[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2438-2446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1288]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[LA-22-1-7184; FRL-5402-7]


Approval and Promulgation of Section 182(f) Exemption to the 
Nitrogen Oxides (NO<INF>X) Control Requirements for the Baton Rouge 
Ozone Nonattainment Area; Louisiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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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 (NO<INF>X), from the vehicle 
Inspection/Maintenance (I/M) NO<INF>X requirements, and general 
conformity NO<INF>X requirements for the Baton Rouge, Louisiana serious 
ozone nonattainment area. The EPA is approving the exemption based on a 
demonstration that additional NO<INF>X 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 
NO<INF>X 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 NO<INF>X controls 
pursuant to section 182(f) of the CAA. The exemption request is based 
on modeling that demonstrates additional NO<INF>X 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 
NO<INF>X NSR, general conformity, and I/M NO<INF>X requirements.
    On August 18, 1995, the EPA published a rulemaking proposing 
approval of the NO<INF>X 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 NO<INF>X exemptions for the Ohio 
and Michigan ozone nonattainment areas. The comments addressed the 
EPA's general policy regarding NO<INF>X exemptions. The commenters 
requested that these comments be addressed in all EPA rulemakings 
dealing with 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 NO<INF>X exemptions are provided 
for in two separate parts of the CAA, in sections 

[[Page 2439]]
182(b)(1) and 182(f). Because the NO<INF>X 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 NO<INF>X 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 NO<INF>X requirements, exemptions 
from the NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X exemption 
requests. The language in section 182(f)(1), which indicates that the 
EPA should act on NO<INF>X 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 
NO<INF>X 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 NO<INF>X 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 
NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X ``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 NO<INF>X 
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 NO<INF>X 
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 NO<INF>X 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 NO<INF>X 
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 NO<INF>X 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 NO<INF>X requirements should not apply. There is no 
substantive difference between the technical analysis required to make 
an assessment of NO<INF>X impacts on attainment in a particular area 
whether undertaken with respect to mobile source or stationary source 
NO<INF>X emissions. Moreover, where the EPA has determined that 
NO<INF>X reductions will not benefit attainment or would be 
counterproductive in an area, the EPA believes it would be unreasonable 
to insist on NO<INF>X reductions for purposes of meeting reasonable 
further progress or other milestone requirements. Thus, even concerning 
the conformity 

[[Page 2440]]
requirements of section 176(c)(1), the EPA believes it is reasonable 
and appropriate to (1) offer relief from the applicable NO<INF>X 
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 
NO<INF>X 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 NO<INF>X waiver (i.e., 
determine that additional reductions of NO<INF>X would not contribute 
to attainment) as part of a SIP revision. Thus, under section 
182(b)(1), petitions for transportation conformity NO<INF>X 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 NO<INF>X 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 
NO<INF>X 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 NO<INF>X exemption for transportation conformity for the 
Baton Rouge area. The State of Louisiana has requested a transportation 
conformity NO<INF>X 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 NO<INF>X provisions of the general 
conformity rule would not be affected by this proposal. A NO<INF>X 
waiver under section 182(f) removes the NO<INF>X general conformity 
requirements entirely and would continue to do so. The CAA's provision 
for transportation conformity NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 (NO<INF>X) 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 
NO<INF>X emissions from stationary and/or mobile sources where there is 
evidence, such as photochemical grid modeling, showing that the 
NO<INF>X emissions would contribute significantly to nonattainment in, 
or interfere with maintenance by, any other State or in another 
nonattainment area within the same State. This action would be 
independent of any action taken by the EPA on a NO<INF>X exemption 
request under section 182(f). That is, the EPA's action to grant or 
deny a NO<INF>X exemption request under section 182(f) for any area 
would not shield that area from the EPA's action to require NO<INF>X 
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 NO<INF>X 
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 NO<INF>X 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 NO<INF>X 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 NO<INF>X 
requirements may be granted for nonattainment areas outside of an ozone 
transport region if the EPA determines that ``additional reductions of 
(NO<INF>X) would not contribute to attainment of the national ambient 
air quality standard for ozone in the area.'' <SUP>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 NO<INF>X 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.

