Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations 20233

1See ‘‘Scope of Nitrogen Oxides (NOX)

Exemptions,’’ from G.T. Helms, Group Leader,

Ozone/Carbon Monoxide Programs Branch (MD–

15), to the Air Branch Chiefs, January 12, 1995. ‘‘I/

M Requirements in NOX RACT Exempt Areas’’,

from Mary T. Smith, Acting Director, Office of

Mobile Sources, to the Air Division Directors,

October 14, 1994.

nature of the table, further notice and

comment would be unnecessary.

List of Subjects

40 CFR Part 9

Reporting and recordkeeping

requirements.

40 CFR Part 80

Fuel additives, Motor vehicle

pollution.

Dated: April 13, 1995.

Carol M. Browner,

Administrator.

For the reasons set forth in the

preamble, title 40, chapter 1 is amended

as follows:

PART 9—[AMENDED]

a. The authority citation for part 9

continues to read as follows:

Authority: 7 U.S.C. 135 et seq., 136–136y;

15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671;

21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33

U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321,

1326, 1330, 1344, 1345, (d) and (e), 1361;

E.O. 11735, 38 FR 21243, 3 CFR, 1971–1975

Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246,

300f, 300g, 300g–1, 300g–2, 300g–3, 300g–4,

300g–5, 300g–6, 300j–1, 300j–2, 300j–3, 300j–

4, 300j–9, 1857 et seq., 6901–6992k, 7401–

7671q, 7542, 9601–9657, 11023, 11048.

b. The table in § 9.1 is amended by

adding under the indicated heading the

new entries in numerical order to read

as follows:

§ 9.1 OMB approvals under the Paperwork

Reduction Act.

* * * * *

REGULATION OF FUELS AND FUEL

ADDITIVES

40 CFR citation OMB control No.

* * * *

80.141(c)–(f) ............................. 2060–0275

80.157 ....................................... 2060–0275

80.158 ....................................... 2060–0275

80.160 ....................................... 2060–0275

* * * *

[FR Doc. 95–10063 Filed 4–24–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[CA–82–1–6926; FRL–5195–9]

Clean Air Act Section 182(f) NOX

Exemption Petition; Monterey Bay

Ozone Nonattainment Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is finalizing the

approval of a petition submitted by the

Monterey Bay Unified Air Pollution

Control District (MBUAPCD) requesting

that EPA grant an exemption for the

Monterey Bay ozone nonattainment area

(Monterey Bay) from the section 182(f)

requirement to control major stationary

sources of oxides of nitrogen (NOX)

emissions. EPA published a proposed

action to approve the Monterey Bay

NOX exemption in the Federal Register

on December 20, 1994. In accordance

with the requirements of the Clean Air

Act, as amended in 1990 (the Act or

CAA), the EPA has determined that

additional NOX reductions from major

stationary sources in Monterey Bay

would not contribute to attainment of

the national ambient air quality

standard (NAAQS) for ozone. The

approval of this action exempts

Monterey Bay from implementing the

NOX requirements for reasonably

available control technology (RACT),

new source review (NSR), and the

applicable general and transportation

conformity and inspection and

maintenance (I/M) requirements of the

CAA. The EPA is finalizing approval of

this action under provisions of the Act

regarding plan requirements for

nonattainment areas.

EFFECTIVE DATE: This action is effective

as of April 12, 1995. The Administrative

Procedure Act (APA) 5 U.S.C. 553(d)(1),

permits the effective date of a

substantive rule to be less than thirty

days after publication of the rule if the

rule ‘‘relieves a restriction’’. Since the

approval of the section 182(f) exemption

for the Monterey Bay area is a

substantive action that relieves the

restrictions associated with the CAA

title I requirements to control NOX

emissions, the NOX exemption approval

may be made effective upon signature

by the EPA Administrator.

ADDRESSES: Copies of the petition and

EPA’s evaluation report are available for

public inspection at EPA’s Region IX

office during normal business hours.

Copies of the submitted petition are

available for inspection at the following

locations:

Rulemaking Section (A–5–3), Air and

Toxics Division, U.S. Environmental

Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA

94105.

Environmental Protection Agency, Air

Docket (6102), 401 ‘‘M’’ Street SW.,

Washington, DC 20460.

