[Federal Register Volume 60, Number 152 (Tuesday, August 8, 1995)]
[Rules and Regulations]
[Pages 40286-40291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19480]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[FRL-5274-1]


Transportation Conformity; Approval of Petition for Exemption 
From Nitrogen Oxides Provisions, Transitional Ozone Nonattainment Area, 
Colorado

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
petition from the Denver Regional Council of Governments (DRCOG) 
requesting that the Denver metropolitan area, an ozone nonattainment 
area classified as transitional, be exempted from the requirements 
regarding the control of oxides of nitrogen (NOX) imposed by the 
Federal conformity rules. The initial petition for exemption was 
submitted by DRCOG on May 25, 1994. Supporting documentation for the 
initial petition was submitted August 1, 1994.

EFFECTIVE DATE: This action is effective as of July 28, 1995.

ADDRESSES: Copies of the documents relevant to these actions are 
available for public inspection during normal business hours at the 
following location. The interested persons wanting to examine these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day. U.S. Environmental Protection 
Agency, Region 8, Air Quality Branch (8ART-AP), 999 18th Street, Suite 
500, Denver, Colorado 80202-2466.

FOR FURTHER INFORMATION CONTACT: Aundrey C. Wilkins, SIP Section (8ART-
AP), Air Programs Branch, United States Environmental Protection 
Agency, Region VIII, 999 18th Street, Suite 500, Denver, Colorado, 
80202-2466, telephone (303) 294-1379. Fax: 303-293-1229.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 182(f) of the Clean Air Act requires States to apply the 
same requirements to major stationary sources of NOX as are 
applied to major stationary sources of VOC. The new NOX 
requirements are reasonably available control technology (RACT) and new 
source review (NSR). Section 182(f) also specifies circumstances under 
which the NOX requirements would be limited or would not apply.
    EPA's general and transportation conformity rules, as well as the 
Inspection and Maintenance (I/M) regulations, reference the section 
182(f) exemption process as a means for exempting affected areas from 
certain NOX conformity requirements. See 58 FR 62197, November 24, 
1993, Transportation Conformity; and 58 FR 63240, November 30, 1993, 
General Conformity; and 57 FR 52989, I/M.
    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. EPA has indicated 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 this test is met since ``additional 
reductions of NOX would not contribute to attainment'' of the 
NAAQS in that area.
    This interpretation is discussed in a May 27, 1994 memorandum from 
John S. Seitz, Director, Office of Air Quality Planning and Standards 
(OAQPS), entitled ``Section 182(f) Nitrogen Oxides (NOX) 
Exemptions--Revised Process and Criteria.'' This memorandum revised 
relevant portions of previously-issued OAQPS guidance dated December, 
1993, entitled ``Guideline for Determining the Applicability of 
Nitrogen Oxide Requirements under Section 182(f).'' Both documents 
address EPA's policy regarding NOX exemptions for areas outside an 
ozone transport region that have air quality monitoring data showing 
attainment. The Enhanced I/M regulations, the section 182(f) NOX 
RACT and NSR requirements and the guidance cited above apply only to 
marginal and above ozone nonattainment areas, but not nonclassifiable 
ozone nonattainment areas (i.e., submarginal, transitional, and 
incomplete/no data). However, a June 17, 1994, EPA document entitled 
``Conformity; General Preamble for Exemption from Nitrogen Oxides 
Provisions'' (59 FR 31238) (``General Preamble''), among other things, 
provides guidance on the exemption of nonclassifiable ozone 
nonattainment areas, outside an ozone transport region, from the 
conformity rule's NOX requirements based on air quality monitoring 
data showing attainment. As a transitional ozone nonattainment area, 
the Denver metropolitan area falls within the ``nonclassifiable'' 
category.
    Under the general conformity rule, NOX emissions that are 
caused by federal actions that exceed applicable threshold levels are 
required to demonstrate conformity to the applicable SIP. The 
transportation 

[[Page 40287]]
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 were implemented are within 
the total allowable level of NOX emissions from highway and 
transit motor vehicles (``the emission budget'') as identified in a 
submitted (or approved) attainment demonstration or maintenance plan. 
Until an attainment demonstration (or for nonclassifiable areas a 
maintenance plan) is approved by the EPA, 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.
    With respect to the NOX requirements of the conformity rules, 
DRCOG submitted a NOX exemption petition on May 25, 1994 and 
submitted supporting documentation via a letter dated August 1, 1994. 
Ambient air quality data provided with the DRCOG petition showed no 
violations of the ozone NAAQS during the three-year period from 1991 
through 1993. Further, the Colorado Air Pollution Control Division 
(APCD) provided additional air quality data for the same time period 
supporting DRCOG's position that there were no violations.
    On March 23, 1995, EPA announced its proposed approval of the 
NOX exemption request for the nonclassifiable ozone nonattainment 
area of the Denver metropolitan area (56 FR 15269). 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.

