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version
0
6560­
50­
P
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
51
[
OAR
2003­
0079,
FRL­
]

Final
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard
 
Phase
1
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Final
rulemaking.

SUMMARY:
In
this
document,
EPA
is
taking
final
action
on
key
elements
of
the
program
to
implement
the
8­
hour
ozone
national
ambient
air
quality
standard
(
NAAQS
or
standard).

This
final
rule
addresses
the
following
topics:

classifications
for
the
8­
hour
standardNAAQS;
revocation
of
the
1­
hour
standardNAAQS
(
i.
e.,
when
the
1­
hour
standardNAAQS
will
no
longer
apply);
how
anti­
backsliding
principles
will
ensure
continued
progress
toward
attainment
of
the
8­
hour
ozone
standardNAAQS;
attainment
dates;
and
the
timing
of
emissions
reductions
needed
for
attainment.
We
are
issuing
this
rule
so
that
States
and
Tribes
will
know
how
we
plan
to
classify
areas
and
transition
from
implementation
of
the
1­
hour
NAAQS
to
implementation
of
the
8­
hour
NAAQS.
The
intended
effect
of
the
rule
is
to
provide
certainty
to
States
and
Tribes
regarding
classifications
for
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compared
with
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26/
04
version
2
the
8­
hour
standardNAAQS
and
their
continued
obligations
with
respect
to
existing
requirements.
This
document
is
Phase
I1
of
the
program
to
implement
the
8­
hour
ozone
NAAQS.
We
plan
to
issue
a
second
rule,
Phase
2,
within
the
next
several
months
which
will
address
the
remaining
8­
hour
implementation
issues,
e.
g.,
requirements
for
reasonable
further
progress
(
RFP),
requirements
for
modeling
and
attainment
demonstrations,
and
requirements
for
reasonably
available
control
measures
(
RACM)
and
reasonably
available
control
technology
(
RACT).

EFFECTIVE
DATE:
This
rule
becomesis
effective
on
(
insert
30
days
after
publication).

ADDRESSES:
Copies
of
the
documents
relevant
to
this
action
are
available
for
public
inspection
at
the:
U.
S.

Environmental
Protection
Agency,
June
1,
2004.

ADDRESSES:
The
EPA
has
established
a
docket
for
this
action
under
Docket
ID
No.
OAR­
2003­
0079.
All
documents
in
the
docket
are
listed
in
the
EDOCKET
index
at
http://
www.
epa.
gov/
edocket.
Although
listed
in
the
index,

some
information
is
not
publicly
available,
i.
e.,

Confidential
Business
Information
or
other
information
whose
disclosure
is
restricted
by
statute.
Certain
other
material,
such
as
copyrighted
material,
is
not
placed
on
the
STAFF
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04
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compared
with
2/
26/
04
version
3
Internet
and
will
be
publicly
available
only
in
hard
copy
form.
Publicly
available
docket
materials
are
available
either
electronically
in
EDOCKET
or
in
hard
copy
at
the
EPA
Docket
Center,
Docket
No.
OAR­
2003­
0079,
EPA
West
(
Air
Docket),
1200
Pennsylvania
Avenue,
N.
W.,
Room
B­
108,
Mail
Code:
6102T,
Washington,
D.
C.
20460.
The
normal
business
hours
are
(
Air
Docket),
EPA/
DC,
EPA
West,
Room
B102,
1301
Constitution
Ave.,
NW,
Washington,
DC.
The
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
Federallegal
holidays.
The
Docket
Center's
voicetelephone
number
for
the
Public
Reading
Room
is
(
202)
566­
1744,
and
the
telephone
number
is
(
202)
566­

1742,
for
the
fax
numberOffice
of
Air
and
Radiation
Docket
and
Information
Center
is
(
202)
566­
1741,
and
their
e­
mail
address
is
A­
and­
R­
Docket@
epa.
gov566­
1742.

In
addition,
we
have
placed
a
variety
of
earlier
materials
regarding
implementation
of
the
8­
hour
ozone
NAAQS
on
the
Wweb
site:

http://
www.
wpeaepa.
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.
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2/
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04
version
4
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)
54l­
5666,
fax
number
(
919)
54l­
0824
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)
54l­

5550,
fax
number
(
919)
54l­
0824
or
by
e­
mail
at
gerth.
denise@
epa.
gov.

SUPPLEMENTARY
INFORMATION:

Outline
I.
When
Did
EPA
Propose
this
Rule?

II.
What
is
EPA's
Schedule
for
Taking
Final
Action
on
the
Proposal?

III.
What
is
Included
in
this
Rule?

IV.
In
Short,
what
does
this
Final
Rule
Contain?

A.
How
will
EPA
reconcile
the
classification
provisions
of
subparts
1
and
2?
How
will
EPA
classify
nonattainment
areas
for
the
8­
hour
standard?

B.
How
will
EPA
treat
attainment
dates
for
the
8­
Hour
ozone
standard?

C.
How
will
EPA
implement
the
transition
from
the
1­
hour
to
STAFF
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26/
04
version
5
the
8­
hour
standard
in
a
way
to
ensure
continued
momentum
in
States'
efforts
toward
cleaner
air?

D.
What
is
the
required
timeframe
for
obtaining
emissions
reductions
to
ensure
attainment
by
the
attainment
date?

V.
EPA's
Final
Rule
A.
How
will
EPA
reconcile
the
classification
provisions
of
subparts
1
and
2?
How
will
EPA
classify
nonattainment
areas
for
the
8­
hour
NAAQS?

1.
Background
a.
Statutory
framework
and
Supreme
Court
decision.

b.
EPA's
proposed
rule
and
notice
reopening
the
comment
period.

2.
Summary
of
final
rule
a.
Why
did
EPA
select
Option
2?

(
i)
Why
will
Option
2
best
accomplish
the
policy
goals
of
EPA?

(
ii)
How
is
Option
2
Consistent
with
the
CAA
as
Interpreted
by
the
Supreme
Court?

3.
Comments
and
Responses
4.
Under
the
final
classification
approach,
how
will
EPA
classify
subpart
1
areas?

a.
Background.

b.
Summary
of
Final
Rule.
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26/
04
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6
c.
Comments
and
Responses
5.
Will
EPA
adjust
classifications?

a.
Background.

b.
Summary
of
Final
Rule.

c.
Comments
and
Responses
6.
Proposed
Incentive
Feature
a.
Background.

b.
Summary
of
Final
Rule.

c.
Comments
and
Responses
B.
How
will
EPA
treat
attainment
dates
for
the
8­
hour
ozone
NAAQS?

1.
Background.

2.
Summary
of
final
rule.

3.
Comments
and
Response
4.
How
Will
EPA
Address
the
Provision
Regarding
1­

Year
Extensions?

a.
Background.

b.
Summary
of
final
rule.

c.
Comments
and
Response
C.
How
will
EPA
implement
the
transition
from
the
1­
hour
to
the
8­
hour
NAAQS
in
a
way
to
ensure
continued
momentum
in
States'
efforts
toward
cleaner
air?

1.
When
will
EPA
revoke
the
1­
hour
standard?
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2/
26/
04
version
7
a.
Background.

b.
Summary
of
Final
Rule.

c.
Comments
and
Responses
2.
What
requirements
that
applied
in
an
area
for
the
1­
hour
NAAQS
continue
to
apply
after
revocation
of
the
1­
hour
NAAQS
for
that
area?

a.
Background.

b.
Summary
of
Final
Rule.

c.
Section
51.905(
a)(
1):
8­
Hour
NAAQS
Nonattainment/
1­
Hour
NAAQS
Nonattainment
(
i)
Mandatory
Control
Measures.

(
ii)
Discretionary
control
measures
(
iii)
Measures
to
address
growth.

(
iv)
Planning
SIPs.

d.
Section
51.905(
a)(
2):
8­
Hour
NAAQS
Nonattainment/
1­
Hour
NAAQS
Maintenance
(
i)
Mandatory
Control
Measures.

(
ii)
Discretionary
Control
measures
(
iii)
Measures
to
address
growth.

(
iv)
Planning
SIPs.

e.
Section
51.905(
a)(
3):
8­
Hour
NAAQS
Attainment
/
1­
Hour
NAAQS
Nonattainment
(
i)
Mandatory
control
obligations.
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8
(
ii)
Discretionary
control
obligations.

(
iii)
Measures
to
address
growth.

(
iv)
Planning
SIPs.

(
v)
Maintenance
Plans
for
the
8­
hour
NAAQS.

f.
Section
51.905(
a)(
4):
8­
Hour
NAAQS
Attainment/
1­
Hour
NAAQS
Maintenance
(
i)
Obligations
in
an
approved
SIP.

(
ii)
Maintenance
plan.

3.
For
how
long
do
these
obligations
continue
to
apply?

a.
Background.

b.
Summary
of
Final
Rule.

c.
Comments
and
Responses
4.
Which
portions
of
an
area
designated
for
the
8­
hour
NAAQS
remain
subject
to
the
1­
hour
NAAQS
obligations?

a.
Background.

b.
Summary
of
Final
Rule.

c.
Comments
and
Responses
5.
What
obligations
that
applied
for
the
1­
hour
NAAQS
will
no
longer
apply
after
revocation
of
the
1­
hour
NAAQS
for
an
area?

a.
Background
b.
Summary
of
Final
Rule
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04
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9
c.
Comments
and
Responses
(
i)
Comments
on
June
2,
2003
proposal:

(
ii)
Comments
on
draft
regulatory
text
6.
What
is
the
continued
applicability
of
the
NOx
SIP
Call
after
revocation
of
the
1­
hour
NAAQS?

a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
Responses
(
i)
Comments
on
the
June
2,
2003
proposal:

D.
What
is
the
required
timeframe
for
obtaining
emissions
reductions
to
ensure
attainment
by
the
attainment
date?

1.
Background.

2.
Summary
of
final
rule.

3.
Comments
and
Responses
E.
Conformity
Under
the
8­
Hour
Ozone
Standard
F.
Comments
on
Other
Issues
1.
Designations
of
nonattainment
and
attainment
areas:

2.
Early
Action
Compacts
(
EACs):

3.
Health
and
environmental
concerns:

4.
Clarity
and
understandability
of
proposed
rule:

5.
Regulatory
text:

6.
Requests
for
Extension
of
Comment
Periods:
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10
G.
Other
Considerations
1.
What
happens
if
a
source
is
in
the
process
of
PSD
permitting
at
the
time
that
the
area
in
which
it
is
located
is
designated
as
nonattainment
for
the
8­
hour
ozone
standard?

H.
EPA's
Final
Action
VI.
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
K.
Congressional
Review
Act
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04
version
11
I.
When
Did
EPA
Propose
this
Rule?

On
June
2,
2003
(
68
FR
32805),
we
published
a
proposed
rule
to
implement
the
8­
hour
ozone
NAAQS.
The
proposal
addressed
a
number
of
implementation
issues,
including
the
two
core
implementation
issues
addressed
in
this
final
rule,

e.
g.,
how
the
Clean
Air
Act
(
CAA
or
Act)
classification
provisions
will
apply
for
the
8­
hour
ozone
NAAQS
and
the
transition
from
the
1­
hour
standardNAAQS
to
the
8­
hour
standardNAAQS,
including
when
the
1­
hour
standardNAAQS
will
be
revoked
and
anti­
backsliding
principles.
We
proposed
one
or
more
options
for
each
issue
addressed
in
the
proposal.

In
addition,
we
included
two
possible
frameworks
to
implement
the
8­
hour
ozone
NAAQS.
These
frameworks
were
complete
implementation
strategies
comprised
of
one
option
for
each
implementation
issue
addressed
in
the
proposed
rule.
The
following
principles
guided
us
in
the
development
of
the
underlying
options
and
the
frameworks
to
implement
the
8­
hour
ozone
NAAQS
in
the
proposed
rule:
to
protect
public
health,
provide
incentives
for
expeditious
attainment
of
the
8­
hour
ozone
standardNAAQS
and
avoid
incentives
for
delay;
to
provide
reasonable
but
expeditious
attainment
deadlines;
to
establish
a
basic,
straightforward
structure
that
could
be
communicated
easily;
to
provide
flexibility
to
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26/
04
version
12
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.
An
additional
goal
was
to
clarify
the
role
of
Tribes
in
implementing
the
8­
hour
ozone
NAAQS.
Section
301(
d)
of
the
CAA
recognizes
that
the
American
Indian
Tribal
governments
are
generally
the
appropriate
authority
to
implement
the
CAA
in
Indian
country.
As
discussed
in
the
Tribal
Authority
Rule
(
TAR)
(
63
FR
7262,
February
12,
1998,

and
59
FR
43960­
43961,
August
25,
1994),
it
is
appropriate
to
treat
Tribes
in
the
same
manner
as
States.
Therefore,

when
we
discuss
the
role
of
the
State
in
implementing
this
rule
we
are
also
referring
to
the
Tribes.
Please
refer
to
the
proposed
rule
(
68
FR
32802,
June
2,
2003)
for
a
detailed
discussion
and
background
information
on
the
8­
hour
ozone
problem
and
EPA's
strategy
for
addressing
it,
the
8­
hour
ozone
standardNAAQS
and
associated
litigation,
and
the
stakeholder
process
for
gathering
input
into
this
effort,
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04
version
1Section
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
promulgate
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
onin
13
among
other
topics.

On
August
6,
2002
(
68
FR
46536),
we
published
a
notice
of
availability
of
the
draft
regulatory
text
for
the
proposed
rule
to
implement
the
8­
hour
ozone
NAAQS.
This
notice
started
a
30­
day
public
comment
period
on
the
draft
regulatory
text.
In
addition,
on
October
21,
2003
(
68
FR
60054),
we
reopened
the
public
comment
period
for
15
days
to
solicit
additional
comment
on
alternative
approaches
for
classifying
ozone
nonattainment
areas,
based
on
comments
received
during
the
comment
period.

II.
What
is
EPA's
Schedule
for
Taking
Final
Action
on
the
Proposal?

In
our
June
2,
2003
proposal,
we
stated
that
we
planned
to
issue
the
final
implementation
rule
in
December
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.
1
We
have
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
the
standardlitigation
challenging
the
NAAQS,
whichever
came
first.

2American
Lung
Association
v.
EPA
(
D.
D.
C.
No.
1:
02CV02239).

14
entered
into
a
consent
decree
that
requires
us
to
promulgate
designations
by
April
15,
2004.2
Our
goal
was
to
issue
a
final
implementation
rule
by
the
end
of
2003
because
the
States
and
Tribes
indicated
a
strong
interest
in
having
an
opportunity
to
understand
the
impacts
of
being
designated
nonattainment
prior
to
promulgation
of
designations
for
the
8­
hour
NAAQS.
Based
on
the
large
number
of
public
comments
received
on
our
proposal
and
our
need
to
consider
and
respond
to
those
comments
before
taking
final
action,
we
are
unable
to
issue
a
final
rule
prior
to
April
15,
2004
that
addresses
all
issues
raised
in
the
proposal.
This
final
rule
addresses
several
key
components
of
the
proposed
rule:

how
the
classification
provisions
of
the
CAA
will
apply
for
purposes
of
the
8­
hour
ozone
standardNAAQS
and
the
transition
from
the
1­
hour
standardNAAQS
to
the
8­
hour
standardNAAQS,
including
when
the
1­
hour
standardNAAQS
will
be
revoked,
how
anti­
backsliding
principles
will
ensure
continued
progress
toward
attainment
of
the
8­
hour
ozone
standardNAAQS,
attainment
dates,
and
the
timing
of
emissions
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
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pm
compared
with
2/
26/
04
version
15
reductions
needed
for
attainment.

Within
the
next
several
months,
we
plan
to
issue
a
second
final
rule,
Phase
2,
which
will
address
many
of
the
planning
and
control
obligations
under
sections
172
and
182
of
the
CAA
that
will
apply
for
purposes
of
implementing
the
8­
hour
ozone
standardNAAQS.
These
include,
among
other
things,
reasonable
further
progress
(
RFP),
reasonably
available
control
technology
requirements
(
RACT)
RFP,
RACT,

attainment
demonstrations
and
maintenance
plans,
and
new
source
review
(
NSR).
Neither
Phase
1
nor
Phase
2
will
address
the
appropriate
tests
under
the
8­
hour
ozone
standardNAAQS
for
demonstrating
conformity
of
Federal
actions
to
State
implementation
plans
(
SIPs).
A
proposed
rule
was
published
on
November
5,
2003
(
68
FR
62689)

addressing
transportation
conformity
requirements
applicable
in
8­
hour
ozone
nonattainment
areas.
In
addition,
EPA
is
revising
its
general
conformity
regulations
and
plans
to
issue
a
proposed
rule
in
the
spring
of
2004.

III.
What
is
Included
in
this
Rule?

Today's
action,
Phase
1
of
the
implementation
rule,

focuses
on
two
key
implementation
issues:
1)
classifying
areas
for
the
8­
hour
standardNAAQS
and
2)
transitioning
from
the
1­
hour
to
the
8­
hour
standardNAAQS,
which
includes
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
3We
use
the
term
"
revocation"
as
shorthand
for
a
determination
under
40
CFR
50.9(
b)
that
the
1­
hour
standardNAAQS
no
longer
applies
to
one
or
more
areas.

16
revocation
of
the
1­
hour
standardNAAQS
and
the
antibacksliding
principles
that
should
apply
upon
revocation.
3
In
addition,
it
addresses
several
additional,
related
issues.
We
believe
that
classifications
and
antibacksliding
are
key
elements
of
the
implementation
program
that
are
of
primary
interest
to
the
States
and
Tribes
prior
to
the
final
designations.
In
addition,
because
section
182(
a)
of
the
CAA
provides
that
classifications
will
occur
"
by
operation
of
law"
at
the
time
of
designation,
EPA
believes
it
is
critical
that
the
public
understands
prior
toat
the
time
of
designations
how
the
classification
provisions
will
apply.

IV.
In
Short,
What
Does
this
Final
Rule
Contain?

This
summary
is
intended
to
give
only
a
convenient
overview
of
our
final
rule.
It
should
not
be
relied
on
for
the
details
of
the
actual
rule.
The
final
rule
(
regulatory
text)
and
the
discussion
of
it
in
the
next
section
below
should
be
consulted
directly.

Both
the
preamble
and
the
rule
may
use
the
following
terms
to
discuss
four
categories
of
areas
for
purposes
of
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
17
the
anti­
backsliding
provisions:
(
1)
8­
hour
NAAQS
Nonattainment/
1­
hour
NAAQS
Nonattainment;
(
2)
8­
hour
NAAQS
Nonattainment/
1­
hour
NAAQS
Maintenance;
(
3)
8­
hour
NAAQS
Attainment/
1­
hour
NAAQS
Nonattainment;
(
4)
8­
hour
NAAQS
Attainment/
1­
hour
NAAQS
Maintenance.
These
categories
are,

respectively:
(
1)
Areas
that
remain
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designationsdesignation
as
nonattainment
for
the
8­
hour
NAAQS;
(
2)
Areas
that
are
maintenance
areas
for
the
1­
hour
NAAQS
at
the
time
of
designation
as
nonattainment
for
the
8­

hour
NAAQS;
(
3)
Areas
that
remain
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
as
attainment
for
the
8­
hour
NAAQS;
and
(
4)
Areas
that
are
maintenance
areas
for
the
1­
hour
NAAQS
at
the
time
of
designation
as
attainment
for
the
8­
hour
NAAQS.

IV.
EPA's
Final
Rule
A.
How
will
EPA
reconcile
the
classification
provisions
of
subparts
1
and
2?
How
will
EPA
classify
nonattainment
areas
for
the
8­
hour
standard?

The
final
rule
incorporates
Option
2
of
the
proposal.

Each
area
with
a
current
1­
hour
design
value
at
or
above
0.121
ppm
(
the
lowest
1­
hour
design
value
in
Table
1
of
subpart
2)
will
be
classified
under
subpart
2
based
on
its
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
4
In
the
Phase
2
rule,
we
will
address
the
control
obligations
that
apply
to
areas
under
both
subpart
1
and
subpart
2.

18
8­
hour
design
value.
All
other
areas
will
be
covered
under
subpart
1
using
their
8­
hour
design
values.

In
brief,
this
approach
works
as
follows:


First,
we
will
determine
which
8­
hour
areas
will
be
covered
under
subpart
2
and
which
under
subpart
1.
Any
area
with
a
1­
hour
ozone
design
value
(
at
the
time
of
designation)
that
meets
or
exceeds
the
statutory
level
of
0.121
ppm
that
Congress
specified
in
Table
1
of
section
181
will
be
classified
under
subpart
2
and
will
be
subject
to
the
control
obligations
associated
with
its
classification.
4
Any
area
with
a
1­
hour
design
value
(
at
the
time
of
designation)
that
is
below
the
level
of
0.121
ppm
will
be
covered
under
subpart
1
and
subject
to
the
control
obligations
in
section
172.


Second,
subpart
2
areas
will
be
classified
as
marginal,

moderate,
serious,
severe
or
extreme
based
on
the
area's
8­
hour
design
value
(
at
the
time
of
designation).
Since
Table
1
is
based
on
1­
hour
design
values,
and
application
of
the
Table
as
written
would
produce
absurd
results,
we
are
promulgating
a
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
19
regulation
translating
the
thresholds
in
Table
1
of
section
181
from
1­
hour
values
to
8­
hour
values.

Under
the
final
classification
approach,
how
will
EPA
classify
subpart
1
areas?

We
are
adopting
the
second
option
but
modified
as
a
result
of
comments.
We
are
creating
an
overwhelming
transport
classification
that
will
be
available
to
subpart
1
areas
that
demonstrate
they
are
affected
by
overwhelming
transport
of
ozone
and
its
precursors
and
demonstrate
they
meet
the
definition
of
a
rural
transport
area
in
section
182(
h).
However,
areas
would
not
have
to
demonstrate
that
transport
was
due
solely
to
sources
from
outside
the
State
(
interstate
transport)
as
was
implied
by
the
June
2,
2003
proposal.
All
other
areas
that
do
not
qualify
for
the
overwhelming
transport
classification
would
not
be
classified.

Proposed
Incentive
Feature
We
are
not
including
the
proposed
incentive
feature
in
the
final
rule.

B.
How
will
EPA
treat
attainment
dates
for
the
8­
Hour
ozone
standard?

We
are
adopting
the
time
periods
for
attainment
that
we
proposed
for
areas
under
both
subpart
1
and
subpart
2
of
the
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
20
CAA.
For
areas
subject
to
subpart
2
of
the
CAA,
the
maximum
period
for
attainment
will
run
from
the
effective
date
of
designations
and
classifications
for
the
8­
hour
standard
and
will
be
the
same
periods
as
provided
in
Table
1
of
section
181(
a):


Marginal
 
3
years

Moderate
 
6
years

Serious
 
9
years

Severe
 
15
or
17
years

Extreme
­
20
years
Consistent
with
section
172(
a)(
2)(
A),
for
areas
subject
to
subpart
1
of
the
CAA,
the
period
for
attainment
will
be
no
later
than
5
years
after
the
effective
date
of
the
designation.
However,
EPA
may
grant
an
area
an
attainment
date
no
later
than
10
years
after
designation,
if
warranted
based
on
the
factors
provided
in
section
172(
a)(
2)(
A).

How
will
EPA
address
the
provision
regarding
1­
year
extensions?

We
are
adopting
the
interpretation
that
we
proposed
on
June
2,
2003.
Under
both
sections
172(
a)(
2)(
C)
and
181(
a)(
5),
an
area
will
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
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
21
is
0.084
ppm
or
less.
The
area
will
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.

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?

There
are
two
key
issues
that
EPA
considered
together
regarding
the
transition
from
the
1­
hour
standard
to
the
8­

hour
standard:
(
1)
when
will
the
1­
hour
standard
no
longer
apply
(
i.
e.,
be
"
revoked");
and
(
2)
what
protections
are
in
place
to
ensure
that,
once
the
1­
hour
standard
is
revoked,

air
quality
will
not
degrade
and
that
progress
toward
attainment
will
continue
as
areas
transition
from
implementing
the
1­
hour
standard
to
implementing
the
8­
hour
standard.
As
in
the
proposed
rule,
the
second
key
issue
has
three
components:
(
1)
what
requirements
that
applied
based
on
an
area's
classification
for
the
1­
hour
standard
must
continue
to
apply
to
that
area;
(
2)
for
how
long;
and
(
3)
in
what
area.
Below,
we
set
forth
our
final
transition
approach
in
four
parts:
(
1)
when
will
the
1­
hour
standard
no
longer
apply
(
i.
e.,
when
will
it
be
revoked);
(
2)
what
1­

hour
obligations
should
continue
to
apply
once
the
1­
hour
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
22
standard
is
revoked;
(
3)
how
long
should
those
requirements
continue
to
apply;
and
(
4)
what
is
the
geographic
area
subject
to
the
requirement.

1.
When
will
EPA
revoke
the
1­
hour
standard?

We
are
adopting
Option
1.
We
will
revoke
the
1­
hour
standard
in
full,
including
the
associated
designations
and
classifications,
1
year
following
the
effective
date
of
the
designations
for
the
8­
hour
NAAQS.

2.
What
requirements
that
applied
in
an
area
for
the
1­

hour
NAAQS
continue
to
apply
after
revocation
of
the
1­
hour
NAAQS
for
that
area?

The
approach
we
are
adopting
in
the
final
rule
is
summarized
below
under
the
individual
sections
discussing
each
category
of
area
and
type
of
control
obligation.

a.
Section
51.905(
a)(
1):
8­
Hour
NAAQS
Nonattainment/
1­
Hour
NAAQS
Nonattainment
(
i)
Mandatory
control
measures.
We
are
adopting
the
approach
we
proposed.
All
areas
designated
nonattainment
for
the
8­
hour
ozone
NAAQS
and
designated
nonattainment
for
the
1­
hour
ozone
NAAQS
at
the
time
of
designation
for
the
8­

hour
NAAQS
remain
subject
to
control
measures
that
applied
by
virtue
of
the
area's
classification
for
the
1­
hour
standard.
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
23
(
ii)
Discretionary
control
measures.
We
are
adopting
the
approach
we
set
forth
in
our
proposed
rule.
A
State
may
revise
or
remove
discretionary
control
measures
(
including
enforceable
commitments)
contained
in
its
SIP
for
the
1­
hour
standard
so
long
as
the
State
demonstrates
consistent
with
section
110(
l)
that
such
removal
or
modification
will
not
interfere
with
attainment
of
or
progress
toward
the
8­
hour
ozone
NAAQS
(
or
any
other
applicable
requirement
of
the
CAA).

(
iii)
Measures
to
address
growth.
We
are
not
adopting
the
approach
set
forth
in
our
proposed
rule.
For
areas
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
8­
hour
NAAQS
and
that
are
designated
nonattainment
for
the
8­
hour
NAAQS,
the
major
source
applicability
cut­
offs
and
offset
ratios
for
the
area's
1­

hour
classification
would
not
continue
to
apply
after
revocation
of
the
1­
hour
NAAQS.

(
iv)
Planning
SIPs.

(
A)
Outstanding
rate
of
progress
(
ROP)
Obligation.

We
are
adopting
the
approach
set
forth
in
our
proposed
rule
for
this
category
of
areas.
States
remain
obligated
to
meet
the
CAA­
mandated
ROP
emission
reduction
targets
that
applied
for
the
1­
hour
standard,
but
discretionary
measures
adopted
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
24
to
meet
those
targets
may
be
modified,
if
the
State
makes
the
necessary
showing
under
section
110(
l).

(
B)
Unmet
attainment
demonstration
obligations.
In
the
final
rule,
we
are
allowing
the
States
to
choose
among
three
options
that
are
tailored
after
the
approaches
addressed
in
the
proposed
rule.
Thus,
rather
than
establishing
one
mandatory
approach,
we
are
adopting
a
rule
that
will
allow
States
to
choose
any
one
of
the
following
three
options:

°
Option
1.
Submit
a
1­
hour
attainment
demonstration.

°
Option
2.
Submit,
no
later
than
1
year
after
the
effective
date
of
the
8­
hour
designations,
an
early
five
percent
increment
of
progress
plan
toward
the
8­

hour
standard.

°
Option
3.
Submit
an
early
8­
hour
ozone
attainment
demonstration
SIP
that
ensures
that
the
first
segment
of
RFP
is
achieved
early.

b.
Section
51.905(
a)(
2):
8­
Hour
NAAQS
Nonattainment/
1­
Hour
NAAQS
Maintenance
(
i)
Mandatory
control
measures.
We
are
adopting
the
approach
we
took
in
the
proposal
and
the
draft
regulatory
text.
This
category
of
areas
must
continue
to
implement
mandatory
control
requirements
(
i.
e.,
"
applicable
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
25
requirements")
that
have
been
approved
into
the
SIP.

However,
since
maintenance
areas
do
not
have
any
outstanding
obligation
to
adopt
mandatory
control
obligations
for
the
1­

hour
standard,
the
provision
only
addresses
implementation,

not
adoption.
In
addition,
this
section
recognizes
that
maintenance
areas
had
the
flexibility
to
move
mandatory
controls
to
the
contingency
measures
portion
of
their
maintenance
plan.

(
ii)
Discretionary
control
measures.
As
with
discretionary
control
measures
for
8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
nonattainment
areas,
1­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
maintenance
areas
will
retain
the
discretion
to
modify
any
discretionary
control
measures
upon
a
demonstration
under
section
110(
l).
We
are
not
promulgating
regulatory
text
because
sections
110(
l)
and
193
of
the
CAA
govern
such
SIP
revisions.

(
iii)
Measures
to
address
growth.
We
are
adopting
the
approach
we
proposed,
but
our
rationale
relies
on
the
final
rule's
provision
that
NSR
under
the
1­
hour
standard
will
no
longer
apply
as
of
revocation
of
the
1­
hour
standard.
If
an
area
has
been
redesignated
to
attainment
for
the
1­
hour
standard
as
of
the
effective
date
of
the
8­
hour
nonattainment
designation
and
is
no
longer
required
to
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
26
implement
a
nonattainment
NSR
program,
the
area
will
not
be
required
to
revert
back
to
the
program
it
had
for
purposes
of
the
1­
hour
ozone
standard.

As
noted
elsewhere,
NSR
offset
ratios
and
source
applicability
provisions
under
the
1­
hour
standard
are
not
being
defined
as
"
applicable
requirements"
after
the
1­
hour
standard
is
revoked.

(
iv)
Planning
SIPs.
We
are
adopting
the
approach
taken
in
the
draft
regulatory
text.
In
redesignating
an
area
to
attainment,
EPA
must
conclude
that
the
area
has
met
all
requirements
applicable
under
section
110
and
part
D.

Thus,
maintenance
areas
do
not
have
continuing
progress
and
attainment
demonstration
requirements.

c.
Section
51.905(
a)(
3):
8­
Hour
NAAQS
Attainment/
1­
Hour
NAAQS
Nonattainment
(
i)
Mandatory
control
obligations.
We
are
adopting
an
approach
consistent
with
our
proposed
rule.
We
have
determined
that
mandatory
control
obligations
will
no
longer
apply
once
an
area
attains
the
8­
hour
standard.
Thus,

because
these
areas
are
attaining
the
8­
hour
standard,
the
State
may
request
that
obligations
under
applicable
requirements
be
shifted
to
contingency
measures
once
the
1­

hour
standard
is
revoked,
consistent
with
sections
110(
l)
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
27
and
193
of
the
CAA.
However,
the
State
cannot
remove
the
obligations
from
the
SIP.

(
ii)
Discretionary
control
obligations.
8­
hour
NAAQS
attainment/
1­
hour
NAAQS
nonattainment
areas
will
retain
the
discretion
to
modify
any
discretionary
controls
upon
a
demonstration
under
section
110(
l).
However,
such
controls
must
remain
in
the
SIP
as
contingency
measures.

(
iii)
Measures
to
address
growth.
We
are
adopting
the
approach
we
set
forth
in
our
proposed
rule
for
this
category
of
areas.
After
the
1­
hour
standard
is
revoked,
the
CAA
requires
such
areas
to
comply
with
prevention
of
significant
deterioration
(
PSD),
not
NSR.

(
iv)
Planning
SIPs.
We
are
adopting
our
proposal
with
some
modification.
An
area
of
this
category
will
not
be
required
to
develop
and
submit
outstanding
attainment
demonstration
and
ROP
plans
for
the
1­
hour
standard
for
so
long
as
the
area
continues
to
maintain
the
8­
hour
NAAQS.

However,
if
the
area
violates
the
8­
hour
NAAQS
prior
to
having
an
approved
8­
hour
maintenance
plan
under
section
110(
a)(
1),
the
area
will
be
required
to
submit
a
SIP
revision
to
address
outstanding
ROP
and
attainment
demonstration
plans.

(
v)
Maintenance
plans
for
the
8­
hour
NAAQS.
We
are
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
28
adopting
the
approach
we
proposed.
Areas
that
are
either
8­

hour
NAAQS
attainment/
1­
hour
NAAQS
nonattainment
or
8­
hour
NAAQS
attainment
/
1­
hour
NAAQS
maintenance
must
adopt
and
submit
a
maintenance
plan
consistent
with
section
110(
a)(
1)

within
3
years
of
designation
as
attainment
for
the
8­
hour
NAAQS.
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.

d.
Section
51.905(
a)(
4):
8­
Hour
NAAQS
Attainment/
1­
Hour
NAAQS
Maintenance
In
the
final
rule,
we
created
a
section
51.905(
a)(
4)
to
apply
to
this
category
of
areas.
It
covers
obligations
in
an
approved
SIP
and
maintenance
plans
similar
in
manner
to
areas
that
are
attainment
for
the
8­
hour
standard
and
were
attainment
for
the
1­
hour
standard
and
had
a
maintenance
plan.

3.
For
how
long
do
these
obligations
continue
to
apply?

We
are
adopting
Option
2
 
control
obligations
an
area
is
required
to
retain
in
the
approved
SIP
for
an
area's
1­

hour
classification
must
continue
to
be
implemented
under
the
SIP
until
the
area
attains
and
is
redesignated
to
attainment
for
the
8­
hour
NAAQS.
At
that
time,
the
State
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
29
may
relegate
such
controls
to
the
contingency
measure
portion
of
the
SIP
if
the
State
demonstrates
in
accordance
with
section
110(
l)
that
doing
so
will
not
interfere
with
maintenance
of
the
8­
hour
NAAQS
or
any
other
applicable
requirement
of
the
CAA.
If
at
the
time
the
area
is
redesignated
to
attainment
for
the
8­
hour
standard
the
State
has
an
outstanding
obligation
to
adopt
a
control
requirement
under
the
1­
hour
standard,
it
remains
obligated
to
do
so,

but
may
adopt
it
as
a
contingency
measure.

4.
Which
portions
of
an
area
designated
for
the
8­
hour
NAAQS
remain
subject
to
the
1­
hour
NAAQS
obligations?

The
final
rule
incorporates
most
aspects
of
the
approach
as
that
contained
in
the
proposal
and
in
the
draft
regulatory
text.
The
final
rule
provides
that
only
the
portion
of
the
designated
area
for
the
8­
hour
NAAQS
that
was
designated
nonattainment
for
the
1­
hour
NAAQS
is
required
to
comply
with
the
planning
obligations,
except
in
one
circumstance:
if
the
State
elects
to
provide
an
early
increment
of
progress
or
an
early
8­
hour
attainment
demonstration
in
lieu
of
an
outstanding
1­
hour
attainment
demonstration
(
for
an
8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
nonattainment
area
under
51.905(
a)(
1)(
ii)(
B)
and
(
C)),

the
increment
of
progress
or
early
8­
hour
attainment
plan
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
30
must
apply
for
purposes
of
the
entire
8­
hour
nonattainment
area.

The
final
rule
does
not
follow
the
approach
in
the
proposal
for
the
maintenance
plan
requirement
for
8­
hour
attainment
areas.
The
maintenance
plans
required
for
these
areas
must
demonstrate
maintenance
only
for
the
area
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
of
the
8­
hour
standard.

5.
What
obligations
that
applied
for
the
1­
hour
NAAQS
will
no
longer
apply
after
revocation
of
the
1­
hour
NAAQS
for
an
area?

We
are
revising
the
approach
we
set
forth
in
our
proposed
rule.
In
addition
to
the
obligations
noted
in
our
proposal
that
would
no
longer
apply
after
the
1­
hour
NAAQS
is
revoked,
we
are
also
providing
clarification
regarding
the
penalty
obligations
under
sections
181(
b)(
4)
and
185A
of
the
CAA
that
apply
in
severe
and
extreme
areas
that
do
not
attain
the
1­
hour
standard
by
the
applicable
attainment
date.
The
final
rule
also
would
not
retain
NSR
under
the
1­

hour
NAAQS.
The
final
rule
provides
that
as
of
the
effective
date
of
revocation
of
the
1­
hour
standard:


We
will
no
longer
make
findings
of
failure
to
attain
the
1­
hour
standard
and,
therefore,
(
a)
we
will
not
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
31
reclassify
areas
to
a
higher
classification
for
the
1­

hour
standard
based
on
such
a
finding,
and
(
b)
areas
that
were
classified
as
severe
or
extreme
for
the
1­

hour
NAAQS
are
not
obligated
to
impose
fees
as
provided
under
sections
181(
b)(
4)
and
185A
of
the
CAA
under
the
1­
hour
standard.


Areas
will
not
be
obligated
to
continue
to
demonstrate
conformity
for
the
1­
hour
NAAQS
as
of
the
effective
date
of
the
revocation
of
the
1­
hour
NAAQS.


An
area
with
an
approved
1­
hour
maintenance
plan
under
section
175A
of
the
CAA
may
modify
the
maintenance
plan
to
remove
obligations
related
to
developing
a
second
10­
year
maintenance
plan
for
the
1­
hour
NAAQS
and
the
obligation
to
implement
contingency
measures
upon
a
violation
of
the
1­
hour
NAAQS.


