[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Rules and Regulations]
[Pages 28344-28349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13655]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX76-1-7330; FRL-5828-3]


Approval and Promulgation of Extension of Temporary Section 
182(f) and Section 182(b) Exemption to the Nitrogen Oxides 
(NOX) Control Requirements for the Houston/Galveston and 
Beaumont/Port Arthur Ozone Nonattainment Areas; Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, EPA is approving a petition for an extension 
of the temporary exemption from the NOX control requirements 
of sections 182(f) and 182(b) of the Clean Air Act (the Act) for the 
Houston/Galveston (HGA) and Beaumont/Port Arthur (BPA) ozone 
nonattainment areas from December 31, 1996, to December 31, 1997. The 
State of Texas submitted the petition to EPA requesting the extension 
to permit additional time to complete Urban Airshed Modeling (UAM). A 
temporary NOX exemption has been granted by EPA because 
preliminary photochemical grid modeling showed that reductions in NOx 
would be detrimental to attaining the National Ambient Air Quality 
Standards (NAAQS) for ozone in these areas. Approval of this petition 
will extend the temporary exemption which waives the Federal NOx 
requirements for Reasonably Available Control Technology (RACT), New 
Source Review (NSR), Vehicle Inspection/Maintenance (I/M), and 
conformity by one year (December 31, 1996, to December 31, 1997) and 
the

[[Page 28345]]

implementation date for NOX RACT by two years to May 31, 
1999.

EFFECTIVE DATE: This action is effective as of May 23, 1997.

ADDRESSES: Copies of the extension request, public comments and EPA's 
responses are available for inspection at the following addressees:

Environmental Protection Agency, Region 6, Air Planning Section, 445 
Ross Ave, Suite 1200, Mailcode 6PD-L, Dallas, TX 75202.
Texas Natural Resource Conservation Commission, 12100 Park 35 Circle, 
P.O. Box 13087, Austin, Texas 78711-3087.

FOR FURTHER INFORMATION CONTACT: Mr. Herbert R. Sherrow, Jr., Air 
Planning Section (6PD-L), Multimedia Planning and Permitting Division, 
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 
1200, Dallas, Texas 75202. The telephone number is 214-665-7237.

SUPPLEMENTARY INFORMATION:

I. Background

    On August 17, 1994, the Texas Natural Resource Conservation 
Commission (TNRCC) submitted to EPA a petition pursuant to section 
182(f) which requested that the HGA and BPA nonattainment areas be 
temporarily exempted by EPA from the NOX control 
requirements of section 182(f) of the Act. The State based its petition 
on the use of a UAM demonstration showing, pursuant to EPA guidelines, 
that NOX reductions would not contribute to attainment in 
either area because the decrease in ozone concentrations resulting from 
Volatile Organic Compounds (VOC) reductions alone is equal to or 
greater than the decrease obtained from NOX reductions or a 
combination of VOC and NOX reductions. The petition for the 
temporary exemption was approved by EPA and published at 60 FR 19515 
(April 19, 1995).
    On March 6, 1996, the State of Texas submitted a petition to EPA 
which requests that the HGA and BPA nonattainment areas be granted an 
extension to the temporary exemption from NOX control 
requirements of sections 182(f) and 182(b) of the Act. The State's 
petition was transmitted by a letter from George W. Bush, Governor, 
State of Texas, to Jane Saginaw, Regional Administrator of EPA Region 
6. The petition was accompanied by the records of public hearing on the 
petition to satisfy the requirements of section 110. The petition 
requests an extension of one year, from December 31, 1996, to December 
31, 1997, for the exemption and an extension of the NOX RACT 
compliance date from May 31, 1997, to May 31, 1999. The petition was 
subjected to public notice on September 5, 1995, and hearing on October 
2, 1995. Since the petition for extension went through the State's 
public participation procedures prior to submittal, EPA considers it to 
be submitted as a revision to the State Implementation Plan (SIP) and, 
thus meets the requirements of sections 110 and 182(b).
    The State based its petition on needing additional time to complete 
further UAM modeling using data from the Coastal Oxidant Assessment for 
Southeast Texas (COAST) study. The preliminary modeling showed that 
NOX reductions would not contribute to attainment in either 
area because domain-wide predicted maximum ozone concentrations are 
lowest when only VOC reductions are modeled. The schedule submitted in 
the State's original section 182(f) petition was established based on 
the expected completion of the UAM COAST modeling for attainment 
demonstration purposes by May 31, 1996. The extension would allow UAM 
using COAST data to accommodate recent improvements in the modeling 
process. These improvements will allow the development of better 
substantiated control programs and minimize the possibility that 
reliance on earlier preliminary modeling could result in unnecessary or 
counterproductive control programs, particularly if NOX 
controls are still shown to be detrimental. The petition also includes 
a description of the improvements in data quantity and quality which 
will result from the additional COAST data modeling information.
    Some of the advantages of taking additional time to conduct the 
modeling are: (1) the use of the UAM, version V, which is an improved 
model over the UAM, version IV, previously used, particularly in the 
reduced use of national defaults; (2) the development of more detailed 
emissions inventory data; (3) the use of additional monitored data; and 
(4) the use of more refined meteorological data. The current modeling 
effort is estimated by the State to be an order of magnitude increase 
over that for the preliminary modeling, with an attendant increase in 
the quality-assurance effort required. Because of the large economic 
impact of the future ozone control strategy on the Texas Gulf Coast 
Region, both the State and EPA believe that it is essential that the 
modeling be based on the best available science and the most complete, 
quality-assured data possible.
    Also submitted with the petition was a revision to previously-
adopted NOX RACT rules (30 Texas Air Control (TAC) 117) 
which would extend the compliance dates from May 31, 1997, to May 31, 
1999. The State first submitted the NOX RACT rules to EPA on 
December 6, 1993.
    A revision to the Texas (Nonattainment) New Source Review rule (30 
TAC section 116.150), adopted on October 11, 1995, temporarily extends 
the suspension of the NOX NSR requirements in HGA and BPA 
through December 31, 1997. This rule revision was submitted to EPA on 
November 1, 1995, and was not resubmitted with the petition.
    On December 13, 1996, EPA proposed to approve the petition for a 
one-year extension of the temporary exemption of the 182(f) and 182(b) 
NOX requirements for the HGA and BPA areas (61 FR 65504). 
The proposed rulemaking notice, EPA's Technical Support Document 
(November 1994) on the proposed action, and supplemental information 
are contained in the docket and provide a detailed discussion of the 
TNRCC's submittal, applicable guidance, and EPA's rationale for 
proposing approval of the State's petition for a one-year extension. 
Rather than repeating that entire discussion in this document, that 
discussion is incorporated by reference herein. Thus, the public should 
review the notice of proposed rulemaking for relevant background on 
this final rulemaking action.

II. Response to Comments

    The following discussion summarizes the comments received regarding 
the State's petition and/or EPA's proposed rulemaking and presents 
EPA's responses to these comments. The EPA received 28 letters of 
support from individuals, industry, local governments, the State 
Transportation Authority, and the State of Texas. Two adverse comments 
letters were received from environmental groups. In August 1994, three 
environmental groups (Natural Resources Defense Council, Sierra Club, 
and Environmental Defense Fund (NRDC, et al.)) submitted joint adverse 
comments that addressed EPA's general policy regarding NOX 
exemptions. The commenters requested that these comments be included in 
the docket for all EPA rulemakings on NOX exemptions. The 
EPA responded to these comments in its earlier final rulemaking 
approving a temporary section 182(f) NOX exemption for the 
Houston/Galveston and Beaumont/Port Arthur areas. Please refer to 60 FR 
19515 (April 19, 1995) for this discussion. The EPA incorporates these 
responses herein and will not reiterate

