[Federal Register Volume 59, Number 116 (Friday, June 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14416]
[[Page Unknown]]
[Federal Register: June 17, 1994]
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DEPARTMENT OF ENERGY
[FRL-4998-6]
Conformity; General Preamble for Exemption From Nitrogen Oxides
Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: General preamble for future proposed rulemakings.
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SUMMARY: This General Preamble clarifies how EPA believes that
nonclassifiable (i.e., submarginal, transitional, and incomplete/no
data) ozone nonattainment areas which are outside the Northeast ozone
transport region and have ambient monitoring data demonstrating
attainment of the national ambient air quality standard for ozone may
be exempted from the conformity rules' nitrogen oxides (NOx)
requirements. This notice also references a recent memorandum which
states EPA's preliminary interpretation for such ozone nonattainment
areas which are classified as marginal or above.
Clarification of EPA policy for areas with monitoring data which
demonstrates attainment is particularly important because many areas
already have such data and appear to qualify for exemption from the
conformity NOx requirements.
In order to avoid repetition, this General Preamble describes
guidance on NOx exemptions with respect to the transportation
conformity rule. However, this guidance for transportation conformity
is intended to also apply with respect to general conformity.
This General Preamble explains EPA's policy generally for future
notice-and-comment rulemakings taking action on requests for NOx
exemptions for specific areas. It contains EPA's preliminary
interpretations of relevant provisions of the Clean Air Act and the
conformity rules. The interpretations contained herein are not binding
as a matter of law until final rulemaking action is taken on each
specific area. Opportunity for public comment on NOx exemption
determinations made by EPA will be provided separately for each area
during these individual rulemakings.
FOR FURTHER INFORMATION CONTACT: For issues related to transportation
conformity, Kathryn Sargeant, Emission Control Strategies Branch,
Emission Planning and Strategies Division, U.S. Environmental
Protection Agency, 2565 Plymouth Road, Ann Arbor, MI 48105. (313) 668-
4441. For issues related to redesignation, David Cole, (919) 541-5565,
and for issues related to general conformity and NOx RACT and NSR, Doug
Grano, (919) 541-3292, Ozone/CO Programs Branch (MD-15), Air Quality
Management Division, U.S. Environmental Protection Agency, Research
Triangle Park, North Carolina 27711.
SUPPLEMENTARY INFORMATION:
I. Background
A. Transportation Conformity Rule
The transportation conformity final rule, entitled ``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. or the Federal Transit Act,''
was published in the Federal Register on November 24, 1993 (58 FR
62188). This action was required under section 176(c)(4) of the Clean
Air Act, as amended in 1990.
Conformity to an implementation plan is defined in the Clean Air
Act as conformity to an implementation plan's purpose of eliminating or
reducing the severity and number of violations of the national ambient
air quality standards and achieving expeditious attainment of such
standards. In addition, Federal activities may not cause or contribute
to new violations of air quality standards, exacerbate existing
violations, or interfere with timely attainment or required interim
emission reductions towards attainment. The transportation conformity
final rule establishes the process by which the Federal Highway
Administration and the Federal Transit Administration of the United
States Department of Transportation and metropolitan planning
organizations determine the conformity of highway and transit projects.
Under the rule, conformity applies in nonattainment and maintenance
areas.
The transportation conformity rule requires ozone nonattainment and
maintenance areas to perform a regional emissions analysis of motor
vehicle NOx emissions in order to determine the conformity of
transportation plans and programs. This analysis must demonstrate that
the NOx emissions which would result from the transportation
system if the proposed transportation plan and program were implemented
are within the total allowable level of NOx emissions from highway
and transit motor vehicles (``motor vehicle emissions budget''), as
identified in a submitted or approved attainment demonstration or
maintenance plan.
Until an attainment demonstration or (for nonclassifiable areas) a
maintenance plan is approved by EPA, the regional emissions analysis of
the transportation system must also satisfy the ``build/no-build
test.'' That is, the analysis must demonstrate that emissions from the
transportation system if the proposed transportation plan and program
were implemented would be less than the emissions from the
transportation system if only the previously applicable transportation
plan and program were implemented. Furthermore, the regional emissions
analysis must show that emissions from the transportation system if the
transportation plan and program were implemented would be lower than
1990 levels by any nonzero amount.
