Monday,

June
2,
2003
Part
II
Environmental
Protection
Agency
40
CFR
Part
51
Proposed
Rule
To
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard;
Proposed
Rule
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/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
51
[
FRL
 
7504
 
2]

RIN:
2060
 
AJ99
Proposed
Rule
To
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard
AGENCY:
Environmental
Protection
Agency
(
EPA).
ACTION:
Proposed
rulemaking.

SUMMARY:
In
this
document,
EPA
is
proposing
two
discrete
frameworks
to
implement
the
8­
hour
ozone
national
ambient
air
quality
standard
(
NAAQS
or
standard).
We
are
proposing
this
rule
so
that
States
may
know
which
statutory
requirements
apply
for
purposes
of
developing
State
implementation
plans
(
SIPs)
under
the
Clean
Air
Act
(
CAA)
to
implement
the
8­
hour
ozone
NAAQS.
The
intended
effect
of
the
rule
is
to
provide
certainty
to
States
regarding
their
planning
obligations
such
that
States
may
begin
SIP
development
upon
designation
and
classification
for
the
8­
hour
standard.
Following
are
the
principles
that
guided
us
in
the
development
of
these
frameworks
to
implement
the
8­
hour
ozone
standard:
To
protect
public
health,
provide
incentives
for
expeditious
attainment
of
the
8­
hour
ozone
standard
and
avoid
incentives
for
delay;
to
provide
reasonable
but
expeditious
attainment
deadlines;
to
have
a
basic,
straightforward
structure
that
can
be
communicated
easily;
to
provide
flexibility
to
States
and
EPA
on
implementation
approaches
and
control
measures
while
ensuring
that
the
implementation
strategy
is
supported
by
the
CAA;
to
emphasize
national
and
regional
measures
to
help
areas
come
into
attainment
and,
where
possible,
reduce
the
need
for
those
local
controls
that
are
more
expensive
than
national
and
regional
measures;
and
to
provide
a
smooth
transition
from
implementation
of
the
1­
hour
ozone
NAAQS
to
implementation
of
the
8­
hour
ozone
NAAQS.
In
addition,
we
intend
to
clarify
the
role
of
Tribes
in
implementing
the
8­
hour
ozone
NAAQS.
The
two
frameworks
we
are
proposing
are
based
on
two
different
classification
options,
which
affect
the
requirements
that
would
apply
to
individual
nonattainment
areas.
We
prefer
classification
option
2
because
it
provides
more
flexibility
to
States
and
Tribes
as
they
address
their
unique
air
quality
problems.
This
is
likely
to
allow
some
areas
to
attain
the
standard
at
a
lower
cost.
However,
we
are
also
soliciting
comments
on
option
1,
in
part
because
it
is
less
complex
and
may
be
easier
to
communicate,
as
well
as
on
other
ways
to
classify
nonattainment
areas.
This
proposed
rulemaking
does
not
propose
to
establish
attainment/
nonattainment
designations
nor
does
it
address
the
principles
that
will
be
considered
in
the
designation
process;
we
have
already
issued
guidance
on
the
principles
that
States
should
consider
in
making
designation
recommendations,
and
we
will
issue
further
guidance
separate
from
this
rulemaking
if
appropriate.
Finally,
we
are
not
taking
comment
at
this
time
on
appropriate
tests
under
the
8­
hour
standard
for
demonstrating
conformity
of
Federal
actions
to
SIPs.
We
intend
to
conduct
a
separate
rulemaking
on
this
issue
prior
to
designating
areas
under
the
8­
hour
ozone
standard.
In
this
proposal,
we
do
not
yet
propose
regulatory
text,
primarily
because
a
number
of
options
are
being
proposed
for
many
of
the
implementation
elements,
and
we
believe
it
would
be
better
to
obtain
public
comment
on
the
options
conceptually
first.
After
we
receive
and
consider
comment
on
the
proposed
options,
but
before
publishing
a
final
rule,
we
will
issue
proposed
regulatory
text.
DATES:
Comments
must
be
received
on
or
before
August
1,
2003.
We
have
scheduled
public
hearings
on
this
proposal
for
June
17,
2003,
June
19,
2003,
and
June
27,
2003.
ADDRESSES:
All
comments
should
be
submitted
to
Docket
#
OAR
2003
 
0079.
When
mailing
documents,
comments,
or
requests
to
the
EPA
Docket
Center
through
the
U.
S.
Postal
Service,
please
use
the
following
address:
U.
S.
Environmental
Protection
Agency,
EPA
West
(
Air
Docket),
1200
Pennsylvania
Avenue,
NW.,
Room:
B108;
Mail
Code:
6102T,
Washington,
DC
20460.
To
mail
comments
or
documents
through
a
courier
service,
the
mailing
address
is:
EPA
Docket
Center
(
Air
Docket),
U.
S.
Environmental
Protection
Agency,
1301
Constitution
Avenue,
NW.,
Room:
B108;
Mail
Code:
6102T,
Washington,
DC
20460.
The
normal
business
hours
are
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
Federal
holidays.
Comments
can
be
submitted
to
the
address
above,
by
fax
(
202)
566
 
1741,
or
by
e­
mail
to
A­
and­
R­
Docket@
epa.
gov.
The
voice
telephone
number
is
(
202)
566
 
1742.
In
addition,
we
have
placed
a
variety
of
materials
regarding
implementation
options
on
the
Web
site:
http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
o3imp8hr.
While
this
Web
site
is
not
an
exact
duplicate
of
the
Air
Docket,
we
have
placed
materials
that
we
have
generated
and
materials
that
have
been
submitted
in
an
electronic
format
on
the
Web
site.
We
request
that
comments
be
submitted
by
e­
mail
to
facilitate
expeditious
distribution
within
EPA
and
placement
on
the
Web
site.
The
public
hearings
will
be
held
from
8:
30
a.
m.
to
5
p.
m.
at
the
following
locations:
Marriott
Dallas/
Ft.
Worth
Airport
North,
8440
Freeport
Parkway,
Irving,
Texas,
75063,
on
June
17,
2003;
Palace
Hotel,
2
New
Montgomery
Street,
San
Francisco,
California
94105,
on
June
19,
2003;
and
Holiday
Inn
Select
Old
Town
Alexandria,
480
King
Street,
Alexandria,
Virginia
22314,
on
June
27,
2003.
Persons
wishing
to
speak
at
the
public
hearings
should
contact:
Ms.
Barbara
Bauer,
E.
H.
Pechan,
at
phone
number
(
919)
493
 
3144
ext.
188
or
by
e­
mail
at
barbara.
bauer@
pechan.
com.
Oral
testimony
may
be
limited
to
3
to
5
minutes
depending
on
the
number
of
people
who
sign
up
to
speak.
Commenters
may
also
supplement
their
oral
testimony
with
written
comments.
The
hearing
will
be
limited
to
the
subject
matter
of
the
proposal,
the
scope
of
which
is
discussed
below.
The
public
hearing
schedule,
including
lists
of
speakers,
will
be
posted
on
EPA's
Web
site
at
http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
o3imp8hr.
A
verbatim
transcript
of
the
hearing
and
written
statements
will
be
made
available
for
copying
during
normal
working
hours
at
the
Office
of
Air
and
Radiation
Docket
and
Information
Center
at
the
above
address
listed
for
inspection
of
documents.

FOR
FURTHER
INFORMATION
CONTACT:
Mr.
John
Silvasi,
Office
of
Air
Quality
Planning
and
Standards,
U.
S.
Environmental
Protection
Agency,
Mail
Code
C539
 
02,
Research
Triangle
Park,
NC
27711,
phone
number
(
919)
541
 
5666
or
by
e­
mail
at:
silvasi.
john@
epa.
gov
or
Ms.
Denise
Gerth,
Office
of
Air
Quality
Planning
and
Standards,
U.
S.
Environmental
Protection
Agency,
Mail
Code
C539
 
02,
Research
Triangle
Park,
NC
27711,
phone
number
(
919)
541
 
5550
or
by
email
at:
gerth.
denise@
epa.
gov.

SUPPLEMENTARY
INFORMATION:
This
notice
uses
a
number
of
acronyms
and
terms
that
are
defined
when
first
used.
A
list
appears
in
appendix
D
for
convenience.
In
a
number
of
places,
this
document
refers
to
time
periods
(
e.
g.,
so
many
years)
after
designation
or
after
the
designation
date.
By
this,
we
mean
the
effective
date
of
designation
by
EPA.

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Federal
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/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
Outline
I.
What
is
the
8­
hour
ozone
problem
and
EPA's
strategy
for
addressing
it?
A.
What
is
the
ozone
standard
and
the
health
problem?
B.
What
is
the
geographic
extent
of
the
8­
hour
ozone
problem?
C.
What
is
EPA's
overall
strategy
for
reducing
ozone
pollution?
1.
The
SIP
system
2.
National
rule
D.
What
is
the
relationship
between
the
SIP
system
proposed
and
the
proposed
Clear
Skies
legislation?
II.
What
is
the
background
on
the
8­
hour
ozone
standard?
A.
What
is
the
legal
background?
B.
What
technical
work
influenced
EPA's
implementation
approach?
III.
How
did
EPA
obtain
stakeholder
input
for
this
effort?
IV.
What
is
EPA's
schedule
for
issuing
an
8­
hour
ozone
implementation
rule?
V.
In
short,
what
does
this
proposed
rulemaking
contain?
A.
Classification
of
areas
B.
Attainment
deadlines
C.
Transition
from
the
1­
hour
to
the
8­
hour
standard
D.
Mandatory
measures
E.
Consequences
of
failure
to
attain
F.
Interstate
transport
G.
Modeling
and
attainment
demonstration
H.
Reasonable
Further
Progress
(
RFP)
1.
Requirement
for
15
percent
VOC
reductions
for
moderate
and
above
areas
during
the
first
6
years
after
the
base
year
2.
Base
year
I.
Reasonably
available
control
measures/
Reasonably
available
control
technology
(
RACM/
RACT)
J.
Conformity
K.
New
Source
Review
VI.
What
are
EPA's
proposed
frameworks
for
implementing
the
8­
hour
ozone
standard?
A.
How
will
EPA
reconcile
subparts
1
and
2?
How
will
EPA
classify
nonattainment
areas
for
the
8­
hour
standard?
What
attainment
dates
would
apply?
1.
Statutory
framework
and
Supreme
Court
decision
2.
EPA's
development
of
options
3.
Options
for
classification
4.
Under
classification
option
2,
how
would
EPA
classify
subpart
1
areas?
5.
Rationale
for
regulating
all
``
gap''
areas
under
subpart
1
only
6.
Proposed
incentive
feature
7.
Other
options
EPA
considered
8.
Implications
for
the
options
9.
Other
considerations
B.
How
will
EPA
treat
attainment
dates
and
other
dates
including
SIP
submittal
dates
for
the
8­
hour
ozone
standard?
1.
Background
2.
How
will
EPA
address
the
provision
regarding
1­
year
extensions?
3.
How
do
attainment
dates
apply
to
Indian
country?
4.
How
will
EPA
establish
attainment
dates
for
areas
classified
as
marginal
under
the
``
incentive''
feature
proposed
under
the
classification
section
or
areas
covered
under
subpart
1
with
a
requested
attainment
date
of
3
years
or
less
after
the
designation
date?
C.
How
will
EPA
implement
the
transition
from
the
1­
hour
to
the
8­
hour
standard
in
a
way
to
ensure
continued
momentum
in
States'
efforts
toward
cleaner
air?
1.
Background
2.
When
will
EPA
revoke
the
1­
hour
standard?
3.
What
obligations
should
continue
to
apply
as
an
area
begins
to
implement
the
8­
hour
ozone
NAAQS
and
what
obligations
should
no
longer
apply?
4.
Does
the
requirement
for
continued
implementation
of
the
obligations
addressed
above
expire
at
some
point?
5.
How
will
EPA
ensure
that
the
public
knows
which
areas
must
continue
provisions
under
the
1­
hour
SIPs
if
EPA
revokes
the
1­
hour
standard?
D.
Should
prescribed
requirements
of
subpart
2
apply
in
all
8­
hour
nonattainment
areas
classified
under
subpart
2,
or
is
there
flexibility
in
application
in
certain
narrowly
defined
circumstances?
1.
Background
2.
Approach
being
proposed
3.
Other
approaches
considered
E.
What
is
the
required
timeframe
for
obtaining
emissions
reductions
to
ensure
attainment
by
the
attainment
date?
F.
How
will
EPA
address
long­
range
transport
of
ground­
level
ozone
and
its
precursors
when
implementing
the
8­
hour
ozone
standard?
1.
Background
2.
EPA's
anticipated
approach
3.
Other
concerns
about
transport
4.
Other
options
considered
G.
How
will
EPA
address
transport
of
ground­
level
ozone
and
its
precursors
for
rural
nonattainment
areas,
multi­
State
nonattainment
areas,
areas
affected
by
intrastate
transport,
and
international
transport?
1.
Rural
transport
nonattainment
areas
2.
Multi­
state
nonattainment
areas
3.
Intrastate
transport
4.
International
transport
5.
Additional
ways
of
addressing
transport
6.
State­
Tribal
transport
H.
How
will
EPA
address
requirements
for
modeling
and
attainment
demonstration
SIPs
when
implementing
the
8­
hour
ozone
standard?
1.
Multi­
pollutant
assessments
(
oneatmosphere
modeling)
2.
Areas
with
early
attainment
dates
3.
Areas
with
later
attainment
dates
4.
Modeling
guidance
5.
Mid­
Course
review
I.
What
requirements
for
RFP
should
apply
under
the
8­
hour
ozone
standard?
1.
Background
2.
Proposed
features
in
general
3.
For
subpart
2
areas,
should
the
initial
15
percent
RFP
requirement
be
limited
to
VOC
emissions?
4.
What
baseline
year
should
be
required
for
the
emission
inventory
for
the
RFP
requirement?
5.
Should
moderate
areas
be
subject
to
prescribed
additional
RFP
requirements
prior
to
their
attainment
date?
6.
What
is
the
timing
of
the
submission
of
the
ROP
plan?
7.
How
should
CAA
restrictions
on
creditable
measures
be
interpreted?
Which
national
measures
should
count
as
generating
emissions
reductions
credit
toward
RFP
requirements?
8.
For
areas
covered
by
subpart
1
instead
of
subpart
2,
how
should
the
RFP
requirement
be
structured?
9.
How
should
the
RFP
requirements
be
implemented
for
areas
designated
for
the
8­
hour
ozone
standard
that
entirely
or
in
part
encompass
an
area
that
was
designated
nonattainment
for
the
1­
hour
ozone
standard?
10.
Will
EPA's
``
Clean
Data
Policy''
continue
to
apply
under
the
8­
hour
standard
for
RFP?
11.
How
will
RFP
be
addressed
in
Tribal
areas?
12.
How
will
RFP
targets
be
calculated?
J.
Are
contingency
measures
required
in
the
event
of
failure
to
meet
a
milestone
or
attain
the
8­
hour
ozone
NAAQS?
1.
Background
2.
Proposal
K.
What
requirements
should
apply
for
RACM
and
RACT
for
8­
hour
ozone
nonattainment
areas?
1.
Background
2.
Proposed
approach
for
RACT
in
general
for
areas
covered
under
subpart
2
3.
Proposed
approach
for
RACT
in
general
for
areas
covered
under
subpart
1
4.
Proposed
approach
for
previous
sourcespecific
major
source
RACT
determinations
5.
Proposed
approach
for
NOX
RACT
determinations
in
areas
affected
by
the
NOX
SIP
Call
6.
Proposed
approach
for
NOX
as
an
ozone
precursor
7.
Proposed
approach
for
RACM
8.
Proposed
submission
date
for
RACT
and
RACM
requirements
L.
How
will
the
section
182(
f)
NOX
provisions
be
handled
under
the
8­
hour
ozone
standard?
M.
What
aspects
of
transportation
conformity
and
the
8­
hour
ozone
standard
are
addressed
in
this
proposal?
1.
What
is
transportation
conformity?
2.
Why
is
EPA
discussing
transportation
conformity
in
this
proposed
rulemaking?
3.
Are
any
changes
being
made
to
transportation
conformity
in
this
proposed
rulemaking?
4.
When
does
transportation
conformity
apply
to
8­
hour
ozone
nonattainment
areas?
5.
How
does
the
1­
year
grace
period
apply
in
metropolitan
areas?
6.
How
does
the
1­
year
grace
period
apply
in
``
donut''
areas?
7.
How
does
the
1­
year
grace
period
apply
in
isolated
rural
areas?
8.
Does
conformity
apply
for
the
1­
hour
ozone
standard
once
the
1­
hour
ozone
standard
is
revoked?
9.
What
are
EPA's
plans
for
amending
the
conformity
rule
to
address
the
8­
hour
ozone
standard?
10.
What
impact
will
the
implementation
of
the
8­
hour
ozone
standard
have
on
a
State's
Transportation
Conformity
SIP?
11.
What
other
parts
of
this
proposal
could
affect
transportation
conformity
determinations?

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Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
1
Due
to
the
continued
litigation
over
the
8­
hour
standard,
EPA
revised
40
CFR
50.9(
b)
in
July
2000,
to
limit
its
authority
to
revoke
the
1­
hour
standard
until
such
time
as
the
8­
hour
standard
became
fully
enforceable
and
no
longer
subject
to
legal
challenge.
(
65
FR
45182,
July
20,
2000).
N.
What
requirements
for
General
Conformity
should
apply
to
the
8­
hour
ozone
standard?
1.
What
is
the
purpose
of
the
General
Conformity
regulations?
2.
How
is
the
General
Conformity
program
currently
structured?
3.
Who
runs
the
General
Conformity
program?
4.
How
does
an
agency
demonstrate
conformity?
5.
General
Conformity
regulation
revisions
for
the
8­
hour
ozone
standard
6.
How
does
the
1­
year
grace
period
apply
to
General
Conformity
determinations?
O.
How
should
the
NSR
Program
be
implemented
under
the
8­
hour
ozone
NAAQS?
1.
Background
2.
Nonattainment
NSR
under
the
8­
hour
ozone
standard
3.
Under
what
circumstances
is
a
transitional
program
needed
during
the
interim
period?
4.
Elements
of
the
Appendix
S
transitional
program
5.
Will
a
State
be
required
to
assure
that
the
increased
emissions
from
a
new
major
source
do
not
cause
or
contribute
to
a
violation
in
a
nearby
nonattainment
area
before
it
issues
a
preconstruction
permit
under
Appendix
S?
6.
What
happens
at
the
end
of
the
interim
period?
7.
What
is
the
legal
basis
for
providing
this
transitional
program?
8.
How
should
the
NSR
requirements
be
implemented
for
new
8­
hour
ozone
areas
that
encompass
the
old
1­
hour
ozone
nonattainment
areas
after
EPA
revokes
the
1­
hour
ozone
standard?
9.
NSR
option
to
encourage
development
patterns
that
reduce
overall
emissions
 
Clean
Air
Development
Communities
10.
Tribal
concerns
P.
How
will
EPA
ensure
that
the
8­
hour
ozone
standard
will
be
implemented
in
a
way
which
allows
an
optimal
mix
of
controls
for
ozone,
PM2.5,
and
regional
haze?
1.
Could
an
area's
8­
hour
ozone
strategy
affect
its
PM2.5
and/
or
regional
haze
strategy?
2.
What
guidance
has
EPA
provided
regarding
ozone,
PM2.5
and
regional
haze
interaction?
3.
What
is
EPA
proposing?
Q.
What
emission
inventory
requirements
should
apply
under
the
8­
hour
ozone
NAAQS?
R.
What
guidance
should
be
provided
that
is
specific
to
Tribes?
S.
What
are
the
requirements
for
Ozone
Transport
Regions
(
OTRs)
under
the
8­
hour
ozone
standard?
T.
Are
there
any
additional
requirements
related
to
enforcement
and
compliance?
U.
What
requirements
should
apply
to
emergency
episodes?
V.
What
ambient
monitoring
requirements
will
apply
under
the
8­
hour
ozone
NAAQS?
W.
When
will
EPA
require
8­
hour
attainment
demonstration
SIP
submissions?
1.
Background
2.
Option
being
proposed
VII.
Proposal
of
integrated
frameworks
using
various
options
VIII.
Other
Considerations
A.
Will
EPA
be
contemplating
incentives
for
areas
that
want
to
take
early
action
for
reducing
ozone
under
the
8­
hour
standard?
1.
What
are
the
Ozone
Flex
Guidelines
for
the
1­
hour
ozone
NAAQS?
2.
What
is
the
``
Early
Action
Compact''
for
implementing
the
8­
hour
ozone
NAAQS?
3.
What
is
EPA's
response
to
the
Texas
``
Early
Action
Compact?''
4.
Did
EPA
consider
other
options
for
incentives
for
areas
that
take
early
actions
for
reducing
ozone?
5.
What
is
the
difference
between
the
early
action
compact
program
and
the
transitional
NSR
program?
B.
Clarification
of
how
transition
from
1­
hour
to
8­
hour
standard
will
work
for
early
action
compact
areas,
for
conformity,
and
for
NSR
and
PSD.
C.
How
will
EPA's
proposal
affect
funding
under
the
Congestion
Mitigation
and
Air
Quality
Improvement
(
CMAQ)
Program?
D.
Are
there
any
environmental
impact
differences
between
the
two
major
classification
options
being
proposed?
IX.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
B.
Paperwork
Reduction
Act
C.
Regulatory
Flexibility
Act
D.
Unfunded
Mandates
Reform
Act
E.
Executive
Order
13132:
Federalism
F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
and
Safety
Risks
H.
Executive
Order
13211:
Actions
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
I.
National
Technology
Transfer
Advancement
Act
J.
Executive
Order
12898:
Federal
Actions
to
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
Populations
X.
Appendices
Appendix
A
 
Comparison
of
Subpart
1
&
2
Requirements
Appendix
B
 
`
`
Applicable
Requirements''
under
Subpart
2
Appendix
C
 
Comparison
of
Transitional
NSR
and
Early
Action
Compact
Programs
Appendix
D
 
Glossary
of
Terms
and
Acronyms
Appendix
E
 
Application
of
Conformity,
New
Source
Review
and
Prevention
of
Significant
Deterioration
under
Various
Transition
Cases
I.
What
Is
the
8­
Hour
Ozone
Problem
and
EPA's
Strategy
for
Addressing
it?

A.
What
Is
the
Ozone
Standard
and
the
Health
Problem?
Ground­
level
ozone
pollution
is
formed
by
the
reaction
of
volatile
organic
compounds
(
VOC)
and
nitrogen
oxides
(
NOX)
in
the
atmosphere
in
the
presence
of
sunlight.
These
two
pollutants,
often
referred
to
as
ozone
precursors,
are
emitted
by
many
types
of
pollution
sources,
including
on­
road
and
off­
road
motor
vehicles
and
engines,
power
plants
and
industrial
facilities,
and
smaller
``
area''
sources.
In
1979,
we
promulgated
the
0.12
ppm,
1­
hour
ozone
standard,
(
44
FR
8202,
February
8,
1979).
On
July
18,
1997,
we
promulgated
a
revised
standard
of
0.08
ppm,
measured
over
an
8­
hour
period
(
i.
e.,
the
8­
hour
standard).
In
general,
the
8­
hour
standard
is
more
protective
of
public
health
and
more
stringent
than
the
1­
hour
standard,
and
there
are
more
areas
that
do
not
meet
the
8­
hour
standard
than
there
are
areas
that
do
not
meet
the
1­
hour
standard.
At
the
time
that
we
promulgated
the
revised
8­
hour
standard,
we
also
promulgated
a
rule
providing
for
the
phase­
out
of
the
1­
hour
standard,
(
62
FR
38856
(
codified
at
50.9(
b)).
That
rule
provided
that
the
1­
hour
standard
would
no
longer
apply
to
an
area
once
we
determined
that
the
area
had
attained
the
1­
hour
standard.
1
Ozone
can
irritate
the
respiratory
system,
causing
coughing,
throat
irritation,
and/
or
uncomfortable
sensation
in
the
chest.
Ozone
can
reduce
lung
function
and
make
it
more
difficult
to
breathe
deeply,
and
breathing
may
become
more
rapid
and
shallow
than
normal,
thereby
limiting
a
person's
normal
activity.
Ozone
also
can
aggravate
asthma,
leading
to
more
asthma
attacks
that
require
a
doctor's
attention
and/
or
the
use
of
additional
medication.
In
addition,
ozone
can
inflame
and
damage
the
lining
of
the
lungs,
which
may
lead
to
permanent
changes
in
lung
tissue,
irreversible
reductions
in
lung
function,
and
a
lower
quality
of
life
if
the
inflammation
occurs
repeatedly
over
a
long
time
period
(
months,
years,
a
lifetime).
People
who
are
particularly
susceptible
to
the
effects
of
ozone
include
children
and
adults
who
are
active
outdoors,
people
with
respiratory
disease,
such
as
asthma,
and
people
with
unusual
sensitivity
to
ozone.
More
detailed
information
on
health
effects
of
ozone
can
be
found
at
the
following
Web
site:
http://
www.
epa.
gov/
ttn/
naaqs/
standards/
ozone/
s_
o3_
index.
html.
The
focus
of
today's
proposed
rule
is
implementation
of
the
revised
8­
hour
ozone
air
quality
standard
issued
by
EPA
in
1997,
including
the
transition
from
implementation
of
the
1­
hour
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105
/
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2,
2003
/
Proposed
Rules
2
See
discussion
below
on
how
EPA
has
developed
hypothetical
nonattainment
areas
for
purposes
of
analysis
of
this
proposed
rulemaking
and
options.
Modeling
analyses
for
projections
to
2007
are
found
in:
U.
S.
Environmental
Protection
Agency,
Office
of
Air
and
Radiation,
Technical
Support
Document
for
the
Heavy­
Duty
Engine
and
Vehicle
Standards
and
Highway
Diesel
Fuel
Sulfur
Control
Requirements:
Air
Quality
Modeling
Analyses.
EPA420
 
R
 
00
 
028.
December
2000.
Located
at:
http://
www.
epa.
gov/
otaq/
regs/
hd2007/
frm/
r00028.
pdf.
Information
on
the
modeling
analyses
for
projections
to
2010
and
2020
are
found
in
``
Technical
Addendum:
Methodologies
for
the
Benefit
Analysis
of
the
Clear
Skies
Initiative.''
September
2002.
This
can
be
found
at
the
following
Web
site:
http://
www.
epa.
gov/
clearskies/
Tech_
adden.
PDF.
Results
are
summarized
in
``
Human
Health
and
Environmental
Benefits
Achieved
by
the
Clear
Skies
Initiative.''
July
1,
2002.
http://
www.
epa.
gov/
clearskies/
CSIhealth_
env_
benefits7­
01.
ppt.

3
Latest
Findings
on
National
Air
Quality
 
2001
Status
and
Trends.
U.
S.
EPA;
Office
of
Air
Quality
Planning
and
Standards;
Emissions,
Monitoring
and
Analysis
Division;
Research
Triangle
Park,
NC.
September
2002.
EPA
454/
K
 
02
 
001.
Found
at:
http://
www.
epa.
gov/
airtrends/
ozone.
html.
standard
to
implementation
of
the
8­
hour
standard.

B.
What
Is
the
Geographic
Extent
of
the
8­
hour
Ozone
Problem?
Although
the
nation
as
a
whole
has
made
significant
progress
since
1970
in
reducing
ground­
level
ozone
pollution
(
sometimes
called
``
smog''),
ozone
remains
a
significant
public
health
concern.
At
present,
unhealthy
ozone
levels
 
exceeding
the
8­
hour
standard
 
occur
over
wide
geographic
areas
including
most
of
the
nation's
major
population
centers.
These
areas
include
much
of
the
eastern
half
of
the
United
States
and
large
areas
of
California.
The
geographic
extent
of
the
8­
hour
ozone
problem
is
expected
to
shrink
between
now
and
2020
due
to
existing
regulatory
requirements.
We
estimate
that
existing
control
measures
(
e.
g.,
Federal
motor
vehicle
standards,
EPA's
regional
NOX
rule
known
as
the
NOX
SIP
Call,
and
local
measures
already
adopted
under
the
CAA)
will
dramatically
reduce
the
number
of
areas
2
not
attaining
the
8­
hour
ozone
standard
 
from
122
in
2000
(
using
data
from
1998,
1999,
and
2000),
to
51
in
2007,
to
30
in
2010
and
13
in
2020.
See
Table
1
below.
The
total
population
living
in
areas
that
we
have
hypothesized
may
be
designated
nonattainment
is
also
projected
to
decline
over
time
 
from
178
million
in
2000,
to
143
million
in
2007,
to
116
million
in
2010,
to
82
million
in
2020.
However,
the
number
of
people
living
in
areas
with
excessive
ozone
levels
remains
high
for
the
foreseeable
future
because
existing
control
programs
alone
will
not
eliminate
unhealthy
ozone
levels
in
some
of
the
nation's
largest
population
centers.
Based
on
information
in
EPA's
Trends
Report
issued
in
2002,3
over
the
past
20
years,
national
ambient
ozone
levels
decreased
18
percent
based
on
1­
hour
data
and
11
percent
based
on
8­
hour
data.
Between
1982
and
2001,
emissions
of
VOCs
decreased
16
percent.
During
that
same
time
period,
emissions
of
NOX
increased
9
percent.
For
the
period
1982
to
2001,
the
downward
trend
in
1­
hour
ozone
levels
seen
nationally
is
reflected
in
every
broad
geographic
area
in
the
country.
The
Northeast
and
West
exhibited
the
most
substantial
improvement
over
the
last
20
years,
while
the
South
and
North
Central
regions
experienced
the
least
rapid
progress
in
lowering
ozone
concentrations.
Similar
to
the
1­
hour
ozone
trends,
all
regions
experienced
improvements
in
8­
hour
ozone
levels
between
1982
and
2001
except
the
North
Central
region,
which
showed
little
change
during
this
period.

TABLE
1.
 
8­
HOUR
OZONE
HYPOTHETICAL
NONATTAINMENT
AREAS
AND
POPULATION
[
Projected
by
modeling]

2000
2007
2010
2020
Number
of
areas
 
base
case
(
without
Clear
Skies
Act
controls)
...................................................
122
51
30
13
Number
of
areas
with
Clear
Skies
Act
controls
..............................................................................
122
51
24
12
Population
(
millions)
 
base
case
(
without
Clear
Skies
Act
controls)
.............................................
178
143
116
82.4
Population
(
millions)
 
with
Clear
Skies
Act
controls
.......................................................................
178
143
103
82.1
Note:
The
number
of
areas
1
projected
to
each
future
year
is
based
on
modeled
projections
without
consideration
of
application
of
new
emission
control
measures
that
would
be
required
under
the
SIP
process
for
areas
designated
nonattainment
for
the
8­
hour
NAAQS.
1
See
discussion
below
on
how
we
have
developed
hypothetical
nonattainment
areas
for
purposes
of
analysis
of
this
proposed
rulemaking
and
options.

C.
What
Is
EPA's
Overall
Strategy
for
Reducing
Ozone
Pollution?

Our
overall
strategy
for
achieving
the
8­
hour
ozone
standard
is
based
on
the
structure
outlined
in
the
CAA.
The
CAA
gives
both
the
States
and
EPA
important
roles
in
implementing
national
air
quality
standards.
States
have
primary
responsibility
for
developing
and
implementing
SIPs
that
contain
local
and
in­
State
measures
needed
to
achieve
the
air
quality
standards
in
each
area.
We
assist
States
by
providing
technical
assistance
and
guidance,
including
guidance
on
control
measures.
In
addition,
we
set
national
emissions
limits
for
sources
such
as
motor
vehicles.
Where
upwind
sources
contribute
to
downwind
problems
in
other
States,
we
can
also
ensure
that
the
upwind
States
address
these
contributing
emissions
or
regulate
them
federally,
where
a
State
fails
to
act
to
address
them.
We
intend
to
work
closely
with
States
and
Tribes
to
use
an
appropriate
combination
of
national,
regional
and
local
pollution
reduction
measures
to
meet
the
standard
expeditiously
and
in
a
cost­
effective
manner.

1.
The
SIP
System
States
use
the
SIP
process
to
identify
the
emissions
sources
that
contribute
to
the
nonattainment
problem
in
a
particular
area,
and
to
select
the
emissions
reductions
measures
most
appropriate
for
that
area,
considering
costs
and
a
variety
of
local
factors.
Under
the
CAA,
SIPs
must
ensure
that
areas
reach
attainment
as
expeditiously
as
practicable.
However,
other
programs,
such
as
Federal
controls,
also
provide
reductions,
and
States
may
rely
on
those
reductions
when
developing
their
attainment
plans.
The
SIP
system
for
nonattainment
areas
is
an
important
component
of
the
CAA's
overall
strategy
for
meeting
the
8­
hour
ozone
standard,
but
it
is
not
the
only
component.
As
noted
below,
the
CAA
also
requires
or
anticipates
the
use
of
national
rules
that
will
reduce
emissions
and
help
achieve
cleaner
air.

2.
National
Rules
For
the
States
to
be
successful
in
developing
local
plans
showing
attainment
of
standards,
EPA
must
do
its
part
to
control
the
sources
that
are
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2,
2003
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Proposed
Rules
4
On
July
18,
1997,
we
also
promulgated
a
revised
particulate
matter
(
PM)
standard
(
62
FR
38652).
Litigation
on
the
PM
standard
paralleled
the
litigation
on
the
ozone
standard
and
the
court
issued
one
opinion
addressing
both
challenges.
However,
issues
regarding
implementation
of
the
revised
PM
NAAQS
were
not
litigated.
more
effectively
and
efficiently
controlled
at
the
national
level
and
to
ensure
that
interstate
transport
is
addressed
through
SIPs
or
other
means.
We
already
have
issued
key
national
and
regional
control
requirements
for
motor
vehicles,
power
plants
and
other
sources
that
will
enable
many
areas
to
meet
the
8­
hour
standard
in
the
near
term.
Current
emissions
standards
for
new
cars,
trucks
and
buses
are
reducing
motor
vehicle
emissions
of
VOCs
(
sometimes
referred
to
as
hydrocarbons)
and
NOX
as
older
vehicles
are
retired.
Other
rules
are
reducing
emissions
from
several
categories
of
non­
road
engines.
EPA's
Tier
2
motor
vehicle
emission
standards,
together
with
the
associated
sulfur
in
gasoline
requirements,
will
provide
additional
benefits
nationally
within
the
time
period
of
many
8­
hour
ozone
nonattainment
areas'
anticipated
attainment
dates
(
65
FR
6698,
February
10,
2000).
Also,
we
published
the
heavy
duty
diesel
rule
on
January
18,
2001
(
66
FR
5002),
which
will
contribute
to
reductions
needed
to
meet
the
8­
hour
ozone
standard
in
areas
with
later
attainment
dates.
In
the
eastern
U.
S.,
dramatic
reductions
in
NOX
emissions
from
power
plants
and
large
industrial
sources
will
occur
by
May
2004
under
our
rules
to
reduce
interstate
transport
of
ozone
pollution
in
the
East.
These
rules
are
the
NOX
SIP
Call,
published
October
27,
1998
(
63
FR
57356),
and
the
Section
126
Rule,
published
January
18,
2000
(
65
FR
2674).
Also,
under
the
requirements
of
section
183(
e)
of
the
CAA,
we
are
contemplating
either
Federal
rules
or
control
techniques
guidelines
(
CTGs)
for
controlling
VOCs
from
15
additional
categories
of
consumer
and
commercial
products.
The
CTGs
assist
States
in
determining
required
controls
for
facilities
in
nonattainment
areas.
The
15
categories
are
in
addition
to
6
CTGs
already
published
under
this
provision
of
the
CAA
(
consumer
products,
architectural
coatings,
automobile
refinishing
coatings,
aerospace
coatings,
wood
furniture
coatings,
and
shipbuilding
and
ship
repair
coatings).
These
additional
rules
or
CTGs
are
expected
to
be
completed
over
the
next
few
years.
Control
measures
targeting
hazardous
air
pollutants
(
HAPs)
also
result
in
control
of
VOCs
and,
in
some
cases,
NOX.
Under
section
112
of
the
CAA,
EPA
was
required
to
identify
and
list
categories
of
industrial
facilities
that
emit
significant
quantities
of
one
or
more
of
188
HAPs
and
establish
maximum
achievable
control
technology
(
MACT)
standards
for
each
category
of
sources.
Because
most
of
the
organic
HAPs
are
also
VOCs,
in
many
cases,
control
of
organic
HAP
emissions
also
achieves
reductions
in
VOC
emissions.
Rules
for
most
of
the
listed
MACT
categories
have
been
promulgated.
Although
many
of
the
earlier
promulgated
rules
have
already
resulted
in
emissions
reductions
of
VOCs,
the
more
recent
rules
will
not
begin
achieving
reductions
until
the
compliance
date,
which
is
generally
3
years
following
promulgation.
Therefore,
the
amount
of
reductions
achieved
through
control
of
HAPs
that
are
VOCs
will
continue
to
grow
over
the
next
several
years.
We
see
the
potential
for
significant
further
emissions
reductions
from
power
plants
and
non­
road
engines
at
the
national
level.
The
Administration
has
proposed
nationwide
legislation,
the
``
Clear
Skies
Act''
(
CSA),
to
reduce
power
plant
emissions
of
NOX
nationwide,
as
well
as
sulfur
dioxide
and
mercury.
We
are
also
proposing
a
national
rule
that
would
significantly
reduce
NOX
emissions
from
non­
road
diesel­
powered
equipment.
These
nonroad
sources
constitute
an
important
fraction
of
the
NOX
emissions
inventory.

D.
What
Is
the
Relationship
Between
the
SIP
System
Proposed
and
the
Proposed
Clear
Skies
Legislation?

A
basic
issue
for
implementation
of
the
8­
hour
ozone
standard
is
how
to
treat
areas
projected
to
attain
the
standard
based
on
existing
controls.
We
believe
that
an
appropriate
balance
should
be
struck
between
two
goals:
Avoiding
requirements
for
unnecessary
additional
controls
that
increase
cost,
and
ensuring
expeditious
attainment
to
protect
public
health.
Today's
proposal
contains
options
that
strive
to
balance
these
two
goals
under
the
authority
of
current
law.
The
proposal
contains
two
options
for
classifying
areas
under
the
8­
hour
ozone
standard.
Both
options
contain
features
to
ensure
that
areas
projected
to
attain
compliance
in
the
near
term
based
on
existing
requirements
are
not
subject
to
additional
prescribed
control
obligations.
Of
course,
these
areas
would
be
subject
to
the
same
requirements
that
apply
to
all
areas
designated
nonattainment,
such
as
new
source
review
(
NSR)
and
conformity.
However,
we
are
considering
options
for
providing
for
more
flexible
implementation
of
these
requirements,
as
described
elsewhere
in
this
proposed
rulemaking,
and
are
actually
proposing
an
option
related
to
NSR
in
this
proposed
rulemaking.
The
proposed
Clear
Skies
legislation
takes
a
different
approach
to
requirements
for
areas
projected
to
attain
through
controls
that
are
already
mandated.
The
proposed
CSA
includes
a
provision
that
would
create
a
new
designation
of
``
transitional''
for
areas
that
are
projected
to
attain
compliance
by
2015
based
on
existing
controls,
or
with
the
aid
of
additional
SIP
controls
approved
by
December
31,
2004.
The
proposed
CSA
provides
that
areas
designated
transitional
would
be
subject
to
the
requirements
of
the
prevention
of
significant
deterioration
(
PSD)
program
for
new
sources,
which
applies
in
attainment
areas.
Because
``
transitional''
would
be
the
designation
for
such
areas,
they
would
not
be
required
to
adopt
additional
control
measures
that
would
be
required
for
areas
designated
nonattainment,
nor
would
they
be
subject
to
conformity
provisions.
The
provision
includes
a
mid­
course
check
to
ensure
that
the
area
remains
on­
track
toward
attainment.
In
case
of
failure
to
attain
by
2015,
the
area
would
be
redesignated
as
a
nonattainment
area
and
would
be
subject
to
the
nonattainment
area
requirements.
We
expect
that
most
areas
currently
exceeding
the
8­
hour
ozone
standard
could
qualify
for
this
designation,
in
many
cases,
without
further
local
controls.
However,
because
the
Clear
Skies
legislation
has
not
been
enacted,
we
have
not
considered
it
in
this
proposed
rulemaking.
Should
the
Clear
Skies
legislation
be
enacted
into
law,
we
would
conduct
further
rulemaking
on
implementation
of
the
8­
hour
ozone
standard
under
such
law,
if
necessary.

II.
What
Is
the
Background
on
the
8­
Hour
Ozone
Standard?

A.
What
Is
the
Legal
Background?
On
July
18,
1997,
we
revised
the
ozone
NAAQS
(
62
FR
38856)
by
promulgating
an
ozone
standard
of
0.08
parts
per
million
(
ppm)
as
measured
over
an
8­
hour
period.
At
that
time,
we
indicated
that
we
believed
that
the
8­
hour
ozone
NAAQS
should
be
implemented
under
the
less
detailed
requirements
of
subpart
1
of
part
D
of
title
I
of
the
CAA
rather
than
the
more
detailed
requirements
of
subpart
2.
Various
industry
groups
and
States
challenged
EPA's
final
rule
promulgating
the
8­
hour
ozone
NAAQS
in
the
U.
S.
Court
of
Appeals
for
the
District
of
Columbia
Circuit.
4
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2,
2003
/
Proposed
Rules
5
The
Court
addressed
a
number
of
other
issues,
which
are
not
relevant
here.
6
The
CAA
requires
EPA
to
set
ambient
air
quality
standards
and
requires
States
to
submit
SIPs
to
implement
those
standards.
7
The
EPA's
NOX
SIP
Call
mandated
reductions
by
May
2003.
However,
the
Court's
stay
of
the
rule
pending
litigation
resulted
in
a
1­
year
delay
to
May
2004.
1999,
the
Appeals
Court
remanded
the
ozone
standard
to
EPA
on
the
basis
that
our
interpretation
of
its
authority
under
the
standard­
setting
provisions
of
the
CAA
resulted
in
an
unconstitutional
delegation
of
authority.
American
Trucking
Assns.,
Inc.
v.
EPA,
175
F.
3d
1027,
1034
 
1040
(
ATA
I)
aff'd,
195
F.
3d
4
(
D.
C.
Cir.,
1999)
(
ATA
II).
In
addition,
the
Court
held
that
the
CAA
clearly
provided
for
implementation
of
a
revised
ozone
standard
under
subpart
2,
not
subpart
1.
Id.
at
1048
 
1050.5
We
sought
review
of
these
two
issues
in
the
U.
S.
Supreme
Court.
In
February
2001,
the
Supreme
Court
held
that
EPA's
action
in
setting
the
NAAQS
was
not
an
unconstitutional
delegation
of
authority.
Whitman
v.
American
Trucking
Assoc.,
121
S.
Ct.
903,
911
 
914
(
2001)
(
Whitman).
In
addition,
the
Supreme
Court
held
that
the
D.
C.
Circuit
incorrectly
determined
that
the
CAA
was
clear
in
requiring
implementation
only
under
subpart
2,
but
determined
that
our
implementation
approach,
which
did
not
provide
a
role
for
subpart
2
in
implementing
the
8­
hour
NAAQS,
was
unreasonable.
Id.
at
916
 
919.
Specifically,
the
Court
noted
we
could
not
ignore
the
provisions
of
subpart
2
that
``
eliminate[]
regulatory
discretion''
allowed
by
subpart
1.
Id.
at
918.
The
Court
also
identified
several
portions
of
the
CAA's
classification
scheme
under
subpart
2
that
are
``
ill­
fitted''
to
the
revised
standard
and
remanded
the
implementation
strategy
to
EPA
to
develop
a
reasonable
approach
for
implementation.
Id.
Because
the
D.
C.
Circuit
had
not
addressed
all
of
the
issues
raised
in
the
underlying
case,
the
court
remanded
the
case
to
the
D.
C.
Circuit
for
disposition
of
those
issues.
Id.
at
919.
On
March
26,
2002,
the
D.
C.
Circuit
Court
rejected
all
remaining
challenges
to
the
ozone
and
fine
particle
(
PM2.5)
standards.
American
Trucking
Assoc.
v.
EPA,
283
F.
3d
355
(
D.
C.
Cir.
2002)
(
ATA
III).
With
that
ruling,
EPA
began
to
move
forward
with
programs
to
protect
Americans
from
the
wide
variety
of
health
problems
that
these
air
pollutants
can
cause,
such
as
respiratory
illnesses
and
premature
death.
The
implementation
rule
proposed
herein
will
provide
specific
requirements
for
State,
local,
and
Tribal
air
pollution
control
agencies
to
address
as
they
prepare
implementation
plans
to
attain
and
maintain
the
8­
hour
NAAQS.
Each
State
with
an
area
that
is
not
attaining
the
8­
hour
ozone
NAAQS
will
have
to
develop
 
as
part
of
its
SIP
 
emission
limits
and
other
requirements
to
attain
the
NAAQS
within
the
timeframes
set
forth
in
the
CAA.
6
Tribes
with
jurisdiction
over
Tribal
lands
that
are
not
attaining
the
8­
hour
ozone
standard
could
voluntarily
submit
a
Tribal
implementation
plan
(
TIP)
but
would
not
be
required
to
do
so.
However,
in
cases
where
a
TIP
is
not
submitted,
EPA,
working
with
the
Tribes,
would
have
the
responsibility
for
planning
in
those
areas.

B.
What
Technical
Work
Influenced
EPA's
Implementation
Approach?
In
developing
our
original
approach
for
implementation
of
the
8­
hour
standard,
we
considered
input
from
a
variety
of
technical
information
sources
and
experts.
We
originally
described
the
technical
information
of
the
physical
processes
that
produce
ozone,
fine
particles,
and
regional
haze
and
relied
on
that
in
developing
a
proposed
implementation
approach.
See
``
Implementation
of
New
or
Revised
Ozone
and
Particulate
Matter
(
PM)
National
Ambient
Air
Quality
Standards
(
NAAQS)
and
Regional
Haze
Regulations;
Proposed
Rule''
(
December
13,
1996,
61
FR
65764).
We
also
participated
with
States
in
the
eastern
United
States
in
the
Ozone
Transport
Assessment
Group
(
OTAG),
which
documented
that
long­
distance
transport
of
nitrogen
oxides
across
much
of
the
OTAG
study
area
contributed
to
high
levels
of
ozone.
For
background
on
OTAG
and
the
results
from
the
study,
see
the
following
Web
site:
http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
rto/
otag/
index.
html.
That
OTAG
process
resulted
in
a
report
to
EPA
with
the
conclusions
that
included
the
following:
 
Regional
NOX
reductions
are
effective
in
producing
ozone
benefits;
the
more
NOX
reduced,
the
greater
the
benefit.
 
Ozone
benefits
are
greatest
where
emissions
reductions
are
made;
benefits
decrease
with
distance.
 
Elevated
and
low­
level
NOX
reductions
are
both
effective.
 
Volatile
organic
compound
controls
are
effective
in
reducing
ozone
locally
and
are
most
advantageous
to
urban
nonattainment
areas.
 
Air
quality
data
indicate
that
ozone
is
pervasive,
that
ozone
is
transported,
and
that
ozone
aloft
is
carried
over
and
transported
from
one
day
to
the
next.
As
a
result
of
these
recommendations,
EPA
called
for
SIP
revisions
from
22
States
and
the
District
of
Columbia
and
established
Statewide
budgets
on
NOX
emissions
that
those
jurisdictions
would
have
to
meet
by
2007.
Stationary
source
emissions
reductions
to
meet
the
budgets
were
required
to
be
implemented
by
May
2004.7
The
purpose
of
the
rule
was
to
address
longrange
transport
by
eliminating
the
significant
contribution
that
each
State's
NOX
emissions
made
to
both
1­
hour
and
8­
hour
ozone
nonattainment
problems
in
downwind
areas.
The
call
for
SIP
revisions
was
challenged
by
a
number
of
States,
industry
and
interest
groups
but
was
largely
upheld
by
the
court
and
has
remained
a
viable
means
for
obtaining
significant
NOX
emissions
reductions.
The
OTAG
report
also
recognized
that
VOC
emissions
reductions
do
not
play
much
of
a
role
in
long­
range
transport,
and
concluded
that
VOC
reductions
are
effective
in
reducing
ozone
locally
and
are
most
advantageous
to
urban
nonattainment
areas.
Under
the
Federal
Advisory
Committee
Act
(
FACA),
we
also
formed
a
Subcommittee
for
Development
of
Ozone,
Particulate
Matter
and
Regional
Haze
Implementation
Programs
that
provided
recommendations
and
ideas
to
assist
us
in
developing
implementation
approaches
for
these
programs.
We
have
incorporated
ideas
from
the
FACA
process
for
a
number
of
SIP
elements,
particularly
those
related
to
transport
of
ozone,
the
process
for
demonstrating
attainment
of
the
ozone
standard,
and
requirements
for
ensuring
reasonable
further
progress.
Further
information
on
the
FACA
process
and
its
reports
is
found
at
the
following
Web
site:
http://
www.
epa.
gov/
ttn/
faca/.
As
noted
above,
we
have
also
promulgated
national
rules
that
reduce
VOC
and
NOX
emissions
(
ozone
precursors)
from
mobile
and
stationary
sources,
which
also
help
address
ozone
nonattainment
problems.
A
number
of
commenters
recommended
that
we
set
additional
national
standards
for
more
source
categories
such
that
States
and
Tribes
do
not
have
to
control
these
sources
locally.
They
suggest
that
such
standards
would
eliminate
the
inconsistent
regulation
that
occurs
when
each
nonattainment
area
chooses
how
to
regulate
sources
within
its
jurisdiction.
We
continue
to
review
source
categories
for
possible
Federal
measure
development.
This
technical
backdrop
led
us
to
be
guided
by
the
principle
of
emphasizing
national
and
regional
measures
to
help
areas
come
into
attainment
and,
where
possible,
reducing
the
need
for
those
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Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
8
Section
107(
d)
of
the
CAA
sets
forth
a
schedule
for
designations
following
the
promulgation
of
a
new
or
revised
NAAQS.
The
Transportation
Equity
Act
for
the
Twenty­
first
Century
(
TEA
 
21)
revised
the
deadline
to
publish
nonattainment
designations
to
provide
an
additional
year
(
to
July
2000),
but
HR3645
(
EPA's
appropriation
bill
in
2000)
restricted
EPA's
authority
to
spend
money
to
designate
areas
until
June
2001
or
the
date
of
the
Supreme
Court
ruling
on
the
standard,
whichever
came
first.
9
American
Lung
Association
v.
EPA
(
D.
D.
C.
No.
1:
02CV02239).
local
controls
that
are
more
expensive
than
national
and
regional
measures.
However,
as
noted
below,
national
and
regional
measures
alone
are
not
anticipated
to
bring
all
areas
into
attainment.
Thus,
some
areas
will
need
to
adopt
local
controls
through
the
SIP
process.

III.
How
Did
EPA
Obtain
Stakeholder
Input
for
This
Effort?

We
initiated
a
process
to
obtain
stakeholder
feedback
on
options
the
Agency
developed
for
implementation
of
the
8­
hour
ozone
NAAQS.
We
held
three
public
meetings
in
addition
to
a
number
of
conference
calls
and
meetings
with
State,
local
and
Tribal
governments,
environmental
groups
and
industry
representatives.
(
The
lists
of
the
organizations
with
whom
we
had
discussions
are
in
the
docket,
in
addition
to
meeting
and
conference
call
summaries.)
The
purpose
of
the
meetings
and
conference
calls
was
to
obtain
stakeholder
feedback
regarding
the
options
that
we
had
developed
as
well
as
to
listen
to
any
new
or
different
ideas
that
stakeholders
were
interested
in
presenting.
We
received
comments
in
response
to
the
meetings
and
conference
calls.
The
comments
from
the
public
meetings
addressed
a
number
of
issues
related
to
the
implementation
approach.
In
addition
to
comments
received
at
the
public
meetings,
we
received
a
number
of
written
comments
on
how
to
implement
the
8­
hour
ozone
NAAQS.
We
have
considered
these
comments
in
the
implementation
approach
proposed
below.

IV.
What
Is
EPA's
Schedule
for
Issuing
an
8­
Hour
Ozone
Implementation
Rule?

We
plan
to
issue
a
final
rule
on
an
implementation
approach
by
the
end
of
2003.
While
there
is
not
a
CAA
deadline
for
promulgating
a
strategy
to
implement
the
8­
hour
ozone
NAAQS,
the
CAA
does
establish
a
deadline
for
EPA
to
promulgate
designations
of
nonattainment
areas
under
section
107
of
the
CAA.
8
We
have
entered
into
a
consent
decree
that
requires
us
to
promulgate
designations
by
April
15,
2004.9
The
nonattainment
designation
for
an
area
starts
the
process
whereby
a
State
must
develop
a
SIP
that
demonstrates
how
the
air
quality
standard
will
be
attained
by
the
attainment
dates
required
in
the
CAA.
We
plan
to
have
an
implementation
strategy
in
place
prior
to
designating
areas
for
the
8­
hour
ozone
standard.
This
will
enable
areas
that
are
designated
nonattainment
for
the
8­
hour
ozone
standard
to
understand
the
obligations
that
attach
to
nonattainment
designations
and
associated
classifications.

V.
In
Short,
What
Does
This
Proposed
Rulemaking
Contain?
This
summary
is
intended
to
give
an
overview
of
our
proposed
rule.
It
should
not
be
relied
on
for
the
details
of
the
actual
proposal.
The
proposed
rule
described
in
Section
VI.
below
should
be
consulted
directly.
The
order
in
which
issues
are
described
in
this
summary
does
not
match
exactly
the
order
these
issues
are
discussed
in
the
actual
proposal.

A.
Classification
of
Areas
Under
the
CAA,
an
ozone
nonattainment
area's
classification
determines
the
minimum
measures
that
must
be
included
in
the
area's
SIP
for
meeting
the
8­
hour
standard
and
the
maximum
time
period
allowed
for
the
area
to
meet
the
standard.
We
are
proposing
two
options
for
classifying
areas.
Under
option
1,
all
areas
would
be
classified
under
subpart
2
according
to
8­
hour
ozone
levels.
As
a
result,
all
areas
would
be
classified
as
marginal,
moderate,
serious,
or
severe
or
extreme
(
based
on
the
most
recent
air
quality
data,
no
areas
would
fall
in
the
``
extreme''
classification),
and
would
be
subject
to
control
requirements
specified
in
the
CAA
for
each
classification.
Under
option
2,
more
than
half
the
nonattainment
areas
would
likely
be
regulated
under
subpart
1.
All
of
these
would
be
areas
meeting
the
1­
hour
ozone
standard.
The
rest
of
the
areas
 
those
exceeding,
and
a
few
that
may
be
meeting
the
1­
hour
standard
 
would
be
classified
under
subpart
2
in
the
same
manner
as
option
1.
We
are
also
proposing
an
``
incentive
feature''
that
would
allow
areas
to
qualify
for
a
lower
classification
under
subpart
2
than
their
air
quality
would
dictate
if
they
demonstrate
they
will
attain
by
the
earlier
attainment
date
of
a
lower
classification.
For
example,
an
area
that
would
be
classified
``
moderate''
could
qualify
for
a
``
marginal''
classification
by
showing
it
will
attain
within
3
years
of
designation.
The
``
incentive
feature''
is
proposed
for
use
in
conjunction
with
either
classification
option.

B.
Attainment
Deadlines
We
are
proposing
that
for
areas
classified
under
subpart
2,
the
periods
for
attainment
(
running
from
the
date
of
designation/
classification)
would
be
3
years
for
marginal
areas,
6
years
for
moderate
areas,
9
years
for
serious
areas,
and
15
years
for
severe­
15
areas,
and
17
years
for
severe­
17
areas.
If
classification
option
2
were
selected,
some
areas
would
be
classified
under
subpart
1.
Attainment
dates
for
these
areas
would
be
no
later
than
5
years
after
designation,
although
they
could
be
extended
up
to
10
years
after
designation
depending
on
the
severity
of
the
area's
air
pollution
and
the
availability
and
feasibility
of
pollution
control
measures.
For
all
areas,
the
CAA
requires
each
plan
to
be
designed
to
meet
the
standard
as
expeditiously
as
practicable,
regardless
of
the
maximum
statutory
period
specified
for
attainment.

C.
How
Will
EPA
Implement
the
Transition
From
the
1­
Hour
to
the
8­
Hour
Standard
in
a
Way
To
Ensure
Continued
Momentum
in
States'
Efforts
Toward
Cleaner
Air?

This
section
discusses
which
obligations
would
remain
in
effect
for
areas
that
were
designated
nonattainment
under
the
1­
hour
ozone
NAAQS
on
or
after
November
15,
1990,
as
areas
begin
to
implement
the
8­
hour
standard.
It
also
proposes
two
alternatives
for
revoking
the
1­
hour
ozone
standard:
revocation
in
whole
and
revocation
in
part.
1.
Areas
designated
nonattainment
under
the
8­
hour
standard.
We
are
proposing
that
all
areas
designated
nonattainment
for
the
8­
hour
ozone
NAAQS
remain
subject
to
certain
obligations
that
applied
by
virtue
of
the
area's
classification
for
the
1­
hour
standard
where
the
area's
1­
hour
classification
was
higher
than
the
area's
classification
for
the
8­
hour
standard.
These
obligations
include
major
source
thresholds,
inspection
and
maintenance
(
I/
M)
programs
and
fuel
programs.
However,
these
obligations
would
not
apply
to
portions
of
an
8­
hour
ozone
nonattainment
area
that
was
not
a
part
of
a
1­
hour
ozone
nonattainment
area.
We
believe
that
Congress
intended
these
requirements
to
continue
to
apply
to
areas
as
they
move
forward
to
address
an
ozone
NAAQS.
We
are
soliciting
comment
whether
areas
that
have
not
yet
met
the
attainment
demonstration
obligation
for
the
1­
hour
standard
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Federal
Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
should
remain
obligated
to
submit
a
1­
hour
ozone
attainment
demonstration.
2.
Areas
designated
attainment
under
the
8­
hour
standard.
Since
attainment
areas
are
subject
to
PSD,
not
nonattainment
NSR,
we
propose
that
these
areas
would
not
remain
subject
to
the
nonattainment
NSR
offset
and
major
source
thresholds
that
might
otherwise
apply
due
to
their
classification
for
the
1­
hour
standard.
However,
we
are
proposing
that
control
obligations
that
applied
based
on
an
area's
1­
hour
classification
would
remain.
We
are
proposing
that
these
areas
are
obligated
to
submit
a
maintenance
plan
under
section
110(
a)(
1).
Consistent
with
EPA's
``
Clean
Data
Policy,''
we
are
proposing
that
these
areas
not
be
required
to
meet
outstanding
attainment
demonstration
and
rate­
of­
progress
(
ROP)
requirements,
so
long
as
they
remain
in
attainment.
However,
if
the
area
violates
the
8­
hour
standard
and
does
not
have
an
approved
maintenance
plan
for
the
8­
hour
standard
under
section
110(
a)(
1),
those
obligations
will
once
again
apply.
We
are
proposing
that
these
areas
would
need
contingency
measures
in
their
section
110(
a)(
1)
maintenance
plans.
However,
unlike
contingency
measures
under
section
175A,
these
contingency
measures
need
not
include
an
obligation
to
implement
all
control
obligations
in
the
previously
approved
SIP.
For
all
areas
designated
attainment
for
the
8­
hour
ozone
NAAQS
the
requirement
to
demonstrate
conformity
to
the
1­
hour
standard
would
no
longer
apply
once
the
1­
hour
standard
is
revoked
or
determined
not
to
apply
for
that
purpose.
3.
Concerning
the
NOX
SIP
Call.
We
are
proposing
that
States
must
continue
to
adhere
to
the
emission
budgets
established
by
the
NOX
SIP
Call
after
the
1­
hour
standard
is
revoked
in
whole
or
in
part.
Similarly,
we
are
not
proposing
to
revoke
or
modify
the
section
126
regulation.
4.
Obligations
under
part
D
of
title
I
of
the
CAA
that
would
not
continue
to
apply.
We
are
proposing
that
areas
would
not
be
obligated
to
continue
to
demonstrate
conformity
for
the
1­
hour
standard
once
the
1­
year
grace
period
for
application
of
conformity
for
the
8­
hour
standard
has
elapsed.
We
are
also
proposing
that
we
would
no
longer
make
findings
of
failure
to
attain
the
1­
hour
standard
and,
therefore,
also
would
not
reclassify
areas
to
a
higher
classification
for
the
1­
hour
standard
based
on
a
failure
to
meet
the
1­
hour
standard.
5.
How
long
would
the
obligations
discussed
under
the
1­
hour
standard
last?
We
are
proposing
that
these
measures
would
not
expire.
However,
we
are
proposing
two
options
for
when
the
State
may
relegate
these
measures
to
contingency
measures:
Option
1.
When
the
area
achieves
the
level
of
the
1­
hour
ozone
standard
(
even
if
the
area
has
not
yet
attained
the
8­
hour
standard).
Option
2.
When
the
area
attains
the
8­
hour
standard
and
is
designated
attainment
(
regardless
of
when,
if
ever,
the
area
attains
the
1­
hour
standard).
6.
Mechanism
to
effect
the
transition
from
the
1­
hour
to
the
8­
hour
standard.
We
are
proposing
2
mechanisms.
For
both
of
these
mechanisms,
we
are
proposing
that
the
revocation
of
the
1­
hour
standard
would
occur
1
year
following
designations
for
the
8­
hour
NAAQS.
Option
1:
Complete
revocation
of
the
1­
hour
standard.
Option
2:
Partial
revocation
of
1­
hour
standard.

D.
Mandatory
Measures
We
believe
that
the
CAA
is
clear
that
once
an
area
is
classified
under
subpart
1
or
subpart
2,
the
area's
State
implementation
plan
must
contain
the
measures
enumerated
in
the
CAA
for
its
classification.
However,
today's
proposal
contains
several
features
intended
to
provide
States
with
flexibility
on
the
measures
included
in
SIPs
for
8­
hour
areas.
In
addition,
we
are
proposing
to
consider
case­
by­
case
waivers
if
the
applicant
can
show,
consistent
with
case
law
on
this
issue,
that
implementing
a
requirement
in
a
particular
area
would
cause
``
absurd
results.''

E.
Consequences
of
Failure
To
Attain
The
consequences
of
failure
to
attain
the
standard
on
time
are
specified
by
the
CAA.
If
an
area
classified
under
subpart
2
fails
to
meet
the
standard
by
its
deadline,
the
CAA
requires
that
the
area
be
bumped
up
to
a
higher
classification
and
adopt
a
revised
plan
containing
the
additional
measures
specified
by
the
CAA
for
that
classification.
If
an
area
classified
under
subpart
1
fails
to
meet
the
standard
by
its
deadline,
the
area
would
be
required
to
adopt
a
new
plan
demonstrating
attainment,
including
any
requirement
mandated
by
the
Administrator.

F.
Interstate
Transport
EPA
recognizes
that
ozone
and
ozone
precursors
are
often
transported
across
State
boundaries,
and
that
interstate
transport
can
make
it
difficult
 
or
impossible
 
for
some
States
to
meet
their
attainment
deadlines
solely
by
regulating
sources
within
their
own
boundaries.
To
address
this
concern,
the
Agency
recently
adopted
two
rules
(
the
NOX
SIP
Call
and
the
Section
126
Rule)
to
reduce
interstate
ozone
transport
in
the
eastern
U.
S.
These
rules
were
developed
based
on
the
level
of
reductions
needed
to
address
transport
for
both
the
1­
hour
and
8­
hour
standards.
For
both
rules,
the
compliance
date
for
achieving
the
required
emissions
reductions
is
May
31,
2004.
Thus,
unlike
in
the
past,
States
affected
by
transport
can
develop
their
local
ozone
implementation
plans
with
the
knowledge
that
the
issue
of
interstate
transport
has
already
been
addressed
``
up
front.''
The
President
recently
proposed
legislation
known
as
the
Clear
Skies
Act
that,
among
other
things,
would
further
reduce
interstate
transport
of
ozone
and
NOX
(
an
ozone
precursor)
from
the
power
sector
through
a
cap­
and­
trade
program
similar
to
the
acid
rain
program.
These
reductions
are
beyond
the
levels
required
under
the
NOX
SIP
Call
and
the
Section
126
Rule.
The
Clear
Skies
reductions
would
enable
several
additional
areas
to
meet
the
8­
hour
standard
without
imposing
any
additional
local
controls.
A
number
of
other
areas
would
find
it
easier
to
meet
the
8­
hour
standard
because
of
the
additional
reductions
in
power
plant
emissions
that
would
be
required
under
Clear
Skies.
However,
the
Agency
has
not
made
a
determination
that
such
reductions
are
warranted
under
the
transport
provisions
of
the
CAA.
In
order
to
evaluate
this
issue,
the
Agency
intends
to
investigate
the
extent,
severity
and
sources
of
interstate
ozone
transport
that
will
exist
after
the
existing
transport
rules
are
implemented
in
2004.

