Approval of and Promulgation of Implementation Plans; Louisiana

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[LA-32-7238; FRL-5430-1]

Approval of and Promulgation of Implementation Plans; Louisiana

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving

Louisiana's request to grant an exemption for the Baton Rouge ozone

nonattainment area from the applicable nitrogen oxides (NOX)

transportation conformity requirements. On July 25, 1995, Louisiana

submitted to the EPA a State Implementation Plan (SIP) revision request

for an exemption (under section 182(b)(1) of the Clean Air Act (Act))

from the transportation conformity requirements for NOX for the

Baton Rouge ozone nonattainment area, which is classified as serious.

The State of Louisiana bases its request for Baton Rouge upon a

modeling demonstration that additional NOX reductions would not

contribute to attainment in the nonattainment area.

EFFECTIVE DATE: This final rule will be effective on February 12, 1996.

ADDRESSES: Copies of the SIP revision, public comments and the EPA's

responses are available for inspection at the following address:

U.S. Environmental Protection Agency, Region 6, Multimedia Planning and

Permitting Division, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-

2733.

Louisiana Department of Environmental Quality, H. B. Garlock Building,

7290 Bluebonnet, Baton Rouge, Louisiana 70810.

FOR FURTHER INFORMATION CONTACT: Ms. Jeanne McDaniels or Mr. Quang

Nguyen, U.S. Environmental Protection Agency, Region 6, Air Planning

Section (6PD-L), Multimedia Planning and Permitting Division, 1445 Ross

Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7214.

SUPPLEMENTARY INFORMATION:

I. Background

Clean Air Act section 176(c)(3)(A)(iii) requires, in order to

demonstrate conformity with the applicable SIP, that transportation

plans and transportation improvement programs (TIPs) contribute to

emissions reductions in ozone nonattainment areas during the period

before control strategy SIPs are approved by the EPA. This requirement

is implemented in 40 CFR 51.436 through 51.440 (and 93.122 through

93.124), which establishes the so-called ``build/no-build test.'' This

test requires a demonstration that the ``Action'' scenario

(representing the implementation of the proposed transportation plan/

TIP) will result in lower motor vehicle emissions than the ``Baseline''

scenario (representing the implementation of the current transportation

plan/TIP). In addition, the ``Action'' scenario must result in

emissions lower than 1990 levels.

The November 24, 1993, final transportation conformity rule 1

does not require the ``build/no-build test'' and ``less-than-1990

test'' for NOX as an ozone precursor in ozone nonattainment areas

where the Administrator determines that additional reductions of

NOX would not contribute to attainment of the National Ambient Air

Quality Standard (NAAQS) for ozone. Clean Air Act section

176(c)(3)(A)(iii), which is the conformity provision requiring

contributions to emission reductions before SIPs with emissions budgets

can be approved, specifically references Clean Air Act section

182(b)(1). That section requires submission of State plans that, among

other things, provide for specific annual reductions of volatile

organic compounds (VOC) and NOX emissions ``as necessary'' to

attain the ozone standard by the applicable

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attainment date. Section 182(b)(1) further states that its requirements

do not apply in the case of NOX for those ozone nonattainment

areas for which the EPA determines that additional reductions of

NOX would not contribute to ozone attainment.

\1\ ``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).

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As explained below, the EPA, through an amendment to its

transportation conformity rule, has changed the procedural mechanism

through which a NOX exemption from transportation conformity would

be granted. Instead of a petition under section 182(f), transportation

conformity NOX exemptions for ozone nonattainment areas that are

subject to section 182(b)(1) need to be submitted as SIP revision

requests. The Baton Rouge ozone nonattainment area is classified as

serious and, thus, is subject to section 182(b)(1).

