3760 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

U.S.C. 7401 et seq.) and the Federal Water

Pollution Control Act as amended (33 U.S.C.

1251 et seq.). Violations shall be reported to

the Federal awarding agency and the

Regional Office of the Environmental

Protection Agency (EPA).

7. Byrd Anti-Lobbying Amendment (31

U.S.C. 1352)—Contractors who apply or bid

for an award exceeding $100,000 shall file

the required certification. Each tier certifies

to the tier above that it will not and has not

used Federal appropriated funds to pay any

person or organization for influencing or

attempting to influence an officer or

employee of any agency, a member of

Congress, officer or employee of Congress, or

an employee of a member of Congress in

connection with obtaining any Federal

contract, grant or any other award covered by

31 U.S.C. 1352. Each tier shall also disclose

any lobbying with non-Federal funds that

takes place in connection with obtaining any

Federal award. Such disclosures are

forwarded from tier to tier up to the

recipient.

8. Debarment and Suspension (E.O.s 12549

and 12689)—Certain contracts shall not be

made to parties listed on the nonprocurement

portion of the General Services

Administration’s ‘‘Lists of Parties Excluded

from Federal Procurement or

Nonprocurement Programs’’ in accordance

with E.O.s 12549 and 12689, ‘‘Debarment and

Suspension.’’ This list contains the names of

parties debarred, suspended, or otherwise

excluded by agencies, and contractors

declared ineligible under statutory or

regulatory authority other than E.O. 12549.

Contractors with awards that exceed the

small purchase threshold shall provide the

required certification regarding its exclusion

status and that of its principals.

9. Contracts which require performance

outside the United States shall contain a

provision requiring Worker’s Compensation

Insurance (42 U.S.C. 1651, et seq.). As a

general rule, Department of Labor waivers

will be obtained for persons employed

outside the United States who are not United

States citizens or residents provided

adequate protection will be given such

persons. The recipient should refer questions

on this subject to the USAID Agreement

Officer.

* * * * *

Dated: January 6, 1995.

Michael D. Sherwin,

Deputy Assistant Administrator for

Management.

[FR Doc. 95–975 Filed 1–18–95; 8:45 am]

BILLING CODE 6116–01–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[OH71–1–6781, OH72–1–6782; FRL–5140–7]

Approval and Promulgation of

Implementation Plans; Ohio

AGENCY: Environmental Protection

Agency (USEPA).

ACTION: Final rule.

SUMMARY: The USEPA is approving, in

final, two exemption requests from the

requirements contained in section 182(f)

of the Clean Air Act (Act) for the Toledo

and Dayton ozone nonattainment areas

in Ohio. These exemption requests,

submitted by the State of Ohio, are

based upon three years of ambient air

monitoring data which demonstrate that

the National Ambient Air Quality

Standard (NAAQS) for ozone has been

attained in each of these areas without

additional reductions of nitrogen oxides

(NOX). Section 182(f) of the Act requires

States with areas designated

nonattainment of the NAAQS for ozone,

and classified as moderate

nonattainment and above, to adopt

reasonably available control technology

(RACT) rules for major stationary

sources of NOX, and to provide for

nonattainment area new source review

(NSR) for new sources and

modifications that are major for NOX.

Section 182(f) provides that these

requirements do not apply for areas

outside an ozone transport region if

USEPA determines that additional

reductions of NOX would not contribute

to attainment of the NAAQS for ozone

in the area.

EFFECTIVE DATE: This action will be

effective February 21, 1995.

ADDRESSES: Written comments should

be addressed to:

William MacDowell, Chief, Regulation

Development Section, Air

Enforcement Branch (AE–17J), U.S.

Environmental Protection Agency,

Region 5, 77 West Jackson Boulevard,

Chicago, Illinois 60604.

A copy of the exemption requests are

available for inspection at the following

location (it is recommended that you

contact Richard Schleyer at (312) 353–

5089 before visiting the Region 5 office):

United States Environmental Protection

Agency, Region 5, Air Enforcement

Branch, Air and Radiation Division,

77 West Jackson Boulevard, Chicago,

Illinois, 60604.

FOR FURTHER INFORMATION CONTACT:

Richard Schleyer, Regulation

Development Section, Air Enforcement

Branch (AE–17J), Region 5, United

States Environmental Protection

Agency, 77 West Jackson Boulevard,

Chicago, Illinois, 60604, (312) 353–

5089.

