[Federal Register Volume 60, Number 12 (Thursday, January 19, 1995)]
[Rules and Regulations]
[Pages 3760-3766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1254]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH71-1-6781, OH72-1-6782; FRL-5140-7]
Approval and Promulgation of Implementation Plans; Ohio
AGENCY: Environmental Protection Agency (USEPA).
ACTION: Final rule.
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SUMMARY: The USEPA is approving, in final, two exemption requests from
the requirements contained in section 182(f) of the Clean Air Act (Act)
for the Toledo and Dayton ozone nonattainment areas in Ohio. These
exemption requests, submitted by the State of Ohio, are based upon
three years of ambient air monitoring data which demonstrate that the
National Ambient Air Quality Standard (NAAQS) for ozone has been
attained in each of these areas without additional reductions of
nitrogen oxides (NOX). Section 182(f) of the Act requires States
with areas designated nonattainment of the NAAQS for ozone, and
classified as moderate nonattainment and above, to adopt reasonably
available control technology (RACT) rules for major stationary sources
of NOX, and to provide for nonattainment area new source review
(NSR) for new sources and modifications that are major for NOX.
Section 182(f) provides that these requirements do not apply for areas
outside an ozone transport region if USEPA determines that additional
reductions of NOX would not contribute to attainment of the NAAQS
for ozone in the area.
EFFECTIVE DATE: This action will be effective February 21, 1995.
ADDRESSES: Written comments should be addressed to:
William MacDowell, Chief, Regulation Development Section, Air
Enforcement Branch (AE-17J), U.S. Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
A copy of the exemption requests are available for inspection at
the following location (it is recommended that you contact Richard
Schleyer at (312) 353-5089 before visiting the Region 5 office):
United States Environmental Protection Agency, Region 5, Air
Enforcement Branch, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois, 60604.
FOR FURTHER INFORMATION CONTACT: Richard Schleyer, Regulation
Development Section, Air Enforcement Branch (AE-17J), Region 5, United
States Environmental Protection Agency, 77 West Jackson Boulevard,
Chicago, Illinois, 60604, (312) 353-5089.
SUPPLEMENTARY INFORMATION:
I. Background
The air quality planning requirements for the reduction of NOX
emissions are set out in section 182(f) of the Act. Section 182(f) of
the Act requires States with areas designated nonattainment of the
NAAQS for ozone, and classified as moderate nonattainment and above, to
impose the same control requirements for major stationary sources of
NOX as apply to major stationary sources of volatile organic
compounds (VOC). These requirements include the adoption of RACT rules
for major stationary sources and nonattainment area NSR for major new
sources and major modifications. Section 182(f) provides further that
these NOX requirements do not apply for areas outside an ozone
transport region if USEPA determines that additional reductions of
NOX would not contribute to attainment. Also, the NOX-related
general and transportation conformity provisions (see 58 FR 63214 and
58 FR 62188) would not apply in an area that is granted a section
182(f) exemption. In an area that did not implement the section 182(f)
NOX requirements, but did achieve attainment of the ozone
standard, as demonstrated by ambient air monitoring data (consistent
with 40 CFR Part 58 and recorded in the USEPA's--Aerometric Information
Retrieval System (AIRS)), it is clear that the additional NOX
reductions required by section 182(f) would not contribute to
attainment.
II. Criteria for Evaluation of Section 182(f) Exemption Requests
The criteria established for the evaluation of an exemption request
from the section 182(f) requirements are set forth in a memorandum from
John S. Seitz, Director, Office of Air Quality Planning and Standards,
dated May 27, 1994, entitled ``Section 182(f) Nitrogen Oxides
(NOX) Exemptions--Revised Process and Criteria.'' Additional
guidance is provided in a document entitled ``Guideline for Determining
the Applicability of Nitrogen Oxides Requirements Under Section
182(f),'' dated December 1993, from USEPA, Office of Air Quality
Planning and Standards, Air Quality Management Division.
III. State Submittals
On September 20, 1993, and November 8, 1993, the State of Ohio
submitted requests to redesignate the Toledo (Lucas and Wood Counties)
and Dayton (Montgomery, Greene, Miami, and Clark Counties) ozone
nonattainment areas to attainment areas for the NAAQS for ozone. These
redesignation requests are currently under review and will be evaluated
in a separate rulemaking.
