[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2438-2446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1288]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[LA-22-1-7184; FRL-5402-7]
Approval and Promulgation of Section 182(f) Exemption to the
Nitrogen Oxides (NOX) Control Requirements for the Baton Rouge
Ozone Nonattainment Area; Louisiana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: As requested by the State of Louisiana in a petition submitted
to the EPA pursuant to section 182(f)(3) of the Clean Air Act (CAA),
the EPA is granting an exemption from the Reasonably Available Control
Technology (RACT) and New Source Review (NSR) requirements for major
stationary sources of Oxides of Nitrogen (NOX), from the vehicle
Inspection/Maintenance (I/M) NOX requirements, and general
conformity NOX requirements for the Baton Rouge, Louisiana serious
ozone nonattainment area. The EPA is approving the exemption based on a
demonstration that additional NOX reductions would not contribute
to attainment of the National Ambient Air Quality Standard (NAAQS) for
ozone in the nonattainment area. The EPA is not taking final action at
this time on the granting of an exemption from the transportation
conformity requirements of the CAA for the Baton Rouge area. The EPA is
reserving the right to reverse the approval of the exemption if
subsequent modeling data demonstrate an ozone attainment benefit from
NOX emission controls.
EFFECTIVE DATE: This action is effective as of January 18, 1996.
ADDRESSES: Copies of the exemption request, public comments and EPA's
responses are available for inspection at the following address:
United States Environmental Protection Agency, Region 6, Multimedia
Planning and Permitting Division, 1445 Ross Avenue, Suite 700, Dallas,
Texas 75202-2733.
Louisiana Department of Environmental Quality, H.B. Garlock Building,
7290 Bluebonnet, Baton Rouge, Louisiana 70810.
FOR FURTHER INFORMATION CONTACT:
Ms. Jeanne McDaniels or Mr. Quang Nguyen, Air Planning Section (6PD-L),
Multimedia Planning and Permitting Division, U.S. EPA Region 6, 1445
Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7214.
SUPPLEMENTAL INFORMATION:
I. Background
On November 17, 1994, the State of Louisiana submitted a petition
to the EPA requesting that the Baton Rouge serious ozone nonattainment
area be exempted from requirements to implement NOX controls
pursuant to section 182(f) of the CAA. The exemption request is based
on modeling that demonstrates additional NOX emission controls
within the nonattainment area will not contribute to attainment of the
ozone NAAQS within the area. The Baton Rouge ozone nonattainment area
consists of the following parishes: East Baton Rouge, West Baton Rouge,
Pointe Coupee, Livingston, Iberville, and Ascension. The State also
provided supplemental technical reports pertaining to the modeling as
part of the Baton Rouge post-1996 rate-of-progress plan submitted to
the EPA on November 15, 1994. In addition, the State submitted several
follow-up letters to the petition to: (1) revise a number of tables in
the November 17, 1994, petition, and (2) broaden the scope of the
original request to also include exemptions under section 182(f) for
NOX NSR, general conformity, and I/M NOX requirements.
On August 18, 1995, the EPA published a rulemaking proposing
approval of the NOX exemption petition for the six-parish ozone
nonattainment area (60 FR 43100). During the 30-day public comment
period, the EPA received two letters commenting on the proposal. Both
expressed opposition to the exemption. In addition to these comments,
in August 1994 three environmental groups submitted joint adverse
comments on the proposed approvals of NOX exemptions for the Ohio
and Michigan ozone nonattainment areas. The comments addressed the
EPA's general policy regarding NOX exemptions. The commenters
requested that these comments be addressed in all EPA rulemakings
dealing with section 182(f) exemptions.
II. Public Comments
The following discussion summarizes the comments received regarding
the State's petition and/or the EPA's proposed rulemaking and presents
the EPA's responses to these comments.
Comment: Commenters argued that NOX exemptions are provided
for in two separate parts of the CAA, in sections
[[Page 2439]]
182(b)(1) and 182(f). Because the NOX exemption tests in sections
182(b)(1) and 182(f)(1) include language indicating that action on such
requests should take place ``when (the EPA) approves a plan or plan
revision,'' these commenters conclude that all NOX exemption
determinations by the EPA, including exemption actions taken under the
petition process established by section 182(f)(3), must occur during
consideration of an approvable attainment or maintenance plan, unless
the area has been redesignated as attainment. The commenters also
argued that, even if the petition procedures of section 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 section 182(b)(1), since section 182(b)(1) is the only
provision explicitly referenced by section 176(c) (the CAA's conformity
provisions).
Response: Section 182(f) contains very few details regarding the
administrative procedures for acting on NOX exemption requests.
The absence of specific guidelines by Congress leaves the EPA with
discretion to establish reasonable procedures consistent with the
requirements of the Administrative Procedure Act (APA).
The EPA disagrees with the commenters regarding the process for
considering NOX exemption requests under section 182(f) and
instead, believes that sections 182(f)(1) and 182(f)(3) provide
independent procedures by which the EPA may act on NOX exemption
requests. The language in section 182(f)(1), which indicates that the
EPA should act on NOX exemptions in conjunction with action on a
plan or a plan revision, does not appear in section 182(f)(3). While
section 182(f)(3) references section 182(f)(1), the EPA believes that
this reference encompasses only the substantive tests in paragraph (1)
(and by extension, paragraph (2)), not the procedural requirement that
the EPA act on exemptions only when acting on State Implementation
Plans (SIPs).
