[Federal Register Volume 60, Number 75 (Wednesday, April 19, 1995)]
[Rules and Regulations]
[Pages 19515-19522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9567]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX-49-1-6831; FRL-5193-8]
Approval and Promulgation of Temporary Section 182(f) Exemption
to the Nitrogen Oxides (NOX) Control Requirements for the Houston
and Beaumont Ozone Nonattainment Areas; Texas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this action, the EPA is approving a petition from the State
of Texas requesting that the Houston and Beaumont ozone nonattainment
areas be temporarily exempted from NOX control requirements of
section 182(f) of the Clean Air Act (CAA) as amended in 1990. The State
of Texas bases its request upon preliminary photochemical grid modeling
which shows that reductions in NOX would be detrimental to
attaining the National Ambient Air Quality Standards (NAAQS) for ozone
in these areas. This temporary exemption is being requested under
section 182(f) of the CAA.
EFFECTIVE DATE: This action is effective as of April 12, 1995.
ADDRESSES: Copies of the documents relevant to these actions are
available for public inspection during normal business hours at the
following locations. The interested persons wanting to examine these
documents should make an appointment with the appropriate office at
least 24 hours before the visiting day.
U.S. Environmental Protection Agency, Region 6, Air Programs Branch
(6T-A), 1445 Ross Avenue, Dallas, Texas 75202-2733
The Air and Radiation Docket and Information Center, U.S. Environmental
Protection Agency, 401 M Street, SW., Washington, DC 20460
Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin,
Texas 78711-3087
FOR FURTHER INFORMATION CONTACT: Ms. Leila Yim Surratt or Mr. Quang
Nguyen, Planning Section (6T-AP), Air Programs Branch, EPA Region 6,
1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7214.
SUPPLEMENTARY INFORMATION:
I. Background
On August 17, 1994, the Texas Natural Resource Conservation
Commission (TNRCC) submitted to the EPA a petition pursuant to section
182(f) of the CAA which requests that the Houston and Beaumont ozone
nonattainment areas be temporarily exempted by the EPA from the
NOX control requirements of section 182(f). The Houston
nonattainment area includes the cities of Houston and Galveston, and
consists of the following eight counties: Brazoria, Chambers, Fort
Bend, Galveston, Harris, Liberty, Montgomery, and Waller. The Beaumont
nonattainment area includes the cities of Beaumont and Port Arthur, and
consists of the following three counties: Hardin, Jefferson, and
Orange. The State bases its petition on an Urban Airshed Modeling (UAM)
demonstration showing that NOX reductions would not contribute to
attainment in either area because the decrease in ozone concentrations
resulting from volatile organic compound (VOC) reductions alone is
equal to or greater than the decrease obtained from NOX reductions
or a combination of VOC and NOX reductions.
As described in the State's petition, the TNRCC plans to complete
additional UAM modeling between November 1995 and May 1996 using the
results of an intensive 1993 field study, the Coastal Oxidant
Assessment for Southeast Texas (COAST). The data collected through the
COAST study consist of hourly point source emissions, gridded typical
summer day on-road mobile source emissions, hourly air quality data,
and detailed meteorological data for specific ozone exceedance episodes
in the Houston-Beaumont domain. Because it is the most comprehensive
data set available, it should result in greater accuracy in the
modeling and therefore in the [[Page 19516]] attainment control
strategy. Since the modeling is expected to be completed by May 1996,
the TNRCC is requesting only a temporary NOX exemption until May
31, 1997.
The TNRCC had previously adopted and submitted to the EPA complete
NOX Reasonably Available Control Technology (RACT) rules for the
Houston and Beaumont areas. The TNRCC has also adopted and submitted to
the EPA New Source Review (NSR), conformity, and vehicle inspection and
maintenance (I/M) rules, each of which contain NOX provisions. The
EPA's approval of the temporary NOX exemption petition affects the
federal applicability and enforcement of the State's NOX RACT rule
and the NOX provisions contained in the State's NSR, conformity,
and I/M rules.
On December 15, 1994, the EPA proposed to approve the section
182(f) petition for a temporary NOX exemption for the Houston and
Beaumont areas (see 59 FR 64640). The proposed rulemaking notice, the
EPA's Technical Support Document (November 1994) on the proposed
action, and supplemental information are contained in the docket and
provide a detailed discussion of the TNRCC's submittal, applicable
guidance and the EPA's rationale for proposing approval of the State's
petition. Rather than repeating that entire discussion in this
document, that discussion is incorporated by reference herein. Thus,
the public should review the notice of proposed rulemaking for relevant
background on this final rulemaking action.
