[Federal Register Volume 60, Number 79 (Tuesday, April 25, 1995)]
[Rules and Regulations]
[Pages 20233-20237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10104]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA-82-1-6926; FRL-5195-9]
Clean Air Act Section 182(f) NOX Exemption Petition;
Monterey Bay Ozone Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is finalizing the approval of a petition submitted by
the Monterey Bay Unified Air Pollution Control District (MBUAPCD)
requesting that EPA grant an exemption for the Monterey Bay ozone
nonattainment area (Monterey Bay) from the section 182(f) requirement
to control major stationary sources of oxides of nitrogen (NOX)
emissions. EPA published a proposed action to approve the Monterey Bay
NOX exemption in the Federal Register on December 20, 1994. In
accordance with the requirements of the Clean Air Act, as amended in
1990 (the Act or CAA), the EPA has determined that additional NOX
reductions from major stationary sources in Monterey Bay would not
contribute to attainment of the national ambient air quality standard
(NAAQS) for ozone. The approval of this action exempts Monterey Bay
from implementing the NOX requirements for reasonably available
control technology (RACT), new source review (NSR), and the applicable
general and transportation conformity and inspection and maintenance
(I/M) requirements of the CAA. The EPA is finalizing approval of this
action under provisions of the Act regarding plan requirements for
nonattainment areas.
EFFECTIVE DATE: This action 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) exemption for the Monterey Bay area
is a substantive action 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.
ADDRESSES: Copies of the petition and EPA's evaluation report are
available for public inspection at EPA's Region IX office during normal
business hours. Copies of the submitted petition are available for
inspection at 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.
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street
SW., Washington, DC 20460.
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, Air
and Toxics Division, U.S. Environmental Protection Agency, Region IX,
75 Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-
1202.
SUPPLEMENTARY INFORMATION:
Background
On December 20, 1994, EPA proposed to approve the Monterey Bay
NOX exemption petition, submitted by the MBUAPCD on April 26,
1994. 59 FR 65523. The exemption petition is based on ambient
monitoring data and demonstrates that additional NOX reductions in
Monterey Bay would not contribute to attainment of the NAAQS for ozone.
A detailed discussion of the background concerning the NOX
requirements and the submitted petition is provided in the notice of
proposed rulemaking (NPRM) cited above.
EPA has evaluated the exemption petition for consistency with the
requirements of the CAA, EPA regulations, and EPA interpretation of
these requirements as expressed in the various EPA policy guidance
documents referenced in the NPRM cited above. EPA believes that the
petition satisfies the applicable EPA requirements and is, therefore,
exempting the Monterey Bay area from implementing the NOX
requirements for RACT, NSR, and the applicable general and
transportation conformity and I/M requirements1 of the CAA.
\1\See ``Scope of Nitrogen Oxides (NOX) Exemptions,'' from
G.T. Helms, Group Leader, Ozone/Carbon Monoxide Programs Branch (MD-
15), to the Air Branch Chiefs, January 12, 1995. ``I/M Requirements
in NOX RACT Exempt Areas'', from Mary T. Smith, Acting
Director, Office of Mobile Sources, to the Air Division Directors,
October 14, 1994.
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The proposal identifies two NOX RACT source categories MBUAPCD
has identified which encompass the major stationary sources of NOX
in the Monterey Bay nonattainment area.
Rules have been developed and submitted for these two categories,
entitled, Rule 431, Emissions From Utility Power Boilers, and Rule 435,
Control of Nitrogen Oxides From Kilns. EPA indicated in the NPRM that
once the final approval of the NOX waiver is granted, MBUAPCD
would then rescind the two NOX rules submitted for inclusion into
the California SIP. This is not the intention of MBUAPCD with respect
to one of these rules. MBUAPCD, in subsequently applying to EPA for
redesignation to attainment of the NAAQS for ozone, has indicated that
the emissions reductions achieved by rule 431 will form part of its
ozone [[Page 20234]] maintenance plan. Although NOX waivers may be
granted for areas demonstrating that NOX reductions do not
contribute to attainment of the ozone standard, areas may choose to
impose NOX restrictions on other bases, such as ozone maintenance,
visibility protection, PM-10 control, acid deposition, or other
environmental protection purposes. MBUAPCD has indicated in its
attainment plan its belief that the reductions achieved from rule 431
are needed for maintenance of the ozone standard. Therefore, rule 431
will not be rescinded, but instead will be evaluated for incorporation
into the California SIP. However, rule 435 contains language within the
rule which will make its applicability void upon final approval of the
NOX waiver.
Response to Public Comments
A 30-day public comment period was provided in 59 FR 65523. EPA
received no comments specifically regarding the Monterey Bay exemption
petition. However, in August 1994, three environmental groups submitted
joint comments on the proposed approvals of NOX exemptions for the
Ohio and Michigan ozone nonattainment areas. The comments address EPA's
policy regarding NOX exemptions in general and apply to all
actions EPA takes regarding section 182(f) NOX exemptions.
