2438 Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations

of the final ozone attainment

demonstration expected to be submitted

in mid-1997. The approval will be

modified if the final attainment

demonstration demonstrates that NOX

emission controls are needed in the

nonattainment area to attain the ozone

standard in the Lake Michigan Ozone

Study modeling domain.

* * * * *

Subpart X—Michigan

2. Section 52.1174 is amended by

adding paragraph (l) to read as follows:

§ 52.1174 Control Strategy: Ozone

* * * * *

(l) Approval—EPA is approving the

section 182(f) oxides of nitrogen (NOX)

reasonably available control technology

(RACT), new source review (NSR),

vehicle inspection/maintenance (I/M),

and general conformity exemptions for

the Grand Rapids (Kent and Ottawa

Counties) and Muskegon (Muskegon

County) moderate nonattainment areas

as requested by the States of Illinois,

Indiana, Michigan, and Wisconsin in a

July 13, 1994 submittal. This approval

also covers the exemption of NOX

transportation and general conformity

requirements of section 176(c) for the

Counties of Allegan, Barry, Bay, Berrien,

Branch, Calhoun, Cass, Clinton, Eaton,

Gratiot, Genesee, Hillsdale, Ingham,

Ionia, Jackson, Kalamazoo, Lenawee,

Midland, Montcalm, St. Joseph,

Saginaw, Shiawasse, and Van Buren.

Subpart YY—Wisconsin

2. Section 52.2585 is amended by

adding paragraph (i) to read as follows:

§ 52.2585 Control Strategy: Ozone.

* * * * *

(i) Approval—EPA is approving the

section 182(f) oxides of nitrogen (NOX)

reasonably available control technology

(RACT), new source review (NSR),

vehicle inspection/maintenance (I/M),

and general conformity exemptions for

the moderate and above ozone

nonattainment areas within Wisconsin

as requested by the States of Illinois,

Indiana, Michigan, and Wisconsin in a

July 13, 1994 submittal. This approval

also covers the exemption of

transportation and general conformity

requirements of section 176(c) for the

Door and Walworth marginal ozone

nonattainment areas. Approval of these

exemptions is contingent on the results

of the final ozone attainment

demonstration expected to be submitted

in mid-1997. The approval will be

modified if the final attainment

demonstration demonstrates that NOX

emission controls are needed in any of

the nonattainment areas to attain the

ozone standard in the Lake Michigan

Ozone Study modeling domain.

[FR Doc. 96–1413 Filed 1–25–96; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[LA–22–1–7184; FRL–5402–7]

Approval and Promulgation of Section

182(f) Exemption to the Nitrogen

Oxides (NOX) Control Requirements

for the Baton Rouge Ozone

Nonattainment Area; Louisiana

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: As requested by the State of

Louisiana in a petition submitted to the

EPA pursuant to section 182(f)(3) of the

Clean Air Act (CAA), the EPA is

granting an exemption from the

Reasonably Available Control

Technology (RACT) and New Source

Review (NSR) requirements for major

stationary sources of Oxides of Nitrogen

(NOX), from the vehicle Inspection/

Maintenance (I/M) NOX requirements,

and general conformity NOX

requirements for the Baton Rouge,

Louisiana serious ozone nonattainment

area. The EPA is approving the

exemption based on a demonstration

that additional NOX reductions would

not contribute to attainment of the

National Ambient Air Quality Standard

(NAAQS) for ozone in the

nonattainment area. The EPA is not

taking final action at this time on the

granting of an exemption from the

transportation conformity requirements

of the CAA for the Baton Rouge area.

The EPA is reserving the right to reverse

the approval of the exemption if

subsequent modeling data demonstrate

an ozone attainment benefit from NOX

emission controls.

EFFECTIVE DATE: This action is effective

as of January 18, 1996.

ADDRESSES: Copies of the exemption

request, public comments and EPA’s

responses are available for inspection at

the following address:

United States Environmental Protection

Agency, Region 6, Multimedia

Planning and Permitting Division,

1445 Ross Avenue, Suite 700, Dallas,

Texas 75202–2733.

Louisiana Department of Environmental

Quality, H.B. Garlock Building, 7290

Bluebonnet, Baton Rouge, Louisiana

70810.

FOR FURTHER INFORMATION CONTACT:

Ms. Jeanne McDaniels or Mr. Quang

Nguyen, Air Planning Section (6PD–L),

Multimedia Planning and Permitting

Division, U.S. EPA Region 6, 1445 Ross

Avenue, Dallas, Texas 75202–2733,

telephone (214) 665–7214.

SUPPLEMENTAL INFORMATION:

I. Background

On November 17, 1994, the State of

Louisiana submitted a petition to the

EPA requesting that the Baton Rouge

serious ozone nonattainment area be

exempted from requirements to

implement NOX controls pursuant to

section 182(f) of the CAA. The

exemption request is based on modeling

that demonstrates additional NOX

emission controls within the

nonattainment area will not contribute

to attainment of the ozone NAAQS

within the area. The Baton Rouge ozone

nonattainment area consists of the

following parishes: East Baton Rouge,

West Baton Rouge, Pointe Coupee,

Livingston, Iberville, and Ascension.

The State also provided supplemental

technical reports pertaining to the

modeling as part of the Baton Rouge

post-1996 rate-of-progress plan

submitted to the EPA on November 15,

1994. In addition, the State submitted

several follow-up letters to the petition

to: (1) revise a number of tables in the

November 17, 1994, petition, and (2)

broaden the scope of the original request

to also include exemptions under

section 182(f) for NOX NSR, general

conformity, and I/M NOX requirements.

On August 18, 1995, the EPA

published a rulemaking proposing

approval of the NOX exemption petition

for the six-parish ozone nonattainment

area (60 FR 43100). During the 30-day

public comment period, the EPA

received two letters commenting on the

proposal. Both expressed opposition to

the exemption. In addition to these

comments, in August 1994 three

environmental groups submitted joint

adverse comments on the proposed

approvals of NOX exemptions for the

Ohio and Michigan ozone

nonattainment areas. The comments

addressed the EPA’s general policy

regarding NOX exemptions. The

commenters requested that these

comments be addressed in all EPA

rulemakings dealing with section 182(f)

exemptions.

II. Public Comments

The following discussion summarizes

the comments received regarding the

State’s petition and/or the EPA’s

proposed rulemaking and presents the

EPA’s responses to these comments.