SUPPLEMENTARY INFORMATION:

I. Background

The air quality planning requirements

for the reduction of NOX emissions are

set out in section 182(f) of the Act.

Section 182(f) of the Act requires States

with areas designated nonattainment of

the NAAQS for ozone, and classified as

moderate nonattainment and above, to

impose the same control requirements

for major stationary sources of NOX as

apply to major stationary sources of

volatile organic compounds (VOC).

These requirements include the

adoption of RACT rules for major

stationary sources and nonattainment

area NSR for major new sources and

major modifications. Section 182(f)

provides further that these NOX

requirements do not apply for areas

outside an ozone transport region if

USEPA determines that additional

reductions of NOX would not contribute

to attainment. Also, the NOX-related

general and transportation conformity

provisions (see 58 FR 63214 and 58 FR

62188) would not apply in an area that

is granted a section 182(f) exemption. In

an area that did not implement the

section 182(f) NOX requirements, but

did achieve attainment of the ozone

standard, as demonstrated by ambient

air monitoring data (consistent with 40

CFR Part 58 and recorded in the

USEPA’s—Aerometric Information

Retrieval System (AIRS)), it is clear that

the additional NOX reductions required

by section 182(f) would not contribute

to attainment.

II. Criteria for Evaluation of Section

182(f) Exemption Requests

The criteria established for the

evaluation of an exemption request from

the section 182(f) requirements are set

forth in a memorandum from John S.

Seitz, Director, Office of Air Quality

Planning and Standards, dated May 27,

1994, entitled ‘‘Section 182(f) Nitrogen

Oxides (NOX) Exemptions—Revised

Process and Criteria.’’ Additional

guidance is provided in a document

entitled ‘‘Guideline for Determining the

Applicability of Nitrogen Oxides

Requirements Under Section 182(f),’’

dated December 1993, from USEPA,

Office of Air Quality Planning and

Standards, Air Quality Management

Division.

III. State Submittals

On September 20, 1993, and

November 8, 1993, the State of Ohio

submitted requests to redesignate the

Toledo (Lucas and Wood Counties) and

Dayton (Montgomery, Greene, Miami,

and Clark Counties) ozone

nonattainment areas to attainment areas

for the NAAQS for ozone. These

redesignation requests are currently

under review and will be evaluated in

a separate rulemaking.

Included as part of the redesignation

submittals were requests that the Toledo

and Dayton ozone nonattainment areas
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3761

1Additional clarification concerning the I/M

requirements and areas with no NOX exemptions is

provided in a memorandum from Mary T. Smith,

Acting Director, Office of Mobile Sources, dated

October 14, 1994, entitled ‘‘I/M Requirements in

NOX RACT Exempt Areas.’’

be exempt from the requirements

contained in section 182(f) of the Act.

These exemption requests are based

upon three years of ambient air

monitoring data (1991–1993) which

demonstrate that the NAAQS for ozone

has been attained in each of these areas

without additional reductions of NOX.

IV. Analysis of State Submittals

The USEPA has reviewed the ambient

air monitoring data for ozone (consistent

with the requirements contained in 40

CFR part 58 and recorded in AIRS)

submitted by the OEPA in support of

these exemption requests.

For ozone, an area is considered

attainment of the NAAQS if there are no

violations, as determined in accordance

with 40 CFR Part 50.9, based on quality

assured monitoring data from three

complete consecutive calendar years. A

violation of the ozone NAAQS occurs

when the annual average number of

expected exceedances is greater than 1.0

at any site in the area at issue. An

exceedance occurs when the daily

maximum hourly ozone concentration

exceeds 0.124 parts per million (ppm).

The following ozone exceedances

were recorded for the period from 1991

to 1993:

Toledo: Lucas County, 306 N. Yondota

(1991)—0.127 ppm and (1993)—0.126

ppm; average expected exceedances:

0.7. Friendship Park (1993)—0.136

ppm; average expected exceedances:

0.3.

Dayton: Montgomery County, 2100

Timberlane (1993)—0.125 ppm;

average expected exceedances: 0.3.

Thus, the annual average expected

exceedances in a three year period were

less than 1.0 and both areas are meeting

the air quality standard for ozone.

A more detailed summary of the

ozone monitoring data for both areas is

provided in the USEPA technical

support document dated April 20, 1994.

