[Federal Register Volume 74, Number 77 (Thursday, April 23, 2009)]
[Proposed Rules]
[Pages 18479-18490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9217]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2009-0219; FRL-8894-9]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Michigan; Redesignation of
the Detroit-Ann Arbor Area to Attainment for Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to make a determination under the Clean Air
Act (CAA) that the Detroit-Ann Arbor nonattainment area has attained
the 8-hour ozone National Ambient Air Quality Standard (NAAQS). The
Detroit-Ann Arbor area includes Lenawee, Livingston, Macomb, Monroe,
Oakland, St. Clair, Washtenaw, and Wayne Counties. This determination
is based on quality-assured ambient air quality monitoring data for the
2006-2008 ozone seasons that demonstrate that the 8-hour ozone NAAQS
has been attained in the area.
EPA is proposing to approve a request from the State of Michigan to
redesignate the Detroit-Ann Arbor area to attainment of the 8-hour
ozone NAAQS. The Michigan Department of Environmental Quality (MDEQ)
submitted this request on March 6, 2009. In proposing to approve this
request EPA is also proposing to approve, as a revision to the Michigan
State Implementation Plan (SIP), the State's plan for maintaining the
8-hour ozone NAAQS through 2020 in the area. EPA is proposing to
approve the 2005 base year emissions inventory for the Detroit-Ann
Arbor area as meeting the requirements of section 182(a)(1) of the CAA.
EPA also finds adequate and is proposing to approve the State's 2020
[[Page 18480]]
Motor Vehicle Emission Budgets (MVEBs) for the Detroit-Ann Arbor area.
DATES: Comments must be received on or before May 26, 2009.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2009-0219, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: (312) 692-2551.
4. Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
5. Hand delivery: John M. Mooney, Chief, Criteria Pollutant
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, 18th Floor, Chicago, Illinois 60604.
Such deliveries are only accepted during the Regional Office normal
hours of operation, and special arrangements should be made for
deliveries of boxed information. The Regional Office official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2009-0219. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional instructions on submitting
comments, go to Section I this document, ``What Should I Consider as I
Prepare My Comments for EPA?''
Docket: All documents in the docket are listed in the http;//
www.regulations.gov index. 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, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://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),
U.S. Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 886-1767,
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
Table of Contents
I. What Should I Consider as I Prepare My Comments for EPA?
II. What Action Is EPA Proposing To Take?
III. What Is the Background for These Actions?
A. What Is the General Background Information?
B. What Are the Impacts of the December 22, 2006 and June 8,
2007 United States Court of Appeals Decisions Regarding EPA's Phase
1 Implementation Rule?
IV. What Are the Criteria for Redesignation?
V. Why Is EPA Proposing To Take These Actions?
VI. What Is the Effect of These Actions?
VII. What Is EPA's Analysis of the Request?
A. Attainment Determination and Redesignation
B. Adequacy of Michigan's MVEBs
C. 2005 Base Year Emissions Inventory
VIII. What Action Is EPA Taking?
IX. Statutory and Executive Order Reviews
I. What Should I Consider as I Prepare My Comments for EPA?
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
2. Follow directions--EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
identified.
II. What Action Is EPA Proposing To Take?
EPA is proposing to take several related actions. EPA is proposing
to make a determination that the Detroit-Ann Arbor nonattainment area
has attained the 8-hour ozone standard and that this area has met the
requirements for redesignation under section 107(d)(3)(E) of the CAA.
EPA is thus proposing to approve Michigan's request to change the legal
designation of the Detroit-Ann Arbor area from nonattainment to
attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve
Michigan's maintenance plan SIP revision for Detroit-Ann Arbor (such
approval being one of the CAA criteria for redesignation to attainment
status). The maintenance plan is designed to keep the Detroit-Ann Arbor
area in attainment of the ozone NAAQS through 2020. EPA is proposing to
approve the 2005 base year emissions inventory for the Detroit-Ann
Arbor area as meeting the requirements of section 182(a)(1) of the CAA.
Additionally, EPA is proposing to approve the newly-established 2020
MVEBs for the Detroit-Ann Arbor area. The adequacy comment period for
the MVEBs began on March 12, 2009, with EPA's posting of the
availability of the submittal on EPA's Adequacy Web site (at http://
www.epa.gov/otaq/stateresources/
[[Page 18481]]
transconf/adequacy.htm). The adequacy comment period for these MVEBs
ended on April 13, 2009. EPA will address any comments in the final
rule. Please see section VII. B. of this rulemaking, ``Adequacy of
Michigan's MVEBs,'' for further explanation on this process. We are
proposing to find adequate and approve, the State's 2020 MVEBs for
transportation conformity purposes.
III. What Is the Background for These Actions?
A. What Is the General Background Information?
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. On November 6, 1991 (56 FR
56693 and 56778), the Detroit-Ann Arbor area was designated as a
moderate nonattainment area under the 1-hour ozone NAAQS. The area was
subsequently redesignated to attainment of the 1-hour standard on March
7, 1995 (60 FR 12459). At the time EPA revoked the 1-hour ozone NAAQS,
on June 15, 2005, the Detroit-Ann Arbor area was designated as
attainment under the 1-hour ozone NAAQS.
On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone
standard of 0.08 parts per million (ppm). 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. EPA designated 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 contains general requirements for
nonattainment areas for any pollutant, including ozone, governed by a
NAAQS. Subpart 2 provides more specific requirements for ozone
nonattainment areas.
Under EPA's implementation rule for the 1997 8-hour ozone standard,
(69 FR 23951 (April 30, 2004)), an area was classified under subpart 2
based on its 8-hour ozone design value (i.e. the three-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
Detroit-Ann Arbor area was designated as a subpart 2, 8-hour ozone
moderate nonattainment area by EPA on April 30, 2004 (69 FR 23857,
23910-23911) based on air quality monitoring data from 2001-2003 (69 FR
23860).
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
classification of the Detroit-Ann Arbor nonattainment area from
moderate to marginal (69 FR 56697, 56708-56709).
40 CFR 50.10 and 40 CFR part 50, appendix I provide that the 8-hour
ozone standard is attained when the three-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.
On March 6, 2009, MDEQ requested that EPA redesignate the Detroit-
Ann Arbor area to attainment for the 8-hour ozone standard. The
redesignation request included three years of complete, quality-assured
data for the period of 2006 through 2008, indicating the 8-hour NAAQS
for ozone had been attained for the Detroit-Ann Arbor area. 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 March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour
ozone standard of 0.075. EPA has not yet promulgated area designations
for this standard. While both the 1997 and 2008 8-hour ozone standards
are currently in place, the actions addressed in this proposed
rulemaking relate only to the 1997 8-hour ozone standard.
B. What Are the Impacts of the December 22, 2006, and June 8, 2007,
United States Court of Appeals Decisions Regarding EPA's Phase 1
Implementation Rule?