II. Response to Comments
The EPA requested public comments on all aspects of the proposed
action to approve the section 182(f) petition for a temporary NOX
exemption for the Houston and Beaumont ozone nonattainment areas. The
EPA received 51 letters of support from individuals, industry, local
judges, the State transportation authority, State and Federal
legislators, and local governments.
Six adverse comment letters were received from individuals,
environmental groups, and an association of companies which supply
stationary source air pollution control systems, equipment, and
services. One of the letters was submitted by three environmental
groups and contained generic comments objecting to the EPA's general
policy on section 182(f) exemptions. The three environmental groups who
submitted the generic letter requested that it be included in each EPA
rulemaking action for each section 182(f) petition.
Comment: Two letters of support asked for clarification concerning
when the NOX requirements would take effect if the COAST modeling
results indicate that some or all of the applicable NOX control
requirements would contribute to attainment of the ozone NAAQS.
Response: In the FR notice proposing to approve the temporary
NOX exemption for Houston and Beaumont (see 59 FR 64640, December
15, 1994), the EPA also proposed that upon the expiration of the
temporary exemption on December 31, 1996, if the State had not received
a permanent NOX exemption from the EPA prior to that time, the
NOX RACT, NSR, conformity and I/M requirements would again become
applicable except that the NOX RACT compliance date shall be as
expeditious as practicable but no later than May 31, 1997. The EPA
continues to believe that the above stated requirement is appropriate.
Therefore, through this rulemaking on the temporary NOX exemption
for the Houston and Beaumont areas, the following requirements would
become applicable on January 1, 1997, if the Houston and Beaumont areas
had not received a permanent NOX exemption prior to that time: (1)
The State must have adopted and submitted to the EPA RACT, NSR,
conformity, and I/M regulations to control NOX emissions (note
that these provisions have already been met by the TNRCC), (2) the
State's NOX RACT regulation must require subject sources to comply
with the NOX control requirements as expeditiously as practicable
but no later than May 31, 1997, (3) any NSR permits that had not been
deemed complete prior to January 1, 1997, must comply with the NOX
NSR requirements, consistent with the policy set forth in the EPA's NSR
Supplemental Guidance memo dated September 3, 1992, from John S. Seitz,
Director, EPA's Office of Air Quality Planning and Standards, (4) any
conformity determination (for either a new or revised transportation
plan and transportation improvement program (TIP)) made on or after
January 1, 1997, must comply with the NOX conformity requirements,
and (5) any I/M vehicle inspection made on or after January 1, 1997,
must comply with the I/M NOX requirements.
Comment: One commenter stated that the temporary NOX waiver
would expire on May 15, 1997, and asked for clarification on whether
TIPs being developed this year would be exempted from the NOX
conformity requirements.
Response: The EPA would like to clarify that the NOX waiver
does not expire on May 15, 1997, as stated by the commenter, but rather
will expire on December 31, 1996, as discussed in the EPA's proposed
approval of the State's petition (see 59 FR 64643). Because the State's
petition clearly indicates that the attainment modeling should be
completed between November 1995 and May 1996 (which will determine
whether a VOC, NOX, or combination thereof, strategy is most
beneficial for attainment), the EPA believes that the petition supports
granting the State's request for a temporary exemption only until the
end of 1996. Any conformity determination (for either a new or revised
transportation plan and TIP) made after the effective date of the EPA's
approval of this 182(f) petition for Houston and Beaumont, and before
the expiration of the waiver on December 31, 1996, would be exempted
from the NOX conformity requirements. Any conformity determination
(for either a new or revised transportation plan and TIP) made on or
after January 1, 1997, must comply with the NOX conformity
requirements, unless the State had received a permanent section 182(f)
NOX exemption prior to that time.
