[Federal Register Volume 62, Number 103 (Thursday, May 29, 1997)]
[Rules and Regulations]
[Pages 29072-29078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14100]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[LA-21-1-7318; FRL-5832-5]
Approval and Promulgation of Section 182(f) Exemption to the
Nitrogen Oxides (NOX) Control Requirements for the Lake
Charles Ozone Nonattainment Area; Louisiana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is issuing final approval of a petition from the State
of Louisiana requesting that the Lake Charles marginal ozone
nonattainment area be exempt from applicable nitrogen oxides
(NOX) control requirements of section 182(f) of the Clean
Air Act (Act). The section 182(f) NOX requirement from which
the area will be exempt is NOX new source review (NSR). In
addition, approval of the section 182(f) petition would remove the
NOX general conformity provisions and the NOX
build/no build provisions of the transportation conformity rule. This
document will also correct the drafting error in the proposed rule in
which the Lake Charles area was referred to as the Calcasieu Parish
nonattainment area. This correction is merely a nominal change, since
the Lake Charles nonattainment area contains only Calcasieu Parish.
EFFECTIVE DATE: This action is effective as of May 27, 1997.
ADDRESSES: Copies of the exemption request, public comments and EPA's
responses are available for inspection at the following address:
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:
Mr. Matthew Witosky , Air Planning Section (6PD-L), Multimedia
Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue,
Dallas, Texas 75202-2733, telephone (214) 665-7214.
SUPPLEMENTAL INFORMATION:
I. Background
On October 28, 1994, the State of Louisiana submitted a petition to
the EPA requesting that the Lake Charles marginal ozone nonattainment
area be exempt from requirements to implement NOX controls
pursuant to section 182(f) of the Act. Hereafter, any reference to
``section'' shall be considered a reference to a portion of the Act.
The exemption request was based on modeling that demonstrates
additional NOX emission controls within the nonattainment
area will not contribute to attainment of the ozone National Ambient
Air Quality Standard (NAAQS) within the area. Subsequent to the
original request for a waiver, ambient data became available indicating
that area was in attainment of the ozone standard. The EPA is approving
the exemption request based on modeling and monitoring data that
together demonstrate that additional NOX reductions would
not contribute to attainment. As stated in the summary, the Lake
Charles ozone nonattainment area consists only of Calcasieu Parish.
On June 13, 1996, the EPA proposed approval of the NOX
exemption petition for the Lake Charles ozone nonattainment area (61 FR
30024, again, proposed as the Calcasieu Parish nonattainment area).
Adverse comments were received from a single commenter. In addition,
three environmental groups submitted joint adverse comments on the
proposed approvals of NOX exemptions for the Ohio and
Michigan ozone nonattainment areas in August of 1994. These comments
addressed the EPA's general policy regarding NOX exemptions.
The commenters requested that these comments be addressed in all EPA
rulemakings dealing with section 182(f) exemptions.
II. Public Comments
The following discussion summarizes the comments received regarding
the State's petition and/or the EPA's proposed rulemaking and presents
the EPA's responses to these comments.
Comment: Commenters argued that NOX exemptions are
provided for in two separate parts of the Act, in sections 182(b)(1)
and 182(f). Because the NOX exemption tests in sections
182(b)(1) and 182(f)(1) include language indicating that action on such
requests should take place ``when (the EPA) approves a plan or plan
revision,'' these commenters conclude that all NOX exemption
determinations by the EPA, including exemption actions taken under the
petition process established by section 182(f)(3), must occur during
consideration of an attainment or maintenance plan, unless the area has
been redesignated as attainment.
Response: Section 182(f) contains very few details regarding the
administrative procedures for acting on NOX exemption
requests. The absence of specific guidelines by Congress leaves the EPA
with discretion to establish reasonable procedures consistent with the
requirements of the Administrative Procedures Act (APA).