1. Summary of Court Decision
On December 22, 2006, in South Coast Air Quality Management Dist.
v. EPA, the U.S. Court of Appeals for the District of Columbia Circuit
vacated EPA's Phase 1 Implementation Rule for the 8-hour ozone standard
(69 FR 23951, April 30, 2004). 472 F.3d 882 (DC Cir. 2006). On June 8,
2007, in response to several petitions for rehearing, the DC Circuit
Court clarified that the Phase 1 Rule was vacated only with regard to
those parts of the rule that had been successfully challenged. Id.,
Docket No. 04 1201. Therefore, several provisions of the Phase 1 Rule
remain effective: Provisions related to classifications for areas
currently classified under subpart 2 of Title I, part D, of the CAA as
8-hour nonattainment areas; the 8-hour attainment dates; and, the
timing for emissions reductions needed for attainment of the 8-hour
ozone NAAQS. The June 8, 2007 decision also left intact the Court's
rejection of EPA's reasons for implementing the 8-hour standard in
certain nonattainment areas under subpart 1 in lieu of subpart 2. By
limiting the vacatur, the Court let stand EPA's revocation of the 1-
hour standard and those anti-backsliding provisions of the Phase 1 Rule
that had not been successfully challenged. The June 8, 2007 decision
reaffirmed the December 22, 2006, decision that EPA had improperly
failed to retain four measures required for 1-hour nonattainment areas
under the anti-backsliding provisions of the regulations: (1)
Nonattainment area New Source Review (NSR) requirements based on an
area's 1-hour nonattainment classification; (2) section 185 penalty
fees for 1-hour severe or extreme nonattainment areas; (3) measures to
be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA,
on the contingency of an area not making reasonable further progress
toward attainment of the 1-hour NAAQS, or for failure to attain that
NAAQS; and (4) certain transportation conformity requirements for
certain types of Federal actions. The June 8, 2007 decision clarified
that the Court's reference to conformity requirements was limited to
requiring the continued use of 1-hour motor vehicle emissions budgets
until 8-hour budgets were available for 8-hour conformity
determinations.
[[Page 18482]]
This section sets forth EPA's views on the potential effect of the
Court's rulings on this proposed redesignation action. For the reasons
set forth below, EPA does not believe that the Court's rulings alter
any requirements relevant to this redesignation action so as to
preclude redesignation or prevent EPA from proposing or ultimately
finalizing this redesignation. EPA believes that the Court's December
22, 2006, and June 8, 2007, decisions impose no impediment to moving
forward with redesignation of this area to attainment, because even in
light of the Court's decisions, redesignation is appropriate under the
relevant redesignation provisions of the CAA and longstanding policies
regarding redesignation requests.
2. Requirements Under the 8-Hour Standard
With respect to the 8-hour standard, the Detroit-Ann Arbor area is
classified under subpart 2. The June 8, 2007, opinion clarifies that
the Court did not vacate the Phase 1 Rule's provisions with respect to
classifications for areas under subpart 2. The Court's decision,
therefore, upholds EPA's classifications for those areas classified
under subpart 2 for the 8-hour ozone standard.
3. Requirements Under the 1-Hour Standard
With respect to the 1-hour standard requirements, the Detroit-Ann
Arbor area was an attainment area subject to a CAA section 175A
maintenance plan under the 1-hour standard. The Court's decisions do
not impact redesignation requests for these types of areas, except to
the extent that the Court, in its June 8, 2007 decision, clarified that
for those areas with 1-hour motor vehicle emissions budgets in their
maintenance plans, anti-backsliding requires that those 1-hour budgets
must be used for 8-hour conformity determinations until replaced by 8-
hour budgets. To meet this requirement, conformity determinations in
such areas must comply with the applicable requirements of EPA's
conformity regulations at 40 CFR part 93.
With respect to the three other anti-backsliding provisions for the
1-hour standard that the Court found were not properly retained, the
Detroit-Ann Arbor area is an attainment area subject to a maintenance
plan for the 1-hour standard, and the NSR, contingency measures
(pursuant to section 172(c)(9) or 182(c)(9)), and fee provision
requirements no longer apply to an area that has been redesignated to
attainment of the 1-hour standard.
Thus, the decision in South Coast should not alter requirements
that would preclude EPA from proposing or finalizing the redesignation
of this area.
IV. What Are the Criteria for Redesignation?
The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) allows for
redesignation provided that: (1) The Administrator determines that the
area has attained the applicable NAAQS; (2) the Administrator has fully
approved the applicable implementation plan for the area under section
110(k); (3) the Administrator determines that the improvement in air
quality is due to permanent and enforceable reductions in emissions
resulting from implementation of the applicable SIP and applicable
Federal air pollutant control regulations and other permanent and
enforceable reductions; (4) the Administrator has fully approved a
maintenance plan for the area as meeting the requirements of section
175A; and, (5) the state containing such area has met all requirements
applicable to the area under section 110 and part D.
EPA provided guidance on redesignation in the General Preamble for
the Implementation of Title I of the CAA Amendments of 1990 on April
16, 1992 (57 FR 13498), and supplemented this guidance on April 28,
1992 (57 FR 18070). EPA has provided further guidance on processing
redesignation requests in the following documents:
``Ozone and Carbon Monoxide Design Value Calculations,'' Memorandum
from William G. Laxton, Director Technical Support Division, June 18,
1990;
``Maintenance Plans for Redesignation of Ozone and Carbon Monoxide
Nonattainment Areas,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, April 30, 1992;
``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1, 1992;
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992;
``State Implementation Plan (SIP) Actions Submitted in Response to
Clean Air Act (ACT) Deadlines,'' Memorandum from John Calcagni,
Director, Air Quality Management Division, October 28, 1992;
``Technical Support Documents (TSD's) for Redesignation Ozone and
Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from G. T.
Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;
``State Implementation Plan (SIP) Requirements for Areas Submitting
Requests for Redesignation to Attainment of the Ozone and Carbon
Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or
After November 15, 1992,'' Memorandum from Michael H. Shapiro, Acting
Assistant Administrator for Air and Radiation, September 17, 1993;
``Use of Actual Emissions in Maintenance Demonstrations for Ozone
and CO Nonattainment Areas,'' Memorandum from D. Kent Berry, Acting
Director, Air Quality Management Division, to Air Division Directors,
Regions 1-10, November 30, 1993.
``Part D New Source Review (part D NSR) Requirements for Areas
Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994; and,
``Reasonable Further Progress, Attainment Demonstration, and
Related Requirements for Ozone Nonattainment Areas Meeting the Ozone
National Ambient Air Quality Standard,'' Memorandum from John S. Seitz,
Director, Office of Air Quality Planning and Standards, May 10, 1995.
V. Why Is EPA Proposing To Take These Actions?
On March 6, 2009, Michigan requested redesignation of the Detroit-
Ann Arbor area to attainment for the 8-hour ozone standard. EPA
believes that the area has attained the standard and has met the
requirements for redesignation set forth in section 107(d)(3)(E) of the
CAA.
VI. What Is the Effect of These Actions?
Approval of the redesignation request would change the official
designation of the area for the 8-hour ozone NAAQS found at 40 CFR part
81. It would also incorporate into the Michigan SIP a plan for
maintaining the 8-hour ozone NAAQS through 2020. The maintenance plan
includes contingency measures to remedy future violations of the 8-hour
NAAQS. It also establishes MVEBs of 106 tons per day (tpd) VOC and 274
tpd NOX for Livingston, Macomb, Monroe, Oakland, St. Clair,
Washtenaw, and Wayne Counties (SEMCOG Region) and 2.1 tpd VOC and 4.4
tpd NOX for Lenawee County.
