[Federal Register Volume 59, Number 227 (Monday, November 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29195]
[Federal Register: November 28, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX-45-1-6654; FRL-5114-2]
Conditional Approval and Promulgation of Section 182(f) Exemption
to the Nitrogen Oxides (NOX) Control Requirements for the Dallas-
Fort Worth and El Paso Ozone Nonattainment Areas; Texas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this action, the EPA is conditionally approving two
petitions from the State of Texas requesting that the Dallas-Fort Worth
(DFW) and El Paso ozone nonattainment areas be exempted from NOX
control requirements of section 182(f) of the Clean Air Act (CAA) as
amended in 1990. The State of Texas bases its request for DFW upon a
demonstration that the DFW nonattainment area would attain the National
Ambient Air Quality Standards (NAAQS) for ozone by the CAA mandated
deadline without the implementation of the additional NOX controls
required under section 182(f). Similarly, the State bases its exemption
request for El Paso on a demonstration that the El Paso nonattainment
area would attain the ozone NAAQS by the CAA mandated deadline without
implementing the additional NOX controls required under section
182(f), but for emissions emanating from Mexico. These exemptions are
being requested under authority similarly granted under section 182(f)
of the CAA.
EFFECTIVE DATE: This action is effective as of November 21, 1994.
ADDRESSES: Copies of the documents relevant to these actions are
available for public inspection during normal business hours at the
following locations. The interested persons wanting to examine these
documents should make an appointment with the appropriate office at
least 24 hours before the visiting day.
U.S. Environmental Protection Agency, Region 6, Air Programs Branch
(6T6-A), 1445 Ross Avenue, Dallas, Texas 75202-2733.
The Air and Radiation Docket and Information Center, U. S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460.
Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin,
Texas 78711-3087.
FOR FURTHER INFORMATION CONTACT: Ms. Leila Yim Surratt or Mr. Quang
Nguyen, Planning Section (6T-AP), Air Programs Branch, EPA Region 6,
1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7214.
SUPPLEMENTARY INFORMATION:
I. Background
NOX are precursors to ground level (tropospheric) ozone, or
urban ``smog.'' When released into the atmosphere, NOX will react
with volatile organic compounds (VOC) in the presence of sunlight to
form ozone. Tropospheric ozone is an important factor in the nation's
urban air pollution problem.
The 1990 Clean Air Act Amendments (CAAA) made significant changes
to the air quality planning requirements for areas that do not meet the
ozone NAAQS. Subparts 1 and 2 of part D, title I of the CAA as amended
in 1990 contain the air quality planning requirements for ozone
nonattainment areas. Title I includes new requirements to control
NOX emissions in certain ozone nonattainment areas and ozone
transport regions. Section 182(f) requires States to apply the same
requirements to major stationary sources of NOX as are applied to
major stationary sources of VOC. The new NOX requirements are
reasonably available control technology (RACT) and new source review
(NSR). These provisions are explained more fully in the EPA's NOX
Supplement to the General Preamble published in the Federal Register
(FR) on November 25, 1992 (see 57 FR 55620). In addition, the general
and transportation conformity rules (conformity) required by section
176(c) contain new NOX requirements (see 58 FR 63214 and 58 FR
62188), and the vehicle inspection and maintenance rules required by
section 182(c)(3) also contain new NOX requirements (see 57 FR
52989).
El Paso, Texas was designated nonattainment for ozone and
classified as serious pursuant to sections 107(d)(4) and 181(a) of the
CAA. The El Paso nonattainment area consists of El Paso County and
shares a common airshed with Juarez, Mexico. Under section 181(a),
serious areas must attain the ozone NAAQS by 1999. DFW was classified
as moderate with an attainment deadline of 1996. The DFW nonattainment
area consists of Dallas, Tarrant, Denton, and Collin Counties. Please
reference 56 FR 56694 (November 6, 1991, codified for Texas at title 40
of the Code of Federal Regulations in Sec. 81.344).
II. Applicable EPA Guidance
The CAA specifies in section 182(f) that if one of the conditions
listed below is met, the new NOX requirements would not apply:
1. In any area, the net air quality benefits are greater without
NOX reductions from the sources concerned;
2. In a non-transport region, additional NOX reductions would
not contribute to ozone attainment in the nonattainment area; or
3. In a transport region, additional NOX reductions would not
produce net ozone benefits in the transport region.