V. NOX RACT Rules

The State of Ohio submitted adopted

NOX RACT rules to USEPA on July 1,

1994, for the Toledo, Dayton, and

Cleveland ozone nonattainment areas.

These rules are currently under review

and will be evaluated in a separate

rulemaking. These rules, when

approved by USEPA, may be suspended

by the State for the Toledo and Dayton

areas upon the final approval effective

date of the Section 182(f) exemption

requests addressed in this Notice.

VI. Inspection and Maintenance (I/M)

Programs

The I/M Final Rule (57 FR 52950)

requires States to submit to USEPA a

fully adopted I/M program by November

15, 1993. At this time, however, the

preliminary interpretive guidance on

basic I/M, is discussed in the USEPA

policy memorandum dated September

17, 1993, from Michael H. Shapiro,

Acting Assistant Administrator for Air

and Radiation, entitled ‘‘State

Implementation Plan 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,’’ (Shapiro Memorandum). The

Shapiro Memorandum provides that, for

areas where maintenance plans do not

rely on implementation of a basic I/M

program immediately following

redesignation, upon revision to the I/M

rule, if a State adopts and submits as a

revision to its SIP the following:

• The legislative authority for a basic

I/M program;

• A provision in the SIP providing

that basic I/M be placed in the

contingency measure portion of the

maintenance plan upon redesignation;

and

• An enforceable schedule and

commitment by the Governor or his/her

designee for adoption and

implementation of a basic I/M program

upon a specified, appropriate triggering

event;

The State would have met the

minimum requirements for I/M as they

relate to USEPA’s consideration of the

State’s redesignation request submitted

for a nonattainment area. The USEPA is

presently proceeding to establish this

interpretation through regulatory action

(see 59 FR 33237).

The State of Ohio is required to adopt

a basic I/M program for the Toledo

ozone nonattainment area

(encompassing Lucas and Wood

Counties). However, the State has

submitted a redesignation request (SIP

revision) to attainment of the NAAQS

for ozone for the Toledo area. This SIP

revision includes legislative authority

for the adoption of a basic I/M program;

a basic I/M program as a contingency

measure in the maintenance plan upon

redesignation; and an enforceable

schedule for the implementation of the

basic I/M program upon a specified

triggering event. Under the approach set

forth in the Shapiro Memorandum, the

State has met the requirements for an

area requesting redesignation that is

required to adopt a basic I/M program.

For the Dayton ozone nonattainment

area (encompassing Clark, Greene,

Miami, and Montgomery Counties), the

Dayton local area has opted for an

enhanced I/M program. This requires

the Dayton area to comply with all

applicable enhanced I/M program

requirements. The I/M Final Rule (57 FR

52950) provides that if the USEPA

Administrator determines that NOX

emission reductions are not beneficial

in a given ozone nonattainment area,

then NOX emission reductions are not

required of the enhanced I/M program,

but the program shall be designed to

offset NOX increases resulting from the

repair of hydrocarbon (HC) and carbon

monoxide (CO) failures.1

Upon the effective date of this action,

the Dayton area shall not be required to

demonstrate compliance with the

enhanced I/M performance standard for

NOX. However, the Dayton area shall be

required to demonstrate, using USEPA’s

Mobile Source Emissions Model, Mobile

5a (or its successor), that NOX emissions

will be no higher than in the absence of

any I/M program.

VII. Withdrawal of the Exemptions

Continuation of the Section 182(f)

exemptions granted herein is contingent

upon continued monitoring and

continued attainment and maintenance

of the ozone NAAQS in the affected

areas. If a violation of the ozone NAAQS

is monitored in the Toledo or Dayton

area(s) (consistent with the

requirements contained in 40 CFR part

58 and recorded in AIRS), USEPA will

provide notice to the public in the

Federal Register. A determination that

the NOX exemption no longer applies

would mean that the NOX NSR and the

NOX-related general and transportation

conformity provisions would

immediately be applicable (see 58 FR

63214 and 58 FR 62188). The NOX

RACT requirements would also be

applicable, with a reasonable time

provided as necessary to allow major

stationary sources subject to the RACT

requirements to purchase, install and

operate the required controls. The

USEPA believes that the State may

provide sources a reasonable time

period after the USEPA determination to

actually meet the RACT emission limits.