The EPA disagrees with the commenters regarding the process for
considering NOX exemption requests under section 182(f) and
instead, believes that sections 182(f)(1) and 182(f)(3) provide
independent procedures by which the EPA may act on NOX
exemption requests. The language in section 182(f)(1), which indicates
that the EPA should act on NOX exemptions in conjunction
with action on a plan or a plan revision, does not appear in section
182(f)(3). While section 182(f)(3) references section 182(f)(1), the
EPA believes that this reference encompasses only the substantive tests
in paragraph (1) (and by extension, paragraph (2)), not the procedural
requirement that the EPA act on exemptions only when acting on State
Implementation Plans (SIPs). Additionally, section 182(f)(3) provides
that ``a person'' (which section 302(e) of the Act defines to include a
State) may petition for NOX exemptions ``at any time,'' and
requires the EPA to make its determination within 6 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
marginal areas to adopt NSR rules, unless exempted. These rules were
generally due to be submitted to the EPA by November 15, 1992. Thus, in
order to avoid the Act's sanctions, areas seeking
[[Page 29073]]
a NOX exemption would have needed to submit this exemption
request for EPA review and rulemaking action several months before
November 15, 1992. In contrast, the Act specifies that the attainment
demonstrations were not due until November 1993 or 1994 (and the EPA
may take up to 12 months to approve or disapprove the demonstrations).
For marginal ozone nonattainment areas (subject to NOX NSR),
no attainment demonstrations are called for in the Act. For areas
seeking redesignation to attainment of the ozone NAAQS, the Act does
not specify a deadline for submittal of maintenance demonstrations (in
reality, the EPA would generally consider redesignation requests
without accompanying maintenance plans to be unacceptable). Clearly,
the Act envisions the submittal of and EPA action on NOX
exemption requests, in some cases, prior to submittal of attainment or
maintenance demonstrations.
Comment: Commenters contended that section 182(b)(1) is the
appropriate authority for granting interim period transportation
conformity NOX exemptions.
Response: The EPA agreed with the commenters and published an
interim final rule that changed the transportation conformity rule to
reference section 182(b)(1) as the correct authority under the Act for
waiving the NOX ``build/no-build'' and ``less-than-1990
emissions'' tests for certain areas. See 60 FR 44762, (August 29,
1995). A related proposed rule (60 FR 44790), published on the same
day, invited public comment on how the Agency plans to implement
section 182(b)(1) transportation conformity NOX exemptions.
That proposal has since been finalized. See 60 FR 57179 (November 14,
1995). In that final rule, the EPA noted that section 182(b)(1), by its
terms, only applies to moderate and above ozone nonattainment areas.
Consequently, the EPA believes that the interim reduction requirements
of section 176(c)(3)(A)(iii), and the authority provided in section
182(b)(1) to grant relief from those interim reduction requirements,
apply only to those areas subject to section 182(b)(1).
It should be noted that a NOX waiver under section
182(f) removes the NOX general conformity requirements
entirely and would continue to do so. Since general Federal actions are
not subject to section 176(c)(3)(A)(iii), which explicitly references
section 182(b)(1), the EPA will continue to offer relief from
NOX general conformity provisions under section 182(f)(3).
The EPA intends to provide relief to marginal areas, such as Lake
Charles, from transportation conformity provisions through the
authority of section 182(f)(3) because marginal areas are not subject
to section 182(b)(1). The EPA believes this approach is consistent both
with the way NOX requirements in ozone nonattainment areas
are treated under the Act generally, and under section 182(f) in
particular. The basic approach of the Act is that NOX
reductions should apply when beneficial to an area's attainment goals,
and should not apply when unhelpful or counterproductive. Section
182(f) reflects this approach but also includes specific substantive
tests which provide a basis for the EPA to determine when
NOX requirements should not apply. There is no substantive
difference between the technical analysis required to make an
assessment of NOX impacts on attainment in a particular area
whether undertaken with respect to mobile source or stationary source
NOX emissions. Moreover, where the EPA has determined that
NOX reductions will not benefit attainment or would be
counterproductive in an area, the EPA believes it would be unreasonable
to insist on NOX reductions for purposes of meeting
reasonable further progress or other milestone requirements. Thus, even
concerning the conformity requirements of section 176(c)(1), the EPA
believes it is reasonable and appropriate to: (1) Offer relief from the
applicable NOX requirements of the general and
transportation conformity rules in areas where such reductions would
not be beneficial, and (2) rely in doing so on the exemption tests
provided in section 182(f).
In summary, the EPA will continue to process actions not subject to
section 182(b)(1) under section 182(f)(3). The Lake Charles ozone
nonattainment area is not subject to the requirements of section
182(b)(1). Therefore, a transportation conformity NOX waiver
and general conformity waiver may be granted under section 182(f)(3).
Comment: Commenters argued that waiver of NOX control
requirements is unlawful if such a waiver would impede attainment and
maintenance of the ozone standard in downwind areas.
