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Approval of and Promulgation of Implementation Plans; Louisiana
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[Federal Register: February 27, 1996 (Volume 61, Number 39)] [Rules and Regulations] [Page 7218-7221] From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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.
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 (NO<INF>X) 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 NO<INF>X 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 NO<INF>X 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 <SUP>1 does not require the ``build/no-build test'' and ``less-than-1990 test'' for NO<INF>X as an ozone precursor in ozone nonattainment areas where the Administrator determines that additional reductions of NO<INF>X 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 NO<INF>X emissions ``as necessary'' to attain the ozone standard by the applicable [[Page 7219]]
attainment date. Section 182(b)(1) further states that its requirements do not apply in the case of NO<INF>X for those ozone nonattainment areas for which the EPA determines that additional reductions of NO<INF>X 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).
As explained below, the EPA, through an amendment to its transportation conformity rule, has changed the procedural mechanism through which a NO<INF>X exemption from transportation conformity would be granted. Instead of a petition under section 182(f), transportation conformity NO<INF>X 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 NO<INF>X 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) NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X exemptions for the Ohio and Michigan ozone nonattainment areas. The comments addressed the EPA's general policy regarding NO<INF>X exemptions. The commenters requested that these comments be addressed in all EPA rulemakings dealing with NO<INF>X exemptions. The EPA responded to these comments in a final rulemaking approving a section 182(f) NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X 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-theboard 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 NO<INF>X 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 NO<INF>X emissions alone comprise 57 percent of the total projected NO<INF>X 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 NO<INF>X reductions, and substantial VOC/NO<INF>X 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 NO<INF>X reductions alone or VOC and NO<INF>X reductions combined.
Comment: The NYSDEC stated that there have been voluntary early NO<INF>X reductions from point sources between 1990 and 1994, which seems to imply that improvements in air quality would be affected by these voluntary NO<INF>X reductions as well. Response: As part of the modeling demonstration, the State included the early NO<INF>X 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 NO<INF>X reductions would not contribute to attainment of the ozone standard and, therefore, has met the Act's requirements for receiving a NO<INF>X waiver. [[Page 7220]] Comment: The NYSDEC stated that area source NO<INF>X inventories modeled appeared low by two orders of magnitude, i.e., 0.2 percent versus 20 percent.
Response: The projected area source NO<INF>X inventory modeled (1.0 tons/day) is correct. Area source NO<INF>X emissions comprise only 0.2 percent of the total projected NO<INF>X inventory (479.0 tons/day). Point, on-road mobile, and non-road mobile source NO<INF>X emissions comprise 67.7 percent, 15.4 percent, and 16.7 percent of the total projected NO<INF>X 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 NO<INF>X exemptions. The EPA intends to use its authority under section 110(a)(2)(D) to require a State to reduce NO<INF>X emissions from stationary and/or mobile sources where there is evidence, such as photochemical grid modeling, showing that the NO<INF>X 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 NO<INF>X exemption request under section 182(f) or section 182(b)(1). That is, EPA action to grant or deny a NO<INF>X exemption request under section 182(f) or 182(b)(1) for any area would not shield that area from EPA action to require NO<INF>X 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 NO<INF>X 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 NO<INF>X source categories, the modeling must continue to show attainment of the ozone standard without the use of additional NO<INF>X controls. The final modeling may demonstrate attainment of the ozone standard using a subset of the possible NO<INF>X emission controls. In this situation, the EPA may continue the waiver for the remaining ``non-controlled'' NO<INF>X sources under section 182(f)(2) of the CAA. Comment: The NYSDEC disagrees that the NO<INF>X waiver rule should be a Table 3 action for signature by the Regional Administrator and, because of the national implications of the NO<INF>X exemption, believes it should be a Table 1 action. Response: The NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X emissions, the transportation conformity NO<INF>X 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 NO<INF>X exemption request. The primary difference between the proposed and final rulemaking is the addition of the statement that the EPA may require NO<INF>X 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 NO<INF>X 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 NO<INF>X emission controls. (The modeling may demonstrate the need for some NO<INF>X 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 NO<INF>X 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 FederalState relationship under the Act, preparation of the regulatory flexibility analysis would constitute Federal inquiry into the economic reasonableness of the State action. The [[Page 7221]]
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]
- 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 (NO<INF>X) exemptions.
[FR Doc. 96-4289 Filed 2-26-96; 8:45 am] BILLING CODE 6560-50-P
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(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 NO<INF>X 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 NO<INF>X 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 NO<INF>X requirements.