NSR
under
the
1­
hour
NAAQS
will
no
longer
apply
in
areas
that
are
8­
Hour
NAAQS
nonattainment/
1­
Hour
NAAQS
nonattainment.

6.
What
is
the
continued
applicability
of
the
NOx
SIP
Call
after
revocation
of
the
1­
hour
NAAQS?

We
are
adopting
the
approach
we
set
forth
in
our
proposed
rule
and
draft
regulatory
text.
States
must
continue
to
adhere
to
the
emission
budgets
established
by
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
32
the
NOx
transport
rules
after
the
1­
hour
standard
is
revoked.
States
retain
the
authority
to
revise
control
obligations
they
have
established
for
specific
sources
or
source
categories
under
the
NOx
SIP
Call
rule
so
long
as
the
State
demonstrates
consistent
with
section
110(
l)
that
such
modification
will
not
interfere
with
attainment
of
or
progress
toward
meeting
the
8­
hour
NAAQS
or
any
other
applicable
requirement
of
the
CAA.

D.
What
is
the
required
timeframe
for
obtaining
emissions
reductions
to
ensure
attainment
by
the
attainment
date?

We
are
adopting
the
approach
we
set
forth
in
our
proposed
rule,
namely
that
emissions
reductions
needed
for
attainment
must
be
implemented
by
the
beginning
of
the
ozone
season
immediately
preceding
the
area's
attainment
date.

V.
EPA's
Final
Rule
A.
How
will
EPA
reconcile
the
classification
provisions
of
subparts
1
and
2?
How
will
EPA
classify
nonattainment
areas
for
the
8­
hour
NAAQS?
(
Section
VI.
A.
of
proposal;
see
68
FR
32811;
section
51.902
of
draft
and
final
rules)

1.
Background
a.
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
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
5State
Implementation
Plans;
General
Preamble
for
the
Implementation
of
Title
I
of
the
CAA
Amendments
of
1990;
Proposed
Rule."
April
16,
1992
(
57
FR
13498
at
13501
and
13510).

33
the
ozone
NAAQS
in
nonattainment
areas.
(
Both
are
found
in
title
I,
part
D.)
Subpart
1
contains
general,
less
prescriptive,
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.
5
When
we
promulgated
the
8­
hour
ozone
standardNAAQS
on
July
18,
1997,
we
indicated
that
we
anticipated
that
States
would
implement
that
standarde
8­
hour
NAAQS
under
the
less
prescriptive
subpart
1
requirements.
More
specifically,
we
concluded
that
the
CAA
required
areas
designated
nonattainment
for
the
1­
hour
ozone
standardNAAQS
to
remain
subject
to
the
subpart
2
requirements
for
purposes
of
the
1­

hour
standardNAAQS
until
such
time
as
they
met
that
standardNAAQS
(
62
FR
38872).
We
also
stated
that
those
areas
and
all
other
areas
would
be
subject
only
to
subpart
1
for
purposes
of
planning
for
the
8­
hour
ozone
standardNAAQS.

Thus,
w
We
determined
not
to
immediately
revoke
the
1­
hour
standardNAAQS
for
all
areas
but
to
promulgate
a
rule
(
40
CFR
50.9(
b))
providing
that
the
1­
hour
standardNAAQS
and
the
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
34
associated
designation
would
no
longer
apply
to
an
area
once
EPA
determined
the
area
had
attained
the
1­
hour
standardNAAQS.
Thus,
areas
that
had
not
yet
attained
the
1­

hour
standardNAAQS
retained
their
designation
for
that
standardNAAQS
and
remained
subject
to
the
control
obligations
associated
with
their
classification
for
the
1­

hour
standardNAAQS
until
they
met
it.

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.

Whitman
v.
American
Trucking
Associations,
531
U.
S.
457,

481­
86
(
2001).
The
Court
concluded,
however,
that
the
implementation
approach
set
forth
in
the
final
NAAQS
rule,

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,
531
U.
S.
at
482.

Despite
recognizing
that
the
classification
provisions
of
subpart
2
(
section
181(
a))
apply
for
purposes
of
the
8­

hour
standardNAAQS,
the
Supreme
Court
also
recognized
that
the
subpart
2
classification
scheme
does
not
entirely
fit
STAFF
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compared
with
2/
26/
04
version
35
with
the
revised
8­
hour
standardNAAQS
and
left
it
to
EPA
to
develop
a
reasonable
resolution
of
the
roles
of
subparts
1
and
2
in
classifying
areas
for
and
implementing
a
revised
ozone
standardNAAQS.
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."
Id.
at
483.

°
First,
the
Court
recognized
that
"
using
the
old
1­
hour
averages
of
ozone
levels
...
as
subpart
2
requires
...

would
produce
at
best
an
inexact
estimate
of
the
new
8­

hour
averages
.
.
."
Id.
5
°
Second,
the
Court
recognized
that
the
design
values
in
Table
1
start
atis
based
on
the
level
of
the
1­
hour
NAAQS
 
(
0.12
ppm)
and
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
STAFF
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04
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compared
with
2/
26/
04
version
36
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.

b.
EPA's
proposed
rule
and
notice
reopening
the
comment
period.
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
standardNAAQS.
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
standardNAAQS.

On
June
2,
2003
(
68
FR
32802),
we
issued
a
proposed
rule
which
identified
two
options
for
classifying
areas
for
the
8­
hour
ozone
NAAQS.
Under
Option
1
(
68
FR
32812),
we
proposed
to
classify
8­
hour
ozone
nonattainment
areas
STAFF
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4/
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04
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pm
compared
with
2/
26/
04
version
6
The
design
value
of
an
area
is
based
on
the
monitor
for
the
area
recording
the
highest
ozone
levels
and
indicates
whether
the
area
is
violating
or
meeting
the
ozone
NAAQS.
For
the
1­
hour
ozone
NAAQS,
the
design
value
for
an
area
is
generally
the
4th
highest
monitored
ozone
level
at
the
monitor
over
a
3­
year
period.
See
40
CFR
Part
50,
Appendix
Hpart
50,
appendix
H
and
Memorandum
of
June
18,
1990
from
William
G.
Laxton
re
"
Ozone
and
Carbon
Monoxide
Design
Value
Calculations."
Available
at
http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
ozonetech/
laxton.
htm
.
For
the
8­
hour
ozone
NAAQS,
the
design
value
is
the
average
of
each
yearly
4th
highest
reading
at
a
monitor
over
a
3­
year
period.
See
40
CFR
Ppart
50,
Aappendix
I.

37
according
to
the
severity
of
their
ozone
pollution
based
on
8­
hour
design
values.
6
Because
the
subpart
2
classification
table
is
based
on
1­
hour
design
values,
we
proposed
to
translate
the
classification
thresholds
in
Table
1
of
section
181
to
8­
hour
design
values.
Under
this
option,
all
8­
hour
nonattainment
areas
would
be
classified
under
subpart
2
as
marginal,
moderate,
serious,
severe
or
extreme.

Under
oOption
1,
the
threshold
for
the
marginal
classification
would
be
an
8­
hour
design
value
of
0.085
ppm.

Each
of
the
8­
hour
classification
thresholds
would
be
the
same
percentage
above
the
8­
hour
standardNAAQS
as
the
corresponding
statutory
1­
hour
threshold
is
above
the
1­
hour
standardNAAQS.
For
example,
since
the
statutory
1­
hour
ozone
level
for
the
moderate
classification
is
15
percent
above
the
1­
hour
standardNAAQS,
the
8­
hour
ozone
level
for
STAFF
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04
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pm
compared
with
2/
26/
04
version
38
the
moderate
classification
would
be
15
percent
above
the
8­

hour
standardNAAQS.

The
EPA
developed
a
second
option
designed
to
provide
States
with
greater
flexibility
on
the
measures
included
in
their
plans
for
meeting
the
8­
hour
standardNAAQS.
Under
Option
2
(
68
FR
32812),
which
we
indicated
was
our
preferred
option,
we
proposed
a
two­
step
system
for
determining
classifications
for
areas.
We
proposed
as
a
first
step,
to
divide
areas
into
two
groups
based
on
each
area's
current
1­

hour
ozone
design
value.
In
accordance
with
the
portion
of
the
Supreme
Court
decision
which
indicated
that
there
was
no
gap
in
the
statute
for
those
areas
with
a
1­
hour
design
value
above
0.121
ppm
 
the
lowest
level
in
Table
1
in
section
181(
a)
 
we
proposed
that
areas
with
a
current
(
i.
e.,
determined
at
the
time
of
designation)
1­
hour
ozone
design
value
greater
than
or
equal
to
0.121
ppm
would
be
classified
under
subpart
2
for
the
8­
hour
NAAQS.
For
areas
with
a
current
1­
hour
design
value
less
than
0.121
ppm
and
which,
i.
e.,
those
areas
the
Court
stated
fell
into
the
gap,

we
concluded
that
we
must
make
a
reasonable
determination
whether
they
should
be
covered
under
subpart
1
or
subpart
2.

We
proposed
that
all
of
these
areas
would
be
covered
under
subpart
1.
For
the
areas
that
did
not
fall
into
the
gap
and
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
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pm
compared
with
2/
26/
04
version
7The
notice
also
solicited
comment
on
additional
issues
that
would
arise
if
we
selected
one
of
the
approaches
identified
in
the
notice
reopening
the
comment
period:
1)
whether
we
should
modify
the
5
percent
reclassification
feature
of
section
181(
a)(
4)
of
the
CAA
if
we
change
our
classification
scheme
to
have
a
narrower
range
for
each
classification;
2)
whether
we
should
adopt
the
suggestion
by
commenters
on
the
June
2,
2003
proposal
that
we
change
the
1­
hour
ozone
threshold
to
0.125
ppm
rather
than
0.121
ppm
to
determine
if
an
area
falls
into
subpart
1
vs.
subpart
2
under
classification
oOption
2;
and
3)
whether
an
adjustment
other
than
50
percent
would
be
more
appropriate
39
which
must
be
classified
under
subpart
2,
we
proposed
to
classify
them
based
on
our
translation
of
Table
1
in
section
181(
a),
as
described
under
Option
1.

We
received
a
large
number
of
comments
on
the
classification
options
that
we
proposed,
including
recommendations
for
other
approaches,
most
of
which
were
variations
on
the
options
we
proposed.
On
October
21,
2003
(
68
FR
60054),
we
reopened
the
comment
period
on
the
proposed
rule
for
15
days
to
provide
the
public
with
an
opportunity
for
additional
comment
on
commenters'

alternative
approaches
for
classifying
areas
for
the
8­
hour
ozone
NAAQS
that
were
suggested
during
the
comment
period.

We
also
included
two
alternative
strategies
(
Alternatives
A
and
B)
for
classifying
areas
that
EPA
developed
by
combining
ideas
suggested
by
different
commenters
during
the
initial
comment
period.
7
STAFF
DRAFT
 
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NOT
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OR
DISTRIBUTE
 
4/
13/
04
1:
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pm
compared
with
2/
26/
04
version
for
narrowing
the
range
of
each
classification.

40
Alternatives
A
and
B
were
designed
to
place
more
areas
in
higher
classifications,
which
would
provide
areas
with
more
time
to
attain
but
would
impose
additional
mandatory
control
requirements.
These
optionsalternatives
also
were
designed
to
avoid
or
reduce
instances
in
which
a
subpart
1
area
could
have
higher
8­
hour
ozone
levels
than
a
subpart
2
area.

Alternative
A
would
classify
areas
solely
on
the
basis
of
8­
hour
design
values.
The
key
feature
of
this
alternative
was
that
EPA
would
create
a
classification
table
of
8­
hour
values
starting
from
an
8­
hour
design
value
that,

to
the
extent
possible,
would
be
approximately
equivalent
to
the
1­
hour
design
value
of
0.121
ppm
in
Table
1.
Thus,
the
lowest
level
in
the
regulatory
table
was
the
8­
hour
approximation
of
the
1­
hour
standardNAAQS
as
suggested
by
commenters,
i.
e.,
0.091
ppm.
Areas
with
an
8­
hour
design
value
less
than
0.091
ppm
would
be
covered
under
subpart
1.

Areas
with
an
8­
hour
design
value
at
or
above
this
level
would
be
classified
under
subpart
2.
To
place
areas
in
higher
classifications,
we
narrowed
the
range
for
each
classification
to
use
50
percent
(
instead
of
100
percent)
of
STAFF
DRAFT
 
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NOT
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OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
41
the
percentages
that
the
classification
thresholds
were
above
the
1­
hour
NAAQS
in
our
proposed
June
2003
translation
of
Table
1
of
section
181.
In
other
words,
since
the
moderate
threshold
for
the
1­
hour
standardNAAQS
is
15
percent
above
the
1­
hour
standardNAAQS,
we
would
adjust
the
moderate
threshold
for
purposes
of
the
8­
hour
standardNAAQS
to
be
7.5
percent
above
0.091
ppm
(
the
lowest
level
in
tTable
1
for
Alternative
A).

Alternative
B,
a
modified
version
of
oOption
2,

retained
the
first
step
of
Option
2,
where
we
divide
the
areas
based
on
their
current
1­
hour
design
value.
As
in
oOption
2,
areas
with
1­
hour
design
values
exceeding
the
statutory
0.121
ppm
level
would
be
regulated
under
subpart
2.
In
addition,
any
"
gap"
area
(
i.
e.,
those
with
a
1­
hour
design
value
less
than
0.121
ppm)
with
a
moderate­
level
(
or
higher)
design
value
would
be
classified
under
subpart
2.

All
other
gap
areas
would
be
covered
by
subpart
1.
As
with
Alternative
A,
to
place
subpart
2
areas
in
higher
classifications,
we
narrowed
the
range
for
each
classification
to
50
percent
of
the
range
in
Table
1
of
section
181.
In
other
words,
the
moderate
threshold
would
be
7.5
percent
above
the
8­
hour
standardNAAQS
(
0.085
ppm).

2.
Summary
of
final
rule
STAFF
DRAFT
 
DO
NOT
QUOTE,
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OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
8
In
the
Phase
2
rule,
we
will
address
the
control
and
planning
obligations
that
apply
to
areas
under
both
subpart
1
and
subpart
2.

42
After
considering
all
of
the
comments
that
were
submitted,
we
are
adopting
Option
2.
Each
area
with
a
current
1­
hour
design
value
at
or
above
0.121
ppm
(
the
lowest
1­
hour
design
value
in
Table
1
of
subpart
2)
will
be
classified
under
subpart
2
based
on
its
8­
hour
design
value.

All
other
areas
will
be
covered
under
subpart
1
using
their
8­
hour
design
values.

In
brief,
this
approach
works
as
follows:


First,
we
will
determine
which
8­
hour
areas
will
be
covered
under
subpart
2
and
which
under
subpart
1.
Any
area
with
a
1­
hour
ozone
design
value
(
based
onat
the
most
recent
3
yearstime
of
datadesignation)
that
meets
or
exceeds
the
statutory
level
of
0.121
ppm
that
Congress
specified
in
Table
1
of
section
181
will
be
classified
under
subpart
2
and
will
be
subject
to
the
control
obligations
associated
with
its
classification.
8
Any
area
with
a
1­
hour
design
value
(
based
onat
the
most
recent
3
yearstime
of
datadesignation)
that
is
below
the
level
of
0.121
ppm
will
be
covered
under
subpart
1
and
subject
to
the
STAFF
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pm
compared
with
2/
26/
04
version
43
control
obligations
in
section
172.


Second,
subpart
2
areas
will
be
classified
as
marginal,

moderate,
serious,
severe
or
extreme
based
on
the
area's
8­
hour
design
value
calculated
using(
at
the
most
recent
3
yearstime
of
datadesignation).
Since
Table
11
of
section
181
is
based
on
1­
hour
design
values,
and
application
of
the
Table
as
written
would
produce
absurd
results,
we
are
promulgating
a
regulation
translating
the
thresholds
in
Table
1
of
section
181
from
1­
hour
values
to
8­
hour
values.
(
See
Table
1
"
Classification
for
8­
Hour
NAAQS"
NAAQS
for
Areas
Subject
to
Section
51.902(
a)"
in
Ssection
51.903.)
A

Third,
in
accordance
with
section
181(
a)(
4)
and
181(
b)(
3),
the
State
may
request
a
lower
or
higher
classification.


Finally,
as
described
in
more
detail
below,
section
172(
a)(
1)
provides
EPA
with
discretion
whether
to
classify
areas
under
subpart
1
and
we
are
creating
one
classification
 
for
qualifying
areas
affected
by
overwhelming
transport.
All
other
areas
covered
under
subpart
1
will
not
be
classified.

ca.
Why
did
EPA
select
Option
2?

The
EPA
carefully
considered
the
many
comments
we
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
44
received
on
classification
options
and,
in
fact,
sought
additional
input
on
alternatives
presented
and
developed
pursuant
to
comments
received
on
the
June
2003
proposal.

The
commenters
were
deeply
divided
on
the
merits
of
the
options.
Even
after
the
conclusion
of
the
October
2003
comment
period,
most
commenters
still
favored
oOption
2
or
oOption
1.
Only
a
few
favored
either
Alternative
A
or
Alternative
B.
Those
commenters
who
suggested
alternatives
to
Option
1
or
Option
2
during
the
initial
60­
day
comment
period
did
not
support
Alternatives
A
and
B
(
which
blended
several
suggestions
from
the
initial
comments)
and
they
remained
convinced
that
their
suggested
approach
was
the
best
classification
approach.

Because
the
commenters
were
strongly
divided
over
the
appropriate
classification
approach,
EPA
re­
examined
the
various
alternatives
in
light
of
their
consistency
with
the
CAA,
as
interpreted
by
the
Supreme
Court,
and
their
consistency
with
EPA's
stated
goals.
While
EPA
believes
that
Options
1
and
2
and
Alternatives
A
and
B
are
all
legally
supportable
under
the
CAA.
However,,
we
concluded
that
Option
2
best
fits
with
the
policy
goals
enunciated
by
EPA
in
the
proposal
and
re­
affirmed
here.
Thus,
EPA
has
selected
Option
2.
We
explain
below
why
Option
2
will
best
STAFF
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
9Similarly,
Alternatives
A
and
B
would
result
in
fewer
areas
being
placed
under
subpart
1.
(
See
68
FR
60060,
Table
2.
October
21,
2003).

45
accomplish
the
policy
goals
of
EPA
and
why
we
believe
it
is
consistent
with
the
CAA.

1.(
i)
Why
will
Option
2
best
accomplish
the
policy
goals
of
EPA?
One
of
EPA's
stated
goals
at
proposal
was
to
provide
flexibility
to
States
and
Tribes
on
implementation
approaches
and
control
measures
within
the
structure
of
the
CAA.
As
compared
with
the
other
alternatives
considered,
Option
2
places
more
areas
under
the
more
flexible
provisions
of
the
ActCAA
(
subpart
1),

which
will
provide
the
States
and
Tribes
with
greater
discretion
in
determining
the
mix
of
controls
needed
to
expeditiously
attain
the
8­
hour
standardNAAQS.
For
example,

Option
1
would
place
all
areas
under
subpart
2,
which
mandates
a
number
of
specific
control
measures,
thus
limiting
the
States
and
Tribes
ability
to
consider
whether
there
are
more
cost­
effectiveeffective
and
less
costly
ways
to
achieve
the
same
level
of
emission
reductions.
9
For
example,
an
area
might
be
able
to
achieve
greater
air
quality
improvement
at
less
cost
from
local
NOx
reductions
than
from
local
volatile
organic
compounds
(
VOC)
reductions
STAFF
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
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13/
04
1:
30
pm
compared
with
2/
26/
04
version
46
of
15
percent
mandated
for
certain
subpart
2
areas.

Similarly,
Alternatives
A
and
B
would
result
in
fewer
areas
being
placed
under
subpart
1.
(
See
68
FR
60060,
Table
2.

October
21,
2003)
This
will
enable
some
areas
to
meet
the
8­
hour
standardNAAQS
at
less
cost
than
under
the
other
classification
options
because
the
States
and
Tribes
will
have
greater
flexibility
in
determining
which
control
requirements
to
adopt
to
meet
the
standardNAAQS.
Because
areas
are
required
to
attain
the
standardNAAQS
as
expeditiously
as
practicable
under
both
subpart
1
and
subpart
2,
Option
2
should
not
result
in
longer
attainment
periods
than
Option
1,
with
the
exception
of
areas
significantly
affected
by
transported
pollution
(
discussed
below).

Additionally,
placing
some
areas
in
subpart
1
provides
States
and
EPA
with
greater
flexibility
to
determine
appropriate
controls
for
areas
that
would
have
difficulty
attaining
the
8­
hour
standardNAAQS
due
to
interstate
pollution
transport.
In
the
13
years
since
the
CAA
Amendments
of
1990
were
enacted
(
at
which
time,
Congress
created
subpart
2),
we
have
learned
much
about
the
longrange
transport
of
ozone
and
the
importance
of
employing
regional
controls
in
addition
to
local
controls.
Subpart
2
STAFF
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OR
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13/
04
1:
30
pm
compared
with
2/
26/
04
version
47
does
not
allow
EPA
and
the
States
to
consider
transported
pollution
in
determining
the
feasibility
and
benefits
of
mandated
controls
or
in
determining
the
appropriate
attainment
date
for
an
area.
Because
of
our
increased
understanding
of
transported
pollution
since
Congress
enacted
the
more
restrictive
provisions
of
subpart
2,
we
believe
it
makes
sense
to
adopt
an
approach
that
does
not
shift
"
gap"
areas
into
subpart
2.
In
other
words,
where
Congress
has
not
explicitly
mandated
that
areas
are
subject
to
subpart
2,
we
don't
believe
it
makes
sense
to
adopt
an
approach
that
would
shift
some
or
all
of
those
"
gap"
areas
to
subpart
2,
which
provides
significantly
less
flexibility
in
addressingfor
bringing
areas
affected
by
transported
pollution
into
attainment.
(
We
discuss
in
more
detail
the
flexibility
provided
by
subpart
1
and
how
it
better
allows
consideration
of
the
current
scientific
knowledge
regarding
ozone
formation
and
transport
in
the
section
below
discussing
why
we
place
all
of
the
"
gap"
areas
in
subpart
1.)

The
EPA
recognizes
that
the
flexibility
of
Option
2
comes
with
some
added
complexity.
One
of
EPA's
stated
goals
was
to
establish
an
approach
that
is
easy
to
understand.

While
Option
1
(
classifying
all
areas
under
subpart
2)
is
STAFF
DRAFT
 
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NOT
QUOTE,
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OR
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4/
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04
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30
pm
compared
with
2/
26/
04
version
10REVISED:
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
in
Relation
to
Re­
Opened
Comment
Period
 
Illustrative
Analysis
Based
on
2000­
2002
Data.
U.
S.
Environmental
Protection
Agency,
Office
of
Air
and
Radiation,
Office
of
Air
Quality
Planning
and
Standards.
Draft.
October
2003.
Available
at:

48
simpler,
we
believe
our
goals
regarding
flexibility
outweigh
the
simplicity
of
Option
1.

Another
of
EPA's
stated
aims
at
proposal
was
to
ensure
expeditious
but
reasonable
attainment
dates
for
the
8­
hour
standardNAAQS.
The
EPA
believes
that
Option
2
is
consistent
with
this
principle.
Compared
to
Alternatives
A
and
B,

Option
2
will
place
more
areas
in
lower
classifications
with
shorter
maximum
attainment
dates,
encouraging
expeditious
attainment.
While
some
commenters
believed
that
maximum
attainment
dates
under
Option
2
would
not
allow
enough
time
for
some
areas
to
meet
the
standard,
particularly
areas
with
the
highest
ozone
levelsNAAQS,
we
believe
that
concern
is
overstatedOption
2
provides
sufficient
time
for
most
areas
and
that
to
the
extent
some
areas
may
have
difficulty,
the
ActCAA
provides
an
avenue
for
relief,
which
is
discussed
below.

EPA
isBased
on
information
concerning
the
hypothetical
nonattainment
areas,
10,11
we
are
confident
that
under
Option
STAFF
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OR
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4/
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04
1:
30
pm
compared
with
2/
26/
04
version
http://
www.
epa.
gov/
ttn/
naaqs/
ozone,
o3imp8hr/.

11Qualitative
Assessment
of
Alternative
Coverage
and
Classification
Options.
First
Addendum
to
"
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
Innovative
Strategies
and
Economics
Group,
Air
Quality
Strategies
and
Standards
Division,
Office
of
Air
Quality
Planning
and
Standards,
Office
of
Air
and
Radiation,
U.
S.
Environmental
Protection
Agency,
Research
Triangle
Park,
North
Carolina.
April
8,
2004.

49
2
most
areas
currently
exceeding
the
8­
hour
standardNAAQS
will
be
able
to
meet
the
standardNAAQS
within
the
time
limits
provided
for
eachtheir
classification,
taking
into
consideration
projected
improvements
in
air
quality
under
current
programs
and
the
potential
for
adoption
of
further
national,
regional
and
local
measures.
Our
repeated
experience
over
the
past
three
decades
is
that
market
forces
stimulated
by
the
Clean
Air
Act
have
repeatedly
led
to
technological
advances,
making
it
possible
over
time
to
achieve
greater
emissions
reductions
at
lower
costs
than
originally
anticipated.
9
We
do
note
that
for
the
more
EPA
notes
that
there
are
uncertainties
at
this
time
about
the
time
periods
needed
for
attainment,
especially
for
the
limited
number
of
areas
needingn
eeding
substantial
emissions
reductions
to
attain.
For
example,
it
is
STAFF
DRAFT
 
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NOT
QUOTE,
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OR
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4/
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04
1:
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pm
compared
with
2/
26/
04
version
12For
instance,
the
cost
of
selective
catalytic
reduction
(
SCR)
catalyst
(
for
control
of
NOx)
have
gone
from
$
11,000
­
$
14,000/
cubic
meter
in
1998
to
$
3,500
­
$
5,500/
cubic
meter
currently.
Advancements
in
low
NOx
burner
(
LNB)
technology
and
staged
combustion
have
resulted
in
sharp
NOx
reductions
at
much
lower
costs.
New
burner
technologies
have
lowered
NOx
emissions
reductions
by
as
much
as
50%
50
percent
from
previous
designs.
Costs
have
50
difficult
to
determine
when
an
area
will
be
able
to
attain
the
standard
in
advance
of
State
development
of
attainment
plans
when
such
an
area
will
be
able
to
attain
the
NAAQS.

These
plans
are
based
on
high­
resolution
local
air
quality
modeling,
refined
emissions
inventories
and
detailed
analyses
of
the
impacts
and
costs
of
potential
local
control
measures.

Another
source
of
uncertainty
is
that
ourfactor
is
that
new
methods
of
achieving
cost
effective
emissions
reductions
are
continuing
to
be
developed.
Our
repeated
experience
over
the
past
three
decades
is
that
market
forces
stimulated
by
the
CAA
have
repeatedly
led
to
technological
advances
and
learning
by
doingthrough
experience,
making
it
possible
over
time
to
achieve
greater
emissions
reductions
at
lower
costs
than
originally
anticipated.
Thus,
there
is
uncertainty
at
this
time
concerning
when
areas
needing
substantial
emissions
reductions
will
be
able
to
attain.
However,
if
a
State
finds
during12
STAFF
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
decreased
from
$
25­
38/
kW
in
1993
to
about
$
15/
kW
in
2003.
Memorandum
of
October
10,
2003
from
Jim
Staudt,
Andover
Technology
Partners,
Re:
Prime
Contract
68­
W­
03­
028;
Subcontract
Agreement
23BL00114;
ATP
Contract
#:
C­
03­
007.

51
Other
uncertainties
reflect
use
of
the
most
recent
three
years
of
air
quality
data
for
the
actual
designations
and
claslsifications,
and
use
of
more
refined
and
areaspecific
modeling
methodologies
for
projecting
future
ozone
concentrations.

Regarding
the
use
of
later
air
quality
data,
we
have
interpreted
the
CAA's
requirements
under
section
181
such
that
we
must
classify
nonattainment
areas
that
are
covered
under
subpart
2
based
on
the
most
recent
ozone
design
values,
which
are
based
on
three
years
of
data.
Because
of
year­
to­
year
variations
in
meteorology,
this
"
snapshot
in
time"
may
not
be
representative
of
the
normal
magnitude
of
problems
that
a
number
of
areas
face.

Regarding
modeling
methodologies,
national/
regional
modeling
may
predict
that
a
number
of
moderate
areas
will
not
attain
the
standard
by
the
maximum
attainment
date
required
for
an
area's
classification.
However,
when
a
State
using
photochemical
grid
modeling
predicts
concentrations
that
are
above
the
NAAQS,
an
optional
weight
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pm
compared
with
2/
26/
04
version
52
of
evidence
determination
which
incorporates,
but
is
not
limited
to,
other
analyses,
such
as
air
quality
and
emissions
trends,
may
be
used
to
address
uncertainty
inherent
in
the
application
of
photochemical
grid
models.

(
Issues
related
to
implementation
of
the
standard
­­

including
issues
on
the
attainment
planning
process
that
feasible
controls
are
not
available
anddemonstration
and
modeling
­­
will
be
addressed
in
the
second
phase
of
rulemaking.)

We
are
aware
that
some
8­
hour
nonattainment
areas
in
the
Eastern
U.
S.
that
are
classified
moderate
using
2001­

2003
air
quality
data
will
have
difficulty
attaining
the
NAAQS
by
the
attainment
date
of
2010
(
6
years
after
designation).
We
encourage
States
to
request
reclassification
upward
where
the
State
finds
that
an
area
may
need
more
time
to
attain
the
8­
hour
standard
than
their
classification
would
permit,
the
statute
provides
a
remedy.

.
In
addition,
EPA
will
consider
bumping
up
areas
subject
to
the
five
percent
provision
of
section
181(
a)(
4)

of
the
CAA
on
our
own
initiative
where
there
is
evidence
that
an
area
is
unlikely
to
attain
within
the
period
allowed
by
their
classification.
The
rulemaking
that
sets
forth
designations
and
classifications
for
the
8­
hour
standard
STAFF
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4/
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04
1:
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pm
compared
with
2/
26/
04
version
53
discusses
criteria
we
would
use
if
we
take
this
action.

If
a
State
finds
during
the
attainment
planning
process
that
feasible
controls
are
not
available
and
an
area
may
need
more
time
to
attain
the
8­
hour
NAAQS
than
their
classification
would
permit,
the
statute
provides
a
remedy.

A
State
can
receive
more
time
to
attain
by
voluntarily
submitting
a
request
to
EPA
for
a
higher
classification.

Section
181(
b)(
3)
of
the
CAA
directs
EPA
to
grant
a
State's
request,
for
a
higher
classification
and
to
publish
notice
of
the
request
and
EPA's
approval.
Although
the
area
would
have
to
meet
the
additional
requirements
for
the
higher
classification,
the
same
would
be
true
if
the
area
had
been
initially
classified
higher,
under
a
system
that
placed
more
areas
in
higher
classifications.
Voluntary
reclassification
may
be
an
attractive
option
if
the
State
is
unable
to
develop
a
plan
that
demonstrates
an
area
will
attain
within
the
time
period
for
its
assigned
classification.
Some
commenters
were
concerned
that
it
may
be
difficult
to
develop
support
for
a
voluntary
reclassification
among
interested
parties.
However,
we
believe
such
dialogue
will
lead
the
State
to
undertake
a
thorough
analysis
and
balancing
of
how
expeditiously
the
area
can
attain
the
standardNAAQS
and
the
cost
of
the
measures
needed
for
STAFF
DRAFT
 
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NOT
QUOTE,
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OR
DISTRIBUTE
 
4/
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04
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30
pm
compared
with
2/
26/
04
version
54
attainment
as
these
issues
will
be
foremost
in
the
stakeholders
minds.

stakeholders'
minds.

We
are
aware
that
some
8­
hour
nonattainment
areas
in
the
Eastern
US
that
are
classified
moderate
using
2001­
2003
air
quality
data
will
have
difficulty
attaining
the
NAAQS
by
the
attainment
date
of
2010
(
6
years
after
designation).
We
encourage
States
to
request
reclassification
upward
where
the
State
finds
that
an
area
may
need
more
time
to
attain
than
their
classification
would
permit.
In
addition,
EPA
will
consider
bumping
up
areas
subject
to
the
five
percent
provision
of
section
181(
a)(
4)
of
the
CAA
on
our
own
initiative
where
there
is
evidence
that
an
area
is
unlikely
to
attain
within
the
period
allowed
by
their
classification.

The
rulemaking
that
sets
forth
designations
and
classifications
for
the
8­
hour
standard
discusses
criteria
we
would
use
if
we
take
this
action.

The
EPA
prefers
Option
2
rather
than
the
alternatives
that
place
more
areas
into
higher
classifications
because
in
addition
to
providing
a
longer
maximum
time
frametimeframe
in
which
to
attain,
the
higher
classifications
impose
additional
statutorily
­
mandated
requirements.
While
the
additional
requirements
might
be
appropriate
for
areas
that
STAFF
DRAFT
 
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QUOTE,
CITE
OR
DISTRIBUTE
 
4/
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04
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30
pm
compared
with
2/
26/
04
version
13REVISED:
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
in
Relation
to
Re­
Opened
Comment
Period
­­
Illustrative
Analysis
Based
on
2000­
2002
Data.
U.
S.
Environmental
Protection
Agency,
Office
of
Air
and
Radiation,
Office
of
Air
Quality
Planning
and
Standards.
Draft.
October
2003.
Available
at:
http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
o3imp8hr/.

55
truly
need
the
longer
period
to
attain,
it
is
likely
that
a
number
of
areas
that
do
not
need
a
longer
period
to
attain
would
also
be
placed
in
a
higher
classification
under
these
alternatives.
For
example,
several
areas
that
would
be
covered
by
subpart
1
under
oOption
2,
and
which
EPA
projects
are
likely
to
attain
the
8­
hour
levels
NAAQS
within
3
years
based
on
existing
programs,
would
be
classified
as
moderate
areas
under
Alternative
B.
13
In
those
areas,
the
additional
moderate­
area
control
requirements
are
unlikely
to
be
needed
for
expeditious
attainment.

The
EPA
believes
that
under
any
of
the
classification
approaches
that
were
considered
thatthere
will
be
areas
that
are
"
misclassified"
 
i.
e.,
the
classification
will
not
reflect
the
time
the
area
needs
to
attain
and
the
level
of
controls
needed.
The
statute
does
not
allow
EPA
to
reclassify
an
area
to
a
lower
classification,
except
as
provided
in
section
181(
a)(
4)
regarding
an
initial
5
percent
STAFF
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OR
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pm
compared
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2/
26/
04
version
56
adjustment.
It
does,
however,
as
described
above,
provide
continuing
authority
for
areas
to
be
reclassified
to
a
higher
classification.
For
that
reason,
EPA
believes
the
better
approach
is
to
use
a
scheme
that
may
classify
areas
too
low
and
areas
that
need
more
time
to
attain
can
use
the
voluntary
reclassification
provision
of
the
ActCAA
to
obtain
the
appropriate
classification.

(
ii)
2.
How
is
Option
2
Cconsistent
with
the
CAA
as
Interpreted
by
the
Supreme
Court?
The
legal
framework
for
Option
2
is
described
in
detail
in
the
June
2,
2003
proposed
rule.
(
68
FR
32813).
In
short,
EPA
relies
on
the
Supreme
Court's
recognition
that
there
is
a
gap
in
the
statute
with
respect
to
areas
"
whose
ozone
levels
are
greater
than
the
new
standard
(
and
thus
not
attaining)
but
less
than
the
approximation
of
the
old
standard
codified
by
Table
1."
Thus,
for
areas
with
a
1­
hour
design
value
above
the
level
codified
in
Table
1,
EPA
interprets
the
Supreme
Court
as
determining
that
the
CAA
mandates
that
they
be
classified
under
subpart
2.
For
all
other
areas,
the
Court
indicates
there
is
a
gap
and
EPA
must
determine
a
reasonable
approach
for
classifying
these
areas.
Option
2
is
consistent
with
the
CAA
as
interpreted
by
the
Supreme
Court
because
it
places
all
areas
with
a
1­
hour
design
value
of
STAFF
DRAFT
 
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OR
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4/
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04
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30
pm
compared
with
2/
26/
04
version
14These
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
standardNAAQS
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).

57
0.121
ppm
or
greater
in
subpart
2
and,
for
the
reasons
provided
below,
EPA's
decision
to
classify
all
"
gap"
areas
under
subpart
1
is
reasonable.

As
we
noted
in
the
June
2,
2003
proposal
(
68
FR
32814),

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
1.14
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.
This
decision
is
reasonable
because
subpart
2
was
developed
by
Congress
13
years
ago
and
our
scientific
understanding
of
the
causes
of
ozone
pollution
and
the
STAFF
DRAFT
 
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04
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pm
compared
with
2/
26/
04
version
58
transport
of
ozone
and
its
precursors
has
significantly
advanced.
In
addition,
subpart
1
was
developed
at
the
time
that
the
1­
hour
standardNAAQS
was
the
standardNAAQS
of
concern.
At
that
time,
many
areas
had
a
long­
term
ozone
problem
that
they
had
been
unable
to
solve
under
the
more
flexible
pre­
1990
provisions
of
the
CAA.
The
8­
hour
standardNAAQS
is
different
in
many
ways
from
the
1­
hour
standard
and,
mNAAQS.
Moreover,
the
areas
that
will
be
subject
to
subpart
1
are
primarily
areas
that
have
not
had
the
long­
term
pollution
problem
that
Congress
was
concerned
about
when
it
created
subpart
2.