G.
Modeling
and
Attainment
Demonstration
An
attainment
demonstration
SIP
includes
technical
analyses
to
locate
and
regulate
sources
of
emissions
that
are
contributing
to
violations
within
nonattainment
areas.
Section
182(
a)
does
not
require
marginal
areas,
which
have
an
attainment
date
only
3
years
following
designation
to
perform
any
photochemical
grid
modeling.
We
are
proposing
to
allow
areas
with
attainment
dates
within
3
years
after
designation
 
regardless
of
whether
they
are
covered
under
subpart
1
or
2
 
to
rely
on
existing
modeling.
Areas
with
later
attainment
dates
(
more
than
3
years
after
designation)
would
be
required
to
do
an
attainment
demonstration
SIP.
Modeling
developed
to
support
Federal
or
local
controls
may
be
used
if
the
application
of
that
modeling
is
consistent
with
our
modeling
guidance.

H.
Reasonable
Further
Progress
(
RFP)
There
are
several
issues
related
to
the
Act's
RFP
requirements.

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Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
1.
Requirement
for
15
Percent
VOC
Reductions
for
Moderate
and
Above
Areas
During
the
First
6
Years
After
the
Base
Year
We
are
proposing
two
ways
to
implement
the
15
percent
requirements
for
moderate­
and­
above
areas
to
meet
numerical
emissions
reductions
milestones
(
also
known
as
rate­
ofprogress
or
ROP,
requirements).
Under
the
first
option,
all
such
areas
would
be
required
to
reduce
baseline
VOC
emissions
by
15
percent
over
the
first
6
years
after
a
baseline
year.
Under
the
second
option,
areas
that
previously
reduced
VOC
emissions
by
15
percent
as
part
of
implementing
the
1­
hour
standard
would
be
viewed
as
having
already
met
the
requirement.
Moderate
areas
meeting
this
criterion
would
comply
with
the
general
subpart
1
requirement
to
demonstrate
``
reasonable
further
progress''
toward
meeting
the
standard.
Serious­
andabove
areas
meeting
the
criterion
would
be
required
to
achieve
an
18
percent
reduction
in
VOC
and/
or
NOX
over
the
first
6
years
and
9
percent
over
subsequent
3­
year
periods
until
the
area's
attainment
date.

2.
Base
Year
We
are
proposing
2002
as
the
baseline
year,
and
that
the
6­
year
period
for
reductions
would
run
from
January
1,
2003
until
December
31,
2008.
We
propose
that
States
be
allowed
credit
toward
meeting
the
ROP
requirements
for
all
emissions
reductions
that
occur
after
the
2002
base
year
 
including
reductions
from
all
post­
1990
Federal
or
other
measures
(
except
those
specifically
excluded
under
section
182(
b)(
1))
of
the
CAA.
We
have
also
recently
issued
a
memorandum
that
sets
forth
2002
as
the
baseline
year
for
planning
purposes.
We
are
also
proposing
options
for
other
RFP
issues,
including:
 
The
timing
of
ROP
reductions
relative
to
attainment
date
for
moderate
areas.
 
Timing
of
submission
of
ROP
plan.
 
CAA
requirements
for
creditability
of
control
measures.
 
Subpart
1
RFP.
 
Cases
where
8­
hr
NA
area
encompasses
and
is
larger
than
current
1­
hr
NA
area.

I.
RACM/
RACT
In
the
event
classification
option
2
is
selected,
we
are
proposing
an
interpretation
of
the
requirements
for
reasonably
available
control
measures
(
RACM)
and
reasonably
available
control
technology
(
RACT)
for
areas
covered
by
subpart
1.
For
RACT,
for
areas
with
8­
hour
ozone
levels
that
would
place
them
in
a
moderate
or
above
classification
under
subpart
2,
we
are
proposing
two
options.
Under
the
first
option,
these
areas
would
be
required
to
meet
the
traditional
technology­
based
RACT
control
requirement
that
are
applicable
to
moderate
and
above
areas
under
subpart
2.
Under
the
second
option,
if
the
area
is
able
to
demonstrate
attainment
of
the
standard
as
expeditiously
as
practicable
with
emission
control
measures
in
the
SIP,
then
RACT
will
be
met,
and
additional
measures
would
not
be
required
as
being
reasonably
available.
For
subpart
1
areas
with
8­
hour
ozone
levels
that
would
place
them
in
a
marginal
classification
if
classified
under
subpart
2,
the
RACT
requirement
would
be
similar
to
that
for
marginal
areas
covered
under
subpart
2.
This
RACT
approach
also
would
be
available
to
areas
that
qualified
for
marginal
status
via
the
incentive
feature.
The
RACT
requirements
for
areas
under
subpart
1
would
have
to
be
submitted
within
2
years
after
an
area's
nonattainment
designation.
We
are
proposing
that
the
State
does
not
need
to
perform
a
RACT
analysis
for
sources
subject
to
the
State's
emission
cap­
and­
trade
program
where
we
have
approved
the
cap­
and­
trade
program
as
meeting
the
NOX
SIP
Call
requirements
and
it
does
not
need
to
submit
a
new
NOX
RACT
SIP
for
those
sources.
We
propose
to
formally
recognize
NOX,
as
well
as
VOC,
as
an
ozone
precursor,
so
that
RACT
for
NOX
would
be
required
for
areas
classified
under
either
subpart
1
or
subpart
2
for
the
same
kinds
of
sources
covered
under
the
1­
hour
ozone
standard.
For
RACM,
we
propose
to
continue
with
the
same
interpretation
that
we
have
used
for
implementing
the
1­
hour
ozone
standard.
To
show
that
all
RACM
have
been
included
in
the
plan,
the
State
must
show
that
there
are
no
additional
measures
that
are
technically
and
economically
feasible
that
will
advance
the
attainment
date.

J.
Conformity
No
changes
to
the
transportation
conformity
rule
are
proposed
in
this
rulemaking.
Transportation
conformity
is
discussed
in
this
proposal
for
informational
purposes.
By
statute,
transportation
conformity
applies
to
8­
hour
nonattainment
areas
1
year
after
the
effective
date
of
an
area's
designation.
Our
proposal
to
revoke
the
1­
hour
standard
1
year
after
8­
hour
ozone
area
designations
means
that
transportation
conformity
requirements
under
the
1­
hour
standard
would
end
at
the
same
time
8­
hour
transportation
conformity
requirements
begin.
We
are
proposing
that
conformity
would
not
apply
in
1­
hour
ozone
standard
maintenance
areas
after
we
revoke
the
1­
hour
ozone
standard.
For
the
general
conformity
program,
which
ensures
that
federal
actions
will
not
interfere
with
an
area's
air
quality
plan,
we
are
not
proposing
to
revise
its
General
Conformity
Regulations
in
this
rulemaking.
We
plan
to
retain
the
existing
de
minimis
emissions
levels
for
actions
exempt
from
the
rule.
Our
proposal
to
revoke
the
1­
hour
standard
one
year
after
8­
hour
ozone
area
designations
means
that
general
conformity
requirements
under
the
1­
hour
standard
would
end
at
the
same
time
8­
hour
general
conformity
requirements
begin.
We
are
proposing
that
general
conformity
would
not
apply
in
1­
hour
ozone
standard
maintenance
areas
after
we
revoke
the
1­
hour
ozone
standard.

K.
New
Source
Review
We
are
proposing
three
options
for
NSR,
which
could
be
implemented
in
conjunction
with
each
other:
1.
A
``
status
quo''
NSR
program
under
which
subpart
1
areas
would
be
covered
by
subpart
1
NSR,
while
subpart
2
areas
would
be
covered
by
subpart
2
NSR.
2.
A
more
flexible
``
Transitional''
NSR
program
for
areas
that
submit
early
SIPs
and
that
attain
early.
This
program
would
be
available
to
areas
covered
under
subpart
1
and
that
are
attaining
the
1­
hour
ozone
standard.
3.
A
``
Clean
Air
Development
Community''
program
that
would
allow
a
more
flexible
NSR
program
for
areas
that
manage
growth
in
emissionsproducing
activities.

VI.
What
Are
EPA's
Proposed
Frameworks
for
Implementing
the
8­
Hour
Ozone
Standard?
As
noted
above,
we
originally
intended
to
implement
the
8­
hour
ozone
standard
under
subpart
1
of
part
D,
title
I
of
the
CAA.
This
would
have
allowed
areas
more
flexibility
to
determine
whether
to
regulate
NOX,
VOC
or
both
to
address
ozone
nonattainment.
As
also
noted
above,
however,
the
Supreme
Court
determined
that
an
approach
that
did
not
provide
for
classifying
areas
under
subpart
2
 
and
thus
subjecting
those
areas
to
the
subpart
2
control
requirements
 
in
implementing
the
8­
hour
standard
was
unreasonable.
In
structuring
a
proposed
implementation
rule,
we
have
tried
to
stay
as
close
as
possible
to
the
principles
noted
above,
particularly
with
regard
to
seeking
flexible
ways
for
States
to
address
their
8­
hour
ozone
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Federal
Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
10
Additional
Options
Considered
for
``
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard.''
U.
S.
Environmental
Protection
Agency,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
NC.
March
2003.
11
State
Implementation
Plans;
General
Preamble
for
the
Implementation
of
Title
I
of
the
Clean
Air
Act
Amendments
of
1990;
Proposed
Rule.''
April
16,
1992
(
57
FR
13498
at
13501
and
13510).
problems
by
avoiding
measures
that
may
be
unreasonable
for
an
area.
We
have
spent
a
large
amount
of
time
investigating
possible
legal
theories
and
policy
options
to
find
flexibility
within
the
statute,
as
interpreted
by
the
Supreme
Court.
We
have
also
had
the
benefit
of
ideas
and
recommendations
from
many
interested
stakeholders,
who
also
have
spent
much
time
developing
their
own
theories
and
ideas.
Based
on
these
efforts,
we
believe
that
we
have
developed
options
for
an
implementation
program
that
are
workable
under
the
constraints
of
the
CAA.
Nonetheless,
we
recognize
that
those
constraints
will
still
require
a
number
of
areas
to
adopt
certain
control
measures
that
may
not
be
as
effective
as
others
in
achieving
the
8­
hour
ozone
standard.
We
are
soliciting
any
further
ideas
for
addressing
this
situation.
To
describe
our
proposed
frameworks
for
implementing
the
8­
hour
ozone
standard,
it
is
necessary
to
examine
all
the
components
or
elements
of
the
process
used
to
implement
the
standard.
Therefore,
the
issues
and
options
that
we
are
proposing
that
deal
with
the
aspects
of
preparing
SIPs
for
the
standard
are
presented
below
individually.
Following
that,
we
present
two
possible
alternative
frameworks
that
blend
one
or
more
options
from
each
of
the
elements
to
illustrate
how
they
may
work
in
conjunction
with
each
other.
We
are
soliciting
comment
on
the
options
presented
for
the
individual
elements,
and
also
on
how
the
options
can
be
grouped
into
a
consolidated
implementation
framework.
The
proposal
below
describes
only
those
options
or
approaches
we
are
proposing.
We
considered
a
number
of
other
options
and
approaches
for
the
elements
discussed
below.
These
other
options
that
were
considered
but
are
not
being
proposed
are
described
in
a
separate
document
available
in
the
docket.
10
A.
How
Will
EPA
Reconcile
Subparts
1
and
2?
How
Will
EPA
Classify
Nonattainment
Areas
for
the
8­
hour
Standard?
What
Attainment
Dates
Would
Apply?

1.
Statutory
Framework
and
Supreme
Court
Decision
The
CAA
contains
two
sets
of
requirements
 
subpart
1
and
subpart
2
 
that
establish
requirements
for
State
plans
implementing
the
national
ozone
air
quality
standards
in
nonattainment
areas.
(
Both
are
found
in
title
I,
part
D.)
Subpart
1
contains
general
requirements
for
SIPs
for
nonattainment
areas
for
any
pollutant
 
including
ozone
 
governed
by
a
NAAQS.
Subpart
2
provides
more
specific
requirements
for
ozone
nonattainment
SIPs.
Throughout
this
proposed
rulemaking,
we
repeatedly
discuss
whether
an
area
is
subject
to
the
planning
requirements
of
subpart
1
or
subpart
2.
This
language
is
convenient
shorthand
for
purposes
of
this
proposal.
Actually,
if
an
area
is
subject
to
subpart
2
requirements,
it
is
also
subject
to
subpart
1
requirements.
In
some
cases,
subpart
1
and
subpart
2
requirements
are
inconsistent
or
overlap.
To
the
extent
that
subpart
2
addresses
a
specific
planning
obligation,
the
provisions
in
subpart
2
control.
For
example,
under
section
182(
b),
moderate
areas
are
subject
to
15
percent
ROP
requirements
rather
than
the
more
general
RFP
requirements
of
section
172(
c)(
2).
However,
moderate
areas
remain
subject
to
the
contingency
measure
requirement
of
section
172(
c)(
9),
as
that
requirement
is
not
addressed
for
moderate
areas
in
subpart
2.
11
When
we
published
the
8­
hour
ozone
standard
on
July
18,
1997,
we
indicated
that
we
anticipated
that
States
would
implement
that
standard
under
the
less
prescriptive
subpart
1
requirements.
More
specifically,
we
provided
that
areas
designated
nonattainment
for
the
1­
hour
ozone
standard
would
remain
subject
to
the
subpart
2
planning
requirements
for
purposes
of
the
1­
hour
standard
until
such
time
as
they
met
that
standard.
But
those
areas
and
all
other
areas
would
only
be
subject
to
subpart
1
for
purposes
of
planning
for
the
8­
hour
ozone
standard.
As
noted
above,
in
February
2001,
the
Supreme
Court
ruled
that
the
statute
was
ambiguous
as
to
the
relationship
of
subparts
1
and
2
for
purposes
of
implementing
the
8­
hour
NAAQS.
However,
the
Court
also
ruled
that
our
implementation
approach,
which
provided
no
role
for
subpart
2
in
implementing
the
8­
hour
NAAQS,
was
unreasonable.
Id.
Specifically,
with
respect
to
classifying
areas,
the
Supreme
Court
stated:

[
D]
oes
subpart
2
provide
for
classifying
nonattainment
ozone
areas
under
the
revised
standard?
It
unquestionably
does.

Whitman,
121
S.
Ct.
at
917.
However,
despite
recognizing
that
subpart
2
does
provide
classifications
applicable
for
the
8­
hour
standard,
the
Supreme
Court
also
recognized
that
the
subpart
2
classification
scheme,
specified
in
section
181,
did
not
entirely
fit
with
the
revised
8­
hour
standard
and
left
it
to
EPA
to
develop
a
reasonable
resolution
of
the
roles
of
subparts
1
and
2
in
implementing
a
revised
ozone
standard.
Id.
at
482
 
486.
In
particular,
the
Court
noted
three
portions
of
section
181
 
the
classification
provision
in
subpart
2
 
that
it
indicated
were
``
ill­
fitted
to
implementation
of
the
revised
standard.''
 
First,
the
Court
recognized
that
1­
hour
design
values
used
for
establishing
the
classifications
in
Table
1
in
section
181
``
would
produce
at
best
an
inexact
estimate
of
the
new
8­
hour
averages
*
*
*''
121
S.
Ct.
at
918.
 
Second,
the
Court
recognized
that
the
design
values
in
Table
1
start
at
the
level
of
the
1­
hour
NAAQS
 
0.12
ppm.
The
Court
noted
that
``
to
the
extent
the
new
ozone
standard
is
stricter
than
the
old
one,
*
*
*
the
classification
system
of
Subpart
2
contains
a
gap,
because
it
fails
to
classify
areas
whose
ozone
levels
are
greater
than
the
new
standard
(
and
thus
nonattaining)
but
less
than
the
approximation
of
the
old
standard
codified
by
Table
1.''
Id.
 
Third,
the
Court
recognized
that
``
Subpart
2'
s
method
for
calculating
attainment
dates
 
which
is
simply
to
count
forward
a
certain
number
of
years
from
November
15,
1990
*
*
*
seems
to
make
no
sense
for
areas
that
are
first
classified
under
a
new
standard
after
November
15,
1990.''
More
specifically,
the
Court
recognized
that
attainment
dates
for
marginal
(
1993),
moderate
(
1996),
and
serious
(
1999)
areas
had
passed.
Id.
at
483
 
484.

2.
EPA's
Development
of
Options
In
light
of
the
Supreme
Court's
ruling,
we
examined
the
statute
to
determine
the
manner
in
which
the
subpart
2
classifications
should
apply
for
purposes
of
the
8­
hour
ozone
NAAQS.
We
paid
particular
attention
to
the
three
portions
of
section
181
that
the
Supreme
Court
noted
were
ill­
fitted
for
implementation
of
the
revised
8­
hour
standard.
We
examined
those
provisions
in
light
of
the
legislative
history
and
the
overall
structure
of
the
CAA
to
determine
what
Congress
intended
for
purposes
of
implementing
a
revised,
more
stringent
ozone
standard.
We
believe
that
we
need
to
take
a
narrow
reading
consistent
with
what
we
believe
Congress
intended.
Consistent
with
those
principles,
we
developed
several
options.

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Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
12
The
upper
thresholds
of
the
marginal,
moderate,
serious,
severe­
15,
and
severe­
17
classifications
are
precise
percentages
or
fractions
above
the
level
of
the
standard,
namely
15.000
percent
(
3 
20ths
more
than
the
standard),
33.333
percent
(
one­
third
more
than
the
standard),
50.000
percent
(
one­
half
more
than
the
standard),
58.333
percent
(
7 
12ths
more
than
the
standard)
and
133.333
percent
(
one
and
one­
third
more
than
the
standard).
3.
Options
for
Classification
We
are
proposing
two
options
for
comment.
We
prefer
classification
option
2
because
it
provides
more
flexibility
to
States
and
Tribes
as
they
address
their
unique
air
quality
problems.
This
is
likely
to
allow
some
areas
to
attain
the
standard
at
a
lower
cost.
However,
we
are
also
soliciting
comments
on
option
1,
in
part,
because
it
is
less
complex
and
may
be
easier
to
communicate,
in
addition
to
any
other
ideas
on
how
to
classify
nonattainment
areas.
a.
Option
1.
Under
the
first
option,
we
would
classify
8­
hour
ozone
nonattainment
areas
according
to
the
severity
of
their
ozone
pollution
based
on
8­
hour
ozone
levels.
Under
this
option,
all
8­
hour
nonattainment
areas
would
be
classified
under
subpart
2
as
marginal,
moderate,
serious,
severe­
15,
severe­
17,
or
extreme.
The
CAA
gives
areas
in
higher
classifications
 
which
are
those
with
more
serious
ozone
pollution
problems
 
longer
time
periods
for
attaining
the
standard,
but
also
requires
these
areas
to
meet
a
longer
list
of
requirements
than
areas
in
lower
classifications.
A
key
feature
of
this
option
is
the
use
of
8­
hour
ozone
design
values
in
determining
the
severity
of
an
area's
8­
hour
ozone
problem.
However,
the
subpart
2
classification
table
(
Table
1
of
CAA
section
181)
is
based
on
1­
hour
ozone
design
values
(
because
it
was
designed
for
implementation
of
the
standard
in
effect
in
1990
 
the
1­
hour
ozone
standard).
Therefore,
this
option
would
require
us
to
adapt
the
subpart
2
classification
scheme.
Specifically,
we
would
adopt
by
regulation
a
modified
version
of
the
subpart
2
classification
table
that
contains
8­
hour
design
value
thresholds
for
each
classification,
rather
than
the
statutory
1­
hour
ozone
design
value
thresholds.
Using
8­
hour
design
values
for
classifying
areas
for
the
8­
hour
standard
would
reflect
the
magnitude
of
the
8­
hour
ozone
problem
more
accurately
than
would
the
1­
hour
design
values
in
Table
1.
We
are
proposing
to
translate
the
classification
thresholds
in
Table
1
of
section
181
from
1­
hour
values
to
8­
hour
values
in
the
following
manner:
Determine
the
percentage
by
which
each
classification
threshold
in
Table
1
of
section
181
exceeds
the
1­
hour
ozone
standard
and
set
the
8­
hour
threshold
value
at
the
same
percentage
above
the
8­
hour
ozone
standard.
For
example,
the
threshold
separating
marginal
and
moderate
areas
in
Table
1
is
15
percent
above
the
1­
hour
standard,
so
we
would
set
the
8­
hour
moderate
area
lower
threshold
value
at
15
percent
above
the
8­
hour
standard.
An
examination
of
the
percentages
derived
indicated
that
Congress
set
the
classification
thresholds
at
certain
percentages
or
fractions
above
the
level
of
the
standard.
12
These
are
the
percentages
above
the
standard
that
we
used
and
applied
to
the
level
of
the
8­
hour
standard
to
yield
new
threshold
levels
for
the
8­
hour
standard.
Table
2
of
this
proposed
rulemaking
below
depicts
how
the
translation
would
be
done
and
the
results.
There
are
other
ways
of
performing
the
translation
as
described
further
below,
some
of
which
have
been
suggested
in
public
comment,
but
we
believe
that
the
translation
described
here
is
most
consistent
with
the
apparent
intent
of
Congress
in
establishing
the
thresholds
in
the
classification
system
in
section
181.
As
mentioned
above,
under
this
option
all
8­
hour
nonattainment
areas
would
be
classified
under
subpart
2
and
receive
attainment
dates
consistent
with
their
classification.
Elsewhere
in
this
proposed
rule,
we
discuss
how
it
would
interpret
the
attainment
dates
in
Table
1
of
section
181
for
purposes
of
areas
classified
under
subpart
2
for
the
8­
hour
standard.
Areas
that
do
not
attain
by
their
attainment
date
would
be
reclassified
to
a
higher
classification
and
be
given
a
later
attainment
date
and
would
be
subject
to
the
measures
of
the
higher
classification
(
section
181(
b)(
2)).

TABLE
2.
 
TABLE
1
OF
SUBPART
2
1­
HOUR
OZONE
CLASSIFICATION
TABLE
[
Translation
to
8­
Hour
Design
Values]

Area
class
CAA
design
value
thresholds
1­
hour
ozone
ppm
Percent
above
1­
hour
ozone
NAAQS
Translated
8­
hour
design
value
thresholds
ppm
ozone
Marginal
..........................................................
from
................................................................
0.121
0.833
1
0.085
up
to
...............................................................
0.138
15.000
0.092
Moderate
.........................................................
from
................................................................
0.138
15.000
0.092
up
to
...............................................................
0.160
33.333
0.107
Serious
............................................................
from
................................................................
0.160
33.333
0.107
up
to
...............................................................
0.180
50.000
0.120
Severe­
15
.......................................................
from
................................................................
0.180
50.000
0.120
up
to
...............................................................
0.190
58.333
0.127
Severe­
17
.......................................................
from
................................................................
0.190
58.333
0.127
up
to
...............................................................
0.280
133.333
0.187
Extreme
...........................................................
equal
to
or
above
...........................................
0.280
133.333
0.187
1
The
percentages
used
were
calculated
based
on
the
level
of
the
1­
hour
standard
as
it
appears
in
40
CFR
51.9,
viz.,
0.12
ppm.
The
percentages
were
applied
to
the
8­
hour
standard
as
it
appears
in
40
CFR
51.10,
viz.,
0.08
ppm.
Our
guidance
uses
a
rounding
convention
for
1­
hour
air
quality
data
such
that
values
less
than
0.125
round
down
to
0.12
and
therefore
represent
attainment;
values
of
0.125
up
to
and
including
0.129
round
up
to
0.13,
and
therefore
indicate
nonattainment.
An
exact
translation
of
the
0.121
1­
hour
threshold
would
have
produced
0.081
ppm
as
the
corresponding
8­
hour
threshold;
however,
since
any
value
less
than
0.085
ppm
would
indicate
an
area
is
attaining
the
8­
hour
ozone
standard
the
table's
lowest
value
reflects
the
lowest
value
representing
nonattainment,
viz.,
0.085
ppm.

b.
Option
2
 
2­
step
approach.
We
are
proposing
a
second
option
(
our
preferred
option)
under
which
some
areas
would
implement
the
8­
hour
standard
under
subpart
1,
and
other
areas
would
implement
the
8­
hour
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Federal
Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
13
Section
172(
a)(
1)(
C)
provides
that
the
provisions
of
section
172(
a)
``
shall
not
apply
with
respect
to
nonattainment
areas
for
which
classifications
are
specifically
provided''
in
other
sections
of
part
D.
Similarly,
section
172(
a)(
2)(
D)
provides
that
the
attainment
date
provisions
in
section
172(
a)(
2)
do
not
apply
``
to
nonattainment
areas
for
which
attainment
dates
are
specifically
provided''
elsewhere
in
part
D.
14
Proposed
Implementation
Guidance
for
the
Revised
Ozone
and
Particulate
Matter
(
PM)
National
Ambient
Air
Quality
Standards
(
NAAQS)
and
the
Regional
Haze
Program.
November
17,
1998.
Found
at:
http://
www.
epa.
gov/
ttn/
oarpg/
t1pgm.
html.
standard
under
subpart
2.
This
option
relies
on
language
in
the
Supreme
Court
decision,
which
is
described
in
detail
below.
In
brief,
the
option
that
we
are
proposing
would
work
as
follows:
 
First,
we
would
determine
which
8­
hour
areas
must
be
classified
under
subpart
2.
These
would
be
areas
with
ozone
levels
that
exceed
the
1­
hour
ozone
design
values
that
Congress
specified
in
Table
1
of
section
181.
For
the
remaining
areas,
we
would
have
discretion
to
place
them
under
subpart
1
or
subpart
2.
 
Second,
we
would
classify
all
areas.
Subpart
2
areas
would
be
classified
in
the
same
manner
described
above
under
option
1.
Options
for
classifying
subpart
1
areas
are
described
below.
(
i)
Legal
framework
for
2­
step
approach.
Under
this
approach,
we
first
determine
the
universe
of
areas
that
must
be
subject
to
the
provisions
of
subpart
2
and
the
universe
of
areas
that
fall
into
a
``
gap''
in
subpart
2'
s
classification
scheme.
Then,
we
proceed
to
determine
how
to
classify
the
areas.
(
ii)
Legal
framework
 
Step
1
 
Which
subpart
applies
for
an
area?
With
respect
to
the
first
step,
the
Supreme
Court
noted
that
``
to
the
extent
that
the
new
ozone
standard
is
stricter
than
the
old
one,
*
*
*
the
classification
system
of
Subpart
2
contains
a
gap,
because
it
fails
to
classify
areas
whose
ozone
levels
are
greater
than
the
new
standard
*
*
*
but
less
than
the
approximation
of
the
old
standard
codified
by
Table
1
[
in
section
181(
a)].''
121
S.
Ct.
at
918.
Thus,
for
those
areas
with
a
1­
hour
ozone
design
value
above
the
level
identified
in
Table
1
(
i.
e.,
0.121
ppm),
Table
1
``
specifies''
a
classification
for
the
area.
For
those
areas,
we
would
not
have
authority
to
establish
classifications
under
subpart
1
because
section
172(
a)(
1)(
C)
prohibits
the
use
of
the
classification
authority
in
section
172(
a)(
1)(
A)
for
those
areas.
13
However,
for
areas
with
1­
hour
ozone
design
values
below
0.121
ppm,
Table
1
does
not
specify
a
classification,
and
those
areas
fall
into
a
gap
in
the
statute.
Thus,
we
must
reasonably
determine
whether
such
areas
should
be
subject
to
the
planning
obligations
of
subpart
1
or
subpart
2.
This
issue
is
discussed
more
fully
below
under
``
Rationale
for
regulating
all
``
gap''
areas
under
subpart
1
only.''
In
summary,
under
the
first
step
of
this
approach,
we
examine
each
nonattainment
area's
most
recent
1­
hour
design
value
at
the
time
of
designation
under
the
8­
hour
NAAQS
to
determine
whether
the
area
must
be
subject
to
the
classification
under
subpart
2.
If
an
area's
1­
hour
design
value
is
0.121
or
higher,
then
it
must
be
subject
to
a
subpart
2
classification.
If
its
1­
hour
design
value
is
lower
than
0.121,
it
falls
into
a
gap
and
we
must
determine
a
reasonable
implementation
scheme
 
either
subpart
1
or
subpart
2
 
for
such
area.
(
iii)
Legal
framework­
 
Step
2
 
How
should
areas
be
classified
under
subparts
1
and
2?
Under
step
2
of
this
approach,
we
must
determine
how
to
classify
areas
subject
to
the
classification
provisions
of
subpart
2.
For
those
areas
subject
to
the
classification
provisions
of
subpart
2,
we
believe
that
it
is
most
reasonable
to
use
the
area's
8­
hour
design
value
to
determine
the
appropriate
classification.
This
would
be
done
in
the
same
manner
as
option
1,
proposed
above,
in
which
the
Table
1
threshold
design
values
are
converted
from
1­
hour
values
to
8­
hour
values.
Another
option
would
have
been
to
apply
Table
1
as
it
is
written.
Some
might
argue
that
this
approach
is
better
because
it
is
consistent
with
the
design
value
EPA
would
use
under
this
option
to
determine
whether
Congress
mandated
that
the
area
be
subject
to
subpart
2.
We
do
not
believe
that
Congress
would
have
intended
the
use
of
1­
hour
design
values
for
determining
the
classification
``
and
therefore
the
control
obligations
and
attainment
dates
 
of
8­
hour
areas.
While
we
believe
it
is
reasonable
to
use
the
1­
hour
design
values
as
a
barometer
of
Congress'
intent
as
to
which
areas
should
be
subject
to
the
more
prescriptive
requirements
of
subpart
2,
we
do
not
believe
it
makes
sense
to
use
the
1­
hour
values
to
establish
each
area's
classification
under
that
subpart.
The
area's
classification
identifies
the
specific
control
requirements
applicable
to
each
area
within
that
classification
and
the
period
of
time
the
area
has
to
attain.
As
enacted,
the
Table
provides
that
areas
having
a
more
significant
ozone
pollution
problem
for
the
1­
hour
standard
and
thus
a
higher
classification
are
subject
to
more
stringent
controls
and
have
a
longer
period
to
attain.
Because
of
the
different
form
and
averaging
times
of
the
1­
hour
and
8­
hour
standards,
areas
with
significant
1­
hour
problems
may
not
have
as
significant
an
8­
hour
problem
and
vice
versa.
Using
the
1­
hour
design
values
to
classify
areas,
therefore,
could
result
in
areas
with
less
significant
ozone
problems
being
subject
to
stricter
planning
obligations
(
and
later
attainment
dates)
than
those
with
a
more
significant
problem.
Thus,
we
believe
it
is
more
consistent
with
Congressional
intent
to
use
8­
hour
design
values
as
the
means
for
specifying
the
stringency
of
controls
needed
to
attain
the
8­
hour
ozone
standard
and
the
associated
attainment
dates.
We
also
believe
that
this
is
consistent
with
the
Supreme
Court
decision,
in
which
the
Court
recognized
that
the
``
1­
hour
averages''
in
Table
1
``
produce
at
best
an
inexact
estimate
of
the
new
8­
hour
averages.''
See
121
S.
Ct.
at
918.
As
discussed
in
the
following
section,
for
areas
that
EPA
determines
would
be
subject
only
to
subpart
1,
section
172(
a)(
1)(
A)
grants
EPA
discretion
to
develop
a
classification
scheme.

4.
Under
Classification
Option
2,
How
Would
EPA
Classify
Subpart
1
Areas?

a.
Background.
As
noted
above,
classification
option
2
above
could
result
in
a
number
of
areas
not
being
classified
under
subpart
2.
Section
172(
a)(
1)(
A)
grants
EPA
discretion
to
establish
a
classification
system
for
areas
covered
under
subpart
1
but
does
not
mandate
classifications.
Section
172(
a)(
1)(
A)
provides
that
on
or
after
[
the
date
of
designation],
the
Administrator
may
classify
the
area
for
the
purpose
of
applying
an
attainment
date
pursuant
to
paragraph
(
2),
and
for
other
purposes.
In
determining
the
appropriate
classification,
if
any,
for
a
nonattainment
area,
the
Administrator
may
consider
such
factors
as
the
severity
of
nonattainment
in
such
area
and
the
availability
and
feasibility
of
the
pollution
control
measures
that
the
Administrator
believes
may
be
necessary
to
provide
for
attainment
of
such
standard
in
such
area.

Prior
to
the
Supreme
Court's
remand
of
our
implementation
approach,
we
had
proposed
that
all
8­
hour
ozone
nonattainment
areas
be
subject
only
to
subpart
1
for
purposes
of
the
8­
hour
standard,
and
that
areas
would
be
classified
as
traditional,
transitional,
or
international
transport.
These
classifications
were
described
in
our
November
17,
1998
draft
implementation
guidance.
14
Because
we
are
no
longer
considering
an
option
where
all
areas
would
be
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2,
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Proposed
Rules
15EPA's
guidance
on
such
determinations
appears
in
``
Criteria
for
Assessing
the
Role
of
Transport
of
Ozone/
Precursors
in
Ozone
Nonattainment
Areas,''
May
1991.
U.
S.
Environmental
Protection
Agency,
Office
of
Air
Quality
Planning
and
Standards,
Technical
Support
Division,
Research
Triangle
Park,
NC
27711.
Available
at:
http://
www.
epa.
gov/
scram001/
tt25.
htm.
Look
for
zip
file
name
UAMIVGUIDE.
Unzip
to
access
file
name
UAMCRIT.
16
These
areas
included:
(
a)
The
transitional
areas
under
section
185A
(
areas
that
were
designated
as
an
ozone
nonattainment
area
as
of
the
date
of
enactment
of
the
CAA
Amendments
of
1990
but
that
did
not
violate
the
1­
hour
ozone
NAAQS
between
January
1,
1987,
and
December
31,
1989);
(
b)
nonattainment
areas
that
had
incomplete
(
or
no)
recent
attaining
data
and
therefore
could
not
be
designated
attainment;
and
(
c)
areas
that
were
violating
the
1­
hour
ozone
standard
by
virtue
of
their
expected
number
of
exceedances,
but
whose
design
values
were
lower
than
the
threshold
for
which
an
area
can
be
classified
under
Table
1
of
subpart
2
(
submarginal
areas).
See
57
FR
13498
at
13524
col.
3
et
seq.
(
April
16,
1992).
classified
under
subpart
1,
we
have
determined
the
classification
scheme
it
proposed
earlier
is
not
appropriate.
We
are
now
proposing,
as
described
below,
two
new
options
for
classifying
subpart
1
areas
for
the
8­
hour
standard.
b.
Options
for
classifying
subpart
1
areas
(
i)
Option
1
 
no
classifications.
Under
this
option,
subpart
1
areas
would
not
have
different
classifications.
When
submitting
an
attainment
demonstration,
each
area
would
need
to
establish
an
attainment
date
consistent
with
section
172(
a)(
2)(
A),
i.
e.,
demonstrating
attainment
as
expeditiously
as
practicable,
but
no
later
than
5
years
after
designation
or
10
years
after
designation
if
the
severity
of
the
area's
air
pollution
and
the
availability
and
feasibility
of
pollution
control
measures
indicate
more
time
is
needed.
(
ii)
Option
2
 
create
an
overwhelming
interstate
transport
classification.
This
option
could
be
implemented
in
addition
to
option
1
(
no
classifications)
for
areas
that
qualify;
in
other
words,
we
would
not
classify
areas
that
do
not
qualify
for
this
transport
classification.
Under
this
option,
an
area
could
be
classified
as
a
``
Transport
Area''
upon
submission
of
a
SIP
that
demonstrates,
using
modeling,
that
the
nonattainment
problem
in
the
area
is
due
to
``
overwhelming
transport''
emissions.
We
are
proposing
that
for
subpart
1
areas
to
qualify
for
an
overwhelming
transport
classification,
the
area
would
have
to
meet
the
same
criteria
as
specified
for
rural
transport
areas
under
section
182(
h)
(
of
subpart
2).
This
section
restricts
treatment
as
a
rural
transport
area
to
an
area
that
does
not
include,
and
is
not
adjacent
to,
any
part
of
a
Metropolitan
Statistical
Area
or,
where
one
exists,
a
Consolidated
Metropolitan
Statistical
Area
(
as
defined
by
the
United
States
Bureau
of
the
Census).
The
area
may
be
treated
as
a
rural
transport
area
if
we
find
that
sources
of
VOC
(
and,
where
we
determine
relevant,
NOX)
emissions
within
the
area
do
not
make
a
significant
contribution
to
the
ozone
concentrations
measured
in
the
area
or
in
other
areas.
15
Since
this
classification
would
only
apply
to
subpart
1
areas,
areas
classified
under
subpart
2
would
not
qualify
for
this
classification.
The
following
are
features
of
this
option:
 
The
area
would
be
treated
similar
to
areas
classified
marginal
under
subpart
2
for
purposes
of
emission
control
requirements.
 
Less
restrictive
NSR
and
conformity
requirements
could
be
proposed
for
the
area.
If
we
include
the
transport
classification
option
in
the
final
implementation
rule,
we
would
consider
proposing
a
separate
rulemaking
on
the
details
of
NSR
and
conformity
requirements.
 
The
area
would
receive
an
attainment
date
that
is
consistent
with
section
172(
a)(
2)(
A),
but
that
takes
into
consideration
the
following:
 
The
attainment
date
of
upwind
nonattainment
areas
that
contribute
to
the
downwind
area's
problem;
and
 
The
implementation
schedule
for
upwind
area
controls,
regardless
of
their
geographic
scope
(
e.
g.,
national,
regional,
statewide,
local).
This
option
would
partially
address
Tribal
concerns
about
designations
where
a
Tribal
area
designated
nonattainment
does
not
contribute
significantly
to
its
own
problem.
This
is
one
of
the
key
issues
for
the
Tribes
who
seek
to
have
economic
growth
from
new
sources
within
their
jurisdiction
but
that
have
difficulty
obtaining
emission
reduction
offsets
from
sources
located
either
inside
or
outside
Tribal
areas.
Interstate,
intrastate,
and
international
transport
are
also
discussed
elsewhere
in
this
proposed
rulemaking.

5.
Rationale
for
Regulating
All
``
Gap''
Areas
Under
Subpart
1
Only
This
section
is
aimed
solely
at
providing
a
rationale
for
why
all
gap
areas
should
be
placed
under
the
subpart
1
regulatory
framework
rather
than
the
subpart
2
regulatory
framework.
Issues
regarding
what
specific
requirements
should
apply
to
subpart
1
areas
are
addressed
in
later
sections
of
this
preamble.
In
developing
classification
option
2,
we
explored
a
number
of
options
regarding
how
to
interpret
the
relationship
of
subpart
1
and
subpart
2
for
areas
with
1­
hour
design
values
less
than
0.121.
These
areas
are
referred
to
below
as
``
gap''
areas
because
their
1­
hour
design
value
falls
below
the
lowest
value
in
the
subpart
2
classification
table
and
thus
Congress
did
not
dictate
whether
subpart
2
or
subpart
1
applies.
The
options
we
explored
ranged
from
placing
all
of
these
areas
into
the
subpart
2
classification
scheme
to
placing
none
of
these
areas
into
the
subpart
2
classification
scheme.
We
are
proposing
the
latter
approach
 
that
all
areas
that
fall
into
the
gap
should
be
subject
only
to
the
planning
obligations
of
subpart
1.
When
faced
with
a
similar
issue
following
enactment
of
the
CAA
Amendments
of
1990,
we
determined
that
areas
that
Congress
did
not
mandate
fall
into
the
classification
scheme
of
subpart
2
should
be
subject
to
only
the
planning
obligations
of
subpart
1.16
For
classification
option
2,
we
believe
it
is
appropriate
to
continue
that
interpretation
of
the
CAA
for
8­
hour
ozone
areas,
despite
the
fact
that
a
significant
number
of
areas
designated
nonattainment
for
the
8­
hour
NAAQS
will
fall
into
this
group.
Congress
enacted
subpart
2
with
the
understanding
that
all
areas
(
except
marginal
areas,
for
which
no
new
controls
were
required)
would
have
to
employ
additional
local
controls
to
meet
the
1­
hour
ozone
standard
in
a
timely
fashion.
Since
then,
many
control
measures
have
been
implemented,
our
understanding
of
the
importance
of
interstate
pollution
transport
has
improved,
and
we
have
promulgated
interstate
NOX
transport
rules.
Regional
modeling
by
EPA
indicates
that
the
majority
of
potential
8­
hour
nonattainment
areas
that
fall
into
the
gap
will
attain
the
8­
hour
standard
by
2007
based
on
reductions
from
the
NOX
SIP
Call,
the
Federal
Motor
Vehicle
Emissions
Control
Program,
and
other
existing
Federal
and
State
control
measures,
without
further
local
controls.
Of
the
76
hypothetical
areas
that
would
fall
into
the
gap
(
and
would
thus
be
covered
under
subpart
1
under
classification
option
2),
27
would
have
been
classified
as
moderate
if
classified
under
option
1
based
on
their
8­
hour
design
values.
Eighteen
of
these
27
areas
are
projected
to
attain
by
2007
through
existing
regional
or
national
measures.
If
these
areas
were
to
be
classified
as
moderate
(
under
classification
option
1),
these
areas
would
nonetheless
be
required
to
implement
statutorily
specified
controls
for
moderate
areas.
Using
our
discretion
to
regulate
gap
areas
under
subpart
1
is
one
way
(
the
proposed
incentive
feature,
discussed
below
in
this
section
on
classifications,
is
another
way)
to
avoid
requiring
unnecessary
new
local
controls
in
areas
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105
/
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2,
2003
/
Proposed
Rules
already
projected
to
meet
the
standard
in
the
near
term.
The
other
49
gap
areas
could
be
regulated
either
under
subpart
1
(
under
option
2)
or
as
marginal
areas
if
classified
by
8­
hour
design
value
under
subpart
2
(
under
option
1).
These
areas
already
are
meeting
the
1­
hour
standard
and
are
close
to
meeting
the
8­
hour
standard.
Because
control
requirements
for
marginal
areas
are
similar
to
those
for
subpart
1
areas,
and
because
most
of
these
areas
are
projected
to
attain
within
3
years,
the
difference
in
regulatory
category
may
make
no
practical
difference
for
many
of
these
areas.
A
potential
rationale
for
placing
these
areas
under
subpart
1
is
to
provide
States
and
EPA
with
greater
discretion
to
handle
implementation
difficulties
that
might
arise
in
some
of
these
areas.
For
example,
a
gap
area
might
fail
to
attain
within
the
maximum
attainment
date
for
marginal
areas
(
3
years
after
designation)
because
of
pollution
transport
from
an
upwind
nonattainment
area
with
a
later
attainment
deadline.
In
that
event,
subpart
2
calls
for
the
area
to
be
reclassified
as
moderate
and
for
the
area
to
implement
additional
local
controls
specified
for
moderate
areas.
For
areas
under
subpart
1,
however,
we
could
provide
additional
time
for
the
area
to
attain
while
the
upwind
sources
implemented
required
controls
if
this
were
determined
to
be
a
more
effective
or
more
appropriate
solution.
Although
regional
modeling
projections
indicate
that
the
NOX
SIP
Call
will
bring
most
gap
areas
into
attainment
by
2007,
some
States
have
voiced
concern
to
us
that
interstate
or
intrastate
pollution
transport
may
affect
future
8­
hour
areas
with
near­
term
attainment
deadlines.
Subpart
1
would
provide
States
and
EPA
with
more
flexibility
on
the
remedy
in
any
such
cases.
Although
we
believe
that
there
are
reasons
to
place
gap
areas
in
subpart
1,
and
have
the
legal
authority
to
do
so,
we
are
not
suggesting
that
subpart
2
is
unreasonable
for
any
area
that
would
be
subject
to
subpart
2
under
either
classification
option.
Also,
our
analysis
here
should
not
be
taken
as
inconsistent
with
its
proposal
under
classification
option
1,
whereby
all
8­
hour
ozone
nonattainment
areas
would
be
subject
to
the
subpart
2
planning
obligations.
That
simpler
option,
in
conjunction
with
the
incentive
feature
for
classifications
(
if
ultimately
adopted),
described
below
in
this
section
on
classification,
could
provide
similar
flexibility
on
control
measures
for
most
(
though
not
quite
all)
areas.
In
addition,
we
are
proposing
ways
in
which
to
build
some
flexibility
into
some
of
the
mandated
VOC
control
obligations
in
subpart
2,
in
areas
where
it
would
make
sense
to
provide
such
flexibility.
A
final
observation
is
that
Congress
did
recognize
some
benefit
in
prescribing
measures
for
areas
because
of
past
failure
to
attain
under
less
prescriptive
provisions
of
the
CAA.
Placing
all
gap
areas
in
subpart
1
would
result
in
over
half
of
the
hypothetical
nonattainment
areas
being
covered
by
subpart
1.
To
be
fair,
this
option
might
appear
to
result
in
some
areas
being
placed
in
subpart
1
even
though
they
have
8­
hour
ozone
design
values
as
high
or
higher
than
some
areas
that
fall
under
Table
1
in
section
181
and
thus
are
covered
under
subpart
2.
As
explained
above,
we
believe
the
most
effective
way
to
deal
with
that
issue
is
not
to
exercise
our
discretion
and
make
those
areas
subject
to
subpart
2.
Rather,
we
can
use
our
discretion
under
subpart
1
to
determine
how
to
define
the
controls
required
under
subpart
1
for
such
areas
in
order
to
assure
the
most
equitable,
yet
effective,
means
for
these
areas
to
attain
the
8­
hour
ozone
NAAQS.
For
example,
in
the
section
of
this
proposed
rulemaking
addressing
RFP
under
subpart
1,
we
explore
an
option
of
defining
RFP
in
the
same
manner
as
it
is
defined
under
subpart
2.
EPA
is
open
to
suggestions
as
to
how
to
make
the
subpart
1
planning
process
that
would
apply
to
these
areas
effective
and
also
equitable
in
light
of
the
subpart
2
planning
obligations
to
which
areas
with
a
similar
8­
hour
ozone
problem
may
be
subject.

6.
Proposed
Incentive
Feature
In
addition
to
the
two
basic
classification
options
being
proposed
above,
we
are
also
proposing
an
early
attainment
incentive
feature
that
could
be
applicable
to
either
of
the
options
proposed
above.
Under
this
feature,
for
areas
classified
under
subpart
2,
we
would
classify
an
area
at
a
lower
classification
than
it
would
receive
based
on
its
design
value,
if
a
modeled
demonstration
indicates
the
area
will
attain
by
an
attainment
date
that
is
consistent
with
the
lower
classification.
For
instance,
if
a
subpart
2
area
has
an
8­
hour
ozone
design
value
of
0.094
ppm,
it
would
ordinarily
be
classified
as
moderate,
with
an
attainment
date
6
years
after
the
area's
designation
as
nonattainment
for
the
8­
hour
standard.
If
modeling
acceptable
to
EPA
demonstrates
that
this
area
will
attain
within
3
years
after
designation,
the
area
would
be
eligible
for
classification
as
a
marginal
area,
since
marginal
areas
would
have
a
maximum
attainment
date
of
3
years
after
their
nonattainment
designation
date.
(
See
our
proposal
on
attainment
dates
elsewhere
in
this
proposed
rulemaking.)
The
lower
classification
would
provide
additional
flexibility
to
the
area
in
that
it
would
avoid
the
mandatory
control
requirements
of
the
higher
classification.
Appendix
A
of
this
proposal
provides
a
comparison
of
requirements
under
subparts
1
and
2.
In
granting
a
lower
classification
to
an
8­
hour
ozone
nonattainment
area
based
on
this
option,
we
propose
to
take
into
account
the
extent
to
which
the
area
significantly
contributes
to
downwind
nonattainment
or
interferes
with
maintenance
under
section
110(
a)(
2)(
D)
of
the
CAA.
We
solicit
comment
on
possible
mechanisms
for
assessing
this
contribution
for
purposes
of
granting
the
lower
classification,
and
possible
tests
for
whether
to
grant
or
deny
the
lower
classification.
In
addition
to
soliciting
comment
on
this
proposed
incentive
feature
itself,
we
are
soliciting
comment
on
whether
such
modeled
demonstration
would
have
to
be
made
prior
to
the
initial
classification
of
areas,
or
whether
it
could
be
submitted
after
we
have
already
classified
the
area
initially
at
the
higher
classification,
in
which
case
we
would
have
to
revise
the
classification
downward
at
a
subsequent
time.
We
also
solicit
comment
on
whether
EPA,
prior
to
initial
classifications,
should
use
EPA
regional­
scale
modeling
(
rather
than
urban­
scale
modeling)
to
make
determinations
of
which
areas
would
receive
a
lower
classification.
Under
this
suboption,
an
area
would
qualify
for
the
lower
classification
if
EPA's
regional
modeling
indicated
that,
based
on
emissions
reductions
from
existing
national
and
regional
programs,
the
area
would
attain
the
8­
hour
standard
by
the
attainment
deadline
for
the
next
lower
classification.
In
requesting
comment
on
this
suboption,
EPA
notes
that
regional­
scale
modeling
alone
is
not
considered
sufficient
for
an
approvable
attainment
demonstration.
We
request
comment
on
whether
regional­
scale
modeling
would
nonetheless
be
adequate
for
purposes
of
lowering
an
area's
classification.
(
Under
this
approach,
if
regional
modeling
did
not
provide
grounds
for
the
lower
classification,
States
would
need
to
perform
local
attainment
demonstrations
to
take
advantage
of
the
incentive
feature.)
It
should
be
noted
that
an
option
was
presented
and
discussed
at
the
public
meetings
similar
to
this
incentive
feature
in
conjunction
with
the
option
that
would
have
classified
all
areas
based
on
their
8­
hour
design
values
but
also
relied
on
modeled
results
to
adjust
the
classification.
The
option
received
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/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
17
Additional
Options
Considered
for
``
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard.''
U.
S.
Environmental
Protection
Agency,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
NC.
March
2003.
18
Background
Information
Document,
Hypothetical
Nonattainment
Areas
for
Purposes
of
Understanding
the
EPA
Proposed
Rule
for
Implementing
the
8­
hour
Ozone
National
Ambient
Air
Quality
Standard.
Illustrative
Analysis
Based
on
1998
 
2000
Data.
U.
S.
Environmental
Protection
Agency,
Office
of
Air
and
Radiation,
Office
of
Air
Quality
Planning
and
Standards,
Draft,
April
2003.
Available
at:
http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
o3imp8hr/.
criticism
from
a
wide
variety
of
commenters,
who
argued
that
modeling
could
be
applied
inappropriately
in
classifying
areas.
We
nonetheless
believe
it
is
appropriate
to
propose
this
feature
to
alleviate
some
of
the
other
concerns
that
many
commenters
raised
about
the
mandatory
measures
required
under
the
higher
classifications
of
subpart
2.
Furthermore,
we
believe
this
option
is
justified
by
the
intent
of
the
CAA,
in
which
an
area's
classification
is
generally
linked
to
the
amount
of
time
the
area
is
anticipated
to
need
to
attain
the
NAAQS.
We
recognize
that
the
CAA
was
not
originally
structured
to
allow
lower
classifications
based
on
an
area
being
projected
to
attain
earlier.
However,
under
the
Supreme
Court
ruling
that
required
that
we
interpret
the
law
regarding
subpart
2'
s
application
to
the
8­
hour
ozone
standard,
we
believe
it
may
reasonably
give
areas
that
are
projected
to
attain
the
8­
hour
ozone
standard
by
an
earlier
date
a
classification
that
is
consistent
with
that
attainment
date.

7.
Other
Options
EPA
Considered
We
considered
many
other
options
for
classification
and
for
the
translation
of
the
classification
table
in
the
CAA.
These
options
are
discussed
in
a
separate
document
available
in
the
docket.
17
These
other
possible
ways
of
translating
the
classification
table,
in
our
opinion,
do
not
have
the
same
degree
of
consonance
with
the
intent
of
Congress
when
it
enacted
subpart
2
as
those
we
are
proposing.
We
are
therefore
not
proposing
them.

8.
Implications
for
the
Options
To
evaluate
the
potential
impact
of
the
various
classification
options,
we
developed
a
set
of
122
hypothetical
nonattainment
areas
based
on
the
counties
that
have
monitors
measuring
violations
of
the
8­
hour
ozone
standard
for
the
3­
year
period
of
1998
 
2000.
Our
inclusion
and
grouping
of
counties
into
hypothetical
nonattainment
areas
was
done
only
for
illustrative
purposes
and
does
not
have
any
implications
for
the
location,
number
or
boundaries
of
nonattainment
areas
that
may
ultimately
be
evaluated
and
recommended
by
States
and
Tribes
or
designated
by
EPA.
The
final
designations
would
be
affected
by
factors
contained
in
EPA's
guidance
on
boundaries
of
nonattainment
areas
(
which
is,
as
noted
earlier,
not
a
topic
of
discussion
or
comment
for
this
notice
of
proposed
rulemaking).
As
noted
earlier,
Table
3
illustrates
a
possible
classification
grouping
of
nonattainment
areas
based
on
counties
with
monitors
based
on
the
options
proposed
above.
The
list
of
these
areas
and
the
information
we
used
in
assessing
the
consequences
of
our
proposal
are
available
in
the
docket.
18
TABLE
3.
 
PROPOSED
CLASSIFICATION
OPTIONS
COUNTS
OF
HYPOTHETICAL
NONATTAINMENT
AREAS
Subpart
2
Subpart
1
Extreme
Severe­
17
Severe­
15
Serious
Moderate
Marginal
Total
Option
1
(
8­
hour
design
value)
........................
0
1
1
6
53
61
0
122
Option
1
(
8­
hour
design
value)
 
with
incentive
feature*
.........................................................
0
1
1
6
30
84
0
122
Option
2
(
2­
step
approach
 
areas
<
0.121
ppm
=
subpart
1)
..........................................
0
1
1
6
26
12
76
122
Option
2
(
2­
step
approach
 
areas
<
0.121
ppm
=
subpart
1)
 
with
incentive
feature
1
...
0
1
1
6
21
17
76
122
1
Areas
that
would
be
moderate
using
their
8­
hour
design
value
but
that
are
projected
to
attain
by
2007
would
be
classified
marginal.

9.
Other
Considerations
In
addition
to
the
overall
classification
options
being
proposed,
it
should
be
noted
that
subpart
2
also
provides
that
classifications
may
be
adjusted
upward
or
downward
for
an
area
if
the
area's
design
value
is
within
5
percent
of
another
classification.
This
provision
(
section
181(
a)(
4))
reads:

If
an
area
classified
under
[
Table
1]
would
have
been
classified
in
another
category
if
the
design
value
in
the
area
were
5
percent
greater
or
5
percent
less
than
the
level
on
which
such
classification
was
based,
the
Administrator
may,
in
the
Administrator's
discretion,
within
90
days
after
the
initial
classification,
*
*
*
adjust
the
classification
to
place
the
area
in
such
other
category.
In
making
such
adjustment,
the
Administrator
may
consider
the
number
of
exceedances
of
the
national
primary
ambient
air
quality
standard
for
ozone
in
the
area,
the
level
of
pollution
transport
between
the
area
and
other
affected
areas,
including
both
intrastate
and
interstate
transport,
and
the
mix
of
sources
and
air
pollutants
in
the
area.

Thus,
for
example,
if
a
downwind
area
is
subjected
to
a
subpart
2
classification
and
there
is
evidence
that
the
area
will
not
benefit
significantly
from
local
controls
mandated
by
subpart
2
for
the
area's
classification
and
can
attain
within
the
time
period
specified
for
the
next
lower
classification,
the
area
may
obtain
some
relief
based
on
the
5
percent
rule
in
the
CAA,
if
applicable.
This
provision
does
not
establish
a
mechanism
for
removing
areas
from
the
subpart
2
classification
scheme.
B.
How
Will
EPA
Treat
Attainment
Dates
and
Other
Dates
Including
SIP
Submittal
Dates
for
the
8­
Hour
Ozone
Standard?

1.
Background
Under
subpart
2
of
the
CAA,
maximum
attainment
dates
and
most
SIP
submittal
dates
are
fixed
as
a
function
of
a
nonattainment
area's
classification
under
Table
1.
The
CAA
provides
that
an
area's
attainment
date
must
be
``
as
expeditious
as
practicable
but
no
later
than''
the
date
prescribed
in
Table
1
for
that
area's
classification.
The
statutory
dates
are
specified
as
a
number
of
years
(
e.
g.,
6
years)
from
the
date
of
enactment
of
the
CAA
Amendments,
which
was
November
15,
1990.
Because
these
dates
are
a
set
number
of
years
after
enactment
of
the
CAA
Amendments,
one
might
initially
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/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
19
Section
181(
b)
provides
that
``
any
absolute,
fixed
date
applicable
in
connection
with
any
such
requirement
is
extended
by
operation
of
law
by
a
period
equal
to
the
length
of
time
between
the
date
of
the
enactment
of
the
CAAA
of
1990
and
the
date
the
area
is
classified
under
this
paragraph.''
Under
section
181(
b),
the
date
of
classification
is
the
same
as
the
date
of
redesignation
to
nonattainment.
20
See
40
CFR
50.9(
a);
the
1­
hour
standard
for
ozone
``*
*
*
is
attained
when
the
expected
number
of
days
per
calendar
year
with
maximum
hourly
average
concentrations
above
0.12
parts
per
million
(
235
µ
g/
m3)
is
equal
to
or
less
than
1
in
order
for
the
area
to
be
considered
attaining
the
standard,
as
determined
by
Appendix
H
to
this
part.''
Thus,
the
1­
hour
standard
is
an
``
exceedance''
based
standard,
since
the
number
of
exceedances
of
the
standard
(
yearly
average
over
3
years
under
appendix
H)
must
be
equal
to
or
less
than
1.
In
contrast,
see
40
CFR
50.10(
b);
the
8­
hour
standard
for
ozone
is
``*
*
*
met
at
an
ambient
air
quality
monitoring
site
when
the
average
of
the
annual
fourth­
highest
daily
maximum
8­
hour
average
ozone
concentration
is
less
than
or
equal
to
0.08
ppm,
as
determined
in
accordance
with
Appendix
I
to
this
part.''
Thus,
this
is
a
concentration­
based
standard,
because
meeting
the
standard
is
determined
by
calculating
the
concentration,
not
the
number
of
exceedances
as
under
the
1­
hour
standard.
21
Memorandum
of
February
3,
1994,
from
D.
Kent
Berry
re:
``
Procedures
for
Processing
Bump
Ups
and
Extension
Requests
for
Marginal
Ozone
Nonattainment
Areas.''
U.
S.
Environmental
Protection
Agency,
Research
Triangle
Park,
North
Carolina.
conclude
that
the
subpart
2
classifications,
with
their
associated
attainment
dates,
should
not
apply
for
the
8­
hour
standard.
The
Supreme
Court,
however,
rejected
a
conclusion
that
the
subpart
2
classifications
do
not
apply,
although
it
noted
that
the
attainment
dates
``
seem[
]
to
make
no
sense''
for
areas
classified
under
a
new
standard
after
November
15,
1990.
121
S.
Ct.
at
918.
We
believe
that
applying
the
attainment
dates
as
expressly
provided
under
Table
1
would
produce
absurd
results.
For
example,
a
strict
application
of
Table
1
would
result
in
areas
classified
as
marginal
for
the
8­
hour
NAAQS
as
having
an
attainment
date
of
November
15,
1993
and
areas
classified
as
moderate
as
having
an
attainment
date
of
November
15,
1996.
Since
these
dates
have
long
passed,
it
makes
no
sense
to
establish
them
as
the
applicable
dates.
Many
provisions
of
the
CAA,
however,
indicate
what
Congress'
intent
was
in
setting
attainment
dates.
For
example,
section
181(
b),
provides
that
for
areas
designated
attainment
or
unclassifiable
for
ozone
immediately
following
enactment
of
the
1990
CAA
Amendments
and
subsequently
redesignated
to
nonattainment,
the
attainment
date
would
run
from
the
date
the
area
is
classified
under
subpart
2.19
Thus,
if
an
area
designated
as
attainment
for
the
1­
hour
ozone
standard
in
1990
were
redesignated
to
nonattainment
for
the
1­
hour
ozone
standard
in
January
2002
and
classified
as
moderate,
the
area's
attainment
date
would
be
6
years
following
January
2002,
i.
e.,
January
2008.
Similarly,
section
172(
a)(
2)
provides
for
attainment
dates
to
be
calculated
from
the
time
the
area
is
designated
nonattainment.
We
believe
that
Congress
would
have
intended
for
areas
designated
nonattainment
and
classified
under
subpart
2
for
the
8­
hour
standard
to
have
attainment
periods
consistent
with
those
in
Table
1
(
e.
g.,
3
years
for
a
marginal
area,
6
years
for
a
moderate
area,
etc.),
but
running
from
the
date
the
area
is
designated
and
classified
for
purposes
of
the
8­
hour
NAAQS.
We
are
proposing
for
areas
classified
under
subpart
2,
the
period
for
attainment
(
running
from
date
of
designation/
classification)
would
be:
 
Marginal
 
3
years.
 
Moderate
 
6
years.
 
Serious
 
9
years.
 
Severe
 
15
or
17
years.
 
Extreme
 
20
years
(
no
areas
currently
expected
to
be
in
this
category
for
the
8­
hour
ozone
standard).
Note
that
the
CAA
requires
each
area
to
demonstrate
attainment
as
expeditiously
as
practicable,
regardless
of
maximum
statutory
periods.
Most
SIP
submittal
dates
in
subpart
2
run
for
a
fixed
period
from
the
date
of
enactment
of
the
1990
CAA,
which
was
also
the
date
of
designation
and
classification
by
operation
of
law
for
most
subpart
2
areas.
Under
section
181(
b)(
1),
the
statute
provides
that
any
fixed
dates
will
be
extended
by
operation
of
law
to
a
period
equal
to
the
length
of
time
between
that
date
of
enactment
and
the
date
an
area
is
subsequently
designated
and
classified.
Thus,
unless
EPA
has
reason
to
create
a
different
time
period,
either
as
explained
specifically
below
or
in
any
subsequent
specific
rulemaking
applicable
to
a
particular
subpart
2
requirement,
subpart
2
SIP
submittals
will
be
due
as
a
general
matter
by
the
same
period
of
time
after
designation
and
classification
under
the
8­
hour
standard
as
provided
in
subpart
2
for
areas
designated
and
classified
at
the
time
of
enactment
of
the
1990
CAA.
For
areas
classified
under
subpart
1,
attainment
dates
would
be
set
under
section
172(
a)(
2)(
A),
which
provides
that
the
SIP
must
demonstrate
attainment
as
expeditiously
as
practicable,
but
no
later
than
5
years
after
designation
or
10
years
after
designation
if
the
severity
of
the
area's
air
pollution
and
the
availability
and
feasibility
of
pollution
control
measures
indicate
more
time
is
needed.
Note
that
in
determining
whether
an
area
actually
attains
the
NAAQS
at
the
time
of
the
attainment
date,
EPA
would
use
the
ambient
air
quality
data
for
the
three
ozone
seasons
prior
to
the
attainment
date.
As
an
example,
if
the
effective
date
of
the
nonattainment
designations
is
May
15,
2004,
the
maximum
attainment
date
for
an
area
classified
marginal
would
be
May
15,
2007.
In
this
example,
EPA
would
consider
the
8­
hour
ozone
data
for
the
three
previous
ozone
seasons
 
2004,
2005
and
2006.

