[Federal Register Volume 61, Number 39 (Tuesday, February 27, 1996)]
[Rules and Regulations]
[Pages 7218-7221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4289]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[LA-32-7238; FRL-5430-1]


Approval of and Promulgation of Implementation Plans; Louisiana

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 
Louisiana's request to grant an exemption for the Baton Rouge ozone 
nonattainment area from the applicable nitrogen oxides (NOX) 
transportation conformity requirements. On July 25, 1995, Louisiana 
submitted to the EPA a State Implementation Plan (SIP) revision request 
for an exemption (under section 182(b)(1) of the Clean Air Act (Act)) 
from the transportation conformity requirements for NOX for the 
Baton Rouge ozone nonattainment area, which is classified as serious. 
The State of Louisiana bases its request for Baton Rouge upon a 
modeling demonstration that additional NOX reductions would not 
contribute to attainment in the nonattainment area.

EFFECTIVE DATE: This final rule will be effective on February 12, 1996.

ADDRESSES: Copies of the SIP revision, public comments and the EPA's 
responses are available for inspection at the following address:

U.S. Environmental Protection Agency, Region 6, Multimedia Planning and 
Permitting Division, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733.
Louisiana Department of Environmental Quality, H. B. Garlock Building, 
7290 Bluebonnet, Baton Rouge, Louisiana 70810.

FOR FURTHER INFORMATION CONTACT: Ms. Jeanne McDaniels or Mr. Quang 
Nguyen, U.S. Environmental Protection Agency, Region 6, Air Planning 
Section (6PD-L), Multimedia Planning and Permitting Division, 1445 Ross 
Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7214.

SUPPLEMENTARY INFORMATION:

I. Background

    Clean Air Act section 176(c)(3)(A)(iii) requires, in order to 
demonstrate conformity with the applicable SIP, that transportation 
plans and transportation improvement programs (TIPs) contribute to 
emissions reductions in ozone nonattainment areas during the period 
before control strategy SIPs are approved by the EPA. This requirement 
is implemented in 40 CFR 51.436 through 51.440 (and 93.122 through 
93.124), which establishes the so-called ``build/no-build test.'' This 
test requires a demonstration that the ``Action'' scenario 
(representing the implementation of the proposed transportation plan/
TIP) will result in lower motor vehicle emissions than the ``Baseline'' 
scenario (representing the implementation of the current transportation 
plan/TIP). In addition, the ``Action'' scenario must result in 
emissions lower than 1990 levels.
    The November 24, 1993, final transportation conformity rule 1 
does not require the ``build/no-build test'' and ``less-than-1990 
test'' for NOX as an ozone precursor in ozone nonattainment areas 
where the Administrator determines that additional reductions of 
NOX would not contribute to attainment of the National Ambient Air 
Quality Standard (NAAQS) for ozone. Clean Air Act section 
176(c)(3)(A)(iii), which is the conformity provision requiring 
contributions to emission reductions before SIPs with emissions budgets 
can be approved, specifically references Clean Air Act section 
182(b)(1). That section requires submission of State plans that, among 
other things, provide for specific annual reductions of volatile 
organic compounds (VOC) and NOX emissions ``as necessary'' to 
attain the ozone standard by the applicable 

[[Page 7219]]
attainment date. Section 182(b)(1) further states that its requirements 
do not apply in the case of NOX for those ozone nonattainment 
areas for which the EPA determines that additional reductions of 
NOX would not contribute to ozone attainment.