Congress
enacted
subpart
2
with
the
understanding
that
all
areas
(
except
marginal
areas,
for
which
no
newfew,
if
any,
controls
for
existing
sources
were
required)
would
have
to
employ
additional
local
controls
to
meet
the
1­
hour
ozone
standardNAAQS
in
a
timely
fashion.
Since
then,
many
local,

regional
and
national
control
measures
have
been
implemented,
our
understanding
of
the
importance
of
interstate
pollution
transport
has
improved,
and
we
have
promulgated
interstate
NOx
transport
rules
to
address
transported
pollution
(
the
NOx
SIP
Ccall,
October
27,
1998,

63
FR
53756).
Today,
regional
modeling
by
EPA
indicates
that
the
majority
of
potential
8­
hour
nonattainment
areas
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
15See
also:
Background
Information
Document,
Hypothetical
Nonattainment
Areas
for
Purposes
of
Understanding
the
EPA
Proposed
Rule
for
Implementing
he
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/.

59
that
fall
into
the
gap
will
attain
the
8­
hour
standardNAAQS
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.

Some
gap
areas
would
be
classified
as
moderate
areas
if
placed
under
subpart
2.
The
EPA
regional
modeling
shows
that
many
of
these
are
projected
to
attain
by
2007
through
existing
regional
or
national
measures.
(
The
proposal
provides
estimates
of
the
numbers
of
areas,
see
68
FR
32814,

col.
3).
15)
If
these
areas
were
to
be
classified
as
moderate,
they
would
be
required
to
implement
statutorily
specified
controls
for
moderate
areas.
Using
our
discretion
to
regulate
gap
areas
under
subpart
1
is
a
way
to
avoid
requiring
unnecessaryWe
believe
it
is
reasonable
to
adopt
an
approach
that
would
not
mandate
new
local
controls
in
areas
projected
to
meet
the
standard
in
the
near
term.
NAAQS
within
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
16For
instance,
the
range
of
1­
hour
ozone
design
values
of
the
hypothetical
subpart
1
areas
is
from
0.101
ppm
to
0.120
ppm,
with
an
average
of
0.111
ppm.
The
range
of
1­
hour
design
values
of
subpart
2
areas
is
from
0.122
ppm
to
0.175
ppm
with
an
average
of
0.133
ppm.
See
docket
document
OAR­
2003­
0079­
0573
(
REVISED:
Background
Information
Document,
Hypothetical
Nonattainment
Areas
for
Purposes
of
Understanding
the
EPA
Proposed
Rule
for
Implementing
the
8­
hour
Ozone
NAAQS
in
Relation
to
Re­
Opened
Comment
Period)
for
the
data
used
for
these
statistics.

60
3
years
through
emissions
reductions
required
by
existing
programs.

Some
commenters
contended
that
placing
these
areas
isn
subpart
1
created
an
"
equity"
problem
because
other
areas
with
a
similar
8­
hour
ozone
design
value
would
be
placed
under
subpart
2.
The
EPA
considered
this
issue
when
it
reopened
the
comment
period
and
set
forth
alternatives
that
would
have
placed
areas
with
similar
8­
hour
design
values
in
the
same
classification.
While
in
one
light
such
a
situation
may
be
perceived
as
inequitable,
EPA
believes
that
this
is
generally
not
the
case.
As
an
initial
matter,
EPA
notes
that
the
areas
that
fall
under
subpart
2
are
areas
with
higher
ozone
1­
hour
peak
concentrations
 
i.
e.,
areas
with
levels
above
the
1­
hour
standardNAAQS.
16
Thus,
the
areas
classified
under
subpart
1
do
not
have
the
same
type
of
ozone
problem
as
those
classified
under
subpart
2
and
the
same
control
programs
may
not
be
needed
for
both
types
of
STAFF
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4/
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04
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pm
compared
with
2/
26/
04
version
61
areas.
We
note
that
the
areas
that
will
be
classified
under
subpart
2
are
the
type
of
area
that
Congress
considered
at
the
time
that
it
developed
subpart
2
and
it
is
more
likely
that
subpart
2
will
provide
benefits
for
these
areas.
An
advantage
of
Alternatives
A
and
B
was
that
they
avoided
or
reduced
equity
concerns
raised
by
some
commenters
with
option
2.
Regardless,
we
believe
that
equity
considerations
should
not
override
other
considerations
in
determining
how
to
best
help
areas
attain
the
8­
hour
standard.
Congress
mandated
that
areas
with
ozone
levels
above
the
level
0.121
ppm
be
classified
under
subpart
2.
However,
Congress
did
not
specifically
address
the
areas
that
fall
into
the
"
gap."

Where
Congress
has
left
to
EPA's
discretion
how
to
classify
areas,
we
believe
that
factors
we
have
considered
above
outweigh
any
desire
for
"
equity."
We
also
note
that
in
the
proposed
rule,
we
proposed
several
ways
to
make
the
obligations
under
subpart
1
similar
to
those
under
subpart
2
for
areas
with
a
similar
ozone
problem.
Thus,
there
are
other
means
to
address
the
equity
issueany
inequities
and
EPA
will
do
so
in
Phase
2
as
it
considers
the
control
requirements
for
subpart
1
areas.

Most
of
the
gap
areas
would
be
classified
as
marginal
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
17Background
Information
Document,
Hypothetical
Nonattainment
Areas
for
Purposes
of
Understanding
the
EPA
Proposed
Rule
for
Implementing
hethe
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/.

62
if
classified
under
subpart
2
by
8­
hour
design
value.
17
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
distinction
in
regulatory
category
may
make
no
practical
difference
for
many
of
these
areas.
However,
placing
these
areas
under
subpart
1
provides
States
and
EPA
with
greater
discretion
to
handle
implementation
difficulties
that
might
arise
in
some
of
these
areas.
For
example,
a
gap
area
might
be
unable
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
would
call
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
STAFF
DRAFT
 
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compared
with
2/
26/
04
version
18
Concern
about
transport
is
supported
by
EPA's
modeling
for
the
Interstate
Air
Quality
Rule
(
69
FR
4566,
January
30,
2004);
EPA
has
proposed
to
find
that
in
the
absence
of
further
controls,
25
sStates
would
significantly
contribute
to
downwind
nonattainment
in
other
sStates
in
2010,
even
after
the
NOx
SIP
cCall
has
been
in
full
effect.
As
a
result,
EPA
has
proposed
to
require
the
25
sStates
to
reduce
their
emissions
of
NOx
to
reduce
interstate
transport,
with
the
reductions
to
be
achieved
by
2010
and
2015.

63
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
that
interstate
or
intrastate
pollution
transport
may
make
timely
attainment
difficult
for
some
8­
hour
areas
with
near­
term
attainment
deadlines
(
e.
g.,
2007).
Subpart
1
would
provide
States
and
EPA
with
more
flexibility
on
the
remedy
in
any
such
cases,
while
still
requiring
that
subpart
1
areas
adopt
all
reasonably
available
control
measures
to
attain
as
expeditiously
as
practicable.
18
Some
may
perceive
the
placement
of
gap
areas
in
subpart
1
(
based
on
their
1­
hour
design
values)
as
inequitable
compared
to
placing
other
areas
that
have
similar
8­
hour
design
values
in
subpart
2
(
based
on
their
1­
hour
design
values).
We
do
not
believe,

however,
that
it
makes
sense
to
limit
our
authority
by
placing
gap
areas
in
subpart
2
even
though
they
may
have
8­
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
19These
include
trying
to
meet
the
following
objectives
as
discussed
above:
(
a)
providing
flexibility
in
determining
the
most
effective
control;
(
b)
achieving
attainment
at
costs
lower
than
those
for
strategies
with
prescribed
measures;
(
c)
providing
flexibility
in
addressing
nonattainment
areas
that
are
have
difficulty
attaining
due
to
transport;
and
(
d)
ensuring
expeditious
but
reasonable
attainment
dates.

64
hour
design
values
similar
to
areas
that
will
be
classified
under
subpart
2.

An
advantage
of
Alternatives
A
and
B
was
that
they
avoided
or
reduced
equity
concerns
raised
by
some
commenters
with
Option
2.
Regardless,
we
believe
that
equity
considerations
should
not
override
other
considerations
in
determining
how
to
best
help
areas
attain
the
8­
hour
NAAQS.

Congress
mandated
that
areas
with
1­
hour
ozone
levels
above
the
level
0.121
ppm
be
classified
under
subpart
2.
However,

Congress
did
not
specifically
address
the
areas
that
fall
into
the
"
gap."
Where
Congress
has
left
to
EPA's
discretion
how
to
classify
areas,
we
believe
that
factors
we
have
considered
above19
outweigh
any
desire
for
"
equity."

Additionally,
we
note
that
since
1990
we
have
learned
that
NOx
control
is
more
important
for
many
areas
than
was
recognized
at
the
time
of
the
1990
CAA
Amendments.
Some
mandatory
measures
in
subpart
2,
such
as
the
15%
15
percent
VOC
reduction
required
for
certain
areas,
focus
on
VOC
STAFF
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4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
65
reductions.
In
some
areas
it
will
be
more
effective
and
less
costly
to
reduce
ozone
through
a
strategy
that
places
more
emphasis
on
NOx
than
VOC,
and
a
15%
15
percent
VOC
reduction
may
not
be
part
of
an
optimal
strategy.
Subpart
1
would
allow
such
areas
greater
flexibility
on
choice
of
controls.

In
summary,
Option
2
meets
the
policy
goals
EPA
specified
in
the
proposal
 
most
importantly,
providing
flexibility,
and
encouraging
expeditious
attainment
of
the
NAAQS
in
 
a
waynd
is
consistent
with
the
Supreme
Court's
ruling.
Commenters
were
divided
on
the
merits
of
different
classification
approaches
and
no
single
option
appealed
to
a
large
majority
of
stakeholders.
On
balance,
EPA
determined
that
oOption
2
was
preferable
to
the
other
options
identified.
Thus,
EPA
is
adopting
Option
2.

3.
Comments
and
Responses
responses
This
preamble
briefly
summarizes
major
comments
on
each
portion
of
the
Phase
1
rule
and
generally
provides
a
brief
response
to
those
comments.
The
response
to
comment
(
RTC)

document
presents
a
more
complete
description
of
comments
received
and
a
more
complete
response
to
those
comments.

COMMENT:
The
commenters
were
split
inon
whether
they
STAFF
DRAFT
 
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NOT
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OR
DISTRIBUTE
 
4/
13/
04
1:
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pm
compared
with
2/
26/
04
version
66
preferred
Option
1,
under
which
all
areas
are
classified
under
subpart
2
of
the
ActCAA,
or
Option
2,
under
which
8­
hour
nonattainment
areas
with
1­
hour
ozone
design
values
of
0.121
ppm
or
greater
at
the
time
of
designation
are
classified
under
subpart
2
and
all
other
areas
8­
hour
nonattainment
areas
are
classified
under
subpart
1.
Those
who
supported
Option
2,
indicated
it
made
better
policy
sense,
was
more
flexible
and
more
appropriate
than
Option
1,

cost
less,
was
better
integrated
with
other
regulations,

provided
more
reasonable
attainment
dates,
and
was
more
consistent
with
the
Supreme
Court
decision.
A
number
of
commenters
supported
Option
2,
but
recommended
variations
of
that
approach.
These
commenters
raised
one
(
or
both)
of
two
concerns
with
the
approach
recommended
by
EPA:
(
1)
since
most
of
the
areas
fall
into
the
lower
classifications
with
short­
term
attainment
dates,
it
does
not
provide
sufficient
time
for
many
areas
to
attain;
and
(
2)
since
some
areas
classified
under
subpart
1
will
have
a
more
severe
8­
hour
ozone
problem
than
some
areas
classified
under
subpart
2,

Option
2
is
or
may
be
perceived
as
inequitable.
In
addition,
several
commenters
recommended
options
different
than
either
of
the
options
proposed
by
EPA.

Those
who
favored
Option
1
argued
that
it
was
more
STAFF
DRAFT
 
DO
NOT
QUOTE,
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OR
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4/
13/
04
1:
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pm
compared
with
2/
26/
04
version
67
consistent
with
the
Supreme
Court's
decision
and
the
CAA,

that
Subpart
2
was
more
likely
to
produce
progress
and
faster
attainment,
was
more
consistent
with
Subpart
2
of
the
CAA,
was
more
equitable
and
fair,
and
that
Subpart
1
had
other
problems
that
made
it
less
desirable.

In
addition,
we
received
comments
on
the
translation
of
section
181'
s
Table
1,
with
comments
supporting
our
translation
and
those
that
were
concerned
or
that
offered
other
alternatives.
Also,
sSome
commenters
claimed
both
Options
1
and
2
were
flawed,
based
on
concerns
about
transport
and
concerns
related
to
the
Supreme
Court
decision.
We
received
comments
on
the
translation
of
Section
181'
s
Table
1.
These
comments
addressed
the
concerns
such
as:
the
proposed
translation
could
result
in
attainment
deadlines
which
are
unrealistic
and
unachievable;

it
would
be
more
logical
and
more
consistent
with
the
nature
of
the
standard
being
implemented
­
the
8­
hour
standard
­

for
EPA
to
translate
the
Table
1
thresholds
into
approximate
8­
hour
equivalents;
and
the
starting
threshold
should
be
different
from
what
EPA
proposed.
Some
commenters
offered
other
alternatives
for
the
translation
and/
or
the
starting
threshold.

There
were
several
specific
comments
related
to
the
STAFF
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OR
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4/
13/
04
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pm
compared
with
2/
26/
04
version
68
draft
regulatory
text,
and
also
a
number
of
comments
on
the
October
21,
2003
notice
that
reopened
the
public
comment
period.

RESPONSE:
.

Our
rationale
for
adopting
Option
2
as
the
final
classification
approach
is
presented
above.
Below
is
a
brief
synopsis
of
the
response
to
major
comments.

RESPONSE
TO
COMMENTS
SUPPORTING
OPTION
2:
We
generally
agree
with
these
comments
and
the
final
rule
incorporates
Option
2.

RESPONSE
TO
COMMENTS
THAT
SUPPORTED
OPTION
2,
BUT
RECOMMENDING
VARIATIONS
THAT
WOULD
PROVIDE
MORE
TIME
FOR
ATTAINMENT:
RESPONSE:
Based
on
our
projections
of
future
air
quality
based
on
regional
modeling
and
experience
with
ozone
control
in
the
past,
we
believe
that
it
is
quite
plausible
that
States
may
find
during
the
attainment
planning
process
that
a
limited
number
of
areas
may
need
more
time
to
attain
the
8­
hour
standardNAAQS
than
their
classification
would
permit.
However,
the
statute
provides
a
remedy
for
this
situation.
A
State
can
receive
more
time
to
attain
by
voluntarily
submitting
a
request
to
EPA
for
a
higher
classification
 
including
the
classification
they
had
under
the
1­
hour
standardNAAQS.
The
ActCAA
(
Section
181(
b)(
3))
STAFF
DRAFT
 
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NOT
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OR
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4/
13/
04
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pm
compared
with
2/
26/
04
version
69
directs
EPA
to
grant
a
State's
request,
and
to
publish
notice
of
the
request
and
EPA's
approval.
Although
the
area
would
have
to
meet
the
additional
requirements
for
the
higher
classification,
the
same
would
be
true
if
the
area
had
been
initially
classified
higher,
under
a
classification
system
that
placed
more
areas
in
higher
classifications.

The
EPA
recognizes
that
voluntary
reclassification
is
a
legitimate
option
under
the
CAA,
and
may
be
an
attractive
option
if
the
State
is
unable
to
develop
a
plan
that
demonstrates
an
area
will
attain
within
the
time
period
for
its
assigned
classification.
As
noted
in
the
October
21,

2003
notice
reopening
the
comment
period,
we
considered
other
classification
approaches,
including
those
suggested
by
commenters
and
EPA's
Alternatives
A
and
B,
which
would
provide
more
areas
with
later
attainment
dates
by
placing
more
areas
in
higher
classifications.
However,
EPA
found
that
alternatives
that
provided
more
time
to
the
areas
with
the
worst
ozone
problems
also
provided
higher
classifications,
accompanied
by
additional
statutorily
­

mandated
requirements,
for
areas
that
EPA
believes
may
attain
by
the
2007
ozone
season
based
on
projected
emissions
reductions
from
existing
programs.
The
result
would
be
to
increase
the
cost
of
meeting
the
standard.
STAFF
DRAFT
 
DO
NOT
QUOTE,
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OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
70
Under
these
approaches,
these
areas
would
be
subject
to
controls
that
may
not
be
necessary
for
attainment.
The
EPA
believes
it
is
more
appropriate
to
use
the
statutory
mechanism
for
a
voluntary
bump
up
for
areas
classified
"
too
low"
than
to
mandate
controls
for
areas
based
on
a
classification
that
is
"
too
high."

RESPONSE
TO
COMMENTS
THAT
NOTED
THAT
OPTION
2
MAY
BE
PERCEIVED
AS
INEQUITABLE:
RESPONSE:
A
number
of
other
commenters
dismissed
the
characterization
of
Option
2
as
being
inequitable.
The
EPA's
response
to
the
equity
issue
is
discussed
above.

RESPONSE
TO
COMMENTERS
THAT
RECOMMENDED
OPTIONS
DIFFERENT
THAN
THE
OPTIONS
PROPOSED
BY
EPA:
RESPONSE:
Certain
commenters
suggested
that
areas
still
not
meeting
the
1­
hour
standardNAAQS
should
continue
to
implement
the
1­
hour
standardNAAQS
under
subpart
2,
but
once
the
standardNAAQS
is
attained
(
or
all
mandated
controls
were
implemented)
the
area
would
implement
the
8­
hour
standardNAAQS
under
subpart
1.
All
areas
attaining
the
1­
hour
standardNAAQS
would
begin
implementing
the
8­
hour
standardNAAQS
under
subpart
1.

As
explained
more
fully
in
the
response
to
comments
(
RTC)
document,
EPA
does
not
believe
this
approach
is
consistent
with
the
CAA
or
the
Supreme
Court's
decision
on
STAFF
DRAFT
 
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OR
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13/
04
1:
30
pm
compared
with
2/
26/
04
version
71
implementation
of
a
revised
ozone
standardNAAQS.
The
issue
before
the
Court
was
whether
the
classification
provisions
of
subpart
2
apply
for
purposes
of
implementing
the
revised
8­
hour
ozone
standardNAAQS.
The
Court
unequivocally
stated
that
those
provisions
do
apply
for
purposes
of
implementing
the
8­
hour
ozone
NAAQS.
__
531
US
___
482­
84.
We
believe
that
any
option
that
does
not
provide
a
role
for
the
subpart
2
classification
structure
in
implementing
the
8­
hour
NAAQS
is
not
consistent
with
the
Court's
interpretation
of
the
CAA.

Commenters
suggested
several
other
options,
some
of
which
were
described
in
our
notice
reopening
the
public
comment
period.
Under
one
of
these
options,
we
would
reduce
the
range
for
the
subpart
2
classifications,
which
would
have
classified
more
subpart
2
areas
in
higher
classifications,
thereby
extending
the
maximum
period
for
attainment.
We
have
addressed
the
problems
associated
with
that
kind
of
classification
structure
above.
Under
another
of
these
options,
the
classification
structure
would
have
relied
solely
on
8­
hour
ozone
design
values.
This
approach
was
a
variant
of
Option
2
in
which
all
areas
with
8­
hour
design
value
of
less
than
a
value
that
is
equivalent
to
the
1­
hour
value
of
0.121
ppm
would
be
covered
by
subpart
1.
STAFF
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04
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pm
compared
with
2/
26/
04
version
72
This
option
has
the
opposite
effect
of
the
one
in
which
the
range
of
concentrations
is
reduced,
namely
that
more
areas
would
have
been
placed
in
lower
classifications,
increasing
the
number
of
areas
for
which
the
initial
classification
would
not
provide
sufficient
time
to
attain.

The
EPA's
assessment
of
these
and
other
options
is
included
in
the
response
to
commentsRTC
document.

RESPONSE
TO
COMMENTS
THAT
FAVORED
OPTION
1
AND
ARGUED
THAT
IT
WAS
MORE
CONSISTENT
WITH
THE
COURT
DECISION
AND
CLEAN
AIR
ACT:
RESPONSETHE
CAA:
We
believe
Option
2
is
a
reasonable
method
for
addressing
the
gaps
that
the
Supreme
Court
recognized
in
the
CAA
by
providing.
Option
2
provides
more
flexibility
than
Option
1
to
States
and
Tribes
to
design
strategies
to
meet
the
8­
hour
ozone
standardNAAQS
in
the
most
effective
and
least
costly
way
considering
local
circumstances,
while
requiring
and
providing
incentives
for
expeditious
attainment
of
the
health­
based
standardNAAQS.

Since
Option
1
would
require
all
8­
hour
nonattainment
areas
to
be
covered
under
subpart
2
with
its
set
of
prescriptive
control
measures,
it
would
generally
cost
more
but
would
not
require
attainment
any
more
expeditiously
than
Option
2.

Both
subpart
1
and
2
require
attainment
dates
"
as
expeditious
as
practicable"
regardless
of
the
maximum
STAFF
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13/
04
1:
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pm
compared
with
2/
26/
04
version
73
attainment
dates
specified
in
the
ActCAA.

We
also
believe
that
Option
2
is
consistent
both
with
the
ActCAA
and
the
Supreme
Court's
decision
in
Whitman
as
described
above
and
in
the
June
2,
2003
proposed
rule.
(
68
FR
32813).
In
short,
EPA
relies
on
the
Supreme
Court's
recognition
that
there
is
a
gap
in
the
statute
with
respect
to
areas
"
whose
ozone
levels
are
greater
than
the
new
standard
(
and
thus
not
attaining)
but
less
than
the
approximation
of
the
old
standard
codified
by
Table
1."

Thus,
for
areas
with
a
1­
hour
design
value
above
the
level
codified
in
Table
1,
EPA
interprets
the
Supreme
Court
as
determining
that
the
CAA
mandates
that
they
be
classified
under
subpart
2.
For
all
other
areas,
the
Court
indicates
there
is
a
gap
and
EPA
must
determine
a
reasonable
approach.

For
the
policy
reasons
specified
above,
in
the
RTC
and
provided
in
the
preamble
to
the
proposed
rule
(
68
FR
32814­
15),
EPA
believes
it
is
reasonable
to
address
these
"
gap"
areas
under
subpart
1.

RESPONSE
TO
COMMENTS
ASSERTING
THAT
EPA
DOES
NOT
HAVE
AUTHORITY
TO
MODIFY
TABLE
1
TO
REFLECT
8­
HOUR
OZONE
VALUES.:

RESPONSE:
We
disagree
with
those
commenters
who
claim
EPA
does
not
have
authority
to
modify
Table
1
in
section
181(
a)

to
reflect
8­
hour
design
values.
We
acknowledge
that
EPA
is
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
20Based
on
data
from:
REVISED:
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
in
Relation
to
Re­
Opened
Comment
Period
­­
Illustrative
Analysis
Based
on
2000­
2002
Data.
U.
S.
Environmental
Protection
Agency,
Office
of
Air
and
Radiation,
Office
of
Air
Quality
Planning
and
Standards.
Draft.
October
2003.

74
applying
the
statute
other
than
in
the
way
it
is
written.

We
believe
we
have
authority
to
do
so
because
to
apply
it
as
written
would
produce
"
absurdabsurd
results."
In
enacting
the
classification
structure
in
subpart
2,
Congress
linked
the
severity
of
an
area's
air
quality
problem
with
the
time
needed
to
attain
and
the
stringency
of
the
controls
that
an
area
would
be
required
to
adopt.
Thus,
areas
with
a
more
significant
air
quality
problem
were
granted
more
time
to
attain
the
standardNAAQS,
but
were
also
subject
to
more
stringent
controls.
If
we
applied
Table
1,
as
written,
for
purposes
of
the
8­
hour
standardNAAQS,
the
classification
scheme
would
not
be
related
to
the
severity
of
the
area's
8­

hour
ozone
problem.
Thus,
you
could
have
an
area
with
a
more
significant
If
1­
hour
values
were
used
to
classify
8­
hour
nonattainment
areas
based
solely
on
Table
1
as
presented
in
section
181
of
the
CAA,
there
would
be
2
serious
areas,
9
moderate
areas,
and
26
marginal
areas.
20
Based
on
EPA's
STAFF
DRAFT
 
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QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
Available
at:
http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
o3imp8hr/.

75
modeling
projections
of
future
ozone
levels
and
past
experience
working
with
states
on
ozone
SIPs,
EPA
believes
it
is
clear
that
most
of
the
areas
that
would
be
marginal
if
classified
by
1­
hour
design
value
would
fail
to
attain
the
8­
hour
standard
without
additional
local
controls
by
the
spring
2007
attainment
date
for
marginal
areas.
These
include
major
cities
with
elevated
8­
hour
ozone
levels
such
as
Chicago
and
Dallas­
Fort
Worth.
In
fact,
over
a
quarter
of
these
areas
that
would
be
marginal
if
classified
by
1­

hour
design
values
were
not
projected
to
attain
the
8­
hour
NAAQS
without
additional
local
controls
even
by
2010.
Thus,

for
many
areas,
classifying
by
1­
hour
design
value
would
not
reflect
the
severity
of
their
8­
hour
ozone
problem
having
a
lower
classification
than
an
area
with
a
less
significant
ozone
problem.
While
some
of
these
problems
could
be
addressed
through
voluntary
bump
ups
and
areas
attaining
the
standard
earlier
than
mandated
by
the
statute,
these
actions
would
not
address
the
fact
that
the
initial
classifications
would
not
reflect
Congressional
intent
nor
would
they
address
all
of
the
anomalies.
For
example,
even
if
an
area
classified
as
serious
can
attain
the
standard
within
6
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
76
years,
it
is
still
required
to
adopt
an
enhanced
I/
M
program
rather
than
a
basic
I/
M
program
that
would
be
required
for
an
area
classified
as
moderate.
We
do
not
believe
Congress
intended
to
mandate
that
areas
with
a
less
significant
ozone
problem
adopt
these
more
stringent
programs.
or
the
time
needed
to
attain.

An
additional
problem
is
that
the
practical
effect
of
placing
many
areas
that
cannot
attain
by
2007
into
the
marginal
classification
would
be
to
delay
development
of
plans
for
improving
air
quality
to
meet
the
8­
hour
standard.

This
would
be
inconsistent
with
Congress's
intent,
reflected
in
the
requirements
of
the
Act,
that
areas
attain
air
quality
standards
as
expeditiously
as
practicable.
Rather,

Congress
intended
classifications
to
approximate
the
attainment
needs
of
areas.
In
this
circumstance,
it
is
appropriate
for
EPA
to
make,
by
way
of
regulation,
a
limited
modification
to
Table
1
to
reflect
Congressional
intent.

We
recognize
that
all
of
the
options
considered
by
EPA
also
result
in
some
of
the
inequities
or
absurdities
that
would
be
created
by
direct
application
of
Table
1
as
writteneven
under
the
approach
adopted
by
EPA,
some
of
the
same
anomalies
will
be
created.
For
example,
some
areas
may
need
more
time
to
attain
than
provided
by
the
area's
initial
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
21Based
on
data
from:
REVISED:
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
in
77
classification.
However,
these
options,
and
in
the
option
EPA
is
adopting,
create
these
problems
in
a
more
limited
fashionanomalies
are
more
limited
because
the
classifications
more
appropriately
recognize
an
area's
8­

hour
ozone
problem.
As
noted
above
in
our
discussion
on
the
basis
for
selecting
Option
2,
we
believe
the
statutory
mechanisms
such
as
voluntary
bum­
upsbump
ups
can
address
these
inequities
in
the
limited
situations
in
which
they
arise.
In
comparison,
if
1­
hour
values
were
used
to
classify
8­
hour
nonattainment
areas
based
solely
on
Table
1
as
presented
in
section
181
of
the
ActCAA,
there
would
only
be
2
serious
areas,
9
moderate
areas,
and
26
marginal
areas.

This
is
a
much
different
distribution
than
using
oOption
2,

in
which
there
would
be
more
areas
in
the
higher
classifications
(
1
severe­
17,
4
serious,
21
moderate)
and
far
fewer
(
11)
marginal
areas.
Of
courseAnd,
under
eitherthe
adopted
approach,
the
number
of
subpart
1
areas
would
be
the
same
(
64).
15
distribution
under
subpart
2
is
based
on
the
area's
8­
hour
design
value
not
its
1­
hour
design
value.
21
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
Relation
to
Re­
Opened
Comment
Period
­­
Illustrative
Analysis
Based
on
2000­
2002
Data.
U.
S.
Environmental
Protection
Agency,
Office
of
Air
and
Radiation,
Office
of
Air
Quality
Planning
and
Standards.
Draft.
October
2003.
Available
at:
http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
o3imp8hr/.

78
RESPONSE
TO
COMMENTS
FAVORING
OPTION
1
ARGUING
THAT
SUBPART
2
WAS
MORE
LIKELY
TO
PRODUCE
PROGRESS
AND
FASTER
ATTAINMENT:

RESPONSE:

Other
commenters
raised
concerns
that
because
subpart
1
is
less
prescriptive
than
subpart
2
and
potentially
allows
later
attainment
dates
for
the
less
polluted
areas,
areas
will
not
in
fact
attain
the
8­
hour
NAAQS
as
quickly
under
subpart
1
as
they
would
be
required
to
do
under
subpart
2.

As
evidence,
these
commenters
point
to
the
past
failure
of
areas
to
attain
the
ozone
standardNAAQS
prior
to
the
enactment
of
subpart
2
in
1990.
We
disagree.

Subpart
1
orand
subpart
2
both
require
areas
to
attain
the
8­
hour
ozone
NAAQS
as
expeditiously
as
practicable.

Thus,
the
intention
of
the
CAA
is
that
regardless
of
whether
an
area
is
covered
under
subpart
1
or
subpart
2,
it
must
achieve
clean
air
on
the
same
schedule
 
i.
e.,
as
expeditiously
as
practicable.
In
addition,
CAA
section
172(
c)(
1)
requires
that
a
SIP
for
a
nonattainment
area
".
.

.
shall
provide
for
implementation
of
all
reasonably
STAFF
DRAFT
 
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NOT
QUOTE,
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OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
22
As
provided
below,
in
the
section
regarding
attainment
dates
for
the
8­
hour
ozone
NAAQS,
subpart
2
actually
specifies
that
the
attainment
period
runs
from
the
date
of
the
1990
CAA
Amendments
rather
than
the
date
of
designation.
However,
as
we
explain
in
the
attainment
date
section,
for
purposes
of
8­
hour
NAAQS,
we
believe
Congress
intended
those
dates
to
run
from
the
date
of
designation.

23
The
only
control
obligations
mandated
for
marginal
areas
are
that
they
fix
flaws
in
their
RACT
rules
and
their
inspection
and
maintenance
(
I/
M)
programs
that
existed
at
the
time
of
the
1990
CAA
Amendments.
Areas
designated
79
available
control
measures
["
RACEM"]
as
expeditiously
as
practicable
.
.
.
and
shall
provide
for
attainment
of
the
[
NAAQS]."
In
reviewing
SIPs
for
approvability
under
subpart
1,
we
will
evaluate
whether
the
emission
control
measures
in
the
SIP
and
the
timing
of
implementation
comports
with
the
RACEM
and
attainment
provisions
to
ensure
all
RACEM
are
adopted
and
implemented
as
expeditiously
as
practicable
and
that
the
attainment
date
is
as
expeditious
as
practicable.

Subpart
1
sets
an
initial
outside
attainment
date
of
5
years
following
designation
for
the
8­
hour
standardNAAQS.

Subpart
2
sets
the
earliest
outside
attainment
date
as
3
years
following
designation22
for
marginal
areas.
Under
subpart
2,
marginal
areas
are
not
required
to
submit
attainment
demonstrations
and,
for
all
practical
purposes,

are
not
required
to
adopt
additional
local
controls
for
existing
sources.
23
Thus,
in
general,
Congress
anticipated
STAFF
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4/
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04
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compared
with
2/
26/
04
version
nonattainment
for
the
1­
hour
standardNAAQS,
which
were
the
areas
with
the
pre­
90
RACT
and
I/
M
obligations,
have
already
made
these
corrections.
It
is
unlikely
that
any
areas
designated
nonattainment
for
the
8­
hour
standardNAAQS
will
not
have
already
made
these
corrections
if
they
have
such
programs
in
place.

24See
68
FR
32814.

80
that
these
areas
would
come
into
attainment
within
3
years
without
significant
additional
local
controls.
We
believe
that
most
areas
covered
under
subpart
1
with
air
quality
problems
similar
to
marginal
areas
will
in
fact
come
into
attainment
with
the
8­
hour
standardNAAQS
on
a
similar
time
frametimeframe
as
areas
classified
as
marginal
(
i.
e.,
3
years
following
designation).
24
In
fact,
we
believe
the
prospects
for
near­
term
attainment
based
on
existing
programs
are
more
favorable
now
than
they
were
in
1990
because
national
and
regional
control
programs
already
in
place
will
achieve
substantial
reductions
in
NOx
(
and
VOC)

emissions
prior
to
May
2007.
These
include
the
regional
NOx
SIP
Call,
which
mandates
interstate
transport
controls
for
certain
States
by
May
31,
2004
(
63
FR
53756,
October
27,

1998);
progressively
more
stringent
emissions
standards
for
new
cars
and
light­
duty
trucks
issued
since
1990,
most
recently
the
Tier
2
motor
vehicle
emission
standards,
and
associated
sulfur­
in­
gasoline
requirements
(
65
FR
6698,
STAFF
DRAFT
 
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NOT
QUOTE,
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OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
81
February
10,
2000);
and
the
heavy
duty
diesel
rule
(
66
FR
5002,
January
18,
2001).

For
areas
covered
under
subpart
1
with
an
air
quality
problem
similar
to
subpart
2
moderate
areas,
the
presumptive
maximum
attainment
date
will
be
one1
year
earlier
 
i.
e.,

five5
years
following
designation
rather
than
six6
years.

To
receive
a
later
attainment
date,
section
172(
a)(
2)(
A)

requires
such
areas
to
demonstrate
more
time
is
needed
based
on
the
severity
of
nonattainment
and
the
availability
and
feasibility
of
pollution
control
measures.
As
to
the
first
factor
 
severity
of
nonattainment
 
EPA
believes
that
it
would
be
difficult
to
justify
providing
a
period
longer
than
6
years
since
similar
areas
classified
under
subpart
2
would
not
have
a
longer
time
to
attain.
Thus,
such
an
area
would
need
to
demonstrate
that
the
availability
and
feasibility
of
control
measures
(
including
those
mandated
under
subpart
2)

would
justify
an
extension
longer
than
6
years.
A
similar
analysis
would
apply
if
an
area
with
an
even
more
significant
air
quality
problem
were
covered
under
subpart
1.
For
this
reason,
we
do
not
believe
that
public
health
concerns
support
classifying
all
areas
with
similar
air
quality
under
subpart
2.

4.
Under
the
final
classification
approach,
how
will
EPA
STAFF
DRAFT
 
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NOT
QUOTE,
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OR
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4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
82
classify
subpart
1
areas?
(
Section
VI.
A.
4.
of
proposal;
68
FR
32813;
Section
51.904
of
draft
and
final
rules)

a.
Background.
Section
172(
a)(
1)
provides
that
EPA
has
the
discretion
to
classify
areas
subject
to
subpart
1.
We
proposed
two
options
with
respect
to
classifications
for
areas
subject
only
to
subpart
1
(
68
FR
32813).
First,
we
proposed
to
create
no
classifications.
Second,
we
proposed
to
create
one
classification
 
an
interstate
overwhelming
transport
classification
for
areas
that
submit
a
modeled
attainment
demonstration
showing
the
area's
nonattainment
problem
is
due
to
overwhelming
transport
and
that
meet
the
definition
of
a
rural
transport
area
under
section
182(
h)
of
the
CAA.
As
we
noted
in
the
June
2,
2003
proposal,
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
STAFF
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OR
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4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
83
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.

b.
Summary
of
Ffinal
Rrule.
We
are
adopting
the
second
option
but
modified
as
a
result
of
comments.
We
are
creating
an
overwhelming
transport
classification
that
will
be
available
to
subpart
1
areas
that
demonstrate
they
are
affected
by
overwhelming
transport
of
ozone
and
its
precursors
and
demonstrate
they
meet
the
definition
of
a
rural
transport
area
in
section
182(
h).
However,
areas
would
not
have
to
demonstrate
that
transport
was
due
solely
to
sources
from
outside
the
State
(
interstate
transport)
as
was
implied
by
the
June
2,
2003
proposal.
Such
aAll
other
areas
that
do
not
qualify
for
the
overwhelming
transport
classification
would
not
be
classified.

An
overwhelming
transport
classification
will
accomplish
several
purposes.
One
purpose
is
to
communicate
to
the
public
the
need
for
an
attainment
date
to
account
for
the
control
timetable
for
upwind
areas
whose
emissions
are
overwhelmingly
contributing
to
the
area's
nonattainment
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compared
with
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26/
04
version
84
problem.
An
area
will
be
classified
as
an
"
Overwhelming
Transport
Area"
upon
full
approval
of
an
attainment
demonstration
SIP
that
demonstrates,
using
EPA­
approved
modeling,
that
the
nonattainment
problem
in
the
area
is
due
to
"
overwhelming
transport,"
as
set
forth
in
guidance.
The
area
must
also
meet
that
part
of
the
definition
of
a
rural
transport
area
in
section
182(
h)
that
requires
that
an
area
not
be
in
or
adjacent
to
a
Consolidated
Metropolitan
Statistical
Area
(
CMSA).