Comment: Commenters argued that

NOX exemptions are provided for in two

separate parts of the CAA, in sections
Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations 2439

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

exemption tests in sections 182(b)(1)

and 182(f)(1) include language

indicating that action on such requests

should take place ‘‘when (the 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 section 182(f)(3), must occur during

consideration of an approvable

attainment or maintenance plan, unless

the area has been redesignated as

attainment. The commenters also argued

that, even if the petition procedures of

section 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 section 182(b)(1), since

section 182(b)(1) 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 procedures for acting on

NOX exemption requests. The absence

of specific guidelines by Congress leaves

the EPA with discretion to establish

reasonable procedures consistent with

the requirements of the Administrative

Procedure Act (APA).

The EPA disagrees with the

commenters regarding the process for

considering NOX exemption requests

under section 182(f) and instead,

believes that sections 182(f)(1) and

182(f)(3) provide independent

procedures by which the EPA may act

on NOX exemption requests. The

language in section 182(f)(1), which

indicates that the EPA should act on

NOX exemptions in conjunction with

action on a plan or a plan revision, does

not appear in section 182(f)(3). While

section 182(f)(3) references section

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

State Implementation Plans (SIPs).

Additionally, section 182(f)(3)

provides that ‘‘a person’’ (which section

302(e) of the CAA defines to include a

State) 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 the 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 RACT and NSR rules, unless

exempted. These rules were generally

due to be submitted to the EPA by

November 15, 1992. Thus, in order to

avoid the CAA sanctions, areas seeking

a NOX exemption would have needed to

submit this exemption request for EPA

review and rulemaking action several

months before November 15, 1992. In

contrast, the CAA specifies that the

attainment demonstrations were not due

until November 1993 or 1994 (and the

EPA may take up to 12 months to

approve or disapprove the

demonstrations). For marginal ozone

nonattainment areas (subject to NOX

NSR), no attainment demonstrations are

called for in the CAA. For areas seeking

redesignation to attainment of the ozone

NAAQS, the CAA does not specify a

deadline for submittal of maintenance

demonstrations (in reality, the EPA

would generally consider redesignation

requests without accompanying

maintenance plans to be unacceptable).

Clearly, the CAA envisions the

submittal of and EPA action on NOX

exemption requests, in some cases, prior

to submittal of attainment or

maintenance demonstrations.

With respect to the comment that

section 182(b)(1) is the appropriate

authority for granting interim period

transportation conformity NOX

exemptions, the EPA agreed with the

commenters and published an interim

final rule that changed the

transportation conformity rule’s

reference to section 182(b)(1) as the

correct authority under the CAA for

waiving the NOX ‘‘build/no-build’’ and

‘‘less-than-1990 emissions’’ tests for

certain areas. See 60 FR 44762, dated

August 29, 1995. A related proposed

rule (60 FR 44790), published on the

same day, invited public comment on

how the Agency plans to implement

section 182(b)(1) transportation

conformity NOX exemptions. That

proposal has since been finalized. See

60 FR 57179 (November 14, 1995).

However, the EPA also notes that

section 182(b)(1), by its terms, only

applies to moderate and above ozone

nonattainment areas. Consequently, the

EPA believes that the interim reductions

requirements of section 176(c)(3)(A)(iii),

and hence the authority provided in

section 182(b)(1) to grant relief from

those interim reduction requirements,

apply only with respect to those areas

that are subject to section 182(b)(1). The

EPA intends to continue to apply the

transportation conformity rule’s ‘‘build/

no-build’’ and ‘‘less-than-1990

emissions’’ tests for purposes of

implementing the requirements of

section 176(c)(1). In addition, because

general Federal actions are not subject

to section 176(c)(3)(A)(iii), which

explicitly references section 182(b)(1),

the EPA will also continue to offer relief

under section 182(f)(3) from the

applicable NOX requirements of the

general conformity rule.

In order to demonstrate conformity,

transportation related federal actions

that are taken in ozone nonattainment

areas not subject to section 182(b)(1)

and, hence, not subject to section

176(c)(3)(A)(iii) must still be consistent

with the criteria specified under section

176(c)(1). Specifically, these actions

must not, with respect to any standard,

cause or contribute to new violations,

increase the frequency or severity of

existing violations, or delay attainment.

In addition, such actions must comply

with the relevant requirements and

milestones contained in the applicable

state implementation plan, such as

reasonable further progress schedules,

assumptions specified in the attainment

or maintenance demonstrations,

numerical emission limits, or

prohibitions. The EPA believes that the

‘‘build/no-build’’ and ‘‘less-than-1990

emissions’’ tests provide an appropriate

basis for such areas to demonstrate

compliance with the above criteria.

As noted earlier, the EPA intends to

continue to offer relief under section

182(f)(3) from the interim NOX

requirements of the conformity rules

that would apply under section

176(c)(1) for the areas not subject to

section 182(b)(1) in the manner

described above. The EPA believes this

approach is consistent both with the

way NOX requirements in ozone

nonattainment areas are treated under

the CAA generally, and under section

182(f) in particular. The basic approach

of the CAA is that NOX reductions

should apply when beneficial to an

area’s attainment goals, and should not

apply when unhelpful or

counterproductive. Section 182(f)

reflects this approach but also includes

specific substantive tests which provide

a basis for the EPA to determine when

NOX requirements should not apply.

There is no substantive difference

between the technical analysis required

to make an assessment of NOX impacts

on attainment in a particular area

whether undertaken with respect to

mobile source or stationary source NOX

emissions. Moreover, where the EPA

has determined that NOX reductions

will not benefit attainment or would be

counterproductive in an area, the EPA

believes it would be unreasonable to

insist on NOX reductions for purposes of

meeting reasonable further progress or

other milestone requirements. Thus,

even concerning the conformity
2440 Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations

1There are three NOX exemption tests specified

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

areas outside of an ozone transport region: the

‘‘contribute to attainment’’ test described above,

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

requirements of section 176(c)(1), the

EPA believes it is reasonable and

appropriate to (1) offer relief from the

applicable NOX requirements of the

general and transportation conformity

rules in areas where such reductions

would not be beneficial, and (2) rely in

doing so on the exemption tests

provided in section 182(f).

