[Federal Register Volume 59, Number 243 (Tuesday, December 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31230]


[[Page Unknown]]

[Federal Register: December 20, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA82-1-6509; FRL-5125-4]

 

Monterey Bay Ozone Nonattainment Area; Clean Air Act Section 
182(f) Exemption Petition

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The EPA is proposing to approve a petition submitted by the 
Monterey Bay Unified Air Pollution Control District (MBUAPCD) 
requesting that the Monterey Bay ozone nonattainment area (Monterey Bay 
Area) be exempted from the requirement to implement oxides of nitrogen 
(NOX) Reasonably Available Control Technology (RACT). In 
accordance with the requirements of the Clean Air Act, as amended in 
1990 (the Act or CAA), the Monterey Bay Area may be exempted from the 
NOX reduction requirements where the Administrator determines that 
the net air quality benefits are greater in the absence of NOX 
reductions from the sources concerned or that additional NOX 
reductions would not contribute to attainment of the national ambient 
air quality standard (NAAQS) for ozone in areas outside the ozone 
transport region (OTR). The MBUAPCD is using three years of ambient 
monitoring data to demonstrate that additional NOX reductions in 
the Monterey Bay Area would not contribute to attainment of the ozone 
NAAQS. The EPA is proposing to exempt the Monterey Bay Area from the 
requirement to implement NOX RACT and the applicable NOX 
general and transportation conformity requirements. The EPA is 
proposing approval of this action under provisions of the CAA regarding 
plan requirements for nonattainment areas.

DATES: Comments on this proposed action must be received in writing on 
or before January 19, 1995.

ADDRESSES: Comments may be mailed to: Daniel A. Meer, Chief, Stationary 
Source Rulemaking (A-5-3), Air & Toxics Division, U.S. Environmental 
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 
94105.
    Copies of the exemption petition are available for public 
inspection at EPA's Region IX office during normal business hours. 
Copies of the submitted petition may be obtained from the following 
locations:

Rulemaking Section (A-5-3), Air and Toxics Division, U.S. Environmental 
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 
94105.
Monterey Bay Unified Air Pollution Control District, Rule Development 
Section, 24580 Silver Cloud Court, Monterey, CA 93940.

FOR FURTHER INFORMATION CONTACT: Wendy Colombo, Rulemaking Section (A-
5-3), Air and Toxics Division, U.S. Environmental Protection Agency, 
Region IX, 75 Hawthorne Street, San Francisco, CA 94105 Telephone: 
(415) 744-1202.

SUPPLEMENTARY INFORMATION:

Applicability

    The MBUAPCD submitted the NOX exemption petition to EPA on 
April 26, 1994. Final approval of the petition exempts the Monterey Bay 
Area from implementing the NOX RACT and the NOX general and 
transportation conformity requirements of the CAA.

Background

    On November 15, 1990, the Clean Air Act Amendments of 1990 were 
enacted. Public Law 101-549, 104 Stat. 2399, codified at 42 U.S.C. 
7401-7671q. The air quality planning requirements for the reduction of 
NOX emissions are set out in section 182(f) of the CAA. On 
November 25, 1992, EPA published a NPRM (57 FR 55620) entitled, ``State 
Implementation Plans; Nitrogen Oxides Supplement to the General 
Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; 
Proposed Rule,'' (the NOX Supplement) which describes the 
requirements of section 182(f). The November 25, 1992, notice should be 
referred to for further information on the NOX requirements and is 
incorporated into this document by reference.
    Section 182(f) of the Act requires States to apply the same 
requirements to major stationary sources of NOX (``major'' as 
defined in section 302 and section 182 (c), (d), and (e)) as are 
applied to major stationary sources of volatile organic compounds 
(VOCs). These requirements are RACT and New Source Review (NSR) for 
major stationary sources in certain ozone nonattainment areas.
    The RACT requirements for major stationary sources of VOCs are 
contained in section 182(b)(2), while the NSR requirements are 
contained in section 182(a)(2)(C) and other provisions of section 182. 
Section 182(b)(2) requires submittal of RACT rules for major stationary 
sources of VOC emissions (not covered by a pre-enactment control 
technologies guidelines (CTG) document or a post-enactment CTG 
document). There were no NOX CTGs issued before enactment, and EPA 
has not issued a CTG document for any NOX sources since enactment 
of the CAA. Section 182(a)(2)(C) requires submittal of NSR rules 
incorporating the new preconstruction permitting requirements for new 
or modified sources. The RACT and NSR rules were required to be 
submitted by November 15, 1992.
    The Monterey Bay Area is classified as a moderate1 
nonattainment area for ozone; therefore this area is subject to the 
RACT and NSR requirements cited above and the November 15, 1992 
deadline. On April 21, 1993 the State of California was issued a 
finding of nonsubmittal for MBUAPCD for the section 182(f) NOX 
RACT requirements.
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    \1\ The Monterey Bay Area was redesignated nonattainment and was 
classified by operation of law pursuant to sections 107(d) and 
181(a) upon the date of enactment of the CAA. See 55 FR 56694 
(November 6, 1991).
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    The MBUAPCD identified two categories for which major stationary 
sources of NOX exist and rules are required. These categories 
apply to NOX emissions from utility power boilers and minerals 
processing kilns. The MBUAPCD submitted Rule 431, Emissions from 
Utility Power Boilers on November 18, 1993, and Rule 435, Control of 
Nitrogen Oxides from Kilns on September 28, 1994. The rules were found 
complete by EPA on December 27, 1993 and October 21, 1994, 
respectively, and EPA stopped the 18-month sanctions clock for the 
NOX RACT requirements on October 21, 1994.
    On April 26, 1994, the MBUAPCD submitted a petition to the EPA 
requesting that the Monterey Bay Area be exempted from the requirement 
to implement the NOX RACT measures pursuant to section 182(f) of 
the CAA. On July 21, 1994, the Association of Monterey Bay Area 
Governments requested that EPA also grant an exemption from the 
NOX conformity requirements, also pursuant to section 182(f) of 
the CAA. The exemption request is based on three years of clean 
monitoring data from 1991 through 1993.

