[Federal Register Volume 60, Number 10 (Tuesday, January 17, 1995)]
[Proposed Rules]
[Pages 3361-3366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1066]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH73-1-6809, OH74-1-6810, CH75-1-6811; FRL-5140-1]


 Approval and Promulgation of Implementation Plans; Ohio

AGENCY: United States Environmental Protection Agency (USEPA).

[[Page 3362]] ACTION: Proposed rule.

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SUMMARY: The USEPA is proposing to approve requests for exemptions from 
the nitrogen oxides (NOX) requirements as provided for in Section 
182(f) of the Clean Air Act (Act) for the following ozone nonattainment 
areas in Ohio: Canton (Stark County); Cincinnati (Hamilton, Butler, 
Warren, and Clermont Counties); Cleveland (Ashtabula, Cuyahoga, Geauga, 
Lake, Lorain, Medina, Portage and Summit Counties); Columbus (Delaware, 
Franklin, and Licking Counties); Youngstown (Mahoning and Trumbull 
Counties); Steubenville (Jefferson and Columbiana Counties); Preble 
County; and Clinton County. These exemption requests, submitted by the 
Ohio Environmental Protection Agency (OEPA), are based upon three years 
of ambient air monitoring data which demonstrate that the National 
Ambient Air Quality Standard (NAAQS) for ozone has been attained in 
each of these areas without additional reductions of NOX.

DATES: Comments on these exemption requests and USEPA's proposed action 
must be received by February 16, 1995.

ADDRESSES: Written comments should be addressed to: William MacDowell, 
Chief, Regulation Development Section, Air Enforcement Branch (AE-17J), 
U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.
    A copy of the exemption requests and supporting air quality data 
are available for inspection during normal business hours at the 
following location (it is recommended that you contact Richard Schleyer 
at (312) 353-5089 before visiting the Region 5 office): United States 
Environmental Protection Agency, Region 5, Air Enforcement Branch, Air 
and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois, 
60604.

FOR FURTHER INFORMATION CONTACT: Richard Schleyer, Regulation 
Development Section, Air Enforcement Branch (AE-17J), Region 5, United 
States Environmental Protection Agency, 77 West Jackson Boulevard, 
Chicago, Illinois, 60604, (312) 353-5089.

SUPPLEMENTARY INFORMATION:

I. Background

Section 182(f)  Requirements

    The air quality planning requirements for the reduction of NOX 
emissions are set out in section 182(f) of the Act. Section 182(f) of 
the Air requires States with areas designed nonattainment of the NAAQS 
for ozone, and classified as marginal and above, to impose the same 
control requirements for major stationary sources of NOX as apply 
to major stationary sources of volatile organic compounds (VOC). The 
requirements include, for marginal and above areas, nonattainment area 
new source review (NSR) for major new sources and major modifications. 
For nonattainment areas classified as moderate and above, the State is 
required to adopt reasonable available control technology (RACT) rules 
for major stationary sources of NOX, as well as nonattainment 
areas NSR.
    Section 182(f) further provides that, for areas outside an ozone 
transport region, these NOX reduction requirements shall not apply 
if the Administrator determines that additional reductions of NOX 
would not contribute to attainment of the NAAQS for ozone.

Transportation Conformity

    The transportation conformity 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 November 24, 1993 Federal Register (58 FR 62188). 
The rule was promulgated under section 176(c)(4) of the Act.
    The transportation conformity rule requires regional emissions 
analysis of motor vehicle NOX emissions for ozone nonattainment 
and maintenance areas in order to determine the conformity of 
transportation plans and programs to implementation plan requirements. 
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 as 
identified in a submitted or approved attainment demonstration or 
maintenance plan.
    Until an attainment demonstration, and the fifteen-percent rate-of-
progress plan (if applicable), or a maintenance plan, is approved by 
USEPA, 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 
previous applicable transportation plan and program were implemented. 
Furthermore, the regional emissions analysis must show that emissions 
from the transportation system, if the transportation plan or program 
were implemented, would be lower than 1990 levels.
    The transportation conformity rules provide for an exemption from 
these requirements with respect to NOX if the Administrator 
determines, under section 182(f) of the Act, that additional reductions 
of NOX would not contribute to attainment of the ozone NAAQS.