Response: As a result of these comments, the EPA reevaluated its
position on this issue and has revised previously issued guidance. See
Memorandum, ``Section 182(f) Nitrogen Oxides (NOX)
Exemptions--Revised Process and Criteria,'' dated February 8, 1995,
from John Seitz. As described in this memorandum, the EPA intends to
use its authority under section 110(a)(2)(D) to require a State to
reduce NOX emissions from stationary and/or mobile sources
where there is evidence, such as photochemical grid modeling, showing
that the NOX emissions would contribute significantly to
nonattainment in, or interfere with maintenance by, any other State or
in another nonattainment area within the same State. This action would
be independent of any action taken by the EPA on a NOX
exemption request under section 182(f). That is, the EPA's action to
grant or deny a NOX exemption request under section 182(f)
for any area would not shield that area from the EPA's action to
require NOX emission reductions, if necessary, under section
110(a)(2)(D).
Modeling analyses are underway or will soon be conducted in many
areas for the attainment demonstration SIP revisions required pursuant
to section 182(c)(2)(A). Recent modeling data suggest that certain
ozone nonattainment areas may benefit from reductions in NOX
emissions upwind of the nonattainment areas. For example, the Northeast
Corridor States and the Lake Michigan Ozone Study are considering
attainment strategies which may rely, in part, on NOX
emission reductions hundreds of kilometers upwind. The EPA is working
with the States and other organizations to design and complete studies
which consider upwind sources and quantify their impacts. As the
studies progress, the EPA will continue to work with the States and
other organizations to develop mutually acceptable attainment
strategies.
At the same time as the large scale modeling analyses are being
conducted, States have requested exemptions from NOX
requirements under section 182(f) for certain nonattainment areas in
the modeling domains. Some of these nonattainment areas may impact
downwind nonattainment areas. The EPA intends to address the transport
issue under section 110(a)(2)(D), based on a regional modeling
analysis.
Under section 182(f) of the Act, an exemption from NOX
requirements may be granted for nonattainment areas outside of an ozone
transport region if the EPA determines that ``additional reductions of
(NOX) would not contribute to attainment of the national
ambient air quality standard for ozone in the area.'' 1 As
described in section
[[Page 29074]]
4.3 of the December 13, 1993, EPA guidance document, ``Guideline for
Determining the Applicability of Nitrogen Oxides Requirements Under
Section 182(f),'' the EPA encourages, but does not require, States/
petitioners to consider the impacts on the entire modeling domain since
the effects of an attainment strategy may extend beyond a designated
nonattainment area. Specifically, the guidance encourages States to
consider imposition of the NOX requirements if needed to
avoid adverse impacts in downwind areas, either intra-or interstate.
States need to consider such impacts since they are ultimately
responsible for achieving attainment in all portions of their State and
for ensuring that emissions originating in their State do not
contribute significantly to nonattainment in, or interfere with
maintenance by, any other State. See section 110(a)(2)(D)(i)(I) of the
Act.
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\1 \ There are three NOX exemption tests specified in
section 182(f). Of these, two are applicable for areas outside of an
ozone transport region: The ``contribute to attainment'' test
described above, and the ``net air quality benefits'' test. EPA must
determine, under the latter test, that the net benefits to air
quality in an area ``are greater in the absence of NOX
reductions'' from relevant sources. Based on the plain language of
section 182(f), EPA believes that each test provides an independent
basis for receiving a full or limited NOX exemption.
Consequently, as stated in section 1.4 of the December 16, 1993, EPA
guidance, ``[w]here any one of the tests is met (even if another
test is failed), the section 182(f) NOX requirements
would not apply or, under the excess reductions provision, a portion
of these requirements would not apply.''
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In contrast, section 4.4 of the December 16, 1993, guidance states
that the section 182(f) demonstration would not be approved if there is
evidence, such as photochemical grid modeling, showing that the
NOX exemption would interfere with attainment or maintenance
in downwind areas. The guidance further explains that section
110(a)(2)(D) (not section 182(f)) prohibits such impacts. Consistent
with section 4.3 of the guidance, the EPA believes that the section
110(a)(2)(D) and 182(f) provisions must be considered independently,
and hence, has revised section 4.4 of the December 16, 1993, guidance
document. Thus, if there is evidence that NOX emissions in
an upwind area would interfere with attainment or maintenance in a
downwind area, that problem should be 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.
The State of Louisiana is being included in one of the new modeling
analyses referred to above that is being conducted by the EPA, States,
and other agencies as part of the Ozone Transport Assessment Group
(OTAG). The OTAG process is a consultative process among the eastern
States and the EPA. The OTAG assessment process will evaluate regional
and national emission control strategies using improved regional
modeling analyses. The goal of the OTAG process is to reach consensus
on additional regional and national emission reductions that are needed
to support efforts to attain the ozone standard in the eastern United
States. States have committed to submit plans (SIP revisions) that will
show attainment of the ozone standard through local, regional, and
national emission controls.