Criteria for Evaluation of Section 182(f) Exemption Requests

    The NOX RACT petition was submitted in accordance with the EPA 
guidance document entitled, Guideline for Determining the Applicability 
of Nitrogen Oxides Requirements Under Section 182(f) issued on December 
16, 1993 (exemption guidance). In addition to the exemption guidance, 
EPA's NOX exemption policy is contained in two memoranda2 
providing that under section 182(f)(1)(A), an exemption from the 
NOX requirements may be granted for nonattainment areas outside 
the OTR if EPA determines that additional reductions of NOX would 
not contribute to attainment of the NAAQS for those areas. In cases 
where a nonattainment area is demonstrating attainment with three 
consecutive years of air quality monitoring data, without having 
implemented the section 182(f) NOX provisions, it is clear that 
the contribute to attainment test is met, although additional 
reductions of NOX might contribute to maintenance.
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    \2\Michael H. Shapiro, Acting Assistant Administrator for Air 
and Radiation, dated September 17, 1993, 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'', and a subsequent revision to this memorandum 
from John S. Seitz, Director of EPA's Office of Air Quality Planning 
and Standards, issued on May 27, 1994, entitled, ``Section 182(f) 
Nitrogen Oxides (NOX) Exemptions--Revised Process and 
Criteria''.
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    Thus, a State may submit a petition for a section 182(f) exemption 
based on air quality monitoring data. The EPA's approval of the 
exemption, if warranted, would be granted on a contingent basis (i.e., 
the exemption would last for only as long as the area's monitoring data 
continue to demonstrate attainment).
    EPA's exemption guidance provides that, pursuant to the 
requirements of section 110(a)(2), States should consider evidence, 
such as photochemical grid modeling, which shows that granting the 
NOX exemption would interfere with attainment or maintenance in 
downwind areas. The MBUAPCD has not yet implemented NOX RACT, and 
at the time of this notice, EPA has not received evidence from the 
State or any downwind areas that shows that granting the NOX 
exemption for the Monterey Bay Area would interfere with attainment or 
maintenance in downwind areas.
    EPA's conformity rules3,4 also reference the section 182(f) 
exemption process as a means for exempting affected areas from NOX 
conformity requirements.5 Therefore, ozone nonattainment areas 
that are granted areawide section 182(f) exemptions will also be exempt 
from the NOX conformity requirements.
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    \3\''Criteria and Procedures for Determining Conformity to State 
or Federal Implementation Plans or Transportation Plans, Programs, 
and Projects Funded or Approved under Title 23 U.S.C. of the Federal 
Transit Act'', November 24, 1993 (58 FR 62188).
    \4\''Determining Conformity of General Federal Actions to State 
or Federal Implementation Plans; Final Rule'', November 30, 1993 (58 
FR 63214).
    \5\The section 182(f) exemption is explicitly referred to and is 
described in similar language in 40 CFR 51.394(b)(3)(i), the 
``Applicability'' section of the transportation conformity rule, and 
in the preamble (see 58 FR 62197, November 24, 1993). The language 
is repeated in the provisions of the rule regarding the motor 
vehicle emissions budget test [section 51.428(a)(1)(ii)] and the 
``build/no-build'' test [sections 51.436(e), 51.438(e)], although 
section 182(f) of the Act is not specifically mentioned. In the 
general conformity rule, the section 182(f) NOX exemption is 
referred to in section 51.852 (definition of ``Precursors of a 
criteria pollutant'') and is discussed in the preamble (see 58 FR 
63240, November 30, 1993).
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EPA Evaluation