General Conformity

    The general conformity rule, entitled ``Determining Conformity of 
General Federal Actions to State or Federal Implementation Plans,'' was 
published in the Federal Register on November 30, 1993 (58 FR 63214). 
The rule was promulgated under section 176(c)(4) of the Act. The 
general conformity rule provides for an exemption from considering 
NOX if the area has been exempted under section 182(f) of the Act.

Scope of Exemptions

    If the USEPA Administrator determines, under section 182(f) of the 
Act, that additional reductions of NOX would not contribute to 
attainment of the ozone NAAQS, the area at issue shall automatically 
(i.e, a State would not need to submit an exemption request for each 
requirement) be exempt from the following requirements (as applicable): 
the NOX-related general and transportation conformity provisions, 
NOX RACT, and nonattainment area NSR for new sources and 
modifications that are major for NOX. Additionally, NOX 
emission reductions would not be required of an enhanced I/M program 
(see Section VI. for additional information).

II. Criteria for Evaluation of Exemption Requests

    The criteria used in the evaluation of the exemption requests can 
be found in the following: a notice published in the June 17, 1994 
Federal Register (59 FR 31238), entitled ``Conformity General Preamble 
for Exemption from Nitrogen Oxides Provisions,'' a USEPA memorandum 
from John S. Seitz, Director, Office of Air Quality Planning and 
Standards (OAQPS), dated May 27, 1994, entitled ``Section 182(f) 
Nitrogen Oxides (NOX) Exemptions--Revised Process and Criteria,'' 
and a USEPA guidance document entitled ``Guideline for Determining the 
Applicability of Nitrogen Oxides Requirements Under section 182(f),'' 
dated December 1993, OAQPS, Air Quality Management 
Division. [[Page 3363]] 

III. State Submittals

Marginal and Nonclassifiable Ozone Nonattainment Areas

    In a letter dated March 18, 1994, the OEPA submitted a request that 
the following marginal and nonclassifiable ozone nonattainment areas be 
exempt from the NOX-related transportation and general conformity 
requirements contained in Section 176(c) of the Act: Canton (Stark 
County), Columbus (Franklin, Delaware, and Licking Counties), 
Youngstown (Mahoning and Trumbull Counties), Steubenville (Jefferson 
and Columbiana Counties), Preble County, and Clinton County. 
Additionally, USEPA is proposing to grant exemptions from the NSR 
requirements for the following marginal ozone nonattainment areas: 
Canton (Stark County), Columbus (Franklin, Delaware, and Licking 
Counties), Youngstown (Mahoning and Trumbull Counties). The NSR 
requirements do not apply to the Steubenville area, Preble County, and 
Clinton County.

Cincinnati-Hamilton Interstate Moderate Ozone Nonattainment Area

    In a letter dated November 15, 1994, the OEPA submitted a request 
for an exemption from the requirements contained in section 182(f) of 
the Act for the Ohio portion of the Cincinnati-Hamilton Interstate 
Moderate ozone nonattainment area (which includes the Counties of 
Butler, Clermont, Hamilton, and Warren). This exemption request is 
based upon the most recent three years of ambient air monitoring data 
which demonstrate that the NAAQS for ozone has been attained in this 
area without additional reductions of NOX emissions.
    An exemption request from the requirements contained in section 
182(f) of the Act has also been submitted to USEPA--Region 4 by the 
Kentucky Department for Environmental Protection (KDEP) for the 
Kentucky portion of the interstate area (which includes the counties of 
Boone, Kenton, and Campbell). This exemption request is based upon the 
most recent three years of ambient air monitoring for ozone which 
demonstrate that the NAAQS for ozone has been attained in this area 
without additional reductions of nitrogen oxides (NOX). This 
exemption request will be evaluated in a separate rulemaking, to be 
performed be USEPA--Region 4.

Cleveland Moderate Ozone Nonattainment Area

    In a letter dated November 1, 1994, the OEPA submitted a request 
for an exemption from the requirements contained in section 182(f) of 
the Act for the Cleveland moderate ozone nonattainment area (which 
includes the counties of Ashtabula, Cuyahoga, Geauga, Lake, Lorain, 
Medina, Portage and Summit). This exemption request is based upon the 
most recent three years of ambient air monitoring data which 
demonstrate that the NAAQS for ozone has been attained in this area 
without additional reductions of NOX.