In addition, section 182(f)(2) states that the application of the
new NOX requirements may be limited to the extent that any portion
of those reductions are demonstrated to result in ``excess reductions''
of NOx. The NOX provisions of the conformity requirements would
also not apply in an area that is granted a section 182(f) exemption
(see 58 FR 63214 and 58 FR 62188). In addition, certain NOX
provisions of the vehicle inspection and maintenance requirements would
not apply in an area that is granted a section 182(f) exemption (57 FR
52989).
The EPA's Guideline for Determining the Applicability of Nitrogen
Oxides Requirements under Section 182(f) (December 1993) describes how
the EPA intends to interpret the NOX exemption provisions of
section 182(f). In addition, a memorandum signed by John S. Seitz,
Director of the EPA Office of Air Quality Planning and Standards, dated
May 27, 1994, describes certain revisions to the process the EPA
currently intends to follow for granting exemptions from NOX
control requirements.
As described more fully in the Seitz memorandum, petitions
submitted under section 182(f)(3) are not required to be submitted as
State Implementation Plan (SIP) revisions. Consequently, the State is
not required under the CAA to hold a public hearing in order to
petition for an areawide NOX exemption determination. Similarly,
it is not necessary to have the Governor submit the petition.
III. International Border Area
Section 818 of the 1990 CAAA incorporates a new section 179B into
the CAA which contains special provisions for nonattainment areas that
are affected by emissions emanating from outside the United States. The
section 818 provisions are hereinafter referred to as section 179B.
Because the El Paso nonattainment area shares a common airshed with
Juarez, Mexico, the section 179B provisions apply to El Paso.
Under section 179B, the EPA will approve a SIP if the area meets
all other CAA requirements and establishes that implementation of the
plan would achieve attainment of the ozone standard by the CAA
statutory deadline ``but for emissions emanating from outside the
United States.'' Customarily, an area must demonstrate, using EPA
guideline models, that it would attain the relevant NAAQS. Since El
Paso and Juarez, Mexico share an airshed and data are not available for
a Juarez emission inventory, modeling of the entire airshed is not
possible at this time. Current EPA policy allows an area subject to
section 179B, such as El Paso, to perform modeling using only U.S. air
emission data. Such modeling may form an acceptable basis for
demonstrating attainment for analysis purposes required under section
179B. For areas on an international border that demonstrate attainment,
``but for emissions emanating from a foreign country,'' the provisions
of section 179B will keep such areas from being subject to the ``bump
up'' provisions of section 181(b)(2), which require reclassification to
the next higher ozone nonattainment classification if the area fails to
attain the relevant NAAQS by the applicable attainment date. See 57 FR
13498, 13569-13570 (April 16, 1992).
The State of Texas performed Urban Airshed Modeling (UAM) using
only El Paso emissions data, and demonstrated that El Paso would attain
the ozone standard by 1996 ``but for emissions emanating from Mexico.''
The El Paso UAM ozone modeling analysis will be referred to in this
notice as the ``attainment demonstration'' for El Paso.
Although the EPA allows an area such as El Paso to demonstrate
attainment on a basis of U.S.-only modeling, it is understood that
ultimately basin-wide modeling must occur in order to develop a control
strategy in El Paso that will achieve the NAAQS. The United States
entered into the Agreement for Environmental Cooperation along the
U.S.-Mexico Border, referred to as the La Paz Agreement, with Mexico in
1983 to address environmental concerns along the border between the two
countries. Annex V of the Agreement, negotiated in 1989, calls for
basin-wide modeling to be accomplished for the El Paso/Juarez airshed.
The EPA has been working with Mexico and with the Texas Natural
Resource Conservation Commission (TNRCC) to accomplish the basin-wide
modeling. Since the statutory attainment date for serious ozone
nonattainment areas such as El Paso is 1999, concerned agencies intend
to complete such modeling by 1999.
IV. State Submittal
On June 17, 1994, the TNRCC submitted to the EPA two petitions
pursuant to section 182(f), requesting that the DFW and El Paso
nonattainment areas be exempted by the EPA from the NOX control
requirements of section 182(f) of the CAA.
The State bases its petitions on a demonstration that NOX
reductions would not contribute to attainment in either area, as
allowed for under the test (2) listed above, because such NOX
reductions would be in excess of the reductions necessary for
attainment. Consistent with the EPA's December 1993 section 182(f)
guidance, the State's excess emissions reductions demonstration is tied
to the attainment demonstration SIP required under section 182(c)(2)(A)
of the CAA.
