Transportation Conformity; Approval of Petition for Exemption From Nitrogen Oxides Provisions, Transitional Ozone Nonattainment Area, Colorado

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5274-1]

Transportation Conformity; Approval of Petition for Exemption

From Nitrogen Oxides Provisions, Transitional Ozone Nonattainment Area,

Colorado

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a

petition from the Denver Regional Council of Governments (DRCOG)

requesting that the Denver metropolitan area, an ozone nonattainment

area classified as transitional, be exempted from the requirements

regarding the control of oxides of nitrogen (NOX) imposed by the

Federal conformity rules. The initial petition for exemption was

submitted by DRCOG on May 25, 1994. Supporting documentation for the

initial petition was submitted August 1, 1994.

EFFECTIVE DATE: This action is effective as of July 28, 1995.

ADDRESSES: Copies of the documents relevant to these actions are

available for public inspection during normal business hours at the

following location. The interested persons wanting to examine these

documents should make an appointment with the appropriate office at

least 24 hours before the visiting day. U.S. Environmental Protection

Agency, Region 8, Air Quality Branch (8ART-AP), 999 18th Street, Suite

500, Denver, Colorado 80202-2466.

FOR FURTHER INFORMATION CONTACT: Aundrey C. Wilkins, SIP Section (8ART-

AP), Air Programs Branch, United States Environmental Protection

Agency, Region VIII, 999 18th Street, Suite 500, Denver, Colorado,

80202-2466, telephone (303) 294-1379. Fax: 303-293-1229.

SUPPLEMENTARY INFORMATION:

I. Background

Section 182(f) of the Clean Air Act requires States to apply the

same requirements to major stationary sources of NOX as are

applied to major stationary sources of VOC. The new NOX

requirements are reasonably available control technology (RACT) and new

source review (NSR). Section 182(f) also specifies circumstances under

which the NOX requirements would be limited or would not apply.

EPA's general and transportation conformity rules, as well as the

Inspection and Maintenance (I/M) regulations, reference the section

182(f) exemption process as a means for exempting affected areas from

certain NOX conformity requirements. See 58 FR 62197, November 24,

1993, Transportation Conformity; and 58 FR 63240, November 30, 1993,

General Conformity; and 57 FR 52989, I/M.

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. EPA has indicated that in cases where a nonattainment area

is demonstrating attainment with 3 consecutive years of air quality

monitoring data, without having implemented the section 182(f) NOX

provisions, it is clear that this test is met since ``additional

reductions of NOX would not contribute to attainment'' of the

NAAQS in that area.

This interpretation is discussed in a May 27, 1994 memorandum from

John S. Seitz, Director, Office of Air Quality Planning and Standards

(OAQPS), entitled ``Section 182(f) Nitrogen Oxides (NOX)

Exemptions--Revised Process and Criteria.'' This memorandum revised

relevant portions of previously-issued OAQPS guidance dated December,

1993, entitled ``Guideline for Determining the Applicability of

Nitrogen Oxide Requirements under Section 182(f).'' Both documents

address EPA's policy regarding NOX exemptions for areas outside an

ozone transport region that have air quality monitoring data showing

attainment. The Enhanced I/M regulations, the section 182(f) NOX

RACT and NSR requirements and the guidance cited above apply only to

marginal and above ozone nonattainment areas, but not nonclassifiable

ozone nonattainment areas (i.e., submarginal, transitional, and

incomplete/no data). However, a June 17, 1994, EPA document entitled

``Conformity; General Preamble for Exemption from Nitrogen Oxides

Provisions'' (59 FR 31238) (``General Preamble''), among other things,

provides guidance on the exemption of nonclassifiable ozone

nonattainment areas, outside an ozone transport region, from the

conformity rule's NOX requirements based on air quality monitoring

data showing attainment. As a transitional ozone nonattainment area,

the Denver metropolitan area falls within the ``nonclassifiable''

category.

Under the general conformity rule, NOX emissions that are

caused by federal actions that exceed applicable threshold levels are

required to demonstrate conformity to the applicable SIP. The

transportation

[[Page 40287]]

conformity rule requires regional emissions analysis of motor vehicle

NOX emissions for ozone nonattainment and maintenance areas in

order to determine the conformity of transportation plans and programs

to implementation plan requirements. This analysis must demonstrate

that the NOX emissions which would result from the transportation

system if the proposed transportation plan were implemented are within

the total allowable level of NOX emissions from highway and

transit motor vehicles (``the emission 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 the 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 previous applicable transportation

plan and program were implemented. Furthermore, the regional emissions

analysis must show that emissions from the transportation system, if

the transportation plan or program were implemented, would be lower

than 1990 levels.

With respect to the NOX requirements of the conformity rules,

DRCOG submitted a NOX exemption petition on May 25, 1994 and

submitted supporting documentation via a letter dated August 1, 1994.