    Attainment of the ozone NAAQS is determined based on the expected 
number of exceedances in a calendar year. Ozone attainment must rely on 
three complete, consecutive calendar years of quality-assured air 
quality monitoring data, collected in accordance with 40 CFR parts 50 
and 58, including Appendices. The method for determining attainment of 
the ozone NAAQS is contained in 40 CFR part 50, Sec. 50.9 and appendix 
H to that Section.6 appendix H of 40 CFR part 50 explains how to 
determine when the expected number of days per calendar year with 
maximum hourly average concentrations above 0.12 ppm ozone is equal to 
or less than 1. This section also discusses how to account for 
incomplete data sets. The EPA ``Guideline for the Interpretation of 
Ozone Air Quality Standards'' elaborates on Appendix H. In general, 
expected exceedances are calculated by averaging actual exceedances at 
each monitoring site over a three year period. An area is in attainment 
of the standard if this average results in expected exceedances for 
each monitoring site of 1.0 or less per calendar year.
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    \6\See EPA Guidance ``Procedures for Processing Requests to 
Redesignate Areas to Attainment,'' John Calcagni, Director, Air 
Quality Management Division, September 4, 1992, p. 2.
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    At the monitoring sites used to evaluate the attainment status of 
Monterey County, there has been only one exceedance of the ozone NAAQS. 
This exceedance was monitored in 1991 at the Pinnacles site. There have 
been no violations of the ozone NAAQS during the 1991-1993 period. 
Based on ambient air monitoring data for the years 1991-1993 (including 
data from the Pinnacles site which helped form the basis for the 
Monterey County nonattainment designation of 1990), it is clear that 
additional reductions of NOX would not contribute to attainment of 
the ozone standard. For further information regarding the monitoring 
sites data, please see attachments 1 and 2 to the Technical Support 
Document, dated October 1994.
    The EPA is proposing to approve the Monterey Bay Area section 
182(f) NOX RACT exemption request based upon the evidence provided 
by the MBUAPCD and the MBUAPCD's compliance with the requirements 
outlined in the EPA guidance. Continuation of the section 182(f) 
exemption, once granted, is contingent upon the continued monitoring 
and continued attainment and maintenance of the ozone NAAQS in the 
affected area in accordance with 40 CFR part 58. If a violation of the 
ozone NAAQS is monitored in the Monterey Bay Area (consistent with the 
requirements contained in 40 CFR part 58 and recorded in AIRS), EPA 
will provide notice in the Federal Register. A determination that the 
NOX exemption no longer applies would mean that the NOX 
general and transportation conformity provisions would again be 
applicable (see 58 FR 63214; 58 FR 62188; 59 FR 31238) to the affected 
area. The NOX RACT requirements would also re-apply, although some 
reasonable time period after the EPA determination may be provided for 
sources to meet the RACT limits. EPA expects this time period to be as 
expeditious as practicable, taking into account any current and 
applicable State or Federal regulations. If a nonattainment area is 
redesignated to attainment of the ozone NAAQS, NOX RACT is to be 
implemented as provided for in the EPA-approved maintenance plan.
    This action proposes to exempt the Monterey Bay ozone nonattainment 
area from implementing the NOX RACT and the applicable general and 
transportation conformity requirements for NOX. The final action 
on this proposal serves as a final determination that the finding of 
nonsubmittal for the NOX RACT requirements has been corrected, and 
that on the effective date of the final action on this proposal, the 
24-month Federal Implementation Plan (FIP) clock is stopped. The 18-
month sanctions clock was stopped on October 21, 1994 when EPA made a 
completeness determination for the second of two rules submitted to 
meet the NOX RACT requirements. Upon EPA's final approval of the 
NOX exemption, MBUAPCD will recind the two NOX RACT rules 
previously submitted to meet the CAA requirements.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future implementation 
plan. Each request for a section 182(f) exemption shall be considered 
separately in light of specific technical, economic, and environmental 
factors and in relation to relevant statutory and regulatory 
requirements.

Regulatory Process

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., 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, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises and 
government entities with jurisdiction over population of less than 
50,000.
    This exemption action does not create any new requirements, but 
allows suspension of the indicated requirements for the life of the 
exemption. Therefore, because the proposed approval does not impose any 
new requirements, I certify that it does not have a significant impact 
on any small entities affected. 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 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).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 19, 1995. Filing a petition for 
reconsideration by the Administrator of this 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 a rule. This 
action may not be challenged in later proceedings to enforce its 
requirements. Section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Nitrogen oxides, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: December 9, 1994.
Felicia Marcus,
Regional Administrator.
    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
proposed to be amended as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401-7671q.

Subpart F--California

    2. Subpart F is proposed to be amended by adding new Sec. 52.235 to 
read as follows:


Sec. 52.235  Control strategy for ozone: Oxides of nitrogen.

    EPA is approving a Section 182(f) exemption request submitted by 
the Monterey Bay Unified Air Pollution Control District on April 21, 
1994. The approval exempts the Monterey Bay ozone nonattainment area 
from the oxides of nitrogen (NOX) control requirements contained 
in Section 182(f) of the Clean Air Act. This approval exempts the area 
from implementing reasonably available control technology (RACT) for 
major stationary sources of NOX and the NOX related 
requirements of general and transportation conformity regulations. If a 
violation of the ozone NAAQS occurs in the Monterey Bay area, the 
exemption shall no longer apply.

[FR Doc. 94-31230 Filed 12-19-94; 8:45 am]
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