    \1\ There are three NO<INF>X 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 NO<INF>X 
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 NO<INF>X 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) NO<INF>X requirements would not 
apply or, under the excess reductions provision, a portion of these 
requirements would not apply.''
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    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 
NO<INF>X 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 NO<INF>X emissions in an upwind area would 
interfere with attainment or maintenance in a downwind area, that 
problem should be 

[[Page 2441]]
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 across-the-board 
NO<INF>X RACT controls under section 182(f) and, in a separate action, 
require NO<INF>X 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.<SUP>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 mid-1997 which show attainment of 
the ozone standard through local, regional, and national emission 
controls.

    \2\ Memorandum, ``Ozone Attainment Demonstrations,'' dated March 
2, 1995, from Mary Nichols, Assistant Administrator for Air and 
Radiation, U.S. Environmental Protection Agency.
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    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), NO<INF>X 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 NO<INF>X 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 NO<INF>X exemption would remain effective for only as long as 
modeling continued to show that NO<INF>X 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 NO<INF>X 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 NO<INF>X 
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 NO<INF>X 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 NO<INF>X 
source categories, the modeling must continue to show attainment of the 
ozone standard without the use of additional NO<INF>X emission 
controls. The final modeling may demonstrate attainment of the ozone 
standard using a subset of the possible NO<INF>X emission controls. In 
this situation, the EPA may continue the waiver for the remaining 
``non-controlled'' NO<INF>X sources under section 182(f)(2) of the CAA.
    Comment: Comments were received regarding the scope of exemption of 
areas from the NO<INF>X 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 NO<INF>X emissions allowed under the 
transportation conformity rules, and similarly, the maximum allowable 
amounts of any such NO<INF>X 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 NO<INF>X, but want the EPA, in actions on 
NO<INF>X exemptions, to explicitly affirm this obligation and to also 
avoid granting waivers until a budget controlling future NO<INF>X 
increases is in place.
    Response: The EPA's transportation conformity rule <SUP>3 
originally provided a NO<INF>X 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 NO<INF>X even where a conformity NO<INF>X 
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 NO<INF>X 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.

    \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).
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    Comment: Commenters argued that the CAA does not authorize any 
waiver of the NO<INF>X 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 NO<INF>X 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 NO<INF>X 
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 

[[Page 2442]]
determines that, in certain areas, NO<INF>X reductions would generally 
not be beneficial towards attainment of the ozone standard. In section 
182(f)(1), Congress explicitly conditioned action on NO<INF>X 
exemptions on the results of an ozone precursor study required under 
section 185B of the CAA. Because of the possibility that reducing 
NO<INF>X 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 NO<INF>X 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 NO<INF>X/VOC study provision in section (185B) to 
serve as the basis for the various findings contemplated in the 
NO<INF>X provisions. The Committee does not intend NO<INF>X reduction 
for reduction's sake, but rather as a measure scaled to the value of 
NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 
NO<INF>X 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 NO<INF>X reductions from the sources concerned;
    (2) In nonattainment areas not within an ozone transport region, 
additional NO<INF>X reductions would not contribute to ozone attainment 
in the area; or
    (3) In nonattainment areas within an ozone transport region, 
additional NO<INF>X 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 NO<INF>X exemption.
    Only the first test listed above is based on a showing that 
NO<INF>X reductions are ``counterproductive.'' If one of the tests is 
met (even if another test is failed or not applied), the section 182(f) 
NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X 
reductions will have on ozone levels. They further explained that an 
area must submit an approvable attainment plan before the EPA can know 
whether NO<INF>X reductions will aid or undermine attainment.
    Response: As described in the EPA's December 1993 NO<INF>X 
exemption guidance, photochemical grid modeling is generally needed to 
document cases where NO<INF>X 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 NO<INF>X. The EPA's December 1993 guidance specifies 
that the analysis should reflect three scenarios of ``substantial'' 
NO<INF>X 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), NO<INF>X reductions should be modeled 
without any VOC reductions above the attainment year baseline. The 
level of NO<INF>X reductions should reflect the same percent reduction 
of anthropogenic VOC emissions in scenario (1) above. In scenario (3), 
a similar level of NO<INF>X 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 
NO<INF>X reduction. It would be inappropriate to select a high level of 
VOC reductions and a low level of NO<INF>X reductions since this could 
artificially favor a finding that NO<INF>X 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 NO<INF>X 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 NO<INF>X 
reductions in addition to substantial VOC reductions in order to more 
accurately characterize near-term VOC and NO<INF>X control 

