Transportation Conformity; Approval of Petition for Exemption From Nitrogen Oxides Provisions, Victoria County, TX

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-44-1-6510a, FRL-5027-8]

Transportation Conformity; Approval of Petition for Exemption

From Nitrogen Oxides Provisions, Victoria County, TX

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving a petition from the State of Texas

requesting that Victoria County, an incomplete data ozone nonattainment

area, be exempted from the requirement to perform the oxides of

nitrogen (NOx) portion of the build/no-build test required by the

new Federal transportation conformity rule. This petition for exemption

was submitted on May 4, 1994.

DATES: This action will become effective on October 11, 1994, unless

notice is received by September 12, 1994 that someone wishes to submit

adverse or critical comments. If the effective date is delayed, timely

notice will be published in the Federal Register (FR).

ADDRESSEES: Comments should be mailed to Thomas H. Diggs, Chief, Air

Planning Section (6T-AP), U.S. EPA Region 6, 1445 Ross Avenue, Dallas,

Texas 75202-2733. Copies of the State's petition and other information

relevant to this action are available for inspection during normal

hours at the above location and at the following locations:

U.S. Environmental Protection Agency, Region 6, Air Programs Branch

(6T-A), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

Air and Radiation Docket and Information Center, U.S. Environmental

Protection Agency, 401 M. Street, S.W., Washington, D.C. 20460.

Texas Natural Resource Conservation Commission, Office of Air Quality,

12124 Park 35 Circle, P.O. Box 13087, Austin, Texas 78711-3087.

Anyone wishing to review this petition at the U.S. EPA office is

asked to contact the person below to schedule an appointment 24 hours

in advance.

FOR FURTHER INFORMATION CONTACT: Mr. Mick Cote, Planning Section (6T-

AP), Air Programs Branch, U.S. Environmental Protection Agency, Region

6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 655-

7219.

SUPPLEMENTARY INFORMATION:

Background

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 (CAA) as amended in 1990.

The transportation conformity rule requires each ozone

nonattainment area and maintenance area to perform a regional analysis

of motor vehicle volatile organic compound and NOX emissions from

any planned transportation project. This analysis must demonstrate that

the emissions which would result from the proposed transportation

system if the transportation plan were implemented are within the total

allowable level of emissions described in the motor vehicle emissions

budget.

Until an attainment demonstration or maintenance plan is approved

by the EPA, this emissions analysis must pass the build/no-build test.

This analysis must demonstrate that the emissions from the planned

transportation project, if implemented, would be less than the

emissions without the planned transportation project. Thus, the build/

no-build test is intended to ensure that the transportation plan

contributes to annual emissions reductions consistent with the CAA

until such time as the attainment demonstration or maintenance plan is

approved.

Transportation Conformity and 182(f) Exemptions

On June 17, 1994 (59 FR 31238) the EPA published a national

interpretation of transportation conformity and 182(f) exemptions

entitled ``Transportation Conformity; General Preamble for Exemption

From Nitrogen Oxides Provisions'' (General Preamble). This General

Preamble clarifies and interprets how ozone nonattainment areas

classified as less than marginal, which have air quality monitoring

data demonstrating attainment of the National Ambient Air Quality

Standards (NAAQS) for ozone, may be exempted from certain NOX

requirements.

As discussed in the General Preamble, both the transportation

conformity rule and CAA Section 182(f)(1)(A) state that NOX

requirements shall not apply in nonattainment areas if the

Administrator determines that additional reductions of NOX would

not contribute to attainment of the NAAQS for ozone in the area. The

EPA also issued two guidance documents on 182(f) exemptions. These two

documents, ``State Implementation Plan (SIP) Requirements for Areas

Submitting Requests for Redesignation to Attainment of the Ozone and

Carbon Monoxide (CO) National Ambient Air Quality Standard (NAAQS) on

or after November 15, 1992'' dated September 17, 1993, and ``Guideline

for Determining the Applicability of Nitrogen Oxide Requirements under

Section 182(f)'' dated December, 1993, state that if an area has

attained the ozone standard, additional NOX reductions would not

contribute to attainment.

As explained in the General Preamble, the EPA believes that a

demonstration of attainment made through adequate air quality

monitoring data, consistent with 40 CFR part 58 and recorded in EPA's

Aerometric Information Retrieval System (AIRS), can qualify an area as

a ``clean data area''. Further, the EPA believes these ``clean data

areas'' can request an exemption from the NOX provisions of

transportation conformity. The 182(f) exemption will be conditioned

upon the area's monitoring data continuing to demonstrate attainment

after an exemption is granted. If the EPA determines that an exempted

area has violated the ozone standard, the 182(f) exemption will be

rescinded. Any decision to rescind the NOX exemption would be

based on an evaluation of the air quality data recorded in AIRS. Past

conformity determinations and transportation plans would not be

affected, but new conformity determinations would be subject to the

NOX provisions of the conformity rule.

