[Federal Register Volume 60, Number 20 (Tuesday, January 31, 1995)]
[Rules and Regulations]
[Pages 5861-5864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2282]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[LA-20-1-6786; FRL-5144-7]


Transportation Conformity; Approval of Petition for Exemption 
from Nitrogen Oxides Provisions, Nonclassifiable Ozone Nonattainment 
Areas, Louisiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving a petition from the State of Louisiana 
requesting that the nonclassifiable ozone nonattainment areas in the 
State be exempted from the requirement to perform the oxides of 
nitrogen (NOx) portion of the build/no-build test required by the 
new Federal transportation conformity rule. This petition for exemption 
was submitted on August 5, 1994.

EFFECTIVE DATE: This action will become effective on March 2, 1995.

ADDRESSES: Copies of the State's petition and other information 
relevant to this action are available for inspection during normal 
hours at the above location and at the following locations:

U.S. Environmental Protection Agency, Region 6, Air Programs Branch 
(6T-A), 1445 Ross Avenue, suite 700, Dallas, Texas 75202-2733.
Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, 401 M Street SW., Washington, DC 20460.
Louisiana Department of Environmental Quality, Air Quality Division, 
P.O. Box 82135, Baton Rouge, Louisiana 70884-2135.

Anyone wishing to review this petition at the US EPA office is asked to 
contact the person below to schedule an appointment 24 hours in 
advance.

FOR FURTHER INFORMATION CONTACT: Mr. Mick Cote, Planning Section (6T-
AP), Air Programs Branch, U.S. Environmental Protection Agency, 
telephone (214) 665-7219.

SUPPLEMENTARY INFORMATION:

Background

    The transportation conformity final rule, entitled ``Criteria and 
Procedures for Determining Conformity to State or Federal 
Implementation Plans of Transportation Plans, Programs, and Projects 
Funded or Approved Under title 23 U.S.C. or the Federal Transit Act,'' 
was published in the Federal Register on November 24, 1993 (58 FR 
62188). This action was required under Section 176(c)(4) of the Clean 
Air Act (CAA). The transportation conformity rule requires each ozone 
nonattainment area and maintenance area to perform a regional analysis 
of motor vehicle volatile organic compound and NOX emissions from 
any planned transportation project. This analysis must demonstrate that 
the emissions which would result from the proposed transportation 
system if the transportation plan were implemented are within the total 
allowable level of [[Page 5862]] emissions described in the motor 
vehicle emissions budget.
    Until an attainment demonstration or maintenance plan is approved 
by the EPA, this emissions analysis must pass the build/no-build test. 
This analysis must demonstrate that the emissions from the planned 
transportation project, if implemented, would be less than the 
emissions without the planned transportation project. Thus, the build/
no-build test is intended to ensure that the transportation plan 
contributes to annual emissions reductions consistent with the CAA 
until such time as the attainment demonstration or maintenance plan is 
approved.
    On June 17, 1994 (59 FR 31238), the EPA published a national 
interpretation of transportation conformity and 182(f) exemptions 
entitled ``Transportation Conformity; General Preamble for Exemption 
From Nitrogen Oxides Provisions'' (General Preamble). This General 
Preamble clarifies and interprets how ozone nonattainment areas 
classified as less than marginal, which have air quality monitoring 
data demonstrating attainment of the National Ambient Air Quality 
Standards (NAAQS) for ozone, may be exempted from certain NOX 
requirements.
    As explained in the General Preamble, the EPA believes that a 
demonstration of attainment made through adequate air quality 
monitoring data, consistent with 40 CFR part 58 and recorded in EPA's 
Aerometric Information Retrieval System (AIRS), can qualify an area as 
a ``clean data area''. Further, the EPA believes these ``clean data 
areas'' can request an exemption from the NOX provisions of 
transportation conformity. The 182(f) exemption will be conditioned 
upon the area's monitoring data continuing to demonstrate attainment 
after an exemption is granted. If the EPA determines that an exempted 
area has violated the ozone standard, the 182(f) exemption will be 
rescinded. Any decision to rescind the NOX exemption would be 
based on an evaluation of the air quality data recorded in AIRS. Past 
conformity determinations and transportation plans would not be 
affected, but new conformity determinations would be subject to the 
NOX provisions of the conformity rule.
    On August 5, 1994, the State of Louisiana submitted a petition to 
the EPA requesting that the parishes of Beauregard, Grant, Lafayette, 
Lafourche, Jefferson, Orleans, St. Bernard, St. Charles, St. James, and 
St. Mary be exempted from the requirement to perform the NOX 
portion of the build/no-build test required by the new transportation 
conformity rule. This exemption request for the abovementioned 
nonclassifiable ozone nonattainment areas is pursuant to the General 
Preamble for transportation conformity NOX exemptions.
    On November 7, 1994, EPA announced its proposed approval of the 
NOX exemption request for the nonclassifiable ozone nonattainment 
areas in Louisiana (57 FR 55400). In that proposed rulemaking action, 
EPA described in detail its rationale for approving this NOX 
exemption request, considering the specific factual issues presented. 
Rather than repeating that entire discussion in this document, it is 
incorporated by reference here. Thus, the public should review the 
notice of proposed rulemaking for relevant background on this final 
rulemaking action.

