[Federal Register Volume 64, Number 75 (Tuesday, April 20, 1999)]
[Rules and Regulations]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9868]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX 109-1-7412a; FRL-6329-2]
Rescission of the Conditional Section 182(f) Exemption to the
Nitrogen Oxides (NOX) Control Requirements for the Dallas/
Fort Worth Ozone Nonattainment Area; TX
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
SUMMARY: In this direct final action, we, the EPA, are rescinding the
conditional nitrogen oxides (NOX) exemption for the Dallas/
Fort Worth (DFW) ozone nonattainment area. We granted the conditional
exemption under the Federal Clean Air Act (Act) on November 21, 1994,
conditioned on our approval of initial modeling showing that
NOX controls were not needed in the DFW area to reach
attainment. However, the DFW area failed to attain EPA's National
Ambient Air Quality Standard (NAAQS) for ozone by its moderate ozone
deadline of November 15, 1996, and we reclassified the area to
``serious'' ozone nonattainment on February 18, 1998. The modeling
conducted for this serious area State Implementation Plan shows control
of NOX sources will help the area attain the ozone. The
State of Texas requested the rescission of the conditional
NOX exemption based on this new photochemical modeling. We
agree with the need for future NOX controls and are
rescinding the conditional exemption. The State must now implement
NOX control rules and conformity determinations will have to
consider NOX in the DFW area.
DATES: This direct final rule is effective on June 21, 1999, unless we
receive adverse comments by May 20, 1999. If we receive such comments,
we will publish a timely withdrawal of the direct final rule in the
Federal Register informing the public that the rule will not take
ADDRESSES: Written comments on this action should be addressed to Mr.
Thomas H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region
6 Office listed below. Copies of the documents relative to this action
are available for public inspection during normal business hours at the
locations. If you want to examine these documents you should make an
appointment with the appropriate office at least two working days in
Environmental Protection Agency, Region 6, Air Planning Section, (6PD-
L), Multimedia Planning and Permitting Division, 1445 Ross Ave, Dallas,
TX 75202-2733, telephone: (214) 665-7214.
Texas Natural Resource Conservation Commission, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Mr. Herbert R. Sherrow, Jr., Air
Planning Section (6PD-L), Multimedia Planning and Permitting Division,
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas,
Texas 75202-2733, telephone: 214-665-7237.
What Action is EPA Taking?
At the request of the State of Texas, we are rescinding the
conditional exemption from the NOX control requirements for
the DFW ozone nonattainment area. We are not taking any action on the
El Paso NOX exemption. Rescission of the section 182(f)
NOX exemption means the DFW ozone nonattainment area is
removed from Federal exempt status and the State is required to
immediately implement its existing NOX Reasonably Available
Control Technology (RACT), New Source Review (NSR), vehicle Inspection
and Maintenance (I/M) program, and general and transportation
However, because of the lead time needed for sources to be able to
comply, we are also setting a final compliance date for implementation
of the NOX RACT controls. Final NOX RACT
compliance is required as expeditiously as practicable, but no later
than March 31, 2001. The NOX RACT final compliance date is
consistent with the State's rule.
What is a NOX Exemption?
The Act states, in section 182(f), that an exemption from
NOX controls may be given to an ozone nonattainment area if
the Administrator determines that NOX controls would not
help the area attain the ozone NAAQS. Texas sent us modeling which
showed that the DFW area could attain the NAAQS by additional controls
for Volatile Organic Compounds only; therefore, new NOX
controls would not be needed. The State requested a NOX
exemption for the DFW area and we granted a conditional exemption
effective November 21, 1994. In our Federal Register notice approving
the exemption we said that if we later determine that NOX
reductions are beneficial, based on new photochemical modeling, the
area would be removed from exempt status.
Why is EPA Taking This Action?
We are taking this action because the State requested the
rescission, because the condition for the exemption has not been met,
and because the area's modeling now shows the need for NOX
reductions to achieve attainment.
The Texas Natural Resource Conservation Commission (TNRCC) sent a
letter, dated November 13, 1998, from Mr. Barry McBee, Chairman of the
TNRCC at the time of the letter, to Mr. Gregg Cooke, EPA Region 6,
Regional Administrator, requesting the rescission.
The State conducted new photochemical modeling which shows
NOX controls are now needed for the DFW area to attain the
ozone NAAQS. We reviewed the new modeling and find it supports the need
for NOX controls.