IV. Analysis of State Submittals

    USEPA has reviewed the ambient air monitoring data for ozone 
(consistent with the requirements contained in 40 CFR Part 58 and 
recorded in USEPA's--Aerometric Information Retrieval System--AIRS) 
submitted by the OEPA in support of these exemption requests.
    For ozone, an area is considered attainment of the NAAQS if there 
are no violations, as determined in accordance with 40 CFR 50.9, based 
on quality assured monitoring data from three complete consecutive 
calendar years. A violation of the ozone NAAQS occurs when the annual 
average number of expected exceedances is greater than 1.0 at any site 
in the area at issue. An exceedance occurs when the daily maximum 
hourly ozone concentration exceeds 0.124 parts per million (ppm).

Marginal and Nonclassifiable Ozone Nonattainment Areas

    The following ozone exceedances were recorded for the period from 
1991 to 1993:
    Canton: Stark County, 6318 Heminger Ave. (1991)--0.130 ppm; average 
expected exceedances: 0.3.
    Columbus: Franklin County, 5750 Maple Canyon (1991)--0.131 ppm; 
average expected exceedances: 0.3.
    Steubenville: no exceedances recorded;
    Youngstown: Mahoning County, 9 West Front Street (1991)--0.143 ppm; 
average expected exceedances: 0.3. Trumbull County, Community Hall 
(1993)--0.127 ppm; average expected exceedances: 0.3.
    Preble County: National Trials (1991)--0.129 ppm; average expected 
exceedances: 0.3.
    Clinton County: 62 Laurel Drive (1993)--0.125 ppm; average expected 
exceedances: 0.5 (based only on two years of monitoring data).

Cincinnati and Cleveland Ozone Nonattainment Areas

    The following ozone exceedances were recorded for the period from 
1992 to 1994:
    Cleveland: Medina County, 6364 Deerview (1994)--0.127 ppm; average 
expected exceedances: 0.5 (based only on two years of monitoring data). 
Cuyahoga County, 891 E. 125 St. (1993)--0.126 ppm, (1994) 0.127 ppm and 
0.125 ppm; average expected exceedances: 1.0.
    Cincinnati: Buttler County, Schuler and Bend (1993)--0.131 ppm; 
average expected exceedances: 0.3. Hook Field Municipal (1993)--0.138 
ppm; average expected exceedances: 0.3. Clermont County, 389 Main St. 
(1994)--0.128 ppm; average expected exceedances: 0.3. Warren County, 
Southeast St. (1994)--0.139 ppm and 0.128 ppm; average expected 
exceedances: 0.7.
    Thus, for all of the areas at issue, the annual average expected 
exceedances were not greater than 1.0, and thus, the areas are meeting 
the air quality standard for ozone.

V. NOX RACT Rules

Cincinnati-Hamilton Interstate Moderate Ozone Nonattainment Area

    The State of Ohio was required to submit NOX RACT rules to 
USEPA for Ohio portion of the interstate area. On July 14, 1994, USEPA 
notified the Governor of Ohio that the State had failed to submit the 
required rules. The State is required to either submit complete rules 
to USEPA (or have its NOX exemption request approved, in final) 
within 18 months from the date of the finding in order to avoid the 
initiation of sanctions under section 179(b) of the Act. Upon the 
effective date of the final approval of the exemption request for this 
area, the 18 month ``sanctions clock'' shall stop.
    On November 15, 1994, the State of Ohio submitted a redesignation 
request to attainment of the ozone NAAQS for the Ohio portion of the 
Cincinnati-Hamilton interstate ozone nonattainment area. This 
redesignation request will base evaluated in a separate rulmaking. The 
State has included NOX RACT as a contingency measure of the 
maintenance plan. The USEPA does not require that these rules be 
adopted to be included as a contingency measure. However, a specific 
schedule is provided for the adoption and implementation of NOX 
RACT if a violation is monitored in the area.