Response to Comments

    EPA requested public comments on all aspects of the proposed 
rulemaking action (please reference 59 FR 55400). One adverse comment 
letter was received from three environmental groups and contained 
generic comments objecting to the EPA's general policy on section 
182(f) exemptions.

Comment

    Certain commenters argued 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

    Section 182(f) contains very few details regarding the 
administrative procedure for acting on NOX exemption requests. The 
absence of specific guidelines by Congress leaves EPA with discretion 
to establish reasonable procedures, consistent with the requirements of 
the Administrative Procedure Act (APA).
    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 EPA 
to believe that Congress intended the exemption petition process of 
paragraph (3) to be distinct from 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]''1 may petition for a NOX determination ``at any 
time'' after the ozone precursor study required under section 185B of 
the Act is finalized,2 and gives EPA 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 EPA. The 
specific timeframe for EPA action established in paragraph (3) is 
substantially shorter than the timeframe usually required for States to 
develop and for EPA to take action on revisions to a SIP. These 
differences strongly suggest that Congress intended the process for 
acting on personal petitions to be distinct from and more expeditious 
than the plan-revision [[Page 5863]] process intended under paragraph 
(1). Thus, EPA 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 EPA 
to grant exemptions only when acting on plan revisions.

    \1\Section 302(e) of the Act defines the term ``person'' to 
include States.
    \2\The final section 185B report was issued July 30, 1993.
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    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 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, EPA notes that 
this issue has previously been raised in a formal petition for 
reconsideration of 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 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 Administrative Procedure Act. 
The EPA, therefore, believes that until a resolution of this issue is 
achieved, the applicable rules governing this issue are those that 
appear in EPA's final conformity regulations, and EPA remains bound by 
their existing terms.

Comment

    Three years of ``clean'' data fail to demonstrate that NOX 
reductions would not contribute to attainment. EPA's policy erroneously 
equates the absence of a violation for one three-year period with 
``attainment.''

Response

    The EPA has separate criteria for determining if an area should be 
redesignated to attainment under section 107 of the CAA. The section 
107 criteria are more comprehensive than the CAA requires with respect 
to NOX exemptions under section 182(f).
    Under section 182(f)(1)(A), an exemption from the NOX 
requirements may be granted for nonattainment areas outside an ozone 
transport region if EPA 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. The EPA believes that, 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, it is clear 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 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).

Comment

    Comments were received regarding exemption of areas from the 
NOX requirements of the conformity rules. They argue 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, 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, 
but want EPA in actions on NOX exemptions to explicitly affirm 
this obligation and to also avoid granting waivers until a budget 
controlling future NOX increases is in place.

