[Federal Register Volume 61, Number 39 (Tuesday, February 27, 1996)]
[Rules and Regulations]
[Pages 7218-7221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4289]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[LA-32-7238; FRL-5430-1]
Approval of and Promulgation of Implementation Plans; Louisiana
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving
Louisiana's request to grant an exemption for the Baton Rouge ozone
nonattainment area from the applicable nitrogen oxides (NOX)
transportation conformity requirements. On July 25, 1995, Louisiana
submitted to the EPA a State Implementation Plan (SIP) revision request
for an exemption (under section 182(b)(1) of the Clean Air Act (Act))
from the transportation conformity requirements for NOX for the
Baton Rouge ozone nonattainment area, which is classified as serious.
The State of Louisiana bases its request for Baton Rouge upon a
modeling demonstration that additional NOX reductions would not
contribute to attainment in the nonattainment area.
EFFECTIVE DATE: This final rule will be effective on February 12, 1996.
ADDRESSES: Copies of the SIP revision, public comments and the EPA's
responses are available for inspection at the following address:
U.S. 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, U.S. Environmental Protection Agency, Region 6, Air Planning
Section (6PD-L), Multimedia Planning and Permitting Division, 1445 Ross
Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7214.
SUPPLEMENTARY INFORMATION:
I. Background
Clean Air Act section 176(c)(3)(A)(iii) requires, in order to
demonstrate conformity with the applicable SIP, that transportation
plans and transportation improvement programs (TIPs) contribute to
emissions reductions in ozone nonattainment areas during the period
before control strategy SIPs are approved by the EPA. This requirement
is implemented in 40 CFR 51.436 through 51.440 (and 93.122 through
93.124), which establishes the so-called ``build/no-build test.'' This
test requires a demonstration that the ``Action'' scenario
(representing the implementation of the proposed transportation plan/
TIP) will result in lower motor vehicle emissions than the ``Baseline''
scenario (representing the implementation of the current transportation
plan/TIP). In addition, the ``Action'' scenario must result in
emissions lower than 1990 levels.
The November 24, 1993, final transportation conformity rule 1
does not require the ``build/no-build test'' and ``less-than-1990
test'' for NOX as an ozone precursor in ozone nonattainment areas
where the Administrator determines that additional reductions of
NOX would not contribute to attainment of the National Ambient Air
Quality Standard (NAAQS) for ozone. Clean Air Act section
176(c)(3)(A)(iii), which is the conformity provision requiring
contributions to emission reductions before SIPs with emissions budgets
can be approved, specifically references Clean Air Act section
182(b)(1). That section requires submission of State plans that, among
other things, provide for specific annual reductions of volatile
organic compounds (VOC) and NOX emissions ``as necessary'' to
attain the ozone standard by the applicable
[[Page 7219]]
attainment date. Section 182(b)(1) further states that its requirements
do not apply in the case of NOX for those ozone nonattainment
areas for which the EPA determines that additional reductions of
NOX would not contribute to ozone attainment.
\1\ ``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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As explained below, the EPA, through an amendment to its
transportation conformity rule, has changed the procedural mechanism
through which a NOX exemption from transportation conformity would
be granted. Instead of a petition under section 182(f), transportation
conformity NOX exemptions for ozone nonattainment areas that are
subject to section 182(b)(1) need to be submitted as SIP revision
requests. The Baton Rouge ozone nonattainment area is classified as
serious and, thus, is subject to section 182(b)(1).
The EPA published, on August 29, 1995, an interim final rule (60 FR
44762) which amended the transportation conformity rule and changed the
statutory authority from section 182(f) to section 182(b)(1) of the Act
for areas that are subject to section 182(b)(1). The interim final rule
was effective immediately upon publication and provides the means for
exempting areas subject to section 182(b)(1) from the NOX
provisions of the transportation conformity rule. In conjunction with
the interim rule, the EPA published a proposal providing for further
amendments to the transportation conformity rule and describing how the
EPA intended to process section 182(b)(1) NOX waivers (60 FR
44790). On November 14, 1995, the EPA published a final rule (60 FR
57179), after completing notice-and-comment rulemaking, that includes
the provisions of the August 29, 1995, interim rule. The November 14,
1995, rule also addresses the NOX budget requirement.