The USEPA expects such time period to

be as expeditious as practicable, but in

no case longer than 24 months. If a

nonattainment area is redesignated to

attainment of the ozone NAAQS, NOX

RACT shall be implemented as stated in

the USEPA-approved maintenance plan.

VIII. Notice of Proposed Rulemaking

and Responses to Comments

The USEPA published a notice

proposing to approve the exemption
3762 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

2Section 302(e) of the Act defines the term

‘‘person’’ to include States.

3The final section 185B report was issued July

30, 1993.

requests for the Toledo and Dayton

nonattainment areas in the July 26, 1994

Federal Register (59 FR 37947). The

USEPA received comments supporting

and adverse to this proposed action.

Copies of all comments have been

placed in the docket file. The following

entities submitted adverse or supporting

comments. Some of the comments

addressed similar points. The USEPA

has responded to the adverse comments

by issue as set forth below.

Submitting Entity (Date Received by

USEPA)

Citizens Campaign for the

Environment (7–27–94); Natural

Resources Defense Council (8–9–94 and

8–24–94); New York State Electric and

Gas Corporation (8–10–94); Northeast

States for Coordinated Air Use

Management (8–15–94 and 9–28–94);

State of New York Department of

Environmental Conservation (8–16–94

and 10–05–94); Commonwealth of

Pennsylvania Department of

Environmental Resources (8–31–94);

Southern Environmental Law Center

(10–3–94); Pollution Probe (10–03–94);

Ohio Sierra Club (10–03–94);

Conservation Law Foundation (10–03–

94); The Lung Association (Ontario, 10–

11–94); Ohio Environmental Protection

Agency (10–26–94); Fuller & Henry (10–

26–94); and Individual Residents from

the State of Ohio (various dates between

8/31/94 and 10/13/94).

A summary of the adverse comments

and USEPA’s responses follows:

Procedural Comments: Several

commenters argued that USEPA should

not approve the waiver requests at issue

on procedural grounds. NOX

exemptions are provided for in two

separate parts of the Act, section

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

Commenters took the position that

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,’’ that all NOX exemption

determinations by USEPA, 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 to

attainment for the ozone NAAQS. 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), in the Act’s conformity

provisions.

USEPA Response: Section 182(f)

contains very few details regarding the

administrative procedure for USEPA

action on NOX exemption requests. The

absence of specific guidelines by

Congress leaves USEPA with discretion

to establish reasonable procedures,

consistent with the requirements of the

Administrative Procedure Act (APA).

Despite the interpretation of the

commenters regarding the process for

considering exemption requests under

section 182(f), USEPA believes that

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

provide independent procedures for

USEPA to act on NOX exemption

requests. The language in subsection

182(f)(1), which indicates that USEPA

should act on NOX exemptions in

conjunction with action on a plan or

plan revision, does not appear in

subsection 182(f)(3). While subsection

182(f)(3) references subsection 182(f)(1),

USEPA believes that this reference

encompasses only the substantive tests

in paragraph (1) [and, by extension,

paragraph (2)], and not the procedural

requirement that USEPA act on

exemptions only when acting on SIPs.

Additionally, paragraph (3) provides

that ‘‘person[s]’’ (which section 302(e)

of the Act defines to include States) may

petition for NOX exemptions ‘‘at any

time,’’ and requires USEPA to make its

determination within six months of the

petition’s submission. These key

differences lead USEPA 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).

Section 182(f)(1) 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

‘‘person[s]’’ 2 may petition for a NOX

determination ‘‘at any time’’ after the

ozone precursor study required under

section 185B of the Act is finalized,3

and gives USEPA a limit of 6 months

after filing to grant or deny such

petitions. Since individuals may submit

petitions under paragraph (3) ‘‘at any

time’’ this must include times when

there is no plan revision from the State

pending at USEPA. The specific

timeframe for USEPA action established

in paragraph (3) is substantially shorter

than the timeframe usually required for

States to develop and for USEPA to take

action on revisions to a SIP. These

differences strongly suggest that

Congress intended the process for acting

on petitions under paragraph (3) to be

distinct—and more expeditious—from

the plan revision process intended

under paragraph (1). Thus, USEPA

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 (1) for USEPA

to grant exemptions only when acting

on plan revisions.