Therefore, these comments are addressed below.
Comment: The commenters argued 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: 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 EPA with discretion
to establish reasonable procedures, consistent with the requirements of
the 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 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 EPA by November 15, 1992.
Thus, in order to avoid the CAA sanctions, areas seeking a NOX
exemption would have needed 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 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 and EPA
action on exemption requests, in some cases, prior to submittal of
attainment or maintenance demonstrations.
The CAA requires conformity to the applicable SIP with regard to
federally-supported NOX generating activities in relevant
nonattainment and maintenance areas. However, EPA's conformity rules
explicitly provide that these NOX requirements would not apply if
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, EPA notes that this issue has previously been raised
in a formal petition for reconsideration of 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 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 APA. The EPA,
therefore, believes that until a resolution of this issue is achieved,
the applicable rules governing this issue are those that appear in
EPA's final conformity regulations, and EPA remains bound by their
existing terms.
Comment: The commenters stated that the modeling required by EPA
guidance is insufficient to establish that NOX reductions would
not contribute to attainment since only one level of NOX control,
i.e., ``substantial'' reductions, is required to be analyzed. They
further explained that an area must submit an approvable attainment
plan before EPA can know whether NOX reductions will aid or
undermine attainment.
Response: The EPA does not believe that this comment is applicable
to the Monterey Bay exemption because the demonstration is based on
three years of ambient monitoring data and not modeling.
Comment: The commenters provided a comment that three years of
``clean'' data fail to demonstrate that NOX reductions would not
contribute to attainment, and that EPA's policy erroneously equates the
absence of a violation for one three-year period with ``attainment.''
Response: The EPA has separate criteria for determining if an area
should be redesignated to attainment under section 107 of the CAA. The
section 107 criteria are more comprehensive than the CAA requires with
respect to NOX exemptions under section 182(f).
Under section 182(f)(1)(A), an exemption from the NOX
requirements may be granted for nonattainment areas outside an ozone
transport region if EPA [[Page 20235]] determines that ``additional
reductions of (NOX) would not contribute to attainment'' of the
ozone NAAQS in those areas. In some cases, an ozone nonattainment area
might attain the ozone standard, as demonstrated by 3 years of adequate
monitoring data, without having implemented the section 182(f) NOX
provisions over that 3-year period. The EPA believes that, in cases
where a nonattainment area is demonstrating attainment with 3
consecutive years of air quality monitoring data without having
implemented the section 182(f) NOX provisions, it is clear that
the section 182(f) test is met since ``additional reductions of
(NOX) would not contribute to attainment'' of the NAAQS in that
area. 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).
Comment: Some commenters provided a comment on all section 182(f)
actions that a waiver of NOX controls is unlawful if such a waiver
will impede attainment and maintenance of the ozone standard in
separate downwind areas.
Response: The EPA believes that while this comment may be
applicable to proposed NOX exemption actions in other areas, it is
not applicable to the Monterey Bay exemption action because the EPA is
unaware of, and the comment itself does not specify, any downwind areas
for which NOX transport is of concern.
However, as a result of these comments and comments received
regarding transport in NOX exemption requests for other areas in
the United States, EPA reevaluated its position on this issue and
decided to revise the previously issued guidance.2 As described
below, 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 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).
\2\See ``Section 182(f) Nitrogen Oxides (NOX) Exemptions--
Revised Process and Criteria'', issued February 8, 1995 by John S.
Seitz, Director of EPA's Office of Air Quality Planning and
Standards.
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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, 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 under section 182(f).
Some areas requesting an exemption may be upwind of and impact upon
downwind nonattainment areas. 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 Act, an exemption from the NOX
requirements may be granted for nonattainment areas outside an ozone
transport region if EPA determines that ``additional reductions of
[NOX] would not contribute to attainment of the national ambient
air quality standard for ozone in the area.''3 As described in
section 4.3 of the December 16, 1993 guidance document, EPA believes
that the term ``area'' means the ``nonattainment area'' and that 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.
\3\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, 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 EPA in a section
110(a)(2)(D) action. In addition, a section 182(f) exemption request
should be independently considered by EPA. In some cases, then, 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: Comments were received regarding exemption of areas from
the NOX requirements of the conformity rules. The commenters 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, [[Page 20236]] similarly, the maximum allowable amounts of
any such NOX emissions under the general conformity rules. The
commenters admit that, in prior guidance, 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 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: With respect to conformity, EPA's conformity rules45
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), EPA
reiterated its view that in order to conform, nonattainment and
maintenance areas must demonstrate that the transportation plan and
transportation improvement program (TIP) are consistent with the motor
vehicle emissions budget for NOX even where a conformity NOX
waiver has been granted. Due to a drafting error, that view is not
reflected in the current transportation conformity rules. As the
commenters correctly note, EPA states in the June 17th notice that it
intends to remedy the problem by amending the conformity rule. Although
that notice specifically mentions only requiring consistency with the
approved maintenance plan's NOX motor vehicle emissions budget,
EPA also intends to require consistency with the attainment
demonstration's NOX motor vehicle emissions budget. However, the
exemption for Monterey Bay was submitted pursuant to section 182(f)(3),
and EPA does not believe it is appropriate to delay the statutory
deadline for acting on this petition 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.