The July 25, 1995, SIP revision request from Louisiana has been
submitted to meet the requirements of section 182(b)(1). A public
hearing on this SIP revision request was held on June 29, 1995. The EPA
proposed to approve the SIP revision request on October 6, 1995 (60 FR
52348).
The Baton Rouge serious ozone nonattainment area includes the
following parishes: East Baton Rouge, West Baton Rouge, Pointe Coupee,
Livingston, Iberville, and Ascension. In evaluating the SIP revision
request, the EPA considered whether additional NOX reductions
would contribute to attainment of the ozone standard in the Baton Rouge
modeling domain, which includes all or part of 20 parishes in Louisiana
and covers both attainment as well as nonattainment parishes.
As outlined in the relevant EPA guidance, the use of photochemical
grid modeling is the recommended approach for testing the contribution
of NOX emission reductions to attainment of the ozone standard.
A summary of the urban airshed modeling (UAM) demonstration and the
EPA's review of the modeling and submittal are contained in the October
6, 1995, proposed rule (60 FR 52348) and the accompanying Technical
Support Document. The modeling results show, on a directional basis,
that application of NOX controls in the Baton Rouge ozone
nonattainment area would exacerbate peak ozone concentrations in the
modeling domain.
II. Public Comments
In August 1994, three environmental groups (Natural Resources
Defense Council (NRDC), Sierra Club, and Environmental Defense Fund
(NRDC et al.)) 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 NOX
exemptions. The EPA responded to these comments in a final rulemaking
approving a section 182(f) NOX exemption for the Baton Rouge area.
See 61 FR 2438, dated January 26, 1996. The technical basis (i.e., UAM
demonstration) for the Baton Rouge section 182(b)(1) transportation
conformity NOX exemption is the same as for the section 182(f)
exemption. (Please refer to the January 26, 1996, section 182(f) final
approval (61 FR 2438) for Baton Rouge for a summary of the NRDC's
comments and the EPA's responses.)
In addition, shortly after the close of the 30-day public comment
period, the New York State Department of Environmental Conservation
(NYSDEC) submitted a letter to the EPA expressing opposition to the
proposed Baton Rouge transportation conformity NOX exemption. For
the public record, the EPA has elected to respond to those comments in
this rulemaking. The following discussion summarizes the NYSDEC
comments and provides the EPA's responses to the comments.
Comment: The NYSDEC expressed concern regarding the claim that VOC
only controls reduce ozone levels and geographic extent of ozone
exposure since modeling in the northeast shows a need for NOX
reductions as well as VOC to reduce regional ozone. The NYSDEC also
questioned certain model assumptions; namely, whether the Federal motor
vehicle control program (FMVCP) is assumed in future year (1996 and
1999) emission inventories, and the adequacy of modeling across-the-
board reductions for a specific source category exemption.
Response: In the modeling demonstration, the State included in the
attainment year (1999) projected emissions inventory the emission
reductions expected to result from the Federal Motor Vehicle Emission
Control Program. Although the state did not model the mobile emission
reductions that would result from transportation conformity, per se,
the across-the-board reductions modeled (i.e., a 100 percent reduction
in both point source VOC and NOX emissions combined) far exceed
the reductions that would be expected to result from transportation
conformity alone. (In the Baton Rouge modeling domain, point source VOC
emissions alone comprise 46 percent of the total projected
anthropogenic VOC inventory, and point source NOX emissions alone
comprise 57 percent of the total projected NOX inventory.)
The EPA believes that the State has satisfied the requirements of
Chapter 4 of the December 13, 1993, guidance document, ``Guideline for
Determining the Applicability of Nitrogen Oxides Requirements Under
Section 182(f),'' by simulating conditions resulting from three
emission reduction scenarios (i.e., substantial VOC reductions,
substantial NOX reductions, and substantial VOC/NOX
reductions combined). Consistent with the guidance, the State has
demonstrated that, on a directional basis, the areawide predicted
maximum 1-hour ozone concentration for each day modeled under the
substantial VOC reductions alone strategy is less than or equal to that
from substantial NOX reductions alone or VOC and NOX
reductions combined.
Comment: The NYSDEC stated that there have been voluntary early
NOX reductions from point sources between 1990 and 1994, which
seems to imply that improvements in air quality would be affected by
these voluntary NOX reductions as well.