The State's submission for each petition includes: (1) A letter
from Anthony C. Grigsby, Executive Director of the TNRCC, to Jane N.
Saginaw, Regional Administrator of the EPA Region 6, transmitting the
NOX exemption petition; (2) the petition from the TNRCC
summarizing the State's UAM attainment demonstration results; and (3)
technical reports documenting the State's base case UAM inputs. The
State has also previously submitted to the EPA the 15 percent
Reasonable Further Progress (RFP) SIPs for the DFW and El Paso areas,
as required by section 182(b)(1) of the CAA. The 15 percent RFP SIPs
contain regulations that are estimated to reduce VOC emissions in each
area by 15 percent from 1990 levels, net of any growth that may occur.
The State of Texas supplemented its petitions by submitting to the EPA
in July 1994, two additional technical reports on the UAM for each
area, which contained the following: base case performance evaluation,
attainment year emissions report, and attainment year modeling report.
These additional technical reports provided supplemental detail and
documentation on the modeling information already provided to the EPA
in the State's petitions.
On August 29, 1994, the EPA proposed to conditionally approve the
section 182(f) petitions for the DFW and El Paso areas (see 59 FR
44386). The proposed rulemaking notice provides a detailed discussion
of the EPA's rationale for proposing conditional approval of the
State's petitions and should be referred to. In that notice, the EPA
explained that although the State had completed its attainment
demonstration SIPs for both areas, the SIPs had not yet been adopted by
the State, nor submitted to the EPA. The EPA further explained that the
EPA would not take final action to conditionally approve the petitions
for each area unless and until the State submitted the attainment
demonstration SIPs to the EPA in accordance with section 182(c)(2)(A)
of the CAA.
The TNRCC adopted the attainment demonstration SIP for the DFW area
on September 21, 1994, and submitted it to the EPA on October 3, 1994,
in accordance with section 182(c)(2)(A) of the CAA. Similarly, the
TNRCC adopted the attainment demonstration SIP for the El Paso area on
September 14, 1994, and submitted it to the EPA on October 3, 1994. The
EPA is therefore proceeding to take final action on the section 182(f)
petitions submitted by the TNRCC for the DFW and El Paso areas.
V. Response to Comments
The EPA requested public comments on all aspects of the proposed
action to conditionally approve the section 182(f) petitions for the
DFW and El Paso areas. The EPA received 27 letters of support from the
utility, transportation authority, metropolitan planning organization
and local governments in the DFW area. The EPA received three letters
of support from the City of El Paso, a local utility, and a
metropolitan planning organization in the El Paso area.
Three adverse comment letters were received from environmental
groups, one of which applied only to DFW, while two of which applied to
both DFW and El Paso. One of the letters was submitted by three
environmental groups and contained generic comments objecting to the
EPA's general policy on section 182(f) exemptions. The three
environmental groups who submitted the generic letter requested that it
be included in each EPA rulemaking action for each section 182(f)
petition.
Comment: One group objected to the use of methyl tertiary butyl
ether (MTBE) as a fuel additive in reformulated gasoline. The TNRCC
included the use of reformulated gasoline in its 15 percent RFP SIP for
DFW as a control strategy to reduce VOC emissions.
Response: This comment applies to the State's reformulated gasoline
program, and its 15 percent RFP SIP for the DFW area that had
previously been adopted by the State and submitted to the EPA. The EPA
does not believe that this comment is relevant to the rulemaking action
on the State's petition for a section 182(f) NOX exemption, since
in this action, the EPA is not taking action on the State's
reformulated gasoline program nor its 15 percent RFP plan. The EPA will
rule on those control programs in a separate rulemaking action.
Comment: One group felt that the UAM model for DFW was flawed from
a scientific perspective so as to be inadequate to make sound
predictions of attainment. They cited the fact that only three of the
four episodes initially analyzed by the State had acceptable
performance. In addition, they felt that the emissions inventories were
significantly inaccurate so as to discredit the modeling results.
Response: The EPA disagrees with this comment that the UAM modeling
demonstration for DFW is flawed. Due to the large number of factors
that influence ozone formation, the EPA agrees that the UAM model
cannot precisely predict the exact relationship between VOC, NOX,
and ozone. However, if the model performs within certain bounds of
accuracy, the EPA believes that the model can and should be used to
develop the attainment strategy since Congress clearly intended that
photochemical grid modeling be used to form the basis of a control
strategy plan. The EPA has established general criteria to evaluate the
relative accuracy of a given modeling demonstration, and believes that
models that meet those criteria are accurate enough to form the basis
of the attainment strategy.