II. Response to Comments

    The EPA requested public comments on all aspects of the proposed 
action to approve the section 182(f) petition for the Denver 
metropolitan area. The EPA received six letters of support.
    The EPA received four adverse comment letters and one letter 
requesting a clarification. One of the adverse letters was signed by 
three environmental groups and contained comments objecting to the 
EPA's general policy on section 182(f) exemptions. This group of three 
requested that their letter be included in each EPA rulemaking action 
for section 182(f) petitions. One of the four adverse comment letters 
was received on August 5, 1994, prior to publication of the EPA 
proposed approval rulemaking. EPA also received one letter that was not 
adverse but asked that the impact of granting an ozone NOX 
exemption be made clearer. EPA is responding to all of these comments 
in the final rulemaking.

Comment 1

    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)(3)(A)(iii), the CAA's conformity provisions.

EPA 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 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.

    \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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    In regard to the comment concerning the appropriate Act authority 
for granting transportation-related NOX waivers, the EPA agrees, 
with certain exceptions, that section 182(b)(1) is the appropriate 
authority under the Act for waiving the transportation conformity 
rule's NOX ``build/no build'' and ``less-than-1990'' tests, and is 
in the process of amending the rule to be consistent with the statute. 
However, the EPA believes that this authority is only applicable with 
respect to those areas that are subject to section 182(b)(1). 

[[Page 40288]]

    Marginal and below ozone nonattainment areas (which includes 
nonclassifiable areas like Denver) are not subject to section 
176(c)(3)(A)(iii) because they are not subject to section 182(b)(1). 
These areas, however, are still subject to the requirements of section 
176(c)(1), which sets out criteria that, if met, will assure 
consistency with the SIP. The EPA believes it is reasonable and 
consistent with the Act to provide relief under section 176(c)(1) from 
the interim-period NOX transportation conformity requirements 
where the Agency has determined that NOX reductions would not be 
beneficial, and to rely, in doing so, on the NOX exemption tests 
provided in section 182(f).
    The basic approach of the Act is that NOX reductions should 
apply when beneficial to an area's attainment goals, and should not 
apply when unhelpful or counterproductive. Section 182(f) reflects this 
approach, but also includes specific substantive tests which provide a 
basis for EPA to determine when NOX requirements should not apply. 
Whether under section 182(b)(1) or section 182(f), where EPA has 
determined that NOX reductions will not benefit attainment or 
would be counterproductive in an area, the EPA believes it would be 
unreasonable to insist on NOX reductions for purposes of meeting 
RFP or other milestone requirements. Moreover, there is no substantive 
difference between the technical analysis required to make an 
assessment of NOX impacts on attainment in a particular area, 
whether undertaken with respect to mobile source or stationary source 
NOX emissions. Consequently, the EPA believes that granting relief 
from the NOX conformity requirements of section 176(c)(1) under 
section 182(f) in these cases is appropriate.

Comment 2
    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.''

EPA 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 3

    Some commenters argued that in Denver's case, the EPA has 
previously determined that the ozone monitoring network was 
insufficient and an ambient air station for the measurement of ozone in 
the southwest metropolitan area has not yet been established. Thus, 
approval of the NOX exemption is based on an inadequate monitoring 
network and the health of Colorado residents will not be protected if a 
NOX exemption is granted.

