[Federal Register Volume 60, Number 85 (Wednesday, May 3, 1995)]
[Rules and Regulations]
[Pages 21713-21717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10826]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[KY-80-1-6943; FRL-5200-8]
Control Strategy: Ozone (O3); Kentucky
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is approving an exemption request from the oxides of
nitrogen (NOX) reasonably available control technology (RACT)
requirement of the Clean Air Act as amended in 1990 (CAA) for the
Kentucky portion of the Huntington-Ashland, moderate ozone (O3)
nonattainment area. The exemption request, submitted by the
Commonwealth of Kentucky through the Department of Environmental
Protection, is based upon the most recent three years of ambient air
monitoring data, which demonstrate that additional reductions of
NOX would not contribute to the attainment of the National Ambient
Air Quality Standard (NAAQS) for O3 in the area. The CAA requires
states with designated nonattainment areas of the NAAQS for O3,
and classified as moderate nonattainment or above, to adopt RACT rules
for major stationary sources of NOX. The CAA provides further that
the NOX requirements do not apply to these areas outside an
O3 transport region if EPA determines that additional reductions
of NOX would not [[Page 21714]] contribute to attainment of the
NAAQS for O3 in the area.
EFFECTIVE DATE: This action will be effective June 2, 1995.
ADDRESSES: A copy of the exemption request is available for inspection
at the following location (it is recommended that you contact Kimberly
Bingham at (404) 347-3555 extension 4195 before visiting the Region 4
office):
United States Environmental Protection Agency, Air, Pesticides, and
Toxics Management Division, Air Programs Branch, Regulatory Planning
and Development Section, Stationary Source Planning Unit, 345 Courtland
Street NE., Atlanta, Georgia 30365.
Department for Environmental Protection Natural, Resources and
Environmental Protection Cabinet, 803 Schenkel Lane, Frankfort,
Kentucky 40601.
FOR FURTHER INFORMATION CONTACT: Kimberly Bingham, Stationary Source
Planning Unit, Regulatory Planning and Development Section, Air
Programs Branch, Air Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, 345 Courtland Street NE., Atlanta,
Georgia 30365.
SUPPLEMENTARY INFORMATION: The air quality planning requirements for
the reduction of NOX emissions are set out in section 182(f) of
the CAA. Section 182(f) of the CAA requires states with areas
designated nonattainment for O3 and classified as moderate or
above to impose the same control requirements for major stationary
sources of NOX as apply to major stationary sources of volatile
organic compounds (VOCs). Section 182(f) provides further that these
NOX requirements do not apply to areas outside an O3
transport region if EPA determines that additional reductions of
NOX would not contribute to attainment in such areas. In an area
that did not implement the section 182(f) NOX requirements, but
did attain the O3 standard as demonstrated by ambient air
monitoring data (consistent with 40 CFR part 58 and recorded in the
EPA's--Aerometric Information Retrieval system (AIRS)), it is clear
that the additional NOX reductions required by section 182(f)
would not contribute to attainment of the NAAQS.
The criteria established for the evaluation of an exemption request
from the section 182(f) requirements are set forth in an EPA memorandum
from John S. Seitz, Director, Office of Air Quality Planning and
Standards, dated May 27, 1994, entitled ``Section 182(f) Nitrogen
Oxides (NOX) Exemptions--Revised Process and Criteria,'' and an
EPA guidance document entitled ``Guidelines for Determining the
Applicability of Nitrogen Oxides Requirements Under Section 182(f),''
dated December 1993, from EPA, Office of Air Quality Planning and
Standards, Air Quality Management Division.
On November 12, 1993, the Commonwealth of Kentucky submitted to EPA
Region 4 a request to redesignate the Kentucky portion of the
Huntington-Ashland moderate O3 nonattainment area to attainment.
The redesignation request is currently under review and will be
addressed in a separate rulemaking. On August 16, 1994, the
Commonwealth requested that the Kentucky portion of the Huntington-
Ashland area be exempt from the NOX RACT requirement in section
182(f) of the CAA. The 182(f) exemption also relieves the area of all
NOX requirements of the CAA such as New Source Review, General
Conformity, and Inspection/Maintenance. The exemption request is based
upon ambient air monitoring data from 1991, 1992, and 1993, which
demonstrate that the NAAQS for O3 has been attained in the area
without additional reductions of NOX (a violation of the ozone
NAAQS occurs when the average number of exceedances for any O3
monitoring site in a three year period is greater than 1.0).
