Approval and Promulgation of Extension of Temporary Section 182(f) and Section 182(b) Exemption to the Nitrogen Oxides (NOINFX/INF) Control Requirements for the Houston/Galveston and Beaumont/Port Arthur Ozone Nonattainment Areas; Texas

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX76-1-7330; FRL-5828-3]

Approval and Promulgation of Extension of Temporary Section

182(f) and Section 182(b) Exemption to the Nitrogen Oxides

(NOX) Control Requirements for the Houston/Galveston and

Beaumont/Port Arthur Ozone Nonattainment Areas; Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, EPA is approving a petition for an extension

of the temporary exemption from the NOX control requirements

of sections 182(f) and 182(b) of the Clean Air Act (the Act) for the

Houston/Galveston (HGA) and Beaumont/Port Arthur (BPA) ozone

nonattainment areas from December 31, 1996, to December 31, 1997. The

State of Texas submitted the petition to EPA requesting the extension

to permit additional time to complete Urban Airshed Modeling (UAM). A

temporary NOX exemption has been granted by EPA because

preliminary photochemical grid modeling showed that reductions in NOx

would be detrimental to attaining the National Ambient Air Quality

Standards (NAAQS) for ozone in these areas. Approval of this petition

will extend the temporary exemption which waives the Federal NOx

requirements for Reasonably Available Control Technology (RACT), New

Source Review (NSR), Vehicle Inspection/Maintenance (I/M), and

conformity by one year (December 31, 1996, to December 31, 1997) and

the

[[Page 28345]]

implementation date for NOX RACT by two years to May 31,

1999.

EFFECTIVE DATE: This action is effective as of May 23, 1997.

ADDRESSES: Copies of the extension request, public comments and EPA's

responses are available for inspection at the following addressees:

Environmental Protection Agency, Region 6, Air Planning Section, 445

Ross Ave, Suite 1200, Mailcode 6PD-L, Dallas, TX 75202.

Texas Natural Resource Conservation Commission, 12100 Park 35 Circle,

P.O. Box 13087, Austin, Texas 78711-3087.

FOR FURTHER INFORMATION CONTACT: Mr. Herbert R. Sherrow, Jr., Air

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

Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite

1200, Dallas, Texas 75202. The telephone number is 214-665-7237.

SUPPLEMENTARY INFORMATION:

I. Background

On August 17, 1994, the Texas Natural Resource Conservation

Commission (TNRCC) submitted to EPA a petition pursuant to section

182(f) which requested that the HGA and BPA nonattainment areas be

temporarily exempted by EPA from the NOX control

requirements of section 182(f) of the Act. The State based its petition

on the use of a UAM demonstration showing, pursuant to EPA guidelines,

that NOX reductions would not contribute to attainment in

either area because the decrease in ozone concentrations resulting from

Volatile Organic Compounds (VOC) reductions alone is equal to or

greater than the decrease obtained from NOX reductions or a

combination of VOC and NOX reductions. The petition for the

temporary exemption was approved by EPA and published at 60 FR 19515

(April 19, 1995).

On March 6, 1996, the State of Texas submitted a petition to EPA

which requests that the HGA and BPA nonattainment areas be granted an

extension to the temporary exemption from NOX control

requirements of sections 182(f) and 182(b) of the Act. The State's

petition was transmitted by a letter from George W. Bush, Governor,

State of Texas, to Jane Saginaw, Regional Administrator of EPA Region

6. The petition was accompanied by the records of public hearing on the

petition to satisfy the requirements of section 110. The petition

requests an extension of one year, from December 31, 1996, to December

31, 1997, for the exemption and an extension of the NOX RACT

compliance date from May 31, 1997, to May 31, 1999. The petition was

subjected to public notice on September 5, 1995, and hearing on October

2, 1995. Since the petition for extension went through the State's

public participation procedures prior to submittal, EPA considers it to

be submitted as a revision to the State Implementation Plan (SIP) and,

thus meets the requirements of sections 110 and 182(b).