In
approving
an
attainment
date
for
the
area,
EPA
will
consider:
(
1)
the
attainment
date
of
the
upwind
nonattainment
area
or
areas
that
contribute
to
the
downwind
area's
problem;
and
(
2)
the
implementation
schedule
for
upwind
area
controls,
regardless
of
their
geographic
scope
(
e.
g.,
national,
regional,
statewide,
local).

In
the
June
2003
proposal,
we
proposed
that
such
areas
would
be
subject
to
requirements
similar
to
those
that
apply
to
areas
classified
as
marginal
under
subpart
2.
We
are
considering
the
comments
we
received
on
the
issue
of
applicable
requirements
for
these
subpart
1
areas
and
will
address
this
issue
after
we
issue
guidance
on
assessment
of
overwhelming
transport.

In
addition,
the
proposed
rule
also
indicated
that
we
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with
2/
26/
04
version
85
could
consider
more
flexibility
for
conformity
for
such
areas.
In
our
proposed
transportation
conformity
rule
published
on
November
5,
2003
(
68
FR
62690),
we
did
not
propose
any
specific
conformity
flexibility
for
areas
affected
by
ozone
transport.
However,
many
of
the
proposed
options,
including
the
types
of
emissions
tests
used
in
conformity,
would
be
available
to
areas
affected
by
transport,
as
well
as
other
types
of
8­
hour
ozone
areas.
In
addition,
the
existing
transportation
conformity
rule
already
provides
flexibility
in
such
things
as
transportation
modeling
requirements
for
smaller
areas
with
less
severe
local
air
quality
problems.
Also,
EPA
intends
to
propose
in
a
few
months
more
flexible
new
source
reviewNSR
provisions
that
would
apply
in
such
areas.

We
believe
the
overwhelming
transport
classification
for
areas
covered
under
subpart
1
is
consistent
with
the
CAA
and
is
reasonable.
Although
the
CAA
does
not
mandate
that
an
area
be
considered
rural
in
order
to
receive
an
overwhelming
transport
classification
under
subpart
1,
wWe
believe
that
the
classification
should
be
restricted
to
rural
areas
because
these
areas
will
generally
not
have
significant
sources
of
emissions
to
control
and
therefore
are
not
likely
to
contribute
much
to
their
own
nonattainment
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with
2/
26/
04
version
86
problem.
There
are
exceptions,
of
course,
such
as
rural
areas
with
large
sources
such
as
power
plants,
but
such
areas
would
also
need
to
meet
the
other
criteria
for
the
classification,
such
as
not
contributing
significantly
to
nonattainment
in
other
areas.
In
addition,
for
subpart
2
areas,
Congress
intended
that
the
transport
classification
be
restricted
to
rural
areas.
For
purposes
of
establishing
the
transport
classification
under
subpart
1,
we
believe
it
makes
sense
to
follow
the
system
established
by
Congress
in
subpart
2.
We
note,
however,
that
in
determining
attainment
dates
for
areas
under
section
172(
a)(
2)(
A),
we
can
consider
the
availability
and
feasibility
of
control
measures;
thus,

areas
that
do
not
meet
the
definition
of
a
rural
transport
area
should
be
able
to
adopt
an
attainment
date
that
reflects
the
time
period
for
reductions
in
upwind
areas
that
are
contributing
to
nonattainment.

In
determining
an
attainment
date
for
areas
classified
as
"
transport,"
we
would
apply
the
criteria
in
section
172(
a)(
2)(
A).
The
second
criterion
in
section
172(
a)(
2)(
A)

 
the
availability
and
feasibility
of
control
measures
 
will
allow
EPA
to
consider
the
effects
of
transported
pollution
in
setting
an
appropriate
attainment
date
for
these
areas
of
no
later
than
10
years
following
designation.
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04
version
87
We
recognize
that
there
may
be
areas
affected
by
transport
that
don't
meet
the
definition
of
rural
transport.

However,
in
determining
attainment
dates
for
areas
under
section
172(
a)(
2)(
A),
we
can
consider
the
availability
and
feasibility
of
control
measures;
thus,
areas
that
do
not
meet
the
definition
of
a
rural
transport
area
should
be
able
to
adopt
an
attainment
date
that
reflects
the
time
period
for
reductions
in
upwind
areas
that
are
contributing
to
nonattainment.

The
EPA
decided
not
to
exercise
its
discretion
to
create
additional
classifications
for
subpart
1
areas
that
would
have
been
used
for
a
system
of
differential
control
requirements
based
on
the
severity
of
pollution.
We
believe
that
the
overwhelming
transport
classification
is
sufficient
to
address
certain
transport
situations
whereas
all
other
subpart
1
areas
would
not
have
a
classification.
We
do
not
believe
another
classification
is
necessary
for
expeditious
attainment
of
the
8­
hour
standardNAAQS
for
these
other
subpart
1
areas.

The
final
rule
(
section
51.904(
a))
provides
for
a
subpart
1
area
to
be
classified
as
an
overwhelming
transport
area
if
it
meets
the
criteria
as
specified
for
rural
transport
areas
under
section
182(
h)
of
the
ActCAA
and
an
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compared
with
2/
26/
04
version
88
overwhelming
transport
policyguidance
that
we
will
issue
shortlyin
the
future.
Although
EPA's
June
2,
2003
notice
referenced
an
EPA
guidance
document
as
the
criteria
for
determining
the
contribution
of
sources
in
one
or
more
other
areas
are
an
overwhelming
cause
of
an
area
being
designated
nonattainment,
we
believe
that
guidance
needs
to
be
updated.

Thus,
we
are
retracting
our
previous
guidance
and
will
issue
a
revised
guidance
shortly.
We
plan
to
address
control
requirements
applicable
to
these
areas
in
Phase
2.

c.
Comments
and
Rresponses
COMMENT:
Most
of
the
commenters
who
commented
on
classifications
for
subpart
1
areas
objected
to
the
requirement
that
to
receive
an
overwhelming
transport
area
classification
an
area
must
demonstrate
that
it
is
a
rural
transport
area.
Many
of
these
commenters
pointed
out
that
there
are
a
number
of
areas
that
do
not
meet
that
definition
and
that
do
not
generate
a
significant
portion
of
emissions
that
contribute
to
the
area's
nonattainment
problem.
Some
also
stated
that
the
CAA
does
not
mandate
this
as
a
criterion
and
thus
the
test
was
unduly
restrictive.
These
commenters
asked
that
the
availability
of
the
overwhelming
transport
classification
be
based
only
on
whether
an
area
is
a
victim
of
overwhelming
transport.
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with
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04
version
89
RESPONSE:
The
CAA
does
not
mandate
that
an
area
be
considered
rural
in
order
to
receive
an
overwhelming
transport
classification
under
subpart
1.
However,
we
believe
that
areas
that
are
not
rural,
even
if
they
are
affected
to
a
significant
degree
by
transport,
in
general
contribute
at
least
some
degree
to
their
own
and
likely
to
other
areas'
nonattainment
problems.
The
final
rule,

therefore,
is
as
proposed
 
the
overwhelming
transport
classification
is
only
available
to
areas
that
meet
the
criteria
for
rural
transport
areas
under
section
182(
h)
of
the
CAA.

5.
Proposed
Incentive
Feature
COMMENT:
One
commenter
suggested
EPA
provide
increased
flexibility
for
areas
that
would
be
classified
as
nonattainment,
primarily
for
reasons
related
to
transport.
A
special
category
for
transport
areas,
should
be
created
for
areas
that
are
in
attainment
of
the
1­
hour
standard
but,
if
not
for
the
impact
of
transport,
would
not
be
in
violation
of
the
new
8­
hour
standard.
The
regulatory
requirements
for
transport
area
should
be
minimal
and
required
compliance
dates
should
extend
out
at
least
as
long
as
the
upwind
states.

RESPONSE:
We
note
that
8­
hour
ozone
nonattainment
areas
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with
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04
version
90
covered
under
subpart
1
generally
will
be
close
to
attaining
the
1­
hour
standard.
We
believe
the
criteria
used
to
determine
overwhelming
transport
will
invariably
result
in
a
situation
where
an
area
subject
to
overwhelming
transport
would
be
in
attainment
of
the
standard
but
for
transport.

Subpart
1
provides
a
maximum
of
10
years
from
the
effective
date
of
nonattainment
designation
for
attainment.
We
note,

however,
that
if
such
an
area
believes
that
it
would
need
an
attainment
date
longer
than
10
years,
it
could
request
to
be
reclassified
under
subpart
2
to
a
classification
with
a
longer
attainment
date.
The
area
would,
of
course,
have
to
meet
the
requirements
of
its
subpart
2
classification
(
either
its
requested
classification
or
the
rural
transport
classification
if
it
so
qualifies).

5.
Will
EPA
adjust
classifications?
(
Section
VI.
A.
9.
of
proposal;
68
FR
32816;
section
51.903(
b)
and
(
c)
of
final
rule)

a.
Background.
Under
sections
181(
a)(
4)
and
181(
b)(
3),
an
ozone
nonattainment
area
may
be
reclassified
to
the
next
higher
or
lower
classification.
Section
181(
a)(
4)
of
the
CAA
states:

If
an
area
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
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version
91
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.

Section
181(
b)(
3)
requires
the
Administrator
to
grant
the
request
of
any
State
to
reclassify
a
nonattainment
area
in
the
State
to
a
higher
classification.

b.
Summary
of
final
rule.
We
are
adopting
the
approach
we
included
in
the
proposal.
For
areas
subject
to
subpart
2,

section
181(
a)(
4)
of
the
CAA
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.

If,
for
example,
an
area
is
subject
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.
In
addition,

section
181(
b)(
3)
requires
the
Administrator
to
grant
the
request
of
any
State
to
reclassify
a
nonattainment
area
in
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04
version
92
the
State
to
a
higher
classification.

Section
51.903
was
revised
from
the
initial
draft
regulatory
text
language
to
add
the
reclassification
provisions
in
section
181(
a)(
4)
and
181(
b)(
3).

c.
Comments
and
responses
COMMENT:
Several
commenters
supported
the
use
of
provisions
in
section
181(
a)(
4)
to
allow
adjustment
of
a
classification.
Comments
indicated
that
this
approach
could
result
in
cost
savings
in
cases
where
the
increased
controls
of
the
higher
classification
would
not
be
needed
for
attainment.
One
commenter
noted
that
the
Administrator
should
consider
several
factors
in
making
the
adjustment
under
section
181(
a)(
4),
including
the
number
of
exceedances
of
the
NAAQS
and
complexity
of
the
problem.
The
commenter
requested
that
EPA
explain
how
the
Administrator
would
make
this
decision
and
the
process
that
will
be
used.
Another
commenter
recommended
that
the
actual
test
of
compliance
with
the
provisions
of
section
181(
a)(
4)
should
include
allowance
for
meteorological
fluctuation
in
order
to
avoid
States
having
to
meet
an
average
design
value
well
below
the
NAAQS
before
deemed
in
compliance.

RESPONSE:
The
EPA's
guidance
on
the
5
percent
bump
down
provision
in
section
181(
a)(
4)
is
contained
in
the
November
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compared
with
2/
26/
04
version
93
6,
1991
Federal
Register
(
56
FR
56698)
which
established
the
initial
designations
and
classifications.
In
a
separate
Federal
Register
notice,
EPA
will
invite
States
to
submit
bump
down
requests.
The
EPA
will
describe
the
criteria
(
including
any
changes
from
the
1991
criteria)
for
approval
of
5
percent
bump
downs
in
that
notice
and
will
provide
at
least
a
30­
day
period
for
States
to
submit
their
requests.

Section
181(
a)(
4)
authorizes
the
Administrator
to
adjust
a
classification
within
90
days
after
the
initial
classification.
The
EPA
continues
to
believe,
as
provided
in
the
June
2,
2003
proposal,
that
section
181(
a)(
4)
does
not
provide
a
basis
for
an
area
to
move
from
subpart
2
to
subpart
1.

6.
Proposed
incentive
feature
(
Section
VI.
A.
6.
of
proposal;
see
68
FR
32815;
51.903(
b)
of
draft
rule)

a.
Background.
In
the
proposed
rule
(
68
FR
32815),
we
sought
comment
on
a
classification
feature
that
would
allow
areas
classified
under
subpart
2
to
qualify
for
a
lower
classification
upon
a
demonstration
the
area
would
attain
the
8­
hour
standardNAAQS
by
the
earlier
attainment
date
of
a
lower
classification.
For
example,
an
area
that
would
be
classified
"
moderate"
based
on
its
8­
hour
design
value
would
qualify
for
a
"
marginal"
classification
by
demonstrating
it
STAFF
DRAFT
 
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NOT
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OR
DISTRIBUTE
 
4/
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1:
30
pm
compared
with
2/
26/
04
version
94
would
attain
the
8­
hour
standardNAAQS
within
3
years
of
designation.

b.
Summary
of
Ffinal
Rrule.
We
are
not
including
the
proposed
incentive
feature
in
the
final
rule.
We
received
numerous
adverse
comments
on
the
idea,
raising
both
legal
and
policy
issues.
Because
we
agree
as
a
policy
matter
that
we
should
not
adopt
the
incentive
feature,
we
do
not
reach
the
legal
issue
of
whether
the
statute
grants
such
authority.
Our
basis
for
this
decision
is
provided
more
fully
in
the
response
to
commentsRTC
document,
portions
of
which
are
excerpted
below.
In
short,
we
believe
that
only
a
few
areas
would
have
benefitted
from
this
proposal
considering
the
flexibility
already
available
under
classification
oOption
2,
and
we
believe
that
the
difficulties
in
developing
and
implementing
such
an
approach
outweigh
any
benefits.
In
particular,
commenters
on
the
June
2,
2003
proposal
were
concerned
that
we
did
not
identify
the
type
of
modeling
that
areas
could
rely
on
to
take
advantage
of
this
option.
While
we
had
not
identified
in
the
June
2,
2003
proposal
the
type
of
modeling
that
could
be
used,
we
had
referenced
our
current
modeling
guidance
in
the
draft
regulatory
text
which
was
published
on
August
6,

2003.
Additionally,
we
believe
it
would
be
very
difficult
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2/
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version
25Memorandum
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.

95
for
an
area
to
have
completed
the
necessary
modeling
and
for
us
to
approve
such
a
SIP
submission
much
in
advance
of
the
attainment
date
for
a
marginal
area.
Further,
if
the
area
did
not
meet
that
attainment
date,
it
would
need
to
begin
the
modeling
process
over
again
almost
immediately.
We
now
believe
that
it
makes
more
sense
for
the
area
to
prepare
the
modeling
required
for
its
higher
classification
and,
if
the
area
attains
the
standardNAAQS
earlier
than
the
attainment
date
for
its
classification,
our
Clean
Data
Policy25
will
provide
relief
from
RFP
requirements.

c.
Comments
and
Rresponses
COMMENT:
About
half
the
commenters
that
addressed
this
issue
opposed
the
incentive
feature.
These
comments
originated
mainly
from
environmental
organizations
and
some
State
and
local
air
pollution
control
agencies
and
organizations.
Many
of
these
commenters
questioned
the
legal
basis
for
such
a
feature
and
also
believed
modeling
is
too
inaccurate
or
unreliable
to
be
used
for
classification
purposes.
They
believed
that
monitoring
data
should
be
the
STAFF
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OR
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pm
compared
with
2/
26/
04
version
96
sole
basis
for
classifications.
The
other
comments
received
on
this
issue
supported
the
incentive
feature.
These
comments
originated
mainly
from
industrial
representatives
and
organizations,
as
well
as
several
State
and
local
air
agencies
and
transportation
agencies
and
organizations.

RESPONSE:
Our
analysis
indicates
that
the
incentive
feature
would
not
have
helped
very
many
areas.
Of
21
hypothetical
nonattainment
areas
classified
as
moderate
(
based
on
2000­
2002
air
quality
data),
our
modeling
projects
that
only
3
would
have
qualified
without
first
adopting
further
controls.
No
serious
or
higher
classified
area
would
have
qualified
without
further
controls.
Very
few
areas
would
even
receive
a
classification
higher
than
moderate.
In
addition,
even
if
we
adopted
this
approach,
we
do
not
believe
there
would
have
been
enough
time
for
areas
seeking
a
marginal
classification
to
submit
a
plan
with
local
controls
that
demonstrate
attainment
by
a
Spring
attainment
date
in
2007
and
implement
the
controls
by
the
Spring
of
2006.
In
addition,
we
would
have
to
develop
guidance
for
the
demonstration.
Furthermore,
although
many
commenters
supported
having
the
feature,
many
other
commenters
objected
to
the
feature
on
a
number
of
grounds.

Because
of
the
difficulties
involved
in
administering
such
a
STAFF
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pm
compared
with
2/
26/
04
version
97
program,
the
unfavorable
timing,
and
the
anticipated
low
number
of
areas
that
could
benefit
from
the
feature,
we
are
not
incorporating
the
feature
in
the
final
rule.

A
number
of
commenters
who
opposed
the
feature
contended
that
the
approach
was
not
supported
by
the
CAA.

Since
we
are
not
adopting
the
feature
in
the
final
rule
on
policy
grounds,
we
do
not
address
the
legal
issues
here.

B.
How
Wwill
EPA
Ttreat
Aattainment
Ddates
for
the
8­
Hhour
Ozone
Standard?
ozone
NAAQS?
(
section
VI.
B.
of
proposal;
see
68
FR
32816;
51.903
and
51.904
draft
and
final
rules)

1.
Background.
Under
Subpart
2
of
the
CAA,
maximum
attainment
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
provided
in
Table
1
for
that
area's
classification.
The
statutory
dates
are
specified
as
a
set
number
of
years
from
the
date
of
enactment
of
the
CAA
Amendments
of
1990.
Since
a
strict
application
of
Table
1
would
produce
absurd
results
for
most
areas
(
i.
e.,
areas
classified
as
marginal
would
have
a
November
15,
1993
attainment
date,
moderate
areas
would
have
a
November
15,
1996
attainment
date,
etc.),
we
are
promulgating
a
targeted
revision
of
Table
1
to
reflect
STAFF
DRAFT
 
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OR
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4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
26As
explained
in
our
proposed
rule,
areas
will
be
classified
as
a
matter
of
law
at
the
same
time
they
are
designated;
thus,
we
simply
refer
to
"
designation"
rather
than
designation
and
classification.

98
attainment
dates
consistent
with
Congressional
intent.

While
the
attainment
dates
in
Table
1
are
expressly
linked
to
the
date
of
enactment
of
the
CAA
Amendments
of
1990,
this
is
also
the
date
on
which
most
areas
were
designated
and
classified
as
a
matter
of
law.
In
addition,

as
explained
in
the
preamble
to
the
proposed
rule
(
68
FR
32817),
other
provisions
of
the
CAA
specify
that
the
date
for
attainment
shall
run
from
the
date
of
designation
and/
or
classification
as
a
matter
of
law
for
an
area.
Consistent
with
this,
we
proposed
that
the
starting
point
for
the
set
time
framestimeframes
for
attainment
would
be
the
date
an
area
is
designated
and
classified
for
purposes
of
the
8­
hour
NAAQS.
26
Thus,
for
example,
an
area
classified
as
marginal
for
the
8­
hour
standardNAAQS
would
have
up
to
3
years
from
designation
to
meet
that
standardNAAQS
and
a
moderate
area
would
have
up
to
6
years
from
designation
to
attain
the
standard.

For
areas
covered
under
subpart
1,
attainment
dates
are
set
under
section
172(
a)(
2)(
A),
which
provides
that
the
SIP
must
demonstrate
attainment
as
expeditiously
as
practicable
STAFF
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pm
compared
with
2/
26/
04
version
99
but
no
later
than
5
years
after
designation,
with
up
to
10
years
after
designation
permitted
if
the
severity
of
the
area's
air
pollution
and
the
availability
and
feasibility
of
pollution
control
measures
indicate
more
time
is
needed.
In
the
draft
regulatory
text,
we
provided
that
EPA
would
establish
the
attainment
date
for
an
area
at
the
time
we
approve
the
area's
attainment
demonstration.

2.
Summary
of
final
rule.
We
are
adopting
the
time
periods
for
attainment
that
we
proposed
for
areas
under
both
subpart
1
and
subpart
2
of
the
CAA.
For
areas
subject
to
subpart
2
of
the
CAA,
the
maximum
period
for
attainment
will
run
from
the
effective
date
of
designations
and
classifications
for
the
8­
hour
standardNAAQS
and
will
be
the
same
periods
as
provided
in
Table
1
of
section
181(
a):


Marginal
 
3
years,


Moderate
 
6
years,


Serious
 
9
years,


Severe
 
15
or
17
years,
and

Extreme
­
20
years.

We
are
adopting
this
approach
because
applying
the
table,
as
written,
would
produce
absurd
results.
For
the
reasons
above
and
discussed
in
the
preamble
to
the
proposed
rule,
we
believe
it
is
consistent
with
Congressional
intent
to
begin
STAFF
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pm
compared
with
2/
26/
04
version
100
the
time
periods
for
attainment
specified
in
Table
1
in
section
181(
a)
at
the
time
of
designation
and
classification.

Consistent
with
section
172(
a)(
2)(
A),
for
areas
subject
to
subpart
1
of
the
CAA,
the
period
for
attainment
will
be
no
later
than
5
years
after
the
effective
date
of
the
designation.
However,
EPA
may
grant
an
area
an
attainment
date
no
later
than
10
years
after
designation,
if
warranted
based
on
the
factors
provided
in
section
172(
a)(
2)(
A).
The
EPA
will
establish
an
attainment
date
for
each
subpart
1
area
at
the
time
we
approve
an
attainment
demonstration
for
the
area.

3.
Comments
and
Rresponse
COMMENT:
Several
commenters
reiterated
the
CAA's
requirement
that
areas
attain
the
standardNAAQS
as
"
expeditiously
as
practicable."
They
felt
that
the
attainment
deadlines
in
the
proposed
rule
would
impede
the
progress
that
areas
have
made
and
would
subject
the
general
public
to
years
of
unhealthy
air
quality.
One
commenter
suggested
that
EPA
create
enforceable
short­
term
compliance
dates
to
assure
citizens
andof
downwind
sStates
that
upwind
sStates
are
meeting
their
longer­
term
compliance
deadlines.

Other
commenters
felt
that
the
attainment
dates
under
both
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04
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pm
compared
with
2/
26/
04
version
101
subpart
1
and
2
that
were
proposed
did
not
provide
enough
time
for
areas
to
attain
for
a
number
of
reasons,
such
as:

areas
would
not
be
able
to
take
credit
for
emissions
reductions
from
Federal
measures,
the
slow
turnover
of
mobile
source
fleets
would
not
achieve
the
needed
mobile
source
reductions
in
the
time
framestimeframes
proposed,

EPA's
Clear
Skies
modeling
shows
that
a
number
of
areas
in
the
mid­
Atlantic
and
northeast
will
not
come
into
attainment
before
the
middle
of
the
next
decade,
it
would
not
be
feasible
to
have
stationary
and
mobile
source
controls
in
place
three3
years
before
the
attainment
dates
for
purposes
of
monitoring,
etc.
However,
a
number
of
commenters
agreed
with
EPA's
proposal
to
establish
attainment
dates
that
correspond
to
the
time
framestimeframes
established
under
subpart
2
of
the
CAA
from
the
date
of
8­
hour
nonattainment
designations.
In
addition,
one
commenter
stated
that
the
proposal
did
not
clearly
address
how
attainment
dates
for
subpart
1
areas
would
be
set.
Finally,
several
commenters
recommended
that
EPA
change
the
attainment
dates
to
November
or
December
of
the
attainment
year
rather
than
in
April
so
areas
can
use
the
ozone
season
air
quality
data
from
the
attainment
year
to
demonstrate
attainment.

RESPONSE:
As
stated
in
our
June
2,
2003
proposal,
STAFF
DRAFT
 
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NOT
QUOTE,
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OR
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4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
102
under
subpart
2
of
the
CAA,
maximum
attainment
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
dates
were
specified
as
the
number
of
years
from
the
date
of
enactment
of
the
CAA
Amendments,

which
was
November
15,
1990,
which
was
also
the
date
of
designation
and
classification
by
operation
of
law
for
most
subpart
2
areas.
We
believe
that
applying
the
attainment
dates
as
expressly
provided
under
Table
1
would
produce
absurd
results,
since
a
strict
application
of
Table
1
would
result
in
an
attainment
date
of
November
15,
1993
for
marginal
areas
and
an
attainment
date
of
November
15,
1996
for
moderate
areas.
Although
we
believe
a
strict
application
of
the
statute
would
produce
absurd
results,
we
do
not
believe
that
allows
broad
authority
to
re­
write
the
statute.
Rather,
we
look
to
the
legislative
history
and
other
provisions
of
the
ActCAA
to
discern
Congressional
intent.
Consequently,
for
the
reasons
provided
above
and
in
the
preamble
to
the
proposed
rule,
we
have
determined
that
attainment
dates
will
run
from
the
effective
date
of
designations
and
classifications
for
the
8­
hour
ozone
NAAQS.
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
103
Since
we
plan
to
designateare
designating
and
classifyclassifying
areas
for
the
8­
hour
ozone
NAAQS
in
Aprilwith
an
effective
date
of
June
1,
2004,
the
corresponding
attainment
datesperiods
would
be
in
the
Spring
ofrun
from
June
1,
2004.

We
do
not
believe
we
have
authority
to
change
the
attainment
dates
to
November
or
December
of
the
attainment
year
as
several
commenters
requested.
We
believe
that
Congress
would
have
intended
for
areas
designated
nonattainment
and
classified
under
subpart
2
for
the
8­
hour
NAAQS
to
have
attainment
periods
consistent
with
those
in
Table
1
(
e.
g.,
3
years
for
marginal
areas,
6
years
for
moderate
areas,
etc.)
This
would
result
in
the
8­
hour
marginal
attainment
date
being
three3
years
from
the
effective
date
of
designations
for
the
8­
hour
standardNAAQS
(
i.
e.,
in
the
Spring
ofJune
1,
2007),
the
moderate
attainment
being
six6
years
from
the
effective
date
of
designations
for
the
8­
hour
standardNAAQS
(
i.
e.,
in
the
Spring
ofJune
1,
2010),
etc.

Additionally,
EPA
does
not
have
the
authority
to
shorten
attainment
dates
or
lengthen
attainment
dates
to
allow
areas
to
take
credit
for
emissions
reductions
from
future
Federal
or
regional
measures
as
several
commenters
STAFF
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04
1:
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pm
compared
with
2/
26/
04
version
104
suggested.
The
statute
provides
for
all
areas
to
attain
as
expeditiously
as
practicable.
As
part
of
its
attainment
demonstration,
a
State
must
demonstrate
that
there
are
no
reasonably
available
controls
that
can
expedite
attainment.

Therefore,
States
must
address
why
they
cannot
attain
earlier
than
the
maximum
attainment
date.
As
to
longer
attainment
dates,
States
may
request
a
voluntary
bump
up
if
they
believe
an
area
cannot
attain
by
its
maximum
statutory
attainment
date
through
the
adoption
of
RACM.

For
areas
classified
under
subpart
1,
attainment
dates
will
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.
Under
subpart
1,
we
will
establish
an
attainment
date
for
an
area
at
the
time
we
approve
an
attainment
demonstration
for
the
area.
The
State
must
support
that
the
attainment
date
is
expeditiously
as
practicable
and
must
justify
any
attainment
date
later
than
5
years
using
the
factors
in
section
172(
a)(
2)(
A).
ConsequentlyThe
attainment
date
will
be
the
date
in
the
approved
SIP.
Thus,
if
an
area
submits
an
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
105
approvable
attainment
demonstration
showing
that
they
can
attain
the
8­
hour
standardNAAQS
in,
e.
g.,
four4
years,
the
area's
attainment
date
will
be
four4
years
from
the
effective
date
of
designations
for
the
8­
hour
NAAQS.

4.
How
Wwill
EPA
Aaddress
the
Pprovision
Rregarding
1­

Yyear
Eextensions?
(
section
VI.
B.
2
of
proposed
rule;
68
FR
32817;
sections
51.907
of
draft
and
final
rules)

a.
Background.
In
limited
circumstances,
both
subpart
1
and
subpart
2
of
the
CAA
provide
for
two
brief
attainment
date
extensions
for
areas
that
do
not
attain
by
their
attainment
date.
Section
172(
a)(
2)(
C)
of
subpart
1
(
which
applies
for
all
NAAQS)
provides
for
EPA
to
extend
the
attainment
date
for
an
area
by
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
NAAQS
has
occurred
in
the
area
in
the
attainment
year.
Up
to
two
1­

year
extensions
may
be
issued
for
a
single
nonattainment
area.

Section
181(
a)(
5)
of
subpart
2
contains
a
similar
provision
for
the
ozone
NAAQS,
but
instead
of
providing
for
an
extension
where
there
has
been
a
"
minimal"
number
of
exceedances,
it
allows
an
extension
only
if
there
is
no
more
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
27The
1­
hour
standardNAAQS,
an
exceedance­
based
standardNAAQS,
is
basically
allowed
to
be
exceeded
an
average
of
only
once
a
year
over
a
three
year3­
year
period.
(
This
is
a
generalization
of
how
attainment
is
determined;
the
actual
method
considers
other
factors
such
as
completeness
of
the
data.)
See
40
CFR
A,
appendix
H.
In
contrast,
the
level
of
the
8­
hour
standardNAAQS
(
0.08
ppm,
8­
hour
average)
can
be
"
exceeded"
more
than
once
a
year
on
average
because
the
form
(
concentration­
based)
of
that
standardNAAQS
is
determined
by
averaging
the
4th
high
reading
for
each
year
over
a
three­
year3­
year
period.
Section
50.10(
b)
provides
that
the
8­
hour
standardNAAQS
is
met
at
an
ambient
air
quality
monitor
when
the
average
of
the
annual
fourth­
highest
daily
maximum
8­
hour
average
ozone
concentration
is
less
than
or
equal
to
0.08
ppm.
40
CFR
Ppart
50,
Aappendix
I.
Example
1
in
Aappendix
I
provides
an
example
of
an
ambient
monitoring
site
attaining
the
8­
hour
ozone
standardNAAQS.
The
example
shows
that
over
a
3­
year
period,
there
were
10
exceedances
of
the
level
of
the
8­
hour
ozone
standardNAAQS,
or
an
average
of
3.33
exceedances
per
year.

106
than
one
exceedance
of
the
NAAQS
in
the
year
preceding
the
extension
year.
The
language
in
section
181(
a)(
5)
reflects
the
form
of
the
1­
hour
ozone
standardNAAQS,
which
is
exceedance­
based
and
does
not
reflect
the
8­
hour
ozone
standardNAAQS,
which
is
concentration­
based.
27
We
proposed
that
since
section
181(
a)(
5)
does
not
reflect
the
form
of
the
8­
hour
standardNAAQS
and
application
would
produce
an
absurd
result,
it
was
reasonable
to
interpret
this
provision
in
a
manner
consistent
with
Congressional
intent,
but
reflecting
the
form
of
the
8­
hour
standardNAAQS.
In
addition,
we
proposed
to
apply
the
test
in
section
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
107
172(
a)(
2)(
C),
which
applies
to
areas
subject
to
subpart
1,

in
the
same
manner
as
we
apply
the
test
under
section
181(
a)(
5)
for
areas
subject
to
subpart
2.
Specifically,
we
proposed
that
an
area
would
be
eligible
for
the
first
oneyear1
year
extension
under
section
172(
a)(
2)(
C)
and
under
181(
a)(
5)
if,
for
the
attainment
year,
the
area's
4th
highest
daily
8­
hour
average
is
0.084
ppm
or
less.
The
area
will
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.

b.
Summary
of
final
rule.
We
are
adopting
the
interpretation
that
we
proposed
on
June
2,
2003.
Under
both
sections
172(
a)(
2)(
C)
and
181(
a)(
5),
an
area
will
be
eligible
for
the
first
of
the
1­
year
extensions
under
the
8­

hour
standardNAAQS
if,
for
the
attainment
year,
the
area's
4th
highest
daily
8­
hour
average
is
0.084
ppm
or
less.
The
area
will
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.

We
believe
that
it
would
be
absurd
to
apply
section
181(
a)(
5)
as
written
for
purposes
of
the
8­
hour
ozone
NAAQS.
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
108
This
section
was
written
with
the
form
of
the
1­
hour
standardNAAQS
in
mind.
For
purposes
of
the
1­
hour
standardNAAQS,
an
area
is
violating
the
standardNAAQS
if
it
has
more
than
three
exceedances
of
the
standardNAAQS
at
a
monitor
over
a
three­
year3­
year
period.
Thus,
if
an
area
is
averaging
more
than
one
exceedance
per
year
at
a
monitor,

it
is
violating
the
standardNAAQS.
For
the
1­
hour
standardNAAQS,
it
makes
sense
to
consider
whether
there
has
been
more
than
one
exceedance
in
the
attainment
year
for
purposes
of
granting
an
extension
because
two
or
more
exceedances
indicate
a
significant
likelihood
the
area
will
not
be
able
to
attain
the
NAAQS
with
a
one­
year1­
year
extension
of
the
attainment
date
since
four
exceedances
over
a
three­
year3­
year
period
mean
the
area
is
violating
the
standardNAAQS.

For
the
8­
hour
standardNAAQS,
violations
are
determined
based
on
the
concentration
as
determined
by
averaging
the
4th
highest
reading
at
a
monitor
over
a
three­
year3­
year
period.
Thus,
for
each
monitor
(
with
complete
data),
the
fourth
highest
readings
for
each
of
three3
consecutive
years
are
averaged
to
determine
whether
an
area
is
violating
the
standardNAAQS.
If
the
average
of
those
readings
is
at
or
above
0.085,
then
the
area
is
violating
the
8­
hour
ozone
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
109
NAAQS.
Unlike
the
1­
hour
standardNAAQS,
an
area
could
have
several
exceedances
of
the
8­
hour
standardNAAQS
in
the
attainment
year
and
still
be
on
track
to
attain
the
standardNAAQS
the
following
year
since
attainment
is
based
on
an
average
of
the
fourth
highest
reading.
For
this
reason,
and
as
we
proposed,
we
believe
it
makes
sense
to
allow
for
the
two
one­
year1­
year
attainment
date
extensions
under
section
181(
a)(
5),
based
on
the
4th
highest
reading
at
a
monitor
rather
than
based
on
the
number
of
exceedances.

We
are
interpreting
the
phrase
"
minimal
number
of
exceedances"
in
section
172(
a)(
2)(
C)
to
apply
in
the
same
manner.

c.
Comments
and
Rresponse
COMMENT:
The
commenters
generally
supported
EPA's
proposed
interpretation
for
granting
up
to
two
1­
year
attainment
date
extensions.
One
commenter
requested
clarification
on
whetherthat
the
4th4th
highest
daily
average
8­
hour
ozone
concentration
would
be
used
to
grant
the
first
extension
and
whether
the
4th4th
highest
daily
average
8­
hour
ozone
concentration
of
the
attainment
year
and
first
extension
year
would
be
used
to
determine
eligibility
for
the
second
1­
year
attainment
date
extension.

The
commenter
supports
such
anfurther
expressed
support
for
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
110
this
approach
since
it
is
consistent
with
how
EPA
determines
whether
an
area
is
violating
the
8­
hour
standardNAAQS.

RESPONSE:
No
commenters
opposed
this
aspect
of
EPA's
proposal.

However,
we
are
re­
stating
that
the
4th
highest
daily
average
8­
hour
ozone
concentration
would
be
used
to
grant
the
first
1­
year
extension
and
the
4th
highest
daily
average
8­
hour
ozone
concentration
of
the
attainment
year
and
first
extension
year
would
be
used
to
determine
eligibility
for
the
second
1­
year
attainment
date
extension.
C.
How
will
EPA
implement
the
transition
from
the
1­
hour
to
the
8­
hour
standardNAAQS
in
a
way
to
ensure
continued
momentum
in
States'
efforts
toward
cleaner
air?
(
Section
VI.
C.
of
the
proposal;
see
68
FR
32818;
51.905
of
draft
rule)

There
are
two
key
issues
that
EPA
considered
together
regarding
the
transition
from
the
1­
hour
standardNAAQS
to
the
8­
hour
standardNAAQS:
(
1)
when
will
the
1­
hour
standardNAAQS
no
longer
apply
(
i.
e.,
be
"
revoked");
and
(
2)

what
protections
are
in
place
to
ensure
that,
once
the
1­

hour
standardNAAQS
is
revoked,
air
quality
will
not
degrade
and
that
progress
toward
attainment
will
continue
as
areas
transition
from
implementing
the
1­
hour
standardNAAQS
to
implementing
the
8­
hour
standardNAAQS.
As
in
the
proposed
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
111
rule,
the
second
key
issue
has
three
components:
(
1)
what
requirements
that
applied
based
on
an
area's
classification
for
the
1­
hour
standardNAAQS
must
continue
to
apply
to
that
area;
(
2)
for
how
long;
and
(
3)
in
what
geographic
area.

Below,
we
set
forth
our
final
transition
approach
in
four
parts:
(
1)
when
will
the
1­
hour
standardNAAQS
no
longer
apply
(
i.
e.,
when
will
it
be
revoked);
(
2)
what
1­
hour
obligations
should
continue
to
apply
once
the
1­
hour
standardNAAQS
is
revoked;
(
3)
how
long
should
those
requirements
continue
to
apply;
and
(
4)
what
is
the
geographic
area
subject
to
the
requirement.?