[[Page 28346]]

our response in this notice. Responses to comments received recently 
follow.
    Comment: One commenter indicated that comments had been submitted 
previously during the comment period for the temporary exemption and 
requested that those comments be reconsidered. Those comments generally 
addressed issues concerning SIP submittals, modeling accuracy, 
transport, and the legal basis for the approval.
    Response: EPA responded to these comments in the response to 
comments contained in the final approval of the temporary exemption for 
HGA and BPA and disagreed with the comments. It is EPA's position that 
the previous responses remain valid. Please refer to 60 FR at 19516-
19521 for a complete discussion of all comments and responses to 
comments relating to the approval of the temporary exemption.
    Comment: Both commenters felt that the UAM computer modeling was 
not sufficiently accurate to allow good predictions of air quality.
    Response: The EPA disagrees with the comment that the UAM 
demonstration was insufficient to allow good predictions of air 
quality. Since a large number of factors influence ozone formation, the 
EPA agrees that no models, including the UAM, can predict precisely the 
exact relationship between VOC, NOX, and ozone. However, 
Congress clearly intended that photochemical grid modeling be used for 
ozone air quality planning purposes in serious and above nonattainment 
areas. As noted in the EPA's December 1993, guidance, UAM results are 
acceptable for the purpose of the section 182(f) demonstrations and 
application of UAM should be consistent with the techniques specified 
in EPA's ``Guidelines on Air Quality Models (Revised).'' The UAM 
modeling utilized by Texas met these criteria.
    Comment: One commenter stated that since UAM modeling by the TNRCC 
cannot be replicated as evidence it is inherently flawed.
    Response: The EPA disagrees with the comment that TNRCC UAM cannot 
be replicated. Realizing that the UAM is the most complex model 
released to the States for regulatory use, EPA requires States to 
submit sufficient information for EPA and public review to ensure that 
the modeling is technically correct. To facilitate review of modeling 
by the EPA and the public, making data accessible to the public and EPA 
is one of seven components required in EPA's Guidance on the UAM 
Reporting Requirements for Attainment Demonstrations. Although the data 
files are not required as part of the submittal, the State is still 
required to make available all UAM files used in the model performance 
and attainment simulations to EPA and the public at any time. This 
enables EPA or interested parties to replicate model performance and 
attainment simulation results if desired. No modeling was conducted by 
EPA to replicate TNRCC's results since the protocol was consistent with 
EPA guidance. With the submitted technical documentation summarizing 
the modeling process, assumptions, and results, and with additional 
data available from the State, it is EPA's position that TNRCC's UAM 
modeling can be replicated.
    Comment: One commenter stated that model performance was believed 
partly successful in only one episode.
    Response: The EPA disagrees with this comment. The EPA's UAM 
guidance recommends that three primary episode days should be 
simulated, and that primary episode days are to be selected from the 
predominant meteorological regimes (e.g., three meteorological regimes, 
each containing one primary day, or two meteorological regimes with at 
least two primary days from one of those regimes). For the purpose of a 
temporary NOX exemption, Texas did model three episodes. 
However, only two episodes had an adequate model performance. Although 
only two of the three episodes modeled achieved adequate performance, 
this is consistent with EPA guidance. Thus, two episodes are acceptable 
for the purposes of a temporary exemption since they comprised five 
days of ozone exceedances and covered several of the predominant 
meteorological regimes under which ozone exceedences typically occur in 
the Gulf Coast.
    Comment: One commenter stated that the inventory was uncertain and 
questioned the magnitude of error in the inventory.
    Response: The EPA disagrees with the comment that the emissions 
inventories are too uncertain to produce acceptable modeling results. 
In the HGA and BPA modeling exercises, TNRCC followed the EPA 
procedures for developing episode-specific emission inventories. In 
addition, the modeling inventories, which were developed for all three 
episodes, were based on the 1990 base-year emission inventories in 
accordance with EPA's UAM guidance. The EPA evaluated the State's 1990 
base-year emission inventories and a final approval of the inventories 
was published in the FR on November 8, 1994 (59 FR 55588).
    Comment: One commenter stated that the proposed submittal of new 
modeling was to be conducted with a now-disapproved model.
    Response: The EPA disagrees that the State used a now-disapproved 
model. The modeling for the original exemption was conducted with UAM-
IV, which is still the EPA-approved regulatory model. However, the 
state is planning to use UAM-V to conduct its additional modeling. 
Under EPA's modeling guidelines EPA can approve the use of UAM-V as an 
acceptable alternative to UAM-IV if the State requests permission to 
use it and, among other things, the state demonstrates that it performs 
better than UAM-IV. If these conditions are met, then EPA will grant 
permission. In addition, UAM-V has been used in regulatory ozone 
attainment demonstrations for a number of areas. Thus, a decision by 
EPA to approve the use of UAM-V is not a determination that UAM-IV is 
unacceptable or somehow ``disapproved'', nor that conclusions obtained 
through its use have been invalidated.
    Comment: One commenter stated that downwind transport from Houston 
is responsible for air quality problems in other areas of Texas and 
that UAM is limited in estimating regional ozone air quality.
    Response: The EPA agrees that Texas' UAM analysis is only designed 
to estimate air quality over an urban airshed area, such as the 
Houston/Galveston and Beaumont/Port Arthur areas, and 11 neighboring 
counties. The analysis is not designed to assess regional impacts, and, 
therefore, cannot verify whether downwind transport from Houston is 
affecting air quality in other areas. Other commenters have also argued 
that waiver of NOX control requirements is unlawful if such 
a waiver would impede attainment and maintenance of the ozone standard 
in downwind areas.
    As a result of these comments, EPA reevaluated its position on this 
issue and has revised previously issued guidance. See Memorandum, 
``Section 182(f) Nitrogen Oxides (NOX) Exemptions--Revised 
Process and Criteria,'' dated February 8, 1995, from John Seitz. As 
described in this memorandum, 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