Included as part of the redesignation submittals were requests that
the Toledo and Dayton ozone nonattainment areas
[[Page 3761]]
be exempt from the requirements contained in section 182(f) of the Act.
These exemption requests are based upon three years of ambient air
monitoring data (1991-1993) which demonstrate that the NAAQS for ozone
has been attained in each of these areas without additional reductions
of NOX.
IV. Analysis of State Submittals
The USEPA has reviewed the ambient air monitoring data for ozone
(consistent with the requirements contained in 40 CFR part 58 and
recorded in AIRS) submitted by the OEPA in support of these exemption
requests.
For ozone, an area is considered attainment of the NAAQS if there
are no violations, as determined in accordance with 40 CFR Part 50.9,
based on quality assured monitoring data from three complete
consecutive calendar years. A violation of the ozone NAAQS occurs when
the annual average number of expected exceedances is greater than 1.0
at any site in the area at issue. An exceedance occurs when the daily
maximum hourly ozone concentration exceeds 0.124 parts per million
(ppm).
The following ozone exceedances were recorded for the period from
1991 to 1993:
Toledo: Lucas County, 306 N. Yondota (1991)--0.127 ppm and (1993)--
0.126 ppm; average expected exceedances: 0.7. Friendship Park (1993)--
0.136 ppm; average expected exceedances: 0.3.
Dayton: Montgomery County, 2100 Timberlane (1993)--0.125 ppm; average
expected exceedances: 0.3.
Thus, the annual average expected exceedances in a three year
period were less than 1.0 and both areas are meeting the air quality
standard for ozone.
A more detailed summary of the ozone monitoring data for both areas
is provided in the USEPA technical support document dated April 20,
1994.
V. NOX RACT Rules
The State of Ohio submitted adopted NOX RACT rules to USEPA on
July 1, 1994, for the Toledo, Dayton, and Cleveland ozone nonattainment
areas. These rules are currently under review and will be evaluated in
a separate rulemaking. These rules, when approved by USEPA, may be
suspended by the State for the Toledo and Dayton areas upon the final
approval effective date of the Section 182(f) exemption requests
addressed in this Notice.
VI. Inspection and Maintenance (I/M) Programs
The I/M Final Rule (57 FR 52950) requires States to submit to USEPA
a fully adopted I/M program by November 15, 1993. At this time,
however, the preliminary interpretive guidance on basic I/M, is
discussed in the USEPA policy memorandum dated September 17, 1993, from
Michael H. Shapiro, Acting Assistant Administrator for Air and
Radiation, entitled ``State Implementation Plan Requirements for Areas
Submitting Requests for Redesignation to Attainment of the Ozone and
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on
or after November 15, 1992,'' (Shapiro Memorandum). The Shapiro
Memorandum provides that, for areas where maintenance plans do not rely
on implementation of a basic I/M program immediately following
redesignation, upon revision to the I/M rule, if a State adopts and
submits as a revision to its SIP the following:
The legislative authority for a basic I/M program;
A provision in the SIP providing that basic I/M be placed
in the contingency measure portion of the maintenance plan upon
redesignation; and
An enforceable schedule and commitment by the Governor or
his/her designee for adoption and implementation of a basic I/M program
upon a specified, appropriate triggering event;
The State would have met the minimum requirements for I/M as they
relate to USEPA's consideration of the State's redesignation request
submitted for a nonattainment area. The USEPA is presently proceeding
to establish this interpretation through regulatory action (see 59 FR
33237).
The State of Ohio is required to adopt a basic I/M program for the
Toledo ozone nonattainment area (encompassing Lucas and Wood Counties).
However, the State has submitted a redesignation request (SIP revision)
to attainment of the NAAQS for ozone for the Toledo area. This SIP
revision includes legislative authority for the adoption of a basic I/M
program; a basic I/M program as a contingency measure in the
maintenance plan upon redesignation; and an enforceable schedule for
the implementation of the basic I/M program upon a specified triggering
event. Under the approach set forth in the Shapiro Memorandum, the
State has met the requirements for an area requesting redesignation
that is required to adopt a basic I/M program.