As noted in a prior EPA rulemaking dated November 28, 1994 (59 FR
60709), NOX waivers are approved on a contingent basis; the
waiver applies only so long as air quality analyses, such as from
additional ozone modeling, in an exempted area continue to show
NOX reductions are detrimental to reaching attainment or
would not contribute to attainment. Additionally, in the notice of
proposed rulemaking on the Lake Charles exemption request, 61 FR 30024
(June 13, 1996), the EPA indicated that the NOX exemption
would remain effective for only as long as the area had no ozone
violations, or modeling continued to show that NOX control
activities would not contribute to attainment, in the Lake Charles
area.
Comment: Comments were received regarding the scope of exemption of
areas from the NOX requirements of the conformity rules. The
commenters argued that such exemptions waive only the requirements of
section 182(b)(1) to contribute to specific annual reductions, not the
requirement that conformity SIPs contain information showing the
maximum amount of motor vehicle NOX emissions allowed under
the transportation conformity rules, and similarly, the maximum
allowable amounts of any such NOX emissions under the
general conformity rules. The commenters admitted that, in prior
guidance, the EPA has acknowledged the need to amend a drafting error
in the existing transportation conformity rules to ensure consistency
with motor vehicle emissions budgets for NOX, but want the
EPA, in actions on NOX exemptions, to explicitly affirm this
obligation and to also avoid granting waivers until a budget
controlling future NOX increases is in place.
Response: The EPA's transportation conformity rule 2
originally provided a NOX transportation conformity waiver
if an area received a section 182(f) exemption. As indicated in a
previous response, the EPA has changed the reference from section
182(f) to section 182(b)(1) in the transportation conformity rule since
that section is specifically referenced by the transportation
conformity provisions of the Act. See 60 FR 44762. The EPA has also
consistently held the view that, in order to conform, nonattainment and
maintenance areas must demonstrate that the transportation plan and the
Transportation Improvement Program are consistent with the motor
vehicle emissions budget for NOX even where a conformity
NOX waiver has been granted. Due to a drafting error, that
view was not reflected in the transportation conformity rule. The EPA
has amended the rule to correct this error. See 60 FR 57179. However,
the exemptions that are the subject of this final action are being
processed under section 182(f)(3), which does not require the EPA to
act under the authority of section 182(b).
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\2\ ``Criteria and Procedures for Determining Conformity to
State or Federal Implementation Plans of Transportation Plans,
Programs, and Projects Funded or Approved under Title 23 U.S.C. of
the Federal Transit Act,'' November 24, 1993 (58 FR 62188).
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Comment: Commenters argued that the Act does not authorize any
waiver of the NOX reduction requirements until conclusive
evidence exists that such reductions are counterproductive.
Response: The EPA does not agree with this comment since it ignores
the Congressional intent as evidenced by the plain language of section
182(f), the structure of the Title I ozone subpart as a whole, and
relevant legislative history. By contrast, in developing and
implementing its NOX exemption policies, the EPA has sought
an approach that reasonably accords with that intent. In addition to
imposing control requirements on major stationary sources of
NOX similar to those that apply for sources of VOC, section
182(f) also provides for an exemption (or limitation) from application
of these requirements if, under one of several tests, the EPA
determines that, in certain areas, NOX reductions would
generally not be beneficial towards attainment of the ozone standard.
In section 182(f)(1), Congress explicitly conditioned action on
NOX exemptions on the results of an ozone precursor study
required under section 185B of the Act. Because of the possibility that
reducing NOX in an area may either not contribute to ozone
attainment or may cause the ozone problem to worsen, Congress included
attenuating language, not just in section 182(f), but throughout Title
I of the Act, to avoid requiring NOX reductions where such
would not be beneficial or would be counterproductive. In describing
these various ozone provisions, including section 182(f), the House
Conference Committee Report states in the pertinent part: ``[T]he
Committee included a separate NOX/VOC [volatile organic
compound] study
[[Page 29075]]
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.''
See H.R. Rep. No. 490, 101st Cong., 2d Sess. 257-258 (1990).