The EPA's ``Guideline for Regulatory Application of the Urban
Airshed Model'' generally requires that three episodes with acceptable
model performance be used in the attainment demonstration. Because
Texas had three episodes which exhibited acceptable performance, Texas'
attainment modeling is fully consistent with the EPA's requirements. In
addition, the EPA's model performance criteria apply to each individual
episode rather than across episodes. Therefore, it is inaccurate to
conclude that the model was 75 percent accurate because only three of
the four episodes exhibited acceptable model performance.
The EPA disagrees with the comment that the emissions inventories
were too inaccurate to produce acceptable modeling results. The EPA
evaluated the State's 1990 base year emissions inventories and a final
approval was published in the FR on November 8, 1994.
Comment: One group stated that NOX controls should be required
because NOX emissions cause other adverse health and environmental
effects besides contributing to ozone formation.
Response: The EPA agrees that high NOX emissions can
contribute to air pollution problems independent of their role in ozone
formation; however, the EPA disagrees that the NOX controls
required under section 182(f) of the CAA should be implemented in the
DFW area regardless of their impact on ozone. Because ambient air
monitoring shows that the DFW area is in attainment for the nitrogen
dioxide NAAQS standard, the EPA does not believe that the current level
of NOX emissions pose a public health or environmental risk in the
DFW area. In addition, section 182(f)(2)(B)(i) specifically provides
for an exemption in cases where NOX emission reductions would not
contribute to the attainment of the NAAQS for ozone in the area. The
TNRCC has demonstrated that the NOX reductions required by section
182(f) would be in excess of the emission reductions necessary for
attaining the ozone NAAQS. Finally, for the purposes of reducing acid
rain deposition, certain NOX sources will still be required to
reduce NOX emissions under Title IV of the CAA. For these reasons,
the EPA does not believe that the NOX controls required under
section 182(f) of the CAA should be implemented in the DFW area
regardless of their impact on ozone.
Comment: One group questioned whether the current ozone standard of
120 parts per billion provides sufficient protection of public health.
Response: The EPA does not believe that this comment is relevant to
this rulemaking action on the section 182(f) petitions for DFW and El
Paso. The EPA is currently reviewing the ozone primary and secondary
standards and will address concerns over the current ozone standard
through a separate rulemaking process. If the standard is revised, the
EPA will determine at that time what action is appropriate for
attainment SIPs and NOX exemption petitions that had previously
been approved.
Comment: One group felt that EPA's action to propose conditional
approval of the State's exemption petitions without the attainment SIPs
was premature and denied adequate public input on the issue. They
commented that EPA should wait until the State actually submits the
attainment SIPs before making any determination as to the feasibility
of the two areas actually achieving the NAAQS for ozone.
Response: The EPA disagrees with this comment for several reasons.
The EPA does not believe its action proposing approval of the petitions
was premature. As explained in the FR notice which proposed approval of
the petitions (see 59 FR 44386), the attainment demonstrations rely on
VOC regulations contained in the 15 percent RFP SIPs which had
previously gone through public comment, State adoption, and submission
to the EPA. For this reason, the EPA did not anticipate that the
substance of the final attainment demonstration SIPs would differ from
what had already been submitted to the EPA by the TNRCC in the section
182(f) exemption petitions. In addition, the EPA further explained that
the EPA would not take final action to conditionally approve the
petitions for each area unless and until the State had submitted the
attainment demonstration SIPs to the EPA in accordance with section
182(c)(2)(A) of the CAA. Therefore, the EPA has waited until the State
submitted its attainment SIPs before making any final determination.
The EPA believes the public has had adequate opportunity for public
comment. The control strategies contained in the attainment SIPs had
previously gone through public comment and State adoption as part of
the 15 percent RFP SIP. In addition, the State proposed the attainment
SIPs on July 27, 1994. The State's public comment period on the
attainment SIPs closed September 2, 1994, while the comment period on
the EPA's proposed action to conditionally approve the petitions closed
on September 28, 1994. The proposed attainment SIPs were therefore
available for public review for two months prior to and during the
EPA's public comment period on the proposed action on the petitions.