For the Dayton ozone nonattainment area (encompassing Clark,
Greene, Miami, and Montgomery Counties), the Dayton local area has
opted for an enhanced I/M program. This requires the Dayton area to
comply with all applicable enhanced I/M program requirements. The I/M
Final Rule (57 FR 52950) provides that if the USEPA Administrator
determines that NOX emission reductions are not beneficial in a
given ozone nonattainment area, then NOX emission reductions are
not required of the enhanced I/M program, but the program shall be
designed to offset NOX increases resulting from the repair of
hydrocarbon (HC) and carbon monoxide (CO) failures.\1\
\1\Additional clarification concerning the I/M requirements and
areas with no NOX exemptions is provided in a memorandum from
Mary T. Smith, Acting Director, Office of Mobile Sources, dated
October 14, 1994, entitled ``I/M Requirements in NOX RACT
Exempt Areas.''
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Upon the effective date of this action, the Dayton area shall not
be required to demonstrate compliance with the enhanced I/M performance
standard for NOX. However, the Dayton area shall be required to
demonstrate, using USEPA's Mobile Source Emissions Model, Mobile 5a (or
its successor), that NOX emissions will be no higher than in the
absence of any I/M program.
VII. Withdrawal of the Exemptions
Continuation of the Section 182(f) exemptions granted herein is
contingent upon continued monitoring and continued attainment and
maintenance of the ozone NAAQS in the affected areas. If a violation of
the ozone NAAQS is monitored in the Toledo or Dayton area(s)
(consistent with the requirements contained in 40 CFR part 58 and
recorded in AIRS), USEPA will provide notice to the public in the
Federal Register. A determination that the NOX exemption no longer
applies would mean that the NOX NSR and the NOX-related
general and transportation conformity provisions would immediately be
applicable (see 58 FR 63214 and 58 FR 62188). The NOX RACT
requirements would also be applicable, with a reasonable time provided
as necessary to allow major stationary sources subject to the RACT
requirements to purchase, install and operate the required controls.
The USEPA believes that the State may provide sources a reasonable time
period after the USEPA determination to actually meet the RACT emission
limits. The USEPA expects such time period to be as expeditious as
practicable, but in no case longer than 24 months. If a nonattainment
area is redesignated to attainment of the ozone NAAQS, NOX RACT
shall be implemented as stated in the USEPA-approved maintenance plan.
VIII. Notice of Proposed Rulemaking and Responses to Comments
The USEPA published a notice proposing to approve the exemption
[[Page 3762]]
requests for the Toledo and Dayton nonattainment areas in the July 26,
1994 Federal Register (59 FR 37947). The USEPA received comments
supporting and adverse to this proposed action. Copies of all comments
have been placed in the docket file. The following entities submitted
adverse or supporting comments. Some of the comments addressed similar
points. The USEPA has responded to the adverse comments by issue as set
forth below.
Submitting Entity (Date Received by USEPA)
Citizens Campaign for the Environment (7-27-94); Natural Resources
Defense Council (8-9-94 and 8-24-94); New York State Electric and Gas
Corporation (8-10-94); Northeast States for Coordinated Air Use
Management (8-15-94 and 9-28-94); State of New York Department of
Environmental Conservation (8-16-94 and 10-05-94); Commonwealth of
Pennsylvania Department of Environmental Resources (8-31-94); Southern
Environmental Law Center (10-3-94); Pollution Probe (10-03-94); Ohio
Sierra Club (10-03-94); Conservation Law Foundation (10-03-94); The
Lung Association (Ontario, 10-11-94); Ohio Environmental Protection
Agency (10-26-94); Fuller & Henry (10-26-94); and Individual Residents
from the State of Ohio (various dates between 8/31/94 and 10/13/94).
A summary of the adverse comments and USEPA's responses follows:
Procedural Comments: Several commenters argued that USEPA should
not approve the waiver requests at issue on procedural grounds.
NOX exemptions are provided for in two separate parts of the Act,
section 182(b)(1) and section 182(f). Commenters took the position that
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,'' that
all NOX exemption determinations by USEPA, 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 to
attainment for the ozone NAAQS. 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), in the Act's conformity provisions.
USEPA Response: Section 182(f) contains very few details regarding
the administrative procedure for USEPA action on NOX exemption
requests. The absence of specific guidelines by Congress leaves USEPA
with discretion to establish reasonable procedures, consistent with the
requirements of the Administrative Procedure Act (APA).
