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OAR Box 1787 

Prepped by Ollie Stewart 

Document Number: 

41) ll-B-26 

Docket Number: 

A-90-37 

Printed 11/4/2008 10:22:19 AM Sheet 41 of 147 
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UNITED STATES-ENVIRONMENTAL PROTECTION AGENCY 

Office of Air Quality Planning and Standards 

Research Triangle Park, North Carolina 27711 

A-90-37 

i e l:i j: \7 li 

MAY 2 7 199A 

MEMORANDUM 

LH ^ • c m "E\ 

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SUBJECT: 

FROM 

Section 182(f) Nitrogen Oxid 

Revised Process and Criteri 

phn S. Seitz, Directa 

Office of Air Quality 

TO: 

ptions— 

ndards (MD-10) 

Director, Air, Pesticides and oxics Management 

Division, Regions I and IV 

Director, Air & Waste Management Division, Region II 

Director, Air, Radiation and Toxics Division, Region 

III 

Director, Air & Radiation Division, Region V 

Director, Air, Pesticides and Toxics Division, Region 

VI 

Director, Air & Toxics Division, 

Regions VII, VIII, IX, and X 

This memorandum revises the process the Environmental 

Protection Agenpy (EPA) currently intends to follow for granting 

exemptions from control requirements for N0X under section 182(f) 

of the Clean Air Act (Act) 7 It also revises certain guidance 

previously issued qoncerning N0X exemptions for areas outside the 

ozone transport region that have air quality monitoring data 

showing attainment.2 \ 

'"Guideline for Determining the Applicability of Nitrogen 

Oxide Requirements under Section 182(f)," from John S. Seitz, 

Director, Office of Air Quality Planning and Standards, to the 

Regional Division Directors, December 16, 1993, Chapter. 2, 

Administrative Procedures. 

2"State Implementation Plan (SIP) Requirements for Areas 

Submitting Requests for Redesignation to Attainment of the Ozone 

and Carbon Monoxide (CO) National Ambient Air Quality Standards . 

(NAAQS) on or after November 15, 1992," from Michael H. Shapiro, 

Acting Assistant Administrator for Air and Radiation, to the 

Regional Division Directors, September 17, 1993 [N0X reasonably 

available control technology (RACT) discussion on pages 4-5J and 

December 1993 guideline at section 4.4. 
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The guidance in this memorandum applies to marginal and 

above ozone nonattainment areas because the section 182(f) 

exemption is directed at major N0X stationary sources only in 

marginal and above ozone nonattainment areas. The guidance does 

not address nonclassifiable ozone nonattainment areas (i.e., 

transitional, submarginal, dr incomplete/no data areas). 

However, the EPA's conformity rules**4 also reference the section 

182(f) exemption process as a means for exempting affected areas 

from N0X conformity requirements.5 Moreover, under these rules, 

conformity applies in all nonattainment and maintenance areas, 

including the nonclassifiable nonattainment areas. Therefore, 

corresponding guidance is needed for the application of the 

section 182(f) NOx exemption referenced in the conformity rules 

in these nonclassifiable areas. The guidance document entitled 

"Conformity; General Preamble for Exemption from Nitrogen Oxides 

Provisions," to be published in the Federal Register, addresses 

how EPA generally intends to act on requests for N0X conformity 

exemption determinations for those areas, and should be consulted 

for those purposes along with this guidance. 

Ozone nonattainment areas that are granted areawide section 

182(f) exemptions under the approach described in this memorandum 

will also be exempt from the N0X conformity requirements. 

However, since the conformity requirements apply on an areawide 

basis, a section 182(f) exemption for an individual source (or 

group of sources) within the nonattainment or maintenance area 

would not provide a sufficient basis to exempt the entire 

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). 