Finally, the EPA's action to approve the petitions is conditioned
upon the EPA finally approving the modeling portion of the attainment
SIPs, which will provide another opportunity for comment on the
adequacy of the attainment SIPs as a basis for the section 182(f)
exemptions.
Comment: Three groups provided a generic comment arguing that
NOX exemptions are provided for in two separate parts of the CAA,
section 182(b)(1) and section 182(f). Because the NOX exemption
tests in subsections 182(b)(1) and 182(f)(1) include language
indicating that action on such requests should take place ``when [EPA]
approves a plan or plan revision,'' these commenters conclude that all
NOX exemption determinations by the EPA, including exemption
actions taken under the petition process established by subsection
182(f)(3), must occur during consideration of an approvable attainment
or maintenance plan, unless the area has been redesignated as
attainment. These commenters also argue that even if the petition
procedures of subsection 182(f)(3) may be used to relieve areas of
certain NOX requirements, exemptions from the NOX conformity
requirements must follow the process provided in subsection 182(b)(1),
since this is the only provision explicitly referenced by section
176(c), the CAA's conformity provisions.
Response: The EPA disagrees with the commenters regarding the
process for considering exemption requests under section 182(f), and
instead believes that subsections 182(f)(1) and 182(f)(3) provide
independent procedures by which the EPA may act on NOX exemption
requests. The language in subsection 182(f)(1), which indicates that
the EPA should act on NOX exemptions in conjunction with action on
a plan or plan revision, does not appear in subsection 182(f)(3). And,
while subsection 182(f)(3) references subsection 182(f)(1), the EPA
believes that this reference encompasses only the substantive tests in
paragraph (1) (and, by extension, paragraph (2)), not the procedural
requirement that the EPA act on exemptions only when acting on SIPs.
Additionally, paragraph (3) provides that ``person[s]'' (which section
302(e) of the CAA defines to include States) may petition for NOX
exemptions ``at any time,'' and requires the EPA to make its
determination within six months of the petition's submission. These key
differences lead the EPA to believe that Congress intended the
exemption petition process of paragraph (3) to be distinct and more
expeditious than the longer plan revision process intended under
paragraph (1).
The CAA requires conformity with regard to federally-supported
NOX-generating activities in relevant nonattainment and
maintenance areas. However, EPA's conformity rules explicitly provide
that these NOX requirements would not apply if the EPA grants an
exemption under section 182(f). In response to the comment that section
182(b)(1) should be the appropriate vehicle for dealing with exemptions
from the NOX requirements of the conformity rule, the EPA notes
that this issue has previously been raised in a formal petition for
reconsideration of the EPA's final transportation conformity rule and
in litigation pending before the U.S. Court of Appeals for the District
of Columbia Circuit on the substance of both the transportation and
general conformity rules. The issue, thus, is under consideration
within the EPA, but at this time remains unresolved. Additionally,
subsection 182(f)(3) requires that NOX exemption petition
determinations be made by the EPA within six months. The EPA has stated
in previous guidance that it intends to meet this statutory deadline as
long as doing so is consistent with the public notice requirements of
the Administrative Procedures Act. Absent the EPA action now, this
deadline, as it applies with respect to the DFW and El Paso exemption
requests, which were submitted in June 1994, would not be met. The EPA,
therefore, believes that until a resolution of this issue is achieved,
the applicable rules governing this issue are those that appear in the
EPA's final conformity regulations, and the EPA remains bound by their
existing terms.
Comment: Three groups provided a generic comment on all section
182(f) actions that the modeling required by EPA is insufficient to
establish that NOX reductions would not contribute to attainment
since only one level of NOX control, i.e., ``substantial''
reductions, is required to be analyzed. They further explained that an
area must submit an approvable attainment plan before EPA can know
whether NOX reductions will aid or undermine attainment.
Response: The EPA does not believe that this comment is applicable
to the DFW or El Paso actions because attainment plans have been
submitted for both areas in conjunction with the section 182(f)
petitions. The TNRCC based its petitions for DFW and El Paso on a
demonstration that the NOX reductions would be in excess of the
reductions necessary for attainment. In contrast, the above comment
refers to section 182(f) petitions that are based on a demonstration
that NOX reductions would not contribute to attainment. Such a
demonstration requires that various emission reduction scenarios be
modeled which include substantial reductions of NOX.