The State based its petition on needing additional time to complete

further UAM modeling using data from the Coastal Oxidant Assessment for

Southeast Texas (COAST) study. The preliminary modeling showed that

NOX reductions would not contribute to attainment in either

area because domain-wide predicted maximum ozone concentrations are

lowest when only VOC reductions are modeled. The schedule submitted in

the State's original section 182(f) petition was established based on

the expected completion of the UAM COAST modeling for attainment

demonstration purposes by May 31, 1996. The extension would allow UAM

using COAST data to accommodate recent improvements in the modeling

process. These improvements will allow the development of better

substantiated control programs and minimize the possibility that

reliance on earlier preliminary modeling could result in unnecessary or

counterproductive control programs, particularly if NOX

controls are still shown to be detrimental. The petition also includes

a description of the improvements in data quantity and quality which

will result from the additional COAST data modeling information.

Some of the advantages of taking additional time to conduct the

modeling are: (1) the use of the UAM, version V, which is an improved

model over the UAM, version IV, previously used, particularly in the

reduced use of national defaults; (2) the development of more detailed

emissions inventory data; (3) the use of additional monitored data; and

(4) the use of more refined meteorological data. The current modeling

effort is estimated by the State to be an order of magnitude increase

over that for the preliminary modeling, with an attendant increase in

the quality-assurance effort required. Because of the large economic

impact of the future ozone control strategy on the Texas Gulf Coast

Region, both the State and EPA believe that it is essential that the

modeling be based on the best available science and the most complete,

quality-assured data possible.

Also submitted with the petition was a revision to previously-

adopted NOX RACT rules (30 Texas Air Control (TAC) 117)

which would extend the compliance dates from May 31, 1997, to May 31,

1999. The State first submitted the NOX RACT rules to EPA on

December 6, 1993.

A revision to the Texas (Nonattainment) New Source Review rule (30

TAC section 116.150), adopted on October 11, 1995, temporarily extends

the suspension of the NOX NSR requirements in HGA and BPA

through December 31, 1997. This rule revision was submitted to EPA on

November 1, 1995, and was not resubmitted with the petition.

On December 13, 1996, EPA proposed to approve the petition for a

one-year extension of the temporary exemption of the 182(f) and 182(b)

NOX requirements for the HGA and BPA areas (61 FR 65504).

The proposed rulemaking notice, EPA's Technical Support Document

(November 1994) on the proposed action, and supplemental information

are contained in the docket and provide a detailed discussion of the

TNRCC's submittal, applicable guidance, and EPA's rationale for

proposing approval of the State's petition for a one-year extension.

Rather than repeating that entire discussion in this document, that

discussion is incorporated by reference herein. Thus, the public should

review the notice of proposed rulemaking for relevant background on

this final rulemaking action.

II. Response to Comments

The following discussion summarizes the comments received regarding

the State's petition and/or EPA's proposed rulemaking and presents

EPA's responses to these comments. The EPA received 28 letters of

support from individuals, industry, local governments, the State

Transportation Authority, and the State of Texas. Two adverse comments

letters were received from environmental groups. In August 1994, three

environmental groups (Natural Resources Defense Council, Sierra Club,

and Environmental Defense Fund (NRDC, et al.)) submitted joint adverse

comments that addressed EPA's general policy regarding NOX

exemptions. The commenters requested that these comments be included in

the docket for all EPA rulemakings on NOX exemptions. The

EPA responded to these comments in its earlier final rulemaking

approving a temporary section 182(f) NOX exemption for the

Houston/Galveston and Beaumont/Port Arthur areas. Please refer to 60 FR

19515 (April 19, 1995) for this discussion. The EPA incorporates these

responses herein and will not reiterate

[[Page 28346]]

our response in this notice. Responses to comments received recently

follow.

Comment: One commenter indicated that comments had been submitted

previously during the comment period for the temporary exemption and

requested that those comments be reconsidered. Those comments generally

addressed issues concerning SIP submittals, modeling accuracy,

transport, and the legal basis for the approval.

Response: EPA responded to these comments in the response to

comments contained in the final approval of the temporary exemption for

HGA and BPA and disagreed with the comments. It is EPA's position that

the previous responses remain valid. Please refer to 60 FR at 19516-

19521 for a complete discussion of all comments and responses to

comments relating to the approval of the temporary exemption.

Comment: Both commenters felt that the UAM computer modeling was

not sufficiently accurate to allow good predictions of air quality.

Response: The EPA disagrees with the comment that the UAM

demonstration was insufficient to allow good predictions of air

quality. Since a large number of factors influence ozone formation, the

EPA agrees that no models, including the UAM, can predict precisely the

exact relationship between VOC, NOX, and ozone. However,

Congress clearly intended that photochemical grid modeling be used for

ozone air quality planning purposes in serious and above nonattainment

areas. As noted in the EPA's December 1993, guidance, UAM results are

acceptable for the purpose of the section 182(f) demonstrations and

application of UAM should be consistent with the techniques specified

in EPA's ``Guidelines on Air Quality Models (Revised).'' The UAM

modeling utilized by Texas met these criteria.