""Determining Conformity of General Federal Actions to State 

or Federal Implementation Plans; Final Rule," November 30, 1993 

(58 FR 63214). , 

5The section 182(f) exemption is explicitly referred to and 

is described in similar language in 40 CFR 51.394(b)(3)(i), the 

"Applicability" section of the transportation conformity rule, 

and in the preamble (see 58 FR 62197, November 24, 1993). The 

language is repeated in the provisions of the rule regarding the 

motor vehicle emissions budget test [section 51.428 (a) (1.) (i'i) ] 

and the "build/no-build" test [sections 51.436(e), 51.438(e)], 

although section 182(f) of.the Act is not specifically mentioned. 

In the general conformity rule, the section 182(f) NOx exemption 

is referred to in section 51.852 (definition of "Precursors of a 

criteria pollutant") and is discussed in the preamble (see 58 FR 

63240, November 30, 1993). 
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nonattainment or maintenance area from the N0X conformity 

requirements. 

Section 182(f) requires States to apply the same 

requirements to major stationary sources of N0X as are applied to 

major stationary sources of volatile organic compounds. The 

requirements are RACT and new source review (NSR) . The N0X RACT 

is required in ozone nonattainment areas classified as moderate 

and above, as well as in all areas within an ozone transport 

region. The NSR rules are required in ozone nonattainment areas 

classified as marginal and above, as well as all areas within an 

ozone transport region. Section 182(f) also specifies 

circumstances under which the new N0X requirements would be 

limited or would not apply. 

Under section 182(f)(1)(A), an exemption from the N0X 

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. The EPA has indicated 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 

this test is met since "additional reductions of [NOx] would not 

contribute to attainment" of the NAAQS in that area. Under this 

revised guidance, a State may submit a petition for a section 

182(f) exemption based on air quality monitoring data showing 

attainment of the ozone NAAQS without also having to submit a 

redesignation request or a maintenance plan with that 

petition.6,7 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). • 

If it is subsequently determined by EPA that the area has 

violated the standard, the section 182(f) exemption, as of the 

date of the determination, would no longer apply. The EPA would 

6For purposes of the NOx exemption test in section 

182(f)(1)(A) for areas outside an ozone transport region, EPA is 

interpreting the term "contribute to attainment" to mean that the 

State (or petitioner) need only show whether additional 

reductions of NOx would contribute to attainment of the ozone 

NAAQS, and not whether such reductions would contribute to 

attainment and maintenance. 

7The section 182(f) exemption does not affect EPA's 

requirements for maintenance plans; the maintenance plan required 

for redesignation must still address N0X in accordance with EPA 

guidance. "" 
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notify the state that the exemption no longer applies, and would 

also provide notice to the public in the Federal Register. A 

determination that the N0X exemption no longer applies would mean 

that the area would thereafter have to address any N0X NSR or N0X 

RACT requirements that may be applicable under section 182(f). 

Similarly, while existing transportation plans, transportation 

improvement plans and past conformity determinations would not,be 

affected by a determination that the exemption no longer applies, 

new conformity determinations: would have to observe the N0X 

requirements of the conformity rule. The State must continue to 

operate an appropriate air quality monitoring network, in 

accordance with 40 CFR part 58, to verify the attainment status 

of the area. The air quality data relied on for the above 

determinations must be consistent with 40 CFR part 58 

requirements and other relevant EPA guidance and recorded in 

EPA's Aerometric Information Retrieval System (AIRS). 

\. Section 182(f) contains very few details regarding the 

administrative procedure for acting on N0X exemption requests. 

The absence of specific guidelines by Congress leaves EPA with 

discretion to establish reasonable procedures, consistent with 

the requirements of the Administrative Procedure Act (APA). 

The EPA believes that section 182(f) sets up two separate 

procedures by which the Agency may act on N0X exemption requests. 

Section 182(f)(1) and (2) direct that action on N0X exemption 

determination requests should take place "when [EPA] approves a 

plan or plan revision." This language 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 "persoh[s]"8 may petition for a NOx 

determination "at any time" after the ozone precursor?study 

required under section 185B of the Act is finalized,9 and gives 

EPA a limit of 6 months after filing to grant or deny such 

petitions. Although section 182(f)(3) references 182(f)(1), 

there are certain key differences in the language. First, 

individuals may submit petitions under paragraph (3) "at any 

time" (i.e., even when there is no plan revision from the State 

pending at EPA). Second, 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—and more expeditious—from the plansection 302(e) of the Act defines the term "person" to 

include States. 