Comment: Several adverse comments stated that an area must submit a
complete, approvable attainment State Implementation Plan (SIP) before
a NOX waiver could be granted. Certain comments continued by
stating that NOX exemptions are provided for in two separate parts
of the CAA, section 182(b)(1) and section 182(f). Because the NOX
exemption tests in subsections 182(b)(1) and 182(f)(1) include language
indicating that action on such requests should take place ``when [EPA]
approves a plan or plan revision,'' these commenters conclude that all
NOX exemption determinations by the EPA, including exemption
actions taken under the petition process established by subsection
182(f)(3), must occur during consideration of an approvable attainment
or maintenance plan, unless the area has been redesignated as
attainment. These commenters also argue that even if the petition
procedures of subsection 182(f)(3) may be used to relieve areas of
certain NOX requirements, exemptions from the NOX conformity
requirements must follow the process provided in subsection 182(b)(1),
since this is the only provision explicitly referenced by section
176(c), the CAA's conformity provisions.
Response: The TNRCC petitioned the EPA for an exemption under
section 182(f), as evidenced by the letter from John Hall, Chairman of
the TNRCC, transmitting the petition to the EPA (dated August 17, 1994)
which states, ``The TNRCC is submitting for your review, pursuant to
Section 182(f) of the [[Page 19517]] CAA, a petition requesting a
temporary exemption from NOX RACT * * *'' In addition, on page 3
of the petition, the State also referenced subsection 182(f)(3)
concerning the procedure for petitioning the Administrator.
Section 182(f) contains very few details regarding the
administrative procedure 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 exemption requests under section 182(f), and instead
believes that subsections 182(f)(1) and 182(f)(3) provide independent
procedures by which the EPA may act on NOX exemption requests. The
language in subsection 182(f)(1), which indicates that the EPA should
act on NOX exemptions in conjunction with action on a plan or plan
revision, does not appear in subsection 182(f)(3). And, while
subsection 182(f)(3) references subsection 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 SIPs. Additionally,
paragraph (3) provides that ``person[s]'' (which section 302(e) of the
CAA defines to include States) 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 NSR and RACT 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 need to submit their exemption request for EPA
review and rulemaking action several months before November 15, 1992.
In contrast, the CAA specifies that the attainment demonstrations are
not due until November 1993 or 1994 (and the EPA may take 12-18 months
to approve or disapprove the demonstration). For marginal ozone
nonattainment areas (subject to NOX NSR), no attainment
demonstration is called for in the CAA. For maintenance plans, the CAA
does not specify a deadline for submittal of maintenance
demonstrations. Clearly, the CAA envisions the submittal of an EPA
action on exemption requests, in some cases, prior to submittal of
attainment or maintenance demonstrations.
The CAA requires conformity with regard to federally-supported
NOX generating activities in relevant nonattainment and
maintenance areas. However, the EPA's conformity rules explicitly
provide that these NOX requirements would not apply if the EPA
grants an exemption under section 182(f). In response to the comment
that section 182(b)(1) should be the appropriate vehicle for dealing
with exemptions from the NOX requirements of the conformity rule,
the EPA notes that this issue has previously been raised in a formal
petition for reconsideration of the EPA's final transportation
conformity rule and in litigation pending before the U.S. Court of
Appeals for the District of Columbia Circuit on the substance of both
the transportation and general conformity rules. The issue, thus, is
under consideration within the EPA, but at this time remains
unresolved. Additionally, subsection 182(f)(3) requires that NOX
exemption petition determinations be made by the EPA within six months.
The EPA has stated in previous guidance that it intends to meet this
statutory deadline as long as doing so is consistent with the
Administrative Procedure Act. The EPA, therefore, believes that until a
resolution of this issue is achieved, the applicable rules governing
this issue are those that appear in the EPA's final conformity
regulations, and the EPA remains bound by their existing terms.
Comment: Several commenters felt that the UAM computer model is not
sufficiently accurate to allow good predictions of air quality. Some
stated that the modeling performed by the TNRCC was inconclusive. One
commenter argued that focusing on severe rather than more typical ozone
episodes may significantly distort the findings. Another commenter
stated that TNRCC only modeled three episodes, each with varying
performance. Finally, several commenters felt that the emissions
inventories were significantly inaccurate so as to discredit the
modeling results.
Response: The EPA disagrees with the comment that the UAM
demonstration conducted by the TNRCC was insufficient to allow good
predictions of air quality. Due to the large number of factors that
influence ozone formation, the EPA agrees that the UAM model cannot
precisely predict the exact relationship between VOC, NOX, and
ozone. However, Congress clearly intended that photochemical grid
modeling be used for air quality planning purposes. As noted in the
EPA's December 1993 guidance, UAM results are acceptable for the
purpose of the section 182(f) demonstrations and application of UAM
should be consistent with techniques specified in the EPA's ``Guideline
on Air Quality Models (Revised).''