Cleveland Moderate Ozone Nonattainment Area

    The State of Ohio submitted adopted NOX RACT rules to USEPA on 
July 1, 1994, for the Toledo, Dayton, and Cleveland ozone nonattainment 
areas. These rules are currently under review and will be evaluated in 
a separate rulemaking. The State provided the following provision in 
the RACT rules submittal (Ohio Administrative Code [[Page 3364]] (3745-
14-02(B)(3)) for the suspension of the RACT rules:

    The Director also may suspend the requirements of this Chapter 
in an area in the event that the USEPA issues a national policy and/
or promulgates a regulation which, based upon the ambient air 
monitoring data for ozone in the area, eliminates the need for 
NOX control requirements in that area.

VI. Inspection and Maintenance (I/M) Programs

Cincinnati-Hamilton Interstate Moderate Ozone Nonattainment Area

    For the Cincinnati area, the local area opted for an enhanced I/M 
program. The I/M Final Rule (57 FR 52950) provides that if the 
Administrator determines that NOX emission reductions are not 
beneficial in a given ozone nonattainment area, then NOX emission 
reductions are not required of the enhanced I/M program, but the 
program shall be designed to offset NOX increases resulting from 
the repair of motor vehicles that have failed the hydrocarbon (HC) and 
carbon monoxide (CO) testing procedures.\1\ Upon the effective date of 
this action, the Butler, Clermont, Hamilton, and Warren Counties shall 
not be required to demonstrate compliance with the enhanced I/M 
performance standard for NOX. However, the State shall be required 
to demonstrate, using USEPA's--Mobile Source Emissions Model, Mobile 5a 
(or its successor), that NOX emissions will be no higher than in 
the absence of any I/M program.

    \1\Additional clarification concerning the I/M requirements and 
areas with NOX exemptions is provided in a memorandum from Mary 
T. Smith, Acting Director, Office of Mobile Sources, dated October 
14, 1994, entitled ``I/M Requirements in NOX RACT Exempt 
Areas.''
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Cleveland Moderate Ozone Nonattainment Area

    For the Cleveland area, the local area opted for an enhanced I/M 
program for the following counties: Cuyahoga, Geauga, Lake, Lorain, 
Medina, Portage and Summit. The I/M Final Rule (57 FR 52950) provides 
that if the Administrator determines that NOX emission reductions 
are not beneficial in a given ozone nonattainment area, then NOX 
emission reductions are not required of the enhanced I/M program, but 
the program shall be designed to offset NOX increases resulting 
from the repair of motor vehicles that have failed the hydrocarbon (HC) 
and carbon monoxide (CO) testing procedures. Upon the effective date of 
this action, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage and Summit 
Counties shall not be required to demonstrate compliance with the 
enhanced I/M performance standard for NOX. However, the State 
shall be required to demonstrate, using USEPA's--Mobile Source 
Emissions Model, Mobile 5a (or its successor), that NOX emissions 
will be no higher than in the absence of any I/M program.

VII. Withdrawal of the Exemptions

    Continuation of the Section 182(f) exemptions granted herein is 
contingent upon continued monitoring and continued attainment and 
maintenance of the ozone NAAQS in the affected area. If a violation of 
the ozone NAAQS is monitored in an area(s) (consistent with the 
requirements contained in 40 CFR Part 58 and recorded in AIRS) USEPA 
will provide notice to the public in the Federal Register withdrawing 
the exemption.
    A determination that the NOX exemption no longer applies would 
mean that the NOX NSR, general conformity, and transportation 
conformity provisions would immediately be applicable (see 58 FR 63214 
and 58 FR 62188) to the affected areas. The NOX RACT requirements 
would also be applicable, with a reasonable time provided to allow 
major stationary sources subject to the RACT requirements to purchase, 
install and operate required controls. The USEPA believes that the 
State may provide sources a reasonable time period after such USEPA 
determination to actually meet the RACT emission limits. The USEPA 
expects the entire time period to be as expeditious as practicable, but 
in no case longer than 24 months.

