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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-44-1-6797; FRL-5144-8]

Transportation Conformity; Approval of Petition for Exemption

From Nitrogen Oxides Provisions, Victoria County, Texas

AGENCY: 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.

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.

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 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) 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. [[Page 5865]]

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 section 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 the

Federal transportation conformity rule. The section 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

section 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 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.

On August 12, 1994, EPA announced its direct final approval of the

NOX exemption request from the State of Texas for Victoria County.

In that direct final 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, that discussion is incorporated by

reference herein. Thus, the public should review the notice of direct

final rulemaking for relevant background on this final rulemaking

action.

Response to Comments

EPA requested public comments on all aspects of the direct final

rulemaking action (59 FR 41408) and comments were received. Therefore

the direct final rulemaking was withdrawn and comments applicable to

the Victoria County area were considered and are discussed below.

Comment: Certain commenters noted 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 concluded 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

argued 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 Procedures 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

6 months of the petition's submission.

Further, 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 process intended under paragraph (1).

\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 [[Page 5866]] 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 6 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 APA. 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.

However, the commenters want EPA in actions on NOX exemptions to

explicitly affirm this obligation and also to 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 to Federal

requirements, 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 stated 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 exemption request and monitoring data qualifies Victoria County,

Texas, as a ``clean data area''. This final action on the State of

Texas' NOX exemption petition for Victoria County is unchanged

from the August 12, 1994 direct final approval action. 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

section 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 section 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 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 [[Page 5867]] 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, or postpone the effectiveness of this rule. 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 SS--Texas

2. Section 52.2308 is amended by adding paragraph (c) to read as

follows:

Sec. 52.2308 Area-wide nitrogen oxides (NOX) exemptions.

* * * * *

(c) The Texas Natural Resource 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. 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 March 2,

1995.

[FR Doc. 95-2283 Filed 1-30-95; 8:45 am]

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