegon, Benton Harbor, Benzie
County, Cass County, Huron County,
and Mason County areas were all
designated as attainment under the 1hour ozone NAAQS.
On July 18, 1997, EPA promulgated a
revised 8-hour ozone standard of 0.08
parts per million (ppm). This new
standard is more stringent than the
previous 1-hour standard. On April 30,
2004 (69 FR 23857), EPA published a
final rule designating and classifying
areas under the 8-hour ozone NAAQS.
These designations and classifications
became effective June 15, 2004. The
CAA required EPA to designate as
nonattainment any area that was
violating the 8-hour ozone NAAQS
based on the three most recent years of
air quality data, 2001–2003.
The CAA contains two sets of
provisions, subpart 1 and subpart 2, that
address planning and control
requirements for nonattainment areas.
(Both are found in title I, part D, 42
U.S.C. 7501–7509a and 7511–7511f,
respectively.) Subpart 1 (which EPA
refers to as ‘‘basic’’ nonattainment)
contains general requirements for
nonattainment areas for any pollutant,
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including ozone, governed by a NAAQS.
Subpart 2 (which EPA refers to as
‘‘classified’’ nonattainment) provides
more specific requirements for ozone
nonattainment areas. Under EPA’s
Phase 1 8-hour ozone implementation
rule, (69 FR 23951 (April 30, 2004)), an
area was classified under subpart 2
based on its 8-hour ozone design value
(i.e., the 3-year average annual fourthhighest daily maximum 8-hour average
ozone concentration), if it had a 1-hour
design value at the time of designation
at or above 0.121 ppm (the lowest 1hour design value in Table 1 of subpart
2) (69 FR 23954). All other areas were
covered under subpart 1, based upon
their 8-hour design values (69 FR
23958). The Muskegon and Cass County
areas were designated as subpart 2, 1hour ozone moderate 1 nonattainment
areas by EPA on April 30, 2004, (69 FR
23857, 23911), based on air quality
monitoring data from 2001–2003. The
Flint, Grand Rapids, Kalamazoo-Battle
Creek, Lansing-East Lansing, Benton
Harbor, Benzie County, Huron County,
and Mason County areas were all
designated as subpart 1, 8-hour ozone
nonattainment areas by EPA on April
30, 2004, (69 FR 23857, 23910–23911)
based on 2001–2003 air quality
monitoring data.
Under section 181(a)(4) of the CAA,
EPA may adjust the classification of an
ozone nonattainment area to the next
higher or lower classification if the
design value for the area is within five
percent of the cut-off for that higher or
lower classification. On September 22,
2004, EPA adjusted the classification of
several nonattainment areas which had
been designated and classified under
subpart 2 on April 30, 2004. At that
time, EPA adjusted the classifications of
the Muskegon and Cass County
nonattainment areas from moderate to
marginal (69 FR 56697, 56708–56709). It
should be noted that the United States
Court of Appeals for the District of
Columbia Circuit has recently vacated
EPA’s April 30, 2004 ‘‘Final Rule to
Implement the 8-Hour Ozone National
Ambient Standard’’ (the Phase 1
implementation rule). South Coast Air
Quality Management District v. EPA,
No. 04–1200., 472 F.3d 882 (DC Cir.
2007). EPA issued a supplemental
proposed rulemaking that set forth its
views on the potential effect of the
Court’s ruling on these and other
proposed redesignation actions. 72 FR
13452 (March 22, 2007) See discussion
below.
1 Under subpart 2 of the CAA, areas are further
classified as marginal, moderate, serious, severe or
extreme based on the design value for the area.
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Federal Register / Vol. 72, No. 94 / Wednesday, May 16, 2007 / Rules and Regulations
40 CFR Section 50.10 and 40 CFR Part
50, Appendix I provide that the 8-hour
ozone standard is attained when the 3year average of the annual fourthhighest daily maximum 8-hour average
ozone concentration is less than or
equal to 0.08 ppm, when rounded. 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. See 40
CFR Part 50, Appendix I, 2.3(d).
On May 9, 2006, Michigan requested
that EPA redesignate the Grand Rapids,
Kalamazoo-Battle Creek, Lansing-East
Lansing, Benzie County, Huron County,
and Mason County areas to attainment
for the 8-hour ozone standard. The State
supplemented its redesignation requests
on May 26, 2006 and August 25, 2006.
The redesignation requests included
27427
three years of complete, quality-assured
data for the period of 2002 through
2004, as well as complete quality
assured data for 2005, indicating the 8hour NAAQS for ozone had been
attained for all of the areas covered by
the request. Subsequently EPA reviewed
the quality assured monitoring data for
2004–2006. These data show that these
areas continued to attain the standard
for 2004–2006. See Table 1 below.
TABLE 1.—ANNUAL 4TH HIGH DAILY MAXIMUM 8-HOUR OZONE CONCENTRATION AND 3-YEAR AVERAGES OF 4TH HIGH
DAILY MAXIMUM 8-HOUR OZONE CONCENTRATIONS
County
Monitor
Grand Rapids ...............
Kent .............................
Kalamazoo-Battle Creek
Ottawa .........................
Kalamazoo ..................
Lansing-East Lansing ...
Clinton .........................
Benzie ...........................
Huron ............................
Benzie .........................
Huron ..........................
Mason ...........................
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2005 4th high
(ppm)
2006 4th high
(ppm)
0.068
0.083
0.082
0.077
0.072
0.069
0.068
0.083
0.086
0.081
0.081
0.083
0.068
0.078
0.079
0.072
0.070
0.078
0.071
0.073
0.068
0.082
0.071
0.073
0.075
0.068
0.086
0.077
0.080
0.073
0.080
0.072
0.071
0.085
0.076
0.077
Grand Rapids 26–
0810020.
Evans 26–0810022 .....
Jenison 26–1390005 ...
Kalamazoo 26–
0770008.
Rose Lake 26–
0370001.
Lansing-East Lansing
26–0650012.
Frankfort 26–0190003
Harbor Beach 26–
0633006.
Scottville 26–1050007
Ingham ........................
Mason .........................
On June 13, 2006, Michigan requested
that EPA redesignate the Flint,
Muskegon, Benton Harbor, and Cass
County areas to attainment for the 8hour ozone standard. The State
supplemented its requests on August 25,
2006 and November 30, 2006. The
redesignation requests included three
years of complete, quality-assured data
for 2004–2006, indicating the 8-hour
NAAQS for ozone had been attained for
all of the areas covered by the request.
Data submitted by the State also showed
attainment in 2003–2005. Under the
CAA, nonattainment areas may be
redesignated to attainment if sufficient
complete, quality-assured data are
available for the Administrator to
determine that the area has attained the
standard, and the area meets the other
CAA redesignation requirements in
section 107(d)(3)(E).
On December 7, 2006 (71 FR 70915),
EPA proposed to make determinations
that the Grand Rapids, Kalamazoo-Battle
Creek, Lansing-East Lansing, Benzie
County, Huron County, and Mason
County areas have attained the 8-hour
ozone NAAQS, and to approve the
redesignations of the areas from
nonattainment to attainment for the 8hour ozone NAAQS. EPA also proposed
to approve maintenance plan SIP
revisions for the Grand Rapids,
Kalamazoo-Battle Creek, Lansing-East
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Lansing, Benzie County, Huron County,
and Mason County areas. Additionally,
EPA found adequate and proposed to
approve the 2018 Motor Vehicle
Emissions Budgets (MVEBs) submitted
by Michigan for these areas in
conjunction with the redesignation
requests.
On January 8, 2007 (72 FR 699), EPA
proposed to make determinations that
the Flint, Muskegon, Benton Harbor,
and Cass County areas have attained the
8-hour ozone NAAQS, and to approve
the redesignations of the areas from
nonattainment to attainment for the 8hour ozone NAAQS. EPA also proposed
to approve the maintenance plan SIP
revisions for the Flint, Muskegon,
Benton Harbor, and Cass County areas.
Additionally, EPA found adequate and
proposed to approve the 2018 MVEBs
submitted by Michigan for these areas in
conjunction with the redesignation
requests. The rationale for EPA’s
proposed actions is explained in the
notices of proposed rulemaking and will
not be restated here.
In addition, as noted above, EPA
issued a supplemental proposed
rulemaking setting forth EPA’s views on
the potential impact of the Court’s
ruling in South Coast Air Quality
Management District v EPA. EPA
provided a 15-day review and comment
period on this supplemental proposed
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2004–2006
average
(ppm)
2004 4th high
(ppm)
Area
Sfmt 4700
rulemaking. The public comment period
closed on April 6, 2007. EPA received
six comments, all supporting EPA’s
supplemental proposed rulemaking, and
supporting redesignation of the affected
areas. EPA recognizes the support
provided in these comments but does
not believe any specific response to
comments is necessary with respect to
these comments. In addition, several of
these comments included additional
rationale for proceeding with these
proposed designations. EPA had not
requested comment on any additional
rationale, does not believe any
additional rationale is necessary, and
similarly does not believe any specific
response to these comments is
necessary, and thus has not provided
any.
II. What Comments Did We Receive on
the Proposed Actions?
EPA provided a 30-day review and
comment period on the proposed rules.
The public comment periods closed on
January 1, 2007 and February 7, 2007.
EPA received a letter from the Crystal
Lake Watershed Association in favor of
the redesignation of Benzie County. EPA
received adverse comments from the
Little River Band of Ottawa Indians and
from three citizens. Unless an area was
specifically identified by the
commentor, EPA assumed that the
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Federal Register / Vol. 72, No. 94 / Wednesday, May 16, 2007 / Rules and Regulations
comment applied to all areas. A
summary of the adverse comments
received, and EPA’s responses, follows.
(1) Comment: Redesignation of
Mason, Benzie and Muskegon Counties
at this time would be premature because
the data are misleading. Although the
three-year averages for both Mason and
Benzie Counties during the period of
2002–2004, 2003–2005 and 2004–2006
were less than 0.085 parts per million
(ppm), which puts both counties into
attainment for the 8-hour ozone
NAAQS, 2004 was a statistical outlier.
This argument could be extended to
other counties affected by EPA’s
proposals.
Response: The CAA provides the
requirements for redesignating a
nonattainment area to attainment.
Specifically, section 107(d)(3)(E) allows
for redesignation provided that, among
other things, the Administrator
determines that the area has attained the
applicable NAAQS. A determination
that an area has attained the standard is
based on an objective review of air
quality data. There are no provisions in
the CAA or in EPA redesignation policy
for using monitoring data trends or
statistical analyses as criteria for
determining attainment in evaluating a
redesignation request.
EPA promulgated the current 8-hour
ozone standard on July 18, 1997 (62 FR
38856). As discussed in detail in the
proposed rule, an area is considered to
be in attainment of the 8-hour ozone
standard if the 3-year average of the
fourth-highest daily maximum 8-hour
average ozone concentrations measured
at each monitor within an area over
each year does not exceed 0.084 ppm.
Three years of air quality data are used
to allow for year-to-year variations in
meteorology. The three year averaging
period provides a reasoned balance
between evening out meteorological
effects and properly addressing real
changes in emission levels. See 66 FR
53094, 53100 (October 19, 2000)
(redesignation of Pittsburgh) and 69 FR
21717, 21719–21720 (April 22, 2004)
(determination of attainment for the Bay
Area). In the case of Mason and Benzie
Counties, both areas have attained the
standard for three three-year periods,
which is also the case for the Grand
Rapids, Kalamazoo-Battle Creek,
Lansing-East Lansing and Huron County
areas. The Muskegon area has attained
the standard for two three-year periods,
which is also the case for the Flint,
Benton Harbor and Cass County areas.
In all cases, these areas have
demonstrated attainment for longer than
is required. As the commentor
acknowledges, the areas are monitoring
attainment of the 8-hour standard. EPA
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has no basis for using other criteria to
determine if an area is attaining the 8hour ozone NAAQS.
It should be noted that, to put recent
western Michigan meteorological
monitoring data into perspective, EPA
obtained historical temperature data
recorded at the Muskegon County
Airport from the National Oceanic and
Atmospheric Administration’s (NOAA)
National Climate Data Center. Review of
average high temperatures and number
of days with temperatures greater than
or equal to 90°F recorded over the ozone
season for the past 50 years indicates
that the year-to-year variations recorded
from 2003–2006, are typical of historical
values. Average high temperatures are
above the 50 year average for 2003, 2005
and 2006 and slightly below the 50 year
average for 2004. Taken together,
average high temperatures for the 2003–
2005 and 2004–2006 time periods are
above the 50 year average. Considering
the number of days with temperatures of
90°F or greater, values for the 2003–
2005 and 2004–2006 time periods are
above the 50 year average. This
information does not support the
commentor’s contention that abnormal
meteorology was responsible for
improvements in air quality.
In addition, as discussed at length in
the proposals, the areas have met the
separate redesignation requirement of
demonstrating that the improvement in
air quality is due to permanent and
enforceable emissions reductions. This
further refutes the contention that
favorable meteorology accounts for
attainment.
(2) Comment: EPA should look with
more scrutiny at the 4th highest 8-hour
averages for each year. Reviewing these
values, it is difficult to predict whether
Benzie, Mason, and Muskegon Counties
will be able to maintain the ozone
standard starting with the 2005–2007
data, since the failing values for next
year are close to what the values have
been for the past two years. Muskegon
has a failing value lower than the 4th
highest 8-hour average for every year
except 2004.
Response: As discussed above, neither
the CAA nor EPA’s interpretation of
CAA requirements in policy memoranda
provide for using monitoring data trends
or statistical analyses as criteria for
determining attainment for evaluating a
redesignation request. Section
107(d)(3)(E) of the CAA allows for
redesignation provided that, among
other things, the Administrator
determines that the area has attained the
applicable NAAQS. As described in
detail in the proposed rules, the Grand
Rapids, Kalamazoo-Battle Creek,
Lansing-East Lansing, Muskegon,
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Benton Harbor, Flint, Benzie County,
Cass County, Huron County, and Mason
County areas are all monitoring
attainment of the 8-hour ozone NAAQS.