Ambient air quality data provided with the DRCOG petition showed no

violations of the ozone NAAQS during the three-year period from 1991

through 1993. Further, the Colorado Air Pollution Control Division

(APCD) provided additional air quality data for the same time period

supporting DRCOG's position that there were no violations.

On March 23, 1995, EPA announced its proposed approval of the

NOX exemption request for the nonclassifiable ozone nonattainment

area of the Denver metropolitan area (56 FR 15269). In that proposed

rulemaking action, EPA described in detail its rationale for approving

this NOX exemption request, considering the specific factual

issues presented. Rather than repeating that entire discussion in this

document, it is incorporated by reference here. Thus, the public should

review the notice of proposed rulemaking for relevant background on

this final rulemaking action.

II. Response to Comments

The EPA requested public comments on all aspects of the proposed

action to approve the section 182(f) petition for the Denver

metropolitan area. The EPA received six letters of support.

The EPA received four adverse comment letters and one letter

requesting a clarification. One of the adverse letters was signed by

three environmental groups and contained comments objecting to the

EPA's general policy on section 182(f) exemptions. This group of three

requested that their letter be included in each EPA rulemaking action

for section 182(f) petitions. One of the four adverse comment letters

was received on August 5, 1994, prior to publication of the EPA

proposed approval rulemaking. EPA also received one letter that was not

adverse but asked that the impact of granting an ozone NOX

exemption be made clearer. EPA is responding to all of these comments

in the final rulemaking.

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)(3)(A)(iii), the CAA's conformity provisions.

EPA Response

Section 182(f) contains very few details regarding the

administrative procedure for acting on NOX exemption requests. The

absence of specific guidelines by Congress leaves EPA with discretion

to establish reasonable procedures, consistent with the requirements of

the 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]''

1 may petition for a NOX determination ``at any time'' after

the ozone precursor study required under section 185B of the Act is

finalized,2 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.

\1\ Section 302(e) of the Act defines the term ``person'' to

include States.

\2\ The final section 185B report was issued July 30, 1993.

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In regard to the comment concerning the appropriate Act authority

for granting transportation-related NOX waivers, the EPA agrees,

with certain exceptions, that section 182(b)(1) is the appropriate

authority under the Act for waiving the transportation conformity

rule's NOX ``build/no build'' and ``less-than-1990'' tests, and is

in the process of amending the rule to be consistent with the statute.

However, the EPA believes that this authority is only applicable with

respect to those areas that are subject to section 182(b)(1).

[[Page 40288]]

Marginal and below ozone nonattainment areas (which includes

nonclassifiable areas like Denver) are not subject to section

176(c)(3)(A)(iii) because they are not subject to section 182(b)(1).

These areas, however, are still subject to the requirements of section

176(c)(1), which sets out criteria that, if met, will assure

consistency with the SIP. The EPA believes it is reasonable and

consistent with the Act to provide relief under section 176(c)(1) from

the interim-period NOX transportation conformity requirements

where the Agency has determined that NOX reductions would not be

beneficial, and to rely, in doing so, on the NOX exemption tests

provided in section 182(f).

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 EPA to determine when NOX requirements should not apply.

Whether under section 182(b)(1) or section 182(f), where 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

RFP or other milestone requirements. Moreover, 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. Consequently, the EPA believes that granting relief

from the NOX conformity requirements of section 176(c)(1) under

section 182(f) in these cases is appropriate.

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) NOX provisions

over that 3-year period. The EPA believes that, in cases where a

nonattainment area is demonstrating attainment with 3 consecutive years

of air quality monitoring data without having implemented the section

182(f) NOX provisions, it is clear that the section 182(f) test is

met since ``additional reductions of [NOX] would not contribute to

attainment'' of the NAAQS in that area. The EPA's approval of the

exemption, if warranted, would be granted on a contingent basis (i.e.,

the exemption would last for only as long as the area's monitoring data

continue to demonstrate attainment).

Comment 3

Some commenters argued that in Denver's case, the EPA has

previously determined that the ozone monitoring network was

insufficient and an ambient air station for the measurement of ozone in

the southwest metropolitan area has not yet been established. Thus,

approval of the NOX exemption is based on an inadequate monitoring

network and the health of Colorado residents will not be protected if a

NOX exemption is granted.

EPA Response

EPA disagrees with the commenter that approval of this NOX

exemption is based upon an inadequate monitoring network and that the

health of Colorado residents will not be protected if an exemption is

granted. Also, as explained below, an ambient air station has been

established in the southwest metropolitan area. No exceedances have

been recorded in 1994 at either the old or newer ozone ambient air

monitoring stations. Although the commenter is correct in saying that

there have been concerns expressed in the past about the monitoring

network by EPA, as the proposal made clear, EPA believes that the major

concerns have been corrected and any remaining concerns do not provide

a significant enough basis to deny the NOX exemption request.