1.
When
will
EPA
revoke
the
1­
hour
standard?
NAAQS?

(
section
VI.
C.
2.
of
proposal;
see
68
FR
32819;
section
50.9.
b.
of
proposed
and
final
rules)

a.
Background.
In
the
proposed
rule
(
68
FR
32819),
EPA
provided
an
in­
depth
discussion
of
the
background
of
the
transition
rule
(
40
CFR
50.9(
b))
and
policy
as
established
in
July
1997
and
as
subsequently
revised
in
response
to
the
ongoing
litigation
over
the
8­
hour
ozone
NAAQS
and
court
decisions
(
68
FR
32818­
19).
In
short,
at
the
time
the
8­

hour
NAAQS
was
promulgated
in
1997,
EPA
anticipated
that
areas
would
implement
the
8­
hour
ozone
standardNAAQS
under
subpart
1.
Areas
that
were
not
meeting
the
1­
hour
NAAQS
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
112
were
obligated
to
continue
to
meet
that
standardNAAQS
and
would
remain
subject
to
most
of
the
requirements
that
applied
due
to
the
area's
1­
hour
classification,
including
obligations
under
subpart
2
(
62
FR
38873).
Although
EPA
concluded
in
the
NAAQS
rulemaking
that
the
1­
hour
standardNAAQS
was
not
necessary
to
protect
public
health
and
that
the
8­
hour
standardNAAQS
would
replace
the
1­
hour
standardNAAQS
(
62
FR
38863),
we
determined
to
delay
revocation
of
the
1­
hour
standardNAAQS
for
areas
not
yet
meeting
that
standardNAAQS
in
order
to
facilitate
continued
implementation
of
the
1­
hour
obligations
(
62
FR
38873).

Thus,
we
promulgated
a
rule
providing
for
the
phase­
out
of
the
1­
hour
ozone
standardNAAQS
on
an
area­
by­
area
basis
based
upon
a
determination
by
EPA
for
each
area
that
it
had
met
the
1­
hour
standardNAAQS
(
40
CFR
50.9(
b),
as
promulgated
at
62
FR
38894)
("
revocation
rule").

Subsequently,
because
the
pending
litigation
over
the
8­
hour
standardNAAQS
created
uncertainty
regarding
the
8­

hour
standardNAAQS
and
our
implementation
strategy,
we
placed
two
limitations
on
our
authority
to
apply
the
revocation
rule:
(
1)
the
8­
hour
standardNAAQS
must
no
longer
be
subject
to
legal
challenge,
and
(
2)
it
must
be
fully
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
28
In
addition,
in
June
2003,
we
stayed
our
authority
to
apply
the
revocation
rule
pending
our
reconsideration
in
this
rulemaking
of
the
basis
for
revocation.
(
68
FR
38160,
June
26,
2003,).

113
enforceable.
28
(
65
FR
45182
(,
July
20,
2000).

Ultimately,
the
Supreme
Court
struck
down
the
implementation
strategy
provided
for
in
the
preamble
to
the
final
NAAQS
rule.
Although
the
Court
agreed
with
EPA's
conclusion
that
the
statute
was
ambiguous
as
to
how
a
revised,
more
stringent
ozone
standardNAAQS
should
be
implemented,
the
Court
found
unreasonable
the
implementation
strategy
EPA
anticipated
at
the
time
the
8­
hour
standardNAAQS
was
promulgated.
Because
EPA
believes
the
time
at
which
the
1­
hour
standardNAAQS
should
no
longer
apply
is
inextricably
linked
to
the
overall
implementation
strategy,

EPA
determined
that
it
should
reconsider
40
CFR
50.9(
b)
in
the
context
of
this
rulemaking.
(
628
FR
32818­
19).

Consistent
with
the
decision
of
the
Supreme
Court,
our
proposed
June
2003
implementation
rule
anticipated
that
some,
if
not
all,
8­
hour
ozone
nonattainment
areas
would
implement
that
standardNAAQS
under
subpart
2
of
the
CAA.

There
was
no
longer
the
clear
cut
dichotomy
that
we
anticipated
in
1997
 
i.
e.,
that
8­
hour
implementation
would
occur
under
subpart
1
and
1­
hour
implementation
would
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DRAFT
 
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pm
compared
with
2/
26/
04
version
114
continue
to
occur
under
subpart
2.
Thus,
the
approach
from
1997
 
where
we
retained
the
1­
hour
standardNAAQS
for
areas
that
had
not
met
it
in
order
to
make
clear
that
such
areas
retained
subpart
2
obligations
 
merited
reconsideration.

In
addition,
we
indicated
that
the
area­
by­
area
approach
to
revocation
of
the
standardNAAQS
was
needlessly
burdensome
and
that
it
made
more
sense
to
promulgate
one
rule
establishing
the
date
of
revocation
of
the
1­
hour
standardNAAQS
for
all
areas.

With
respect
to
the
time
at
which
the
1­
hour
standardNAAQS
should
no
longer
apply
to
areas,
we
sought
comment
on
two
options.
Under
Option
1,
we
would
revoke
the
1­
hour
standardNAAQS
in
full
one1
year
after
the
effective
date
of
designations
for
the
8­
hour
standardNAAQS.
The
key
consideration
for
when
the
standardNAAQS
would
be
revoked
was
the
time
at
which
areas
designated
nonattainment
for
the
8­
hour
standardNAAQS
would
be
subject
to
conformity
requirements
for
the
8­
hour
ozone
standardNAAQS
and
our
concern
that
areas
not
be
subject
to
conformity
for
both
the
8­
hour
and
the
1­
hour
standardsNAAQS
at
the
same
time.
We
believed
that
since
our
proposed
anti­
backsliding
provisions
would
ensure
that
progress
toward
clean
air
continued
and
would
obligate
areas
to
continue
to
meet
the
control
STAFF
DRAFT
 
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NOT
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OR
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13/
04
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pm
compared
with
2/
26/
04
version
115
obligations
associated
with
the
area's
1­
hour
classification,
there
was
no
need
to
retain
the
standardNAAQS
and
the
associated
designations
and
classifications.

Under
Option
2,
we
proposed
to
retain
the
standardNAAQS
itself
(
and
the
associated
designations
and
classifications)

for
limited
purposes
(
viz.,
those
identified
and
discussed
in
section
VI.
C.
3.
of
the
proposed
rule,
which
are
the
same
obligations
that
would
continue
to
apply
under
Option
1).

For
all
remaining
purposes,
we
would
revoke
the
1­
hour
standardNAAQS
and
the
associated
designations
and
classifications
one1
year
after
the
effective
date
of
designations
for
the
8­
hour
standardNAAQS.
This
approach
would
not
create
a
different
substantive
result
than
Option
1;
under
both
Options,
areas
would
remain
subject
to
the
same
obligations
that
applied
based
on
their
1­
hour
classification.
Rather,
Option
2
was
based
on
a
somewhat
different
legal
rationale
than
Option
1.

b.
Summary
of
Ffinal
Rrule.
We
are
adopting
Option
1.
We
will
revoke
the
1­
hour
standardNAAQS
in
full,
including
the
associated
designations
and
classifications,
one1
year
following
the
effective
date
of
the
designations
for
the
8­
hour
NAAQS.
However,
we
are
adopting
strong
anti­
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compared
with
2/
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04
version
116
backsliding
provisions
which
preserve
control
obligations
mandated
by
subpart
2
for
an
area's
classification
for
the
1­
hour
standardNAAQS.
In
light
of
the
anti­
backsliding
provisions,
the
deciding
factor
supporting
the
schedule
for
revocation
is
the
conformity
obligation
for
areas.
We
believe
it
is
unnecessary
to
require
areas
to
meet
conformity
for
both
the
1­
hour
and
8­
hour
standardsNAAQS
at
the
same
time;
equally
important,
however,
is
the
need
to
ensure
that
there
is
no
time
when
conformity
stops
applying
for
areas
that
are
subject
to
it
under
the
1­
hour
standardNAAQS
and
designated
nonattainment
for
the
8­
hour
standardNAAQS.
Thus,
we
are
adopting
a
regulation
that
provides
for
revocation
of
the
1­
hour
standard
oneNAAQS
1
year
following
the
effective
date
of
the
designation
of
the
area
for
the
8­
hour
standardNAAQS
since
that
is
the
time
an
area
designated
as
nonattainment
for
the
8­
hour
standardNAAQS
will
be
subject
to
conformity
requirements
for
the
8­
hour
standardNAAQS.

Our
final
anti­
backsliding
provisions
will
ensure
that
mandatory
subpart
2
control
obligationsmeasures
that
applied
due
to
an
area's
classification
under
the
1­
hour
standardNAAQS
will
continue
to
apply
after
the
1­
hour
standardNAAQS
is
revoked
in
full.
STAFF
DRAFT
 
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NOT
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OR
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4/
13/
04
1:
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pm
compared
with
2/
26/
04
version
117
Many
commenters
believed,
and
we
agree,
that
Option
1
is
a
clearer
approach
than
Option
2.
Since
both
options
would
lead
to
the
same
substantive
result,
we
are
adopting
the
clearer
approach.
Many
commenters
recommended
alternatives
other
than
those
proposed
by
EPA.
Our
basis
for
rejecting
these
approaches
is
provided
below
and
in
the
RTC
document.

c.
Comments
and
Rresponses
COMMENT:
Most
of
the
comments
we
received
addressed
the
issue
of
when
we
should
revoke
the
1­
hour
standardNAAQS.

About
half
of
the
commenters
favored
revocation
of
the
1­

hour
standardNAAQS
in
full
one1
year
after
the
effective
date
of
the
8­
hour
designations
(
proposed
Option
1).
Only
a
handful
of
commenters
favored
partial
revocation
of
the
1­

hour
standardNAAQS
(
proposed
Option
2).
Almost
a
third
of
the
commenters
who
addressed
this
issue
opposed
revocation
of
the
1­
hour
standardNAAQS.
Many
of
the
commenters
in
this
group
insisted
that
EPA
should
retain
the
1­
hour
standardNAAQS
because
it
is
necessary
to
protect
public
health
and
some
noted
that
it
may
be
more
protective
of
public
health
than
the
8­
hour
standardNAAQS
in
several
areas
such
as
the
South
Coast
and
Houston.
A
number
of
these
commenters
also
suggested
that
revocation
would
be
contrary
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pm
compared
with
2/
26/
04
version
118
to
the
CAA
and
Congressional
intent.
Several
commenters
recommended
alternative
means
or
timing
for
the
revocation
of
the
1­
hour
standardNAAQS,
including
a
recommendation
to
revoke
the
1­
hour
standardNAAQS
immediately
upon
designations
for
the
8­
hour
standardNAAQS.

RESPONSE
TO
MAJOR
COMMENTS:
This
section
presents
our
response
to
the
major
comments
summarized
above.
The
response
to
comment
document
presents
more
detailed
responses
to
these
and
other
comments.

Several
commenters
opposed
revocation
at
all
because
they
believe
the
1­
hour
standardNAAQS
is
necessary
to
protect
public
health.
The
issue
of
whether
the
1­
hour
standardNAAQS
is
necessary
to
protect
public
health
is
a
standard­
setting
issue
that
was
resolved
in
1997.
At
that
time,
EPA
determined
that
it
was
not
necessary
to
retain
the
1­
hour
standardNAAQS
as
a
NAAQS
in
order
to
protect
public
health.
In
setting
the
8­
hour
standardNAAQS
in
1997,
we
concluded
that
replacing
the
current
1­
hour
standardNAAQS
with
an
8­
hour
standardNAAQS
is
appropriate
to
provide
adequate
and
more
uniform
protection
of
public
health
from
both
short
­
term
(
1
to
3
hours)
and
prolonged
(
6
to
8
hours)

exposures
to
ozone
in
the
ambient
air
(
62
FR
38863).
The
sole
issue
here
is
how
and
when
the
transition
from
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pm
compared
with
2/
26/
04
version
119
implementation
of
the
1­
hour
standardNAAQS
to
implementation
of
the
8­
hour
standardNAAQS
should
occur.

We
believe
the
strong
anti­
backsliding
provisions
in
section
51.905
will
ensure
that
not
only
will
controls
already
adopted
under
the
1­
hour
standardNAAQS
continue
to
be
implemented
until
an
area
attains
the
8­
hour
ozone
standardNAAQS,
but
also
that
there
will
be
no
or
minimal
delay
in
obtaining
additional
emissions
reductions
comparable
to
those
that
would
have
been
required
had
the
1­
hour
standardNAAQS
remained
in
place.
Although
attainment
of
the
1­
hour
standardNAAQS
would
no
longer
be
a
goal,
the
provisions
of
section
51.905
would
retain
the
ROP
obligations
that
would
have
been
required
under
the
1­
hour
standardNAAQS.
Furthermore,
the
provisions
of
section
51.905
also
would
retain
an
area's
obligation
to
either
expeditiously
complete
the
1­
hour
attainment
demonstration
or
obtain
emissions
reductions
toward
meeting
the
8­
hour
standardNAAQS
that
substitute
for
those
that
would
have
been
required
had
an
area
completed
its
attainment
demonstration
on
a
schedule
more
expeditious
than
that
required
solely
for
the
8­
hour
standardNAAQS.
Thus,
retaining
the
1­
hour
standardNAAQS
itself
would
become
largely
superfluous
from
the
standpoint
of
obtaining
timely
emissions
reductions.
STAFF
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OR
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pm
compared
with
2/
26/
04
version
120
We
disagree
with
comments
that
recommended
that
EPA
revoke
the
1­
hour
standardNAAQS
immediately
upon
a
nonattainment
designation
for
the
8­
hour
standardNAAQS.
We
believe
that
such
timing
would
create
a
timegap
when
conformity
would
not
apply,
which
could
hamper
a
State's
ability
to
develop
an
8­
hour
attainment
demonstration
if
major
projects
are
allowed
to
proceed
in
the
year
following
designation
under
the
8­
hour
standardNAAQS
(
since
conformity
does
not
apply
for
the
8­
hour
NAAQS
until
1­
year
after
designation).

CommentCOMMENT:
A
major
concern
raised
by
commenters
was
that
if
the
standardNAAQS
were
revoked,
areas
would
no
longer
have
to
meet
the
SIP
budgets
established
for
the
1­

hour
standardNAAQS
for
conformity
purposes.
These
commenters
were
concerned
that
8­
hour
ozone
nonattainment
areas
that
were
nonattainment
or
maintenance
for
the
1­
hour
standardNAAQS
would
be
able
to
determine
conformity
using
another
less
protective
test,
such
as
the
"
build/
no­
build"

test.
One
commenter
said
that
if
conformity
is
weakened,

billions
of
dollars
will
be
spent
on
transportation
without
accountability
for
public
health
impacts.
To
avoid
these
results,
commenters
suggested
that
conformity
requirements
for
the
1­
hour
standardNAAQS
continue
to
apply
until
some
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compared
with
2/
26/
04
version
121
other
point,
such
as
when
budgets
for
the
8­
hour
standardNAAQS
are
available,
when
areas
have
an
approved
maintenance
plan
for
the
8­
hour
standardNAAQS,
or
the
end
of
areas'
1­
hour
maintenance
planning
periods
(
assuming
these
periods
would
remain
as
they
are,
and
would
not
be
affected
by
revocation
of
the
1­
hour
standardNAAQS).

RESPONSE:
Response:
The
EPA
proposed
conformity
regulations
for
the
new
8­
hour
ozone
standardNAAQS
and
new
fine
particulate
matter
standardNAAQS
on
November
5,
2003
(
68
FR
62690).
We
proposed
that
new
8­
hour
ozone
nonattainment
areas
that
have
1­
hour
ozone
SIPs
would
meet
one
of
several
tests,
and
the
menu
of
options
we
offered
differed
depending
on
how
the
8­
hour
area
boundary
relates
to
the
1­
hour
area
boundary.
We
will
consider
the
issues
raised
by
commenters
and
provide
a
full
response
in
the
context
of
that
rulemaking.

However,
at
this
point
EPA
can
respond
to
the
suggestions
to
revoke
the
1­
hour
standardNAAQS
at
a
later
point
such
as
when
8­
hour
budgets
are
available,
or
the
end
of
the
1­
hour
maintenance
planning
period.
Under
these
scenarios,
there
would
be
a
period
of
years
where
conformity
would
have
to
be
determined
for
both
standardsNAAQS
at
the
same
time:
a
result
that
EPA
believes
could
lead
to
STAFF
DRAFT
 
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OR
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4/
13/
04
1:
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pm
compared
with
2/
26/
04
version
122
confusion
and
additional
burden
for
transportation
and
air
quality
planners.
The
EPA
believes
it
is
sufficient
that
conformity
be
determined
for
one
ozone
standardNAAQS
at
a
time.
Since
the
8­
hour
NAAQS
is
the
health­
based
standard
and
it
is
the
more
stringent
ofthan
the
two
standards1­
hour
NAAQS,
we
believe
conforming
to
that
standarde
8­
hour
NAAQS
will
be
sufficient.

COMMENT:
Comment:
One
commenter
recommended
that
we
provide
an
option
that
allows
States
to
submit
an
8­
hour
conformity
budget
early
and
suspend
the
1­
hour
conformity
requirements
at
the
time
the
8­
hour
budget
is
determined
to
be
adequate.

Response:
A
second
commenter
suggested
something
similar,
that
EPA
require
States
to
expedite
budgets
for
the
8­
hour
standard
in
areas
where
the
8­
hour
boundary
is
larger.

RESPONSE:
The
EPA
did
not
propose
to
revoke
the
1­
hour
standardNAAQS
earlier
than
one1
year
after
designations,
in
part
because
we
did
not
believe
that
areas
would
be
able
to
submit
an
8­
hour
SIP
earlier
than
one­
year1­
year
following
designation.
Furthermore,
EPA's
proposal
was
intended
to
align
the
revocation
of
the
1­
hour
standardNAAQS
with
the
application
of
conformity
requirements
for
the
8­
hour
STAFF
DRAFT
 
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4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
123
standard
oneNAAQS
1
year
after
the
effective
date
of
8­
hour
nonattainment
designations.
The
EPA
continues
to
believe
it
is
unlikely
that
areas
will
have
adequate
budgets
that
address
the
8­
hour
standardNAAQS
before
EPA
revokes
the
1­

hour
standardNAAQS.
Such
budgets
cannot
stand
alone
but
have
to
be
associated
with
adopted
control
measures
and
demonstrations
of
either
attainment
or
reasonable
further
progressRFP,
and
we
believe
developing
these
SIPs
will
take
States
some
time.
Once
the
SIPs
are
submitted,
EPA
must
find
them
adequate,
a
process
which
EPA
intends
to
complete
within
90
days
of
receiving
a
SIP.
It
is
very
unlikely
that
States
will
be
able
to
complete
the
work
to
submit
8­
hour
ozone
SIPs
one1
year
from
the
effective
date
of
8­
hour
ozone
area
designations,
and
much
less
likely
that
States
will
have
submitted
them
sufficiently
in
time
for
EPA
to
find
them
adequate
before
the
1­
hour
standardNAAQS
is
revoked.

Given
these
facts
and
the
fact
that
EPA
did
not
propose
an
option
for
revoking
the
standard
earlier
than
1
year
after
8­
hour
designations
are
effective,
EPA
does
not
intend
to
provide
for
early
revocation
of
the
1­
hour
standardNAAQS,

nor
will
EPA
require
8­
hour
areas
where
the
boundaries
are
larger
than
or
contiguous
to
the
1­
hour
area
boundary
to
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version
124
expedite
development
of
their
8­
hour
SIP
for
this
purpose.

All
areas
must
submit
SIPs
as
soon
as
practicable,
and
EPA
wants
States
to
develop
quality
SIPs
to
support
attainment
demonstrations
and
conformity
determinations.
Prior
to
the
revocation
of
the
1­
hour
standardNAAQS,
new
transportation
plan
and
TIPstransportation
improvement
plan
must
conform
to
the
applicable
SIP
budgets
for
the
1­
hour
standardNAAQS.

CommentCOMMENT:
Some
commenters
rebutted
EPA's
assertion
that
revoking
the
1­
hour
standardNAAQS
is
necessary
so
that
agencies
can
focus
on
planning
for
the
8­

hour
standardNAAQS.
These
commenters
stated
that
neither
the
revocation
of
the
1­
hour
standard
NAAQS
(
or
the
budgets)

is
justified
on
this
basis
with
respect
to
transportation
and
emissions
modeling,
because
under
either
standardNAAQS,

similar
work
in
establishing
base
year
inventories,
and
future
forecasts
of
travel
and
emissions
must
be
done.
Once
the
resources
are
in
place
to
make
future
forecasts,

commenters
thought
that
the
level
of
effort
in
both
time
and
money
to
produce
analyses
to
different
regional
boundaries
is
relatively
small,
and
ample
resources
are
available
to
pay
for
the
additional
analyses
needed
to
determine
conformity
to
both
standardsNAAQS.

The
EPA
also
received
comments
of
the
opposite
opinion.
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04
version
125
A
number
of
commenters
supported
EPA's
proposal
that
conformity
apply
for
one
standardNAAQS
at
a
time.
One
commenter
stated
that
determining
conformity
for
two
separate
ozone
standardsNAAQS
would
result
in
undue
administrative
burden,
create
confusion
about
requirements
in
the
public
process
and
make
synchronization
of
the
air
quality
and
transportation
planning
processes
more
difficult.
A
couple
of
commenters
argued
that
having
to
determine
conformity
for
both
ozone
standardsNAAQS
would
drain
limited
resources
in
transportation
and
environmental
agencies.
One
of
these
commenters
continuedcontended
that
demonstrating
conformity
for
two
ozone
standardsNAAQS
could
in
fact
delay
progress,
due
to
the
high
administrative
burdens.

ResponseRESPONSE:
While
these
comments
focus
solely
on
the
resources
necessary
to
determine
conformity
for
both
standardsNAAQS,
EPA
believes
a
discussion
of
resources
should
include
all
aspects
of
attainment
planning.
Under
EPA's
proposal,
with
revocation
of
the
1­
hour
standardNAAQS,

conformity
will
no
longer
apply
for
that
standardNAAQS
as
a
matter
of
law.
Therefore,
in
order
for
conformity
to
apply
for
both
standardsNAAQS
as
one
commenter
requests,
both
standardsNAAQS
have
to
be
implemented
at
the
same
time,
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with
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26/
04
version
126
i.
e.,
the
1­
hour
standardNAAQS
would
have
to
be
implemented
in
addition
to
the
8­
hour
standardNAAQS.
This
would
mean
continuation
of
the
requirements
to
demonstrate
attainment
and
maintenance
of
the
1­
hour
as
well
as
the
8­
hour
standardNAAQS.
The
EPA
believes
that
it
would
be
a
substantial
increase
in
burden
for
sStates
to
plan
for
attainment
of
both
standardsNAAQS,
which
includes
conformity
but
also
includes
creating
inventories
for
each
source
sector,
determining
feasible
control
measures,
writing
rules
to
implement
control
measures,
permitting
stationary
sources,
establishing
ROP
plans,
running
iterations
of
air
shed
modeling,
and
demonstrating
attainment.

In
1997,
EPA
determined
that
the
1­
hour
standardNAAQS
is
not
necessary
to
protect
public
health.
Where
they
are
not
required
by
anti­
backsliding
provisions,
EPA
does
not
believe
that
the
additional
burden
States
would
undertake
in
implementingplanning
to
achieve
both
the
1­
hour
and
the
8­

hour
standardNAAQS
is
necessary
to
protect
public
health.

Implementation
of
the
8­
hour
standard
is
sufficient
to
protect
public
health.
We
believe
it
is
appropriate
for
CAA
air
quality
agencies
and
transportation
planning
agencies
to
spend
their
finite
resources
to
meet
the
8­
hour
standard
rather
than
dilute
their
resources
in
planning
for
both
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compared
with
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04
version
127
standards
at
once,
particularly
at
a
time
when
many
governments
are
experiencing
budget
crises
and
must
find
ways
to
trim
expenditures.

2.
What
requirements
that
applied
in
an
area
for
the
1­

hour
NAAQS
continue
to
apply
after
revocation
of
the
1­
hour
NAAQS
for
that
area?

The
June
2,
2003
proposal
addressed
this
issue
in
section(
Section
VI.
C.
3.
(
seeof
proposal;
68
FR
32818).
This
issue
is
addressed
in
Section32820;
section
51.905(
a)
of
the
draft
and
final
rule.
s)

a.
Background.
In
this
section
of
the
June
2,
2003
proposed
rule
(
68
FR
32820),
we
considered
what
obligations
from
subpart
2
that
applied
to
an
area
based
on
its
classification
for
the
1­
hour
ozone
standardNAAQS
should
continue
to
apply
to
such
area
after
it
has
been
designated
for
the
8­
hour
standardNAAQS
and
the
1­
hour
standardNAAQS
has
been
revoked.
We
proposed
that
the
continuity
of
particular
obligations
may
vary
depending
on
the
attainment
status
of
an
area
for
the
8­
hour
standardNAAQS.
The
proposed
rule
addressed
two
categories
of
areas:
(
1)
Aareas
that
are
designated
nonattainment
for
the
8­
hour
standardNAAQS
and
that
were
designated
nonattainment
for
the
1­
hour
standardNAAQS
on
or
after
November
15,
1990;
and
(
2)
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compared
with
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04
version
128
areas
that
are
designated
attainment
for
the
8­
hour
standardNAAQS
and
that
were
designated
nonattainment
for
the
1­
hour
standardNAAQS
on
or
after
November
15,
1990.

Furthermore,
we
divided
the
types
of
obligations
into
four
categories
for
purpose
of
our
analysis:
1)
mandatory
control
measures
(
e.
g.,
NOx
RACT,
I/
M,
and
fuel
programs);
2)

discretionary
control
measures
(
e.
g.,
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);
3)
growth
management
(
NSR);
and
4)
planning
activities
(
attainment
and
maintenance
demonstrations
and
RFP
plans).
We
addressed
conformity
separately
because
it
is
a
subpart
1
requirement.
In
addition,
we
addressed
the
NOx
SIP
Call
separately
since
this
obligation
applies
statewide
and
without
respect
to
the
designation
status
of
areas
within
the
State.

In
the
draft
regulatory
text
released
in
August
2003,

for
areas
designated
nonattainment
for
the
8­
hour
NAAQS,
we
broke
into
two
groups
the
areas
designated
nonattainment
for
the
1­
hour
standardNAAQS
on
or
after
November
15,
1990:
(
1)

areas
that
remain
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
revocation
of
the
1­
hour
NAAQS;
and
(
2)
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pm
compared
with
2/
26/
04
version
29The
draft
regulatory
text
did
not
accurately
reflect
the
preamble
discussion
which
distinguished
maintenance
areas
at
the
time
of
designation
for
the
8­
hour
NAAQS
from
those
that
remained
designated
nonattainment
at
the
time
of
8­
hour
designation.
For
the
final
rule,
we
use
the
time
of
8­
hour
designations
rather
than
the
time
the
1­
hour
standardNAAQS
is
revoked.

129
areas
that
were
designated
nonattainment
for
the
1­
hour
NAAQS
but
that
have
been
redesignated
to
attainment
for
the
1­
hour
NAAQS
(
i.
e.,
"
maintenance
areas")
at
the
time
of
revocation
of
the
1­
hour
NAAQS.
29
In
response
to
comments
on
the
proposed
rule
and
draft
regulatory
text,
the
final
regulation
creates
the
same
sub­
categorization
for
areas
designated
attainment
for
the
8­
hour
NAAQS.
Thus,
iIn
the
final
rule
and
in
the
preamble
discussion
below,
we
also
break
into
the
same
two
groups
the
areas
designated
attainment
for
the
8­
hour
standardNAAQS.
Thus,
in
the
preamble
and
rule
we
consider
the
obligations
that
continue
to
apply
for
four
categories
of
areas:
(
1)
AreasaAreas
that
remain
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
as
nonattainment
for
the
8­
hour
NAAQS;

(
2)
A
areas
that
are
maintenance
areas
for
the
1­
hour
NAAQS
at
the
time
of
designation
as
nonattainment
for
the
8­
hour
NAAQS;
(
3)
A
areas
that
remain
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
as
attainment
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with
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version
130
for
the
8­
hour
NAAQS;
and
(
4)
A
areas
that
are
maintenance
areas
for
the
1­
hour
NAAQS
at
the
time
of
designation
as
attainment
for
the
8­
hour
NAAQS.
Both
the
preamble
and
the
rule
may
use
the
following
terms
to
discuss
these
four
categories:
(
1)
Nonattainment
8­
hour/
Nonattainment
1­
hour
(
2)
Nonattainment
8­
hour/
Maintenance
1­
hour;
(
3)
Attainment
8­
hour/
Nonattainment
1­
hour
(
2)
Attainment
8­

hour/
Maintenance
1­
hour8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
nonattainment
(
2)
8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
maintenance;
(
3)
8­
hour
NAAQS
attainment/
1­
hour
NAAQS
nonattainment
(
4)
8­
hour
NAAQS
attainment/
1­
hour
NAAQS
maintenance.
Under
each
of
these
sections
in
the
preamble,

we
address
how
the
final
rule
treats
the
four
types
of
control
obligations
identified
in
the
proposed
rule:
(
1)

mandatory
control
measures;
(
2)
discretionary
control
measures;
(
3)
growth;
and
(
4)
planning
obligations.

b.
Summary
of
Ffinal
Rrule.

The
approach
we
are
adopting
in
the
final
rule
is
summarized
below
under
the
individual
sections
discussing
each
category
of
area
and
type
of
control
obligation.

c.
Section
51.905(
a)(
1):
8­
Hhour
NAAQS
Nnonattainment/
1­

Hour
NAAQS
Nnonattainment
1.
(
i)
Mandatory
Ccontrol
Mmeasures.
(
Section
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with
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04
version
131
VI.
C.
3.
a.
i.
of
proposed
rule;
see
68
FR
328210;
sections
51.900(
f)
and
51.905(
a)(
1)
of
the
draft
and
final
rules.)

a.
(
A)
Background.
For
areas
designated
nonattainment
for
the
1­
hour
standardNAAQS
at
the
time
they
are
designated
nonattainment
for
the
8­
hour
standardNAAQS,
we
proposed
that,
to
the
extent
the
area
has
met
a
mandatory
SIP
obligation
under
the
CAA
that
is
included
as
part
of
the
approved
SIP,
the
State
may
not
modify
or
remove
that
measure
except
to
the
extent
that
it
may
have
modified
or
removed
that
measure
for
purposes
of
the
1­
hour
standardNAAQS
(
68
FR
32820).
For
example,
if
an
area
was
classified
as
serious
for
the
1­
hour
ozone
standardNAAQS
and
required
to
have
an
enhanced
I/
M
program
as
part
of
its
SIP,

the
State
cannot
remove
the
enhanced
I/
M
program
for
that
area
even
though
it
may
be
classified
as
marginal
or
moderate
for
the
8­
hour
ozone
standardNAAQS.
However,
under
the
proposal,
the
State
may
modify
the
enhanced
I/
M
program
consistent
with
EPA's
enhanced
I/
M
regulations,
just
as
it
may
have
done
for
purposes
of
the
1­
hour
standardNAAQS.
(
We
address
below
when
the
obligation
to
retain
such
control
measures
as
an
active
control
programs
no
longer
applies,

the
geographic
area
in
which
itthe
obligation
applies,
and
the
demonstration
a
State
must
make
at
that
point
to
modify
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with
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04
version
132
the
SIP.)

For
control
measures
that
the
State
has
not
yet
adopted,
we
proposed
that
the
State
remains
obligated
to
adopt
and
submit
such
control
measures.
And,
once
adopted
into
the
approved
SIP,
the
State
may
not
modify
or
remove
such
measures
except
to
the
same
extent
that
it
could
have
modified
or
removed
them
for
purposes
of
the
1­
hour
standardNAAQS.

Our
draft
regulatory
text
referred
to
these
obligations
as
"
applicable
requirements"
and
we
identified
the
subpart
2
mandatory
control
measures
in
the
definitions
section
under
"
applicable
requirements."

b.
(
B)
Summary
of
Ffinal
Rrule.
We
are
adopting
the
approach
we
proposed.
(
See
sections
51.905(
a)(
1)(
i)
and
51.900(
f)
of
the
final
rule.)
All
areas
designated
nonattainment
for
the
8­
hour
ozone
NAAQS
and
designated
nonattainment
for
the
1­
hour
ozone
NAAQS
at
the
time
of
designation
for
the
8­
hour
NAAQS
remain
subject
to
control
measures
that
applied
by
virtue
of
the
area's
classification
for
the
1­
hour
standardNAAQS.

As
we
stated
in
the
preamble
to
the
proposed
rule
(
68
FR
32819),
there
are
a
number
of
provisions
in
the
CAA
that
we
believe
are
evidence
of
Congress'
intent
that
these
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with
2/
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04
version
133
obligations
continue
to
apply
despite
EPA's
determination
that
the
1­
hour
standardNAAQS
is
no
longer
necessary
to
protect
public
health.
For
example,
at
the
time
of
the
1990
Amendments
to
the
CAA,
Congress
designated
and
classified
existing
ozone
nonattainment
areas
(
and
classified
all
other
ozone
nonattainment
areas)
as
a
matter
of
law.
Congress
also
provided
that
areas
could
not
remove
from
the
SIP
controls
mandated
by
subpart
2
even
after
the
area
attains
the
standardNAAQS
and
is
redesignated
to
attainment.
At
most,
the
State
could
move
such
controls
to
the
contingency
plan
provisions
of
the
SIP.
See
CAA
section
175A(
d).
Also
significant
is
that
in
1990,
Congress
enacted
a
provision
specifying
States'
obligations
with
respect
to
control
measures
for
a
NAAQS
after
EPA
revised
that
NAAQS
to
be
less
stringent.
In
section
172(
e),
Congress
specified
that
if
EPA
revises
a
NAAQS
and
makes
it
less
stringent,
EPA
must
promulgate
regulations
applicable
to
areas
that
have
not
yet
attained
the
original
standardNAAQS
to
require
controls
that
are
no
less
stringent
than
the
controls
that
applied
to
areas
designated
nonattainment
prior
to
such
relaxation.
We
believe
that,
if
Congress
intended
areas
to
remain
subject
to
the
same
level
of
control
where
a
NAAQS
was
relaxed
that,

they
also
intended
that
such
controls
not
be
weakened
where
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with
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version
134
the
standardNAAQS
is
made
more
stringent.
Finally,
we
noted
that
the
Supreme
Court
cautioned
against
making
subpart
2
"
abruptly
obsolete."
For
areas
designated
nonattainment
in
1990,
Congress
intended
the
mandatory
requirements
of
subpart
2
to
apply
(
as
implemented
controls
or
contingency
measures)
for
a
significant
period
of
time.
We
believe
if
we
allowed
areas
to
remove
those
mandated
controls
from
their
SIPs
it
would
render
those
provisions
prematurely
obsolete,
contrary
to
Congressional
intent.
We
adopt
in
full
the
analysis
provided
at
68
FR
32819,
1st
and
2nd
columns.

The
final
rule
also
reflects,
with
several
exceptions,

the
table
in
Aappendix
EB
of
the
June
proposal
which
identified
the
applicable
requirements.
The
definition
of
"
applicable
requirements"
in
section
51.900(
f)
of
the
proposed
ruledraft
regulatory
text
erroneously
excluded
some
of
these
requirements
included
in
appendix
B.
The
excluded
requirements
that
weren't
included
in
the
proposed
regulatory
text
definitionsdefinition
of
applicable
requirement
but
are
included
in
the
final
rule
are:

°
Transportation
Control
Measures
(
TCMs)
during
heavy
traffic
hours
as
provided
under
section
182(
e)(
4)
of
the
CAA.
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OR
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1:
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pm
compared
with
2/
26/
04
version
30In
addition,
Appendix
E
treats
1­
hour
NSR
as
an
applicable
requirement
after
the
1­
hour
standard
is
revoked.

135
°
definition
in
the
final
rule
are:

°
Enhanced
(
ambient)
monitoring
under
section
182(
c)(
1)

of
the
CAA.

°
Transportation
controls
under
section
182(
c)(
5)
of
the
CAA.

°
Vehicle
miles
traveled
provisions
of
section
182(
d)(
1)

of
the
CAA.

°
NOx
requirements
under
section
182(
f)
of
the
CAA.

c.
One
exception
in
which
the
final
rule
does
not
reflect
appendix
B
of
the
proposal
concerns
the
requirement
for
reformulated
gasoline
(
RFG).
Appendix
B
erroneously
included
RFG
as
an
applicable
requirement
under
subpart
2.

As
discussed
below
under
"
Comments
and
responses,"
it
is
not
an
applicable
requirement
under
subpart
2
and
is
not
included
as
such
in
section
51.900(
f)
of
the
final
rule.
In
addition,
Appendix
B
listed
NSR
(
major
source
applicability
and
offets)
as
"
applicable
requirements"
under
subpart
2.

Although
these
would
be
applicable
requirements
under
subpart
2
for
the
8­
hour
standard,
they
would
not
be
applicable
requirements
under
subpart
2
for
the
1­
hour
standard
after
the
1­
hour
standard
is
revoked.
30
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OR
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pm
compared
with
2/
26/
04
version
Under
the
final
rule,
1­
hour
NSR
would
not
apply
after
the
1­
hour
standard
is
revoked.
At
that
point,
a
State
may
remove
from
the
SIP
the
NSR
provisions
applicable
to
the
1­
hour
NAAQS
if
the
State
makes
a
demonstration
under
Section
110(
l)
that
the
revision
would
not
interfere
with
attainment
or
reasonable
further
progress.

136
(
C)
Comments
and
Rresponses
COMMENT:
Concerning
the
June
2,
2003
proposal,
several
commenters
believed
that
not
all
control
requirements
required
by
an
area's
1­
hour
classification
would
necessarily
help
achieve
the
8­
hour
standardNAAQS
and
therefore
opposed
the
proposed
anti­
backsliding
provisions.

Other
commenters
supported
the
proposal.