For moderate and above ozone

nonattainment areas which are relying

on modeling data in petitioning for a

transportation conformity NOX

exemption, the final rule (60 FR 57179)

affects the process for applying for such

waivers. Unlike section 182(f)(3),

section 182(b)(1) requires that the EPA

approve a NOX waiver (i.e., determine

that additional reductions of NOX

would not contribute to attainment) as

part of a SIP revision. Thus, under

section 182(b)(1), petitions for

transportation conformity NOX waivers

for areas subject to that section must be

submitted as formal SIP revisions by the

Governor (or designee) following a

public hearing. As explained

previously, the EPA will continue to

process and approve, under section

182(f)(3), conformity NOX waivers for

areas not subject to section 182(b)(1)

without public hearings or submission

by the Governor. The Baton Rouge

serious ozone nonattainment area is

subject to the requirements of section

182(b)(1). Hence, a transportation

conformity NOX waiver would have to

be submitted as a revision to the SIP. As

mentioned previously, in this

rulemaking, the EPA is not taking a final

action on a NOX exemption for

transportation conformity for the Baton

Rouge area. The State of Louisiana has

requested a transportation conformity

NOX exemption for the Baton Rouge

area through a formal SIP revision

pursuant to section 182(b)(1) of the

CAA. The EPA proposed approval of the

revision on October 6, 1995 (60 FR

52348). A final action on the SIP

submittal will be taken in a subsequent

rulemaking by the EPA.

Finally, as noted earlier, the NOX

provisions of the general conformity

rule would not be affected by this

proposal. A NOX waiver under section

182(f) removes the NOX general

conformity requirements entirely and

would continue to do so. The CAA’s

provision for transportation conformity

NOX waivers stems from section

176(c)(3)(A)(iii), which addresses only

transportation conformity, and not

general conformity. Therefore, the

statutory authority for general

conformity NOX waivers is not required

to be section 182(b) for any areas and

may continue to be section 182(f) for all

areas.

Comment: Commenters argued that

waiver of NOX control requirements is

unlawful if such a waiver would impede

attainment and maintenance of the

ozone standard in downwind areas.

Response: As a result of these

comments, the EPA reevaluated its

position on this issue and has revised

previously issued guidance. See

Memorandum, ‘‘Section 182(f) Nitrogen

Oxides (NOX) Exemptions—Revised

Process and Criteria,’’ dated February 8,

1995, from John Seitz. As described in

this memorandum, the EPA intends to

use its authority under section

110(a)(2)(D) to require a State to reduce

NOX emissions from stationary and/or

mobile sources where there is evidence,

such as photochemical grid modeling,

showing that the NOX emissions would

contribute significantly to

nonattainment in, or interfere with

maintenance by, any other State or in

another nonattainment area within the

same State. This action would be

independent of any action taken by the

EPA on a NOX exemption request under

section 182(f). That is, the EPA’s action

to grant or deny a NOX exemption

request under section 182(f) for any area

would not shield that area from the

EPA’s action to require NOX emission

reductions, if necessary, under section

110(a)(2)(D).

Modeling analyses are underway or

will soon be conducted in many areas

for the attainment demonstration SIP

revisions required pursuant to section

182(c)(2)(A). Recent modeling data

suggest that certain ozone

nonattainment areas may benefit from

reductions in NOX emissions upwind of

the nonattainment areas. For example,

the Northeast Corridor States and the

Lake Michigan Ozone Study are

considering attainment strategies which

may rely, in part, on NOX emission

reductions hundreds of kilometers

upwind. The EPA is working with the

States and other organizations to design

and complete studies which consider

upwind sources and quantify their

impacts. As the studies progress, the

EPA will continue to work with the

States and other organizations to

develop mutually acceptable attainment

strategies.

At the same time as the large scale

modeling analyses are being conducted,

States have requested exemptions from

NOX requirements under section 182(f)

for certain nonattainment areas in the

modeling domains. Some of these

nonattainment areas may impact

downwind nonattainment areas. The

EPA intends to address the transport

issue under section 110(a)(2)(D), based

on a regional modeling analysis.

Under section 182(f) of the CAA, an

exemption from NOX requirements may

be granted for nonattainment areas

outside of an ozone transport region if

the EPA determines that ‘‘additional

reductions of (NOX) would not

contribute to attainment of the national

ambient air quality standard for ozone

in the area.’’ 1 As described in section

4.3 of the December 13, 1993, EPA

guidance document, ‘‘Guideline for

Determining the Applicability of

Nitrogen Oxides Requirements Under

Section 182(f),’’ the EPA encourages, but

does not require, States/petitioners to

consider the impacts on the entire

modeling domain since the effects of an

attainment strategy may extend beyond

a designated nonattainment area.

Specifically, the guidance encourages

States to consider imposition of the NOX

requirements if needed to avoid adverse

impacts in downwind areas, either

intra- or interstate. States need to

consider such impacts since they are

ultimately responsible for achieving

attainment in all portions of their State

and for ensuring that emissions

originating in their State do not

contribute significantly to

nonattainment in, or interfere with

maintenance by, any other State. See

section 110(a)(2)(D)(i)(I) of the CAA.

In contrast, section 4.4 of the

December 16, 1993, guidance states that

the section 182(f) demonstration would

not be approved if there is evidence,

such as photochemical grid modeling,

showing that the NOX exemption would

interfere with attainment or

maintenance in downwind areas. The

guidance further explains that section

110(a)(2)(D) (not section 182(f))

prohibits such impacts. Consistent with

section 4.3 of the guidance, the EPA

believes that the section 110(a)(2)(D)

and 182(f) provisions must be

considered independently, and hence,

has revised section 4.4 of the December

16, 1993, guidance document. Thus, if

there is evidence that NOX emissions in

an upwind area would interfere with

attainment or maintenance in a

downwind area, that problem should be
Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations 2441

2Memorandum, ‘‘Ozone Attainment

Demonstrations,’’ dated March 2, 1995, from Mary

Nichols, Assistant Administrator for Air and

Radiation, U.S. Environmental Protection Agency.

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).

separately addressed by the State(s) or,

if necessary, by the EPA in a section

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

section 182(f) exemption request should

be independently considered by the

EPA. In some cases, therefore, the EPA

may grant an exemption from acrossthe-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 on the

circumstances.

The State of Louisiana is being

included in one of the new modeling

analyses referred to above that is being

conducted by the EPA, States, and other

agencies as part of the Ozone Transport

Assessment Group (OTAG). The OTAG

process is a consultative process among

the eastern States and the EPA which

was initiated by the EPA in a March 2,

1995, policy memorandum.2 The OTAG

assessment process, which is scheduled

to end at the close of 1996, will evaluate

regional and national emission control

strategies using improved regional

modeling analyses. The goal of the

OTAG process is to reach consensus on

additional regional and national

emission reductions that are needed to

support efforts to attain the ozone

standard in the eastern United States.

Based on the results of the OTAG

process, States have committed to

submit plans (SIP revisions) by mid1997 which show attainment of the

ozone standard through local, regional,

and national emission controls.

The OTAG plans to complete

additional modeling between now and

September 1996 using emissions data

and emission control strategies

currently being developed among OTAG

workgroups.