The EPA disagrees with the comment that the episodes analyzed by
the TNRCC may have distorted the findings. The TNRCC followed the EPA's
``Guideline for Regulatory Application of the Urban Airshed Model'' in
selecting the episodes that were used in the 182(f) demonstration. In
accordance with the EPA guidance, the State selected episodes that were
likely to cover different sets of meteorological conditions
corresponding with high ozone concentrations, not necessarily the most
severe ozone exceedance. The EPA recommends that high ozone days be
analyzed to ensure that the control strategy plan developed from the
UAM analysis will result in ozone attainment under most meteorological
conditions, not just the average meteorological condition. The selected
multi-day episodes used in the Houston and Beaumont UAM analyses are
representative of the primary meteorological conditions typically found
on high ozone days.
The EPA's UAM guidance recommends that a minimum of three days from
among all meteorological regimes should be modeled (e.g., three
meteorological regimes each containing one primary episode day, or two
meteorological regimes with at least two primary days from one of those
regimes). The TNRCC's analyses are consistent with the EPA's guidance
in that the two episodes that exhibited satisfactory performance cover
more than three days of ozone exceedances and represent several of the
predominant meteorological regimes for ozone exceedances in the Gulf
Coast. (For further information, see the EPA's proposed approval notice
for the temporary NOX exemption for Houston and Beaumont (59 FR
64640), and the EPA's Technical Support Document for the proposed
action.)
The EPA disagrees with the comment that the emissions inventories
were too inaccurate to produce acceptable modeling results. In
accordance with the EPA's UAM guidance the State used the 1990
emissions inventory for Houston and Beaumont to developing its modeling
demonstration. The EPA evaluated the State's 1990 base year
[[Page 19518]] emissions inventories and a final approval was published
in the FR on November 8, 1994 (see 59 FR 55588).
Comment: Several 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 NOX control,
i.e., ``substantial'' reductions, is required to be analyzed. They
argued that larger NOX reductions are realistically available, and
that if Texas had considered large enough reductions in NOX
emissions, the modeling would have shown decreases in ozone. 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,1 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 an ozone transport region, the Regional Oxidant Model (ROM) are
acceptable models for these purposes.
\1\``Guideline for Determining the Applicability of Nitrogen
Oxide Requirements under Section 182(f),'' from John S. Seitz,
Director, Office of Air Quality Planning and Standards, to the
Regional Division Directors, December 16, 1993.
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The EPA guidance also states that application of UAM should be
consistent with techniques specified in the EPA ``Guideline on Air
Quality Models (Revised).'' 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 the first scenario,
the demonstration should use the VOC reductions needed to attain
(demonstrated by EKMA 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 the second scenario,
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 the third scenario, 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 that these analyses 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.
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.
Contrary to the statements of some of the commenters, the State
modeled substantial NOX emission reductions that are significantly
greater than the 10-15 percent reductions cited by the commenters as
projected to result from NOX RACT. In the 1999 projected domain-
wide (i.e., Houston and Beaumont) NOX emissions inventory used in
the State's section 182(f) demonstration, point source emissions
comprise 66 percent of the total NOX inventory. The State modeled
a 50 percent total reduction of NOX (which would represent a 76
percent reduction in the point source NOX inventory) along with a
50 percent reduction of VOC and 50 percent reduction of both VOC and
NOX. Clearly, the TNRCC's section 182(f) modeling demonstration
reflects substantial NOX reductions in addition to substantial VOC
reductions.
Comment: Three groups 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 Houston and Beaumont actions because neither area has based its
section 182(f) petition on ``clean'' air monitoring data.
Comment: Several commenters stated that the EPA's December 1993
guidance prohibits granting a section 182(f) waiver based on three
years of clean data if evidence exists showing that the waiver would
interfere with attainment or maintenance in downwind areas. They argued
that the condition should also apply to waiver requests based on
modeling. The commenters felt that a NOX exemption in Houston and
Beaumont would likely exacerbate ozone formation downwind in other
nonattainment areas (e.g., Dallas) or near nonattainment areas (e.g.,
Austin, San Antonio, Corpus Christi, and Longview-Tyler-Marshall).
Response: As a result of the comments, the EPA reevaluated its
position on this issue and has revised the previously issued guidance.