Despite the interpretation of the commenters regarding the process
for considering exemption requests under section 182(f), USEPA believes
that subsections 182(f)(1) and 182(f)(3) provide independent procedures
for USEPA to act on NOX exemption requests. The language in
subsection 182(f)(1), which indicates that USEPA should act on NOX
exemptions in conjunction with action on a plan or plan revision, does
not appear in subsection 182(f)(3). While subsection 182(f)(3)
references subsection 182(f)(1), USEPA believes that this reference
encompasses only the substantive tests in paragraph (1) [and, by
extension, paragraph (2)], and not the procedural requirement that
USEPA act on exemptions only when acting on SIPs. Additionally,
paragraph (3) provides that ``person[s]'' (which section 302(e) of the
Act defines to include States) may petition for NOX exemptions
``at any time,'' and requires USEPA to make its determination within
six months of the petition's submission. These key differences lead
USEPA 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]''\2\ may petition for a NOX determination ``at any
time'' after the ozone precursor study required under section 185B of
the Act is finalized,\3\ and gives USEPA 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 USEPA. The
specific timeframe for USEPA action established in paragraph (3) is
substantially shorter than the timeframe usually required for States to
develop and for USEPA to take action on revisions to a SIP. These
differences strongly suggest that Congress intended the process for
acting on petitions under paragraph (3) to be distinct--and more
expeditious--from the plan revision process intended under paragraph
(1). Thus, USEPA believes that paragraph (3)'s reference to paragraph
(1) encompasses only the substantive tests in paragraph (1) (and, by
extension, paragraph (2)), not the requirement in paragraph (1) for
USEPA to grant exemptions only when acting on plan revisions.
\2\Section 302(e) of the Act defines the term ``person'' to
include States.
\3\The final section 185B report was issued July 30, 1993.
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With respect to major stationary sources, section 182(f) requires
States to adopt NOX NSR and RACT rules, unless exempted. These
rules were generally due to be submitted to USEPA by November 15, 1992.
Thus, in order to avoid sanctions under the Act, areas seeking a
NOX exemption would have needed to submit their exemption request
for USEPA review and rulemaking action several months before November
15, 1992. In contrast, the Act specifies that the attainment
demonstrations are not due until November 1993 or 1994 (and USEPA may
take 12-18 months to approve or disapprove the demonstration). For
marginal ozone nonattainment areas (subject to NOX NSR), no
attainment demonstration is called for in the Act. For maintenance
plans, the Act does not specify a deadline for submittal of maintenance
demonstrations. Clearly, the Act envisions the submittal of, and USEPA
action on, exemption requests, in some cases, prior to submittal of
attainment or maintenance demonstrations.
The Act requires conformity with regard to federally-supported
NOX generating activities in relevant nonattainment and
maintenance areas. However, USEPA's conformity rules explicitly provide
that these NOX requirements would not apply if USEPA grants an
exemption under section 182(f).
In response to the comment that section 182(b)(1) should be the
appropriate vehicle for dealing with exemptions from the NOX
requirements of the conformity rule, USEPA notes that this issue has
previously been raised in a formal petition for reconsideration of
USEPA's final transportation conformity rule and in litigation pending
before the U.S. Court of Appeals for the District of Columbia Circuit
on the substance of both the transportation and general conformity
rules. Thus the issue is under further consideration, but at this time
the Agency's position is as stated above.
[[Page 3763]]
Additionally, subsection 182(f)(3) requires that NOX exemption
petition determinations be made by USEPA within six months. The USEPA
has stated in previous guidance that it intends to meet this statutory
deadline as long as doing so is consistent with the APA. The USEPA
believes that the applicable rules governing this issue are those that
appear in USEPA's final conformity regulations, and that USEPA remains
bound by their existing terms.
Modeling Comments: Some commenters stated that the modeling
required by USEPA is insufficient to establish that NOX reductions
would not contribute to attainment since only one level of NOX
control, i.e., ``substantial'' reductions, is required to be analyzed.
They further explain that an area must submit an approvable attainment
plan before USEPA can know whether NOX reductions will aid or
undermine attainment.