Response

    With respect to conformity, EPA's conformity rules3,4 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), EPA reiterated its 
view that in order to conform nonattainment and maintenance areas must 
demonstrate that the transportation plan and 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. As the 
commenters correctly note, EPA states in the June 17th 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, 
EPA also intends to require consistency with the attainment 
demonstration's NOX motor vehicle emissions budget. However, the 
exemptions were submitted pursuant to section 182(f)(3), and 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 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. This issue, thus, is under 
consideration within the Agency, 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 Agency's final conformity regulations, and the Agency 
remains bound by their existing terms.

    \3\``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).
    \4\``Determining Conformity of General Federal Actions to State 
or Federal Implementation Plans; Final Rule,'' November 30, 1993 (58 
FR 63214).
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Final Action

    The EPA has evaluated the State's exemption request for consistency 
with the CAA, EPA regulations, and EPA policy. The EPA believes that 
the NOX exemption request and monitoring data qualifies the 
nonclassifiable ozone nonattainment areas of Louisiana as ``clean data 
areas''. This final action on the State of Louisiana's NOX 
exemption petition for its nonclassifiable ozone nonattainment areas is 
unchanged from the November 7, 1994, proposed approval action. In 
addition, the EPA has determined that the NOX exemption request 
meets the requirements and policy set forth in the General Preamble for 
NOX exemptions from the build/no-build test for transportation 
conformity, and today is approving Louisiana's request for exemption 
from the NOX build/no-build test of transportation conformity for 
the parishes of Beauregard, Grant, Lafayette, Lafourche, 
[[Page 5864]] Jefferson, Orleans, St. Bernard, St. Charles, St. James, 
and St. Mary in Louisiana. The 182(f) exemption will be conditioned 
upon the area's monitoring data continuing to demonstrate attainment 
after the exemption has been granted. If the EPA later determines that 
an above mentioned parish has violated the ozone standard, the 182(f) 
exemption will be rescinded for that parish. Past conformity 
determinations and transportation plans would not be affected, but new 
conformity determinations would then be subject to the NOX 
provisions of the conformity rule.
    The EPA has reviewed this request for exemption from the NOX 
provisions of the Federal transportation conformity rule for 
conformance with the provisions of the 1990 Clean Air Act Amendments 
enacted on November 15, 1990. The EPA has determined that this action 
conforms with those requirements.

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, under 5 U.S.C. 605(b), the EPA may certify that the rule 
will not have a significant impact on a substantial number of small 
entities (see 46 FR 8709). Small entities include small businesses, 
small not-for-profit enterprises, and governmental entities with 
jurisdiction over populations of less than 50,000.
    Because an exemption from the Federal transportation conformity 
rule 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.
    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 April 3, 1995. Filing a petition for 
reconsideration of this final rule by the Administrator does not affect 
the finality of this rule for 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

    The Office of Management and Budget has exempted this action from 
review under Executive order 12866.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental regulations, Reporting 
and recordkeeping, Ozone, Volatile organic compounds.

    Dated: January 13, 1995.
Barbara J. Goetz,
Acting Regional Administrator.

    40 CFR part 52 is 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 T--Louisiana

    2. Section 52.992 is added to read as follows:


Sec. 52.992  Area-wide nitrogen oxides exemptions.

    (a) The Louisiana Department of Environmental Quality submitted to 
the EPA on August 5, 1994, a petition requesting that the 
nonclassifiable ozone nonattainment areas in the State of Louisiana be 
exempted from the requirement to meet the NOX provisions of the 
Federal transportation conformity rule. The exemption request was based 
on monitoring data which demonstrated that the National Ambient Air 
Quality Standard for ozone had been attained in this area for the 3 
years prior to the petition. The parishes for which the NOX 
exemption was requested include: Beauregard, Grant, Lafayette, 
Lafourche, Jefferson, Orleans, St. Bernard, St. Charles, St. James, and 
St. Mary. The EPA approved this exemption request on March 2, 1995.
    (b) [Reserved].

[FR Doc. 95-2282 Filed 1-30-95; 8:45 am]
BILLING CODE 6560-50-P