In addition, consistent with the
requirements of sections 175A and
107(d)(3)(E) of the CAA, Michigan has
submitted maintenance plans for the
areas which show continued
maintenance and continuing reductions
in NOX and VOC emissions through
2018, further decreasing peak ozone
levels and maintaining ozone
attainment. It should also be noted that
reductions in emissions that have
occurred and that will continue to occur
in upwind areas will contribute to
maintenance of the NAAQS in these
areas. Some of these measures include
the NOX SIP call, stationary source NOX
regulations, the National Low Emission
Vehicle (NLEV) program, Tier 2
emission standards for vehicles (Tier 2),
low sulfur diesel fuel standards and
heavy-duty diesel engine standards.
Additionally, Illinois, Indiana,
Wisconsin, and Michigan, along with 25
other states and the District of
Columbia, are subject to the Clean Air
Interstate Rule, which should result in
reduced NOX emissions and a reduction
in transported ozone. Furthermore, as
demonstrated by the contingency
measure provisions required by section
175A(d), the CAA clearly anticipates
and provides for situations where an
area might monitor a violation of the
NAAQs after having been redesignated
to attainment. Michigan has included
contingency measure provisions
consistent with CAA requirements in
their maintenance plans to address any
possible future violation of the NAAQS.
(3) Comment: The results from 2004
are abnormally low due solely to the
weather. While we agree that there is an
overall downward trend, we insist that
the unfavorable weather for ozone
formation led to atypically low results
in 2004. The results for that year are
single handedly dragging down the
three year average and artificially
bringing the areas into attainment before
they have reached a maintainable
situation. The commentor is particulary
concerned with the Benzie County,
Mason County, and Muskegon areas.
Response: It should be noted that as
discussed above, the year to year
temperature variations recorded from
2003–2006, are typical of historical
values and EPA does not believe that
the 2004 data were abnormally low.
Moreover, as discussed in greater detail
above, section 107(d)(3)(E)(i) of the CAA
requires that the Administrator
determine that the area has attained the
applicable NAAQS. A determination
that an area has attained the NAAQS is
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based on an objective review of air
quality data. An area is considered to be
in attainment of the 8-hour ozone
standard if the 3-year average of the
fourth-highest daily maximum 8-hour
average ozone concentrations measured
at each monitor within an area over
each year does not exceed 0.084 ppm.
Three years of air quality data are used
to allow for year-to-year variations in
meteorology. The adequacy of the ozone
standard is not at issue in this
rulemaking. Comments regarding the
adequacy of the ozone standard would
have more appropriately been submitted
in response to the proposal of the 8-hour
standard.
In addition, as discussed above,
Michigan has submitted maintenance
plans which show continuing
reductions in NOX and VOC emissions
through 2018, and include contingency
measure provisions to address any
possible future violation of the NAAQS.
Moreover, as discussed in the proposals,
71 FR 70921 (December 7, 2006) and 72
FR 704–705 (January 8, 2007), Michigan
has shown that the improvement in air
quality is due to permanent and
enforceable emissions reductions, and
not to favorable meteorology. Emission
reductions from within the areas, as
well as regional reductions from
upwind areas, are responsible for
attainment. Reductions in VOC and
NOX emissions have occurred in
Michigan, as well as in upwind areas, as
a result of Federal emission control
measures, with additional emission
reductions expected to occur in the
future. Federal emission control
measures include: The NLEV program,
Tier 2 emission standards for vehicles,
gasoline sulfur limits, low sulfur diesel
fuel standards, and heavy-duty diesel
engine standards. In accordance with
EPA’s NOX SIP call, Michigan
developed rules to control NOX
emissions from electric generating units
(EGUs), major non-EGU industrial
boilers, and major cement kilns.
Between 2000 and 2004, this resulted in
a 40,577 ton reduction in ozone season
NOX emissions. Illinois and Indiana
have also adopted regulations to comply
with the NOX SIP call which have
resulted in a 155,831 ton reduction in
ozone season NOX emissions between
2000 and 2004. While Wisconsin was
not subject to the NOX SIP call, the state
has adopted NOX regulations to meet
rate of progress requirements. The
emission reductions from all of these
programs are permanent and
enforceable.
(4) Comment: MDEQ’s maintenance
plans do not address the fact that the
Lake Michigan shoreline counties are
overwhelmingly impacted by ozone
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originating from sources across the lake
in the Chicago-Gary-Milwaukee area.
Instead, MDEQ insists on controlling
local sources when the reason for the
problem is solely rooted in pollution
traveling on prevailing winds across the
lake. It is disingenuous for MDEQ to
submit a maintenance plan to EPA that
does not address the need for
controlling these distant sources as they
are the root cause. Furthermore, it is
equally as wrong for EPA to accept such
a request without reassurances from
MDEQ in writing to pursue its options
in Section 126 of the CAA regardless of
the consequences. EPA should deny
MDEQ’s request unless they include
Section 126 provisions in the
maintenance plan. If EPA chooses to
accept this request without
commitments in writing from MDEQ to
pursue its options under Section 126,
then the onus is on EPA to pursue those
actions. The commentor is particularly
concerned with the Benzie County,
Mason County and Muskegon areas.
Response: MDEQ has included in its
maintenance plans, control measures
which the State has the authority to
adopt and enforce. MDEQ does not have
the authority to adopt and enforce
measures to control sources located in
Illinois, Indiana, or Wisconsin. It would
be inappropriate for the State to include
in its maintenance plans contingency
measures that it could neither adopt nor
enforce.
Section 110(a)(2)(D) of the CAA,
which applies to all SIPs for each
pollutant covered by a NAAQS, and for
all areas regardless of their attainment
designation, provides that a SIP must
contain provisions preventing its
sources from contributing significantly
to nonattainment problems or
interfering with maintenance in
downwind States.
Section 126 of the CAA authorizes a
downwind state to petition EPA for a
finding that any new or existing major
stationary source or group of stationary
sources upwind of the state emits or
would emit in violation of the
prohibition of section 110(a)(2)(D)
because their emissions contribute
significantly to nonattainment, or
interfere with maintenance, of a NAAQS
in the state. Michigan retains the
authority, under section 126 of the CAA,
to petition EPA should this become
necessary in the future. It is unnecessary
for Michigan to cite section 126 of the
CAA in its maintenance plans to
preserve this option. Upwind areas will
remain subject to the provisions of
section 110(a)(2)(D) and section 126
after the areas are redesignated to
attainment, and redesignation will not
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remove the protections of these
provisions for lakeshore counties.
Furthermore, Section 110(k)(5)
authorizes EPA to find that a SIP is
substantially inadequate to meet any
CAA requirement, as well as to mitigate
interstate transport of the type described
in section 184 (concerning ozone
transport in the northeast) or section
176A (concerning interstate transport in
general), and thereby require the State to
submit, within a specified period, a SIP
revision to correct the inadequacy. EPA
exercised this authority in issuing the
NOX SIP call, and would do so again, as
necessary, if it finds that SIPs do not
adequately address transport.
In fact, upwind areas, including
Chicago-Gary-Lake County, IL–IN and
Milwaukee-Racine, WI, are continuing
to implement measures to reduce ozone
precursors; including the NOX SIP call,
stationary source NOX regulations,
NLEV, Tier 2, low sulfur diesel fuel
standards and heavy-duty diesel engine
standards. Additionally, Illinois,
Indiana, Wisconsin, and Michigan,
along with 25 other states and the
District of Columbia, are subject to the
Clean Air Interstate Rule, which should
result in reduced NOX emissions and a
reduction in transported ozone.
(5) Comment: One commenter
disagreed with the assertion that
Executive Order 13175, Consultation
and Coordination with Indian Tribal
Governments, dated Nov. 6, 2000, (E.O.
13175) does not apply to the Region’s
proposed approval of MDEQ’s requests
to redesignate certain counties from
‘‘non-attainment’’ to ‘‘attainment’’ for
ozone pursuant to Section 107(d) of the
Clean Air Act. The commenter states
that EPA’s action has tribal implications
under E.O. 13175.
Response: E.O. 13175 was signed on
November 6, 2000, and sets forth
various provisions regarding
consultation and coordination between
Federal agencies undertaking ‘‘policies
that have tribal implications’’ and
Indian tribal governments. Under E.O,
13175, the term ‘‘policies that have
tribal implications’’ refers to
‘‘regulations, legislative comments or
proposed legislation, and other policy
statements or actions that have
substantial direct effects 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.’’
It is not necessary to address the
scope of E.O. 13175 at this time. Federal
policy and EPA’s 1984 Indian Policy
encourage the Agency to consult with
Tribes prior to taking actions that affect
Tribal governments. Recognizing tribal
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interest in this matter, the Region
offered to consult with all Michigan
Tribes with respect to the redesignation
requests. Five Tribes accepted this offer,
and consultation occurred by means of
a conference call on August 30, 2006
and a face-to-face meeting held at the
Nottawaseppi Huron Band of
Potawatomi Indians tribal center on
September 26, 2006. Consequently, the
purposes of the executive order were
satisfied in this case.
(6) Comment: Even though EPA was
only required to consult with tribes
once, it is by no means prohibited from
talking to them again. At the very least
there are two requests submitted by
MDEQ (May 9, 2006 and June 13, 2006)
which should translate to two
consultation processes. Furthermore,
the effectiveness of the consultation
process has been significantly
diminished since the current Regional
Administrator and Air Division Director
were not in their current positions or on
leave when the meeting took place.
Response: We believe that the
consultation process was constructive
and appreciate the considered
comments provided by the Little River
Band of Ottawa Indians. However, at
this time we believe that the conference
call and meeting constitute adequate
consultation and do not believe that
value would be added through
additional consultation on this issue.
Both the May 9, 2006, and June 13,
2006, redesignation submittals were
discussed in the conference call and at
the meeting. Furthermore, the
comments do not raise any issues that
were not discussed during the
consultation. With respect to EPA
management changes, we believe that
this has no bearing on the effectiveness
or adequacy of the consultation process.
Appropriate EPA representatives
participated in the consultation process
and current management has been
comprehensively briefed.
(7) Comment: The CAA requires EPA
to act within 18 months of the
submission of a redesignation request.
Michigan submitted the requests on
May 9, 2006 and June 13, 2006. This
means EPA does not have to approve or
deny the requests until November 9,
2007 and December 13, 2007,
respectively. Thus, EPA could choose to
wait and see what will happen with
these counties after the end of next
ozone season. More importantly though,
EPA could see what the three-year
average is without the abnormally low
2004 data skewing the results. EPA
should hold off on redesignating these
counties until after 2007’s ozone season
is complete.
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Response: As noted above in
responses to comments, the year to year
temperature variations recorded from
2003–2006, are typical of historical
values and EPA does not believe that
the 2004 data were abnormally low.
Moreover, as set forth above in response
to comments, three years of air quality
data are used in determining attainment
with the standard to allow for year-toyear variations in meteorology. In any
event, delay of the redesignation is not
necessary because the Grand Rapids,
Kalamazoo-Battle Creek, Lansing-East
Lansing, Muskegon, Benton Harbor,
Flint, Benzie County, Cass County,
Huron County, and Mason County areas
are all in attainment of the 8-hour ozone
standard and have otherwise met all
applicable requirements for
redesignation. For the Grand Rapids,
Kalamazoo-Battle Creek, Lansing-East
Lansing, Benzie County, Huron County,
and Mason County areas, attainment
was achieved at the end of the 2004
ozone monitoring season, when each of
the areas attained the ozone standard
with quality assured 2002–2004
monitoring data. Since that time, MDEQ
has collected and reported quality
assured monitoring data for 2005 and
2006, resulting in three 3-year periods of
monitored attainment. For the Flint,
Muskegon, Benton Harbor, and Cass
County areas, attainment was achieved
at the end of the 2005 ozone monitoring
season, when each of the areas attained
the ozone standard with quality assured
2003–2005 monitoring data. Since that
time, MDEQ has collected and reported
quality assured monitoring data for
2006, resulting in two 3-year periods of
monitored attainment. Furthermore, as
demonstrated in Michigan’s
maintenance plans, VOC and NOX
emissions will continue to decline
through 2018, further decreasing peak
ozone levels and maintaining
attainment of the ozone standard.
MDEQ has met all of the criteria for
redesignation contained in the CAA;
therefore EPA has no basis for delaying
approval of the State’s request.
(8) Comment: For the Mason County
ozone monitor, MDEQ discounted the 8hour average value of 0.089 ppm,
recorded on June 17, which was the 3rd
highest 8-hour average for 2006. This
change caused the 4th highest value to
drop from 0.083 ppm to 0.076 ppm. The
reason given for discounting monitoring
data recorded on June 17 at the Mason
County ozone monitor was that the
shelter temperature exceeded acceptable
limits due to a faulty air conditioner.
Obviously, such failures skew samples
results since the ozone is no doubt
highest when high temperatures also
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prevail. Certainly, days discounted that
are among the four highest are much
more significant than those below it.
Thus, it seems there should be a
mechanism for documenting discounted
days amongst the four highest for any
monitor and the reason for discounting
the data.
Response: EPA has established
specific quality assurance criteria for the
collection of ambient data. One of these
criteria, stated in Part 1, Section 7.1.2 of
the EPA’s ‘‘Quality Assurance
Handbook for Air Pollution
Measurement Systems,’’ is that ozone
analyzers must be operated within a
specific temperature range (20 °C to 30
°C). This temperature range is set
because the instruments have been
tested and qualified in this range of
temperatures. Establishing a range of
operating temperature ensures that the
instrument’s reported concentrations do
not drift from actual concentration;
therefore, when the temperature exceeds
this range, data are no longer considered
to have met the quality objectives and
are considered missing for regulatory
data calculations.
In the EPA Air Quality Database
(AQS), each hour has an ozone value
and can be flagged for a variety of
quality assurance reasons, including the
shelter temperature being out of
acceptable range. If the hourly value is
flagged, then that hour is not used in the
computation of the maximum 8-hour
average. Every eight-hour average must
have at least 6 hours of valid hourly
values, otherwise it is assigned the
value of missing. An ozone monitoring
day is counted as a valid ozone
monitoring day if at least 18 of the 24
possible 8-hour average periods are
available, or the daily maximum 8-hour
average concentration is greater than
0.08 ppm. Invalid days count against the
design value completeness criteria; i.e.,
75% per year and 90% over three years.
MDEQ appropriately flagged its
hourly ozone concentrations in the AQS
database when the monitoring shelter
temperature exceeded 30 ° C and they
correctly calculated the daily and
annual statistics according to the EPA’s
‘‘Guideline on Data Handling
Conventions for the 8-hour Ozone
NAAQS.’’ Furthermore, regardless of
whether 0.083 ppm or 0.076 ppm is
used as the 4th highest 8-hour average
for 2006, the area is monitoring
attainment of the 8-hour ozone NAAQS
for the 2004–2006 period.
