[Federal Register Volume 61, Number 54 (Tuesday, March 19, 1996)]
[Rules and Regulations]
[Pages 11162-11163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6464]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[VA 0054-5006b; FRL-5441-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Interim Final Determination that the Richmond, Virginia Ozone 
Nonattainment Area is Exempt From NOX RACT Requirements for 
Purposes of Staying Sanctions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: Elsewhere in today's Federal Register, EPA has published a 
notice of proposed rulemaking proposing approval of the Commonwealth of 
Virginia's petition to exempt the Richmond ozone nonattainment area 
from the nitrogen oxides (NOX) reasonably available control 
technology (RACT) requirement under section 182(f) of the Clean Air Act 
(Act). Based on the proposed approval, EPA is making an interim final 
determination by this action that, with respect to the NOX RACT 
requirement, the State, contingent upon continued monitoring of 
attainment of the ozone national ambient air quality standard (NAAQS), 
has corrected the deficiency which was the basis for the sanctions 
clock . This action will stay the application of the offset sanction 
which was imposed January 8, 1996 and, if final action is not taken by 
July 8, 1996, defer the application of the highway sanction. Although 
this action is effective upon publication, EPA will take comment on 
this interim final determination as well as EPA's proposed approval of 
the State's submittal. EPA will publish a final action taking into 
consideration any comments received on EPA's proposed action and this 
interim final action.

Effective date. March 19, 1996.

    Comment date. Comments must be received by April 18, 1996.

ADDRESSES: Comments should be sent to Marcia L. Spink, Associate 
Director, Air Programs, (3AT00), Air, Radiation and Toxics Division, 
U.S. EPA Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 
19103. The state submittal and EPA's analysis for that submittal, which 
are the basis for this action, are available for public review at the 
above address.

FOR FURTHER INFORMATION CONTACT: Christopher H. Cripps, (215) 597-0545, 
at the EPA Region III address
above or via e-mail at [email protected]. While 
information may be requested via e-mail, comments must be submitted in 
writing to the EPA Region III address above.

SUPPLEMENTARY INFORMATION:

I. Background

    On July 8, 1994, EPA sent a letter to the Governor of Virginia 
stating that, under section 179 of the Act, EPA made a finding that 
Virginia failed to submit a state implementation plan (SIP) revision 
for NOX RACT. This finding commenced the sanctions process 
outlined by section 179. The two to one (2:1) offset sanction has been 
in effect in the Richmond ozone nonattainment area as of January 8, 
1996 as a result of the July 8, 1994 finding of failure to submit. On 
December 18, 1995, the Director of the Virginia Department of 
Environmental Quality (VA DEQ) submitted on behalf of the Commonwealth 
of Virginia a petition pursuant to section 182(f) of the Act to exempt 
the Richmond moderate ozone nonattainment area from the NOX RACT 
requirement. The petition is based upon ambient air monitoring data for 
1993, 1994 and 1995 ozone seasons which shows that the Richmond ozone 
nonattainment area is meeting the ozone NAAQS. This petition could not 
be submitted until the monitoring data for the entire 1995 ozone season 
was quality assured under the procedures of 40 CFR Part 58 and recorded 
in the EPA's Aerometric Information Retrieval System (AIRS). In the 
Proposed Rules

[[Page 11163]]
section of today's Federal Register, EPA has proposed approval of this 
petition contingent upon continued monitoring of attainment of the 
ozone NAAQS in the Richmond ozone nonattainment area.