    \1\ ``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).
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    As explained below, the EPA, through an amendment to its 
transportation conformity rule, has changed the procedural mechanism 
through which a NOX exemption from transportation conformity would 
be granted. Instead of a petition under section 182(f), transportation 
conformity NOX exemptions for ozone nonattainment areas that are 
subject to section 182(b)(1) need to be submitted as SIP revision 
requests. The Baton Rouge ozone nonattainment area is classified as 
serious and, thus, is subject to section 182(b)(1).
    The EPA published, on August 29, 1995, an interim final rule (60 FR 
44762) which amended the transportation conformity rule and changed the 
statutory authority from section 182(f) to section 182(b)(1) of the Act 
for areas that are subject to section 182(b)(1). The interim final rule 
was effective immediately upon publication and provides the means for 
exempting areas subject to section 182(b)(1) from the NOX 
provisions of the transportation conformity rule. In conjunction with 
the interim rule, the EPA published a proposal providing for further 
amendments to the transportation conformity rule and describing how the 
EPA intended to process section 182(b)(1) NOX waivers (60 FR 
44790). On November 14, 1995, the EPA published a final rule (60 FR 
57179), after completing notice-and-comment rulemaking, that includes 
the provisions of the August 29, 1995, interim rule. The November 14, 
1995, rule also addresses the NOX budget requirement.
    The July 25, 1995, SIP revision request from Louisiana has been 
submitted to meet the requirements of section 182(b)(1). A public 
hearing on this SIP revision request was held on June 29, 1995. The EPA 
proposed to approve the SIP revision request on October 6, 1995 (60 FR 
52348).
    The Baton Rouge serious ozone nonattainment area includes the 
following parishes: East Baton Rouge, West Baton Rouge, Pointe Coupee, 
Livingston, Iberville, and Ascension. In evaluating the SIP revision 
request, the EPA considered whether additional NOX reductions 
would contribute to attainment of the ozone standard in the Baton Rouge 
modeling domain, which includes all or part of 20 parishes in Louisiana 
and covers both attainment as well as nonattainment parishes.
    As outlined in the relevant EPA guidance, the use of photochemical 
grid modeling is the recommended approach for testing the contribution 
of NOX emission reductions to attainment of the ozone standard.
    A summary of the urban airshed modeling (UAM) demonstration and the 
EPA's review of the modeling and submittal are contained in the October 
6, 1995, proposed rule (60 FR 52348) and the accompanying Technical 
Support Document. The modeling results show, on a directional basis, 
that application of NOX controls in the Baton Rouge ozone 
nonattainment area would exacerbate peak ozone concentrations in the 
modeling domain.

II. Public Comments

    In August 1994, three environmental groups (Natural Resources 
Defense Council (NRDC), Sierra Club, and Environmental Defense Fund 
(NRDC et al.)) submitted joint adverse comments on the proposed 
approvals of NOX exemptions for the Ohio and Michigan ozone 
nonattainment areas. The comments addressed the EPA's general policy 
regarding NOX exemptions. The commenters requested that these 
comments be addressed in all EPA rulemakings dealing with NOX 
exemptions. The EPA responded to these comments in a final rulemaking 
approving a section 182(f) NOX exemption for the Baton Rouge area. 
See 61 FR 2438, dated January 26, 1996. The technical basis (i.e., UAM 
demonstration) for the Baton Rouge section 182(b)(1) transportation 
conformity NOX exemption is the same as for the section 182(f) 
exemption. (Please refer to the January 26, 1996, section 182(f) final 
approval (61 FR 2438) for Baton Rouge for a summary of the NRDC's 
comments and the EPA's responses.)
    In addition, shortly after the close of the 30-day public comment 
period, the New York State Department of Environmental Conservation 
(NYSDEC) submitted a letter to the EPA expressing opposition to the 
proposed Baton Rouge transportation conformity NOX exemption. For 
the public record, the EPA has elected to respond to those comments in 
this rulemaking. The following discussion summarizes the NYSDEC 
comments and provides the EPA's responses to the comments.
    Comment: The NYSDEC expressed concern regarding the claim that VOC 
only controls reduce ozone levels and geographic extent of ozone 
exposure since modeling in the northeast shows a need for NOX 
reductions as well as VOC to reduce regional ozone. The NYSDEC also 
questioned certain model assumptions; namely, whether the Federal motor 
vehicle control program (FMVCP) is assumed in future year (1996 and 
1999) emission inventories, and the adequacy of modeling across-the-
board reductions for a specific source category exemption.
    Response: In the modeling demonstration, the State included in the 
attainment year (1999) projected emissions inventory the emission 
reductions expected to result from the Federal Motor Vehicle Emission 
Control Program. Although the state did not model the mobile emission 
reductions that would result from transportation conformity, per se, 
the across-the-board reductions modeled (i.e., a 100 percent reduction 
in both point source VOC and NOX emissions combined) far exceed 
the reductions that would be expected to result from transportation 
conformity alone. (In the Baton Rouge modeling domain, point source VOC 
emissions alone comprise 46 percent of the total projected 
anthropogenic VOC inventory, and point source NOX emissions alone 
comprise 57 percent of the total projected NOX inventory.)
    The EPA believes that the State has satisfied the requirements of 
Chapter 4 of the December 13, 1993, guidance document, ``Guideline for 
Determining the Applicability of Nitrogen Oxides Requirements Under 
Section 182(f),'' by simulating conditions resulting from three 
emission reduction scenarios (i.e., substantial VOC reductions, 
substantial NOX reductions, and substantial VOC/NOX 
reductions combined). Consistent with the guidance, the State has 
demonstrated that, on a directional basis, the areawide predicted 
maximum 1-hour ozone concentration for each day modeled under the 
substantial VOC reductions alone strategy is less than or equal to that 
from substantial NOX reductions alone or VOC and NOX 
reductions combined.
    Comment: The NYSDEC stated that there have been voluntary early 
NOX reductions from point sources between 1990 and 1994, which 
seems to imply that improvements in air quality would be affected by 
these voluntary NOX reductions as well.
    Response: As part of the modeling demonstration, the State included 
the early NOX reductions from point sources that had occurred 
between 1990 and 1994. Since doing so did not alter the conclusion, the 
EPA believes the State has adequately demonstrated that any additional 
NOX reductions would not contribute to attainment of the ozone 
standard and, therefore, has met the Act's requirements for receiving a 
NOX waiver. 