Monterey Bay Unified Air Pollution

Control District, Rule Development

Section, 24580 Silver Cloud Court,

Monterey, CA 93940.

FOR FURTHER INFORMATION CONTACT:

Wendy Colombo, Rulemaking Section,

Air and Toxics Division, U.S.

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105, Telephone: (415)

744–1202.

SUPPLEMENTARY INFORMATION:

Background

On December 20, 1994, EPA proposed

to approve the Monterey Bay NOX

exemption petition, submitted by the

MBUAPCD on April 26, 1994. 59 FR

65523. The exemption petition is based

on ambient monitoring data and

demonstrates that additional NOX

reductions in Monterey Bay would not

contribute to attainment of the NAAQS

for ozone. A detailed discussion of the

background concerning the NOX

requirements and the submitted petition

is provided in the notice of proposed

rulemaking (NPRM) cited above.

EPA has evaluated the exemption

petition for consistency with the

requirements of the CAA, EPA

regulations, and EPA interpretation of

these requirements as expressed in the

various EPA policy guidance documents

referenced in the NPRM cited above.

EPA believes that the petition satisfies

the applicable EPA requirements and is,

therefore, exempting the Monterey Bay

area from implementing the NOX

requirements for RACT, NSR, and the

applicable general and transportation

conformity and I/M requirements 1 of

the CAA.

The proposal identifies two NOX

RACT source categories MBUAPCD has

identified which encompass the major

stationary sources of NOX in the

Monterey Bay nonattainment area.

Rules have been developed and

submitted for these two categories,

entitled, Rule 431, Emissions From

Utility Power Boilers, and Rule 435,

Control of Nitrogen Oxides From Kilns.

EPA indicated in the NPRM that once

the final approval of the NOX waiver is

granted, MBUAPCD would then rescind

the two NOX rules submitted for

inclusion into the California SIP. This is

not the intention of MBUAPCD with

respect to one of these rules.

MBUAPCD, in subsequently applying to

EPA for redesignation to attainment of

the NAAQS for ozone, has indicated

that the emissions reductions achieved

by rule 431 will form part of its ozone
20234 Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations

maintenance plan. Although NOX

waivers may be granted for areas

demonstrating that NOX reductions do

not contribute to attainment of the

ozone standard, areas may choose to

impose NOX restrictions on other bases,

such as ozone maintenance, visibility

protection, PM–10 control, acid

deposition, or other environmental

protection purposes. MBUAPCD has

indicated in its attainment plan its

belief that the reductions achieved from

rule 431 are needed for maintenance of

the ozone standard. Therefore, rule 431

will not be rescinded, but instead will

be evaluated for incorporation into the

California SIP. However, rule 435

contains language within the rule which

will make its applicability void upon

final approval of the NOX waiver.

Response to Public Comments

A 30-day public comment period was

provided in 59 FR 65523. EPA received

no comments specifically regarding the

Monterey Bay exemption petition.

However, in August 1994, three

environmental groups submitted joint

comments on the proposed approvals of

NOX exemptions for the Ohio and

Michigan ozone nonattainment areas.

The comments address EPA’s policy

regarding NOX exemptions in general

and apply to all actions EPA takes

regarding section 182(f) NOX

exemptions. Therefore, these comments

are addressed below.

Comment: The commenters argued

that NOX exemptions are provided for in

two separate parts of the CAA, section

182(b)(1) and section 182(f). Because the

NOX exemption tests in subsections

182(b)(1) and 182(f)(1) include language

indicating that action on such requests

should take place ‘‘when [EPA]

approves a plan or plan revision,’’ these

commenters conclude that all NOX

exemption determinations by the EPA,

including exemption actions taken

under the petition process established

by subsection 182(f)(3), must occur

during consideration of an approvable

attainment or maintenance plan, unless

the area has been redesignated as

attainment. These commenters also

argue that even if the petition

procedures of subsection 182(f)(3) may

be used to relieve areas of certain NOX

requirements, exemptions from the NOX

conformity requirements must follow

the process provided in subsection

182(b)(1), since this is the only

provision explicitly referenced by

section 176(c), the CAA’s conformity

provisions.