[[Page 18483]]
VII. What Is EPA's Analysis of the Request?
A. Attainment Determination and Redesignation
EPA is proposing to make a determination that the Detroit-Ann Arbor
area has attained the 8-hour ozone standard and that the area has met
all other applicable section 107(d)(3)(E) redesignation criteria. The
basis for EPA's determination is as follows:
1. The Area Has Attained the 8-Hour Ozone NAAQS (Section
107(d)(3)(E)(i))
EPA is proposing to make a determination that the Detroit-Ann Arbor
area has attained the 8-hour ozone NAAQS. For ozone, an area may be
considered to be attaining the 8-hour ozone NAAQS if there are no
violations, as determined in accordance with 40 CFR 50.10 and part 50,
appendix I, based on three complete, consecutive calendar years of
quality-assured air quality monitoring data. To attain this standard,
the three-year average of the fourth-highest daily maximum 8-hour
average ozone concentrations measured at each monitor within an area
over each year must not exceed 0.08 ppm. Based on the rounding
convention described in 40 CFR part 50, appendix I, the standard is
attained if the design value is 0.084 ppm or below. The data must be
collected and quality-assured in accordance with 40 CFR part 58, and
recorded in the Aerometric Information Retrieval System (AIRS). The
monitors generally should have remained at the same location for the
duration of the monitoring period required for demonstrating
attainment.
MDEQ submitted ozone monitoring data for the 2006 to 2008 ozone
seasons. MDEQ quality-assured the ambient monitoring data in accordance
with 40 CFR 58.10, and recorded it in the AIRS database, thus making
the data publicly available. The data meet the completeness criteria in
40 CFR part 50, appendix I, which requires a minimum completeness of 75
percent annually and 90 percent over each 3-year period. Monitoring
data is presented in Table 1 below.
Table 1--Annual 4th High Daily Maximum 8-Hour Ozone Concentration and Three-Year Averages of 4th High Daily
Maximum 8-Hour Ozone Concentrations
----------------------------------------------------------------------------------------------------------------
2006 4th high 2007 4th high 2008 4th high 2006-2008
County Monitor (ppm) (ppm) (ppm) average (ppm)
----------------------------------------------------------------------------------------------------------------
Lenawee....................... Tecumseh 0.074 0.081 0.072 0.076
260910007.
Macomb........................ New Haven 0.078 0.093 0.073 0.081
260990009.
Warren 260991003 0.078 0.091 0.072 0.080
Oakland....................... Oak Park 0.072 0.086 0.074 0.077
261250001.
St. Clair..................... Port Huron 0.078 0.089 0.067 0.078
261470005.
Washtenaw..................... Ypsilanti 0.076 0.077 0.069 0.074
261610008.
Wayne......................... Allen Park 0.068 0.079 0.067 0.071
261630001.
E-7 Mile 0.078 0.092 0.078 0.082
261630019.
Linwood 0.069 .............. .............. ..............
261630016.
SW High School 0.067 .............. .............. ..............
261630015.
----------------------------------------------------------------------------------------------------------------
In addition, as discussed below with respect to the maintenance
plan, MDEQ has committed to continue to operate an EPA-approved
monitoring network as necessary to demonstrate ongoing compliance with
the NAAQS. MDEQ remains obligated to continue to quality assure
monitoring data in accordance with 40 CFR part 58 and enter all data
into the Air Quality System in accordance with Federal guidelines. In
summary, EPA believes that the data submitted by Michigan provide an
adequate demonstration that the Detroit-Ann Arbor area has attained the
8-hour ozone NAAQS.
2. The Area Has Met All Applicable Requirements Under Section 110 and
Part D; and the Area Has a Fully Approved SIP Under Section 110(k)
(Sections 107(d)(3)(E)(v) and 107(d)(3)(E)(ii))
We have determined that Michigan has met all currently applicable
SIP requirements for purposes of redesignation for the Detroit-Ann
Arbor area under section 110 of the CAA (general SIP requirements). We
have also determined that the Michigan SIP meets all SIP requirements
currently applicable for purposes of redesignation under part D of
Title I of the CAA (requirements specific to marginal nonattainment
areas), in accordance with section 107(d)(3)(E)(v). In addition, we
have determined that the Michigan SIP is fully approved with respect to
all applicable requirements for purposes of redesignation, in
accordance with section 107(d)(3)(E)(ii). In making these
determinations, we have ascertained what SIP requirements are
applicable to the area for purposes of redesignation, and have
determined that the portions of the SIP meeting these requirements are
fully approved under section 110(k) of the CAA. As discussed more fully
below, SIPs must be fully approved only with respect to currently
applicable requirements of the CAA.
The September 4, 1992, Calcagni memorandum (see ``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992) describes EPA's interpretation of section
107(d)(3)(E) of the CAA. Under this interpretation, a state and the
area it wishes to redesignate must meet the relevant CAA requirements
that are due prior to the state's submittal of a complete redesignation
request for the area. See also the September 17, 1993, Michael Shapiro
memorandum and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of
Detroit-Ann Arbor, Michigan to attainment of the 1-hour ozone NAAQS).
Applicable requirements of the CAA that come due subsequent to the
state's submittal of a complete request remain applicable until a
redesignation to attainment is approved, but are not required as a
prerequisite to redesignation. See section 175A(c) of the CAA. Sierra
Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 25427
(May 12, 2003) (redesignation of the St. Louis/East St. Louis area to
attainment of the 1-hour ozone NAAQS).
a. The Detroit-Ann Arbor Area Has Met All Applicable Requirements Under
Section 110 and Part D of the CAA
i. Section 110 General SIP Requirements
Section 110(a) of title I of the CAA contains the general
requirements for a SIP. Section 110(a)(2) provides that the
implementation plan submitted by a state must have been adopted by the
[[Page 18484]]
state after reasonable public notice and hearing, and that, among other
things, it: includes enforceable emission limitations and other control
measures, means or techniques necessary to meet the requirements of the
CAA; provides for establishment and operation of appropriate devices,
methods, systems and procedures necessary to monitor ambient air
quality; provides for implementation of a source permit program to
regulate the modification and construction of any stationary source
within the areas covered by the plan; includes provisions for the
implementation of part C, Prevention of Significant Deterioration (PSD)
and part D, NSR permit programs; includes criteria for stationary
source emission control measures, monitoring, and reporting; includes
provisions for air quality modeling; and, provides for public and local
agency participation in planning and emission control rule development.
Section 110(a)(2)(D) of the CAA requires that SIPs contain measures
to prevent sources in a state from significantly contributing to air
quality problems in another state. To implement this provision, EPA has
required certain states to establish programs to address transport of
air pollutants (NOX SIP Call \1\ and Clean Air Interstate
Rule (CAIR) (70 FR 25162)). However, the section 110(a)(2)(D)
requirements for a state are not linked with a particular nonattainment
area's designation and classification. EPA believes that the
requirements linked with a particular nonattainment area's designation
and classification are the relevant measures to evaluate in reviewing a
redesignation request. The transport SIP submittal requirements, where
applicable, continue to apply to a state regardless of the designation
of any one particular area in the state. Thus, we believe that these
requirements should not be construed to be applicable requirements for
purposes of redesignation.
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\1\ On October 27, 1998 (63 FR 57356), EPA issued a
NOx SIP call requiring the District of Columbia and 22
states to reduce emissions of NOX in order to reduce the
transport of ozone and ozone precursors. In compliance with EPA's
NOX SIP call, MDEQ has developed rules governing the
control of NOX emissions from Electric Generating Units
(EGUs), major non-EGU industrial boilers, and major cement kilns.
EPA approved Michigan's rules as fulfilling Phase I of the
NOX SIP Call on May 4, 2005 (70 FR 23029) and as
fulfilling Phase II of the SIP Call on January 29, 2008 (73 FR
5101).