Analysis of State Submittal

Victoria County, Texas, retained its ozone nonattainment

designation and was classified as an incomplete data area for ozone on

November 6, 1991 (56 FR 56694). The Texas Natural Resource Conservation

Commission has operated an ozone monitor in Victoria County

continuously since May of 1991. No violations of the .12 parts per

million ozone standard have been recorded since that time.

On May 4, 1994, the State of Texas submitted a petition to the EPA

requesting that the Victoria County incomplete data ozone nonattainment

area be exempted from the requirement to perform the NOX portion

of the build/no-build test required by the new transportation

conformity rule. This exemption request is pursuant to the recently

published General Preamble for transportation conformity NOX

exemptions.

The exemption request was based on monitoring data which

demonstrated that the NAAQS for ozone was attained in this area for the

35 months prior to the petition, with the understanding that approval

of the State's request would be contingent upon the collection and

verification of one additional month of data. The required additional

month of verified data was submitted later and, together with the data

submitted with the State's petition, demonstrated attainment of the

NAAQS for 36 consecutive months. Texas submitted its exemption request

prior to the publication of the national interpretation in order to

expedite Victoria County's 1994 highway project funding schedule.

Final Action

The EPA has evaluated the State's exemption request for consistency

with the CAA, EPA regulations, and EPA policy. The EPA believes that

the exemption request and monitoring data qualifies Victoria County,

Texas, as a ``clean data area''. In addition, the EPA has determined

that the exemption request meets the requirements and policy set forth

in the General Preamble for NOX exemptions from the build/no-build

test for transportation conformity, and today is approving Texas'

request for exemption from the NOX build/no-build test of

transportation conformity for Victoria County. The 182(f) exemption

will be conditioned upon the area's monitoring data continuing to

demonstrate attainment after the exemption has been granted. If the EPA

later determines that Victoria County has violated the ozone standard,

the 182(f) exemption will be rescinded. Past conformity determinations

and transportation plans would not be affected, but new conformity

determinations would then be subject to the NOX provisions of the

conformity rule.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in this FR

publication, the EPA is proposing to approve this exemption petition

should adverse comments be received. This action will become effective

on October 11, 1994, unless notice is received by September 12, 1994

that someone wishes to submit adverse or critical comments.

If such notice is received, this action will be withdrawn before

the effective date by publishing two subsequent documents. One document

will withdraw the final action, and another final action will be

published addressing any adverse comments. If no such adverse comments

are received, the public is advised that this action will be effective

on October 11, 1994.

The EPA has reviewed this request for exemption from the NOX

provisions of the Federal transportation conformity rule for

conformance with the provisions of the 1990 Clean Air Act Amendments

enacted on November 15, 1990. The EPA has determined that this action

conforms with those requirements.

Regulatory Process

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities (5 U.S.C. 603 and 604).

Alternatively, under 5 U.S.C. 605(b), the EPA may certify that the rule

will not have a significant impact on a substantial number of small

entities (see 46 FR 8709). Small entities include small businesses,

small not-for-profit enterprises, and governmental entities with

jurisdiction over populations of less than 50,000.

Because an exemption from the Federal transportation conformity

rule 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 CAA,

preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action.

Under section 307(b)(1) of the CAA, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by October 11, 1994. Filing a petition for

reconsideration of this final rule by the Administrator 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).]

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental regulations, Reporting

and recordkeeping, Ozone, and Volatile organic compounds.

Authority: 42 U.S.C. 7401-7671q.

Dated: July 12, 1994.

Joe D. Winkle,

Acting Regional Administrator.

40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart SS--Texas

2. Section 52.2308 is added to read as follows:

Sec. 52.2308 Area-wide nitrogen oxides exemptions.

The Texas Natural Resources Conservation Commission submitted to

the EPA on May 4, 1994, a petition requesting that the Victoria County

incomplete data ozone nonattainment area be exempted from the

requirement to meet the NOX provisions of the Federal

transportation conformity rule (40 CFR part 51, subpart T, and part 93,

subpart A). The exemption request was based on monitoring data which

demonstrated that the National Ambient Air Quality Standard for ozone

had been attained in this area for the 35 months prior to the petition,

with the understanding that approval of the State's request would be

contingent upon the collection of one additional month of data. The

required additional month of verified data was submitted later and,

together with the data submitted with the State's petition,

demonstrated attainment of the NAAQS for 36 consecutive months. The EPA

approved this exemption request on October 11, 1994.

[FR Doc. 94-19343 Filed 8-11-94; 8:45 am]

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