As described in Chapter 6 of the EPA's December 1993 section 182(f)
guidance, the excess reductions demonstration used by the TNRCC for DFW
and El Paso must be tied to the areas' attainment demonstration SIPs.
This test must show that the excess reductions are reductions in excess
of those specified in the attainment demonstration required by section
182, and either contained in the approved SIP or as adopted by the
State to meet the section 182 attainment demonstration requirement, and
submitted to the EPA for approval. The EPA believes that the more
precise modeling analysis contained in the State's attainment
demonstration SIP is required for the excess reduction test because the
demonstration must show that a specific portion of the total area-wide
NOX emissions is not beneficial under one of the three tests
listed above. The tie to the attainment demonstration assures that an
excess reductions petition would not arbitrarily be based on small
emissions and would not undermine the State's control strategy.
In addition, the EPA's guidance specifies that photochemical grid
modeling is generally needed to document cases where NOX
reductions do not contribute to attainment or include excess
reductions. The UAM is an acceptable model for these purposes. The EPA
guidance also states that application of UAM should be consistent with
techniques specified in the EPA ``Guideline on Air Quality Models
(Revised).'' Further, application of UAM should also be consistent with
procedures contained in the EPA ``Guidelines for Regulatory Application
of the Urban Airshed Model'' (July 1991).
Comment: Three groups provided a generic comment on all section
182(f) actions that three years of ``clean'' data fail to demonstrate
that NOX reductions would not contribute to attainment.
Response: The EPA does not believe that this comment is applicable
to the DFW and El Paso actions because neither area has based its
section 182(f) petition on ``clean'' air monitoring data.
Comment: Three groups provided a generic comment on all section
182(f) actions that a waiver of NOX controls is unlawful if such
waiver will impede attainment and maintenance of the ozone standard in
separate downwind areas.
Response: The EPA believes that, while this generic comment may be
applicable to proposed NOX exemption actions for other areas, it
is not applicable to the DFW and El Paso exemption actions because the
EPA is unaware of, and the comment itself does not specify, any
downwind area for which NOX transport is of concern. This is
unlike the case regarding comments received by the EPA for certain
areas for which NOX exemptions are pending such as in Ohio, for
example, where the downwind areas of concern are clearly identified as
areas in the Northeast Ozone Transport Region. It should also be noted
that neither DFW nor El Paso is located near or within an ozone
transport region.
Comment: Three groups provided a generic comment on all actions
exempting areas from the NOX requirements of the conformity rules
that such exemptions waive only the requirements of section 182(b)(1)
to contribute to specific annual reductions, not the requirement that
conformity SIPs contain information showing the maximum amount of motor
vehicle NOX emissions allowed under the transportation conformity
rules and, similarly, the maximum allowable amounts of any such
NOX emissions under the general conformity rules. The commenters
admit that, in prior guidance, the EPA has acknowledged the need to
amend a drafting error in the existing transportation conformity rules
to ensure consistency with motor vehicle emissions budgets for
NOX. The commenters, however, want the EPA to explicitly affirm
this obligation in FR actions on NOX exemptions and to avoid
granting waivers until a budget controlling future NOX increases
is in place.
Response: In its ``Conformity; General Preamble for Exemption From
Nitrogen Oxides Provisions,'' 59 FR 31238, 31241 (June 17, 1994), the
EPA reiterated its view that in order to conform, nonattainment and
maintenance areas must demonstrate that their transportation plans and
transportation improvement plans are consistent with the motor vehicle
emissions budget for NOX even where a conformity NOX waiver
has been granted. Due to a drafting error, that view is not reflected
in the current transportation conformity rules. As the commenters
correctly note, the EPA states in its June 17 notice that it intends to
remedy the problem by amending the conformity rule. Although that
notice specifically mentions only requiring consistency with the
approved maintenance plan's NOX motor vehicle emissions budget,
the EPA also intends to require consistency with the attainment
demonstration's NOX motor vehicle emissions budget. The DFW and El
Paso exemptions, however, were submitted pursuant to section 182(f)(3),
and the EPA does not believe it is appropriate to delay the statutory
deadline for acting on these petitions until the conformity rule is
amended. As noted earlier in response to a previous issue raised by
these commenters, this issue has also been raised in a formal petition
for reconsideration of the EPA's final transportation conformity rule
and in litigation pending before the U.S. Court of Appeals for the
District of Columbia Circuit on the substance of both the
transportation and general conformity rules. This issue, thus, is under
consideration within the EPA, but at this time remains unresolved. The
EPA, therefore, believes that until a resolution of this issue is
achieved, the applicable rules governing this issue are those that
appear in the EPA's final conformity regulations, and the EPA remains
bound by their existing terms.