Response: Section 182(f) contains

very few details regarding the

administrative procedure for acting on

NOX exemption requests. The absence

of specific guidelines by Congress leaves

EPA with discretion to establish

reasonable procedures, consistent with

the requirements of the APA.

The EPA disagrees with the

commenters regarding the process for

considering exemption requests under

section 182(f), and instead believes that

subsections 182(f)(1) and 182(f)(3)

provide independent procedures by

which the EPA may act on NOX

exemption requests. The language in

subsection 182(f)(1), which indicates

that the EPA should act on NOX

exemptions in conjunction with action

on a plan or plan revision, does not

appear in subsection 182(f)(3). And,

while subsection 182(f)(3) references

subsection 182(f)(1), the EPA believes

that this reference encompasses only the

substantive tests in paragraph (1) [and,

by extension, paragraph (2)], not the

procedural requirement that the EPA act

on exemptions only when acting on

SIPs. Additionally, paragraph (3)

provides that ‘‘person[s]’’ (which

section 302(e) of the CAA defines to

include States) may petition for NOX

exemptions ‘‘at any time,’’ and requires

the EPA to make its determination

within six months of the petition’s

submission. These key differences lead

EPA to believe that Congress intended

the exemption petition process of

paragraph (3) to be distinct and more

expeditious than the longer plan

revision process intended under

paragraph (1).

With respect to major stationary

sources, section 182(f) requires States to

adopt NOX NSR and RACT rules, unless

exempted. These rules were generally

due to be submitted to EPA by

November 15, 1992. Thus, in order to

avoid the CAA sanctions, areas seeking

a NOX exemption would have needed to

submit their exemption request for EPA

review and rulemaking action several

months before November 15, 1992. In

contrast, the CAA specifies that the

attainment demonstrations are not due

until November 1993 or 1994 (and EPA

may take 12–18 months to approve or

disapprove the demonstration). For

marginal ozone nonattainment areas

(subject to NOX NSR), no attainment

demonstration is called for in the CAA.

For maintenance plans, the CAA does

not specify a deadline for submittal of

maintenance demonstrations. Clearly,

the CAA envisions the submittal of and

EPA action on exemption requests, in

some cases, prior to submittal of

attainment or maintenance

demonstrations.

The CAA requires conformity to the

applicable SIP with regard to federallysupported NOX generating activities in

relevant nonattainment and

maintenance areas. However, EPA’s

conformity rules explicitly provide that

these NOX requirements would not

apply if EPA grants an exemption under

section 182(f). In response to the

comment that section 182(b)(1) should

be the appropriate vehicle for dealing

with exemptions from the NOX

requirements of the conformity rule,

EPA notes that this issue has previously

been raised in a formal petition for

reconsideration of EPA’s final

transportation conformity rule and in

litigation pending before the U.S. Court

of Appeals for the District of Columbia

Circuit on the substance of both the

transportation and general conformity

rules. The issue, thus, is under

consideration within EPA, but at this

time remains unresolved. Additionally,

subsection 182(f)(3) requires that NOX

exemption petition determinations be

made by the EPA within six months.

The EPA has stated in previous

guidance that it intends to meet this

statutory deadline as long as doing so is

consistent with the APA. The EPA,

therefore, believes that until a resolution

of this issue is achieved, the applicable

rules governing this issue are those that

appear in EPA’s final conformity

regulations, and EPA remains bound by

their existing terms.

Comment: The commenters stated

that the modeling required by EPA

guidance is insufficient to establish that

NOX reductions would not contribute to

attainment since only one level of NOX

control, i.e., ‘‘substantial’’ reductions, is

required to be analyzed. They further

explained that an area must submit an

approvable attainment plan before EPA

can know whether NOX reductions will

aid or undermine attainment.

Response: The EPA does not believe

that this comment is applicable to the

Monterey Bay exemption because the

demonstration is based on three years of

ambient monitoring data and not

modeling.

Comment: The commenters provided

a comment that three years of ‘‘clean’’

data fail to demonstrate that NOX

reductions would not contribute to

attainment, and that EPA’s policy

erroneously equates the absence of a

violation for one three-year period with

‘‘attainment.’’