USEPA Response: As described in USEPA's December 1993 NOX
exemption guidance,\4\ photochemical grid modeling is generally needed
to document cases where NOX reductions are counterproductive to
net air quality, do not contribute to attainment, do not show a net
ozone benefit, or include excess reductions. The Urban Airshed Model
(UAM) or, in the Ozone Transport Region (OTR), the Regional Oxidant
Model (ROM), are acceptable methods for these purposes. The December
guidance also provides that, under the ``not contribute to attainment
test,'' an area may qualify for a NOX exemption by attaining the
ozone standard, as demonstrated by three years of ambient air
monitoring data. The exemption requests submitted by the State for the
Toledo and Dayton areas are based upon ambient air monitoring data.
Therefore, adverse comments submitted concerning modeling are not
relevant to this action, and are not being further addressed.
\4\``Guideline for Determining the Applicability of Nitrogen
Oxide Requirements under section 182(f),'' from John S. Seitz,
Director, Office of Air Quality Planning and Standards, dated
December 19, 1993.
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Public Hearing Request: Some commenters requested that a public
hearing be held on this action.
USEPA Response: This action is not considered a SIP revision and
therefore the requirement for a public hearing under section 110(a) of
the Act is not applicable.
Environmental Impact Statement (EIS) Request: Some commenters
requested that an EIS be prepared regarding this action.
USEPA Response: All Clean Air Act programs are exempted from the
procedural requirements of the National Environmental Policy Act (NEPA)
under section 7(c)(1) of the Energy Supply and Environmental
Coordination Act, 15 U.S.C. 793(c)(1). Therefore, USEPA is not
preparing an EIS for this action.
SIP Status Request: One commenter requested the status of other SIP
revisions (i.e., the 15% rate-of-progress plan and the redesignation
request) required to be submitted by the State.
USEPA Response: This action only addresses the section 182(f)
exemption requests submitted by the State of Ohio for the Toledo and
Dayton areas and USEPA final action on such requests are not dependent
on final actions on other required SIP submittals, such as the ones
mentioned. Non-related SIP revisions will be dealt with separately.
Toledo Transportation Improvement Program (TIP): One commenter
provided comments on the basis of the determination of the conformity
of the Toledo TIP and analysis of other Ohio TIPs.
USEPA Response: This action only addresses the section 182(f)
exemption requests submitted by the State of Ohio for the Toledo and
Dayton areas. Therefore, the comment is not being further addressed.
Attainment Data Comments: Three years of ``clean'' data fail to
demonstrate that NOX reductions would not contribute to attainment
of the NAAQS for ozone. The USEPA's policy erroneously equates the
absence of a violation for one three-year period with ``attainment.''
USEPA Response: The USEPA has separate criteria for determining if
an area should be redesignated to an ozone attainment area under
section 107 of the Act. The section 107 redesignation criteria are more
comprehensive than the Act 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 OTR if
USEPA 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.
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, USEPA believes that
the section 182(f) test is met since ``additional reductions of
(NOX) would not contribute to attainment'' of the NAAQS in that
area. In cases where it is warranted, USEPA's approval of the exemption
is 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).
Downwind Area Comments: Several commenters argued that USEPA's
December 1993 guidance prohibits granting a section 182(f) waiver based
on 3 years of clean data if evidence exists showing that the waiver
would interfere with attainment or maintenance in downwind areas. The
commenters argued that such condition should also apply to waiver
requests based on modeling. Exemptions in Ohio cities, they claim, are
likely to exacerbate ozone nonattainment downwind, and therefore are
not consistent with the Act. If the exemptions are granted, emissions
from new stationary sources and the transportation sector in Ohio,
which are projected to increase, could delay attainment of the ozone
standard in areas in the northeastern United States.
These commenters further claim that USEPA modeling has demonstrated
that Ohio is a significant contributor to atmospheric transport of
ozone precursors to the OTR. Since this modeling indicates that
emissions of NOX from stationary sources west of the OTR
contribute to increased ozone levels in the northeast, they argued that
control of NOX emissions in the OTR and in States west of the OTR
will contribute to significant reductions in peak ozone levels within
the OTR.
USEPA Response: As a result of such comments, USEPA has re-
evaluated its position on this issue and decided to revise the
previously-issued guidance. As described below, USEPA 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 NOX
emissions would contribute significantly to nonattainment in, or
interfere with maintenance by, any other State. This action would be
independent of any action taken by USEPA on a NOX exemption
request for stationary sources under section 182(f). That is, USEPA
action to grant or deny a NOX exemption request under section
182(f) would not shield that area from USEPA action to require NOX
emission reductions, if necessary, under section 110(a)(2)(D).