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Further, we believe that the other section 110 elements described
above that are not connected with nonattainment plan submissions and
not linked with an area's attainment status are also not applicable
requirements for purposes of redesignation. A state remains subject to
these requirements after an area is redesignated to attainment. We
conclude that only the section 110 and part D requirements which are
linked with a particular area's designation and classification are the
relevant measures which we may consider in evaluating a redesignation
request. This approach is consistent with EPA's existing policy on
applicability of conformity and oxygenated fuels requirements for
redesignation purposes, as well as with section 184 ozone transport
requirements. See Reading, Pennsylvania, proposed and final rulemakings
(61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 1997);
Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7,
1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7,
1995). See also the discussion on this issue in the Cincinnati, Ohio
ozone redesignation (65 FR 37890, June 19, 2000), and in the
Pittsburgh, Pennsylvania ozone redesignation (66 FR 50399, October 19,
2001).
We have reviewed Michigan's SIP and have concluded that it meets
the general SIP requirements under section 110 of the CAA. EPA has
previously approved provisions of the Michigan SIP addressing section
110 elements under the 1-hour ozone standard (40 CFR 52.1170). Further,
in submittals dated December 6, 2007, and September 19, 2008, Michigan
confirmed that the State continues to meet the section 110 requirements
for the 8-hour ozone standard.
ii. Part D Requirements
EPA has determined that, with the approval of the base year
emissions inventory discussed in section VII.C. of this rulemaking, the
Michigan SIP will meet the applicable SIP requirements under part D of
the CAA for the Detroit-Ann Arbor area. Under part D of the CAA, an
area's classification determines the requirements to which it will be
subject. Subpart 1 of part D, found in sections 172-176 of the CAA,
sets forth the basic nonattainment requirements applicable to all
nonattainment areas. Subpart 2 of part D, which includes section 182 of
the CAA, establishes additional specific requirements depending on the
area's nonattainment classification.
The Detroit-Ann Arbor area was classified as a marginal area under
subpart 2, therefore the State must meet both the applicable
requirements of subpart 1 and subpart 2 of part D. The applicable
subpart 1 requirements are contained in sections 172(c)(1)-(9) and in
section 176. The subpart 2 requirements applicable to the Detroit-Ann
Arbor area are contained in section 182(a) (marginal nonattainment area
requirements).
Subpart 1 Section 172 Requirements
For purposes of evaluating this redesignation request, the
applicable section 172 SIP requirements for the Detroit-Ann Arbor area
are contained in sections 172(c)(1)-(9). A thorough discussion of the
requirements contained in section 172 can be found in the General
Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).
Section 172(c)(1) requires the plans for all nonattainment areas to
provide for the implementation of all Reasonably Available Control
Measures (RACM) as expeditiously as practicable. The EPA interprets
this requirement to impose a duty on all nonattainment areas to
consider all available control measures and to adopt and implement such
measures as are reasonably available for implementation in the area as
components of the areas attainment demonstration. Because attainment
has been reached, no additional measures are needed to provide for
attainment.
The reasonable further progress (RFP) requirement under section
172(c)(2) is defined as progress that must be made toward attainment.
This requirement is not relevant because the Detroit-Ann Arbor area has
demonstrated monitored attainment of the ozone NAAQS. (General
Preamble, 57 FR 13564). In addition, because the Detroit-Ann Arbor area
has attained the ozone NAAQS and is no longer subject to an RFP
requirement, the section 172(c)(9) contingency measures are not
applicable.
Section 172(c)(3) requires submission and approval of a
comprehensive, accurate and current inventory of actual emissions. This
requirement was superseded by the inventory requirement in section
182(a)(1).
Section 172(c)(4) requires the identification and quantification of
allowable emissions for major new and modified stationary sources to be
allowed in an area, and section 172(c)(5) requires source permits for
the construction and operation of new and modified major stationary
sources anywhere in the nonattainment area. EPA has determined that,
since PSD requirements will apply after redesignation, areas being
redesignated need not comply with the requirement that a NSR program be
approved prior to redesignation, provided that the area demonstrates
maintenance of the NAAQS without part D NSR. A more
[[Page 18485]]
detailed rationale for this view is described in a memorandum from Mary
Nichols, Assistant Administrator for Air and Radiation, dated October
14, 1994, entitled, ``Part D New Source Review Requirements for Areas
Requesting Redesignation to Attainment.'' Michigan has demonstrated
that the Detroit-Ann Arbor area will be able to maintain the standard
without part D NSR in effect; therefore, EPA concludes that the State
need not have a fully approved part D NSR program prior to approval of
the redesignation request. The PSD program was delegated to the State
of Michigan on September 10, 1979, and amended on November 7, 1983, and
September 26, 1988. In addition, on December 21, 2006, MDEQ submitted,
as a revision to its SIP, State rules to implement the PSD program. On
September 16, 2008, EPA conditionally approved the majority of
Michigan's PSD program, and partially disapproved the subsection of
Michigan's rule corresponding to 40 CFR 51.166(p). On September 30,
2008, MDEQ submitted a revision to the SIP correcting the deficiencies
cited in the conditional approval. The Federal delegation of authority
allows Michigan to continue to implement 40 CFR 51.166(p).
The State's PSD program will become effective in the Detroit-Ann
Arbor area upon redesignation to attainment. See rulemakings for
Detroit, Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-
Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville,
Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids, Michigan
(61 FR 31834-31837, June 21, 1996).
Section 172(c)(6) requires the SIP to contain control measures
necessary to provide for attainment of the standard. Because attainment
has been reached, no additional measures are needed to provide for
attainment.
Section 172(c)(7) requires the SIP to meet the applicable
provisions of section 110(a)(2). As noted above, we believe the
Michigan SIP meets the requirements of section 110(a)(2).
Subpart 1 Section 176 Conformity Requirements
Section 176(c) of the CAA requires states to establish criteria and
procedures to ensure that Federally-supported or funded activities,
including highway projects, conform to the air quality planning goals
in the applicable SIPs. The requirement to determine conformity applies
to transportation plans, programs and projects developed, funded or
approved under Title 23 of the U.S. Code and the Federal Transit Act
(transportation conformity), as well as to all other Federally-
supported or funded projects (general conformity). State conformity
revisions must be consistent with Federal conformity regulations
relating to consultation, enforcement, and enforceability, which EPA
promulgated pursuant to CAA requirements.
EPA believes that it is reasonable to interpret the conformity SIP
requirements as not applying for purposes of evaluating the
redesignation request under section 107(d) for two reasons. First, the
requirement to submit SIP revisions to comply with the conformity
provisions of the CAA continues to apply to areas after redesignation
to attainment since such areas would be subject to a section 175A
maintenance plan. Second, EPA's Federal conformity rules require the
performance of conformity analyses in the absence of Federally-approved
state rules. Therefore, because areas are subject to the conformity
requirements regardless of whether they are redesignated to attainment
and, because they must implement conformity under Federal rules if
state rules are not yet approved, EPA believes it is reasonable to view
these requirements as not applying for purposes of evaluating a
redesignation request. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001),
upholding this interpretation. See also 60 FR 62748, 62749-62750 (Dec.
7, 1995) (Tampa, Florida).
EPA approved Michigan's general and transportation conformity SIPs
on December 18, 1996 (61 FR 666079 and 61 FR 66609, respectively).