2.
How
Will
EPA
Address
the
Provision
Regarding
1­
Year
Extensions?
Both
subpart
1
and
subpart
2
provide
for
two
brief
attainment
date
extensions
for
areas
in
limited
circumstances
where
they
do
not
attain
by
their
attainment
date.
Section
172(
a)(
2)(
C)
(
under
subpart
1)
provides
for
EPA
to
extend
the
attainment
date
for
1
year
if
the
State
has
complied
with
all
requirements
and
commitments
pertaining
to
the
area
in
the
applicable
implementation
plan,
and
no
more
than
a
minimal
number
of
exceedances
of
the
relevant
NAAQS
has
occurred
in
the
area
in
the
attainment
year.
No
more
than
two
1­
year
extensions
may
be
issued
under
this
subparagraph
for
a
single
nonattainment
area.
Section
181(
a)(
5)
(
under
subpart
2)
contains
a
similar
provision,
but
instead
of
allowing
a
``
minimal''
number
of
exceedances,
it
provides
for
only
one
exceedance
of
the
standard
in
the
year
preceding
the
extension
year.
This
reflects
the
form
of
the
1­
hour
ozone
standard,
which
is
exceedance­
based.
The
8­
hour
ozone
standard,
however,
is
not
an
exceedance
form
of
standard,
but
rather
a
concentration­
based
standard.
20
We
have
issued
guidance
on
the
portion
of
these
two
provisions
relating
to
the
State's
compliance
with
all
requirements
and
commitments
pertaining
to
the
area
in
the
applicable
implementation
plan.
21
However,
for
purposes
of
section
181(
a)(
5),
we
need
to
determine
a
reasonable
interpretation
in
light
of
the
fact
that
the
statute,
as
written,
does
not
fit
the
form
of
the
8­
hour
standard.
Because
Congress
has
addressed
this
issue
elsewhere
in
the
statute,
we
believe
it
is
reasonable
to
adopt
that
formulation.
Therefore,
we
would
apply
the
same
test
under
subparts
1
and
2
for
determining
whether
to
grant
a
1­
year
extension,
i.
e.,
whether
there
was
a
minimal
number
of
exceedances.
For
both
subparts,
we
propose
to
interpret
this
to
mean
for
the
8­
hour
standard,
the
area
would
be
eligible
for
the
first
of
the
1­
year
extensions
under
the
8­
hour
standard
if,
for
the
attainment
year,
the
area's
4th
highest
daily
8­
hour
average
is
0.084
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Federal
Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
22
On
December
27,
2002
(
67
FR
79460),
EPA
proposed
to
stay
the
applicability
of
its
authority
to
revoke
the
1­
hour
standard
pending
rulemaking
to
consider
whether
to
modify
the
approach
for
transitioning
to
the
8­
hour
standard.
ppm
or
less.
An
area
that
has
received
the
first
of
the
1­
year
extensions
under
the
8­
hour
standard
would
be
eligible
for
the
second
extension
if
the
area's
4th
highest
daily
8­
hour
value,
averaged
over
both
the
original
attainment
year
and
the
first
extension
year,
is
0.084
ppm
or
less.

3.
How
Do
Attainment
Dates
Apply
to
Indian
Country?
As
discussed
elsewhere
in
this
proposed
rulemaking,
the
Tribal
Authority
Rule
(
TAR),
40
CFR
49.9
provides
that
Tribes
should
not
be
treated
in
a
manner
similar
to
States
with
regard
to
schedules,
including
the
attainment
dates.
However,
the
TAR
also
requires
EPA
to
develop
Federal
implementation
plans
(
FIPs)
where
necessary
and
appropriate.
(
40
CFR
49.11).
Because
we
believe
that
public
health
considerations
are
of
primary
concern,
the
attainment
dates
for
primary
NAAQS
should
be
met.
Therefore,
EPA,
in
consultation
with
the
Tribes,
will
work
to
ensure
that
the
standards
are
addressed
as
soon
as
possible,
considering
the
needs
of
the
Tribes,
and
ensure
that
attainment
in
other
jurisdictions
is
not
adversely
affected.

4.
How
Will
EPA
Establish
Attainment
Dates
for
Areas
Classified
as
Marginal
Under
the
``
Incentive''
Feature
Proposed
Under
the
Classification
Section
or
Areas
Covered
Under
Subpart
1
With
a
Requested
Attainment
Date
of
3
Years
or
Less
After
the
Designation
Date?
EPA
would
ordinarily
have
established
attainment
dates
for
areas
through
a
review
of
the
SIP
and
whether
attainment
is
as
expeditious
as
practicable
but
no
later
than
the
date
prescribed
in
the
CAA.
Elsewhere
in
this
proposal,
we
are
providing
that
marginal
areas
(
under
subpart
2)
and
areas
under
subpart
1
with
an
attainment
date
within
3
years
after
designation
would
not
actually
have
to
submit
an
attainment
demonstration
within
3
years
after
designation.
Therefore,
we
must
establish
another
procedure
for
establishing
the
attainment
dates
for
these
areas.
We
are
proposing
the
following
procedure.
a.
Areas
that
are
classified
marginal
based
solely
on
their
8­
hour
ozone
design
value.
For
these
areas,
we
are
proposing
that
the
CAA
attainment
date
under
Table
1
of
section
181
would
be
the
area's
attainment
date
(
namely,
3
years
after
designation).
b.
Areas
that
are
classified
marginal
based
on
the
proposed
incentive
feature
proposed
elsewhere
and
areas
covered
under
subpart
1
with
a
requested
attainment
date
of
3
years
or
less
after
the
designation
date.
These
are
areas
that
are
projected
through
modeling
to
attain
within
3
years
following
designation.
For
these
areas,
we
are
proposing
that
these
States
must
submit
a
SIP
 
within
1
year
after
designation
 
that
provides
documentation
(
viz.,
concerning
the
modeling
and
analyses
that
the
area
is
relying
on
to
support
its
claim)
that
the
area
will
attain
within
3
years
following
designation.
Such
a
SIP
submission
must
undergo
the
normal
public
hearing
and
comment
procedures
as
for
any
SIP
submission.

C.
How
Will
EPA
Implement
the
Transition
From
the
1­
Hour
to
the
8­
Hour
Standard
in
a
way
To
Ensure
Continued
Momentum
in
States'
Efforts
Toward
Cleaner
Air?

As
areas
are
designated
for
the
8­
hour
ozone
NAAQS,
we
must
address
how
those
areas
will
transition
from
current
implementation
of
the
1­
hour
standard
to
implementation
of
the
8­
hour
standard.
In
addressing
this
issue,
we
considered
a
number
of
factors,
including
the
existing
``
antibacksliding
provisions
of
the
CAA,
Congress'
intent,
as
evidenced
in
the
statute,
to
ensure
continued
progress
toward
attainment
of
the
ozone
standard,
and
the
Supreme
Court's
interpretation
of
the
CAA
and
Congressional
intent.
In
subsection
1
of
this
section,
we
provide
background
information
on
the
transition
process
we
set
forth
in
1997
(
and
subsequently
amended
through
regulation)
and
we
summarize
the
statutory
antibacksliding
provisions
and
the
Congressional
intent
in
enacting
these
provisions
and
subpart
2
of
the
CAA.
In
subsection
2,
we
identify
two
proposed
options
to
effect
the
transition
from
implementation
of
the
1­
hour
standard
to
the
8­
hour
standard
that
concern
the
revocation
of
the
1­
hour
standard
in
whole
or
revocation
of
the
1­
hour
standard
in
part.
In
subsection
3,
we
indicate
 
in
light
of
the
CAA
provisions
and
Congressional
intent
 
which
requirements
that
applied
for
purposes
of
the
1­
hour
standard
should
continue
to
apply
to
areas
after
they
are
designated
for
the
8­
hour
standard.
Next,
in
subsection
4,
we
consider
whether
there
is
a
point
at
which
the
States
should
no
longer
be
required
to
implement
those
obligations
EPA
determines
continue
to
apply
after
areas
are
designated
for
the
8­
hour
standard.
Finally,
in
subsection
5,
we
indicate
how
it
will
ensure
through
regulation
that
the
public
knows
which
``
1­
hour''
obligations
remain
in
place
and
for
which
areas.
1.
Background
a.
Background
on
EPA's
current
regulation
for
governing
the
transition.
At
the
time
we
promulgated
the
8­
hour
ozone
NAAQS
in
July
1997,
we
issued
a
rule
(
40
CFR
50.9(
b))
providing
that
the
1­
hour
standard
would
no
longer
apply
to
an
area
once
we
determined
that
the
area
had
attained
the
1­
hour
NAAQS.
(
62
FR
38856,
July
18,
1997).
This
process
became
known
as
``
revocation''
of
the
1­
hour
NAAQS.
We
interpreted
that
provision
to
mean
that
once
the
1­
hour
standard
was
revoked,
the
area's
1­
hour
ozone
designation
no
longer
applied.
Due
to
the
ongoing
litigation
concerning
the
8­
hour
ozone
NAAQS
and
our
implementation
strategy
for
that
standard,
we
subsequently
modified
40
CFR
50.9(
b)
in
part
to
provide
that
``
after
the
8­
hour
standard
has
become
fully
enforceable
under
part
D
of
title
I
of
the
CAA
and
subject
to
no
further
legal
challenge,
the
1­
hour
standards
set
forth
in
this
section
will
no
longer
apply
to
an
area
once
we
determine
that
the
area
has
air
quality
meeting
the
1­
hour
standard.''
(
65
FR
45181,
July
20,
2000).
22
Thus,
currently,
three
criteria
would
need
to
be
met
before
we
could
revoke
the
1­
hour
standard
for
an
area:
(
1)
The
8­
hour
standard
would
need
to
be
fully
enforceable,
(
2)
all
legal
challenges
to
the
8­
hour
ozone
NAAQS
would
need
to
be
resolved;
and
(
3)
we
would
need
to
determine
that
an
area
had
attained
the
1­
hour
standard.
In
this
section,
we
are
proposing
to
revise
40
CFR
50.9(
b)
to
reflect
more
appropriately
the
implementation
strategy
that
we
develop
pursuant
to
this
proposal.
At
the
time
that
we
initially
promulgated
40
CFR
50.9(
b),
we
contemplated
that
areas
would
not
be
subject
to
the
planning
obligations
of
subpart
2
for
purposes
of
implementing
the
revised
8­
hour
ozone
NAAQS.
Furthermore,
we
stated
that
``
as
a
matter
of
law,''
areas
should
continue
to
be
subject
to
the
planning
obligations
of
subpart
2
for
purposes
of
implementing
the
1­
hour
standard
until
such
time
as
they
attained
the
1­
hour
ozone
NAAQS.
Thus,
we
contemplated
that
the
1­
hour
NAAQS
 
and
the
associated
designation
and
classification
under
subpart
2
for
an
area,
including
any
mandated
control
obligations
 
would
continue
to
apply
until
the
area
attained
that
standard.
At
that
time,
the
area
would
be
subject
only
to
the
planning
obligations
of
subpart
1.
In
light
of
the
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Federal
Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
23
Specifically,
section
172(
e)
requires
EPA
to
promulgate
regulations
providing
for
controls
that
``
are
not
less
stringent
than
the
controls
applicable
to
areas
designated
nonattainment''
before
relaxation
of
the
standard.
Supreme
Court's
ruling
that
we
cannot
ignore
subpart
2
for
purposes
of
implementing
a
revised
ozone
NAAQS,
we
believe
it
is
appropriate
to
reconsider
how
to
transition
from
the
1­
hour
NAAQS
to
the
8­
hour
NAAQS
in
light
of
the
statutory
structure
of
the
CAA,
as
amended
in
1990.
Our
principal
objectives
for
the
mechanism
that
would
ensure
a
smooth
transition
to
implementation
of
the
8­
hour
standard
are
to
ensure
(
1)
that
there
will
be
no
degradation
of
air
quality,
(
2)
that
areas
continue
to
make
progress
toward
ozone
attainment,
and
(
3)
consistency
with
the
intent
of
Congress
when
it
originally
established
the
implementation
structure
for
ozone
in
subpart
2
of
the
CAA.
We
believe
the
several
alternative
approaches
proposed
below
are
more
consistent
with
the
implementation
path
we
are
proposing
in
light
of
the
Supreme
Court's
remand.
These
alternatives
would
more
effectively
continue
the
momentum
towards
cleaner
air
than
would
have
been
accomplished
under
the
current
40
CFR
50.9(
b)
structure
while
allowing
8­
hour
ozone
nonattainment
areas
to
more
readily
focus
on
their
8­
hour
ozone
standard
SIP
obligations.
b.
Background
on
the
CAA's
antibacksliding
provisions.
The
CAA
contains
a
number
of
provisions
that
indicate
that
Congress
did
not
intend
to
allow
States
to
alter
or
remove
provisions
from
implementation
plans
if
the
plan
revision
would
jeopardize
the
air
quality
protection
provided
in
the
approved
plan.
Section
110(
l)
provides
that
EPA
may
not
approve
a
SIP
revision
if
it
interferes
with
any
applicable
requirement
concerning
attainment
and
ROP
or
any
other
applicable
requirement
of
the
CAA.
Congress
created
a
tougher
test
for
areas
that
might
want
to
relax
control
requirements
that
were
in
SIPs
prior
to
the
CAA
Amendments
of
1990.
Section
193
of
the
CAA
prohibits
modification
of
a
control
requirement
in
effect
or
required
to
be
adopted
as
of
November
15,
1990
(
i.
e.,
enactment
of
the
1990
CAA
Amendments),
unless
such
a
modification
would
ensure
equivalent
or
greater
emissions
reductions.
We
also
believe
that
Congress
set
an
additional
statutory
bar
for
1­
hour
ozone
areas
that
were
designated
nonattainment
and
classified
at
the
time
of
the
1990
CAA
Amendments.
For
these
areas,
Congress
classified
the
areas
``
as
a
matter
of
law''
and
provided
that
even
upon
redesignation
to
attainment,
such
areas
could
not
remove
from
the
SIP
control
measures
specified
in
subpart
2
(``
applicable
requirements''),
but
could
shift
them
to
contingency
measures
that
would
be
implemented
to
``
promptly
correct
any
violation
of
the
standard.''
For
these
reasons,
we
believe
that
although
Congress
gave
EPA
the
power
to
revise
the
existing
ozone
standard,
Congress
did
not
open
the
door
for
States
to
remove
SIP­
approved
measures
or
to
avoid
control
obligations
with
which
they
have
not
yet
complied.
One
other
provision,
though
not
directly
applicable,
sheds
light
on
Congress'
intent.
In
1990,
Congress
enacted
section
172(
e),
which
applies
when
EPA
revises
a
NAAQS
and
makes
it
less
stringent.
This
provision
specifies
that
in
those
circumstances,
States
cannot
relax
control
obligations
that
apply
in
nonattainment
area
SIPs
or
avoid
adopting
those
that
they
have
not
yet
adopted.
23
Because
Congress
specifically
mandated
that
such
control
measures
need
to
be
adopted
or
retained
even
when
EPA
relaxes
a
standard,
we
believe
that
Congress
did
not
intend
to
permit
States
to
remove
control
measures
when
EPA
revises
a
standard
to
make
it
more
stringent,
as
in
the
case
of
the
8­
hour
standard.
We
also
note
that
in
finding
EPA's
subpart
1­
only
implementation
approach
unlawful,
the
Supreme
Court
voiced
concern
that
EPA
not
render
subpart
2
``
abruptly
obsolete''
because
``
Subpart
2
obviously
was
enacted
to
govern
implementation
for
some
time.
*
*
*
A
plan
reaching
so
far
into
the
future
was
not
enacted
to
be
abandoned
the
next
time
EPA
reviewed
the
ozone
standard
 
which
Congress
knew
could
happen
at
any
time,
since
technical
staff
papers
already
had
been
completed
in
1989.''
In
response
to
the
decision,
we
are
now
proposing
(
as
noted
above
in
the
discussion
on
classifications)
to
use
subpart
2
in
implementing
the
8­
hour
standard.
However,
the
classification
systems
we
are
proposing
today
would
result
in
the
majority
of
ozone
nonattainment
areas
that
are
currently
classified
for
the
1­
hour
standard
being
placed
in
a
lower
classification
for
the
8­
hour
standard.
Our
proposed
antibacksliding
approaches,
discussed
below,
would
not
render
obsolete
the
congressionally­
specified
control
measure
requirements
of
subpart
2
for
1­
hour
ozone
nonattainment
areas
at
a
time
when
those
areas
have
not
yet
met
either
of
the
health­
based
ozone
standards.
2.
When
Will
EPA
Revoke
the
1­
Hour
Standard?

We
are
proposing
to
revoke
the
1­
hour
standard
either
in
part
or
in
whole
1
year
following
designations
for
the
8­
hour
NAAQS.
As
discussed
below,
we
are
proposing
two
different
legal
mechanisms
for
achieving
the
revocation.
Under
either
approach,
however,
the
same
stipulations
continue
to
apply
to
areas
currently
or
formerly
designated
nonattainment
for
the
1­
hour
standard.
The
deciding
factor
supporting
the
schedule
for
the
revocation
in
our
proposal
is
to
ensure
areas
do
not
have
to
perform
conformity
analyses
for
both
the
1­
hour
and
8­
hour
standards
at
the
same
time.
As
background,
areas
designated
nonattainment
for
the
first
time
for
a
new
standard
(
e.
g.,
the
8­
hour
ozone
standard)
have
a
1­
year
grace
period
before
conformity
applies
for
that
standard
(
i.
e.,
a
1­
year
grace
period
before
conformity
applies
for
the
8­
hour
ozone
standard).
This
1­
year
grace
period
before
conformity
is
required
for
the
8­
hour
standard
applies
to
all
areas
designated
nonattainment
for
the
8­
hour
standard,
regardless
of
their
1­
hour
NAAQS
designation
status.
Thus,
under
either
of
the
mechanisms
described
below,
we
are
proposing
that
conformity
for
the
1­
hour
standard
no
longer
apply
1
year
following
the
effective
date
of
the
8­
hour
designation
(
i.
e.,
when
the
standard
is
revoked
in
whole
or
in
part).
However,
conformity
obligations
for
the
1­
hour
ozone
standard
would
remain
applicable
during
the
grace
period
and
would
not
be
affected
by
the
designation
of
areas
for
the
8­
hour
standard.
Our
intentions
regarding
conformity
 
as
well
as
a
more
complete
discussion
of
transportation
conformity
appear
elsewhere
in
this
proposal.
(
i)
Option
1:
Revocation
in
whole
of
the
1­
hour
standard.
Under
this
option,
which
is
our
preferred
option,
EPA
would
revoke
the
1­
hour
standard
and
the
associated
designations
and
classifications
1
year
following
the
effective
date
of
the
designations
for
the
8­
hour
NAAQS.
The
complete
revocation
of
the
1­
hour
standard
would
occur
in
late
spring
of
2005
on
the
effective
date
of
the
8­
hour
NAAQS
designations,
which
will
be
issued
by
April
15,
2004.
In
order
to
address
the
anti­
backsliding
issues
discussed
in
section
3,
below,
EPA
would
promulgate
regulations
specifying
those
requirements
that
would
continue
to
apply
after
the
revocation
of
the
1­
hour
standard.
The
regulations
would
also
specify
the
geographic
areas
in
which
those
obligations
continue
to
apply,
since
areas
designated
nonattainment
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24
A
number
of
commenters
in
the
pre­
proposal
phase
recommended
an
approach
premised
on
retention
of
the
standard.
See,
e.
g.,
Letter
of
December
5,
2002
from
Michael
P.
Kenny,
Executive
Director,
California
Air
Resources
Board,
to
Jeffrey
R.
Holmstead,
EPA
Assistant
Administrator
for
Air
and
Radiation.
Available
at:
http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
o3imp8hr/.
25
Additional
Options
Considered
for
``
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard.''
U.
S.
Environmental
Protection
Agency,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
NC.
March
2003.
for
the
8­
hour
standard
may
include
counties
that
were
not
designated
nonattainment
for
the
1­
hour
standard.
The
anti­
backsliding
regulations
would
apply
only
to
the
portion
of
the
8­
hour
nonattainment
area
that
was
designated
nonattainment
for
the
1­
hour
standard.
(
ii)
Option
2:
Partial
revocation
of
1­
hour
standard.
Under
this
mechanism,
EPA
would
retain
the
1­
hour
standard
and
its
associated
designations
and
classifications
for
limited
purposes
(
viz.,
those
discussed
and
proposed
below
in
section
3)
until
the
area
meets
the
1­
hour
standard.
For
many
areas,
this
is
likely
to
extend
well
beyond
May
2005,
the
date
of
likely
revocation
under
option
1.24
For
all
remaining
purposes,
EPA
would
revoke
the
1­
hour
standard
and
the
associated
designations
and
classifications
1
year
after
the
effective
date
of
designations
for
the
8­
hour
standard.
As
noted
above,
we
believe
that
Congress
initially
intended
the
State's
obligations
under
subpart
2
to
continue
to
apply
``
as
a
matter
of
law,''
and
the
1­
hour
designations
and
classifications
 
established
for
the
circumstances
present
when
the
requirements
were
enacted
 
are
the
mechanism
Congress
identified
for
triggering
the
applicability
of
these
requirements.
Under
this
theory,
Congress
would
have
intended
the
standard
to
remain
in
place
for
purposes
of
control
measures
and
NSR
requirements,
as
discussed
above.
While
the
partial
retention
of
the
standard
itself
and
the
associated
designations
and
classifications
would
be
the
mechanism
used
to
retain
the
specified
obligations,
we
would
need
to
promulgate
regulations
similar
to
those
described
in
option
1
to
ensure
that
it
is
clear
for
which
purposes
the
standard
is
being
retained.
(
iii)
Request
for
comment.
Both
of
these
options
would
achieve
the
same
result
 
ensuring
the
continued
applicability
of
certain
control
requirements
in
subpart
2
and
ensuring
continued
improvement
in
air
quality,
while
shifting
the
focus
from
modeling
and
other
planning
requirements
for
the
1­
hour
standard
to
analyses
for
the
8­
hour
standard.
We
solicit
comment
on
which
mechanism
is
preferable
for
accomplishing
the
overriding
objective
of
preventing
backsliding
from
statutory
and
SIP
requirements
while
achieving
a
smooth
transition
to
implementation
of
the
new
standard.
In
addition,
EPA
also
solicits
comment
on
whether
to
retain
the
limit
in
current
40
CFR
50.9(
b)
that
the
1­
hour
standard
will
not
be
revoked
for
any
area
until
the
8­
hour
standard
is
no
longer
subject
to
legal
challenge.
(
iv)
Other
possible
approaches
for
the
transition
from
the
1­
hour
to
the
8­
hour
standard.
EPA
considered
other
approaches
for
the
timing
of
the
revocation
of
the
1­
hour
ozone
standard;
these
are
discussed
in
a
separate
document
available
in
the
docket.
25
3.
What
Obligations
Should
Continue
To
Apply
as
an
Area
Begins
To
Implement
the
8­
Hour
Ozone
NAAQS
and
What
Obligations
Should
no
Longer
Apply?
In
this
section,
we
consider
what
obligations
from
subpart
2
relative
to
the
1­
hour
ozone
standard
should
continue
to
apply
to
areas
after
they
have
been
designated
for
the
8­
hour
standard.
We
are
proposing
that
the
continuity
of
particular
obligations
should
vary
depending
on
the
attainment
status
of
an
area
for
both
the
1­
hour
and
8­
hour
standard.
We
first
discuss
those
obligations
that
we
propose
should
continue
to
apply
to
an
area
that
is
designated
nonattainment
for
the
8­
hour
NAAQS,
and
that
was
designated
nonattainment
for
the
1­
hour
ozone
standard
on
or
after
November
15,
1990.
Second,
we
discuss
those
obligations
that
should
continue
to
apply
to
an
area
that
is
designated
attainment
for
the
8­
hour
NAAQS,
and
that
was
designated
nonattainment
for
the
1­
hour
standard
on
or
after
November
15,
1990.
(
This
section
addresses
only
the
continued
application
of
requirements
that
applied
by
virtue
of
an
area
having
been
designated
nonattainment
for
the
1­
hour
standard
at
some
point
following
enactment
of
the
CAA
Amendments
of
1990.
It
does
not
address
areas
that
have
been
designated
attainment
for
the
1­
hour
standard
at
all
times
since
November
15,
1990,
because
they
would
not
have
any
continuing
obligations
under
subpart
2
for
purposes
of
the
1­
hour
standard.)
Finally,
we
address
States'
continued
obligations
with
respect
to
the
NOX
SIP
Call.
We
address
this
issue
separately
since
this
obligation
applies
statewide
and
without
respect
to
the
designation
status
of
areas
within
the
State.
In
general,
the
types
of
obligations
that
apply
to
areas
by
virtue
of
their
1­
hour
classification
can
be
broken
into
three
groups:
control
obligations;
measures
to
address
growth
in
new
sources;
and
planning
obligations.
Control
measures
include
specific
emission
reduction
obligations
such
as
NOX
RACT,
I/
M,
and
fuel
programs,
which
are
mandated
in
subpart
2.
Measures
to
address
growth
are
NSR
(
required
under
subpart
1
and
subpart
2)
and
conformity
(
required
by
subpart
1).
Planning
obligations
consist
of
attainment
and
maintenance
demonstrations
and
RFP
plans.
For
purposes
of
clarifying
what
we
are
proposing
with
respect
to
control
measures,
we
also
discuss
in
this
section
``
discretionary''
control
measures
that
are
not
specified
in
subpart
2.
Generally,
these
are
control
measures
or
other
obligations
the
State
selected
and
adopted
into
the
SIP
for
purposes
of
attainment,
ROP
or
any
other
goal
to
benefit
air
quality,
but
which
are
not
specifically
mandated
by
subpart
2.
a.
What
obligations
should
continue
to
apply
for
an
area
that
is
designated
nonattainment
for
the
8­
hour
NAAQS
and
that
was
designated
nonattainment
for
the
1­
hour
ozone
NAAQS
on
or
after
November
15,
1990?
We
believe
that
Congress
intended
each
area
that
was
classified
for
the
1­
hour
ozone
NAAQS
under
subpart
2
to
adopt
the
specified
control
obligations
in
subpart
2
for
the
area's
1­
hour
classification.
We
interpret
the
mandated
obligations
in
subpart
2
for
purposes
of
an
area's
1­
hour
ozone
classification
to
remain
applicable
to
such
areas
by
virtue
of
the
area's
classification
``
as
a
matter
of
law''
in
1990.
(
Appendix
B
of
this
proposed
rulemaking
contains
a
list
of
the
subpart
2
requirements
that
remain
applicable.)
The
three
types
of
obligations
described
above
(
control
obligations,
measures
to
address
growth
in
new
sources,
and
planning
obligations)
are
discussed
separately
below.
(
i)
Control
measures.
We
are
proposing
that
all
areas
designated
nonattainment
for
the
8­
hour
ozone
NAAQS
remain
subject
to
control
measures
that
applied
by
virtue
of
the
area's
classification
for
the
1­
hour
standard.
To
the
extent
the
area
has
met
the
obligation
and
the
control
measure
is
a
part
of
the
approved
SIP,
the
State
could
not
modify
or
remove
that
measure
except
to
the
extent
that
it
could
modify
or
remove
that
measure
for
purposes
of
the
1­
hour
standard
and
subject
to
a
demonstration
under
section
110(
l)
that
modification
or
removal
would
not
interfere
with
attainment
or
maintenance
of
the
8­
hour
ozone
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26
In
addition,
for
a
revision
to
an
obligation
that
was
in
effect
prior
to
November
15,
1990,
section
193
prohibits
a
SIP
revision
without
a
showing
that
it
would
result
in
equivalent
or
greater
emission
reductions.
For
purposes
of
avoiding
repetition,
we
do
not
mention
section
193
in
each
of
the
examples
discussed
in
this
section.
However,
States
remain
obligated
to
make
the
section
193
demonstration
for
any
revision
to
a
requirement
that
applied
prior
to
November
15,
1990.
27
A
maintenance
plan,
which
is
a
SIP
revision
required
under
sections
107(
d)(
3)(
E)
and
175A
as
a
prerequisite
for
redesignating
a
nonattainment
area
to
attainment,
must
provide
for
maintenance
of
the
NAAQS
for
10
years
after
redesignation
and
must
contain
contingency
measures
to
promptly
correct
any
violation
of
the
standard
that
occurs
after
redesignation.
Contingency
measures
must
provide
for
implementation
of
all
measures
that
were
contained
in
the
SIP
for
the
area
before
redesignation
of
the
area
as
an
attainment
area.
NAAQS.
26
For
control
measures
that
the
State
has
not
yet
adopted,
the
State
remains
obligated
to
adopt
and
submit
such
controls.
And,
once
adopted
into
the
approved
SIP,
the
State
could
not
modify
or
remove
that
measure
except
to
the
extent
that
it
could
modify
or
remove
that
measure
for
purposes
of
the
1­
hour
standard
and
subject
to
a
demonstration
under
section
110(
l)
that
modification
or
removal
would
not
interfere
with
attainment
or
maintenance
of
the
8­
hour
ozone
NAAQS.
This
obligation
would
apply
only
to
the
part
of
the
8­
hour
ozone
nonattainment
area
that
was
designated
nonattainment
for
the
1­
hour
ozone
NAAQS.
To
illustrate
what
we
are
proposing,
we
provide
the
following
example,
which
will
also
be
used
in
the
next
section
discussing
discretionary
control
measures.
Assume
an
area
is
classified
as
marginal
for
the
8­
hour
ozone
NAAQS
and
was
classified
as
serious
for
the
1­
hour
ozone
NAAQS
at
the
time
of
the
8­
hour
designations.
Also
assume
RACT
for
a
particular
source
category
is
considered
an
80
percent
reduction
in
uncontrolled
emissions
of
VOCs
at
all
major
sources.
In
its
1­
hour
SIP,
the
State
chose
to
require
emissions
reductions
of
90
percent
and
the
RACT
requirement
applied
to
all
major
stationary
sources,
which
for
a
serious
area
includes
all
sources
that
emit
greater
than
50
tons/
year
VOCs.
After
designation
for
the
8­
hour
standard,
the
State
wants
to
modify
this
RACT
requirement
to
require
only
80
percent
reduction
in
emissions
and
to
limit
the
requirement
to
sources
that
emit
100
tons/
year
of
VOCs.
Because
the
State
could
not
have
modified
the
RACT
obligation
to
apply
only
to
sources
emitting
100
tons/
year
or
more
of
VOCs
for
purposes
of
the
1­
hour
standard,
the
State
could
not
change
the
source
cutoff
from
50
tons/
year
for
purposes
of
the
8­
hour
standard.
The
50
tons/
year
major
source
threshold
would
continue
to
be
an
``
applicable
requirement''
for
the
part
of
the
area
that
was
designated
nonattainment
for
the
1­
hour
NAAQS.
The
State,
however,
could
apply
RACT
only
to
sources
that
emit
100
tons/
year
or
more
for
any
portion
of
the
area
that
was
not
a
part
of
the
1­
hour
serious
nonattainment
area.
While
the
80
percent
control
level
would
be
considered
mandatory,
the
90
percent
control
level
was
not
mandated
by
the
CAA
and
thus
is
considered
a
``
discretionary
control
measure.''
We
address
below
how
modification
of
a
discretionary
control
measure
would
be
treated
under
this
proposal.
The
same
principle
would
hold
true
for
control
measures
in
a
maintenance
plan
for
an
area
that
was
designated
nonattainment
for
the
1­
hour
standard
at
or
after
November
15,
1990
and
that
was
subsequently
redesignated
to
attainment
under
the
1­
hour
ozone
standard.
27
Subpart
2
control
measures
(
including
those
that
had
been
shifted
to
contingency
measures)
could
not
be
removed
from
the
SIP
and
could
be
modified
only
to
the
extent
that
they
could
have
been
modified
if
the
1­
hour
standard
remained
in
effect
for
the
area.
If
the
State
had
previously
shifted
a
mandated
subpart
2
control
measure
to
its
contingency
plan,
we
would
not
require
that
the
area
begin
to
implement
that
measure
as
part
of
its
8­
hour
implementation
plan,
if
the
measure
was
not
required
under
its
classification
under
the
8­
hour
standard.
However,
the
measure
would
need
to
remain
as
a
contingency
measure
for
the
area
and
could
not
be
removed
from
the
SIP.
(
ii)
Discretionary
control
measures.
Many
approved
SIPs
contain
control
measures
that
are
not
specified
under
subpart
2
for
the
area,
but
that
the
State
chose
to
adopt
as
part
of
the
demonstration
of
attainment
or
part
of
the
ROP
requirement
for
the
1­
hour
NAAQS.
For
these
kinds
of
measures,
we
are
proposing
that
no
additional
burden
be
placed
on
the
State.
For
purposes
of
the
1­
hour
standard,
States
may
currently
revise
or
remove
those
requirements
so
long
as
they
make
a
demonstration
consistent
with
section
110(
l)
that
such
removal
or
modification
would
not
interfere
with
attainment
of
or
progress
toward
the
1­
hour
ozone
NAAQS
(
or
any
other
applicable
requirement
of
the
CAA).
Under
the
CAA,
for
purposes
of
the
8­
hour
standard,
the
same
obligation
would
apply
except
the
State
would
need
to
make
the
demonstration
with
respect
to
the
8­
hour
standard
instead
of
the
1­
hour
standard.
In
the
example
above,
if
a
State
wants
to
revise
the
control
level
for
certain
sources
from
90
percent
control
to
80
percent
control,
the
State
may
do
so
because
subpart
2
mandated
RACT
in
this
example
is
an
80
percent
level
of
control
rather
than
a
90
percent
control
level.
The
90
percent
control
level
thus
was
``
discretionary.''
We
are
proposing
that
no
additional
burden,
beyond
the
statutory
section
110(
l)
test,
be
placed
on
the
State
to
alter
this
requirement.
Thus,
to
revise
the
control
level,
the
State
would
need
to
demonstrate,
consistent
with
section
110(
l),
that
the
lower
control
level
of
80
percent
would
not
interfere
with
attainment
of
the
8­
hour
standard
or
RFP
for
the
8­
hour
standard
(
or
any
other
applicable
requirement
of
the
CAA).
A
number
of
SIPs
contain
enforceable
commitments
to
adopt
additional
discretionary
emission
reduction
control
measures
in
the
future.
The
State
remains
obligated
to
these
commitments
to
the
same
extent
as
if
they
were
adopted
measures.
The
only
way
a
State
may
modify
or
remove
such
a
commitment
is
through
a
demonstration
under
section
110(
l).
(
iii)
Measures
to
address
growth.
For
1­
hour
nonattainment
NSR
requirements
in
place
at
the
time
an
area
is
designated
nonattainment
for
the
8­
hour
standard,
we
are
proposing
that
the
major
source
applicability
cut­
offs
and
offset
ratios
continue
to
apply
to
the
extent
the
area
has
a
higher
classification
for
the
1­
hour
standard
than
for
the
8­
hour
standard.
We
see
no
rationale
under
the
CAA
 
given
the
Congressional
intent
for
areas
``
classified
by
operation
of
law''
 
why
the
existing
NSR
requirements
should
not
remain
``
applicable
requirements''
for
the
portion
of
the
8­
hour
nonattainment
area
that
was
classified
higher
for
the
1­
hour
standard.
However,
if
an
area
has
been
redesignated
to
attainment
for
the
1­
hour
standard
as
of
the
date
of
designation
for
the
8­
hour
standard,
and
is
thus
no
longer
implementing
the
nonattainment
NSR
program
for
its
previous
1­
hour
ozone
classification,
it
would
not
need
to
revert
back
to
the
program
it
had
for
purposes
of
the
1­
hour
standard.
For
example,
if
an
area
is
classified
moderate
under
the
8­
hour
standard,
but
was
classified
severe
under
the
1­
hour
standard
at
the
time
of
the
8­
hour
designations,
the
portion
of
the
8­
hour
nonattainment
area
that
was
classified
severe
for
the
1­
hour
standard
would
remain
subject
to
an
offset
ratio
of
1.3:
1
and
a
major
source
threshold
of
25
tons/
year.
The
remaining
portions
of
the
8­
hour
area
would
be
subject
to
the
offset
ratio
for
moderate
areas
(
1.15:
1)

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02JNP2.
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02JNP2
32822
Federal
Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
28
For
instance,
an
area
with
a
past­
due
obligation
to
revise
its
SIP
to
develop
a
new
attainment
demonstration
for
the
1­
hour
standard
could
possibly
submit
such
a
revision
within
the
next
year
or
so
(
2004
 
2005),
with
emissions
reductions
beginning
to
occur
likely
within
1
or
2
years
(
by
2006
 
2007).
If
this
area
were
now
only
required
to
address
the
8­
hour
standard,
it
would
not
have
to
submit
a
new
attainment
demonstration
until
2007,
as
proposed
elsewhere
in
this
proposed
rule,
with
emissions
reductions
occurring
from
that
demonstration
likely
a
year
or
more
after
2007,
which
is
several
years
after
the
time
period
possible
by
fulfilling
the
existing
obligation.
and
the
moderate
area
major
source
threshold
(
100
tons/
year).
If
the
severe
1­
hour
area
had
been
redesignated
to
attainment
prior
to
the
time
of
the
8­
hour
designations
and
was
subject
to
PSD
rather
than
NSR,
however,
the
entire
designated
area
for
the
8­
hour
standard
would
be
subject
to
the
offset
ratio
and
major
source
threshold
for
a
moderate
area.
(
iv)
Planning
SIPs.
Most
areas
that
are
nonattainment
under
the
1­
hour
standard
have
already
adopted
attainment
and
ROP
plans.
However,
there
are
a
few
areas
that
remain
obligated
to
submit
attainment
or
ROP
SIPs.
We
have
outlined
our
proposal
for
addressing
ROP
elsewhere
in
this
proposed
rulemaking
and
will
not
repeat
those
options
in
detail
here.
In
general,
however,
we
are
proposing
that
States
are
still
obligated
to
address
separately
ROP
that
does
not
overlap
with
ROP
obligations
for
the
8­
hour
NAAQS.
Where
the
ROP
obligations
overlap,
the
area
need
not
separately
address
ROP
for
the
1­
hour
standard.
For
ROP
already
adopted
into
the
SIP,
we
are
proposing
that
the
State
may
remove
or
revise
control
measures
needed
to
meet
the
ROP
milestone
if
such
control
measures
were
``
discretionary,''
as
discussed
above.
But,
a
State
could
not
revise
or
remove
control
measures
if
they
would
interfere
with
meeting
the
ROP
goals.
In
other
words,
the
CAA­
mandated
ROP
emission
reduction
targets
that
applied
for
the
1­
hour
standard
would
still
have
to
be
met,
but
discretionary
measures
adopted
to
meet
those
targets
could
be
modified,
if
the
State
makes
the
necessary
showing
under
section
110(
l).
With
respect
to
attainment
demonstrations,
we
are
soliciting
comment
on
the
interpretation
we
should
take
for
the
two
scenarios
we
believe
exist.
The
first
scenario
would
be
a
State
that
does
not
have
a
fully
approved
attainment
demonstration
under
the
1­
hour
standard
because
it
has
failed
to
act
in
a
timely
manner.
The
second
scenario
is
an
area
subject
to
an
obligation
to
submit
an
attainment
demonstration
under
the
1­
hour
standard
in
the
future.
In
general,
since
attainment
demonstrations
are
planning
SIPs,
and
States
must
now
be
planning
to
attain
the
8­
hour
NAAQS,
one
might
argue
that
Congress
could
not
have
intended
areas
to
continue
to
plan
to
meet
a
standard
that
EPA
no
longer
considers
to
be
adequately
protective
of
public
health.
This
is
especially
true
when
to
do
so
would
divert
resources
from
planning
to
meet
the
8­
hour
standard.
In
contrast,
one
could
argue
that
allowing
areas
to
bypass
planning
obligations
under
the
1­
hour
standard
will
delay
attainment
of
health
protection
since
States
have
more
time
to
submit
attainment
plans
under
the
8­
hour
standard
than
under
the
1­
hour
standard.
28
There
are
some
cases
where
a
State
does
not
have
a
fully­
approved
attainment
demonstration
because
it
has
failed
to
act
in
a
timely
manner.
To
lift
that
obligation
from
those
areas
simply
because
EPA
had
adopted
a
more
stringent
NAAQS
could
result
in
a
more
preferential
treatment
of
those
areas
over
areas
that
did
adopt
fullyapprovable
attainment
demonstrations
with
the
requisite
controls.
For
example,
if
an
area
has
adopted
controls
to
demonstrate
attainment
of
the
1­
hour
standard,
it
may
not
remove
those
controls
from
its
SIP
without
a
demonstration
that
those
controls
would
not
interfere
with
attainment
or
progress
toward
the
8­
hour
standard
(
or
any
other
applicable
requirement
of
the
CAA).
Such
an
area
likely
would
have
more
stringent
control
obligations
in
place
than
the
area
without
a
fullyapproved
attainment
SIP
and
would
have
a
high
hurdle
to
removing
or
altering
those
controls.
In
contrast,
the
area
without
a
fully­
approved
attainment
demonstration
would
likely
make
slower
progress
toward
attaining
the
8­
hour
NAAQS
(
at
least
in
the
shortterm
because
it
does
not
have
all
necessary
measures
in
its
approved
SIP
and
 
without
a
clear
requirement
to
the
contrary
 
would
be
under
no
pressure
to
have
those
measures
in
its
SIP
until
its
attainment
demonstration
for
the
8­
hour
NAAQS
is
due.
For
the
following
examples
of
actual
situations,
we
are
soliciting
comment
on
whether
to
retain
the
obligation
to
develop
a
1­
hour
attainment
demonstration
or
to
determine
that
the
requirement
no
longer
applies.
In
addition,
we
are
soliciting
comment
on
two
alternatives
that
might
address
some
of
the
inequities,
while
not
subjecting
States
to
the
more
complicated
planning
associated
with
developing
two
separate
attainment
demonstrations
(
one
under
the
1­
hour
standard
and
another
under
the
8­
hour
standard).
Under
the
first
alternative
approach,
areas
that
are
subject
to
an
obligation
to
submit
a
new
or
revised
attainment
demonstration
would
instead
be
required
to
submit
a
SIP
revision
that
would
obtain
an
advance
increment
of
emissions
reductions
toward
attainment
of
the
8­
hour
ozone
standard
within
a
specified,
short­
term
timeframe.
For
example,
we
could
require
these
areas
to
submit
within
1
year
of
promulgation
of
the
implementation
rule
a
plan
revision
that
requires
a
specific
percentage
of
emissions
reductions
(
e.
g.,
5
percent
or
10
percent)
from
the
baseline
emissions
for
the
8­
hour
NAAQS.
In
addition,
we
could
require
that
the
measures
be
implemented
in
the
near
term,
e.
g.,
no
more
than
2
years
after
the
required
submission
date.
Under
the
second
alternative,
areas
with
an
outstanding
obligation
to
submit
a
1­
hour
attainment
demonstration
would
be
required
to
submit
their
8­
hour
ozone
attainment
demonstration
early
in
lieu
of
being
required
to
submit
a
1­
hour
attainment
demonstration.
Submittal
of
an
early
8­
hour
attainment
demonstration
would
likely
prevent
the
inequity
of
areas
avoiding
emissions
reductions
in
the
short
term,
as
described
in
the
preceding
footnote.
 
Example
1:
An
area
has
not
met
in
part
or
in
full
a
past­
due
obligation
to
submit
a
1­
hour
attainment
demonstration
required
because
EPA
reclassified
the
area
to
a
higher
classification
after
it
failed
to
attain
the
1­
hour
standard
by
its
attainment
date.
 
Example
2:
An
area
is
subject
to
an
obligation
to
submit
an
attainment
demonstration
in
the
future,
as
is
the
case
where
EPA
applied
its
attainment
date
extension
policy
rather
than
reclassifying
an
area
that
failed
to
meet
its
attainment
date
and
EPA
has
subsequently
reclassified
the
area
or
soon
will
do
so,
because
of
the
courts'
rejection
of
the
extension
policy.
(
v)
Other
obligations.
A
number
of
areas
have
SIPs
that
contain
commitments
to
review
their
progress
toward
attaining
the
1­
hour
NAAQS
(
in
some
cases,
these
are
called
``
midcourse
reviews'').
These
SIP­
approved
commitments
are
enforceable,
and
EPA
and
the
States
can
use
these
mid­
course
reviews
to
ensure
that
progress
is
being
made
consistent
with
the
analysis
in
the
area's
1­
hour
attainment
demonstration.
The
State
remains
obligated
to
honor
these
commitments.
b.
What
obligations
continue
to
apply
for
areas
that
are
designated
attainment
under
the
8­
hour
standard
and
that
were
designated
nonattainment
for
the
1­
hour
standard
on
or
after
November
15,
1990?

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Federal
Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
29
Memorandum
of
May
10,
1995,
``
RFP,
Attainment
Demonstration,
and
Related
Requirements
for
Ozone
Nonattainment
Areas
Meeting
the
Ozone
National
Ambient
Air
Quality
Standard,''
from
John
S.
Seitz,
Director,
Office
of
Air
Quality
Planning
and
Standards.
Available
at:
http://
www.
epa.
gov/
ttn/
oarpg/
t1/
memoranda/
clean15.
pdf.
30
Areas
that
are
designated
attainment
under
the
8­
hour
standard
and
that
were
designated
nonattainment
for
the
1­
hour
standard
on
or
after
November
15,
1990.
31
Based
on
ambient
ozone
data
for
the
period
1998
to
2000
for
the
hypothetical
nonattainment
areas,
we
identified
approximately
20
areas
that
are
currently
designated
nonattainment
under
the
1­
hour
standard
but
that
will
likely
be
designated
attainment
under
the
8­
hour
standard).
(
i)
Obligations
related
to
NSR.
Areas
that
are
in
attainment
for
the
8­
hour
ozone
NAAQS
would
not
be
subject
to
nonattainment
NSR
for
the
8­
hour
standard.
We
believe
it
makes
little
sense
to
require
nonattainment
NSR
to
continue
simply
because
these
areas
were
previously
designated
nonattainment
for
the
1­
hour
standard.
Thus,
we
propose
that
these
areas
would
be
subject
to
PSD
and
would
not
be
subject
to
the
nonattainment
NSR
offset
and
major
source
thresholds
that
applied
under
their
classification
for
the
1­
hour
standard.
(
ii)
Obligations
related
to
planning
obligations
other
than
maintenance
plans.
With
respect
to
SIP
planning
obligations
(
ROP
plans
and
attainment
demonstrations),
we
are
proposing
that
the
SIP
planning
requirements
that
applied
for
purposes
of
the
1­
hour
standard
would
not
continue
to
apply
to
these
areas
as
long
as
they
continue
to
maintain
the
8­
hour
NAAQS.
Thus,
even
if
these
areas
have
failed
to
meet
ROP
or
attainment
plan
obligations
for
the
1­
hour
standard,
they
would
not
be
required
to
meet
them
for
so
long
as
they
remain
in
attainment
with
the
8­
hour
standard.
(
As
discussed
below,
however,
we
are
proposing
that
such
areas
develop
a
maintenance
plan
under
section
110(
a)(
1).)
This
approach
is
consistent
with
EPA's
``
Clean
Data
Policy''
29
under
the
1­
hour
standard,
which
provides
for
these
planning
obligations
to
be
stayed
once
an
area
attains
the
standard,
but
only
for
so
long
as
an
area
remains
in
attainment
of
the
1­
hour
standard.
If
such
an
area
violates
the
8­
hour
NAAQS­
prior
to
having
an
approved
maintenance
plan
in
effect
(
as
proposed
below
to
be
required
for
these
areas)
 
those
obligations
would
once
again
apply
in
the
same
manner
that
they
apply
in
areas
designated
nonattainment
for
the
8­
hour
ozone
NAAQS.
(
iii)
Obligations
related
to
control
measures
and
maintenance
plans.
The
issue
of
what
obligation
remains
with
respect
to
``
non­
discretionary''
control
measures
approved
into
the
SIP
or
required
under
the
CAA
is
more
difficult.
Our
approach
for
these
is
based
on
the
CAA's
requirements
for
maintenance
plans.
(
Consistent
with
our
proposal
for
discretionary
control
measures
in
areas
designated
nonattainment
for
the
8­
hour
NAAQS,
we
would
permit
areas
to
modify
discretionary
measures
for
areas
designated
attainment
for
the
8­
hour
NAAQS
so
long
as
section
110(
l)
is
met.)
If
EPA
determined
that
these
areas
30
were
required
to
develop
maintenance
plans
pursuant
to
section
175A,
then
they
would
need
to
keep
(
or
to
adopt
and
then
keep)
those
control
measures
in
the
SIP,
though
they
could
shift
them
to
contingency
measures.
Some
commenters
urged
us
to
require
all
areas
previously
designated
nonattainment
for
the
1­
hour
NAAQS
to
retain
(
where
the
area
had
been
redesignated
to
attainment)
or
develop
(
where
the
area
was
still
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
8­
hour
designations)
a
section
175A
maintenance
plan.
However,
we
do
not
believe
that
a
section
175A
maintenance
plan
is
mandated
or
is
necessary
for
areas
initially
designated
attainment
for
the
8­
hour
NAAQS.
Section
175A
maintenance
plans
are
required
for
areas
that
were
designated
nonattainment
for
a
NAAQS
and
then
subsequently
redesignated
to
attainment
for
that
NAAQS.
The
areas
addressed
in
this
section
have
never
been
designated
nonattainment
for
the
8­
hour
ozone
NAAQS.
Moreover,
they
have
a
maintenance
obligation
that
already
applies:
Section
110(
a)(
1)
requires
areas
to
demonstrate
how
they
will
attain
and
maintain
a
new
or
revised
NAAQS.
31
Therefore,
we
do
not
believe
that
Congress
mandated
that
such
areas
be
subject
to
the
section
175A
maintenance
plan
obligation
for
the
8­
hour
NAAQS,
nor
do
we
believe
it
is
necessary
to
interpret
that
provision
to
apply.
For
an
area
that
was
never
redesignated
to
attainment
for
the
1­
hour
standard
and
never
had
a
section
175A
maintenance
plan,
we
are
proposing
that
if
the
area
wants
to
revise
any
part
of
its
current
1­
hour
SIP,
the
area
must
first
adopt
and
submit
a
maintenance
plan
consistent
with
section
110(
a)(
1).
Moreover,
even
if
the
State
elects
not
to
revise
its
existing
SIP,
we
are
proposing
that
the
area
submit
a
section
110(
a)(
1)
maintenance
plan
within
3
years
of
designation
as
attainment
for
the
8­
hour
NAAQS.
We
believe
that
the
maintenance
plan
should
provide
for
continued
maintenance
of
the
8­
hour
standard
for
10
years
following
designation
for
the
8­
hour
NAAQS
and
should
include
contingency
measures.
Unlike
section
175A,
section
110(
a)(
1)
does
not
address
contingency
measures
and
thus
does
not
specify
that
mandated
controls
in
the
existing
SIP
must
be
shifted
to
contingency
measures
if
modified
or
removed.
We
are
proposing
that
if
the
State
adopts
sufficient
contingency
measures,
and
if
it
makes
a
demonstration
consistent
with
section
110(
1),
it
can
modify
or
remove
control
measures
in
the
approved
SIP.
We
are
also
proposing
that
areas
with
approved
1­
hour
section
175A
maintenance
plans
will
be
able
to
modify
those
maintenance
plans
consistent
with
their
obligation
to
have
a
maintenance
plan
for
the
8­
hour
NAAQS
under
section
110(
a)(
1).
For
these
areas,
we
are
proposing
that
the
following
obligations
could
be
removed
from
the
SIP
if
the
State
demonstrates
that
the
area
will
maintain
the
8­
hour
standard
consistent
with
section
110(
a)(
1)
for
a
period
of
10
years
following
designation
for
the
8­
hour
NAAQS:
 
the
obligation
to
submit
a
maintenance
plan
for
the
1­
hour
standard
8
years
after
approval
of
their
initial
1­
hour
maintenance
plan;
 
the
requirement
to
implement
contingency
measures
upon
a
violation
of
the
1­
hour
ozone
standard;
however,
such
areas
would
need
contingency
measures
as
part
of
a
maintenance
SIP
for
the
8­
hour
NAAQS
and
States
could
elect
to
modify
the
existing
contingency
measure
trigger
so
that
it
is
based
on
a
violation
or
exceedance
of
the
8­
hour
standard.
(
iv)
Obligations
related
to
conformity.
For
all
areas
designated
attainment
for
the
8­
hour
ozone
NAAQS,
the
requirement
to
demonstrate
conformity
to
the
1­
hour
standard
would
no
longer
apply
once
the
1­
hour
standard
is
revoked
in
whole
or
determined
not
to
apply
for
that
purpose
under
a
partial
revocation
of
the
1­
hour
standard
(
as
proposed
below).
Under
section
176
of
the
CAA,
conformity
applies
to
areas
designated
nonattainment
or
subject
to
the
requirement
to
develop
a
maintenance
plan
pursuant
to
section
175A.
Areas
designated
attainment
for
the
8­
hour
standard
would
no
longer
be
subject
to
the
obligation
to
demonstrate
conformity
to
the
1­
hour
emissions
budgets
in
an
approved
attainment
or
ROP
SIP
or
an
approved
section
175A
maintenance
plan
for
the
1­
hour
standard.
The
reason
for
this
is
that,
under
the
options
proposed
below,
they
would
either
no
longer
be
designated
nonattainment
for
the
1­
hour
standard
or
the
nonattainment
designation
would
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Federal
Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
32
For
instance,
upon
discussion
between
EPA
and
States,
some
States
have
in
the
past
voluntarily
agreed
to
revise
their
SIPs
when
it
appears
that
the
SIP
is
inadequate
to
attain
or
maintain
the
NAAQS.
no
longer
apply
for
purposes
of
conformity,
and
the
area
would
no
longer
be
required
to
develop
a
maintenance
plan
under
section
175A
for
purposes
of
the
1­
hour
standard.
c.
What
happens
with
respect
to
the
NOX
SIP
Call?
Section
110(
a)(
2)(
D)
of
the
CAA
establishes
requirements
for
States
to
address
the
problem
of
transport.
It
requires
a
SIP
to
prohibit
the
State's
sources
from
emitting
air
pollutants
in
amounts
that
will
contribute
significantly
to
nonattainment,
or
interfere
with
maintenance,
in
one
or
more
downwind
States.
As
noted
above
in
section
I
of
this
proposal,
in
1998,
EPA
called
on
22
States
and
the
District
of
Columbia
(``
States'')
to
reduce
emissions
of
NOX
consistent
with
budgets
set
for
each
State.
(
63
FR
57356,
October
27,
1998).
Furthermore,
EPA
granted
petitions
under
section
126
and
thus
directly
regulated
certain
sources
of
NOX
emissions
in
many
of
the
States
covered
by
the
NOX
SIP
Call.
(
65
FR
2674,
January
18,
2000).
Below,
we
refer
to
these
collectively
as
the
``
NOX
transport
rules.''
The
NOX
transport
rules
were
designed
to
prevent
upwind
NOX
emissions
from
contributing
to
nonattainment
in
a
downwind
area
for
both
the
1­
hour
and
8­
hour
ozone
NAAQS.
EPA,
however,
stayed
the
8­
hour
basis
for
the
NOX
transport
rules
in
response
to
the
extensive
and
extended
litigation
(
described
above)
that
occurred
concerning
the
establishment
of
the
8­
hour
ozone
standard.
We
intend
to
take
rulemaking
action
to
lift
the
stay
of
the
8­
hour
basis
for
these
rules.
We
believe
it
important
to
ensure
that
the
transition
to
the
8­
hour
standard
does
not
have
the
effect
of
jeopardizing
the
controls
required
to
be
in
place
under
the
NOX
transport
rules.
Regardless
of
whether
EPA
lifts
the
stay
of
the
8­
hour
basis
for
these
rules,
the
controls
required
have
substantial
benefits
for
reductions
of
both
1­
hour
and
8­
hour
ozone
levels.
We
believe
that
relaxing
such
controls
would
be
contrary
to
the
principles
we
identified
above
for
an
effective
transition.
Consequently,
we
are
proposing
that
States
must
continue
to
adhere
to
the
emission
budgets
established
by
the
NOX
SIP
Call
after
the
1­
hour
standard
is
revoked
in
whole
or
in
part,
as
proposed
below.
Similarly,
we
are
not
proposing
to
revoke
or
modify
its
section
126
regulation.
However,
States
retain
the
authority
to
revise
the
control
obligations
they
have
established
for
specific
sources
or
source
categories,
if
they
continue
to
meet
their
SIP
Call
budgets.
In
addition,
consistent
with
section
110(
l),
the
States
would
need
to
demonstrate
that
the
modification
in
control
obligations
would
not
interfere
with
attainment
of
or
progress
toward
the
8­
hour
NAAQS
or
with
any
other
applicable
requirement
of
the
CAA.
d.
What
additional
obligations
under
part
D
of
title
I
of
the
CAA
would
not
continue
to
apply
after
the
1­
hour
standard
is
revoked
in
whole
or
in
part?
As
discussed
elsewhere
in
this
proposal,
we
are
proposing
that
areas
would
not
be
obligated
to
continue
to
demonstrate
conformity
for
the
1­
hour
standard
once
the
1­
year
grace
period
for
application
of
conformity
for
the
8­
hour
standard
has
elapsed.
In
addition,
EPA
would
not
take
certain
actions
with
respect
to
the
1­
hour
ozone
NAAQS.
First,
we
are
proposing
that
we
would
no
longer
make
findings
of
failure
to
attain
the
1­
hour
standard
and,
therefore,
would
not
reclassify
areas
to
a
higher
classification
for
the
1­
hour
standard
based
on
a
failure
to
meet
the
1­
hour
standard.
We
believe
that
areas
should
focus
their
resources
on
attainment
of
the
8­
hour
standard
and
that
it
would
be
counterproductive
to
establish
new
obligations
for
States
with
respect
to
the
1­
hour
standard
after
they
have
begun
planning
for
the
8­
hour
standard.
(
Moreover,
we
note
that
the
attainment
dates
for
marginal,
moderate
and
serious
areas
have
passed
and
the
CAA
does
not
provide
for
reclassification
of
severe
areas
in
the
absence
of
a
request
by
the
State.)
EPA
must
ensure
that
areas
are
continuing
to
make
progress
toward
cleaner
air.
If
EPA
determines
that
a
State
is
not
adequately
implementing
an
approved
SIP
and
achieving
air
quality
reductions
in
a
timely
manner,
EPA
may
enter
into
an
informal
process
to
ensure
the
State
takes
any
necessary
action
32
or,
alternatively,
may
take
more
formal
action
such
as
making
a
finding
of
failure
to
implement
the
SIP
or
issuing
a
SIP
Call
to
require
action.
As
noted
above,
many
areas
have
SIPs
that
contain
commitments
to
review
their
progress
toward
attaining
the
1­
hour
NAAQS
(``
mid­
course
review'').
These
SIP­
approved
commitments
are
enforceable,
and
EPA
and
the
States
can
use
these
mid­
course
reviews
to
ensure
that
progress
is
being
made
consistent
with
the
analysis
in
the
area's
1­
hour
attainment
demonstration.
4.
Does
the
Requirement
for
Continued
Implementation
of
the
Obligations
Addressed
Above
Expire
at
Some
Point?

The
SIP
obligations
under
the
1­
hour
standard
for
an
area's
classification
under
the
1­
hour
standard
would
not
expire
after
the
1­
hour
standard
is
revoked
in
whole
or
in
part.
However,
for
those
mandatory
requirements
that
continue
to
apply
to
an
area
due
to
the
area's
classification
for
the
1­
hour
NAAQS,
we
are
proposing
two
options
for
when
the
State
may
move
the
mandatory
measures
to
a
maintenance
plan
in
the
SIP
and
treat
them
as
contingency
measures:
a.
Option
1.
When
the
area
achieves
the
level
of
the
1­
hour
ozone
standard
(
even
if
the
area
has
not
yet
attained
the
8­
hour
standard).
The
rationale
for
this
option
is
that
Congress
intended
an
area
to
continue
to
implement
these
obligations
until
it
attained
the
1­
hour
standard,
at
which
time
the
area
would
be
able
to
discontinue
implementation
upon
a
showing
of
continued
maintenance.
However,
in
such
a
case,
the
area
could
not
remove
the
measures
from
the
SIP;
rather,
it
could
shift
such
measures
to
contingency
measures.
b.
Option
2.
When
the
area
attains
the
8­
hour
standard
and
is
designated
attainment
(
regardless
of
when,
if
ever,
the
area
attains
the
1­
hour
standard).
The
rationale
for
this
option
is
that
the
8­
hour
standard
is
the
standard
that
EPA
has
determined
will
protect
public
health
and
the
environment.
Once
an
area
demonstrates
it
has
met
and
can
maintain
the
health
protective
standard,
it
would
be
appropriate
to
remove
or
modify
those
controls.
It
should
be
noted
that
either
of
these
two
options
could
apply
for
either
of
the
transition
options,
discussed
in
section
2,
above.
It
should
also
be
noted
that
the
SIP
obligations
would
include
not
only
requirements
in
the
1­
hour
nonattainment
area
but
also
for
the
SIP
in
general,
including
the
SIP
requirements
to
address
the
NOX
SIP
Call.
We
are
proposing
under
the
antibacksliding
provision
in
section
110(
l)
to
require
that
the
SIP
retain
the
NOX
SIP
Call
controls
that
have
already
been
approved.
In
the
absence
of
appropriate
regional
scale
modeling
that
would
demonstrate
that
changing
a
SIP
Call
control
to
a
contingency
measure
would
not
interfere
with
attainment
or
maintenance
in
any
other
State,
the
State
could
not
shift
SIP
Call
control
strategies
to
contingency
measures.
The
State
would,
of
course,
also
have
to
submit
a
demonstration
that
the
SIP
change
would
not
interfere
with
attainment
or
reasonable
further
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/
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68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
progress
for
any
air
quality
standard
or
other
applicable
requirement
of
the
Act.

5.
How
Will
EPA
Ensure
That
the
Public
Knows
Which
Areas
Must
Continue
Provisions
Under
the
1­
Hour
SIPs
if
EPA
Revokes
the
1­
Hour
Standard?

EPA
would
promulgate
regulatory
provisions
identifying
the
obligations
to
which
areas
remain
subject,
and
identifying
the
areas.
If
EPA
ultimately
chooses
to
revoke
the
1­
hour
standard
and
the
associated
designations
and
classifications
shortly
after
designations
for
the
8­
hour
standard
(
as
proposed
below),
EPA
would
ensure
that
there
are
provisions
in
the
Code
of
Federal
Regulations
(
CFR)
that
continue
to
define
the
boundaries
for
those
areas.
The
reason
for
this
is
that
boundaries
for
8­
hour
ozone
nonattainment
areas
may
not
be
coextensive
with
those
for
the
1­
hour
standard,
and
EPA
would
need
to
make
clear
which
areas
or
portions
of
areas
must
continue
to
implement
obligations
due
to
their
1­
hour
classification.

D.
Should
Prescribed
Requirements
of
Subpart
2
Apply
in
all
8­
Hour
Nonattainment
Areas
Classified
Under
Subpart
2,
or
Is
There
Flexibility
in
Application
in
Certain
Narrowly
Defined
Circumstances?