Comment: One commenter stated that since UAM modeling by the TNRCC

cannot be replicated as evidence it is inherently flawed.

Response: The EPA disagrees with the comment that TNRCC UAM cannot

be replicated. Realizing that the UAM is the most complex model

released to the States for regulatory use, EPA requires States to

submit sufficient information for EPA and public review to ensure that

the modeling is technically correct. To facilitate review of modeling

by the EPA and the public, making data accessible to the public and EPA

is one of seven components required in EPA's Guidance on the UAM

Reporting Requirements for Attainment Demonstrations. Although the data

files are not required as part of the submittal, the State is still

required to make available all UAM files used in the model performance

and attainment simulations to EPA and the public at any time. This

enables EPA or interested parties to replicate model performance and

attainment simulation results if desired. No modeling was conducted by

EPA to replicate TNRCC's results since the protocol was consistent with

EPA guidance. With the submitted technical documentation summarizing

the modeling process, assumptions, and results, and with additional

data available from the State, it is EPA's position that TNRCC's UAM

modeling can be replicated.

Comment: One commenter stated that model performance was believed

partly successful in only one episode.

Response: The EPA disagrees with this comment. The EPA's UAM

guidance recommends that three primary episode days should be

simulated, and that primary episode days are to be selected from the

predominant meteorological regimes (e.g., three meteorological regimes,

each containing one primary day, or two meteorological regimes with at

least two primary days from one of those regimes). For the purpose of a

temporary NOX exemption, Texas did model three episodes.

However, only two episodes had an adequate model performance. Although

only two of the three episodes modeled achieved adequate performance,

this is consistent with EPA guidance. Thus, two episodes are acceptable

for the purposes of a temporary exemption since they comprised five

days of ozone exceedances and covered several of the predominant

meteorological regimes under which ozone exceedences typically occur in

the Gulf Coast.

Comment: One commenter stated that the inventory was uncertain and

questioned the magnitude of error in the inventory.

Response: The EPA disagrees with the comment that the emissions

inventories are too uncertain to produce acceptable modeling results.

In the HGA and BPA modeling exercises, TNRCC followed the EPA

procedures for developing episode-specific emission inventories. In

addition, the modeling inventories, which were developed for all three

episodes, were based on the 1990 base-year emission inventories in

accordance with EPA's UAM guidance. The EPA evaluated the State's 1990

base-year emission inventories and a final approval of the inventories

was published in the FR on November 8, 1994 (59 FR 55588).

Comment: One commenter stated that the proposed submittal of new

modeling was to be conducted with a now-disapproved model.

Response: The EPA disagrees that the State used a now-disapproved

model. The modeling for the original exemption was conducted with UAM-

IV, which is still the EPA-approved regulatory model. However, the

state is planning to use UAM-V to conduct its additional modeling.

Under EPA's modeling guidelines EPA can approve the use of UAM-V as an

acceptable alternative to UAM-IV if the State requests permission to

use it and, among other things, the state demonstrates that it performs

better than UAM-IV. If these conditions are met, then EPA will grant

permission. In addition, UAM-V has been used in regulatory ozone

attainment demonstrations for a number of areas. Thus, a decision by

EPA to approve the use of UAM-V is not a determination that UAM-IV is

unacceptable or somehow ``disapproved'', nor that conclusions obtained

through its use have been invalidated.

Comment: One commenter stated that downwind transport from Houston

is responsible for air quality problems in other areas of Texas and

that UAM is limited in estimating regional ozone air quality.

Response: The EPA agrees that Texas' UAM analysis is only designed

to estimate air quality over an urban airshed area, such as the

Houston/Galveston and Beaumont/Port Arthur areas, and 11 neighboring

counties. The analysis is not designed to assess regional impacts, and,

therefore, cannot verify whether downwind transport from Houston is

affecting air quality in other areas. Other commenters have also argued

that waiver of NOX control requirements is unlawful if such

a waiver would impede attainment and maintenance of the ozone standard

in downwind areas.