As noted in a prior EPA rulemaking

dated November 28, 1994 (59 FR 60709),

NOX waivers are approved on a

contingent basis; the waiver applies

only so long as air quality analyses,

such as from additional ozone

modeling, in an exempted area continue

to show an attainment disbenefit or lack

of benefit from NOX emission

reductions. Additionally, in the notice

of proposed rulemaking on the Baton

Rouge exemption request, 60 FR 43100

(August 18, 1995), the EPA indicated

that the NOX exemption would remain

effective for only as long as modeling

continued to show that NOX control

activities would not contribute to

attainment in the Baton Rouge area.

The State of Louisiana has conducted

a number of additional modeling

analyses (subsequent to the preparation

of the NOX waiver request) to assess the

impact of specific emission controls on

peak ozone concentrations. These

additional modeling analyses have been

performed to support the State’s

demonstration of attainment, which is

under development. These modeling

analyses are well documented and are

based on a modeling system which has

been accepted by the EPA as being

validated for the Baton Rouge modeling

domain. EPA continues to believe that

the modeling completed thus far

supports granting a NOX waiver.

As discussed above, the State of

Louisiana has been included in the

superregional photochemical modeling

of the eastern United States (U.S.) by the

OTAG. The EPA expects the OTAG to

complete their work as scheduled. The

EPA will then evaluate the modeling

results and their implications

concerning NOX versus volitle organic

compound (VOC) emission controls.

The results of this modeling may

supersede the urban airshed model

(UAM) demonstration that the EPA is

using as the basis for granting this

waiver. To continue the waiver for all

NOX source categories, the modeling

must continue to show attainment of the

ozone standard without the use of

additional NOX emission controls. The

final modeling may demonstrate

attainment of the ozone standard using

a subset of the possible NOX emission

controls. In this situation, the EPA may

continue the waiver for the remaining

‘‘non-controlled’’ NOX sources under

section 182(f)(2) of the CAA.

Comment: Comments were received

regarding the scope of exemption of

areas from the NOX requirements of the

conformity rules. The commenters

argued 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

similarly, the maximum allowable

amounts of any such NOX emissions

under the general conformity rules. The

commenters admitted that, in prior

guidance, the 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 the 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: The EPA’s transportation

conformity rule 3 originally provided a

NOX transportation conformity waiver if

an area received a section 182(f)

exemption. As indicated in a previous

response, the EPA has changed the

reference from section 182(f) to section

182(b)(1) in the transportation

conformity rule since that section is

specifically referenced by the

transportation conformity provisions of

the CAA. See 60 FR 44762. The EPA has

also consistently held the view that, in

order to conform, nonattainment and

maintenance areas must demonstrate

that 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 was not reflected in the

transportation conformity rule. The EPA

has amended the rule to correct this

error. See 60 FR 57179. However, the

exemptions that are the subject of this

final action do not include

transportation conformity NOX

requirements and are being processed

under section 182(f)(3), which requires

the EPA to act within 6 months on the

submitted petition. The EPA believes it

is appropriate to act on received

petitions as close to the prescribed 6

month time frame as practicable.

Therefore, the EPA intends to process

this exemption request without further

delay.

Comment: Commenters argued that

the CAA does not authorize any waiver

of the NOX reduction requirements until

conclusive evidence exists that such

reductions are counterproductive.

Response: The EPA does not agree

with this comment since it ignores the

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, the EPA has sought an

approach that reasonably accords with

that intent. In addition to imposing

control requirements on major

stationary sources of NOX similar to

those that apply for sources of VOC,

section 182(f), also provides for an

exemption (or limitation) from

application of these requirements if,

under one of several tests, the EPA
2442 Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations

determines that, in certain areas, NOX

reductions would generally not be

beneficial towards attainment of the

ozone standard. In section 182(f)(1),

Congress explicitly conditioned action

on NOX exemptions on the results of an

ozone precursor study required under

section 185B of the CAA. Because of the

possibility that reducing NOX in an 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 Title I of the

CAA, to avoid requiring NOX reductions

where such would not be beneficial or

would be counterproductive. In

describing these various ozone

provisions, including section 182(f), the

House Conference Committee Report

states in the 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 the response to an earlier

comment, the command in section

182(f)(1) that the EPA ‘‘shall consider’’

the section 185B report taken together

with the timeframe the CAA provides

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 the EPA to

act on NOX exemption requests, even in

the absence of the additional

information that would be included in

affected areas’ attainment or

maintenance demonstrations. While

there is no specific requirement in the

CAA that EPA actions granting NOX

exemption requests must await

‘‘conclusive evidence,’’ as the

commenters argue, there is also nothing

in the CAA to prevent the EPA from

revisiting an approved NOX exemption

if warranted by additional, current

information.

In addition, the EPA believes, as

described in the 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), the EPA believes that

each test provides an independent basis

for a full or limited NOX exemption.

Only the first test listed above is

based on a showing that NOX reductions

are ‘‘counterproductive.’’ If one of the

tests is met (even if another test is failed

or not applied), the section 182(f) NOX

requirements would not apply or, under

the excess reductions provision, a

portion of these requirements would not

apply.

Comment: Commenters provided a

generic comment on all section 182(f)

actions that three years of ‘‘clean’’ data

fail to demonstrate that NOX reductions

would not contribute to attainment.

Response: The EPA does not believe

that this comment is applicable to the

Baton Rouge action because the area has

not based its section 182(f) petition on

‘‘clean’’ air monitoring data.

Comment: Commenters stated that the

modeling required by the EPA is

insufficient to establish that NOX

reductions would not contribute to

attainment since only one level of

control, ‘‘substantial’’ reductions, is

required to be analyzed. As such, the

waiver does not provide a complete

picture of the effect larger amounts of

NOX reductions will have on ozone

levels. They further explained that an

area must submit an approvable

attainment plan before the EPA can

know whether NOX reductions will aid

or undermine attainment.

Response: As described in the EPA’s

December 1993 NOX exemption

guidance, 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 UAM or, in a

transport region, the Regional Oxidant

Model are acceptable models for these

purposes.

The EPA guidance also states that

application of UAM should be

consistent with techniques specified in

the EPA ‘‘Guideline on Air Quality

Models (Revised)’’ (December 1993).

Further, application of UAM should

also be consistent with procedures

contained in the EPA ‘‘Guideline for

Regulatory Application of the Urban

Airshed Model’’ (July 1991). Thus,

episode selection for the section 182(f)

demonstration should be consistent

with the UAM guidance for SIP

attainment demonstrations.

The section 182(f) ‘‘contribute to

attainment’’ and ‘‘net ozone benefit’’

demonstrations concern an unspecified

‘‘additional reductions’’ of NOX. The

EPA’s December 1993 guidance

specifies that the analysis should reflect

three scenarios of ‘‘substantial’’ NOX

and VOC emission reductions. The

guidance states that, in scenario (1), the

demonstration should use the VOC

reductions needed to attain, as

demonstrated by Empirical Kinetic

Modeling Approach or UAM analyses.

