[Federal Register Volume 59, Number 116 (Friday, June 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14416]


[[Page Unknown]]

[Federal Register: June 17, 1994]


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DEPARTMENT OF ENERGY
[FRL-4998-6]

 

Conformity; General Preamble for Exemption From Nitrogen Oxides 
Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: General preamble for future proposed rulemakings.

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SUMMARY: This General Preamble clarifies how EPA believes that 
nonclassifiable (i.e., submarginal, transitional, and incomplete/no 
data) ozone nonattainment areas which are outside the Northeast ozone 
transport region and have ambient monitoring data demonstrating 
attainment of the national ambient air quality standard for ozone may 
be exempted from the conformity rules' nitrogen oxides (NOx) 
requirements. This notice also references a recent memorandum which 
states EPA's preliminary interpretation for such ozone nonattainment 
areas which are classified as marginal or above.
    Clarification of EPA policy for areas with monitoring data which 
demonstrates attainment is particularly important because many areas 
already have such data and appear to qualify for exemption from the 
conformity NOx requirements.
    In order to avoid repetition, this General Preamble describes 
guidance on NOx exemptions with respect to the transportation 
conformity rule. However, this guidance for transportation conformity 
is intended to also apply with respect to general conformity.
    This General Preamble explains EPA's policy generally for future 
notice-and-comment rulemakings taking action on requests for NOx 
exemptions for specific areas. It contains EPA's preliminary 
interpretations of relevant provisions of the Clean Air Act and the 
conformity rules. The interpretations contained herein are not binding 
as a matter of law until final rulemaking action is taken on each 
specific area. Opportunity for public comment on NOx exemption 
determinations made by EPA will be provided separately for each area 
during these individual rulemakings.

FOR FURTHER INFORMATION CONTACT: For issues related to transportation 
conformity, Kathryn Sargeant, Emission Control Strategies Branch, 
Emission Planning and Strategies Division, U.S. Environmental 
Protection Agency, 2565 Plymouth Road, Ann Arbor, MI 48105. (313) 668-
4441. For issues related to redesignation, David Cole, (919) 541-5565, 
and for issues related to general conformity and NOx RACT and NSR, Doug 
Grano, (919) 541-3292, Ozone/CO Programs Branch (MD-15), Air Quality 
Management Division, U.S. Environmental Protection Agency, Research 
Triangle Park, North Carolina 27711.

SUPPLEMENTARY INFORMATION:

I. Background

A. Transportation Conformity Rule

    The transportation conformity final rule, entitled ``Criteria and 
Procedures for Determining Conformity to State or Federal 
Implementation Plans of Transportation Plans, Programs, and Projects 
Funded or Approved Under title 23 U.S.C. or the Federal Transit Act,'' 
was published in the Federal Register on November 24, 1993 (58 FR 
62188). This action was required under section 176(c)(4) of the Clean 
Air Act, as amended in 1990.
    Conformity to an implementation plan is defined in the Clean Air 
Act as conformity to an implementation plan's purpose of eliminating or 
reducing the severity and number of violations of the national ambient 
air quality standards and achieving expeditious attainment of such 
standards. In addition, Federal activities may not cause or contribute 
to new violations of air quality standards, exacerbate existing 
violations, or interfere with timely attainment or required interim 
emission reductions towards attainment. The transportation conformity 
final rule establishes the process by which the Federal Highway 
Administration and the Federal Transit Administration of the United 
States Department of Transportation and metropolitan planning 
organizations determine the conformity of highway and transit projects. 
Under the rule, conformity applies in nonattainment and maintenance 
areas.
    The transportation conformity rule requires ozone nonattainment and 
maintenance areas to perform a regional emissions analysis of motor 
vehicle NOx emissions in order to determine the conformity of 
transportation plans and programs. This analysis must demonstrate that 
the NOx emissions which would result from the transportation 
system if the proposed transportation plan and program were implemented 
are within the total allowable level of NOx emissions from highway 
and transit motor vehicles (``motor vehicle emissions budget''), as 
identified in a submitted or approved attainment demonstration or 
maintenance plan.
    Until an attainment demonstration or (for nonclassifiable areas) a 
maintenance plan is approved by EPA, the regional emissions analysis of 
the transportation system must also satisfy the ``build/no-build 
test.'' That is, the analysis must demonstrate that emissions from the 
transportation system if the proposed transportation plan and program 
were implemented would be less than the emissions from the 
transportation system if only the previously applicable transportation 
plan and program were implemented. Furthermore, the regional emissions 
analysis must show that emissions from the transportation system if the 
transportation plan and program were implemented would be lower than 
1990 levels by any nonzero amount.
    The transportation conformity rule as currently written provides 
for an exemption from these requirements with respect to NOx if 
the Administrator determines under section 182(f) of the Clean Air Act 
that additional reductions of NOx would not contribute to 
attainment. This exemption is explicitly referred to and is described 
in similar language in Sec. 51.394(b)(3)(i) (the ``Applicability'' 
section of the rule) and in the preamble (58 FR 62197, November 24, 
1993). The language is repeated in the provisions of the rule regarding 
the motor vehicle emissions budget test (Sec. 51.428(a)(1)(ii)) and the 
``build/no-build'' test (Secs. 51.436(e), 51.438(e)), although Clean 
Air Act section 182(f) is not specifically mentioned.
    Section 182(f) of the Clean Air Act contains requirements for--and 
in some cases, exemptions for--major stationary NOx sources in 
marginal and above ozone nonattainment areas and in an ozone transport 
region. EPA guidance for application of section 182(f) in these areas 
is briefly described and referenced in the next section of this 
preamble. Because the transportation conformity rule covers all 
nonattainment areas--including nonclassifiable ozone nonattainment 
areas (i.e., submarginal, transitional, incomplete/no data areas) that 
are not necessarily covered under section 182(f)--corresponding 
guidance is needed for applying in these nonclassifiable ozone 
nonattainment areas the section 182(f) NOx exemption referenced in 
the transportation conformity rule. This guidance is described below 
(section II, ``EPA Policy'') and is consistent with the existing 
guidance that applies to the marginal and above areas outside an ozone 
transport region. The substantive test for a NOx exemption is the 
same in both sets of areas, but in nonclassifiable ozone nonattainment 
areas the effect of a NOx exemption is limited solely to the issue 
of whether such areas may be exempted from meeting the NOx 
requirements of the transportation conformity rule.

B. General Conformity

    On November 30, 1993 (58 FR 63214), EPA published the general 
conformity final rule, entitled ``Determining Conformity of General 
Federal Actions to State or Federal Implementation Plans.'' This action 
was required under section 176(c)(4) of the Clean Air Act, as amended 
in 1990.
    Like the transportation conformity rule, the general conformity 
rule exempts an area from considering NOx emissions if the area 
has been exempted under section 182(f) of the Clean Air Act (see 
definition of ``precursors of a criteria pollutant,'' 58 FR 63248).
    In order to avoid repetition, this General Preamble describes 
guidance on NOx exemptions with respect to the transportation 
conformity rule. However, this guidance for transportation conformity 
is intended to also apply with respect to general conformity.

C. Section 182(f) of the Clean Air Act

    Section 182(f) of the Clean Air Act requires states to apply the 
reasonably available control technology (RACT) and new source review 
(NSR) requirements that apply to major stationary sources of volatile 
organic compounds to major stationary sources of NOx as well. 
NOX RACT is required in moderate and above ozone areas, as well as 
in all areas within an ozone transport region. NOX NSR regulations 
are required in marginal and above ozone areas, as well as in all areas 
within an ozone transport region.
    Clean Air Act section 182(f)(1)(A) states that, for nonattainment 
areas not within an ozone transport region (as established under Clean 
Air Act section 184), these NOX requirements shall not apply if 
the Administrator determines that additional reductions of NOX 
would not contribute to attainment of the national ambient air quality 
standard (NAAQS) for ozone in the area. Furthermore, for areas within 
an ozone transport region, section 182(f)(1)(B) states that these 
stationary source NOX requirements shall not apply if additional 
NOX reductions would not produce net ozone air quality benefits in 
the region.
    EPA issued limited guidance on section 182(f) exemptions in a 
September 17, 1993 memo from Michael H. Shapiro, Acting Assistant 
Administrator for Air and Radiation, to the Regional Air Division 
Directors entitled, ``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.'' EPA issued more extensive guidance in 
a December 1993 document entitled, ``Guideline for Determining the 
Applicability of Nitrogen Oxide Requirements under section 182(f).'' 
Most recently, EPA has clarified and, in part, revised its guidance in 
a May 27, 1994 memorandum from John S. Seitz, Director of the Office of 
Air Quality Planning and Standards, to Regional Air Division Directors, 
``Section 182(f) NOX Exemptions--Revised Process and Criteria.'' 
All of these guidance documents are available by request from the 
contacts listed above.
    Taken together, these guidance documents state that if an area (not 
within an ozone transport region) has attained the ozone standard, as 
demonstrated by adequate monitoring data consistent with EPA guidance, 
it is clear that additional NOX reductions would not contribute to 
attainment. Therefore, such an area would meet the test under section 
182(f)(1)(A) for an exemption from NOX NSR and RACT requirements.