[[Page 2443]]
scenarios. In fact, for the NO<INF>X waiver, the State modeled a 100 
percent reduction in the point source NO<INF>X inventory (which 
represented a 57 percent reduction in total projected NO<INF>X 
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 NO<INF>X emission reductions 
for all episodes.
    Comment: Commenters argued that the CAA does not authorize delaying 
implementation of NO<INF>X 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 
NO<INF>X reductions are expected to be beneficial with respect to the 
air quality in the area/region.
    Comment: One commenter argued that, while NO<INF>X 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 NO<INF>X emissions reductions primarily in the 
ozone nonattainment and surrounding areas as required by the EPA's 
NO<INF>X exemption guidance. An assessment of the impact of VOC versus 
NO<INF>X 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 NO<INF>X 
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 NO<INF>X 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), NO<INF>X 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 NO<INF>X 
waivers. The commenter pointed out that the NAS report found that to 
reduce transported ozone NO<INF>X 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, NO<INF>X 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 NO<INF>X reductions can have either a beneficial or 
detrimental effect on ozone concentrations, depending on the locations 
and emission rates of VOC and NO<INF>X sources in a region. The effect 
of NO<INF>X reductions depends on the local VOC/NO<INF>X 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 NO<INF>X controls, because the ozone response to 
precursor reductions is area specific.''
    The analyses performed in the Baton Rouge area demonstrate a local 
disbenefit from NO<INF>X 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 NO<INF>X requirements of 
section 182(f). The effect that NO<INF>X controls in the Baton Rouge 
area may have on ozone levels in the eastern U.S. will be addressed in 
the OTAG process.
    Comment: NO<INF>X emission reductions will not only reduce 
transported ozone, but will also improve visibility, especially in 
downwind Class I areas.
    Response: The NO<INF>X 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 
NO<INF>X exemption test Louisiana is relying on (pursuant to section 
182(f)(1)(A)) requires an assessment of only the contribution of 
NO<INF>X 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'' NO<INF>X strategy should be adopted before the 
Administrator grants any section 182(f) NO<INF>X exemption or, at the 
very least, NO<INF>X 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 NO<INF>X emissions from 
stationary and/or mobile sources where there is evidence, such as 
photochemical grid modeling, showing that the NO<INF>X emissions would 
contribute significantly to nonattainment in, or interfere with 
maintenance by, any other State or in another nonattainment area within 
the same State. This action would be independent of any action taken by 
EPA on a NO<INF>X 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 

[[Page 2444]]
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 <SUP>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 <SUP>5 and Zimmermann <SUP>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.)