The transportation conformity rule as currently written provides
for an exemption from these requirements with respect to NOx if
the Administrator determines under section 182(f) of the Clean Air Act
that additional reductions of NOx would not contribute to
attainment. This exemption is explicitly referred to and is described
in similar language in Sec. 51.394(b)(3)(i) (the ``Applicability''
section of the rule) and in the preamble (58 FR 62197, November 24,
1993). The language is repeated in the provisions of the rule regarding
the motor vehicle emissions budget test (Sec. 51.428(a)(1)(ii)) and the
``build/no-build'' test (Secs. 51.436(e), 51.438(e)), although Clean
Air Act section 182(f) is not specifically mentioned.
Section 182(f) of the Clean Air Act contains requirements for--and
in some cases, exemptions for--major stationary NOx sources in
marginal and above ozone nonattainment areas and in an ozone transport
region. EPA guidance for application of section 182(f) in these areas
is briefly described and referenced in the next section of this
preamble. Because the transportation conformity rule covers all
nonattainment areas--including nonclassifiable ozone nonattainment
areas (i.e., submarginal, transitional, incomplete/no data areas) that
are not necessarily covered under section 182(f)--corresponding
guidance is needed for applying in these nonclassifiable ozone
nonattainment areas the section 182(f) NOx exemption referenced in
the transportation conformity rule. This guidance is described below
(section II, ``EPA Policy'') and is consistent with the existing
guidance that applies to the marginal and above areas outside an ozone
transport region. The substantive test for a NOx exemption is the
same in both sets of areas, but in nonclassifiable ozone nonattainment
areas the effect of a NOx exemption is limited solely to the issue
of whether such areas may be exempted from meeting the NOx
requirements of the transportation conformity rule.
B. General Conformity
On November 30, 1993 (58 FR 63214), EPA published the general
conformity final rule, entitled ``Determining Conformity of General
Federal Actions to State or Federal Implementation Plans.'' This action
was required under section 176(c)(4) of the Clean Air Act, as amended
in 1990.
Like the transportation conformity rule, the general conformity
rule exempts an area from considering NOx emissions if the area
has been exempted under section 182(f) of the Clean Air Act (see
definition of ``precursors of a criteria pollutant,'' 58 FR 63248).
In order to avoid repetition, this General Preamble describes
guidance on NOx exemptions with respect to the transportation
conformity rule. However, this guidance for transportation conformity
is intended to also apply with respect to general conformity.
C. Section 182(f) of the Clean Air Act
Section 182(f) of the Clean Air Act requires states to apply the
reasonably available control technology (RACT) and new source review
(NSR) requirements that apply to major stationary sources of volatile
organic compounds to major stationary sources of NOx as well.
NOX RACT is required in moderate and above ozone areas, as well as
in all areas within an ozone transport region. NOX NSR regulations
are required in marginal and above ozone areas, as well as in all areas
within an ozone transport region.
Clean Air Act section 182(f)(1)(A) states that, for nonattainment
areas not within an ozone transport region (as established under Clean
Air Act section 184), these NOX requirements shall not apply if
the Administrator determines that additional reductions of NOX
would not contribute to attainment of the national ambient air quality
standard (NAAQS) for ozone in the area. Furthermore, for areas within
an ozone transport region, section 182(f)(1)(B) states that these
stationary source NOX requirements shall not apply if additional
NOX reductions would not produce net ozone air quality benefits in
the region.
EPA issued limited guidance on section 182(f) exemptions in a
September 17, 1993 memo from Michael H. Shapiro, Acting Assistant
Administrator for Air and Radiation, to the Regional Air Division
Directors entitled, ``State Implementation Plan (SIP) Requirements for
Areas Submitting Requests for Redesignation to Attainment of the Ozone
and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS)
on or after November 15, 1992.'' EPA issued more extensive guidance in
a December 1993 document entitled, ``Guideline for Determining the
Applicability of Nitrogen Oxide Requirements under section 182(f).''