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independent of any action taken by EPA on a NOX exemption 
request under section 182(f). That is, EPA's action to grant or deny a 
NOX exemption request under section 182(f) for any area 
would not shield that area from EPA's action to require NOX 
emission reductions, if necessary, under section 110(a)(2)(D).
    Modeling analyses are underway or will soon be conducted in many 
areas for the attainment demonstration SIP revisions required pursuant 
to section 182(c)(2)(A). Recent modeling data suggest that certain 
ozone nonattainment areas may benefit from reductions in NOX 
emissions upwind of the nonattainment areas. For example, the Northeast 
Corridor States and the Lake Michigan Ozone Study are considering 
attainment strategies which may rely, in part, on NOX 
emission reductions hundreds of kilometers upwind. The EPA is working 
with the States and other organizations to design and complete studies 
which consider upwind sources and quantify their impacts. As the 
studies progress, EPA will continue to work with the States and other 
organizations to develop mutually acceptable attainment strategies.
    At the same time as the large scale modeling analyses are being 
conducted, States have requested exemptions from NOX 
requirements under section 182(f) for certain nonattainment areas in 
the modeling domains. Some of these nonattainment areas may impact 
downwind nonattainment areas. The EPA intends to address the transport 
issue under section 110(a)(2)(D), based on a regional modeling 
analysis.
    Under section 182(f) of the Act, an exemption from NOX 
requirements may be granted for nonattainment areas outside of an ozone 
transport region if EPA determines that ``additional reductions of 
(NOX) would not contribute to attainment of the national 
ambient air quality standard for ozone in the area.'' \1\ As described 
in section 4.3 of the December 13, 1993, EPA guidance document, 
``Guideline for Determining the Applicability of Nitrogen Oxides 
Requirements Under Section 182(f),'' EPA encourages, but does not 
require, States/petitioners to consider the impacts on the entire 
modeling domain since the effects of an attainment strategy may extend 
beyond a designated nonattainment area. Specifically, the guidance 
encourages States to consider imposition of the NOX 
requirements if needed to avoid adverse impacts in downwind areas, 
either intra- or interstate. States need to consider such impacts since 
they are ultimately responsible for achieving attainment in all 
portions of their State and for ensuring that emissions originating in 
their State do not contribute significantly to nonattainment in, or 
interfere with maintenance by, any other State. See section 
110(a)(2)(D)(i)(I) of the Act.
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    \1\ There are three NOX exemption tests specified in 
section 182(f). Of these, two are applicable for areas outside of an 
ozone transport region: the ``contribute to attainment'' test 
described above, and the ``net air quality benefits'' test. The EPA 
must determine, under the latter test, that the net benefits to air 
quality in an area ``are greater in the absence of NOX 
reductions'' from relevant sources. 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. 
Consequently, as stated in section 1.4 of the December 16, 1993, EPA 
guidance, ``[w]here any 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.''
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    In contrast, section 4.4 of the December 16, 1993, guidance states 
that the section 182(f) demonstration would not be approved if there is 
evidence, such as photochemical grid modeling, showing that the 
NOX exemption would interfere with attainment or maintenance 