As described below, 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 NOX emissions would
contribute significantly to nonattainment in, or interfere with
maintenance by, any other State. This action would be independent of
any action taken by the EPA on a NOX exemption request for
stationary sources under section 182(f). That is, EPA action to grant
or deny a NOX exemption request under section 182(f) would not
shield that area from EPA action to require NOX emission
reductions, if necessary, under section 110(a)(2)(D).
Modeling analyses are underway in many areas for the purpose of
demonstrating attainment in the 1994 SIP revisions. Recent modeling
data suggest that certain ozone nonattainment areas may benefit from
reductions in NOX emissions far upwind of the nonattainment area.
For example, the northeast corridor and the Lake Michigan areas are
considering attainment strategies which rely in part on NOX
emission reductions hundreds of 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 these large scale modeling analyses are being
conducted, certain nonattainment areas in the modeling domain have
requested exemptions from NOX requirements [[Page 19519]] under
section 182(f). Some areas requesting an exemption may be upwind of and
impact upon downwind nonattainment areas. The EPA intends to address
the transport issue through section 110(a)(2)(D) based on a domain-wide
modeling analysis.
Under section 182(f) of the CAA, an exemption from the NOX
requirements may be granted for nonattainment areas outside 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.''2 As described in
section 4.3 of the December 1993 guidance document, the EPA believes
that the term ``area'' means the ``nonattainment area'' and that the
EPA's determination is limited to consideration of the effects in a
single nonattainment area due to NOX emissions reductions from
sources in the same nonattainment area.
\2\There are 3 NOX exemption tests specified in section
182(f). Of these, 2 are applicable for areas outside 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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Section 4.3 of the guidance goes on to encourage, but not require,
States/petitioners to include consideration of the entire modeling
domain, since the effects of an attainment strategy may extend beyond
the designated nonattainment area. Specifically, the guidance
encourages States to ``consider imposition of the NOX requirements
if needed to avoid adverse impacts in downwind areas, either intra- or
inter-State. States need to consider such impacts since they are
ultimately responsible for achieving attainment in all portions of
their State (see generally section 110) and for ensuring that emissions
originating in their State do not contribute significantly to
nonattainment in, or interfere with maintenance by, any other State
[see section 110(a)(2)(D)(i)(I)].''
In contrast, section 4.4 of the guidance states that the section
182(f) demonstration would not be approved if there is evidence, such
as photochemical grid modeling, showing that the NOX exemption
would interfere with attainment or maintenance in downwind areas. The
guidance goes on to explain that section 110(a)(2)(D) (not section
182(f)) prohibits such impacts.
Consistent with the guidance in section 4.3, the EPA believes that
the section 110(a)(2)(D) and 182(f) provisions must be considered
independently and hence is withdrawing the guidance presently contained
in section 4.4. Thus, if there is evidence that NOX emissions in
an upwind area would interfere with attainment or maintenance in a
downwind area, that action should be separately addressed by the
State(s) or, if necessary, by 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, then, 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 upon the circumstances.
Comment: Several comments were received regarding exemption of
areas from the NOX requirements of the conformity rules. They
argue 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 admit 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 conformity rules3,4 provide a NOX
waiver if an area receives a section 182(f) exemption. In its
``Conformity; General Preamble for Exemption From Nitrogen Oxides
Provisions,'' 59 FR 31238, 31241 (June 17, 1994), the EPA reiterated
its view that in order to conform nonattainment and maintenance areas
must demonstrate that the transportation plan and TIP are consistent
with the motor vehicle emissions budget for NOX even where a
conformity NOX waiver has been granted. Due to a drafting error,
that view is not reflected in the current transportation conformity
rules. As the commenters correctly note, the EPA states in the June 17
notice that it intends to remedy the problem by amending the conformity
rule. Although that notice specifically mentions only requiring
consistency with the approved maintenance plan's NOX motor vehicle
emissions budget, the EPA also intends to require consistency with the
attainment demonstration's NOX motor vehicle emissions budget.
However, the exemptions were submitted pursuant to section 182(f)(3),
and the EPA does not believe it is appropriate to delay the statutory
deadline for acting on these petitions until the conformity rule is
amended. As noted earlier in response to a previous issue raised by
these commenters, this issue has also been raised in a formal petition
for reconsideration of the Agency's final transportation conformity
rule and in litigation pending before the U.S. Court of Appeals for the
District of Columbia Circuit on the substance of both the
transportation and general conformity rules. This issue, thus, is under
consideration within the Agency, but at this time remains unresolved.