Response: The EPA has separate

criteria for determining if an area should

be redesignated to attainment under

section 107 of the CAA. The section 107

criteria are more comprehensive than

the CAA requires with respect to NOX

exemptions under section 182(f).

Under section 182(f)(1)(A), an

exemption from the NOX requirements

may be granted for nonattainment areas

outside an ozone transport region if EPA
Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations 20235

2See ‘‘Section 182(f) Nitrogen Oxides (NOX)

Exemptions—Revised Process and Criteria’’, issued

February 8, 1995 by John S. Seitz, Director of EPA’s

Office of Air Quality Planning and Standards.

3There are 3 NOX exemption tests specified in

section 182(f). Of these, 2 are applicable for areas

outside an ozone transport region; the ‘‘contribute

to attainment’’ test described above, and the ‘‘net

air quality benefits’’ test. 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.’’

determines that ‘‘additional reductions

of (NOX) would not contribute to

attainment’’ of the ozone NAAQS in

those areas. In some cases, an ozone

nonattainment area might attain the

ozone standard, as demonstrated by 3

years of adequate monitoring data,

without having implemented the section

182(f) NOX provisions over that 3-year

period. The EPA believes that, in cases

where a nonattainment area is

demonstrating attainment with 3

consecutive years of air quality

monitoring data without having

implemented the section 182(f) NOX

provisions, it is clear that the section

182(f) test is met since ‘‘additional

reductions of (NOX) would not

contribute to attainment’’ of the NAAQS

in that area. The EPA’s approval of the

exemption, if warranted, would be

granted on a contingent basis (i.e., the

exemption would last for only as long

as the area’s monitoring data continue to

demonstrate attainment).

Comment: Some commenters

provided a comment on all section

182(f) actions that a waiver of NOX

controls is unlawful if such a waiver

will impede attainment and

maintenance of the ozone standard in

separate downwind areas.

Response: The EPA believes that

while this comment may be applicable

to proposed NOX exemption actions in

other areas, it is not applicable to the

Monterey Bay exemption action because

the EPA is unaware of, and the

comment itself does not specify, any

downwind areas for which NOX

transport is of concern.

However, as a result of these

comments and comments received

regarding transport in NOX exemption

requests for other areas in the United

States, EPA reevaluated its position on

this issue and decided to revise the

previously issued guidance.2 As

described below, 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 NOX emissions would contribute

significantly to nonattainment in, or

interfere with maintenance by, any

other State. This action would be

independent of any action taken by EPA

on a NOX exemption request for

stationary sources under section 182(f).

That is, EPA action to grant or deny a

NOX exemption request under section

182(f) would not shield that area from

EPA action to require NOX emission

reductions, if necessary, under section

110(a)(2)(D).

Modeling analyses are underway in

many areas for the purpose of

demonstrating attainment in the 1994

SIP revisions. Recent modeling data

suggest that certain ozone

nonattainment areas may benefit from

reductions in NOX emissions far

upwind of the nonattainment area. For

example, the northeast corridor and the

Lake Michigan areas are considering

attainment strategies which 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 these large scale

modeling analyses are being conducted,

certain nonattainment areas in the

modeling domain have requested

exemptions from NOX requirements

under section 182(f). Some areas

requesting an exemption may be

upwind of and impact upon downwind

nonattainment areas. EPA intends to

address the transport issue through

section 110(a)(2)(D) based on a domainwide modeling analysis.

Under section 182(f) of the Act, an

exemption from the NOX requirements

may be granted for nonattainment areas

outside an ozone transport region if EPA

determines that ‘‘additional reductions

of [NOX] would not contribute to

attainment of the national ambient air

quality standard for ozone in the area.’’ 3

As described in section 4.3 of the

December 16, 1993 guidance document,

EPA believes that the term ‘‘area’’ means

the ‘‘nonattainment area’’ and that

EPA’s determination is limited to

consideration of the effects in a single

nonattainment area due to NOX

emissions reductions from sources in

the same nonattainment area.

Section 4.3 of the guidance goes on to

encourage, but not require, States/

petitioners to include consideration of

the entire modeling domain, since the

effects of an attainment strategy may

extend beyond the 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 (see generally

section 110) 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)].’’