Only one O3 exceedance was recorded in the Huntington-Ashland
area for the period from 1991 to 1993: Monitor 21-019-0015--0.129ppm
(1993). Thus, there has been no violation of the NAAQS in the area
during this period and the area has maintained the standard through
1994.
EPA has reviewed the ambient air monitoring data for O3
(consistent with the requirements contained in 40 CFR part 58 and
recorded in AIRS) submitted by the Commonwealth of Kentucky in support
of the exemption request and has determined that a violation of the
O3 NAAQS has not occurred in the Huntington-Ashland, Kentucky
portion area for the relevant three year period. Because the Kentucky
portion of the Huntington-Ashland area is meeting the O3 NAAQS,
this exemption request for the area meets the applicable requirements
contained in the EPA policy and guidance documents referenced above.
Continuation of the section 182(f) exemption granted herein is
contingent upon continued monitoring and continued maintenance of the
O3 NAAQS for the entire Huntington-Ashland area. If a violation of
the O3 NAAQS is monitored in the Kentucky portion of the
Huntington-Ashland area, EPA will provide notice in the Federal
Register. A determination that the NOX exemption no longer applies
would mean that the NOX RACT provision (see 58 FR 63214 and 58 FR
62188) would immediately be applicable to the affected area. Although
the NOX RACT requirements would be applicable, some reasonable
period of notice is necessary to provide major stationary sources
subject to the RACT requirements time to purchase, install, and operate
any required controls. Accordingly, the Commonwealth may provide
sources a reasonable time period to meet the RACT emission limits after
the EPA determination that NOX RACT requirements are necessary.
EPA expects the time period to be as expeditious as practicable, but in
no case longer than 24 months.
The EPA proposed approval of the Commonwealth of Kentucky's request
for an exemption request from NOX and RACT requirements of the CAA
as amended in 1990 (60 FR 5881). Comments were received supporting the
exemption request. However, the National Resources Defense Council
(NRDC), Sierra Defense Club, and EDF submitted adverse comments to Mary
Nichols on August 24, 1994, addressing all Federal Register notices
proposing to approve section 182(f) NOX exemption requests. The
EPA has responded to the adverse comments by issue as set forth below.
NRDC Comment 1
Certain 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.
EPA Response
Section 182(f) contains very few details regarding the
administrative [[Page 21715]] 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 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 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).
Section 182(f)(1) appears to contemplate that exemption requests
submitted under these paragraphs are limited to States, since States
are the entities authorized under the Act to submit plans or plan
revisions. By contrast, section 182(f)(3) provides that ``person[s]''
may petition for a NOX determination ``at any time'' after the
ozone precursor study required under section 185B of the Act is
finalized, and gives EPA a limit of 6 months after filing to grant or
deny such petitions. Since individuals may submit petitions under
paragraph (3) ``at any time'' this must include times when there is no
plan revision from the State pending at EPA. The specific timeframe for
EPA action established in paragraph (3) is substantially shorter than
the timeframe usually required for States to develop and for EPA to
take action on revisions to a SIP. These differences strongly suggest
that Congress intended the process for acting on personal petitions to
be distinct--and more expeditious--from the plan-revision process
intended under paragraph (1). Thus, EPA believes that paragraph (3)'s
reference to paragraph (1) encompasses only the substantive tests in
paragraph (1) [and, by extension, paragraph (2)], not the requirement
in paragraph (1) for EPA to grant exemptions only when acting on plan
revisions.
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 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 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 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 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 EPA's final conformity regulations, and EPA remains bound by
their existing terms.
NRDC Comment 2
Three years of ``clean'' data fail to demonstrate that NOX
reductions would not contribute to attainment. EPA's policy erroneously
equates the absence of a violation for one three-year period with
``attainment.''
EPA 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 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) NO
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) NO 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).