Additionally, section 182(f)(3) provides that ``a person'' (which
section 302(e) of the CAA defines to include a State) may petition for
NOX exemptions ``at any time,'' and requires the EPA to make its
determination within six months of the petition's submission. These key
differences lead the EPA to believe that Congress intended the
exemption petition process of paragraph (3) to be distinct and more
expeditious than the longer plan revision process intended under
paragraph (1).
With respect to major stationary sources, section 182(f) requires
States to adopt NOX RACT and NSR rules, unless exempted. These
rules were generally due to be submitted to the EPA by November 15,
1992. Thus, in order to avoid the CAA sanctions, areas seeking a
NOX exemption would have needed to submit this exemption request
for EPA review and rulemaking action several months before November 15,
1992. In contrast, the CAA specifies that the attainment demonstrations
were not due until November 1993 or 1994 (and the EPA may take up to 12
months to approve or disapprove the demonstrations). For marginal ozone
nonattainment areas (subject to NOX NSR), no attainment
demonstrations are called for in the CAA. For areas seeking
redesignation to attainment of the ozone NAAQS, the CAA does not
specify a deadline for submittal of maintenance demonstrations (in
reality, the EPA would generally consider redesignation requests
without accompanying maintenance plans to be unacceptable). Clearly,
the CAA envisions the submittal of and EPA action on NOX exemption
requests, in some cases, prior to submittal of attainment or
maintenance demonstrations.
With respect to the comment that section 182(b)(1) is the
appropriate authority for granting interim period transportation
conformity NOX exemptions, the EPA agreed with the commenters and
published an interim final rule that changed the transportation
conformity rule's reference to section 182(b)(1) as the correct
authority under the CAA for waiving the NOX ``build/no-build'' and
``less-than-1990 emissions'' tests for certain areas. See 60 FR 44762,
dated August 29, 1995. A related proposed rule (60 FR 44790), published
on the same day, invited public comment on how the Agency plans to
implement section 182(b)(1) transportation conformity NOX
exemptions. That proposal has since been finalized. See 60 FR 57179
(November 14, 1995). However, the EPA also notes that section
182(b)(1), by its terms, only applies to moderate and above ozone
nonattainment areas. Consequently, the EPA believes that the interim
reductions requirements of section 176(c)(3)(A)(iii), and hence the
authority provided in section 182(b)(1) to grant relief from those
interim reduction requirements, apply only with respect to those areas
that are subject to section 182(b)(1). The EPA intends to continue to
apply the transportation conformity rule's ``build/no-build'' and
``less-than-1990 emissions'' tests for purposes of implementing the
requirements of section 176(c)(1). In addition, because general Federal
actions are not subject to section 176(c)(3)(A)(iii), which explicitly
references section 182(b)(1), the EPA will also continue to offer
relief under section 182(f)(3) from the applicable NOX
requirements of the general conformity rule.
In order to demonstrate conformity, transportation related federal
actions that are taken in ozone nonattainment areas not subject to
section 182(b)(1) and, hence, not subject to section 176(c)(3)(A)(iii)
must still be consistent with the criteria specified under section
176(c)(1). Specifically, these actions must not, with respect to any
standard, cause or contribute to new violations, increase the frequency
or severity of existing violations, or delay attainment. In addition,
such actions must comply with the relevant requirements and milestones
contained in the applicable state implementation plan, such as
reasonable further progress schedules, assumptions specified in the
attainment or maintenance demonstrations, numerical emission limits, or
prohibitions. The EPA believes that the ``build/no-build'' and ``less-
than-1990 emissions'' tests provide an appropriate basis for such areas
to demonstrate compliance with the above criteria.
As noted earlier, the EPA intends to continue to offer relief under
section 182(f)(3) from the interim NOX requirements of the
conformity rules that would apply under section 176(c)(1) for the areas
not subject to section 182(b)(1) in the manner described above. The EPA
believes this approach is consistent both with the way NOX
requirements in ozone nonattainment areas are treated under the CAA
generally, and under section 182(f) in particular. The basic approach
of the CAA is that NOX reductions should apply when beneficial to
an area's attainment goals, and should not apply when unhelpful or
counterproductive. Section 182(f) reflects this approach but also
includes specific substantive tests which provide a basis for the EPA
to determine when NOX requirements should not apply. There is no
substantive difference between the technical analysis required to make
an assessment of NOX impacts on attainment in a particular area
whether undertaken with respect to mobile source or stationary source
NOX emissions. Moreover, where the EPA has determined that
NOX reductions will not benefit attainment or would be
counterproductive in an area, the EPA believes it would be unreasonable
to insist on NOX reductions for purposes of meeting reasonable
further progress or other milestone requirements. Thus, even concerning
the conformity
[[Page 2440]]
requirements of section 176(c)(1), the EPA believes it is reasonable
and appropriate to (1) offer relief from the applicable NOX
requirements of the general and transportation conformity rules in
areas where such reductions would not be beneficial, and (2) rely in
doing so on the exemption tests provided in section 182(f).