Most recently, EPA has clarified and, in part, revised its guidance in
a May 27, 1994 memorandum from John S. Seitz, Director of the Office of
Air Quality Planning and Standards, to Regional Air Division Directors,
``Section 182(f) NOX Exemptions--Revised Process and Criteria.''
All of these guidance documents are available by request from the
contacts listed above.
Taken together, these guidance documents state that if an area (not
within an ozone transport region) has attained the ozone standard, as
demonstrated by adequate monitoring data consistent with EPA guidance,
it is clear that additional NOX reductions would not contribute to
attainment. Therefore, such an area would meet the test under section
182(f)(1)(A) for an exemption from NOX NSR and RACT requirements.
II. EPA Policy
A. Transportation Conformity and Section 182(f) Exemptions
The transportation conformity rule states that its NOX
provisions do not apply when the Administrator has determined under
section 182(f) of the Clean Air Act that ``additional reductions of
NOX would not contribute to attainment.'' Although two other
passages of the transportation conformity rule use this language (which
is borrowed from section 182(f)(1)(A)'s test for areas outside an ozone
transport region) without specifically referring to section 182(f), EPA
believes there is no appropriate basis to interpret this identical
language differently under the transportation conformity rule than
under the Clean Air Act. Consequently, EPA believes this common
language should be interpreted similarly for purposes of both section
182(f) and conformity NOX exemptions. Therefore, EPA is providing
guidance which would exempt nonclassifiable ozone nonattainment areas
outside an ozone transport region from the conformity rule's NOX
provisions on the same substantive basis as the applicable section
182(f) test.1
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\1\ As explained in footnote 6 of the May 27, 1994 memorandum
from John Seitz, referenced above, for purposes of the NOX
exemption test, EPA is interpreting the term ``contribute to
attainment'' to mean that the State (or petitioner) need only show
whether additional NOX reductions would contribute to
attainment, not whether such reductions would contribute to
attainment and maintenance. EPA believes that Congress could
reasonably have believed it appropriate to require that States
impose reasonably available control technology (RACT) and new source
review (NSR) requirements on NOX sources for areas in
nonattainment, but that the States could be left to decide for
themselves whether to impose these NOX controls or other
measures for maintenance purposes, even if these controls could
``contribute'' to maintenance. EPA believes this rationale also
applies in the conformity context, where EPA believes it is
reasonable to allow States that have attained the NAAQS to decide
for themselves how best to ensure maintenance of the standard. And,
as explained below, EPA has conditioned the monitoring-based section
182(f) and conformity exemptions on continued monitoring data that
do not show violations of the NAAQS. This will provide an additional
incentive for States to track NOX emissions (and limit such
emissions, where necessary) to ensure that future violations do not
occur.
EPA notes that its conclusion regarding the relevance of
maintenance may well be different for other Clean Air Act provisions
where the test is whether emissions reduction measures are
``necessary'' for attainment, even if maintenance is not explicitly
mentioned. See section 211(c)(4)(C) (allowing States to overcome
federal preemption of State fuel controls where ``necessary'' to
achieve a NAAQS) and section 184(c) (providing for EPA approval of
ozone transport commission recommendations of additional control
measures ``necessary'' to bring any area in the region into
attainment). It may make less sense to disregard maintenance to
disallow more stringent fuel controls under section 211 or to
disapprove additional controls under section 184 where these
measures not only contribute to but are ``necessary'' for
maintenance. The rationale that the State might appropriately retain
discretion to choose other options to ensure maintenance makes less
sense when the specific measures in question are ``necessary.''
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The transportation conformity rule applies to all nonattainment and
maintenance areas, and does not distinguish between nonclassifiable
nonattainment and other nonattainment areas. Consequently, EPA
interprets the transportation conformity rule's reference to the need
for nonattainment areas to obtain a section 182(f) exemption in order
to be relieved of the NOX conformity requirements to include
nonclassifiable ozone nonattainment areas (i.e., submarginal,
transitional, incomplete/no data areas), even though such areas are not
subject to Clean Air Act section 182(f) itself. This means that ozone
nonattainment areas, including nonclassifiable ozone nonattainment
areas, can only be exempted from the NOX provisions of the
transportation conformity rule if EPA determines that the area
satisfies the substantive test required for an areawide section 182(f)
exemption, through a process similar to that required for section
182(f) exemptions which are not related to conformity.