[[Page 7220]]

    Comment: The NYSDEC stated that area source NOX inventories 
modeled appeared low by two orders of magnitude, i.e., 0.2 percent 
versus 20 percent.
    Response: The projected area source NOX inventory modeled (1.0 
tons/day) is correct. Area source NOX emissions comprise only 0.2 
percent of the total projected NOX inventory (479.0 tons/day). 
Point, on-road mobile, and non-road mobile source NOX emissions 
comprise 67.7 percent, 15.4 percent, and 16.7 percent of the total 
projected NOX emissions inventory, respectively.
    Comment: The NYSDEC urged the EPA to undertake a review of the 
regional consistency between Baton Rouge and other southeast areas, and 
that action on the exemption petition be delayed until this review is 
complete.
    Response: The EPA has taken steps to assure that downwind areas 
will not be negatively impacted by NOX exemptions. The EPA 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 
the NOX emissions would contribute significantly to nonattainment 
in, or interfere with maintenance by, any other State or in another 
nonattainment area within the same State. This action would be 
independent of any action taken by the EPA on a NOX exemption 
request under section 182(f) or section 182(b)(1). That is, EPA action 
to grant or deny a NOX exemption request under section 182(f) or 
182(b)(1) for any area would not shield that area from EPA action to 
require NOX emission reductions, if necessary, under section 
110(a)(2)(D).
    The State of Louisiana is included in the superregional 
photochemical modeling of the eastern United States (U.S.) currently 
being conducted by the EPA, States, and other agencies as part of the 
Ozone Transport Assessment Group (OTAG). The OTAG assessment process, 
which is scheduled to end at the close of 1996, will evaluate regional 
and national emission control strategies using improved regional 
modeling analyses. The goal of the OTAG is to reach consensus on 
additional regional and national emission reductions that are needed to 
support efforts to attain the ozone standard in the eastern U.S. Upon 
completion of the modeling, the EPA will evaluate the modeling results 
and their implications concerning NOX versus VOC emission 
controls. The results of this modeling may supersede the UAM 
demonstration that the EPA is using as the basis for granting this 
waiver. To continue the waiver for all NOX source categories, the 
modeling must continue to show attainment of the ozone standard without 
the use of additional NOX controls. The final modeling may 
demonstrate attainment of the ozone standard using a subset of the 
possible NOX emission controls. In this situation, the EPA may 
continue the waiver for the remaining ``non-controlled'' NOX 
sources under section 182(f)(2) of the CAA.
    Comment: The NYSDEC disagrees that the NOX waiver rule should 
be a Table 3 action for signature by the Regional Administrator and, 
because of the national implications of the NOX exemption, 
believes it should be a Table 1 action.
    Response: The NOX waiver for transportation conformity is a 
SIP revision request submitted by the State of Louisiana. SIP revisions 
have been delegated to the Regional Administrator for signature under 
the procedures published in the Federal Register on January 19, 1989 
(54 FR 2214-2225), as revised by a July 10, 1995, memorandum from Mary 
Nichols, Assistant Administrator for Air and Radiation. This NOX 
waiver is applicable only for the purpose of relieving the need to meet 
the interim transportation conformity test for the Baton Rouge area. In 
addition, the policy related to processing the NOX waivers for 
transportation conformity has been coordinated at the national level.