EPA Response

    EPA disagrees with the commenter that approval of this NOX 
exemption is based upon an inadequate monitoring network and that the 
health of Colorado residents will not be protected if an exemption is 
granted. Also, as explained below, an ambient air station has been 
established in the southwest metropolitan area. No exceedances have 
been recorded in 1994 at either the old or newer ozone ambient air 
monitoring stations. Although the commenter is correct in saying that 
there have been concerns expressed in the past about the monitoring 
network by EPA, as the proposal made clear, EPA believes that the major 
concerns have been corrected and any remaining concerns do not provide 
a significant enough basis to deny the NOX exemption request. 
EPA's concerns about the network--conveyed initially to the APCD in 
1989--primarily involved the adequacy of the system to monitor the 
maximum concentration areas, as required by 40 CFR part 58. Various 
actions have since been undertaken by the APCD to address EPA's primary 
concerns, and efforts are ongoing to address other, more general 
concerns. There are ten sites currently on the Denver ozone ambient 
monitoring network. These include two sites added in 1993 in the 
northwest portion of the nonattainment area at NREL (National Renewable 
Energy Lab site) and South Boulder Creek. One new site was recently 
added this year at the Chatfield Reservoir by Campground in the 
southwest. There have been no violations recorded by the Denver ozone 
ambient air monitoring network during the three years in review (1991, 
1992, 1993) nor during 1994. Data in AIRS show only one exceedance (of 
127 ppb) during this time, which occurred in 1993 at the South Boulder 
Creek site. Despite the lack of violations, additional analyses of the 
ozone ambient air monitoring network were undertaken, in part at EPA's 
urging, to ensure that future ozone pollution would continue to be 
adequately monitored. The commenter expressed concern about the 
adequacy of monitoring in the southwest, but the 1993 Denver Summer 
Ozone Study determined that higher ozone values--and perhaps the true 
maximum concentration sites--were appearing in the northwest, rather 
than the southwest, portion of the nonattainment area. And, thus, 
priority was given to placing new sites in the northwest. EPA believes 
the continued relatively higher values at the NREL and South Boulder 
Creek sites, as well as the exceedance at the latter site in 1993, tend 
to support that determination. The APCD has committed to continue 
reviewing the network and making necessary adjustments as promptly as 
feasible. In accord with these commitments, the APCD submitted to EPA 
in June, 1994 a summary of an ozone monitoring plan, showing a phased 
set of modifications to the network to be accomplished over the next 
five years. EPA believes, based on its evaluation of all the available 
information and analyses presented in support of this exemption 
request, that the data satisfactorily demonstrates that the Denver 
area's air quality has been ``clean'' for the requisite three years. 
Finally, an added precaution is built into EPA's policy in that 
approval of NOX exemptions are granted on a contingent basis 
(i.e., the exemption lasts for only as long as the area's monitoring 
data continue to demonstrate attainment); if a violation occurs, the 
exemption would no longer be applicable.

Comment 4

    Comments were received regarding the scope of exemption of areas 
from the NOX requirements of the conformity 

[[Page 40289]]
rules. Commenters 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.
EPA Response

    With respect to conformity, EPA's conformity rules 3 4 provide 
a NOX waiver if an area receives a section 182(f) exemption. In 
its Federal Register Notice entitled ``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. EPA has begun the 
process to do so. 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. The commenter suggests that EPA should delay action on the 
NOX exemption request until the rulemaking that amends this 
portion of the transportation conformity rule has been finalized. 
However, EPA believes that, despite the error in the rule, it has 
consistently made it clear that the intent of the statute and of the 
rule requires the transportation plan and TIP to demonstrate 
consistency with the NOX motor vehicle emissions budget, even 
where a waiver has been granted. Moreover, this exemption is being 
processed under section 182(f)(3), which requires EPA to act within 6 
months on the petition. EPA does not believe it is appropriate to delay 
acting on petitions to wait for the rule to be amended, especially 
given the short timeframe within which that action is expected to 
occur.

    \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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Comment 5

    Comments were received saying the CAA does not authorize any waiver 
of the NOX reduction requirements until conclusive evidence exists 
that such reductions are counter-productive.