1.
Background
The
1990
CAA
Amendments
overhauled
the
CAA's
requirements
for
ozone
nonattainment
areas
and,
in
doing
so,
specified
new
mandatory
measures
for
many
areas.
The
new
approach
embodied
in
subpart
2
was
to
classify
areas
according
to
the
severity
of
their
pollution.
Areas
with
more
serious
ozone
pollution
were
allowed
more
time
to
meet
the
standard
 
but
were
required
to
adopt
more
numerous
and
stringent
measures
depending
on
their
classification.
Congressional
proponents
of
this
approach
argued
that
specifying
mandatory
measures
in
the
statute
was
necessary
because
States
and
EPA,
prior
to
1990,
had
failed
to
ensure
that
SIPs
achieve
steady
reasonable
progress
in
reducing
emissions
or
to
require
readily
available
measures
that
were
cost
effective
and
needed
to
meet
the
standard.
Mandatory
subpart
2
requirements
for
moderate
and
higher­
classified
areas
include,
for
example,
specific
ROP
requirements
(
including
a
15
percent
VOC
reduction
for
moderate
and
above
areas),
basic
I/
M
programs,
a
requirement
that
sources
subject
to
NSR
obtain
emissions
offsets
at
a
ratio
of
1.15­
to­
1,
and
RACT
for
NOX
sources
as
well
as
VOC
sources.
Serious
and
severe
areas
are
subject
to
additional
measures
such
as
further
ROP
requirements,
applicability
of
NSR
to
smaller
sources,
enhanced
I/
M,
and
applicability
of
RACT
to
smaller
sources.
(
Appendix
A
presents
a
summary
comparison
of
measures
under
subparts
1
and
2.)
For
the
proposed
8­
hour
ozone
implementation
strategy,
EPA
has
examined
the
issue
of
mandatory
measures
from
both
legal
and
policy
standpoints.
EPA's
legal
view
is
guided
by
the
Supreme
Court
decision.
The
Court
held
that
Congress
drastically
limited
EPA's
discretion
on
whether
the
mandatory
requirements
of
subpart
2
will
apply
to
8­
hour
areas
by
concluding
that
the
classification
scheme
of
subpart
2
applied
for
purposes
of
a
revised
ozone
NAAQS.
ATA
I,
175
F3d
at
1048
 
1050.
As
discussed
elsewhere,
the
Supreme
Court
decision
states
that
subpart
2
provides
for
classification
of
areas
under
the
8­
hour
standard.
With
respect
to
the
requirements
of
subpart
2,
the
Supreme
Court
stated,
``
The
principal
distinction
between
Subpart
1
and
Subpart
2
is
that
the
latter
eliminates
regulatory
discretion
that
the
former
allowed.''
Whitman
121
S.
Ct.
at
918.
The
Court
went
on
to
state,
``
Whereas
Subpart
1
gives
EPA
considerable
discretion
to
shape
nonattainment
programs,
Subpart
2
prescribes
large
parts
of
them
by
law.''
Id.
The
Court
also
stated,
``
EPA
may
not
construe
the
statute
in
a
way
that
completely
nullifies
textually
applicable
provisions
meant
to
limit
its
discretion.''
Id.
918
 
919.
Once
an
area
is
classified
under
subpart
2,
the
subpart
2
requirements
apply.
EPA
may
have
some
limited
ability
to
change
or
limit
subpart
2
controls,
consistent
with
the
statutory
language,
but
EPA
cannot
broadly
waive
those
requirements.
For
example,
EPA
may
have
some
flexibility
to
modify
regulatory
requirements
for
programs
such
as
NSR
(
discussed
elsewhere
in
this
proposed
rulemaking).
Furthermore,
subpart
2
provides
discretion
to
EPA
in
implementing
certain
provisions
already,
such
as
waivers
for
stage
II
vapor
recovery,
NOX
RACT
and
NOX
NSR.
In
addition,
case
law
may
provide
EPA
with
some
flexibility
to
waive
federally
applicable
requirements
on
a
case­
by­
case
basis
where
application
of
those
requirements
would
produce
an
``
absurd
result.''
With
respect
to
policy
considerations,
some
commenters
at
public
meetings
or
in
written
submissions
to
EPA
have
expressed
the
view
that
mandatory
measures
are
needed
to
ensure
actions
are
taken,
but
a
number
of
commenters
have
raised
concerns.
These
include
whether
mandated
VOC
controls
will
be
appropriate
for
all
areas
in
the
future,
and
whether
mandatory
measures
are
appropriate
in
areas
projected
to
attain
in
the
near
term.
A
number
of
commenters
recommended
that
EPA
allow
for
flexibility
in
implementing
the
8­
hour
ozone
standard
and
not
require
mandatory
measures,
such
as
local
VOC
measures,
where
they
would
not
be
very
effective
in
achieving
attainment
of
the
standard.
In
many
cases,
particularly
for
areas
that
would
be
new
nonattainment
areas
under
the
8­
hour
standard,
region
wide
NOX
controls
and
national
controls
on
mobile
sources
are
predicted
to
greatly
reduce
the
areas'
ozone
levels
and
to
bring
many
into
attainment
without
additional
local
emission
controls.
Although
a
number
of
comments
were
received
on
the
issue
of
flexibility,
many
commenters
on
this
issue
took
the
position
that
they
would
prefer
areas
to
be
classified
under
subpart
1
rather
than
subpart
2.
Some
commenters
did
recommend
that
EPA
make
the
argument
that
new
information
about
the
relative
benefits
of
NOX
and
VOC
control
would
lead
to
allowing
more
tailored
controls
for
a
number
of
areas,
rather
than
the
one­
size­
fits­
all
approach
of
subpart
2.
However,
commenters
did
not
suggest
how
the
CAA
could
be
interpreted
to
allow
the
flexibility
they
were
advocating
for
the
mandatory
requirements
of
subpart
2.
Other
commenters
argued
that
the
subpart
2
measures
are
mandatory
under
the
CAA
for
areas
classified
under
subpart
2
and
that
the
CAA
does
not
provide
flexibility
to
waive
those
requirements.
Regarding
the
VOC/
NOX
issue,
we
observe
that
scientific
understanding
of
ozone
pollution
and
the
impact
of
control
strategies
has
improved
over
time.
Prior
to
1990,
the
main
focus
of
ozone
control
strategies
was
VOC
control.
Since
then,
scientific
studies
have
more
clearly
recognized
the
role
of
NOX,
biogenic
emissions,
and
transport
of
ozone
and
NOX
in
ozone
nonattainment.
In
response,
EPA's
ozone
strategy
for
the
1­
hour
standard
evolved
to
put
greater
emphasis
on
controlling
NOX
in
addition
to
VOC
and
to
require
control
of
NOX
emissions
that
contribute
to
interstate
ozone
problems.
We
recognize
that
the
relative
effectiveness
of
VOC
and
NOX
controls
will
vary
from
area
to
area,
depending
significantly
upon
VOC/
NOX
ratios
in
the
atmosphere.
Current
scientific
information
shows
that
VOC
reductions
will
reduce
ozone
in
urban
areas
and
in
other
areas
where
there
is
excess
NOX
available
for
reaction.
Ozone
levels
in
areas
that
are
less
urban
and
have
lower
NOX
emissions,
or
that
have
high
biogenic
VOC
levels,
may
be
more
sensitive
to
NOX
control
and
less
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/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
33
Additional
Options
Considered
for
``
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard.''
U.
S.
Environmental
Protection
Agency,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
NC.
March
2003.
sensitive
to
VOC
control.
Because
ozone
formation
is
greatly
affected
by
meteorological
conditions
and
source/
receptor
orientation,
ozone
formation
may
be
limited
by
either
VOC
or
NOX
concentrations
at
different
times
and
locations
within
the
same
area.
In
order
to
support
the
approach
proposed
below,
we
solicit
relevant
technical
information
on
this
issue
from
States
and
others.

2.
Approach
Being
Proposed
In
line
with
the
legal
interpretation
above,
we
are
proposing
that
subpart
2
requirements
would
apply
to
each
area
classified
under
subpart
2
consistent
with
the
area's
classification.
However,
today's
proposal
contains
several
features
intended
to
provide
States
with
flexibility
on
the
measures
required
to
be
included
in
SIPs
for
8­
hour
areas.
First,
as
explained
in
the
section
on
classifications
above,
proposed
classification
option
2
would
result
in
a
number
of
areas
being
classified
under
subpart
1
rather
than
under
subpart
2.
Second,
for
both
classification
options,
we
are
proposing
an
incentive
feature
that
would
allow
areas
to
qualify
for
a
lower
classification
with
fewer
mandatory
requirements
if
the
area
could
show
it
will
meet
the
standard
by
the
deadline
for
the
lower
classification.
This
would,
for
example,
allow
any
area
projected
to
attain
by
2007
based
on
existing
Federal
measures
and
any
State
or
local
measures
approved
into
the
SIP
to
be
classified
as
marginal
and
to
avoid
subpart
2
mandatory
measures
 
some
of
which
may
be
significant
 
that
apply
to
higher
classifications.
Under
either
of
our
proposed
classification
frameworks,
a
majority
of
potential
8­
hour
areas
would
not
be
subject
to
significant
subpart
2
mandatory
measures
because
they
would
be
classified
marginal
or
lower.
Based
on
our
analysis
of
hypothetical
nonattainment
areas,
there
would
be
fewer
than
10
potential
8­
hour
nonattainment
areas
classified
``
serious''
or
above,
and
these
areas
already
are
implementing
requirements
applicable
to
serious
or
above
areas
for
the
1­
hour
standard.
Therefore,
the
main
impact
of
subpart
2
mandatory
measures
in
8­
hour
implementation
would
be
on
(
1)
areas
that
are
classified
as
moderate,
and
did
not
have
to
meet
moderate
or
above
requirements
for
the
1­
hour
standard,
(
2)
areas
classified
as
moderate
or
above
that
would
be
subject
to
ROP
requirements
for
the
8­
hour
NAAQS,
and
(
3)
new
counties
or
areas
included
as
part
of
a
serious
or
higher
classified
nonattainment
area.
As
a
third
flexibility
mechanism,
we
are
proposing
to
consider
allowing
caseby
case
waivers
when
sufficient
evidence
is
presented
that
application
of
a
specific
requirement
in
a
particular
area
would
cause
absurd
results.
Evidence
of
an
absurd
result
might,
for
example,
include
a
modeled
demonstration
that
future
VOC
reductions
required
under
subpart
2
for
a
particular
area
would
actually
cause
ozone
to
increase
more
than
a
de
minimis
amount
and
therefore
increase
the
amount
of
NOX
emissions
reductions
needed
for
the
attainment
demonstration.
Such
a
showing
would
also
have
to
account
for
the
potential
benefits
of
the
mandated
controls
in
downwind
areas
in
determining
whether
on
the
whole
the
application
of
the
subpart
2
measure
would
produce
an
absurd
result.
We
believe
that
absurd
results
will
happen
only
rarely
in
those
cases
where
application
of
the
requirement
in
that
area
would
thwart
the
intent
of
Congress
in
enacting
the
relevant
provisions
of
the
CAA.
In
such
cases,
EPA
may
be
able
to
provide
limited
relief
to
the
area,
but
only
to
the
degree
needed
to
protect
Congressional
intent.
For
example,
we
believe
that
the
purpose
of
the
15
percent
VOC
ROP
requirement
is
to
ensure
that
areas
make
progress
cleaning
up
their
air
and
moving
toward
their
goal
of
attainment
in
the
first
6
years
following
the
emissions
baseline
year.
If
an
area
could
demonstrate
that
reductions
in
VOC
would
provide
no
progress
toward
attaining
the
standard,
EPA
may
be
allowed
to
interpret
the
statute
to
allow
for
reduction
in
NOX
emissions
instead.
EPA
could
not,
however,
simply
waive
the
requirement
for
the
area
to
meet
the
ROP
goals
of
the
CAA.
Moreover,
it
would
not
be
sufficient
for
the
area
to
show
that
VOC
reductions
would
be
less
beneficial
than
NOX
reductions.
While
one
might
contend
that
such
a
result
is
not
the
most
logical
result,
it
is
not
absurd.
The
above
example
is
a
simplistic
example
 
application
of
the
absurd
results
test
in
any
specific
situation
would
likely
be
more
complex.
In
any
specific
situation,
we
would
need
to
consider
all
of
the
facts
in
light
of
various
statutory
provisions.
For
example,
we
would
need
to
consider
that
another
goal
of
the
SIP
provisions
in
the
CAA
is
to
mitigate
transport
of
ozone
(
and
ozone
precursors).
Therefore,
in
determining
whether
there
is
an
``
absurd
result,''
we
would
not
only
need
to
consider
the
implications
for
the
specific
area
asserting
an
absurd
result,
but
also
the
effects
on
downwind
areas.
A
State
attempting
an
absurd
results
demonstration
would
have
to
work
very
closely
with
EPA
to
ensure
that
the
demonstration
passes
the
highest
standards
of
technical
credibility.
If
we
had
information
that
the
agency
believes
supports
an
absurd
results
showing,
we
would
make
that
information
available
to
the
State.
The
State
would,
of
course,
have
to
subject
this
demonstration
to
the
same
public
process
carried
out
for
the
SIP
submission
itself
prior
to
submission
to
EPA
of
the
SIP
containing
the
demonstration.
In
no
way
would
this
waiver
exempt
an
area
from
the
requirement
to
demonstrate
attainment
by
the
attainment
date
or
to
demonstrate
RFP
toward
attainment
consistent
with
the
area's
classification.
We
would
have
to
review
the
State's
demonstration
as
to
whether
the
result
is
``
absurd''
in
light
of
the
particular
statutory
requirement
at
issue
and
within
the
context
of
the
statute
as
a
whole.
Simply
because
a
State
may
demonstrate
an
absurd
result
for
purposes
of
meeting
one
statutory
provision,
such
as
the
requirement
for
a
15
percent
VOC
reduction
within
6
years
after
a
base
year,
this
does
not
imply
that
some
other
provision
of
the
CAA
that
requires
VOC
reductions
is
automatically
considered
``
absurd.''

3.
Other
Approaches
Considered
We
considered
a
number
of
other
options
for
allowing
additional
flexibility
for
subpart
2
requirements.
These
other
options
that
were
considered
but
are
not
being
proposed
are
described
in
a
separate
document
available
in
the
docket.
33
E.
What
Is
the
Required
Timeframe
for
Obtaining
Emissions
Reductions
To
Ensure
Attainment
by
the
Attainment
Date?

Section
172(
c)(
2)
of
the
CAA
requires
that
emissions
reductions
needed
for
attainment
be
phased
in
such
that
RFP
toward
attainment
is
achieved.
For
areas
classified
as
moderate
under
subpart
2,
their
attainment
date
would
be
as
expeditiously
as
practicable
but
no
later
than
6
years
after
the
date
of
classification.
Their
ROP
requirement
would
be
at
least
a
15
percent
VOC
emissions
reduction
from
the
base
year
to
be
achieved
no
later
than
6
years
after
the
base
year.
However,
if
the
area
needed
more
than
15
percent
VOC
reductions
in
order
to
demonstrate
attainment,
then
any
additional
reductions
would
also
have
to
be
achieved
by
the
beginning
of
the
ozone
season
prior
to
the
area's
attainment
date.

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Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
34
As
a
result
of
court
actions,
certain
circumstances
upon
which
the
Section
126
Rule
withdrawal
provision
was
based
have
changed.
The
compliance
dates
for
the
Section
126
Rule
and
the
NOX
SIP
Call
have
been
delayed
and
the
NOX
SIP
Call
has
been
divided
into
two
phases.
The
EPA
recently
issued
a
proposed
rulemaking
to
update
the
withdrawal
provision
so
that
it
will
operate
appropriately
under
these
new
circumstances
(
68
FR
16644,
April
4,
2003).
35
The
Agency
stayed
the
8­
hour
basis
for
both
rules
in
response
to
the
extensive
and
extended
litigation
that
occurred
concerning
the
establishment
of
the
8­
hour
ozone
standard.
(
65
FR
56245,
September
18,
2000
and
65
FR
2674,
January
18,
2000).
Recently,
however,
the
Administrator
signed
a
final
rule
on
the
UV
 
B
issue
and
reaffirmed
the
8­
hour
ozone
standard
(
68
FR
614,
January
6,
2003),
which
was
remanded
to
EPA
in
ATA
I,
175
F.
3d
1027.
Having
now
reaffirmed
the
8­
hour
standard,
the
Agency
plans
to
take
action
in
the
near
future
to
reinstate
the
8­
hour
bases
for
both
the
NOX
SIP
Call
and
the
Section
126
Rule.
Such
action
would
provide
the
initial
basis
for
dealing
with
ozone
transport
as
part
of
the
implementation
of
the
8­
hour
standard.
States
should
be
aware
of
the
consequences
of
failing
to
implement
the
control
measures
necessary
for
attainment
sufficiently
far
in
advance
of
the
attainment
date.
For
areas
covered
under
subpart
2,
section
181(
a)(
5)
of
the
CAA
does
allow
for
up
to
two
1­
year
attainment
date
extensions
in
certain
circumstances.
We
are
proposing
how
those
extension
provisions
would
be
implemented
elsewhere
in
this
proposal
under
the
discussion
of
attainment
dates.
To
obtain
the
first
of
the
1­
year
extensions,
the
CAA
basically
requires
that
the
area
be
meeting
the
level
of
the
standard
in
the
attainment
year
itself,
even
if
the
area
has
not
actually
attained
considering
the
most
recent
3
years
of
data.
Thus,
the
States
should
ensure
that
the
emissions
reductions
be
implemented
to
ensure
that
ozone
levels
for
the
ozone
season
preceding
the
attainment
date
are
below
the
level
of
the
standard.
If
an
area
does
not
meet
the
eligibility
requirements
for
a
1­
year
extension
(
as
proposed
elsewhere
in
this
rulemaking)
in
the
attainment
year,
then
the
area
would
not
be
eligible
for
an
attainment
date
extension,
and
EPA
would
have
an
obligation
to
reclassify
the
area
to
a
higher
classification
(``
bump­
up'').
A
marginal
area
with
an
attainment
date
3
years
after
its
nonattainment
designation
that
fails
to
attain
would
be
subject
to
bump­
up
to
at
least
moderate,
and
would
then
have
to
prepare
a
plan
to
attain
within
3
years
afterward
(
6
years
after
their
nonattainment
designation).
There
is
further
discussion
of
this
situation
as
it
relates
to
the
1­
hour
ozone
standard
in
the
General
Preamble
of
April
16,
1992
(
57
FR
13498,
13506);
this
discussion
may
have
some
applicability
to
the
8­
hour
standard.
Areas
covered
under
subpart
1
are
also
able
to
obtain
up
to
two
1­
year
extensions
of
the
attainment
date
(
see
section
172(
a)(
2)(
C)).
There
is
no
provision
for
bump­
up
in
classification
similar
to
that
under
subpart
2.
However,
if
an
area
fails
to
attain,
section
179
of
the
CAA
provides
that
EPA
publish
a
finding
that
the
area
failed
to
attain.
The
State
then
must
submit
within
1
year
after
that
publication
a
revision
to
the
SIP
that
provides
for
attainment
within
the
time
provided
under
section
179.
Section
179
also
provides
that
the
SIP
revision
must
also
include
any
additional
measures
that
EPA
may
prescribe.
Elsewhere
in
this
notice
of
proposed
rulemaking,
we
also
refer
to
requiring
that
emission
reductions
needed
for
attainment
need
to
be
implemented
by
the
attainment
date.
By
this,
we
mean
that
they
must
be
implemented
by
the
beginning
of
the
ozone
season
prior
to
the
attainment
date.
In
other
words,
if
the
attainment
date
is
April
15,
2010,
the
reductions
would
need
to
be
implemented
by
the
beginning
of
the
ozone
season
in
the
previous
year
(
2009).
Ozone
seasons
are
defined
in
40
CFR
Part
58,
Appendix
D;
for
many
States,
the
ozone
season
starts
March
1
or
April
1.

F.
How
Will
EPA
Address
Long­
Range
Transport
of
Ground­
Level
Ozone
and
Its
Precursors
When
Implementing
the
8­
Hour
Ozone
Standard?

1.
Background
Although
much
progress
has
been
made
over
the
last
decade
to
improve
air
quality,
many
States
contain
areas
that
have
not
yet
attained
the
1­
hour
ozone
standard
and/
or
that
are
violating
the
8­
hour
ozone
standard.
Some
of
these
areas
are
significantly
affected
by
interstate
ozone
transport
from
upwind
areas.
Wind
currents
can
transport
ozone
and
NOX,
a
primary
precursor
to
ozone,
long
distances,
affecting
multiple
States
downwind
of
a
source
area.
EPA
recognizes
that
this
type
of
interstate
transport
can
make
it
difficult
 
or
impossible
 
for
some
States
to
meet
their
attainment
deadlines
solely
by
regulating
sources
within
their
own
boundaries.
The
1990
Amendments
to
the
CAA
reflect
Congress'
awareness
that
ozone
is
a
regional,
and
not
solely
a
local
problem.
Section
110(
a)(
2)(
D)
provides
an
important
tool
for
addressing
the
problem
of
transport.
It
provides
that
a
SIP
must
contain
adequate
provisions
to
prohibit
sources
in
a
State
from
emitting
air
pollutants
in
amounts
that
contribute
significantly
to
nonattainment,
or
interfere
with
maintenance,
in
one
or
more
downwind
States.
Section
110(
k)(
5)
authorizes
EPA
to
find
that
a
SIP
is
substantially
inadequate
to
meet
any
CAA
requirement,
including
the
requirements
of
section
110(
a)(
2)(
d).
If
EPA
makes
such
a
finding,
it
must
require
the
State
to
submit,
within
a
specified
period,
a
SIP
revision
to
correct
the
inadequacy.
The
CAA
further
addresses
interstate
transport
of
pollution
in
section
126,
which
authorizes
any
State
to
petition
EPA
for
a
finding
designed
to
protect
the
State
from
significant
upwind
sources
of
air
pollutants
from
other
States.
In
the
past
several
years,
EPA
has
conducted
two
rulemakings
to
control
interstate
ozone
transport
in
the
eastern
U.
S.
In
1998,
EPA
issued
the
NOX
SIP
Call,
which
requires
certain
States
in
the
eastern
U.
S.
to
meet
statewide
NOX
emissions
budgets
(
63
FR
57356,
October
27,
1998.)
State
programs
to
implement
the
rule
have
focused
on
reducing
emissions
from
electric
power
generators
and
large
industrial
emitters.
In
addition,
in
response
to
petitions
submitted
by
several
northeastern
States
under
section
126,
EPA
issued
a
separate
rule
(
usually
known
as
the
Section
126
Rule)
to
establish
Federal
control
requirements
for
certain
electric
power
generators
and
industrial
boilers
and
turbines
in
upwind
States
(
64
FR
28250,
May
25,
1999
and
65
FR
2674,
January
18,
2000).
For
both
rules,
the
compliance
date
for
achieving
the
required
NOX
reductions
is
May
31,
2004.
These
two
transport
rules
overlap
considerably,
with
the
NOX
SIP
Call
being
the
broader
action
affecting
more
States.
All
the
States
affected
by
the
Section
126
Rule
are
covered
by
the
NOX
SIP
Call.
Therefore,
EPA
coordinated
the
two
rulemakings
and
established
a
mechanism
under
which
the
Section
126
Rule
would
be
withdrawn
for
sources
in
a
State
where
EPA
has
approved
a
SIP
meeting
the
NOX
SIP
Call.
34
In
both
the
NOX
SIP
Call
and
the
Section
126
Rule,
EPA
made
determinations
of
whether
upwind
sources
are
significantly
contributing
to
downwind
nonattainment
problems
under
both
the
1­
hour
and
8­
hour
ozone
standards.
In
the
final
SIP
Call
rule,
EPA
determined
that
the
same
level
of
reductions
was
needed
to
address
transport
for
both
the
1­
hour
and
8­
hour
standards.
35
Thus,
unlike
in
the
past,
States
affected
by
transport
can
develop
their
new
ozone
implementation
plans
with
the
knowledge
that
the
issue
of
interstate
transport
has
already
been
addressed
up
front.
This
approach
will
provide
these
States
with
certainty
that
they
will
benefit
from
substantial
emissions
reductions
from
upwind
sources
and
give
them
significantly
improved
boundary
conditions
that
they
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/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
36
The
CAA's
requirement
for
RACM
in
section
172(
c)(
1)
does
require
the
SIP
to
include
RACM;
EPA
has
noted
in
policy
elsewhere
that
a
measure
is
RACM
if
it
is
technologically
and
economically
feasible
and
if
it
would
advance
the
attainment
date.
Thus,
if
there
are
measures
available
in
the
nonattainment
area
that
would
advance
the
attainment
date
 
even
if
attainment
is
likely
at
a
later
date
due
to
upwind
emissions
reductions
that
occur
later
 
then
the
CAA
requires
such
measures
to
be
in
the
SIP.
37
Additional
Options
Considered
for
``
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard.''
U.
S.
Environmental
Protection
Agency,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
NC.
March
2003.
can
rely
on
as
they
work
to
identify
additional
emission
reductions
they
will
need
to
include
in
a
local
area's
attainment
SIP.

2.
EPA's
Anticipated
Approach
In
providing
their
views
to
EPA
on
the
8­
hour
ozone
implementation
rule,
the
Ozone
Transport
Commission
(
OTC)
and
other
State
commenters
have
argued
that
the
NOX
SIP
Call
and
the
Section
126
Rule
are
not
fully
adequate.
In
their
view,
additional
steps
are
needed
to
reduce
interstate
transport
of
ozone
and
NOX
to
assist
downwind
areas
in
meeting
the
8­
hour
ozone
standard.
In
particular,
these
commenters
have
expressed
continued
concern
about
upwind
emissions
from
power
plants
and
other
major
sources
and
transported
pollution
from
upwind
cities.
As
described
above,
EPA
has
already
taken
two
actions
to
address
the
issue
of
interstate
transport
for
purposes
of
the
8­
hour
standard.
The
NOX
SIP
Call
and
the
Section
126
Rule
require
that
States
within
the
SIP
Call
make
significant
emissions
reductions
from
power
plants
and
other
major
sources
that
contribute
to
ozone
nonattainment
in
downwind
areas.
For
both
rules,
the
compliance
date
for
achieving
the
required
emissions
reductions
is
May
31,
2004.
EPA
intends
to
investigate
the
extent,
severity
and
sources
of
interstate
ozone
transport
that
will
exist
after
the
NOX
SIP
Call
and
the
Section
126
Rule
are
implemented
in
2004.
The
Agency
believes
that
it
may
be
appropriate
to
consider
the
need
to
reduce
interstate
transport
that
contributes
to
unhealthy
levels
of
PM2.5
in
downwind
nonattainment
areas
when
looking
at
any
additional
requirements
for
reducing
the
transport
of
ozone
or
ozone
precursors.
As
noted
above,
the
President
recently
proposed
the
CSA
that,
among
other
things,
would
achieve
significant
reductions
 
beyond
those
required
under
the
SIP
Call
and
the
Section
126
Rule
 
in
the
regional
transport
of
ozone
and
ozone
precursors.
Detailed
modeling
by
EPA
for
the
year
2010
shows
that
the
2008
Phase
I
NOX
limits
in
the
CSA
would
reduce
maximum
8­
hour
ozone
levels
in
many
parts
of
the
eastern
U.
S.,
including
a
number
of
areas
likely
to
be
designated
nonattainment
for
the
8­
hour
standard.
The
modeling
results
are
available
on
the
Web
at
http://
www.
epa.
gov/
clearskies.
The
Clear
Skies
reductions
would
enable
several
additional
areas
to
meet
the
8­
hour
standard
without
imposing
any
additional
local
controls.
A
number
of
other
areas
would
find
it
easier
to
meet
the
8­
hour
standard
because
of
the
additional
reductions
in
power
plant
emissions
that
would
be
required
under
Clear
Skies.
However,
the
Agency
has
not
made
a
determination
that
such
reductions
are
warranted
under
the
transport
provisions
of
the
CAA.
As
noted
above,
in
order
to
evaluate
this
issue,
the
Agency
intends
to
investigate
the
extent,
severity
and
sources
of
interstate
ozone
transport
that
will
exist
after
the
existing
transport
rules
are
implemented
in
2004.
The
Agency
welcomes
input
from
States
and
other
interested
parties
as
to
how
to
deal
with
ozone
transport
effectively
and
equitably
and
on
the
technical
and
other
issues
that
will
have
to
be
confronted
as
part
of
an
evaluation
of
what
further
steps
should
be
taken
beyond
the
existing
NOX
SIP
Call
to
deal
with
ozone
transport.

3.
Other
Concerns
About
Transport
EPA
realizes
that,
whatever
measures
may
be
taken
in
the
future,
attainment
demonstrations
for
some
areas
would
continue
to
be
complicated
by
the
effects
of
ozone
and
transport
from
upwind
sources
and
other
nonattainment
areas
in
cases
where
upwind
source
controls
are
scheduled
for
implementation
after
the
downwind
area's
attainment
date
(
e.
g.,
2007
attainment
date).
Downwind
areas
could
be
in
one
of
two
situations.
In
the
first
situation,
an
area
might
be
receiving
such
high
levels
of
transported
ozone
or
ozone
precursors
that
even
if
it
totally
eliminated
its
own
emissions,
the
incoming
ozone
and
precursors
would
be
sufficient
to
continue
to
cause
violations
of
the
standard
beyond
the
applicable
attainment
date.
In
the
second
situation,
the
area
might
be
able
to
achieve
additional
local
reductions
sufficient
to
demonstrate
attainment.
In
this
second
case,
the
question
arises
as
to
whether
it
is
equitable
to
require
those
reductions
or
to
allow
more
time
for
the
reductions
in
the
``
upwind''
area
to
take
place.
36
EPA
solicits
comment
on
how
to
address
this
issue.
EPA
believes
that
a
subpart
1
area
could
be
granted
a
later
attainment
date
if
warranted
considering
transport.
For
areas
classified
under
subpart
2,
the
statute
provides
no
express
relief
for
these
situations.
The
area
does
have
the
option
of
requesting
to
be
classified
to
the
next
higher
classification.
Thus,
where
the
demonstration
of
attainment
is
complicated
by
transport
between
two
areas
of
different
classifications,
the
State
is
still
responsible
for
developing
and
submitting
demonstrations
which
show
that
the
standard
will
be
attained
by
the
applicable
date.
In
other
words,
the
State
must
provide
for
sufficient
emissions
reductions
on
a
schedule
that
will
ensure
attainment
in
its
area.
One
approach
would
be
for
States
to
work
together
in
a
collaborative
process
to
perform
the
necessary
analyses
to
identify
appropriate
controls
that
provide
for
attainment
throughout
the
multi­
State
area.
EPA
believes
that
the
wording
in
sections
172(
c)(
1)
and
182(
b)(
1)(
A)(
i)
requires
the
State
to
develop
a
plan
providing
such
emissions
reductions.
States
working
together
in
a
collaborative
process
could
perform
a
comprehensive
assessment
of
the
impacts
of
all
control
measures
being
implemented
in
both
the
local
and
upwind
areas.
The
analysis
may
show
the
extent
to
which
the
downwind
area
is
dependent
on
upwind
strategies
while
fully
meeting
its
own
requirements
associated
with
its
classification.
Upwind
areas
may
provide
a
comprehensive
assessment
of
the
impacts
of
all
control
measures
being
implemented
on
the
downwind
areas.

4.
Other
Options
Considered
We
considered
a
number
of
other
options
and
approaches
for
addressing
transport.
The
other
options
that
were
considered
but
are
not
being
proposed
are
described
in
a
separate
document
available
in
the
docket.
37
G.
How
Will
EPA
Address
Transport
of
Ground­
level
Ozone
and
its
Precursors
for
Rural
Nonattainment
Areas,
Multi­
State
Nonattainment
Areas,
Areas
Affected
by
Intrastate
Transport,
and
International
Transport?

1.
Rural
Transport
Nonattainment
Areas
Section
182(
h)
recognizes
that
the
ozone
problem
in
a
rural
transport
area
is
almost
entirely
attributable
to
emissions
from
upwind
areas.
Therefore,
the
only
requirements
for
the
rural
area
are
the
minimal
requirements
specified
for
areas
expected
to
attain
within
3
years
of
designation,
the
assumption
being
that
the
controls
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38
The
statute
contains
a
typographical
error
referring
to
section
181(
a)(
2)
instead
of
181(
b)(
2).
39
As
noted
elsewhere
in
this
notice,
the
Consolidated
Emissions
Reporting
Rule
(
67
FR
39602,
June
10,
2002)
has
established
basic
emission
inventory
requirements
for
all
areas
of
the
country
and
generally
requires
periodic
inventories
of
emissions
that
actually
occur
in
the
year
of
the
inventory
in
the
U.
S.
area
of
interest.
This
would
include
emissions
from
foreign­
registered
vehicles.
the
upwind
area
will
solve
the
remaining
nonattainment
problem
in
the
rural
transport
area
as
well.
In
these
cases,
the
timing
for
attainment
will
depend
on
the
schedule
for
adoption
and
implementation
of
control
measures
in
the
upwind
areas.

2.
Multi­
State
Nonattainment
Areas
Section
182(
j)(
2)
for
multi­
State
nonattainment
areas
(
i.
e.,
portions
of
the
nonattainment
area
lie
in
two
or
more
States)
recognizes
that
one
State
may
not
be
able
to
demonstrate
attainment
for
the
portion
of
the
nonattainment
area
within
its
borders
if
other
States
containing
the
remaining
portions
of
the
nonattainment
area
do
not
adopt
and
submit
the
necessary
attainment
plan
for
their
portions
of
the
nonattainment
area.
In
such
cases,
even
though
the
area
as
a
whole
would
not
be
able
to
demonstrate
attainment,
the
sanction
provisions
of
section
179
shall
not
apply
in
the
portion
of
the
nonattainment
area
located
in
a
State
that
submitted
an
attainment
plan.
Section
182(
j)
defines
a
multi­
State
ozone
nonattainment
area
as
an
ozone
nonattainment
area,
portions
of
which
lie
in
two
or
more
States.
Section
182(
j)(
1)(
A)
and
(
B)
set
certain
requirements
for
such
areas.
First,
each
State
in
which
a
multi­
State
ozone
nonattainment
area
lies,
must
take
all
reasonable
steps
to
coordinate
the
implementation
of
the
required
revisions
to
SIPs
for
the
given
nonattainment
area
[
section
182(
j)(
1)(
A)].
Next,
section
182(
j)(
1)(
B)
requires
the
States
to
use
photochemical
grid
modeling
or
any
other
equally
effective
analytical
method
approved
by
EPA
for
demonstrating
attainment.
EPA
is
prevented
by
section
182(
j)
from
approving
any
SIP
revision
submitted
under
that
section
if
a
State
has
failed
to
meet
the
above
requirements.
Pursuant
to
section
182(
j)(
1)(
A),
States
that
include
portions
of
a
multi­
State
ozone
nonattainment
area
are
required
to
develop
a
joint
work
plan
as
evidence
of
early
cooperation
and
integration.
The
work
plan
should
include
a
schedule
for
developing
the
emissions
inventories,
and
the
attainment
demonstration
for
the
entire
multi­
State
area.
Each
State
within
a
multi­
State
ozone
nonattainment
area
is
responsible
for
meeting
all
the
requirements
relevant
to
the
given
area.
Care
should
be
taken
to
coordinate
strategies
and
assumptions
in
a
modeled
area
with
those
in
other,
nearby
modeled
areas
in
order
to
ensure
that
consistent,
plausible
strategies
are
developed.
3.
Intrastate
Transport
Several
State
air
agency
representatives
have
voiced
a
concern
about
intrastate
transport
of
ozone
and
precursor
emissions
and
have
asked
EPA
to
address
this
concern.
One
State,
for
instance,
notes
that
it
has
upwind
areas
that
are
affecting
downwind
areas
and
in
some
cases
may
be
preventing
a
downwind
area
from
attaining
the
standard
by
its
statutory
date.
We
believe
that
the
CAA
requires
individual
States,
as
an
initial
matter,
to
deal
with
intrastate
transport.
We
realize
that
some
States
are
structured
with
semi­
autonomous
local
air
agencies
that
are
empowered
to
address
major
elements
of
the
SIP
process,
including
preparation
of
the
attainment
demonstration.
In
those
situations,
the
CAA
provides
that
the
State
retain
sufficient
backstop
authority
to
ensure
all
areas
within
its
borders
reach
attainment,
(
110(
a)(
2)(
E)).
A
State
could,
of
course,
recommend
designation
of
nonattainment
areas
that
are
large
enough
to
encompass
upwind
and
downwind
areas
of
the
State
and
require
that
the
individual
jurisdictions
work
together
on
an
attainment
plan
that
accounts
for
transport
and
results
in
attainment
by
the
attainment
date
for
the
entire
nonattainment
area.
Or
a
State
could
require
the
individual
agencies
to
work
together
in
the
same
manner
as
multi­
State
organizations.
In
this
case,
there
would
be
separate
nonattainment
areas
with
independent
agencies
expected
to
work
together
to
address
transport
among
the
nonattainment
areas.
To
facilitate
this
process,
the
State
could
require
the
agencies
to
sign
a
memorandum
of
agreement
which
describes
the
technical
and
administrative
approach
for
performing
the
modeling
analysis
and
identifying
the
appropriate
controls
measures.
Upon
a
State's
request,
we
would
be
willing
to
provide
support
for
these
activities.
We
also
solicit
comments
on
other
ways
of
addressing
intrastate
transport
within
the
context
of
the
CAA
provisions.

4.
International
Transport
a.
International
transboundary
transport.
International
transboundary
transport
of
ozone
and
ozone
precursors
can
contribute
to
exceedances
of
the
NAAQS.
It
is
likely
that
the
international
transport
of
air
pollutants
will
affect
the
ability
of
some
areas
to
attain
and
maintain
the
8­
hour
ozone
NAAQS.
As
States
and
EPA
implement
control
strategies
and
national
emission
reduction
programs,
the
impact
of
high
background
levels
emanating
from
outside
the
U.
S.
may
play
a
larger
role
in
future
attainment
demonstrations.
We
have
developed
an
information
document
on
``
International
Transboundary
Influences
and
Meeting
the
NAAQS,''
which
is
located
in
the
Docket
to
this
proposed
rulemaking.
This
document
provides
information
on
efforts
with
Canada
and
Mexico
to
address
transboundary
air
pollution
as
well
as
additional
information
for
intercontinental
modeling
work
currently
underway
within
EPA.
b.
Section
179B
and
the
SIP
approval
process.
Section
179B
of
the
CAA
(
International
Border
Areas),
applies
to
nonattainment
areas
that
are
affected
by
emissions
emanating
from
outside
the
United
States.
This
section
requires
EPA
to
approve
a
SIP
for
a
nonattainment
area
if:
It
meets
all
of
the
requirements
applicable
under
the
CAA,
other
than
a
requirement
that
the
area
demonstrate
attainment
and
maintenance
of
the
ozone
NAAQS
by
the
applicable
attainment
date;
and
the
affected
State
establishes
to
EPA's
satisfaction
that
the
SIP
would
be
adequate
to
attain
and
maintain
the
ozone
NAAQS
by
the
applicable
attainment
date
but
for
emissions
emanating
from
outside
the
United
States.
Further,
any
State
that
establishes
to
the
satisfaction
of
EPA
that
the
State
would
have
attained
the
8­
hour
ozone
NAAQS,
but
for
emissions
emanating
from
outside
the
U.
S.,
would
not
be
subject
to
the
attainment
date
extension
provided
in
section
181(
a)(
5),
the
fee
provisions
of
section
185,
and
the
bump­
up
provisions
for
failure
to
attain
for
8­
hour
ozone
NAAQS
specified
in
section
181(
b)(
2).
38
In
demonstrating
that
an
area
could
attain
the
8­
hour
ozone
NAAQS
but
for
emissions
emanating
from
outside
the
U.
S.,
approved
EPA
modeling
techniques
should
be
used
to
the
best
extent
practicable.
An
emission
inventory
incorporating
vehicle
emissions
released
in
the
U.
S.
by
foreign
vehicles,
i.
e.,
those
vehicles
registered
in
the
adjacent
foreign
country,
must
be
completed
by
the
States
before
modeling
the
U.
S.
side
only
and
attempting
to
demonstrate
attainment.
39
We
recognize
that
adequate
data
may
not
be
available
for
mobile
and
stationary
sources
outside
the
United
States.
Therefore,
modeling,
per
EPA's
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modeling
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2003
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Proposed
Rules
40
Use
of
models
that
are
capable
of
simulating
transport
and
formation
of
multiple
pollutants
simultaneously.
For
example,
for
ozone
and
fine
particles,
it
is
critical
that
the
model
simulate
photochemistry,
which
includes
interactions
among
the
pollutants
and
their
precursors.
guidance''
described
elsewhere
in
the
section
on
attainment
demonstrations,
may
not
be
possible
in
all
cases.
Because
very
few
areas
are
likely
to
be
affected
by
this
provision,
EPA
will
determine
on
a
case­
by­
case
basis
whether
the
State
has
satisfactorily
made
the
required
demonstration.
The
State
is
encouraged
to
consult
with
EPA
Regional
Office
in
developing
any
alternate
demonstration
methods.
Methods
that
the
State
may
want
to
consider
include:
Using
ozone
episodes
that
do
not
involve
international
transport
of
emissions
for
modeling
(
see
guidance
document
entitled
``
Criteria
for
Assessing
Role
of
Transported
Ozone/
Precursors
in
Ozone
Nonattainment
Areas''),
running
the
model
with
boundary
conditions
that
reflect
general
background
concentrations
on
the
U.
S.
side,
analyzing
monitoring
data
if
a
dense
network
has
been
established,
and
using
receptor
modeling.
States
should
confer
with
the
appropriate
EPA
Regional
Office
to
establish
appropriate
technical
requirements
for
these
analyses.

5.
Additional
Ways
of
Addressing
Transport
Additional
approaches
to
address
transport
are
discussed
in
the
section
on
classifications.

6.
State­
Tribal
Transport
States
have
an
obligation
to
notify
Tribes
as
well
as
other
States
in
advance
of
any
public
hearing(
s)
on
their
State
plans
that
will
significantly
impact
such
jurisdictions.
Under
40
CFR
51.102(
6)(
i),
States
must
notify
the
affected
States
of
hearings
on
their
SIPs;
this
requirement
extends
to
Tribes
under
301(
d)
of
the
CAA
and
the
TAR.
(
40
CFR
Part
49).
Therefore,
affected
Tribes
that
have
achieved
``
treatment
as
States''
status
must
be
informed
of
the
contents
of
such
plans
and
the
extent
of
documentation
to
support
the
plans.
For
example,
in
the
case
where
the
State
models
projected
emissions
and
air
quality
under
the
SIP,
the
Tribes
should
be
made
aware
of
these
modeling
analyses.
Tribes
may
wish
to
determine
if
the
Tribal
area
has
been
affected
by
upwind
pollution
and
whether
projected
emissions
from
the
Tribal
area
have
been
considered
in
the
modeling
analyses.
Generally,
Tribal
lands
have
few
major
sources,
but
in
many
cases,
air
quality
in
Indian
country
is
affected
by
the
transport
 
both
long
range
and
shorter
distance
transport
 
of
pollutants.
In
many
cases,
Tribal
nonattainment
problems
caused
by
upwind
sources
will
not
be
solved
by
long­
range
transport
policies,
as
the
Tribes'
geographic
areas
are
small.
Tribes
are
sovereign
entities,
and
not
political
subdivisions
of
States.
Strategies
used
for
intrastate
transport
are
not
always
available.
Most
of
the
strategies
and
policies
used
by
States
in
dealing
with
short­
range
transport
are
not
available
to
Tribes,
e.
g.,
requiring
local
governments
to
work
together
and
expanding
the
area
to
include
the
upwind
sources.
Unlike
Tribes,
States
can
generally
require
local
governments
to
work
together,
or
make
the
nonattainment
area
big
enough
to
cover
contributing
and
affected
areas.
We
believe
that
it
is
also
unfair
to
Tribes
to
require
disproportionate
local
regulatory
efforts
to
compensate
for
upwind
emissions.
In
many
cases,
attainment
could
not
be
reached
even
if
emissions
from
the
Tribe
were
zero.
To
address
these
concerns,
we
propose
to
take
comment
on
the
following:
EPA
will
review
SIPs
for
their
effectiveness
in
preventing
significant
contributions
to
nonattainment
in
downwind
Tribal
areas
with
the
same
scrutiny
it
applies
to
reviewing
SIPs
with
respect
to
impacts
on
downwind
States.
Where
a
Tribe
has
``
treatment
in
the
same
manner
as
States,''
EPA
will
support
the
Tribe
in
reviewing
upwind
area
SIPs
during
the
State
public
comment
period.

H.
How
Will
EPA
Address
Requirements
for
Modeling
and
Attainment
Demonstration
SIPs
When
Implementing
the
8­
Hour
Ozone
Standard?

An
attainment
demonstration
SIP
consists
of
(
1)
technical
analyses
to
locate
and
identify
sources
of
emissions
that
are
causing
violations
of
the
8­
hour
NAAQS
within
nonattainment
areas
(
i.
e.,
analyses
related
to
the
emissions
inventory
required
for
the
nonattainment
area),
(
2)
adopted
measures
with
schedules
for
implementation
and
other
means
and
techniques
necessary
and
appropriate
for
attainment,
(
3)
commitments,
in
some
cases,
to
perform
a
mid­
course
review,
and
(
4)
contingency
measures
required
under
section
172(
c)(
9)
of
the
CAA
that
can
be
implemented
without
further
action
by
the
State
or
the
Administrator
to
cover
emissions
shortfalls
in
RFP
plans
and
failures
to
attain.
We
are
soliciting
public
comment
on
the
following
guidance.
Associated
with
the
attainment
demonstration
also
are
the
RFP/
ROP
plans
and
the
SIP
submission
concerning
RACM,
for
which
we
are
proposing
rules
elsewhere
in
this
proposal.
1.
Multi­
Pollutant
Assessments
(
One­
Atmosphere
Modeling
40)

Many
factors
affecting
formation
and
transport
of
secondary
fine
particles
(
i.
e.,
PM2.5
components)
are
the
same
as
those
affecting
formation
and
transport
of
ozone.
For
example,
similarities
exist
in
sources
of
precursors
for
ozone
and
secondary
fine
particles.
Sources
of
NOX
may
lead
to
formation
of
ozone
as
well
as
nitrates
which
contribute
to
the
formation
of
secondary
fine
particles.
Sources
of
VOC
may
contribute
to
ozone
formation
and
may
also
be
sources
or
precursors
for
organic
particles.
Presence
of
ozone
itself
may
be
an
important
factor
affecting
secondary
particle
formation.
As
ozone
builds
up,
so
do
hydroxyl
(
OH)
radicals
as
a
result
of
equilibrium
reactions
between
ozone,
water
and
OH
in
the
presence
of
sunlight.
Hydroxyl
radicals
are
instrumental
in
oxidizing
gas
phase
SO2
to
sulfuric
acid,
which
is
eventually
absorbed
by
liquid
aerosol
and
converted
to
particulate
sulfate
in
the
presence
of
ammonia.
Therefore,
strategies
to
reduce
ozone
can
also
affect
formation
of
secondary
fine
particles
which
contribute
to
visibility
impairment.
Therefore,
models
and
data
analysis
intended
to
address
visibility
impairment
need
to
be
capable
of
simulating
transport
and
formation
of
both
secondary
fine
particles
and
ozone.
At
a
minimum,
modeling
should
include
previously
implemented
or
planned
measures
to
reduce
ozone,
secondary
fine
particles,
and
visibility
impairment.
An
integrated
assessment
of
the
impact
controls
have
on
ozone,
secondary
fine
particles,
and
regional
haze
provides
safeguards
to
ensure
ozone
controls
will
not
preclude
optimal
controls
for
secondary
fine
particles
and
visibility
impairment.
The
concept
of
modeling
control
impacts
on
all
three
programs
is
further
strengthened
by
the
alignment
of
the
implementation
process
for
ozone
and
secondary
fine
particles.
As
the
dates
for
attainment
demonstration
SIPs
begin
to
coincide,
the
practicality
of
using
common
data
bases
and
analysis
tools
for
all
three
programs
becomes
more
viable
and
encourages
use
of
shared
resources.
States
that
undertake
multi­
pollutant
assessments
as
part
of
their
attainment
demonstration
would
assess
the
impact
of
their
ozone
attainment
strategies
on
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/
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2,
2003
/
Proposed
Rules
41
U.
S.
EPA,
(
May
1999),
Draft
Guidance
on
the
Use
of
Models
and
Other
Analyses
in
Attainment
Demonstrations
for
the
8­
Hour
Ozone
NAAQS,
EPA
 
454/
R
 
99
 
004,
http://
www.
epa.
gov/
ttn/
scram,
(
Modeling
Guidance,
File
name:
DRAFT8HR).
secondary
fine
particles
and
visibility
or
perform
a
consistent
analysis
for
ozone,
secondary
fine
particles,
and
visibility.
To
facilitate
such
an
effort,
we
would
encourage
States
to
work
closely
with
established
regional
haze
Regional
Planning
Organizations
(
RPOs)
and
the
jurisdictions
responsible
for
developing
PM2.5
implementation
plans.
Though
the
CSA,
if
enacted
as
introduced,
would
provide
substantial
improvement
in
air
quality
for
ozone,
PM2.5
and
visibility,
States
are
encouraged
to
follow
EPA's
lead
and
perform
similar
multi­
pollutant
assessments
as
part
of
their
ozone
attainment
demonstrations,
considering
the
programs
that
are
in
place
at
the
time
of
the
assessment.
Multi­
pollutant
assessments
are
discussed
elsewhere
in
this
proposed
rulemaking.

2.
Areas
With
Early
Attainment
Dates
Under
section
182(
a),
marginal
areas,
which
have
an
attainment
date
of
only
3
years
after
designation,
are
not
required
to
perform
a
complex
modeling
analysis
using
photochemical
grid
modeling.
Areas
covered
under
either
subpart
1
or
2
with
ozone
concentrations
close
to
the
level
of
the
NAAQS
(
e.
g.,
within
0.005
ppm),
will
most
likely
come
into
attainment
within
3
years
after
designation
as
nonattainment
without
any
additional
local
planning
as
a
result
of
national
and/
or
regional
emission
control
measures
that
are
scheduled
to
occur.
We
have
good
reason
to
believe
these
areas
will
come
into
attainment.
Regional
scale
modeling
for
national
rules,
such
as
the
NOX
SIP
Call
and
Tier
II
motor
vehicle
tailpipe
standards,
demonstrates
major
ozone
benefits
for
the
3­
year
period
of
2004
 
2006.
This
period
would
be
relevant
for
demonstrating
attainment
within
3
years
of
designation,
assuming
designations
occur
in
early
2004.
Many
similar
areas
classified
as
marginal
for
the
1­
hour
ozone
NAAQS
in
1990
came
into
attainment
within
the
initial
3­
year
period.
As
an
additional
safeguard,
if
attainment
demonstration
modeling
is
performed
using
multi­
State
geographic
areas,
most
of
these
areas
with
early
attainment
dates
will
be
included
in
the
modeling
analyses
conducted
by
areas
with
later
attainment
dates.
This
will
provide
an
opportunity
for
review
of
the
impact
control
programs
will
have
on
areas
with
early
attainment
dates.
Experience
with
the
1­
hour
ozone
attainment
demonstrations
has
shown
that
3
years
is
not
enough
time
to
perform
the
detailed
photochemical
grid
modeling
needed
to
develop
the
demonstration
and
complete
the
regulatory
process
needed
to
adopt
and
implement
control
measures
sufficiently
before
the
attainment
date.
It
would
not
be
reasonable
to
require
these
areas
to
expend
the
amount
of
resources
needed
to
perform
a
complex
modeling
analysis
given
how
close
these
areas
are
to
meeting
the
level
of
the
NAAQS.
Therefore,
we
propose
that
no
additional
modeled
attainment
demonstration
would
be
required
for
areas
with
air
quality
observations
close
to
the
level
of
the
standard
as
described
above
and
where
regional
or
national
modeling
exists
and
is
appropriate
for
use
in
the
area
demonstrates
that
an
area
will
attain
the
8­
hour
standard
within
3
years
after
designation.
This
proposal
would
apply
for
areas
covered
under
either
subpart
1
or
subpart
2.
Areas
with
early
attainment
dates
with
air
quality
observations
that
are
not
close
to
the
level
of
the
NAAQS
(
as
described
above)
and
regional
scale
modeling
for
national
rules
that
demonstrates
they
will
not
be
in
attainment
within
3
years
of
designation
should
consider
requesting
reclassification
to
the
next
higher
classification.
This
reclassification
would
provide
additional
time
for
developing
an
attainment
demonstration
SIP
and
adopting
and
implementing
the
control
measures
needed.

3.
Areas
With
Later
Attainment
Dates
Areas
with
later
attainment
dates
(
more
than
3
years
after
designation),
regardless
of
whether
they
are
covered
under
subpart
1
or
subpart
2,
would
be
required
to
do
an
attainment
demonstration
SIP.
Local,
regional
and
national
modeling
developed
to
support
Federal
or
local
controls
may
be
used
provided
the
modeling
is
consistent
with
EPA's
modeling
guidance,
described
below.
Several
States
have
invested
considerable
time
and
resources
in
regional
8­
hour
ozone
modeling
projects
following
this
guidance.
Since
exceedances
of
the
8­
hour
ozone
NAAQS
are
more
pervasive
than
1­
hour
ozone
exceedances,
we
encourage
multi­
State
applications
of
the
modeling
guidance.
States
should
work
together
and
leverage
off
work
under
development
and
resources
spent
on
these
projects.
This
will
be
most
beneficial
in
developing
attainment
demonstrations
to
achieve
attainment.

4.
Modeling
Guidance
Section
182
(
b)(
1)(
A)
requires
ozone
nonattainment
areas
to
develop
an
attainment
demonstration
which
provides
for
reductions
in
VOC
and
NOX
emissions
``
as
necessary
to
attain
the
national
primary
ambient
air
quality
standard
for
ozone.''
Section
172(
c),
requires
areas
covered
under
subpart
1
to
demonstrate
attainment.
As
noted
above,
if
a
subpart
1
area
has
an
attainment
date
beyond
3
years
of
designation,
we
would
require
the
State
to
develop
an
attainment
demonstration.
Section
182(
c)(
2)(
A)
provides
that
for
serious
and
higher­
classified
areas
the
``
attainment
demonstration
must
be
based
on
photochemical
grid
modeling
or
any
other
analytical
method
determined
by
the
Administrator,
in
the
Administrator's
discretion,
to
be
at
least
as
effective.''
A
photochemical
grid
model
should
meet
several
general
criteria
for
it
to
be
a
candidate
for
consideration
in
an
attainment
demonstration.
Note
that,
unlike
in
previous
guidance
(
U.
S.
EPA,
1991),
we
are
not
recommending
a
specific
model
for
use
in
the
attainment
demonstration
for
the
8­
hour
NAAQS
for
ozone.
At
present,
there
is
no
single
model
which
has
been
extensively
tested
and
shown
to
be
clearly
superior
or
easier
to
use
than
other
available
models.
General
criteria
for
attainment
demonstrations
are
contained
in
40
CFR
part
51,
appendix
W
(
i.
e.,
``
EPA's
Guideline
on
Air
Quality
Models'',
68
FR
18440,
April
15,
2003).
Appendix
W
refers
to
EPA's
May
1999
draft
``
Guidance
on
the
Use
of
Models
and
Other
Analyses
in
Attainment
Demonstrations
for
the
8­
Hour
Ozone
NAAQS''
for
a
set
of
general
requirements
that
an
air
quality
model
should
meet
to
qualify
for
use
in
an
attainment
demonstration
for
the
8­
hour
ozone
NAAQS.
41
Thus,
States
may
choose
from
several
alternatives.
These
include
having
received
a
scientific
peer
review,
being
applicable
to
the
specific
application
on
a
theoretical
basis,
and
having
an
adequate
database
to
support
its
application.
It
is
also
important
that
past
applications
indicate
model
estimates
are
not
likely
to
be
biased
low
and
that
the
model
is
applied
consistently
with
a
protocol
on
methods
and
procedures.
We
plan
to
finalize
this
guidance
at
the
same
time
the
final
implementation
rule
is
published.
Comments
on
this
document
are
solicited
as
part
of
this
proposal.
The
guidance
describes
how
to
apply
air
quality
models.
The
output
from
such
a
model
is
used
to
support
an
attainment
demonstration.
The
recommended
procedure
for
applying
a
model
includes
developing
a
conceptual
description
of
the
problem
to
be
addressed;
developing
a
modeling/
analysis
protocol;
selecting
an
appropriate
model
to
support
the
demonstration;
selecting
appropriate
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/
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2,
2003
/
Proposed
Rules
42
Memorandum
of
March
28,
2002,
from
Lydia
N.
Wegman
and
J.
David
Mobley,
re:
``
Mid­
Course
Review
Guidance
for
the
1­
Hour
Ozone
Nonattainment
Areas
that
Rely
on
Weight­
of­
Evidence
for
Attainment
Demonstration.''
Located
at
URL:
http://
www.
epa.
gov/
scram001/
guidance/
guide/
policymem33d.
pdf.
meteorological
episodes
or
time
periods
to
model;
choosing
an
appropriate
area
to
model
with
appropriate
horizontal/
vertical
resolution;
generating
meteorological
and
air
quality
inputs
to
the
air
quality
model;
generating
emissions
inputs
to
the
air
quality
model;
evaluating
performance
of
the
air
quality
model;
and
performing
diagnostic
tests.
After
these
steps
are
completed,
the
model
is
used
to
simulate
effects
of
candidate
control
strategies.
The
guidance
recommends
procedures
for
estimating
if
a
control
strategy
to
reduce
emissions
of
ozone
precursors
will
lead
to
attainment
of
the
8­
hour
NAAQS
for
ozone.
It
explains
what
is
meant
by
a
modeled
attainment
demonstration,
a
modeled
attainment
test,
a
screening
test,
and
a
weight
of
evidence
determination.
It
also
identifies
additional
data
which,
if
available,
should
enhance
the
credibility
of
model
results
and
results
of
other
analyses
used
in
a
weight
of
evidence
determination.
States
should
work
closely
with
the
appropriate
U.
S.
EPA
Regional
Office(
s)
in
executing
each
step.
We
are
planning
to
make
substantial
changes
to
the
draft
version
of
this
document.
Changes
include:
(
1)
The
future
year
of
emission
estimates
to
model,
(
2)
the
recommended
length
of
time
period
to
model
(
i.
e.,
up
to
full
ozone
season),
and
(
3)
the
use
of
spatial
fields
of
ambient
concentrations
as
part
of
the
``
modeled
attainment
test.''
We
welcome
public
comments
on
the
guidance
at
any
time
and
will
consider
those
comments
in
any
future
revision
of
the
document.
Comments
submitted
on
the
modeling
guidance
document
should
be
identified
as
such
and
will
not
be
docketed
as
part
of
this
rulemaking,
nor
will
a
comment/
response
summary
of
these
comments
be
a
part
of
the
final
8­
hour
ozone
implementation
rule
since
they
will
not
affect
the
rule
itself.
The
final
version
of
the
guidance
is
scheduled
for
release
by
December
2003
and
will
be
posted
on
EPA's
Web
site
(
http://
www.
epa.
gov/
ttn/
scram/).

5.
Mid­
Course
Review
(
MCR)
A
MCR
provides
an
opportunity
to
assess
whether
a
nonattainment
area
is
or
is
not
making
sufficient
progress
toward
attainment
of
the
8­
hour
ozone
standard,
as
predicted
in
its
attainment
demonstration.
The
review
utilizes
the
most
recent
monitoring
and
other
data
to
assess
whether
the
control
measures
relied
on
in
a
SIP's
attainment
demonstration
have
resulted
in
adequate
improvement
in
air
quality.
We
believe
that
a
commitment
to
perform
a
MCR
is
a
critical
element
in
an
attainment
demonstration
that
employs
a
long­
term
projection
period
and
relies
on
weight
of
evidence.
Because
of
the
uncertainty
in
long­
term
projections,
we
believe
such
attainment
demonstrations
need
to
contain
provisions
for
periodic
review
of
monitoring,
emissions,
and
modeling
data
to
assess
the
extent
to
which
refinements
to
emission
control
measures
are
needed.
A
number
of
States
have
participated
in
a
consultative
process
with
EPA,
which
resulted
in
the
development
of
the
1­
hour
MCR
guidance.
42
We
are
updating
the
1­
hour
MCR
policy
and
technical
guidance
to
include
8­
hour
metrics
and
are
soliciting
comment
on
appropriate
revisions;
final
MCR
guidance
incorporating
8­
hour
metrics
will
be
available
at
the
time
we
issue
our
final
implementation
rule.
States
should
consult
with
EPA
prior
to
using
a
methodology
other
than
the
one
developed
through
the
public
consultative
process.
The
procedure
for
performing
a
MCR
contains
three
basic
steps:
(
1)
Perform
an
administrative
test
(
e.
g.,
demonstrate
whether
the
appropriate
emission
limits
were
adopted
and
implemented);
(
2)
analyze
available
air
quality,
meteorology,
emissions
and
modeling
data
and
document
findings;
and
(
3)
document
conclusions
regarding
whether
progress
toward
attainment
is
being
made
using
a
weight
of
evidence
determination
(
which
may
or
may
not
include
new
modeling
analyses).
EPA
does
not
request
that
States
commit
in
advance
to
adopt
new
control
measures
as
a
result
of
the
MCR
process.
Based
on
the
MCR,
if
EPA
determines
sufficient
progress
has
not
been
made,
EPA
would
determine
whether
additional
emissions
reductions
are
necessary
from
the
State
or
States
in
which
the
nonattainment
area
is
located
or
upwind
States,
or
both.
EPA
would
then
require
the
appropriate
State
or
States
to
adopt
and
submit
the
new
measures
within
a
specified
period.
We
anticipate
that
these
findings
would
be
made
as
calls
for
SIP
revisions
under
section
110(
k)(
5)
and,
therefore,
the
period
for
submission
of
the
measures
would
be
no
longer
than
18
months
after
the
EPA
finding.
Thus,
States
should
complete
the
MCR
3
or
more
years
before
the
applicable
attainment
date
to
ensure
that
any
additional
controls
that
may
be
needed
can
be
adopted
in
sufficient
time
to
reduce
emissions
by
the
start
of
the
ozone
season
in
the
attainment
year.

I.
What
Requirements
for
RFP
Should
Apply
Under
the
8­
Hour
Ozone
Standard?

1.
Background
Section
172(
c)(
2),
which
is
located
in
subpart
1
of
part
D
of
title
I,
requires
State
plans
for
nonattainment
areas
to
require
RFP.
Section
171(
1)
of
the
CAA
defines
RFP
to
mean
``
such
annual
incremental
reductions
in
emissions
of
the
relevant
air
pollutant
as
are
required
by
this
part
[
part
D
of
title
I]
or
may
reasonably
be
required
by
the
Administrator
for
the
purpose
of
ensuring
attainment
of
the
applicable
[
NAAQS]
by
the
applicable
date.''
Subpart
2
of
part
D
of
title
I
provides
more
specific
RFP
requirements
for
ozone
areas
classified
under
section
181.
(
In
general,
we
have
used
the
term
``
RFP''
as
the
more
generic
progress
requirement,
whereas
it
has
used
the
term
``
rate
of
progress''
or
``
ROP''
to
denote
the
specific
subpart
2
progress
requirements
that
are
defined
as
specific
percent
reductions
from
a
baseline
emissions
inventory.)
In
particular,
it
specifies
the
base
year
emission
inventory
upon
which
ROP
is
to
be
planned
for
and
implemented,
the
increments
of
emissions
reductions
required
over
specified
time
periods,
and
the
process
for
determining
whether
the
ROP
milestones
were
achieved.
Subpart
2
does
not
specify
ROP
requirements
for
marginal
areas.
Section
182(
b)(
1)(
A)
mandates
a
15
percent
VOC
emission
reduction,
accounting
for
growth,
between
1990
and
1996
for
moderate
and
above
ozone
nonattainment
areas.
Furthermore,
section
182(
c)(
2)(
B)
of
the
CAA
requires
each
serious
and
above
ozone
nonattainment
area
to
submit
a
SIP
revision
providing
for
an
actual
VOC
emission
reduction
of
at
least
3
percent
per
year
averaged
over
each
consecutive
3­
year
period
beginning
in
1996
until
the
area's
attainment
date
(
the
post­
1996
ROP
plan).
Section
182(
c)(
2)(
C)
of
the
CAA
allows
for
substitution
of
NOX
for
VOC
emissions
reductions
in
the
post­
1996
ROP
plan.
EPA's
policy,
the
NOX
Substitution
Guidance
(
December
15,
1993;
available
at
http://
www.
epa.
gov/
ttn/
oarpg/
t1pgm.
html),
addresses
the
substitution
of
NOX
emissions
reductions
for
VOC
emissions
reductions.
The
baseline
emission
inventory
for
determining
the
required
ROP
reductions
is
specified
as
1990.
The
requirements
for
RFP
under
subparts
1
and
2,
as
described
above,
are
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105
/
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2,
2003
/
Proposed
Rules
43
Memorandum
of
December
29,
1997
from
Richard
D.
Wilson
to
Regional
Administrators,
Regions
I
 
X
re:
``
Guidance
for
Implementing
the
1­
Hour
Ozone
and
Pre­
Existing
PM10
NAAQS.''
Located
at
URL:
http://
www.
epa.
gov/
ttn/
oarpg/
t1/
memoranda/
iig.
pdf.
The
distances
used
resulted
from
FACA
discussions
cited
earlier
and
generally
represent
transport
of
1
to
2
days.
44
Additional
Options
Considered
for
``
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard.''
U.
S.
Environmental
Protection
Agency,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
NC.
March
2003.
the
minimum
required
for
an
area.
More
reductions
may
be
necessary
for
attainment
within
the
nonattainment
area
or
where
the
area
contributes
to
a
downwind
area's
nonattainment
problem.
Moreover,
an
upwind
area
that
contributes
to
nonattainment
in
a
downwind
area
may
need
more
reductions
in
a
shorter
time
in
order
for
the
downwind
area
to
reach
attainment
by
its
required
attainment
date.

2.
Proposed
Features
in
General
In
developing
an
approach
for
addressing
the
RFP
requirements
for
the
8­
hour
ozone
standard,
we
propose
the
following:
 
The
same
baseline
year
would
be
used
both
to
address
growth
(
in
emissions,
vehicle
miles
traveled
(
VMT)
or
otherwise)
and
to
calculate
the
RFP
target
level.
 