As noted in the response to an earlier comment, the command in
section 182(f)(1) that the EPA ``shall consider'' the section 185B
report taken together with the time period the Act provides for
completion of the report and for acting on NOX exemption
petitions clearly demonstrate that Congress believed the information in
the completed section 185B report would provide a sufficient basis for
the EPA to act on NOX exemption requests, even in the
absence of the additional information that would be included in
affected areas' attainment or maintenance demonstrations. While there
is no specific requirement in the 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 by additional, current information.
In addition, the EPA believes, as described in the EPA's December
1993 guidance, that section 182(f)(1) of the Act provides that the new
NOX requirements shall not apply (or may be limited to the
extent necessary to avoid excess reductions) if the Administrator
determines that any one of the following tests is met:
(1) In any area, the net air quality benefits are greater in the
absence of NOX reductions from the sources concerned;
(2) In nonattainment areas not within an ozone transport region,
additional NOX reductions would not contribute to ozone
attainment in the area; or
(3) In nonattainment areas within an ozone transport region,
additional NOX reductions would not produce net ozone air
quality benefits in the transport region. Based on the plain language
of section 182(f), the EPA believes that each test provides an
independent basis for a full or limited NOX exemption.
Only the first test listed above is based on a showing that
NOX reductions are ``counterproductive.'' If one of the
tests is met (even if another test is failed or not applied), the
section 182(f) NOX requirements would not apply or, under
the excess reductions provision, a portion of these requirements would
not apply.
Comment: Commenters provided a generic comment on all section
182(f) actions that three years of ``clean'' data fail to demonstrate
that NOX reductions would not contribute to attainment.
Response: The EPA does not agree with this comment. 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. 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, the EPA believes that the Section 182(f) test is met since
``additional reductions of (NOX) would not contribute to
attainment'' of the NAAQS in that area. In all cases, EPA's approval of
the exemption is 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). In the case of Lake Charles, the EPA is
confident that three years of clean data taken together with the
modeling performed to support the request for a waiver are sufficient
evidence to support the issuance of the waiver.
Comment: Commenters stated that the modeling required by the EPA is
insufficient to establish that NOX reductions would not
contribute to attainment since only one level of control,
``substantial'' reductions, is required to be analyzed. As such, the
waiver does not provide a complete picture of the effect larger amounts
of NOX reductions will have on ozone levels. They further
explained that an area must submit an attainment plan that can be
approved before the EPA can know whether NOX reductions will
aid or undermine attainment.
Response: As described in the EPA's December 1993 NOX
exemption guidance, photochemical grid modeling is generally needed to
document cases where NOX reductions are counterproductive to
net air quality, do not contribute to attainment, do not show a net
ozone benefit, or include excess reductions. The UAM or, in a transport
region, the Regional Oxidant Model are acceptable models for these
purposes.
The EPA guidance also states that application of UAM should be
consistent with techniques specified in the EPA ``Guideline on Air
Quality Models (Revised)'' (December 1993). Further, application of UAM
should also be consistent with procedures contained in the EPA
``Guideline for Regulatory Application of the Urban Airshed Model''
(July 1991). Thus, episode selection for the section 182(f)
demonstration should be consistent with the UAM guidance for SIP
attainment demonstrations.
The EPA believes these analyses are appropriate to determine, in a
directional manner, whether or not NOX reductions are
expected to be beneficial to the air quality in the area/region. These
analyses described in the EPA's December 1993 guidance may be less
precise than an attainment demonstration required under section 182(c).
As discussed in the proposed rule, the EPA believes that the State's
UAM demonstration together with the ambient air quality data showing
that the area is attaining the ozone standard support the granting of
an exemption from the NOX requirements of section 182(f) of
the Act.
Although many ozone nonattainment areas used photochemical grid
modeling, required by the Act for their attainment demonstrations, to
apply for a NOX exemption, the Act did not require marginal
areas like Lake Charles to perform such modeling for the purpose of an
attainment demonstration. Thus, where such an area can make an adequate
showing of the effects of NOX reductions with respect to
attainment through alternative means that are otherwise consistent with
relevant guidance, the EPA could approve the area's demonstration.
The Louisiana Department of Environmental Quality (LDEQ) submitted
the results of a photochemical grid modeling exercise that was carried
out, in conjunction with Lake Charles' attainment efforts, to determine
if the area was the object of ozone and precursor transport. The EPA
acknowledges that the modeling performed for this exercise does not
precisely replicate the procedures EPA guidance suggests be used to
support a 182(f) exemption petition. Nonetheless, the EPA believes the
modeling analysis that was performed by LDEQ, combined with the area's
clean air data, is comprehensive enough to determine that the area
merits an exemption.