The EPA, therefore, believes that until a resolution of this issue is
achieved, the applicable rules governing this issue are those that
appear in the Agency's final conformity regulations, and the Agency
remains bound by their existing terms.
\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).
4``Determining Conformity of General Federal Actions to
State or Federal Implementation Plans; Final Rule,'' November 30,
1993 (58 FR 63214).
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Comment: One group commented that the CAA does not authorize any
waiver of the NOX reduction requirements until conclusive evidence
exists that such reductions are counter-productive.
Response: The EPA does not agree with this comment since it ignores
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. Section 182(f), in
addition to imposing control requirements on major stationary sources
of NOX similar to those that apply for such sources of VOC, also
provides for an exemption (or limitation) from application of these
requirements if, under one of several tests, the EPA determines that in
certain [[Page 19520]] areas NOX reductions would generally not be
beneficial. In subsection 182(f)(1), Congress explicitly conditioned
action on NOX exemptions on the results of an ozone precursor
study required under section 185B. Because of the possibility that
reducing NOX in a particular area may either not contribute to
ozone attainment or may cause the ozone problem to worsen, Congress
included attenuating language, not just in section 182(f) but
throughout the Title I ozone subpart, to avoid requiring NOX
reductions where it would be nonbeneficial or counterproductive. In
describing these various ozone provisions (including section 182(f)),
the House Conference Committee Report states in pertinent part: ``[T]he
Committee included a separate NOX/VOC study provision in section
[185B] to serve as the basis for the various findings contemplated in
the NOX provisions. The Committee does not intend NOX
reduction for reduction's sake, but rather as a measure scaled to the
value of NOX reductions for achieving attainment in the particular
ozone nonattainment area.'' H.R. Rep. No. 490, 101st Cong., 2d Sess.
257-258 (1990). As noted in response to an earlier comment by these
same commenters, the command in subsection 182(f)(1) that the EPA
``shall consider'' the 185B report taken together with the time frame
the Act provides both for completion of the report and for acting on
NOX exemption petitions clearly demonstrate that Congress believed
the information in the completed section 185B report would provide a
sufficient basis for the EPA to act on NOX exemption requests,
even absent the additional information that would be included in
affected areas' attainment or maintenance demonstrations. However,
while there is no specific requirement in the Act that EPA actions
granting NOX exemption requests must await ``conclusive
evidence'', as the commenters argue, there is also nothing in the Act
to prevent the EPA from revisiting an approved NOX exemption if
warranted due to better ambient 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 receiving a full or limited
NOX exemption.
Only the first test listed above is based on a showing that
NOX reductions are ``counter-productive.'' If 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.
Comment: Two commenters stated that the health and environmental
benefits of decreasing NOX as well as the likelihood of
concomitant reduction in other criteria pollutants (e.g., CO, SO2
and particulates), provide other reasons to control NOX,
independent of their impact on ozone formation. One commenter listed
various negative health and environmental impacts of NOX and
stated that although Houston does not exceed the NAAQS for nitrogen
dioxide (NO2), current ambient levels are believed to be unsafe.
In addition, the federal standard, 53 parts per billion (ppb) annual
average, is meaningless without a short-term standard.
Response: The EPA agrees that high 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
Houston or Beaumont area regardless of their impact on ozone. Ambient
concentrations of NO2 in Houston and Beaumont are significantly
below the federal NAAQS for NO2 (in 1993, the annual average
NO2 concentration was 24 ppb in Houston and 10 ppb in Beaumont, as
compared with the federal standard of 53 ppb). Therefore, based on
current federal standards, the EPA does not believe the NO2 levels
in Houston or Beaumont are unsafe.
The EPA is mandated to periodically re-evaluate the NAAQS for each
criteria pollutant based on the best information available. The EPA is
currently reviewing the NO2 standard and will evaluate concerns
over the standard through a separate rulemaking process. As part of
that effort, in October 1994, the EPA issued a draft paper for public
review and comment entitled, ``Review of National Ambient Air Quality
Standards for Nitrogen Dioxide, Assessment of Scientific and Technical
Information, OAQPS Staff Paper,'' concerning the NO2 standard, and
expects to propose rulemaking action in late 1995. If the EPA finds,
based on its review, that the NO2 standard should be revised, then
at that time the Agency will implement NOX control requirements in
areas that become nonattainment for NO2 under the revised
standard.