In contrast, section 4.4 of the

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 goes on

to explain that section 110(a)(2)(D) [not

section 182(f)] prohibits such impacts.

Consistent with the guidance in

section 4.3, EPA believes that the

section 110(a)(2)(D) and 182(f)

provisions must be considered

independently, and hence, is

withdrawing the guidance presently

contained in section 4.4. Thus, if there

is evidence that NOX emissions in an

upwind area would interfere with

attainment or maintenance in a

downwind area, that action should be

separately addressed by the State(s) or,

if necessary, by EPA in a section

110(a)(2)(D) action. In addition, a

section 182(f) exemption request should

be independently considered by EPA. In

some cases, then, EPA may grant an

exemption from across-the-board NOX

RACT controls under section 182(f) and,

in a separate action, require NOX

controls from stationary and/or mobile

sources under section 110(a)(2)(D). It

should be noted that the controls

required under section 110(a)(2)(D) may

be more or less stringent than RACT,

depending upon the circumstances.

Comment: Comments were received

regarding exemption of areas from the

NOX requirements of the conformity

rules. The commenters argue that such

exemptions waive only the

requirements of section 182(b)(1) to

contribute to specific annual reductions,

not the requirement that conformity

SIPs contain information showing the

maximum amount of motor vehicle NOX

emissions allowed under the

transportation conformity rules and,
20236 Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations

4See ‘‘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).

5See ‘‘Determining Conformity of General Federal

Actions to State or Federal Implementation Plans;

Final Rule,’’ November 30, 1993 (58 FR 63214).

similarly, the maximum allowable

amounts of any such NOX emissions

under the general conformity rules. The

commenters admit that, in prior

guidance, EPA has acknowledged the

need to amend a drafting error in the

existing transportation conformity rules

to ensure consistency with motor

vehicle emissions budgets for NOX, but

want EPA in actions on NOX

exemptions to explicitly affirm this

obligation and to also avoid granting

waivers until a budget controlling future

NOX increases is in place.

Response: With respect to conformity,

EPA’s conformity rules 4 5 provide a

NOX waiver if an area receives a section

182(f) exemption. In its ‘‘Conformity;

General Preamble for Exemption From

Nitrogen Oxides Provisions,’’ 59 FR

31238, 31241 (June 17, 1994), EPA

reiterated its view that in order to

conform, nonattainment and

maintenance areas must demonstrate

that the transportation plan and

transportation improvement program

(TIP) are consistent with the motor

vehicle emissions budget for NOX even

where a conformity NOX waiver has

been granted. Due to a drafting error,

that view is not reflected in the current

transportation conformity rules. As the

commenters correctly note, EPA states

in the June 17th notice that it intends to

remedy the problem by amending the

conformity rule. Although that notice

specifically mentions only requiring

consistency with the approved

maintenance plan’s NOX motor vehicle

emissions budget, EPA also intends to

require consistency with the attainment

demonstration’s NOX motor vehicle

emissions budget. However, the

exemption for Monterey Bay was

submitted pursuant to section 182(f)(3),

and EPA does not believe it is

appropriate to delay the statutory

deadline for acting on this petition until

the conformity rule is amended. As

noted earlier in response to a previous

issue raised by these commenters, this

issue has also been raised in a formal

petition for reconsideration of the

Agency’s final transportation conformity

rule and in litigation pending before the

U.S. Court of Appeals for the District of

Columbia Circuit on the substance of

both the transportation and general

conformity rules. This issue, thus, is

under consideration within the Agency,

but at this time remains unresolved. The

EPA, therefore, believes that until a

resolution of this issue is achieved, the

applicable rules governing this issue are

those that appear in the Agency’s final

conformity regulations, and the Agency

remains bound by their existing terms.

Comment: The commenters argue that

the CAA does not authorize any waiver

of the NOX reduction requirements until

conclusive evidence exists that such

reductions are counter-productive.

Response: EPA does not agree with

this comment since it ignores

Congressional intent as evidenced by

the plain language of section 182(f), the

structure of the Title I ozone subpart as

a whole, and relevant legislative history.