(9) Comment: June 17 was in the top
four highest days at 20 out of 28 other
Michigan sites for 2006. The Little River
Band of Ottawa Indians operates an
ozone monitor in Manistee County,
which is the closest one to Mason
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County’s monitor. The tribal monitor
has a 4th highest 8-hour average of
0.083 ppm for 2006 as did Mason’s
before the removal of the June 17
reading. Could data from the tribal
monitor be used to supplement missing
data at the Mason County monitor?
Response: As explained in EPA’s
‘‘Guideline on Data Handling
Conventions for the 8-hour Ozone
NAAQS,’’ in certain situations, credit
can be given toward meeting the 75%
minimum data completeness
requirement for days with monitoring
data that would have had low ozone
concentrations. However, as long as a
site meets the 75% minimum data
completeness requirement in a given
year, EPA does not require that data
substitution from nearby monitors occur
for days that are missing data. The
Mason County monitoring site meets the
75% requirement in 2006, so there is no
requirement to assess nearby monitors
on days with missing data. Also, as
noted above, regardless of whether
0.083 ppm or 0.076 ppm is used as the
4th highest 8-hour average for 2006, the
area is monitoring attainment of the 8hour ozone NAAQS for the 2004–2006
period.
(10) Comment: For the Grand Rapids,
Kalamazoo-Battle Creek, Lansing-East
Lansing, Benzie County, Huron County,
and Mason County areas, Michigan used
emissions data from 1999 and 2002 to
show that the improvement in air
quality was due to permanent and
enforceable reductions in emissions.
Why would the state choose a time
period the EPA used to designate the
area nonattainment?
Response: In developing an
attainment inventory, Michigan could
have chosen any of the years that the
areas were monitoring attainment of the
standard. Michigan developed the
redesignation request based on ambient
monitoring for the 2002–2004 time
period showing that the areas had
attained the NAAQS. (The areas have
continued to monitor attainment for the
2003–2005 and 2004–2006 time
periods.) It would have been acceptable
for MDEQ to choose any of the three
years, 2002, 2003, or 2004, as the year
for the attainment inventory. (Because
the areas continue to attain the NAAQS,
2005 or 2006 would also have been
acceptable attainment years.) Michigan
had developed a detailed emissions
inventory for 2002 in support of
regional modeling efforts, and chose this
year for its attainment inventory. As
discussed in more detail in the
proposed rule (71 FR 70921), MDEQ
demonstrated emissions reductions
from 1999 to 2002 and detailed
permanent and enforceable control
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measures over this time period that
were responsible for the reduction in
emissions. If Michigan had chosen a
later year for its attainment inventory, it
could have documented an even greater
reduction in emissions, as the state has
documented increasing emissions
reductions from 2002 through 2018.
Between 2002 and 2006, these areas, as
well as areas upwind, have experienced
further reductions in motor vehicle
emissions due to the implementation of
the NLEV program, Tier 2 emission
standards for vehicles, gasoline sulfur
limits, low sulfur diesel fuel standards,
and heavy-duty diesel engine standards.
In addition, the NOX SIP call required
large reductions in NOX, beginning in
2004, for both Michigan and upwind
areas. The emission reductions from all
of these programs are permanent and
enforceable.
(11) Comment: Air quality monitoring
data for the Grand Rapids area shows an
upward trend from 1997 through 2003.
Why did EPA analyze 2002 emissions
data to show the area has put on
controls, when monitoring data
indicates air quality problems?
Response: Considering monitoring
data from 1999 through 2006, which
covers the time period that the Grand
Rapids area is using to demonstrate
monitored attainment with the standard,
there are year to year variations, but
overall ozone levels appear to be
declining. The fact that the area has
continued to monitor attainment of the
standard for the three most recent threeyear periods supports this view. As
noted above, in response to Comment
10, Michigan could have chosen for its
attainment inventory any of the years
that the area was monitoring attainment
of the standard. The state chose 2002 as
the attainment year and documented
permanent and enforceable control
measures which were responsible for
the reduction in emissions over the
1999–2002 time period. Table 5 set forth
in the proposal (17 FR 70922, 70924)
shows that the Grand Rapids area
reduced VOC emissions by 9,949 tpy
(18%) and NOX emissions by 20,276 tpy
(28%). Had the state chosen a later
attainment year, an even greater
reduction in emissions could have been
shown, as the state has documented
increasing emissions reductions from
2002 through 2018. In addition to the
emissions reductions documented in
Table 5 of the proposal, subsequent
emissions reductions in later years were
obtained from the NLEV program, Tier
2 emission standards for vehicles,
gasoline sulfur limits, low sulfur diesel
fuel standards, heavy-duty diesel engine
standards, and the NOX SIP call.
Upwind areas have also experienced
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27431
emissions reductions from these
programs. See Response to Comment 10,
above.
(12) Comment: Levels of ozone,
particulate matter and other pollutants
remain unacceptably high. EPA should
require Michigan to move toward
policies which improve air quality and
pressure the Chicago, Illinois and Gary,
Indiana areas to reduce pollution, which
is transported to Michigan.
Response: Under section 109 of the
CAA, EPA is charged with promulgating
NAAQS for criteria pollutants
(including ozone and particulate matter)
at levels protective of public health and
welfare. EPA promulgated NAAQS for
8-hour ozone on July 18, 1997 (62 FR
38856). The Grand Rapids, KalamazooBattle Creek, Lansing-East Lansing,
Muskegon, Benton Harbor, Flint, Benzie
County, Cass County, Huron County,
and Mason County areas have
demonstrated attainment of the 8-hour
ozone standard. It should be noted that
while this action does not relate to
particulate matter, all of these areas are
designated as attainment for particulate
matter as well.
This rule is a redesignation action that
is designed to determine whether an
area has met the requirements for
redesignation to attainment for 8-hour
ozone. Considerations of how to address
issues of transport from upwind areas
not related to the current redesignation
action are not relevant for purposes of
this action. As discussed elsewhere in
responses to comments, Sections 126
and 110(a)(2)(D) remain available as
mechanisms to address transport
problems regardless of whether an area
has been redesignated to attainment.
It should be noted, however, that
considerable progress has been made in
reducing transported pollution. EPA has
adopted and implemented the NOX SIP
call, which has significantly reduced
NOX emissions throughout the eastern
half of the United States. In Michigan,
Illinois, and Indiana alone, the NOX SIP
call has been responsible for a reduction
in ozone season NOX emissions in
excess of 196,400 tons between 2000
and 2004. Other Federal measures
including the NLEV program, Tier 2
emission standards for vehicles,
gasoline sulfur limits, low sulfur diesel
fuel standards, and heavy-duty diesel
engine standards continue to be
implemented and should result in
reductions in upwind emissions. In
addition, EPA finalized the Clean Air
Interstate Rule (CAIR) on May 12, 2005.
CAIR is designed to achieve large
reductions of sulfur dioxide (SO2) and/
or NOX emissions across 28 eastern
states and the District of Columbia and
specifically addresses the transported
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pollution from upwind states that
affects downwind air quality problems.
(Illinois, Indiana, Wisconsin and
Michigan are all subject to CAIR.) SO2
and NOX contribute to the formation of
fine particles and NOX contributes to
the formation of ground-level ozone.
(13) Comment: A commentor notes
that EPA’s 8-hour ozone designation
Web site lists the 2001–2003 design
value for the Grand Rapids area as 0.089
ppm. The commentor states that the
design value for the area should be
0.090 ppm, based on the Jennison
monitor.
Response: Yearly 4th high 8-hour
ozone averages at the Jennison monitor
for the years 2001–2003 are 0.086,
0.093, and 0.090 ppm, respectively.
Using the calculation procedures
described in 40 CFR Part 50, Appendix
I, which call for truncating after the
third decimal place, rather than
rounding, the 3-year average of the
fourth-highest daily maximum 8-hour
average ozone concentrations, i.e., the
design value, is 0.089 ppm.
(14) Comment: Considering the 4th
highest 8-hour average for each year for
each monitor in the Grand RapidsMuskegon-Holland Consolidated
Statistical Area, rather than the design
value, long term trends show a regional
air quality pattern of elevated and
violating ozone concentrations.
Response: It should be noted that the
commentor is citing three separate
nonattainment areas as if they were one
entity. The Grand Rapids and Muskegon
areas are monitoring attainment of the 8hour ozone NAAQS and EPA has
proposed to approve Michigan’s
requests to redesignate these areas to
attainment. The Allegan County area
(Holland) continues to monitor
violations of the 8-hour ozone standard.
Michigan has not requested that the
Allegan County area be redesignated
and this area is not addressed in this
rulemaking.
That being said, as discussed above,
neither the CAA nor EPA’s
interpretation of CAA requirements in
policy memoranda provide for using
monitoring data trends or statistical
analyses as criteria for ascertaining
attainment for purposes of
redesignation. Section 107(d)(3)(E) of
the CAA allows for redesignation
provided that, among other things, the
Administrator determines that the area
has attained the applicable NAAQS. As
described in detail in the proposed
rules, the Grand Rapids and Muskegon
areas are monitoring attainment of the 8hour ozone NAAQS.
Furthermore, maintenance plans for
Grand Rapids and Muskegon project
maintenance of the standard through
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2018. For Grand Rapids, the
maintenance plan shows that the area
will maintain the standard with
emissions reductions of 27% and 63%
for VOC and NOX, respectively, between
2002 and 2018. For Muskegon, the
maintenance plan shows that the area
will maintain the standard with
emissions reductions of 19% and 31%
for VOC and NOX, respectively, between
2005 and 2018. See 71 FR 70925 and 72
FR 707. Moreover, as described above in
responses to comments, continuing
reductions in emissions from upwind
areas will further contribute to
maintenance of the standard.
(15) Comment: EPA granted
Michigan’s requests to be exempt from
NOX RACT regulation requirements
when NOX has been pointedly and
repeatedly implicated in the ozone
formation process around Lake
Michigan. Based on regional modeling
performed by the Lake Michigan Air
Directors Consortium, EPA should
retract all NOX waiver requests
involving the areas until such time that
the associated NOX control measures are
shown to be completely ineffective at
addressing ozone air quality
improvement in all areas impacted by
those emissions.
Response: EPA approved section
182(f) NOX waivers for the Grand
Rapids, Kalamazoo-Battle Creek,
Lansing-East Lansing, Benzie County,
Huron County, and Mason County areas
on June 6, 2006 (71 FR 32448). The
issuance of NOX waivers for these areas
is not at issue in this rulemaking. This
comment would have more
appropriately been submitted in
response to the proposal to grant these
waivers. The comment is not relevant to
this redesignation action.
(16) Comment: There is not now any
guarantee that a regional program will
be adopted and implemented because
areas in Region 5 are being allowed to
be redesignated without viable
maintenance plans that acknowledge
the need for a comprehensive regional
plan.
Response: The role of a redesignation
action is to address air quality and
regulatory requirements in an
individual nonattainment area, and not
to serve as a mechanism to address
regional air quality issues. As noted
above, MDEQ has included in its
maintenance plans, control measures
which the state has the authority to
adopt and enforce. EPA has reviewed
these maintenance plans and found that
they provide for maintenance of the
ozone standard in accordance with
sections 175A and 107(d)(3)(E). MDEQ
does not have the authority to adopt and
enforce measures to control sources
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located in other states. Neither does it
have the authority to unilaterally
compel other states to participate in the
adoption and implementation of a
regional control program. It would be
inappropriate for the State to include in
its maintenance plans contingency
measures that it could neither adopt nor
enforce.
That being said, the redesignation of
areas does not prohibit states from
working together to ensure regional
attainment and maintenance of the
NAAQS. Indeed, it is in the states’ best
interest to do so. Section 110(a)(2)(D)(i)
of the CAA requires states to include in
their SIPs adequate provisions to
prohibit any source or emissions
activity within the state from emitting
any air pollutant in amounts which will
‘‘contribute significantly to
nonattainment in, or interfere with
maintenance by, any other State with
respect to any such national primary or
secondary ambient air quality
standard.* * *’’ The participation by
states in multi-state regional planning
facilitates the evaluation of states’
responsibilities regarding this section of
the CAA and promotes a cohesive plan
for regional attainment and maintenance
of the NAAQS. In fact, Michigan
continues to participate in regional
planning efforts through the Lake
Michigan Air Director’s Consortium.
Redesignation of an area does not
insulate it from the requirements or
protection of section 110(a)(2)(D).
Section 126 is also available to states to
petition for redress if sources in an
upwind state contribute significantly to
nonattainment, or interfere with
maintenance, of a NAAQS in the state.
See prior responses to comments.
In addition, as noted in prior
responses to comments, regional
emissions reductions due to the NOX
SIP call, CAIR, and other regulations
including the NLEV program, Tier 2
emission standards for vehicles,
gasoline sulfur limits, low sulfur diesel
fuel standards, and heavy-duty diesel
engine standards will result in
continued improvement in air quality
throughout the region.
(17) Comment: There are not new
controls on the books that will provide
for demonstrated permanent air quality
improvement by the expected
attainment dates of 2007, 2009 and
2010.
Response: The Grand Rapids,
Kalamazoo-Battle Creek, Lansing-East
Lansing, Muskegon, Benton Harbor,
Flint, Benzie County, Cass County,
Huron County, and Mason County areas
are all monitoring attainment of the 8hour ozone NAAQS. Therefore, future
attainment dates are irrelevant to the
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redesignation. Moreover, as discussed in
the proposals, 71 FR 70921 (December
7, 2006) and 72 FR 704–705 (January 8,
2007), Michigan has shown that the
improvement in air quality is due to
permanent and enforceable emissions
reductions. Emission reductions from
within the areas as well as regional
reductions from upwind areas are
responsible for attainment. Reductions
in VOC and NOX emissions have
occurred in Michigan, as well as in
upwind areas as a result of Federal
emission control measures, with
additional emission reductions expected
to occur in the future. Federal emission
control measures include: The NLEV
program, Tier 2 emission standards for
vehicles, gasoline sulfur limits, low
sulfur diesel fuel standards, and heavyduty diesel engine standards. In
compliance with EPA’s NOX SIP call,
Michigan developed rules to control
NOX emissions from Electric Generating
Units (EGUs), major non-EGU industrial
boilers, and major cement kilns. Illinois
and Indiana have also adopted and
implemented regulations to comply
with the NOX SIP call which have
resulted in a reduction in NOX
emissions. While Wisconsin was not
subject to the NOX SIP call, the state has
adopted NOX regulations to meet rate of
progress requirements. The emission
reductions from all of these programs
are permanent and enforceable.