Alternatively, if the attainment

demonstration has not been completed,

the demonstration may use some other

substantial VOC reduction. In any case,

the VOC reductions should be

substantial and documented as

reasonable to expect for the area, due to

the CAA requirements. In scenario (2),

NOX reductions should be modeled

without any VOC reductions above the

attainment year baseline. The level of

NOX reductions should reflect the same

percent reduction of anthropogenic VOC

emissions in scenario (1) above. In

scenario (3), a similar level of NOX

reductions would be modeled along

with the level of VOC reductions

chosen. That is, if a 40 percent VOC

reduction is chosen in scenario (1), then

the model for scenario (3) would

simulate a 40 percent VOC reduction

and approximately a 40 percent NOX

reduction. It would be inappropriate to

select a high level of VOC reductions

and a low level of NOX reductions since

this could artificially favor a finding

that NOX reductions are not beneficial;

thus, the scenarios are constrained to

avoid an inappropriate analysis.

The EPA believes these analyses are

appropriate to determine, in a

directional manner, whether or not NOX

reductions are expected to be beneficial

to the air quality in the area/region.

These analyses described in the EPA’s

December 1993 guidance may be less

precise than an attainment

demonstration required under section

182(c). With respect to the excess

reductions provision in section

182(f)(2), however, the EPA believes

that more than a directional analysis is

needed (for reasons described in the

December 1993 guidance) and,

therefore, requires an analysis based on

the attainment demonstration.

The State’s modeling demonstration

reflected substantial NOX reductions in

addition to substantial VOC reductions

in order to more accurately characterize

near-term VOC and NOX control
Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations 2443

scenarios. In fact, for the NOX waiver,

the State modeled a 100 percent

reduction in the point source NOX

inventory (which represented a 57

percent reduction in total projected NOX

emissions), along with a 100 percent

reduction in point source VOC

emissions (which represented a 46

percent reduction in the total projected

anthropogenic VOC emissions). The

analyses showed that the modeled

domain-wide peak ozone concentrations

exceeding 120 parts per billion

decreased in response to substantial

VOC emission reductions and increased

in response to substantial NOX emission

reductions for all episodes.

Comment: Commenters argued that

the CAA does not authorize delaying

implementation of NOX controls if

attainment modeling is not complete.

Response: The EPA believes the

modeling analyses submitted are

appropriate to determine, in a

directional manner, whether or not NOX

reductions are expected to be beneficial

with respect to the air quality in the

area/region.

Comment: One commenter argued

that, while NOX controls may be less

beneficial than VOC-only controls in

reducing ozone concentrations in some

areas of the Baton Rouge region on some

days, the State has not demonstrated

that VOC-only controls will sufficiently

reduce ozone concentrations for the

majority of episodes, particularly in

areas farther downwind.

Response: The modeling analyses

performed examined the relative

benefits of VOC versus NOX emissions

reductions primarily in the ozone

nonattainment and surrounding areas as

required by the EPA’s NOX exemption

guidance. An assessment of the impact

of VOC versus NOX emission reductions

in areas farther downwind (beyond the

modeling domain) was not required by

the EPA and, thus, was not considered

in the State analyses submitted in

support of the NOX exemption. The

modeling domain selected, however,

was large enough to ensure that it

provided resolution of ozone and

precursor advection upwind and

downwind of the area of interest. The

Baton Rouge modeling domain, which

includes all or part of 20 parishes in

Louisiana, covers both attainment as

well as nonattainment parishes. As

mentioned earlier, the analyses showed

that the modeled domain-wide peak

ozone concentrations exceeding 120

parts per billion decreased in response

to VOC emission reductions and

increased in response to NOX emission

reductions for all episodes.

As noted in the response to an earlier

comment, the State of Louisiana has

been included in the OTAG regional

modeling domain to address the impact

that transport may have on downwind

areas in the eastern U.S. Based on the

outcome of the modeling analyses, the

EPA may require, pursuant to section

110(a)(2)(D), NOX reductions in upwind

areas to address the transport issue.

Comment: One commenter stated that

the EPA must rely on the recent

National Academy of Sciences (NAS)

report in its review of NOX waivers. The

commenter pointed out that the NAS

report found that to reduce transported

ozone NOX reductions are needed.

Response: The NAS report and the

EPA’s companion report both support

the conclusion that, as a general matter

for ozone nonattainment areas across

the country, NOX reductions in addition

to VOC reductions will be needed to

achieve attainment. This general

conclusion, however, must be assessed

in the context of the more detailed

analysis provided in those same reports.

For example, the NAS report notes that

NOX reductions can have either a

beneficial or detrimental effect on ozone

concentrations, depending on the

locations and emission rates of VOC and

NOX sources in a region. The effect of

NOX reductions depends on the local

VOC/NOX ratio and a variety of other

factors. In its report issued pursuant to

section 185B of the CAA, the EPA stated

that ‘‘[a]pplication of gridded

photochemical models on a case by case

basis is required to determine the

efficacy of NOX controls, because the

ozone response to precursor reductions

is area specific.’’

The analyses performed in the Baton

Rouge area demonstrate a local

disbenefit from NOX control in the

modeling domain. Based on these

modeling results, the area meets the test

under section 182(f)(1)(A) of the CAA

required to support a waiver from the

NOX requirements of section 182(f). The

effect that NOX controls in the Baton

Rouge area may have on ozone levels in

the eastern U.S. will be addressed in the

OTAG process.

Comment: NOX emission reductions

will not only reduce transported ozone,

but will also improve visibility,

especially in downwind Class I areas.

Response: The NOX control waiver

request was submitted based on

sensitivity analyses performed on the

episodes selected for the attainment

demonstration required for moderate

and above ozone nonattainment areas.

To this end, the focus is on the local

ozone problem in the Baton Rouge area.

Other air pollution problems will be

dealt with as part of separate regulatory

activities. Moreover, the NOX exemption

test Louisiana is relying on (pursuant to

section 182(f)(1)(A)) requires an

assessment of only the contribution of

NOX emissions reductions toward ozone

attainment.

Comment: One commenter argued

that the EPA Administrator has an

obligation, under section 110(a)(2)(D), to

prohibit any activity in a State which

will contribute significantly to

nonattainment in, or interfere with

maintenance by, any other State. To this

end, a ‘‘superregional’’ NOX strategy

should be adopted before the

Administrator grants any section 182(f)

NOX exemption or, at the very least,

NOX exemptions should be restricted to

expire if the OTAG and the EPA are

unsuccessful in completing the

requirements outlined in the EPA’s

March 2, 1995, attainment guidance

document.