EPA's concerns about the network--conveyed initially to the APCD in

1989--primarily involved the adequacy of the system to monitor the

maximum concentration areas, as required by 40 CFR part 58. Various

actions have since been undertaken by the APCD to address EPA's primary

concerns, and efforts are ongoing to address other, more general

concerns. There are ten sites currently on the Denver ozone ambient

monitoring network. These include two sites added in 1993 in the

northwest portion of the nonattainment area at NREL (National Renewable

Energy Lab site) and South Boulder Creek. One new site was recently

added this year at the Chatfield Reservoir by Campground in the

southwest. There have been no violations recorded by the Denver ozone

ambient air monitoring network during the three years in review (1991,

1992, 1993) nor during 1994. Data in AIRS show only one exceedance (of

127 ppb) during this time, which occurred in 1993 at the South Boulder

Creek site. Despite the lack of violations, additional analyses of the

ozone ambient air monitoring network were undertaken, in part at EPA's

urging, to ensure that future ozone pollution would continue to be

adequately monitored. The commenter expressed concern about the

adequacy of monitoring in the southwest, but the 1993 Denver Summer

Ozone Study determined that higher ozone values--and perhaps the true

maximum concentration sites--were appearing in the northwest, rather

than the southwest, portion of the nonattainment area. And, thus,

priority was given to placing new sites in the northwest. EPA believes

the continued relatively higher values at the NREL and South Boulder

Creek sites, as well as the exceedance at the latter site in 1993, tend

to support that determination. The APCD has committed to continue

reviewing the network and making necessary adjustments as promptly as

feasible. In accord with these commitments, the APCD submitted to EPA

in June, 1994 a summary of an ozone monitoring plan, showing a phased

set of modifications to the network to be accomplished over the next

five years. EPA believes, based on its evaluation of all the available

information and analyses presented in support of this exemption

request, that the data satisfactorily demonstrates that the Denver

area's air quality has been ``clean'' for the requisite three years.

Finally, an added precaution is built into EPA's policy in that

approval of NOX exemptions are granted on a contingent basis

(i.e., the exemption lasts for only as long as the area's monitoring

data continue to demonstrate attainment); if a violation occurs, the

exemption would no longer be applicable.

Comment 4

Comments were received regarding the scope of exemption of areas

from the NOX requirements of the conformity

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rules. Commenters argue that such exemptions waive only the

requirements of section 182(b)(1) to contribute to specific annual

reductions, not the requirement that conformity SIPs contain

information showing the maximum amount of motor vehicle NOX

emissions allowed under the transportation conformity rules and,

similarly, the maximum allowable amounts of any such NOX emissions

under the general conformity rules. The commenters admit that, in prior

guidance, EPA has acknowledged the need to amend a drafting error in

the existing transportation conformity rules to ensure consistency with

motor vehicle emissions budgets for NOX, but want EPA in actions

on NOX exemptions to explicitly affirm this obligation and to also

avoid granting waivers until a budget controlling future NOX

increases is in place.

EPA Response

With respect to conformity, EPA's conformity rules 3 4 provide

a NOX waiver if an area receives a section 182(f) exemption. In

its Federal Register Notice entitled ``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. EPA has begun the

process to do so. 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. The commenter suggests that EPA should delay action on the

NOX exemption request until the rulemaking that amends this

portion of the transportation conformity rule has been finalized.

However, EPA believes that, despite the error in the rule, it has

consistently made it clear that the intent of the statute and of the

rule requires the transportation plan and TIP to demonstrate

consistency with the NOX motor vehicle emissions budget, even

where a waiver has been granted. Moreover, this exemption is being

processed under section 182(f)(3), which requires EPA to act within 6

months on the petition. EPA does not believe it is appropriate to delay

acting on petitions to wait for the rule to be amended, especially

given the short timeframe within which that action is expected to

occur.

\3\ ``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).

\4\ ``Determining Conformity of General Federal Actions to State

or Federal Implementation Plans; Final Rule,'' November 30, 1993 (58

FR 63214).

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Comment 5

Comments were received saying 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.

Comment 6

Commenters raised specific issues about the adequacy of the DRCOG

2015 Interim Regional Transportation Plan to ensure health standards

when considered in relation to approval of the NOX waiver. They

further stated that

[[Page 40290]]

granting an exemption would apparently last for the length of the

transportation plan.

EPA Response

EPA disagrees with the commenters that the NOX exemption would

automatically last for the length of the transportation plan. EPA has

already stated that it is amending the conformity rule to require that

transportation plans and TIPs are consistent with the approved

maintenance plan's and attainment demonstration's NOX motor

vehicle emissions budget, even where a conformity NOX exemption

has been granted. In addition, the exemption is being granted on a

contingent basis (i.e. the exemption will last for only as long as the

area's monitoring data continue to demonstrate attainment).