II. EPA Action

    Based on the proposed approval set forth in today's Federal 
Register, EPA believes that it is more likely than not that the State 
is eligible for an exemption from the NOX RACT requirement, under 
section 182(f) and, therefore, is no longer subject to the requirement 
for which the July 8, 1994 finding of failure to submit was issued. 
Therefore, EPA is making this interim final determination finding that 
the State, contingent on continued monitored attainment of the ozone 
NAAQS, has corrected the deficiency of failing to submit NOX RACT 
rules. This action shall be effective on publication pursuant to 5 
U.S.C. 553(d)(1). This action does not stop the sanction clock that 
started under section 179 for this area on July 8, 1994. However, this 
action will stay the application of the offset sanction and, if 
necessary, will defer the application of the highway sanction. See 59 
FR 39832 (August 4, 1994) to be codified at 40 CFR 52.31. If EPA's 
final action fully approves the December 18, 1995 exemption petition, 
such action will stay and defer sanctions for the duration of the 
exemption.
    Today EPA is also providing the public with an opportunity to 
comment on this interim final determination. If, based on any comments 
on this action and any comments on EPA's proposed approval of the 
NOX waiver petition, EPA determines that the petition is not 
approvable and this final action is inappropriate, EPA will take 
further action to disapprove the petition and to find that the Richmond 
ozone nonattainment area is not eligible for an exemption from NOX 
RACT. If EPA's proposed approval of the NOX exemption petition is 
reversed, then sanctions would be applied or re-applied at the time of 
a final action disapproving the NOX exemption petition (or, if 
action is re-proposed, at the time of the proposed disapproval). 
Regardless of EPA's final action on the NOX exemption petition, 
the July 8, 1994 finding of failure to submit still may be corrected by 
submittal of a NOX RACT SIP for the Richmond ozone nonattainment 
area that meets the completeness criteria of section 110(k). See 59 FR 
39832 (August 4, 1994). A finding of completeness for such a submittal 
would stop the sanctions clock.

III. Administrative Requirements

    Because EPA has preliminarily determined that the December 18, 1995 
petition under section 182(f) is approvable, relief from sanctions 
should be provided as quickly as possible. Therefore, EPA is invoking 
the good cause exception under the Administrative Procedure Act (APA) 
in not providing an opportunity for comment before this action takes 
effect.1 5 U.S.C. 553(b)(B). The EPA believes that notice-and-
comment rulemaking before the effective date of this action is 
impracticable and contrary to the public interest. The EPA has reviewed 
the December 18, 1995 NOX exemption petition and, through its 
proposed action, is indicating that it is more likely than not that the 
State, contingent upon continued monitored attainment of the ozone 
NAAQS, has corrected the deficiency of failing to submit a NOX 
RACT SIP. Therefore, it is not in the public interest to initially 
apply sanctions or to keep applied sanctions in place when the State 
has most likely done all that it can to correct the deficiency that 
triggered the sanctions clock. Moreover, it would be impracticable to 
go through notice-and-comment rulemaking on a finding that the State 
has corrected the deficiency prior to the rulemaking approving the 
December 18, 1995 NOX exemption petition. Therefore, EPA believes 
that it is necessary to use the interim final rulemaking process to 
stay or defer sanctions while EPA completes its rulemaking process on 
the approvability of the petition. In addition, EPA is invoking the 
good cause exception to the 30-day notice requirement of the APA 
because the purpose of this document is to relieve a restriction. See 5 
U.S.C. 553(d)(1).

    \1\ As previously noted, however, by this action EPA is 
providing the public with a chance to comment on EPA's determination 
after the effective date and EPA will consider any comments received 
in determining whether to reverse such action.
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    The Office of Management and Budget has exempted this action from 
review under Executive Order 12866.
    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 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 action, pertaining to the interim final determination of the 
Commonwealth of Virginia's December 18, 1995 petition for an exemption 
from NOX RACT under section 182(f), temporarily relieves sources 
of an additional burden potentially placed on them by the sanction 
provisions of the Act. Therefore, I certify that it does not have an 
impact on any small entities.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

    Authority: 42 U.S.C. 7401-7671q.
    Dated: March 7, 1996.

Stanley L. Laskowski,
Acting Regional Administrator, Region III.
[FR Doc. 96-6464 Filed 3-18-96; 8:45 am]
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