Thus, for nonclassifiable ozone nonattainment areas outside the
Northeast ozone transport region, EPA will consider requests for
determinations that additional NOX reductions would not contribute
to attainment if such areas already have air quality data that
demonstrate attainment of the ozone standard, that are consistent with
40 CFR part 58 requirements, and that are recorded in EPA's Aerometric
Information Retrieval System (AIRS). Once made, this determination
would relieve an area of the transportation conformity rule's NOX
provisions. A more thorough explanation of the conditions and process
for obtaining the 182(f) exemption is given in the May 27, 1994 Seitz
memorandum.
B. Condition on NOX Exemptions for Areas Outside the Ozone
Transport Region With Monitoring Data Demonstrating Attainment
If a NOX transportation conformity exemption request is based
solely on monitoring data demonstrating attainment, EPA's approval of
the exemption, if otherwise warranted, will be granted on a contingent
basis, i.e., the exemption would last for only as long as the area's
monitoring data continues to demonstrate attainment. If subsequently it
is determined that the area has violated the standard, the exemption,
as of the date of the determination, would no longer apply. EPA would
notify the state that the exemption no longer applies, and would also
provide notice to the public in the Federal Register. Existing
transportation plans and TIPs and past conformity determinations will
not be affected by a determination that the NOX exemption no
longer applies, but new conformity determinations would have to observe
the NOX requirements of the conformity rule. The State must
continue to operate an appropriate air quality monitoring network, in
accordance with 40 CFR part 58, to verify the attainment status of the
area. The air quality data relied on for the above determinations must
be consistent with 40 CFR part 58 requirements and other relevant EPA
guidance and recorded in EPA's Aorometric Information Retrieval System
(AIRS).
C. Areas Inside an Ozone Transport Region
Section 182(f) of the Clean Air Act provides a different test for
exempting areas in an ozone transport region from NOX requirements
(see section I.C. of this preamble). In particular, that test requires
a demonstration that shows additional NOX reductions would not
produce net ozone benefits in the transport region as a whole. Since
the requirement for meeting this test is substantially different from
that needed to meet the contribute-to-attainment test in section
182(f)(1)(A), and since the language in the conformity rule clearly
does not reflect the language of the test provided for areas in an
ozone transport region, the determination of how such areas would
qualify for an exemption from the rule's NOX requirements merits
more consideration before EPA can issue appropriate guidance. Today's
guidance therefore applies only to NOX exemptions for areas
outside the Ozone Transport Region.
As noted previously, requests for conformity NOX exemptions
must consider the nonattainment area as a whole. With respect to
transportation conformity, NOX exemptions will not be granted for
portions of nonattainment areas. Therefore, nonattainment areas with
portions both inside and outside the Ozone Transport Region will be
treated for purposes of such exemption requests as areas inside the
Ozone Transport Region, and for the present time, will not be eligible
for an exemption based on monitoring data as described in this notice.
EPA will give further consideration to areas in the Ozone Transport
Region, and if EPA does propose to exempt some of these areas, they
will be addressed in state-specific rulemaking notices unless another
general preamble providing guidance for such areas is published first.
III. Process for Receiving a NOX Exemption Based on Monitoring
Data for Nonclassifiable Areas
EPA believes that section 182(f) sets up two separate procedures by
which EPA may act on NOX exemption requests. Subsections 182(f)
(1) and (2) direct that action on NOX exemption determination
requests should take place ``when [EPA] approves a plan or plan
revision.'' This language 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, subsection 182(f)(3) provides that
``person[s]2'' may petition for a NOX determination ``at any
time'' after the ozone precursor study required under section 185B of
the Act is finalized,\3\ and gives EPA a limit of six months after
filing to grant or deny such petitions. Although subsection 182(f)(3)
references section 182(f)(1), EPA believes that paragraph (f)(3)'s
reference to paragraph (f)(1) encompasses only the substantive tests in
paragraph (f)(1) (and, by extension, paragraph (f)(2)), not the
requirement in paragraph (f)(1) for EPA to grant exemptions only when
acting on plan revisions.