Response: As discussed earlier in the

response concerning transport to

downwind areas, the EPA intends to use

its authority under section 110(a)(2)(D)

to require a State to reduce NOX

emissions from stationary and/or mobile

sources where there is evidence, such as

photochemical grid modeling, showing

that the NOX emissions would

contribute significantly to

nonattainment in, or interfere with

maintenance by, any other State or in

another nonattainment area within the

same State. This action would be

independent of any action taken by EPA

on a NOX exemption request under

section 182(f).

Comment: One commenter stated that

the current ozone standard, 120 parts

per billion, may not be adequately

protective of public health and even

greater reductions in ozone levels could

be required.

Response: The adequacy of the

current ozone standard is not the subject

of this rulemaking. The EPA will reserve

discussions regarding the adequacy of

the ozone standard for future

rulemaking actions on that subject.

Comment: One commenter argued

that biogenic VOC emissions are

underestimated, which would cause a

bias in the model towards favoring VOC

control. The commenter further stated

that, in the petition, no mention is made

of what an upward revision in the

biogenic VOC emissions inventory

would mean for the effectiveness of a

VOC-based control strategy. The

commenter argued that mobile source

VOC emissions are significantly

underestimated, which would

compound with the possible

underestimation of biogenic VOC

emissions to make VOC controls even

less effective in reality than they appear

in modeling studies. Also, the

commenter asserted that a significant
2444 Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations

4Cardelino, C.A., and W.L. Chameides. ‘‘A

Gridded Inventory of Biogenic Hydrocarbon

Emissions for the Baton Rouge Non-attainment

Area.’’ October 1989.

5Rasmussen, R.A., and M.A.K. Khalil. ‘‘Forest

Hydrocarbon Emissions: Relationships Between

Fluxes and Ambient Concentrations.’’ Journal of the

Air and Waste Management Association. Volume

42, No. 6 (June 1992), p. 5.

6Zimmermann, P.R. ‘‘Testing for Hydrocarbon

Emissions from Vegetation Leaf Litter and Aquatic

Surfaces, and Development of a Methodology for

Compiling Biogenic Emission Inventories.’’ EPA–

450, 4–4–79–004 (1979).

underestimation of the mobile source

VOC inventory has large implications

because it comprises the largest portion

of the anthropogenic inventory.

Response: Depending on the locality,

the mobile source inventory could

comprise a major portion of the

anthropogenic inventory. However, in

the case of the Baton Rouge area, the

mobile source inventory accounts for

only 18 percent of the total VOC

inventory, whereas the biogenic

emissions inventory, which is the major

source of VOC emissions in the Baton

Rouge area, accounts for 57 percent of

the total VOC emissions inventory.

In calculating the mobile source

emissions inventory for the Baton Rouge

area, the State used the EPA

recommended method (i.e., MOBILE5a

for mobile source emission factors and

area-specific data for vehicle miles

traveled).

Biogenic hydrocarbon emissions have

been determined to play an important

role in the chemistry of urban ozone

formation, especially in warm southern

cities. In light of this, the State

developed the biogenic emission

inventory for the Baton Rouge area

based on area-specific data. For

instance, the area-specific land use

database used in the biogenic emission

development was derived from four

different sources: the Louisiana

Department of Transportation and

Development, a study of Baton Rouge’s

biogenic hydrocarbon emissions by

Carlos Cardolino and William

Chameides 4 at the Georgia Institute of

Technology using Landsat imagery, the

U.S. Geological Survey’s Geo-ecology

database, and the U.S. Forest Service’s

1991 Forest Statistics for the Southeast

Louisiana Parishes and Forest Statistics

of South Delta Louisiana Parishes.

Meanwhile, the emission factors used in

estimating biogenic emissions in the

Baton Rouge area were obtained from

the Rasmussen and Khalil 5 and

Zimmermann 6 studies of biogenic

sources. (The emission factors from the

Rasmussen and Khalil and

Zimmermann studies were derived from

direct measurements of various types of

vegetation in the Baton Rouge and

Tampa Bay, Florida areas, respectively.)

The EPA believes that the mobile and

biogenic VOC inventories are

sufficiently accurate to produce

acceptable modeling results. In

accordance with the EPA’s UAM

guidance, the State used the 1990

emissions inventory for developing its

modeling demonstration. (The EPA

evaluated the State’s 1990 base year

emissions inventory for Baton Rouge

and published a final approval in the

Federal Register on March 15, 1995. See

60 FR 13908.)

Comment: One commenter stated that

uncertainties in meteorology can act as

a source of compensating errors for

erroneously low VOC inventories. In the

Baton Rouge area, the regions of high

anthropogenic NOX emissions are

generally well-separated from the

regions of highest biogenic VOC

emissions. This creates uncertainty in

accurately modeling the transport of a

high-NOX plume into high biogenic

VOC areas under stagnant wind

conditions.

Response: The EPA believes that the

conditions described above (i.e., regions

of high-NOX emissions generally wellseparated from high biogenic VOC

emissions under stagnant wind

conditions) are not characteristic of the

Baton Rouge area, where many major

NOX point sources are either collocated

or located within the regions of highest

biogenic VOC emissions. Many of the

major NOX point sources, which are

located within the Baton Rouge

modeling domain, were taken into

account in the simulations. The model

performed well for the episodes

selected, providing a good

representation of the spatial and

temporal characteristics of the episode,

and generally simulating the observed

peaks well. Also, consistent with EPA

guidance, the State performed

diagnostic and sensitivity simulations to

determine whether compensating errors

occurred as a result of meteorology and

other inputs and found that no such

errors occurred.

Comment: One commenter stated that

the EPA should place the burden of

proof on Louisiana to provide

affirmative evidence that no negative

impact will occur in downwind areas if

NOX reductions are not imposed in the

Baton Rouge area.

Response: Modeling and data analyses

addressed in the State’s NOX waiver

request demonstrate the positive

benefits of VOC control in the modeling

domain. And, as required under section

182(f), the State has demonstrated that

implementing NOX emission controls

will result in greater domain-wide peak

ozone concentrations throughout the

Baton Rouge modeling domain. Since

the State is relying on the section

182(f)(1)(A) ‘‘contribute to attainment’’

test, it does not also need to

demonstrate that no negative impact

will occur in downwind areas if NOX

reductions are not imposed in the Baton

Rouge area. (Also, see the EPA’s

previous response to comment on

transport issues.)