EPA Response

    EPA does not agree with this comment since it ignores Congressional 
intent as evidenced by the plain language of section 182(f), the 
structure of the Title I ozone subpart as a whole, and relevant 
legislative history. By contrast, in developing and implementing its 
NOX exemption policies, EPA has sought an approach that reasonably 
accords with that intent. Section 182(f), in addition to imposing 
control requirements on major stationary sources of NOX similar to 
those that apply for such sources of VOC, also provides for an 
exemption (or limitation) from application of these requirements if, 
under one of several tests, EPA determines that in certain areas 
NOX reductions would generally not be beneficial. In subsection 
182(f)(1), Congress explicitly conditioned action on NOX 
exemptions on the results of an ozone precursor study required under 
section 185B. Because of the possibility that reducing NOX in a 
particular area may either not contribute to ozone attainment or may 
cause the ozone problem to worsen, Congress included attenuating 
language, not just in section 182(f) but throughout the Title I ozone 
subpart, to avoid requiring NOX reductions where it would be 
nonbeneficial or counterproductive. In describing these various ozone 
provisions (including section 182(f)), the House Conference Committee 
Report states in pertinent part: ``[T]he Committee included a separate 
NOX/VOC study provision in section [185B] to serve as the basis 
for the various findings contemplated in the NOX provisions. The 
Committee does not intend NOX reduction for reduction's sake, but 
rather as a measure scaled to the value of NOX reductions for 
achieving attainment in the particular ozone nonattainment area.'' H.R. 
Rep. No. 490, 101st Cong., 2d Sess. 257-258 (1990). As noted in 
response to an earlier comment by these same commenters, the command in 
subsection 182(f)(1) that EPA ``shall consider'' the 185B report, taken 
together with the timeframe the Act provides both for completion of the 
report and for acting on NOX exemption petitions, clearly 
demonstrate that Congress believed the information in the completed 
section 185B report would provide a sufficient basis for EPA to act on 
NOX exemption requests, even absent the additional information 
that would be included in affected areas' attainment or maintenance 
demonstrations. However, while there is no specific requirement in the 
Act that EPA actions granting NOX exemption requests must await 
``conclusive evidence'', as the commenters argue, there is also nothing 
in the Act to prevent EPA from revisiting an approved NOX 
exemption if warranted due to better ambient information.
    In addition, the EPA believes (as described in EPA's December 1993 
guidance) that section 182(f)(1) of the CAA provides that the new 
NOX requirements shall not apply (or may be limited to the extent 
necessary to avoid excess reductions) if the Administrator determines 
that any one of the following tests is met:
    (1) in any area, the net air quality benefits are greater in the 
absence of NOX reductions from the sources concerned;
    (2) in nonattainment areas not within an ozone transport region, 
additional NOX reductions would not contribute to ozone attainment 
in the area; or
    (3) in nonattainment areas within an ozone transport region, 
additional NOX reductions would not produce net ozone air quality 
benefits in the transport region.
    Based on the plain language of section 182(f), EPA believes that 
each test provides an independent basis for receiving a full or limited 
NOX exemption.
    Only the first test listed above is based on a showing that 
NOX reductions are ``counter-productive.'' If 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.

Comment 6

    Commenters raised specific issues about the adequacy of the DRCOG 
2015 Interim Regional Transportation Plan to ensure health standards 
when considered in relation to approval of the NOX waiver. They 
further stated that 

[[Page 40290]]
granting an exemption would apparently last for the length of the 
transportation plan.

EPA Response

    EPA disagrees with the commenters that the NOX exemption would 
automatically last for the length of the transportation plan. EPA has 
already stated that it is amending the conformity rule to require that 
transportation plans and TIPs are consistent with the approved 
maintenance plan's and attainment demonstration's NOX motor 
vehicle emissions budget, even where a conformity NOX exemption 
has been granted. In addition, the exemption is being granted on a 
contingent basis (i.e. the exemption will last for only as long as the 
area's monitoring data continue to demonstrate attainment).
    The specific arguments about what the 2015 Interim Regional 
Transportation Plan as a whole will or will not do in relation to the 
various air pollutants are beyond the scope of the EPA guidance for 
granting ozone NOX exemptions. The effect of a NOX exemption 
for Denver is limited solely to the issue of whether it may be exempted 
from meeting the applicable ozone NOX requirements of the 
transportation and general conformity rules.

Comment 7

    One commenter asked that EPA make clear the impact of granting a 
NOX exemption from the conformity requirements. The commenter 
noted that the proposed rulemaking for this NOX exemption request 
stated in Section V: ``As currently written, none of the transportation 
conformity rule's NOX requirements would ever apply to an area 
once such an area had received a NOX transportation conformity 
exemption''. The commenter believes that the rule should make it clear 
that transportation conformity NOX requirements will continue to 
apply in Denver for wintertime NOX emissions because the Denver 
metropolitan Nonattainment Area Element of the Colorado State 
Implementation Plan for Particulate Matter (PM-10) establishes 
emissions budgets for NOX.