Furthermore, MDEQ’s maintenance
plans show continued reductions in
ozone precursor emissions through
2018. EPA believes that the
maintenance plans meet the
requirements of sections 175A and
107(d)(3)(E). Future emissions
reductions can be expected both in
Michigan and in upwind areas from
programs including the NLEV program,
Tier 2 emission standards for vehicles,
gasoline sulfur limits, low sulfur diesel
fuel standards, heavy-duty diesel engine
standards, clean air non-road diesel rule
and CAIR.
(18) Comment: The string of 4
monitors going into and downwind of
the heart of the Grand Rapids metro area
depends on the Holland (Allegan
County) site being the lakeshore site.
There is no lakeshore monitor in Ottawa
County. If there were, it would clearly
indicate ozone values closer to the
levels monitored in the adjacent county
north (Muskegon) or the adjacent county
south (Allegan).
Response: It should be noted that the
ozone monitor in Muskegon County (the
Muskegon area) is monitoring
attainment of the ozone NAAQS; the
monitor located in Allegan County is
not. Michigan has not requested that the
Allegan County area be redesignated
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18:04 May 15, 2007
Jkt 211001
and this area is not addressed in this
rulemaking. EPA believes that the
monitoring network for the Grand
Rapids area satisfies the requirements of
40 CFR part 58, appendix D. The EPA
has approved the Grand Rapids
monitoring network as adequate and has
not required a lakeshore monitor in
Ottawa County. There is no basis on
which to speculate what such a monitor
would record if it were in place, and it
would be inappropriate for EPA to use
such speculation as a criterion for
redesignation. As discussed above,
section 107(d)(3)(E) of the CAA allows
for redesignation provided that, among
other things, the Administrator
determines that the area has attained the
applicable NAAQS. An area is
considered to be in attainment of the 8hour ozone standard if the 3-year
average of the fourth-highest daily
maximum 8-hour average ozone
concentrations measured at each
monitor within an area over each year
does not exceed 0.084 ppm. The Grand
Rapids area is monitoring attainment of
the 8-hour ozone NAAQS, based on that
criterion.
(19) Comment: EPA had previously
approved Michigan’s ozone monitoring
plans with the understanding that the
Grand Rapids metro area would be
designated as a single area including all
4 counties (Allegan, Kent, Ottawa and
Muskegon counties). All the counties
contain urbanized areas and their
metropolitan connections are clear in
the driving/commuting and emissions
statistics. EPA understood this when
proposing the 8-hour designations based
on the full metropolitan area. EPA
utilized technical justifications for
splitting the area into separate pieces
that do not fit the criteria required in
EPA’s standing guidance. However, if
the EPA feels the need to split the areas,
then it should require a more protective
monitor location for a monitor in
Ottawa County. If classification is based
on either the Holland or Muskegon site,
then that test is met.
Response: There is nothing in the
record that supports the commentor’s
allegation. Michigan has been operating
an approved monitoring network over
the entire time period in question. EPA
believes that the monitoring network for
the Grand Rapids area satisfies the
requirements of 40 CFR part 58,
appendix D. EPA designated and
classified the four counties as three
separate areas (Grand Rapids,
Muskegon, and Allegan County) under
both the 1-hour ozone standard (56 FR
56778, November 6, 1991) and the 8hour ozone standard (69 FR 23910–
23911, April 30, 2004), based on the
ozone monitoring data for each
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27433
respective area. The 8-hour ozone
designations, including area boundaries
and the underlying monitoring data
used for such designations, are not at
issue in this rulemaking. Comments
regarding the appropriateness of the 8hour ozone designations would have
more appropriately been submitted
during the designation process. They are
not relevant to a rulemaking on the
redesignation of the area.
Grand Rapids has an approved
adequate monitoring network, and the
monitors in Muskegon and Allegan are
not relevant to making an attainment
determination for Grand Rapids.
(20) Comment: The two-year average
of fourth high 8-hour averages for
Muskegon exceeds 0.085 ppm.
According to the maintenance plan for
Muskegon, MDEQ has six months from
the close of the ozone season to review
the circumstances leading to the high
monitored values. This review should
be completed by April 1, 2007. Will the
review be completed by this date? What
has MDEQ concluded?
Response: Neither the CAA nor EPA
policy memoranda contain the
requirement that a state begin to
implement a maintenance plan that has
not yet been approved into the SIP,
much less establish its implementation
as a criterion for redesignation. The
State will be required to implement its
maintenance plans when they are
approved as revisions to the SIP.
III. What Are Our Final Actions?
EPA is taking several related actions.
EPA is making determinations that the
Flint, Grand Rapids, Kalamazoo-Battle
Creek, Lansing-East Lansing, Muskegon,
Benton Harbor, Benzie County, Cass
County, Huron County, and Mason
County areas have attained the 8-hour
ozone NAAQS. EPA is also approving
the State’s requests to change the legal
designations of the Flint, Grand Rapids,
Kalamazoo-Battle Creek, Lansing-East
Lansing, Muskegon, Benzie County,
Cass County, Huron County, and Mason
County areas from nonattainment to
attainment for the 8-hour ozone
NAAQS. EPA is also approving as SIP
revisions Michigan’s maintenance plans
for the areas (such approval being one
of the CAA criteria for redesignation to
attainment status). Additionally, EPA is
finding adequate and approving for
transportation conformity purposes the
2018 MVEBs for the Flint, Grand
Rapids, Kalamazoo-Battle Creek,
Lansing-East Lansing, Muskegon, Benzie
County, Cass County, Huron County,
and Mason County areas. With respect
to EPA’s approval of the redesignation
of each area and approval of its
associated maintenance plan and
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MVEB’s, EPA construes such actions as
separate and independent from EPA’s
actions concerning the other areas
subject to this rulemaking. Thus any
challenge to EPA’s action with respect
to an individual area shall not affect
EPA’s actions with respect to the other
areas named in this notice.
EPA finds that there is good cause for
these actions to become effective
immediately upon publication 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 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 these 8-hour
ozone nonattainment areas. For these
reasons, EPA finds good cause under 5
U.S.C. 553(d)(3) for these actions to
become effective on the date of
publication of these actions.
IV. Statutory and Executive Order
Review
Executive Order 12866: Regulatory
Planning and Review
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this action is
not a ‘‘significant regulatory action’’ and
therefore is not subject to review by the
Office of Management and Budget.
jlentini on PROD1PC65 with RULES
Executive Order 12898: Environmental
Justice
Executive Order 12898 establishes a
Federal policy for incorporating
environmental justice into Federal
agency actions by directing agencies to
identify and address, as appropriate,
disproportionately high and adverse
human health or environmental effects
of their programs, policies, and
activities on minority and low-income
populations. Today’s actions do not
result in the relaxation of control
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18:04 May 15, 2007
Jkt 211001
measures on existing sources and
therefore will not cause emissions
increases from those sources. Overall,
emissions in the areas are projected to
decline following redesignation. Thus,
today’s actions will not have
disproportionately high or adverse
effects on any communities in the area,
including minority and low-income
communities
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).
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 Clean
Air Act 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 preexisting 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 (2 U.S.C. 1505).
Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175 (65 FR 67249,
November 9, 2000) requires EPA to
develop an accountable process to
ensure ‘‘meaningful and timely input by
tribal officials in the development of
regulatory policies that have tribal
implications.’’ EPA has consulted with
interested tribes in Michigan to discuss
the redesignation process and the
impact of a change in designation status
of these areas on the tribes. Accordingly,
EPA has complied with Executive Order
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13175 to the extent that it applies to the
action.
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 Clean
Air Act.
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 approves a
state rule implementing a Federal
Standard.
National Technology Transfer
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (NTTA), 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 Clean Air Act. 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.
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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.).
Congressional Review Act
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).
Under Section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by July 16, 2007.
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 81
Environmental protection, Air
pollution control, National parks,
Wilderness areas.
Dated: May 8, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.
Parts 52 and 81, chapter I, title 40 of
the Code of Federal Regulations is
amended as follows:
I
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
I
Authority: 42 U.S.C. 7401 et seq.
Subpart X—Michigan
2. Section 52.1170(e) is amended by
adding entries to the table to read as
follows:
I
40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone,
Particulate matter, Volatile organic
compounds.
§ 52.1170
*
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED MICHIGAN NONREGULATORY AND QUASI-REGULATORY PROVISIONS
Name of nonregulatory
SIP provision
*
8-hour ozone maintenance plan.
8-hour ozone maintenance plan.
State submittal date
*
*
*
Grand Rapids (Kent and Ottawa Counties), Kalamazoo-Battle Creek (Calhoun, Kalamazoo, and
Van Buren Counties), Lansing-East Lansing
(Clinton, Eaton, and Ingham Counties), Benzie
County, Huron County, and Mason County.
Flint (Genesee and Lapeer Counties), Muskegon
(Muskegon County), Benton Harbor (Berrien
County), and Cass County.
*
5/9/06, 5/26/06, and 8/25/06
3. Section 52.1174 is amended by
adding paragraphs (x) and (y) to read as
follows:
I
§ 52.1174
Control strategy: Ozone.
jlentini on PROD1PC65 with RULES
*
*
*
*
*
(x) Approval—On May 9, 2006,
Michigan submitted requests to
redesignate the Grand Rapids (Kent and
Ottawa Counties), Kalamazoo-Battle
Creek (Calhoun, Kalamazoo, and Van
Buren Counties), Lansing-East Lansing
(Clinton, Eaton, and Ingham Counties),
Benzie County, Huron County, and
Mason County areas to attainment of the
8-hour ozone National Ambient Air
Quality Standard (NAAQS). The State
supplemented its redesignation requests
on May 26, 2006, and August 25, 2006.
As part of its redesignation requests, the
State submitted maintenance plans 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
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date
Applicable geographic or nonattainment area
18:04 May 15, 2007
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6/13/06, 8/25/06, and 11/30/
06
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 includes: Lower
Reid vapor pressure gasoline
requirements; reduced volatile organic
compound (VOC) content in
architectural, industrial, and
maintenance coatings rule; auto body
refinisher self-certification audit
program; reduced VOC degreasing rule;
transit improvements; diesel retrofit
program; reduced VOC content in
commercial and consumer products
rule; and a program to reduce idling.
Also included in the Michigan’s
submittal were motor vehicle emission
budgets (MVEBs) for use to determine
transportation conformity in the areas.
For the Grand Rapids area, the 2018
MVEBs are 40.70 tpd for VOC and 97.87
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*
Comments
*
5/16/2007
5/16/2007
tpd for oxides of nitrogen (NOX). For the
Kalamazoo-Battle Creek area, the 2018
MVEBs are 29.67 tpd for VOC and 54.36
tpd for NOX. For the Lansing-East
Lansing area, the 2018 MVEBs are 28.32
tpd for VOC and 53.07 tpd for NOX. For
the Benzie County area, the 2018
MVEBs are 2.24 tpd for VOC and 1.99
tpd for NOX. For the Huron County area,
the 2018 MVEBs are 2.34 tpd for VOC
and 7.53 tpd for NOX. For the Mason
County area, the 2018 MVEBs are 1.81
tpd for VOC and 2.99 tpd for NOX.
(y) Approval—On June 13, 2006,
Michigan submitted requests to
redesignate the Flint (Genesee and
Lapeer Counties), Muskegon (Muskegon
County), Benton Harbor (Berrien
County), and Cass County areas to
attainment of the 8-hour ozone National
Ambient Air Quality Standard
(NAAQS). The State supplemented its
redesignation requests on August 25,
2006, and November 30, 2006. As part
of its redesignation requests, the State
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submitted maintenance plans 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 includes: Lower
Reid vapor pressure gasoline
requirements; reduced volatile organic
compound (VOC) content in
architectural, industrial, and
maintenance coatings rule; auto body
refinisher self-certification audit
program; reduced VOC degreasing rule;
transit improvements; diesel retrofit
program; reduced VOC content in
commercial and consumer products
rule; and a program to reduce idling.
Also included in the Michigan’s
submittal were motor vehicle emission
budgets (MVEBs) for use to determine
transportation conformity in the areas.
For the Flint area, the 2018 MVEBs are
25.68 tpd for VOC and 37.99 tpd for
oxides of nitrogen (NOX). For the
Muskegon area, the 2018 MVEBs are
6.67 tpd for VOC and 11.00 tpd for NOX.
For the Benton Harbor area, the 2018
MVEBs are 9.16 tpd for VOC and 15.19
tpd for NOX. For the Cass County area,
the 2018 MVEBs are 2.76 tpd for VOC
and 3.40 tpd for NOX.
Authority: 42 U.S.C. 7401 et seq.
2. Section 81.323 is amended by
revising the entries for Benton Harbor,
MI: Berrien County; Benzie Co., MI:
Benzie County; Cass County, MI:, Cass
County; Flint, MI: Genesee and Lapeer
Counties; Grand Rapids, MI: Kent and
Ottawa Counties; Huron Co., MI: Huron
County; Kalamazoo-Battle Creek, MI:
Calhoun, Kalamazoo, and Van Buren
Counties; Lansing-East Lansing, MI:
Clinton Eaton, and Ingham Counties;
Mason Co., MI, Mason County;
Muskegon, MI: Muskegon County in the
table entitled ‘‘Michigan—Ozone (8Hour Standard)’’ to read as follows:
I
PART 81—[AMENDED]
§ 81.323
1. The authority citation for part 81
continues to read as follows:
*
I
*
Michigan.
*
*
*
MICHIGAN—OZONE (8-HOUR STANDARD)
Designation a
Classification
Designated area
Date 1
*
*
*
Benton Harbor, MI:
Berrien County ...................................................................
Benzie County, MI:
Benzie County ....................................................................
*
*
*
Cass County, MI:
Cass County .......................................................................
*
*
*
Flint, MI:
Genesee County ................................................................
Lapeer County.
Grand Rapids, MI:
Kent County ........................................................................
Ottawa County.
*
*
*
Huron County, MI:
Huron County .....................................................................
*
*
*
Kalamazoo-Battle Creek, MI:
Calhoun County ..................................................................