Michigan has submitted onroad motor vehicle budgets for the SEMCOG
portion of the Detroit-Ann Arbor area and Lenawee County of 106 tpd and
2.1 tpd VOC and 274 tpd and 4.4 tpd NOx, respectively, for the year
2020. The area must use the MVEBs from the maintenance plan in any
conformity determination that is effective on or after the effective
date of the maintenance plan approval.
Subpart 2 Section 182(a) Requirements
As set forth in the September 4, 1992, and September 17, 1993, EPA
guidance memoranda referenced in section IV of this action, ``What are
the Criteria for Redesignation?,'' only those requirements which came
due prior to Michigan's submittal of a request to designate the
Detroit-Ann Arbor area must be fully approved into the SIP before or at
the time EPA approves the redesignation of the area to attainment.
These requirements are discussed below.
Base year emissions inventory. Section 182(a)(1) requires the
submission of a base year emissions inventory. As part of Michigan's
redesignation request for the Detroit-Ann Arbor area, the State
submitted a 2005 base year emissions inventory. EPA is proposing to
approve the 2005 base year inventory Michigan submitted with the
redesignation request as meeting the section 182(a)(1) emissions
inventory requirement.
Emissions statements. EPA approved Michigan's emission statement
SIP, as required by section 182(a)(3)(B), on March 8, 1994 (59 FR
10752).
Thus, the Detroit-Ann Arbor area has satisfied all applicable
requirements under section 110 and part D of the CAA.
b. The Detroit-Ann Arbor Area Has a Fully Approved Applicable SIP Under
Section 110(k) of the CAA
EPA has fully approved the Michigan SIP for the Detroit-Ann Arbor
area under section 110(k) of the CAA for all requirements applicable
for purposes of redesignation. EPA may rely on prior SIP approvals in
approving a redesignation request (See page 3 of the September 4, 1992,
John Calcagni memorandum; Southwestern Pennsylvania Growth Alliance v.
Browner, 144 F.3d 984, 989-990 (6th Cir. 1998); Wall v. EPA, 265 F.3d
426 (6th Cir. 2001)) plus any additional measures it may approve in
conjunction with a redesignation action. See 68 FR 25413, 25426 (May
12, 2003). Since the passage of the CAA of 1970, Michigan has adopted
and submitted, and EPA has fully approved, provisions addressing the
various required SIP elements applicable to the Detroit-Ann Arbor
County area under the 1-hour ozone standard. In this action, EPA is
proposing to approve Michigan's 2005 base year emissions inventory for
the Detroit-Ann Arbor area as meeting the requirement of section
182(a)(1) of the CAA. With the exception of Michigan's PSD SIP, which
is discussed above, no Detroit-Ann Arbor area SIP provisions are
currently disapproved, conditionally approved, or partially approved.
3. The Improvement in Air Quality Is Due to Permanent and Enforceable
Reductions in Emissions Resulting From Implementation of the SIP and
Applicable Federal Air Pollution Control Regulations and Other
Permanent and Enforceable Reductions (Section 107(d)(3)(E)(iii))
EPA finds that Michigan has demonstrated that the observed air
quality improvement in the Detroit-Ann Arbor area is due to permanent
and enforceable reductions in emissions resulting from implementation
of the
[[Page 18486]]
SIP, Federal measures, and other State-adopted measures.
In making this demonstration, the State has calculated the change
in emissions between 2005 and 2007. Michigan used the 2005
nonattainment area base year emissions inventory required under section
182(a)(1) of the CAA as the nonattainment inventory for redesignation
purposes. The State developed an attainment inventory for 2007, one of
the years the Detroit-Ann Arbor area monitored attainment. The
reduction in emissions and the corresponding improvement in air quality
over this time period can be attributed to a number of regulatory
control measures that Detroit-Ann Arbor and upwind areas have
implemented in recent years.
a. Permanent and Enforceable Controls Implemented
The following is a discussion of permanent and enforceable measures
that have been implemented in the areas:
i. VOC Controls. Michigan developed a rule to limit VOC emissions
from consumer and commercial products. This rule was approved by EPA on
October 26, 2007 (72 FR 60781). Michigan also adopted a lower Reid
Vapor Pressure (RVP) fuel requirement for gasoline distributed in the
Detroit-Ann Arbor area. EPA approved the SIP revision on January 31,
2007 (72 FR 4432).
ii. NOX rules. MDEQ developed rules governing the
control of NOX emissions from Electric Generating Units
(EGUs), major non-EGU industrial boilers, and major cement kilns. EPA
approved Michigan's rules as fulfilling Phase I of the NOX
SIP Call on May 4, 2005 (70 FR 23029), and as fulfilling Phase II of
the SIP Call on January 29, 2008 (73 FR 5101).
iii. Federal Emission Control Measures. Reductions in VOC and
NOX emissions have occurred statewide and 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 National Low Emission Vehicle (NLEV) program,
Tier 2 emission standards for vehicles, gasoline sulfur limits, low
sulfur diesel fuel standards, and heavy-duty diesel engine standards.
In addition, in 2004, EPA issued the Clean Air Non-road Diesel Rule (69
FR 38958 (July 29, 2004)). EPA expects this rule to reduce off-road
diesel emissions through 2010, with emission reductions starting in
2008.
iv. Control Measures in Upwind Areas. On October 27, 1998 (63 FR
57356), EPA issued a NOX SIP call requiring the District of
Columbia and 22 states to reduce emissions of NOX. The
reduction in NOX emissions has resulted in lower
concentrations of transported ozone entering the Detroit-Ann Arbor
area. Emission reductions resulting from regulations developed in
response to the NOX SIP call are permanent and enforceable.
b. Emission Reductions
Michigan is using 2005 for the nonattainment inventory and 2007 for
the attainment inventory. MDEQ provided a 2005 base year inventory to
the Lake Michigan Air Directors Consortium (LADCO). The main purpose of
LADCO is to provide technical assessments for and assistance to its
member states on problems of air quality. LADCO's primary geographic
focus is the area encompassed by its member states (Illinois, Indiana,
Michigan, Ohio, and Wisconsin) and any areas which affect air quality
in its member states. The base year inventory was processed by LADCO to
develop summer day emissions for use in regional air quality analyses
and attainment demonstration modeling. The point source data was
obtained from the Michigan Air Emissions Reporting System. Area source
emissions were taken from the 2005 emissions inventory developed by
MDEQ to comply with the Consolidated Emission Reporting Rule for the
EPA National Emissions Inventory (NEI). Nonroad mobile emissions were
generated for LADCO using EPA's National Mobile Inventory Model (NMIM),
with the following exceptions: recreational motorboat populations and
spatial surrogates were updated; emissions estimates were developed for
aircraft, commercial marine vessels, and railroads, three nonroad
categories not included in NMIM; and, onroad mobile emissions were
calculated by the Southeast Michigan Council of Governments (SEMCOG)
using the MOBILE6.2 emissions model.
For the 2007 attainment year inventory, point source emissions were
taken from the Michigan Air Emissions Reporting System. Onroad mobile
emissions were calculated by SEMCOG using the MOBILE6.2 emissions
model. For the remaining categories, MDEQ used the 2005 inventory
described above along with 2002, 2009, and 2018 emissions inventories
developed by LADCO to interpolate point, area, and nonroad mobile
emissions for 2007. For each combination of county and pollutant, a
linear regression analysis was performed using the values from the
established inventories for 2002, 2005, 2009, and 2018. From the best-
fit line established by the regression analysis, values for 2007 were
obtained.