By contrast, in developing and

implementing its NOX exemption

policies, EPA has sought an approach

that reasonably accords with Congress’

intent. Section 182(f), in addition to

imposing control requirements on major

stationary sources of NOX similar to

those that apply for such sources of

VOC, also provides for an exemption (or

limitation) from application of these

requirements if, under one of several

tests, EPA determines that in certain

areas NOX reductions would generally

not be beneficial. In subsection

182(f)(1), Congress explicitly

conditioned action on NOX exemptions

on the results of an ozone precursor

study required under section 185B.

Because of the possibility that reducing

NOX in a particular area may either not

contribute to ozone attainment or may

cause the ozone problem to worsen,

Congress included attenuating language,

not just in section 182(f) but throughout

the Title I ozone subpart, to avoid

requiring NOX reductions where it

would be nonbeneficial or

counterproductive. In describing these

various ozone provisions (including

section 182(f)), the House Conference

Committee Report states in pertinent

part: ‘‘[T]he Committee included a

separate NOX/VOC study provision in

section [185B] to serve as the basis for

the various findings contemplated in the

NOX provisions. The Committee does

not intend NOX reduction for

reduction’s sake, but rather as a measure

scaled to the value of NOX reductions

for achieving attainment in the

particular ozone nonattainment area.’’

H.R. Rep. No. 490, 101st Cong., 2d Sess.

257–258 (1990). As noted in response to

an earlier comment by these same

commenters, the command in

subsection 182(f)(1) that EPA ‘‘shall

consider’’ the 185B report taken together

with the timeframe the Act provides

both for completion of the report and for

acting on NOX exemption petitions

clearly demonstrate that Congress

believed the information in the

completed section 185B report would

provide a sufficient basis for EPA to act

on NOX exemption requests, even

absent the additional information that

would be included in affected areas’

attainment or maintenance

demonstrations. However, while there is

no specific requirement in the Act that

EPA actions granting NOX exemption

requests must await ‘‘conclusive

evidence’’, as the commenters argue,

there is also nothing in the Act to

prevent EPA from revisiting an

approved NOX exemption if warranted

due to better ambient information.

In addition, the EPA believes (as

described in EPA’s December 1993

guidance) that section 182(f)(1) of the

CAA provides that the new NOX

requirements shall not apply (or may be

limited to the extent necessary to avoid

excess reductions) if the Administrator

determines that any one of the following

tests is met:

(1) In any area, the net air quality

benefits are greater in the absence of

NOX reductions from the sources

concerned;

(2) In nonattainment areas not within

an ozone transport region, additional

NOX reductions would not contribute to

ozone attainment in the area; or

(3) In nonattainment areas within an

ozone transport region, additional NOX

reductions would not produce net ozone

air quality benefits in the transport

region.

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.

Only the first test listed above is

based on a showing that NOX reductions

are ‘‘counter-productive.’’ If 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.

EPA Action

EPA is finalizing this action to exempt

Monterey Bay from implementing the

NOX requirements for RACT, NSR, the

applicable general and transportation

conformity requirements, and I/M.

The EPA believes that all section

182(f) exemptions that are approved

should be approved only on a

contingent basis. As described in the

EPA’s NOX Supplement to the General

Preamble (57 FR 55628, November 25,

1992) and further guidance issued by
Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations 20237

6See ‘‘Section 182(f) Nitrogen Oxides (NOX)

Exemptions—Revised Process and Criteria’’, issued

by John S. Seitz, Director, Office of Air Quality

Planning and Standards (MD–10), May 27, 1994.

EPA,6 section 182(f) exemptions are

granted on a contingent basis and last

for only as long as the area’s monitoring

data continue to demonstrate

attainment. Monterey Bay is required to

continue to operate an appropriate air

quality monitoring network, in

accordance with 40 CFR part 58, to

verify the attainment status of the area.

If, prior to redesignation of the area to

attainment, a violation of the ozone

NAAQS is monitored in Monterey Bay

(consistent with the requirements

contained in 40 CFR part 58 and

recorded in AIRS), the section 182(f)

exemption would no longer apply, as of

the date EPA makes a determination

that a violation has occurred. EPA

would notify the area that the

exemption no longer applies, and would

also provide notice to the public in the

Federal Register. If the exemption is

revoked, the area must comply with any

applicable NOX requirements set forth

in the CAA. Thus, a determination that

the NOX exemption no longer applies

would mean that the applicable NOX

NSR, general and transportation

conformity, and I/M provisions would

immediately be applicable (see 58 FR

63214 and 58 FR 62188) in Monterey

Bay.