Kalamazoo County.
Van Buren County.
Lansing-East Lansing, MI:
Clinton County ....................................................................
Eaton County.
Ingham County.
Mason County, MI:
Mason County ....................................................................
jlentini on PROD1PC65 with RULES
*
*
*
Muskegon, MI:
Muskegon County ..............................................................
*
*
*
Date 1
Type
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
Attainment.
5/16/2007
*
*
5/16/2007
*
Attainment.
*
5/16/2007
Attainment.
*
5/16/2007
Attainment.
5/16/2007
Attainment.
*
5/16/2007
Attainment.
*
5/16/2007
Attainment.
5/16/2007
Attainment.
5/16/2007
Attainment.
*
5/16/2007
Attainment.
*
a Includes
Indian Country located in each county or area, except as otherwise specified.
1 This date is June 15, 2004, unless otherwise noted.
VerDate Aug<31>2005
18:04 May 15, 2007
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Federal Register / Vol. 72, No. 94 / Wednesday, May 16, 2007 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
number is 202–566–1742. The Public
Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone
number for the Public Reading Room is
(202) 566–1744.
40 CFR Parts 60, 61, and 63
FOR FURTHER INFORMATION CONTACT:
[FR Doc. E7–9289 Filed 5–15–07; 8:45 am]
BILLING CODE 6560–50–P
[EPA–HQ–OAR–2006–0085; FRL–8315–2]
RIN 2060–AN84
Revisions to Standards of
Performance for New Stationary
Sources, National Emission Standards
for Hazardous Air Pollutants, and
National Emission Standards for
Hazardous Air Pollutants for Source
Categories
Environmental Protection
Agency (EPA).
ACTION: Final rule.
jlentini on PROD1PC65 with RULES
AGENCY:
18:04 May 15, 2007
Jkt 211001
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
SUMMARY: This action promulgates
revisions to the General Provisions for
Standards of Performance for New
Stationary Sources, for National
Emission Standards for Hazardous Air
Pollutants, and for National Emission
Standards for Hazardous Air Pollutants
for Source Categories to allow for
extensions to the deadline imposed for
source owners and operators to conduct
an initial or subsequent performance
test required by applicable regulations.
The General Provisions do not currently
provide for extensions of the deadlines
for conducting performance tests.
DATES: This final rule is effective on
May 16, 2007.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2006–0085. All
documents in the docket are listed on
the www.regulations.gov Web site.
Although listed in the index, some
information is not publicly available,
e.g., 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 through
www.regulations.gov or in hard copy at
the Revisions to Standards of
Performance for New Stationary
Sources, National Emission Standards
for Hazardous Air Pollutants, and
National Emission Standards for
Hazardous Air Pollutants for Source
Categories Docket, EPA/DC, EPA West,
Room 3334, 1301 Constitution Ave.,
NW., Washington, DC. This Docket
Facility is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding
legal holidays. The Docket telephone
VerDate Aug<31>2005
Ms.
Lula Melton, Air Quality Assessment
Division, Office of Air Quality Planning
and Standards, (C304–02),
Environmental Protection Agency,
Research Triangle Park, North Carolina
27711; telephone number: (919) 541–
2910; fax number: (919) 541–4511; email address: melton.lula@epa.gov.
This action applies to any source
whose owner or operator is required to
conduct performance testing to
demonstrate compliance with
applicable standards under the General
Provisions for Standards of Performance
for New Stationary Sources, for National
Emission Standards for Hazardous Air
Pollutants, and for National Emission
Standards for Hazardous Air Pollutants
for Source Categories.
B. Where can I get a copy of this
document and other related
information?
In addition to being available in the
docket, an electronic copy of this final
action will also be available on the
Worldwide Web (WWW) through the
Technology Transfer Network (TTN).
Following the Administrator’s signature,
a copy of the final amendments will be
placed on the TTN’s policy and
guidance page for newly proposed or
promulgated rules at https://
www.epa.gov/ttn/oarpg. The TTN
provides information and technology
exchange in various areas of air
pollution control.
C. Public Comments on Proposed Rule
The EPA received 15 sets of public
comments on the proposed amendments
to the General Provisions for Standards
of Performance for New Stationary
Sources, for National Emission
Standards for Hazardous Air Pollutants,
and for National Emission Standards for
Hazardous Air Pollutants for Source
Categories during the 90-day comment
period. These comments were submitted
to the rulemaking docket. The EPA has
carefully considered these comments in
developing the final amendments.
Summaries of the comments and EPA’s
responses are contained in this
preamble.
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
27437
D. Judicial Review
Under section 307(b)(1) of the Clean
Air Act (CAA), judicial review of this
final rule is available by filing a petition
for review in the United States Court of
Appeals for the District of Columbia
Circuit by July 16, 2007. Only those
objections to this final rule that were
raised with reasonable specificity
during the period for public comment
may be raised during judicial review.
Under section 307(b)(2) of the CAA, the
requirements that are the subject of this
final rule may not be challenged later in
civil or criminal proceedings brought by
EPA to enforce these requirements.
Section 307(d)(7)(B) of the CAA
further provides a mechanism for us to
convene a proceeding for
reconsideration, ‘‘[i]f the person raising
an objection can demonstrate to the EPA
that it was impracticable to raise such
objection within [the period for public
comment] or if the grounds for such
objection arose after the period for
public comment (but within the time
specified for judicial review) and if such
objection is of central relevance to the
outcome of the rule.’’ Any person
seeking to make such a demonstration to
us should submit a Petition for
Reconsideration to the Office of the
Administrator, U.S. EPA, Room 3000,
Ariel Rios Building, 1200 Pennsylvania
Ave., NW., Washington, DC 20460, with
a copy to both the person(s) listed in the
preceding FOR FURTHER INFORMATION
CONTACT section, and the Associate
General Counsel for the Air and
Radiation Law Office, Office of General
Counsel (Mail Code 2344A), U.S. EPA,
1200 Pennsylvania Ave., NW.,
Washington, DC 20460.
E. How is this document organized?
The information presented in this
preamble is organized as follows:
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document
and other related information?
C. Public Comments on Proposed Rule
D. Judicial Review
E. How is this document organized?
II. Summary of Final Action and Rationale
A. What are the requirements?
B. Why did we amend the requirements for
performance tests in the General
Provisions?
III. Responses to Comments
A. Clarification of Approving Authority
B. Force Majeure Concept
C. Notifications
D. Approvals
E. Title V Deviations
F. Other Comments
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review
B. Paperwork Reduction Act
E:\FR\FM\16MYR1.SGM
16MYR1
]]>Agencies
[Federal Register Volume 72, Number 94 (Wednesday, May 16, 2007)]
[Rules and Regulations]
[Pages 27425-27437]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-9289]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2006-0517, EPA-R05-OAR-2006-0563; FRL-8314-4]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Michigan; Redesignation of
Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing,
Muskegon, Benton Harbor, Benzie County, Cass County, Huron County, and
Mason County 8-Hour Ozone Nonattainment Areas to Attainment for Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is making determinations under the Clean Air Act (CAA)
that the nonattainment areas of Flint (Genesee and Lapeer Counties),
Grand Rapids (Kent and Ottawa Counties), Kalamazoo-Battle Creek
(Calhoun, Kalamazoo, and Van Buren Counties), Lansing-East Lansing
(Clinton, Eaton, and Ingham Counties), Muskegon (Muskegon County),
Benton Harbor (Berrien County), Benzie County, Cass County, Huron
County, and Mason County have attained the 8-hour ozone National
Ambient Air Quality Standard (NAAQS). For the Grand Rapids, Kalamazoo-
Battle Creek, Lansing-East Lansing, Benzie County, Huron County, and
Mason County areas, these determinations are based on two overlapping
three-year periods of complete, quality-assured ambient air quality
monitoring data for the 2002-2004 seasons and the 2003-2005 seasons
that demonstrate that the 8-hour ozone NAAQS has been attained in the
areas. Quality assured monitoring data for 2006 show that the areas
continue to attain the standard. For the Flint, Muskegon, Benton
Harbor, and Cass County areas, these determinations are based on three
years of complete quality-assured ambient air quality monitoring data
for the 2004-2006 seasons that demonstrate that the 8-hour
[[Page 27426]]
ozone NAAQS has been attained in the areas. In addition, quality-
assured data for 2003-2005 also demonstrate that the 8-hour NAAQS was
attained during this period.
EPA is approving requests from the State of Michigan to redesignate
the Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing,
Muskegon, Benton Harbor, Benzie County, Cass County, Huron County, and
Mason County areas to attainment of the 8-hour ozone NAAQS. The
Michigan Department of Environmental Quality (MDEQ) submitted these
requests on May 9, 2006 and June 13, 2006, and supplemented them on May
26, 2006, August 25, 2006, and November 30, 2006. In approving these
requests, EPA is also approving, as revisions to the Michigan State
Implementation Plan (SIP), the State's plans for maintaining the 8-hour
ozone NAAQS through 2018 in these areas. EPA is also finding adequate
and approving, for purposes of transportation conformity, the State's
2018 Motor Vehicle Emission Budgets (MVEBs) for the Flint, Grand
Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benton
Harbor, Benzie County, Cass County, Huron County, and Mason County
areas.
DATES: This final rule is effective on May 16, 2007.
ADDRESSES: EPA has established a docket for this action as it relates
to the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing,
Benzie County, Huron County, and Mason County areas under Docket ID No.
EPA-R05-OAR-2006-0517 and a docket for this action as it relates to the
Flint, Muskegon, Benton Harbor, and Cass County areas under Docket ID
No. EPA-R05-OAR-2006-0563. All documents in the docket are listed on
the 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. Publicly available docket materials are available either
electronically in www.regulations.gov or in hard copy at the
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),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886-1767, dagostino.kathleen@epa.gov.
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 Actions?
III. What Are Our Final Actions?
IV. Statutory and Executive Order Review
I. What Is the Background for This Rule?
Ground-level ozone is not emitted directly by sources. Rather,
emissions of nitrogen oxides (NOX) and volatile organic
compounds (VOCs) react in the presence of sunlight to form ground-level
ozone. NOX and VOCs are referred to as precursors of ozone.
The CAA establishes a process for air quality management through
the NAAQS. Before promulgation of the current 8-hour standard, the
ozone NAAQS was based on a 1-hour standard. At the time EPA revoked the
1-hour ozone NAAQS, on June 15, 2005, the Flint, Grand Rapids,
Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon, Benton Harbor,
Benzie County, Cass County, Huron County, and Mason County areas were
all designated as attainment under the 1-hour ozone NAAQS.
On July 18, 1997, EPA promulgated a revised 8-hour ozone standard
of 0.08 parts per million (ppm). This new standard is more stringent
than the previous 1-hour standard. On April 30, 2004 (69 FR 23857), EPA
published a final rule designating and classifying areas under the 8-
hour ozone NAAQS. These designations and classifications became
effective June 15, 2004. The CAA required EPA to designate as
nonattainment any area that was violating the 8-hour ozone NAAQS based
on the three most recent years of air quality data, 2001-2003.
The CAA contains two sets of provisions, subpart 1 and subpart 2,
that address planning and control requirements for nonattainment areas.
(Both are found in title I, part D, 42 U.S.C. 7501-7509a and 7511-
7511f, respectively.) Subpart 1 (which EPA refers to as ``basic''
nonattainment) contains general requirements for nonattainment areas
for any pollutant, including ozone, governed by a NAAQS. Subpart 2
(which EPA refers to as ``classified'' nonattainment) provides more
specific requirements for ozone nonattainment areas. Under EPA's Phase
1 8-hour ozone implementation rule, (69 FR 23951 (April 30, 2004)), an
area was classified under subpart 2 based on its 8-hour ozone design
value (i.e., the 3-year average annual fourth-highest daily maximum 8-
hour average ozone concentration), if it had a 1-hour design value at
the time of designation at or above 0.121 ppm (the lowest 1-hour design
value in Table 1 of subpart 2) (69 FR 23954). All other areas were
covered under subpart 1, based upon their 8-hour design values (69 FR
23958). The Muskegon and Cass County areas were designated as subpart
2, 1-hour ozone moderate \1\ nonattainment areas by EPA on April 30,
2004, (69 FR 23857, 23911), based on air quality monitoring data from
2001-2003. The Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-
East Lansing, Benton Harbor, Benzie County, Huron County, and Mason
County areas were all designated as subpart 1, 8-hour ozone
nonattainment areas by EPA on April 30, 2004, (69 FR 23857, 23910-
23911) based on 2001-2003 air quality monitoring data.
---------------------------------------------------------------------------
\1\ Under subpart 2 of the CAA, areas are further classified as
marginal, moderate, serious, severe or extreme based on the design
value for the area.
---------------------------------------------------------------------------
Under section 181(a)(4) of the CAA, EPA may adjust the
classification of an ozone nonattainment area to the next higher or
lower classification if the design value for the area is within five
percent of the cut-off for that higher or lower classification. On
September 22, 2004, EPA adjusted the classification of several
nonattainment areas which had been designated and classified under
subpart 2 on April 30, 2004. At that time, EPA adjusted the
classifications of the Muskegon and Cass County nonattainment areas
from moderate to marginal (69 FR 56697, 56708-56709). It should be
noted that the United States Court of Appeals for the District of
Columbia Circuit has recently vacated EPA's April 30, 2004 ``Final Rule
to Implement the 8-Hour Ozone National Ambient Standard'' (the Phase 1
implementation rule). South Coast Air Quality Management District v.
EPA, No. 04-1200., 472 F.3d 882 (DC Cir. 2007). EPA issued a
supplemental proposed rulemaking that set forth its views on the
potential effect of the Court's ruling on these and other proposed
redesignation actions. 72 FR 13452 (March 22, 2007) See discussion
below.
[[Page 27427]]
40 CFR Section 50.10 and 40 CFR Part 50, Appendix I provide that
the 8-hour ozone standard is attained when the 3-year average of the
annual fourth-highest daily maximum 8-hour average ozone concentration
is less than or equal to 0.08 ppm, when rounded. 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. See 40 CFR Part 50, Appendix I, 2.3(d).