Comment: Three groups provided a generic comment on all section
182(f) actions that the CAA does not authorize delaying implementation
of NOX controls if modeling is not complete.
Response: The EPA does not believe that this comment is applicable
to the DFW or El Paso actions because complete attainment modeling has
been submitted for both areas, as part of the attainment SIPs, in
conjunction with the section 182(f) petitions.
VI. Effective Date
This rulemaking is effective as of November 21, 1994. The
Administrative Procedure Act (APA) 5 U.S.C. 553(d)(1), permits the
effective date of a substantive rule to be less than thirty days after
publication of the rule if the rule ``relieves a restriction.'' Since
the approval of the section 182(f) exemptions for the DFW and El Paso
areas, is a substantive rule that relieves the restrictions associated
with the CAA title I requirements to control NOX emissions, the
NOX exemption approval may be made effective upon signature by the
EPA Administrator.
VII. Final Action
In this action, the EPA is conditionally approving1 the 182(f)
NOX exemption petitions submitted by the State of Texas for the
DFW and El Paso ozone nonattainment areas, conditioned upon the EPA
approving the modeling portion of the attainment demonstration SIPs. If
the EPA proposes to disapprove the modeling portion of the SIPs, the
EPA will also propose disapproval of the section 182(f) NOX
exemption petitions, based on the fact that the technical basis for the
exemption is no longer valid. Upon final disapproval of the modeling
portion of the attainment SIPs, the EPA will issue a final disapproval
of the section 182(f) NOX exemption petitions as well.
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\1\This conditional approval is distinct from the conditional
approval authority granted under section 110(k)(4), which pertains
to SIP actions. As discussed in the previously cited John S. Seitz
memorandum dated May 27, 1994, concerning the EPA's processing of
section 182(f) petitions, these NOX exemptions petitions are
not revisions to the SIP.
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There are several consequences if the EPA disapproves the section
182(f) NOX exemption petitions based on the conclusion that the
attainment SIPs were not approved by the EPA. The State would be
required to submit NOX RACT rules and implement the relevant
NOX conformity, NSR, and vehicle inspection and maintenance
requirements for the DFW and El Paso areas. The EPA would issue a
finding of nonsubmittal of the NOX RACT rules. As provided under
section 179(a) of the CAA, if the State did not make a complete
submittal within 18 months after the finding of failure to submit, the
EPA would be required to impose the requirement to provide two-to-one
NSR offsets. If the State had not corrected its deficiency within six
months after imposing the offset sanction, the EPA would impose a
second sanction, on highway funding. Any sanction the EPA imposes must
remain in place until the EPA determines that the State has corrected
the deficiency. In addition, the finding of failure to submit would
trigger the 24-month clock for the EPA to impose a Federal
Implementation Plan as required by section 110(c)(1) of the CAA.
The EPA believes that all section 182(f) exemptions that are
approved, should be approved only on a contingent basis. As described
in the EPA's NOX Supplement to the General Preamble (57 FR 55628,
November 25, 1992), the EPA would rescind a NOX exemption in cases
where NOX reductions were later found to be beneficial in the
area's attainment plan. That is, a modeling based exemption would last
for only as long as the area's modeling continued to demonstrate
attainment without the additional NOX reductions required by
section 182(f).
If the EPA later determines that NOX reductions are beneficial
based on new photochemical grid modeling in an area initially exempted,
the area would be removed from exempt status and would be required to
adopt the NOX RACT and NSR rules, except to the extent that
modeling shows NOX reductions to be ``excess reductions.'' In the
rulemaking action which removes the exempt status, the EPA would
specify a schedule for States to adopt the NOX RACT and NSR rules
and for sources to comply with the NOX RACT emission limits.
The subsequent modeling analyses mentioned above need not be
limited to the purpose of demonstrating attainment in the 1994 SIP
revisions without the need for NOX controls required under section
182(f). For example, future modeling might also be initiated to resolve
issues related to transport of ozone and ozone precursors into downwind
nonattainment areas. An area might want to consider a strategy that
phases-in NOX reductions only after certain VOC reductions are
implemented. As improved emission inventories and ambient data become
available, areas may choose to remodel. In addition, alternative
control strategy scenarios might be considered in subsequent modeling
analyses in order to improve the cost-effectiveness of the attainment
plan.