in downwind areas. The guidance further explains that section 
110(a)(2)(D) (not section 182(f)) prohibits such impacts. Consistent 
with section 4.3 of the guidance, the EPA believes that the section 
110(a)(2)(D) and 182(f) provisions must be considered independently, 
and hence, has revised section 4.4 of the December 16, 1993, guidance 
document. Thus, if there is evidence that NOX emissions in 
an upwind area would interfere with attainment or maintenance in a 
downwind area, that problem will be separately addressed by EPA in a 
section 110(a)(2)(D) action. However, there has been no such 
determination made with respect to the HGA/BPA areas at issue here.
    The State of Texas is being included in one of the new modeling 
analyses referred to above that is being conducted by EPA, States, and 
other agencies as part of the Ozone Transport Assessment Group (OTAG). 
The OTAG process is a consultative process among 37 States and EPA. The 
OTAG process will evaluate regional and national emission control 
strategies using improved regional modeling analyses. The goal of the 
OTAG process is to reach consensus on additional regional and national 
emission reductions that are needed to support efforts to attain the 
ozone standard throughout the eastern United States. Some States have 
committed to submit plans (SIP revisions), upon completion of the OTAG 
process, that demonstrate attainment of the ozone standard through 
local, regional, and national emission controls.
    As noted in a prior EPA rulemaking dated November 28, 1994 (59 FR 
60709), all NOX waivers are approved on a contingent basis. 
The waiver applies only so long as air quality analyses, such as from 
additional ozone modeling, in an exempted area continue to show 
NOX reductions are detrimental or would not contribute to 
attainment of the ozone NAAQS. Therefore, if future air quality 
analysis shows that NOX reductions are beneficial in 
reducing ozone, the State will have to implement necessary 
NOX controls.
    Comment: One commenter objected to the extension based on concerns 
for adverse health effects that may be caused by NOX 
concentrations in Houston.
    Response: There is currently a national health standard for 
NO2 and all portions of the Houston/Galveston and Beaumont/
Port Arthur areas meet that standard. In addition, the modeling 
projected growth to 1999 and still demonstrated that NO2 
reductions would not contribute to attaining the ozone NAAQS.
    Comment: One commenter stated that there are disproportionate 
population impacts of ozone air pollution in the Houston area.
    Response: The EPA is vitally concerned that good air quality is 
available to all residents of an area. Air quality standards are set on 
an area-wide basis to attempt to ensure that no one segment of the 
population is treated disproportionately. Concerning the specific 
subject of this rulemaking, NOX contributions as an ozone 
precursor, UAM has shown that NOX controls would not improve 
(and, in fact, may worsen) the ozone problem in the Houston area and 
thus, would not be beneficial to the residents of the Houston area. 
Therefore, the available evidence indicates that approving the 
extension will benefit the residents of the area.
    Comment: One commenter stated that there are parallels between the 
Louisiana industrial corridor and the Houston/Galveston industrial 
corridor regarding toxics releases, environmental equity, and 
NOX emissions.
    Response: The EPA has conducted a study of the toxics impacts in 
the lower Mississippi River industrial corridor (Toxics Release 
Inventory & Emission Reductions 1987-1990 in the Lower Mississippi 
River Industrial Corridor, U.S. EPA, May 14, 1993). The conclusions 
from that study did not identify NOX as a problem in the 
lower Mississippi River industrial corridor.