Using the inventories described above, Michigan's submittal
documents changes in VOC and NOX emissions from 2005 to 2007
for the Detroit-Ann Arbor area. Emissions data are shown in Tables 3
through 5 below.
TABLE 3--Detroit-Ann Arbor Area VOC and NOX Emissions for Nonattainment Year 2005
[tpd]
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Point Area Onroad Nonroad Total
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VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX
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Livingston.......................................... 0.66 1.89 11.92 1.00 5.00 16.20 9.61 4.38 27.19 23.47
Macomb.............................................. 9.62 2.30 38.72 2.36 16.50 40.60 23.12 19.27 87.96 64.53
Monroe.............................................. 11.16 104.83 9.85 0.93 5.20 16.40 9.56 7.69 35.77 129.85
Oakland............................................. 9.80 3.10 55.34 4.19 34.00 88.90 46.35 25.52 145.49 121.71
St. Clair........................................... 5.55 68.97 5.20 0.67 4.70 11.60 11.35 7.83 26.80 89.07
Washtenaw........................................... 1.42 3.82 17.23 0.97 10.30 30.90 12.47 9.99 41.42 45.68
Wayne............................................... 24.27 63.11 82.11 5.38 50.40 130.80 39.97 45.09 196.75 244.38
Lenawee............................................. 1.21 0.37 8.89 0.73 2.70 5.30 4.37 3.54 17.17 9.94
---------------------------------------------------------------------------------------------------
Area Total...................................... 63.69 248.39 229.26 16.23 128.80 340.70 156.80 123.31 578.55 728.63
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[[Page 18487]]
Table 4--Detroit-Ann Arbor Area VOC and NOX Emissions for Attainment Year 2007
[tpd]
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Point Area Onroad Nonroad Total
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VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Livingston.......................................... 0.86 2.55 8.94 0.79 4.40 13.50 9.07 3.97 23.27 20.81
Macomb.............................................. 10.72 2.39 36.09 3.87 13.80 33.10 21.96 17.00 82.57 56.36
Monroe.............................................. 9.41 65.79 9.92 0.73 4.50 13.60 9.02 6.91 32.85 87.03
Oakland............................................. 9.03 3.36 55.39 6.07 28.50 72.60 44.15 22.85 137.07 104.88
St. Clair........................................... 4.99 65.99 6.92 0.89 3.90 9.50 10.86 7.08 26.67 83.46
Washtenaw........................................... 1.82 3.55 16.70 1.47 8.80 25.60 11.88 8.93 39.20 39.55
Wayne............................................... 21.67 65.19 79.20 8.58 41.80 105.90 38.63 40.27 181.30 219.94
Lenawee............................................. 1.28 0.35 6.05 0.55 2.10 4.40 4.13 3.32 13.56 8.62
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Area Total...................................... 59.78 209.17 219.21 22.95 107.80 278.20 149.70 110.33 536.49 620.65
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Table 5--Comparison of Detroit-Ann Arbor Area 2005 and 2007 VOC and NOX Emissions
[tpd]
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VOC NOX
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Net change (2005- Net change (2005-
2005 2007 2007) 2005 2007 2007)
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Point................................. 63.69 59.78 -3.91 248.39 209.17 -39.22
Area.................................. 229.26 219.21 -10.05 16.23 22.95 6.72
Onroad................................ 128.80 107.80 -21.00 340.70 278.20 -62.50
Nonroad............................... 156.80 149.70 -7.10 123.31 110.33 -12.98
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Total............................. 578.55 536.49 -42.06 728.63 620.65 -107.98
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Table 5 shows that the Detroit-Ann Arbor area reduced VOC emissions
by 42.06 tpd and NOX emissions by 107.98 tpd between 2005
and 2007. Based on the information summarized above, Michigan has
adequately demonstrated that the improvement in air quality is due to
permanent and enforceable emissions reductions.
4. The Area Has a Fully Approved Maintenance Plan Pursuant to Section
175a of the CAA (Section 107(d)(3)(E)(iv))
In conjunction with its request to redesignate the Detroit-Ann
Arbor nonattainment area to attainment status, Michigan submitted a SIP
revision to provide for the maintenance of the 8-hour ozone NAAQS in
the area through 2020.
a. What Is Required in a Maintenance Plan?
Section 175A of the CAA sets forth the required elements of a
maintenance plan for areas seeking redesignation from nonattainment to
attainment. Under section 175A, the plan must demonstrate continued
attainment of the applicable NAAQS for at least ten years after the
Administrator approves a redesignation to attainment. Eight years after
the redesignation, the state must submit a revised maintenance plan
which demonstrates that attainment will continue to be maintained for
ten years following the initial ten-year maintenance period. To address
the possibility of future NAAQS violations, the maintenance plan must
contain contingency measures with a schedule for implementation as EPA
deems necessary to assure prompt correction of any future 8-hour ozone
violations.
The September 4, 1992, John Calcagni memorandum provides additional
guidance on the content of a maintenance plan. The memorandum clarifies
that an ozone maintenance plan should address the following items: the
attainment VOC and NOX emissions inventories, a maintenance
demonstration showing maintenance for the ten years of the maintenance
period, a commitment to maintain the existing monitoring network,
factors and procedures to be used for verification of continued
attainment of the NAAQS, and a contingency plan to prevent or correct
future violations of the NAAQS.
b. Attainment Inventory
The MDEQ developed an emissions inventory for 2007, one of the
years Michigan used to demonstrate monitored attainment of the 8-hour
NAAQS, as described above. The attainment level of emissions is
summarized in Table 4, above.
c. Demonstration of Maintenance
Along with the redesignation request, Michigan submitted a revision
to the 8-hour ozone SIP to include a maintenance plan for the Detroit-
Ann Arbor area, in compliance with section 175A of the CAA. This
demonstration shows maintenance of the 8-hour ozone standard through
2020 by assuring that current and future emissions of VOC and
NOX for the Detroit-Ann Arbor area remain at or below
attainment year emission levels. A maintenance demonstration need not
be based on modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001),
Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004). See also 66 FR
53094, 53099-53100 (October 19, 2001), 68 FR 25413, 25430-25432 (May
12, 2003).
Michigan is using emissions inventories for the years 2009 and 2020
to demonstrate maintenance. Onroad mobile source emissions were
estimated by SEMCOG using MOBILE6.2. For the 2020 inventory, MDEQ used
the 2005 inventory described above along with 2002, 2009, and 2018
emissions inventories developed by LADCO to interpolate emissions
estimates for the remaining source sectors. For each combination of
county and pollutant, a linear regression analysis was performed using
the values from the established inventories for 2002, 2005, 2009, and
2018. From the best-fit line
[[Page 18488]]
established by the regression analysis, values for 2020 were obtained.
Emissions estimates are presented in Table 6 below.
Table 6--Comparison of 2007--2020 VOC and NOX Emissions
[tpd]
----------------------------------------------------------------------------------------------------------------
VOC NOX
--------------------------------------------------------------------------------
Net change Net change
2007 2009 2020 2007-2020 2007 2009 2020 2007-2020
----------------------------------------------------------------------------------------------------------------
Point.......................... 59.78 52.48 59.37 -0.41 209.17 182.56 225.34 16.17
Area........................... 219.21 211.95 219.56 0.35 22.95 26.04 27.50 4.55
Onroad......................... 107.80 95.10 50.30 -57.50 278.20 226.40 69.30 -208.90
Nonroad........................ 149.70 131.21 102.00 -47.70 110.33 100.80 62.29 -48.04
--------------------------------------------------------------------------------
Total...................... 536.49 490.74 431.23 -105.26 620.65 535.80 384.43 -236.22
----------------------------------------------------------------------------------------------------------------
The emission projections show that MDEQ does not expect emissions
in the Detroit-Ann Arbor area to exceed the level of the 2007
attainment year inventory during the maintenance period. In the
Detroit-Ann Arbor area, MDEQ projects that VOC and NOX
emissions will decrease by 105.26 tpd and 236.22 tpd, respectively.