Modeling analyses are underway in many areas for the purpose of
demonstrating attainment in the 1994
[[Page 3764]]
SIP revisions. Recent modeling data suggest that certain ozone
nonattainment areas may benefit from reductions in NOX emissions
far upwind of the nonattainment area. For example, the northeast
corridor and the Lake Michigan areas are considering attainment
strategies which rely in part on NOX emission reductions hundreds
of miles upwind. The USEPA 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, USEPA will
continue to work with the States and other organizations to develop
mutually acceptable attainment strategies.
At the same time as these large scale modeling analyses are being
conducted, certain nonattainment areas that are located in the area
being modeled, have requested exemptions from NOX requirements
under section 182(f). Some areas requesting an exemption may impact
upon downwind nonattainment areas. The USEPA intends to address the
transport issue through section 110(a)(2)(D) based on a domain-wide
modeling analysis.
Under section 182(f) of the Act, an exemption from the NOX
requirements may be granted for nonattainment areas outside an ozone
transport region if USEPA determines that ``additional reductions of
(NOX) would not contribute to attainment of the national ambient
air quality standard for ozone in the area.''\5\ As described in
section 4.3 of the December 16, 1993 guidance document, USEPA believes
that the term ``area'' means the ``nonattainment area,'' and that
USEPA's determination is limited to consideration of the effects in a
single nonattainment area due to NOX emissions reductions from
sources in the same nonattainment area.
\5\There are three NOX exemption tests specified in section
182(f). Of these, two are applicable for areas outside an ozone
transport region; the ``contribute to attainment'' test described
above, and the ``net air quality benefits'' test. The USEPA 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), USEPA 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 USEPA 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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Section 4.3 of the guidance goes on to encourage, but not require,
States/petitioners to include consideration of the entire modeling
domain, since the effects of an attainment strategy may extend beyond
the 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
inter-State. States need to consider such impacts since they are
ultimately responsible for achieving attainment in all portions of
their State (see generally section 110) 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)).''
In contrast, Section 4.4 of the 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 goes on to explain that section 110(a)(2)(D) (not section
182(f)) prohibits such impacts.
Consistent with the guidance in section 4.3, USEPA believes that
the section 110(a)(2)(D) and 182(f) provisions must be considered
independently. Thus, if there is evidence that NOX emissions in an
upwind area would interfere with attainment or maintenance in a
downwind area, that action should be separately addressed by the
State(s) or, if necessary, by USEPA in a section 110(a)(2)(D) action. A
section 182(f) exemption request should be independently considered by
USEPA. In some cases, then, USEPA may grant an exemption from across-
the-board NOX RACT controls under section 182(f) and, in a
separate action, require NOX controls from stationary and/or
mobile sources under section 110(a)(2)(D). It should be noted that the
controls required under section 110(a)(2)(D) may be more or less
stringent than RACT, depending upon the circumstances. Consistent with
these principles, USEPA is approving these exemption requests under
182(f) of the Act. If evidence appears that NOX emissions in an
upwind area would interfere with attainment or maintenance in a
downwind area, appropriate action shall be taken by the State(s) or, if
necessary, by USEPA under section 110(a)(2)(D).
Scope of Exemption Comments: Comments were received regarding
exemption of areas from the NOX requirements of the conformity
rules. Several commenters argue that the exemptions should 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, USEPA 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 USEPA, 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.