[[Page 28348]]

    Moreover, the Act provides in section 182(f) for NOX to 
be addressed independently as an ozone precursor pollutant for 
exemption purposes. Therefore, since section 182(f) does not require 
toxics impacts analysis, it would be inappropriate to consider the 
effect of toxics emissions for NOX exemption purposes.
    In addition, the State of Louisiana submitted a petition and a SIP 
to EPA requesting a section 182(f) and 182(b) NOX exemption 
for the Baton Rouge nonattainment area. The requests were based on UAM 
modeling which satisfied all of EPA's requirements. The results of the 
modeling indicated that NOX controls would be a disbenefit 
to area residents since they would cause an increase in ozone levels. 
The requests were approved at 61 FR 2438, January 26, 1996, and 61 FR 
7218, February 27, 1996.
    Since there are no other ozone nonattainment areas in the lower 
Mississippi River industrial corridor and the Baton Rouge area has 
received a NOX exemption, EPA does not agree with the 
comment comparing Texas' NOX emissions disfavorably to those 
in the Lower Mississippi River industrial corridor.
    The environmental equity issues were discussed in the previous 
response to comments.

III. Effective Date

    This rulemaking is effective as of May 23, 1997. The Administrative 
Procedure Act 5 U.S.C. 553(d)(1), permits the effective date of a 
substantative rule to be less than thirty days after the publication of 
the rule if the rule ``relieves a restriction.'' Since the approval of 
the extension to the section 182(f) and 182(b) exemptions for the HGA 
and BPA areas is a substantative rule that relieves the restrictions 
associated with the Act title I requirements to control NOX 
emissions, the NOX exemption extension approval may be made 
effective upon publication in the Federal Register.