In summary, the EPA is conditionally approving the section 182(f)
exemptions for the DFW and El Paso areas, conditioned upon EPA's
approval of the modeling portion of the attainment demonstrations for
these areas. These exemptions will remain effective for only as long as
modeling in each nonattainment area continues to show that NOX
control activities would not be beneficial in the DFW or El Paso
nonattainment areas.
In addition, the State of Texas and EPA have committed to data-
gathering and modeling throughout the El Paso-Juarez air basin in
accordance with Annex V of the La Paz Agreement for Environmental
Cooperation on the U.S.-Mexico Border. Once the data are collected and
basin-wide modeling is concluded, the EPA, the State of Texas, and the
Republic of Mexico can develop a binational control strategy that will
result in improved air quality throughout the airshed. If EPA review of
modeling and air quality data confirms that NOX control
requirements on local U.S. sources would not be beneficial, the
exemption would be sustained. In contrast, if the EPA determines that
NOX control requirements would be beneficial, the exemption would
be rescinded.
Regulatory Process
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, the EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
Approvals of NOX exemption petitions under section 182(f) of
the CAA do not create any new requirements. Therefore, because the
Federal approval of the petitions does not impose any new requirements,
the EPA certifies that it does not have a significant impact on
affected small entities. Moreover, due to the nature of the Federal-
State relationship under the CAA, preparation of a regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of State action. The CAA forbids the EPA to base its
actions concerning SIPs on such grounds (Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (S. Ct. 1976); 42 U.S.C. 7410 (a)(2)).
If the conditional approval is converted to a disapproval based on
the State's failure to meet the condition upon which the approval is
granted, it will not affect any existing State requirements applicable
to small entities. Federal disapproval of the State submittal does not
affect its State-enforceability. Moreover, the EPA's disapproval of the
submittal does not impose a new Federal requirement. Therefore, the EPA
certifies that this disapproval action would not have a significant
impact on a substantial number of small entities because such
disapproval would not remove existing State requirements, nor does it
substitute a new Federal requirement.
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the U.S. Court of Appeals for the
appropriate circuit by January 27, 1995. 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).)
Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the
EPA must determine whether the regulatory action is ``significant'',
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. It has been determined
that this rule is not a ``significant regulatory action'' under the
terms of Executive Order 12866, and is therefore not subject to OMB
review.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic
compounds.
Dated: November 21, 1994.
Carol M. Browner,
Administrator.
40 CFR part 52 is amended as follows:
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart SS--Texas
2. Section 52.2308 is added to read as follows:
Sec. 52.2308 Area-wide nitrogen oxides (NOX) exemptions.
(a) The Texas Natural Resource Conservation Commission (TNRCC)
submitted to the EPA on June 17, 1994, a petition requesting that the
Dallas ozone nonattainment area be exempted from the NOX control
requirements of section 182(f) of the Clean Air Act (CAA) as amended in
1990. The Dallas nonattainment area consists of Dallas, Tarrant,
Denton, and Collin counties. The exemption request was based on a
photochemical grid modeling which shows that the Dallas nonattainment
area would attain the National Ambient Air Quality Standards (NAAQS)
for ozone by the CAA mandated deadline without the implementation of
the additional NOX controls required under section 182(f). On
November 21, 1994, the EPA conditionally approved this exemption
request, conditioned upon the EPA approving the modeling portion of the
Dallas attainment demonstration SIP.
(b) The TNRCC submitted to the EPA on June 17, 1994, a petition
requesting that the El Paso ozone nonattainment area be exempted from
the NOX control requirements of section 182(f) of the Clean Air
Act (CAA) as amended in 1990. The El Paso nonattainment area consists
of El Paso county, and shares a common airshed with Juarez, Mexico. The
exemption request was based on a photochemical grid modeling which
shows that the El Paso nonattainment area would attain the NAAQS for
ozone by the CAA mandated deadline without the implementation of the
additional NOX controls required under section 182(f), but for
emissions emanating from Mexico. On November 21, 1994, the EPA
conditionally approved this exemption request, conditioned upon the EPA
approving the modeling portion of the El Paso attainment demonstration
SIP.
[FR Doc. 94-29195 Filed 11-25-94; 8:45 am]
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