On May 9, 2006, Michigan requested that EPA redesignate the Grand
Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Benzie County,
Huron County, and Mason County areas to attainment for the 8-hour ozone
standard. The State supplemented its redesignation requests on May 26,
2006 and August 25, 2006. The redesignation requests included three
years of complete, quality-assured data for the period of 2002 through
2004, as well as complete quality assured data for 2005, indicating the
8-hour NAAQS for ozone had been attained for all of the areas covered
by the request. Subsequently EPA reviewed the quality assured
monitoring data for 2004-2006. These data show that these areas
continued to attain the standard for 2004-2006. See Table 1 below.
Table 1.--Annual 4th High Daily Maximum 8-Hour Ozone Concentration and 3-Year Averages of 4th High Daily Maximum 8-Hour Ozone Concentrations
--------------------------------------------------------------------------------------------------------------------------------------------------------
2004 4th high 2005 4th high 2006 4th high 2004-2006
Area County Monitor (ppm) (ppm) (ppm) average (ppm)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Grand Rapids......................... Kent.................... Grand Rapids 26-0810020 0.068 0.083 0.082 0.077
Evans 26-0810022....... 0.072 0.083 0.081 0.078
Ottawa.................. Jenison 26-1390005..... 0.069 0.086 0.083 0.079
Kalamazoo-Battle Creek............... Kalamazoo............... Kalamazoo 26-0770008... 0.068 0.081 0.068 0.072
Lansing-East Lansing................. Clinton................. Rose Lake 26-0370001... 0.070 0.078 0.071 0.073
Ingham.................. Lansing-East Lansing 26- 0.068 0.082 0.071 0.073
0650012.
Benzie............................... Benzie.................. Frankfort 26-0190003... 0.075 0.086 0.080 0.080
Huron................................ Huron................... Harbor Beach 26-0633006 0.068 0.077 0.073 0.072
Mason................................ Mason................... Scottville 26-1050007.. 0.071 0.085 0.076 0.077
--------------------------------------------------------------------------------------------------------------------------------------------------------
On June 13, 2006, Michigan requested that EPA redesignate the
Flint, Muskegon, Benton Harbor, and Cass County areas to attainment for
the 8-hour ozone standard. The State supplemented its requests on
August 25, 2006 and November 30, 2006. The redesignation requests
included three years of complete, quality-assured data for 2004-2006,
indicating the 8-hour NAAQS for ozone had been attained for all of the
areas covered by the request. Data submitted by the State also showed
attainment in 2003-2005. Under the CAA, nonattainment areas may be
redesignated to attainment if sufficient complete, quality-assured data
are available for the Administrator to determine that the area has
attained the standard, and the area meets the other CAA redesignation
requirements in section 107(d)(3)(E).
On December 7, 2006 (71 FR 70915), EPA proposed to make
determinations that the Grand Rapids, Kalamazoo-Battle Creek, Lansing-
East Lansing, Benzie County, Huron County, and Mason County areas have
attained the 8-hour ozone NAAQS, and to approve the redesignations of
the areas from nonattainment to attainment for the 8-hour ozone NAAQS.
EPA also proposed to approve maintenance plan SIP revisions for the
Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Benzie
County, Huron County, and Mason County areas. Additionally, EPA found
adequate and proposed to approve the 2018 Motor Vehicle Emissions
Budgets (MVEBs) submitted by Michigan for these areas in conjunction
with the redesignation requests.
On January 8, 2007 (72 FR 699), EPA proposed to make determinations
that the Flint, Muskegon, Benton Harbor, and Cass County areas have
attained the 8-hour ozone NAAQS, and to approve the redesignations of
the areas from nonattainment to attainment for the 8-hour ozone NAAQS.
EPA also proposed to approve the maintenance plan SIP revisions for the
Flint, Muskegon, Benton Harbor, and Cass County areas. Additionally,
EPA found adequate and proposed to approve the 2018 MVEBs submitted by
Michigan for these areas in conjunction with the redesignation
requests. The rationale for EPA's proposed actions is explained in the
notices of proposed rulemaking and will not be restated here.
In addition, as noted above, EPA issued a supplemental proposed
rulemaking setting forth EPA's views on the potential impact of the
Court's ruling in South Coast Air Quality Management District v EPA.
EPA provided a 15-day review and comment period on this supplemental
proposed rulemaking. The public comment period closed on April 6, 2007.
EPA received six comments, all supporting EPA's supplemental proposed
rulemaking, and supporting redesignation of the affected areas. EPA
recognizes the support provided in these comments but does not believe
any specific response to comments is necessary with respect to these
comments. In addition, several of these comments included additional
rationale for proceeding with these proposed designations. EPA had not
requested comment on any additional rationale, does not believe any
additional rationale is necessary, and similarly does not believe any
specific response to these comments is necessary, and thus has not
provided any.
II. What Comments Did We Receive on the Proposed Actions?
EPA provided a 30-day review and comment period on the proposed
rules. The public comment periods closed on January 1, 2007 and
February 7, 2007. EPA received a letter from the Crystal Lake Watershed
Association in favor of the redesignation of Benzie County. EPA
received adverse comments from the Little River Band of Ottawa Indians
and from three citizens. Unless an area was specifically identified by
the commentor, EPA assumed that the
[[Page 27428]]
comment applied to all areas. A summary of the adverse comments
received, and EPA's responses, follows.
(1) Comment: Redesignation of Mason, Benzie and Muskegon Counties
at this time would be premature because the data are misleading.
Although the three-year averages for both Mason and Benzie Counties
during the period of 2002-2004, 2003-2005 and 2004-2006 were less than
0.085 parts per million (ppm), which puts both counties into attainment
for the 8-hour ozone NAAQS, 2004 was a statistical outlier. This
argument could be extended to other counties affected by EPA's
proposals.
Response: The CAA provides the requirements for redesignating a
nonattainment area to attainment. Specifically, section 107(d)(3)(E)
allows for redesignation provided that, among other things, the
Administrator determines that the area has attained the applicable
NAAQS. A determination that an area has attained the standard is based
on an objective review of air quality data. There are no provisions in
the CAA or in EPA redesignation policy for using monitoring data trends
or statistical analyses as criteria for determining attainment in
evaluating a redesignation request.
EPA promulgated the current 8-hour ozone standard on July 18, 1997
(62 FR 38856). As discussed in detail in the proposed rule, an area is
considered to be in attainment of the 8-hour ozone standard if the 3-
year average of the fourth-highest daily maximum 8-hour average ozone
concentrations measured at each monitor within an area over each year
does not exceed 0.084 ppm. Three years of air quality data are used to
allow for year-to-year variations in meteorology. The three year
averaging period provides a reasoned balance between evening out
meteorological effects and properly addressing real changes in emission
levels. See 66 FR 53094, 53100 (October 19, 2000) (redesignation of
Pittsburgh) and 69 FR 21717, 21719-21720 (April 22, 2004)
(determination of attainment for the Bay Area). In the case of Mason
and Benzie Counties, both areas have attained the standard for three
three-year periods, which is also the case for the Grand Rapids,
Kalamazoo-Battle Creek, Lansing-East Lansing and Huron County areas.
The Muskegon area has attained the standard for two three-year periods,
which is also the case for the Flint, Benton Harbor and Cass County
areas. In all cases, these areas have demonstrated attainment for
longer than is required. As the commentor acknowledges, the areas are
monitoring attainment of the 8-hour standard. EPA has no basis for
using other criteria to determine if an area is attaining the 8-hour
ozone NAAQS.
It should be noted that, to put recent western Michigan
meteorological monitoring data into perspective, EPA obtained
historical temperature data recorded at the Muskegon County Airport
from the National Oceanic and Atmospheric Administration's (NOAA)
National Climate Data Center. Review of average high temperatures and
number of days with temperatures greater than or equal to 90[deg]F
recorded over the ozone season for the past 50 years indicates that the
year-to-year variations recorded from 2003-2006, are typical of
historical values. Average high temperatures are above the 50 year
average for 2003, 2005 and 2006 and slightly below the 50 year average
for 2004. Taken together, average high temperatures for the 2003-2005
and 2004-2006 time periods are above the 50 year average. Considering
the number of days with temperatures of 90[deg]F or greater, values for
the 2003-2005 and 2004-2006 time periods are above the 50 year average.
This information does not support the commentor's contention that
abnormal meteorology was responsible for improvements in air quality.
In addition, as discussed at length in the proposals, the areas
have met the separate redesignation requirement of demonstrating that
the improvement in air quality is due to permanent and enforceable
emissions reductions. This further refutes the contention that
favorable meteorology accounts for attainment.
(2) Comment: EPA should look with more scrutiny at the 4th highest
8-hour averages for each year. Reviewing these values, it is difficult
to predict whether Benzie, Mason, and Muskegon Counties will be able to
maintain the ozone standard starting with the 2005-2007 data, since the
failing values for next year are close to what the values have been for
the past two years. Muskegon has a failing value lower than the 4th
highest 8-hour average for every year except 2004.
Response: As discussed above, neither the CAA nor EPA's
interpretation of CAA requirements in policy memoranda provide for
using monitoring data trends or statistical analyses as criteria for
determining attainment for evaluating a redesignation request. Section
107(d)(3)(E) of the CAA allows for redesignation provided that, among
other things, the Administrator determines that the area has attained
the applicable NAAQS. As described in detail in the proposed rules, the
Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon,
Benton Harbor, Flint, Benzie County, Cass County, Huron County, and
Mason County areas are all monitoring attainment of the 8-hour ozone
NAAQS.
In addition, consistent with the requirements of sections 175A and
107(d)(3)(E) of the CAA, Michigan has submitted maintenance plans for
the areas which show continued maintenance and continuing reductions in
NOX and VOC emissions through 2018, further decreasing peak
ozone levels and maintaining ozone attainment. It should also be noted
that reductions in emissions that have occurred and that will continue
to occur in upwind areas will contribute to maintenance of the NAAQS in
these areas. Some of these measures include the NOX SIP
call, stationary source NOX regulations, the National Low
Emission Vehicle (NLEV) program, Tier 2 emission standards for vehicles
(Tier 2), low sulfur diesel fuel standards and heavy-duty diesel engine
standards. Additionally, Illinois, Indiana, Wisconsin, and Michigan,
along with 25 other states and the District of Columbia, are subject to
the Clean Air Interstate Rule, which should result in reduced
NOX emissions and a reduction in transported ozone.
Furthermore, as demonstrated by the contingency measure provisions
required by section 175A(d), the CAA clearly anticipates and provides
for situations where an area might monitor a violation of the NAAQs
after having been redesignated to attainment. Michigan has included
contingency measure provisions consistent with CAA requirements in
their maintenance plans to address any possible future violation of the
NAAQS.
(3) Comment: The results from 2004 are abnormally low due solely to
the weather. While we agree that there is an overall downward trend, we
insist that the unfavorable weather for ozone formation led to
atypically low results in 2004. The results for that year are single
handedly dragging down the three year average and artificially bringing
the areas into attainment before they have reached a maintainable
situation. The commentor is particulary concerned with the Benzie
County, Mason County, and Muskegon areas.
Response: It should be noted that as discussed above, the year to
year temperature variations recorded from 2003-2006, are typical of
historical values and EPA does not believe that the 2004 data were
abnormally low. Moreover, as discussed in greater detail above, section
107(d)(3)(E)(i) of the CAA requires that the Administrator determine
that the area has attained the applicable NAAQS. A determination that
an area has attained the NAAQS is
[[Page 27429]]
based on an objective review of air quality data. An area is considered
to be in attainment of the 8-hour ozone standard if the 3-year average
of the fourth-highest daily maximum 8-hour average ozone concentrations
measured at each monitor within an area over each year does not exceed
0.084 ppm. Three years of air quality data are used to allow for year-
to-year variations in meteorology. The adequacy of the ozone standard
is not at issue in this rulemaking. Comments regarding the adequacy of
the ozone standard would have more appropriately been submitted in
response to the proposal of the 8-hour standard.
In addition, as discussed above, Michigan has submitted maintenance
plans which show continuing reductions in NOX and VOC
emissions through 2018, and include contingency measure provisions to
address any possible future violation of the NAAQS. Moreover, as
discussed in the proposals, 71 FR 70921 (December 7, 2006) and 72 FR
704-705 (January 8, 2007), Michigan has shown that the improvement in
air quality is due to permanent and enforceable emissions reductions,
and not to favorable meteorology. Emission reductions from within the
areas, as well as regional reductions from upwind areas, are
responsible for attainment. Reductions in VOC and NOX
emissions have occurred in Michigan, as well as in upwind areas, as a
result of Federal emission control measures, with additional emission
reductions expected to occur in the future. Federal emission control
measures include: The NLEV program, Tier 2 emission standards for
vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, and
heavy-duty diesel engine standards. In accordance with EPA's
NOX SIP call, Michigan developed rules to control
NOX emissions from electric generating units (EGUs), major
non-EGU industrial boilers, and major cement kilns. Between 2000 and
2004, this resulted in a 40,577 ton reduction in ozone season
NOX emissions. Illinois and Indiana have also adopted
regulations to comply with the NOX SIP call which have
resulted in a 155,831 ton reduction in ozone season NOX
emissions between 2000 and 2004. While Wisconsin was not subject to the
NOX SIP call, the state has adopted NOX
regulations to meet rate of progress requirements. The emission
reductions from all of these programs are permanent and enforceable.
(4) Comment: MDEQ's maintenance plans do not address the fact that
the Lake Michigan shoreline counties are overwhelmingly impacted by
ozone originating from sources across the lake in the Chicago-Gary-
Milwaukee area. Instead, MDEQ insists on controlling local sources when
the reason for the problem is solely rooted in pollution traveling on
prevailing winds across the lake. It is disingenuous for MDEQ to submit
a maintenance plan to EPA that does not address the need for
controlling these distant sources as they are the root cause.
Furthermore, it is equally as wrong for EPA to accept such a request
without reassurances from MDEQ in writing to pursue its options in
Section 126 of the CAA regardless of the consequences. EPA should deny
MDEQ's request unless they include Section 126 provisions in the
maintenance plan. If EPA chooses to accept this request without
commitments in writing from MDEQ to pursue its options under Section
126, then the onus is on EPA to pursue those actions. The commentor is
particularly concerned with the Benzie County, Mason County and
Muskegon areas.
Response: MDEQ has included in its maintenance plans, control
measures which the State has the authority to adopt and enforce. MDEQ
does not have the authority to adopt and enforce measures to control
sources located in Illinois, Indiana, or Wisconsin. It would be
inappropriate for the State to include in its maintenance plans
contingency measures that it could neither adopt nor enforce.