USEPA Response: With respect to conformity, USEPA's conformity
rules\6\ provide a NOX waiver if an area receives a section 182(f)
exemption. In rulemaking on ``Conformity; General Preamble for
Exemption From Nitrogen Oxides Provisions,'' 59 FR 31238, 31241 (June
17, 1994), USEPA reiterated its view that in order to conform,
nonattainment and maintenance areas must demonstrate that both the
transportation plan and the transportation improvement program (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,
USEPA states in the June 17th notice that it intends to remedy the
problem by amending the conformity rule. Although that notice
specifically mentions only requiring consistency with the approved
maintenance plan's NOX motor vehicle emissions budget, USEPA also
intends to require consistency with the attainment demonstration's
NOX motor vehicle emissions budget. However, the exemptions at
issue were submitted pursuant to section 182(f)(3), and USEPA does not
believe it is appropriate to delay action on these petitions,
especially in light of the six-month statutory deadline provided for
such action, until the conformity rule is amended. As noted above, this
issue has also been raised in a formal petition for reconsideration of
the Agency's final transportation conformity rule and in litigation
pending before the U.S. Court of Appeals for the District of Columbia
Circuit on the substance of both the
[[Page 3765]]
transportation and general conformity rules. Thus this issue is under
consideration, but at this time the Agency's position remains as
stated. The USEPA, therefore, believes that until the issue is
resolved, the applicable rules governing this issue are those that
appear in the Agency's final conformity regulations, and the Agency
remains bound by their existing terms.
\6\``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); ``Determining
Conformity of General Federal Actions to State or Federal
Implementation Plans; Final Rule,'' November 30, 1993 (58 FR 63214).
---------------------------------------------------------------------------
Conclusive Evidence Comment: The Act does not authorize any waiver
of the NOX reduction requirements until conclusive evidence exists
that such reductions are counter-productive.
USEPA Response: The USEPA does not agree with this comment since it
is contrary to 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. In developing and implementing
its NOX exemption policies, USEPA 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,
USEPA 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 they 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 a comment discussed above, the command in
subsection 182(f)(1) that USEPA ``shall consider'' the section 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
USEPA 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 USEPA actions granting NOX exemption
requests must await ``conclusive evidence,'' as the commenters argue,
there is also nothing in the Act to prevent USEPA from revisiting an
approved NOX exemption if warranted due to subsequent ambient
monitoring information.
In addition, USEPA believes (as described in USEPA's December 1993
guidance) that section 182(f)(1) of the Act provides that the new
NOX requirements shall not apply (or may by limited to the extent
necessary to avoid excess reductions) if the USEPA 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), USEPA believes that
each test provides an independent basis for the granting of a full or
limited NOX exemption. Only the first test listed above is based
on a showing that NOX reductions are ``counter-productive.'' If
even one of the tests is met, the section 182(f) NOX requirements
would not apply or, under the excess reductions provision, a portion of
these requirements would not apply.
Transboundary Pollution Comment: Several commenters noted that the
Canada-U.S. Air Quality Agreement signed by the two countries on March
13, 1991, calls for each Party to notify the other of a proposed
action, activity or project likely to cause significant transboundary
air pollution, and, as appropriate, to take measures to avoid or
mitigate the potential risk.
USEPA Response: The USEPA takes seriously international agreements
entered into by our government. However, USEPA does not believe that
the action of granting a NOX exemption request would likely cause
significant transboundary air pollution. The action to grant or deny
these exemption requests will determine the amount of emission
reductions, but not cause new or additional transboundary air
pollution.
Air Quality Comment: Several commenters stated that the air quality
monitoring data alone does not support this exemption proposal. The air
quality levels are below USEPA's definition of an exceedance of the
ozone NAAQS at 0.125 ppm, but are greater than the ozone NAAQS of 0.120
ppm.
USEPA Response: For the reasons provided below, USEPA does not
agree with the commenter's conclusion. As stated in 40 CFR 50.9, the
ozone ``standard is attained when the expected number of days per
calendar year with maximum hourly average concentrations above 0.12
parts per million (235 g/m3) is equal to or less than 1,
as determined by Appendix H.'' Appendix H references USEPA's
``Guideline for Interpretation of Ozone Air Quality Standards'' (EPA-
450/4-79-003, January 1979), which notes that the stated level of the
standard is taken as defining the number of significant figures to be
used in comparison with the standard. For example, a standard level of
0.12 ppm means that measurements are to be rounded to two decimal
places (0.005 rounds up to 0.01). Thus, 0.125 ppm is the smallest
concentration value in excess of the level of the ozone standard
(please refer to ``Section IV. Analysis of the State Submittal'' in
this notice for monitored ozone concentrations in the Toledo and Dayton
areas). The ambient air monitoring data shows that no violation of the
ozone standard has occurred for the Toledo and Dayton areas during the
1991-1993 ozone seasons.