As a result of these comments, EPA reevaluated its position on this

issue and has revised previously issued guidance. See Memorandum,

``Section 182(f) Nitrogen Oxides (NOX) Exemptions--Revised

Process and Criteria,'' dated February 8, 1995, from John Seitz. As

described in this memorandum, 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

[[Page 28347]]

independent of any action taken by EPA on a NOX exemption

request under section 182(f). That is, EPA's action to grant or deny a

NOX exemption request under section 182(f) for any area

would not shield that area from EPA's action to require NOX

emission reductions, if necessary, under section 110(a)(2)(D).

Modeling analyses are underway or will soon be conducted in many

areas for the attainment demonstration SIP revisions required pursuant

to section 182(c)(2)(A). Recent modeling data suggest that certain

ozone nonattainment areas may benefit from reductions in NOX

emissions upwind of the nonattainment areas. For example, the Northeast

Corridor States and the Lake Michigan Ozone Study are considering

attainment strategies which may rely, in part, on NOX

emission reductions hundreds of kilometers upwind. The EPA is working

with the States and other organizations to design and complete studies

which consider upwind sources and quantify their impacts. As the

studies progress, EPA will continue to work with the States and other

organizations to develop mutually acceptable attainment strategies.

At the same time as the large scale modeling analyses are being

conducted, States have requested exemptions from NOX

requirements under section 182(f) for certain nonattainment areas in

the modeling domains. Some of these nonattainment areas may impact

downwind nonattainment areas. The EPA intends to address the transport

issue under section 110(a)(2)(D), based on a regional modeling

analysis.

Under section 182(f) of the Act, an exemption from NOX

requirements may be granted for nonattainment areas outside of an ozone

transport region if EPA determines that ``additional reductions of

(NOX) would not contribute to attainment of the national

ambient air quality standard for ozone in the area.'' \1\ As described

in section 4.3 of the December 13, 1993, EPA guidance document,

``Guideline for Determining the Applicability of Nitrogen Oxides

Requirements Under Section 182(f),'' EPA encourages, but does not

require, States/petitioners to consider the impacts on the entire

modeling domain since the effects of an attainment strategy may extend

beyond a designated nonattainment area. Specifically, the guidance

encourages States to consider imposition of the NOX

requirements if needed to avoid adverse impacts in downwind areas,

either intra- or interstate. States need to consider such impacts since

they are ultimately responsible for achieving attainment in all

portions of their State and for ensuring that emissions originating in

their State do not contribute significantly to nonattainment in, or

interfere with maintenance by, any other State. See section

110(a)(2)(D)(i)(I) of the Act.

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\1\ There are three NOX exemption tests specified in

section 182(f). Of these, two are applicable for areas outside of an

ozone transport region: the ``contribute to attainment'' test

described above, and the ``net air quality benefits'' test. The EPA

must determine, under the latter test, that the net benefits to air

quality in an area ``are greater in the absence of NOX

reductions'' from relevant sources. 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.

Consequently, as stated in section 1.4 of the December 16, 1993, EPA

guidance, ``[w]here any 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.''

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In contrast, section 4.4 of the December 16, 1993, guidance states

that the section 182(f) demonstration would not be approved if there is

evidence, such as photochemical grid modeling, showing that the

NOX exemption would interfere with attainment or maintenance

in downwind areas. The guidance further explains that section

110(a)(2)(D) (not section 182(f)) prohibits such impacts. Consistent

with section 4.3 of the guidance, the EPA believes that the section

110(a)(2)(D) and 182(f) provisions must be considered independently,

and hence, has revised section 4.4 of the December 16, 1993, guidance

document. Thus, if there is evidence that NOX emissions in

an upwind area would interfere with attainment or maintenance in a

downwind area, that problem will be separately addressed by EPA in a

section 110(a)(2)(D) action. However, there has been no such

determination made with respect to the HGA/BPA areas at issue here.

The State of Texas is being included in one of the new modeling

analyses referred to above that is being conducted by EPA, States, and

other agencies as part of the Ozone Transport Assessment Group (OTAG).

The OTAG process is a consultative process among 37 States and EPA. The

OTAG process will evaluate regional and national emission control

strategies using improved regional modeling analyses. The goal of the

OTAG process is to reach consensus on additional regional and national

emission reductions that are needed to support efforts to attain the

ozone standard throughout the eastern United States. Some States have

committed to submit plans (SIP revisions), upon completion of the OTAG

process, that demonstrate attainment of the ozone standard through

local, regional, and national emission controls.