Emissions
reductions
from
outside
the
nonattainment
area
up
to
100
km
for
VOC
and
200
km
for
NOX
(
and
statewide
if
under
a
regional
strategy)
would
be
allowed
consistent
with
EPA's
existing
December
1997
interim
implementation
policy
for
1­
hour
ozone
NAAQS.
43
 
For
areas
classified
under
subpart
2,
the
ROP
requirements
specified
in
subpart
2
would
apply,
namely
a
15
percent
VOC
emission
reduction,
accounting
for
growth,
in
the
first
6
years
after
the
baseline
year
for
moderate
and
above
ozone
nonattainment
areas.
In
addition,
for
areas
classified
as
serious
and
above,
the
ROP
provisions
in
subpart
2
require
a
VOC
or
NOX
emission
reduction
of
at
least
three
percent
per
year
averaged
over
each
consecutive
3­
year
period
beginning
6
years
after
the
baseline
year
(
specified
as
under
the
1990
CAAA).
Areas
classified
under
subpart
2
as
marginal,
which
are
required
to
attain
3
years
following
classification,
are
subject
only
to
such
RFP
as
necessary
to
attain.
We
believe
the
periods
for
RFP
under
subpart
2
for
the
8­
hour
ozone
NAAQS
should
run
from
the
date
of
the
baseline
year
under
subpart
2,
and
would
be
equivalent
to
the
periods
under
the
1­
hour
ozone
NAAQS.
Thus,
the
first
15
percent
reduction
would
be
required
for
the
6­
year
period
starting
from
the
last
day
(
December
31)
of
the
baseline
year
and
the
first
3­
year
period
for
the
subsequent
three
percent
per
year
emission
reduction
requirement
in
serious
areas
would
begin
6
years
after
the
last
day
(
December
31)
of
the
baseline
year.
The
baseline
issue
is
discussed
in
section
4
below.

3.
For
Subpart
2
Areas,
Should
the
Initial
15
Percent
RFP
Requirement
Be
Limited
to
VOC
Emissions?
Currently,
for
many
areas
of
the
country,
particularly
in
the
Eastern
U.
S.
outside
major
metropolitan
areas,
there
is
a
greater
need
for
NOX
reductions
rather
than
VOC
reductions.
However,
under
the
prescribed
requirements
of
the
CAA,
NOX
substitution
is
only
allowed
for
the
post­
1996
ROP
requirement
(
three
percent
per
year
averaged
over
3
years),
not
for
the
initial
15
percent
ROP
requirement.
We
are
proposing
2
options
to
address
this
issue.
a.
Option
1.
Continue
to
require
15
percent
VOC
reductions
within
6
years
after
the
baseline
year
for
all
areas
designated
moderate
and
above
for
the
8­
hour
ozone
NAAQS.
After
6
years,
all
serious
and
above
areas
would
be
required
to
achieve
a
nine
percent
reduction
in
VOC
and/
or
NOX
emissions
every
3
years,
i.
e.,
an
average
of
three
percent
per
year.
b.
Option
2.
For
those
areas
that
have
approved
15
percent
plans
for
their
1­
hour
ozone
SIPs,
an
additional
15
percent
VOC
reduction
is
not
necessary.
Areas
that
are
classified
as
moderate
under
the
8­
hour
standard
that
have
already
implemented
their
15
percent
plans
under
their
1­
hour
ozone
SIPs
would
be
considered
to
have
met
the
statutory
15
percent
requirement
and
would
be
covered
under
the
more
generic
RFP
requirements
of
subpart
1.
Subpart
1
RFP
requirements
are
discussed
below.
Areas
that
are
classified
as
serious
and
above
under
the
8­
hour
standard
that
have
already
implemented
their
15
percent
plans
under
the
1­
hour
ozone
standard
would
have
to
include
in
their
SIPs
an
additional
RFP
plan
that
would
achieve
an
average
of
three
percent
per
year
of
VOC
and/
or
NOX
over
each
3­
year
period
until
their
attainment
year.
We
recognize
that
it
would
be
difficult
to
submit
a
plan
that
provides
for
the
first
nine
percent
emission
reduction
within
3
years
after
nonattainment
designation.
Therefore,
consistent
with
what
Congress
did
under
section
182(
b)(
1),
we
propose
to
allow
the
first
ROP
increment
to
be
averaged
over
6
years.
We
propose
that
an
area
classified
serious
or
above
submit
its
ROP
plan
within
2
years
after
designation
that
provides
for
18
percent
emissions
reductions
(
VOC
and/
or
NOX)
over
the
first
6
years
from
the
baseline
year
and
then
submit
within
3
years
after
designation
a
ROP
plan
that
provides
nine
percent
emissions
reductions
(
VOC
and/
or
NOX)
over
each
of
the
next
3­
year
periods
until
the
area's
attainment
date.
This
option
recognizes
previous
efforts
by
areas
that
submitted
15
percent
plans
as
required
under
the
1­
hour
ozone
NAAQS
and
provides
flexibility
to
States
to
use
a
mix
of
NOX
and
VOC
reductions
to
meet
the
additional
ROP/
RFP
requirements.
We
believe
that
the
statute
can
be
interpreted
to
require
the
mandatory
15
percent
VOC
reduction
only
once
for
a
given
area.
Once
15
percent
VOC
reduction
requirements
have
been
met,
an
area
would
actually
have
to
achieve
greater
emissions
reductions,
i.
e.,
an
average
of
three
percent
per
year,
but
could
choose
either
VOC
or
NOX
reductions
as
appropriate.
We
prefer
this
second
option
because
it
provides
more
flexibility
for
the
ROP
plan
to
be
consistent
with
the
area's
needs
in
attaining
the
standard.
c.
Other
options
that
EPA
considered.
We
considered
other
options
for
addressing
this
issue
that
are
not
being
proposed
here;
discussion
of
them
appears
in
a
separate
document,
available
in
the
docket.
44
However,
we
solicit
comments
on
other
options
and
what
possible
rationales
 
legal
and
scientific
 
might
be
used
to
justify
those
options.

4.
What
Baseline
Year
Should
Be
Required
for
the
Emission
Inventory
for
the
RFP
Requirement?

The
baseline
inventory
for
RFP
(
under
subpart
2)
is
used
as
the
starting
point
for
the
determination
of
a
target
level
of
emissions
for
the
future
year
RFP
and
as
the
baseline
from
which
creditable
reductions
are
determined.
We
currently
anticipate
designating
nonattainment
areas
in
2004.
Under
the
``
Consolidated
Emissions
Reporting
Rule''
(
67
FR
39602,
June
10,
2002)
revised
emissions
inventories
are
required
for
the
years
2002
and
2005;
therefore,
we
propose
to
require
use
of
the
2002
inventory
as
the
baseline
inventory
for
the
RFP
requirement.
This
would
be
the
most
recently
available
inventory
at
the
time
of
designation.
We
recently
issued
a
memorandum
identifying
2002
as
the
anticipated
emission
inventory
base
year
for
the
SIP
planning
process
to
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/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
45
Memorandum
on
November
18,
2002,
from
Lydia
Wegman
and
Peter
Tsirigotis,
``
2002
Base
Year
Emission
Inventory
SIP
Planning:
8­
hr
Ozone,
PM2.5
and
Regional
Haze
Programs.''
This
document
is
available
at
the
following
Web
site:
http://
www.
epa.
gov/
ttn/
oarpg/
meta.
442.1.2002baseinv.
pdf.
46
Additional
Options
Considered
for
``
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard.''
U.
S.
Environmental
Protection
Agency,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
NC.
March
2003.
address
the
8­
hour
ozone
and
the
PM2.5
standards.
45
We
considered
other
options
for
addressing
this
issue
that
are
not
being
proposed
here;
discussion
of
them
appears
in
a
separate
document,
available
in
the
docket.
46
5.
Should
Moderate
Areas
Be
Subject
to
Prescribed
Additional
RFP
Requirements
Prior
to
Their
Attainment
Date?
For
areas
initially
classified
moderate
and
higher
under
the
1­
hour
ozone
standard,
the
baseline
inventory
was
defined
as
1990
in
the
CAA
Amendments
of
1990.
Therefore,
the
6­
year
period
for
the
initial
15
percent
ROP
requirement
ended
in
the
same
year
as
the
attainment
date
for
moderate
areas,
viz.,
1996.
For
areas
classified
moderate
and
higher
under
the
8­
hour
ozone
standard,
however,
we
are
proposing
that
the
15
percent
ROP
target
level
of
emissions
would
be
calculated
for
the
6­
year
period
after
the
2002
baseline
year,
i.
e.,
2003
 
2008.
Moderate
areas
would
be
required
to
meet
an
attainment
date
no
later
than
6
years
after
the
area
is
designated
nonattainment
for
the
8­
hour
standard.
If
the
effective
date
of
designation
of
nonattainment
areas
is,
for
instance,
May
15,
2004,
the
attainment
date
would
be
May
15,
2010.
This
leaves
approximately
a
11 
2
year
gap
between
the
end
of
the
6­
year
period
for
the
15
percent
ROP
requirement
(
i.
e.,
December
31,
2008)
and
the
attainment
date.
If
we
were
to
also
require
moderate
areas
to
obtain
an
additional
three
percent
per
year
reduction
beyond
2008
for
the
11 
2
additional
years
until
2010,
the
ROP
requirement
would
be
more
than
what
we
believe
Congress
intended
for
moderate
areas
under
subpart
2.
Additional
three
percent
per
year
reductions
were
only
required
for
serious
and
higher
classified
1­
hour
ozone
nonattainment
areas.
We
are
proposing
that
the
only
specific
ROP
requirement
applicable
for
moderate
areas
is
the
15
percent
VOC
requirement
between
the
end
of
2002
and
the
end
of
2008.
However,
section
172(
c)(
2)
also
applies,
requiring
areas
to
meet
RFP
generally.
Therefore,
a
moderate
area
would
also
have
to
provide
any
additional
emissions
reductions
 
VOC
and/
or
NOX
 
needed
to
provide
for
attainment
by
the
area's
attainment
date.
In
proposing
this
approach,
we
are
interpreting
the
subpart
1
RFP
requirement
to
mean
that
the
area
must
achieve
whatever
further
reduction
is
needed
for
attainment
in
the
remaining
period
prior
to
the
attainment
date
(
2009
and
2010).
We
are
proposing
that
serious
and
higher
classified
areas
would
need
to
provide
in
their
SIPs
an
additional
average
of
three
percent
per
year
emissions
reductions
over
each
subsequent
3­
year
period
beyond
the
initial
6­
year
period
through
the
attainment
year,
consistent
with
what
Congress
specified
in
section
182(
c)(
2)(
B)
of
the
CAA.

6.
What
Is
the
Timing
of
the
Submission
of
the
ROP
Plan?
Section
182(
b)(
1)
requires
that
moderate
and
higher
classified
areas
submit
their
15
percent
ROP
plans
within
3
years
after
1990.
For
the
attainment
dates
under
the
8­
hour
ozone
standard,
we
propose
interpreting
the
CAA's
language
referring
to
the
date
of
enactment
of
the
1990
CAA
Amendments
to
mean
the
date
of
designations
for
the
8­
hour
standard.
If
we
were
to
require
the
ROP
plans
to
be
submitted
within
3
years
after
their
nonattainment
designation
date
(
i.
e.,
in
2007
if
we
designate
in
2004),
the
plans
would
have
to
be
implemented
within
1
year
after
submission
to
ensure
the
15
percent
emissions
reductions
are
achieved
by
the
end
of
the
relevant
6­
year
period
(
i.
e.,
December
2008).
We
believe
this
would
likely
not
be
sufficient
time
to
ensure
that
the
reductions
would
occur
by
the
required
deadline.
Therefore,
we
propose
that
the
ROP
SIP
be
submitted
within
2
years
after
nonattainment
designation
 
by
2006.
This
would
provide
2
years
for
the
State
to
develop
and
submit
its
ROP
plan,
and
another
2
years
for
the
control
measures
to
be
implemented.

7.
How
Should
CAA
Restrictions
on
Creditable
Measures
Be
Interpreted?
Which
National
Measures
Should
Count
as
Generating
Emissions
Reductions
Credit
Toward
RFP
Requirements?
Section
182(
b)(
1)
contains
provisions
that
limit
creditability
toward
meeting
RFP
for
certain
limited
emission
reduction
measures
required
prior
to
the
enactment
of
the
CAA
Amendments
of
1990.
We
believe
these
specific
restrictions
should
continue
to
apply
for
purposes
of
the
8­
hour
NAAQS
as
written
in
the
CAA.
We
believe
that
Congress
intended
to
prevent
areas
from
taking
credit
for
RFP
only
for
those
specific
measures
that
were
already
adopted
and
in
place
(
or
required
to
be
in
place)
prior
to
the
date
of
enactment
of
the
CAA
Amendments
of
1990
(
November
15,
1990).
We
believe
that
this
same
logic
holds
true
for
the
RFP
requirement
as
it
applies
to
the
8­
hour
ozone
standard,
namely
preventing
credit
toward
the
mandatory
RFP
percent
reductions
for
continuing
reductions
from
those
specific
measures
cited
in
the
CAA
that
were
already
adopted
and
in
place
prior
to
the
date
of
enactment
of
the
CAA
Amendments
of
1990.
There
is
no
indication
in
the
CAA
that
this
exclusion
should
be
changed.
Congress
mandated
many
emissions
reductions
in
the
1990
CAA
Amendments
with
no
indication
that
they
should
not
be
credited
to
meeting
RFP
or
attainment
of
any
existing
or
revised
NAAQS.
Therefore,
we
are
proposing
that
all
emissions
reductions
that
occur
after
the
baseline
emission
inventory
year
from
all
Federal
and
any
other
measures
(
not
otherwise
identified
in
section
182(
b)(
1)(
D))
would
be
creditable
to
the
RFP
requirement.
For
example,
emissions
reductions
that
occur
after
the
2002
baseline
emission
inventory
year
that
result
from
the
Tier
2
and
sulfur
in
gasoline
rules
that
were
issued
by
EPA
after
the
CAA
Amendments
of
1990
are
creditable
toward
the
RFP
requirement
for
the
8­
hour
ozone
standard.
Another
example
of
emissions
reductions
that
would
be
creditable
toward
the
RFP
requirement
for
the
8­
hour
ozone
standard
would
be
VOC
emissions
reductions
from
certain
MACT
standards
that
will
not
produce
emissions
reductions
until
after
the
2002
baseline;
these
would
include
several
recently
promulgated
MACT
standards
(
such
as
those
covering
several
surface
coating
operations)
and
also
MACT
standards
that
are
expected
to
be
promulgated
in
the
summer
of
2003.
Reductions
that
occur
prior
to
the
baseline
year
would
be
incorporated
into
the
baseline
and
could
not
be
credited.

8.
For
Areas
Covered
by
Subpart
1
Instead
of
Subpart
2,
How
Should
the
RFP
Requirement
Be
Structured?
As
described
above,
the
RFP
requirement
under
subpart
1
is
more
general
than
that
under
subpart
2,
and
EPA
thus
has
more
flexibility
in
determining
what
RFP
means
under
subpart
1.
For
instance,
the
State
may
rely
on
emissions
reductions
of
VOC
or
NOX
or
a
combination
of
both
to
meet
its
RFP
requirement.
However,
we
are
also
mindful
of
the
need
for
ensuring
equity
between
areas
with
similar
8­
hour
ozone
problems
covered
under
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2003
/
Proposed
Rules
47NOX
Substitution
Guidance.
December
15,
1993;
avaialble
at
http://
www.
epagov/
ttn/
oarpg/
t1pgm.
html.
48
Additional
Options
Considered
for
``
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard.''
U.
S.
Environmental
Protection
Agency,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
NC.
March
2003.
49
Memorandum
of
May
10,
1995,
``
RFP,
Attainment
Demonstration,
and
Related
Requirements
for
Ozone
Nonattainment
Areas
Meeting
the
Ozone
National
Ambient
Air
Quality
Standard,''
from
John
S.
Seitz,
Director,
Office
of
Air
Quality
Planning
and
Standards.
Available
at:
http://
www.
epa.
gov/
ttn/
oarpg/
t1/
memoranda/
clean15.
pdf.
subpart
1
and
those
covered
under
subpart
2.
We
are
proposing
rules
for
three
kinds
of
areas:
(
a)
Areas
with
attainment
dates
3
years
or
less
after
designation;
(
b)
Areas
with
attainment
dates
between
3
and
6
years
after
designation;
and
(
c)
Areas
with
attainment
dates
beyond
6
years
after
designation.
Note
that
the
CAA
requires
that
attainment
dates
for
areas
subject
only
to
subpart
1
be
no
longer
than
10
years
after
designation.
a.
Areas
with
attainment
dates
3
years
or
less
after
designation.
We
propose
a
RFP
requirement
for
these
areas
similar
to
that
for
areas
under
subpart
2
that
are
classified
as
marginal.
Such
an
area
would
not
be
subject
to
a
separate
RFP
requirement,
but
would
have
to
attain
the
standard
by
its
attainment
date.
b.
Areas
with
attainment
dates
between
3
to
6
years
after
designation.
These
areas
would
have
attainment
dates
similar
to
subpart
2
areas
classified
as
moderate.
We
propose
two
options
for
these
areas:
(
i)
Option
1.
This
option
would
require
the
RFP
plan
to
be
submitted
with
the
attainment
demonstration
within
3
years
after
designation
of
the
nonattainment
area.
The
SIP
would
have
to
show
that
all
emissions
reductions
needed
for
attainment
would
be
implemented
by
the
attainment
date.
This
situation
would
occur,
for
example,
for
an
area
with
a
base
year
inventory
of
2002,
designation
in
2004,
a
required
attainment
SIP
submission
date
of
2007
and
an
attainment
date
of
2010.
Where
areas
have
only
3
years
after
SIP
submission
before
attainment,
this
option
recognizes
that
there
may
be
only
a
short
amount
of
time
available
to
achieve
any
specified
emissions
reductions
beyond
that
needed
to
demonstrate
attainment
and
therefore
would
not
require
a
showing
that
a
specified
amount
of
emissions
reductions
occur
between
the
time
of
SIP
submission
and
the
attainment
date.
(
ii)
Option
2.
This
option
would
require
these
areas
to
be
treated
in
a
manner
similar
to
subpart
2
areas
classified
as
moderate.
The
RFP
SIP
would
have
to
provide
for
a
15
percent
emission
reduction
from
the
baseline
year
within
6
years
after
the
baseline
year.
The
RFP
SIP
would
have
to
be
submitted
within
2
years
after
designation.
However,
since
the
area
is
subject
only
to
subpart
1,
NOX
emissions
reductions
could
be
substituted
for
some
or
all
of
the
15
percent
reduction
requirement,
consistent
with
EPA's
NOX
substitution
policy.
47
Also,
we
are
soliciting
comment
on
whether
a
percentage
other
than
15
percent
should
be
required
as
the
minimum.
Additional
measures
that
would
provide
the
remaining
portion
of
the
emissions
reductions
needed
for
attainment
would
have
to
be
submitted
with
the
area's
attainment
demonstration
within
3
years
after
designation.
c.
Areas
with
attainment
dates
beyond
6
years
after
designation.
These
areas
are
similar
in
attainment
dates
to
areas
classified
under
subpart
2
as
serious
or
higher.
We
are
proposing
that
the
RFP
plan
show
increments
of
progress
from
the
baseline
emission
inventory
year
until
the
attainment
date.
The
RFP
SIP
would
first
have
to
provide
for
a
15
percent
emission
reduction
from
the
baseline
year
within
6
years
after
the
baseline
year.
The
15
percent
RFP
SIP
would
have
to
be
submitted
within
2
years
after
designation.
However,
since
the
area
is
subject
only
to
subpart
1,
NOX
emissions
reductions
could
be
substituted
for
some
or
all
of
the
15
percent
reduction
requirement,
consistent
with
EPA's
NOX
substitution
policy.
Also,
we
are
soliciting
comment
on
whether
a
percentage
other
than
15
percent
would
be
more
appropriate.
Then,
for
each
subsequent
3­
year
period
out
to
the
attainment
date,
another
RFP
SIP
would
have
to
provide
for
an
additional
increment
of
progress
no
less
than
the
amount
of
emissions
reductions
that
would
be
proportional
to
the
time
between
the
end
of
the
first
increment
(
in
2008)
to
the
attainment
date.
This
second
RFP
SIP
would
have
to
be
submitted
at
the
same
time
as
the
attainment
demonstration,
namely
within
3
years
after
designation.

9.
How
Should
the
RFP
Requirements
Be
Implemented
for
Areas
Designated
for
the
8­
Hour
Ozone
Standard
That
Entirely
or
in
Part
Encompass
an
Area
That
Was
Designated
Nonattainment
for
the
1­
Hour
Ozone
Standard?
We
are
proposing
the
following
approach
to
address
this
issue.
Develop
a
new
baseline
and
new
ROP/
RFP
emission
reduction
targets
for
the
entire
8­
hour
standard
nonattainment
area
(
the
old
1­
hour
standard
nonattainment
area
and
the
newly
added
portion
of
the
8­
hour
standard
nonattainment
area).
Emissions
reductions
from
measures
in
the
1­
hour
ozone
SIP
that
are
achieved
after
the
8­
hour
ozone
NAAQS
baseline
year
could
count
(
subject
to
creditability
restrictions
as
discussed
above
in
this
proposed
rulemaking)
toward
meeting
the
RFP
requirement
for
the
entire
8­
hour
area.
This
approach
would
set
a
ROP
target
for
the
entire
8­
hour
ozone
nonattainment
area.
The
State
would
have
to
ensure
that
the
target
is
at
least
as
stringent
as
the
1­
hour
ROP/
RFP
target,
thus
ensuring
no
backsliding
on
the
1­
hour
NAAQS
requirements.
Under
this
approach,
the
new
ROP/
RFP
target
for
the
8­
hour
standard
would
replace
the
previous
1­
hour
ozone
target
(
while
ensuring
that,
at
a
minimum,
the
emissions
reductions
required
to
meet
the
old
target
are
met).
For
example,
the
1­
hour
ozone
NAAQS
nonattainment
area
may
comprise
four
counties
and
have
a
target
level
for
one
future
RFP
increment
of
350
tons/
day
of
VOC
and
300
tons/
day
of
NOX.
The
8­
hour
ozone
nonattainment
area
may
comprise
the
initial
1­
hour
ozone
standard
nonattainment
area
and
two
more
counties.
The
target
for
the
same
increment
period
for
the
entire
six
county
nonattainment
area
may
now
be,
for
instance,
400
tons/
day
of
VOC
and
350
tons/
day
of
NOX
(
assuming
that
these
emission
reductions
were
consistent
with
the
attainment
demonstration).
We
considered
another
option
for
this
issue.
This
option,
which
is
not
being
proposed,
is
discussed
in
a
separate
document
available
in
the
docket.
48
10.
Will
EPA's
``
Clean
Data
Policy''
Continue
to
Apply
Under
the
8­
Hour
Standard
for
RFP?

We
issued
a
clean
data
waiver
policy
on
May
10,
1995,
which
allows
EPA
to
determine
that
an
area
has
attained
the
standard
and
that
certain
requirements
(
e.
g.,
RFP)
will
not
apply
so
long
as
the
area
remains
in
attainment.
49
We
propose
that
this
policy
would
remain
effective
under
the
8­
hour
ozone
NAAQS.

11.
How
Will
RFP
Be
Addressed
in
Tribal
Areas?

As
mentioned
elsewhere
in
this
proposed
rulemaking,
the
TAR
provides
the
Tribes
with
the
ability
to
develop
TIPs
to
address
the
NAAQS.
However,
it
also
provides
the
Tribes
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flexibility
to
develop
these
plans
in
a
modular
way,
as
long
as
the
elements
of
their
TIPs
are
``
severable.''
For
example,
each
TIP
submission
must
include
a
demonstration
that
the
Tribe
has
authority
to
develop
and
run
its
program,
the
ability
to
enforce
its
rules,
and
the
capacity
and
resources
to
implement
the
program
it
adopts.
However,
the
modular
approach
provided
for
Tribes
in
the
TAR
allows
the
TIP
to
address
a
particular
problem
on
the
reservation.
Therefore,
it
may
include
one
or
two
source­
specfic
requirements
but
may
not
include
provisions
for
RFP
and
other
SIP
requirements.
We
will
review
and
approve
these
TIPs
as
a
step
in
addressing
an
overall
air
quality
plan
to
achieve
health
and
environmental
goals.
In
addition,
a
Tribe
may
later
add
other
elements
to
the
plan,
or
EPA
may
be
obligated
to
step
in
to
fill
air
quality
gaps.
In
approving
the
TIPs,
we
will
ensure
that
they
will
not
interfere
with
the
overall
air
quality
plan
for
an
area
when
Tribal
lands
are
part
of
a
multijurisdictional
area.
Because
many
of
the
nonattainment
areas
will
include
jurisdictions,
including
both
Tribes
and
States,
it
is
important
for
Tribes
and
States
to
work
together
wherever
possible
to
coordinate
their
planning
efforts.

12.
How
Will
RFP
Targets
Be
Calculated?
We
propose
a
methodology
for
the
calculation
of
ROP
target
levels
of
emissions
that
is
based
on
the
method
developed
for
the
CAA
Amendments
of
1990,
while
taking
into
account
our
interpretation
of
CAA
restrictions
on
creditable
emissions
and
our
proposal
to
use
the
2002
inventory
as
the
baseline
inventory
for
the
ROP
requirement.
The
CAA
Amendments
of
1990
specify
four
types
of
measures
that
were
not
creditable
toward
the
15
percent
RFP
requirement.
These
were:
(
1)
Any
measure
relating
to
motor
vehicle
exhaust
or
evaporative
emissions
promulgated
by
the
Administrator
by
January
1,
1990;
(
2)
Regulations
concerning
Reid
Vapor
Pressure
that
would
go
into
effect
in
1992;
(
3)
State
regulations
submitted
to
correct
deficiencies
in
existing
VOC
RACT
regulations
or
previously
required
RACT
rules;
(
4)
State
regulations
submitted
to
correct
deficiencies
in
I/
M
programs.
These
four
types
of
measures
were
all
expected
to
result
in
a
decrease
in
emissions
between
1990
and
1996.
Of
these
four
types
of
measures,
RACT
and
I/
M
program
corrections
and
the
1992
Reid
vapor
pressure
(
RVP)
requirements
were
completely
in
place
by
1996
and
therefore
are
already
accounted
for
in
the
2002
baseline.
As
a
result,
they
would
produce
no
additional
reductions
between
2002
and
2008
or
later
milestone
years.
However,
the
pre­
1990
Federal
Motor
Vehicle
Control
Program
(
FMVCP)
will
continue
to
provide
benefits
during
the
first
two
decades
of
the
21st
century
as
remaining
vehicles
meeting
pre­
1990
standards
leave
the
vehicle
fleet.
Because
these
benefits
are
not
creditable
for
ROP
purposes,
in
order
to
calculate
the
target
level
of
emissions
for
ROP
milestone
years
(
i.
e.,
2008,
2011,
etc.),
States
must
first
calculate
the
reductions
that
would
occur
over
these
years
as
a
result
of
the
pre­
1990
FMVCP.
We
propose
the
following
methods
to
properly
account
for
the
non­
creditable
reductions
when
calculating
ROP
targets
for
the
2008
and
later
ROP
milestone
years.
Method
1:
For
areas
that
must
meet
a
15
percent
VOC
reduction
requirement
by
2008:
(
1)
Estimate
the
actual
anthropogenic
base
year
VOC
inventory
in
2002
with
all
2002
control
programs
in
place.
(
2)
Using
the
same
highway
vehicle
activity
inputs
used
to
calculate
the
actual
2002
inventory,
run
MOBILE6
for
2002
and
for
2008
with
all
post­
1990
CAA
measures
turned
off.
This
is
accomplished
using
the
NO
CLEAN
AIR
ACT
command
as
described
in
the
MOBILE6
User's
Guide.
Any
other
local
inputs
for
I/
M
programs
should
be
set
according
to
the
program
that
was
required
to
be
in
place
in
1990.
Fuel
RVP
should
be
set
at
9.0
or
7.8
depending
on
the
RVP
required
in
the
local
area
as
a
result
of
fuel
RVP
regulations
promulgated
in
June,
1990.
(
3)
Calculate
the
difference
between
2002
and
2008
VOC
emission
factors
and
multiply
by
2002
VMT.
The
result
is
the
VOC
emissions
reductions
that
will
occur
between
2002
and
2008
without
the
benefits
of
any
post­
1990
CAA
measures.
These
are
the
noncreditable
reductions
that
occur
over
this
period.
(
4)
Subtract
the
non­
creditable
reductions
calculated
in
step
3
from
the
actual
anthropogenic
2002
inventory
estimated
in
step
1.
(
5)
Reduce
the
VOC
inventory
calculated
in
step
4
by
15
percent.
The
result
is
the
target
level
of
VOC
emissions
in
2008
in
order
to
meet
the
2008
ROP
requirement.
The
actual
projected
2008
inventory
with
all
control
measures
in
place
and
including
projected
2008
growth
in
activity
must
be
at
or
lower
than
this
target
level
of
emissions.
Method
2:
For
areas
that
qualify
under
option
2
of
section
3
above
and
must
meet
an
18
percent
VOC
emission
reduction
requirement
by
2008
with
NOX
substitution
allowed,
following
EPA's
NOX
Substitution
Guidance:
(
1)
Estimate
the
actual
anthropogenic
base
year
inventory
in
2002
with
all
2002
control
programs
in
place.
(
2)
Using
the
same
highway
vehicle
activity
inputs
used
to
calculate
the
actual
2002
inventory,
run
MOBILE6
for
2002
and
for
2008
with
all
post­
1990
CAA
measures
turned
off.
This
is
accomplished
using
the
NO
CLEAN
AIR
ACT
command
as
described
in
the
MOBILE6
User's
Guide.
Any
other
local
inputs
for
I/
M
programs
should
be
set
according
to
the
program
that
was
required
to
be
in
place
in
1990.
Fuel
RVP
should
be
set
at
9.0
or
7.8
depending
on
the
RVP
required
in
the
local
area
as
a
result
of
fuel
RVP
regulations
promulgated
in
June,
1990.
(
3)
Calculate
the
difference
between
2002
and
2008
VOC
emissions
factors
and
multiply
by
2002
VMT.
The
result
is
the
emissions
reductions
that
will
occur
between
2002
and
2008
without
the
benefits
of
any
post­
1990
CAA
measures.
These
are
the
non­
creditable
reductions
that
occur
over
this
period.
(
4)
Subtract
the
non­
creditable
reductions
calculated
in
step
3
from
the
actual
anthropogenic
2002
inventory
estimated
in
step
1.
(
5)
Reduce
the
inventory
calculated
in
step
4
by
18
percent.
The
result
is
the
target
level
of
emissions
in
2008
in
order
to
meet
the
2008
ROP
requirement.
The
actual
projected
2008
inventory
with
all
control
measures
in
place
and
including
projected
2008
growth
in
activity
must
be
at
or
lower
than
this
target
level
of
emissions.
Method
3:
For
all
areas
that
must
meet
an
additional
reduction
VOC
requirement
of
9
percent
every
3
years
after
2008
with
NOX
substitution
allowed,
following
EPA's
NOX
Substitution
Guidance.
Each
subsequent
target
level
of
emissions
should
be
calculated
as
emissions
reductions
from
the
previous
target.
(
1)
Using
the
same
highway
vehicle
activity
inputs
used
to
calculate
the
actual
2002
inventory,
run
MOBILE6
for
2008
(
previously
done
in
step
2
above)
and
2011
with
all
post­
1990
CAA
measures
turned
off.
This
is
accomplished
using
the
NO
CLEAN
AIR
ACT
command
as
described
in
the
MOBILE6
User's
Guide.
Any
other
local
inputs
for
I/
M
programs
should
be
set
according
to
the
program
that
was
required
to
be
in
place
in
1990.
Fuel
RVP
should
be
set
at
9.0
or
7.8
depending
on
the
RVP
required
in
the
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/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
50
40
CFR
part
52,
State
Implementation
Plans;
General
Preamble
for
the
Implementation
of
Title
I
of
the
Clean
Air
Act
Amendments
of
1990;
Proposed
Rule.
April
16,
1992.
(
57
FR
13498);
40
CFR
part
52,
State
Implementation
Plans;
Nitrogen
Oxides
Supplement
to
the
General
Preamble;
Clean
Air
Act
Amendments
of
1990;
Implementation
of
Title
I;
Proposed
Rule.
November
25,
1992.
(
57
FR
55620).
51
``
Issues
Relating
to
VOC
Regulation
Cutpoints,
Deficiencies,
and
Deviations
 
Clarification
to
Appendix
D
of
November
24,
1987,
Federal
Register.''
Ozone/
Carbon
Monoxide
Program
Branch,
Air
Quality
Management
Division,
Office
of
Air
Quality
Planning
and
Standards,
U.
S.
Environmental
Protection
Agency.
May
25,
1988;
Federal
Register
of
November
24,
1987,
Appendix
D
(
52
FR
at
45105).
local
area
as
a
result
of
fuel
RVP
regulations
promulgated
in
June,
1990.
(
2)
Calculate
the
difference
between
2008
and
2011
emission
factors
and
multiply
by
2002
VMT.
The
result
is
the
emissions
reductions
that
will
occur
between
2008
and
2011
without
the
benefits
of
any
post­
1990
CAA
measures.
These
are
the
non­
creditable
reductions
that
occur
over
this
period.
(
3)
Subtract
the
non­
creditable
reductions
calculated
in
step
2
from
the
2008
target
level
of
emissions
calculated
previously.
(
4)
Reduce
the
inventory
calculated
in
step
3
by
9
percent.
The
result
is
the
target
level
of
emissions
in
2011
in
order
to
meet
the
2011
ROP
requirement.
The
actual
projected
2011
inventory
with
all
control
measures
in
place
and
including
projected
2011
growth
in
activity
must
be
at
or
lower
than
this
target
level
of
emissions.

J.
Are
Contingency
Measures
Required
in
the
Event
of
Failure
To
Meet
a
Milestone
or
To
Attain
the
8­
Hour
Ozone
NAAQS?

1.
Background
Under
the
CAA,
nonattainment
areas
must
include
in
their
SIPs
contingency
measures
consistent
with
section
172(
c)(
9).
However,
section
182(
a)
expressly
exempts
areas
classified
as
marginal
from
this
obligation.
States
with
ozone
nonattainment
areas
classified
as
moderate
and
above
must
include
contingency
measures
in
their
SIPs
consistent
with
sections
172(
c)(
9)
and
182(
c)(
9).
Contingency
measures
are
additional
controls
to
be
implemented
in
the
event
the
area
fails
to
meet
a
RFP
milestone
or
fails
to
attain
by
its
attainment
date.
These
contingency
measures
must
be
fully
adopted
rules
or
measures
which
are
ready
for
implementation
quickly
upon
failure
to
meet
milestones
or
attainment.
The
SIP
should
contain
trigger
mechanisms
for
the
contingency
measures,
specify
a
schedule
for
implementation,
and
indicate
that
the
measures
will
be
implemented
without
significant
further
action
by
the
State
or
EPA.
Additional
background
information
concerning
the
CAA
contingency
measure
provisions
appears
in
the
General
Preamble
of
April
16,
1992
(
57
FR
13510
 
13512
and
13520);
and
Section
9.2
of
``
Guidance
for
Growth
Factor,
Projections,
and
Control
Strategies
for
the
15
percent
Rate­
of­
Progress
Plans''
(
EPA
 
452/
R
 
93
 
002),
March
1993.
The
guidance
indicates
that
States
should
adopt
and
submit
contingency
measures
to
provide
a
three
percent
emission
reduction
(
beyond
what
is
needed
for
attainment
or
the
ROP
requirement)
for
moderate
and
above
ozone
areas,
which
EPA
concludes
is
generally
acceptable
to
offset
emission
increases
while
States
are
correcting
their
SIPs.
Also,
EPA
guidance
suggests
that
contingency
measures
that
a
State
adopted
for
purposes
of
the
15
percent
ROP
requirement
may
be
used
as
the
contingency
measures
for
any
post­
1996
3­
year
requirements
for
RFP,
provided
they
have
not
been
triggered
and
used
as
contingency
measures
for
the
15
percent
plan.
See
Section
5.6
of
``
Guidance
on
the
Post
1996
Rate­
of­
Progress
Plan
(
ROP)
and
Attainment
Demonstration''
(
corrected
version
of
February
18,
1994).
Furthermore,
Federal
measures
that
result
in
additional
emission
reductions
beyond
those
needed
for
attainment
or
ROP
in
an
area
could
serve
as
contingency
measures
for
a
failure
to
attain
or
meet
the
ROP
requirements.
EPA
has
approved
the
use
of
Federal
measures
as
part
of
contingency
measures
in
several
EPA
actions
approving
1­
hour
ozone
SIPs
(
62
FR
15844,
April
3,
1997),
(
62
FR
66279,
December
18,
1997),
and
(
66
FR
30811,
June
8,
2001),
(
66
FR
586
and
66
FR
634,
January
3,
2001).

2.
Proposal
For
the
8­
hour
ozone
standard,
we
intend
to
continue
to
observe
our
existing
policies
regarding
contingency
measures
for
areas
covered
under
subpart
2.
Areas
that
are
nonattainment
for
the
8­
hour
ozone
standard
that
have
unused
adopted
contingency
measures
for
the
1­
hour
ozone
NAAQS
may
use
those
measures
as
appropriate
as
contingency
measures
for
the
8­
hour
ozone
NAAQS.
For
areas
covered
under
subpart
1,
we
will
provide
additional
guidance
on
the
contingency
measure
requirement,
but
it
is
likely
that
it
will
be
patterned
after
the
subpart
2
requirement.

K.
What
Requirements
Should
Apply
for
RACM
and
RACT
for
8­
Hour
Ozone
Nonattainment
Areas?

1.
Background
Subpart
1
of
part
D
includes
general
requirements
for
all
designated
nonattainment
areas,
including
a
requirement
that
a
nonattainment
plan
provide
for
the
implementation
of
all
RACM
as
expeditiously
as
practicable,
including
such
reductions
that
may
be
obtained
through
RACT.
Most
areas
designated
nonattainment
for
the
1­
hour
ozone
standard
are
also
subject
to
the
requirements
of
subpart
2
of
part
D,
including
its
detailed
control
measure
provisions.
Under
subpart
2,
RACT
requirements
for
ozone
nonattainment
areas
apply
independent
of
the
emissions
reductions
needed
to
attain
the
standard.
The
RACT
requirements
also
apply
in
attainment
areas
within
the
current
ozone
transport
region
(
OTR)
(
or
any
additional
OTR
that
EPA
may
establish
under
the
CAA),
regardless
of
the
emissions
reductions
needed
to
attain.
The
RACT
requirement
applies
to
both
ozone
precursors
 
NOX
and
VOC.
Since
1990,
we
have
issued
guidance
on
the
RACT
requirements
in
subpart
2.50
Prior
to
enactment
of
the
CAA
Amendments
of
1990,
EPA
also
issued
detailed
guidance
on
RACT
for
ozone
nonattainment
area
SIPs.
51
This
guidance
continues
to
be
relevant.
Elsewhere
in
this
proposed
rulemaking,
we
are
proposing
one
option
for
classifying
8­
hour
ozone
nonattainment
areas
in
which
some
areas
would
be
subject
to
the
requirements
of
subpart
1.
Unlike
subpart
2,
which
contains
detailed
requirements
regarding
the
adoption
of
RACT,
subpart
1
contains
only
a
general
provision
which
requires
that
SIPs
for
nonattainment
areas
provide
for
RACM,
including
RACT.
See
CAA
section
172(
c)(
1).
Because
RACT
is
a
control
technology
requirement,
it
is
somewhat
independent
of
the
need
to
demonstrate
attainment
or
RFP.
In
the
period
prior
to
enactment
of
the
1990
CAA
Amendments,
only
the
general
requirements
for
RACM
and
RACT
existed,
and
EPA
had
issued
CTGs
to
provide
presumptive
norms
for
RACT
for
VOC
controls
for
States
to
follow
in
adopting
RACT
for
ozone
nonattainment
areas.
In
1990,
Congress
institutionalized
this
requirement
for
NOX
and
VOC
(
as
ozone
precursors)
in
subpart
2,
and
emphasized
the
role
of
CTGs
and
EPA's
pre­
1990
guidance
for
ensuring
that
RACT
rules
themselves
were
adequately
structured
to
ensure
they
would
be
effective
and
enforceable.
For
instance,
ozone
nonattainment
areas
classified
as
marginal
or
higher
that
had
a
previous
obligation
to
submit
corrections
to
their
VOC
RACT
rules
were
required
to
complete
and
submit
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68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
52
The
exception
to
this
rule
is
that
States
in
the
OTR
are
also
required
for
all
areas
in
the
State
to
adopt
RACT
rules
for
all
sources
covered
by
a
CTG
and
all
other
major
sources
of
NOx
or
VOC
regardless
of
their
nonattainment
classification.
See
CAA
section
184(
b).
53
Note
that
under
the
anti­
backsliding
provisions
proposed
above,
any
portion
of
an
area
classified
marginal
under
the
8­
hour
standard
that
was
classified
moderate
or
higher
under
the
1­
hour
standard
would
also
have
a
continuing
RACT
requirement
from
its
classification
as
moderate
or
higher.
54
Proposed
Implementation
Guidance
for
the
Revised
Ozone
and
Particulate
Matter
(
PM)
National
Ambient
Air
Quality
Standards
(
NAAQS)
and
the
Regional
Haze
Program.
November
17,
1998.
Found
at:
http://
www.
epa.
gov/
ttn/
oarpg/
t1pgm.
html.
55
See
CAA
section
184(
b).
those
corrections
within
6
months
after
the
date
of
classification.
See
CAA
section
182(
a)(
2)(
A).
However,
the
1990
CAA
Amendments
did
not
require
marginal
areas
to
adopt
any
RACT
rules
if
they
did
not
have
a
pre­
1990
obligation
to
do
so.
52
Also,
the
amended
CAA
required
EPA
to
issue
CTGs
for
certain
VOC
sources
by
November
15,
1993.
See
CAA
section
183(
a)
and
(
b).
Similarly,
the
EPA
was
required
to
issue
alternative
control
techniques
(
ACT)
documents
for
additional
categories
of
VOC
and
NOX.
See
CAA
section
183(
c).
The
ACT
documents
are
intended
to
help
States
in
making
RACT
determinations.

2.
Proposed
Approach
for
RACT
in
General
for
Areas
Covered
Under
Subpart
2
We
are
proposing
that
the
RACT
requirement
for
areas
covered
under
subpart
2
apply
as
specified
in
subpart
2.
Thus,
areas
classified
as
marginal
that
had
a
pre­
1990
obligation
for
RACT
would
continue
to
have
that
obligation.
Areas
classified
as
moderate
and
above
would
be
required
to
adopt
RACT
for
the
categories
covered
by
the
CTG's
that
EPA
has
issued
and
to
adopt
non­
CTG
RACT
measures
for
major
sources.
53
3.
Proposed
Approach
for
RACT
in
General
for
Areas
Covered
Only
Under
Subpart
1
We
are
proposing
two
alternative
options
for
addressing
RACT
for
areas
covered
under
subpart
1.
a.
Option
1:
Treatment
of
RACT
similar
to
subpart
2
areas.
Based
on
the
provisions
of
the
CAA
described
above
and
the
apparent
differences
in
treatment
regarding
RACT
between
marginal
and
other
areas,
we
propose
to
interpret
the
CAA
in
a
manner
similar
to
that
under
subpart
2
by
requiring
areas
covered
under
subpart
1
to
face
different
RACT
requirements
based
on
the
magnitude
of
the
ozone
problem.
This
proposal
has
the
advantage
of
minimizing
some
of
the
apparent
inequities
that
might
exist
under
the
classification
option
(
discussed
elsewhere
in
this
proposed
rulemaking)
in
which
some
areas
are
covered
under
subpart
1
and
others
under
subpart
2.
(
i)
Areas
similar
to
marginal
areas.
Those
8­
hour
nonattainment
areas
covered
only
under
subpart
1
that
have
an
ozone
problem
that
is
similar
in
degree
to
that
of
a
marginal
area
would
be
subject
to
the
same
RACT
requirement
as
areas
classified
as
marginal
under
subpart
2.
These
areas
would
be
defined
as
those
whose
8­
hour
ozone
design
value
at
the
time
of
designation/
classification
would
have
placed
them
in
the
marginal
classification
if
they
had
been
subject
to
subpart
2
(
i.
e.,
areas
that
have
an
8­
hour
design
value
of
less
than
0.092
ppm.
(
See
elsewhere
in
this
proposed
rulemaking
under
the
section
concerning
classification.)
Similarly,
if
we
adopt
the
incentive
feature
proposed
in
the
classification
section,
and
a
subpart
1
area
with
a
design
value
of
0.092
ppm
or
greater
can
demonstrate
that
it
will
attain
within
3
years
after
designation,
then
it
would
be
subject
to
the
same
RACT
requirement
as
applies
to
marginal
areas
under
subpart
2.
As
noted
in
the
background
of
this
section,
the
1990
CAA
Amendments
did
not
require
marginal
areas
(
with
the
exception
of
those
located
in
the
OTR)
to
adopt
any
RACT
rules
if
they
did
not
have
a
pre­
1990
obligation
to
do
so.
Marginal
areas
that
had
a
pre­
1990
obligation
for
RACT
were
required
to
make
any
corrections
to
those
rules
that
we
had
previously
identified.
(
ii)
Areas
similar
to
moderate
and
higher­
classified
areas.
Those
8­
hour
nonattainment
areas
covered
under
subpart
1
that
have
an
ozone
problem
that
is
similar
in
degree
to
that
of
a
moderate
or
higher­
classified
area
would
be
subject
to
the
same
RACT
requirements
as
those
that
apply
in
subpart
2
for
moderate
and
above
areas.
These
areas
would
be
defined
as
those
whose
8­
hour
ozone
design
value
at
the
time
of
designation/
classification
would
have
placed
them
in
the
moderate
or
above
classification
if
they
had
been
subject
to
subpart
2.
As
proposed
elsewhere
in
this
proposed
rulemaking,
this
would
mean
areas
that
have
an
8­
hour
design
value
of
0.092
ppm
or
greater
that
are
not
able
to
demonstrate
attainment
within
3
years
after
designation.
b.
Option
2:
Alternative
treatment
for
RACT
under
subpart
1.
This
option
is
similar
to
the
approach
we
proposed
in
our
November
17,
1998
draft
implementation
guidance.
54
At
the
time,
we
stated
that
we
believed
we
had
authority
under
subpart
1
to
apply
an
interpretation
for
RACT
for
ozone
nonattainment
areas
for
the
8­
hour
NAAQS
that
was
similar
to
the
Agency's
policy
for
pollutants
other
than
ozone.
Under
that
interpretation
and
this
option,
for
the
8­
hour
ozone
NAAQS,
if
the
area
is
able
to
demonstrate
attainment
of
the
standard
as
expeditiously
as
practicable
with
emission
control
measures
in
the
SIP,
then
RACT
will
be
met,
and
additional
measures
would
not
be
required
as
being
reasonably
available.
c.
Ozone
transport
regions.
In
addition,
all
areas
of
the
OTR
are
required
to
adopt
NOX
and
VOC
RACT
requirements,
regardless
of
their
attainment
classification.
55
Of
course,
these
areas
were
already
required
to
submit
RACT
rules
for
purposes
of
the
1­
hour
standard.

4.
Proposed
Approach
for
Previous
Source­
Specific
Major
Source
RACT
Determinations
Section
182(
b)(
2)(
C)
requires
SIPs
in
moderate
and
higher
classified
areas
to
provide
for
RACT
for
major
stationary
sources
of
VOC
that
are
not
covered
by
CTGs.
Section
182(
f)(
1)
provided
that
this
requirement
also
apply
to
major
sources
of
NOX.
Many
areas
subject
to
the
major
source
RACT
requirement
under
the
8­
hour
ozone
standard
would
have
previously
addressed
the
RACT
requirement
with
respect
to
the
1­
hour
ozone
standard.
This
includes
the
non­
CTG
major
source
VOC
RACT
requirement
and
the
NOX
major
source
RACT
requirement.
For
example,
major
sources
located
in
States
of
the
OTC
were
subject
to
the
NOX
RACT
requirement
in
the
mid­
1990s.
We
believe
that,
in
many
cases,
a
new
RACT
determination
under
the
8­
hour
standard
would
call
for
installation
of
similar
control
technology
as
the
initial
RACT
determination
under
the
1­
hour
standard
because
the
fundamental
control
techniques
are
still
applicable.
In
other
cases,
a
new
RACT
analysis
could
determine
that
better
technology
has
become
available
and
some
additional
emissions
reductions
are
achievable.
The
cost
per
ton
of
NOX
removed
associated
with
installing
a
second
round
of
RACT
controls
is
likely
to
be
high
in
many
cases
due
to
the
relatively
small
amount
of
additional
NOX
emission
reductions
expected.
In
these
cases,
the
additional
costs
associated
with
the
replacement
of
the
existing
RACT
controls
may
be
an
unnecessary
burden,
given
the
small
emissions
benefit
potential.
In
contrast,
a
RACT
analysis
for
uncontrolled
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Federal
Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
56
Memorandum
of
March
16,
1994,
from
D.
Kent
Berry
re:
``
Cost­
Effective
Nitrogen
Oxides
(
NOX
Reasonably
Available
Control
Technology
(
RACT).''
U.
S.
Environmental
Protection
Agency,
Research
Triangle
Park,
North
Carolina.
sources
would
be
much
more
likely
to
find
that
cost­
effective
controls
are
available.
Therefore,
in
portions
of
8­
hour
ozone
nonattainment
areas
where
major
sources
or
source
categories
were
previously
reviewed
and
controls
subsequently
applied
to
meet
the
RACT
requirement
under
the
1­
hour
standard,
we
propose
that
States
may
choose
to
accept
the
initial
RACT
analysis
as
meeting
the
RACT
requirements
for
the
8­
hour
program
and
need
not
submit
a
new
RACT
SIP.
At
the
time
the
State
submits
its
attainment
demonstration,
it
should
submit
a
certification
that
it
previously
met
the
RACT
requirement
as
part
of
its
SIP
revision.
We
also
propose
that
a
RACT
determination
would
be
necessary
for
major
sources
in
any
portion
of
the
8­
hour
nonattainment
area
that
was
not
subject
to
an
initial
RACT
program
under
the
1­
hour
standard.
Furthermore,
in
cases
where
the
initial
RACT
analysis
under
the
1­
hour
standard
for
a
specific
source
or
source
category
concluded
that
no
additional
controls
were
necessary,
we
propose
that
a
new
RACT
determination
is
required.
The
new
RACT
determination
is
needed
to
take
into
account
that
newer,
cost­
effective
control
measures
may
have
become
available
for
sources
that
were
not
previously
regulated.
Thus,
the
State
needs
to
reassess
whether
controls
should
be
required.
In
addition,
any
major
VOC
or
NOX
source
that
exists
at
the
time
of
final
rulemaking
on
implementation
of
the
8­
hour
ozone
standard
but
that
did
not
exist
during
a
previous
RACT
determination
must
be
subject
to
a
RACT
determination
as
part
of
the
SIP
for
the
8­
hour
ozone
standard.

5.
Proposed
Approach
for
NOX
RACT
Determinations
in
Areas
Affected
by
the
NOX
SIP
Call
All
States
submitting
SIP
revisions
to
meet
the
NOX
SIP
Call
(
October
27,
1998,
63
FR
57356)
have
elected
to
require
large
boilers
and
turbines
to
comply
with
an
emissions
cap­
and­
trade
program
consistent
with
EPA's
model
cap­
and­
trade
rule.
As
a
result,
all
these
sources
are
already
subject
to
stringent
control
requirements.
As
described
below,
these
sources
collectively
achieve
more
emissions
reductions
than
would
be
required
by
application
of
RACT
requirements
to
each
source.
Therefore,
where
a
nonattainment
area
is
located
in
a
State
with
an
EPAapproved
cap­
and­
trade
program,
EPA
proposes
that
sources
subject
to
the
capand
trade
program
already
meet
the
NOX
RACT
requirements.
In
previously
issued
guidance
concerning
NOX
RACT
for
boilers
and
turbines,
EPA
indicated
that
NOX
RACT
for
certain
types
of
electricity
generating
units
(
EGUs)
is
equivalent
to
the
title
IV
requirements
and
is
the
most
effective
level
of
combustion
modification
reasonably
available
(
NOX
General
Preamble
at
57
FR
55625).
In
subsequent
guidance,
EPA
further
indicated
that
NOX
RACT
should
generally
be
expected
to
achieve
approximately
30
 
50
percent
reduction
from
uncontrolled
levels.
56
Large
boilers
and
turbines
subject
to
the
NOx
SIP
Call
cap­
and­
trade
program
are
expected
to
achieve
much
greater
emissions
reductions
than
these
NOX
RACT
levels.
The
NOX
SIP
Call
base
case
assumes
EGUs
meet
the
title
IV
and/
or
RACT
requirements.
In
the
NOX
SIP
Call
control
case,
EGUs
are
expected
to
achieve
a
64
percent
reduction
beyond
the
base
case
requirements
(
65
FR
11225).
Thus,
these
EGUs
are
expected
to
reduce
emissions
by
far
greater
amounts
than
would
be
required
by
a
RACT
program.
Furthermore,
the
EGU
emissions
reductions
comprise
nearly
85
percent
of
the
overall
emissions
reductions
resulting
from
the
NOX
SIP
Call.
The
non­
EGUs
subject
to
the
States'
cap­
and­
trade
program
are
expected
to
achieve
a
60
percent
reduction
from
uncontrolled
levels
(
63
FR
57402).
These
non­
EGU
reductions
are
clearly
beyond
the
30
 
50
percent
expected
from
a
RACT
program.
Because
the
NOX
SIP
Call
is
a
marketbased
program,
there
may
be
a
few
units
that
choose
to
meet
those
requirements
simply
by
emissions
trading,
even
though
the
vast
majority
of
units
affected
by
the
NOX
SIP
Call
will
install
controls.
In
any
nonattainment
areas
where
this
is
the
case,
EPA
believes
that
the
overall
emission
reductions
from
sources
in
the
NOX
SIP
Call
cap­
andtrade
program
will
achieve
more
emissions
reductions
in
the
nonattainment
area
than
would
application
of
RACT
to
each
of
those
units.
In
summary,
the
level
of
emissions
reductions
required
by
the
NOX
SIP
Call
is
far
greater
than
the
level
of
reductions
achieved
by
controls
we
have
determined
to
be
NOX
RACT.
Therefore,
EPA
believes
the
sources
that
comply
with
the
NOX
SIP
Call
cap­
and­
trade
program
meet
NOX
RACT
requirements.
Accordingly,
EPA
proposes
that
the
State
need
not
perform
a
NOX
RACT
analysis
for
sources
subject
to
the
State's
emission
cap­
and­
trade
program
where
the
cap­
and­
trade
program
has
been
approved
by
EPA
as
meeting
the
NOX
SIP
Call
requirements
and
need
not
submit
a
new
NOX
RACT
SIP
for
those
sources.
EPA
invites
comment
on
this
approach.
As
described
in
section
4,
proposed
approach
for
previous
source­
specific
major
source
RACT
determinations,
States
would
need
to
make
a
RACT
determination
for
major
sources
not
subject
to
the
cap­
and­
trade
program.
However,
in
cases
where
States
have
adopted
controls
consistent
with
the
NOX
SIP
Call
for
cement
kilns
(
i.
e.,
30
percent
reduction),
the
State
may
choose
to
accept
the
NOX
SIP
Call
requirements
as
meeting
the
NOX
RACT
requirements
for
the
8­
hour
standard
and
need
not
submit
a
new
NOX
RACT
SIP
for
those
sources.
As
part
of
the
NOX
SIP
Call,
EPA
determined
that
highly
cost­
effective
controls
for
cement
kilns
will
achieve
a
30
percent
reduction
and
that
many
cement
plants
in
the
SIP
Call
region
implemented
such
controls
in
State
RACT
programs
(
63
FR
57418).
In
its
RACT
SIP
submission,
the
State
should
identify
the
cement
plants
that
are
subject
to
NOX
SIP
Call
controls
and
that,
therefore,
already
meet
RACT.
In
addition,
through
the
NOX
SIP
Call
or
other
programs
(
e.
g.,
NSR)
States
may
have
adopted
control
measures
for
specific
NOX
sources
that
equal
or
exceed
RACT
requirements.
For
these
sources,
States
may
choose
to
submit,
as
part
of
its
NOX
RACT
SIP
revision,
documentation
that
the
previously
adopted
control
measure
meets
the
RACT
requirement,
where
applicable.
Finally,
in
developing
the
NOX
SIP
Call,
States
may
have
considered
control
measures
for
sources
not
in
the
cap­
andtrade
program
 
or
may
consider
additional
sources
in
responding
to
the
second
phase
of
the
NOX
SIP
Call.
EPA's
NOX
RACT
guidance
(
NOX
General
Preamble
at
57
FR
55625)
encourages
States
to
develop
RACT
programs
that
are
based
on
``
areawide
average
emission
rates.''
Thus,
States
can
submit
a
demonstration
as
part
of
their
RACT
submittal
showing
that
the
weighted
average
emission
rate
from
sources
in
the
nonattainment
area
subject
to
RACT
 
including
sources
reducing
emissions
to
meet
the
NOX
SIP
Call
requirements
 
meet
RACT
requirements.
It
should
also
be
noted
that
this
proposal
in
no
way
limits
States'
discretion
to
require
beyond­
RACT
NOX
reductions
from
any
source
(
including
NOX
SIP
Call
sources)
in
a
plan
to
demonstrate
attainment
of
the
healthbased
ozone
standards.
In
certain
areas,
States
may
choose
to
require
NOX
controls
based
on
more
advanced
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2,
2003
/
Proposed
Rules
57
For
example,
the
1991
National
Academy
of
Sciences
report
entitled
Rethinking
the
Ozone
Problem
in
Urban
and
Regional
Air
Pollution
recommends
that
``
To
substantially
reduce
O3
[
ozone]
concentrations
in
many
urban,
suburban,
and
rural
areas
of
the
United
States,
the
control
of
NOX
emissions
will
probably
be
necessary
in
addition
to,
or
instead
of,
the
control
of
VOCs.''
58
For
example,
NOX
SIP
Call
(
published
October
27,
1998),
Tier
2/
Gasoline
Sulfur
regulations
(
published
on
February
10,
2000);
and
Control
of
Emissions
of
Air
Pollution
from
2004
and
Later
Model
Year
Heavy­
duty
Highway
Engines
and
Vehicles
(
published
October
6,
2000).
59
``
State
Implementation
Plans;
General
Preamble
for
the
Implementation
of
Title
I
of
the
Clean
Air
Act
Amendments
of
1990;
Proposed
Rule.''
57
FR
13498
at
13560
(
April
16,
1992).
``
Guidance
on
the
Reasonably
Available
Control
Measures
(
RACM)
Requirement
and
Attainment
Demonstration
Submissions
for
Ozone
Nonattainment
Areas.''
John
S.
Seitz,
Director,
Office
of
Air
Quality
Planning
and
Standards.
November
30,
1999.
Web
site:
www.
epa.
gov/
ttn/
oarpg/
t1pgm.
html.
Memorandum
of
December
14,
2000,
from
John
S.
Seitz,
Director,
Office
of
Air
Quality
Planning
and
Standards,
re:
``
Additional
Submission
on
RACM
from
States
with
Severe
One­
Hour
Ozone
Nonattainment
Area
SIPs.''
60
Section
182(
a)
provided
that
marginal
areas
with
pre­
1990
RACT
obligations
had
to
submit
corrections
to
their
RACT
rules
within
6
months
after
classification
under
the
1990
CAAA.
New
8­
hour
ozone
nonattainment
areas
that
are
classified
as
marginal
would
not
have
this
requirement.
61
See
57
FR
55622
(``
Nitrogen
Oxides
Supplement
to
the
General
Preamble,''
published
November
25,
1992).
62
As
stated
in
EPA's
I/
M
(
57
FR
52950)
and
conformity
rules
(
60
FR
57179
for
transportation
rules
and
58
FR
63214
for
general
rules),
certain
NOX
requirements
do
not
apply
where
EPA
granted
an
areawide
exemption
under
section
182(
f).
63
See
57
FR
55620,
``
Nitrogen
Oxides
Supplement
to
the
General
Preamble,''
published
November
25,
1992.
64
The
EPA's
primary
guidance
regarding
section
182(
f)
is
contained
in
the
``
Guideline
for
Determining
the
Applicability
of
Nitrogen
Oxide
Requirements
under
Section
182(
f),''
issued
by
John
S.
Seitz,
Director,
Office
of
Air
Quality
Planning
and
Standards,
to
the
Regional
Division
Directors,
December
16,
1993.
control
technologies
to
provide
for
attainment
of
the
ozone
standards.
As
stated
in
section
3,
above,
we
are
proposing
an
alternative
option
for
RACT
under
subpart
1.
In
this
option,
areas
that
are
able
to
demonstrate
attainment
of
the
8­
hour
standard
as
expeditiously
as
practicable
with
the
control
measures
in
their
SIP
would
be
considered
as
having
met
RACT.

6.
Proposed
Approach
for
NOX
as
an
Ozone
Precursor
In
addition
to
the
issue
regarding
the
nature
of
the
RACT
rules
that
apply
under
subpart
1,
another
issue
concerns
the
pollutants
(
precursors)
to
which
the
RACT
rules
apply.
Although
NOX
has
long
been
recognized
as
a
precursor
to
ozone
57
and
several
national
rules
58
have
been
promulgated
to
control
NOX
for
purposes
of
helping
attain
the
ozone
standard,
subpart
1
does
not
specifically
address
either
NOX
or
VOC,
but
rather
RACT
in
general.
We
propose
to
clarify
this
by
recognizing
both
NOX
and
VOCs
as
precursors
to
ozone
and
to
require
NOX
and
VOC
RACT
under
subpart
1.
This
is
consistent
with
the
application
of
RACT
under
subpart
2.
Under
section
182(
f)
(
in
subpart
2),
a
waiver
from
NOX
RACT
is
possible
under
certain
circumstances
(
the
waiver
provision
is
discussed
elsewhere
in
this
proposed
rulemaking)
for
areas
subject
to
subpart
2.
We
are
proposing
to
allow
areas
subject
to
subpart
1,
to
seek
a
waiver
consistent
with
the
tests
set
forth
in
section
182(
f).

7.
Proposed
Approach
for
RACM
We
have
also
issued
guidance
for
implementing
the
RACM
provisions
of
the
CAA
that
interprets
those
provisions
to
require
a
demonstration
that
the
State
has
adopted
all
reasonable
measures
to
meet
RFP
and
attainment
as
expeditiously
as
practicable
and
thus
that
no
additional
measures
that
are
reasonably
available
will
advance
the
attainment
date
or
contribute
to
RFP
for
the
area.
59
The
RACM
requirement,
which
is
set
forth
in
section
172(
c)(
1)
of
the
CAA,
applies
to
all
nonattainment
areas
that
are
required
to
submit
an
attainment
demonstration,
whether
covered
under
only
subpart
1
or
also
subpart
2.

8.
Proposed
Submission
Date
for
RACT
and
RACM
Requirements
We
are
proposing
that
the
SIP
provisions
for
RACT
for
a
nonattainment
area
 
regardless
of
whether
the
area
is
covered
under
subpart
1
or
subpart
2
 
be
submitted
within
2
years
after
the
area's
nonattainment
designation;
this
is
consistent
with
the
timing
for
submission
of
RACT
rules
in
section
182(
b)(
2)
for
moderate
areas.
60
We
are
proposing
that
the
SIP
provisions
for
RACM
for
a
nonattainment
area
 
regardless
of
whether
the
area
is
covered
under
subpart
1
or
subpart
2
 
be
submitted
within
3
years
after
the
area's
nonattainment
designation;
this
is
consistent
with
the
timing
for
submission
of
an
area's
demonstration
of
attainment.