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 USEPA by

November 15, 1992. Thus, in order to

avoid sanctions under the Act, areas

seeking a NOX exemption would have

needed to submit their exemption

request for USEPA review and

rulemaking action several months before

November 15, 1992. In contrast, the Act

specifies that the attainment

demonstrations are not due until

November 1993 or 1994 (and USEPA

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 Act.

For maintenance plans, the Act does not

specify a deadline for submittal of

maintenance demonstrations. Clearly,

the Act envisions the submittal of, and

USEPA action on, exemption requests,

in some cases, prior to submittal of

attainment or maintenance

demonstrations.

The Act requires conformity with

regard to federally-supported NOX

generating activities in relevant

nonattainment and maintenance areas.

However, USEPA’s conformity rules

explicitly provide that these NOX

requirements would not apply if USEPA

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, USEPA notes

that this issue has previously been

raised in a formal petition for

reconsideration of USEPA’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. Thus the issue is under further

consideration, but at this time the

Agency’s position is as stated above.
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3763

4 ‘‘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, dated December 19, 1993.

Additionally, subsection 182(f)(3)

requires that NOX exemption petition

determinations be made by USEPA

within six months. The USEPA has

stated in previous guidance that it

intends to meet this statutory deadline

as long as doing so is consistent with

the APA. The USEPA believes that the

applicable rules governing this issue are

those that appear in USEPA’s final

conformity regulations, and that USEPA

remains bound by their existing terms.

Modeling Comments: Some

commenters stated that the modeling

required by USEPA 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 explain that an area must

submit an approvable attainment plan

before USEPA can know whether NOX

reductions will aid or undermine

attainment.

USEPA Response: As described in

USEPA’s December 1993 NOX

exemption guidance,4 photochemical

grid modeling is generally needed to

document cases where NOX reductions

are counterproductive to net air quality,

do not contribute to attainment, do not

show a net ozone benefit, or include

excess reductions. The Urban Airshed

Model (UAM) or, in the Ozone

Transport Region (OTR), the Regional

Oxidant Model (ROM), are acceptable

methods for these purposes. The

December guidance also provides that,

under the ‘‘not contribute to attainment

test,’’ an area may qualify for a NOX

exemption by attaining the ozone

standard, as demonstrated by three

years of ambient air monitoring data.

The exemption requests submitted by

the State for the Toledo and Dayton

areas are based upon ambient air

monitoring data. Therefore, adverse

comments submitted concerning

modeling are not relevant to this action,

and are not being further addressed.

Public Hearing Request: Some

commenters requested that a public

hearing be held on this action.

USEPA Response: This action is not

considered a SIP revision and therefore

the requirement for a public hearing

under section 110(a) of the Act is not

applicable.

Environmental Impact Statement

(EIS) Request: Some commenters

requested that an EIS be prepared

regarding this action.

USEPA Response: All Clean Air Act

programs are exempted from the

procedural requirements of the National

Environmental Policy Act (NEPA) under

section 7(c)(1) of the Energy Supply and

Environmental Coordination Act, 15

U.S.C. 793(c)(1). Therefore, USEPA is

not preparing an EIS for this action.

SIP Status Request: One commenter

requested the status of other SIP

revisions (i.e., the 15% rate-of-progress

plan and the redesignation request)

required to be submitted by the State.

USEPA Response: This action only

addresses the section 182(f) exemption

requests submitted by the State of Ohio

for the Toledo and Dayton areas and

USEPA final action on such requests are

not dependent on final actions on other

required SIP submittals, such as the

ones mentioned. Non-related SIP

revisions will be dealt with separately.

Toledo Transportation Improvement

Program (TIP): One commenter

provided comments on the basis of the

determination of the conformity of the

Toledo TIP and analysis of other Ohio

TIPs.

USEPA Response: This action only

addresses the section 182(f) exemption

requests submitted by the State of Ohio

for the Toledo and Dayton areas.

Therefore, the comment is not being

further addressed.

Attainment Data Comments: Three

years of ‘‘clean’’ data fail to demonstrate

that NOX reductions would not

contribute to attainment of the NAAQS

for ozone. The USEPA’s policy

erroneously equates the absence of a

violation for one three-year period with

‘‘attainment.’’

USEPA Response: The USEPA has

separate criteria for determining if an

area should be redesignated to an ozone

attainment area under section 107 of the

Act. The section 107 redesignation

criteria are more comprehensive than

the Act 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 OTR if USEPA 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.