Section 110(a)(2)(D) of the CAA, which applies to all SIPs for each
pollutant covered by a NAAQS, and for all areas regardless of their
attainment designation, provides that a SIP must contain provisions
preventing its sources from contributing significantly to nonattainment
problems or interfering with maintenance in downwind States.
Section 126 of the CAA authorizes a downwind state to petition EPA
for a finding that any new or existing major stationary source or group
of stationary sources upwind of the state emits or would emit in
violation of the prohibition of section 110(a)(2)(D) because their
emissions contribute significantly to nonattainment, or interfere with
maintenance, of a NAAQS in the state. Michigan retains the authority,
under section 126 of the CAA, to petition EPA should this become
necessary in the future. It is unnecessary for Michigan to cite section
126 of the CAA in its maintenance plans to preserve this option. Upwind
areas will remain subject to the provisions of section 110(a)(2)(D) and
section 126 after the areas are redesignated to attainment, and
redesignation will not remove the protections of these provisions for
lakeshore counties.
Furthermore, Section 110(k)(5) authorizes EPA to find that a SIP is
substantially inadequate to meet any CAA requirement, as well as to
mitigate interstate transport of the type described in section 184
(concerning ozone transport in the northeast) or section 176A
(concerning interstate transport in general), and thereby require the
State to submit, within a specified period, a SIP revision to correct
the inadequacy. EPA exercised this authority in issuing the
NOX SIP call, and would do so again, as necessary, if it
finds that SIPs do not adequately address transport.
In fact, upwind areas, including Chicago-Gary-Lake County, IL-IN
and Milwaukee-Racine, WI, are continuing to implement measures to
reduce ozone precursors; including the NOX SIP call,
stationary source NOX regulations, NLEV, Tier 2, low sulfur
diesel fuel standards and heavy-duty diesel engine standards.
Additionally, Illinois, Indiana, Wisconsin, and Michigan, along with 25
other states and the District of Columbia, are subject to the Clean Air
Interstate Rule, which should result in reduced NOX
emissions and a reduction in transported ozone.
(5) Comment: One commenter disagreed with the assertion that
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, dated Nov. 6, 2000, (E.O. 13175) does not apply to the
Region's proposed approval of MDEQ's requests to redesignate certain
counties from ``non-attainment'' to ``attainment'' for ozone pursuant
to Section 107(d) of the Clean Air Act. The commenter states that EPA's
action has tribal implications under E.O. 13175.
Response: E.O. 13175 was signed on November 6, 2000, and sets forth
various provisions regarding consultation and coordination between
Federal agencies undertaking ``policies that have tribal implications''
and Indian tribal governments. Under E.O, 13175, the term ``policies
that have tribal implications'' refers to ``regulations, legislative
comments or proposed legislation, and other policy statements or
actions that have substantial direct effects 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.''
It is not necessary to address the scope of E.O. 13175 at this
time. Federal policy and EPA's 1984 Indian Policy encourage the Agency
to consult with Tribes prior to taking actions that affect Tribal
governments. Recognizing tribal
[[Page 27430]]
interest in this matter, the Region offered to consult with all
Michigan Tribes with respect to the redesignation requests. Five Tribes
accepted this offer, and consultation occurred by means of a conference
call on August 30, 2006 and a face-to-face meeting held at the
Nottawaseppi Huron Band of Potawatomi Indians tribal center on
September 26, 2006. Consequently, the purposes of the executive order
were satisfied in this case.
(6) Comment: Even though EPA was only required to consult with
tribes once, it is by no means prohibited from talking to them again.
At the very least there are two requests submitted by MDEQ (May 9, 2006
and June 13, 2006) which should translate to two consultation
processes. Furthermore, the effectiveness of the consultation process
has been significantly diminished since the current Regional
Administrator and Air Division Director were not in their current
positions or on leave when the meeting took place.
Response: We believe that the consultation process was constructive
and appreciate the considered comments provided by the Little River
Band of Ottawa Indians. However, at this time we believe that the
conference call and meeting constitute adequate consultation and do not
believe that value would be added through additional consultation on
this issue. Both the May 9, 2006, and June 13, 2006, redesignation
submittals were discussed in the conference call and at the meeting.
Furthermore, the comments do not raise any issues that were not
discussed during the consultation. With respect to EPA management
changes, we believe that this has no bearing on the effectiveness or
adequacy of the consultation process. Appropriate EPA representatives
participated in the consultation process and current management has
been comprehensively briefed.
(7) Comment: The CAA requires EPA to act within 18 months of the
submission of a redesignation request. Michigan submitted the requests
on May 9, 2006 and June 13, 2006. This means EPA does not have to
approve or deny the requests until November 9, 2007 and December 13,
2007, respectively. Thus, EPA could choose to wait and see what will
happen with these counties after the end of next ozone season. More
importantly though, EPA could see what the three-year average is
without the abnormally low 2004 data skewing the results. EPA should
hold off on redesignating these counties until after 2007's ozone
season is complete.
Response: As noted above in responses to comments, the year to year
temperature variations recorded from 2003-2006, are typical of
historical values and EPA does not believe that the 2004 data were
abnormally low. Moreover, as set forth above in response to comments,
three years of air quality data are used in determining attainment with
the standard to allow for year-to-year variations in meteorology. In
any event, delay of the redesignation is not necessary because the
Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Muskegon,
Benton Harbor, Flint, Benzie County, Cass County, Huron County, and
Mason County areas are all in attainment of the 8-hour ozone standard
and have otherwise met all applicable requirements for redesignation.
For the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing,
Benzie County, Huron County, and Mason County areas, attainment was
achieved at the end of the 2004 ozone monitoring season, when each of
the areas attained the ozone standard with quality assured 2002-2004
monitoring data. Since that time, MDEQ has collected and reported
quality assured monitoring data for 2005 and 2006, resulting in three
3-year periods of monitored attainment. For the Flint, Muskegon, Benton
Harbor, and Cass County areas, attainment was achieved at the end of
the 2005 ozone monitoring season, when each of the areas attained the
ozone standard with quality assured 2003-2005 monitoring data. Since
that time, MDEQ has collected and reported quality assured monitoring
data for 2006, resulting in two 3-year periods of monitored attainment.
Furthermore, as demonstrated in Michigan's maintenance plans, VOC and
NOX emissions will continue to decline through 2018, further
decreasing peak ozone levels and maintaining attainment of the ozone
standard. MDEQ has met all of the criteria for redesignation contained
in the CAA; therefore EPA has no basis for delaying approval of the
State's request.
(8) Comment: For the Mason County ozone monitor, MDEQ discounted
the 8-hour average value of 0.089 ppm, recorded on June 17, which was
the 3rd highest 8-hour average for 2006. This change caused the 4th
highest value to drop from 0.083 ppm to 0.076 ppm. The reason given for
discounting monitoring data recorded on June 17 at the Mason County
ozone monitor was that the shelter temperature exceeded acceptable
limits due to a faulty air conditioner. Obviously, such failures skew
samples results since the ozone is no doubt highest when high
temperatures also prevail. Certainly, days discounted that are among
the four highest are much more significant than those below it. Thus,
it seems there should be a mechanism for documenting discounted days
amongst the four highest for any monitor and the reason for discounting
the data.
Response: EPA has established specific quality assurance criteria
for the collection of ambient data. One of these criteria, stated in
Part 1, Section 7.1.2 of the EPA's ``Quality Assurance Handbook for Air
Pollution Measurement Systems,'' is that ozone analyzers must be
operated within a specific temperature range (20 [deg]C to 30 [deg]C).
This temperature range is set because the instruments have been tested
and qualified in this range of temperatures. Establishing a range of
operating temperature ensures that the instrument's reported
concentrations do not drift from actual concentration; therefore, when
the temperature exceeds this range, data are no longer considered to
have met the quality objectives and are considered missing for
regulatory data calculations.
In the EPA Air Quality Database (AQS), each hour has an ozone value
and can be flagged for a variety of quality assurance reasons,
including the shelter temperature being out of acceptable range. If the
hourly value is flagged, then that hour is not used in the computation
of the maximum 8-hour average. Every eight-hour average must have at
least 6 hours of valid hourly values, otherwise it is assigned the
value of missing. An ozone monitoring day is counted as a valid ozone
monitoring day if at least 18 of the 24 possible 8-hour average periods
are available, or the daily maximum 8-hour average concentration is
greater than 0.08 ppm. Invalid days count against the design value
completeness criteria; i.e., 75% per year and 90% over three years.
MDEQ appropriately flagged its hourly ozone concentrations in the
AQS database when the monitoring shelter temperature exceeded 30 [deg]
C and they correctly calculated the daily and annual statistics
according to the EPA's ``Guideline on Data Handling Conventions for the
8-hour Ozone NAAQS.'' Furthermore, regardless of whether 0.083 ppm or
0.076 ppm is used as the 4th highest 8-hour average for 2006, the area
is monitoring attainment of the 8-hour ozone NAAQS for the 2004-2006
period.
(9) Comment: June 17 was in the top four highest days at 20 out of
28 other Michigan sites for 2006. The Little River Band of Ottawa
Indians operates an ozone monitor in Manistee County, which is the
closest one to Mason
[[Page 27431]]
County's monitor. The tribal monitor has a 4th highest 8-hour average
of 0.083 ppm for 2006 as did Mason's before the removal of the June 17
reading. Could data from the tribal monitor be used to supplement
missing data at the Mason County monitor?
Response: As explained in EPA's ``Guideline on Data Handling
Conventions for the 8-hour Ozone NAAQS,'' in certain situations, credit
can be given toward meeting the 75% minimum data completeness
requirement for days with monitoring data that would have had low ozone
concentrations. However, as long as a site meets the 75% minimum data
completeness requirement in a given year, EPA does not require that
data substitution from nearby monitors occur for days that are missing
data. The Mason County monitoring site meets the 75% requirement in
2006, so there is no requirement to assess nearby monitors on days with
missing data. Also, as noted above, regardless of whether 0.083 ppm or
0.076 ppm is used as the 4th highest 8-hour average for 2006, the area
is monitoring attainment of the 8-hour ozone NAAQS for the 2004-2006
period.
(10) Comment: For the Grand Rapids, Kalamazoo-Battle Creek,
Lansing-East Lansing, Benzie County, Huron County, and Mason County
areas, Michigan used emissions data from 1999 and 2002 to show that the
improvement in air quality was due to permanent and enforceable
reductions in emissions. Why would the state choose a time period the
EPA used to designate the area nonattainment?
Response: In developing an attainment inventory, Michigan could
have chosen any of the years that the areas were monitoring attainment
of the standard. Michigan developed the redesignation request based on
ambient monitoring for the 2002-2004 time period showing that the areas
had attained the NAAQS. (The areas have continued to monitor attainment
for the 2003-2005 and 2004-2006 time periods.) It would have been
acceptable for MDEQ to choose any of the three years, 2002, 2003, or
2004, as the year for the attainment inventory. (Because the areas
continue to attain the NAAQS, 2005 or 2006 would also have been
acceptable attainment years.) Michigan had developed a detailed
emissions inventory for 2002 in support of regional modeling efforts,
and chose this year for its attainment inventory. As discussed in more
detail in the proposed rule (71 FR 70921), MDEQ demonstrated emissions
reductions from 1999 to 2002 and detailed permanent and enforceable
control measures over this time period that were responsible for the
reduction in emissions. If Michigan had chosen a later year for its
attainment inventory, it could have documented an even greater
reduction in emissions, as the state has documented increasing
emissions reductions from 2002 through 2018. Between 2002 and 2006,
these areas, as well as areas upwind, have experienced further
reductions in motor vehicle emissions due to the implementation of the
NLEV program, Tier 2 emission standards for vehicles, gasoline sulfur
limits, low sulfur diesel fuel standards, and heavy-duty diesel engine
standards. In addition, the NOX SIP call required large
reductions in NOX, beginning in 2004, for both Michigan and
upwind areas. The emission reductions from all of these programs are
permanent and enforceable.
(11) Comment: Air quality monitoring data for the Grand Rapids area
shows an upward trend from 1997 through 2003. Why did EPA analyze 2002
emissions data to show the area has put on controls, when monitoring
data indicates air quality problems?
Response: Considering monitoring data from 1999 through 2006, which
covers the time period that the Grand Rapids area is using to
demonstrate monitored attainment with the standard, there are year to
year variations, but overall ozone levels appear to be declining. The
fact that the area has continued to monitor attainment of the standard
for the three most recent three-year periods supports this view. As
noted above, in response to Comment 10, Michigan could have chosen for
its attainment inventory any of the years that the area was monitoring
attainment of the standard. The state chose 2002 as the attainment year
and documented permanent and enforceable control measures which were
responsible for the reduction in emissions over the 1999-2002 time
period. Table 5 set forth in the proposal (17 FR 70922, 70924) shows
that the Grand Rapids area reduced VOC emissions by 9,949 tpy (18%) and
NOX emissions by 20,276 tpy (28%). Had the state chosen a
later attainment year, an even greater reduction in emissions could
have been shown, as the state has documented increasing emissions
reductions from 2002 through 2018. In addition to the emissions
reductions documented in Table 5 of the proposal, subsequent emissions
reductions in later years were obtained from the NLEV program, Tier 2
emission standards for vehicles, gasoline sulfur limits, low sulfur
diesel fuel standards, heavy-duty diesel engine standards, and the
NOX SIP call. Upwind areas have also experienced emissions
reductions from these programs. See Response to Comment 10, above.
(12) Comment: Levels of ozone, particulate matter and other
pollutants remain unacceptably high. EPA should require Michigan to
move toward policies which improve air quality and pressure the
Chicago, Illinois and Gary, Indiana areas to reduce pollution, which is
transported to Michigan.
Response: Under section 109 of the CAA, EPA is charged with
promulgating NAAQS for criteria pollutants (including ozone and
particulate matter) at levels protective of public health and welfare.
EPA promulgated NAAQS for 8-hour ozone on July 18, 1997 (62 FR 38856).
The Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing,
Muskegon, Benton Harbor, Flint, Benzie County, Cass County, Huron
County, and Mason County areas have demonstrated attainment of the 8-
hour ozone standard. It should be noted that while this action does not
relate to particulate matter, all of these areas are designated as
attainment for particulate matter as well.