Concerning
the
draft
regulatory
text,
commenters
generally
reiterated
their
comments
from
the
June
2,
2003
notice
in
commenting
on
the
draft
regulatory
text.

RESPONSE:
As
we
noted
above
and
in
the
preamble
to
the
proposed
rule,
we
examined
the
CAA
as
a
whole
to
discern
Congressional
intent
since
Congress
did
not
specifically
address
anti­
backsliding
where
EPA
promulgated
a
more
stringent
NAAQS.
After
considering
the
"
as
a
matter
of
law"

designation
and
classification
for
the
1­
hour
standardNAAQS,

section
172(
e),
and
the
CAA's
redesignation
provisions,
we
believe
that
Congress
intended
these
areas
to
continue
to
implement
requirements
that
applied
in
the
area
for
the
1­
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compared
with
2/
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04
version
137
hour
NAAQS.

2.

COMMENTS:
The
EPA's
June
2
proposal
listed
RFG
in
appendix
B
as
an
"
applicable
requirement"
for
severe
and
above
ozone
nonattainment
areas;
it
was
also
listed
as
an
"
applicable
requirement"
in
the
draft
regulatory
text
under
section
51.900(
f).
The
EPA
received
a
number
of
comments
addressing
RFG
requirements.
Some
commenters
argued
that
the
program
was
of
no
environmental
benefit
in
certain
locations,
and
should
not
be
required.
One
commenter
suggested
that
where
it
is
estimated
that
the
costs
per
ton
of
VOC
removal
would
be
around
$
36
million
per
daily
ton
removed
or
around
$
100,000
per
annual
ton
removed,
with
no
measurable
benefit
to
ozone
levels,
that
requiring
use
of
RFG
would
be
an
"
absurd
result"
justifying
a
waiver
of
the
RFG
requirement.

One
commenter
argued
that
the
rules
providing
for
ozone
nonattainment
areas
to
opt­
in
to
the
RFG
program
should
be
liberalized,
to
allow
additional
areas
to
avail
themselves
of
the
benefits
of
RFG.
Other
commenters
argued
against
such
liberalization,
on
the
basis
that
the
fuels
industry
is
already
burdened
with
implementation
of
far­
reaching
fuels
regulations
and
does
not
need
the
additional
difficulties
that
would
be
associated
with
the
proliferation
of
RFG
opt­
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compared
with
2/
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04
version
138
ins.

RESPONSE:
The
EPA
has
decided
that
it
is
not
appropriate
to
list
RFG
as
an
"
applicable
requirement"
in
the
final
rule
in
section
51.900(
f).
The
RFG
program
is
not
adopted
as
a
State
program
in
SIPs,
as
are
the
other
"
applicable
requirements"
listed
in
today's
final
rule.
Rather,
RFG
is
required
under
a
Federal
program.
It
is
prescribed
in
some
instances
by
statute,
and
in
other
instances
States
are
allowed
to
opt­
in
and
opt­
out
of
the
program
in
accordance
with
Federal
statutory
prescriptions
and
EPA
rules.
The
EPA
recognizes
that
the
scope
and
applicability
of
the
RFG
program
during
and
after
implementation
of
the
new
8­
hour
ozone
standard
raises
various
issues
that
need
further
clarification.
However,
such
clarification
is
more
appropriately
provided
in
a
separate
undertaking.
Since
Federal
RFG
does
not
appear
on
the
list
of
"
applicable
requirements"
in
subpart
2
this
final
rule,
there
is
no
need
to
respond
in
this
rulemaking
to
the
comments
regarding
implementation
of
the
RFG
program.
Therefore,
while
not
an
"
applicable
requirement"
under
today's
rules,
the
RFG
requirement
is
nonetheless
applicable
under
the
CAA
for
certain
areas,
and
EPA
will
determine
in
the
future
whether
this
requirement
would
change
for
these
areas
when
they
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version
139
attain
the
ozone
NAAQS.

COMMENT:
One
commenter
noted
that
the
language
in
the
draft
regulatory
text
is
based
upon
the
date
of
revocation
of
the
1­
hour
ozone
NAAQS,
which
is
at
least
one
year
later
than
that
specified
in
the
proposed
rule.
The
date
of
revocation
is
also
highly
uncertain
compared
to
the
date
of
designation,
which
is
driven
by
the
Consent
Decree.
The
Draft
Regulatory
Text
therefore
conflicts
with
the
proposed
rule
language.
The
commenter
prefers
use
of
the
date
of
designation
for
these
and
other
applicable
requirements.

RESPONSE:
The
regulatory
text
has
been
revised
to
key
the
requirement
from
the
effective
date
of
designation
for
the
8­
hour
NAAQS.

Text
Moved
Here:
1
COMMENT:
One
commenter
believed
there
was
a
conflict
between
the
June
2,
2003
notice
and
the
draft
regulatory
text
concerning
the
timing
of
the
1­
hour
NSR
obligation.
The
draft
section
51.905(
a)(
1)
provision
would
apply
for
areas
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
revocation
of
the
1­
hour
NAAQS,
but
the
June
2,
2003
notice
provision
would
apply
to
areas
designated
nonattainment
for
the
1­
hour
standardNAAQS
at
the
time
of
designation
of
the
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pm
compared
with
2/
26/
04
version
140
8­
hour
NAAQS.
The
commenter
recommended
that
the
rule
be
based
on
the
date
of
designation
for
the
8­
hour
standardNAAQS.

End
Of
Moved
Text
RESPONSE:
We
agree
there
was
a
conflict
in
the
draft
regulatory
text
on
this
matter.
However,
as
discussed
below,
the
final
differs
from
the
proposal
in
that
NSR
under
the
1­
hour
standard
would
not
be
retained
after
the
1­
hour
standard
is
revoked.

(
ii)
Discretionary
control
measures
.
This
discussion
of
discretionary
measures
also
addressesincludes
how
we
plan
to
treat
enforceable
commitments
approved
into
the
SIP.

(
Ssection
VI.
C.
3.
a.
ii.
of
proposed
rule,
see
68
FR
32821,

and
Ssection
VI.
C.
3.
a.
v.
of
proposed
rule;
see
68
FR
32822;

Section
51.905(
d)
of
draft
regulatory
textand
final
rules;

there
is
no
parallel
provision
in
the
final
rule.)

a.
(
A)
Background.
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
proposed
that
States
retain
the
discretion
they
now
have
to
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with
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version
31
For
purposes
of
the
preamble
to
this
rulemaking,
whenever
we
state
that
a
State
must
make
the
demonstration
required
under
section
110(
l)
to
modify
its
SIP,
we
also
mean
that
the
State
must
make
the
required
demonstration
under
section
193
to
the
extent
the
affected
area
is
designated
nonattainment
and
the
SIP
requirement
the
State
is
modifying
was
a
control
requirement
in
effect
or
required
to
be
in
effect
prior
to
November
15,
1990.

141
modify
these
requirements
in
their
SIPs.
For
purposes
of
the
1­
hour
standardNAAQS,
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).
31
FOnce
the
1­
hour
standard
is
revoked,
for
purposes
of
the
8­
hour
standardNAAQS,
the
same
discretion
to
modify
a
SIP
would
apply
except
the
State
would
need
to
make
the
demonstration
required
by
section
110(
l)
with
respect
to
the
8­
hour
standardNAAQS,
not
the
1­
hour
standardNAAQS.
See
68
FR
32821
for
an
example
of
how
this
would
work.

We
also
proposed
that
States
remain
obligated
to
meet
enforceable
commitments
approved
into
a
SIP
to
the
same
extent
as
if
they
were
adopted
measures
(
68
FR
32822).
This
includes
enforceable
commitments
to
perform
a
mid­
course
review.
The
only
way
a
State
may
modify
or
remove
such
a
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version
142
commitment
is
through
a
SIP
revision
making
the
required
demonstration
under
section
110(
l).

b.
(
B)
Summary
of
Ffinal
Rrule.
We
are
adopting
the
approach
we
set
forth
in
our
proposed
rule.
A
State
may
revise
or
remove
discretionary
control
measures
(
including
enforceable
commitments)
contained
in
its
SIP
for
the
1­
hour
standardNAAQS
so
long
as
the
State
demonstrates
consistent
with
section
110(
l)
that
such
removal
or
modification
will
not
interfere
with
attainment
of
or
progress
toward
the
8­
hour
ozone
NAAQS
(
or
any
other
applicable
requirement
of
the
CAA).
Under
the
rule,
States
remain
obligated
to
meet
any
SIP­
approved
commitment
to
perform
a
mid­
course
review.

These
SIP
commitments
generally
do
not
bind
the
States
to
take
any
specific
action
in
response
to
the
results
of
the
mid­
course
review.
The
EPA
anticipates
that
rather
than
using
these
reviews
to
ensure
areas
meet
the
1­
hour
standardNAAQS
(
which
will
have
been
revoked),
States
and
EPA
can
use
these
reviews
to
ensure
progress
is
being
made
consistent
with
needs
for
the
8­
hour
standardNAAQS.

Note,
however,
that
since
general
provisions
for
modifying
or
removing
control
measures
in
a
SIP
are
already
provided
in
the
statute
(
sections
110(
l)
and
193),
we
do
not
believe
there
is
a
need
to
have
a
duplicative
provision
in
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2/
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04
version
143
this
final
rule.
Therefore,
even
though
the
draft
regulatory
text
contained
such
a
provision
(
section
51.905(
d)),
the
final
rule
does
not
contain
that
provision.

c.
(
C)
Comments
and
Rresponses
COMMENT:
Several
commenters
supported
the
proposal
regarding
discretionary
control
measures.
SeveralOther
commenters
believed
that
States
should
not
be
held
to
commitments
to
submit
the
mid­
course
review
required
under
their
1­
hour
SIP.
SeveralSome
commenters
objected
to
the
provision
in
draft
regulatory
text
for
allowing
"
relaxations"
of
the
SIP
under
sections
110(
l)
and
193
of
the
CAA.
Several
commenters
believed
that
the
rule
should
clarify
that
revisions
could
be
made
to
control
requirements
under
section
51.905(
a)
in
addition
to
those
not
covered
under
section
51.905(
a).

RESPONSE:
Sections
110(
l)
and
193
allow
States
to
modify
the
discretionary
controls
in
their
SIPs
if
the
provisions
of
those
sections
are
met.
While
we
believe
it
is
important
to
prevent
backsliding
consistent
with
the
statutory
provisions,
we
do
not
believe
it
is
appropriate
to
further
restrain
the
discretion
Congress
granted
to
States
in
determining
the
appropriate
mix
of
controls
in
the
SIP.

We
believe
that
a
State
may
revise
discretionary
controls
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04
version
144
approved
in
its
SIP
as
long
as
it
meets
the
criteria
specified
in
sections
110(
l)
and
193.
We
believe
the
anti­
backsliding
provisions
of
Sectionstests
provided
in
sections
110(
l)
and
193
will
prevent
the
adverse
effects
envisioned
by
the
commenter.

3.
(
iii)
Measures
to
address
growth.
(
Ssection
VI.
C.
3.
a.
iii
of
proposed
rule;
see
68
FR
32821;
sections
51.900(
f)
and
51.905(
a)(
1)
of
the
draft
and
final
rule.)

a.
(
A)
Background.
In
general,
the
SIP
provisions
in
the
CAA
include
twoone
provisions
to
address
growth
 
nonattainment
NSR
and
conformity.
We
discuss
conformity
for
all
areas
in
a
later
section.

For
areas
designated
nonattainment
for
the
1­
hour
standard
at
the
time
of
designation
for
the
8­
hour
standard
and
that
are
designated
nonattainment
for
the
8­
hour
standardthat
are
8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
nonattainment,
we
proposed
in
the
June
2,
2003
notice
that
the
major
source
applicability
cut­
offs
and
offset
ratios
for
nonattainment
NSR
that
applied
for
an
area's
1­
hour
classification
continue
to
apply.

b.
(
B)
Summary
of
Final
Rule.
We
are
adopting
the
approach
set
forth
in
our
proposed
rule.
For
areas
designated
nonattainment
for
the
1­
hour
standard
at
the
time
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
145
of
designation
for
the
8­
hour
NAAQS
and
that
are
designated
nonattainment
for
the
8­
hour
standard,
the
major
source
applicability
cut­
offs
and
offset
ratios
for
the
area's
1­

hour
classification
continue
to
apply.
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
area
would
remain
subject
to
an
offset
ratio
of
1.3:
1
and
a
major
source
threshold
of
25
tons/
year.
(
We
discuss
the
geographic
area
that
remains
subject
to
this
obligation
in
a
later
section.)

For
those
areas
that
have
not
yet
met
the
1­
hour
clean
air
goal
(
or
have
met
the
goal,
but
have
not
yet
been
redesignated
to
attainment
and
therefore
allowed
to
stop
implementing
their
1­
hour
nonattainment
NSR
program),
we
believe
it
is
appropriate
to
require
the
area
to
continue
to
comply
with
its
current
program.
For
the
reasons
stated
above,
we
do
not
believe
that
Congress
intended
areas
to
revise
their
SIPs
to
weaken
obligations
where
EPA
has
promulgated
a
revised,
more
stringent
NAAQS.
We
discuss
the
timing
in
a
later
section.

c.
Comments
and
Responses
Several
commenters
supported
the
proposed
rule.
Other
commenters
believed
the
1­
hour
standard
should
not
be
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
146
revoked
at
all,
and
therefore
there
would
not
be
a
need
for
the
anti­
backsliding
provision
regarding
NSR.
One
commenter
noted
that
the
language
in
the
draft
regulatory
text
is
based
upon
the
datefinal
rule.
The
final
rule
treats
1­
hour
NSR
as
a
requirement
that
will
no
longer
apply
once
the
1­

hour
NAAQS
is
revoked.
We
provide
a
more
thorough
discussion
of
the
approach
in
our
final
rule
and
the
rationale
in
the
section
below
discussing
1­
hour
NAAQS
obligations
that
no
longer
apply
as
of
revocation
of
the
1­

hour
ozone
NAAQS,
which
is
at
least
one
year
later
than
that
specified
in
the
proposed
rule.
The
date
of
revocation
is
also
highly
uncertain
compared
to
the
date
of
designation,

which
is
driven
by
the
Consent
Decree.
The
Draft
Regulatory
Text
therefore
conflicts
with
the
proposed
rule
language.

The
commenter
prefers
use
of
the
date
of
designation
for
these
and
other
applicable
requirements.

RESPONSE:
The
regulatory
text
has
been
revised
to
key
the
requirement
from
the
effective
date
of
designation
for
the
8­
hour
standard.
We
address
the
issue
of
theNAAQS.

(
C)
Comments
and
responses.
Comments
and
responses
are
included
in
the
section
below
discussing
1­
hour
NAAQS
obligations
that
no
longer
apply
as
of
revocation
of
the
1­

hour
standard
elsewhere
in
this
notice
and
do
not
repeat
it
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
32
In
this
rulemaking,
we
use
"
ROP"
to
refer
to
the
rate
of
progress
requirement
for
the
1­
hour
standardNAAQS
and
"
RFP"
to
refer
to
both
the
rate
of
progress
requirement
under
subpart
2
and
the
reasonable
further
progress
requirement
under
subpart
1
for
the
8­
hour
ozone
standardNAAQS.

147
hereNAAQS.

4.
(
iv)
Planning
SIPs.

a.
(
A)
Outstanding
ROP
Oobligation.
This
was
discussed
in
Section(
section
VI.
C.
3.
a.
iv
of
proposal
(
see;
68
FR
32822)
and
addressed
in
s;
Section
51.905(
a)(
1)
of
the
draft
regulatory
text.
and
final
rules)

(
i1)
Background.
In
the
June
2,
2003
noticeproposal,

we
proposed
that
States
remain
obligated
to
address
separately
1­
hour
ROP
requirements
that
do
not
overlap
with
RFP
obligations
for
the
8­
hour
NAAQS.
32
Where
outstanding
ROP
and
RFP
obligations
overlap,
the
area
need
not
submit
a
separate
ROP
plan
for
the
1­
hour
standardNAAQS
but
must
show
that
the
8­
hour
ROP
plan
is
no
less
stringent
than
the
1­

hour
ROP
requirement.
For
ROP
provisions
already
adopted
into
the
SIP,
we
proposed
that
the
State
may
remove
or
revise
control
measures
needed
to
meet
the
ROP
milestone
if
such
control
measures
were
discretionary
(
i.
e.,
not
mandated
by
subpart
2
for
the
area's
1­
hour
classification),
as
discussed
above,
and
the
State
makes
a
demonstration
under
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
148
section
110(
l)
including
a
demonstration
that
the
revision
will
not
interfere
with
meeting
the
1­
hour
ROP
and
8­
hour
RFP
goals.

(
ii2)
Summary
of
Ffinal
Rrule.
We
are
adopting
the
approach
set
forth
in
our
proposed
rule
for
areas
designated
nonattainment
for
the
8­
hour
NAAQS
and
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
areas
are
designated
for
the
8­
hour
NAAQSthat
are
8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
nonattainment.
States
remain
obligated
to
meet
the
CAA­
mandated
ROP
emission
reduction
targets
that
applied
for
the
1­
hour
standardNAAQS,
but
discretionary
measures
adopted
to
meet
those
targets
may
be
modified,
if
the
State
makes
the
necessary
showing
under
section
110(
l).

In
addition,
we
are
providing
further
clarification
regarding
how
this
obligation
applies.
Areas
that
have
an
outstanding
obligation
for
an
approved
1­
hour
ROP
SIP
for
one
or
more
of
the
ROP
periods
(
e.
g.,
1999­
2002,
2002­
2005,

2005­
2007)
must
still
develop
and
submit
to
EPA
(
if
they
have
not
already
done
so)
all
outstanding
1­
hour
ROP
plans.

Where
a
1­
hour
ROP
obligation
overlaps
with
an
8­
hour
RFP
requirement,
the
State's
8­
hour
RFP
measures
can
be
used
to
satisfy
the
1­
hour
ROP
obligation.
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
149
The
State
may
choose
to
show
that
both
the
8­
hour
and
1­
hour
ROP
obligations
are
met
through
a
single
8­
hour
plan
submittal.
To
prevent
backsliding,
the
State
must
ensure
that
the
8­
hour
RFP
emission
plan
is
at
least
as
stringent
as
the
1­
hour
ROP
emission
target,
for
the
year
in
which
1­

hour
ROP
must
be
met.
The
State
may
do
this
by
first
establishing
an
RFP
emission
target
for
the
entire
8­
hour
ozone
nonattainment
area,
for
the
1­
hour
ROP
target
year.

If
the
8­
hour
RFP
emission
target
for
the
8­
hour
area
for
the
same
period
is
more
stringent
than
the
1­
hour
ROP
emission
target
for
the
1­
hour
area
(
assuming
the
8­
hour
area
includes
the
entire
1­
hour
area),
the
State
is
not
obligated
to
submit
a
separate
1­
hour
ROP
plan,
but
can
rely
solely
on
the
8­
hour
RFP
plan
and
emission
target
to
demonstrate
that
the
1­
hour
target
will
be
met.
T
However,

the
State
must
ensure
that
the
emission
target
will
be
met
for
the
same
period
as
for
1­
hour
ROP
(
e.
g.,
2003­
2005).

The
State
may
rely
on
any
control
measure
to
meet
both
ROP
for
the
1­
hour
standardNAAQS
and
RFP
for
the
8­
hour
standardNAAQS.
Appendix
A
below
provides
an
example
of
how
this
might
work.

As
indicated
iIn
the
June
2,
2003
proposal
(
68
FR
32835),
we
proposed
that
this
pthe
Agency's
Clean
Data
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
33Op
cit.

150
Policy33
would
remain
effective
under
the
8­
hour
ozone
NAAQS,
and
we
therefore
intend
to
apply
this
policy
in
implementing
this
final
rule
for
areas
that
achieve
the
8­
hour
standardNAAQS.
Thus,
if
an
area
attains
the
8­
hour
ozone
standardNAAQS,
under
the
Agency's
"
Clean
Data
Policy,"

EPA
may
waive
the
1­
hour
RFP
obligation
for
the
area
based
on
a
determination
that
the
area
has
attained
the
8­
hour
standardNAAQS.
Under
that
policy,
the
State
will
not
be
subject
to
the
1­
hour
RFP
requirement
for
so
long
as
the
area
remains
in
attainment
with
the
8­
hour
standardNAAQS.

(
The
EPA
will
address
the
applicability
of
the
Clean
Data
Policy
for
8­
hour
ozone
nonattainment
areas
in
Phase
2
of
the
implementation
rule.)

We
believe
that
there
is
ambiguity
in
the
statute
regarding
whether
areas
should
remain
subject
to
the
requirement
to
submit
planning
SIPs,
such
as
the
1­
hour
ROP
plans.
Unlike
control
obligations,
we
do
not
believe
there
is
as
strong
an
argument
that
Congress
intended
areas
to
continue
to
submit
planning
SIPs
for
a
standardNAAQS
that
EPA
has
determined
is
no
longer
necessary
to
protect
public
health.
Section
172(
e),
which
applies
when
EPA
relaxes
a
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
151
NAAQS,
only
requires
EPA
to
ensure
that
control
measures
are
no
less
stringent
than
they
were
for
the
more
stringent
NAAQS
that
has
been
replaced.
It
does
not
indicate
a
Congressional
intent
that
areas
remain
obligated
to
plan
for
and
meet
a
NAAQS
as
it
existed
before
it
was
revised
NAAQS.

However,
both
attainment
demonstrations
and
ROP
plans
result
in
the
adoption
of
control
obligations.
And,
if
EPA
determined
that
these
planning
requirements
did
not
apply
at
all,
areas
currently
designated
nonattainment
for
the
1­
hour
standardNAAQS
that
have
not
met
these
obligations
might
be
subject
to
less
stringent
controls
than
would
have
otherwise
applied.
Thus,
in
considering
how
to
treat
this
obligation,

we
balanced
the
need
to
ensure
the
same
level
of
control
with
the
difficulties
associated
with
meeting
this
obligation.

For
purposes
of
ROP,
the
exercise
of
calculating
the
reductions
necessary
to
meet
ROP
is
relatively
simplye.

Moreover,
as
provided
above,
even
if
the
State
must
calculate
ROP
separately
for
the
1­
hour
and
8­
hour
standardsNAAQS,
it
may
still
rely
on
one
or
more
of
the
same
control
measures
to
meet
both
those
obligations.

Additionally,
we
believe
that
most
of
the
areas
with
an
outstanding
1­
hour
ROP
obligation
will
be
able
to
STAFF
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
152
demonstrate
that
the
8­
hour
RFP
targets
for
the
same
time
period
will
be
more
stringent
and
thus
will
not
be
required
to
prepare
a
separate
1­
hour
ROP
plan.
Finally,
we
note
that
States
have
already
submitted
and,
EPA
has
already
approved
1­
hour
ROP
plans
for
most
1­
hour
nonattainment
areas.
Thus,
the
anti­
backsliding
provisions
regarding
the
continued
obligation
to
adopt
and
submit
1­
hour
ROP
plans
will
affect
only
a
handful
of
areas.
For
these
reasons,
we
are
adopting
a
regulation
that
requires
areas
that
remain
nonattainment
for
the
1­
hour
standard
at
the
time
of
revocation
of
the
1­
hour
standard
to
continue
toare
8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
nonattainment
to
continue
to
adopt
and
achieve
the
level
of
ROP
reductions
mandated
by
Congress
under
the
CAA
for
that
standardNAAQS.

(
iii3)
Comments
and
Rresponses
Comments
on
the
JuneCOMMENTS
ON
JUNE
2,
2003
noticePROPOSAL:

Few
commenters
submitted
comments
on
the
portion
of
the
proposed
rule
discussing
the
anti­
backsliding
requirements
applicable
to
1­
hour
ROP.
Several
commenters
generally
opposed
any
continued
planning
obligations
under
the
1­
hour
standardNAAQS,
but
did
not
raise
specific
concerns
with
respect
to
ROP.
Similarly,
a
number
of
other
commenters
STAFF
DRAFT
 
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NOT
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OR
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4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
153
opposed
revocation
of
the
1­
hour
standardNAAQS
and
urged
retention
of
all
1­
hour
planning
and
control
obligations;

but
again,
these
commenters
did
not
raise
concerns
specific
to
the
proposed
anti­
backsliding
approach
for
ROP.

One
commenter,
addressing
section
51.905(
a)(
1)(
iii)
of
the
draft
regulatory
text,
argued
that
States
should
have
the
ability
to
modify
ROP
measures
if
it
can
be
demonstrated
that
they
are
not
needed
for
purposes
of
meeting
requirements
under
the
8­
hour
standardNAAQS
or
if
measures
are
no
longer
appropriate
due
to
updated
technical
information
regarding
emissions
inventory
and
control
strategy
effectiveness.
Another
commenter
objected
to
retaining
the
1­
hour
ROP
requirement,
primarily
because
areas
recently
reclassified
to
a
higher
classification
would
have
a
continuing
obligation
for
ROP
even
if
they
were
not
required
to
develop
an
RFP
plan
under
the
8­
hour
standardNAAQS.
Another
commenter
believed
the
1­
hour
ROP
requirement
should
only
be
required
where
it
is
demonstrated
to
be
needed
for
attainment
of
the
8­
hour
standardNAAQS.

RESPONSE:
As
provided
above,
we
believe
the
best
interpretation
of
the
Act
is
that
areas
must
continue
to
meet
obligationsCongress
intended
areas
to
continue
to
have
control
measures
no
less
stringent
than
those
that
applied
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
154
for
their
1­
hour
classificationsNAAQS.
TBecause
the
ROP
obligation
results
in
control
obligations
that
will
help
the
area
attain
the
8­
hour
standard.
Further,
if
States
believe,
we
believe
areas
should
remain
obligated
to
adopt
outstanding
ROP
obligations
to
ensure
that
the
ROP
milestones
are
met.
If
a
State
believes
adopted
controls
are
not
the
best
fit
for
the
8­
hour
standardNAAQS,
the
State
retains
full
discretion
to
revise
those
controls
so
long
as
the
revision
doesn't
interfere
with
the
ROP
milestones.

Without
this
provision,
an
area
with
an
unmet
obligation
to
prepare
submit
and
implement
a
rate
of
progressROP
plan
under
the
1­
hour
standardNAAQS
could
experience
backsliding
by
being
released
from
a
requirement
to
continue
progress
toward
attainment
of
the
ozone
standardthe
obligation
to
have
controls
in
place
that
achieve
a
specified
level
of
emissions
reductions
during
the
interim
period
prior
to
implementation
of
the
SIP
required
for
the
8­
hour
NAAQS.
In
other
words,
if
the
1­
hour
standardNAAQS
were
not
revoked,
the
area
would
have
been
required
to
continue
to
ensure
emissions
would
be
reduced
toby
specified
levels
designed
to
ensure
progress
toward
meeting
the
1­
hour
standardin
specific
timeframes.
If
the
final
rule
contained
no
provision
comparable
to
section
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compared
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04
version
155
51.905(
a)(
1)(
i),
achievement
of
those
emissions
reductions
couldwould
almost
certainly
be
delayed.
Because
we
are
transitioning
to
a
more
stringent
and
protective
air
quality
standardNAAQS.
we
see
no
reason
why
there
should
be
provisions
that
would
provide
less
protection
to
public
health.

b.
(
B)
Unmet
attainment
demonstration
obligations
(
Ssection
VI.
C.
3.
a.
iv
of
proposal;
see
68
FR
32822;
section
51.905(
a)(
1)(
ii)
of
the
draft
and
final
rules)

(
i1)
Background.
Most
areas
designated
nonattainment
for
the
1­
hour
ozone
standardNAAQS
have
fully
approved
attainment
demonstrations
for
the
1­
hour
standardNAAQS.

Because
there
are
so
few
areas
without
approved
attainment
demonstrations,
in
the
proposed
rule
we
identified
the
two
types
of
situations
of
which
we
were
aware
and
solicited
comment
on
how
to
handle
those
situations.
First,
there
are
a
few
areas
that
do
not
have
a
fully
approved
attainment
demonstration
because
the
area
has
not
acted
in
accordance
with
the
time
linestimelines
provided
under
the
ActCAA.
The
second
situation
is
an
area
which
has
a
future
obligation
to
submit
an
attainment
demonstration.
In
general,
these
are
areas
that,
over
the
past
several
years,
have
been
reclassified
(
i.
e.,
"
bumped
up")
to
a
higher
classification.
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04
version
156
In
the
preamble
to
the
proposal,
we
discussed
the
policy
reasons
that
would
support
retention
of
the
obligation
to
submit
an
attainment
demonstration
and
the
policy
reasons
that
would
counsel
against
retention
of
that
obligation.

(
68
FR
32822).
For
both
these
groups
of
areas,
we
solicited
comment
on
whether
to
retain
the
obligation
to
develop
a
1­
hour
attainment
demonstration.
In
addition,
we
solicited
comment
on
two
alternatives
that
would
address
many
of
the
policy
concerns
we
noted.

Alternative
1
would
require
that
areas
with
a
current
or
past
due
obligation
to
submit
a
new
or
revised
attainment
demonstration
instead
be
required
to
submit
a
SIP
revision
that
would
obtain
an
advance
increment
of
local
emissions
reductions
toward
attainment
of
the
8­
hour
ozone
standardNAAQS
within
a
specified,
short­
term
time
frametimeframe;
5
percent
and
10
percent
were
suggested
possibilities
for
the
increment.
Under
Alternative
2,
areas
with
a
current
or
past
due
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.
The
draft
regulatory
text
was
developed
using
the
first
alternative,
and
used
a
10
percent
increment.
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04
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pm
compared
with
2/
26/
04
version
157
(
ii2)
Summary
of
Ffinal
Rrule.
In
the
final
rule,
we
are
allowing
the
States
to
choose
among
three
options
that
are
tailored
after
the
approaches
addressed
in
the
proposed
rule.
Thus,
rather
than
establishing
one
mandatory
approach,
we
are
adopting
a
rule
that
will
allow
States
to
choose
any
one
of
the
following
three
options:

°
Option
1.
Submit
a
1­
hour
attainment
demonstration.

°
Option
2.
Submit,
no
later
than
one1
year
after
the
effective
date
of
the
8­
hour
designations,
an
early
increment
of
progress
plan
toward
the
8­
hour
standardNAAQS
which
provides:

°
A
5
percent
increment
of
reduction
from
the
2002
emissions
baseline
(
NOx
and/
or
VOC).
The
control
measures
for
achieving
this
increment
must
be
in
addition
to
measures
(
or
enforceable
commitments
to
measures)
in
the
SIP
as
of
the
effective
date
of
designation
and
in
addition
to
national
or
regional
measures.
(
The
State
can
take
credit
for
this
increment
of
reduction
toward
its
RFP
requirement
under
the
8­
hour
standardNAAQS.)

°
For
achievement
of
the
emissions
reductions
within
2
years
after
submittal
(
i.
e.,
3
years
after
designation).
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compared
with
2/
26/
04
version
34The
amount
of
which
will
depend
on
the
ROP
option
in
the
final
rule
and
the
classification
of
the
area.

158
°
Option
3.
Submit
an
early
8­
hour
ozone
attainment
demonstration
SIP
one1
year
after
the
effective
date
of
designation
for
the
8­
hour
standardNAAQS
that:

°
Demonstrates
attainment
of
the
8­
hour
standardNAAQS
by
the
area's
attainment
date,

°
Provides
for
8­
hour
RFP
consistent
with
the
area's
classification
out
to
the
area's
attainment
date.,
and
°
Ensures
that
the
first
segment
of
RFP34
between
the
end
of
2002
and
the
end
of
2008
is
achieved
early
 
by
the
end
of
2007.

With
respect
to
Option
2,
the
final
rule
specifies
a
2002
baseline
year
for
calculating
the
early
increment
of
progress
whereas
the
draft
regulatory
text
did
not
provide
a
specific
baseline
year.

As
noted
above
in
the
ROP
section,
we
believe
the
statute
is
unclearambiguous
regarding
the
need
for
States
to
address
planning
for
a
standardNAAQS
no
longer
needed
to
protect
public
health.
However,
since
these
planning
SIPs
result
in
the
adoption
of
control
measures,
which
we
believe
Congress
intended
be
no
less
stringent,
we
examined
what
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compared
with
2/
26/
04
version
159
approaches
would
ensure
controls
are
adopted
and
implemented
without
unnecessarily
obligating
States
to
plan
for
a
NAAQS
not
needed
to
protect
public
health.

Unlike
planning
for
ROP,
preparing
an
attainment
demonstration
involves
complex
modeling
and
analyses
that
can
be
resource
intensive
both
in
terms
of
man­
hoursworkload
and
cost.
We
don't
believe
it
is
appropriate
or
necessary
to
mandate
that
States
perform
the
attainment
demonstration
for
a
standardNAAQS
that
is
not
needed
to
protect
public
health.
But
we
also
do
not
believe
it
is
appropriate
to
waive
in
total
this
obligation
in
light
of
the
need
to
ensure
continuedthere
is
no
delay
in
achieving
emissions
reductions
to
protect
public
health.
We
are
adopting
thisan
approach
that
provides
States
with
options
because
it
provides
maximum
flexibility
to
States
that
have
outstanding
attainment
demonstration
obligations
while
continuing
to
obtain
in
a
timely
fashion
many
or
all
of
the
emissions
reductions
that
should
occur
under
those
obligations,

effecting
an
orderly
transition
to
planning
under
the
8­
hour
standardNAAQS.
In
addition,
we
do
not
believe
it
is
equitable
to
relieve
these
areas
of
this
obligation
where
other
areas
have
already
adopted
controls
to
meet
these
obligations
and
will
not
be
able
to
modify
or
remove
such
STAFF
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compared
with
2/
26/
04
version
160
controls
unless
the
State
can
demonstrate
that
such
action
is
consistent
with
section
110(
l).

Thus,
in
balancing
Congressional
intent
to
ensure
no
backsliding,
equitable
treatment
of
all
areas,
the
need
for
areas
to
begin
planning
for
the
8­
hour
standardNAAQS
and
the
limited
planning
resources
that
States
have
available,
we
believe
the
best
approach
is
to
provide
States
with
several
alternatives,
each
of
which
will
achieve
additional
and/
or
early
emissions
reductions
consistent
with
reductionson
a
timeframe
similar
to
when
thatey
would
have
been
achieved
for
the
1­
hour
NAAQS
through
a
1­
hour
attainment
demonstration
SIP.
The
State
may
choose
the
option
that
is
least
burdensome
in
light
of
activities
already
performed.

For
example,
States
with
a
1­
hour
attainment
demonstration
that
is
past
due
or
is
due
in
the
next
several
months
may
have
already
made
significant
progress
in
developing
a
1­

hour
attainment
demonstration
SIP.
Thus,
these
State
may
choose
the
first
option.
We
are
aware
that
one
or
more
States
have
already
begun
the
process
of
developing
8­
hour
attainment
demonstrations
for
some
1­
hour
nonattainment
areas.
These
States
may
choose
to
submit
an
early
8­
hour
attainment
demonstration
SIP.
Other
areas,
which
have
not
yet
made
significant
progress
on
1­
hour
or
8­
hour
attainment
STAFF
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pm
compared
with
2/
26/
04
version
161
planning,
may
wish
to
reserve
more
time
tofor
the
attainment
demonstration
process,
which
can
involve
complex
modeling,

and
thus
choose
the
third
option
 
to
achieve
an
early
increment
of
progress.

For
the
second
option
available
to
States,
we
chose
five5
 
rather
than
10
 
percent
as
the
amount
of
reduction.

Under
this
Ooption,
States
must
achieve
the
5
percent
emission
reduction
from
local
controls
(
not
currently
required
by
the
SIP)
and
within
3
years
of
designation
for
the
8­
hour
NAAQS.
In
light
of
the
quick
timeframe
in
which
to
achieve
the
reductions
following
designations
and
the
limitation
that
such
reductions
cannot
be
from
regional
or
national
controls
or
from
measures
already
in
the
SIP,
we
concluded
that
10
percent
was
unduly
burdensome.
The
States
that
choose
this
option
will
need
to
identify
and
adopt
appropriate
controls
within
a
1­
year
timeframe
and
require
sources
to
implement
the
controls
within
a
short
time
thereafter.
These
limitations
will
restrict
the
control
choices
available
to
States.
In
addition,
because
of
the
limited
timeframe
for
adoption
and
submission
of
the
controls
to
EPA,
we
do
not
believe
it
is
reasonable
to
require
the
State
to
obtain
a
level
of
reduction
that
would
force
the
States
to
concentrate
its
resources
on
the
early
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pm
compared
with
2/
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04
version
35Memorandum
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.

162
ROP
reduction
rather
than
on
an
8­
hour
attainment
plan.

However,
because
the
State
will
not
be
able
to
rely
on
national
or
regional
controls,
we
are
confident
that
the
5
percent
requirement
will
achieve
the
anti­
backsliding
goal.

Finally,
as
with
the
1­
hour
ROP
requirement,
we
note
that
EPA
may
waive
the
1­
hour
attainment
demonstration
requirement
for
areas
based
on
a
determination
that
the
area
has
attained
the
8­
hour
standardNAAQS.
The
EPA's
Clean
Data
Policy35
provides
that
if
EPA
has
determined
that
an
area
has
attained
the
1­
hour
standardNAAQS,
it
will
not
be
obligated
to
submit
a
1­
hour
attainment
demonstration
for
so
long
as
it
maintains
the
1­
hour
standardNAAQS.
Thus,

extending
this
policy
to
the
8­
hour
standardNAAQS,
if
EPA
determines
that
an
area
has
attained
the
8­
hour
ozone
standardNAAQS
before
the
time
the
area
is
obligated
to
make
a
submission
under
this
portion
of
EPA's
8­
hour
implementation
regulations,
EPA
would
waive
this
requirement
for
so
long
as
the
area
remains
in
attainment
with
the
8­

hour
standard.
STAFF
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compared
with
2/
26/
04
version
163
(
iiiNAAQS.
(
The
EPA
will
address
the
applicability
of
the
Clean
Data
Policy
for
8­
hour
ozone
nonattainment
areas
in
Phase
2
of
the
implementation
rule.)