For moderate and above ozone nonattainment areas which are relying
on modeling data in petitioning for a transportation conformity
NOX exemption, the final rule (60 FR 57179) affects the process
for applying for such waivers. Unlike section 182(f)(3), section
182(b)(1) requires that the EPA approve a NOX waiver (i.e.,
determine that additional reductions of NOX would not contribute
to attainment) as part of a SIP revision. Thus, under section
182(b)(1), petitions for transportation conformity NOX waivers for
areas subject to that section must be submitted as formal SIP revisions
by the Governor (or designee) following a public hearing. As explained
previously, the EPA will continue to process and approve, under section
182(f)(3), conformity NOX waivers for areas not subject to section
182(b)(1) without public hearings or submission by the Governor. The
Baton Rouge serious ozone nonattainment area is subject to the
requirements of section 182(b)(1). Hence, a transportation conformity
NOX waiver would have to be submitted as a revision to the SIP. As
mentioned previously, in this rulemaking, the EPA is not taking a final
action on a NOX exemption for transportation conformity for the
Baton Rouge area. The State of Louisiana has requested a transportation
conformity NOX exemption for the Baton Rouge area through a formal
SIP revision pursuant to section 182(b)(1) of the CAA. The EPA proposed
approval of the revision on October 6, 1995 (60 FR 52348). A final
action on the SIP submittal will be taken in a subsequent rulemaking by
the EPA.
Finally, as noted earlier, the NOX provisions of the general
conformity rule would not be affected by this proposal. A NOX
waiver under section 182(f) removes the NOX general conformity
requirements entirely and would continue to do so. The CAA's provision
for transportation conformity NOX waivers stems from section
176(c)(3)(A)(iii), which addresses only transportation conformity, and
not general conformity. Therefore, the statutory authority for general
conformity NOX waivers is not required to be section 182(b) for
any areas and may continue to be section 182(f) for all areas.
Comment: Commenters 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.
Response: As a result of these comments, the 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, the EPA intends to use its
authority under section 110(a)(2)(D) to require a State to reduce
NOX emissions from stationary and/or mobile sources where there is
evidence, such as photochemical grid modeling, showing that the
NOX emissions would contribute significantly to nonattainment in,
or interfere with maintenance by, any other State or in another
nonattainment area within the same State. This action would be
independent of any action taken by the EPA on a NOX exemption
request under section 182(f). That is, the EPA's action to grant or
deny a NOX exemption request under section 182(f) for any area
would not shield that area from the 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, the 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 CAA, an exemption from NOX
requirements may be granted for nonattainment areas outside of an ozone
transport region if the 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),'' the 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
CAA.
\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. 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 should be
[[Page 2441]]
separately addressed by the State(s) or, if necessary, by the EPA in a
section 110(a)(2)(D) action. In addition, a section 182(f) exemption
request should be independently considered by the EPA. In some cases,
therefore, the EPA 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 on the circumstances.
The State of Louisiana is being included in one of the new modeling
analyses referred to above that is being conducted by the EPA, States,
and other agencies as part of the Ozone Transport Assessment Group
(OTAG). The OTAG process is a consultative process among the eastern
States and the EPA which was initiated by the EPA in a March 2, 1995,
policy memorandum.2 The OTAG assessment process, which is
scheduled to end at the close of 1996, will evaluate regional and
national emission control strategies using improved regional modeling
analyses. The goal of the OTAG process is to reach consensus on
additional regional and national emission reductions that are needed to
support efforts to attain the ozone standard in the eastern United
States. Based on the results of the OTAG process, States have committed
to submit plans (SIP revisions) by mid-1997 which show attainment of
the ozone standard through local, regional, and national emission
controls.
\2\ Memorandum, ``Ozone Attainment Demonstrations,'' dated March
2, 1995, from Mary Nichols, Assistant Administrator for Air and
Radiation, U.S. Environmental Protection Agency.
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The OTAG plans to complete additional modeling between now and
September 1996 using emissions data and emission control strategies
currently being developed among OTAG workgroups.
As noted in a prior EPA rulemaking dated November 28, 1994 (59 FR
60709), 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 an attainment
disbenefit or lack of benefit from NOX emission reductions.
Additionally, in the notice of proposed rulemaking on the Baton Rouge
exemption request, 60 FR 43100 (August 18, 1995), the EPA indicated
that the NOX exemption would remain effective for only as long as
modeling continued to show that NOX control activities would not
contribute to attainment in the Baton Rouge area.
The State of Louisiana has conducted a number of additional
modeling analyses (subsequent to the preparation of the NOX waiver
request) to assess the impact of specific emission controls on peak
ozone concentrations. These additional modeling analyses have been
performed to support the State's demonstration of attainment, which is
under development. These modeling analyses are well documented and are
based on a modeling system which has been accepted by the EPA as being
validated for the Baton Rouge modeling domain. EPA continues to believe
that the modeling completed thus far supports granting a NOX
waiver.
As discussed above, the State of Louisiana has been included in the
superregional photochemical modeling of the eastern United States
(U.S.) by the OTAG. The EPA expects the OTAG to complete their work as
scheduled. The EPA will then evaluate the modeling results and their
implications concerning NOX versus volitle organic compound (VOC)
emission controls. The results of this modeling may supersede the urban
airshed model (UAM) demonstration that the EPA is using as the basis
for granting this waiver. To continue the waiver for all NOX
source categories, the modeling must continue to show attainment of the
ozone standard without the use of additional NOX emission
controls. The final modeling may demonstrate attainment of the ozone
standard using a subset of the possible NOX emission controls. In
this situation, the EPA may continue the waiver for the remaining
``non-controlled'' NOX sources under section 182(f)(2) of the CAA.