We also conditioned the exemption on our approving initial modeling
showing that NOX was not needed. Before we could act on the
initial modeling, monitoring data showed the area did not attain the
NAAQS by November 15, 1996, which was the attainment date for moderate
ozone areas. Section 181(b)(2)(A) requires us to reclassify ozone areas
to the next higher nonattainment classification within six months after
the applicable attainment deadline if we find the area has not attained
the ozone standard by that date. Therefore, instead of acting on the
initial modeling, we reclassified the area from ``moderate'' to
``serious'' nonattainment on February 19, 1998, and the state initiated
new modeling. The condition for receiving full approval of the
exemption has never been and cannot now be met by Texas.
What Actions has the State Taken?
The State adopted its NOX RACT and New Source Review
(NSR) rules on February 24, 1999, and they became effective on March
The state's approved Inspection and Maintenance (I/M) program for
the DFW area does not allow NOX increases. For a discussion
of the State's vehicle I/M program, please refer to the conditional
interim approval in 62 FR 3718. Therefore, the State does not need to
revise its DFW I/M rule as a result of this action.
Who do the NOX RACT and NSR rules apply to?
The NOX RACT rules will apply to you if you own or
operate a major source of NOX emissions. A major source is
defined as any stationary source, or group of sources, located in a
contiguous area and under common control that emits, or has the
potential to emit, at least 50 tons of NOX a year. Please
see TNRCC rules, Chapter 117--Control of Air Pollution from Nitrogen
Compounds for additional information.
The NSR rules apply to you if you are an owner or operator planning
to construct or modify a source that has the potential to emit at least
50 tons of NOX a year. Please see TNRCC rules, Chapter 116--
Control of Air Pollution By Permits for New Construction or
Modification, Subchapter B: New Source Review Permits, Division 5:
Nonattainment New Source Review for additional information.
When do I Have To Comply With the NOX RACT and NSR
The NOX RACT final compliance date is as expeditiously
as practicable but not later than March 31, 2001; and the NSR
compliance date is March 21, 1999. Under the State's NSR rule, permit
applications determined to be complete prior to March 21, 1999, are not
subject to the new NOX requirements.
What is the Effect of Rescinding the NOX Exemption on
The NOX waiver for transportation and general conformity
determinations no longer applies after the effective date of this rule.
The NOX waiver exempted the North Central Texas Council
of Governments (NCTCOG) from the transportation conformity rule's
``build-no build'' test for NOX emissions. After the
effective date of this notice, the NCTCOG must observe the
NOX requirements in future transportation conformity
determinations on transportation improvement programs, transportation
plans, and projects. See the State Transportation Conformity Rule, 30
Texas Administrative Code (TAC) Chapter 114, and 40 CFR part 93 subpart
A for more information. The State does not need to revise its
transportation conformity rule as a result of this action.
The NOX requirements also apply in future general
conformity determinations. The NOX waiver exempted Federal
projects from general conformity determinations regarding
NOX. Federal agencies that must make a conformity
determination for Federal actions in the DFW area according to the
State's General Conformity Rule are now subject to the NOX
requirements. See the State General Conformity Rule, 30 TAC Section
101.30, and CFR part 51 subpart W for more information. The State does
not need to revise its General
Conformity Rules as a result of this action.
Existing conformity determinations will not be affected by this
rescission of the NOX exemption and will continue to be
valid to the same extent as generally allowed under the rules, but new
conformity determinations will have to observe the NOX
Where Can I Get Background Information on the Exemption?
We approved the exemption on November 21, 1994, and published the
approval in a Federal Register notice, 59 FR 60709, November 28, 1994.
We proposed approval of the exemption in a Federal Register notice, 59
FR 44386, August 29, 1994.
What Further Action Must EPA Take?
We plan to review the State's RACT and NSR NOX
submissions for approval in separate rulemaking actions because those
submissions will be contained in a broader SIP that also includes
Volatile Organic Compounds controls, modeling, and rate of progress
requirements. The State submitted this SIP March 18, 1999.
What is the Process for EPA Approval of This Action?
We are publishing this rule without prior proposal because we view
this as a noncontroversial action and anticipate no adverse comments.
However, in the ``Proposed Rules'' section of today's Federal Register
publication, we are publishing a separate document that will serve as
the proposal to approve the action if adverse comments are filed. This
rule will be effective on June 21, 1999, without further notice unless
we receive adverse comment by May 20, 1999. If we receive adverse
comment, we will publish a timely withdrawal in the Federal Register
telling the public that the rule will not take effect. If this happens,
we will address all public comments in a subsequent final rule based on
the proposed rule. We will not initiate a second comment period on this
action. Any parties interested in commenting must do so at this time.