\4\See ``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).
\5\See ``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: The commenters argue that the CAA does not authorize any
waiver of the NOX reduction requirements until conclusive evidence
exists that such reductions are counter-productive.
Response: 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, EPA has sought an
approach that reasonably accords with Congress' 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, EPA determines that
in certain areas NOX reductions would generally not be beneficial.
In subsection 182(f)(1), Congress explicitly conditioned action on
NOX exemptions on the results of an ozone precursor study required
under section 185B. Because of the possibility that reducing NOX
in a particular area may either not contribute to ozone attainment or
may cause the ozone problem to worsen, Congress included attenuating
language, not just in section 182(f) but throughout the Title I ozone
subpart, to avoid requiring NOX reductions where 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 EPA ``shall consider'' the 185B report taken
together with the timeframe the Act provides both for completion of the
report and for acting on NOX exemption petitions clearly
demonstrate that Congress believed the information in the completed
section 185B report would provide a sufficient basis for 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 EPA from revisiting an approved NOX
exemption if warranted due to better ambient information.
In addition, the EPA believes (as described in 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), 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.
EPA Action
EPA is finalizing this action to exempt Monterey Bay from
implementing the NOX requirements for RACT, NSR, the applicable
general and transportation conformity requirements, and I/M.
The EPA believes that all section 182(f) exemptions that are
approved should be approved only on a contingent basis. As described in
the EPA's NOX Supplement to the General Preamble (57 FR 55628,
November 25, 1992) and further guidance issued by
[[Page 20237]] EPA,6 section 182(f) exemptions are granted on a
contingent basis and last for only as long as the area's monitoring
data continue to demonstrate attainment. Monterey Bay is required to
continue to operate an appropriate air quality monitoring network, in
accordance with 40 CFR part 58, to verify the attainment status of the
area.
\6\See ``Section 182(f) Nitrogen Oxides (NOX) Exemptions--
Revised Process and Criteria'', issued by John S. Seitz, Director,
Office of Air Quality Planning and Standards (MD-10), May 27, 1994.
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If, prior to redesignation of the area to attainment, a violation
of the ozone NAAQS is monitored in Monterey Bay (consistent with the
requirements contained in 40 CFR part 58 and recorded in AIRS), the
section 182(f) exemption would no longer apply, as of the date EPA
makes a determination that a violation has occurred. EPA would notify
the area that the exemption no longer applies, and would also provide
notice to the public in the Federal Register. If the exemption is
revoked, the area must comply with any applicable NOX requirements
set forth in the CAA. Thus, a determination that the NOX exemption
no longer applies would mean that the applicable NOX NSR, general
and transportation conformity, and I/M provisions would immediately be
applicable (see 58 FR 63214 and 58 FR 62188) in Monterey Bay.
If Monterey Bay is redesignated to attainment of the ozone NAAQS,
NOX RACT is to be implemented as provided for as contingency
measures in the maintenance plan.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Regulatory Process
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA
must determine whether the regulatory action is ``significant'', and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. It has been determined that
this action is not a ``significant regulatory action'' under the terms
of Executive Order 12866, and is therefore not subject to OMB review.
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, 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.
EPA's final action relieves requirements otherwise imposed under
the CAA and, hence does not impose and 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 May 25, 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 later in proceedings to enforce its
requirements. Section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Dated: April 12, 1995.
Felicia Marcus,
Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart D--California
2. Subpart F is amended by adding Sec. 52.235 to read as follows:
Sec. 52.235 Control strategy for ozone: Oxides of nitrogen.
EPA is approving an exemption request submitted by the Monterey Bay
Unified Air Pollution Control District on April 26, 1994 for the
Monterey Bay ozone nonattainment area from the NOX RACT
requirements contained in section 182(f) of the Clean Air Act. This
approval exempts the area from implementing the oxides of nitrogen
(NOX) requirements for reasonably available control technology
(RACT), new source review (NSR), the related requirements of general
and transportation conformity regulations, and applicable inspection
and maintenance (I/M). The exemption is based on ambient air monitoring
data and lasts for only as long as the area's monitoring efforts
continue to demonstrate attainment without NOX reductions from
major stationary sources.
[FR Doc. 95-10104 Filed 4-24-95; 8:45 am]
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