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, USEPA believes that the

section 182(f) test is met since

‘‘additional reductions of (NOX) would

not contribute to attainment’’ of the

NAAQS in that area. In cases where it

is warranted, USEPA’s approval of the

exemption is 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).

Downwind Area Comments: Several

commenters argued that USEPA’s

December 1993 guidance prohibits

granting a section 182(f) waiver based

on 3 years of clean data if evidence

exists showing that the waiver would

interfere with attainment or

maintenance in downwind areas. The

commenters argued that such condition

should also apply to waiver requests

based on modeling. Exemptions in Ohio

cities, they claim, are likely to

exacerbate ozone nonattainment

downwind, and therefore are not

consistent with the Act. If the

exemptions are granted, emissions from

new stationary sources and the

transportation sector in Ohio, which are

projected to increase, could delay

attainment of the ozone standard in

areas in the northeastern United States.

These commenters further claim that

USEPA modeling has demonstrated that

Ohio is a significant contributor to

atmospheric transport of ozone

precursors to the OTR. Since this

modeling indicates that emissions of

NOX from stationary sources west of the

OTR contribute to increased ozone

levels in the northeast, they argued that

control of NOX emissions in the OTR

and in States west of the OTR will

contribute to significant reductions in

peak ozone levels within the OTR.

USEPA Response: As a result of such

comments, USEPA has re-evaluated its

position on this issue and decided to

revise the previously-issued guidance.

As described below, USEPA 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 USEPA on a NOX

exemption request for stationary sources

under section 182(f). That is, USEPA

action to grant or deny a NOX

exemption request under section 182(f)

would not shield that area from USEPA

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
3764 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

5There are three NOX exemption tests specified

in section 182(f). Of these, two are applicable for

areas outside an ozone transport region; the

‘‘contribute to attainment’’ test described above,

and the ‘‘net air quality benefits’’ test. The USEPA

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),

USEPA 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 USEPA 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.’’

6 ‘‘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).

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 miles upwind. The USEPA 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,

USEPA 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 that are

located in the area being modeled, have

requested exemptions from NOX

requirements under section 182(f). Some

areas requesting an exemption may

impact upon downwind nonattainment

areas. The USEPA intends to address

the transport issue through section

110(a)(2)(D) based on a domain-wide

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

USEPA determines that ‘‘additional

reductions of (NOX) would not

contribute to attainment of the national

ambient air quality standard for ozone

in the area.’’ 5 As described in section

4.3 of the December 16, 1993 guidance

document, USEPA believes that the

term ‘‘area’’ means the ‘‘nonattainment

area,’’ and that USEPA’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, USEPA believes that the

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

provisions must be considered

independently. 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 USEPA in a section

110(a)(2)(D) action. A section 182(f)

exemption request should be

independently considered by USEPA. In

some cases, then, USEPA 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.

Consistent with these principles,

USEPA is approving these exemption

requests under 182(f) of the Act. If

evidence appears that NOX emissions in

an upwind area would interfere with

attainment or maintenance in a

downwind area, appropriate action shall

be taken by the State(s) or, if necessary,

by USEPA under section 110(a)(2)(D).

Scope of Exemption Comments:

Comments were received regarding

exemption of areas from the NOX

requirements of the conformity rules.

Several commenters argue that the

exemptions should 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,

similarly, the maximum allowable

amounts of any such NOX emissions

under the general conformity rules. The

commenters admit that, in prior

guidance, USEPA 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 USEPA, 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.

USEPA Response: With respect to

conformity, USEPA’s conformity rules 6

provide a NOX waiver if an area receives

a section 182(f) exemption. In

rulemaking on ‘‘Conformity; General

Preamble for Exemption From Nitrogen

Oxides Provisions,’’ 59 FR 31238, 31241

(June 17, 1994), USEPA reiterated its

view that in order to conform,

nonattainment and maintenance areas

must demonstrate that both the

transportation plan and the

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, USEPA

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, USEPA also intends

to require consistency with the

attainment demonstration’s NOX motor

vehicle emissions budget. However, the

exemptions at issue were submitted

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

USEPA does not believe it is

appropriate to delay action on these

petitions, especially in light of the sixmonth statutory deadline provided for

such action, until the conformity rule is

amended. As noted above, 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
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3765

transportation and general conformity

rules. Thus this issue is under

consideration, but at this time the

Agency’s position remains as stated.

The USEPA, therefore, believes that

until the issue is resolved, 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.