II. EPA Policy

A. Transportation Conformity and Section 182(f) Exemptions

    The transportation conformity rule states that its NOX 
provisions do not apply when the Administrator has determined under 
section 182(f) of the Clean Air Act that ``additional reductions of 
NOX would not contribute to attainment.'' Although two other 
passages of the transportation conformity rule use this language (which 
is borrowed from section 182(f)(1)(A)'s test for areas outside an ozone 
transport region) without specifically referring to section 182(f), EPA 
believes there is no appropriate basis to interpret this identical 
language differently under the transportation conformity rule than 
under the Clean Air Act. Consequently, EPA believes this common 
language should be interpreted similarly for purposes of both section 
182(f) and conformity NOX exemptions. Therefore, EPA is providing 
guidance which would exempt nonclassifiable ozone nonattainment areas 
outside an ozone transport region from the conformity rule's NOX 
provisions on the same substantive basis as the applicable section 
182(f) test.1
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    \1\ As explained in footnote 6 of the May 27, 1994 memorandum 
from John Seitz, referenced above, for purposes of the NOX 
exemption test, EPA is interpreting the term ``contribute to 
attainment'' to mean that the State (or petitioner) need only show 
whether additional NOX reductions would contribute to 
attainment, not whether such reductions would contribute to 
attainment and maintenance. EPA believes that Congress could 
reasonably have believed it appropriate to require that States 
impose reasonably available control technology (RACT) and new source 
review (NSR) requirements on NOX sources for areas in 
nonattainment, but that the States could be left to decide for 
themselves whether to impose these NOX controls or other 
measures for maintenance purposes, even if these controls could 
``contribute'' to maintenance. EPA believes this rationale also 
applies in the conformity context, where EPA believes it is 
reasonable to allow States that have attained the NAAQS to decide 
for themselves how best to ensure maintenance of the standard. And, 
as explained below, EPA has conditioned the monitoring-based section 
182(f) and conformity exemptions on continued monitoring data that 
do not show violations of the NAAQS. This will provide an additional 
incentive for States to track NOX emissions (and limit such 
emissions, where necessary) to ensure that future violations do not 
occur.
    EPA notes that its conclusion regarding the relevance of 
maintenance may well be different for other Clean Air Act provisions 
where the test is whether emissions reduction measures are 
``necessary'' for attainment, even if maintenance is not explicitly 
mentioned. See section 211(c)(4)(C) (allowing States to overcome 
federal preemption of State fuel controls where ``necessary'' to 
achieve a NAAQS) and section 184(c) (providing for EPA approval of 
ozone transport commission recommendations of additional control 
measures ``necessary'' to bring any area in the region into 
attainment). It may make less sense to disregard maintenance to 
disallow more stringent fuel controls under section 211 or to 
disapprove additional controls under section 184 where these 
measures not only contribute to but are ``necessary'' for 
maintenance. The rationale that the State might appropriately retain 
discretion to choose other options to ensure maintenance makes less 
sense when the specific measures in question are ``necessary.''
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    The transportation conformity rule applies to all nonattainment and 
maintenance areas, and does not distinguish between nonclassifiable 
nonattainment and other nonattainment areas. Consequently, EPA 
interprets the transportation conformity rule's reference to the need 
for nonattainment areas to obtain a section 182(f) exemption in order 
to be relieved of the NOX conformity requirements to include 
nonclassifiable ozone nonattainment areas (i.e., submarginal, 
transitional, incomplete/no data areas), even though such areas are not 
subject to Clean Air Act section 182(f) itself. This means that ozone 
nonattainment areas, including nonclassifiable ozone nonattainment 
areas, can only be exempted from the NOX provisions of the 
transportation conformity rule if EPA determines that the area 
satisfies the substantive test required for an areawide section 182(f) 
exemption, through a process similar to that required for section 
182(f) exemptions which are not related to conformity.
    Thus, for nonclassifiable ozone nonattainment areas outside the 
Northeast ozone transport region, EPA will consider requests for 
determinations that additional NOX reductions would not contribute 
to attainment if such areas already have air quality data that 
demonstrate attainment of the ozone standard, that are consistent with 
40 CFR part 58 requirements, and that are recorded in EPA's Aerometric 
Information Retrieval System (AIRS). Once made, this determination 
would relieve an area of the transportation conformity rule's NOX 
provisions. A more thorough explanation of the conditions and process 
for obtaining the 182(f) exemption is given in the May 27, 1994 Seitz 
memorandum.

