[Federal Register Volume 59, Number 243 (Tuesday, December 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31230]
[[Page Unknown]]
[Federal Register: December 20, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA82-1-6509; FRL-5125-4]
Monterey Bay Ozone Nonattainment Area; Clean Air Act Section
182(f) Exemption Petition
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The EPA is proposing to approve a petition submitted by the
Monterey Bay Unified Air Pollution Control District (MBUAPCD)
requesting that the Monterey Bay ozone nonattainment area (Monterey Bay
Area) be exempted from the requirement to implement oxides of nitrogen
(NOX) Reasonably Available Control Technology (RACT). In
accordance with the requirements of the Clean Air Act, as amended in
1990 (the Act or CAA), the Monterey Bay Area may be exempted from the
NOX reduction requirements where the Administrator determines that
the net air quality benefits are greater in the absence of NOX
reductions from the sources concerned or that additional NOX
reductions would not contribute to attainment of the national ambient
air quality standard (NAAQS) for ozone in areas outside the ozone
transport region (OTR). The MBUAPCD is using three years of ambient
monitoring data to demonstrate that additional NOX reductions in
the Monterey Bay Area would not contribute to attainment of the ozone
NAAQS. The EPA is proposing to exempt the Monterey Bay Area from the
requirement to implement NOX RACT and the applicable NOX
general and transportation conformity requirements. The EPA is
proposing approval of this action under provisions of the CAA regarding
plan requirements for nonattainment areas.
DATES: Comments on this proposed action must be received in writing on
or before January 19, 1995.
ADDRESSES: Comments may be mailed to: Daniel A. Meer, Chief, Stationary
Source Rulemaking (A-5-3), Air & Toxics Division, U.S. Environmental
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA
94105.
Copies of the exemption petition are available for public
inspection at EPA's Region IX office during normal business hours.
Copies of the submitted petition may be obtained from the following
locations:
Rulemaking Section (A-5-3), Air and Toxics Division, U.S. Environmental
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA
94105.
Monterey Bay Unified Air Pollution Control District, Rule Development
Section, 24580 Silver Cloud Court, Monterey, CA 93940.
FOR FURTHER INFORMATION CONTACT: Wendy Colombo, Rulemaking Section (A-
5-3), Air and Toxics Division, U.S. Environmental Protection Agency,
Region IX, 75 Hawthorne Street, San Francisco, CA 94105 Telephone:
(415) 744-1202.
SUPPLEMENTARY INFORMATION:
Applicability
The MBUAPCD submitted the NOX exemption petition to EPA on
April 26, 1994. Final approval of the petition exempts the Monterey Bay
Area from implementing the NOX RACT and the NOX general and
transportation conformity requirements of the CAA.
Background
On November 15, 1990, the Clean Air Act Amendments of 1990 were
enacted. Public Law 101-549, 104 Stat. 2399, codified at 42 U.S.C.
7401-7671q. The air quality planning requirements for the reduction of
NOX emissions are set out in section 182(f) of the CAA. On
November 25, 1992, EPA published a NPRM (57 FR 55620) entitled, ``State
Implementation Plans; Nitrogen Oxides Supplement to the General
Preamble; Clean Air Act Amendments of 1990 Implementation of Title I;
Proposed Rule,'' (the NOX Supplement) which describes the
requirements of section 182(f). The November 25, 1992, notice should be
referred to for further information on the NOX requirements and is
incorporated into this document by reference.
Section 182(f) of the Act requires States to apply the same
requirements to major stationary sources of NOX (``major'' as
defined in section 302 and section 182 (c), (d), and (e)) as are
applied to major stationary sources of volatile organic compounds
(VOCs). These requirements are RACT and New Source Review (NSR) for
major stationary sources in certain ozone nonattainment areas.
The RACT requirements for major stationary sources of VOCs are
contained in section 182(b)(2), while the NSR requirements are
contained in section 182(a)(2)(C) and other provisions of section 182.
Section 182(b)(2) requires submittal of RACT rules for major stationary
sources of VOC emissions (not covered by a pre-enactment control
technologies guidelines (CTG) document or a post-enactment CTG
document). There were no NOX CTGs issued before enactment, and EPA
has not issued a CTG document for any NOX sources since enactment
of the CAA. Section 182(a)(2)(C) requires submittal of NSR rules
incorporating the new preconstruction permitting requirements for new
or modified sources. The RACT and NSR rules were required to be
submitted by November 15, 1992.
The Monterey Bay Area is classified as a moderate1
nonattainment area for ozone; therefore this area is subject to the
RACT and NSR requirements cited above and the November 15, 1992
deadline. On April 21, 1993 the State of California was issued a
finding of nonsubmittal for MBUAPCD for the section 182(f) NOX
RACT requirements.