A. Executive Order (E.O.) 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866, entitled ``Regulatory Planning and
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally
requires an agency to conduct a regulatory flexibility analysis of any
rule subject to notice and comment rulemaking requirements unless the
agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. Small entities
include small businesses, small not-for-profit enterprises, and small
governmental jurisdictions. Removal of the NOx exemption under section
182(f) of the Act is an action that affects the status of a
geographical area and does not directly regulate any entities. See Mid-
Tex Electric Cooperative Inc. v. FERC, 773 F.2nd 327 (D.C. 1985)
(Agency's certification need only consider the rule's impact on
entities subject to the requirements of the rule. To the extent that
the area must adopt new regulations, we will review the effect of those
actions at the time the State submits those regulations. Therefore, I
certify that this action will not have a significant economic impact on
a substantial number of small entities.
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in estimated annual costs to State,
Local, or Tribal governments in the aggregate; or to private sector, of
$100 million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
The EPA has determined that the rescission action promulgated does
not include a Federal mandate that may result in estimated annual costs
of $100 million or more to either State, local, or tribal governments
in the aggregate, or to the private sector. Statutory requirements that
previously were waived for the DFW area are now applicable. To the
extent that the State must adopt new regulations, we will review the
effect of these actions at the time the State submits the regulations.
D. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective June 21, 1999.
E. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a State, Local, or
Tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, E.O. 12875 requires EPA to provide to OMB a description of
the extent of EPA's prior consultation with representatives of affected
State, Local and Tribal governments, the nature of their concerns,
copies of any written communications from the governments, and a
statement supporting the need to issue the regulation. In addition,
E.O. 12875 requires EPA to develop an effective process permitting
elected officials and other representatives of State, Local, and Tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule implements statutory provisions but would not impose a
mandate on State, Local, or Tribal governments. Accordingly, the
requirements of section 1(a) of E.O. 12875 do not apply to this rule.
F. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If the EPA complies by consulting, E.O. 13084 requires EPA
to provide to OMB, in a separately identified section of the preamble
to the rule, a description of the extent of EPA's prior consultation
with representatives of affected tribal governments, a summary of the
nature of their concerns, and a statement supporting the need to issue
the regulation. In addition, E.O.
13084 requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.'' Today's rule implements requirements specifically set
forth by the Congress in the Federal Clean Air Act without the exercise
of any discretion by EPA. However, today's rule does not significantly
or uniquely affect the communities of Indian tribal governments. This
action does not involve or impose any new requirements that affect
Indian tribes. Accordingly, the requirements of section 3(b) of E.O.
13084 do not apply to this rule.
G. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
EPA interprets E.O. 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the order has the potential to
influence the regulation.
This rule is not subject to E.O. 13045 because it implements a
previously promulgated health or safety-based Federal standard.
H. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by June 21, 1999. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental Relations, Nitrogen oxides, Ozone, Volatile organic
Dated: April 14, 1999.
Carol M. Browner,
Part 52, chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. Section 52.2308 is amended by adding paragraph (g) to read as
Sec. 52.2308 Area-wide nitrogen oxides (NOX) exemptions.
* * * * *
(g) The Texas Natural Resource Conservation Commission submitted a
letter to EPA requesting rescission of the previously-granted
conditional exemption from the NOX control requirements of
section 182(f) of the Act for the Dallas/Fort Worth ozone nonattainment
area. The letter was sent on November 13, 1998. The conditional
exemption was granted on November 21, 1994, conditioned upon EPA
approving the modeling portion of the DFW attainment demonstration SIP.
The conditional exemption was also approved on a contingent basis. The
modeling-based exemption would last only as long as the area's modeling
continued to demonstrate attainment without the additional
NOX reductions required by section 182(f). The State's
request is based on new photochemical modeling which shows the need for
NOX controls to help the area attain the ozone National
Ambient Air Quality Standards. Furthermore, EPA would not and could not
approve the earlier attainment demonstration SIP modeling upon which
the condition was based.
(1) On June 21, 1999, the conditional NOX exemption for
the DFW area granted on November 21, 1994 is rescinded. Upon
rescission, the Federal requirements pertaining to NOX
Reasonably Available Control Technology (RACT), New Source Review,
vehicle Inspection/Maintenance, general and transportation conformity
(2) The NOX RACT final compliance date must be
implemented as expeditiously as practicable, but no later than March
[FR Doc. 99-9868 Filed 4-19-99; 8:45 am]
BILLING CODE 6560-50-P