The specific arguments about what the 2015 Interim Regional

Transportation Plan as a whole will or will not do in relation to the

various air pollutants are beyond the scope of the EPA guidance for

granting ozone NOX exemptions. The effect of a NOX exemption

for Denver is limited solely to the issue of whether it may be exempted

from meeting the applicable ozone NOX requirements of the

transportation and general conformity rules.

Comment 7

One commenter asked that EPA make clear the impact of granting a

NOX exemption from the conformity requirements. The commenter

noted that the proposed rulemaking for this NOX exemption request

stated in Section V: ``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''. The commenter believes that the rule should make it clear

that transportation conformity NOX requirements will continue to

apply in Denver for wintertime NOX emissions because the Denver

metropolitan Nonattainment Area Element of the Colorado State

Implementation Plan for Particulate Matter (PM-10) establishes

emissions budgets for NOX.

EPA Response

EPA agrees with the commenter that the impact of the ozone NOX

exemption is only whether the Denver area may be exempted from meeting

the applicable ozone NOX requirements. Applicable PM-10 NOX

requirements will still have to be met. Specifically, the

transportation conformity rule's NOX requirements will continue to

apply in Denver for wintertime NOX emissions for PM-10. In

addition, EPA has already noted that it intends to amend the

transportation conformity rule to ensure that areas are consistent with

motor vehicle emissions budgets for ozone and PM-10 NOX, even if

an ozone NOX exemption has been granted.

III. Effective Date

This rulemaking is effective as of July 28, 1995. The

Administrative Procedure Act (APA) 5 U.S.C. 553(d)(1), permits the

effective date of a substantive rule to be less than thirty days after

publication of the rule if the rule ``relieves a restriction.'' Since

the approval of the section 182(f) exemptions for the Denver

metropolitan area is a substantive rule that relieves the restrictions

associated with the CAA title I requirements to control NOX

emissions, the NOX exemption approval may be made effective upon

signature by the Regional Administrator.

IV. Final Action

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

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

the exemption request and monitoring data qualifies the Denver

metropolitan area as a ``clean data area''. Therefore, the EPA is

granting Denver's section 182(f) exemption petition. The EPA has

determined that the exemption petition, monitoring data, and other

supporting data, meet the requirements and policy set forth in the

General Preamble for Exemptions from the Transportation and General

Conformity Nitrogen Oxides Provisions. The effect of this NOX

transportation and general conformity exemption is that Denver is

relieved of the conformity rule's requirements for regional analysis

for ozone NOX emissions, as described earlier in section II,

comment 7, of this notice. However, it should be noted that EPA's

approval of the exemption is granted on a contingent basis, i.e., the

exemption will last for only as long as the area's monitoring data

continues to show no violations. 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 the

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 Aerometric Information Retrieval System (AIRS).

Regulatory Flexibility

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 proposal does not create any new requirements. Therefore, I

certify that it does not have a significant impact on any small

entities affected.

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 10, 1995. 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).)

The OMB has exempted these actions from review under Executive

Order 12866.

Unfunded Mandates

Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act

of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995,

EPA must assess whether various actions undertaken in association with

proposed or final regulations include a Federal mandate that may result

in estimated costs of $100 million or more to the private sector, or to

State, local, or tribal governments in the aggregate.

EPA's final action relieves requirements otherwise imposed under

the CAA and, hence does not impose any federal intergovernmental

mandate, as defined in section 101 of the Unfunded Mandates Act. This

action also will not impose a mandate that may result in estimated

costs of $100 million

[[Page 40291]]

or more to either State, local, or tribal governments in the aggregate,

or to the private sector.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone, Particulate matter Reporting and

recordkeeping requirements, Volatile organic compounds.

Dated: July 28, 1995.

Kerringan Clough,

Acting Regional Administrator.

PART 52--[AMENDED]

40 CFR part 52 is amended as follows:

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

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

Subpart G--Colorado

2. Section 52.326 is added to read as follows:

Sec. 52.326 Area-wide nitrogen oxides (NOX) exemptions.

The Denver Regional Council of Governments (DRCOG) submitted a

NOX exemption petition to the EPA on May 25, 1994 and submitted

supporting documentation via a letter dated August 1, 1994. This

petition requested that the Denver metropolitan area, a transitional

ozone nonattainment area, be exempted from the requirement to meet the

NOX provisions of the Federal transportation and general

conformity rule with respect to ozone. 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 3

years prior to the petition. The EPA approved this exemption request on

July 28, 1995.

[FR Doc. 95-19480 Filed 8-7-95; 8:45 am]

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