B. Condition on NOX Exemptions for Areas Outside the Ozone 
Transport Region With Monitoring Data Demonstrating Attainment

    If a NOX transportation conformity exemption request is based 
solely on monitoring data demonstrating attainment, EPA's approval of 
the exemption, if otherwise warranted, will be granted on a contingent 
basis, i.e., the exemption would last for only as long as the area's 
monitoring data continues to demonstrate attainment. If subsequently it 
is determined that the area has violated the standard, the exemption, 
as of the date of the determination, would no longer apply. EPA would 
notify the state that the exemption no longer applies, and would also 
provide notice to the public in the Federal Register. Existing 
transportation plans and TIPs and past conformity determinations will 
not be affected by a determination that the NOX exemption no 
longer applies, but new conformity determinations would have to observe 
the NOX requirements of the conformity rule. The State must 
continue to operate an appropriate air quality monitoring network, in 
accordance with 40 CFR part 58, to verify the attainment status of the 
area. The air quality data relied on for the above determinations must 
be consistent with 40 CFR part 58 requirements and other relevant EPA 
guidance and recorded in EPA's Aorometric Information Retrieval System 
(AIRS).

C. Areas Inside an Ozone Transport Region

    Section 182(f) of the Clean Air Act provides a different test for 
exempting areas in an ozone transport region from NOX requirements 
(see section I.C. of this preamble). In particular, that test requires 
a demonstration that shows additional NOX reductions would not 
produce net ozone benefits in the transport region as a whole. Since 
the requirement for meeting this test is substantially different from 
that needed to meet the contribute-to-attainment test in section 
182(f)(1)(A), and since the language in the conformity rule clearly 
does not reflect the language of the test provided for areas in an 
ozone transport region, the determination of how such areas would 
qualify for an exemption from the rule's NOX requirements merits 
more consideration before EPA can issue appropriate guidance. Today's 
guidance therefore applies only to NOX exemptions for areas 
outside the Ozone Transport Region.
    As noted previously, requests for conformity NOX exemptions 
must consider the nonattainment area as a whole. With respect to 
transportation conformity, NOX exemptions will not be granted for 
portions of nonattainment areas. Therefore, nonattainment areas with 
portions both inside and outside the Ozone Transport Region will be 
treated for purposes of such exemption requests as areas inside the 
Ozone Transport Region, and for the present time, will not be eligible 
for an exemption based on monitoring data as described in this notice.
    EPA will give further consideration to areas in the Ozone Transport 
Region, and if EPA does propose to exempt some of these areas, they 
will be addressed in state-specific rulemaking notices unless another 
general preamble providing guidance for such areas is published first.