As noted in a prior EPA rulemaking dated November 28, 1994 (59 FR

60709), all NOX waivers are approved on a contingent basis.

The waiver applies only so long as air quality analyses, such as from

additional ozone modeling, in an exempted area continue to show

NOX reductions are detrimental or would not contribute to

attainment of the ozone NAAQS. Therefore, if future air quality

analysis shows that NOX reductions are beneficial in

reducing ozone, the State will have to implement necessary

NOX controls.

Comment: One commenter objected to the extension based on concerns

for adverse health effects that may be caused by NOX

concentrations in Houston.

Response: There is currently a national health standard for

NO2 and all portions of the Houston/Galveston and Beaumont/

Port Arthur areas meet that standard. In addition, the modeling

projected growth to 1999 and still demonstrated that NO2

reductions would not contribute to attaining the ozone NAAQS.

Comment: One commenter stated that there are disproportionate

population impacts of ozone air pollution in the Houston area.

Response: The EPA is vitally concerned that good air quality is

available to all residents of an area. Air quality standards are set on

an area-wide basis to attempt to ensure that no one segment of the

population is treated disproportionately. Concerning the specific

subject of this rulemaking, NOX contributions as an ozone

precursor, UAM has shown that NOX controls would not improve

(and, in fact, may worsen) the ozone problem in the Houston area and

thus, would not be beneficial to the residents of the Houston area.

Therefore, the available evidence indicates that approving the

extension will benefit the residents of the area.

Comment: One commenter stated that there are parallels between the

Louisiana industrial corridor and the Houston/Galveston industrial

corridor regarding toxics releases, environmental equity, and

NOX emissions.

Response: The EPA has conducted a study of the toxics impacts in

the lower Mississippi River industrial corridor (Toxics Release

Inventory & Emission Reductions 1987-1990 in the Lower Mississippi

River Industrial Corridor, U.S. EPA, May 14, 1993). The conclusions

from that study did not identify NOX as a problem in the

lower Mississippi River industrial corridor.

[[Page 28348]]

Moreover, the Act provides in section 182(f) for NOX to

be addressed independently as an ozone precursor pollutant for

exemption purposes. Therefore, since section 182(f) does not require

toxics impacts analysis, it would be inappropriate to consider the

effect of toxics emissions for NOX exemption purposes.

In addition, the State of Louisiana submitted a petition and a SIP

to EPA requesting a section 182(f) and 182(b) NOX exemption

for the Baton Rouge nonattainment area. The requests were based on UAM

modeling which satisfied all of EPA's requirements. The results of the

modeling indicated that NOX controls would be a disbenefit

to area residents since they would cause an increase in ozone levels.

The requests were approved at 61 FR 2438, January 26, 1996, and 61 FR

7218, February 27, 1996.

Since there are no other ozone nonattainment areas in the lower

Mississippi River industrial corridor and the Baton Rouge area has

received a NOX exemption, EPA does not agree with the

comment comparing Texas' NOX emissions disfavorably to those

in the Lower Mississippi River industrial corridor.

The environmental equity issues were discussed in the previous

response to comments.

III. Effective Date

This rulemaking is effective as of May 23, 1997. The Administrative

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

substantative rule to be less than thirty days after the publication of

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

the extension to the section 182(f) and 182(b) exemptions for the HGA

and BPA areas is a substantative rule that relieves the restrictions

associated with the Act title I requirements to control NOX

emissions, the NOX exemption extension approval may be made

effective upon publication in the Federal Register.

IV. Final Action

The EPA is taking final action to approve the petition submitted by

the State of Texas for an extension of the temporary NOX

exemption for the HGA and BPA ozone nonattainment areas from December

31, 1996, to December 31, 1997. The extension will expire on December

31, 1997, without further notice from EPA. The extension applies to

NOX RACT, NSR, and certain I/M, general and transportation

conformity NOX requirements.

The State previously adopted and submitted to EPA complete

NOX RACT, NSR, I/M, and conformity rules. Along with the

exemption extension submittal, NOX RACT rules providing for

extending the current implementation date, were resubmitted. During the

extension of the temporary exemption period, EPA will not act upon the

State's NOX RACT rules. The EPA plans to act upon the

State's NSR, I/M, and general and transportation conformity

NOX submissions in separate rulemaking actions because those

submissions are contained in broader rules that also control VOC

emissions.

