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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

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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 Start Printed Page 27426ozone 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.

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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.

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. Start Printed 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

AreaCountyMonitor2004 4th high (ppm)2005 4th high (ppm)2006 4th high (ppm)2004-2006 average (ppm)
Grand RapidsKentGrand Rapids 26-08100200.0680.0830.0820.077
Evans 26-08100220.0720.0830.0810.078
OttawaJenison 26-13900050.0690.0860.0830.079
Kalamazoo-Battle CreekKalamazooKalamazoo 26-07700080.0680.0810.0680.072
Lansing-East LansingClintonRose Lake 26-03700010.0700.0780.0710.073
InghamLansing-East Lansing 26-06500120.0680.0820.0710.073
BenzieBenzieFrankfort 26-01900030.0750.0860.0800.080
HuronHuronHarbor Beach 26-06330060.0680.0770.0730.072
MasonMasonScottville 26-10500070.0710.0850.0760.077

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 Start Printed Page 27428comment 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°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, 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 Start Printed Page 27429based 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 Start Printed Page 27430interest 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 °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 Start Printed Page 27431County'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 Start Printed Page 27432pollution 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 Start Printed Page 27433redesignation. 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 Start Printed Page 27434MVEB'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 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 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 pre-existing 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 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. Start Printed Page 27435

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))

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List of Subjects

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Dated: May 8, 2007.

Bharat Mathur,

Acting Regional Administrator, Region 5.

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Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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PART 52—[AMENDED]

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1. The authority citation for part 52 continues to read as follows:

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Authority: 42 U.S.C. 7401 et seq.

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Subpart X—Michigan

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2. Section 52.1170(e) is amended by adding entries to the table to read as follows:

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Identification of plan.
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(e) * * *

EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions

Name of nonregulatory SIP provisionApplicable geographic or nonattainment areaState submittal dateEPA approval dateComments
*         *         *         *         *         *         *
8-hour ozone maintenance planGrand 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 County5/9/06, 5/26/06, and 8/25/065/16/2007
8-hour ozone maintenance planFlint (Genesee and Lapeer Counties), Muskegon (Muskegon County), Benton Harbor (Berrien County), and Cass County6/13/06, 8/25/06, and 11/30/065/16/2007
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3. Section 52.1174 is amended by adding paragraphs (x) and (y) to read as follows:

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Control strategy: Ozone.
* * * * *

(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 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 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 Start Printed Page 27436submitted 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.

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PART 81—[AMENDED]

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

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Authority: 42 U.S.C. 7401 et seq.

End Authority Start Amendment Part

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 (8-Hour Standard)” to read as follows:

End Amendment Part
Michigan.
* * * * *

Michigan—Ozone (8-Hour Standard)

Designated areaDesignation aClassification
Date 1TypeDate 1Type
*         *          *          *         *          *          *
Benton Harbor, MI:
Berrien County5/16/2007Attainment
Benzie County, MI:
Benzie County5/16/2007Attainment
*         *          *          *         *          *          *
Cass County, MI:
Cass County5/16/2007Attainment
*         *          *          *         *          *          *
Flint, MI:
Genesee County5/16/2007Attainment
Lapeer County
Grand Rapids, MI:
Kent County5/16/2007Attainment
Ottawa County
*         *          *          *         *          *          *
Huron County, MI:
Huron County5/16/2007Attainment
*         *          *          *         *          *          *
Kalamazoo-Battle Creek, MI:
Calhoun County5/16/2007Attainment
Kalamazoo County
Van Buren County
Lansing-East Lansing, MI:
Clinton County5/16/2007Attainment
Eaton County
Ingham County
Mason County, MI:
Mason County5/16/2007Attainment
*         *          *          *         *          *          *
Muskegon, MI:
Muskegon County5/16/2007Attainment
*         *          *          *         *          *          *
a Includes Indian Country located in each county or area, except as otherwise specified.
1 This date is June 15, 2004, unless otherwise noted.
Start Printed Page 27437 End Supplemental Information

Footnotes

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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[FR Doc. E7-9289 Filed 5-15-07; 8:45 am]

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