9The final section 185B report was issued July 30, 1993, 
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revision process intended under paragraph (1). Thus, EPA 

believes that paragraph (3)'s reference to paragraph (1) 

encompasses only the substantive tests in paragraph (1) [and, by 

extension, paragraph (2)], not the requirement in paragraph (l) 

for EPA to grant exemptions only when acting on plan revisions. 

The requirements of the APA apply with respect to the type 

of notice which must be provided regarding EPA action on N0X 

exemption determinations. Notice-and-comment rulemaking is 

required by the APA when EPA action involves not just factual, 

but also policy and legal considerations that will apply as a 

general matter and, thus, is legislative in nature. Conversely, 

when EPA action can properly be described as party specific in 

nature, involving consideration of primarily factual evidence, 

notice-and-comment rulemaking is not required by the APA. In 

such a case, the EPA action could consist of the issuance of an 

order [see 5 U.S.C. sections 551(4)-(7) and 553]. Given these 

requirements of the APA, EPA believes that under either of the 

procedures established in section 182(f), where the request is 

for an entire area to be exempted from the N0X requirements, the 

EPA must go through notice-and-comment rulemaking to grant or 

deny the petition. Where a petition is submitted for an 

exemption determination relating to an individual source (or 

group of sources) under subsection 182(f)(3), EPA may grant or 

deny the petition through an order transmitted by letter to the 

affected source (or sources). The EPA will also provide the 

public with notice in the Federal Register of the receipt and 

availability of the petition, as well as of the EPA's final 

determination. -

Attachment I of this memorandum is the step-by-step 

administrative procedure for processing areawide petitions. 

Attachment II is the;procedure for processing petitions relating 

to an individual source (or group of sources). 

Section 182(f)(3) requires that EPA grant or deny a 

petition, whether areawide or source specific, within 6 months 

after its filing. Where the rulemaking process is followed (for 

areawide petitions), EPA is aware that the 6-month requirement 

may be infeasible in some cases. However, courts have ruled that 

even in instances, such as the one' presented here, where a 

prescribed timeframe for EPA action apparently conflicts with the 

requirement to provide the public with adequate opportunity for 

notice and comment, the notice requirement must be met. 

Therefore, EPA will process areawide exemption requests by 
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rulemaking as expeditiously as practicable, with the intent of 

meeting the 6-month deadline. ^ 

As noted earlier, petitions submitted under section 

182(f)(3) are not required to be submitted as SIP revisions. 

Consequently, the State is not required under the Act to hold a 

public hearing in order to petition for an areawide N0X exemption 

determination [see section 110(a)(1) and (2)]. For similar 

reasons, if the State is submitting an areawide petition under 

subsection 182(f)(3), it is unnecessary to have the Governor 

submit the petition. However, because of the need for 

consistency with the AIRS data and the requirements of 40 CFR 

part 58, EPA believes that, particularly in cases where the NOx 

exemption request (including a request for exemption from the N0X 

requirements of the conformity rules) is based on monitoring 

data, if such data are contained in a petition submitted by a 

person other than the State, the petition should be coordinated 

with the State air agency. 

The Federal Register notice of EPA approval or disapproval 

of a State's petition must be signed by the Administrator. This 

is not a SIP action or a redesignation action. Consequently, 

this action is not delegated and must undergo Headquarters 

review. If some or all types of petition actions become 

delegated, notification will be provided. 

Where there is a conflict, this guidance supersedes 

guidance contained in EPA's September 17, 1993 memorandum and in 

sections 2.2 and 4.4 of EPA's December 16, 1993 document. Please 

contact Doug Grano (919) 541-3292 or Kimber Scavo (919) 541-3354 

regarding any questions. 