Comment: Commenters argued that the Act does not authorize delaying
implementation of NOX controls if attainment modeling is not
complete.
Response: The EPA believes the modeling analyses submitted are
appropriate to determine, in a directional manner, whether
NOX reductions are expected to be beneficial with respect to
the air quality in the area/region. Furthermore, subsequent
[[Page 29076]]
monitoring data indicate the area has come into attainment, obviating
NOX controls to reach attainment.
Comment: One commenter stated that the EPA must rely on the recent
National Academy of Sciences (NAS) report in its review of
NOX waivers. The commenter pointed out that the NAS report
found that to reduce transported ozone NOX reductions are
needed.
Response: The NAS report and the EPA's companion report both
support the conclusion that, as a general matter for ozone
nonattainment areas across the country, NOX reductions in
addition to VOC reductions will be needed to achieve attainment. This
general conclusion, however, must be assessed in the context of the
more detailed analysis provided in those same reports. For example, the
NAS report notes that NOX reductions can have either a
beneficial or detrimental effect on ozone concentrations, depending on
the locations and emission rates of VOC and NOX sources in a
region. The effect of NOX reductions depends on the local
VOC/NOX ratio and a variety of other factors. In its report
issued pursuant to section 185B of the Act, the EPA stated that
``[a]pplication of gridded photochemical models on a case by case basis
is required to determine the efficacy of NOX controls,
because the ozone response to precursor reductions is area specific.''
The analyses performed in the Lake Charles area demonstrate no
reduction in ozone concentrations as a result of NOX control
in the modeling domain. Based on these modeling results, the area meets
the test under section 182(f)(1)(A) of the Act required to support a
waiver from the NOX requirements of section 182(f). The
effect that NOX controls in the Lake Charles area may have
on ozone levels in the eastern U.S. will be addressed in the OTAG
process. Again, the EPA notes that the modeling and subsequent ambient
data support the conclusion that NOX controls are not
necessary for attainment.
Comment: The commenter stated that NOX emission
reductions will not only reduce transported ozone, but will also
improve visibility, especially in downwind Class I areas.
Response: The NOX exemption test Louisiana is relying on
(pursuant to section 182(f)(1)(A)) requires an assessment of only the
contribution of NOX emissions reductions toward ozone
attainment.
Comment: One commenter argued that the EPA Administrator has an
obligation, under section 110(a)(2)(D), to prohibit any activity in a
State which will contribute significantly to nonattainment in, or
interfere with maintenance by, any other State. To this end, a
``superregional'' NOX strategy should be adopted before the
Administrator grants any section 182(f) NOX exemption or, at
the very least, NOX exemptions should be restricted to
expire if the OTAG and the EPA are unsuccessful in completing the
requirements outlined in the EPA's March 2, 1995, attainment guidance
document.
Response: As discussed earlier in the response concerning transport
to downwind areas, the EPA intends to use its authority under section
110(a)(2)(D) to require a State to reduce NOX emissions from
stationary and/or mobile sources where there is evidence, such as
photochemical grid modeling, showing that the NOX emissions
would contribute significantly to nonattainment in, or interfere with
maintenance by, any other State or in another nonattainment area within
the same State. This action would be independent of any action taken by
EPA on a NOX exemption request under section 182(f). In
reference to the latter part of the comment, the EPA has granted all
NOX waivers on a contingent basis.
Comment: One commenter contended that the monitors which observed
the highest ozone concentrations in Calcasieu Parish ceased operating
in 1992, leaving an ozone monitoring network which does not appear to
monitor the area of the highest concentration.
Response: As the commenter points out, the Lake Charles monitoring
network underwent changes in 1992, when the State was obligated to move
two monitors. When the Westlake monitor was originally established over
10 years ago, the site required improvement in order to marginally meet
the siting criteria (see 40 CFR part 58, Appendix E titled Probe Siting
Criteria for Ambient Air Quality Monitoring--Ozone). After reviewing
the Westlake monitoring site in 1991 and reconsidering site conditions,
LDEQ and the EPA agreed that this monitoring site should be relocated.
The Westlake monitoring site was subsequently relocated in September
1992 to its present location on John Stine Road. The Vinton monitor was
moved in 1992 because an adequate land lease could not be obtained.
This monitor was relocated to its present location on Paul Bellow Road.
Both sites meet the criteria for establishment of monitoring sites. The
current monitoring network meets EPA-specified regulatory requirements,
and adequately reflects air quality in the nonattainment area.