III. Process for Receiving a NOX Exemption Based on Monitoring 
Data for Nonclassifiable Areas

    EPA believes that section 182(f) sets up two separate procedures by 
which EPA may act on NOX exemption requests. Subsections 182(f) 
(1) and (2) direct that action on NOX exemption determination 
requests should take place ``when [EPA] approves a plan or plan 
revision.'' This language appears to contemplate that exemption 
requests submitted under these paragraphs are limited to states, since 
states are the entities authorized under the Act to submit plans or 
plan revisions. By contrast, subsection 182(f)(3) provides that 
``person[s]2'' may petition for a NOX determination ``at any 
time'' after the ozone precursor study required under section 185B of 
the Act is finalized,\3\ and gives EPA a limit of six months after 
filing to grant or deny such petitions. Although subsection 182(f)(3) 
references section 182(f)(1), EPA believes that paragraph (f)(3)'s 
reference to paragraph (f)(1) encompasses only the substantive tests in 
paragraph (f)(1) (and, by extension, paragraph (f)(2)), not the 
requirement in paragraph (f)(1) for EPA to grant exemptions only when 
acting on plan revisions.
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    \2\Section 302(e) of the Act defines the term ``person'' to 
include states.
    \3\The final section 185B report was issued July 30, 1993.
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    Accordingly, petitions submitted under subsection 182(f)(3) are not 
required to be submitted as state implementation plan (SIP) revisions. 
Consequently, the state is not required under the Act to hold a public 
hearing in order to petition for an areawide NOX exemption 
determination under section 182(f)(3) (see Clean Air Act sections 
110(a) (1) and (2)). For similar reasons, if the state is submitting an 
areawide petition under subsection 182(f)(3), it is unnecessary to have 
the Governor submit the petition. However, because of the need for 
consistency with the AIRS data and the requirements of 40 CFR part 58, 
EPA believes that, particularly in cases where the NOX exemption 
request (including a request for exemption from the NOX 
requirements of the conformity rules) is based on monitoring data, if 
such data is contained in a petition submitted by a person other than 
the state, the petition should be coordinated with the state air 
agency. Lack of endorsement by the state air agency will require more 
scrutiny by EPA, and therefore EPA's processing of the petition will 
likely take more time.
    EPA will grant or deny a petition for an areawide NOX 
transportation conformity exemption through a full rulemaking process. 
This may involve a direct final rule or a notice of proposed rulemaking 
followed by a final rule. Either process allows opportunity for public 
comment. For areas which are relying on monitoring data which 
demonstrates attainment, the notice and comment will provide 
opportunity for comment on the preliminary interpretations contained in 
this General Preamble. These rulemakings will also offer opportunity 
for comment on the appropriateness of using monitoring data which is 
consistent with the requirements in 40 CFR part 58 and consistent with 
the data recorded in AIRS as the basis of EPA's approval and rescission 
of the contingent NOX exemption. If EPA issues a final rulemaking 
concluding that it will use such air quality monitoring data in making 
subsequent determination that an area has violated the standard, no 
further notice and comment will be required in order to rescind the 
NOX exemption in the event that such data subsequently indicates 
that a violation has occurred.
    EPA is preparing a delegation of authority to Regional 
Administrators to make determinations under section 182(f) for areas 
which are outside the Ozone Transport Region and which have three years 
of monitoring data demonstrating attainment. This delegation would 
allow the rulemaking for 182(f) determinations to be conducted by EPA's 
regional offices.

IV. Effect of a NOX Transportation Conformity Exemption on 
Transportation Planning

    This section applies to both classified and nonclassifiable areas.
    Once EPA makes a finding under a separate notice which grants a 
NOX transportation conformity exemption, an area is relieved of 
the transportation conformity rule's requirements for regional analysis 
of NOX emissions.
    However, EPA plans to amend the transportation conformity rule to 
require that once an area's maintenance plan is approved, any 
previously approved NOX conformity exemption no longer applies. 
The area must then demonstrate as part of its conformity determinations 
that the transportation plan and TIP are consistent with the motor 
vehicle emissions budget for NOX where such a budget is 
established by the maintenance plan. As currently written, none of the 
transportation conformity rule's NOX requirements would ever apply 
to an area once such an area had received a NOX transportation 
conformity exemption.
    EPA believes that it is crucial for maintenance areas to 
demonstrate consistency with the maintenance plan's motor vehicle 
NOX emissions budget because that budget represents the level of 
motor vehicle NOX emissions needed for continued maintenance. 
However, the maintenance plan's NOX motor vehicle emissions budget 
for the purposes of transportation conformity will not necessarily 
require annual NOX emission reductions throughout the ten-year 
period.
    EPA intends to promptly amend the conformity rule as stated above, 
so that NOX motor vehicle emissions budgets in maintenance plans 
will begin to apply at the time or shortly after those plans are 
approved.

V. Administrative Requirements

Regulatory Flexibility Act

    Whenever EPA is required by section 553 of the Administrative 
Procedures Act or any other law to publish general notice and proposed 
rulemaking for any proposed rule, EPA shall propose and make available 
for public comment an initial regulatory flexibility analysis.
    The regulatory flexibility requirements do not apply for this 
General Preamble because it is not a regulatory action in the context 
of the Administrative Procedures Act or the Regulatory Flexibility Act.

    Dated: June 8, 1994.
Carol M. Browner,
Administrator.
[FR Doc. 94-14416 Filed 6-16-94; 8:45 am]
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