(
3)
Comments
and
Rresponses
COMMENT:
Several
commenters
advocated
retaining
the
planning
obligations
under
the
1­
hour
standardNAAQS,

expressing
the
belief
that
momentum
will
be
lost
in
implementing
controls
if
these
obligations
are
not
retained.

In
general,
most
of
these
commenters
also
opposed
revocation
of
the
1­
hour
standardNAAQS
and
believed
Congress
intended
the
1­
hour
standardNAAQS
to
be
planned
for
and
met.
Some
commenters
opposed
retaining
the
attainment
demonstration
requirements
under
the
1­
hour
standardNAAQS
after
the
standardNAAQS
is
revoked
on
the
basis
that
State
resources
are
limited
and
should
be
focused
on
developing
plans
for
implementing
the
8­
hour
rather
than
the
1­
hour
standardNAAQS.
A
few
commenters
favored
the
alternative
of
requiring
an
early
plan
with
an
advance
increment
of
emissions
reductions
toward
progress
of
the
8­
hour
standardNAAQS
in
lieu
of
the
attainment
demonstration
SIP
revision.
A
few
other
commenters
favored
the
alternative
of
requiring
States
to
submit
an
early
attainment
demonstration
SIP
for
the
8­
hour
standardNAAQS.
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4/
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04
1:
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pm
compared
with
2/
26/
04
version
164
Only
one
commenter
believed
that
10
percent
was
the
appropriate
amount
under
Alternative
1
for
an
advance
increment
of
progress;
several
others
opposed
10
percent,

claiming
that
it
appeared
to
be
punitive,
that
there
was
no
technical
support
for
that
amount,
and
that
it
may
be
more
than
what
was
needed
for
attainment
of
the
8­
hour
standardNAAQS.
Some
commenters
recommended
that
exceptions
be
made
for
any
area
that
made
good
faith
efforts
to
develop
and
submit
its
plan,
such
as
those
with
a
submitted
and
approved
plan
that
may
have
been
challenged
and
overturned
by
a
court.
RESPONSE:
We
have
designed
the
final
rule
such
that
an
area
without
an
approved
attainment
demonstration
or
ROP
plan
would
still
be
required
to
submit
and
implement
a
ROP
plan
and
an
attainment
demonstration
or
substitute
plan
underas
required
for
the
1­
hour
standardNAAQS.
We
believe
this
approach
will
avoid
backsliding
and
will
continue
progress
toward
attainment
of
the
8­
hour
ozone
standardensure
there
are
no
delays
in
achieving
emissions
reductions
as
we
transition
to
the
more
stringent
8­
hour
ozone
NAAQS.

We
believe
that
areas
that
have
not
met
their
planning
obligations
under
the
1­
hour
standardNAAQS
 
if
relieved
of
that
obligation
after
the
1­
hour
standardNAAQS
is
revoked
 
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
165
would
provide
emissions
reductions
on
a
more
protracted
time
schedule
than
areas
that
had
met
their
1­
hour
standardNAAQS
planning
obligations.
For
example,
an
area
that
is
classified
severe­
15
for
the
1­
hour
standardNAAQS
would
have
to
obtain
RFP
reductions
and
any
additional
reductions
needed
for
attainment
by
the
end
of
2005,
whereas
if
that
same
area
is
moderate
under
the
8­
hour
standardNAAQS,
it
would
not
be
required
to
obtain
reductions
under
the
RFP
provisions
until
2008
and
additional
reductions
for
attainment
by
some
time
in
2009.
We
believe
that
considerations
of
cost
are
secondary
to
this
concern
in
these
situations.
We
believe
that
the
provisions
of
the
final
rule
 
by
offering
three
alternative
means
of
meeting
the
1­
hour
attainment
demonstration
obligation
 
allow
sufficient
flexibility
for
a
State
in
these
circumstances
to
choose
the
most
appropriate
means
to
overcome
this
deferral
of
protectionachieve
these
reductions
in
the
time
intended
by
Congress.

d.
Section
51.905(
a)(
2):
8­
Hhour
NAAQS
Nonattainment/
1­

Hhour
NAAQS
Maintenance
Area
In
the
June
2003
proposal,
we
discussed
the
requirements
for
areas
designated
as
attainment
for
the
1­

hour
NAAQS
with
a
maintenance
plan
at
the
time
of
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
166
designation
for
the
8­
hour
NAAQS
in
the
same
sections
discussing
the
requirements
for
areas
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
8­
hour
designations.
However,
in
the
draft
regulatory
provisions,

we
created
a
separate
subparagraph
addressing
these
areas.

Below,
we
indicate
briefly
where
the
obligations
for
these
areas
 
,
i.
e.,
maintenance
areas
at
the
time
of
designation,

are
the
same
as
for
areas
designated
nonattainment
for
the
1­
hour
standardNAAQS
at
the
time
of
8­
hour
designations.
We
discuss
in
more
detail
where
the
obligations
differ.

1.
(
i)
Mandatory
Control
Measures.
(
Ssection
VI.
C.
3.
a.
i.

of
proposed
rule;
see
68
FR
32821;
sections
51.900(
f)
and
51.905(
a)(
2)
of
draft
and
final
rule.
s)

a.
(
A)
Background.
In
the
June
2003
proposal,
we
proposed
that
all
areas
designated
nonattainment
for
the
8­

hour
standardNAAQS
and
that
were
nonattainment
or
maintenance
for
the
1­
hour
standardNAAQS
at
the
time
of
8­

hour
designations
would
be
required
to
continue
to
implement
mandatory
measures
adopted
into
the
approved
SIP.
We
did
not
distinguish
between
areas
designated
nonattainment
for
the
1­
hour
standardNAAQS
at
the
time
of
designation
for
the
8­
hour
standardNAAQS
and
areas
that
are
maintenance
for
the
1­
hour
standardNAAQS
at
the
time
of
designation
for
the
8­
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
36In
order
to
redesignate
these
areas
to
attainment,
EPA
had
to
determine
these
areas
had
met
all
obligations
under
Ppart
D.
See
CAA
Section
107(
d)(
3)(
E).

167
hour
standardNAAQS.
However,
in
the
draft
regulatory
text,

we
created
a
separate
provision
for
maintenance
areas
because
these
areas
do
not
have
an
outstanding
obligation
to
adopt
mandatory
control
obligations
for
the
1­
hour
standardNAAQS.
36
Thus,
the
draft
regulatory
provision
for
maintenance
areas
did
not
address
the
future
adoption
of
controls;
it
simply
provided
that
these
areas
would
require
areas
be
required
to
continue
to
implement
the
applicable
requirements
(
as
defined
in
the
regulatory
text)
in
the
approved
into
the
SIP.

We
also
provided
in
the
June
2003
proposal
and
the
draft
regulatory
text
that
if
a
maintenance
area
had
previously
shifted
a
mandatory
control
measure
to
the
contingency
provisions,
the
area
would
not
be
required
to
begin
implementation
of
that
measure
based
on
the
8­
hour
nonattainment
designation.
However,
the
measure
would
need
to
remain
as
a
contingency
measure
for
the
area
and
could
not
be
removed
from
the
SIP.

b.
(
B)
Final
Rule.
We
are
adopting
the
approach
we
took
in
the
proposal
and
the
draft
regulatory
text.
Areas
that
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
168
are
maintenance
for
the
1­
hour
standardNAAQS
at
the
time
of
8­
hour
designations
and
are
designated
nonattainment
for
the
8­
hour
NAAQS,
must
continue
to
implement
mandatory
control
requirements
(
i.
e.,
"
applicable
requirements")
that
have
been
approved
into
the
SIP.
However,
since
maintenance
areas
do
not
have
any
outstanding
obligation
to
adopt
mandatory
control
obligationsmeasures
for
the
1­
hour
standardNAAQS,
the
provision
only
addresses
implementation,

not
adoption.
In
addition,
this
section
recognizes
that
maintenance
areas
had
the
flexibility
to
move
mandatory
controls
to
the
contingency
measures
portion
of
their
maintenance
plan.
The
area
would
not
be
required
to
implement
these
measures
unless
it
is
required
to
do
so
for
the
area's
classification
for
the
8­
hour
NAAQS.
However,

the
measures
would
need
to
remain
as
contingency
measures
and
could
not
be
removed
from
the
SIP.

We
are
adopting
the
requirement
that
1­
hour
Mmaintenance
areas
are
required
to
continue
to
implement
mandatory
controls
for
the
same
reasons
we
provided
with
respect
to
8­
hour
Nonattainment/
1­
hour
NonattainmentNAAQS
nonattainment/
1­
hour
NAAQS
nonattainment
areas
above.
With
respect
to
mandatory
measures
that
the
State
has
moved
to
the
contingency
portion
of
the
maintenance
plan,
we
do
not
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
169
believe
that
Congress
intended
to
require
areas
to
begin
implementing
such
measures
again
based
on
the
promulgation
of
a
revised
NAAQS
unless
required
based
on
the
area's
classification
for
the
revised
NAAQS.
These
areas
have
fully
complied
with
the
process
that
Congress
established
 
attainment
of
the
(
then­
existing)
NAAQS
and
redesignation
to
attainment
for
that
NAAQS
based
on
a
plan
demonstrating
that
the
area
will
maintain
the
standardNAAQS.
While
we
believe
these
areas
should
not
"
backslide"
from
existing
control
levels,
we
do
not
believe
that
for
purposes
of
the
8­
hour
NAAQS
they
should
be
required
to
begin
implementing
once
more
measures
that
the
State
has
chosen
to
place
in
itsthe
contingency
measures
provisionportion
of
the
SIP.

2.
(
ii)
Discretionary
Control
measures
a.
Background.

b.
Final
Rule.
(
Section
VI.
C.
3.
a.
ii.
of
proposed
rule,
see
68
FR
32821,
Section
51.905(
a)(
2)
of
draft
regulatory
text;

there
is
no
parallel
provision
in
the
final
rule.)

(
A)
Background.
The
June
2,
2003
proposal
did
not
discuss
the
requirements
for
these
areas
independent
of
all
areas
that
were
designated
nonattainment
for
the
1­
hour
NAAQS
on
or
after
November
15,
1990.
The
draft
regulatory
text
(
section
51.905(
a)(
2)),
however,
did
provide
for
this
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
170
situation
separately
but
did
not
directly
address
discretionary
measures.

(
B)
Summary
of
final
rule.
As
with
discretionary
control
measures
for
8­
hour
Nonattainment/
1­
hour
NonattainmentNAAQS
nonattainment/
1­
hour
NAAQS
nonattainment
areas,
maintenance
areas
for
the
1­
hour
standard
that
are
designated
nonattainment
for
the
8­
hour
ozone
NAAQS1­
hour
NAAQS
maintenance/
8­
hour
NAAQS
nonattainment
areas
will
retain
the
discretion
to
modify
any
discretionary
control
measures
upon
a
demonstration
under
section
110(
l).
We
are
not
promulgating
regulatory
text
because,
as
described
above,
sections
110(
l)
and
193
of
the
CAA
govern
such
SIP
revisions.

3.
(
iii)
Measures
to
address
growth.
(
Section
VI.
C.
3.
a.
iii
of
proposed
rule;
see
68
FR
32821;
sections
51.900(
f)
and
51.905(
a)(
1)
of
the
draft
and
final
rule.
s)

a.
(
A)
Background.
In
the
proposal,
we
recognized
that
1­
hour
maintenance
areas
generally
are
subject
to
the
prevention
of
significant
deterioration
(
PSD)
program
and
are
no
longer
implementing
the
nonattainment
NSR
program
for
their
previous
1­
hour
ozone
designation
and
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
37
If
an
area
located
in
the
Ozone
Transport
Region
was
redesignated
to
attainment,
section
184(
b)(
2)
of
the
CAA
required
it
to
retain
a
nonattainment
NSR
program.
In
addition,
it
is
possible
that
one
or
more
areas
still
has
a
nonattainment
NSR
program
in
place
because
of
the
way
the
State
wrote
the
SIP.

171
classification.
37
For
areas
where
the
NSR
program
no
longer
applies
under
the
SIP,
we
proposed
that
the
areas
would
not
need
to
revert
back
to
the
NSR
program
they
had
for
purposes
of
the
1­
hour
standardNAAQS.
The
proposal
provided
examples
of
how
this
would
work.
(
68
FR
32821).

b.
(
B)
Summary
of
Ffinal
Rrule.
We
are
adopting
the
approach
we
proposed
but
our
rationale
relies
on
the
final
rule's
provision
that
NSR
under
the
1­
hour
standard
will
no
longer
apply
as
of
revocation
of
the
1­
hour
standard.
If
an
area
has
been
redesignated
to
attainment
for
the
1­
hour
standardNAAQS
as
of
the
effective
date
of
the
8­
hour
nonattainment
designation
and
is
no
longer
required
to
implement
a
nonattainment
NSR
program,
the
area
will
not
be
required
to
revert
back
to
the
program
it
had
for
purposes
of
the
1­
hour
ozone
standard.
The
final
rule
addresses
this
by
requiring
only
that
the
State
continue
to
implement
obligations
in
the
approved
SIP.
As
noted
in
the
June
2003
proposal,
this
provision
only
addresses
the
area's
obligation
with
respect
to
the
1­
hour
NSR
requirements;
it
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
172
does
not
affect
the
requirements
for
the
area's
8­
hour
nonattainment
NSR
program
(
which
will
be
addressed
in
Phase
2
or
a
separate
rule).

Unlike
the
mandatory
control
obligations
discussed
aboveNAAQS.
As
noted
elsewhere,
NSR
offset
ratios
and
source
applicability
provisions
under
the
1­
hour
standard
are
not
being
defined
as
"
applicable
requirements"
after
the
1­
hour
standard
is
revoked.

As
provided
in
more
detail
below
for
8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
nonattainment
areas,
we
have
determined
that
1­
hour
NAAQS
NSR
should
not
continue
to
apply
once
the
1­
hour
NAAQS
is
revoked
for
those
areas.
It
would
not
be
reasonable
to
require
these
areas
to
begin
those
1­
hour
programs
again
for
the
1­
year
between
designation
for
the
8­
hour
NAAQS
and
revocation
of
the
1­

hour
standard.
Moreover,
Congress
did
not
intend
the
nonattainment
NSR
program
to
continue
to
apply
to
most
areas
once
they
are
redesignated
to
attainment.
Rather,
such
areas
are
subject
to
the
PSD
program.
For
an
areas
that
haves
met
the
clean
air
goals
for
the
1­
hour
standardNAAQS,

we
see
no
reason
to
require
such
area
to
revert
back
to
theirits
1­
hour
NSR
program.
These
areas
will
be
required
to
implement
the
nonattainment
NSR
program
that
applies
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
173
based
on
their
classification
for
the
8­
hour
ozone
NAAQS.

4.
(
iv)
Planning
SIPs.
(
Section
VI.
C.
3.
a.
iV.
of
proposed
rule,
see
68
FR
32822;
no
specific
provision
in
draft
regulatory
text
or
final
rule.)

a.
(
A)
Background.
In
the
June
2003
proposal,
we
did
not
discuss
maintenance
areas
separate
from
areas
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
as
nonattainment
for
the
8­
hour
NAAQS.
8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
nonattainment
areas.

However,
the
preamble
discussion
focused
on
areas
with
an
outstanding
obligation
to
submit
a
1­
hour
ROP
or
attainment
plan
and
the
obligation
to
ensure
that
the
ROP
percentage
reduction
obligations
in
the
approved
SIP
are
achieved.

Maintenance
areas
for
the
1­
hour
standardNAAQS
do
not
have
an
outstanding
obligation
to
submit
ROP
or
attainment
plans
for
the
1­
hour
standardNAAQS.
Thus,
the
draft
regulatory
text
did
not
include
language
similar
to
that
in
51.905(
a)(
ii)
and
(
iii)
for
maintenance
areas.
The
draft
regulatory
text
did
reflect
ROP
as
an
applicable
requirement
for
maintenance
areas.

b.
Final
Rule.

,
indicating
that
these
areas
must
ensure
that
any
SIP
revision
does
not
interfere
with
an
approved
ROP
milestone.
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
174
(
B)
Summary
of
final
rule.
We
are
adopting
the
approach
taken
in
the
draft
regulatory
text.
In
redesignating
an
area
to
attainment,
EPA
must
conclude
that
the
area
has
met
all
requirements
applicable
under
section
110
and
part
D.
Thus,
maintenance
areas
do
not
have
continuing
progress
and
attainment
demonstration
requirements.
T,
and
the
final
rule
does
not
establish
requirements
for
maintenance
areas
related
to
outstanding
attainment
demonstration
and
ROP
plans.
The
final
rule
does
identify
the
ROP
percent
reduction
requirement
as
an
applicable
requirement.
However,
we
note
that
the
ROP
periods
for
areas
redesignated
to
attainment
for
the
1­
hour
standardNAAQS
have
already
passed
and
thus
any
revision
to
the
SIP
should
not
affect
ROP
reductions
for
the
periods
required
for
the
1­
hour
standardNAAQS.

5.
(
C)
Comments
and
Rresponses
COMMENT:
One
commenter
believed
that
1­
hour
maintenance
countiesareas
designated
nonattainment
under
the
8­
hour
standardNAAQS
should
not
have
to
submit
updates
to
the
1­
hour
maintenance
plan,
since
they
will
be
developing
8­
hour
attainment
plans
that
will
subsume
the
requirements
of
the
maintenance
plan
previously
in
effect.

RESPONSE:
The
rule
provides
that
after
the
1­
hour
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
175
ozone
standardNAAQS
is
revoked,
areas
are
relieved
of
responsibilities
to
submit
updates
to
their
1­
hour
maintenance
plans.
The
State
may
submit
a
revision
to
the
SIP
to
remove
the
provisions
that
require
the
update
to
the
maintenance
plan.

COMMENT:
One
commenter
noted
that
draft
Section
51.905(
a)(
2)
would
limit
shifting
of
an
applicable
requirement
to
the
contingency
measure
portion
of
an
area's
maintenance
plan.
Under
the
proposal,
a
State
may
only
make
such
a
shift
prior
to
the
revocation
of
the
1­
hour
NAAQS;

States
may
only
make
subsequent
shifts
by
satisfying
the
requirements
of
Section
110(
l)
of
the
CAA.
The
commenter
believes
that
this
criterion
for
shifting
measures
to
the
maintenance
plan
is
more
stringent
and
burdensome
than
the
requirements
in
Section
175A
of
the
CAA
for
maintenance
plans.
In
the
alternative,
the
commenter
recommends
that
in
lieu
of
the
showing
required
by
Section
110(
l),
that
States,

instead,
be
allowed
to
substitute
a
control
measure
with
equivalent
emissions
reductions
for
the
measures
they
propose
to
remove
from
their
plan.

RESPONSE:
We
do
not
believe
this
recommendation
is
supportable.
The
requirement
is
more
stringent
than
requirements
in
section
175A
of
the
Act
precisely
because
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
176
the
area
in
question
would
no
longer
be
a
maintenance
area
but
rather
nonattainment
underResponse:
We
agree
with
the
commenter
that
section
51.905(
a)(
2)
will
limit
the
authority
of
an
area
that
was
maintenance
for
the
1­
hour
standard
at
the
time
of
designation
as
nonattainment
for
the
8­
hour
standard,
and
therefore
any
revision
to
the
control
requirements
in
the
SIP
require
a
showing.
However,
we
disagree
with
the
commenter
regarding
the
statutory
provisions
that
apply
for
purposes
of
SIP
revisions.
The
commenter
is
incorrect
that
section
110(
l)
does
not
apply
to
revisions
to
maintenance
plans.
Prior
to
being
designated
nonattainment
for
the
8­
hour
NAAQS,
such
an
area
could
move
adopted
measures
to
the
contingency
measures
portion
of
the
maintenance
plan
based
on
a
demonstration
under
section
110(
l),
not
merely
that
the
revision
obtain
equivalent
emission
reductions.

such
a
revision
would
not
interfere
with
attainment,

maintenance
or
any
other
applicable
requirement
of
the
CAA.

Our
rule
provides
that
upon
designation
as
nonattainment
for
the
8­
hour
NAAQS,
a
1­
hour
maintenance
area
will
not
be
able
to
shift
adopted
mandatory
controls
(
i.
e.,
those
identified
as
"
applicable
requirements"
in
the
regulation)
to
contingency
measures
as
those
obligations
are
now
defined
as
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
177
"
applicable
requirements."
Once
the
area
is
redesignated
to
attainment
for
the
8­
hour
NAAQS,
such
obligations
will
no
longer
be
defined
as
"
applicable
requirements"
and
the
State
can
move
them
to
contingency
measures
based
on
a
demonstration
that
to
do
so
would
not
interfere
with
attainment
or
maintenance
of
the
8­
hour
NAAQS
or
any
other
applicable
requirement
of
the
CAA.
For
adopted
control
measures
that
are
not
identified
as
"
applicable
requirements"
in
the
regulation,
the
State
will
continue
to
have
the
same
authority
it
currently
has
for
shifting
adopted
controls
to
contingency
measures,
based
on
a
demonstration
under
section
110(
l).

COMMENT:
One
commenter
noted
that
in
section
51.905(
a)(
2),

the
clause
"...
except
to
the
extent
required
under
its
8­

hour
obligations..."
could
be
interpreted
to
imply
that
contingency
measures
in
the
1­
hour
maintenance
plan
become
8­
hour
measures
by
default.
The
commenter
suggests
that
the
last
sentence
of
this
section
be
replaced
with
the
following
language:

"
Mandatory
measures
in
the
area's
1­
hour
SIP
must
be
implemented
in
its
8­
hour
SIP;
however,
obligations
that
were
shifted
to
contingency
measures
prior
to
revocation
of
the
1­
hour
NAAQS
for
the
area,
must
be
in
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
178
the
8­
hour
SIP,
but
may
remain
contingency
measures,

unless
the
measures
are
required
to
be
implemented
by
the
Act."

RESPONSE:
suggested
language
to
avoid
an
incorrect
interpretation.

RESPONSE:
The
final
rule
reflects
this
recommended
language
change
with
some
slight
modifications.

e.
Section
51.905(
a)(
3):
8­
Hour
Attainment
or
Unclassifiable/
1­
HourNAAQS
Attainment/
1­
Hour
NAAQS
Nonattainment
1.
(
i)
Mandatory
control
obligations.
(
Section
VI.
C.
3.
b.

of
proposal
see
68
FR
32823;
section
51.905(
a)(
3)(
i)
of
the
draft
and
final
rule)

a.
(
A)
Background.
The
proposal
noted
that
the
issue
of
what
obligation
remains
with
respect
to
mandatory
control
measures
approved
into
the
SIP
or
required
under
the
CAA
is
based
on
the
CAA's
requirements
for
maintenance
plans.
We
proposed
that
if
EPA
determined
that
these
areas
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.

For
an
area
that
was
never
redesignated
to
attainment
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
38These
two
options
were:
1)
when
the
area
attains
the
1­
hour
NAAQS,
or
(
2)
when
the
area
attains
the
8­
hour
NAAQS.

179
for
the
1­
hour
standard
and
never
had
a
section
175A
maintenance
plan,
we
proposed
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)
(
discussed
below).
We
proposed
that
these
obligations
would
remain
in
place
but
in
a
later
section
of
the
preamble
proposed
options
as
to
when
this
obligation
would
no
longer
apply.
These
two
options
were:
1)
when
the
area
attains
the
1­
hour
NAAQS,
or
(
2)
when
the
area
attains
the
8­
hour
NAAQS.

b.
Summary
of
Final
Rule38
(
B)
Summary
of
final
rule.

We
are
adopting
an
approach
consistent
with
our
proposed
rule.
As
we
discuss
later
in
this
preamble,
we
have
determined
that
mandatory
control
obligations
will
no
longer
apply
once
an
area
attains
the
8­
hour
standardNAAQS.

Thus,
because
these
areas
are
attaining
the
8­
hour
standardNAAQS,
the
State
may
request
that
obligations
under
the
applicable
requirements
of
section
51.900(
f)
be
shifted
to
contingency
measures
once
the
1­
hour
standardNAAQS
is
revoked,
consistent
with
sections
110(
l)
and
193
of
the
CAA.
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
180
However,
the
State
cannot
remove
the
obligations
from
the
SIP.

Because
these
areas
are
in
attainment
with
the
healthbased
standardNAAQS,
we
believe
that
Congress
 
as
with
areas
redesignated
from
nonattainment
to
attainment
 
did
not
intend
the
areas
to
retain
these
controls
as
implemented
measures
if
the
area
can
demonstrate
maintenance
without
the
controls.
As
with
areas
redesignated
to
attainment,
the
rule
provides
that
the
State
cannot
remove
the
measures
from
the
SIP,
but
rather
may
move
them
to
the
contingency
measures
portion
of
the
SIP.
We
did
not
receive
comments
directly
addressing
mandatory
control
obligations
for
this
category
of
areas
outside
the
context
of
maintenance
plans
for
these
areas
discussed
below.

2.
(
ii)
Discretionary
control
obligations.
(
Section
VI.
C.
3.
b.
iii.
of
proposal
see;
68
FR
32823;
section
51.905(
d)
of
draft
regulatory
text;
no
parallel
provision
in
final
rule.)

Areas
designated
nonattainment
for
the
1­
hour
standardNAAQS
that
are
designated
attainment
for
the
8­
hour
ozone
NAAQS
will
retain
the
discretionability
to
modify
any
discretionary
controls
upon
a
demonstration
under
section
110(
l).
However,
such
controls
must
remain
in
the
SIP
as
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
39If
an
area
located
in
the
Ozone
Transport
Region
was
redesignated
to
attainment,
section
184(
b)(
2)
of
the
CAA
required
it
to
retain
a
nonattainment
NSR
program.
In
addition,
it
is
possible
that
one
or
more
areas
still
has
a
nonattainment
NSR
program
in
place
because
of
the
way
the
State
wrote
the
SIP.

181
contingency
measures.
We
are
not
promulgating
regulatory
text
because,
as
described
above,
sections
110(
l)
and
193
of
the
CAA
govern
such
SIP
revisions.
As
with
mandatory
measures,
we
look
to
the
maintenance
plan
provision
of
section
175A
to
see
what
Congress'
intent
may
have
been
for
these
areas.
Because
these
areas
were
nonattainment
for
the
1­
hour
NAAQS,
we
believe
Congress
intended
them
to
retain
the
measures
in
the
SIP,
but
could
shift
them
to
contingency
measures
if
the
area
demonstrates
it
will
maintain
the
8­

hour
standardNAAQS
if
the
measure
is
no
longer
implemented.

3.
We
did
receive
comments
directly
addressing
discretionary
control
obligations
for
this
category
of
areas
outside
the
context
of
maintenance
plans
for
these
areas
discussed
below.

(
iii)
Measures
to
address
growth.
(
Section
VI.
C.
3.
b.
i.
of
proposal;
68
FR
32823;
no
provision
in
draft
or
final
rule.)

a.
(
A)
Background.
The
proposal
explained
that
NSR
applies
only
in
nonattainment
areas.
39
Since
these
areas
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
182
would
be
designated
attainment
for
the
8­
hour
standardNAAQS
 
the
only
ozone
standardNAAQS
that
exists
for
the
area
once
the
1­
hour
standardNAAQS
is
revoked
 
they
would
be
subject
to
PSD,
not
NSR,
once
the
1­
hour
standardNAAQS
is
revoked.

b.
(
B)
Summary
of
Ffinal
Rrule.
We
are
adopting
the
approach
we
set
forth
in
our
proposed
rule
for
areas
designated
attainment
for
the
8­
hour
NAAQS
and
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
8­
hour
standardNAAQS.
After
the
1­
hour
standardNAAQS
is
revoked,
the
CAA
requires
such
areas
to
comply
with
PSD,
not
NSR.
(
The
States
may
need
to
modify
their
SIPs
so
that
it
provides
for
PSD
rather
than
NSR
in
such
areas.)
We
do
not
see
a
basis
for
mandating
that
such
areas
retain
a
nonattainment
NSR
program
and
do
not
believe
that
Congress
intended
such
a
result.
As
an
initial
matter,

once
the
1­
hour
standardNAAQS
is
revoked,
these
areas
are
meeting
the
only
ozone
standardNAAQS
that
is
in
place.

Congress
specified
that
PSD
shall
apply
in
areas
not
designated
nonattainment
(
section
161
if
the
CAA).
We
also
note
that
we
have
never
interpreted
section
175A
of
the
CAA
to
mandate
that
nonattainment
NSR
be
retained
as
a
contingency
measure
in
the
SIP
after
an
area
is
redesignated
from
nonattainment
to
attainment
because
we
do
not
interpret
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
40Memorandum
from
Mary
Nichols
to
Regional
Air
Division
Directors
dated
October
14,
1994,
entitled
"
Part
D
New
Source
Review
(
part
D
NSR)
Requirements
for
Areas
Requesting
Redesignation
to
Attainment."

183
NSR
to
be
a
control
measure.
(
See,
e.
g.,
May
12,
2003;
68
FR
25436.)
of
the
CAA).
In
addition,
as
provided
in
more
detail
below
for
8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
nonattainment
areas,
we
have
determined
that
1­
hour
NAAQS
NSR
should
not
continue
to
apply
once
the
1­
hour
NAAQS
is
revoked
for
those
areas.

Note
that
for
these
areas,
the
NSR
provisions
may
be
removed
from
the
SIP
and
need
not
be
shifted
to
contingency
measures.
40
c.
Comments
and
Responses
We
have
never
interpreted
section
175A
of
the
CAA
to
mandate
that
nonattainment
NSR
be
retained
as
a
contingency
measure
in
the
SIP
after
an
area
is
redesignated
from
nonattainment
to
attainment
because
we
do
not
interpret
NSR
to
be
a
control
measure.
(
See,
e.
g.,
May
12,
2003;
68
FR
25436.)

(
C)

COMMENT:
Some
commenters
believed
that
the
1­
hour
standardNAAQS
should
remain
in
effect,
and
therefore
NSR
would
continue
to
apply
until
the
area
attains
the
1­
hour
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
184
standardNAAQS
and
is
redesignated
to
attainment
for
that
standardNAAQS
regardless
of
the
area's
status
for
the
8­
hour
standardNAAQS.
Other
commenters
generally
agreed
with
the
proposal.

Text
Was
Moved
From
Here:
1
RESPONSE:
We
address
the
broader
legal
and
policy
issues
regarding
revocation
of
the
1­
hour
standardNAAQS
in
the
revocation
section
of
this
rule.

We
agree
there
was
a
conflict
in
the
draft
regulatory
text
on
this
matter,
and
the
final
rule
language
(
section
51.905(
a)(
1))
reflects
a
change
to
indicate
that
after
the
1­
hour
standard
is
revoked,
areas
that
were
nonattainment
for
the
1­
hour
standard
at
the
time
of
8­
hour
designation
would
continue
to
have
the
1­
hour
obligation
apply.

4.
(
iv)
Planning
SIPs.
(
Section
VI.
C.
3.
b(
ii)
of
proposed
rule;
see
68
FR
32823;
Section
51.905(
a)(
3)(
ii)
of
draft
and
final
rule.)

a.
(
A)
Background.
In
the
June
2,
2003
proposed
rule,

we
proposed
that
any
outstanding
SIP
planning
requirements
(
ROP
plans
and
attainment
demonstrations)
that
applied
for
purposes
of
the
1­
hour
standardNAAQS
would
not
continue
to
apply
to
areas
designated
attainment
for
the
8­
hour
NAAQS
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
185
for
as
long
as
they
continue
to
maintain
the
8­
hour
NAAQS.

If
such
an
area
violates
the
8­
hour
NAAQS
prior
to
having
an
approved
maintenance
plan
meeting
the
requirements
of
section
110(
a)(
1)
the
obligation
to
have
a
1­
hour
attainment
demonstration
and
ROP
plan
would
once
again
apply
in
the
same
manner
that
they
apply
in
areas
designatedfor
8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
nonattainment
for
the
8­
hour
ozone
NAAQSareas.

The
draft
regulatory
text
(
section
51.905(
a)(
3))

contained
specific
provisions
addressing
the
obligation
for
an
area
designated
attainment
for
the
8­
hour
NAAQS
that
subsequently
violates
the
8­
hour
standardNAAQS
prior
to
having
an
approved
maintenance
plan
under
section
110(
a)(
1).

If
the
area
was
required
to
and
does
not
have
an
approved
attainment
demonstration
or
ROP
plan
for
the
1­
hour
standardNAAQS,
the
State
would
be
required
to
submit
a
plan
providing
for
a
10
percent
emission
reduction
as
a
substitute
for
the
attainment
demonstration
and
to
adopt
and
submit
any
outstanding
ROP
emission
reductions.

b.
(
B)
Summary
of
Ffinal
Rrule.
We
are
adopting
our
proposal
with
some
modification.
As
an
initial
matter,

section
51.905(
a)(
3)
now
only
addresses
areas
designated
nonattainment
for
the
1­
hour
standard
at
the
time
EPA
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
186
designates
areas
for
the
8­
hour
standard8­
hour
NAAQS
attainment/
1­
hour
NAAQS
nonattainment
areas.
We
have
created
a
new
section
51.905(
a)(
4)
whichthat
addresses
areas
that
are8­
hour
NAAQS
attainment/
1­
hour
NAAQS
maintenance
areas
for
the
1­
hour
standard
at
the
time
we
designate
areas
for
the
8­
hour
standard.
Thate
section
(
i.
e.,
establishing
requirements
for
areas
that
are
maintenance
areas
for
the
1­

hour
standard
at
the
time
of
designation
for
the
8­
hour
standard
and
designated
nonattainment
for
the
8­
hour
standard)
addressing
that
second
category
of
areas
is
discussed
below.
An
area
that
is
designated
nonattainment
for
the
1­
hour
standard
at
the
time
of
designation
for
the
8­
hour
standard
and
is
designated
attainment
for
the
8­
hour
standard8­
hour
NAAQS
attainment/
1­

hour
NAAQS
nonattainment
will
not
be
required
to
develop
and
submit
outstanding
attainment
demonstration
and
ROP
plans
for
the
1­
hour
standardNAAQS
for
so
long
as
the
area
continues
to
maintain
the
8­
hour
NAAQS.
However,
if
the
area
violates
the
8­
hour
NAAQS
prior
to
having
an
approved
8­
hour
maintenance
plan
under
section
110(
a)(
1),
the
area
will
be
required
to
submit
a
SIP
revision
to
address
outstanding
ROP
and
attainment
demonstration
plans
as
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
41We
discuss
the
obligation
for
these
areas
to
adopt
a
section
110(
a)(
1)
maintenance
plan
below.

187
follows.
41
(
i1)
ROP
Plans.
For
an
outstanding
1­
hour
ROP
plan,

the
State
must
submit
a
SIP
providing
for
any
outstanding
ROP
and
the
three­
year3­
year
periods
for
achieving
those
reductions
will
begin
January
1
of
the
year
following
the
3­

year
period
on
which
EPA
bases
its
determination.
For
example,
if
an
area
was
required
to
and
does
not
have
an
approved
SIP
providing
for
a
9%
reduction
in
emissions
from
1996­
1999,
the
obligation
to
have
such
a
SIP
is
deferred
unless
the
area
violates
the
8­
hour
standardNAAQS
prior
to
having
an
approved
maintenance
plan
for
the
8­
hour
standardNAAQS.
If
EPA
determines
in
August
2007
that
the
area
violated
the
8­
hour
standardNAAQS
based
on
ambient
air
quality
data
from
2004­
2006
and
at
that
time
the
area
does
not
have
an
approved
maintenance
plan
for
the
8­
hour
standardNAAQS,
the
area
will
be
required
to
submit
a
SIP
providing
for
a
9%
9
percent
reduction
in
emissions
for
the
three­
year3­
year
period
of
January
2007
­
December
2009.

The
State
may
rely
on
national
and
regional
controls
for
purposes
of
meeting
this
increment
of
reduction
and
the
9%
9
percent
should
be
calculated
using
the
1990
baseline.
(
The
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
188
1­
hour
ROP
requirement
is
calculated
from
a
1990
baseline,

not
a
2002
baseline,
as
is
the
8­
hour
RFP
requirement.)
We
have
clarified
the
language
in
the
final
regulation
to
make
clear
that
the
requirement
to
submit
the
plan
for
additional
emission
reductions
applies
only
to
the
extent
that
an
area
had
not
met
its
prior
planning
obligations.
For
example,
if
an
area
was
classified
as
serious
for
the
1­
hour
standardNAAQS
and
had
an
approved
15%
15
percent
ROP
plan
and
an
approved
9%
9
percent
ROP
plan
for
1996­
1999,
then
the
area
does
not
have
any
outstanding
ROP
obligation
that
must
be
met
under
this
provision.
However,
if
the
same
area
only
had
an
approved
15%
15
percent
ROP
plan,
but
not
an
approved
9%
9
percent
ROP
plan
for
1996­
1999,
then
the
area
has
an
outstanding
9%
9
percent
ROP
plan
for
the
19996­
1999
period.

If
the
State
had
submitted
the
ROP
plan
to
EPA,
but
EPA
had
not
yet
acted
on
the
submission,
the
State
may
notify
EPA
that
it
wishes
to
rely
on
the
previously
submitted
SIP
or
it
may
elect
to
submit
a
new
or
revised
SIP.