L.
How
Will
the
Section
182(
f)
NOX
Provisions
Be
Handled
Under
the
8­
Hour
Ozone
Standard?
In
subpart
2
of
part
D,
section
182(
f)
requires
States
to
apply
the
same
requirements
to
major
stationary
sources
of
NOX
as
are
applied
to
major
stationary
sources
of
VOC.
The
applicable
requirements
are
RACT
and
NSR
for
major
stationary
sources
in
certain
ozone
nonattainment
areas
and
throughout
States
in
the
OTR.
61
In
addition,
section
182(
f)
specifies
circumstances
under
which
these
NOX
requirements
would
be
limited
or
would
not
apply
(``
NOX
waiver'').
Further,
areas
granted
a
NOX
waiver
under
section
182(
f)
may
be
exempt
from
motor
vehicle
I/
M
and
certain
Federal
requirements
of
general
and
transportation
conformity.
62
For
the
same
reasons
described
in
the
``
Nitrogen
Oxides
Supplement
to
the
General
Preamble''
with
respect
to
the
1­
hour
ozone
standard,
we
propose
to
also
apply
the
NOX
requirements
and
waiver
provisions
in
section
182(
f)
for
8­
hour
ozone
nonattainment
areas
under
subpart
2
and
OTRs.
63
Elsewhere
in
today's
proposed
rulemaking,
we
propose
to
establish
NOX
as
a
precursor
to
ozone
under
subpart
1
and
require
RACT
and
NSR
in
subpart
1
nonattainment
areas
for
major
sources
of
NOX
as
well
as
VOC.
As
noted
in
the
preceding
paragraph,
we
are
also
proposing
that
the
NOX
RACT
and
NSR
requirements
apply
in
certain
subpart
2
nonattainment
areas
and
throughout
OTRs.
While
NOX
emissions
are
necessary
for
the
formation
of
ozone
in
the
lower
atmosphere,
a
local
decrease
in
NOX
emissions
can,
in
some
cases,
increase
local
ozone
concentrations.
This
potential
``
NOX
disbenefit''
resulted
in
Congress
including
NOX
waiver
provisions
in
section
182(
f)
(
in
subpart
2
of
part
D)
for
areas
classified
under
subpart
2.
We
believe
the
NOX
waiver
provisions
are
a
prudent
safeguard
to
avoid
unnecessary
emissions
reductions
and
that
these
safeguards
should
be
extended
to
areas
classified
under
subpart
1
that
are
subject
to
the
NOX
RACT
and
NSR
provisions.
Therefore,
we
propose
to
establish
NOX
waiver
provisions
identical
to
those
in
section
182(
f)
for
areas
subject
to
subpart
1.
In
the
event
that
the
final
rulemaking
does
not
establish
NOX
as
a
precursor
to
ozone
under
subpart
1
and
the
NOX
RACT
and/
or
NSR
requirements
do
not
apply,
a
NOX
waiver
provision
would
be
unnecessary
with
respect
to
subpart
1
areas.
We
propose
that
the
concepts
contained
in
the
existing
1­
hour
ozone
guidance
64
regarding
section
182(
f)
would
apply
for
the
8­
hour
ozone
program
under
subparts
1
and
2.
We
would
update
the
existing
guidance
to
take
into
account
the
new
ozone
and
PM
standards
and
modeling
techniques
now
available.
For
areas
that
were
previously
granted
a
NOX
waiver
under
the
1­
hour
ozone
standard,
a
re­
approval
would
be
needed
to
make
it
clear
that
the
exemption
applies,
to
allow
for
public
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Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
65
The
EPA's
Conformity
Guidance
on
Implementation
of
March
2,
1999,
Conformity
Court
Decision
(
EPA
420
 
F
 
99
 
025,
May
1999).
comment,
to
be
consistent
with
the
waiver
guidance
under
the
8­
hour
standard
(
once
issued),
and
to
account
for
any
new
information
that
may
point
to
a
different
conclusion.

M.
What
Aspects
of
Transportation
Conformity
and
the
8­
Hour
Ozone
Standard
Are
Addressed
in
This
Proposal?

1.
What
Is
Transportation
Conformity?

Transportation
conformity
is
required
under
section
176(
c)
of
the
CAA
(
42
U.
S.
C.
§
7506(
c))
to
ensure
that
federally
supported
highway
and
transit
project
activities
are
consistent
with
(``
conform
to'')
the
purpose
of
a
SIP.
Conformity
to
the
purpose
of
the
SIP
means
that
transportation
activities
will
not
cause
new
air
quality
violations,
worsen
existing
violations,
or
delay
timely
attainment
of
the
NAAQS.
Transportation
conformity
applies
in
nonattainment
areas
and
maintenance
areas.
EPA's
transportation
conformity
rule,
40
CFR
part
93,
establishes
the
criteria
and
procedures
for
determining
whether
transportation
activities
conform
to
the
State
air
quality
plan.
It
also
establishes
criteria
and
procedures
for
determining
whether
transportation
activities
conform
in
areas
where
no
SIP
containing
mobile
source
emissions
budgets
yet
exists.
EPA
first
published
the
transportation
conformity
rule
on
November
24,
1993
(
58
FR
62188)
and
has
amended
the
rule
several
times.
On
August
15,
1997,
a
comprehensive
set
of
amendments
was
published
that
clarified
and
streamlined
language
from
the
1993
transportation
conformity
rule
(
62
FR
43780).
These
rulemakings,
as
well
as
other
relevant
conformity
materials
such
as
guidance
documents,
policy
memoranda,
and
conformity
research
can
be
found
at
EPA's
transportation
conformity
Web
site,
at:
http://
www.
epa.
gov/
otaq/
transp.
htm
(
once
at
the
site,
click
on
``
Transportation
Conformity.'')

2.
Why
Is
EPA
Discussing
Transportation
Conformity
in
This
Proposed
Rulemaking?

We
are
discussing
transportation
conformity
in
this
proposed
rulemaking
in
order
to
provide
affected
parties
with
information
on
when
transportation
conformity
will
be
implemented
under
the
8­
hour
ozone
standard
and
how
we
plan
to
make
the
transition
from
the
1­
hour
ozone
standard
to
the
8­
hour
ozone
standard.
Affected
parties
may
include
State
and
local
transportation
and
air
quality
agencies,
metropolitan
planning
organizations
(
MPOs)
and
the
U.
S.
Department
of
Transportation
(
DOT).
To
determine
whether
this
discussion
affects
your
organization,
you
should
carefully
examine
the
applicability
requirements
in
40
CFR
93.102
of
the
transportation
conformity
rule.

3.
Are
Any
Changes
Being
Made
to
Transportation
Conformity
in
This
Proposed
Rulemaking?
No,
we
are
not
proposing
changes
to
the
transportation
conformity
rule
in
this
proposed
rulemaking.
In
the
future,
we
plan
to
conduct
a
rulemaking
to
establish
the
specific
conformity
tests
that
will
apply
under
the
8­
hour
standard.
We
intend
to
complete
that
rulemaking
prior
to
area
designations
for
the
8­
hour
standard
and
will
provide
the
public
with
the
opportunity
to
comment
on
the
proposed
changes.
We
plan
to
propose
this
rulemaking
in
the
summer
of
2003.

4.
When
Does
Transportation
Conformity
Apply
to
8­
hour
Ozone
Nonattainment
Areas?
Transportation
conformity
applies
to
8­
hour
ozone
nonattainment
areas
1
year
after
the
effective
date
of
an
area's
designation.
This
1­
year
grace
period
is
found
in
the
CAA
at
42
U.
S.
C.
7506(
c)(
6).
Specifically,
this
section
of
the
CAA
provides
areas,
that
for
the
first
time
are
designated
nonattainment
for
a
given
air
quality
standard,
with
a
1­
year
grace
period
before
the
conformity
regulation
applies
with
respect
to
that
standard.
Since
the
8­
hour
ozone
standard
is
a
different
standard
from
the
1­
hour
ozone
standard,
every
area
that
is
designated
nonattainment
for
the
8­
hour
ozone
standard
will
have
a
1­
year
grace
period
before
conformity
applies
for
the
8­
hour
standard,
regardless
of
whether
or
not
it
was
designated
nonattainment
or
maintenance
for
the
1­
hour
ozone
standard.
For
more
information,
please
see
the
proposed
and
final
rulemaking
entitled,
``
Transportation
Conformity
Rule
Amendments:
Minor
Revision
of
18­
Month
Requirement
for
Initial
SIP
Submissions
and
Addition
of
Grace
Period
for
Newly
Designated
Nonattainment
Areas,''
published
October
5,
2001
(
66
FR
50954);
and
August
6,
2002
(
67
FR
50808),
respectively
for
additional
discussion
of
the
1­
year
grace
period
for
newly
designated
areas.
(
The
proposed
and
final
rule
can
be
found
on
EPA's
transportation
conformity
Web
site
mentioned
above.)

5.
How
Does
the
1­
Year
Grace
Period
Apply
in
Metropolitan
Areas?
Metropolitan
areas
are
those
areas
that
have
a
MPO
designated
as
being
responsible
for
transportation
planning
per
23
U.
S.
C.
134.
In
these
areas,
the
1­
year
grace
period
means
that,
1
year
after
the
effective
date
of
an
area's
designation
as
nonattainment
for
the
8­
hour
standard,
the
area
must
have
a
conforming
transportation
plan
and
Transportation
Improvement
Program
in
place
to
fund
or
approve
transportation
projects.
If,
at
the
conclusion
of
the
1­
year
grace
period,
a
metropolitan
area
is
not
able
to
make
a
conformity
determination
for
its
plan
and
Transportation
Improvement
Program,
the
area
will
be
in
what
is
known
as
a
``
conformity
lapse.''
(
For
the
discussion
of
which
projects
can
proceed
during
a
conformity
lapse,
please
see
DOT's
January
2,
2002
guidance,
published
February
7,
2002,
at
67
FR
5882;
and
EPA's
May
14,
1999
guidance.
65
Both
of
these
documents
can
be
found
on
EPA's
transportation
conformity
Web
site:
http://
www.
epa.
gov/
otaq/
transp/
traqconf.
htm.

6.
How
Does
the
1­
Year
Grace
Period
Apply
in
``
Donut''
Areas?
For
the
purposes
of
conformity,
a
donut
area
is
the
geographic
area
outside
a
metropolitan
planning
area
boundary,
but
inside
the
boundary
of
a
designated
nonattainment/
maintenance
area.
The
conformity
requirements
for
donut
areas
are
generally
the
same
as
those
for
metropolitan
areas,
and
the
MPO
would
include
any
projects
occurring
in
the
donut
area
in
its
analysis
of
the
metropolitan
transportation
plan
and
TIP.
Therefore,
the
one­
year
grace
period
applies
to
donut
areas
in
much
the
same
way
that
it
applies
to
metropolitan
areas.
That
is,
within
one
year
of
the
effective
date
of
an
area's
designation,
a
donut
area's
projects
must
be
included
in
an
MPO's
conformity
determination
for
the
metropolitan
plan
and
TIP
for
those
projects
to
be
funded
or
approved.
If,
at
the
conclusion
of
the
one­
year
grace
period,
the
donut
area's
projects
have
not
been
included
in
an
MPO's
conformity
determination,
the
entire
nonattainment
area's
conformity
would
lapse.

7.
How
Does
the
1­
Year
Grace
Period
Apply
in
Isolated
Rural
Areas?

For
the
purposes
of
conformity,
a
nonattainment
or
maintenance
area
(
or
portion
thereof)
is
considered
to
be
an
isolated
rural
area
if
it
does
not
have
a
metropolitan
transportation
plan
or
Transportation
Improvement
Program
required
under
23
U.
S.
C.
134,
and
its
projects
are
not
considered
in
the
emissions
analysis
of
any
MPO's
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/
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2,
2003
/
Proposed
Rules
transportation
plan
or
Transportation
Improvement
Program.
Isolated
rural
areas
are
distinguished
from
``
donut''
areas
which
are
outside
the
metropolitan
planning
boundary
and
inside
the
nonattainment/
maintenance
area
boundary.
Because
isolated
rural
areas
do
not
have
federally
required
metropolitan
transportation
plans
and
Transportation
Improvement
Programs,
a
conformity
determination
need
only
be
done
in
an
isolated
rural
area
when
that
area
has
a
transportation
project
or
projects
that
need
approval.
Therefore,
isolated
rural
areas
also
have
a
1­
year
grace
period
before
conformity
applies
under
the
8­
hour
ozone
standard,
but
at
the
end
of
that
grace
period,
the
area
is
not
required
to
have
made
a
conformity
determination.
An
isolated
rural
area
would
be
required
to
make
a
conformity
determination
only
at
the
point
when
a
new
transportation
project
needs
approval.
This
point
may
occur
significantly
after
the
1­
year
grace
period
has
ended.
(
Conformity
requirements
for
isolated
rural
areas
can
be
found
at
40
CFR
93.109(
g)).

8.
Does
Conformity
Apply
for
the
1­
Hour
Ozone
Standard
Once
the
1­
Hour
Ozone
Standard
Is
Revoked?
The
CAA
only
requires
conformity
in
areas
that
are
designated
nonattainment
or
maintenance
for
a
standard.
Therefore,
conformity
will
not
apply
for
purposes
of
the
1­
hour
ozone
standard
after
the
1­
hour
standard
and
an
area's
1­
hour
designation
are
revoked.
In
other
words,
existing
1­
hour
ozone
nonattainment
and
maintenance
areas,
including
those
that
will
not
be
designated
nonattainment
for
the
8­
hour
ozone
standard,
will
no
longer
be
required
to
demonstrate
conformity
to
the
1­
hour
standard
when
EPA
revokes
the
standard,
1
year
after
the
effective
date
of
EPA's
8­
hour
ozone
designations.
This
interpretation
that
conformity
would
not
apply
in
1­
hour
ozone
maintenance
areas
once
the
1­
hour
standard
is
revoked
is
a
change
from
the
approach
we
planned
to
take
in
1997.
Since
that
time,
we
have
reconsidered
whether
or
not
conformity
should
continue
to
apply
in
maintenance
areas.
We
have
concluded
that
the
better
interpretation
is
that
conformity
would
not
apply
in
1­
hour
maintenance
areas
once
the
1­
hour
ozone
standard
is
revoked
because
maintenance
areas
are
relieved
of
the
obligation
under
section
175A
of
the
CAA
to
have
a
maintenance
plan.
Since
a
maintenance
plan
is
not
required,
conformity
no
longer
applies
in
these
areas.
A
detailed
discussion
of
our
plans
for
revoking
the
1­
hour
standard
and
the
associated
1­
hour
designations
may
be
found
elsewhere
in
today's
proposed
rulemaking.

9.
What
Are
EPA's
Plans
for
Amending
the
Conformity
Rule
To
Address
the
8­
Hour
Ozone
Standard?
The
conformity
rule
will
need
to
be
amended
to
address
the
implementation
of
both
the
8­
hour
ozone
and
PM2.5
air
quality
standards.
We
plan
to
address
both
standards
in
one
revision
to
the
rule.
We
anticipate
proposing
this
revision
in
2003
and
finalizing
the
rulemaking
prior
to
EPA's
finalization
of
designations
of
nonattainment
areas
in
2004.
This
schedule
would
allow
areas
to
be
well
aware
of
the
conformity
requirements
that
will
apply
to
them
prior
to
the
start
of
the
1­
year
grace
period.
The
proposal
will
provide
an
opportunity
for
stakeholders
to
offer
comments
and
ideas
for
providing
flexibilities
that
would
be
appropriate
for
some
or
all
nonattainment
areas.

10.
What
Impact
Will
the
Implementation
of
the
8­
Hour
Ozone
Standard
Have
on
a
State's
Transportation
Conformity
SIP?
Since
we
are
not
now
proposing
to
make
specific
revisions
to
our
Transportation
Conformity
Regulations
in
this
proposal,
States
should
not
need
to
revise
their
Transportation
Conformity
SIPs,
unless
they
need
to
do
so
to
ensure
the
regulations
apply
in
the
appropriate
areas.

11.
What
Other
Parts
of
This
Proposal
Could
Affect
Transportation
Conformity
Determinations?
We
believe
that
transportation
conformity
stakeholders
would
be
interested
in
the
proposed
Clean
Air
Development
Communities
program
found
in
section
O,
question
9
of
this
proposal.
Section
O
discusses
how
we
propose
to
implement
the
NSR,
EPA's
program
that
regulates
emissions
from
stationary
sources
such
as
power
plants,
under
the
8­
hour
ozone
standard.
In
question
9
of
section
O,
we
propose
two
options
to
recognize
the
air
quality
benefits
that
may
result
from
siting
new
sources
and
planning
development
in
a
particular
manner.
Under
these
two
options,
the
air
quality
benefit
of
location
decisions
would
be
applied
to
the
stationary
source
sector.
Because
the
benefits
of
measures
cannot
be
counted
twice,
if
air
quality
benefits
of
location
decisions
are
applied
to
the
stationary
source
sector,
they
could
not
also
be
credited
to
the
transportation
sector
in
a
conformity
determination.
These
options
and
their
implications
are
discussed
in
further
detail
in
section
O,
question
9.
We
encourage
transportation
conformity
stakeholders
to
review
that
section
carefully
and
submit
any
comments
to
us.

N.
What
Requirements
for
General
Conformity
Should
Apply
to
the
8­
Hour
Ozone
Standard?

1.
What
Is
the
Purpose
of
the
General
Conformity
Regulations?

Section
176(
c)
of
the
CAA
requires
that
before
a
Federal
entity
takes
an
action,
it
must
make
a
determination
that
the
proposed
action
will
not
interfere
with
the
SIP
or
the
State's
ability
to
attain
and
maintain
the
NAAQS.
In
November
1993,
EPA
promulgated
two
sets
of
regulations
to
implement
section
176(
c).
One
set,
known
as
the
Transportation
Conformity
Regulations
(
described
above)
deals
with
approval
and
funding
of
highway
and
mass
transit
projects.
The
other
set,
known
as
the
general
conformity
regulations,
deals
with
all
other
Federal
activities.
Besides
ensuring
that
Federal
actions
will
not
interfere
with
the
SIP,
the
general
conformity
program
also
fosters
communications
with
State/
local
air
quality
agencies,
allows
for
public
participation
in
the
review
of
air
quality
impacts
from
Federal
actions,
and
allows
for
air
quality
review
of
individual
projects.
In
1995,
Congress
limited
the
application
of
section
176(
c)
to
nonattainment
and
maintenance
areas
only.

2.
How
Is
the
General
Conformity
Program
Currently
Structured?

Due
to
the
very
broad
definition
of
``
Federal
action''
in
the
statute
and
the
number
of
Federal
agencies
subject
to
the
conformity
requirement,
the
number
of
individual
conformity
decisions
could
have
been
on
the
order
of
a
thousand
or
more
per
day.
To
avoid
creating
an
unreasonable
administrative
burden,
EPA
established
de
minimis
emissions
levels
and
exempted
certain
actions.
In
addition,
the
regulations
allow
Federal
agencies
to
develop
their
own
list
of
actions
which
are
presumed
to
conform.
For
non­
exempt
actions
that
increase
emissions
above
the
de
minimis
levels,
the
Federal
agency
must
demonstrate
that
the
action
will
conform
with
the
SIP
or
will
not
cause
or
contribute
to
any
new
violation
of
any
standard
in
any
area;
interfere
with
provisions
in
the
applicable
SIP
for
maintenance
of
any
standard;
increase
the
frequency
or
severity
of
any
existing
violation
of
any
standard;
or
delay
timely
attainment
of
any
standard
or
any
required
interim
emissions
reductions
or
other
milestone.
We
are
currently
reviewing
the
general
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Rules
conformity
program
and,
in
a
separate
action,
may
revise
the
regulations
as
appropriate,
with
respect
to
the
8­
hour
standard.

3.
Who
Runs
the
General
Conformity
Program?
Each
Federal
agency
is
responsible
for
determining
if
the
action
it
takes
is
subject
to
the
conformity
regulations
and,
if
so,
whether
the
action
conforms
to
the
SIP.
Each
Federal
agency's
approach
to
the
conformity
evaluation
differs
depending
upon
the
actions
being
taken.
Agencies
that
are
permitting
or
funding
actions
subject
to
the
conformity
rules
generally
require
the
applicant
to
develop
the
technical
support
for
the
conformity
determination,
although
some
agencies
undertake
the
complete
evaluation
themselves.

4.
How
Does
an
Agency
Demonstrate
Conformity?
Depending
upon
the
pollutant
and
the
specific
situation,
Federal
agencies
have
several
options
for
demonstrating
conformity.
For
actions
in
ozone
nonattainment
and
maintenance
areas,
the
Federal
agency
can
demonstrate
that
the
project/
action
is
specifically
identified
and
accounted
for
in
the
SIP,
obtain
documentation
from
the
State
that
the
emissions
are
included
in
the
SIP,
have
the
State
commit
to
include
the
emissions
in
the
SIP,
or
mitigate
the
emissions
or
offset
the
emissions
from
emissions
reductions
within
the
same
nonattainment
or
maintenance
area.

5.
General
Conformity
Regulation
Revisions
for
the
8­
Hour
Ozone
Standard
a.
What
de
minimis
emission
levels
will
be
set
for
ozone
precursors?
For
the
ozone
precursors
VOC
and
NOX,
we
are
proposing
to
retain
the
existing
de
minimis
emission
levels.
Those
levels
were
based
on
the
definition
of
a
major
stationary
source
for
the
NSR
programs
as
established
by
sections
182,
183,
and
302
of
the
CAA.
The
current
de
minimis
levels
are
identified
in
Table
4
below.

TABLE
4.
 
DE
MINIMIS
EMISSION
LEVELS
FOR
VOC
AND
NOX
Type
of
ozone
area
VOC
tons/
year
NOX
tons/
year
Extreme
Nonattainment
......................
10
10
Severe
Nonattainment
......................
25
25
Serious
Nonattainment
......................
50
50
Moderate
and
Marginal
Nonattainment
in
the
OTR
...
50
100
TABLE
4.
 
DE
MINIMIS
EMISSION
LEVELS
FOR
VOC
AND
NOX
 
Continued
Type
of
ozone
area
VOC
tons/
year
NOX
tons/
year
Other
Nonattainment
100
100
Maintenance
in
OTR
50
100
Other
Maintenance
...
100
100
Areas
covered
by
subpart
1
are
included
in
the
``
Other
Nonattainment''
category
listed
in
Table
4
and
would
have
de
minimis
emission
levels
of
100
tons
per
year
for
both
VOC
and
NOX
emissions.
b.
What
impact
will
the
implementation
of
the
8­
hour
ozone
standard
have
on
a
State's
general
conformity
SIP?
Since
we
are
not
now
proposing
to
make
specific
revisions
to
its
general
conformity
regulations
in
this
proposal,
States
should
not
need
to
revise
their
general
conformity
SIPs,
unless
they
need
to
do
so
to
ensure
the
regulations
apply
in
the
appropriate
areas.
c.
Are
there
any
other
impacts
on
the
SIPs
related
to
general
conformity
based
on
implementation
of
the
8­
hour
standard?
Currently,
we
are
reviewing
the
general
conformity
regulations
and
are
considering
whether
it
would
be
appropriate
to
revise
them
in
the
near
future.
We
are
not
proposing
any
revisions
at
this
time.
However,
as
areas
develop
SIPs
for
the
8­
hour
ozone
standard,
we
recommend
that
State
and
local
air
quality
agencies
work
with
major
facilities
which
are
subject
to
the
general
conformity
regulations
(
e.
g.,
commercial
airports
and
large
military
bases)
to
establish
an
emission
budget
for
those
facilities
in
order
to
facilitate
future
conformity
determinations.
Such
a
budget
could
be
used
by
Federal
agencies
in
determining
conformity
or
identifying
mitigation
measures.

6.
How
Does
the
1­
Year
Grace
Period
Apply
to
General
Conformity
Determinations?

Section
42
U.
S.
C.
7506(
c)(
6)
applies
to
both
transportation
and
general
conformity.
Therefore,
the
general
conformity
requirements
would
not
apply
to
actions/
projects
in
newly
designated
nonattainment
areas
until
1
year
after
the
effective
date
of
the
designation.
As
discussed
in
section
M.
4.,
the
8­
hour
ozone
standard
is
a
new
standard
and
the
grace
period
applies
to
all
the
areas
designated
nonattainment
for
that
standard.
Actions/
projects
in
areas
previously
designated
nonattainment
or
maintenance
for
the
1­
hour
ozone
standard
must
demonstrate
conformity
for
the
1­
hour
standard
until
that
standard
is
revoked
in
whole
or
in
part.
Once
the
1­
hour
ozone
standard
is
revoked
in
whole
or
in
part,
Federal
agencies
will
be
required
to
conduct
conformity
determinations
for
the
8­
hour
standard
if
the
project/
action
is
in
an
area
designated
nonattainment
for
that
standard.
The
general
conformity
regulations
specify
requirements
for
actions/
projects
in
areas
without
an
approved
SIP.
Those
requirements
would
apply
to
8­
hour
ozone
nonattainment
areas
until
the
SIP
is
approved
by
EPA.

O.
How
Should
the
NSR
Program
be
Implemented
Under
the
8­
Hour
Ozone
NAAQS?

1.
Background
The
major
NSR
program
contained
in
parts
C
and
D
of
title
I
of
the
CAA
is
a
preconstruction
review
and
permitting
program
applicable
to
new
or
modified
major
stationary
sources
of
air
pollutants
regulated
under
the
CAA.
In
nonattainment
areas,
and
throughout
the
OTR,
the
program
is
implemented
under
the
requirements
of
part
D
of
Title
I
of
the
CAA,
and
is
referred
to
as
nonattainment
NSR.
In
attainment
or
unclassifiable
areas
outside
the
OTR,
the
requirements
under
part
C
of
title
I
of
the
CAA
apply,
and
the
program
is
called
the
Prevention
of
Significant
Deterioration
(
PSD)
program.
Collectively,
we
also
commonly
refer
to
these
programs
as
the
major
NSR
program.
These
regulations
are
contained
in
40
CFR
51.165,
51.166,
52.21,
52.24
and
part
51,
appendix
S.
In
attainment/
unclassifiable
areas
outside
of
the
OTR,
a
new
major
source,
or
a
major
modification
to
an
existing
source,
must
install
best
available
control
technology
(
BACT)
and
conduct
an
air
quality
modeling
analysis
and
an
analysis
of
potential
impacts
on
Class
I
areas
(
see
section
162
of
the
CAA).
If
the
source
is
located
in
a
nonattainment
area,
or
anywhere
in
the
OTR,
including
OTR
attainment
areas,
it
must
install
technology
that
meets
the
lowest
achievable
emission
rate
(
LAER),
secure
emission
reductions
to
offset
any
increases
in
emissions,
and
perform
other
analyses.
As
of
the
date
areas
are
designated
attainment
or
nonattainment
under
the
8­
hour
standard,
major
NSR
will
apply
under
the
standard.
In
areas
outside
the
OTR
that
will
be
designated
as
attainment
for
the
8­
hour
ozone
standard,
the
part
C
PSD
program
will
apply.
As
there
are
currently
PSD
programs
in
place
in
all
areas
of
the
country,
implementation
of
the
new
standard
should
be
a
straightforward
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Should
EPA
issue
revisions
to
these
regulations,
the
revised
NSR
program
would
of
course
apply
to
new
sources
and
major
modifications.
67
States
with
already
applicable
part
D
NSR
programs
may
choose
to
amend
their
SIPs
to
allow
them
to
take
advantage
of
the
transitional
option
described
in
this
section,
provided
they
meet
the
transitional
program
eligibility
criteria.
matter.
(
Note
that
one
change
we
will
be
codifying
is
the
addition
of
NOX
as
an
ozone
precursor.
This
is
discussed
in
more
detail
later
in
this
section).
In
areas
newly
designated
as
nonattainment
for
the
8­
hour
ozone
standard,
however,
a
number
of
implementation
issues
will
arise,
which
we
discuss
below.
Typically,
upon
designation,
nonattainment
areas
would
be
required
to
implement
nonattainment
NSR
for
major
sources
and
major
modifications.
66
However,
in
order
to
reduce
the
burden
for
nonattainment
areas
meeting
certain
conditions,
we
are
proposing
a
revised
set
of
major
NSR
requirements
under
the
authority
of
40
CFR
Part
51,
appendix
S,
section
VI.
We
are
referring
to
this
as
the
transitional
program,
and
it
is
discussed
in
more
detail
later
in
this
section.

2.
Nonattainment
NSR
Under
the
8­
Hour
Ozone
Standard
Some
States
may
already
have
in
place
a
part
D
major
source
program
applicable
to
newly
designated
8­
hour
ozone
nonattainment
areas.
For
nonattainment
areas
in
States
whose
SIPs
contain
a
generic
requirement
to
issue
part
D
major
source
NSR
permits
in
areas
designated
as
nonattainment,
nonattainment
NSR
permit
requirements
will
become
automatically
effective
upon
designation
(
See
Figure
1).
67
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Proposed
Rules
For
a
nonattainment
area
in
a
State
with
a
SIP
that
specifically
lists
the
areas
in
which
part
D
NSR
applies,
or
in
areas
which
currently
have
no
nonattainment
plan,
there
will
be
an
interim
period
between
the
designation
date
and
the
date
that
the
State
amends
its
SIP
either
to
list
any
new
nonattainment
area(
s)
or
to
include
a
part
D
plan.
During
this
interim
period,
part
D
NSR
requirements
are
governed
not
by
section
51.165,
but
by
appendix
S
to
part
51.
a.
What
does
appendix
S
require
for
nonattainment
areas
during
the
interim
period?
In
general,
appendix
S
requires
new
or
modified
major
sources
to
meet
LAER
and
obtain
sufficient
offsetting
emissions
reductions
to
assure
that
the
new
major
source
will
not
interfere
with
the
area's
progress
toward
attainment.
(
Readers
should
refer
to
40
CFR
part
51,
appendix
S
for
a
complete
understanding
of
these
and
other
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68
The
actual
language
at
40
CFR
52.24(
k)
allows
States
to
issue
permits
under
appendix
S
for
a
maximum
period
of
18
months
after
designation.
After
this
time,
if
the
nonattainment
area
does
not
have
an
approved
Part
D
NSR
permit
program,
a
construction
ban
would
apply.
However,
in
1990,
Congress
altered
the
provisions
of
the
construction
ban
such
that
it
would
not
apply
when
a
State
lacked
an
approved
part
D
NSR
permit
program
in
the
future.
We
believe
that
Congress'
removal
of
the
construction
ban
from
the
CAA
supersedes
the
regulatory
language
at
52.24(
k)
and
EPA
has
reinterpreted
this
language
to
allow
States
to
issue
permits
under
appendix
S
from
designation
until
the
SIP
is
approved
even
if
this
exceeds
18
months.
See
1991
guidance
memo,
``
New
Source
Review
(
NSR)
Program
Transitional
Guidance'',
John
S.
Seitz,
March
11,
1991.
We
will
be
revising
the
language
at
section
52.24(
k)
to
properly
reflect
this
interpretation.
69
Note
that
new
sources
or
modifications
which
are
major
as
a
result
of
NOX
emissions,
and
are
thus
subject
to
nonattainment
NSR
for
NOX,
would
also
be
considered
major
sources
of
nitrogen
dioxide
(
NO2),
which
is
also
a
criteria
pollutant.
Since
all
areas
are
currently
in
attainment
under
the
NO2
NAAQS,
these
new
NOX
sources
will
also
need
to
go
through
PSD
review
of
NO2.
70
Certain
nonattainment
NSR
requirements
in
subpart
2
of
part
D
are
specifically
spelled
out
in
the
CAA,
and
thus
cannot
be
altered
under
a
transitional
program.
appendix
S
permitting
requirements.)
However,
per
section
VI
of
appendix
S,
we
have
always
recognized
the
need
for
flexibility
under
certain
circumstances,
which
we
address
in
detail
below.
Also,
note
that
EPA
does
not
have
a
Federal
permit
program
in
place
for
nonattainment
NSR.
This
creates
particular
difficulties
for
the
Tribes,
because
their
programs
are
not
as
mature
as
the
State
programs.
Therefore,
in
most
locations,
EPA,
not
the
Tribes,
will
need
to
address
the
implementation
of
appendix
S
in
these
areas,
until
a
Tribe
develops
a
nonattainment
NSR
program
on
its
own.
b.
What
is
the
legal
basis
for
requiring
States
to
issue
nonattainment
NSR
permits
during
the
interim
period?
Section
110(
a)(
2)(
c)
of
the
CAA
establishes
a
general
duty
on
States
to
include
a
program
in
their
SIP
that
regulates
the
modification
and
construction
of
any
stationary
source
as
necessary
to
assure
that
NAAQS
are
achieved.
This
general
duty,
often
referred
to
as
``
minor
NSR,''
exists
during
all
periods,
including
before
a
State
has
an
approved
part
D
NSR
permit
program.
Although
section
110(
a)(
2)(
c)
does
not
define
specific
requirements
States
must
follow
for
issuing
major
source
permits
during
the
interim
period
between
nonattainment
designation
and
EPA
approval
of
a
part
D
nonattainment
NSR
SIP
(``
interim
period''),
EPA's
regulations
codified
at
52.24(
k)
require
States
to
follow
EPA's
Emission
Offset
Interpretative
rule
codified
at
40
CFR
part
51,
appendix
S
(
hereinafter
referred
to
as
appendix
S)
during
this
time.
68
c.
Codification
of
NOX
as
an
ozone
precursor.
Currently,
only
VOCs
are
expressly
regulated
as
ozone
precursors
under
the
PSD
regulations.
Although
appendix
S
specifically
states
that
a
source
is
major
for
ozone
if
it
is
major
for
VOCs,
we
do
not
believe
this
language
is
exclusive.
The
more
general
portion
of
the
``
major
stationary
source''
definition
states,
``*
*
*
any
stationary
source
that
emits,
or
has
the
potential
to
emit,
100
tons
per
year
or
more
of
any
pollutant
subject
to
regulation
under
the
Act,''
is
considered
a
major
source.
There
is
similar
general
language
within
the
definition
of
``
major
modification.''
The
nonattainment
provisions
of
the
Act,
as
amended
in
1990,
recognize
NOX
as
an
ozone
precursor;
section
182(
f)
of
the
CAA
established
nonattainment
requirements
for
NOX.
In
addition,
the
definition
of
air
pollutant
under
section
302(
g)
of
the
CAA
includes,
``*
*
*
any
precursors
to
the
formation
of
any
air
pollutant
*
*
*''
Thus,
where
NOX
is
considered
a
precursor
to
the
formation
of
ozone,
the
State
would
use
appendix
S
to
issue
a
preconstruction
permit
to
a
new
major
source
of
NOX
emissions
during
the
interim
period.
69
Notwithstanding
the
above,
in
order
to
be
completely
clear,
we
are
proposing
to
amend
both
our
NSR
and
PSD
regulations
to
expressly
include
NOX
as
an
ozone
precursor
in
major
PSD
and
major
nonattainment
NSR
programs.
Where
relevant
for
both
PSD
areas
and
transitional
NSR
areas,
States
would
be
required
to
modify
their
existing
programs
to
include
NOX
as
an
ozone
precursor.
Elsewhere
in
today's
action,
we
are
proposing
to
include
NOX
as
an
ozone
precursor
for
RACT
requirements
under
subpart
1.
Under
section
182(
f)
(
in
subpart
2),
a
waiver
from
NOX
RACT
and
nonattainment
NSR
is
possible
under
certain
circumstances.
We
are
proposing
that
the
section
182(
f)
waiver
provisions
would
also
apply
to
areas
designated
nonattainment
under
either
subpart
1
or
subpart
2.
However,
the
waiver
provisions
do
not
apply
in
areas
where
PSD
is
applicable.

3.
Under
What
Circumstances
Is
a
Transitional
Program
Needed
During
the
Interim
Period?
We
request
comment
on
providing
States
flexibility
regarding
major
source
nonattainment
NSR
program
requirements
in
areas
that
meet
specific
conditions.
We
believe
that
a
more
flexible
NSR
option
is
appropriate
in
areas
that
are
expected
to
reach
8­
hour
ozone
attainment
early
 
within
3
years
after
designation
 
through,
for
example,
national
or
regional
programs
such
as
the
NOX
SIP
Call
and
the
Tier
2
motor
vehicle
emissions
standards.
In
these
areas,
we
believe
that
States
should
have
the
flexibility
to
apply
a
nonattainment
NSR
program
that
provides
some
relief
from
certain
requirements.
Several
factors
warrant
a
flexible
approach
for
implementing
NSR
in
areas
which
qualify
for
the
transitional
program.
We
expect
many
areas
to
attain
the
new
8­
hour
standard
within
3
years
solely
through
regional
NOX
reductions
under
the
NOX
SIP
Call
rule
and
other
currently
applicable
Federal
programs.
We
intend
this
option
to
be
available
to
any
8­
hour
ozone
nonattainment
areas
located
outside
the
NOX
SIP
Call
area,
so
long
as
those
nonattainment
areas
can
meet
the
8­
hour
ozone
NAAQS
within
3
years
after
designation.
Some
of
these
areas
may
be
in
nonattainment
due
largely
to
transport
from
upwind
sources;
but
no
allowance
is
made
under
major
NSR
for
sources
in
areas
overwhelmed
by
transport.
As
we
have
construed
it,
this
option
would
also
encourage
the
early
adoption
of
attainment
plans,
which
we
believe
will
lead
to
emissions
reductions
and
resultant
health
benefits
earlier
than
would
otherwise
occur.
We
request
comment
on
the
transitional
program
described
in
this
proposed
rulemaking,
and
in
particular
welcome
information
from
States
regarding
how
many
new
major
sources
or
major
modifications
they
anticipate
would
construct
in
transitional
areas
during
the
period
between
EPA's
approval
of
a
transitional
part
D
nonattainment
NSR
plan
and
the
State
reaching
attainment
of
the
8­
hour
NAAQS.

4.
Elements
of
the
Appendix
S
Transitional
Program
a.
Which
nonattainment
areas
would
be
eligible
for
the
transitional
program?
The
appendix
S
transitional
program
would
only
be
available
to
8­
hour
ozone
nonattainment
areas
that
are
subject
to
NSR
under
subpart
1,
not
subpart
2
(
see
discussion
of
classifications
elsewhere
in
this
proposal).
In
addition,
in
order
to
be
eligible
for
the
transitional
option,
by
the
date
EPA
publishes
the
nonattainment
designations
for
the
8­
hour
standard
(
currently
expected
in
2004)
a
subpart
1
nonattainment
area
must:
(
1)
Be
attaining
the
1­
hour
ozone
standard;
(
2)
be
subject
to
subpart
1,
not
subpart
2,
of
part
D;
70
(
3)
have
submitted
an
attainment
plan
that
demonstrates
attainment
within
3
years
after
designation;
the
attainment
plan
would
have
to
include
control
measures
under
the
NOX
SIP
Call
rule
where
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Rules
71
The
actual
attainment
date
 
as
proposed
elsewhere
in
this
proposal
 
would
be
3
years
after
the
nonattainment
designation.
72
U.
S.
EPA
Office
of
Air
Quality
Planning
and
Standards,
New
Source
Review
Workshop
Manual,
Prevention
of
Significant
Deterioration
and
Nonattainment
Area
Permitting,
Draft,
October
1990.
Available
at:
http://
www.
epa.
gov/
ttn/
nsr/
gen/
wkshpman.
pdf.
applicable;
and
(
4)
have
submitted
an
attainment
plan
containing
any
additional
local
control
measures
needed
for
attainment
of
the
8­
hour
standard.
These
plans
must
commit
the
State
to
implement,
by
December
31,
2004,
all
measures
necessary
to
bring
the
nonattainment
area
into
attainment
by
a
2007
attainment
date.
71
In
addition,
when
a
State
submits
its
attainment
plan,
it
should
note
that
it
intends
to
implement
a
program
under
appendix
S,
section
VI
that
meets
the
requirements
for
transitional
areas
discussed
below.
Note
that,
under
this
option,
the
attainment
plan
submission
timing
(
i.
e.,
submission
by
the
date
of
EPA
designation
of
nonattainment
areas)
for
transitional
areas
is
about
3
years
earlier
than
is
otherwise
required
for
areas
not
meeting
the
8­
hour
standard.
Note
also
that
areas
would
be
eligible
for
this
transitional
NSR
provision
even
though
we
are
not
establishing
a
``
transitional''
nonattainment
classification
for
areas
covered
under
subpart
1.
We
request
comment
on
these
criteria.
Also,
note
that
while
relief
from
offsets
is
provided
for
the
NSR
transitional
program
(
see
discussion
below),
those
States
and
Tribes
subject
instead
to
the
main
body
of
appendix
S
will
still
need
to
provide
offset
provisions.
b.
What
would
be
the
basic
requirements
of
a
transitional
nonattainment
NSR
program
under
appendix
S,
section
VI?
i.
Major
source
applicability
threshold.
Under
the
general
part
D
NSR
requirements,
the
applicability
threshold
for
``
major
stationary
source''
is
defined
as
100
tons
per
year
of
a
nonattainment
pollutant;
in
some
instances
under
subpart
2
the
major
source
threshold
can
be
as
low
as
10
tons
per
year.
In
contrast,
the
major
source
threshold
under
the
PSD
program
is
either
100
or
250
tons
per
year,
depending
upon
the
type
of
stationary
source
undergoing
review.
We
propose
that,
consistent
with
the
subpart
1
part
D
NSR
requirements,
an
appendix
S,
subpart
VI
transitional
nonattainment
programs
will
use
a
major
source
threshold
of
100
tons
per
year
for
each
ozone
precursor.
ii.
Emission
Control.
Another
key
provision
of
the
part
D
nonattainment
NSR
program
is
that,
in
order
to
be
permitted,
major
new
and
modified
sources
must
minimize
their
emission
rate
by
applying
control
technology
to
achieve
LAER,
which
is
generally
the
most
stringent
emission
limit
contained
in
a
SIP
or
achieved
in
practice.
In
contrast
to
LAER,
which
does
not
consider
costs
and
other
factors,
a
BACT
analysis
requires
consideration
of
energy,
environmental,
and
economic
impacts
in
determining
the
maximum
degree
of
reduction
achievable
for
the
proposed
new
source
or
modification.
In
a
BACT
analysis,
as
described
in
the
New
Source
Review
Workshop
Manual,
72
the
most
stringent
emission
limit,
including
the
limit
representing
LAER
and
its
associated
control
technology,
must
be
considered.
If
the
most
stringent
limit
is
rejected
as
BACT
for
a
particular
case,
that
decision
must
be
supported
by
an
analysis
that
shows
that
the
most
stringent
limit
should
not
be
chosen
in
light
of
the
costs
or
other
relevant
factors.
For
example,
if
the
most
effective
control
technology
would
impose
unacceptably
high
costs
because
of
site­
specific
factors,
that
technology
could
be
rejected
as
BACT
for
the
proposed
source.
In
this
way,
BACT
may
be
less
stringent
than
LAER.
We
request
comment
on
whether
a
BACT
requirement,
consistent
with
the
BACT
approach
described
in
the
NSR
workshop
manual,
may
be
required
in
transitional
appendix
S
nonattainment
NSR
programs
in
lieu
of
requiring
LAER.
We
believe
granting
this
relief
is
appropriate,
given
the
minimal
difference
we
would
expect
between
the
emissions
reductions
achieved
from
BACT,
rather
than
LAER,
for
the
small
number
of
sources
that
may
trigger
nonattainment
NSR
in
transitional
areas,
for
the
few
years
the
area
is
nonattainment.
iii.
Relief
from
source­
specific
offsets
requirements.
We
are
proposing
that
major
sources
and
major
modifications
would
not
be
required
to
obtain
case­
and
source­
specific
offsets
under
the
transitional
program.
However,
despite
locating
in
a
nonattainment
area
which
qualifies
for
the
NSR
transitional
program,
a
new
major
source
may
not
cause
or
contribute
to
the
existing
violation
in
the
nonattainment
area.
If
the
State
determines
that
the
source
does
not
contribute
to
the
existing
violation,
then
mitigation
would
not
be
required.
There
are
several
circumstances
under
which
it
is
reasonable
to
assume
that
a
new
major
source
locating
in
a
nonattainment
area
will
not
interfere
with
timely
attainment
of
the
standard.
First,
if
the
nonattainment
area
which
qualifies
for
the
NSR
transitional
option
is
participating
in
the
NOX
SIP
Call
(
63
FR
57356;
October
27,
1998),
we
expect
that
a
source
locating
in
the
area
will
not
cause
or
contribute
to
the
existing
violation,
so
long
as
the
new
emissions
are
consistent
with
growth
projections.
This
is
because
it
is
assumed
that
where
new
emissions
are
consistent
with
growth
projections,
those
new
emissions
will
not
interfere
with
timely
attainment
of
the
standard.
Under
the
NOX
SIP
Call,
we
modeled
emissions
for
2007.
We
included
future
growth
projections
for
both
VOC
and
NOX
emissions,
and
allocated
each
State
a
NOX
budget
designed
to
control
interstate
NOX
transport.
Because
these
budgets
include
an
emission
growth
factor
for
VOC
and
NOX,
we
believe
that
new
major
sources
may
locate
in
those
nonattainment
areas
which
qualify
for
the
NSR
transitional
option
without
interfering
with
the
area's
ability
to
reach
attainment,
provided
that
any
new
emissions
are
within
the
projected
emissions
growth
factor.
We
expect
States
to
develop
appropriate
emission
inventory
procedures
to
assure
that
any
new
emissions
are
consistent
with
projected
growth
in
emissions.
Those
nonattainment
areas
which
qualify
for
the
NSR
transitional
program
that
are
not
projected
to
attain
under
the
NOX
SIP
Call
or
are
not
covered
by
the
NOX
SIP
Call
may
also
allow
for
an
increase
in
new
major
source
emissions
if
their
attainment
demonstration
includes
an
emissions
growth
factor
for
major
new
and
modified
sources
and
demonstrates
that,
provided
emission
increases
from
new
major
sources
remain
below
this
level,
the
area
will
reach
attainment.
Again,
we
expect
States
to
develop
appropriate
emission
inventory
procedures
to
demonstrate
that
the
new
emissions
are
consistent
with
projected
growth
in
emissions.
iv.
Other
requirements.
In
addition
to
the
control
technology
requirements
discussed
above,
and
consistent
with
current
NSR
requirements
under
appendix
S,
section
IV,
condition
2,
sources
locating
in
transitional
areas
will
be
required
to
certify
statewide
compliance
of
all
existing
major
sources
under
the
same
ownership
or
control.
We
believe
this
requirement
will
not
impose
a
substantial
burden
on
permit
applicants
or
permitting
authorities.
v.
Backstop
Provisions.
Should
a
nonattainment
area
under
the
appendix
S,
section
VI
transitional
program
fail
to
meet
its
SIP
obligations
to
attain
the
NAAQS
before
the
end
of
the
interim
period,
then
it
will
no
longer
be
eligible
for
the
transitional
program.
We
request
comment
on
the
need
for
a
backstop
provision
that
requires
a
State
to
notify
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Proposed
Rules
73
The
actual
attainment
date
 
as
proposed
elsewhere
in
this
proposed
rulemaking
 
would
be
3
years
after
the
effective
date
of
nonattainment
designation,
which
we
anticipate
will
occur
in
the
spring
of
2004.
us,
at
the
time
of
such
failure,
that
it
is
reverting
to
the
traditional
nonattainment
requirements
under
appendix
S.
We
also
request
comment
on
any
other
findings
which
should
end
eligibility
for
the
transitional
program.

5.
Will
a
State
Be
Required
To
Assure
That
the
Increased
Emissions
From
a
new
Major
Source
Do
Not
Cause
or
Contribute
to
a
Violation
in
a
Nearby
Nonattainment
Area
Before
It
Issues
a
Preconstruction
Permit
Under
Appendix
S?
At
the
current
time,
EPA
allows
the
State
to
presume
that
a
source
locating
outside
a
designated
ozone
nonattainment
area
will
have
no
significant
impact
on
the
designated
nonattainment
area.
See
section
III
of
appendix
S.
However,
given
the
recent
advances
in
the
scientific
understanding
of
ozone
formation,
we
may
revise
these
guidelines
in
the
near
future.
In
the
meantime,
under
the
PSD
rules,
States
may
choose
to
address
the
impacts
of
sources
in
attainment
areas
on
nearby
nonattainment
areas
in
a
more
proactive
manner;
i.
e.,
through
PSD
offsets
and/
or
tighter
emission
controls
when
the
source
is
shown
to
contribute
to
a
violation
of
the
NAAQS.

6.
What
Happens
at
the
End
of
the
Interim
Period?
a.
Transitional
NSR
areas.
As
noted
above,
this
transitional
option
is
only
intended
to
apply
to
certain
nonattainment
areas
that
expect
to
attain
the
8­
hour
ozone
NAAQS
within
3
years
after
designation.
Therefore,
we
expect
these
areas
to
be
in
attainment
on
or
before
an
attainment
date
in
2007.
Accordingly,
States
must
submit,
by
the
attainment
date
in
2007,
an
attainment
demonstration
with
a
maintenance
plan.
A
State
may
continue
implementing
transitional
NSR
under
appendix
S,
section
VI
for
6
months
following
submission
of
its
attainment
plan,
or
until
its
attainment
plan
is
approved,
whichever
is
earlier.
b.
Traditional
NSR
areas.
If
a
State
has
never
been
or
is
no
longer
operating
under
a
section
VI
transitional
program,
it
must
submit
a
part
D
nonattainment
NSR
plan
within
3
years
after
designation
(
in
2007).
The
State
may
continue
implementing
traditional
part
D
nonattainment
requirements
under
appendix
S
until
we
approve
its
part
D
plan.

7.
What
Is
the
Legal
Basis
for
Providing
This
Transitional
Program?
As
stated
earlier,
appendix
S
applies
during
the
period
after
an
area
is
designated
nonattainment
but
before
a
part
D
nonattainment
NSR
plan
is
due
under
subparts
1
and
2
of
part
D.
Application
of
appendix
S
during
this
interim
period
ensures
compliance
with
the
section
110(
a)(
2)(
C)
``
minor''
NSR
program.
However,
Congress
was
ambiguous
regarding
what
specific
requirements
States
must
follow
for
issuing
major
source
permits
during
the
interim
period
described
above.
Thus,
we
have
discretion
to
interpret
those
regulations
in
a
reasonable
manner.
Chevron,
U.
S.
A.
v.
NRDC,
467
U.
S.
837
(
1984).
The
transitional
appendix
S
approach
is
reasonable
for
several
reasons.
First,
it
would
be
available
only
for
those
areas
that
are
already
attaining
the
1­
hour
standard
and
that
will
attain
the
8­
hour
standard
within
3
years
after
designation
(
before
a
part
D
nonattainment
NSR
SIP
revision
is
due)
through
national
and
regional
planning.
These
areas
appropriately
deserve
a
different
approach
for
implementing
the
section
110(
a)(
2)(
C)
requirements
than
areas
that
are
in
nonattainment
for
the
1­
hour
standard
and
thus
currently
implementing
NSR,
or
those
areas
that
are
not
projected
to
reach
attainment
of
the
8­
hour
in
the
short
term.
We
believe
that
the
transitional
option,
as
we
have
constructed
it,
would
result
in
a
level
of
emissions
reductions
that
is
substantially
similar
to
the
level
that
would
be
achieved
from
traditional
NSR
for
the
small
number
of
sources
it
will
affect
in
the
short
period
during
which
these
areas
are
designated
nonattainment.
Thus,
these
transitional
areas
would
still
be
implementing
a
program
that
regulates
the
modification
and
construction
of
any
stationary
source
``
as
necessary''
to
assure
that
the
NAAQS
are
achieved
as
expeditiously
as
practicable.
Currently,
the
language
of
section
VI
allows
all
States
to
exempt
a
new
major
source
from
complying
with
the
requirement
to
install
LAER
and
obtain
offsets
if
the
source
will
meet
all
other
applicable
SIP
requirements
and
not
interfere
with
the
area's
ability
to
meet
its
attainment
date.
However,
we
plan
to
revise
section
VI
to
remove
this
general
exemption
and
apply
the
transitional
approach.
This
revision
is
appropriate
because
we
do
not
believe
that
areas
not
meeting
the
transitional
approach
would
be
able
to
ensure
that
they
were
implementing
an
NSR
program
``
as
necessary''
to
ensure
the
attainment
of
the
NAAQS
without
complying
with
appendix
S
in
general
(
e.
g.,
sections
I
 
V).
Note
that
section
VI
of
appendix
S
originally
applied
only
to
secondary
NAAQS,
and
we
revised
section
VI
to
include
primary
standards
following
the
1977
Amendments.
The
exemption
provided
by
section
VI
applied
to
areas
whose
attainment
dates
were
shortly
after
the
CAA
was
re­
authorized
in
1977
because
these
areas
had
already
submitted
their
attainment
plans
to
us,
and
we
believed
that
these
areas
would
reach
attainment
without
having
to
impose
LAER
and
offsets
on
new
major
sources.
While
nonattainment
areas
that
qualify
for
the
8­
hour
ozone
standard
NSR
transitional
option
are
in
a
similar
situation,
areas
not
qualifying
for
the
transitional
approach
are
not.
In
order
to
qualify
for
the
NSR
transitional
option,
States
will
have
to
submit
an
attainment
plan
by
the
date
of
designation
for
the
8­
hour
NAAQS
in
2004.
These
plans
must
commit
the
State
to
implement
by
December
31,
2005,
all
measures
necessary
to
bring
the
nonattainment
area
into
attainment
and
to
meet
a
2007
attainment
date.
73
Similar
to
the
nonattainment
areas
to
which
section
VI
originally
applied,
we
believe
that
nonattainment
areas
which
qualify
for
the
NSR
transitional
option
will
be
able
to
meet
a
2007
attainment
date
without
imposing
LAER
and
offsets
on
new
major
sources.
On
its
surface,
section
VI's
existing
language
could
be
applied
in
any
nonattainment
area
during
the
interim
period.
For
an
area
that
fails
to
meet
the
transitional
option
requirements,
however,
we
believe
that
the
area
would
not
be
able
to
show
that
it
will
continue
to
meet
the
areas
attainment
date
if
it
does
not
apply
LAER
or
obtain
offsets.
Thus,
we
are
proposing
to
revise
the
language
of
section
VI
to
apply
only
in
areas
qualifying
for
the
transitional
NSR
program.

8.
How
Should
the
NSR
Requirements
Be
Implemented
for
New
8­
Hour
Ozone
Areas
that
Encompass
the
Old
1­
Hour
Ozone
Nonattainment
Areas
After
EPA
Revokes
the
1­
Hour
Ozone
Standard?
Newly­
designated
8­
hour
ozone
areas
which
include
areas
which
have
never
attained
the
1­
hour
standard
will
have
two
different
sets
of
requirements
in
place
until
a
point
in
time
proposed
elsewhere
in
this
proposed
rulemaking
under
the
anti­
backsliding
provisions.
(
There
are
two
options
proposed
in
the
anti­
backsliding
section
of
this
proposal
for
that
point
in
time
 
until
either
the
level
of
the
1­
hour
ozone
standard
is
achieved
or
the
8­
hour
ozone
standard
is
attained.)
The
1­
hour
NSR
requirements
and
higher
offset
ratios
(
if
applicable)
will
remain
in
place
in
the
area
that
was
designated
nonattainment
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2003
/
Proposed
Rules
74
Brownfields
are
generally
considered
to
be
abandoned
or
underutilized
properties
(
especially
industrial
and
commercial
facilities)
where
redevelopment
or
expansion
may
be
complicated
by
possible
environmental
contamination
(
real
or
perceived).
However,
a
brownfield
site,
as
defined
by
The
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
of
January
11,
2002,
is
any
``
real
property,
the
expansion,
redevelopment,
or
reuse
of
which
may
be
complicated
by
the
presence
or
potential
presence
of
a
hazardous
substance,
pollutant,
or
contaminant.''
Further
information
is
available
at:
http://
www.
epa.
gov/
compliance/
resources/
faqs/
cleanup/
brownfields/
index.
html.
for
the
1­
hour
standard
until
that
point
in
time.
The
remaining
portion
of
the
newly­
designated
8­
hour
ozone
area
must
comply
only
with
the
8­
hour
ozone
NSR
requirements
and
offset
ratios
(
if
applicable).

9.
NSR
Option
To
Encourage
Development
Patterns
That
Reduce
Overall
Emissions
 
Clean
Air
Development
Communities
EPA
is
considering
two
options
to
recognize
the
air
quality
benefits
which
can
accrue
when
areas
site
new
sources
and
plan
development
in
a
manner
that
results
in
overall
reduced
emissions.
EPA
would
define
a
community
that
changes
its
development
patterns
in
such
a
way
that
air
emissions
within
the
non­
attainment
area
are
demonstrably
reduced
as
a
``
Clean
Air
Development
Community''
(
CADC).
We
propose
that
areas
that
qualify
as
CADCs
would
obtain
certain
flexibilities
in
implementing
CAA
programs.
We
request
comments
on
the
options
listed
here
and
encourage
commenters
to
suggest
other
ways
under
the
CAA
that
we
could
encourage
development
that
will
result
in
lower
emissions.
In
the
first
option,
a
CADC
would
have
a
more
flexible
NSR
program
by:
(
1)
Being
subject
to
subpart
1
NSR
as
opposed
to
subpart
2
NSR;
(
2)
lowering
NSR
major
source
thresholds
for
these
areas
to
make
them
similar
to
the
thresholds
for
PSD
areas;
and
(
3)
allowing
areas
that
meet
certain
development
criteria
(
development
zones)
to
receive
NSR
offsets
from
State
offset
pools.
In
the
second
option,
a
CADC
would
be
able
to
receive
a
pool
of
NSR
offset
credits
equal
to
the
reduced
emissions
from
new
development
patterns.
Credits
from
the
pool
could
be
provided
to
any
new
or
modified
source
in
a
``
development
zone''
as
offsets.
The
first
goal
of
a
CADC
option
is
that
it
would
give
communities
a
tool
to
achieve
air
quality
benefits
that
can
accrue
from
strategic
location
of
new
sources.
The
location
of
new
sources
(
often
major
job
centers)
can
affect
regional
development
patterns
and
air
emissions.
As
a
result,
new
sources
have
a
dual
impact
on
air
quality.
The
first
impact
is
from
their
own
direct
emissions
and
the
second
impact
is
from
the
emissions
associated
with
other
sources
whose
development
is
influenced
by
the
new
source
and
any
change
in
travel
patterns
(
positive
or
negative)
that
may
result.
This
option
attempts
to
recognize
the
net
impact
that
a
new
source
has
on
a
region,
not
just
from
their
own
stationary
emissions,
but
also
from
their
associated
stationary,
area
and
mobile
source
emissions
influenced
by
the
location
of
the
new
source.
It
provides
a
mechanism
to
recognize
the
relative
emissions
reductions
associated
with
locating
major
job
centers
in
close
proximity
with
transit,
commercial/
retail
destinations,
and
workforce
housing.
Furthermore,
the
EPA
recognizes
that
brownfields
74
are
often
prime
candidates
to
realize
these
locational
benefits.
Brownfields,
as
sites
of
previous
economic
activity,
frequently
enjoy
excellent
proximity
to
a
variety
of
destinations
and
a
range
of
transportation
infrastructure.
Second,
given
their
potentially
contaminated
state,
manufacturing
or
other
industrial
uses
are
often
the
appropriate
type
of
revitalization.
The
productive
re­
use
of
these
sites
is
a
priority
for
the
Agency.
This
option
will
provide
flexibility
within
CAA
programs
to
achieve
the
dual
goals
of
brownfields
revitalization
and
reduced
air
emissions.
The
second
goal
of
a
CADC
program
would
be
that
it
would
allow
communities
to
use
the
air
benefits
of
their
development
practices
as
an
incentive
for
locating
new
sources
and
their
associated
economic
growth.
Anthropogenic
emissions
within
a
region
come
from
three
kinds
of
sources:
Mobile
sources,
areas
sources,
and
stationary
sources.
Thus,
the
ability
of
a
region
to
accommodate
new
stationary
sources
is
dependent
not
only
on
stationary
source
emissions
but
also
on
mobile
and
area
source
emissions.
Localities
which
choose
to
engage
in
development
that
reduces
emissions
from
mobile
and
area
sources,
with
either
of
these
options,
could
have
the
opportunity
to
turn
those
reductions
into
incentives
for
siting
new
economic
activity.
It
should
be
noted
that
an
area
that
decides
to
become
a
CADC
is,
in
effect,
transferring
to
the
stationary
source
sector
emission
reductions
which
normally
would
remain
in
the
mobile
source
sector
where
they
could,
for
example,
be
used
for
conformity
determinations.
Areas
would
have
to
think
through
the
implications
for
them
of
doing
this.
While
we
have
not
decided
to
go
forward
with
either
of
these
options
at
this
time,
we
are
continuing
to
examine
them
and,
therefore,
request
comment
on
them.
In
particular,
we
request
comment
and
suggestions
on
possible
legal
rationales
for
supporting
these
options
which
would
enable
them
to
be
implemented
through
rulemaking.
We
are
also
very
interested
in
other
potential
incentives
that
we
could
provide
in
addition
to
or
instead
of
those
included
in
this
proposal.
(
We
encourage
commenters
to
focus
on
those
incentives
that
are
within
EPA
control.)
In
addition,
we
request
comment
on
implementation
barriers,
as
well
as
the
analytical
complexities
in
the
estimation
of
emission
benefits
from
changes
to
development
patterns
that
areas
would
need
to
calculate
in
order
to
become
a
CADC.
Public
comments
will
help
us
determine
how
and
whether
to
include
either
option
in
the
final
rulemaking.
a.
What
is
EPA
considering?
Option
1:
EPA
is
considering
a
package
of
three
kinds
of
flexibility
for
areas
subject
to
subpart
2
whose
land
use
development
meets
certain
criteria.
First,
we
would
allow
CADC's
to
be
covered
under
the
NSR
program
under
subpart
1
rather
than
under
subpart
2
if:
(
a)
They
adopt
specific
land
use
measures
into
their
SIPs
that
reduced
air
emissions;
and,
(
b)
they
demonstrate
that
air
quality
would
not
decrease
as
a
result
of
using
subpart
1
instead
of
subpart
2.
This
demonstration
would
have
to
quantify
the
emissions
reductions
from
adopted
land
use
measures
in
their
SIPs
and
show
that
the
decreases
from
the
land
use
measures
are
sufficient
to
offset
any
potential
increase
in
emissions
from
using
subpart
1
instead
of
subpart
2.
Second,
we
would
lower
the
NSR
major
source
thresholds
for
CADC
areas
to
make
them
similar
to
those
under
the
PSD
provisions.
Third,
we
would
allow
development
zones,
areas
that
meet
certain
development
criteria,
to
receive
NSR
offsets
from
``
pools''
or
``
banks''
of
offsets
established
by
the
State.
(
A
pool
would
be
created
by
the
State's
taking
action
or
requiring
others
to
take
actions
that
meet
the
criteria
for
NSR
offsets.
The
State
would
then
collect
these
offsets
and
could
distribute
them
to
new
development
that
would
occur
in
specific
areas.)
We
believe
that
these
actions
would
help
steer
development
to
development
zones
where
fewer
regional
emissions
would
occur
than
if
the
development
had
occurred
elsewhere.
In
addition,
the
change
in
land
use
patterns
may
help
areas
reduce
their
mobile
source
emissions.
EPA
requests
comments
on
whether
an
area
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/
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No.
105
/
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June
2,
2003
/
Proposed
Rules
75
Urbanized
area
 
an
area
consisting
of
a
central
place(
s)
and
adjacent
urban
fringe
that
together
have
a
minimum
residential
population
of
at
least
50,000
and
generally
an
overall
population
density
of
at
least,
1,000
people
per
square
mile
of
land
area.
http://
www.
census.
gov/
geo/
www.
tiger/
glossary.
html
should
receive
all
three
incentives
or
only
one
or
two
of
them.
Option
2:
EPA
is
also
considering
a
less
ambitious
program
of
incentives
that
focuses
on
the
development
zones.
In
this
option,
the
reduced
emissions
from
improved
development
patterns
are
used
to
create
offset
pools
for
use
by
sources
in
development
zones.
We
believe
that
this
would
also
help
steer
development
toward
development
zones
providing
the
same
benefits
discussed
above.
The
main
advantage
to
a
CADC
compared
to
option
1
is
that
the
offset
pool
could
start
with
considerable
offset
credits
and,
therefore,
the
credits
would
not
have
to
be
created
through
additional
actions.
It
would
also
have
the
potential
of
more
carefully
targeting
new
development
just
to
the
development
zone
instead
of
anywhere
in
the
CADC.
b.
What
would
a
CADC
be?
A
CADC
would
be
a
``
community''
that
changes
its
development
patterns
in
such
a
way
that
air
emissions
within
the
nonattainment
area
are
demonstrably
reduced.
A
CADC
does
not
have
to
be,
and
in
most
cases
probably
would
not
be,
an
entire
metropolitan
nonattainment
area
covered
by
a
SIP.
A
portion
of
a
nonattainment
area
could
be
designated
a
CADC
in
those
cases
where
the
land
use
changes
did
not
result
in
a
sufficient
emissions
reductions
to
allow
the
entire
nonattainment
area
to
qualify.
It
should
be
noted,
however,
that
if
a
CADC
smaller
than
the
entire
nonattainment
area
was
designated,
any
analysis
of
the
effect
of
any
changes
in
development
would
have
to
reflect
and
consider
effects
on
the
nonattainment
area
as
a
whole.
c.
What
would
a
development
zone
be?
EPA
proposes
that
areas
that
meet
certain
criteria
would
be
considered
``
development
zones,''
and
new
sources
in
these
development
zones
could
receive
offsets
from
State
offset
pools.
The
following
is
a
list
of
possible
criteria
that
EPA
could
use
to
define
those
zones.
EPA's
goal
is
to
help
identify
zones
which
promote
environmentally
sound
development,
the
preservation
of
regionally­
or
locallydesignated
open
space,
and
sites
which
have
adequate,
existing
infrastructure.
Areas
would,
for
example,
have
to
be:
 
Located
within
an
8­
hour
ozone
nonattainment
area.
 
Located
within
an
``
urbanized
area''
as
defined
by
the
U.
S.
Census
Bureau.
75
 
Zoned
for
industrial
use.
 