Response: As part of the modeling demonstration, the State included
the early NOX reductions from point sources that had occurred
between 1990 and 1994. Since doing so did not alter the conclusion, the
EPA believes the State has adequately demonstrated that any additional
NOX reductions would not contribute to attainment of the ozone
standard and, therefore, has met the Act's requirements for receiving a
NOX waiver.
[[Page 7220]]
Comment: The NYSDEC stated that area source NOX inventories
modeled appeared low by two orders of magnitude, i.e., 0.2 percent
versus 20 percent.
Response: The projected area source NOX inventory modeled (1.0
tons/day) is correct. Area source NOX emissions comprise only 0.2
percent of the total projected NOX inventory (479.0 tons/day).
Point, on-road mobile, and non-road mobile source NOX emissions
comprise 67.7 percent, 15.4 percent, and 16.7 percent of the total
projected NOX emissions inventory, respectively.
Comment: The NYSDEC urged the EPA to undertake a review of the
regional consistency between Baton Rouge and other southeast areas, and
that action on the exemption petition be delayed until this review is
complete.
Response: The EPA has taken steps to assure that downwind areas
will not be negatively impacted by NOX exemptions. 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) or section 182(b)(1). That is, EPA action
to grant or deny a NOX exemption request under section 182(f) or
182(b)(1) for any area would not shield that area from EPA action to
require NOX emission reductions, if necessary, under section
110(a)(2)(D).
The State of Louisiana is included in the superregional
photochemical modeling of the eastern United States (U.S.) currently
being conducted by the EPA, States, and other agencies as part of the
Ozone Transport Assessment Group (OTAG). 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 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 U.S. Upon
completion of the modeling, the EPA will evaluate the modeling results
and their implications concerning NOX versus VOC emission
controls. The results of this modeling may supersede the 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 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: The NYSDEC disagrees that the NOX waiver rule should
be a Table 3 action for signature by the Regional Administrator and,
because of the national implications of the NOX exemption,
believes it should be a Table 1 action.
Response: The NOX waiver for transportation conformity is a
SIP revision request submitted by the State of Louisiana. SIP revisions
have been delegated to the Regional Administrator for signature under
the procedures published in the Federal Register on January 19, 1989
(54 FR 2214-2225), as revised by a July 10, 1995, memorandum from Mary
Nichols, Assistant Administrator for Air and Radiation. This NOX
waiver is applicable only for the purpose of relieving the need to meet
the interim transportation conformity test for the Baton Rouge area. In
addition, the policy related to processing the NOX waivers for
transportation conformity has been coordinated at the national level.
III. Effective Date
This rulemaking is effective as of February 12, 1996. The
Administrative Procedure Act, 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(b)(1) transportation conformity NOX 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 transportation conformity NOX
exemption approval may be made effective upon signature by the Regional
Administrator.
IV. Final Action
The comments received were found to warrant no significant changes
from the 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 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 transportation conformity NOX waiver. Approval of
the exemption waives the Federal requirements for transportation
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 reducing the coverage of
the waiver.) Should the EPA rescind the exemption, the State would be
required to begin implementing the transportation conformity NOX
requirements.
V. Miscellaneous
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from Executive Order 12866 review.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The EPA shall consider each request for revision to the SIP in
light of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
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 economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
This 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 Act, preparation of the regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of the State action. The
[[Page 7221]]
Act forbids the EPA to base its actions concerning SIPs on such
grounds. (Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (1976; 42
U.S.C. 7410(a)(2)).
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.
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 April 29, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the 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, Conformity, Oxides
of nitrogen, Ozone, Transportation conformity.
Dated: February 12, 1996.
Jane N. Saginaw,
Regional 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
3. Section 52.992 is amended by adding paragraph (c) to read as
follows:
Sec. 52.992 Areawide nitrogen oxides (NOX) exemptions.
* * * * *
(c) The LDEQ submitted to the EPA on July 25, 1995, a revision to
the SIP, pursuant to section 182(b)(1), requesting that the Baton Rouge
serious ozone nonattainment area be exempted from the transportation
conformity NOX requirements of the CAA. 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 additional reductions in NOX would not contribute to
attainment in the nonattainment area. On February 12, 1996, the EPA
approved the State's request for an areawide exemption from the
transportation conformity NOX requirements.
[FR Doc. 96-4289 Filed 2-26-96; 8:45 am]
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