The EPA published, on August 29, 1995, an interim final rule (60 FR

44762) which amended the transportation conformity rule and changed the

statutory authority from section 182(f) to section 182(b)(1) of the Act

for areas that are subject to section 182(b)(1). The interim final rule

was effective immediately upon publication and provides the means for

exempting areas subject to section 182(b)(1) from the NOX

provisions of the transportation conformity rule. In conjunction with

the interim rule, the EPA published a proposal providing for further

amendments to the transportation conformity rule and describing how the

EPA intended to process section 182(b)(1) NOX waivers (60 FR

44790). On November 14, 1995, the EPA published a final rule (60 FR

57179), after completing notice-and-comment rulemaking, that includes

the provisions of the August 29, 1995, interim rule. The November 14,

1995, rule also addresses the NOX budget requirement.

The July 25, 1995, SIP revision request from Louisiana has been

submitted to meet the requirements of section 182(b)(1). A public

hearing on this SIP revision request was held on June 29, 1995. The EPA

proposed to approve the SIP revision request on October 6, 1995 (60 FR

52348).

The Baton Rouge serious ozone nonattainment area includes the

following parishes: East Baton Rouge, West Baton Rouge, Pointe Coupee,

Livingston, Iberville, and Ascension. In evaluating the SIP revision

request, the EPA considered whether additional NOX reductions

would contribute to attainment of the ozone standard in the Baton Rouge

modeling domain, which includes all or part of 20 parishes in Louisiana

and covers both attainment as well as nonattainment parishes.

As outlined in the relevant EPA guidance, the use of photochemical

grid modeling is the recommended approach for testing the contribution

of NOX emission reductions to attainment of the ozone standard.

A summary of the urban airshed modeling (UAM) demonstration and the

EPA's review of the modeling and submittal are contained in the October

6, 1995, proposed rule (60 FR 52348) and the accompanying Technical

Support Document. The modeling results show, on a directional basis,

that application of NOX controls in the Baton Rouge ozone

nonattainment area would exacerbate peak ozone concentrations in the

modeling domain.

II. Public Comments

In August 1994, three environmental groups (Natural Resources

Defense Council (NRDC), Sierra Club, and Environmental Defense Fund

(NRDC et al.)) submitted joint adverse comments on the proposed

approvals of NOX exemptions for the Ohio and Michigan ozone

nonattainment areas. The comments addressed the EPA's general policy

regarding NOX exemptions. The commenters requested that these

comments be addressed in all EPA rulemakings dealing with NOX

exemptions. The EPA responded to these comments in a final rulemaking

approving a section 182(f) NOX exemption for the Baton Rouge area.

See 61 FR 2438, dated January 26, 1996. The technical basis (i.e., UAM

demonstration) for the Baton Rouge section 182(b)(1) transportation

conformity NOX exemption is the same as for the section 182(f)

exemption. (Please refer to the January 26, 1996, section 182(f) final

approval (61 FR 2438) for Baton Rouge for a summary of the NRDC's

comments and the EPA's responses.)

In addition, shortly after the close of the 30-day public comment

period, the New York State Department of Environmental Conservation

(NYSDEC) submitted a letter to the EPA expressing opposition to the

proposed Baton Rouge transportation conformity NOX exemption. For

the public record, the EPA has elected to respond to those comments in

this rulemaking. The following discussion summarizes the NYSDEC

comments and provides the EPA's responses to the comments.

Comment: The NYSDEC expressed concern regarding the claim that VOC

only controls reduce ozone levels and geographic extent of ozone

exposure since modeling in the northeast shows a need for NOX

reductions as well as VOC to reduce regional ozone. The NYSDEC also

questioned certain model assumptions; namely, whether the Federal motor

vehicle control program (FMVCP) is assumed in future year (1996 and

1999) emission inventories, and the adequacy of modeling across-the-

board reductions for a specific source category exemption.

Response: In the modeling demonstration, the State included in the

attainment year (1999) projected emissions inventory the emission

reductions expected to result from the Federal Motor Vehicle Emission

Control Program. Although the state did not model the mobile emission

reductions that would result from transportation conformity, per se,

the across-the-board reductions modeled (i.e., a 100 percent reduction

in both point source VOC and NOX emissions combined) far exceed

the reductions that would be expected to result from transportation

conformity alone. (In the Baton Rouge modeling domain, point source VOC

emissions alone comprise 46 percent of the total projected

anthropogenic VOC inventory, and point source NOX emissions alone

comprise 57 percent of the total projected NOX inventory.)