Comment: Comments were received regarding the scope of exemption of
areas from the NOX requirements of the conformity rules. The
commenters argued that such exemptions waive only the requirements of
section 182(b)(1) to contribute to specific annual reductions, not the
requirement that conformity SIPs contain information showing the
maximum amount of motor vehicle NOX emissions allowed under the
transportation conformity rules, and similarly, the maximum allowable
amounts of any such NOX emissions under the general conformity
rules. The commenters admitted that, in prior guidance, the EPA has
acknowledged the need to amend a drafting error in the existing
transportation conformity rules to ensure consistency with motor
vehicle emissions budgets for NOX, but want the EPA, in actions on
NOX exemptions, to explicitly affirm this obligation and to also
avoid granting waivers until a budget controlling future NOX
increases is in place.
Response: The EPA's transportation conformity rule 3
originally provided a NOX transportation conformity waiver if an
area received a section 182(f) exemption. As indicated in a previous
response, the EPA has changed the reference from section 182(f) to
section 182(b)(1) in the transportation conformity rule since that
section is specifically referenced by the transportation conformity
provisions of the CAA. See 60 FR 44762. The EPA has also consistently
held the view that, in order to conform, nonattainment and maintenance
areas must demonstrate that 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 was not
reflected in the transportation conformity rule. The EPA has amended
the rule to correct this error. See 60 FR 57179. However, the
exemptions that are the subject of this final action do not include
transportation conformity NOX requirements and are being processed
under section 182(f)(3), which requires the EPA to act within 6 months
on the submitted petition. The EPA believes it is appropriate to act on
received petitions as close to the prescribed 6 month time frame as
practicable. Therefore, the EPA intends to process this exemption
request without further delay.
\3\ ``Criteria and Procedures for Determining Conformity to
State or Federal Implementation Plans of Transportation Plans,
Programs, and Projects Funded or Approved under Title 23 U.S.C. of
the Federal Transit Act,'' November 24, 1993 (58 FR 62188).
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Comment: Commenters argued that the CAA does not authorize any
waiver of the NOX reduction requirements until conclusive evidence
exists that such reductions are counterproductive.
Response: The EPA does not agree with this comment since it ignores
the Congressional intent as evidenced by the plain language of section
182(f), the structure of the Title I ozone subpart as a whole, and
relevant legislative history. By contrast, in developing and
implementing its NOX exemption policies, the EPA has sought an
approach that reasonably accords with that intent. In addition to
imposing control requirements on major stationary sources of NOX
similar to those that apply for sources of VOC, section 182(f), also
provides for an exemption (or limitation) from application of these
requirements if, under one of several tests, the EPA
[[Page 2442]]
determines that, in certain areas, NOX reductions would generally
not be beneficial towards attainment of the ozone standard. In section
182(f)(1), Congress explicitly conditioned action on NOX
exemptions on the results of an ozone precursor study required under
section 185B of the CAA. Because of the possibility that reducing
NOX in an 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 Title I of the
CAA, to avoid requiring NOX reductions where such would not be
beneficial or would be counterproductive. In describing these various
ozone provisions, including section 182(f), the House Conference
Committee Report states in the 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 the response to an earlier comment, the command in
section 182(f)(1) that the EPA ``shall consider'' the section 185B
report taken together with the timeframe the CAA provides 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 the
EPA to act on NOX exemption requests, even in the absence of the
additional information that would be included in affected areas'
attainment or maintenance demonstrations. While there is no specific
requirement in the CAA that EPA actions granting NOX exemption
requests must await ``conclusive evidence,'' as the commenters argue,
there is also nothing in the CAA to prevent the EPA from revisiting an
approved NOX exemption if warranted by additional, current
information.
In addition, the EPA believes, as described in the EPA's December
1993 guidance, that section 182(f)(1) of the CAA provides that the new
NOX requirements shall not apply (or may be limited to the extent
necessary to avoid excess reductions) if the Administrator determines
that any one of the following tests is met:
(1) In any area, the net air quality benefits are greater in the
absence of NOX reductions from the sources concerned;
(2) In nonattainment areas not within an ozone transport region,
additional NOX reductions would not contribute to ozone attainment
in the area; or
(3) In nonattainment areas within an ozone transport region,
additional NOX reductions would not produce net ozone air quality
benefits in the transport region. Based on the plain language of
section 182(f), the EPA believes that each test provides an independent
basis for a full or limited NOX exemption.
Only the first test listed above is based on a showing that
NOX reductions are ``counterproductive.'' If one of the tests is
met (even if another test is failed or not applied), the section 182(f)
NOX requirements would not apply or, under the excess reductions
provision, a portion of these requirements would not apply.
Comment: Commenters provided a generic comment on all section
182(f) actions that three years of ``clean'' data fail to demonstrate
that NOX reductions would not contribute to attainment.
Response: The EPA does not believe that this comment is applicable
to the Baton Rouge action because the area has not based its section
182(f) petition on ``clean'' air monitoring data.
Comment: Commenters stated that the modeling required by the EPA is
insufficient to establish that NOX reductions would not contribute
to attainment since only one level of control, ``substantial''
reductions, is required to be analyzed. As such, the waiver does not
provide a complete picture of the effect larger amounts of NOX
reductions will have on ozone levels. They further explained that an
area must submit an approvable attainment plan before the EPA can know
whether NOX reductions will aid or undermine attainment.
Response: As described in the EPA's December 1993 NOX
exemption guidance, 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 UAM or, in a transport
region, the Regional Oxidant Model are acceptable models for these
purposes.