Comment: A commenter stated that the EPA did not consider the
effects of the prolonged regional economic recession particularly
affecting the Lake Charles, Louisiana area. The commenter alleged that
reduced economic activity in Lake Charles from 1993 to 1995 likely
resulted in temporary reductions in ozone and ozone precursor emissions
from sources in Calcasieu Parish. They further asserted that as the
regional economic conditions improve, there will likely be a return of
ozone exceedances and violations similar to those observed in 1990-
1992.
Response: The EPA does not agree with the comment that states
seeking waivers of NOX provisions are required to estimate
and model what emissions might have been had economic conditions been
more favorable. The State followed established procedures and EPA
policy regarding the development of an emissions inventory for modeling
purposes. The EPA approved the Lake Charles emissions inventory at 60
FR 13908 on March 15, 1995. As stated in the proposed rule, if the EPA
later determines through subsequent analysis, such as through
photochemical grid analysis that NOX reductions would be
beneficial in Lake Charles, the area would be removed from exempt
status and would be required to adopt the NOX provisions of
the NSR and conformity rules except to the extent that NOX
reductions are shown to be ``excess reductions.''
Comment: The commenter contended that the EPA omits any comment on
NOX emissions in proximity to the oxygen depleted ``dead
zone'' in the Gulf of Mexico. Further, the commenter asked why the EPA
is permitting atmospheric nitrogen deposition from NOX
emissions. The commenter alleged that NOX emissions from
Calcasieu Parish will need to be reduced to mitigate nitrogen
deposition damage in other areas, including Class I areas.
Response: The EPA does not agree with this comment. No Class I
areas are known to be affected by NOX emissions in Lake
Charles. In addition, the requirements imposed by section 182 of the
Act are to bring about attainment of the ozone standard in ozone
nonattainment areas, and are independent of other requirements and
controls under the Act, and any other applicable statutes that may
address nitrogen deposition damage. The EPA's NOX waiver
policy was developed to prevent the imposition of requirements of
section 182 that do not contribute to that attainment. The other
beneficial affects those requirements might have on visibility are not
grounds to maintain or waive section 182 requirements.
[[Page 29077]]
The EPA notes that the Breton National Wildlife refuge, the nearest
Class I area to the Lake Charles nonattainment area, is approximately
394 kilometers from the nonattainment area and over 300 kilometers from
the modeling domain used to develop the NOX waiver. Since
Lake Charles is not now considered a transport area for ozone or ozone
precursors, the State is not required to evaluate the effect of a
NOX waiver on regional haze, adverse impact on visibility
(unless part of an established integral vista), or ozone attainment, in
the Refuge.
To address the substance of the comment, the EPA consulted the
Department of Interior's (DOI) officials in charge of air quality and
visibility in Breton National Wildlife Refuge. The DOI has no evidence
that NOX sources in Calcasieu Parish are upwind of or are
affecting air quality in this Class I protected area. The EPA believes
there is a very small probability that sources in the Parish could be
affecting this Class I area. The meteorological and air quality
modeling provided in the petition indicate no potential for transport
from the Lake Charles area to the Refuge. As evidence, air flow
patterns from the model indicate that typical wind directions are
northeasterly and southeasterly, clearly not in the direction of the
protected area. The DOI concurred with this assessment. It should be
noted that if this Class I area were within 100 kilometers of the
Calcasieu nonattainment area, new pollution sources within the
nonattainment area would be subject to different requirements under the
nonattainment new source review program or the prevention of
significant deterioration program, to prevent deterioration of air
quality in the protected area.
Finally, at 61 FR 29719 on June 12, 1996, the EPA published an
Advance Notice of Proposed Rulemaking, in which the EPA informed the
public that the EPA was combining the timing for its decision to retain
or revise the current standards for particulate matter and ozone. The
document also announced the EPA's intention to develop an integrated
strategy for implementation of potential new ozone and particulate
matter standards, and the regional haze program. The EPA will be
accepting comments on the integration of control requirements for ozone
precursors and gaseous emissions that contribute to the formation of
fine particulate. The EPA invites the commenter to provide their
comments to the EPA pursuant to the proposal of these new standards in
November of 1996.
III. Effective Date
The EPA has opted to make this regulation effective May 27, 1997 to
minimize delay by the EPA. As noted above, section 182(f)(3) provides
for EPA action on NOX exemption requests within six months
of receipt, and the State originally requested the waiver over two
years ago. Under the APA, 5 U.S.C. 553(d)(1), the EPA is authorized to
establish an effective date for a substantive rule that is less than
thirty days after publication if the rule ``relieves a restriction.''