This rule is a redesignation action that is designed to determine
whether an area has met the requirements for redesignation to
attainment for 8-hour ozone. Considerations of how to address issues of
transport from upwind areas not related to the current redesignation
action are not relevant for purposes of this action. As discussed
elsewhere in responses to comments, Sections 126 and 110(a)(2)(D)
remain available as mechanisms to address transport problems regardless
of whether an area has been redesignated to attainment.
It should be noted, however, that considerable progress has been
made in reducing transported pollution. EPA has adopted and implemented
the NOX SIP call, which has significantly reduced
NOX emissions throughout the eastern half of the United
States. In Michigan, Illinois, and Indiana alone, the NOX
SIP call has been responsible for a reduction in ozone season
NOX emissions in excess of 196,400 tons between 2000 and
2004. Other Federal measures including the NLEV program, Tier 2
emission standards for vehicles, gasoline sulfur limits, low sulfur
diesel fuel standards, and heavy-duty diesel engine standards continue
to be implemented and should result in reductions in upwind emissions.
In addition, EPA finalized the Clean Air Interstate Rule (CAIR) on May
12, 2005. CAIR is designed to achieve large reductions of sulfur
dioxide (SO2) and/or NOX emissions across 28
eastern states and the District of Columbia and specifically addresses
the transported
[[Page 27432]]
pollution from upwind states that affects downwind air quality
problems. (Illinois, Indiana, Wisconsin and Michigan are all subject to
CAIR.) SO2 and NOX contribute to the formation of
fine particles and NOX contributes to the formation of
ground-level ozone.
(13) Comment: A commentor notes that EPA's 8-hour ozone designation
Web site lists the 2001-2003 design value for the Grand Rapids area as
0.089 ppm. The commentor states that the design value for the area
should be 0.090 ppm, based on the Jennison monitor.
Response: Yearly 4th high 8-hour ozone averages at the Jennison
monitor for the years 2001-2003 are 0.086, 0.093, and 0.090 ppm,
respectively. Using the calculation procedures described in 40 CFR Part
50, Appendix I, which call for truncating after the third decimal
place, rather than rounding, the 3-year average of the fourth-highest
daily maximum 8-hour average ozone concentrations, i.e., the design
value, is 0.089 ppm.
(14) Comment: Considering the 4th highest 8-hour average for each
year for each monitor in the Grand Rapids-Muskegon-Holland Consolidated
Statistical Area, rather than the design value, long term trends show a
regional air quality pattern of elevated and violating ozone
concentrations.
Response: It should be noted that the commentor is citing three
separate nonattainment areas as if they were one entity. The Grand
Rapids and Muskegon areas are monitoring attainment of the 8-hour ozone
NAAQS and EPA has proposed to approve Michigan's requests to
redesignate these areas to attainment. The Allegan County area
(Holland) continues to monitor violations of the 8-hour ozone standard.
Michigan has not requested that the Allegan County area be redesignated
and this area is not addressed in this rulemaking.
That being said, as discussed above, neither the CAA nor EPA's
interpretation of CAA requirements in policy memoranda provide for
using monitoring data trends or statistical analyses as criteria for
ascertaining attainment for purposes of redesignation. Section
107(d)(3)(E) of the CAA allows for redesignation provided that, among
other things, the Administrator determines that the area has attained
the applicable NAAQS. As described in detail in the proposed rules, the
Grand Rapids and Muskegon areas are monitoring attainment of the 8-hour
ozone NAAQS.
Furthermore, maintenance plans for Grand Rapids and Muskegon
project maintenance of the standard through 2018. For Grand Rapids, the
maintenance plan shows that the area will maintain the standard with
emissions reductions of 27% and 63% for VOC and NOX,
respectively, between 2002 and 2018. For Muskegon, the maintenance plan
shows that the area will maintain the standard with emissions
reductions of 19% and 31% for VOC and NOX, respectively,
between 2005 and 2018. See 71 FR 70925 and 72 FR 707. Moreover, as
described above in responses to comments, continuing reductions in
emissions from upwind areas will further contribute to maintenance of
the standard.
(15) Comment: EPA granted Michigan's requests to be exempt from
NOX RACT regulation requirements when NOX has
been pointedly and repeatedly implicated in the ozone formation process
around Lake Michigan. Based on regional modeling performed by the Lake
Michigan Air Directors Consortium, EPA should retract all
NOX waiver requests involving the areas until such time that
the associated NOX control measures are shown to be
completely ineffective at addressing ozone air quality improvement in
all areas impacted by those emissions.
Response: EPA approved section 182(f) NOX waivers for
the Grand Rapids, Kalamazoo-Battle Creek, Lansing-East Lansing, Benzie
County, Huron County, and Mason County areas on June 6, 2006 (71 FR
32448). The issuance of NOX waivers for these areas is not
at issue in this rulemaking. This comment would have more appropriately
been submitted in response to the proposal to grant these waivers. The
comment is not relevant to this redesignation action.
(16) Comment: There is not now any guarantee that a regional
program will be adopted and implemented because areas in Region 5 are
being allowed to be redesignated without viable maintenance plans that
acknowledge the need for a comprehensive regional plan.
Response: The role of a redesignation action is to address air
quality and regulatory requirements in an individual nonattainment
area, and not to serve as a mechanism to address regional air quality
issues. As noted above, MDEQ has included in its maintenance plans,
control measures which the state has the authority to adopt and
enforce. EPA has reviewed these maintenance plans and found that they
provide for maintenance of the ozone standard in accordance with
sections 175A and 107(d)(3)(E). MDEQ does not have the authority to
adopt and enforce measures to control sources located in other states.
Neither does it have the authority to unilaterally compel other states
to participate in the adoption and implementation of a regional control
program. It would be inappropriate for the State to include in its
maintenance plans contingency measures that it could neither adopt nor
enforce.
That being said, the redesignation of areas does not prohibit
states from working together to ensure regional attainment and
maintenance of the NAAQS. Indeed, it is in the states' best interest to
do so. Section 110(a)(2)(D)(i) of the CAA requires states to include in
their SIPs adequate provisions to prohibit any source or emissions
activity within the state from emitting any air pollutant in amounts
which will ``contribute significantly to nonattainment in, or interfere
with maintenance by, any other State with respect to any such national
primary or secondary ambient air quality standard.* * *'' The
participation by states in multi-state regional planning facilitates
the evaluation of states' responsibilities regarding this section of
the CAA and promotes a cohesive plan for regional attainment and
maintenance of the NAAQS. In fact, Michigan continues to participate in
regional planning efforts through the Lake Michigan Air Director's
Consortium.
Redesignation of an area does not insulate it from the requirements
or protection of section 110(a)(2)(D). Section 126 is also available to
states to petition for redress if sources in an upwind state contribute
significantly to nonattainment, or interfere with maintenance, of a
NAAQS in the state. See prior responses to comments.
In addition, as noted in prior responses to comments, regional
emissions reductions due to the NOX SIP call, CAIR, and
other regulations including the NLEV program, Tier 2 emission standards
for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards,
and heavy-duty diesel engine standards will result in continued
improvement in air quality throughout the region.
(17) Comment: There are not new controls on the books that will
provide for demonstrated permanent air quality improvement by the
expected attainment dates of 2007, 2009 and 2010.
Response: The Grand Rapids, Kalamazoo-Battle Creek, Lansing-East
Lansing, Muskegon, Benton Harbor, Flint, Benzie County, Cass County,
Huron County, and Mason County areas are all monitoring attainment of
the 8-hour ozone NAAQS. Therefore, future attainment dates are
irrelevant to the
[[Page 27433]]
redesignation. Moreover, as discussed in the proposals, 71 FR 70921
(December 7, 2006) and 72 FR 704-705 (January 8, 2007), Michigan has
shown that the improvement in air quality is due to permanent and
enforceable emissions reductions. Emission reductions from within the
areas as well as regional reductions from upwind areas are responsible
for attainment. Reductions in VOC and NOX emissions have
occurred in Michigan, as well as in upwind areas as a result of Federal
emission control measures, with additional emission reductions expected
to occur in the future. Federal emission control measures include: The
NLEV program, Tier 2 emission standards for vehicles, gasoline sulfur
limits, low sulfur diesel fuel standards, and heavy-duty diesel engine
standards. In compliance with EPA's NOX SIP call, Michigan
developed rules to control NOX emissions from Electric
Generating Units (EGUs), major non-EGU industrial boilers, and major
cement kilns. Illinois and Indiana have also adopted and implemented
regulations to comply with the NOX SIP call which have
resulted in a reduction in NOX emissions. While Wisconsin
was not subject to the NOX SIP call, the state has adopted
NOX regulations to meet rate of progress requirements. The
emission reductions from all of these programs are permanent and
enforceable. Furthermore, MDEQ's maintenance plans show continued
reductions in ozone precursor emissions through 2018. EPA believes that
the maintenance plans meet the requirements of sections 175A and
107(d)(3)(E). Future emissions reductions can be expected both in
Michigan and in upwind areas from programs including the NLEV program,
Tier 2 emission standards for vehicles, gasoline sulfur limits, low
sulfur diesel fuel standards, heavy-duty diesel engine standards, clean
air non-road diesel rule and CAIR.
(18) Comment: The string of 4 monitors going into and downwind of
the heart of the Grand Rapids metro area depends on the Holland
(Allegan County) site being the lakeshore site. There is no lakeshore
monitor in Ottawa County. If there were, it would clearly indicate
ozone values closer to the levels monitored in the adjacent county
north (Muskegon) or the adjacent county south (Allegan).
Response: It should be noted that the ozone monitor in Muskegon
County (the Muskegon area) is monitoring attainment of the ozone NAAQS;
the monitor located in Allegan County is not. Michigan has not
requested that the Allegan County area be redesignated and this area is
not addressed in this rulemaking. EPA believes that the monitoring
network for the Grand Rapids area satisfies the requirements of 40 CFR
part 58, appendix D. The EPA has approved the Grand Rapids monitoring
network as adequate and has not required a lakeshore monitor in Ottawa
County. There is no basis on which to speculate what such a monitor
would record if it were in place, and it would be inappropriate for EPA
to use such speculation as a criterion for redesignation. As discussed
above, section 107(d)(3)(E) of the CAA allows for redesignation
provided that, among other things, the Administrator determines that
the area has attained the applicable NAAQS. An area is considered to be
in attainment of the 8-hour ozone standard if the 3-year average of the
fourth-highest daily maximum 8-hour average ozone concentrations
measured at each monitor within an area over each year does not exceed
0.084 ppm. The Grand Rapids area is monitoring attainment of the 8-hour
ozone NAAQS, based on that criterion.
(19) Comment: EPA had previously approved Michigan's ozone
monitoring plans with the understanding that the Grand Rapids metro
area would be designated as a single area including all 4 counties
(Allegan, Kent, Ottawa and Muskegon counties). All the counties contain
urbanized areas and their metropolitan connections are clear in the
driving/commuting and emissions statistics. EPA understood this when
proposing the 8-hour designations based on the full metropolitan area.
EPA utilized technical justifications for splitting the area into
separate pieces that do not fit the criteria required in EPA's standing
guidance. However, if the EPA feels the need to split the areas, then
it should require a more protective monitor location for a monitor in
Ottawa County. If classification is based on either the Holland or
Muskegon site, then that test is met.
Response: There is nothing in the record that supports the
commentor's allegation. Michigan has been operating an approved
monitoring network over the entire time period in question. EPA
believes that the monitoring network for the Grand Rapids area
satisfies the requirements of 40 CFR part 58, appendix D. EPA
designated and classified the four counties as three separate areas
(Grand Rapids, Muskegon, and Allegan County) under both the 1-hour
ozone standard (56 FR 56778, November 6, 1991) and the 8-hour ozone
standard (69 FR 23910-23911, April 30, 2004), based on the ozone
monitoring data for each respective area. The 8-hour ozone
designations, including area boundaries and the underlying monitoring
data used for such designations, are not at issue in this rulemaking.
Comments regarding the appropriateness of the 8-hour ozone designations
would have more appropriately been submitted during the designation
process. They are not relevant to a rulemaking on the redesignation of
the area.
Grand Rapids has an approved adequate monitoring network, and the
monitors in Muskegon and Allegan are not relevant to making an
attainment determination for Grand Rapids.
(20) Comment: The two-year average of fourth high 8-hour averages
for Muskegon exceeds 0.085 ppm. According to the maintenance plan for
Muskegon, MDEQ has six months from the close of the ozone season to
review the circumstances leading to the high monitored values. This
review should be completed by April 1, 2007. Will the review be
completed by this date? What has MDEQ concluded?
Response: Neither the CAA nor EPA policy memoranda contain the
requirement that a state begin to implement a maintenance plan that has
not yet been approved into the SIP, much less establish its
implementation as a criterion for redesignation. The State will be
required to implement its maintenance plans when they are approved as
revisions to the SIP.
III. What Are Our Final Actions?
EPA is taking several related actions. EPA is making determinations
that the Flint, Grand Rapids, Kalamazoo-Battle Creek, Lansing-East
Lansing, Muskegon, Benton Harbor, Benzie County, Cass County, Huron
County, and Mason County areas have attained the 8-hour ozone NAAQS.
EPA is also approving the State's requests to change the legal
designations of the Flint, Grand Rapids, Kalamazoo-Battle Creek,
Lansing-East Lansing, Muskegon, Benzie County, Cass County, Huron
County, and Mason County areas from nonattainment to attainment for the
8-hour ozone NAAQS. EPA is also approving as SIP revisions Michigan's
maintenance plans for the areas (such approval being one of the CAA
criteria for redesignation to attainment status). Additionally, EPA is
finding adequate and approving for transportation conformity purposes
the 2018 MVEBs for the Flint, Grand Rapids, Kalamazoo-Battle Creek,
Lansing-East Lansing, Muskegon, Benzie County, Cass County, Huron
County, and Mason County areas. With respect to EPA's approval of the
redesignation of each area and approval of its associated maintenance
plan and
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MVEB's, EPA construes such actions as separate and independent from
EPA's actions concerning the other areas subject to this rulemaking.
Thus any challenge to EPA's action with respect to an individual area
shall not affect EPA's actions with respect to the other areas named in
this notice.
EPA finds that there is good cause for these actions to become
effective immediately upon publication 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 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 these 8-hour ozone nonattainment
areas. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3)
for these actions to become effective on the date of publication of
these actions.
IV. Statutory and Executive Order Review
Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget.
Executive Order 12898: Environmental Justice
Executive Order 12898 establishes a Federal policy for
incorporating en