EPA Response

    EPA agrees with the commenter that the impact of the ozone NOX 
exemption is only whether the Denver area may be exempted from meeting 
the applicable ozone NOX requirements. Applicable PM-10 NOX 
requirements will still have to be met. Specifically, the 
transportation conformity rule's NOX requirements will continue to 
apply in Denver for wintertime NOX emissions for PM-10. In 
addition, EPA has already noted that it intends to amend the 
transportation conformity rule to ensure that areas are consistent with 
motor vehicle emissions budgets for ozone and PM-10 NOX, even if 
an ozone NOX exemption has been granted.

III. Effective Date

    This rulemaking is effective as of July 28, 1995. The 
Administrative Procedure Act (APA) 5 U.S.C. 553(d)(1), permits the 
effective date of a substantive rule to be less than thirty days after 
publication of the rule if the rule ``relieves a restriction.'' Since 
the approval of the section 182(f) exemptions for the Denver 
metropolitan area is a substantive rule that relieves the restrictions 
associated with the CAA title I requirements to control NOX 
emissions, the NOX exemption approval may be made effective upon 
signature by the Regional Administrator.

IV. Final Action

    The EPA has evaluated the DRCOG's exemption request for consistency 
with the CAA, EPA regulations, and EPA policy. The EPA believes that 
the exemption request and monitoring data qualifies the Denver 
metropolitan area as a ``clean data area''. Therefore, the EPA is 
granting Denver's section 182(f) exemption petition. The EPA has 
determined that the exemption petition, monitoring data, and other 
supporting data, meet the requirements and policy set forth in the 
General Preamble for Exemptions from the Transportation and General 
Conformity Nitrogen Oxides Provisions. The effect of this NOX 
transportation and general conformity exemption is that Denver is 
relieved of the conformity rule's requirements for regional analysis 
for ozone NOX emissions, as described earlier in section II, 
comment 7, of this notice. However, it should be noted that EPA's 
approval of the exemption is granted on a contingent basis, i.e., the 
exemption will last for only as long as the area's monitoring data 
continues to show no violations. If subsequently it is determined that 
the area has violated the standard, the exemption, as of the date of 
the determination, would no longer apply. EPA would notify the State 
that the exemption no longer applies, and would also provide notice to 
the public in the Federal Register. Existing transportation plans and 
TIPs and past conformity determinations will not be affected by the 
determination that the NOX exemption no longer applies, but new 
conformity determinations would have to observe the NOX 
requirements of the conformity rule. The State must continue to operate 
an appropriate air quality monitoring network, in accordance with 40 
CFR part 58, to verify the attainment status of the area. The air 
quality data relied on for the above determinations must be consistent 
with 40 CFR part 58 requirements and other relevant EPA guidance and 
recorded in EPA's Aerometric Information Retrieval System (AIRS).

Regulatory Flexibility

    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 populations of less than 
50,000.
    This proposal does not create any new requirements. Therefore, I 
certify that it does not have a significant impact on any small 
entities affected.
    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 October 10, 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).)
    The OMB has exempted these actions from review under Executive 
Order 12866.

Unfunded Mandates

    Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act 
of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, 
EPA must assess whether various actions undertaken in association with 
proposed or final regulations include a Federal mandate that may result 
in estimated costs of $100 million or more to the private sector, or to 
State, local, or tribal governments in the aggregate.
    EPA's final action relieves requirements otherwise imposed under 
the CAA and, hence does not impose any federal intergovernmental 
mandate, as defined in section 101 of the Unfunded Mandates Act. This 
action also will not impose a mandate that may result in estimated 
costs of $100 million 

[[Page 40291]]
or more to either State, local, or tribal governments in the aggregate, 
or to the private sector.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: July 28, 1995.
Kerringan Clough,
Acting Regional Administrator.

PART 52--[AMENDED]

    40 CFR part 52 is amended as follows:
    1. The authority citation for part 52 continues to read as follows:

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

Subpart G--Colorado

    2. Section 52.326 is added to read as follows:


Sec. 52.326  Area-wide nitrogen oxides (NOX) exemptions.

    The Denver Regional Council of Governments (DRCOG) submitted a 
NOX exemption petition to the EPA on May 25, 1994 and submitted 
supporting documentation via a letter dated August 1, 1994. This 
petition requested that the Denver metropolitan area, a transitional 
ozone nonattainment area, be exempted from the requirement to meet the 
NOX provisions of the Federal transportation and general 
conformity rule with respect to ozone. 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 EPA approved this exemption request on 
July 28, 1995.

[FR Doc. 95-19480 Filed 8-7-95; 8:45 am]
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