VIII. Miscellaneous Topics

Processing NOX Exemptions

    Section 182(f) contains very few details regarding the 
administrative procedure for USEPA action on NOX exemption 
requests. The absence of specific guidelines by Congress leaves USEPA 
with discretion to establish reasonable procedures, consistent with the 
requirements of the Administrative Procedure Act (APA).
    The USEPA believes that subsections 182(f)(1) and 182(f)(3) provide 
independent procedures for USEPA to act on NOX exemption requests. 
The language in subsection 182(f)(1), which indicates that USEPA should 
act on NOX exemptions in conjunction with action on a plan or plan 
revision, does not appear in subsection 182(f)(3). While subsection 
182(f)(3) references subsection 182(f)(1), USEPA believes that this 
reference encompasses only the substantive tests in paragraph (1) (and, 
by extension, paragraph (2)), and not the procedural requirement that 
USEPA act on exemptions only when acting on SIPs. Additionally, 
paragraph (3) provides that ``person[s]'' (which Section 302(e) of the 
Act defines to include States) may petition for NOX exemptions 
``at any time,'' and requires USEPA to make its determination within 
six months of the petition's submission. These key differences lead 
USEPA 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).
    Section 182(f)(1) 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, section 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 USEPA a limit of 6 months after 
filing to grant or deny such petitions. Since individuals may submit 
petitions under paragraph (3) ``at any time'' this must include times 
when there is no plan revision from the State pending at USEPA. The 
specific timeframe for USEPA action established in paragraph (3) is 
substantially shorter than the timeframe usually required for States to 
develop and for USEPA to take action on revisions to a SIP. These 
differences strongly suggest that Congress intended the process for 
acting on petitions under paragraph (3) to be distinct--and more 
expeditious--from the plan revision process intended under paragraph 
(1). Thus, USEPA believes that paragraph (3)'s reference to paragraph 
(1) encompasses only the substantive tests in paragraph (1) (and, by 
extension, paragraph (2)), not the requirement in paragraph (1) for 
USEPA to grant exemptions only when acting on plan revisions.

    \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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    With respect to major stationary sources, section 182(f) requires 
States to adopt NOX NSR and RACT rules, unless exempted. These 
rules were generally due to be submitted to USEPA by November 15, 1992. 
Thus, in order to avoid sanctions under the Act, areas seeking a 
NOX exemption would have needed to submit their exemption request 
for USEPA review and rulemaking action several months before November 
15, 1992. In contrast, the Act specifies that the attainment 
[[Page 3365]] demonstrations are not due until November 1993 or 1994 
(and USEPA may take 12-18 months to approve or disapprove the 
demonstration). For marginal ozone nonattainment areas (subject to 
NOX NSR), no attainment demonstration is called for in the Act. 
For maintenance plans, the Act does not specify a deadline for 
submittal of maintenance demonstrations. Clearly, the Act envisions the 
submittal of, and USEPA action on, exemption requests, in some cases, 
prior to submittal of attainment or maintenance demonstrations.
    The Act requires conformity with regard to federally-supported 
NOX generating activities in relevant nonattainment and 
maintenance areas. However, USEPA's conformity rules explicitly provide 
that these NOX requirements would not apply if USEPA grants an 
exemption under section 182(f).
    The USEPA notes that the issue of using section 182(b)(1) as the 
appropriate vehicle for dealing with exemptions from the NOX 
requirements of the conformity rule has been raised in a formal 
petition for reconsideration of USEPA'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. Thus the issue is under 
further consideration, but at this time the Agency's position remains 
as stated above.
    Additionally, section 182(f)(3) requires that NOX exemption 
petition determinations be made by USEPA within six months. The USEPA 
has stated in previous guidance that it intends to meet this statutory 
deadline as long as doing so is consistent with the APA. The USEPA 
believes that until the issue is resolved, the applicable rules 
governing this matter are those that appear in USEPA's final conformity 
regulations, and that USEPA remains bound by their existing terms.

Demonstrating Attainment

    Under section 182(f)(1)(A), an exemption from the NOX 
requirements may be granted for nonattainment area outside an ozone 
transport region if USEPA determines that ``additional reductions of 
(NOX) would not contribute to attainment'' of the ozone NAAQS in 
those areas. In some cases, an ozone nonattainment area might attain 
the ozone standard, as demonstrated by 3 years of adequate monitoring 
data, without having implemented the Section 182(f) NOX provisions 
over that 3-year period.
    In cases where a nonattainment area is demonstrating attainment 
with 3 consecutive years of air quality monitoring data without having 
implemented the section 182(f) NOX provisions, USEPA believes that 
the section 182(f) test is met since ``additional reductions of 
(NOX) would not contribute to attainment'' of the NAAQS in that 
area. The USEPA's approval of the exemption 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).