Upon the expiration of the extension to the temporary exemption on

December 31, 1997, the State is required to either: (1) Have received

an additional extension to the temporary NOX exemption or a

contingent exemption from EPA prior to that time; or (2) begin

implementing the State's NOX RACT, NSR, I/M, general and

transportation conformity requirements, with NOX RACT

compliance required as expeditiously as practicable but no later than

May 31, 1999. The EPA will begin rulemaking on the NOX RACT

SIP upon the expiration of the extension to the temporary exemption if

the State has not received an additional temporary extension or a

contingent exemption by that time.

Since the original temporary exemption and this one-year extension

are based on preliminary modeling, and additional time is being granted

to allow for conducting modeling with improved data from the COAST

study, any future petition for a further NOX extension or

new exemption, to be technically valid, must be accompanied by UAM

modeling based on the COAST data and be submitted in time for EPA to

take action prior to the expiration of the temporary exemption.

Preliminary modeling cannot be used as a basis for any further

extensions or a new exemption. In addition, a further two-year

extension of the NOX RACT compliance date based on the

preliminary modeling would not be approvable since it would extend the

date beyond 1999, the last year included in the preliminary modeling.

Other specific requirements that would reapply upon expiration are:

(1) Any NSR permits that had not been deemed complete prior to January

1, 1998, must comply with the NOX NSR requirements,

consistent with the policy set forth in the EPA's NSR Supplemental

Guidance memo dated September 3, 1992, from John Seitz, Director, EPA's

Office of Air Quality Planning and Standards; (2) any conformity

determination (for either a new or revised transportation plan and

Transportation Improvement Program) made after January 1, 1998, must

comply with the NOX conformity requirements; and (3) any I/M

vehicle inspection made after January 1, 1998, must comply with the I/M

NOX requirements.

V. Regulatory Action

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

VI Administrative Requirements

A. Executive Order (E.O.) 12866

This action has been classified as a Table 1 action for signature

by the 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 E.O. 12866 review.

B. Regulatory Flexibility Act

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. See 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.

The SIP approvals under section 110 and subchapter I, part D of the

Act do not create any new requirements but simply approve requirements

that the State is already imposing. Therefore, because the Federal SIP

approval 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 Act,

preparation of a flexibility analysis would constitute Federal inquiry

into the economic reasonableness of State action. The Act forbids EPA

to base its actions concerning SIPs on such grounds. See Union Electric

Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

[[Page 28349]]

C. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must prepare a budgetary impact

statement to accompany any proposed or final rule that includes a

Federal mandate that may result in estimated costs to State, local, or

tribal governments in the aggregate; or to private sector, of $100

million or more. Under section 205, EPA must select the most cost-

effective and least burdensome alternative that achieves the objectives

of the rule and is consistent with statutory requirements. Section 203

requires EPA to establish a plan for informing and advising any small

governments that may be significantly or uniquely impacted by the rule.

The EPA has determined that the approval action promulgated does

not include a Federal 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. This Federal action approves

preexisting requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of this rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

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

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

the appropriate circuit by July 22, 1997. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule for the purposes of judicial review nor does

it extend the time within which a petition for judicial review may be

filed, and shall not postpone the effectiveness of such rule or action.

This action may not be challenged later in proceedings to enforce its

requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic

compounds.

Dated: May 14, 1997.

Carol M. Browner,

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 (e) to read as

follows:

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

* * * * *

(e) The TNRCC submitted to EPA on March 6, 1996, a petition

requesting that the Houston/Galveston and Beaumont/Port Arthur ozone

nonattainment areas be granted an extension to a previously-granted

temporary exemption from the NOX control requirements of

sections 182(f) and 182(b) of the Clean Air Act. The temporary

exemption was granted on April 19, 1995. The current petition is based

on the need for more time to complete UAM to confirm the need for, and

the extent of, NOX controls required. On May 23, 1997, EPA

approved the State's request for an extension to the temporary

exemption. The temporary extension automatically expires on December

31, 1997, without further notice from EPA. Upon expiration of the

extension, the requirements pertaining to NOX RACT, NSR, I/

M, general and transportation conformity will become applicable, except

that the NOX RACT compliance date shall be implemented as

expeditiously as practicable, but no later than May 31, 1999, unless

the State has received a contingent NOX exemption from the

EPA prior to that time.

[FR Doc. 97-13655 Filed 5-22-97; 8:45 am]

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