NRDC Comment 3
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, EPA has acknowledged the need to amend a
drafting error in the existing transportation conformity rules to
[[Page 21716]] 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.
EPA Response
With respect to conformity, EPA's conformity rules, 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 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
exemptions were submitted pursuant to section 182(f)(3), and 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.
NRDC Comment 4
The CAA does not authorize any waiver of the NOX reduction
requirements until conclusive evidence exists that such reductions are
counter-productive.
EPA 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 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, 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.
Pollution Probe (Ontario 9-27-94)
Air Quality Comment
Several commenters stated that the air quality monitoring data
alone does not support this exemption proposal. The air quality levels
are below USEPA's definition of an exeedance of the ozone NAAQS at
0.125 ppm, but are greater than the ozone NAAQS of 0.120 ppm.
EPA Response
For the reasons provided below, EPA does not agree with the
commenter's conclusion. As stated in 40 CFR 50.9, the ozone ``standard
is attained when the expected number of days per calendar year with
maximum hourly average concentrations above 0.12 parts per million (235
g/m3) is equal to or less than 1, as determined by
Appendix H.'' Appendix H references EPA's ``Guideline for
Interpretation of Ozone Air Quality Standards'' (EPA-450/4-79-003,
January 1979), which notes that the stated level of the standard is
taken as defining the number of significant figures to be used in
comparison with [[Page 21717]] the standard. For example, a standard
level of 0.12 ppm means that measurements are to be rounded to two
decimal places (0.005 rounds up to 0.01). Thus, 0.125 ppm is the
smallest concentration value in excess of the level of the ozone
standard.
Final Action
EPA is approving Kentucky's request to exempt the Kentucky portion
of the Huntington-Ashland area moderate O3 nonattainment area from
the section 182(f) NOX RACT requirement. This approval is based
upon the evidence provided by Kentucky and the Commonwealth's
compliance with the requirements outlined in the applicable EPA
guidance. If a violation of the O3 NAAQS occurs in the Kentucky
portion of the Huntington-Ashland area, the exemption from the NOX
RACT requirement of section 182(f) of the CAA in the applicable area
shall no longer apply. This action will be effective June 2, 1995.
Under section 307(b)(1) of the CAA, 42 U.S.C. 7607(b)(1), petitions
for judicial review of this action must be filed in the United States
Court of Appeals for the appropriate circuit by July 3, 1995. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for 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) of the CAA, 42
U.S.C. 7607(b)(2)).
The OMB has exempted these actions from review under Executive
Order 12866.
This action is not a SIP revision and is not subject to the
requirements of section 110 of the CAA. The authority to approve or
disapprove exemptions from NOX requirements under section 182 of
the CAA was delegated to the Regional Administrator from the
Administrator in a memo dated July 6, 1994, from Jonathan Cannon,
Assistant Administrator, to the Administrator, titled, ``Proposed
Delegation of Authority: `Exemptions from Nitrogen Oxide Requirements
Under Clean Air Act Section 182(f) and Related Provisions of the
Transportation and General Conformity Rules'--Decision Memorandum.''
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000. This rule approves an exemption from a CAA requirement.
Therefore, I certify that it does not have a significant impact on any
small entities affected.
List of Subjects in 40 CFR Part 52
Air pollution control, Carbon monoxide, Hydrocarbons,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides.
Dated: April 17, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
Part 52, chapter 1, 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 II--Kentucky
2. Section 52.937 is added to read as follows:
Sec. 52.937 Review of new sources and modifications.
(a) Approval--EPA is approving the section 182(f) oxides of
nitrogen (NOX) reasonably available control technology (RACT)
exemption request submitted by the Kentucky Department for
Environmental Protection on August 16, 1994, for the Kentucky portion
of the Huntington-Ashland ozone (O3) moderate nonattainment area.
This approval exempts this area from implementing NOX RACT on
major sources of NOX. If a violation of the O3 NAAQS occurs
in the area, the exemption from the requirement of section 182(f) of
the CAA in the applicable area shall not apply.
(b) [Reserved]
[FR Doc. 95-10826 Filed 5-2-95; 8:45 am]
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