The approval of the section 182(f) exemption for the Lake Charles ozone
nonattainment area is a substantive rule that relieves the restrictions
associated with the Act's title I requirements to control
NOX emissions. The EPA is also making this action effective
as soon as possible to expedite an overdue action. Hence, this action
is effective on May 27, 1997.
IV. Final Action
Although adverse comments were received, the EPA does not find
these comments of sufficient merit to alter its proposed action on this
NOX exemption request. Therefore, in this action, the EPA
approves the 182(f) NOX exemption petition submitted by the
State of Louisiana for the Lake Charles ozone nonattainment area.
Approval of the exemption waives the Federal requirements for
NOX NSR, NOX transportation conformity, and
NOX general conformity applicable to the Lake Charles ozone
nonattainment area.
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), the EPA would rescind a NOX
exemption in cases where NOX reductions were later found to
be beneficial in the area's attainment plan. That is, a modeling based
exemption would last for only as long as the area's modeling continued
to demonstrate attainment without the additional NOX
reductions required by section 182(f). Similarly, if an area that
received an exemption based on clean air quality data which shows that
the area is attaining the ozone standard experiences a violation prior
to redesignation of the area to attainment, the exemption would no
longer be applicable.
If the EPA later determines, because of an ozone violation or based
on new photochemical grid modeling, that NOX reductions
would be beneficial in Lake Charles, the area would be removed from
exempt status and would be required to adopt the applicable
NOX provisions of the NSR and conformity rules except to the
extent that NOX reductions are shown to be ``excess
reductions.'' In the rulemaking action which removes the exempt status,
the EPA would provide specific information regarding the reapplication
of the NSR rules and the conformity rules.
V. Regulatory Action
The EPA is issuing final approval of the request for a petition
from the State of Louisiana requesting that the Lake Charles marginal
ozone nonattainment area be exempt from applicable NOX
control requirements. The section 182(f) NOX requirement
from which the area will be exempt is NOX NSR. In addition,
approval of the section 182(f) petition would remove the NOX
general conformity provisions and the NOX build/no build
provisions of the transportation conformity rule.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
VI Administrative Requirements
A. Executive Order (E.O.) 12866
This action has been classified as a Table I action for signature
by the 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 (OMB) has exempted
this regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
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. See 5 U.S.C. 603 and
604. Alternatively, the EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
The SIP approvals under section 110 and subchapter I, part D of the
Act do not create any new requirements but simply approve requirements
that the State is already imposing. Therefore,
[[Page 29078]]
because the Federal SIP approval does not impose any new requirements,
I certify that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-State
relationship under the Act, preparation of a flexibility analysis would
constitute Federal inquiry into the economic reasonableness of State
action. The Act forbids the EPA to base its actions concerning SIPs on
such grounds. See Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66
(1976); 42 U.S.C. 7410(a)(2).
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in estimated costs to State, local, or
tribal governments in the aggregate; or to the private sector, of $100
million or more. Under section 205, the EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires the EPA to establish a plan for informing and advising any
small governments that may be significantly or uniquely impacted by the
rule.
The EPA's final action relieves requirements otherwise imposed
under the Act and, hence, does not impose any federal intergovernmental
mandates, 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. Since this
action will not significantly impact any small governments, the EPA is
not required to establish a plan pursuant to section 203.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. section 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, the EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of this rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. section 804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by July 28, 1997. 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).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Oxides of
nitrogen, Incorporation by reference, Intergovernmental relations,
Ozone.
Dated: May 22, 1997.
Carol M. Browner,
Administrator.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart T--Louisiana
2. Section 52.992 is amended by adding paragraph (d) to read as
follows:
Sec. 52.992 Area-wide nitrogen oxides (NOX) exemptions.
* * * * *
(d) The LDEQ submitted to the EPA on October 28, 1994, a petition
requesting that the Lake Charles marginal ozone nonattainment area be
exempted from the NOX control requirements of the Act. The
Lake Charles nonattainment area consists of Calcasieu Parish. The
exemption request was based on photochemical grid modeling which shows
that reductions in NOX would not contribute to attainment in
the nonattainment area. On May 27, 1997, the EPA approved the State's
request for an area-wide exemption from the following requirements:
NOX new source review, NOX general conformity,
and NOX transportation conformity requirements. The waiver
was granted on the basis of modeling, and ambient air quality data
demonstrating the area has attained the ozone NAAQS.
[FR Doc. 97-14100 Filed 5-28-97; 8:45 am]
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