In addition, as discussed in an earlier response, 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 TNRCC has demonstrated for the
relevant time period 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 either area.
Finally, 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. For these reasons, the EPA does not believe
that the NOX controls required under section 182(f) of the CAA
should be implemented in the Houston or Beaumont areas regardless of
their impact on ozone.
Comment: One commenter stated that Houston is not at risk of over
controlling emissions, and that it is important to front end load
emission reductions now so that control strategies would have time to
work.
Response: The TNRCC petition for a temporary NOX exemption
relies not on an excess emission reduction test, but on modeling which
indicates that NOX reductions would be detrimental to attaining
the ozone standard. The EPA agrees that where NOX reductions would
be beneficial to attaining the ozone standard, they should be pursued
expeditiously; however, for Houston and Beaumont, the State's modeling
demonstration shows that NOX reductions will not contribute to
attainment of the ozone NAAQS. As discussed in a previous response,
Congress clearly understood that in certain areas, NOX reductions
may not be beneficial, and for this reason, included a provision to
exempt such areas from NOX control requirements.
Comment: One commenter argued that regardless of the impact
NOX controls might have in the Houston area, NOX controls
should be required in the Beaumont nonattainment area, since point
source emissions are a significant [[Page 19521]] source of NOX in
that area and large NOX reductions would guarantee ozone
reductions.
Response: The EPA disagrees with this comment. As discussed in the
EPA's proposed approval notice for the temporary NOX exemption for
Houston and Beaumont (see 59 FR 64640), and the EPA's Technical Support
Document for the proposed action, the TNRCC modeled substantial
reductions of VOC, NOX and both VOC and NOX in Beaumont and
showed that ozone levels were lowest under the VOC-only reduction
scenario. The State's petition therefore demonstrates that NOX
reductions would not be beneficial to attainment of the ozone standard
in the Beaumont area.
Comment: One commenter stated that there is no congestion
management plan as required by federal transportation law and that the
EPA has allowed the State to illegally wait two additional years before
submitting a plan.
Response: The EPA disagrees with this comment for two reasons.
First, it does not accurately reflect the current status of the
transportation congestion management plan (which is a program
implemented under the Intermodal Surface Transporation Efficiency Act
(ISTEA) by the U.S. Department of Transportation (DOT)) in the Houston
and Beaumont areas. Contrary to the commenter's statement, it is the
EPA's understanding that a congestion management plan for Houston and
Beaumont was submitted in accordance with the DOT regulatory
requirements specified in title 23 of the Code of Federal Regulations
in Sec. 500.509 (see 58 FR 63442, December 1, 1993).
Second, the EPA's approval of the NOX exemption petition does
not adversely impact the requirements and implementation of the
transportation congestion management plan required by the DOT. The EPA
supports this program and believes that it will, at a minimum, identify
the congestion problems in the area and will lead to development of a
traffic management plan which would have positive air quality benefits
for the area. This program is being implemented by the DOT (which is a
separate Federal agency from the EPA) under authority of the ISTEA.
Contrary to the commenter's statement, the EPA's action on the NOX
exemption petition will not result in a two year delay in the
submission of the transportation congestion management plan.
Comment: Two commenters requested that the EPA consider extending
the section 182(f) NOX exemption and the NOX RACT compliance
deadlines past the EPA's proposed deadlines of December 31, 1996 and
May 31, 1997, respectively. One commenter stated that the EPA's revised
ozone attainment planning policy points to the possible extension of
modeling completion deadlines into 1997.
Response: The EPA believes that it is appropriate to maintain the
NOX exemption period and the RACT compliance deadline as
originally proposed by the EPA. The State of Texas has not requested
that the exemption period or compliance dates be extended, nor did it
make such a request during the public comment period for the EPA's
proposed approval of the State's section 182(f) petition. In addition,
the EPA has not received from the State any request that the COAST
modeling schedule described in the State's petition has been delayed or
would need to be modified. The EPA therefore believes that the
rationale (as explained in the notice of proposed rulemaking (see 59 FR
64643)), for the December 31, 1996, and May 31, 1997, dates concerning
the exemption period and the RACT compliance deadline, respectively, is
still valid, and is independent of the EPA's revised ozone attainment
planning policy. Should the EPA subsequently receive a revised section
182(f) petition for the Houston and Beaumont areas, we will evaluate it
at that time for consistency with the CAA and the EPA's guidance on
section 182(f) exemptions.
