U.S. Environmental Protection Agency – Tribes in Michigan

Consultation on Michigan Department of Environmental Quality (MDEQ)

Request for Ozone Redesignation

September 26, 2006

EPA Participants:

Cheryl Newton, ARD

John Mooney, ARD

Kathleen D’Agostino, ARD

Stephanie Cheaney, ARD

Rodger Field, ORC

Don de Blasio, OPA

Jennifer Manville, IEO

Tribal Participants:

David Jones, Nottawaseppi Huron Band of Potawatomi Indians

Jeremy Howe, Little River Band of Ottawa Indians

Rachel Schwarz, Little Traverse Bay Bands of Odawa Indians

Mark Parrish, Pokagon Band of Potawatomi Indians

Dwight Sargent, Inter-Tribal Council of Michigan (via telephone)

Andy Knott, Grand Traverse Band of Ottawa and Chippewa Indians (via
telephone)

Summary of Meeting:

After introductions, the participants discussed the purpose for the
meeting.  On June 15, 2004, EPA designated and classified areas under
the 8-hour ozone national ambient air quality standards (NAAQS).  As
required by Section 107(d) of the Clean Air Act (the Act), EPA
designated as non-attainment any area that was violating the 8-hour
ozone NAAQS based on the three most recent years of air quality data,
2001-2003.  At this time, several areas in Michigan were designated as
non-attainment.  EPA stated that it received requests from the Michigan
Department of Environmental Quality (MDEQ) to redesignate certain of
these counties from “non-attainment” to “attainment” for ozone
pursuant to Section 107(d)(3) on May 9, 2006 and June 13, 2006. 
Together, the requests for redesignation cover the following counties in
Michigan: Ingham, Eaton, Clinton, Kent, Ottawa, Kalamazoo, Calhoun, Van
Buren, Huron, Mason, Benzie, Lapeer, Genesee, Muskegon, Berrien, and
Cass.  

Under the Act, EPA must act upon these requests within 18 months from
when they were received.  EPA understands that Tribes in Michigan have
expressed interest in these redesignation requests.  Therefore, the
purpose of the meeting is to give the Tribes an opportunity to express
any concerns or issues which they may have with respect to the
redesignation of these areas and for EPA to provide information about
the redesignation process.  Cheryl Newton also noted that today’s
meeting is part of a regulatory process, and a summary of the meeting
would be included in the record for EPA’s rulemaking action. 

Jeremy Howe began the meeting by providing a presentation that analyzed
the data related to ozone in western Michigan as it related to MDEQ’s
requests.  Some of the primary concerns with the MDEQ redesignation
package as set forth in his presentation include: (1) high ozone levels
are not the result of local sources; (2) proposed MDEQ maintenance plan
only addresses local sources; (3) low ozone readings in 2004 are due to
weather and are a statistical outlier.  Howe stated that the Little
River Band is not opposed to redesignation.  He suggested, however, that
additional data is desirable and redesignation is premature.  

After Howe’s presentation, there was discussion on these and a number
of other issues related to the redesignation request:

Non-Local Sources of Ozone in Western Michigan

Tribal participants raised the issue that high ozone levels are not the
result of local sources.  It was agreed that that the overwhelming cause
of ozone in western Michigan could be attributed to sources outside of
Michigan.  EPA pointed out that under the Clean Air Act, the designation
of an area as “non-attainment” meant that a state must take certain
steps to improve air quality.  The steps that a state can take are
generally limited to actions that can be taken within the state’s
jurisdiction.  Accordingly, when, as in the case of western Michigan,
the sources of pollution are from outside the state, the ways to address
the sources under the Act are more complicated. 

Tribal participants asked what policies and rules have been developed by
the EPA to address the generalized regional transport of ozone affecting
non-attainment areas.  EPA answered that major actions include the NOx
SIP Call and the Clean Air Interstate Rule.  These initiatives will have
the effect of improving air quality across the eastern half of the
country.  In addition, states always have the ability to file a petition
under section 126 of the Act, to address the control of sources outside
of the state’s jurisdiction.

Designation of an area as non-attainment requires greater controls on
local sources of pollution, but the designation process is not always
the best way to address situations where the sources of pollution are
elsewhere.  However, due to the national initiatives and actions being
taken in, upwind areas, including the Chicago-Gary and Milwaukee areas,
EPA believes the trend across the region is a decrease in ozone
precursors.  

Where supported by the record, redesignation is beneficial for economics
and the environment because growth is not concentrated in certain areas.
 It indicates that the health-based standards in the Act are being met. 

Data Issues

Tribal participants raised the issue that low ozone readings in 2004 are
due to weather and are a statistical outlier.  EPA explained that the
Act allows for the redesignation of an area to attainment if that area,
among other things, has attained the NAAQS.  The 8-hour ozone NAAQS was
promulgated through notice and comment rulemaking and it was through
this process that any concerns or objections regarding the standard
should have been addressed.  EPA must make its determination regarding
whether an area has attained the 8-hour ozone NAAQS in accordance with
this promulgated standard found at 40 CFR 50.10 and Part 50, Appendix I.
 For ozone, an area may be considered to be attaining the 8-hour ozone
NAAQS if there are no violations based on three complete, consecutive
calendar years of quality-assured air quality monitoring data.  To
attain this standard, 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 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 0.084ppm 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.


