Transportation Conformity; Approval of Petition for Exemption from Nitrogen Oxides Provisions, Nonclassifiable Ozone Nonattainment Areas, Louisiana

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[LA-20-1-6786; FRL-5144-7]

Transportation Conformity; Approval of Petition for Exemption

from Nitrogen Oxides Provisions, Nonclassifiable Ozone Nonattainment

Areas, Louisiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

requesting that the nonclassifiable ozone nonattainment areas in the

State 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 August 5, 1994.

EFFECTIVE DATE: This action will become effective on March 2, 1995.

ADDRESSES: 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 SW., Washington, DC 20460.

Louisiana Department of Environmental Quality, Air Quality Division,

P.O. Box 82135, Baton Rouge, Louisiana 70884-2135.

Anyone wishing to review this petition at the US 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,

telephone (214) 665-7219.

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). 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 [[Page 5862]] 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.

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 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.

On August 5, 1994, the State of Louisiana submitted a petition to

the EPA requesting that the parishes of Beauregard, Grant, Lafayette,

Lafourche, Jefferson, Orleans, St. Bernard, St. Charles, St. James, and

St. Mary 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 for the abovementioned

nonclassifiable ozone nonattainment areas is pursuant to the General

Preamble for transportation conformity NOX exemptions.

On November 7, 1994, EPA announced its proposed approval of the

NOX exemption request for the nonclassifiable ozone nonattainment

areas in Louisiana (57 FR 55400). 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.

Response to Comments

EPA requested public comments on all aspects of the proposed

rulemaking action (please reference 59 FR 55400). One adverse comment

letter was received from three environmental groups and contained

generic comments objecting to the EPA's general policy on section

182(f) exemptions.

Comment

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.

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 from 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. 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 from and more expeditious

than the plan-revision [[Page 5863]] 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.

\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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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.

Comment

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.''

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

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

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.

Response

With respect to conformity, EPA's conformity rules3,4 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.

\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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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 NOX exemption request and monitoring data qualifies the

nonclassifiable ozone nonattainment areas of Louisiana as ``clean data

areas''. This final action on the State of Louisiana's NOX

exemption petition for its nonclassifiable ozone nonattainment areas is

unchanged from the November 7, 1994, proposed approval action. In

addition, the EPA has determined that the NOX 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 Louisiana's request for exemption

from the NOX build/no-build test of transportation conformity for

the parishes of Beauregard, Grant, Lafayette, Lafourche,

[[Page 5864]] Jefferson, Orleans, St. Bernard, St. Charles, St. James,

and St. Mary in Louisiana. 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

an above mentioned parish has violated the ozone standard, the 182(f)

exemption will be rescinded for that parish. 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 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 April 3, 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).)

Executive Order

The Office of Management and Budget has exempted this action from

review under Executive order 12866.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental regulations, Reporting

and recordkeeping, Ozone, Volatile organic compounds.

Dated: January 13, 1995.

Barbara J. Goetz,

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 T--Louisiana

2. Section 52.992 is added to read as follows:

Sec. 52.992 Area-wide nitrogen oxides exemptions.

(a) The Louisiana Department of Environmental Quality submitted to

the EPA on August 5, 1994, a petition requesting that the

nonclassifiable ozone nonattainment areas in the State of Louisiana be

exempted from the requirement to meet the NOX provisions of the

Federal transportation conformity rule. 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 parishes for which the NOX

exemption was requested include: Beauregard, Grant, Lafayette,

Lafourche, Jefferson, Orleans, St. Bernard, St. Charles, St. James, and

St. Mary. The EPA approved this exemption request on March 2, 1995.

(b) [Reserved].

[FR Doc. 95-2282 Filed 1-30-95; 8:45 am]

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