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\1\ The Monterey Bay Area was redesignated nonattainment and was
classified by operation of law pursuant to sections 107(d) and
181(a) upon the date of enactment of the CAA. See 55 FR 56694
(November 6, 1991).
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The MBUAPCD identified two categories for which major stationary
sources of NOX exist and rules are required. These categories
apply to NOX emissions from utility power boilers and minerals
processing kilns. The MBUAPCD submitted Rule 431, Emissions from
Utility Power Boilers on November 18, 1993, and Rule 435, Control of
Nitrogen Oxides from Kilns on September 28, 1994. The rules were found
complete by EPA on December 27, 1993 and October 21, 1994,
respectively, and EPA stopped the 18-month sanctions clock for the
NOX RACT requirements on October 21, 1994.
On April 26, 1994, the MBUAPCD submitted a petition to the EPA
requesting that the Monterey Bay Area be exempted from the requirement
to implement the NOX RACT measures pursuant to section 182(f) of
the CAA. On July 21, 1994, the Association of Monterey Bay Area
Governments requested that EPA also grant an exemption from the
NOX conformity requirements, also pursuant to section 182(f) of
the CAA. The exemption request is based on three years of clean
monitoring data from 1991 through 1993.
Criteria for Evaluation of Section 182(f) Exemption Requests
The NOX RACT petition was submitted in accordance with the EPA
guidance document entitled, Guideline for Determining the Applicability
of Nitrogen Oxides Requirements Under Section 182(f) issued on December
16, 1993 (exemption guidance). In addition to the exemption guidance,
EPA's NOX exemption policy is contained in two memoranda2
providing that under section 182(f)(1)(A), an exemption from the
NOX requirements may be granted for nonattainment areas outside
the OTR if EPA determines that additional reductions of NOX would
not contribute to attainment of the NAAQS for those areas. In cases
where a nonattainment area is demonstrating attainment with three
consecutive years of air quality monitoring data, without having
implemented the section 182(f) NOX provisions, it is clear that
the contribute to attainment test is met, although additional
reductions of NOX might contribute to maintenance.
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\2\Michael H. Shapiro, Acting Assistant Administrator for Air
and Radiation, dated September 17, 1993, entitled ``State
Implementation Plan (SIP) 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'', and a subsequent revision to this memorandum
from John S. Seitz, Director of EPA's Office of Air Quality Planning
and Standards, issued on May 27, 1994, entitled, ``Section 182(f)
Nitrogen Oxides (NOX) Exemptions--Revised Process and
Criteria''.
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Thus, a State may submit a petition for a section 182(f) exemption
based on air quality monitoring data. The EPA's approval of the
exemption, if warranted, would be 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).
EPA's exemption guidance provides that, pursuant to the
requirements of section 110(a)(2), States should consider evidence,
such as photochemical grid modeling, which shows that granting the
NOX exemption would interfere with attainment or maintenance in
downwind areas. The MBUAPCD has not yet implemented NOX RACT, and
at the time of this notice, EPA has not received evidence from the
State or any downwind areas that shows that granting the NOX
exemption for the Monterey Bay Area would interfere with attainment or
maintenance in downwind areas.
EPA's conformity rules3,4 also reference the section 182(f)
exemption process as a means for exempting affected areas from NOX
conformity requirements.5 Therefore, ozone nonattainment areas
that are granted areawide section 182(f) exemptions will also be exempt
from the NOX conformity requirements.
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\3\''Criteria and Procedures for Determining Conformity to State
or Federal Implementation Plans or 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).
\4\''Determining Conformity of General Federal Actions to State
or Federal Implementation Plans; Final Rule'', November 30, 1993 (58
FR 63214).
\5\The section 182(f) exemption is explicitly referred to and is
described in similar language in 40 CFR 51.394(b)(3)(i), the
``Applicability'' section of the transportation conformity rule, and
in the preamble (see 58 FR 62197, November 24, 1993). The language
is repeated in the provisions of the rule regarding the motor
vehicle emissions budget test [section 51.428(a)(1)(ii)] and the
``build/no-build'' test [sections 51.436(e), 51.438(e)], although
section 182(f) of the Act is not specifically mentioned. In the
general conformity rule, the section 182(f) NOX exemption is
referred to in section 51.852 (definition of ``Precursors of a
criteria pollutant'') and is discussed in the preamble (see 58 FR
63240, November 30, 1993).