As part of its maintenance plan, the State elected to include a
``safety margin'' for the area. A ``safety margin'' is the difference
between the attainment level of emissions (from all sources) and the
projected level of emissions (from all sources) in the maintenance plan
which continues to demonstrate attainment of the standard. The
attainment level of emissions is the level of emissions during one of
the years in which the area met the NAAQS. The Detroit-Ann Arbor area
attained the 8-hour ozone NAAQS during the 2006-2008 time period.
Michigan used 2007 as the attainment level of emissions for the area.
In the maintenance plan, MDEQ projected emission levels for 2020. For
the Detroit-Ann Arbor area, the emissions from point, area, nonroad,
and mobile sources in 2007 equaled 536.49 tpd of VOC. MDEQ projected
VOC emissions for the year 2020 to be 431.23 tpd of VOC. The SIP
submission demonstrates that the Detroit-Ann Arbor area will continue
to maintain the standard with emissions at this level. The safety
margin for VOC is calculated to be the difference between these amounts
or, in this case, 105.26 tpd of VOC for 2020. By this same method,
236.22 tpd (i.e., 620.65 tpd less 384.43 tpd) is the safety margin for
NOX for 2020. The safety margin, or a portion thereof, can
be allocated to any of the source categories, as long as the total
attainment level of emissions is maintained.
d. Monitoring Network
Michigan currently operates eight ozone monitors in the Detroit-Ann
Arbor area. MDEQ has committed to continue to operate an EPA-approved
monitoring network as necessary to demonstrate ongoing compliance with
the NAAQS. MDEQ remains obligated to continue to quality assure
monitoring data in accordance with 40 CFR part 58 and enter all data
into the Air Quality System in accordance with Federal guidelines.
e. Verification of Continued Attainment
Continued attainment of the ozone NAAQS in the Detroit-Ann Arbor
area depends, in part, on the State's efforts toward tracking
indicators of continued attainment during the maintenance period.
Michigan's plan for verifying continued attainment of the 8-hour
standard in the Detroit-Ann Arbor area consists of plans to continue
ambient ozone monitoring in accordance with the requirements of 40 CFR
part 58. MDEQ will also continue to develop and submit periodic
emission inventories as required by the Federal Consolidated Emissions
Reporting Rule (67 FR 39602) to track future levels of emissions.
f. Contingency Plan
The contingency plan provisions are designed to promptly correct or
prevent a violation of the NAAQS that might occur after redesignation
of an area to attainment. Section 175A of the CAA requires that a
maintenance plan include such contingency measures as EPA deems
necessary to assure that the state will promptly correct a violation of
the NAAQS that occurs after redesignation. The maintenance plan should
identify the contingency measures to be adopted, a schedule and
procedure for adoption and implementation of the contingency measures,
and a time limit for action by the state. The state should also
identify specific indicators to be used to determine when the
contingency measures need to be adopted and implemented. The
maintenance plan must include a requirement that the state will
implement all measures with respect to control of the pollutant(s) that
were contained in the SIP before redesignation of the area to
attainment. See section 175A(d) of the CAA.
As required by section 175A of the CAA, Michigan has adopted a
contingency plan for the Detroit-Ann Arbor area to address possible
future ozone air quality problems. The contingency plan adopted by
Michigan has two levels of response, depending on whether a violation
of the 8-hour ozone standard is only threatened (Action Level Response)
or has occurred (Contingency Measure Response).
An Action Level Response will be triggered when a two-year average
fourth-high monitored daily peak 8-hour ozone concentration of 0.085
ppm or higher is monitored within the maintenance area. An Action Level
Response will consist of Michigan performing a review of the
circumstances leading to the high monitored values. MDEQ will conduct
this review within six months following the close of the ozone season.
If MDEQ determines that contingency measure implementation is necessary
to prevent a future violation of the NAAQS, MDEQ will select and
implement a measure that can be implemented promptly.
A Contingency Measure Response will be triggered by a violation of
the standard (a three-year average of the annual fourth-highest daily
maximum 8-hour average ozone concentration of 0.085 ppm or greater).
When a Contingency Measure Response is triggered, Michigan will select
one or more control measures for implementation. The timing for
implementation of a contingency
[[Page 18489]]
measure is dependent on the process needed for legal adoption and
source compliance, which varies for each measure. MDEQ will expedite
the process of adopting and implementing the selected measures, with a
goal of having measures in place as expeditiously as practicable and
within 18 months. EPA is interpreting this commitment to mean that the
measure will be in place within 18 months.
MDEQ included the following list of potential contingency measures
in the maintenance plan:
i. Reduced VOC content in architectural, industrial, and
maintenance (AIM) coatings rule;
ii. Auto body refinisher self-certification audit program;
iii. Reduced VOC degreasing/solvent cleaning rule;
iv. Diesel retrofit program;
v. Reduced idling program;
vi. Portable fuel container replacement rule; and,
vii. Food preparation flame broiler control rule.
g. Provisions for Future Updates of the Ozone Maintenance Plan
As required by section 175A(b) of the CAA, Michigan commits to
submit to the EPA an updated ozone maintenance plan eight years after
redesignation of the Detroit-Ann Arbor area to cover an additional ten-
year period beyond the initial ten-year maintenance period. As required
by section 175(A) of the CAA, Michigan has committed to retain the VOC
and NOX control measures contained in the SIP prior to
redesignation. Michigan also commits to submitting to EPA any
contingency measures adopted under the section 175A maintenance plan.
EPA has concluded that the maintenance plan adequately addresses
the five basic components of a maintenance plan: attainment inventory,
maintenance demonstration, monitoring network, verification of
continued attainment, and a contingency plan. The maintenance plan SIP
revision submitted by Michigan for the Detroit-Ann Arbor area meets the
requirements of section 175A of the CAA.
B. Adequacy of Michigan's MVEBs
1. How Are MVEBs Developed and What Are the MVEBs for the Detroit-Ann
Arbor Area?
Under the CAA, states are required to submit, at various times,
control strategy SIP revisions and ozone maintenance plans for ozone
nonattainment areas and for areas seeking redesignations to attainment
of the ozone standard. These emission control strategy SIP revisions
(e.g., reasonable further progress SIP and attainment demonstration SIP
revisions) and ozone maintenance plans create MVEBs based on onroad
mobile source emissions for criteria pollutants and/or their precursors
to address pollution from cars and trucks. The MVEBs are the portions
of the total allowable emissions that are allocated to highway and
transit vehicle use that, together with emissions from other sources in
the area, will provide for attainment or maintenance.
Under 40 CFR part 93, a MVEB for an area seeking a redesignation to
attainment is established for the last year of the maintenance plan.
The MVEB serves as a ceiling on emissions from an area's planned
transportation system. The MVEB concept is further explained in the
preamble to the November 24, 1993, transportation conformity rule (58
FR 62188). The preamble also describes how to establish the MVEB in the
SIP and how to revise the MVEB if needed.