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\2\Section 302(e) of the Act defines the term ``person'' to
include states.
\3\The final section 185B report was issued July 30, 1993.
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Accordingly, petitions submitted under subsection 182(f)(3) are not
required to be submitted as state implementation plan (SIP) revisions.
Consequently, the state is not required under the Act to hold a public
hearing in order to petition for an areawide NOX exemption
determination under section 182(f)(3) (see Clean Air Act sections
110(a) (1) and (2)). For similar reasons, if the state is submitting an
areawide petition under subsection 182(f)(3), it is unnecessary to have
the Governor submit the petition. However, because of the need for
consistency with the AIRS data and the requirements of 40 CFR part 58,
EPA believes that, particularly in cases where the NOX exemption
request (including a request for exemption from the NOX
requirements of the conformity rules) is based on monitoring data, if
such data is contained in a petition submitted by a person other than
the state, the petition should be coordinated with the state air
agency. Lack of endorsement by the state air agency will require more
scrutiny by EPA, and therefore EPA's processing of the petition will
likely take more time.
EPA will grant or deny a petition for an areawide NOX
transportation conformity exemption through a full rulemaking process.
This may involve a direct final rule or a notice of proposed rulemaking
followed by a final rule. Either process allows opportunity for public
comment. For areas which are relying on monitoring data which
demonstrates attainment, the notice and comment will provide
opportunity for comment on the preliminary interpretations contained in
this General Preamble. These rulemakings will also offer opportunity
for comment on the appropriateness of using monitoring data which is
consistent with the requirements in 40 CFR part 58 and consistent with
the data recorded in AIRS as the basis of EPA's approval and rescission
of the contingent NOX exemption. If EPA issues a final rulemaking
concluding that it will use such air quality monitoring data in making
subsequent determination that an area has violated the standard, no
further notice and comment will be required in order to rescind the
NOX exemption in the event that such data subsequently indicates
that a violation has occurred.
EPA is preparing a delegation of authority to Regional
Administrators to make determinations under section 182(f) for areas
which are outside the Ozone Transport Region and which have three years
of monitoring data demonstrating attainment. This delegation would
allow the rulemaking for 182(f) determinations to be conducted by EPA's
regional offices.
IV. Effect of a NOX Transportation Conformity Exemption on
Transportation Planning
This section applies to both classified and nonclassifiable areas.
Once EPA makes a finding under a separate notice which grants a
NOX transportation conformity exemption, an area is relieved of
the transportation conformity rule's requirements for regional analysis
of NOX emissions.
However, EPA plans to amend the transportation conformity rule to
require that once an area's maintenance plan is approved, any
previously approved NOX conformity exemption no longer applies.
The area must then demonstrate as part of its conformity determinations
that the transportation plan and TIP are consistent with the motor
vehicle emissions budget for NOX where such a budget is
established by the maintenance plan. As currently written, none of the
transportation conformity rule's NOX requirements would ever apply
to an area once such an area had received a NOX transportation
conformity exemption.
EPA believes that it is crucial for maintenance areas to
demonstrate consistency with the maintenance plan's motor vehicle
NOX emissions budget because that budget represents the level of
motor vehicle NOX emissions needed for continued maintenance.
However, the maintenance plan's NOX motor vehicle emissions budget
for the purposes of transportation conformity will not necessarily
require annual NOX emission reductions throughout the ten-year
period.
EPA intends to promptly amend the conformity rule as stated above,
so that NOX motor vehicle emissions budgets in maintenance plans
will begin to apply at the time or shortly after those plans are
approved.
V. Administrative Requirements
Regulatory Flexibility Act
Whenever EPA is required by section 553 of the Administrative
Procedures Act or any other law to publish general notice and proposed
rulemaking for any proposed rule, EPA shall propose and make available
for public comment an initial regulatory flexibility analysis.
The regulatory flexibility requirements do not apply for this
General Preamble because it is not a regulatory action in the context
of the Administrative Procedures Act or the Regulatory Flexibility Act.
Dated: June 8, 1994.
Carol M. Browner,
Administrator.
[FR Doc. 94-14416 Filed 6-16-94; 8:45 am]
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