IV. Final Action

    The EPA is taking final action to approve the petition submitted by 
the State of Texas for an extension of the temporary NOX 
exemption for the HGA and BPA ozone nonattainment areas from December 
31, 1996, to December 31, 1997. The extension will expire on December 
31, 1997, without further notice from EPA. The extension applies to 
NOX RACT, NSR, and certain I/M, general and transportation 
conformity NOX requirements.
    The State previously adopted and submitted to EPA complete 
NOX RACT, NSR, I/M, and conformity rules. Along with the 
exemption extension submittal, NOX RACT rules providing for 
extending the current implementation date, were resubmitted. During the 
extension of the temporary exemption period, EPA will not act upon the 
State's NOX RACT rules. The EPA plans to act upon the 
State's NSR, I/M, and general and transportation conformity 
NOX submissions in separate rulemaking actions because those 
submissions are contained in broader rules that also control VOC 
emissions.
    Upon the expiration of the extension to the temporary exemption on 
December 31, 1997, the State is required to either: (1) Have received 
an additional extension to the temporary NOX exemption or a 
contingent exemption from EPA prior to that time; or (2) begin 
implementing the State's NOX RACT, NSR, I/M, general and 
transportation conformity requirements, with NOX RACT 
compliance required as expeditiously as practicable but no later than 
May 31, 1999. The EPA will begin rulemaking on the NOX RACT 
SIP upon the expiration of the extension to the temporary exemption if 
the State has not received an additional temporary extension or a 
contingent exemption by that time.
    Since the original temporary exemption and this one-year extension 
are based on preliminary modeling, and additional time is being granted 
to allow for conducting modeling with improved data from the COAST 
study, any future petition for a further NOX extension or 
new exemption, to be technically valid, must be accompanied by UAM 
modeling based on the COAST data and be submitted in time for EPA to 
take action prior to the expiration of the temporary exemption. 
Preliminary modeling cannot be used as a basis for any further 
extensions or a new exemption. In addition, a further two-year 
extension of the NOX RACT compliance date based on the 
preliminary modeling would not be approvable since it would extend the 
date beyond 1999, the last year included in the preliminary modeling.
    Other specific requirements that would reapply upon expiration are: 
(1) Any NSR permits that had not been deemed complete prior to January 
1, 1998, must comply with the NOX NSR requirements, 
consistent with the policy set forth in the EPA's NSR Supplemental 
Guidance memo dated September 3, 1992, from John Seitz, Director, EPA's 
Office of Air Quality Planning and Standards; (2) any conformity 
determination (for either a new or revised transportation plan and 
Transportation Improvement Program) made after January 1, 1998, must 
comply with the NOX conformity requirements; and (3) any I/M 
vehicle inspection made after January 1, 1998, must comply with the I/M 
NOX requirements.

V. Regulatory Action

    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

VI Administrative Requirements

A. Executive Order (E.O.) 12866

    This action has been classified as a Table 1 action for signature 
by the 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 E.O. 12866 review.

B. Regulatory Flexibility Act

    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. See 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.
    The SIP approvals under section 110 and subchapter I, part D of the 
Act do not create any new requirements but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP 
approval 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 Act, 
preparation of a flexibility analysis would constitute Federal inquiry 
into the economic reasonableness of State action. The Act forbids EPA 
to base its actions concerning SIPs on such grounds. See Union Electric 
Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

[[Page 28349]]

C. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must prepare a budgetary impact 
statement to accompany any proposed or final rule that includes a 
Federal mandate that may result in estimated costs to State, local, or 
tribal governments in the aggregate; or to private sector, of $100 
million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives 
of the rule and is consistent with statutory requirements. Section 203 
requires EPA to establish a plan for informing and advising any small 
governments that may be significantly or uniquely impacted by the rule.
    The EPA has determined that the approval action promulgated does 
not include a Federal 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. This Federal action approves 
preexisting requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of this rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 22, 1997. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the 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).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic 
compounds.

    Dated: May 14, 1997.
Carol M. Browner,
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 (e) to read as 
follows:


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

* * * * *
    (e) The TNRCC submitted to EPA on March 6, 1996, a petition 
requesting that the Houston/Galveston and Beaumont/Port Arthur ozone 
nonattainment areas be granted an extension to a previously-granted 
temporary exemption from the NOX control requirements of 
sections 182(f) and 182(b) of the Clean Air Act. The temporary 
exemption was granted on April 19, 1995. The current petition is based 
on the need for more time to complete UAM to confirm the need for, and 
the extent of, NOX controls required. On May 23, 1997, EPA 
approved the State's request for an extension to the temporary 
exemption. The temporary extension automatically expires on December 
31, 1997, without further notice from EPA. Upon expiration of the 
extension, the requirements pertaining to NOX RACT, NSR, I/
M, general and transportation conformity will become applicable, except 
that the NOX RACT compliance date shall be implemented as 
expeditiously as practicable, but no later than May 31, 1999, unless 
the State has received a contingent NOX exemption from the 
EPA prior to that time.

[FR Doc. 97-13655 Filed 5-22-97; 8:45 am]
BILLING CODE 6560-50-P