The redesignation requests submitted by MDEQ included ozone monitoring
data showing attainment of the NAAQS for the 2003-2005 ozone seasons. 
(For six of the areas, monitoring data showing attainment for 2002-2004
ozone seasons was also included.)  Additionally, preliminary monitoring
data for 2006 shows that the areas continue to attain the NAAQS for the
2004-2006 time period

Maintenance Plan

Tribal participants raised the issue that MDEQ maintenance plan only
addresses local sources.  EPA agreed that MDEQ’s maintenance plan only
has jurisdiction within the state boundaries and would address actions
within the state’s control.  Overall, EPA believes that the
contingency measures included in the current MDEQ requests are stronger
than in previous submissions.  A maintenance plan, which is approved at
the same time as the redesignation of an area to attainment, must
demonstrate that the area being redesignated to attainment can maintain
the standard at least ten years after the area has been redesignated. 
The state must also commit to updating the maintenance plan eight years
after redesignation to ensure maintenance of the standard for an
additional ten years.

Tribal participants questioned what would happen if a county were to
show non-attainment again in the future.  If non-attainment levels are
reached, the State would select options from the maintenance plan.  If
the ozone levels exceed the standard after redesignation to attainment,
the NOx exemption could be lifted, but areas would not be subject to
182(f) of the Act, which only applies in non-attainment areas.  Although
the Agency has some flexibility in how to address this situation, it is
likely that EPA would allow the violation to be addressed through the
maintenance plan, as was provided for under the Act.    

Timing

Tribal participants raised the issue that it was premature to approve
MDEQ’s request.  EPA explained that the Act requires EPA to respond to
the redesignation request within 18 months.  EPA would be reviewing the
requests based on Agency guidance and regulations.  If the data met
these requirements, EPA did not see a basis for delaying a
determination. 

Section 126

Tribal participants asked why the maintenance plan did not include an
option to petition the Administrator to address emission sources from
another jurisdiction under Section 126 of the Act.  EPA responded that a
state always retains a right under Section 126 to submit a petition to
the Administrator.  However, that option would not typically be part of
a maintenance plan which addresses local measures.  It was also noted
that in Region 5, other states, notably Illinois, were making efforts to
control emission sources.   

Air Monitoring

There was some discussion of the air monitoring network in western
Michigan.  In general, it is not expected that there will be significant
changes to the monitoring network currently in place.  A review of the
monitoring network was recently competed, and any changes to the network
must be approved by EPA.  There is nothing in the redesignation request
that would impact the existing monitoring network. 

David Jones mentioned that tribes have requested funding for monitors to
obtain ozone data; however, EPA has not funded these requests.  EPA
responded that the EPA is reducing monitoring networks to reduce
redundancy and given limited available funds, we have to look carefully
at our priorities. 

Public Health Information

Tribal participants indicated that a fundamental concern about
“non-attainment” status and monitoring is the need to deliver clear
health information to tribal populations.  Tribes do not wish to convey
a false sense of complacency to tribal members from the fact that an
area is considered “attainment”.  EPA stated that it understood the
need to convey public health impact information.  Monitoring is just one
way to do that.  The Agency is willing to explore other methods to
convey the public health message based on existing data.   For example,
Air Now allows for updated information for health warnings such as Ozone
Action Days.  EPA offered to work with Tribes to develop public
education and outreach tools. 

NOX Waivers

EPA clarified that there are limited waivers in place for reasonably
available control technology controls that would have been required for
major sources of NOx under section 182(f) of the Act.  However, these
waivers do not exempt sources from construction permitting under the
Prevention of Significant Deterioration Program, the NOx SIP call, or
the Clean Air Interstate Rule (CAIR).

Procedures for Making Determination

EPA advised the Tribal participants that after we complete our review, a
notice of EPA’s determination would be published in the Federal
Register.  We agreed to notify the Tribes of our action.  Tribes will
have the opportunity to formally comment during this process.  EPA will
review and respond to all comments received.   

Tribal participants inquired as to what appeal options are available to
Tribes or others if there is a disagreement with the Agency’s
decision. EPA stated that redesignation will be a final Agency action,
published in the Federal Register, and would be subject to judicial
review within 60 days of the date of notice of action in the Federal
Register pursuant to Section 307(b) of the Act. 

Other Issues

 EPA will review the whole package for approvability, including whether
the State is following its public participation procedures; however, EPA
does not pass judgment regarding the thoroughness or quality of
states’ responses to comments received during their public process.  

EPA has not consulted LADCO staff regarding the redesignation process,
nor do we believe that it would be appropriate for us to do so. 

Next Steps

Air Division will look into the following items and provide information
to the tribes: (1) ability for tribes and others to petition EPA to
designate violating counties as non-attainment; (2) tribal authority to
petition EPA under CAA Section 126; (3) EPA authority under Section
110(a)(2)(D) for addressing out of state sources.

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