Transport of Ozone Precursors

    The USEPA intends to use its authority under section 110(a)(2)(D) 
to require a State to reduce NOX emissions from stationary and/or 
mobile sources where there is evidence, such as photochemical grid 
modeling, showing that NOX emissions would contribute 
significantly to nonattainment in, or interfere with maintenance by, 
any other State. This action would be independent of any action taken 
by USEPA on a NOX exemption request for stationary sources under 
section 182(f). That is, USEPA action to grant or deny a NOX 
exemption request under section 182(f) would not shield that area from 
USEPA action to require NOX emission reductions, if necessary, 
under section 110(a)(2)(D).
    Modeling analyses are underway in many areas for the purpose of 
demonstrating attainment in the 1994 SIP revisions. Recent modeling 
data suggest that certain ozone nonattainment areas may benefit from 
reductions in NOX emissions far upwind of the nonattainment area. 
For example, the northeast corridor and the Lake Michigan areas are 
considering attainment strategies which rely in part on NOX 
emission reductions hundreds of miles upwind. The USEPA is working with 
the States and other organizations to design and complete studies which 
consider upwind sources and quantify their impacts. As the studies 
progress, USEPA will continue to work with the States and other 
organizations to develop mutually acceptable attainment strategies.
    At the same time as these large scale modeling analyses are being 
conducted, certain nonattainment areas that are located in the area 
being modeled have requested exemptions from NOX requirements 
under section 182(f). Some areas requesting an exemption may be upwind 
of and impact upon downwind nonattainment areas. The USEPA intends to 
address the transport issue through section 110(a)(2)(D) based on a 
domain-wide modeling analysis.
    Under section 182(f) of the Act, an exemption from the NOX 
requirements may be granted for nonattainment areas outside an ozone 
transport region if USEPA determines that ``additional reductions of 
(NOX) would not contribute to attainment of the national ambient 
air quality standard for ozone in the area.''\4\ As described in 
section 4.3 of the December 16, 1993 guidance document, USEPA believes 
that the term ``area'' means the ``nonattainment area,'' and that 
USEPA's determination is limited to consideration of the effects in a 
single nonattainment area due to NOX emissions reductions from 
sources in the same nonattainment area.

    \4\There are three NOX exemption tests specified in Section 
182(f). Of these, two are applicable for areas outside an ozone 
transport region; the ``contribute to attainment'' test described 
above, and the ``net air quality benefits'' test. The USEPA must 
determine, under the latter test, that the net benefits to air 
quality in an area ``are greater in the absence of NOX 
reductions'' from relevant sources. Based on the plain language of 
Section 182(f), USEPA believes that each test provides an 
independent basis for receiving a full or limited NOX 
exemption. Consequently, as stated in Section 1.4 of the December 
16, 1993 USEPA guidance, ``[w]here any one of the tests is met (even 
if another test is failed), the Section 182(f) NOX requirements 
would not apply or, under the excess reductions provision, a portion 
of these requirements would not apply.''
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    Section 4.3 of the guidance goes on to encourage, but not require, 
States/petitioners to include consideration of the entire modeling 
domain, since the effects of an attainment strategy may extend beyond 
the designated nonattainment area. Specifically, the guidance 
encourages States to ``consider imposition of the NOX requirements 
if needed to avoid adverse impacts in downwind areas, either intra- or 
inter-State. States need to consider such impacts since they are 
ultimately responsible for achieving attainment in all portions of 
their State (see generally section 110) and for ensuring that emissions 
originating in their State do not contribute significantly to 
nonattainment in, or interference with maintenance by, any other State 
(see section 110(a)(2)(D)(i)(I)).''
    In contrast, section 4.4 of the guidance states that the Section 
182(f) demonstration would not be approved if there is evidence, such 
as photochemical grid modeling, showing that the NOX exemption 
would interfere with attainment or maintenance in downwind areas. The 
guidance goes on to explain that section 110(a)(2)(D) (not section 
182(f)) prohibits such impacts.
    Consistent with the guidance in section 4.3, USEPA believes that 
the section 110(a)(2)(D) and 182(f) provisions must be considered 
independently. Thus, if there is [[Page 3366]] evidence that NOX 
emissions in an upwind area would interfere with attainment or 
maintenance in a downwind area, that action should be separately 
addressed by the State(s) or, if necessary, by USEPA in a section 
110(a)(2)(D) action. In addition, a section 182(f) exemption request 
should be independently considered by USEPA. In some cases, then, USEPA 
may grant an exemption from across-the-board NOX RACT controls 
under section 182(f) and, in a separate action, require NOX 
controls from stationary and/or mobile sources under section 
110(a)(2)(D). It should be noted that the controls required under 
section 110(a)(2)(D) may be more or less stringent than RACT, depending 
upon the circumstances. Consistent with these principles, USEPA is 
proposing to approve these exemption requests under section 182(f) of 
the Act. If evidence appears that NOX emissions in an upwind area 
would interfere with attainment or maintenance in a downwind area, 
appropriate action shall be taken by the State(s) or, if necessary, by 
USEPA under section 110(a)(2)(D).