Under section 176(c) of the CAA, new transportation projects, such
as the construction of new highways, must ``conform'' to (i.e., be
consistent with) the part of the SIP that addresses emissions from cars
and trucks. Conformity to the SIP means that transportation activities
will not cause new air quality violations, worsen existing air quality
violations, or delay timely attainment of the NAAQS. If a
transportation plan does not conform, most new transportation projects
that would expand the capacity of roadways cannot go forward.
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and
procedures for demonstrating and assuring conformity of such
transportation activities to a SIP.
When reviewing SIP revisions containing MVEBs, including attainment
strategies, rate-of-progress plans, and maintenance plans, EPA must
affirmatively find that the MVEBs are ``adequate'' for use in
determining transportation conformity. Once EPA affirmatively finds the
submitted MVEBs to be adequate for transportation conformity purposes,
the MVEBs are used by state and Federal agencies in determining whether
proposed transportation projects conform to the SIP as required by
section 176(c) of the CAA. EPA's substantive criteria for determining
the adequacy of MVEBs are set out in 40 CFR 93.118(e)(4).
EPA's process for determining adequacy of a MVEB consists of three
basic steps: (1) Providing public notification of a SIP submission; (2)
providing the public the opportunity to comment on the MVEB during a
public comment period; and, (3) EPA's finding of adequacy. The process
of determining the adequacy of submitted SIP MVEBs was initially
outlined in EPA's May 14, 1999, guidance, ``Conformity Guidance on
Implementation of March 2, 1999, Conformity Court Decision.'' This
guidance was codified in the Transportation Conformity Rule Amendments
for the ``New 8-Hour Ozone and PM 2.5 National Ambient Air Quality
Standards and Miscellaneous Revisions for Existing Areas;
Transportation Conformity Rule Amendments--Response to Court Decision
and Additional Rule Change,'' published on July 1, 2004 (69 FR 40004).
EPA follows this guidance and rulemaking in making its adequacy
determinations.
The Detroit-Ann Arbor area's maintenance plan contains new VOC and
NOX MVEBs for the year 2020. The availability of the SIP
submission with these 2020 MVEBs was announced for public comment on
EPA's Adequacy Web site on March 12, 2009, at: http://www.epa.gov/otaq/stateresources/transconf/currsips.htm. The EPA public comment period on
adequacy of the 2020 MVEBs for the Detroit-Ann Arbor area closed on
April 13, 2009. EPA will address any comments in the final rule.
EPA, through this rulemaking, is proposing to find adequate and
approve the MVEBs for use to determine transportation conformity in the
Detroit-Ann Arbor area because EPA has determined that the area can
maintain attainment of the 8-hour ozone NAAQS for the relevant
maintenance period with mobile source emissions at the levels of the
MVEBs. In developing MVEBs for the Detroit-Ann Arbor Area, MDEQ has
established separate MVEBS for the SEMCOG region (Livingston, Macomb,
Monroe, Oakland, St. Clair, Washtenaw, and Wayne Counties) and for
Lenawee County. MDEQ has determined the 2020 MVEBs for the SEMCOG
region to be 106 tpd for VOC and 274 tpd for NOX. MDEQ has
determined the 2020 MVEBs for Lenawee County to be 2.1 tpd for VOC and
4.4 tpd for NOX. These MVEBs exceed the onroad mobile source
VOC and NOX emissions projected by MDEQ for 2020, as
summarized in Table 6 above (``onroad'' source sector). MDEQ decided to
include safety margins (described further below) of 58.2 tpd for VOC
(57 tpd and 1.2 tpd for the SEMCOG region and Lenawee County,
respectively) and 211.1 tpd for NOX (208 tpd and 3.1 tpd for
the SEMCOG region and Lenawee County, respectively) MVEBs to provide
for mobile source growth. Michigan has
[[Page 18490]]
demonstrated that the Detroit-Ann Arbor area can maintain the 8-hour
ozone NAAQS with mobile source emissions of 108.1 tpd of VOC (the sum
of 106 tpd for the SEMCOG region and 2.1 tpd for Lenawee County) and
278.4 tpd for NOX (the sum of 274 tpd for the SEMCOG region
and 4.4 tpd for Lenawee County), including the allocated safety
margins, since emissions will still remain under attainment year
emission levels.
2. What Is a Safety Margin?
A ``safety margin'' is the difference between the attainment level
of emissions (from all sources) and the projected level of emissions
(from all sources) in the maintenance plan. As noted in Table 6, the
Detroit-Ann Arbor area emissions are projected to have safety margins
of 105.26 tpd for VOC and 236.22 tpd for NOX in 2020 (the
difference between the attainment year, 2007, emissions and the
projected 2020 emissions for all sources in the Detroit-Ann Arbor
area). Even if emissions reached the full level of the safety margin,
the counties would still demonstrate maintenance since emission levels
would equal those in the attainment year.
The MVEBs requested by MDEQ contain safety margins for mobile
sources smaller than the allowable safety margins reflected in the
total emissions for the Detroit-Ann Arbor area. The State is not
requesting allocation of the entire available safety margins reflected
in the demonstration of maintenance. Therefore, even though the State
is requesting MVEBs that exceed the projected onroad mobile source
emissions for 2020 contained in the demonstration of maintenance, the
increase in onroad mobile source emissions that can be considered for
transportation conformity purposes is well within the safety margins of
the ozone maintenance demonstration. Further, once allocated to mobile
sources, these safety margins will not be available for use by other
sources.
C. 2005 Base Year Emissions Inventory
As discussed above, section 182(a)(1) of the CAA requires areas
classified as marginal and above to submit a base year emissions
inventory. As part of Michigan's redesignation request for the Detroit-
Ann Arbor area, the State submitted a 2005 base year emissions
inventory. This inventory is discussed above and summarized in Table 3.
EPA is proposing to approve this 2005 base year inventory as meeting
the section 182(a)(1) emissions inventory requirement.
VIII. What Action Is EPA Taking?
EPA is proposing to make a determination that the Detroit-Ann Arbor
area has attained the 8-hour ozone NAAQS. EPA is also proposing to
approve the maintenance plan SIP revision for the Detroit-Ann Arbor
area. EPA's proposed approval of the maintenance plan is based on
Michigan's demonstration that the plan meets the requirements of
section 175A of the CAA, as described more fully above. After
evaluating Michigan's redesignation request, EPA has determined that it
meets the redesignation criteria set forth in section 107(d)(3)(E) of
the CAA. Therefore, EPA is proposing to approve the redesignation of
the Detroit-Ann Arbor area from nonattainment to attainment for the 8-
hour ozone NAAQS. The final approval of this redesignation request
would change the official designation for the Detroit-Ann Arbor area
from nonattainment to attainment for the 8-hour ozone standard. EPA is
proposing to approve the 2005 base year emissions inventory for the
Detroit-Ann Arbor area as meeting the requirements of section 182(a)(1)
of the CAA. Finally, EPA also finds adequate and is proposing to
approve the State's 2020 Motor Vehicle Emission Budgets (MVEBs) for the
Detroit-Ann Arbor area.
IX. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the CAA and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. Accordingly,
this action merely approves state law as meeting Federal requirements
and does not impose additional requirements beyond those imposed by
state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen oxides, Ozone, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: April 13, 2009.
Walter W. Kovalick Jr.,
Acting Regional Administrator, Region 5.
[FR Doc. E9-9217 Filed 4-22-09; 8:45 am]
BILLING CODE 6560-50-P