Attachments 

cc: Tom Helms 

Steve Hitt.e 

Robert Kellam 

Phil Lorang 

Rich Ossias 

Joe Tikvart 

Lydia Wegman 
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Attachment I 

(Rulemaking for Areawide Petition)1 

(1) The petition is sent to the appropriate Regional Offices 

(RO's) and States by the petitioner. 

(2) The RO sends copies of the petition to Headquarters (HQ) 

Offices for technical and legal review. These offices are: 

Ozone/Carbon Monoxide Programs Branch, AQMD (Doug Grano); 

Source Receptor Analysis Branch, TSD (Ned Meyer); Office of 

Mobile Sources (Kathryn Sargeant); and Office of General 

Counsel (Mike Prosper). (The petition should be sent 

immediately upon receipt.) 

(3) The RO evaluates the demonstration and makes the initial 

determination as to whether the petition should be granted 

or denied along with the supporting rationale. The RO 

should consult with the above HQ Offices and affected 

'.States . ',.-• • 

(4) The RO prepares a Federal Register (FR) notice for the 

Administrator's signature that proposes to grant or deny the 

petition. A- notice that proposes to grant an exemption on a 

contingent basis (for areas outside the ozone transport 

region that have air quality monitoring data showing 

attainment) must also propose that the exemption would no 

longer apply if EPA subsequently determines that a violation 

of the ozone standard has occurred. That proposal must 

specify that the N0X requirements of the conformity rules 

would apply to new conformity determinations, and the amount 

of time the State would have to submit any applicable 

section 182(f) N0X NSR and/or RACT rules in the event that 

EPA determines at some future time that a violation 

occurred. 

The evaluation under step 3 above must be included in either 

the FR notice or a technical support document that is 

included in the docket. (The RO should prepare and complete, 

the FR proposal within 2 months after receipt., taking into 

account any HQ comments on the petition or the RO 

evaluation.)2 

(5) The-FR proposal is sent to HQ reviewers for concurrence. (HQ 

should finish the review within 1 month after receipt.) 

'This process assumes no delegation to the Regional 

Administrator. -

Petitions that are based on an area having data indicating 

that it has already attained the ozone standard should generally 

be processed in less time. 
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(6) After any revision and concurrence by HQ reviewers, the FR 

proposal is sent to the Administrator for signature and is 

then published. (There should be at least 1 month for a 

formal comment period after FR publication.) 

(7) The RO prepares a FR notice of final rulemaking that 

addresses comments received and takes final action to grant 

. (fully or on a contingent basis) or to deny the petition. 

The RO sends the notice to the HQ reviewers noted above 

under Step 2. (HQ should finish the review within 1 month 

after receipt.) 

(8) After any revision and.concurrence by HQ reviewers, the FR 

final notice is sent to the Administrator for signature and 

is then published. 

J 
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Attachment II1 

[Letter of Approval/Denial for Individual Source (or Group of 

Sources) Petition] 

(1) The petition is sent to the affected States and RO's by the 

petitioner. 

(2) The RO prepares a FR notice of availability and sends it 

directly to the FR after Regional Administrator signature. 

This notice does not indicate EPA's intended action. The 

EPA notice should solicit comments. However, because the 

action is not a rulemaking, there is no obligation on EPA's 

part to respond to the comments when taking final action. 

The EPA provides affected States a 3-month period to make a 

recommendation to EPA. 

(3) The RO sends a copy of the petition to the HQ Offices listed 

in Attachment I, Step 2. 

(4) The RO makes the initial determination as to whether the 

petition should be granted or denied in consultation with 

affected States. The determination is incorporated by the 

RO into a letter for signature of the Administrator, along 

with the supporting rationale. 

(5) The draft letter is sent to HQ reviewers for concurrence. 

(6) After concurrence by HQ reviewers, the final letter is 

prepared by the RO and sent to the Administrator for 

signature ("cc" to the affected States). 

(7) The RO prepares a second FR notice that includes the letter 

signed by the Administrator to the petitioner and sends the 

notice directly to the FR after Regional Administrator 

signature. 

'This process assumes no delegation to the Regional 

Administrator.