III. Effective Date
This rulemaking is effective as of April 12, 1995. 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 of the rule if the rule ``relieves a restriction.'' Since
the approval of the section 182(f) exemptions for the Houston and
Beaumont areas 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 EPA is taking final action to approve the section 182(f)
petition submitted by the State of Texas requesting a temporary
NOX exemption for the Houston and Beaumont ozone nonattainment
areas. The temporary exemption automatically expires on December 31,
1996, without further notice from the EPA. Approval of the temporary
exemption waives the federal requirements for NOX RACT, NSR,
conformity, and I/M for the period of the temporary exemption.
The State had previously adopted and submitted to the EPA complete
NOX RACT, NSR, conformity, and I/M rules. During the temporary
exemption, the EPA will not act upon the State's NOX RACT rules.
The EPA plans to act upon the State's NOX NSR and conformity
provisions in separate rulemaking actions because those provisions are
contained in broader rules that also control VOC emissions; however,
during the period of the temporary exemption, the State's NOX NSR
and conformity requirements are not federally applicable. The EPA
previously approved the State's I/M rules (see 59 FR 43046, August 22,
1994).
Upon the expiration of the temporary exemption, (1) the
requirements pertaining to NOX RACT, NSR, conformity, and I/M will
again become applicable, except that the NOX RACT implementation
date applicable to the Houston and Beaumont nonattainment areas under
section 182(f) shall be as expeditious as practicable but no later than
May 31, 1997, unless (2) the State has received a permanent NOX
exemption from the EPA prior to that time. The EPA will begin
rulemaking action on the State's NOX RACT SIP upon the expiration
of the temporary exemption if the State has not received a permanent
NOX exemption by that time.
Regulatory Process
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.
Approvals of NOX exemption petitions under section 182(f) of
the CAA do not create any new requirements. Therefore, because the
Federal approval of the petition does not impose any new requirements,
the EPA certifies that it does not have a significant impact on
affected small entities. 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 the EPA to base its
actions concerning SIPs on such grounds (Union Electric Co. v. U.S.
E.P.A., 427 [[Page 19522]] 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 U.S. Court of Appeals for the
appropriate circuit by June 19, 1995. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
Executive Order 12866
The Office of Management and Budget has exempted this action from
review under Executive Order 12866.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic
compounds.
Dated: April 12, 1995.
Carol M. Browner,
Administrator.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart SS--Texas
2. Section 52.2308 is amended by adding paragraph (d) to read as
follows:
Sec. 52.2308 Area-wide nitrogen oxides (NOX) exemptions.
* * * * *
(d) The TNRCC submitted to the EPA on August 17, 1994, with
supplemental information submitted on August 31, 1994, and September 9,
1994, a petition requesting that the Houston and Beaumont ozone
nonattainment areas be temporarily exempted from the NOX control
requirements of section 182(f) of the CAA. The Houston nonattainment
area consists of Brazoria, Chambers, Fort Bend, Galveston, Harris,
Liberty, Montgomery, and Waller counties. The Beaumont nonattainment
area consists of Hardin, Jefferson, and Orange counties. The exemption
request was based on photochemical grid modeling which shows that
reductions in NOX would not contribute to attaining the ozone
NAAQS. On April 12, 1995, the EPA approved the State's request for a
temporary exemption. Approval of the temporary exemption waives the
federal requirements for NOX Reasonably Available Control
Technology (RACT), New Source Review (NSR), conformity, and vehicle
inspection and maintenance (I/M) for the period of the temporary
exemption. The temporary exemption automatically expires on December
31, 1996, without further notice from the EPA. Based on the rationale
provided in the notice of proposed rulemaking on this action, upon the
expiration of the temporary exemption, the requirements pertaining to
NOX RACT, NSR, conformity, and I/M will again become applicable,
except that the NOX RACT implementation date applicable to the
Houston and Beaumont nonattainment areas under section 182(f) shall be
as expeditious as practicable but no later than May 31, 1997, unless
the State has received a permanent NOX exemption from the EPA
prior to that time.
[FR Doc. 95-9567 Filed 4-18-95; 8:45 am]
BILLING CODE 6560-50-P