Conclusive Evidence Comment: The

Act does not authorize any waiver of the

NOX reduction requirements until

conclusive evidence exists that such

reductions are counter-productive.

USEPA Response: The USEPA does

not agree with this comment since it is

contrary to 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. In developing and

implementing its NOX exemption

policies, USEPA has sought an approach

that reasonably accords with that 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, USEPA 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 they

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 a comment

discussed above, the command in

subsection 182(f)(1) that USEPA ‘‘shall

consider’’ the section 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 USEPA 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

USEPA actions granting NOX exemption

requests must await ‘‘conclusive

evidence,’’ as the commenters argue,

there is also nothing in the Act to

prevent USEPA from revisiting an

approved NOX exemption if warranted

due to subsequent ambient monitoring

information.

In addition, USEPA believes (as

described in USEPA’s December 1993

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

Act provides that the new NOX

requirements shall not apply (or may by

limited to the extent necessary to avoid

excess reductions) if the USEPA

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), USEPA believes that each test

provides an independent basis for the

granting of a full or limited NOX

exemption. Only the first test listed

above is based on a showing that NOX

reductions are ‘‘counter-productive.’’ If

even one of the tests is met, the section

182(f) NOX requirements would not

apply or, under the excess reductions

provision, a portion of these

requirements would not apply.

Transboundary Pollution Comment:

Several commenters noted that the

Canada-U.S. Air Quality Agreement

signed by the two countries on March

13, 1991, calls for each Party to notify

the other of a proposed action, activity

or project likely to cause significant

transboundary air pollution, and, as

appropriate, to take measures to avoid

or mitigate the potential risk.

USEPA Response: The USEPA takes

seriously international agreements

entered into by our government.

However, USEPA does not believe that

the action of granting a NOX exemption

request would likely cause significant

transboundary air pollution. The action

to grant or deny these exemption

requests will determine the amount of

emission reductions, but not cause new

or additional transboundary air

pollution.

Air Quality Comment: Several

commenters stated that the air quality

monitoring data alone does not support

this exemption proposal. The air quality

levels are below USEPA’s definition of

an exceedance of the ozone NAAQS at

0.125 ppm, but are greater than the

ozone NAAQS of 0.120 ppm.

USEPA Response: For the reasons

provided below, USEPA does not agree

with the commenter’s conclusion. As

stated in 40 CFR 50.9, the ozone

‘‘standard is attained when the expected

number of days per calendar year with

maximum hourly average

concentrations above 0.12 parts per

million (235 μg/m3) is equal to or less

than 1, as determined by Appendix H.’’

Appendix H references USEPA’s

‘‘Guideline for Interpretation of Ozone

Air Quality Standards’’ (EPA–450/4–79–

003, January 1979), which notes that the

stated level of the standard is taken as

defining the number of significant

figures to be used in comparison with

the standard. For example, a standard

level of 0.12 ppm means that

measurements are to be rounded to two

decimal places (0.005 rounds up to

0.01). Thus, 0.125 ppm is the smallest

concentration value in excess of the

level of the ozone standard (please refer

to ‘‘Section IV. Analysis of the State

Submittal’’ in this notice for monitored

ozone concentrations in the Toledo and

Dayton areas). The ambient air

monitoring data shows that no violation

of the ozone standard has occurred for

the Toledo and Dayton areas during the

1991–1993 ozone seasons.

IX. Final Action

The USEPA is approving the

exemption requests for the Toledo and

Dayton ozone nonattainment areas from

the section 182(f) NOX requirements

based upon the evidence provided by

the State and the State’s compliance

with the requirements outlined in the

applicable USEPA guidance. This action

exempts the Lucas, Wood, Clark,

Greene, Miami, and Montgomery

counties from the requirements to

implement NOX RACT, nonattainment

area NSR for new sources and

modifications that are major for NOX,

and the NOX-related general and

transportation conformity provisions.

Also, the Clark, Greene, Miami, and

Montgomery counties shall not be

required to demonstrate compliance
3766 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

with the enhanced I/M performance

standard for NOX. If a violation of the

ozone NAAQS occurs in the Toledo or

Dayton area(s), the exemption from the

requirements of section 182(f) of the Act

in the applicable area(s) shall no longer

apply.

X. Procedural Background

Nothing in this action shall be

construed as permitting or allowing or

establishing a precedent for any future

request for a 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.