The EPA guidance also states that application of UAM should be
consistent with techniques specified in the EPA ``Guideline on Air
Quality Models (Revised)'' (December 1993). Further, application of UAM
should also be consistent with procedures contained in the EPA
``Guideline for Regulatory Application of the Urban Airshed Model''
(July 1991). Thus, episode selection for the section 182(f)
demonstration should be consistent with the UAM guidance for SIP
attainment demonstrations.
The section 182(f) ``contribute to attainment'' and ``net ozone
benefit'' demonstrations concern an unspecified ``additional
reductions'' of NOX. The EPA's December 1993 guidance specifies
that the analysis should reflect three scenarios of ``substantial''
NOX and VOC emission reductions. The guidance states that, in
scenario (1), the demonstration should use the VOC reductions needed to
attain, as demonstrated by Empirical Kinetic Modeling Approach or UAM
analyses. Alternatively, if the attainment demonstration has not been
completed, the demonstration may use some other substantial VOC
reduction. In any case, the VOC reductions should be substantial and
documented as reasonable to expect for the area, due to the CAA
requirements. In scenario (2), NOX reductions should be modeled
without any VOC reductions above the attainment year baseline. The
level of NOX reductions should reflect the same percent reduction
of anthropogenic VOC emissions in scenario (1) above. In scenario (3),
a similar level of NOX reductions would be modeled along with the
level of VOC reductions chosen. That is, if a 40 percent VOC reduction
is chosen in scenario (1), then the model for scenario (3) would
simulate a 40 percent VOC reduction and approximately a 40 percent
NOX reduction. It would be inappropriate to select a high level of
VOC reductions and a low level of NOX reductions since this could
artificially favor a finding that NOX reductions are not
beneficial; thus, the scenarios are constrained to avoid an
inappropriate analysis.
The EPA believes these analyses are appropriate to determine, in a
directional manner, whether or not NOX reductions are expected to
be beneficial to the air quality in the area/region. These analyses
described in the EPA's December 1993 guidance may be less precise than
an attainment demonstration required under section 182(c). With respect
to the excess reductions provision in section 182(f)(2), however, the
EPA believes that more than a directional analysis is needed (for
reasons described in the December 1993 guidance) and, therefore,
requires an analysis based on the attainment demonstration.
The State's modeling demonstration reflected substantial NOX
reductions in addition to substantial VOC reductions in order to more
accurately characterize near-term VOC and NOX control
[[Page 2443]]
scenarios. In fact, for the NOX waiver, the State modeled a 100
percent reduction in the point source NOX inventory (which
represented a 57 percent reduction in total projected NOX
emissions), along with a 100 percent reduction in point source VOC
emissions (which represented a 46 percent reduction in the total
projected anthropogenic VOC emissions). The analyses showed that the
modeled domain-wide peak ozone concentrations exceeding 120 parts per
billion decreased in response to substantial VOC emission reductions
and increased in response to substantial NOX emission reductions
for all episodes.
Comment: Commenters argued that the CAA does not authorize delaying
implementation of NOX controls if attainment modeling is not
complete.
Response: The EPA believes the modeling analyses submitted are
appropriate to determine, in a directional manner, whether or not
NOX reductions are expected to be beneficial with respect to the
air quality in the area/region.
Comment: One commenter argued that, while NOX controls may be
less beneficial than VOC-only controls in reducing ozone concentrations
in some areas of the Baton Rouge region on some days, the State has not
demonstrated that VOC-only controls will sufficiently reduce ozone
concentrations for the majority of episodes, particularly in areas
farther downwind.
Response: The modeling analyses performed examined the relative
benefits of VOC versus NOX emissions reductions primarily in the
ozone nonattainment and surrounding areas as required by the EPA's
NOX exemption guidance. An assessment of the impact of VOC versus
NOX emission reductions in areas farther downwind (beyond the
modeling domain) was not required by the EPA and, thus, was not
considered in the State analyses submitted in support of the NOX
exemption. The modeling domain selected, however, was large enough to
ensure that it provided resolution of ozone and precursor advection
upwind and downwind of the area of interest. The Baton Rouge modeling
domain, which includes all or part of 20 parishes in Louisiana, covers
both attainment as well as nonattainment parishes. As mentioned
earlier, the analyses showed that the modeled domain-wide peak ozone
concentrations exceeding 120 parts per billion decreased in response to
VOC emission reductions and increased in response to NOX emission
reductions for all episodes.
As noted in the response to an earlier comment, the State of
Louisiana has been included in the OTAG regional modeling domain to
address the impact that transport may have on downwind areas in the
eastern U.S. Based on the outcome of the modeling analyses, the EPA may
require, pursuant to section 110(a)(2)(D), NOX reductions in
upwind areas to address the transport issue.
Comment: One commenter stated that the EPA must rely on the recent
National Academy of Sciences (NAS) report in its review of NOX
waivers. The commenter pointed out that the NAS report found that to
reduce transported ozone NOX reductions are needed.
Response: The NAS report and the EPA's companion report both
support the conclusion that, as a general matter for ozone
nonattainment areas across the country, NOX reductions in addition
to VOC reductions will be needed to achieve attainment. This general
conclusion, however, must be assessed in the context of the more
detailed analysis provided in those same reports. For example, the NAS
report notes that NOX reductions can have either a beneficial or
detrimental effect on ozone concentrations, depending on the locations
and emission rates of VOC and NOX sources in a region. The effect
of NOX reductions depends on the local VOC/NOX ratio and a
variety of other factors. In its report issued pursuant to section 185B
of the CAA, the EPA stated that ``[a]pplication of gridded
photochemical models on a case by case basis is required to determine
the efficacy of NOX controls, because the ozone response to
precursor reductions is area specific.''