The EPA believes that the State has satisfied the requirements of

Chapter 4 of the December 13, 1993, guidance document, ``Guideline for

Determining the Applicability of Nitrogen Oxides Requirements Under

Section 182(f),'' by simulating conditions resulting from three

emission reduction scenarios (i.e., substantial VOC reductions,

substantial NOX reductions, and substantial VOC/NOX

reductions combined). Consistent with the guidance, the State has

demonstrated that, on a directional basis, the areawide predicted

maximum 1-hour ozone concentration for each day modeled under the

substantial VOC reductions alone strategy is less than or equal to that

from substantial NOX reductions alone or VOC and NOX

reductions combined.

Comment: The NYSDEC stated that there have been voluntary early

NOX reductions from point sources between 1990 and 1994, which

seems to imply that improvements in air quality would be affected by

these voluntary NOX reductions as well.

Response: As part of the modeling demonstration, the State included

the early NOX reductions from point sources that had occurred

between 1990 and 1994. Since doing so did not alter the conclusion, the

EPA believes the State has adequately demonstrated that any additional

NOX reductions would not contribute to attainment of the ozone

standard and, therefore, has met the Act's requirements for receiving a

NOX waiver.

[[Page 7220]]

Comment: The NYSDEC stated that area source NOX inventories

modeled appeared low by two orders of magnitude, i.e., 0.2 percent

versus 20 percent.

Response: The projected area source NOX inventory modeled (1.0

tons/day) is correct. Area source NOX emissions comprise only 0.2

percent of the total projected NOX inventory (479.0 tons/day).

Point, on-road mobile, and non-road mobile source NOX emissions

comprise 67.7 percent, 15.4 percent, and 16.7 percent of the total

projected NOX emissions inventory, respectively.

Comment: The NYSDEC urged the EPA to undertake a review of the

regional consistency between Baton Rouge and other southeast areas, and

that action on the exemption petition be delayed until this review is

complete.

Response: The EPA has taken steps to assure that downwind areas

will not be negatively impacted by NOX exemptions. The EPA intends

to use its authority under section 110(a)(2)(D) to require a State to

reduce NOX emissions from stationary and/or mobile sources where

there is evidence, such as photochemical grid modeling, showing that

the NOX emissions would contribute significantly to nonattainment

in, or interfere with maintenance by, any other State or in another

nonattainment area within the same State. This action would be

independent of any action taken by the EPA on a NOX exemption

request under section 182(f) or section 182(b)(1). That is, EPA action

to grant or deny a NOX exemption request under section 182(f) or

182(b)(1) for any area would not shield that area from EPA action to

require NOX emission reductions, if necessary, under section

110(a)(2)(D).

The State of Louisiana is included in the superregional

photochemical modeling of the eastern United States (U.S.) currently

being conducted by the EPA, States, and other agencies as part of the

Ozone Transport Assessment Group (OTAG). The OTAG assessment process,

which is scheduled to end at the close of 1996, will evaluate regional

and national emission control strategies using improved regional

modeling analyses. The goal of the OTAG is to reach consensus on

additional regional and national emission reductions that are needed to

support efforts to attain the ozone standard in the eastern U.S. Upon

completion of the modeling, the EPA will evaluate the modeling results

and their implications concerning NOX versus VOC emission

controls. The results of this modeling may supersede the UAM

demonstration that the EPA is using as the basis for granting this

waiver. To continue the waiver for all NOX source categories, the

modeling must continue to show attainment of the ozone standard without

the use of additional NOX controls. The final modeling may

demonstrate attainment of the ozone standard using a subset of the

possible NOX emission controls. In this situation, the EPA may

continue the waiver for the remaining ``non-controlled'' NOX

sources under section 182(f)(2) of the CAA.

Comment: The NYSDEC disagrees that the NOX waiver rule should

be a Table 3 action for signature by the Regional Administrator and,

because of the national implications of the NOX exemption,

believes it should be a Table 1 action.