Located
within
0.25
miles
of
rail
freight
facilities.
 
Located
within
0.5
mile
of
fixed
rail
or
express
bus
transit
service.
 
Designated
or
qualify
for
designation
as
a
Federal
or
State
redevelopment
zone.
 
Enrolled
in
a
State
brownfield
remediation
plan.
 
Designated
industrial
corridor.
 
Adopting
land
use
density
indicators
such
as
population,
employment,
congestion
index.
EPA
specifically
requests
comment
on
these
criteria
including
whether
these
criteria
are
appropriate,
and
if
not,
how
should
they
be
changed?
We
also
request
comment
regarding
whether
a
site
must
meet
all
or
just
some
of
the
criteria
to
qualify.
d.
Why
is
EPA
proposing
these
ideas?
EPA
would
like
to
encourage
land
use
practices
that
reduce
emissions,
and
one
possible
way
could
be
through
NSR
program
flexibility.
EPA
recognizes
that
the
way
land
use
occurs
in
an
area
can
affect
emissions
in
all
sectors,
including
stationary,
area
and
mobile
sources.
For
on­
road
mobile
sources,
areas
can
already
include
the
emissions
impacts
of
their
land
use
choices
within
their
SIP,
as
well
as
in
their
transportation
conformity
determinations.
EPA
would
like
to
encourage
areas
to
adopt
land
use
practices
that
result
in
fewer
emissions
from
all
sectors
by
allowing
areas
to
apply
the
benefits
from
certain
land
use
measures
to
the
major
stationary
source
sector
and
creating
special
NSR
flexibilities
for
areas
that
do
so.
e.
If
areas
receive
NSR
flexibility
for
adopting
land
use
measures,
can
the
air
quality
benefits
of
land
use
measures
also
be
applied
to
other
sectors?
As
part
of
any
flexibility,
EPA
wants
to
ensure
that
areas
do
not
count
the
effects
of
a
land
use
activity
twice.
For
example,
if
areas
decide
that
they
want
to
apply
the
emissions
benefits
that
result
from
certain
land
use
decisions
toward
NSR,
then
they
cannot
also
include
the
air
quality
benefits
of
land
use
choices
in
their
motor
vehicle
emissions
budgets
in
the
SIP,
or
in
the
area's
transportation
conformity
determinations.
EPA
recognizes
that
this
means
that
areas
will
have
to
decide
for
themselves
how
to
apply
any
emissions
benefits
of
land
use
activities,
and
that
consultation
among
all
affected
parties
must
occur.
For
many
communities,
this
could
be
a
difficult
decision
that
would
require
the
input
of
many
stakeholders
representing
both
the
mobile
and
stationary
source
sectors
as
well
as
the
general
public.
One
possible
way
for
areas
to
avoid
double
counting
would
be
for
EPA
to
give
credit
only
for
new
measures
that
are
adopted
in
response
to
this
proposal.
This
approach
would
ensure
that
the
proposal
acts
as
an
incentive
to
encourage
new
actions
that
will
reduce
emissions.
Such
an
approach
could,
however,
be
seen
as
unfairly
penalizing
areas
that
have
already
taken
positive
actions.
EPA
requests
comment
on
how
best
to
balance
the
issues
of
ensuring
fair
treatment
for
all
areas,
preventing
double
counting,
and
making
this
proposal
an
effective
incentive.
For
example,
areas
would
continue
to
include
existing
land
use
measures
in
their
SIP
motor
vehicle
emissions
budgets
and
in
their
conformity
determinations,
and
apply
the
reductions
from
newly
adopted
land
use
measures
to
demonstrate
they
qualify
for
the
type
of
flexibilities
proposed
here.
Quantifying
the
on­
road
mobile
source
air
quality
impacts
of
land
use
measures
occurs
in
transportation
modeling
(
discussed
below).
Therefore,
in
a
SIP
submission
that
includes
land
use
measures
adopted
to
obtain
NSR
flexibility,
areas
would
have
to
show
that
their
motor
vehicle
emissions
budgets
do
not
also
include
the
effects
of
the
newly
adopted
land
use
measures.
EPA
also
recognizes
that
there
may
be
other,
potentially
easier
ways
to
avoid
double
counting
and
encourages
commenters
to
submit
them.
f.
How
would
areas
quantify
the
benefits
of
land
use
choices?
Areas
would
quantify
the
benefits
of
land
use
through
their
air
quality
modeling
process
in
the
SIP
process.
EPA's
guidance,
``
Improving
Air
Quality
Through
Land
Use
Activities''
(
Improving
Air
Quality
Through
Land
Use
Activities
Report).
U.
S.
Environmental
Protection
Agency,
Office
of
Air
and
Radiation,
Office
of
Transportation
and
Air
Quality.
(
EPA420
 
R
 
01
 
001,
January
2001).
It
can
be
found
at:
http://
www.
epa.
gov/
otaq/
transp/
trancont/
r01001.
pdf)
provides
information
about
how
land
use
measures
are
modeled
and
possibly
quantified.
EPA
requests
comment
on
other
potential
methods
of
quantifying
the
reductions.
Areas
should
be
aware
that
quantifying
the
benefits
of
land
use
may
not
be
an
easy
task.
EPA
sees
two
potential
difficulties
in
quantifying
the
benefits
of
land
use
for
application
to
NSR
on
which
we
seek
input.
First,
as
stated
above,
it
may
be
very
complicated
for
areas
to
avoid
counting
the
same
air
quality
benefits
twice.
One
way
areas
might
reduce
the
risk
of
such
double
counting
is
to
produce
two
sets
of
modeling.
One
would
be
based
on
the
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/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
current
situation,
the
other
based
on
the
proposed
land
use
changes
made
by
the
community.
The
difference
between
these
``
before
and
after
modeling''
scenarios
would
show
the
emission
impacts
of
the
land
use
changes.
We
recognize
that
this
modeling
is
very
complex
and
resource
intensive.
Complexities
arise
because
in
many
areas
across
the
country,
on­
road
mobile
source
emissions
are
estimated
using
transportation
and
emissions
models.
The
locations
where
people
live
and
work
in
an
area,
are
important
inputs
to
the
transportation
planning
and
modeling
processes.
As
such,
the
long
range
transportation
plan
which
covers
at
least
20
years
into
the
future
was
developed
to
reflect
the
mobility
needs
for
a
specific
land
use
scenario.
It
has
been
long
recognized
that
there
is
a
complicated,
dynamic
and
interrelated
relationship
among
air
quality,
transportation
and
land
use
planning.
Evaluation
may
need
to
be
iterative.
For
example,
if
land
use
changes
are
proposed
to
gain
air
quality
benefits,
the
transportation
system
may
need
to
be
reevaluated
to
insure,
that
with
the
new
land
use
scenario,
the
transportation
system
can
continue
to
provide
an
acceptable
level
of
transportation
service
to
all
members
of
the
community.
Therefore,
it
may
be
difficult
for
areas
to
precisely
quantify
the
emissions
related
to
land
use
choices
from
this
modeling,
given
the
dynamic
nature
between
land
use
and
transportation.
In
conducting
this
sort
of
analysis,
States
should
be
working
closely
with
MPOs
and
other
transportation
and
planning
agencies.
The
second
set
of
difficulties
involves
setting
the
timeframe
before
emission
benefits
can
be
realized.
EPA
seeks
comment
on
the
potential
difference
in
the
time
period
over
which
benefits
may
be
realized
from
land
use
strategies
compared
to
the
NSR
program.
Land
use
strategies
tend
to
be
long
term.
Once
a
particular
land
use
strategy
is
adopted,
it
may
take
several
years
before
the
change
results
in
air
quality
benefits.
For
example,
suppose
an
area
decides
to
change
its
zoning
regulations
to
encourage
mixed­
use
development.
This
strategy
may
ultimately
result
in
lower
relative
emissions
because
of
people
making
fewer
vehicle
trips
because
housing,
employment,
and
shopping
are
located
together
compared
to
development
patterns
that
might
occur
without
the
changes
to
the
zoning
regulations,
and
the
increase
in
density
may
generate
transportation
options
such
as
transit
service,
bicycling,
and
walking.
However,
it
may
be
several
years
before
the
zoning
regulations
actually
change
where
people
and
businesses
decide
to
locate.
Of
course,
it
should
be
noted
that
flexibilities
proposed
do
not
necessarily
mean
that
new
development
will
occur
right
away.
EPA
requests
comment
on
how
to
take
this
issue
of
timing
into
account
in
our
proposal
to
give
program
flexibility
for
adopting
land
use
measures.
g.
How
can
changes
to
land
development
affect
air
quality?
As
metropolitan
areas
continue
to
expand
in
both
size
and
population,
how
and
where
development
occurs
has
significant
implications
for
many
environmental
impacts
including
air
quality.
For
example,
establishing
land
use
strategies
to
increase
population
and
housing
densities,
and
support
the
provision
of
mixed
use
development
can
make
transit,
and
bicycle
and
pedestrian
facilities
more
viable
options
to
driving.
These
strategies
may
decrease
the
amount
of
motor
vehicle
emissions
that
would
occur
compared
to
development
patterns
if
the
strategies
were
not
established.
h.
What
is
the
connection
between
land
use
and
NSR?
A
major
new
source
has
the
potential
to
be
a
major
economic
development
generator
for
a
region
that
may
influence
development
and
travel
patterns.
For
example,
if
a
large
new
facility
were
to
locate
outside
of
the
nonattainment
area
(
in
many
cases
this
means
outside
of
the
area
with
existing
development,
infrastructure
and
density)
it
may
affect
regional
travel
patterns.
Such
a
facility
that
hires
hundreds
of
people
and
is
located
where
there
are
few
opportunities
to
use
alternative
modes
of
transportation
(
e.
g.,
mass
transit
or
walking
to
work)
may
result
in
greater
amounts
of
VMT
and
vehicle
trips
(``
VT'')
per
employee
than
a
similar
facility
accessible
by
mass
transit.
For
example,
a
long­
term
effect
of
locating
a
large
facility
in
an
undeveloped
area,
particularly
one
that
employs
a
large
number
of
people,
could
be
that
it
ultimately
attracts
additional
development.
For
instance,
if
enough
employees
are
at
the
site,
the
nearby
area
may
attract
other
service
industries
(
e.
g.,
fast
food,
drycleaners,
and
gas
stations).
These
developments
may
be
low
density,
auto­
dependent,
and
single­
use,
which
may
generate
additional
emissions
(
both
area
and
mobile
sources).
The
NSR
program
does
not
consider
or
offset
these
emissions.
On
the
other
hand,
if
a
hypothetical
source
chooses
to
locate
in
an
area
that
is
already
developed,
it
may
generate
less
VMT
and
therefore
fewer
emissions
than
one
located
in
an
undeveloped
area.
The
source
may
be
able
to
take
advantage
of
the
existing
infrastructure
and
service,
without
the
construction
of
new
infrastructure
elements
(
roads,
sewer
lines,
etc.)
that
result
in
their
own
air
emissions
and
other
environmental
impacts.
Such
location
in
existing
developed
areas
may
not
open
up
new
areas
to
development,
nor
encourage
sprawl.
With
this
option,
EPA
is
trying
to
recognize
the
indirect
impacts
of
development.
If
communities
use
CADC
techniques,
they
should,
compared
to
communities
that
do
not
use
such
practices,
offset
some
of
the
indirect
emissions
from
new
sources.
The
NSR
program
only
considers
the
direct
impacts
from
a
development.
This
option
tries
to
look
more
broadly
at
all
the
impacts
of
development.
We
would
reduce
the
requirements
of
NSR
and
would
provide
increased
program
flexibility
in
exchange
for
the
reduced
emissions
from
CADC
practices.
A
strategy
that
recognizes
the
relationships
between
stationary,
area
and
mobile
sources,
as
well
as
how
these
impacts
affect
total
environmental
quality,
is
one
that
will
most
effectively
deal
with
today's
environmental
problems.
That
is
why
multiple
offices
in
EPA
 
the
Air
Office,
the
Water
Office,
the
Policy
Office
and
the
Brownfields
Office
 
all
have
programs
encouraging
development
patterns
that
reduce
environmental
impacts.
These
programs
use
a
variety
of
tools:
regulations,
information,
and
partnerships
to
encourage
such
development.
It
would
be
consistent
with
these
other
Agency
efforts
to
develop
a
way
to
use
flexibilities
in
CAA
programs
to
encourage
CADC
practices.
It
would
also
be
supportive
of
the
many
States
and
localities
that
are
interested
in
accounting
for
the
air
quality
benefits
of
their
development
choices.
i.
Are
there
other
environmental
impacts
that
result
from
land
use
choices?
Yes,
low
density
development
patterns
tend
to
disturb
more
land
and
create
more
impervious
cover
over
a
region
(
e.
g.,
paved
roads),
harming
a
region's
water
quality
and
disrupting
habitat.
Because
of
the
close
interaction
between
development
and
the
achievement
of
national
environmental
goals,
EPA
has
long
been
engaged
in
addressing
their
environmental
impacts.
The
Office
of
Water
seeks
to
address
the
impacts
of
development
through
its
watershed
programs,
non­
point
source
programs,
source
water
protection
efforts,
the
National
Estuary
Program,
and
Total
Maximum
Daily
Load
programs.
When
EPA
reviews
projects
under
the
National
Environmental
Policy
Act,
it
examines
the
secondary
and
cumulative
impacts
of
development
generated
by
Federal
actions.
The
Brownfields
Office,
recognizing
the
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Proposed
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necessity
of
engaging
the
private
sector,
has
sought
specifically
to
encourage
development
on
brownfields.
j.
What
are
some
of
the
land
use
strategies
measures
included
in
``
Improving
Air
Quality
Through
Land
Use
Activities''?
The
guidance
includes
a
number
of
different
activities
that
may
generate
on­
road
mobile
source
emissions
reductions.
A
sampling
of
them
includes:
 
Grant
incentives
to
build
concentrated
activity
centers:
encouraging
pedestrian
and
transit
travel
by
creating
high
density
mixed
use
nodes
that
can
be
easily
linked
by
a
transit
network.
 
Change
zoning
regulations
to
allow
or
encourage
mixed­
use
development;
this
encourages
pedestrian
travel
by
putting
compatible
land
uses
next
to
each
other.
 
Build,
or
require
developers
to
install,
pedestrian
and
bicycle
facilities;
and
increase
the
number
of
sidewalks,
paths,
crosswalks,
bike
lanes,
etc.,
to
make
walking
and
bike
use
safe.
 
Transfer
unused
development
capacity
in
outlying
areas
to
increase
density
above
existing
limits
in
central
areas
and
near
transit
nodes;
this
moves
development
away
from
outlying
areas
and
toward
already
developed
areas.
 
Provide
incentives
such
as
reduced
parking
requirements
to
new
in­
fill
development;
this
takes
advantage
of
existing
infrastructure
and
discourages
driving.
EPA
were
to
go
forward
with
this
concept
the
Guidance
would
be
formally
incorporated
by
reference.
k.
Does
the
CAA
include
the
concept
of
increased
flexibility
in
the
NSR
program
in
cases
where
development
is
targeted
in
appropriate
areas?
Yes,
Section
173(
a)(
1)(
B)
replaces
the
traditional
requirement
that
a
new
or
modified
stationary
source
in
a
nonattainment
area
obtain
offsets
with
a
growth
allowance
concept
in
specially
designated
zones
to
which
``
economic
development
should
be
targeted.''
EPA
recognizes,
however,
that
this
proposal
differs
in
many
respects
from
section
173.
l.
Does
this
option
mandate
any
changes
to
local
land
use
decisions?
No.
The
CAA,
in
Section
131,
clearly
supports
the
position
that
land
use
decisions
are
local.
This
option
would
simply
recognize
that
areas
that
choose
to
develop
in
certain
patterns
are
doing
more
to
improve
air
quality
and
that
such
efforts
should
be
rewarded.
m.
How
would
this
option
be
enforced?
Since
the
CADC
measures
would
be
in
the
SIP,
they
could
not
be
changed
without
EPA
approval
of
a
SIP
revision.
If
measures
are
changed
they
must
be
replaced
with
other
measures
of
equal
or
greater
effectiveness,
and
otherwise
meet
the
requirements
of
section
110(
l)
concerning
antibacksliding
Failure
to
do
so
would
mean
that
either
of
these
options
would
no
longer
apply
to
the
area.
EPA
understands
that
it
does
not
have
the
authority
to
control
local
land
use
decisions.
The
choice
always
rests
with
the
community,
however,
it
doesn't
get
the
advantages
of
being
a
CADC
unless
it
puts
the
measures
in
its
SIP.
Should
it
decide
to
change
a
land
use
measure
in
the
SIP,
the
issue
for
EPA
would
be
whether
or
not
other
new
measures
yield
sufficient
reductions
to
allow
the
area
to
remain
a
CADC.
The
land
use
measure
itself
would
be
approved.
EPA
requests
comments
on
how
best
to
enforce
these
options.
n.
What
are
the
relative
advantages
of
the
two
options?
The
first
option
provides
greater
incentive
for
communities
and
is,
therefore,
more
likely
to
encourage
changes
to
land
development
policies.
The
second
option
is
simpler
since
it
does
not
make
changes
to
NSR.
As
a
result,
unlike
option
1,
it
does
not
require
communities
to
estimate
the
increased
emissions
that
could
result
from
changing
NSR
applicability
 
which
admittedly
would
be
difficult.
o.
What
are
the
disadvantages
of
this
proposal?
In
addition
to
the
modeling
issues
discussed
above
in
section
f,
there
are
several
other
issues
associated
with
providing
flexibilities,
such
as
reducing
NSR
requirements,
for
areas
that
adopt
CADC
land
use
measures.
It
may
be
difficult
to
ensure
that
the
CADC
land
use
measures
are
implemented
by
areas
participating
in
the
option.
It
may
also
be
difficult
to
design
penalty
measures
if
those
land
use
measures
are
not
implemented
by
areas.
In
addition,
if
the
CADC
should
fail
to
achieve
its
envisioned
land
use
pattern,
how
would
the
MPO
model
the
area
for
purposes
of
conformity.
By
encouraging
growth
in
established
areas,
this
option
may
raise
environmental
justice
concerns
and
unanticipated
costs
for
low­
income
residents.
Some
States
may
have
difficulties
managing
and
tracking
offset
pools.
EPA
requests
comment
on
all
of
these
issues
and
how
we
can
best
resolve
them.

10.
Tribal
Concerns
In
addition,
we
expect
that
some
Tribal
areas
will
be
designated
as
nonattainment
because
of
pollution
that
is
transported
from
the
surrounding
State(
s)
and
will
have
little
control
over
the
ability
of
areas
under
their
jurisdiction
to
attain
the
air
quality
standards.
In
the
event
that
such
an
area
fails
to
attain
by
the
attainment
date,
additional
flexibility
for
the
Tribes
will
be
needed
to
address
the
fairness
issues
created
by
transported
nonattainment
problems.
Tribes
have
asked
that
we
consider
providing
offset
set­
asides
in
order
to
address
these
issues.
We
request
comment
on
whether
emission
offset
set­
asides,
possibly
generated
by
innovative
measures
to
promote
additional
emissions
reductions,
are
an
appropriate
method
to
help
level
the
playing
field
for
the
Tribes
in
order
to
support
economic
development
in
Tribal
areas.
In
any
case,
we
believe
that
some
provisions
will
need
to
be
made
for
Tribal
areas,
because
they
will
have
limited
ability,
if
any,
to
generate
offsets
on
their
own.
We
may
also
need
to
work
with
States
to
help
provide
the
Tribes
access
to
offsets
from
non­
Tribal
areas.
Also,
it
is
important
to
recognize
that
the
NOX
SIP
Call
does
not
provide
for
an
emissions
budget
for
Tribes.
Therefore,
we
are
asking
for
comments
on
how
to
provide
a
set­
aside
to
provide
fair
access
to
development
in
these
areas.

P.
How
Will
EPA
Ensure
That
the
8­
Hour
Ozone
Standard
Will
Be
Implemented
in
a
Way
Which
Allows
an
Optimal
Mix
of
Controls
for
Ozone,
PM2.5
and
Regional
Haze?

1.
Could
an
Area's
8­
Hour
Ozone
Strategy
Affect
Its
PM2.5
and/
or
Regional
Haze
Strategy?
Many
of
the
areas
that
are
violating
either
the
8­
hour
ozone
or
PM2.5
NAAQS,
may
be
violating
both
of
these
NAAQS.
Thus,
in
many
cases,
States
will
have
ozone
and
PM2.5
nonattainment
areas
with
overlapping
boundaries.
Requirements
for
regional
haze
apply
to
all
areas.
Each
State
is
responsible
for
developing
SIP
revisions
to
meet
all
the
requirements
relevant
to
each
nonattainment
area
for
each
pollutant
as
well
as
developing
a
regional
haze
plan.
In
some
cases,
ozone
control
measures
may
also
be
useful
for
a
PM2.5
control
strategy
or
a
regional
haze
plan.
Similarly,
controls
for
PM2.5
may
lead
to
reductions
in
ozone
or
regional
haze.
For
example,
considered
in
isolation,
a
metropolitan
area's
ozone
strategy
might
be
based
on
additional
VOC
emissions
reductions;
if
the
area
needs
NOX
reductions
for
PM2.5
attainment,
however,
an
optimal
approach
might
include
a
more
complex
ozone
strategy
using
both
NOX
and
VOC
reductions.
We
believe
integration
of
ozone
and
PM2.5
attainment
planning
will
reduce
overall
costs
of
meeting
multiple
air
quality
goals.
Many
of
the
factors
affecting
concentrations
of
ozone
also
affect
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/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
concentrations
of
PM2.5.
Emissions
of
NOX
and/
or
VOC
will
lead
to
formation
of
organic
particles
and
the
precursors
of
particulate
nitrate,
as
well
as
ozone.
The
presence
of
ozone
is
an
important
factor
affecting
PM2.5
formation;
as
ozone
builds
up,
so
do
OH
radicals
which
are
instrumental
in
oxidizing
gas
phase
SO2
to
sulfuric
acid.
The
sulfuric
acid
may
be
converted
to
sulfate
particles,
increasing
the
PM2.5
concentration.
Further,
the
local
ozone
concentrations
may
be
decreased
by
the
reaction
of
ozone
with
nitric
oxide;
thus,
in
some
large
urban
areas,
a
decrease
in
local
NOX
emissions
can
result
in
higher
local
ozone
concentrations,
leading
to
higher
OH
radical
concentrations
and
increases
in
secondary
PM2.5.
Because
the
precursors
for
ozone
and
PM2.5
may
be
transported
hundreds
of
kilometers,
regional
scale
impacts
may
also
need
to
be
considered.

2.
What
Guidance
Has
EPA
Provided
Regarding
Ozone,
PM2.5
and
Regional
Haze
Interaction?
As
described
in
an
earlier
section
of
today's
proposed
rulemaking,
States
must
develop
ozone
attainment
demonstrations
for
many
nonattainment
areas.
General
criteria
for
attainment
demonstrations
are
contained
in
40
CFR
part
51,
appendix
W
(
i.
e.,
``
EPA's
Guideline
on
Air
Quality
Models'').
EPA's
May
1999
draft
``
Guidance
on
the
Use
of
Models
and
Other
Analyses
in
Attainment
Demonstrations
for
the
8­
Hour
Ozone
NAAQS''
provides
a
set
of
general
requirements
that
an
air
quality
model
should
meet
to
qualify
for
use
in
an
attainment
demonstration
for
the
8­
hour
ozone
NAAQS.
The
draft
guidance
encourages
States
to
integrate
ozone
control
strategies
with
strategies
designed
later
to
attain
the
NAAQS
for
PM2.5
and
to
meet
reasonable
progress
goals
for
regional
haze.
In
addition,
the
draft
guidance
presents
some
modeling/
analysis
principles
to
help
States
develop
data
bases
and
capabilities
for
considering
joint
effects
of
control
strategies
for
ozone,
PM2.5
and
regional
haze.
Because
emissions
and
meteorological
conditions
vary
seasonally,
the
guidance
recommends
assessing
the
effects
of
an
ozone
control
strategy
on
annual
PM2.5
concentrations
by
estimating
effects
on
mean
PM2.5
for
each
season
and
using
the
resulting
information
to
estimate
annual
impacts.
Emission
estimates
for
VOC,
NOX,
primary
PM2.5
,
sulfur
dioxide
and
ammonia
will
be
needed.
In
addition,
the
modeling
should
separately
estimate
the
effects
of
the
ozone
strategy
on
the
major
components
of
PM2.5
:
mass
associated
with
sulfates,
nitrates,
organic
carbon,
elemental
carbon,
and
all
other
species.
We
believe
that
this
approach
is
adequate
to
ensure
that
the
8­
hour
ozone
standard
will
be
implemented
by
States
in
a
way
that
allows
an
optimal
mix
of
controls
for
ozone,
PM2.5,
and
regional
haze.
Similarly,
EPA's
attainment
demonstration
guidance
for
PM2.5
and
regional
haze
states
that
models
intended
to
address
secondary
PM
problems
should
also
be
capable
of
simulating
ozone
formation
and
transport
(
January
2,
2001,
``
Guidance
for
Demonstrating
Attainment
of
Air
Quality
Goals
for
PM2.5
and
Regional
Haze'').
The
formation
and
transport
of
secondary
PM
are
closely
related
to
processes
that
are
important
in
the
formation
and
transport
of
ozone.
Thus,
it
makes
sense
for
programs
designed
to
control
ozone
to
be
cognizant
of
programs
to
reduce
PM2.5
and
improve
visibility
and
vice
versa.
The
PM2.5
guidance
suggests
conducting
a
``
midcourse
review''
of
an
approved
PM2.5
plan
to
review
changes
in
air
quality
resulting
from
implementation
of
plans
to
reduce
PM2.5,
regional
haze,
and
ozone.
(
EPA
guidance
on
mid­
course
review
of
attainment
demonstrations
is
described
earlier
in
today's
proposed
rulemaking.)
We
realize
that
in
some
cases
development
of
control
plans
will
be
complicated
by
the
need
to
assess
the
impact
of
the
precursors
of
ozone,
PM2.5,
and
regional
haze.
The
question
arises
whether
such
areas
may
be
provided
more
time
to
perform
the
more
complicated
analyses
such
that
an
effective
multi­
pollutant
strategy
may
be
developed.
However,
the
statute
provides
no
express
relief
for
these
situations.
Thus,
the
State
is
still
responsible
for
developing
and
submitting
demonstrations
which
show
that
each
standard
will
be
attained
by
the
applicable
date
or
dates
provided.

3.
What
Is
EPA
Proposing?

Today,
we
propose
to
continue
the
policy
of
encouraging
each
State
with
an
ozone
nonattainment
area
which
overlaps
or
is
nearby
a
PM2.5
nonattainment
area
to
take
all
reasonable
steps
to
coordinate
the
required
revisions
for
these
nonattainment
areas
and
meet
reasonable
progress
goals
for
regional
haze.
Specifically,
we
encourage
States
conducting
modeling
analyses
for
ozone
to
separately
estimate
effects
of
a
strategy
on
the
following:
mass
associated
with
sulfates,
nitrates,
organic
carbon,
elemental
carbon,
and
all
other
species.
Q.
What
Emission
Inventory
Requirements
Should
Apply
Under
the
8­
Hour
Ozone
NAAQS?

The
Consolidated
Emissions
Reporting
Rule
(
CERR)
(
67
FR
39602,
June
10,
2002)
has
established
basic
emission
inventory
requirements.
Specific
SIP­
related
inventory
issues
will
be
detailed
in
a
guidance
document.
An
important
difference
between
inventories
submitted
in
response
to
the
CERR
and
SIP
inventories
is
the
issue
of
approvability.
While
it
is
likely
that
an
inventory
submitted
under
the
CERR
would
be
identical
to
the
inventory
submitted
as
part
of
a
SIP,
the
SIP
inventory
will
need
to
go
through
public
hearing
and
formal
approval
by
EPA
as
a
SIP
element.
This
public
process
can
be
combined
with
the
public
process
the
State
undertakes
for
other
SIP
elements.
The
following
discussion
presents
more
details
on
the
emission
inventory.
Emission
inventories
are
critical
for
the
efforts
of
State,
local,
and
Federal
agencies
to
attain
and
maintain
the
NAAQS
that
EPA
has
established
for
criteria
pollutants
including
ozone.
Pursuant
to
its
authority
under
section
110
of
title
I
of
the
CAA,
EPA
has
long
required
States
to
submit
emission
inventories
containing
information
regarding
the
emissions
of
criteria
pollutants
and
their
precursors.
EPA
codified
these
requirements
in
40
CFR
part
51,
subpart
Q
in
1979
and
amended
them
in
1987.
The
1990
CAA
Amendments
revised
many
of
the
provisions
of
the
CAA
related
to
attainment
of
the
NAAQS
and
the
protection
of
visibility
in
mandatory
Class
I
Federal
areas
(
certain
national
parks
and
wilderness
areas).
These
revisions
established
new
periodic
emission
inventory
requirements
applicable
to
certain
areas
that
were
designated
nonattainment
for
certain
pollutants.
In
the
case
of
ozone,
section
182(
a)(
3)(
A)
required
that
States
submit
an
emission
inventory
every
3
years
for
nonattainment
areas
beginning
in
1995
for
calendar
year
1993.
The
inventory
must
include
emissions
of
VOC,
NOX,
and
carbon
monoxide
(
CO)
for
point,
area,
mobile
(
on­
road
and
non­
road),
and
biogenic
sources.
In
1998,
EPA
promulgated
the
NOX
SIP
Call
(
§
51.121)
which
calls
on
the
affected
States
and
the
District
of
Columbia
to
submit
SIP
revisions
providing
for
NOX
reductions
in
order
to
reduce
the
amount
of
ozone
and
ozone
precursors
transported
across
State
borders.
As
part
of
that
rule,
EPA
established
emissions
reporting
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Federal
Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
76
Although
the
United
States
Court
of
Appeals
has
remanded
certain
limited
issues
regarding
the
NOX
SIP
Call
to
the
Agency,
those
issues
do
not
include
the
reporting
requirements.
See
Michigan
v.
EPA,
213
F.
3d
663
D.
C.
Cir.
2000)
and
Appalachian
Power
Co.
v.
EPA,
251
F.
3d
1026
(
D.
C.
Cir.
2001).
requirements
for
States
subject
to
the
SIP
Call.
76
In
2002,
EPA
promulgated
the
CERR.
(
67
FR
39602,
June
10,
2002).
The
CERR
consolidates
the
various
emissions
reporting
requirements
that
already
exist
into
one
place
in
the
CFR,
establishes
new
reporting
requirements
for
PM2.5
and
its
precursors
and
establishes
new
requirements
for
the
statewide
reporting
of
area
source
and
mobile
source
emissions.
The
CERR
establishes
two
types
of
required
emission
inventories:
 
Annual
inventories,
and
 
3­
year
cycle
inventories.
We
anticipate
that
States
will
use
data
obtained
through
their
current
annual
source
reporting
requirements
(
annual
inventories)
to
report
emissions
from
larger
point
sources
annually.
States
will
need
to
get
data
from
smaller
point
sources
every
3rd
year.
States
may
also
take
advantage
of
data
from
emission
statements
that
are
available
to
States
but
not
reported
to
EPA.
New
nonattainment
areas
for
the
8­
hour
standard
that
are
classified
under
subpart
2
will
need
to
establish
an
emission
statement
program
as
specified
under
section
182(
a)(
3)(
B).
We
published
guidance
on
emission
statements
in
July
1992
titled,
``
Guidance
on
the
Implementation
of
an
Emission
Statement
Program.''
As
appropriate,
States
may
use
the
emission
statement
data
to
meet
their
reporting
requirements
for
point
sources.
We
are
interested
in
States'
comments
on
their
experience
with
the
emission
statement
program
and
how
the
implementation
of
the
emission
statement
program
can
be
improved.
States
are
also
required
to
inventory
area
and
mobile
source
emissions
on
a
statewide
basis
for
the
3­
year
cycle
inventory.
Mobile
source
emissions
should
be
estimated
by
using
the
latest
emissions
models
and
planning
assumptions
available.
The
latest
approved
version
of
the
MOBILE
model
(
MOBILE6
at
the
time
of
this
proposed
rulemaking,
see
67
FR
4254,
January
29,
2002)
should
be
used
to
estimate
emissions
from
on­
road
transportation
sources,
in
combination
with
the
latest
available
estimates
of
VMT.
EPA
has
issued
a
guidance
memo
titled
``
Policy
Guidance
on
the
Use
of
MOBILE6
for
SIP
Development
and
Transportation
Conformity''
dated
January
18,
2002,
that
provides
additional
information
on
the
use
of
the
MOBILE6
model.
The
NONROAD
model
is
currently
available
in
draft
form
and
can
be
used
for
initial
estimates
of
off­
road
mobile
source
emissions.
We
expect
that
the
final
version
of
the
NONROAD
model
will
be
released
in
late
2004,
which
will
not
be
in
time
for
States
to
use
it
for
their
2002
emission
inventories,
which
are
due
June
1,
2004.
However,
by
the
time
EPA's
rulemaking
on
implementation
of
the
8­
hour
ozone
standard
is
final
and
States
need
to
begin
preparing
SIPs,
a
new
draft
version
of
NONROAD
will
have
been
released
in
connection
with
a
planned
proposal
in
early
2003
regarding
regulation
of
certain
non­
road
engine
categories.
When
the
NONROAD
model
is
final,
States
may
choose
to
update
their
2002
emission
inventories
using
the
final
NONROAD
model.
By
merging
the
information
on
point
sources,
area
sources
and
mobile
sources
into
a
comprehensive
emission
inventory,
State
and
local
agencies
may
do
the
following:
 
Set
a
baseline
for
SIP
development,
 
Measure
their
progress
in
reducing
emissions,
 
Have
a
tool
they
can
use
to
support
future
trading
programs,
 
Answer
public
requests
for
information.
Most
importantly,
States
need
these
inventories
to
help
nonattainment
areas
develop
and
meet
SIP
requirements
to
reach
the
NAAQS.
In
April
1999,
we
published
``
Emissions
Inventory
Guidance
for
Implementation
of
Ozone
and
Particulate
Matter
National
Ambient
Air
Quality
Standards
(
NAAQS)
and
Regional
Haze
Regulations,''
EPA
 
454/
R
 
99
 
006.
We
will
be
updating
this
guidance
and
are
soliciting
comment
on
several
key
points
to
be
addressed
in
the
revised
document.
These
points
are:
 
Section
182(
a)(
1)
requires
that
marginal
and
above
ozone
nonattainment
areas
submit
an
emission
inventory
2
years
after
designation
as
nonattainment
in
1990.
For
nonattainment
areas
classified
under
subpart
2
for
the
8­
hour
ozone
standard,
we
propose
to
interpret
this
to
mean
that
an
emission
inventory
would
be
required
2
years
after
designation
(
i.
e.,
in
2006
if
EPA
designates
areas
in
2004).
The
CERR
requires
comprehensive
triennial
emission
inventories,
beginning
with
the
2002
inventory
year,
regardless
of
an
area's
attainment
status.
Because
these
emission
inventories
will
be
available,
we
propose
that
the
emission
inventories
required
by
the
CERR
are
sufficient
to
meet
the
provisions
of
section
182(
a)(
1).
 
In
the
past,
there
have
been
instances
where
portions
of
Tribal
areas
have
been
included
in
designated
nonattainment
areas,
but
when
the
baseline
emission
inventory
was
prepared,
emissions
from
the
Tribal
lands
were
not
included.
This
has
had
the
effect
of
preventing
the
Tribes
from
generating
emission
reductions
from
existing
sources
to
develop
emission
offsets,
as
well
as
impairing
the
ability
of
the
State
to
model
as
accurately
as
possible.
We
are
encouraging
the
States
and
Tribes
to
work
together
to
ensure
that
the
information
used
in
developing
the
baseline
emission
inventory
is
inclusive
of
all
emissions
from
the
nonattainment
area.
 
The
emission
inventory
is
used
as
a
tracking
metric
by
some
programs
such
as
emission
trading,
NSR
offsets
trading
and
RFP.
This
requires
that
a
year
is
designated
as
a
``
baseline''
year
and
used
as
the
reference
for
the
particular
program.
An
external
review
draft
of
the
emission
inventory
guidance
titled
``
Emission
Inventory
Guidance
for
Implementation
of
Ozone
and
Particulate
Matter
National
Ambient
Air
Quality
Standards
(
NAAQS)
and
Regional
Haze
Regulations''
is
available
at:
http://
www.
epa.
gov/
ttn/
chief/
eiinformation.
html.
Comments
on
this
document
are
due
at
the
same
time
as
comments
on
this
proposed
rulemaking.
However,
the
review
of
the
emission
inventory
guidance
is
not
part
of
this
proposed
rulemaking.
Comments
submitted
on
the
emission
inventory
guidance
should
be
identified
as
such
and
will
not
be
docketed
nor
will
a
comment/
response
summary
of
these
comments
be
a
part
of
the
final
8­
hour
ozone
implementation
rule.
Instructions
on
how
to
submit
comments
are
included
with
the
draft
guidance
document.

R.
What
Guidance
Should
Be
Provided
That
Is
Specific
to
Tribes?
This
section
summarizes
guidance
for
Tribes
offered
in
various
parts
of
this
proposal.
The
TAR
(
40
CFR
part
49),
which
implements
section
301(
d)
of
the
CAA,
gives
Tribes
the
option
of
developing
TIPs.
Unlike
States,
Tribes
are
not
required
to
develop
implementation
plans.
Specifically,
the
TAR,
adopted
in
1998,
provides
for
the
Tribes
to
be
treated
in
the
same
manner
as
a
State
in
implementing
sections
of
the
CAA.
EPA
determined
in
the
TAR
that
it
was
inappropriate
to
treat
Tribes
in
a
manner
similar
to
a
State
with
regard
to
specific
plan
submittal
and
implementation
deadlines
for
NAAQSrelated
requirements,
including,
but
not
limited
to,
such
deadlines
in
CAA
sections
110(
a)(
1),
172(
a)(
2),
182,
187,
and
191.
See
40
CFR
49.4(
a).
If
a
Tribe
elects
to
do
a
TIP,
we
will
work
with
the
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Federal
Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
Tribe
to
develop
an
appropriate
schedule
which
meets
the
needs
of
each
Tribe,
and
which
does
not
interfere
with
the
attainment
of
the
NAAQS
in
other
jurisdictions.
The
Tribe
developing
a
TIP
can
work
with
the
EPA
Regional
Office
on
the
appropriateness
of
applying
RFP
and
other
SIP
requirements
that
may
or
may
not
be
appropriate
for
the
Tribe's
situation.
The
TAR
indicates
that
EPA
is
ultimately
responsible
for
implementing
CAA
programs
in
Indian
country,
as
necessary
and
appropriate,
if
Tribes
choose
not
to
implement
those
provisions.
For
example,
an
unhealthy
air
quality
situation
in
Indian
country
may
require
EPA
to
develop
a
FIP
to
reduce
emissions
from
sources
on
the
reservation.
In
such
a
situation,
EPA,
in
consultation
with
the
Tribe
and
in
consideration
of
their
needs,
would
work
to
ensure
that
the
NAAQS
are
met
as
expeditiously
as
practicable.
Likewise,
if
we
determine
that
sources
in
Indian
country
could
interfere
with
a
larger
nonattainment
area
meeting
the
NAAQS
by
its
attainment
date,
we
would
develop
a
FIP
for
those
sources
in
consultation
with
the
Tribe,
as
necessary
and
appropriate.
The
TAR
also
provides
flexibility
for
the
Tribe
in
the
preparation
of
a
TIP
to
address
the
NAAQS.
If
a
Tribe
elects
to
develop
a
TIP,
the
TAR
offers
flexibility
to
Tribes
to
identify
and
implement
 
on
a
Tribe­
by­
Tribe,
case­
by­
case
basis
 
only
those
CAA
programs
or
program
elements
needed
to
address
their
specific
air
quality
problems.
In
its
proposed
Tribal
rule,
we
described
this
flexible
implementation
approach
as
the
``
modular
approach.''
Each
Tribe
may
evaluate
the
particular
activities,
including
potential
sources
of
air
pollution
within
the
exterior
boundaries
of
its
reservation
(
or
within
nonreservation
areas
for
which
it
has
demonstrated
jurisdiction),
which
cause
or
contribute
to
its
air
pollution
problem.
A
Tribe
may
adopt
measures
for
controlling
only
those
sources
or
ozone
precursor
emissions,
as
long
as
the
elements
of
the
TIP
are
``
reasonably
severable''
from
the
package
of
elements
that
can
be
included
in
a
whole
TIP.
A
TIP
must
include
regulations
designed
to
solve
specific
air
quality
problems
for
which
the
Tribe
is
seeking
EPA
approval,
as
well
as
a
demonstration
that
the
Tribal
air
agency
has
the
authority
from
the
Tribal
government
to
develop
and
run
their
program,
the
capability
to
enforce
their
rules,
as
well
as
the
resources
to
implement
the
program
they
adopt.
In
addition,
the
Tribe
must
receive
an
``
eligibility
determination''
from
EPA
to
be
treated
in
the
same
manner
as
a
State
and
to
receive
authorization
from
EPA
to
run
a
CAA
program.
We
would
review
and
approve,
where
appropriate,
these
partial
TIPs
as
one
step
of
an
overall
air
quality
plan
to
attain
the
NAAQS.
A
Tribe
may
step
in
later
to
add
other
elements
to
the
plan,
or
EPA
may
step
in
to
fill
air
quality
gaps
as
necessary
and
appropriate.
In
approving
a
TIP,
we
would
evaluate
whether
the
plan
interferes
with
the
overall
air
quality
plan
for
an
area
when
Tribal
lands
are
part
of
a
multijurisdictional
area.
Because
many
of
the
nonattainment
areas
will
include
many
jurisdictions,
and
in
some
cases
both
Tribal
and
State
jurisdictions,
it
is
important
for
the
Tribes
and
the
States
to
work
together
to
coordinate
their
planning
efforts.
States
need
to
incorporate
Tribal
emissions
in
their
base
emission
inventories
if
Indian
country
is
part
of
an
attainment
or
nonattainment
area.
Tribes
and
States
need
to
coordinate
their
planning
activities
as
appropriate
to
ensure
that
neither
is
adversely
affecting
attainment
of
the
NAAQS
in
the
area
as
a
whole.

S.
What
Are
the
Requirements
for
OTRs
Under
the
8­
Hour
Ozone
Standard?
Section
176A
of
subpart
1
provides
the
authority
to
establish
interstate
transport
regions
where
transport
of
air
pollutants
from
one
or
more
States
contributes
significantly
to
a
violation
of
a
NAAQS
in
one
or
more
other
States.
When
a
transport
region
is
established,
section
176A
requires
that
a
transport
commission,
comprised
of
representatives
from
the
States
in
the
transport
region,
also
be
established.
The
role
of
the
transport
commission
is
to
assess
the
degree
of
interstate
transport
of
the
pollutant
and
precursors
throughout
the
transport
region
and
to
evaluate
strategies
for
mitigating
the
interstate
pollution.
Section
184
of
subpart
2
establishes
additional
provisions
for
OTRs.
Section
184(
a)
specifically
established
an
OTR
comprising
12
Northeast
and
Mid­
Atlantic
States
and
the
District
of
Columbia
in
order
to
address
the
longstanding
problem
of
interstate
ozone
pollution
in
that
region.
The
general
provisions
of
section
176A
apply
to
any
OTR
established
under
section
184.
To
date,
the
existing
OTR
is
the
only
transport
region
for
any
pollutant
that
has
been
established
and
is
subject
to
the
section
176A
requirements.
Section
184(
b)
of
subpart
2
sets
forth
specific
VOC
and
NOX
control
requirements
to
be
applied
throughout
the
entire
OTR,
in
both
attainment
and
nonattainment
areas,
to
reduce
interstate
pollution.
These
additional
regional
control
requirements
are
part
D
NSR
(
for
VOC
and
NOX),
RACT
(
for
VOC
and
NOX),
enhanced
vehicle
I/
M,
and
Stage
II
vapor
recovery
(
for
vehicle
refueling)
or
a
comparable
measure.
Some
of
these
requirements
duplicate
requirements
for
ozone
nonattainment
areas
that
are
classified
under
subpart
2.
We
believe
the
clearest
legal
interpretation
of
section
184
is
that
the
current
OTR
and
section
184
control
requirements
apply
for
purposes
of
the
8­
hour
standard.
We
believe
that
this
interpretation
would
not
result
in
any
new
control
requirements
for
any
area
in
the
OTR
because
these
control
requirements
are
not
associated
with
an
area's
designation
or
classification
and
already
apply
regionwide
under
the
1­
hour
ozone
standard.
Rather,
these
statutory
obligations
would
remain
in
place
for
areas
in
the
existing
OTR.
If
a
new
OTR
is
established
for
purposes
of
the
8­
hour
standard
pursuant
to
section
176A,
that
area
would
also
be
subject
to
the
provisions
and
additional
control
requirements
of
section
184.
Because
all
areas
in
the
existing
OTR,
including
attainment
areas,
are
subject
to
part
D
NSR
for
NOX
and
VOC
and
a
number
of
other
control
measures,
areas
in
the
OTR
would
not
be
able
to
take
full
advantage
of
either
the
transitional
option
proposed
for
NSR
or
the
Agency's
existing
approach
for
early
reductions,
both
of
which
are
discussed
elsewhere
in
this
proposed
rulemaking.

T.
Are
There
Any
Additional
Requirements
Related
to
Enforcement
and
Compliance?
Section
172(
c)(
6)
requires
nonattainment
SIPs
to
``
include
enforceable
emission
limitations,
and
such
other
control
measures,
means
or
techniques
*
*
*
as
well
as
schedules
and
timetables
for
compliance,
as
may
be
necessary
or
appropriate
to
provide
for
attainment
*
*
*''
The
current
guidance,
``
Guidance
on
Preparing
Enforceable
Regulations
and
Compliance
Programs
for
the
15
Percent
Rate­
of­
Progress
Plans
(
EPA
 
452/
R
 
93
 
005,
June
1993)''
is
relevant
to
rules
adopted
for
SIPs
under
the
8­
hour
ozone
NAAQS
and
should
be
consulted
for
purposes
of
developing
appropriate
nonattainment
plan
provisions
under
section
172(
c)(
6).
This
document
provides
States
with
guidance
on
how
to
prepare
enforceable
stationary
and
mobile
source
regulations
for
their
ROP
plans.
Developing
clear,
concise,
enforceable
rules
and
establishing
strong
compliance
programs
helps
to
ensure
that
the
emissions
reductions
projected
for
specific
control
strategies
are
actually
achieved.
The
document
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Federal
Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
77
A
description
of
the
NCore
can
be
found
at
the
following
Web
site:
http://
www.
epa.
gov/
ttnamtil/
files/
ambient/
monitorstrat/
sec4.
pdf.
78
A
description
of
the
NCore
level
2
stations
can
be
found
at
the
following
Web
site:
http://
www.
epa.
gov/
ttnamtil/
files/
ambient/
monitorstrat/
sec4.
pfd.
79
Since
we
anticipae
that
areas
will
be
designated
and
classified
on
the
same
date,
we
will
use
the
term
``
designation''
to
represent
the
date
of
designation
and
classification.
identifies
the
minimum
criteria
and
the
information
sources
that
we
will
use
to
evaluate
the
enforceability
of
regulations,
and
to
determine
compliance
with
Federal
guidelines
and
regulations.
States
should
follow
the
guidelines
provided
in
this
document
as
part
of
their
quality
assurance
process
involved
in
the
development
of
control
measures
for
their
ROP
plans
and
their
attainment
demonstrations.

U.
What
Requirements
Should
Apply
to
Emergency
Episodes?

Currently,
subpart
H
of
40
CFR
part
51
specifies
requirements
for
SIPs
to
address
emergency
air
pollution
episodes
and
for
preventing
air
pollutant
levels
from
reaching
levels
determined
to
cause
significant
harm
to
the
health
of
persons.
We
anticipate
proposing
a
separate
rulemaking
in
the
future
to
update
portions
of
that
rule.
This
separate
rulemaking
may
be
done
in
conjunction
with
revisions
to
the
emergency
episode
rules
that
will
address
the
PM2.5
NAAQS.

V.
What
Ambient
Monitoring
Requirements
Will
Apply
Under
the
8­
Hour
Ozone
NAAQS?

Ozone
monitoring
data
play
an
important
role
in
designations,
control
strategy
development,
and
related
implementation
activities.
The
ambient
monitoring
requirements
are
listed
in
40
CFR
part
58.
We
plan
to
modify
these
existing
ozone
monitoring
requirements
as
part
of
the
National
Air
Monitoring
Strategy.
These
changes
are
being
undertaken
in
a
separate
rulemaking
effort.
We
plan
to
propose
a
national
strategy
introducing
NCore
(
national
core
monitoring
sites)
as
a
replacement
for
traditional
national
air
monitoring
stations/
State
and
local
air
monitoring
stations
(
NAMS/
SLAMS)
monitoring
currently
codified
at
40
CFR
part
58.
Part
of
the
NCore
network
77
would
include
the
existing
ozone
monitoring
sites
that
currently
support
the
NAAQSrelated
activities.
The
number
and
location
of
the
original
sites
would
likely
be
very
similar
to
the
current
network.
The
regulatory
modifications
are
expected
to
include
ozone
monitoring
requirements
based
upon
the
population
of
an
area
and
its
historical/
forecasted
ozone
air
quality
values.
In
addition,
we
anticipate
that
we
will
include
a
requirement
for
measuring
multiple
air
pollutants
at
select
locations.
The
NCore
sites
are
expected
to
include
high­
sensitivity
nitrogen
oxide
(
NO)
and
total
reactive
oxides
of
nitrogen
(
NOy)
measurements
at
locations
across
the
nation
to
support
the
tracking
of
national
emission
strategy
efforts
such
as
the
NOX
SIP
Call
and,
if
created,
a
statute
codifying
the
Clear
Skies
Bill,
which
addresses
NOX
reductions
across
the
nation.
Each
State,
local,
and
Tribal
air
monitoring
agency
is
being
asked
to
assess
the
adequacy
of
its
air
pollution
monitoring
networks,
including
those
sites
that
measure
ozone.
We
will
work
with
these
agencies
to
develop
network
plans
to
ensure
approval
of
all
network
designs.
On
a
local
basis,
there
will
be
some
relocation,
addition
and
removal
of
ozone
sites
as
a
result
of
regional
network
assessments.
The
CAA
requires
that
ozone
precursor
monitoring
be
conducted
in
any
ozone
nonattainment
area
classified
as
serious,
severe,
or
extreme.
We
adopted
regulations
reflecting
the
statutory
requirements
in
40
CFR
part
58
in
1994
as
the
Photochemical
Assessment
Monitoring
Stations
(
PAMS)
program.
Areas
that
would
be
designated
under
the
8­
hour
ozone
NAAQS
are
not
directly
addressed
in
40
CFR
part
58
for
ozone
precursor
monitoring.
The
PAMS
monitoring
will
be
retained
in
areas
currently
designated
as
1­
hour
ozone
serious,
severe,
and
extreme
nonattainment
areas.
The
monitoring
strategy
regulation
revisions
will
consider
the
possibility
of
reducing
some
of
the
sampling
schedules.
We
also
intend
to
promote
the
use
of
individually
designed
PAMS
networks
to
address
the
very
specific
ozone
and
ozone
precursor
data
needs
in
PAMS
areas.
The
revised
regulation
will
also
cover
all
areas
that
are
classified
as
serious
or
above
for
the
8­
hour
NAAQS.
Once
an
area
is
bumped
up
to
serious
or
above,
it
would
be
subject
to
the
enhanced
monitoring
rule
and
would
be
required
to
develop
appropriate
PAMS
plans.
Where
practical,
PAMS
stations
should
be
incorporated
into
multi­
pollutant
NCORE
level
2
sites
78
that
include
NOy,
meteorological
and
CO
(
a
good
indicator
of
mobile
emission
measurements.)
Alternative
plans
are
recommended
for
8­
hour
bump­
up
areas.
This
will
be
reflected
in
the
40
CFR
part
58
changes
as
well.
W.
When
Will
EPA
Require
8­
Hour
Attainment
Demonstration
SIP
Submissions?

1.
Background
The
time
for
submission
of
attainment
demonstration
SIPs
is
linked
to
whether
the
requirements
are
specified
under
subpart
1
or
subpart
2.
In
general,
all
areas
designated
nonattainment
are
subject
to
the
planning
requirements
of
subpart
1.
However,
if
the
area
is
subject
to
a
more
specific
requirement
under
subpart
2,
the
subpart
2
planning
obligation
controls.
As
proposed
elsewhere
in
the
discussion
concerning
classification
options,
some,
if
not
all,
8­
hour
ozone
standard
nonattainment
areas
will
be
subject
to
the
subpart
2
planning
obligations.
Section
172(
b)
(
in
subpart
1)
provides
that
at
the
time
EPA
promulgates
the
designation
of
an
area
as
nonattainment
with
respect
to
a
NAAQS
under
section
107(
d),
the
Administrator
shall
establish
a
schedule
for
submission
of
a
plan
that
meets
the
CAA's
requirements
for
nonattainment
areas.
This
schedule
may
not
extend
beyond
3
years
after
the
date
of
nonattainment
designation.
Under
subpart
2
of
the
CAA,
attainment
demonstration
SIP
submission
deadlines
for
areas
designated
nonattainment
for
the
1­
hour
ozone
standard
are
linked
to
the
date
of
enactment
of
the
CAA
Amendments,
i.
e.,
from
November
15,
1990.
This
date
is
also
the
date
by
which
most
of
these
areas
were
designated
and
classified
by
operation
of
law.
See
CAA
section
107(
d)(
1)(
C)
and
181(
a).
Moreover,
in
subpart
1,
Congress
linked
the
time
for
SIP
submission
to
the
time
of
designations.
See
CAA
section
172(
b).
Because
such
dates
have
long
since
passed,
we
believe
that
it
is
reasonable
to
tie
the
SIP
submittal
dates
to
the
date
of
nonattainment
designations
and
classifications
for
the
8­
hour
standard.
79
While
the
submission
date
for
all
SIP
requirements
in
subpart
2
will
be
tied
to
the
date
of
nonattainment
designations,
this
section
of
the
proposed
rule
discusses
the
requirement
to
submit
an
attainment
demonstration.
For
purposes
of
the
discussion
here,
we
are
assuming
that
designations
will
occur
in
2004.
Subpart
2
requires
attainment
demonstration
submissions
at
different
times
depending
on
an
area's
classification.
Section
182(
a)
does
not
require
an
attainment
demonstration
for
marginal
areas.
Section
182(
b)(
A)(
1)

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requires
moderate
areas
to
submit
an
attainment
demonstration
no
later
than
3
years
after
the
date
of
enactment.
Section
183(
c)(
2)
requires
serious
(
and
higher
classified)
areas
to
submit
an
attainment
demonstration
no
later
than
4
years
after
date
of
enactment.
As
provided
above,
we
propose
to
interpret
these
times
to
run
from
the
date
of
an
area's
nonattainment
designation.
Despite
the
fact
that
the
CAA's
provisions
for
the
timing
of
submission
of
attainment
demonstration
SIPs
for
subpart
1
areas
differs
from
that
of
subpart
2
areas,
we
do
not
believe
it
is
appropriate
or
desirable
to
require
States
to
submit
attainment
demonstrations
for
areas
designated
nonattainment
under
the
8­
hour
standard
at
greatly
different
times.
We
recognize
that
photochemical
grid
modeling
 
required
by
the
CAA
for
interstate
moderate
nonattainment
areas,
as
well
as
serious
and
higherclassified
areas
 
will
be
performed
on
large
enough
scales
to
address
transport
and
will
in
most
cases
encompass
a
number
of
nonattainment
areas.
These
numerous
nonattainment
areas
may
differ
by
classification
(
some
areas
may
be
intrastate
moderate
areas,
some
interstate
moderate
areas,
and
others
serious
and
above
nonattainment
areas).
Some
areas
that
may
require
attainment
demonstrations
may
be
subject
to
subpart
1
while
others
may
be
subject
to
subpart
2.
Furthermore,
the
control
strategies
that
may
be
modeled
for
all
the
areas
in
the
modeling
domain
will
likely
be
modeled
simultaneously,
especially
if
all
the
areas
are
located
in
a
single
State.
Also,
we
believe
that
techniques
for
photochemical
grid
modeling,
while
they
were
more
timeconsuming
when
the
1990
CAA
Amendments
were
enacted,
are
now
more
standardized
and
less
timeconsuming
In
light
of
this,
we
do
not
believe
it
is
reasonable
to
defer
submission
of
attainment
demonstrations
beyond
3
years
after
designation.
The
TAR,
which
implements
section
301(
d)
of
the
CAA,
gives
Tribes
the
option
of
developing
TIPs.
Specifically,
the
TAR
provides
for
the
Tribes
to
be
treated
in
the
same
manner
as
a
State
in
implementing
most
of
the
CAA.
However,
in
the
TAR,
EPA
determined
that
it
was
inappropriate
to
treat
Tribes
in
a
manner
similar
to
a
State
with
regard
to
schedules.
Therefore,
Tribes
are
not
required
to
submit
a
TIP,
nor,
if
they
choose
to
submit
a
TIP,
are
they
required
to
submit
a
TIP
in
the
same
timeframe
as
the
States.
Where
a
Tribe
chooses
to
develop
a
TIP,
we
will
work
with
them
to
develop
an
appropriate
schedule
that
meets
the
needs
of
the
Tribe
but
does
not
interfere
with
timely
attainment
of
the
NAAQS
on
Tribal
land
or
in
other
jurisdictions.

2.
Option
Being
Proposed
In
light
of
the
above
discussion
and
rationale,
we
are
proposing
to
require
all
nonattainment
areas
that
are
required
to
perform
photochemical
grid
modeling
 
regardless
of
coverage
under
subpart
1
or
2
or
regardless
of
classification
under
subpart
2
 
to
submit
an
attainment
demonstration
within
3
years
after
designation.
We
believe
this
proposal
would
result
in
a
closer
synchronization
of
the
8­
hour
ozone
and
PM2.5
attainment
demonstration
SIP
submittal
dates.
We
discussed
the
integration
of
ozone
and
PM2.5
schedules
at
the
three
public
meetings
and
numerous
conference
calls
that
were
held
with
stakeholder
groups.
A
majority
of
commenters
were
supportive
of
integrating
the
SIP
attainment
plan
submission
schedules
for
ozone
and
PM2.5
because
integration
would
optimize
control
strategies,
save
time
and
planning
resources,
streamline
deadlines,
and
maximize
cost
effectiveness,
among
other
benefits.
The
PM2.5
standard
is
anticipated
to
be
implemented
under
subpart
1
of
the
CAA,
which
requires
a
SIP
submission
by
a
date
set
by
EPA,
which
can
be
no
later
than
3
years
from
designation.
Since
we
are
proposing
that
all
8­
hour
ozone
nonattainment
areas
that
are
required
to
perform
photochemical
grid
modeling
submit
their
attainment
demonstration
SIPs
within
3
years
after
nonattainment
designation,
this
would
result
in
a
high
degree
of
synchronization
and
thus
allow
comprehensive
analyses
that
would
evaluate
controls
to
attain
both
air
quality
standards.
As
noted
above,
we
are
assuming
for
this
proposed
rulemaking
that
ozone
designations
will
be
promulgated
in
the
2004
timeframe;
currently
under
TEA
 
21,
designations
for
PM2.5
would
occur
beginning
in
2004,
and
must
be
completed
by
the
end
of
2005.
Thus,
the
later­
designated
PM2.5
areas
would
not
be
required
to
submit
their
attainment
demonstration
SIPs
until
after
the
ozone
SIPs
are
due.
Additional
discussion
of
the
benefits
of
integrating
the
planning
for
both
standards
appears
elsewhere
in
this
proposed
rulemaking.

VII.
Proposal
of
Integrated
Frameworks
Using
Various
Options
As
noted
above,
we
are
presenting
two
possible
integrated
frameworks
that
comprise
an
option
from
each
of
the
above
implementation
elements
to
illustrate
how
they
may
work
in
conjunction
with
each
other.
In
addition
to
soliciting
comment
on
the
options
presented
for
the
individual
elements,
we
are
also
soliciting
comment
on
how
the
options
can
be
grouped
into
an
integrated
implementation
framework.
The
following
frameworks
should
be
considered
illustrative
of
possible
ways
of
combining
the
element
options.
For
final
rulemaking,
however,
we
may
develop
a
consolidated
framework
that
uses
a
different
combination
of
the
options
proposed
above,
based
on
comments
received
and
other
information
that
comes
to
light
during
the
public
comment
period.
We
are
proposing
for
comment
two
integrated
frameworks:
 
Framework
1
 
an
approach
considered
similar
to
traditional
implementation,
 
Framework
2
 
an
approach
considered
more
flexible
than
traditional
implementation.
Table
5
illustrates
how
element
options
may
be
combined
to
form
these
two
frameworks.
Elements
for
which
we
are
proposing
only
one
option
would
be
common
to
either
framework.
For
elements
for
which
we
are
proposing
several
options,
only
one
option
has
been
selected
for
purposes
of
illustrating
the
frameworks
depicted
below.
In
addition,
there
are
several
proposed
elements
where
options
are
presented
that
only
apply
to
areas
that
would
be
covered
by
subpart
1;
these
elements
include
RACT
for
subpart
1
areas
and
the
NOX
waiver
requirement
as
it
would
apply
to
subpart
1
areas.
These
elements
are
not
shown
in
Table
5
below,
since
they
are
only
applicable
to
subpart
1
areas.

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2,
2003
/
Proposed
Rules
TABLE
5.
 
8­
HOUR
OZONE
NAAQS
IMPLEMENTATION
ELEMENTS/
OPTIONS
GROUPED
INTO
FRAMEWORKS
FOR
PROPOSAL
[
This
table
only
summarizes
the
options
and
approaches;
the
full
description
of
the
approach
or
option
in
the
proposed
rulemaking
should
be
consulted]

Implementation
element
Framework
1
Framework
2
A.
Will
subpart
1
or
subpart
2
govern
classifications?
Classify
all
areas
under
subpart
2
using
8­
hour
design
values.
(
Option
1)
Areas
with
a
1­
hour
design
value
 
0.121
ppm
would
be
classified
under
subpart
2
using
8­
hour
design
values.
Areas
with
a
1­
hour
design
value
<
0.121
ppm
would
be
covered
under
subpart
1.
(
Option
2)
B.
Will
areas
under
subpart
1
be
classified?
N/
A
...................................................................
No
classification.
(
Option
1)
C.
When
may
the
State
treat
measures
that
applied
for
purposes
of
the
1­
hour
standard
as
contingency
measures,
consistent
with
section
110(
l).
When
the
area
attains
the
8­
hour
ozone
standard
and
is
designated
attainment.
When
the
area
achieves
the
level
of
the
1­
hour
standard.

D.
1.
How
will
the
15
percent
VOC
ROP
requirement
apply?
All
areas
classified
as
moderate
or
above
for
the
8­
hour
NAAQS
must
achieve
a
15
percent
reduction
in
VOC
emissions
for
the
first
6
years
after
the
base
year
(
2002).
(
Option
1)
A
moderate
area
that
already
achieved
a
15
percent
VOC
reduction
for
the
1­
hour
ozone
standard
would
be
considered
to
have
met
the
15
percent
requirement
already
and
may
instead
implement
RFP
consistent
with
section
172(
c).
An
area
classified
as
serious
or
above
that
already
achieved
a
15
percent
VOC
reduction
would
be
considered
to
have
met
the
15
percent
requirement
so
it
could
choose
to
achieve
an
average
of
three
percent
per
year
of
VOC
or
NOX
reductions
for
the
6­
year
period.
(
Option
2)
D.
2.
What
is
the
baseline
year
for
the
emission
inventory
used
for
RFP/
ROP?
All
areas
would
use
a
2002
baseline
year
for
preparation
of
the
emissions
inventory.