The analyses performed in the Baton Rouge area demonstrate a local
disbenefit from NOX control in the modeling domain. Based on these
modeling results, the area meets the test under section 182(f)(1)(A) of
the CAA required to support a waiver from the NOX requirements of
section 182(f). The effect that NOX controls in the Baton Rouge
area may have on ozone levels in the eastern U.S. will be addressed in
the OTAG process.
Comment: NOX emission reductions will not only reduce
transported ozone, but will also improve visibility, especially in
downwind Class I areas.
Response: The NOX control waiver request was submitted based
on sensitivity analyses performed on the episodes selected for the
attainment demonstration required for moderate and above ozone
nonattainment areas. To this end, the focus is on the local ozone
problem in the Baton Rouge area. Other air pollution problems will be
dealt with as part of separate regulatory activities. Moreover, the
NOX exemption test Louisiana is relying on (pursuant to section
182(f)(1)(A)) requires an assessment of only the contribution of
NOX emissions reductions toward ozone attainment.
Comment: One commenter argued that the EPA Administrator has an
obligation, under section 110(a)(2)(D), to prohibit any activity in a
State which will contribute significantly to nonattainment in, or
interfere with maintenance by, any other State. To this end, a
``superregional'' NOX strategy should be adopted before the
Administrator grants any section 182(f) NOX exemption or, at the
very least, NOX exemptions should be restricted to expire if the
OTAG and the EPA are unsuccessful in completing the requirements
outlined in the EPA's March 2, 1995, attainment guidance document.
Response: As discussed earlier in the response concerning transport
to downwind areas, the EPA intends to use its authority under section
110(a)(2)(D) to require a State to reduce NOX emissions from
stationary and/or mobile sources where there is evidence, such as
photochemical grid modeling, showing that the NOX emissions would
contribute significantly to nonattainment in, or interfere with
maintenance by, any other State or in another nonattainment area within
the same State. This action would be independent of any action taken by
EPA on a NOX exemption request under section 182(f).
Comment: One commenter stated that the current ozone standard, 120
parts per billion, may not be adequately protective of public health
and even greater reductions in ozone levels could be required.
Response: The adequacy of the current ozone standard is not the
subject of this rulemaking. The EPA will reserve discussions regarding
the adequacy of the ozone standard for future rulemaking actions on
that subject.
Comment: One commenter argued that biogenic VOC emissions are
underestimated, which would cause a bias in the model towards favoring
VOC control. The commenter further stated that, in the petition, no
mention is made of what an upward revision in the biogenic VOC
emissions inventory would mean for the effectiveness of a VOC-based
control strategy. The commenter argued that mobile source VOC emissions
are significantly underestimated, which would compound with the
possible underestimation of biogenic VOC emissions to make VOC controls
even less effective in reality than they appear in modeling studies.
Also, the commenter asserted that a significant
[[Page 2444]]
underestimation of the mobile source VOC inventory has large
implications because it comprises the largest portion of the
anthropogenic inventory.
Response: Depending on the locality, the mobile source inventory
could comprise a major portion of the anthropogenic inventory. However,
in the case of the Baton Rouge area, the mobile source inventory
accounts for only 18 percent of the total VOC inventory, whereas the
biogenic emissions inventory, which is the major source of VOC
emissions in the Baton Rouge area, accounts for 57 percent of the total
VOC emissions inventory.
In calculating the mobile source emissions inventory for the Baton
Rouge area, the State used the EPA recommended method (i.e., MOBILE5a
for mobile source emission factors and area-specific data for vehicle
miles traveled).
Biogenic hydrocarbon emissions have been determined to play an
important role in the chemistry of urban ozone formation, especially in
warm southern cities. In light of this, the State developed the
biogenic emission inventory for the Baton Rouge area based on area-
specific data. For instance, the area-specific land use database used
in the biogenic emission development was derived from four different
sources: the Louisiana Department of Transportation and Development, a
study of Baton Rouge's biogenic hydrocarbon emissions by Carlos
Cardolino and William Chameides 4 at the Georgia Institute of
Technology using Landsat imagery, the U.S. Geological Survey's Geo-
ecology database, and the U.S. Forest Service's 1991 Forest Statistics
for the Southeast Louisiana Parishes and Forest Statistics of South
Delta Louisiana Parishes. Meanwhile, the emission factors used in
estimating biogenic emissions in the Baton Rouge area were obtained
from the Rasmussen and Khalil 5 and Zimmermann 6 studies of
biogenic sources. (The emission factors from the Rasmussen and Khalil
and Zimmermann studies were derived from direct measurements of various
types of vegetation in the Baton Rouge and Tampa Bay, Florida areas,
respectively.)
\4\ Cardelino, C.A., and W.L. Chameides. ``A Gridded Inventory
of Biogenic Hydrocarbon Emissions for the Baton Rouge Non-attainment
Area.'' October 1989.
\5\ Rasmussen, R.A., and M.A.K. Khalil. ``Forest Hydrocarbon
Emissions: Relationships Between Fluxes and Ambient
Concentrations.'' Journal of the Air and Waste Management
Association. Volume 42, No. 6 (June 1992), p. 5.