Response: The NOX waiver for transportation conformity is a

SIP revision request submitted by the State of Louisiana. SIP revisions

have been delegated to the Regional Administrator for signature under

the procedures published in the Federal Register on January 19, 1989

(54 FR 2214-2225), as revised by a July 10, 1995, memorandum from Mary

Nichols, Assistant Administrator for Air and Radiation. This NOX

waiver is applicable only for the purpose of relieving the need to meet

the interim transportation conformity test for the Baton Rouge area. In

addition, the policy related to processing the NOX waivers for

transportation conformity has been coordinated at the national level.

III. Effective Date

This rulemaking is effective as of February 12, 1996. The

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

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

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

of the section 182(b)(1) transportation conformity NOX exemption

for the Baton Rouge ozone nonattainment area is a substantive rule that

relieves the restrictions associated with the CAA Title I requirements

to control NOX emissions, the transportation conformity NOX

exemption approval may be made effective upon signature by the Regional

Administrator.

IV. Final Action

The comments received were found to warrant no significant changes

from the proposed to final action on this NOX exemption request.

The primary difference between the proposed and final rulemaking is the

addition of the statement that the EPA may require NOX emission

controls in general or on a source-specific basis under section

110(a)(2)(D) of the CAA if future ozone modeling demonstrates that such

controls are needed to achieve the ozone standard in downwind areas.

Based on subsequent modeling results, the EPA may rescind all or

part(s) of the transportation conformity NOX waiver. Approval of

the exemption waives the Federal requirements for transportation

conformity applicable to the Baton Rouge ozone nonattainment area. To

maintain the waiver, future modeling must demonstrate attainment of the

ozone standard without the use of additional NOX emission

controls. (The modeling may demonstrate the need for some NOX

emission controls, necessitating the need for reducing the coverage of

the waiver.) Should the EPA rescind the exemption, the State would be

required to begin implementing the transportation conformity NOX

requirements.

V. Miscellaneous

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995, memorandum from Mary Nichols, Assistant Administrator

for Air and Radiation. The Office of Management and Budget has exempted

this regulatory action from Executive Order 12866 review.

Nothing in this action should be construed as permitting, allowing

or establishing a precedent for any future request for revision to any

SIP. The EPA shall consider each request for revision to the SIP in

light of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

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, the EPA may certify that the rule will not have a

significant economic 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 approval does not create any new requirements. Therefore, I

certify that this action does not have a significant impact on any

small entities affected. Moreover, due to the nature of the Federal-

State relationship under the Act, preparation of the regulatory

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of the State action. The

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Act forbids the EPA to base its actions concerning SIPs on such

grounds. (Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (1976; 42

U.S.C. 7410(a)(2)).

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

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

the 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.

The EPA's final action will relieve 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 or more to either State, local, or tribal

governments in the aggregate, or to the private sector.

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 29, 1996. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule for the purpose of judicial rule, 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) of the CAA).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Conformity, Oxides

of nitrogen, Ozone, Transportation conformity.

Dated: February 12, 1996.

Jane N. Saginaw,

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

3. Section 52.992 is amended by adding paragraph (c) to read as

follows:

Sec. 52.992 Areawide nitrogen oxides (NOX) exemptions.

* * * * *

(c) The LDEQ submitted to the EPA on July 25, 1995, a revision to

the SIP, pursuant to section 182(b)(1), requesting that the Baton Rouge

serious ozone nonattainment area be exempted from the transportation

conformity NOX requirements of the CAA. The Baton Rouge

nonattainment area consists of East Baton Rouge, West Baton Rouge,

Pointe Coupee, Livingston, Iberville, and Ascension Parishes. The

exemption request was based on photochemical grid modeling which shows

that additional reductions in NOX would not contribute to

attainment in the nonattainment area. On February 12, 1996, the EPA

approved the State's request for an areawide exemption from the

transportation conformity NOX requirements.

[FR Doc. 96-4289 Filed 2-26-96; 8:45 am]

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