Comment: One commenter stated that

NOX reductions have other air quality

benefits in addition to their effect on

ozone, and that granting a NOX waiver

will undermine the EPA’s efforts to

improve a broad range of air and water

quality values in several regional efforts

to address regional environmental

problems (i.e., acid rain and nitrogen

deposition into estuaries).

Response: The EPA agrees that NOX

emissions can contribute to air pollution

problems independent of their role in

ozone formation; however, the EPA

disagrees that the NOX controls required

under section 182(f) of the CAA should

be implemented in the Baton Rouge area

regardless of their impact on ozone. As

noted in the response to an earlier

comment, section 182(f)(1)(A)

specifically provides for an exemption

in cases where NOX emission reductions

would not contribute to attainment of

the NAAQS for ozone in the area. The

LDEQ has demonstrated in its petition

and in the EPA’s proposed action that

the NOX reductions required by section

182(f) would not contribute to attaining

the ozone NAAQS in the Baton Rouge

area and, thus, the area qualifies for an

exemption from the CAA’s NOX

requirements.

At this time, ambient concentrations

of nitrogen dioxide (NO2) in the Baton

Rouge area are significantly below the

federal NAAQS for NO2. Therefore,

based on the current federal standards,

the EPA does not believe the NO2 levels

in Baton Rouge are unsafe. The EPA is

mandated to periodically reevaluate the

NAAQS for each criteria pollutant based

on the best information available. The

EPA is currently reviewing the NO2

standard and will evaluate any potential

concerns over the standard through a

separate rulemaking process.

Additionally, for the purposes of

reducing acid rain deposition, certain

NOX sources will still be required to

reduce NOX emissions under Title IV of

the CAA. Other air pollution problems

(i.e., nitrogen deposition into estuaries)

will be dealt with as part of separate

regulatory activities.

For these reasons, the EPA does not

believe that the NOX controls required

under section 182(f) of the CAA should
Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations 2445

be implemented in the Baton Rouge area

regardless of the impact on ozone.

Comment: One commenter argued

that, since the OTAG’s assessment of the

influence of NOX on regional transport

will not be completed until late-1996, in

the interim, the EPA should, at a

minimum, cap NOX emissions at current

levels in the Baton Rouge area, and

require offsets for new emission sources

to prevent NOX emissions increases.

Response: The EPA disagrees with

this comment as it pertains to this

action. The CAA authorizes the EPA to

grant NOX exemptions for areas, like

Baton Rouge, that qualify under section

182(f) and requires that the EPA make

such determinations within 6 months of

submission of a petition. Also, the EPA

anticipates that the State will submit a

modeled attainment demonstration for

the six-parish Baton Rouge

nonattainment area well ahead of the

schedule outlined in the EPA’s March 2,

1995, attainment guidance. (The State

has developed an attainment

demonstration submittal for the Baton

Rouge area, which was put forth for

public comment in the October 20,

1995, edition of the Louisiana Register.)

The attainment demonstration

establishes a target level for both VOC

and NOX emissions in the area.

Additionally, if a NOX waiver is

approved, major point sources of NOX

emissions are still subject to Prevention

of Significant Deterioration

requirements. Moreover, in the section

182(f) modeling demonstration, the

State has projected negative growth in

point source NOX emissions from the

base year (1990) out to the attainment

year (1999).

As noted previously, the EPA’s action

to grant or deny a NOX exemption under

section 182(f) would not shield the area

from EPA action, under section

110(a)(2)(D), to require even further

NOX emission reductions (beyond those

modeled in the attainment

demonstration) if, through the OTAG

process or other subsequent modeling,

such reductions are determined to be

necessary to address transport to

downwind areas.

III. Effective Date

This rulemaking is effective as of

January 18, 1996. 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 if the rule

‘‘relieves a restriction.’’ Since the

approval of the section 182(f) exemption

for the Baton Rouge ozone

nonattainment area is a substantive rule

that relieves the restrictions associated

with the CAA Title I requirements to

control NOX emissions, the NOX

exemption approval may be made

effective upon signature by the EPA

Administrator.

IV. Final Action

The comments received were found to

warrant no significant changes from

proposed to final action on this NOX

exemption request. The primary

difference between the proposed and

final rulemaking is the addition of the

statement that the EPA may require NOX

emission controls in general or on a

source-specific basis under section

110(a)(2)(D) of the CAA if future ozone

modeling (for example, the OTAG

modeling expected to be completed in

late-1996) demonstrates that such

controls are needed to achieve the ozone

standard in downwind areas. Based on

subsequent modeling results, the EPA

may rescind all or part(s) of the NOX

waiver. Approval of the exemption

waives the Federal requirements for

NOX RACT, NOX NSR, vehicle I/M NOX

requirements, and NOX general

conformity applicable to the Baton

Rouge ozone nonattainment area. To

maintain the waiver, future modeling

must demonstrate attainment of the

ozone standard without the use of

additional NOX emission controls. (The

modeling may demonstrate the need for

some NOX emission controls,

necessitating the need for a reduction in

the source coverage of the NOX waiver

under section 182(f)(2) of the CAA.)

Should the EPA rescind the exemption,

the State would be required to begin

implementing applicable NOX RACT,

NOX NSR, vehicle I/M NOX

requirements, and NOX general

conformity. (To allow point sources

time to purchase NOX control

equipment, install it, etc., NOX RACT

compliance would be required as

expeditiously as practicable, but no later

two years following the rescission.)

This action stops the mandatory

sanctions clock started on July 1, 1994,

as a result of the EPA’s finding of failure

to submit the NOX RACT SIP pursuant

to section 179(a) of the CAA.

V. Miscellaneous

A. Applicability to Future SIP Decisions

Nothing in this action should be

construed as permitting, allowing or

establishing a precedent for any future

request for revision to any state

implementation plan. The EPA shall

consider each request for revision to the

state implementation plan in light of

specific technical, economic, and

environmental factors and in relation to

relevant statutory and regulatory

requirements.

B. Executive Order 12866

The Office of Management and Budget

has exempted this regulatory action

from review under Executive Order

12866.

C. Regulatory Flexibility

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., the EPA must

prepare a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities (5 U.S.C. 603

and 604). Alternatively, the EPA may

certify that the rule will not have a

significant 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.

This approval does not create any

new requirements. Therefore, I certify

that this action does not have a

significant impact on any small entities

affected. Moreover, due to the nature of

the Federal-State relationship under the

CAA, preparation of the regulatory

flexibility analysis would constitute

Federal inquiry into the economic

reasonableness of the State action. The

CAA forbids the EPA to base its actions

concerning state implementation plans

on such grounds (Union Electric Co. v.

U.S.E.P.A., 427 U.S. 246, 256–66 (S. Ct.