\6\ Zimmermann, P.R. ``Testing for Hydrocarbon Emissions from
Vegetation Leaf Litter and Aquatic Surfaces, and Development of a
Methodology for Compiling Biogenic Emission Inventories.'' EPA-450,
4-4-79-004 (1979).
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The EPA believes that the mobile and biogenic VOC inventories are
sufficiently accurate to produce acceptable modeling results. In
accordance with the EPA's UAM guidance, the State used the 1990
emissions inventory for developing its modeling demonstration. (The EPA
evaluated the State's 1990 base year emissions inventory for Baton
Rouge and published a final approval in the Federal Register on March
15, 1995. See 60 FR 13908.)
Comment: One commenter stated that uncertainties in meteorology can
act as a source of compensating errors for erroneously low VOC
inventories. In the Baton Rouge area, the regions of high anthropogenic
NOX emissions are generally well-separated from the regions of
highest biogenic VOC emissions. This creates uncertainty in accurately
modeling the transport of a high-NOX plume into high biogenic VOC
areas under stagnant wind conditions.
Response: The EPA believes that the conditions described above
(i.e., regions of high-NOX emissions generally well-separated from
high biogenic VOC emissions under stagnant wind conditions) are not
characteristic of the Baton Rouge area, where many major NOX point
sources are either collocated or located within the regions of highest
biogenic VOC emissions. Many of the major NOX point sources, which
are located within the Baton Rouge modeling domain, were taken into
account in the simulations. The model performed well for the episodes
selected, providing a good representation of the spatial and temporal
characteristics of the episode, and generally simulating the observed
peaks well. Also, consistent with EPA guidance, the State performed
diagnostic and sensitivity simulations to determine whether
compensating errors occurred as a result of meteorology and other
inputs and found that no such errors occurred.
Comment: One commenter stated that the EPA should place the burden
of proof on Louisiana to provide affirmative evidence that no negative
impact will occur in downwind areas if NOX reductions are not
imposed in the Baton Rouge area.
Response: Modeling and data analyses addressed in the State's
NOX waiver request demonstrate the positive benefits of VOC
control in the modeling domain. And, as required under section 182(f),
the State has demonstrated that implementing NOX emission controls
will result in greater domain-wide peak ozone concentrations throughout
the Baton Rouge modeling domain. Since the State is relying on the
section 182(f)(1)(A) ``contribute to attainment'' test, it does not
also need to demonstrate that no negative impact will occur in downwind
areas if NOX reductions are not imposed in the Baton Rouge area.
(Also, see the EPA's previous response to comment on transport issues.)
Comment: One commenter stated that NOX reductions have other
air quality benefits in addition to their effect on ozone, and that
granting a NOX waiver will undermine the EPA's efforts to improve
a broad range of air and water quality values in several regional
efforts to address regional environmental problems (i.e., acid rain and
nitrogen deposition into estuaries).
Response: The EPA agrees that NOX emissions can contribute to
air pollution problems independent of their role in ozone formation;
however, the EPA disagrees that the NOX controls required under
section 182(f) of the CAA should be implemented in the Baton Rouge area
regardless of their impact on ozone. As noted in the response to an
earlier comment, section 182(f)(1)(A) specifically provides for an
exemption in cases where NOX emission reductions would not
contribute to attainment of the NAAQS for ozone in the area. The LDEQ
has demonstrated in its petition and in the EPA's proposed action that
the NOX reductions required by section 182(f) would not contribute
to attaining the ozone NAAQS in the Baton Rouge area and, thus, the
area qualifies for an exemption from the CAA's NOX requirements.
At this time, ambient concentrations of nitrogen dioxide (NO2)
in the Baton Rouge area are significantly below the federal NAAQS for
NO2. Therefore, based on the current federal standards, the EPA
does not believe the NO2 levels in Baton Rouge are unsafe. The EPA
is mandated to periodically reevaluate the NAAQS for each criteria
pollutant based on the best information available. The EPA is currently
reviewing the NO2 standard and will evaluate any potential
concerns over the standard through a separate rulemaking process.
Additionally, for the purposes of reducing acid rain deposition,
certain NOX sources will still be required to reduce NOX
emissions under Title IV of the CAA. Other air pollution problems
(i.e., nitrogen deposition into estuaries) will be dealt with as part
of separate regulatory activities.
For these reasons, the EPA does not believe that the NOX
controls required under section 182(f) of the CAA should
[[Page 2445]]
be implemented in the Baton Rouge area regardless of the impact on
ozone.
Comment: One commenter argued that, since the OTAG's assessment of
the influence of NOX on regional transport will not be completed
until late-1996, in the interim, the EPA should, at a minimum, cap
NOX emissions at current levels in the Baton Rouge area, and
require offsets for new emission sources to prevent NOX emissions
increases.
Response: The EPA disagrees with this comment as it pertains to
this action. The CAA authorizes the EPA to grant NOX exemptions
for areas, like Baton Rouge, that qualify under section 182(f) and
requires that the EPA make such determinations within 6 months of
submission of a petition. Also, the EPA anticipates that the State will
submit a modeled attainment demonstration for the six-parish Baton
Rouge nonattainment area well ahead of the schedule outlined in the
EPA's March 2, 1995, attainment guidance. (The State has developed an
attainment demonstration submittal for the Baton Rouge area, which was
put forth for public comment in the October 20, 1995, edition of the
Louisiana Register.) The attainment demonstration establishes a target
level for both VOC and NOX emissions in the area. Additionally, if
a NOX waiver is approved, major point sources of NOX
emissions are still subject to Prevention of Significant Deterioration
requirements. Moreover, in the section 182(f) modeling demonstration,
the State has projected negative growth in point source NOX
emissions from the base year (1990) out to the attainment year (1999).