This action has been classified as a

Table 2 action by the Regional

Administrator under the procedures

published in the Federal Register on

January 19, 1989 (54 FR 2214–2225), as

revised by an October 4, 1993

memorandum from Michael H. Shapiro,

Acting Assistant Administrator for Air

and Radiation. The Office of

Management and Budget exempted this

regulatory action from Executive Order

12866 review.

XI. Regulatory Process

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., USEPA 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, USEPA 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-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000. Today’s

exemptions do not create any new

requirements, but allow suspension of

the indicated requirements for the life of

the exemptions. Therefore, because the

approval does not impose any new

requirements, I certify that it does not

have a significant impact on any small

entities affected.

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by March 20, 1995.

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

Air pollution control,

Intergovernmental relations, Nitrogen

oxides, Ozone, Reporting and record

keeping requirements, Volatile organic

compounds.

Dated: January 5, 1995.

Valdas V. Adamkus,

Regional Administrator.

Part 52, chapter 1, 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.

Supart KK—Ohio

2. Section 52.1879 is amended by

adding new paragraph (f) to read as

follows:

§ 52.1879 Review of new sources and

modifications.

* * * * *

(f) Approval—USEPA is approving

two exemption requests submitted by

the Ohio Environmental Protection

Agency on September 20, 1993, and

November 8, 1993, for the Toledo and

Dayton ozone nonattainment areas,

respectively, from the requirements

contained in Section 182(f) of the Clean

Air Act. This approval exempts the

Lucas, Wood, Clark, Greene, Miami, and

Montgomery Counties from the

requirements to implement reasonably

available control technology (RACT) for

major sources of nitrogen oxides (NOX),

nonattainment area new source review

(NSR) for new sources and

modifications that are major for NOX,

and the NOX-related requirements of the

general and transportation conformity

provisions. For the Dayton ozone

nonattainment area, the Dayton local

area has opted for an enhanced

inspection and maintenance (I/M)

programs. Upon final approval of this

exemption, the Clark, Greene, Miami,

and Montgomery Counties shall not be

required to demonstrate compliance

with the enhanced I/M performance

standard for NOX. If a violation of the

ozone NAAQS is monitored in the

Toledo or Dayton area(s), the

exemptions from the requirements of

Section 182(f) of the Act in the

applicable area(s) shall no longer apply.

3. Section 52.1885 is amended by

adding new paragraph (r) to read as

follows:

§ 52.1885 Control Strategy: Ozone.

* * * * *

(r) Approval—USEPA is approving

two exemption requests submitted by

the Ohio Environmental Protection

Agency on September 20, 1993, and

November 8, 1993, for the Toledo and

Dayton ozone nonattainment areas,

respectively, from the requirements

contained in Section 182(f) of the Clean

Air Act. This approval exempts the

Lucas, Wood, Clark, Greene, Miami, and

Montgomery Counties from the

requirements to implement reasonably

available control technology (RACT) for

major sources of nitrogen oxides (NOX),

nonattainment area new source review

(NSR) for new sources and

modifications that are major for NOX,

and the NOX-related requirements of the

general and transportation conformity

provisions. For the Dayton ozone

nonattainment area, the Dayton local

area has opted for an enhanced

inspection and maintenance (I/M)

program. Upon final approval of this

exemption, the Clark, Greene, Miami,

and Montgomery Counties shall not be

required to demonstrate compliance

with the enhanced I/M performance

standard for NOX. If a violation of the

ozone NAAQS is monitored in the

Toledo or Dayton area(s), the

exemptions from the requirements of

Section 182(f) of the Act in the

applicable area(s) shall no longer apply.

[FR Doc. 95–1254 Filed 1–18–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 70

[WY–001; FRL–5134–4]

Clean Air Act Final Interim Approval of

Operating Permits Program; State of

Wyoming

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final interim approval.

SUMMARY: The EPA is promulgating

interim approval of the Operating

Permits Program submitted by the State

of Wyoming for the purpose of

complying with Federal requirements

for an approvable State Program to issue

operating permits to all major stationary

sources, and to certain other sources.

EFFECTIVE DATE: February 21, 1995.

ADDRESSES: Copies of the State’s

submittal and other supporting

information used in developing the final

interim approval are available for

inspection during normal business

hours at the following location: U.S.

Environmental Protection Agency,