    \4\ Cardelino, C.A., and W.L. Chameides. ``A Gridded Inventory 
of Biogenic Hydrocarbon Emissions for the Baton Rouge Non-attainment 
Area.'' October 1989.
    \5\ Rasmussen, 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.
    \6\ Zimmermann, 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).
---------------------------------------------------------------------------

    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 
NO<INF>X emissions are generally well-separated from the regions of 
highest biogenic VOC emissions. This creates uncertainty in accurately 
modeling the transport of a high-NO<INF>X plume into high biogenic VOC 
areas under stagnant wind conditions.
    Response: The EPA believes that the conditions described above 
(i.e., regions of high-NO<INF>X emissions generally well-separated from 
high biogenic VOC emissions under stagnant wind conditions) are not 
characteristic of the Baton Rouge area, where many major NO<INF>X point 
sources are either collocated or located within the regions of highest 
biogenic VOC emissions. Many of the major NO<INF>X 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 NO<INF>X reductions are not 
imposed in the Baton Rouge area.
    Response: Modeling and data analyses addressed in the State's 
NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X reductions have other 
air quality benefits in addition to their effect on ozone, and that 
granting a NO<INF>X 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 NO<INF>X emissions can contribute to 
air pollution problems independent of their role in ozone formation; 
however, the EPA disagrees that the NO<INF>X 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 NO<INF>X 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 NO<INF>X 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 NO<INF>X requirements.
    At this time, ambient concentrations of nitrogen dioxide (NO<INF>2) 
in the Baton Rouge area are significantly below the federal NAAQS for 
NO<INF>2. Therefore, based on the current federal standards, the EPA 
does not believe the NO<INF>2 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 NO<INF>2 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 NO<INF>X sources will still be required to reduce NO<INF>X 
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 NO<INF>X 
controls required under section 182(f) of the CAA should 

[[Page 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 NO<INF>X on regional transport will not be completed 
until late-1996, in the interim, the EPA should, at a minimum, cap 
NO<INF>X emissions at current levels in the Baton Rouge area, and 
require offsets for new emission sources to prevent NO<INF>X emissions 
increases.
    Response: The EPA disagrees with this comment as it pertains to 
this action. The CAA authorizes the EPA to grant NO<INF>X 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 NO<INF>X emissions in the area. Additionally, if 
a NO<INF>X waiver is approved, major point sources of NO<INF>X 
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 NO<INF>X 
emissions from the base year (1990) out to the attainment year (1999).
    As noted previously, the EPA's action to grant or deny a NO<INF>X 
exemption under section 182(f) would not shield the area from EPA 
action, under section 110(a)(2)(D), to require even further NO<INF>X 
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 NO<INF>X emissions, the 
NO<INF>X 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 NO<INF>X exemption request. The 
primary difference between the proposed and final rulemaking is the 
addition of the statement that the EPA may require NO<INF>X emission 
controls in general or on a source-specific basis under section 
110(a)(2)(D) of the CAA if future ozone modeling (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 NO<INF>X waiver. Approval of the exemption waives the 
Federal requirements for NO<INF>X RACT, NO<INF>X NSR, vehicle I/M 
NO<INF>X requirements, and NO<INF>X 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 NO<INF>X emission controls. (The modeling 
may demonstrate the need for some NO<INF>X emission controls, 
necessitating the need for a reduction in the source coverage of the 
NO<INF>X waiver under section 182(f)(2) of the CAA.) Should the EPA 
rescind the exemption, the State would be required to begin 
implementing applicable NO<INF>X RACT, NO<INF>X NSR, vehicle I/M 
NO<INF>X requirements, and NO<INF>X general conformity. (To allow point 
sources time to purchase NO<INF>X control equipment, install it, etc., 
NO<INF>X 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 
NO<INF>X 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-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    This approval does not create any new requirements. Therefore, I 
certify that this action does not have a significant impact on any 
small entities affected. Moreover, due to the nature of the 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 

[[Page 2446]]
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:


Sec. 52.992   Area-wide nitrogen oxides (NO<INF>X) 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 NO<INF>X 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 NO<INF>X 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: 
NO<INF>X new source review, NO<INF>X reasonably available control 
technology, NO<INF>X general conformity, and NO<INF>X inspection and 
maintenance requirements.

[FR Doc. 96-1288 Filed 1-25-96; 8:45 am]
BILLING CODE 6560-50-P