III. Effective Date

    This rulemaking is effective as of February 12, 1996. The 
Administrative Procedure Act, 5 U.S.C. 553(d)(1), permits the effective 
date of a substantive rule to be less than thirty days after 
publication if the rule ``relieves a restriction.'' Since the approval 
of the section 182(b)(1) transportation conformity NOX exemption 
for the Baton Rouge ozone nonattainment area is a substantive rule that 
relieves the restrictions associated with the CAA Title I requirements 
to control NOX emissions, the transportation conformity NOX 
exemption approval may be made effective upon signature by the Regional 
Administrator.

IV. Final Action

    The comments received were found to warrant no significant changes 
from the proposed to final action on this NOX exemption request. 
The primary difference between the proposed and final rulemaking is the 
addition of the statement that the EPA may require NOX emission 
controls in general or on a source-specific basis under section 
110(a)(2)(D) of the CAA if future ozone modeling demonstrates that such 
controls are needed to achieve the ozone standard in downwind areas. 
Based on subsequent modeling results, the EPA may rescind all or 
part(s) of the transportation conformity NOX waiver. Approval of 
the exemption waives the Federal requirements for transportation 
conformity applicable to the Baton Rouge ozone nonattainment area. To 
maintain the waiver, future modeling must demonstrate attainment of the 
ozone standard without the use of additional NOX emission 
controls. (The modeling may demonstrate the need for some NOX 
emission controls, necessitating the need for reducing the coverage of 
the waiver.) Should the EPA rescind the exemption, the State would be 
required to begin implementing the transportation conformity NOX 
requirements.

V. Miscellaneous

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget has exempted 
this regulatory action from Executive Order 12866 review.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. The EPA shall consider each request for revision to the SIP in 
light of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.
    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, the EPA may certify that the rule will not have a 
significant economic 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 approval does not create any new requirements. Therefore, I 
certify that this action does not have a significant impact on any 
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the Act, preparation of the regulatory 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of the State action. The 

[[Page 7221]]
Act forbids the EPA to base its actions concerning SIPs on such 
grounds. (Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (1976; 42 
U.S.C. 7410(a)(2)).
    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995, 
the 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.
    The EPA's final action will relieve 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 or more to either State, local, or tribal 
governments in the aggregate, or to the private sector.
    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 29, 1996. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purpose of judicial rule, 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) of the CAA).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Conformity, Oxides 
of nitrogen, Ozone, Transportation conformity.

    Dated: February 12, 1996.
Jane N. Saginaw,
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

    3. Section 52.992 is amended by adding paragraph (c) to read as 
follows:


Sec. 52.992  Areawide nitrogen oxides (NOX) exemptions.

* * * * *
    (c) The LDEQ submitted to the EPA on July 25, 1995, a revision to 
the SIP, pursuant to section 182(b)(1), requesting that the Baton Rouge 
serious ozone nonattainment area be exempted from the transportation 
conformity NOX requirements of the CAA. The Baton Rouge 
nonattainment area consists of East Baton Rouge, West Baton Rouge, 
Pointe Coupee, Livingston, Iberville, and Ascension Parishes. The 
exemption request was based on photochemical grid modeling which shows 
that additional reductions in NOX would not contribute to 
attainment in the nonattainment area. On February 12, 1996, the EPA 
approved the State's request for an areawide exemption from the 
transportation conformity NOX requirements.

[FR Doc. 96-4289 Filed 2-26-96; 8:45 am]
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