IX. Final Action
The USEPA is approving the exemption requests for the Toledo and
Dayton ozone nonattainment areas from the section 182(f) NOX
requirements based upon the evidence provided by the State and the
State's compliance with the requirements outlined in the applicable
USEPA guidance. This action exempts the Lucas, Wood, Clark, Greene,
Miami, and Montgomery counties from the requirements to implement
NOX RACT, nonattainment area NSR for new sources and modifications
that are major for NOX, and the NOX-related general and
transportation conformity provisions. Also, the Clark, Greene, Miami,
and Montgomery counties shall not be required to demonstrate compliance
[[Page 3766]]
with the enhanced I/M performance standard for NOX. If a violation
of the ozone NAAQS occurs in the Toledo or Dayton area(s), the
exemption from the requirements of section 182(f) of the Act in the
applicable area(s) shall no longer apply.
X. Procedural Background
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the state
implementation plan shall be considered separately in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
This action has been classified as a Table 2 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993
memorandum from Michael H. Shapiro, Acting Assistant Administrator for
Air and Radiation. The Office of Management and Budget exempted this
regulatory action from Executive Order 12866 review.
XI. Regulatory Process
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA
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, USEPA 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. Today's exemptions do not create any new requirements, but
allow suspension of the indicated requirements for the life of the
exemptions. Therefore, because the approval does not impose any new
requirements, I certify that it does not have a significant impact on
any small entities affected.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 20, 1995. 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
Air pollution control, Intergovernmental relations, Nitrogen
oxides, Ozone, Reporting and record keeping requirements, Volatile
organic compounds.
Dated: January 5, 1995.
Valdas V. Adamkus,
Regional Administrator.
Part 52, chapter 1, title 40 of the Code of Federal Regulations 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.
Supart KK--Ohio
2. Section 52.1879 is amended by adding new paragraph (f) to read
as follows:
Sec. 52.1879 Review of new sources and modifications.
* * * * *
(f) Approval--USEPA is approving two exemption requests submitted
by the Ohio Environmental Protection Agency on September 20, 1993, and
November 8, 1993, for the Toledo and Dayton ozone nonattainment areas,
respectively, from the requirements contained in Section 182(f) of the
Clean Air Act. This approval exempts the Lucas, Wood, Clark, Greene,
Miami, and Montgomery Counties from the requirements to implement
reasonably available control technology (RACT) for major sources of
nitrogen oxides (NOX), nonattainment area new source review (NSR)
for new sources and modifications that are major for NOX, and the
NOX-related requirements of the general and transportation
conformity provisions. For the Dayton ozone nonattainment area, the
Dayton local area has opted for an enhanced inspection and maintenance
(I/M) programs. Upon final approval of this exemption, the Clark,
Greene, Miami, and Montgomery Counties shall not be required to
demonstrate compliance with the enhanced I/M performance standard for
NOX. If a violation of the ozone NAAQS is monitored in the Toledo
or Dayton area(s), the exemptions from the requirements of Section
182(f) of the Act in the applicable area(s) shall no longer apply.
3. Section 52.1885 is amended by adding new paragraph (r) to read
as follows:
Sec. 52.1885 Control Strategy: Ozone.
* * * * *
(r) Approval--USEPA is approving two exemption requests submitted
by the Ohio Environmental Protection Agency on September 20, 1993, and
November 8, 1993, for the Toledo and Dayton ozone nonattainment areas,
respectively, from the requirements contained in Section 182(f) of the
Clean Air Act. This approval exempts the Lucas, Wood, Clark, Greene,
Miami, and Montgomery Counties from the requirements to implement
reasonably available control technology (RACT) for major sources of
nitrogen oxides (NOX), nonattainment area new source review (NSR)
for new sources and modifications that are major for NOX, and the
NOX-related requirements of the general and transportation
conformity provisions. For the Dayton ozone nonattainment area, the
Dayton local area has opted for an enhanced inspection and maintenance
(I/M) program. Upon final approval of this exemption, the Clark,
Greene, Miami, and Montgomery Counties shall not be required to
demonstrate compliance with the enhanced I/M performance standard for
NOX. If a violation of the ozone NAAQS is monitored in the Toledo
or Dayton area(s), the exemptions from the requirements of Section
182(f) of the Act in the applicable area(s) shall no longer apply.
[FR Doc. 95-1254 Filed 1-18-95; 8:45 am]
BILLING CODE 6560-50-P