If Monterey Bay is redesignated to

attainment of the ozone NAAQS, NOX

RACT is to be implemented as provided

for as contingency measures in the

maintenance plan.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any state

implementation plan. Each request for

revision to the state implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

Regulatory Process

Under Executive Order 12866 (58 FR

51735, October 4, 1993), the EPA must

determine whether the regulatory action

is ‘‘significant’’, and therefore subject to

Office of Management and Budget

(OMB) review and the requirements of

the Executive Order. It has been

determined that this action is not a

‘‘significant regulatory action’’ under

the terms of Executive Order 12866, and

is therefore not subject to OMB review.

Under sections 202, 203, and 205 of

the Unfunded Mandates Reform Act of

1995 (‘‘Unfunded Mandates Act’’),

signed into law on March 22, 1995, 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.

EPA’s final action relieves

requirements otherwise imposed under

the CAA and, hence does not impose

and 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 May 25, 1995. Filing a

petition for reconsideration by the

Administrator of this 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 a rule. This action may not be

challenged later in proceedings to

enforce its requirements. Section

307(b)(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Intergovernmental relations, Nitrogen

dioxide, Ozone, Reporting and

recordkeeping requirements, Volatile

organic compounds.

Dated: April 12, 1995.

Felicia Marcus,

Regional Administrator.

Part 52, chapter I, title 40 of the Code

of Federal Regulations 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 D—California

2. Subpart F is amended by adding

§ 52.235 to read as follows:

§ 52.235 Control strategy for ozone:

Oxides of nitrogen.

EPA is approving an exemption

request submitted by the Monterey Bay

Unified Air Pollution Control District on

April 26, 1994 for the Monterey Bay

ozone nonattainment area from the NOX

RACT requirements contained in

section 182(f) of the Clean Air Act. This

approval exempts the area from

implementing the oxides of nitrogen

(NOX) requirements for reasonably

available control technology (RACT),

new source review (NSR), the related

requirements of general and

transportation conformity regulations,

and applicable inspection and

maintenance (I/M). The exemption is

based on ambient air monitoring data

and lasts for only as long as the area’s

monitoring efforts continue to

demonstrate attainment without NOX

reductions from major stationary

sources.

[FR Doc. 95–10104 Filed 4–24–95; 8:45 am]

BILLING CODE 6560–50–W

40 CFR Part 81

[CA132–1–6898; 5159–6]

California, Sacramento Ozone

Nonattainment Area, Reclassification

to Severe

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: On November 6, 1991, the

Sacramento Metro ozone nonattainment

area was classified under the Clean Air

Act (CAA) as ‘‘Serious’’ with an

attainment date of no later than 1999.

On November 15, 1994, California

submitted the State implementation

plan (SIP) for ozone attainment. For the

Sacramento Metro ozone nonattainment

area, the SIP relied on an attainment

date of 2005. On December 29, 1994, the

State submitted a revision to the SIP

which reaffirmed the 2005 attainment

date. EPA construes these submittals to

be a voluntary request for a

reclassification of the Sacramento Metro

area from a ‘‘Serious’’ to a ‘‘Severe’’

ozone nonattainment area pursuant to

section 181(b)(3) of the CAA. EPA is

granting California’s request for

reclassification of the Sacramento Metro

area to ‘‘Severe’’ in today’s document.

EFFECTIVE DATE: June 1, 1995.

ADDRESSES: Materials relevant to this

document can be found in the following

locations: EPA Air Docket Section, Attn:

Docket No. A–94–09, Environmental

Protection Agency (Mail Code—6102),

Waterside Mall, Room M–1500, 401 M

Street, S.W., Washington, DC 20460,

(phone 202–260–7549).

The docket is available for public

inspection between 8:30 a.m. and 12

noon, and between 1:30 p.m. and 3:30

p.m. EPA may charge a reasonable fee

for copying.