Conformity Provisions

    With respect to conformity, USEPA's conformity rules\5\\6\ provide 
a NOX waiver if an area receives a section 182(f) exemption. In 
its ``Conformity; General Preamble for Exemption From Nitrogen Oxides 
Provisions,'' 59 FR 31238, 31241 (June 17, 1994), USEPA reiterated its 
view that in order to conform, nonattainment and maintenance areas must 
demonstrate that the transportation plan and transportation improvement 
program (TIP) 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. The June 17th notice states that USEPA 
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, 
USEPA also intends to require consistency with the attainment 
demonstration's NOX motor vehicle emissions budget. However, the 
exemptions at issue were submitted pursuant to section 182(f)(3), and 
USEPA does not believe it is appropriate to delay action on these 
petitions, especially in light of the statutory deadline, until the 
conformity rule is amended. As noted above, this issue has also been 
raised in a formal petition for reconsideration of the Agency'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. Thus 
the issue is under further consideration, but at this time the Agency's 
position remains as stated. The USEPA, therefore, believes that the 
currently applicable rules governing this matter are those that appear 
in the Agency's final conformity regulations, and the Agency remains 
bound by their existing terms.

    \5\``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. of the Federal 
Transit Act,'' November 24, 1993 (58 FR 62188).
    \6\``Determining Conformity of General Federal Actions to State 
or Federal Implementation Plans; Final Rule,'' November 30, 1993 (58 
FR 63214).
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IX. Proposed Action

    The USEPA is proposing to approve the exemption requests from the 
requirements contained in section 182(f) of the Act for the areas 
previously identified. This approval would exempt the following 
counties in Ohio from the NOX-related general and transportation 
conformity provisions, NOX RACT (as applicable), and nonattainment 
area NSR for new sources and modifications that are major for NOX: 
Hamilton, Butler, Warren, Clermont, Ashtabula, Cuyahoga, Geauga, Lake, 
Lorain, Medina, Portage, Summit, Stark, Delaware, Franklin, Licking, 
Mahoning, Trumbull, Jefferson, Columbiana, Preble, and Clinton. 
Additionally, the following counties in Ohio would not be required to 
demonstrate compliance with the enhanced I/M performance standard for 
NOX: Hamilton, Butler, Warren, Clermont, Cuyahoga, Geauga, Lake, 
Lorain, Medina, Portage and Summit.
    This proposed approval is based upon the evidence provided by the 
State and the State's compliance with the requirements outlined in the 
applicable USEPA guidance.

X. Procedural Background

    Public comments are solicited on USEPA's proposed rulemaking 
action. Public comments received by February 16, 1995, will be 
considered in the development of USEPA's final rulemaking action.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any state implementation plan. Each request for revision to the state 
implementation plan shall be considered separately in light of specific 
technical, economic, and environmental factors and in relation to 
relevant statutory and regulatory requirements.
    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993 
memorandum from Michael H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. The Office of Management and Budget has exempted 
this regulatory action from Executive Order 12866 review.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
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, USEPA 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 populations of less than 
50,000.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen oxides, 
Ozone, Volatile organic compounds, Intergovernmental relations, 
Reporting an recordkeeping requirements.

    Authority: 42 U.S.C. 4201-767q.

    Dated: January 5, 1995.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 95-1066 Filed 1-13-95; 8:45 am]
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