[Federal Register Volume 60, Number 20 (Tuesday, January 31, 1995)]
[Rules and Regulations]
[Pages 5864-5867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2283]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[TX-44-1-6797; FRL-5144-8]


Transportation Conformity; Approval of Petition for Exemption 
From Nitrogen Oxides Provisions, Victoria County, Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving a petition from the State of Texas 
requesting that Victoria County, an incomplete data ozone nonattainment 
area, 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 May 4, 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.
Texas Natural Resource Conservation Commission, Office of Air Quality, 
12124 Park 35 Circle, P.O. Box 13087, Austin, Texas 78711-3087.

    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) as amended in 1990.
    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 emissions described in the motor vehicle emissions 
budget. [[Page 5865]] 
    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 section 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 the 
Federal transportation conformity rule. The section 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 
section 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 May 4, 1994, the State of Texas submitted a petition to the EPA 
requesting that the Victoria County incomplete data ozone nonattainment 
area 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 is pursuant to the recently 
published General Preamble for transportation conformity NOX 
exemptions.
    On August 12, 1994, EPA announced its direct final approval of the 
NOX exemption request from the State of Texas for Victoria County. 
In that direct final 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, that discussion is incorporated by 
reference herein. Thus, the public should review the notice of direct 
final rulemaking for relevant background on this final rulemaking 
action.

Response to Comments

    EPA requested public comments on all aspects of the direct final 
rulemaking action (59 FR 41408) and comments were received. Therefore 
the direct final rulemaking was withdrawn and comments applicable to 
the Victoria County area were considered and are discussed below.
    Comment: Certain commenters noted 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 concluded 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 
argued 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 Procedures 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 
6 months of the petition's submission.
    Further, 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 process intended under paragraph (1).

    \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 [[Page 5866]] 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 6 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 APA. 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. 
However, the commenters want EPA in actions on NOX exemptions to 
explicitly affirm this obligation and also to 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 to Federal 
requirements, 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 stated 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 exemption request and monitoring data qualifies Victoria County, 
Texas, as a ``clean data area''. This final action on the State of 
Texas' NOX exemption petition for Victoria County is unchanged 
from the August 12, 1994 direct final approval action. In addition, the 
EPA has determined that the 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 Texas' request for exemption from the NOX build/no-
build test of transportation conformity for Victoria County. The 
section 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 Victoria County has violated 
the ozone standard, the section 182(f) exemption will be rescinded. 
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 [[Page 5867]] 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, or postpone the effectiveness of this rule. 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 SS--Texas

    2. Section 52.2308 is amended by adding paragraph (c) to read as 
follows:


Sec. 52.2308  Area-wide nitrogen oxides (NOX) exemptions.

* * * * *
    (c) The Texas Natural Resource Conservation Commission submitted to 
the EPA on May 4, 1994, a petition requesting that the Victoria County 
incomplete data ozone nonattainment area 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 35 
months prior to the petition, with the understanding that approval of 
the State's request would be contingent upon the collection of one 
additional month of data. The required additional month of verified 
data was submitted later and, together with the data submitted with the 
State's petition, demonstrated attainment of the NAAQS for 36 
consecutive months. The EPA approved this exemption request on March 2, 
1995.

[FR Doc. 95-2283 Filed 1-30-95; 8:45 am]
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