As noted previously, the EPA's action to grant or deny a NOX
exemption under section 182(f) would not shield the area from EPA
action, under section 110(a)(2)(D), to require even further NOX
emission reductions (beyond those modeled in the attainment
demonstration) if, through the OTAG process or other subsequent
modeling, such reductions are determined to be necessary to address
transport to downwind areas.
III. Effective Date
This rulemaking is effective as of January 18, 1996. The
Administrative Procedure Act (APA), 5 U.S.C. 553(d)(1), permits the
effective date of a substantive rule to be less than thirty days after
publication if the rule ``relieves a restriction.'' Since the approval
of the section 182(f) exemption for the Baton Rouge ozone nonattainment
area is a substantive rule that relieves the restrictions associated
with the CAA Title I requirements to control NOX emissions, the
NOX exemption approval may be made effective upon signature by the
EPA Administrator.
IV. Final Action
The comments received were found to warrant no significant changes
from proposed to final action on this NOX exemption request. The
primary difference between the proposed and final rulemaking is the
addition of the statement that the EPA may require NOX emission
controls in general or on a source-specific basis under section
110(a)(2)(D) of the CAA if future ozone modeling (for example, the OTAG
modeling expected to be completed in late-1996) demonstrates that such
controls are needed to achieve the ozone standard in downwind areas.
Based on subsequent modeling results, the EPA may rescind all or
part(s) of the NOX waiver. Approval of the exemption waives the
Federal requirements for NOX RACT, NOX NSR, vehicle I/M
NOX requirements, and NOX general conformity applicable to
the Baton Rouge ozone nonattainment area. To maintain the waiver,
future modeling must demonstrate attainment of the ozone standard
without the use of additional NOX emission controls. (The modeling
may demonstrate the need for some NOX emission controls,
necessitating the need for a reduction in the source coverage of the
NOX waiver under section 182(f)(2) of the CAA.) Should the EPA
rescind the exemption, the State would be required to begin
implementing applicable NOX RACT, NOX NSR, vehicle I/M
NOX requirements, and NOX general conformity. (To allow point
sources time to purchase NOX control equipment, install it, etc.,
NOX RACT compliance would be required as expeditiously as
practicable, but no later two years following the rescission.)
This action stops the mandatory sanctions clock started on July 1,
1994, as a result of the EPA's finding of failure to submit the
NOX RACT SIP pursuant to section 179(a) of the CAA.
V. Miscellaneous
A. Applicability to Future SIP Decisions
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
state implementation plan. The EPA shall consider each request for
revision to the state implementation plan in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from review under Executive Order 12866.
C. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, the EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
This approval does not create any new requirements. Therefore, I
certify that this action does not have a significant impact on any
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the CAA, preparation of the regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of the State action. The CAA forbids the EPA to base its
actions concerning state implementation plans on such grounds (Union
Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 (S. Ct. 1976); 42
U.S.C. 7410(a)(2)).
D. Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995,
the EPA must assess whether various actions undertaken in association
with proposed or final regulations include a Federal mandate that may
result in estimated costs of $100 million or more to the private
sector, or to State, local, or tribal governments in the aggregate.
The EPA's final action will relieve requirements otherwise imposed
under the CAA and, hence, does not impose any federal intergovernmental
mandate, as defined in section 101 of the Unfunded Mandates Act. This
action also will not impose a mandate that may result in estimated
costs of $100 million or more to either State, local, or tribal
governments in the aggregate, or to the private sector.
E. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by March 26, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the
[[Page 2446]]
purpose of judicial rule, nor does it extend the time within which a
petition for judicial review may be filed and shall not postpone the
effectiveness of such rule or action. This action may not be challenged
later in proceedings to enforce its requirements. See section 307(b)(2)
of the CAA.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Oxides of
nitrogen, Incorporation by reference, Intergovernmental relations,
Ozone.
Dated: January 18, 1996.
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 T--Louisiana
2. Section 52.992 is amended by adding paragraph (b) to read as
follows:
Sec. 52.992 Area-wide nitrogen oxides (NOX) exemptions.
* * * * *
(b) The LDEQ submitted to the EPA on November 17, 1994, a petition
requesting that the Baton Rouge serious ozone nonattainment area be
exempted from the NOX control requirements of the CAA. In
addition, supplemental information was submitted to the EPA by the LDEQ
on January 26, 1995, June 6, 1995, and June 16, 1995. The Baton Rouge
nonattainment area consists of East Baton Rouge, West Baton Rouge,
Pointe Coupee, Livingston, Iberville, and Ascension Parishes. The
exemption request was based on photochemical grid modeling which shows
that reductions in NOX would not contribute to attainment in the
nonattainment area. On January 18, 1996, the EPA approved the State's
request for an areawide exemption from the following requirements:
NOX new source review, NOX reasonably available control
technology, NOX general conformity, and NOX inspection and
maintenance requirements.
[FR Doc. 96-1288 Filed 1-25-96; 8:45 am]
BILLING CODE 6560-50-P