D.
3.
What
restrictions
on
creditable
measures
for
RFP/
ROP
under
the
8­
hour
standard
(
subpart
2
areas
only)
will
apply?
All
emissions
reductions
that
occur
after
the
baseline
emissions
inventory
year
from
post­
1990
Federal
measures
and
any
other
measures
would
be
creditable
for
ROP/
RFP,
except
those
specifically
prohibited
in
section
182(
b)(
1)(
D).
D.
4.
What
will
RFP
be
for
areas
classified
under
subpart
1?.
N/
A
...................................................................
a.
Areas
with
attainment
dates
3
years
or
less
after
designation.
As
with
marginal
areas,
those
areas
would
not
be
subject
to
a
separate
RFP
requirement.
b.
Areas
with
attainment
dates
between
3
to
6
years
after
designation.
No
separate
RFP
demonstration
required
except
RFP
would
be
met
if
a
State
demonstrates
emissions
reductions
needed
for
attainment
would
be
achieved
by
the
attainment
date.
(
Option
1)
c.
Areas
with
attainment
dates
beyond
6
years
after
designation.
The
RFP
plan
submission
would
be
due
with
the
attainment
demonstration
within
3
years
after
designation
and
would
need
to
provide
for
certain
increments
of
reductions
from
the
baseline
emission
year
out
to
the
attainment
year,
proportionate
to
the
time
between
the
base
year
and
the
attainment
year.
(
Option
1)
D.
5.
How
would
the
8­
hour
ROP
requirement
fit
with
the
1­
hour
ROP
requirement?
The
area
would
develop
new
baseline
and
new
ROP
emission
reduction
targets
for
the
8­
hour
standard
for
the
entire
area
and
could
drop
the
1­
hour
standard
target
for
any
periods
that
overlap
with
an
8­
hour
RFP
period.
E.
What's
the
RACT
requirement
for
areas
covered
under
subpart
1?.
N/
A
...................................................................
If
the
area
is
able
to
demonstrate
attainment
of
the
standard
as
expeditiously
as
practicable
with
emission
control
measures
in
the
SIP,
then
RACT
will
be
met,
and
additional
measures
would
not
be
required
as
being
reasonably
available.
(
Option
2)
F.
What
will
be
the
NSR
requirement?
..............
Status
quo
approach
for
all
areas
 
areas
subject
to
NSR
obligations
for
their
8­
hour
classifications
under
subpart
2.
(
Option
1)
Three
options
which
could
be
implemented
in
conjunction
with
each
other:
Status
quo
approach
for
all
areas
(
subpart
1
areas
get
subpart
1
NSR,
subpart
2
areas
get
subpart
2
NSR)
(
Option
1);
AND
A
more
flexible
NSR
program
(
i.
e.,
allowing
a
pool
of
offsets,
more
flexible
technology
control
requirement)
for
areas
that
submit
early
SIPs
(``
transitional''
NSR
program)
(
Option
2);

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2003
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Proposed
Rules
80
If
a
Compact
area
had
air
quality
meeting
the
8­
hour
standard
for
the
period
on
which
Continued
TABLE
5.
 
8­
HOUR
OZONE
NAAQS
IMPLEMENTATION
ELEMENTS/
OPTIONS
GROUPED
INTO
FRAMEWORKS
FOR
PROPOSAL
 
Continued
[
This
table
only
summarizes
the
options
and
approaches;
the
full
description
of
the
approach
or
option
in
the
proposed
rulemaking
should
be
consulted]

Implementation
element
Framework
1
Framework
2
AND
A
CADC
program,
which
would
allow
a
more
flexible
NSR
program
for
areas
that
adopt
CADC
provisions.
(
Option
3)

VIII.
Other
Considerations
A.
Will
EPA
Be
Contemplating
Incentives
for
Areas
That
Want
To
Take
Early
Action
for
Reducing
Ozone
Under
the
8­
Hour
Standard?
This
section
discusses
the
extent
to
which
we
are
providing
incentives
for
areas
that
wish
to
voluntarily
expedite
the
path
to
cleaner
air
by
initiating
early
planning
and
control
actions
for
reducing
ground­
level
ozone
prior
to
EPA's
designations
for
the
8­
hour
ozone
NAAQS.
State,
local
and
Tribal
air
pollution
control
agencies
have
continued
to
express
a
need
for
added
flexibility
in
implementing
the
8­
hour
ozone
NAAQS,
including
incentives
for
taking
action
sooner
than
EPA
requires
for
reducing
ground­
level
ozone.
We
are
encouraging
localities
to
make
decisions
that
will
achieve
clean
air
sooner
than
otherwise
is
mandated
by
the
CAA.
Early
planning
and
early
implementation
of
control
measures
that
improve
air
quality
will
likely
accelerate
protection
of
public
health.
We
issued
our
policy
on
early
planning
on
November
14,
2002.
We
are
not
proposing
action
on
this
approach
in
this
rulemaking
and,
therefore,
we
are
not
requesting
comment
on
this
issue.

1.
What
Are
the
Ozone
Flex
Guidelines
for
the
1­
Hour
Ozone
NAAQS?
In
June
2001
we
announced
the
``
Ozone
Flex
Guidelines''
program
(
Ozone
Flex),
which
supports
and
rewards
innovative,
voluntary,
local
strategies
to
reduce
ground­
level
ozone.
Ozone
Flex
is
a
framework
for
local
communities
to
develop
voluntary
solutions
for
areas
concerned
about
potential
future
nonattainment
of
the
1­
hour
ozone
standard.
Ozone
Flex
is
intended
to
achieve
emissions
reductions
and
avoid
future
nonattainment
problems
in
those
areas
designated
attainment
for
the
1­
hour
standard.
While
this
program
is
only
available
to
areas
to
address
the
1­
hour
ozone
standard,
it
also
recognizes
that
areas
may
secure
emissions
reductions
and
public
health
benefits
toward
attaining
the
8­
hour
ozone
standard
prior
to
EPA's
designation
of
areas.
These
voluntary
measures
may
be
creditable
to
future
planning
efforts
for
the
8­
hour
standard,
to
the
extent
allowed
by
the
CAA
and
EPA
guidance
or
rules.
Any
emissions
reductions
targeted
for
a
period
after
the
base
year
would
provide
``
credit''
for
a
State,
local,
or
Tribal
area
in
any
future
plan.
Emission
reduction
credits
toward
meeting
RFP
are
discussed
elsewhere
in
this
proposed
rulemaking.

2.
What
Is
the
``
Early
Action
Compact''
for
Implementing
the
8­
Hour
Ozone
NAAQS?
Following
EPA's
issuance
of
the
``
Ozone
Flex
Guidelines''
for
continued
attainment
of
the
1­
hour
standard,
the
Texas
Commission
on
Environmental
Quality
(
TCEQ)
encouraged
EPA
to
consider
additional
incentives
for
early
planning
towards
achieving
the
8­
hour
ozone
NAAQS.
On
March
20,
2002,
the
TCEQ
submitted
to
EPA
the
Protocol
for
Early
Action
Compacts
Designed
to
Achieve
and
Maintain
the
8­
hour
Ozone
Standard
(
Protocol).
The
Protocol
was
designed
to
achieve
emissions
reductions
and
clean
air
sooner
than
would
otherwise
be
required
under
the
CAA
for
implementing
the
8­
hour
ozone
NAAQS.
The
TCEQ
proposed
that
the
Protocol
would
be
formalized
by
``
Early
Action
Compact''
agreements
(
Compacts)
primarily
developed
by
local,
State
and
Federal
(
EPA)
officials.
The
principles
of
the
Compacts
are
the
following:
 
Early
planning,
implementation,
and
emissions
reductions
leading
to
expeditious
attainment
and
maintenance
of
the
8­
hour
ozone
standard;
 
Local
control
of
the
measures
employed,
with
broad­
based
public
input;
 
State
support
to
ensure
technical
integrity
of
the
early
action
plan;
 
Formal
incorporation
of
the
early
action
plan
into
the
SIP;
 
Designation
of
all
areas
as
attainment
or
nonattainment
in
April
2004,
but,
for
Compact
areas,
deferral
of
the
effective
date
of
the
nonattainment
designation
and/
or
designation
requirements
so
long
as
all
Compact
terms
and
milestones
continue
to
be
met;
and
 
Safeguards
to
return
areas
to
traditional
SIP
attainment
requirements
should
Compact
terms
be
unfulfilled
(
e.
g.,
if
the
area
fails
to
attain
in
2007),
with
appropriate
credit
given
for
reduction
measures
already
implemented.
Under
this
approach,
an
early,
voluntary
8­
hour
air
quality
plan
would
be
developed
through
an
Early
Action
Compact
agreement
for
each
area
that
approaches
or
monitors
exceedances
of
the
8­
hour
standard
and
that
is
designated
attainment
for
the
1­
hour
ozone
standard.
This
approach
would
also
apply
to
maintenance
areas
for
the
1­
hour
ozone
standard
to
the
extent
such
areas
continue
to
maintain
that
standard.
One­
hour
ozone
maintenance
areas
are
areas
that
were
previously
designated
nonattainment
for
the
1­
hour
ozone
standard,
but
were
redesignated
to
attainment
pursuant
to
section
107(
d)(
3)(
E)
and
subject
to
the
requirements
of
section
175A
of
the
CAA.
Under
a
Compact,
the
local
area
would
commit
to
develop
a
SIP
based
on
recent
emission
inventories
and
air
quality
modeling
demonstrating
attainment
of
the
8­
hour
standard
by
2007.
In
addition,
the
area
would
identify
additional
local
controls
beyond
Federal
and
State
requirements,
which
would
be
implemented
by
2005.
According
to
the
Protocol,
we
would
recognize
the
local
area's
commitment
to
early,
voluntary
action
by
designating
the
area
nonattainment
in
April
2004
(
at
the
time
of
national
designations
for
all
areas
of
the
country),
but
deferring
the
effective
date
of
the
nonattainment
designation
for
participating
Compact
areas
that
are
monitoring
a
violation
of
the
8­
hour
ozone
standard,
so
long
as
all
terms
and
milestones
of
the
Compact
continue
to
be
met,
including
submission
of
the
early
action
SIP
revision
no
later
than
December
31,
2004.80
We
circulated
the
Protocol
to
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designations
are
based,
we
would
designate
the
area
as
attainment
without
a
deferred
effective
date.
81
Additional
Options
Considered
for
``
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard.''
U.
S.
Environmental
Protection
Agency,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
NC,
March
2003.
numerous
organizations
for
review
and
comment.
A
copy
of
the
revised
Protocol
is
available
in
the
docket
for
this
proposed
rulemaking.

3.
What
is
EPA's
Response
to
the
Texas
``
Early
Action
Compact?''
In
a
letter
dated
June
19,
2002,
from
Gregg
Cooke,
Administrator,
Region
6,
to
Robert
Huston,
Chairman,
TCEQ,
EPA
endorsed
the
principles
outlined
in
the
Protocol.
The
Protocol
was
subsequently
revised
on
December
11,
2002,
based
on
comments
from
EPA.
Upon
the
completion
of
Compacts
by
December
31,
2002
in
areas
that
meet
the
requirements
of
the
Protocol
(
including
1­
hour
maintenance
areas),
we
intend
to
honor
the
commitments
established
in
these
agreements.
Any
control
measures
identified
by
a
Compact
area
must
be
submitted
to
EPA
for
approval
as
a
SIP
revision.
In
a
proposed
settlement
with
nine
environmental
groups,
we
agreed
to
designate
areas
for
the
8­
hour
ozone
standard
by
April
15,
2004.
This
deadline
gives
States
and
Tribes
ample
time
to
update
their
recommendations
by
April
15,
2003
for
nonattainment
area
boundaries.
EPA
lodged
the
proposed
consent
decree
on
November
13,
2002
with
the
U.
S.
District
Court
for
the
District
of
Columbia.
Also
on
November
14,
2002,
we
issued
a
guidance
memorandum
outlining
the
new
designations
schedule,
requirements
for
designating
Tribal
areas,
and
discussing
the
impact
of
the
designation
schedule
on
areas
that
are
developing
early
action
compacts.
(
Memorandum
dated
November
14,
2002,
from
Jeffrey
R.
Holmstead,
Assistant
Administrator,
to
EPA
Regional
Administrators.)
We
have
entered
into
early
action
compacts
with
a
number
of
areas
of
the
country.
As
a
result,
we
will
designate
all
areas
of
the
country
either
attainment
or
nonattainment
in
April
2004
(
including
Compact
areas).
At
that
time,
we
plan
to
propose
to
defer
the
effective
date
of
the
nonattainment
designation
for
participating
Compact
areas
that
are
monitoring
a
violation
of
the
8­
hour
ozone
standard,
provided
all
terms
of
the
agreement
continue
to
be
met,
including
timely
completion
of
all
Compact
milestones.
However,
as
the
Compacts
were
signed
prior
to
the
2004
designations
process,
the
Agency
cannot
prejudge
the
outcome
of
designations.
Consequently,
States
are
advised
that
if
EPA
determines
that
any
portion
of
a
compact
area
should
become
part
of
an
8­
hour
ozone
nonattainment
area,
that
portion
would
no
longer
be
eligible
for
participation
in
the
Early
Action
Compact,
and
the
effective
date
of
the
nonattainment
designation
for
that
portion
of
the
Compact
would
not
be
deferred.
Also,
as
noted
above,
this
proposed
rulemaking
does
not
propose
to
establish
attainment/
nonattainment
designations,
nor
does
it
address
the
principles
that
will
be
considered
in
the
designation
process,
nor
does
it
take
comment
on
the
Early
Action
Compact
program.

4.
Did
EPA
Consider
Other
Options
for
Incentives
for
Areas
That
Take
Early
Actions
for
Reducing
Ozone?
We
did
consider
another
option,
which
is
discussed
in
a
separate
document
available
in
the
docket.
81
5.
What
Is
the
Difference
Between
the
Early
Action
Compact
Program
and
the
Transitional
NSR
Program?
Appendix
D
of
this
proposed
rulemaking
contains
a
table
comparing
the
two
programs.
It
should
be
noted
that
areas
that
may
be
initially
eligible
for
the
Early
Action
Compact
but
that
become
ineligible
later
may
still
be
eligible
for
the
transitional
NSR
program.

B.
Clarification
of
How
the
Transition
from
1­
Hour
to
8­
Hour
Standard
Will
Work
for
Early
Action
Compact
Areas,
for
Conformity,
and
for
NSR
and
PSD
Appendix
E
presents
a
table
that
describes
our
interpretation
of
the
applicability
of
conformity
and
traditional
NSR
and
PSD
under
the
various
potential
transition
scenarios.
This
table
is
included
for
informational
purposes
only
and
does
not
constitute
part
of
the
proposed
rule.
It
is
intended
only
to
inform
comment
on
the
proposal
itself.
As
discussed
elsewhere
in
this
preamble,
we
are
proposing
options
for
how
areas
will
transition
from
the
1­
hour
standard
to
the
8­
hour
standard.
Under
one
of
the
options,
we
would
revoke
the
1­
hour
standard
1
year
after
the
effective
date
of
the
8­
hour
designations.
For
Early
Action
Compact
areas,
the
nonattainment
designation
for
the
8­
hour
ozone
standard
is
promulgated,
but
the
effective
date
of
that
designation
is
deferred
as
long
as
the
area
continues
to
meet
compact
milestones.
These
milestones
are
described
in
the
Holmstead
memorandum
referenced
earlier.
Shortly
after
December
2007
(
i.
e.,
by
April
2008),
we
intend
to
make
a
determination
of
whether
the
area
attained
the
8­
hour
ozone
standard.
For
all
Compact
areas,
under
the
transition
option
described
earlier
in
this
paragraph,
we
would
revoke
the
1­
hour
standard
for
these
areas
1
year
after
the
effective
date
of
the
designation
of
attainment
or
nonattainment
for
the
8­
hour
standard.
Therefore,
on
the
1­
year
effective
date
of
the
determination
we
make
in
April
2008,
which
will
include
the
designation
of
Compact
areas,
the
1­
hour
standard
would
be
revoked
(
in
approximately
May
or
June
of
2009).

C.
How
Will
EPA's
Proposal
Affect
Funding
Under
the
Congestion
Mitigation
and
Air
Quality
Improvement
(
CMAQ)
Program?
Depending
on
the
specific
characteristics
of
a
nonattainment
area,
revocation
of
the
1­
hour
ozone
standard
will
have
varying
effects
on
some
Federal
transportation
program
funds
apportioned
to
the
States
through
a
formula
established
by
the
TEA
 
21.
The
TEA
 
21
establishes
eligibility
for
the
CMAQ
program
transportation
funds
for
nonattainment
and
maintenance
areas,
designated
under
section
107(
d)
of
the
CAA
(
42
U.
S.
C.
7407(
d)),
provided
the
area
is,
or
was,
classified
in
accordance
with
CAA
sections
181,
186,
and
188.
Eligibility,
in
part,
establishes
an
area's
ability
to
use
CMAQ
funding.
Areas
designated
nonattainment
after
December
31,
1997
are
also
eligible,
but
without
regard
to
classification.
The
amount
of
CMAQ
funds
available
to
States
for
use
in
nonattainment
and
maintenance
areas
is
set
at
levels
authorized
by
TEA
 
21.
The
funds
are
apportioned
to
States
through
the
statutory
formula
contained
in
section
104(
b)
of
title
23.
The
formula
is
based
on
a
State's
weighted
population,
which
takes
into
account
the
classifications
of
ozone
and
CO
nonattainment
and
maintenance
areas,
and
the
population
in
such
areas.
The
formula
does
not
account
for
PM
nonattainment
areas.
As
we
revoke
the
1­
hour
ozone
standard
under
implementation
of
the
new
8­
hour
ozone
NAAQS,
changes
regarding
the
designation
and
classification
of
these
nonattainment
and
maintenance
areas,
will
change
the
amount
of
CMAQ
funds
apportioned
to
each
State
under
the
current
apportionment
formula,
and
thus
available
to
these
areas.
Some
States
with
1­
hour
ozone
nonattainment
and
maintenance
areas
will
lose
CMAQ
funding
while
others
may
gain
without
a
statutory
change.
The
changes
in
funding
will
depend
on
how
much
a
State's
weighted
population
changes
because
of
the
revocation.

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No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
82
U.
S.
EPA,
Cost,
Emission
Reduction,
Energy,
and
Economic
Impact
Assessment
of
the
Proposed
Rule
Establishing
the
Implementation
Framework
for
the
8­
hour,
0.08ppm
Ozone
National
Ambient
Air
Quality
Standard,
prepared
by
the
Innovative
Strategies
and
Economics
Group,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
NC,
April
24,
2003.
Furthermore,
after
revocation
any
1­
hour
ozone
nonattainment
or
maintenance
area
that
is
not
also
designated
nonattainment
under
the
8­
hour
or
the
existing
CO
or
PM
 
10
standards
will
lose
the
ability
to
spend
CMAQ
funding.
Since
1­
hour
ozone
designations
will
no
longer
be
in
force,
the
authorized
ability
to
use
CMAQ
funds
under
23
U.
S.
C.
149(
b)
will
be
limited
to
existing
CO
and
PM
 
10
nonattainment
and
maintenance
areas
and
areas
designated
after
December
31,
1997,
such
as
those
designated
under
the
8­
hour
standard.
Finally,
nonattainment
areas
designated
under
the
8­
hour
ozone
standard
would
all
be
eligible
for
CMAQ
funding,
but
the
formula
for
determining
the
amount
of
funds
apportioned
to
the
States
would
only
take
into
account
the
areas
that
are
classified
pursuant
to
CAA
sections
181,
186,
and
188.
Areas
designated
but
not
classified
under
the
8­
hour
standard
would
not
be
included
in
the
apportionment
formula,
and
States
with
such
areas
will
not
receive
any
CMAQ
funding
because
of
those
areas.
As
noted
elsewhere
in
this
proposal,
EPA
is
requesting
comment
on
various
concepts
for
classifying
nonattainment
areas
under
the
8­
hour
standard.
We
are
aware
that
apportionment
of
CMAQ
funds
is
calculated
yearly
and
varies
according
to
changing
population,
and
severity
of
air
pollution.
The
TEA
 
21
is
due
for
reauthorization
in
October,
2003,
and
adjustments
to
the
CMAQ
eligibility
criteria
and
apportionment
formula
may
be
possible.
We
understand
the
importance
of
CMAQ
funding
to
States
and
nonattainment
areas
and
are
prepared
to
work
with
DOT
and
Congress
to
minimize
the
unintended
impact
of
the
8­
hour
ozone
NAAQS,
on
those
funds.

D.
Are
There
Any
Environmental
Impact
Differences
Between
the
Two
Major
Classification
Options
Being
Proposed?
Both
of
the
major
classification
options
being
proposed
would
result
in
attainment
by
an
expeditious
attainment
date.
However,
the
EPA
analysis
of
costs
of
the
options
notes
that
they
do
not
necessarily
have
the
same
environmental
impact.
The
subpart
2­
only
option
is
more
expensive
for
some
of
the
10
areas
analyzed
in
the
cost
analysis
 
largely
because
subpart
2
ROP
requires
more
emissions
reductions,
and
it
requires
these
reductions
by
2008,
2
years
earlier
than
the
attainment
date
of
2010
that
is
assumed
for
the
analysis
areas.
This
would
result
in
an
earlier
air
quality
benefit.
We
have
not
performed
air
quality
modeling
to
determine
the
increment
of
air
quality
benefit
from
the
subpart
2­
only
option
compared
to
the
option
under
which
some
areas
are
covered
under
subpart
1.

IX.
Statutory
and
Executive
Order
Reviews
Upon
promulgation
of
the
NAAQS,
the
CAA
requires
EPA
to
designate
areas
as
attaining
or
not
attaining
the
NAAQS.
The
CAA
then
specifies
requirements
for
areas
based
on
the
designation.
This
proposed
rule
fleshes
out
the
statutory
requirements
that
non­
attainment
areas
are
obligated
to
meet.
In
some
instances,
the
statute
is
ambiguous
regarding
the
statutory
obligations
that
apply
 
thus
we
are
proposing
various
options
that
we
believe
are
consistent
with
the
ambiguous
language
of
the
statute.
One
option
attempts
to
provide
a
flexible
and
least­
cost
approach
for
States
to
apply
to
the
sources
that
States
may
choose
to
regulate.
The
other
option
follows
a
more
traditional
statutory
interpretation.
82
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866
(
58
FR
51735,
October
4,
1993),
the
Agency
must
determine
whether
the
regulatory
action
is
``
significant''
and,
therefore,
subject
to
Office
of
Management
and
Budget
(
OMB)
review
and
the
requirements
of
the
Executive
Order.
The
Order
defines
``
significant
regulatory
action''
as
one
that
is
likely
to
result
in
a
rule
that
may:
(
1)
Have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,
competition,
jobs,
the
environment,
public
health
or
safety,
or
State,
local,
or
Tribal
governments
or
communities;
(
2)
Create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
another
agency;
(
3)
Materially
alter
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
loan
programs
or
the
rights
and
obligations
of
recipients
thereof;
or
(
4)
Raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President's
priorities,
or
the
principles
set
forth
in
the
Executive
Order.''
Pursuant
to
the
terms
of
Executive
Order
12866,
it
has
been
determined
that
this
rule
is
a
``
significant
regulatory
action''
because
it
raises
novel
legal
or
policy
issues
arising
out
of
legal
mandates.
As
such,
this
action
was
submitted
to
OMB
for
review.
Changes
made
in
response
to
OMB
suggestions
or
recommendations
will
be
documented
in
the
public
record.

B.
Paperwork
Reduction
Act
This
action
does
not
impose
an
information
collection
burden
under
the
provisions
of
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.

C.
Regulatory
Flexibility
Act
The
Regulatory
Flexibility
Act
generally
requires
an
Agency
to
prepare
a
regulatory
flexibility
analysis
of
any
rule
subject
to
notice
and
comment
rulemaking
requirements
under
the
Administrative
Procedures
Act
or
any
other
statute
unless
the
Agency
certifies
the
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
Small
entities
include
small
businesses,
small
organizations,
and
small
governmental
jurisdictions.
For
purposes
of
assessing
the
impacts
of
today's
proposed
rule
on
small
entities,
small
entity
is
defined
as:
(
1)
A
small
business
that
is
a
small
industrial
entity
as
defined
in
the
U.
S.
Small
Business
Administration
(
SBA)
size
standards.
(
See
13
CFR
121.);
(
2)
a
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,
school
district
or
special
district
with
a
population
of
less
than
50,000;
and
(
3)
a
small
organization
that
is
any
not­
forprofit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.
After
considering
the
economic
impacts
of
today's
proposed
rule
on
small
entities,
I
certify
that
this
action
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
This
proposed
rule
will
not
impose
any
requirements
on
small
entities.
Rather,
this
rule
interprets
the
obligations
established
in
the
CAA
for
States
to
submit
implementation
plans
in
order
to
attain
the
8­
hour
ozone
NAAQS.

D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA),
Public
Law
104
 
4,
establishes
requirements
for
Federal
agencies
to
assess
the
effects
of
their
regulatory
actions
on
State,
local,
and
Tribal
governments
and
the
private
sector.
Under
section
202
of
the
UMRA,
EPA
generally
must
prepare
a
written
statement,
including
a
cost­
benefit
analysis,
for
proposed
and
final
rules
with
``
Federal
mandates''
that
may
result
in
expenditures
to
State,
local,

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/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
and
Tribal
governments,
in
the
aggregate,
or
to
the
private
sector,
of
$
100
million
or
more
in
any
1
year.
Before
promulgating
an
EPA
rule
for
which
a
written
statement
is
needed,
section
205
of
the
UMRA
generally
requires
EPA
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
adopt
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
that
achieves
the
objectives
of
the
rule.
The
provisions
of
section
205
do
not
apply
when
they
are
inconsistent
with
applicable
law.
Moreover,
section
205
allows
EPA
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
if
the
Administrator
publishes
with
the
final
rule
an
explanation
why
that
alternative
was
not
adopted.
Before
EPA
establishes
any
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
Tribal
governments,
it
must
have
developed
under
section
203
of
the
UMRA
a
small
government
agency
plan.
The
plan
must
provide
for
notifying
potentially
affected
small
governments,
enabling
officials
of
affected
small
governments
to
have
meaningful
and
timely
input
in
the
development
of
EPA
regulatory
proposals
with
significant
Federal
intergovernmental
mandates,
and
informing,
educating,
and
advising
small
governments
on
compliance
with
the
regulatory
requirements.
EPA
has
determined
that
this
rule
does
not
contain
a
Federal
mandate
that
may
result
in
expenditures
of
$
100
million
or
more
for
State,
local,
and
Tribal
governments,
in
the
aggregate,
or
the
private
sector
in
any
1
year.
The
estimated
administrative
burden
hour
and
costs
associated
with
implementing
the
8­
hour,
0.08
ppm
NAAQS
were
developed
upon
promulgation
of
the
standard
and
presented
in
Chapter
10
of
U.
S.
EPA
1997,
Regulatory
Impact
Analyses
for
the
Particulate
Matter
and
Ozone
National
Ambient
Air
Quality
Standards,
Innovative
Strategies
and
Economics
Group,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
NC,
July
16,
1997.
The
estimated
costs
presented
there
for
States
in
1990
dollars
totaled
$
0.9
million.
The
corresponding
estimate
in
1997
dollars
is
$
1.1
million.
Should
the
more
traditional
classification
option
be
adopted
as
the
implementation
framework,
these
costs
may
increase
modestly,
but
would
not
reach
$
100
million.
Thus,
today's
rule
is
not
subject
to
the
requirements
of
section
202
and
205
of
the
UMRA.
The
CAA
imposes
the
obligation
for
States
to
submit
SIPs
to
implement
the
8­
hour
ozone
NAAQS;
in
this
rule,
EPA
is
merely
fleshing
out
those
requirements.
However,
even
if
this
rule
did
establish
a
requirement
for
States
to
submit
SIPs,
it
is
questionable
whether
a
requirement
to
submit
a
SIP
revision
would
constitute
a
Federal
mandate
in
any
case.
The
obligation
for
a
State
to
submit
a
SIP
that
arises
out
of
section
110
and
part
D
of
the
CAA
is
not
legally
enforceable
by
a
court
of
law,
and
at
most
is
a
condition
for
continued
receipt
of
highway
funds.
Therefore,
it
is
possible
to
view
an
action
requiring
such
a
submittal
as
not
creating
any
enforceable
duty
within
the
meaning
of
section
421(
5)(
9a)(
I)
of
UMRA
(
2
U.
S.
C.
658(
a)(
I)).
Even
if
it
did,
the
duty
could
be
viewed
as
falling
within
the
exception
for
a
condition
of
Federal
assistance
under
section
421(
5)(
a)(
i)(
I)
of
UMRA
(
2
U.
S.
C.
658(
5)(
a)(
i)(
I)).
In
the
proposal,
EPA
has
determined
that
this
proposed
rule
contains
no
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
Tribal
governments.
Nonetheless,
EPA
carried
out
consultations
with
governmental
entities
affected
by
this
rule.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
``
Federalism''
(
64
FR
43255,
August
10,
1999),
requires
EPA
to
develop
an
accountable
process
to
ensure
``
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications.''
``
Policies
that
have
federalism
implications''
is
defined
in
the
Executive
Order
to
include
regulations
that
have
``
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government.''
This
proposed
rule
does
not
have
federalism
implications.
It
will
not
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.
As
described
in
section
D,
above
(
on
UMRA),
EPA
previously
determined
the
costs
to
States
to
implement
the
8­
hour
ozone
NAAQS
to
be
approximately
$
1
million.
While
this
proposed
rule
considers
options
not
addressed
at
the
time
the
NAAQS
were
promulgated,
the
costs
for
implementation
under
these
options
would
rise
only
marginally.
This
rule
fleshes
out
the
statutory
obligations
of
States
in
implementing
the
8­
hour
ozone
NAAQS.
Finally,
the
CAA
establishes
the
scheme
whereby
States
take
the
lead
in
developing
plans
to
meet
the
NAAQS.
This
proposed
rule
would
not
modify
the
relationship
of
the
States
and
EPA
for
purposes
of
developing
programs
to
implement
the
NAAQS.
Thus,
Executive
Order
13132
does
not
apply
to
this
proposed
rule.
Although
section
6
of
Executive
Order
13132
does
not
apply
to
this
rule,
EPA
actively
engaged
the
States
in
the
development
of
this
proposed
rule.
EPA
held
regular
calls
with
representatives
of
State
and
local
air
pollution
control
agencies.
EPA
also
held
three
public
hearings
at
which
it
described
the
approaches
it
was
considering
and
provided
an
opportunity
for
States
and
various
other
governmental
officials
to
comment
on
the
options
being
considered.
In
the
spirit
of
Executive
Order
13132,
and
consistent
with
EPA
policy
to
promote
communications
between
EPA
and
State
and
local
governments,
EPA
specifically
solicits
comment
on
this
proposed
rule
from
State
and
local
officials.

F.
Executive
Order
13175:
Consultation
and
Coordination
With
Indian
Tribal
Governments
Executive
Order
13175,
entitled
``
Consultation
and
Coordination
with
Indian
Tribal
Governments''
(
65
FR
67249,
November
9,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
``
meaningful
and
timely
input
by
tribal
officials
in
the
development
of
regulatory
policies
that
have
tribal
implications.''
This
proposed
rule
does
not
have
``
Tribal
implications''
as
specified
in
Executive
Order
13175.
This
proposed
rule
concerns
the
implementation
of
the
8­
hour
ozone
standard
in
areas
designated
nonattainment
for
that
standard.
The
CAA
provides
for
States
and
Tribes
to
develop
plans
to
regulate
emissions
of
air
pollutants
within
their
jurisdictions.
The
proposed
regulations
flesh
out
the
statutory
obligations
of
States
and
Tribes
that
develop
plans
to
implement
the
8­
hour
ozone
NAAQS.
The
TAR
gives
Tribes
the
opportunity
to
develop
and
implement
CAA
programs
such
as
the
8­
hour
ozone
NAAQS,
but
it
leaves
to
the
discretion
of
the
Tribe
whether
to
develop
these
programs
and
which
programs,
or
appropriate
elements
of
a
program,
they
will
adopt.
This
proposed
rule
does
not
have
Tribal
implications
as
defined
by
Executive
Order
13175.
It
does
not
have
a
substantial
direct
effect
on
one
or
more
Indian
Tribes,
since
no
Tribe
has
implemented
a
CAA
program
to
attain
the
8­
hour
ozone
NAAQS
at
this
time.
Furthermore,
this
proposed
rule
does
not
affect
the
relationship
or
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Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
distribution
of
power
and
responsibilities
between
the
Federal
government
and
Indian
Tribes.
The
CAA
and
the
TAR
establish
the
relationship
of
the
Federal
government
and
Tribes
in
developing
plans
to
attain
the
NAAQS,
and
this
proposed
rule
does
nothing
to
modify
that
relationship.
Because
this
proposed
rule
does
not
have
Tribal
implications,
Executive
Order
13175
does
not
apply.
Assuming
a
Tribe
is
implementing
such
a
plan
at
this
time,
while
the
proposed
rule
would
have
Tribal
implications
upon
that
Tribe,
it
would
not
impose
substantial
direct
costs
upon
it,
nor
would
it
preempt
Tribal
law.
As
provided
above,
EPA
has
determined
that
the
total
costs
for
implementing
the
8­
hour
ozone
by
State,
local,
and
Tribal
governments
is
approximately
$
1
million
in
all
areas
designated
nonattainment
for
the
standard.
The
percentage
of
Tribal
land
that
will
be
designated
nonattainment
for
the
8­
hour
ozone
standard
is
very
small.
For
Tribes
that
choose
to
regulate
sources
in
Indian
country,
the
costs
would
be
attributed
to
inspecting
regulated
facilities
and
enforcing
adopted
regulations.
Although
Executive
Order
13175
does
not
apply
to
this
proposed
rule,
EPA
consulted
with
Tribal
officials
in
developing
this
proposed
rule.
EPA
has
encouraged
Tribal
input
at
an
early
stage.
EPA
supports
a
national
``
Tribal
Designations
and
Implementation
Work
Group''
which
provides
an
open
forum
for
all
Tribes
to
voice
concerns
to
EPA
about
the
designation
and
implementation
process
for
the
8­
hour
ozone
standard.
These
discussions
have
given
EPA
valuable
information
about
Tribal
concerns
regarding
implementation
of
the
8­
hour
ozone
NAAQS.
The
work
group
sends
issue
summaries
and
suggestions
for
addressing
them
to
the
newly
formed
National
Tribal
Air
Association,
who
in
turn
will
send
them
to
Tribal
leaders.
EPA
has
encouraged
Tribes
to
participate
in
the
national
public
meetings
held
to
take
comment
on
early
approaches
to
the
proposed
rule.
Several
Tribes
made
public
comments
at
the
April
2002
public
meeting
in
Tempe,
Arizona.
Furthermore,
EPA
will
send
individualized
letters
to
all
federally
recognized
Tribes
about
this
proposal
and
will
give
Tribal
leaders
the
opportunity
for
consultation.
EPA
specifically
solicits
additional
comment
on
this
proposed
rule
from
Tribal
officials.
G.
Executive
Order
13045:
Protection
of
Children
From
Environmental
Health
and
Safety
Risks
Executive
Order
13045:
``
Protection
of
Children
From
Environmental
Health
and
Safety
Risks''
(
62
FR
19885,
April
23,
1997)
applies
to
any
rule
that
(
1)
is
determined
to
be
``
economically
significant''
as
defined
under
Executive
Order
12866,
and
(
2)
concerns
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
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.
The
proposed
rule
is
not
subject
to
Executive
Order
13045
because
the
Agency
does
not
have
reason
to
believe
the
environmental
health
risks
or
safety
risks
addressed
by
this
action
present
a
disproportionate
risk
to
children.
Nonetheless,
we
have
evaluated
the
environmental
health
or
safety
effects
of
the
8­
hour
ozone
NAAQS
on
children.
The
results
of
this
evaluation
are
contained
in
40
CFR
part
50,
National
Ambient
Air
Quality
Standards
for
Ozone,
Final
Rule
(
62
FR
38855
 
38896;
specifically,
62
FR
38854,
62
FR
38860
and
62
FR
38865).

H.
Executive
Order
13211:
Actions
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
This
proposed
rule
is
not
a
``
significant
energy
action''
as
defined
in
Executive
Order
13211,
``
Actions
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use,''
(
66
FR
28355,
May
22,
2001)
because
it
is
not
likely
to
have
a
significant
adverse
effect
on
the
supply,
distribution,
or
use
of
energy.
Information
on
the
methodology
and
data
regarding
the
assessment
of
potential
energy
impacts
is
found
in
Chapter
6
of
U.
S.
EPA
2002,
Cost,
Emission
Reduction,
Energy,
and
Economic
Impact
Assessment
of
the
Proposed
Rule
Establishing
the
Implementation
Framework
for
the
8­
Hour,
0.08
ppm
Ozone
National
Ambient
Air
Quality
Standard,
prepared
by
the
Innovative
Strategies
and
Economics
Group,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
N.
C.
April
24,
2003.

I.
National
Technology
Transfer
Advancement
Act
Section
12(
d)
of
the
National
Technology
Transfer
Advancement
Act
of
1995
(
NTTAA),
Public
Law
No.
104
 
113,
section
12(
d)
(
15
U.
S.
C.
272
note)
directs
EPA
to
use
voluntary
consensus
standards
(
VCS)
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Voluntary
consensus
standards
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,
and
business
practices)
that
are
developed
or
adopted
by
VCS
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
VCS.
This
proposed
rulemaking
does
not
involve
technical
standards.
Therefore,
EPA
is
not
considering
the
use
of
any
VCS.
EPA
will
encourage
the
States
and
Tribes
to
consider
the
use
of
such
standards,
where
appropriate,
in
the
development
of
the
implementation
plans.

J.
Executive
Order
12898:
Federal
Actions
To
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
Populations
Executive
Order
12898
requires
that
each
Federal
agency
make
achieving
environmental
justice
part
of
its
mission
by
identifying
and
addressing,
as
appropriate,
disproportionate
high
and
adverse
human
health
or
environmental
effects
of
its
programs,
policies,
and
activities
on
minorities
and
low­
income
populations.
EPA
believes
that
this
proposed
rule
should
not
raise
any
environmental
justice
issues.
The
health
and
environmental
risks
associated
with
ozone
were
considered
in
the
establishment
of
the
8­
hour,
0.08
ppm
ozone
NAAQS.
The
level
is
designed
to
be
protective
with
an
adequate
margin
of
safety.
The
proposed
rule
provides
a
framework
for
improving
environmental
quality
and
reducing
health
risks
for
areas
that
may
be
designated
nonattainment.

List
of
Subjects
in
40
CFR
Part
51
Environmental
protection,
Air
pollution
control,
Intergovernmental
relations,
Ozone,
Particulate
matter,
Transportation,
Volatile
organic
compounds.

Authority:
42
U.
S.
C.
7408;
42
U.
S.
C.
7410;
42
U.
S.
C.
7501
 
7511f;
42
U.
S.
C.
7601(
a)(
1).

Dated:
May
14,
2003.
Christine
Todd
Whitman,
Administrator.

X.
Appendices
Note:
The
following
appendices
will
not
appear
in
the
Code
of
Federal
Regulations.

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105
/
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2,
2003
/
Proposed
Rules
Appendix
A
Comparison
of
Subpart
1
&
2
Requirements
This
is
only
an
outline
of
the
general
requirements
of
subparts
1
and
2
and
should
not
be
relied
on
for
regulatory
purposes.

Element
Subpart
1
Subpart
2
Classification
Requirement
Attainment
Dates:
For
all
areas,
attainment
should
occur
as
expeditiously
as
practicable,
but
no
later
than
specified
timeframe.
Up
to
5
years
after
nonattainment
designation;
may
extend
up
to
10
years
based
on
specified
considerations.
Marginal
........................................
3
years
from
CAA
Amendments
enactment.

Moderate
......................................
6
years
from
CAA
Amendments
enactment.
Serious
.........................................
9
years
from
CAA
Amendments
enactment.
Severe­
15
.....................................
15
years
from
CAA
Amendments
enactment.
Severe­
17
.....................................
17
years
from
CAA
Amendments
enactment.
Extreme
........................................
20
years
from
CAA
Amendments
enactment.
RFP
.................................................
``
Annual
incremental
emissions
reductions''.
Marginal
........................................
None.

Moderate
......................................
15%
VOC
reduction
from
baseline
within
6
years
of
enactment
Serious
.........................................
Moderate
req't
plus
9%
VOC/
NOX
reductions
for
years
7
 
9
after
CAA
Amendments
enactment.
Severe­
15
.....................................
Serious
req't
plus
9%
VOC/
NOX
for
years
9
 
15
after
CAA
Amendments
enactment.
Severe­
17
.....................................
Serious
req't
plus
9%
VOC/
NOX
for
years
9
 
17
after
CAA
Amendments
enactment.
Extreme
........................................
Severe
req't
plus
9%
VOC/
NOX
for
years
9
 
20
after
CAAA
enactment
Milestone
Compliance
Determination
Not
required
as
such;
contingency
measures
supposed
to
be
implemented
upon
failure
to
meet
RFP.
Marginal/
moderate
.......................
No
further
requirement.

Serious
&
above
...........................
Requires
milestone
compliance
demonstration
to
be
made
following
milestone;
failing
area
must
elect
one
of
the
following:
1.
bump­
up.
2.
implement
contingency
measures
3.
economic
incentive.
Attainment
demonstration
submission
EPA
sets
date
which
can
be
no
later
than
3
years
after
designation
Marginal
........................................
None.

Moderate
......................................
Due
3
years
after
CAA
Amendments
enactment.
Serious
.........................................
Due
4
years
from
CAA
Amendments
enactment.
Severe
..........................................
Due
4
years
from
CAA
Amendments
enactment.
Extreme
........................................
Due
4
years
from
CAA
Amendments
enactment.
NSR
and
RACT
major
source
applicability
100
TPY
.......................................
Marginal
........................................
100
TPY
Moderate
......................................
100
TPY
Serious
.........................................
50
TPY
Severe
..........................................
25
TPY
Extreme
........................................
10
TPY
NSR
offsets
.....................................
>
1
to
1
..........................................
Marginal
........................................
1.1
to
1
Moderate
......................................
1.15
to
1
Serious
.........................................
1.2
to
1
Severe
..........................................
1.3
to
1
Extreme
........................................
1.5
to
1
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2,
2003
/
Proposed
Rules
Element
Subpart
1
Subpart
2
Classification
Requirement
NSR
permits
....................................
Permits
required
...........................
All
.................................................
Construction
permits
for
new
or
modified
major
stationary
sources
pre­
1990
permit
program
corrections.
Bump­
up
to
higher
classification
.....
NA
................................................
All
except
severe
&
extreme
........
Required
to
bump­
up
to
higher
classification
if
area
doesn't
meet
attainment
date.
NOX
control
for
RACT
.....................
No
specificity
................................
Moderate
&
above;
all
areas
in
OTC.
Requirements
under
this
subpart
for
major
stationary
VOC
sources
(
NSR
&
RACT)
also
apply
to
all
major
NOX
sources,
unless
EPA
approves
NOX
waiver.
NOX
control
for
NSR
.......................
No
specificity
................................
Marginal
&
above.
Emission
inventory
..........................
Required
in
nonattainment
area;
no
express
requirement
for
updates
or
emission
statements.
All
.................................................
Comprehensive
emissions
inventory
within
2
years
of
enactment
update
every
3
years
(
until
area
attains).
Provision
for
submission
to
State
of
annual
emissions
statements
from
VOC
and
NOX
stationary
sources.
RACM/
RACT
...................................
General
requirement
for
RACM
including
RACT.
Marginal
&
above
.........................
Pre­
1990
RACT
fix­
up.

Moderate
&
above
........................
RACT
for
all
CTG
sources
and
all
other
major
sources.
I/
M
...................................................
Nothing
specified
..........................
Marginal
........................................
Pre­
1990
corrections
to
previously
required
I&
M
programs
immediately
upon
CAA
Amendments
enactment.
Moderate
......................................
Basic
I&
M.
Serious
&
above
...........................
Enhanced
I&
M
within
2
years
of
CAA
Amendments
enactment.
Conformity
(
transportation
and
general
Required
.......................................
All
.................................................
No
additional
specificity.

Stage
II
vapor
recovery
(
VOC)
.......
Not
specified
................................
Moderate
&
above
........................
Stage
II
for
gas
stations
within
2
years.
Consequences
of
failure
to
attain
...
EPA
to
specify
additional
requirements
up
to
10
more
years
to
attain.
Marginal,
moderate
and
serious
..
Bump­
up
for
failure
to
attain.

Severe
and
extreme
.....................
Fee
system;
continued
ROP;
possible
stricter
NSR
major
source
cut­
offs.
Maintenance
....................................
Requirement
for
maintenance
plans
for
areas
redesignated
from
nonattainment
to
attainment
All
.................................................
No
additional
specificity.

Contingency
measures
...................
Required
for
failure
to
make
RFP
or
attainment.
All
.................................................
Required
for
failure
to
meet
ROP
milestones
or
attain.
Enhanced
(
ambient)
monitoring
(
PAMS).
Not
specified
................................
Marginal
and
moderate
................
Not
specified.

Serious
&
above
...........................
Ambient
ozone
precursor
monitoring
(
VOC
and
NOX).
VMT
demonstration
and
transportation
control
measures
(
TCMs)
if
needed.
Not
specified
................................
Marginal
and
moderate
................
Not
specified.

Serious
&
above
...........................
Demonstration
of
whether
current
aggregate
vehicle
mileage,
emissions,
congestion
levels
are
consistent
with
attainment
demo.
Clean
fuels
program
........................
Not
specified
................................
Marginal
and
moderate
................
Not
specified.
Serious
&
above
...........................
Certain
percentage
of
fleet
vehicles
for
1998
and
higher
to
be
clean
vehicles
and
use
alternative
fuels
(
if
needed).

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/
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2,
2003
/
Proposed
Rules
Element
Subpart
1
Subpart
2
Classification
Requirement
Reformulated
Gasoline
required
under
section
211(
k)(
10)(
D),
which
requires
the
use
of
reformulated
gasoline
in
9
covered
areas,
and
areas
that
are
bumped­
up
to
Severe
under
section
181(
d)).
Not
specified
................................
Marginal,
moderate
&
serious
......
Not
specified.

Severe
&
above
...........................
Prohibition
of
sale
of
gas
that
has
not
been
reformulated
to
be
less
polluting.
TCMs
to
offset
growth
in
VMT
emissions.
Not
specified
................................
Marginal,
moderate
&
serious
......
Not
specified.

Severe
&
above
...........................
Enforceable
transportation
control
strategies
and
TCMs
to
offset
any
emissions
growth
due
to
VMT
growth.
Clean
Fuels
for
Boilers
...................
Not
specified
................................
Marginal,
moderate,
serious
&
severe
Not
specified.

Extreme
areas
..............................
Use
of
clean
fuels
or
advanced
technology
for
certain
boilers
that
emit
more
than
25
TPY
of
NOX.
TCMs
during
heavy
traffic
hours
.....
Not
specified
................................
Marginal,
moderate,
serious
&
severe
Not
specified.

Extreme
areas
..............................
Option
to
have
TCMs
during
periods
of
heavy
traffic
that
reduce
use
of
high
polluting
or
heavyduty
vehicles.
New
Technologies
...........................
Not
specified
................................
Marginal,
moderate,
serious
&
severe
Not
specified.

Extreme
areas
..............................
New
or
future
technologies
for
emissions
reductions.

APPENDIX
B.
 
`
`
APPLICABLE
REQUIREMENTS''
UNDER
SUBPART
2
Element
Classification
Requirement
RFP
....................................................................
Moderate
..........................................................
15%
VOC
reduction
from
baseline
within
6
years
of
enactment.
Serious
.............................................................
Moderate
req't
plus
9%
VOC/
NOX
reductions
for
years
7
 
9
after
CAA
Amendments
enactment
Severe­
15
.........................................................
Serious
req't
plus
9%
VOC/
NOX
for
years
9
 
15
after
CAA
Amendments
enactment.
Severe­
17
.........................................................
Serious
req't
plus
9%
VOC/
NOX
for
years
9
 
17
after
CAA
Amendments
enactment.
Extreme
............................................................
Severe
req't
plus
9%
VOC/
NOX
for
years
9
 
20
after
CAA
Amendments
enactment.
Milestone
Compliance
Determination
.................
Serious
&
above
..............................................
Requires
milestone
compliance
demonstration
to
be
made
following
milestone;
failing
area
must
elect
one
of
the
following:
1.
bump­
up.
2.
implement
contingency
measures.
3.
economic
incentive.
NSR
and
RACT
major
source
applicability
........
Marginal
...........................................................
100
TPY
Moderate
..........................................................
100
TPY
Serious
.............................................................
50
TPY
Severe
..............................................................
25
TPY
Extreme
............................................................
10
TPY
NSR
offsets
........................................................
Marginal
...........................................................
1.1
to
1
Moderate
..........................................................
1.15
to
1
Serious
.............................................................
1.2
to
1
Severe
..............................................................
1.3
to
1
Extreme
............................................................
1.5
to
1
NSR
permits
.......................................................
All
.....................................................................
Construction
permits
for
new
or
modified
major
stationary
sources
pre­
1990
permit
program
corrections.
NOX
control
for
RACT
........................................
Moderate
&
above;
all
areas
in
OTC
...............
Requirements
under
this
subpart
for
major
stationary
VOC
sources
(
NSR
&
RACT)
also
apply
to
all
major
NOX
sources,
unless
EPA
approves
NOX
waiver.

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105
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Monday,
June
2,
2003
/
Proposed
Rules
APPENDIX
B.
 
`
`
APPLICABLE
REQUIREMENTS''
UNDER
SUBPART
2
 
Continued
Element
Classification
Requirement
NOX
control
for
NSR
..........................................
Marginal
&
above
.............................................
RACM/
RACT
......................................................
Marginal
&
above
.............................................
Pre­
1990
RACT
fix­
up.
Moderate
&
above
...........................................
RACT
for
all
CTG
sources
and
all
other
major
sources.
I/
M
.......................................................................
Marginal
...........................................................
Pre­
1990
corrections
to
previously
required
I&
M
programs
immediately
upon
CAA
Amendments
enactment.
Moderate
..........................................................
Basic
I&
M.
Serious
&
above
..............................................
Enhanced
I&
M
within
2
years
of
CAA
Amendments
enactment.
Stage
II
vapor
recovery
(
VOC)
...........................
Moderate
&
above
...........................................
Stage
II
for
gas
stations
within
2
years.
Maintenance
.......................................................
All
.....................................................................
No
additional
specificity.
Enhanced
(
ambient)
monitoring
(
PAMS)
...........
Serious
&
above
..............................................
Ambient
ozone
precursor
monitoring
(
VOC
and
NOX).
VMT
demonstration
and
transportation
control
measures
(
TCMs)
if
needed.
Serious
&
above
..............................................
Demonstration
of
whether
current
aggregate
vehicle
mileage,
emissions,
congestion
levels
are
consistent
with
attainment
demo.
Clean
fuels
program
...........................................
Serious
&
above
..............................................
Certain
percentage
of
fleet
vehicles
for
1998
and
higher
to
be
clean
vehicles
and
use
alternative
fuels
(
if
needed).
Reformulated
Gasoline*
.....................................
Severe
&
above
...............................................
Prohibition
of
sale
of
gas
that
has
not
been
reformulated
to
be
less
polluting.
TCMs
to
offset
growth
in
VMT
emissions
..........
Marginal,
moderate
&
serious
..........................
Not
specified.
Severe
&
above
...............................................
Enforceable
transportation
control
strategies
and
TCMs
to
offset
any
emissions
growth
due
to
VMT
growth
Clean
Fuels
for
Boilers
.......................................
Extreme
areas
..................................................
Use
of
clean
fuels
or
advanced
technology
for
certain
boilers
that
emit
more
than
25
TPY
of
NOX.
TCMs
during
heavy
traffic
hours
........................
Extreme
areas
..................................................
Option
to
have
TCMs
during
periods
of
heavy
traffic
that
reduce
use
of
high
polluting
or
heavy­
duty
vehicles.
New
Technologies
..............................................
Extreme
areas
..................................................
New
or
future
technologies
for
emission
reductions

*
Required
under
section
211(
k)(
10)(
D),
which
requires
the
use
of
reformulated
gasoline
in
9
covered
areas,
and
areas
that
are
bumped­
up
to
Severe
under
section
181(
d).

APPENDIX
C.
 
COMPARISON
OF
TRANSITIONAL
NSR
AND
EARLY
ACTION
COMPACT
PROGRAMS
Program
elements
Transitional
new
source
review
(
NSR)
8­
hour
Early
action
compact
Eligibility
*
.............................
 
Meet
1­
hr
standard
......................................................
 
Must
be
8­
hr
nonattainment
........................................
 
Must
be
covered
under
Subpart
1
**
...........................
 
Must
have
monitoring
data
meeting
1­
hr
standard.
 
Must
be
designated
attainment
for
1­
hr
standard.

Initiation
Date
.......................
Submit
attainment
demonstration
by
designations
date
(
4/
15/
04).
Signed
compact
by
12/
31/
02.

Other
Dates
..........................
 
All
measures
must
be
implemented
by
12/
31/
05
........
 
Projected
attainment
of
8­
hr
standard
by
April
2007
..
 
Submit
progress
reports
every
6
months
beginning
6/
03.
 
Describe
planned
measures
by
6/
16/
03.
 
Submit
local
plan
to
State
by
3/
31/
04.
 
Submit
SIP
to
State
by
12/
31/
04.
 
Implement
all
measures
by
12/
31/
05.
 
Submit
progress
report
to
certify
continued
implementation
&
air
quality
improvements.
 
Area
must
attain
8­
hr
standard
by
12/
31/
07.
Benefits
................................
 
BACT
instead
of
LAER
(
cite
NSR
workshop
manual)
 
No
required
emission
offsets
.......................................
 
Deferred
effective
date
of
nonattainment
designation.
 
Implies
no
NSR
or
conformity.
 
Implementation
of
measures
earlier
than
required
by
CAA
(
early
reductions
in
emissions).
Consequences
.....................
If
2007
attainment
date
is
missed,
State
must
submit
by
April
2007
a
Part
D
NSR
plan,
which
meets
requirements
under
sec.
51.165
(
i.
e.,
traditional
nonattainment
NSR).
 
Nonattainment
designation
becomes
effective
soon
after
failure
to
meet
milestone.
 
Nonattainment
requirements
must
be
met
(
NSR,
conformity
RACT,
etc)
if
missed
milestone.

*
Areas
not
eligible
for
Early
Action
Compact
may
still
be
eligible
for
transitional
NSR.
**
Areas
in
the
Ozone
Transport
Region
are
not
eligible
for
transitional
NSR
because
they
are
not
covered
under
Subpart
1
for
purposes
of
NSR
applicability.

APPENDIX
D.
 
GLOSSARY
OF
TERMS
AND
ACRONYMS
ACT
..................
Alternative
control
techniques
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/
Vol.
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No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
APPENDIX
D.
 
GLOSSARY
OF
TERMS
AND
ACRONYMS
 
Continued
BACT
................
Best
available
control
technology
bump­
up
...........
Reclassify
to
higher
classification
CAA
..................
Clean
Air
Act
CAAA
................
1990
Clean
Air
Act
Amendments
CADC
...............
Clean
Air
Development
Community
CASAC
.............
Clean
Air
Scientific
Advisory
Committee
CERR
...............
Consolidated
Emissions
Reporting
Rule
CFR
..................
Code
of
Federal
Regulations
CO
....................
Carbon
monoxide
Compacts
.........
Early
Action
Compact
Agreements
CSA
..................
Clear
Skies
Act
CTGs
................
Control
techniques
guidelines
DOT
..................
Department
of
Transportation
EPA
..................
Environmental
Protection
Agency
FACA
................
Federal
Advisory
Committee
Act
FIPs
..................
Federal
implementation
plans
FMVCP
.............
Federal
Motor
Vehicle
Control
Program
GAM
.................
Generalized
additive
models
HAPs
................
Hazardous
air
pollutants
HEI
....................
Health
Effects
Institute
LAER
................
Lowest
achievable
emission
rate
MACT
...............
Maximum
achievable
control
technology
MCR
.................
Mid­
course
review
MPO
.................
Metropolitan
Planning
Organization
NAAQS
.............
National
Ambient
Air
Quality
Standards
NAMS
...............
National
Air
Monitoring
Stations
NCore
...............
National
Core
Monitoring
Sites
NMMAPS
..........
National
Morbidity,
Mortality,
and
Air
Pollution
Study
NOX
..................
Nitrogen
oxides
NOy
...................
Reactive
oxides
of
nitrogen
NO2
...................
Nitrogen
dioxide
NSCR
...............
Non­
selective
catalytic
reduction
NSR
..................
New
source
review
NTTAA
..............
National
Technology
Transfer
Advancement
Act
of
1995
OH
....................
Hydroxyl
OMB
.................
Office
of
Management
and
Budget
OTAG
...............
Ozone
Transport
Assessment
Group
OTC
..................
Ozone
Transport
Commission
OTR
..................
Ozone
Transport
Region
Ozone
Flex
.......
Ozone
Flex
Guidelines
Program
PAMS
...............
Photochemical
Assessment
Monitoring
Stations
PM
....................
Particulate
matter
PM2.5
.................
Fine
particle
ppm
...................
Parts
per
million
Protocol
............
Protocol
for
Early
Action
Compacts
designed
to
achieve
and
maintain
the
8­
hour
ozone
standard
PSD
..................
Prevention
of
significant
deterioration
RACM
...............
Reasonably
available
control
measures
RACT
................
Reasonably
available
control
technology
RFP
..................
Reasonable
further
progress
ROP
..................
Rate
of
progress
RPOs
................
Regional
Planning
Organizations
SBA
..................
Small
Business
Administration
SIPs
..................
State
implementation
plans
SLAMS
.............
State
and
Local
Air
Monitoring
Stations
TAR
..................
Tribal
Authority
Rule
TCEQ
................
Texas
Commission
on
Environmental
Quality
TCMs
................
Transportation
control
measures
TEA
 
21
.............
Transportation
Equity
Act
for
the
Twenty­
first
Century
TIP
....................
Tribal
implementation
plan
TSP
...................
Total
suspended
particulates
UMRA
...............
Unfunded
Mandates
Reform
Act
of
1995
VCS
..................
Voluntary
consensus
standards
VMT
..................
Vehicle
miles
traveled
VOC
..................
Volatile
organic
compound
VT
.....................
Vehicle
trips
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/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
APPENDIX
E.
 
APPLICATION
OF
CONFORMITY,
NEW
SOURCE
REVIEW
AND
PREVENTION
OF
SIGNIFICANT
DETERIORATION
UNDER
VARIOUS
TRANSITION
CASES
If
an
area's
1­
hr
situation
is:
And
its
8­
hr
situation
is:
How
would
conformity
apply?
How
would
traditional
1
NSR/
PSD
apply?

Designated
Attainment
(
never
been
nonattainment
Designated
Attainment
Under
1
hr
std:
Conformity
does
not
apply
....
Under
1
hr
std:
PSD
continues
to
apply
until
the
1­
hr
standard
is
revoked.

Under
8
hr
std:
Conformity
does
not
apply
....
Under
8
hr
std:
PSD
applies
(
Note:
PSD
applies
as
long
as
area
is
attainment
for
the
8­
hr
std.)
Designated
Nonattainment
Under
1
hr
std:
Conformity
does
not
apply
....
Under
1
hr
std:
PSD
applies
until
the
1­
hr
standard
is
revoked
(
but
nonattainment
NSR
requirements
for
8­
hr
std.
would
tend
to
override).
Under
8
hr
std:
Conformity
applies
1
year
after
the
effective
date
of
designation
(
2005).
Under
8­
hr
std:
(
1)
NSR
under
40
CFR
appendix
S
applies
before
SIP
(
containing
§
51.165(
a)
NSR
program)
is
approved
by
EPA.
(
2)
Nonattainment
NSR
under
§
51.165
applies
after
SIP
approval
Early
Action
Compact
(
EAC).
Under
1
hr
std:
Conformity
does
not
apply
....
Under
8
hr
std:
Assuming
all
milestones
are
met,
conformity
would
not
apply
through
2007.
If
the
area
is
violating
in
2007,
its
nonattainment
designation
would
become
effective
4/
15/
2008,
and
conformity
would
apply
1
year
later
(
4/
15/
2009).
If
area
not
violating
in
2007,
the
area
would
be
designated
attainment,
and
no
conformity
would
apply.
Under
1
hr
std:
PSD
continues
to
apply
to
EAC
areas
until
the
1­
hr
standard
is
revoked.
Under
8
hr
std:
Assuming
all
milestones
are
met,
PSD
would
apply
through
2007.2
If
the
area
is
violating
in
2007,
it
would
become
subject
to
nonattainment
NSR.
If
area
is
not
violating
in
2007,
the
area
would
be
designated
attainment,
and
PSD
continues
to
apply
Designated
Nonattainment
Designated
Attainment
Under
1
hr
std:
Conformity
applies
until
1
year
after
the
effective
date
of
the
area's
designation
under
the
8­
hr
standard
(
2005).
Under
1
hr
std:
Nonattainment
NSR
applies
until
it
is
no
longer
an
``
applicable
requirement
(
see
proposal
on
anti­
backsliding).
Under
8
hr
std:
Conformity
does
not
apply
....
Under
8
hr
std:
PSD
applies.
3
Designated
Nonattainment
Under
1
hr
std:
Conformity
applies
until
1
year
after
the
effective
date
of
the
area's
designation
under
the
8­
hr
standard
(
2005).
Under
8
hr
std:
Conformity
would
apply
1
year
after
the
effective
date
of
the
area's
designation
(
2005).
Under
1
hr
std:
Nonattainment
NSR
continues
to
apply
until
it
is
no
longer
an
``
applicable
requirement''
(
see
proposal
on
anti­
backsliding).
Under
8
hr
std:
(
1)
Nonattainment
NSR
under
appendix
S
applies
until
the
nonattainment
NSR
SIP
(
containing
§
51.165(
a)
NSR
program
is
approved
by
EPA;
(
2)
Nonattainment
NSR
applies
under
§
51.165
after
SIP
approval.
(
EAC:
Not
eligible)
Designated
attainment
with
Maintenance
Plan.
Designated
Attainment
Under
1
hr
std:
Conformity
applies
until
1
year
after
the
effective
date
of
the
area's
designation
under
the
8­
hr
standard
(
2005).
Under
8
hr
std:
Conformity
does
not
apply
....
Under
1
hr
std:
PSD
applies
until
1­
hr
std.
is
revoked.
Under
8
hr
std:
PSD
applies.

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Federal
Register
/
Vol.
68,
No.
105
/
Monday,
June
2,
2003
/
Proposed
Rules
APPENDIX
E.
 
APPLICATION
OF
CONFORMITY,
NEW
SOURCE
REVIEW
AND
PREVENTION
OF
SIGNIFICANT
DETERIORATION
UNDER
VARIOUS
TRANSITION
CASES
 
Continued
If
an
area's
1­
hr
situation
is:
And
its
8­
hr
situation
is:
How
would
conformity
apply?
How
would
traditional
1
NSR/
PSD
apply?

Designated
Nonattainment
Under
1
hr
std:
Conformity
applies
until
1
year
after
the
effective
date
of
the
area's
designation
under
the
8­
hr
standard
(
2005).
Under
8
hr
std:
Conformity
would
apply
1
year
after
the
effective
date
of
the
area's
designation
under
the
8­
hr
standard
(
2005).
Under
1
hr
std:
PSD
applies
until
the
1­
hr
standard
is
revoked.
Under
8
hr
std:
(
1)
NSR
under
40
CFR
appendix
S
applies
before
SIP
(
containing
§
51.165(
a)
NSR
program)
is
approved
by
EPA;
(
2)
Nonattainment
NSR
under
§
51.165
applies
after
SIP
approval.
Early
Action
Compact
Under
1
hr
std:
1­
hour
conformity
applies
until
1
year
after
the
effective
date
of
the
area's
designation
under
the
8­
hr
standard
(
4/
15/
2009,
or
earlier
if
the
area
misses
an
EAC
milestone).
Under
8
hr
std:
Assuming
all
milestones
are
met,
conformity
would
not
apply
through
2007.
If
the
area
is
violating
in
2007,
its
nonattainment
designation
would
become
effective
4/
15/
2008
and
conformity
would
apply
1
year
later
(
4/
15/
2009).
If
area
not
violating
in
2007,
the
area
would
be
designated
attainment,
and
no
conformity
would
apply.
Under
1
hr
std:
PSD
continues
to
apply
until
the
1­
hr
standard
is
revoked.
Under
8
hr
std:
Assuming
all
milestones
are
met,
PSD
would
apply
through
2007.2
If
the
area
is
violating
in
2007,
it
would
become
subject
to
nonattainment
NSR.
If
area
is
not
violating
in
2007,
the
area
would
be
designated
attainment,
and
PSD
continues
to
apply.

1
Traditional
NSR
is
nonattainment
NSR
under
40
CFR
part
51,
either
§
51.165
or
appendix
S.
2
PSD
applies
even
if
the
attainment
designation
under
the
8­
hr
standard
is
not
yet
effective.
3
Generally,
nonattainment
NSR
requirements
would
supersede
most
PSD
requirements.
However,
note
that
in
specific
instances
PSD
may
mandate
additional
analyses,
such
as
preconstruction
monitoring
or
analysis
of
impacts
on
Class
I
areas.

[
FR
Doc.
03
 
13240
Filed
5
 
30
 
03;
8:
45
am]

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