1976); 42 U.S.C. 7410(a)(2)).

D. Unfunded Mandates

Under sections 202, 203, and 205 of

the Unfunded Mandates Reform Act of

1995 (Unfunded Mandates Act), signed

into law on March 22, 1995, the EPA

must assess whether various actions

undertaken in association with

proposed or final regulations include a

Federal mandate that may result in

estimated costs of $100 million or more

to the private sector, or to State, local,

or tribal governments in the aggregate.

The EPA’s final action will relieve

requirements otherwise imposed under

the CAA and, hence, does not impose

any federal intergovernmental mandate,

as defined in section 101 of the

Unfunded Mandates Act. This action

also will not impose a mandate that may

result in estimated costs of $100 million

or more to either State, local, or tribal

governments in the aggregate, or to the

private sector.

E. Petitions for Judicial Review

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 March 26, 1996. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the
2446 Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations

purpose of judicial rule, nor does it

extend the time within which a petition

for judicial review may be filed and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. See section

307(b)(2) of the CAA.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Oxides of nitrogen,

Incorporation by reference,

Intergovernmental relations, Ozone.

Dated: January 18, 1996.

Carol M. Browner,

Administrator.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart T—Louisiana

2. Section 52.992 is amended by

adding paragraph (b) to read as follows:

§ 52.992 Area-wide nitrogen oxides (NOX)

exemptions.

* * * * *

(b) The LDEQ submitted to the EPA

on November 17, 1994, a petition

requesting that the Baton Rouge serious

ozone nonattainment area be exempted

from the NOX control requirements of

the CAA. In addition, supplemental

information was submitted to the EPA

by the LDEQ on January 26, 1995, June

6, 1995, and June 16, 1995. The Baton

Rouge nonattainment area consists of

East Baton Rouge, West Baton Rouge,

Pointe Coupee, Livingston, Iberville,

and Ascension Parishes. The exemption

request was based on photochemical

grid modeling which shows that

reductions in NOX would not contribute

to attainment in the nonattainment area.

On January 18, 1996, the EPA approved

the State’s request for an areawide

exemption from the following

requirements: NOX new source review,

NOX reasonably available control

technology, NOX general conformity,

and NOX inspection and maintenance

requirements.

[FR Doc. 96–1288 Filed 1–25–96; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 185

[OPP–300394A; FRL–4983–6]

RIN 2070–AB78

Trifluralin; Revocation of Food

Additive Regulation

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is revoking the food

additive regulation (FAR) for residues of

the herbicide trifluralin in peppermint

oil and spearmint oil. EPA is taking this

action because peppermint oil and

spearmint oil are not ready-to-eat

commodities, and residues of trifluralin

are not likely to concentrate in ready-toeat foods containing peppermint and

spearmint oil. Therefore, this FAR is not

required.

EFFECTIVE DATE: This final rule becomes

effective January 26, 1996.

ADDRESSES: Written objections, requests

for a hearing, and/or requests of stays

identified by the document control

number, OPP-300394A, must be

submitted by February 26, 1996, and

comments on all of the above must be

submitted by March 11, 1996 to the OPP

docket: Public Response and Program

Resources Branch, Field Operations

Division (7506C), Office of Pesticide

Programs, Environmental Protection

Agency, 401 M St., SW., Washington,

DC 20460. Hand deliver to: Rm. 1132,

CM #2, 1921 Jefferson Davis Hwy.,

Arlington, VA.

Information submitted as a filing

concerning this document may be

claimed confidential by marking any

part or all of that information as

‘‘Confidential Business Information’’

(CBI). Information so marked will not be

disclosed except in accordance with

procedures set forth in 40 CFR part 2.

A copy of the filings that does not

contain CBI must be submitted for

inclusion in the public record.

Information not marked confidential

may be disclosed publicly by EPA

without prior notice. All written (nonCBI) filings will be available for public

inspection in Rm. 1132 at the address

given above, from 8 a.m. to 4:30 p.m.,

Monday through Friday, excluding legal

holidays.

A copy of objections and hearing

requests filed with the Hearing Clerk

may also be submitted electronically by

sending electronic mail (e-mail) to: oppdocket@epamail.epa.gov. Copies of

objections and hearing requests must be

submitted as an ASCII file avoiding the

use of special characters and any form

of encryption. Copies of objections and

hearing requests will also be accepted

on disks in WordPerfect in 5.1 file

format or ASCII file format. All copies

of objections and hearing requests in

electronic form must be identified by

the docket number [OPP-300394A]. No

Confidential Business Information (CBI)

should be submitted through e-mail.

Electronic copies of objections and

hearing requests on this rule may be

filed online at many Federal Depository

Libraries. Additional information on

electronic submissions can be found

below in this document.

FOR FURTHER INFORMATION CONTACT: By

mail: Niloufar Nazmi, Special Review

Branch (7508W), Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 20460. Office location

and telephone number: Crystal Mall #2,

Rm. 1113, 1921 Jefferson Davis Hwy.,

Arlington, VA, (703)-308-8028; e-mail:

nazmi.niloufar@epamail.epa.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction

EPA is revoking the FAR for residues

of the herbicide trifluralin in

peppermint oil and spearmint oil (40

CFR 185.5900).

A. Statutory Background

The Federal Food, Drug, and Cosmetic

Act (FFDCA), 21 U.S.C. 301 et seq.,

authorizes the establishment by

regulation of maximum permissible

levels of pesticides in foods. Such

regulations are commonly referred to as

‘‘tolerances.’’ Without such a tolerance

or an exemption from the requirement

of a tolerance, a food containing a

pesticide residue is ‘‘adulterated’’ under

section 402 of the Federal Food, Drug,

and Cosmetic Act (FFDCA) and may not

be legally moved in interstate

commerce. 21 U.S.C. 331, 342. EPA was

authorized to establish pesticide

tolerances under Reorganization Plan

No. 3 of 1970. 5 U.S.C. App. at 1343

(1988). Monitoring and enforcement of

pesticide tolerances are carried out by

the U.S. Food and Drug Administration

(FDA) and the U.S. Department of

Agriculture (USDA). EPA can establish

a tolerance in response to a petition

(FFDCA sections 408(d)(1) and

409(b)(1)) or on its own initiative

(FFDCA sections 408(e) and 409(d)).

The FFDCA has separate provisions

for tolerances for pesticide residues on

raw agricultural commodities (RACs)

and tolerances on processed food. For

pesticide residues in or on RACs, EPA

establishes tolerances, or exemptions

from tolerances when appropriate,

under section 408 of the act (21 U.S.C.

346a.) EPA regulates pesticide residues

in processed foods under section 409 of