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EPA Evaluation
Attainment of the ozone NAAQS is determined based on the expected
number of exceedances in a calendar year. Ozone attainment must rely on
three complete, consecutive calendar years of quality-assured air
quality monitoring data, collected in accordance with 40 CFR parts 50
and 58, including Appendices. The method for determining attainment of
the ozone NAAQS is contained in 40 CFR part 50, Sec. 50.9 and appendix
H to that Section.6 appendix H of 40 CFR part 50 explains how to
determine when the expected number of days per calendar year with
maximum hourly average concentrations above 0.12 ppm ozone is equal to
or less than 1. This section also discusses how to account for
incomplete data sets. The EPA ``Guideline for the Interpretation of
Ozone Air Quality Standards'' elaborates on Appendix H. In general,
expected exceedances are calculated by averaging actual exceedances at
each monitoring site over a three year period. An area is in attainment
of the standard if this average results in expected exceedances for
each monitoring site of 1.0 or less per calendar year.
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\6\See EPA Guidance ``Procedures for Processing Requests to
Redesignate Areas to Attainment,'' John Calcagni, Director, Air
Quality Management Division, September 4, 1992, p. 2.
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At the monitoring sites used to evaluate the attainment status of
Monterey County, there has been only one exceedance of the ozone NAAQS.
This exceedance was monitored in 1991 at the Pinnacles site. There have
been no violations of the ozone NAAQS during the 1991-1993 period.
Based on ambient air monitoring data for the years 1991-1993 (including
data from the Pinnacles site which helped form the basis for the
Monterey County nonattainment designation of 1990), it is clear that
additional reductions of NOX would not contribute to attainment of
the ozone standard. For further information regarding the monitoring
sites data, please see attachments 1 and 2 to the Technical Support
Document, dated October 1994.
The EPA is proposing to approve the Monterey Bay Area section
182(f) NOX RACT exemption request based upon the evidence provided
by the MBUAPCD and the MBUAPCD's compliance with the requirements
outlined in the EPA guidance. Continuation of the section 182(f)
exemption, once granted, is contingent upon the continued monitoring
and continued attainment and maintenance of the ozone NAAQS in the
affected area in accordance with 40 CFR part 58. If a violation of the
ozone NAAQS is monitored in the Monterey Bay Area (consistent with the
requirements contained in 40 CFR part 58 and recorded in AIRS), EPA
will provide notice in the Federal Register. A determination that the
NOX exemption no longer applies would mean that the NOX
general and transportation conformity provisions would again be
applicable (see 58 FR 63214; 58 FR 62188; 59 FR 31238) to the affected
area. The NOX RACT requirements would also re-apply, although some
reasonable time period after the EPA determination may be provided for
sources to meet the RACT limits. EPA expects this time period to be as
expeditious as practicable, taking into account any current and
applicable State or Federal regulations. If a nonattainment area is
redesignated to attainment of the ozone NAAQS, NOX RACT is to be
implemented as provided for in the EPA-approved maintenance plan.
This action proposes to exempt the Monterey Bay ozone nonattainment
area from implementing the NOX RACT and the applicable general and
transportation conformity requirements for NOX. The final action
on this proposal serves as a final determination that the finding of
nonsubmittal for the NOX RACT requirements has been corrected, and
that on the effective date of the final action on this proposal, the
24-month Federal Implementation Plan (FIP) clock is stopped. The 18-
month sanctions clock was stopped on October 21, 1994 when EPA made a
completeness determination for the second of two rules submitted to
meet the NOX RACT requirements. Upon EPA's final approval of the
NOX exemption, MBUAPCD will recind the two NOX RACT rules
previously submitted to meet the CAA requirements.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future implementation
plan. Each request for a section 182(f) exemption shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
Regulatory Process
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises and
government entities with jurisdiction over population of less than
50,000.
This exemption action does not create any new requirements, but
allows suspension of the indicated requirements for the life of the
exemption. Therefore, because the proposed approval does not impose any
new requirements, I certify that it does not have a significant impact
on any small entities affected. Moreover, due to the nature of the
Federal-state relationship under the CAA, preparation of a regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of state action. The CAA forbids EPA to base its actions
concerning SIPs 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).
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 January 19, 1995. Filing a petition for
reconsideration by the Administrator of this 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 a rule. This
action may not be challenged in later proceedings to enforce its
requirements. Section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Nitrogen oxides, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: December 9, 1994.
Felicia Marcus,
Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
proposed to be 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 F--California
2. Subpart F is proposed to be amended by adding new Sec. 52.235 to
read as follows:
Sec. 52.235 Control strategy for ozone: Oxides of nitrogen.
EPA is approving a Section 182(f) exemption request submitted by
the Monterey Bay Unified Air Pollution Control District on April 21,
1994. The approval exempts the Monterey Bay ozone nonattainment area
from the oxides of nitrogen (NOX) control requirements contained
in Section 182(f) of the Clean Air Act. This approval exempts the area
from implementing reasonably available control technology (RACT) for
major stationary sources of NOX and the NOX related
requirements of general and transportation conformity regulations. If a
violation of the ozone NAAQS occurs in the Monterey Bay area, the
exemption shall no longer apply.
[FR Doc. 94-31230 Filed 12-19-94; 8:45 am]
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