We
believe
this
approach
makes
sense
as
it
ensures
that
the
level
of
emission
reduction
that
the
area
was
required
to
achieve,
but
was
not
yet
enforceable
under
the
SIP,
will
be
achieved
expeditiously
after
a
violation
of
the
8­
hour
standardNAAQS
occurs.
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
189
(
ii2)
Attainment
Demonstration.
For
an
outstanding
1­

hour
attainment
demonstration,
the
final
rule
requires
the
State
to
either:
(
1)
submit
an
8­
hour
maintenance
plan
that
addresses
the
violation
and
demonstrates
maintenance
through
EPA­
approved
modeling;
or
(
2)
submit
a
plan
to
achieve
a
3
percent
increment
of
progress
within
3
years
after
the
EPA
determines
the
area
has
violated
the
standardNAAQS.
The
3
percent
increment
of
progress
must
be
in
addition
to
measures
(
or
enforceable
commitments
to
measures)
in
the
SIP
at
the
time
of
the
effective
date
of
designation
and
in
addition
to
national
or
regional
measures.

This
approach
differs
from
both
the
June
2003
proposal
and
the
draft
regulatory
text
in
that
we
do
not
establish
the
precisely
the
same
requirement
for
these
areas
that
we
establish
for
areas
designated
nonattainment
for
the
8­
hour
NAAQS.
For
areas
designated
nonattainment
for
the
8­
hour
NAAQSthat
are
8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
nonattainment.
For
areas
that
are
8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
nonattainment,
section
51.905(
a)(
1)(
ii)
provides
three
options
for
the
State.
The
first
option
available
is
that
States
may
choose
to
submit
their
1­
hour
SIP.
If
such
an
area,
subsequent
to
designation
under
the
8­
hour
standard,
experiences
a
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
190
violation
of
the
8­
hour
standard,
wWe
do
not
believe
itthis
option
makes
good
policy
sense
for
thean
area
atdesignated
attainment
for
that
timee
8­
hour
NAAQS
to
spend
resources
to
develop
a
plan
to
achieve
the
1­
hour
standardNAAQS
(
which
is
likely
to
have
been
revoked
by
that
time),
when
the
area
will
already
be
in
the
process
of
developing
the
section
110(
a)(
1)
maintenance
plan
for
the
area
discussed
elsewhere
in
this
preamble.
We
believe
there
will
be
few
if
any
areas
in
this
situation
that
would
experience
a
violation
much
above
the
level
of
the
8­
hour
standard
since
such
areas
have
recently
been
attaining
that
standard.

The
second
and
third
options
under
section
51.905(
a)(
1)(
ii)
available
to
areas
designated
nonattainment
for
the
8­
hourthat
are
8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
nonattainment
are
analogous
but
not
identical
to
the
two
options
we
provide
for
areas
designated
attainment
for
the
8­
hour
NAAQS.
Both
types
of
areas
are
provided
with
the
option
of
achieving
a
specified
increment
of
progress.
For
areas
designated
nonattainment
for
the
8­
hourthat
are
8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
nonattainment,
we
established
an
increment
of
5
percent
and
for
those
designated
attainment
for
the
8­
hour
NAAQS,
we
established
a
3
percent
increment.
In
general,
we
believe
that
those
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
191
areas
initially
designated
attainment
for
the
8­
hour
NAAQS
will
have
a
less
significant
8­
hour
problem
 
these
areas
tend
to
record
values
within
a
few
parts
per
millionbillion
of
the
standardNAAQS.
Thus,
since
the
increment
of
progress
is
limited
to
controls
not
already
adopted
into
the
SIP
or
required
by
federal
or
regional
controls,
the
5
percent
reduction
requirement
would
likely
be
excessive
for
purposes
of
addressing
that
small
deviation
from
the
standardNAAQS.

The
third
option
available
to
areas
designated
nonattainment
for
the
8­
hourthat
are
8­
hour
NAAQS
nonattainment/
1­
hour
NAAQS
nonattainment
is
to
submit
an
early
8­
hour
attainment
demonstration.
Since
areas
designated
attainment
for
the
8­
hour
standardNAAQS
are
not
required
to
develop
attainment
demonstrations,
it
did
not
make
sense
to
carry
this
option
over.
Rather,
we
determined
it
made
more
sense
to
haveallow
the
area
to
address
the
violation
in
the
context
of
the
obligation
that
it
does
have,
i.
e.,
to
develop
a
maintenance
plan
for
the
8­
hour
standardNAAQS.
Thus,
for
these
areas,
we
created
the
option
of
performing
a
more
rigorous
maintenance
demonstration
 
a
demonstration
based
on
EPA­
approved
modeling.

c.
(
C)
Comments
and
Rresponses.

COMMENT:
Some
commenters
on
draft
regulatory
text
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
192
objected
to
continuing
the
obligation
for
areas
to
submit
ROP
plans
and/
or
attainment
demonstrations
for
the
1­
hour
standardNAAQS
after
the
1­
hour
standardNAAQS
is
revoked.

Some
of
the
comments
reflected
the
fact
that
the
regulatory
text
may
have
been
unclear
regarding
what
the
requirement
entailed
and
which
areas
were
affected.

RESPONSE:
We
have
designed
the
final
rule
such
that
an
area
with
an
unmet
planning
obligation
would
still
be
required
to
submit
and
implement
a
rate
of
progress
plan
and
an
attainment
demonstration
(
or
substitute
plan)
under
the
1­
hour
standardNAAQS
if
the
area
violates
the
8­
hour
standardNAAQS
before
it
has
an
approved
maintenance
plan.

These
are
areas
that
have
historically
had
an
ozone
problem
and,
in
general,
are
close
to
the
8­
hour
standard.

Consistent
with
our
Clean
Data
Policy,
we
do
not
believe
these
planning
obligations
should
apply
for
so
long
as
the
area
is
in
attainment
with
the
standardhave
8­
hour
design
values
within
a
few
parts
per
billion
of
the
8­
hour
NAAQS.

Once
these
areas
have
an
approved
1010(
a)(
1)
maintenance
plan
with
contingency
measures,
that
plan
will
address
future
violations
of
the
8­
hour
standardNAAQS
and
the
1­
hour
obligations
will
no
longer
apply.
However,
until
that
plan
is
in
place,
we
believe
that
Congress
would
have
intended
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
193
these
requirements
to
still
have
significance
if
the
area
violates
the
health­
based
standardNAAQS.

The
final
regulatory
text
was
modified
to
clarify
that
the
provision
applies
to
areas
that
do
not
have
approved
ROP
plans
and/
or
attainment
demonstrations
under
the
1­
hour
standardNAAQS
and
that
violate
the
8­
hour
NAAQS
before
having
an
approved
8­
hour
maintenance
plan
under
section
110(
a)(
1).
The
regulatory
text
also
clarifies
the
obligation
that
will
apply.

5.
(
v)
Maintenance
Plans
for
the
8­
hour
NAAQS.
(
Section
VI.
C.
3.
b(
iii)
of
proposed
rule;
see
68
FR
32823;
Section
51.905(
a)(
3)(
iii)
of
draft
regulatory
textand
final
rules)

a.
(
A)
Background
In
the
June
2003
proposal,
we
proposed
that
areas
designated
attainment
for
the
8­
hour
NAAQS
and
designated
nonattainment
for
the
1­
hour
NAAQS
on
or
after
November
15,

1990,
must
adopt
and
submit
a
maintenance
plan
consistent
with
section
110(
a)(
1)
within
3
years
of
designation
as
attainment
for
the
8­
hour
NAAQS.
The
maintenance
plan
should
provide
for
continued
maintenance
of
the
8­
hour
standardNAAQS
for
10
years
following
designation
for
the
8­

hour
NAAQS
and
must
include
contingency
measures.
Areas
with
approved
1­
hour
maintenance
plans
under
section
175A
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
194
would
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).
Such
areas
could
remove
from
their
maintenance
SIPs
(
a)
the
obligation
to
submit
a
maintenance
plan
for
the
1­
hour
standardNAAQS
8
years
after
approval
of
their
initial
1­
hour
maintenance
plan;
and
(
b)

the
requirement
to
implement
contingency
measures
upon
a
violation
of
the
1­
hour
ozone
standardNAAQS.

The
draft
regulatory
text
reflected
the
description
in
the
June
2003
proposal.

b.
(
B)
Summary
of
Ffinal
Rrule
We
are
adopting
the
approach
we
proposed.
However,
as
noted
above,
we
have
now
created
separate
subsections
in
the
rule
addressing
areas
that
were
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
1­
hour
NAAQS
and
areas
that
were
maintenance
areas
for
the
1­
hour
standardNAAQS
at
the
time
of
designation
for
the
8­
hour
NAAQS.
Section
51.905(
a)(
3)(
iii)
applies
only
to
areas
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
8­
hour
NAAQS.
Section
51.905(
a)(
4)(
ii)

establishes
the
same
requirement
for
areas
that
are
maintenance
for
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
8­
hour
standardNAAQS.
Under
t
These
two
provisions,
STAFF
DRAFT
 
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NOT
QUOTE,
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OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
195
areas
designated
attainment
for
the
8­
hour
NAAQS
and
designated
nonattainment
for
the
1­
hour
NAAQS
(
provide
that
1­
hour
NAAQS
nonattainment/
8­
hour
NAAQS
attainment
(
section
51.905(
a)(
3)(
iii))
or
that
areand
8­
hour
NAAQS
attainment/
1­

hour
NAAQS
maintenance
areas
for
the
1­
hour
NAAQS
((
section
51.905(
a)(
4)(
ii))
at
the
time
of
designation
for
the
8­
hour
NAAQSareas
must
adopt
and
submit
a
maintenance
plan
consistent
with
section
110(
a)(
1)
within
3
years
of
designation
as
attainment
for
the
8­
hour
NAAQS.
The
maintenance
plan
should
provide
for
continued
maintenance
of
the
8­
hour
standardNAAQS
for
10
years
following
designation
for
the
8­
hour
NAAQS
and
should
include
contingency
measures.
We
provide
additional
detail
below
regarding
maintenance
areas
for
the
1­
hour
standardNAAQS.

Section
110(
a)(
1)
requires
all
areas
to
demonstrate
that
they
will
attain
and
maintain
the
relevant
NAAQS.
Most
of
the
areas
addressed
by
this
provision
of
the
regulation
have
historically
had
problems
meeting
andand/
or
remaining
in
attainment
of
the
ozone
standardNAAQS.
We
think
it
is
important
for
States
to
ensure
that
these
areas
will
continue
to
have
clean
air
so
that
the
health
of
citizens
will
be
protected.

c.(
C)
Comments
and
Rresponses
STAFF
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
196
The
majorityCOMMENT:
A
number
of
commenters
who
addressed
this
issue
in
comments
on
the
June
2,
2003
proposal
did
not
support
the
section
110(
a)(
1)
maintenance
plan
requirement.
Some
commenters
believed
the
1­
hour
standardNAAQS
should
remain
in
effect
and
with
it
any
existing
1­
hour
SIP
requirements,
including
section
175A
maintenance
plan
requirements
(
which
would
require
conformity
determinations).
One
commenter
objected
to
the
proposed
requirement,
alleging
the
requirement
was
unnecessary
and
not
required.
Two
commenters
agreed
with
the
requirement.

In
commenting
on
the
draft
regulatory
text
one
commenter
supported
this
provision.
One
commenter
recommended
that
we
provide
more
specific
guidance
on
preparation
of
section
110(
a)(
1)
maintenance
plans
and
also
not
require
modeling
for
them.
Two
commenters
objected
to
maintenance
plans
under
section
110(
a)(
1)
because
they
would
not
require
conformity
(
as
would
maintenance
plans
under
section
175A)
for
areas
that
currently
have
maintenance
plans
under
the
1­
hour
standardNAAQS.
The
commenters
believed
the
maintenance
planning
should
be
done
under
section
175A.
Another
commenter
believed
that
section
110(
a)(
1)
of
the
CAA
requires
neither
contingency
measures
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
197
nor
a
10­
year
plan;
the
commenter
suggested
that
the
section
110(
a)(
1)
maintenance
plan
merely
be
a
continuation
of
the
provisions
of
the
existing
maintenance
plan.

RESPONSE:
Because
the
1­
hour
standardNAAQS
would
be
revoked,
the
requirements
of
section
175A
would
not
apply
to
these
areas
(
areas
initially
designated
attainment
for
the
8­
hour
standardNAAQS
but
that
were
designated
nonattainment
for
the
1­
hour
standardNAAQS
at
the
time
of
enactment
of
the
1990
CAA
Amendments.)
Section
175A
applies
to
redesignations,
not
to
initial
designations.
After
the
1­
hour
standardNAAQS
is
revoked,
we
believe
that
an
area
 
that
was
previously
designated
nonattainment
for
the
1­
hour
standardNAAQS
or
was
designated
attainment
with
a
maintenance
plan
 
and
that
initially
is
designated
attainment
for
the
8­
hour
ozone
standardNAAQS,
should
be
required
to
demonstrate
maintenance
only
for
the
8­
hour
standardNAAQS
at
that
point.
The
area
was
not
"
redesignated"
attainment
for
the
8­
hour
standardNAAQS,
and
therefore
the
section
175A
maintenance
plan
requirement
does
not
apply.
We
believe
that
the
section
110(
a)(
1)

maintenance
provisions
 
as
required
in
section
51.905
 
will
provide
adequate
assurance
of
maintenance
of
the
standard8­
hour
NAAQS.
The
EPA
always
retains
the
authority
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
198
to
require
a
State
that
fails
to
maintain
the
standardNAAQS
to
revise
its
SIP
to
provide
additional
maintenance
measures
or
to
redesignate
the
area
nonattainment
and
require
an
attainment
demonstration.

We
do
not
agree
with
commenters
that
opposed
a
provision
requiring
a
maintenance
plan
under
section
110(
a)(
1)
for
these
areas.
We
do
believe
that
the
ActCAA
requires
that
SIPs
continue
to
provide
for
maintenance
of
the
applicable
standardNAAQS
under
section
110(
a)(
1).

Because
these
areas
have
historically
experienced
ozone
problems
and
generally
are
close
to
violating
the
8­
hour
standardNAAQS,
we
believe
it
is
prudent
to
require
a
demonstration
of
how
they
will
maintain
the
8­
hour
standard.

NAAQS.
We
think
this
requirement
will
benefit
citizens
by
providing
better
assurance
that
the
air
will
remain
clean
and
will
benefit
industry
by
minimizing
the
likelihood
the
area
will
violate
the
standard
and
be
redesignated
to
nonattainment.

f.
Section
51.905(
a)(
4):
8­
Hour
NAAQS
Attainment/
1­
Hour
Attainment
withNAAQS
Maintenance
Plan
As
noted
above,
in
the
preamble
to
the
proposed
rule,

EPA
addressed
in
the
same
section
1­
hour
nonattainment
areas
and
1­
hour
maintenance
areas
that
are
designated
STAFF
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
199
nonattainment
for
the
8­
hour
standardNAAQS.
Comments
on
the
proposed
regulatory
text
noted
that
section
51.905(
a)(
3)

only
addressed
8­
hour
attainment
areas
that
were
designated
nonattainment
for
the
1­
hour
ozone
standardNAAQS
and
not
areas
that
were
maintenance
for
that
standardNAAQS.
Thus,

the
draft
rule
did
not
address
all
aspects
of
the
proposal
since
it
did
not
include
provisions
for
areas
that
are
maintenance
for
the
1­
hour
standardNAAQS
at
the
time
of
designations.

We
considered
revising
paragraph
51.905(
a)(
3)
to
include
1­
hour
maintenance
areas.
However,
that
subsection
included
certain
requirements
not
relevant
for
1­
hour
maintenance
areas,
such
as
requirements
concerning
outstanding
attainment
demonstration
and
ROP
plans.
Thus,

in
the
final
rule,
we
created
section
51.905(
a)(
4)
to
apply
to
areas
designated
attainment
for
the
8­
hour
standardNAAQS
and
that
were
maintenance
areas
for
the
1­
hour
standardNAAQS
at
the
time
of
designation
for
the
8­
hour
standardNAAQS.

1.
(
i)
Obligations
in
an
approved
SIP.
(
51.905(
a)(
4)(
i)).

This
subsection
is
identical
in
structure
to
section
51.905(
a)(
3)(
i).
Our
reasons
are
explained
in
our
discussion
of
section
51.905(
a)(
3)(
i),
above.

2.
(
ii)
Maintenance
plan.
(
51.905(
a)(
4)(
ii).
As
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
200
provided
above
in
the
discussion
of
section
51.905(
a)(
3)(
iii),
we
are
adopting
in
our
final
rule
our
proposed
interpretation
regarding
maintenance
plans
for
areas
designated
nonattainment
for
the
1­
hour
NAAQS
on
or
after
November
15,
1990
(
i.
e.,
areas
that
remain
designated
nonattainment
for
the
1­
hour
NAAQS
as
well
as
maintenance
areas
for
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
8­
hour
NAAQS).
Specifically,
these
areas
must
adopt
a
maintenance
plan
under
section
110(
a)(
1)
within
three3
years
of
designation
for
the
8­
hour
NAAQS.
The
provision
for
maintenance
areas
is
the
same
as
for
areas
designated
nonattainment
for
the
1­
hour
standardNAAQS.
However,
for
maintenance
areas,
section
51.905(
e),
discussed
below,

cross­
references
this
provision
and
addresses
the
relationship
between
the
existing
1­
hour
maintenance
plan
and
the
8­
hour
maintenance
plan.

Our
reasons
for
adopting
this
provision
are
discussed
above.
Although
these
areas
already
have
maintenance
plans,

those
plans
only
address
maintenance
of
the
1­
hour
standardNAAQS.
It
is
important
for
these
areas
to
ensure
that
they
have
a
plan
addressing
maintenance
of
the
8­
hour
standardNAAQS.
These
areas
may
evaluate
their
existing
plan
and
demonstrate
how
it
will
ensure
maintenance
of
the
8­
hour
STAFF
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
201
standardNAAQS,
or
may
modify
their
existing
plan,
or
may
adopt
a
new
plan,
as
appropriate.

CommentCOMMENT:
One
commenter
argued
that
it
makes
little
sense
to
require
the
State
to
continue
to
expend
the
effort
and
resources
to
update
and
extend
these
maintenance
plans.

The
commenter
questioned
why
a
newly
designated
marginal
area
under
the
8­
hour
standardNAAQS
should
be
exempt
from
implementation
plan
requirements,
while
an
area
previously
nonattainment
for
the
1­
hour
standardNAAQS,
but
now
in
attainment
for
both
standardsNAAQS,
should
be
required
to
continue
with
8
additional
years
of
maintenance
plan
requirements.

RESPONSE:
The
final
rule
(
section
51.905(
a)(
4))
clarifies
that
for
these
areas
(
areas
that
are
initially
designated
attainment
for
the
8­
hour
standardNAAQS
but
were
attainment
areas
under
the
1­
hour
standardNAAQS
with
approved
maintenance
plans)
that
they
are
relieved
of
the
requirement
to
update
their
maintenance
plan
under
section
175(
A),
but
must
submit
a
maintenance
plan
under
section
110(
a)(
1)
that
provides
for
maintenance
for
10
years.
It
should
be
noted
that
marginal
areas
under
the
8­
hour
standardNAAQS
are
not
"
exempt"
from
implementation
plan
requirements;
they
are
still
subject
to
nonattainment
new
source
review
and
STAFF
DRAFT
 
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NOT
QUOTE,
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OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
202
conformity
requirements,
for
instance.
Furthermore,
if
a
marginal
area
does
not
attain
the
NAAQS
by
its
attainment
date,
the
ActCAA
requires
that
the
area
be
bumped
up
in
classification,
which
would
require
the
area
to
submit
a
revised
SIP
with
an
attainment
demonstration
and
including
control
measures
required
under
subpart
2
for
the
area's
new
classification.

Section
51.905(
b):
Does
attainment
of
the
ozone
standard
affect
the
obligations
under
paragraph
(
a)
of
this
section?

In
addition,
once
the
area
attains
the
8­
hour
NAAQS,
it
will
be
subject
to
the
more
stringent
maintenance
plan
provision
in
section
175A,
which
requires
the
areas
to
demonstrate
maintenance
for
20
years.

3.
For
how
long
do
these
obligations
continue
to
apply?

(
Section
VI.
C.
4
of
proposed
rule;
see
68
FR
32824;
section
51.905(
b)
of
draft
and
final
rules)

1a.
Background
.
In
the
June
2,
2003
proposed
rule,
we
proposed
two
options
for
when
the
State
would
no
longer
be
required
to
continue
implementing
SIP­
approved
control
obligations
required
for
an
area's
1­
hour
classification.
At
that
time,

these
requirements
could
be
relegated
to
the
contingency
measures
portion
of
the
SIP
if
the
State
demonstrated
that
STAFF
DRAFT
 
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NOT
QUOTE,
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OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
203
implementation
of
the
controls
was
not
necessary
to
attain
or
maintain
the
8­
hour
NAAQS
(
consistent
with
section
110(
l)).
For
simplification,
we
refer
to
this
as
the
time
control
obligations
may
be
shifted
to
the
contingency
measures.
We
clarified
that
the
term
"
control
obligations"

was
intended
to
refer
to
the
obligations
which
we
determined
would
continue
to
apply
under
the
preceding
sections
of
the
proposal,
including
the
NOx
transport
rules.
Under
Option
1,
control
obligations
could
be
shifted
to
contingency
measures
when
the
area
achieves
the
level
of
the
1­
hour
ozone
standardNAAQS
(
even
if
the
area
has
not
yet
attained
the
8­
hour
standardNAAQS).
Under
Option
2,
control
obligations
could
be
shifted
to
contingency
measures
once
the
area
attains
and
is
redesignated
to
attainment
for
the
8­
hour
NAAQS
(
regardless
of
when,
if
ever,
the
area
attains
the
1­
hour
standardNAAQS).
The
draft
regulatory
text
was
developed
using
Option
1
(
when
the
area
achieves
the
level
of
the
1­
hour
ozone
standardNAAQS).

2b.
Summary
of
Ffinal
Rrule
.
We
are
adopting
Option
2
 
control
obligations
an
area
is
required
to
retain
in
the
approved
SIP
for
an
area's
1­
hour
classification
must
continue
to
be
implemented
under
the
SIP
until
the
area
attains
and
is
redesignated
to
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
204
attainment
for
the
8­
hour
standardNAAQS.
At
that
time,
the
State
may
relegate
such
controls
to
the
contingency
measure
portion
of
the
SIP
if
the
State
demonstrates
in
accordance
with
section
110(
l)
that
doing
so
will
not
interfere
with
maintenance
of
the
8­
hour
NAAQS
or
any
other
applicable
requirement
of
the
ActCAA.
If
at
the
time
the
area
is
redesignated
to
attainment
for
the
8­
hour
NAAQS
the
State
has
an
outstanding
obligation
to
adopt
a
control
requirement
under
the
1­
hour
NAAQS,
it
remains
obligated
to
do
so,
but
may
adopt
it
as
a
contingency
measure.
As
discussed
above,

under
EPA's
Clean
Data
Policy,
certain
obligations
such
as
the
requirement
to
submit
ROP
plans
and
attainment
demonstrations
may
be
suspended
based
on
a
determination
that
the
area
has
attained
the
8­
hour
NAAQS
and
will
no
longer
apply
if
the
area
is
redesignated
to
attainment.

However,
if
an
area
experiences
a
violation
of
the
8­
hour
standardNAAQS
prior
to
being
redesignated
to
attainment
the
requirements
would
once
again
apply.

We
are
adopting
this
option
because,
as
noted
in
the
June
2,
2003
proposal,
the
8­
hour
standardNAAQS
is
the
standardNAAQS
that
we
have
determined
will
protect
public
health
and
the
environment.
Only
once
an
area
demonstrates
it
has
met
and
can
maintain
the
health
protective
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compared
with
2/
26/
04
version
205
standardNAAQS
do
we
believe
it
will
be
appropriate
to
shift
these
obligations
to
the
contingency
measures
portion
of
the
SIP.
This
scheme
is
consistent
with
what
Congress
intended.

The
CAA
contemplates
under
subpart
2
that
States
must
implement
certain
mandated
requirements.
Under
the
maintenance
plan
provision
of
the
CAA
(
section
175A),
such
requirements
may
be
shifted
to
the
contingency
measure
portion
of
the
SIP
upon
or
after
redesignation
to
attainment.
Since
the
relevant
NAAQS
is
now
the
8­
hour
NAAQS,
we
believe
it
is
appropriate
to
require
these
mandated
controls
to
remain
as
part
of
the
implemented
SIP
until
an
area
attains
the
8­
hour
NAAQS
and
is
redesignated
to
attainment.
On
or
after
that
date,
a
State
may
move
such
obligation
to
the
contingency
measures
portion
of
the
SIP
consistent
with
sections
175A
and
110(
l).
Moreover,
we
believe
it
is
appropriate
to
use
attainment
of
the
8­
hour
NAAQS
rather
than
attainment
of
the
1­
hour
NAAQS
because,
as
provided
elsewhere
in
this
rulemaking,
EPA
will
no
longer
be
making
determinations
of
whether
an
area
has
attained
the
1­

hour
NAAQS
and
areas
will
not
be
required
to
demonstrate
attainment
or
maintenance
of
the
1­
hour
NAAQS.
Some
areas
may
never
attain
the
1­
hour
NAAQS,
as
there
will
be
no
obligation
to
do
so
once
it
is
revoked.
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pm
compared
with
2/
26/
04
version
206
The
final
rule
covers
the
continued
applicability
of
the
NOx
transport
rules
under
section
51.905(
f),
rather
than
as
an
"
applicable
requirement"
for
purposes
of
section
110(
l)
because
the
NOx
rules
apply
regardless
of
an
area's
attainment
or
nonattainment
status
for
the
8­
hour
(
or
the
1­

hour)
standardNAAQS.

3c.
Comments
and
Rresponses:

COMMENT:
Of
the
few
commenters
who
addressed
this
issue
in
response
to
the
June
2,
2003
proposal,
several
favored
oOption
1,
and
several
favored
oOption
2.
Of
those
who
commented
on
the
draft
regulatory
text,
one
commenter
opposed
the
provision,
and
one
comment
was
unclear
as
to
the
commenter's
concerns.
One
other
commenter
supported
the
provision.
Several
commenters
had
clarifying
questions.

RESPONSE:
Our
rationale
for
the
choice
of
Option
2
is
presented
above.
A
more
detailed
discussion
ofresponse
to
these
and
other
comments
and
responses
appears
in
the
response
to
commentRTC
document.

4.
Section
51.905(
c)
Which
portions
of
an
area
designated
for
the
8­
hour
NAAQS
remain
subject
to
the
1­
hour
NAAQS
obligations
identified
in
paragraph
(
a)
of
this
section??

(
Section
VI.
C.
2
and
3
of
proposal;
see
68
FR
3282032820­

32821;
51.905(
c)
of
the
draft
regulatory
text.
and
final
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pm
compared
with
2/
26/
04
version
207
rules)

1a.
Background.

In
the
June
2,
2003
notice,
we
proposed
that
the
obligation
to
retain
or
to
adopt
and
retain
a
mandatory
control
obligation
applies
only
to
the
part
of
the
8­
hour
ozone
nonattainment
area
that
was
designated
nonattainment
for
the
1­
hour
ozone
NAAQS.
The
proposal
also
provided
an
example
of
how
this
would
work.

The
draft
regulatory
text
provided
additional
specificity
concerning
geographic
applicability
of
the
antibacksliding
provisions.
The
draft
text
provided
that
with
two
exceptions
only
the
portion
of
the
designated
area
for
the
8­
hour
NAAQS
that
was
required
to
adopt
the
applicable
requirements
in
51.900(
f)
for
purposes
of
the
1­
hour
NAAQS
is
subject
to
the
obligations
identified
in
paragraph
(
a)
of
this
section
with
several
exceptions.
The
first
exception
is
an
area
that
is
designated
attainmentnonattainment
for
the
8­
hour
standardNAAQS
but
that
was
nonattainment
for
the
1­
hour
standardNAAQS
with
an
unmet
obligation
to
submit
an
attainment
demonstration;
for
these
areas,
the
draft
regulatory
text
provided
that
the
entire
area
designated
nonattainment
for
the
8­
hour
ozone
NAAQS
would
be
subject
to
the
10
percent
advance
increment
of
reduction.
The
second
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version
208
exception
is
an
area
that
is
attainment
for
the
8­
hour
standardNAAQS
but
that
was
nonattainment
under
the
1­
hour
standardNAAQS
with
an
unmet
obligation
to
submit
an
attainment
demonstration;
for
these
areas,
the
110(
l)

maintenance
plan
would
have
to
demonstrate
maintenance
for
the
entire
8­
hour
ozone
attainment
area.

2b.
Summary
of
Ffinal
Rrule.

The
final
rule
incorporates
most
aspects
of
the
approach
as
that
contained
in
the
proposal
and
in
the
draft
regulatory
text.
The
final
rule
provides
that
only
the
portion
of
the
designated
area
for
the
8­
hour
NAAQS
that
was
designated
nonattainment
for
the
1­
hour
NAAQS
is
required
to
comply
with
the
obligations
in
subparagraph
51.905(
a),

except
in
one
circumstance
if
the
State
elects
to
provide
an
early
increment
of
progress
or
an
early
8­
hour
attainment
demonstration
in
lieu
of
an
outstanding
1­
hour
attainment
demonstration
(
for
an
8­
hour
NAAQS
nonattainment
area/
1­
hour
NAAQS
nonattainment
area
under
51.905(
a)(
1)(
ii)(
B)
and
(
C)),

the
increment
of
progress
or
early
8­
hour
attainment
plan
must
apply
for
purposes
of
the
entire
8­
hour
nonattainment
area.

The
final
rule
does
not
follow
the
approach
in
the
proposal
for
the
maintenance
plan
requirement
for
8­
hour
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compared
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26/
04
version
209
attainment
areas.
The
maintenance
plans
required
under
section
51.905(
a)(
3)(
iii)
and
(
4)(
ii)
must
demonstrate
maintenance
only
for
the
area
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
of
the
8­
hour
standardNAAQS.
We
received
comment
that
recommended
this
obligation
apply
only
to
the
area
that
was
originally
designated
nonattainment
for
the
1­
hour
standardNAAQS.

After
considering
this
comment
and
our
discussion
in
the
preamble
to
the
proposed
rule,
we
agree
with
the
commenter.

In
many
States,
attainment
areas
are
identified
county
by
county
rather
than
identifying
a
group
of
counties
as
an
attainment
area.
Thus,
a
State
may
have
one
or
more
groups
of
counties
listed
as
a
nonattainment
area
and
then
the
remaining
counties
in
the
State
are
each
identified
individually
as
"
attainment."
See
e.
g.,
40
CFR
81.311
(
Georgia);
81.329
(
Nevada).
Because
the
area
that
has
historically
had
a
problem
attaining
the
ozone
standardNAAQS
is
the
area
that
was
previously
designated
nonattainment
for
the
1­
hour
standardNAAQS,
we
believe
it
makes
the
most
sense
to
require
the
maintenance
plan
for
the
area
previously
designated
nonattainment
for
the
1­
hour
standardNAAQS.
By
the
time
we
revoke
the
1­
hour
standard,
wWe
will
set
forth
in
40
CFR
Part
81,
Subpart
E,
an
identification
of
the
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04
version
210
boundaries
of
areas
and
the
area
designations
and
classifications
for
the
1­
hour
NAAQS
at
the
time
of
the
8­
hour
designations.

3c.
Comments
and
Rresponses
a.
Comments
on
JuneCOMMENTS
ON
JUNE
2,
2003
ProposalPROPOSAL:

With
regard
to
limiting
the
applicability
of
1­
hour
obligations
to
that
portion
of
the
8­
hour
nonattainment
area
that
was
also
part
of
the
1­
hour
nonattainment
area,
one
commenter
supports
this
policy,
especially
for
the
enhanced
I/
M
program.
The
commenter
believes
that
the
environmental
benefit
of
requiring
an
extension
of
the
enhanced
I/
M
program
to
areas
recently
added
to
the
CMSA
and
designated
nonattainment
for
the
8­
hour
NAAQS
to
be
minimal,
costly,

and
disruptive
of
the
continued
implementation
of
the
enhanced
I/
M
program
in
the
current
1­
hour
nonattainment
area.

One
commenter
objected
to
requiring
the
substitute
planning
requirement
(
10
percent
advance
increment
of
emission
reductions)
that
applies
to
areas
with
an
outstanding
attainment
demonstration
for
the
entire
8­
hour
ozone
nonattainment
area.
Instead,
the
commenter
recommended
it
should
only
apply
to
the
1­
hour
nonattainment
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pm
compared
with
2/
26/
04
version
211
area.

RESPONSE:
The
final
rule
provides
for
retaining
applicable
emission
control
and
growth
requirements
for
an
area's
1­
hour
classification
in
only
the
original
1­
hour
nonattainment
area.

As
noted
in
the
final
rulemaking
notice,
we
are
now
allowing
the
State
to
meet
its
unmet
1­
hour
attainment
demonstration
obligation
through
one
of
three
alternative
mechanisms,
one
of
which
is
a
5
percent
(
rather
than
a
10
percent)
by
submitting
the
outstanding
attainment
demonstration
or
by
taking
one
of
two
early
actions
for
8­

hour
planning:
achieve
a
5
percent
advance
increment
of
emission
reductions
or
submit
an
early
8­
hour
attainment
demonstration.
The
advance
increment
of
emission
reductions
is
applied
throughout
the
entire
8­
hour
nonattainment
area
because,
although
it
is
being
submitted
in
lieu
of
the
1­

hour
requirement,
it
is
intended
to
address
the
8­
hour
nonattainment
problem.
Because
this
alternative
toSimilarly,
the
1­
hour8­
hour
attainment
demonstration
is
intended
to
address
attainment
for
the
full
8­
hour
area.

Because
these
alternatives
to
the
1­
hour
attainment
demonstration
are
intended
to
address
attainment
and
progress
toward
the
8­
hour
standard,
the
advance
increment
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with
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04
version
212
of
progress
needs
to
be
obtained
from
theNAAQS,
the
State
would
need
to
apply
these
requirements,
if
selected,
to
the
entire
8­
hour
nonattainment
area.
We
developed
these
alternatives
in
response
to
concerns
that
areas
focus
on
the
8­
hour
standardNAAQS
rather
than
on
the
1­
hour
standardNAAQS
and
that
continued
planning
obligations
for
the
1­
hour
standardNAAQS
would
burden
State
resources.
States
still
have
the
flexibility
to
choose
to
develop
the
1­
hour
attainment
demonstrations
for
the
1­
hour
area
if
they
would
like
to
restrict
the
unmet
planning
obligation
to
the
old
area.

51.905(
e)
What
obligations
that
applied
for
the
1­
hour
NAAQS
will
no
longer
apply
after
revocation
of
the
1­
hour
NAAQS
for
an
area?
(
Section
VI.
C.
3.
d.
of
proposal;
see
68
FR
32824;
Section
51.905(
e)
of
proposed
and
final
rules)

1a.
Background
In
the
June
2,
2003
proposed
rule
(
68
FR
328224),
we
proposed
that
once
the
1­
hour
standardNAAQS
is
revoked,
EPA
would
no
longer
make
findings
of
failure
to
attain
that
standardNAAQS
and,
therefore,
we
would
not
reclassify
areas
based
upon
a
finding
that
the
area
failed
to
attain
the
1­
hour
NAAQS.
We
indicated
areas
should
focus
their
resources
on
attainment
of
the
8­
hour
standardNAAQS
and
stated
that
we
believed
it
would
be
counterproductive
to
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pm
compared
with
2/
26/
04
version
213
establish
new
obligations
for
States
with
respect
to
the
1­
hour
standardNAAQS
after
they
have
begun
planning
for
the
8­
hour
standardNAAQS.
In
addition,
we
noted
that
the
attainment
dates
for
areas
classified
as
marginal,
moderate
and
serious
had
passed
and
that
the
CAA
does
not
provide
for
reclassification
of
severe
areas.
We
also
noted
other
mechanisms
that
are
available
to
make
sure
that
States
continue
to
make
progress
toward
attaining
the
8­
hour
NAAQS.

In
addition,
we
indicated
that
conformity
requirements
would
no
longer
apply
underfor
the
1­
hour
standardNAAQS
once
the
standardNAAQS
is
revoked.
The
June
2,
2003
proposal
explains
that,
under
section
176(
c)
of
the
CAA,
conformity
applies
to
areas
designated
nonattainment
or
subject
to
the
requirement
to
develop
a
maintenance
plan
pursuant
to
section
175A.
Once
the
1­
hour
standardNAAQS
is
revoked,

areas
would
no
longer
be
designated
nonattainment
for
the
1­

hour
standardNAAQS
or
subject
to
the
obligation
to
develop
a
maintenance
plan
under
section
175A
for
the
1­
hour
standardNAAQS
and
thus
would
no
longer
be
subject
to
the
obligation
to
demonstrate
conformity
(
either
transportation
conformity
or
general
conformity)
for
that
standardNAAQS.

The
draft
regulatory
text
incorporated
these
concepts
and
also
provided
that,
at
the
time
of
revocation
of
the
1­
STAFF
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04
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pm
compared
with
2/
26/
04
version
214
hour
standardNAAQS,
any
provisions
of
applicable
SIPs
that
require
conformity
determinations
in
such
areas
for
the
1­
hour
NAAQS
will
no
longer
be
enforceable
as
a
matter
of
law
pursuant
to
section
176(
c)(
5)
of
the
ActCAA.

Additionally,
the
draft
regulatory
text
reflected
the
discussion
in
the
preamble
to
the
proposed
rule
regarding
what
portions
of
a
1­
hour
maintenance
plan
could
be
revised
or
removed
once
the
1­
hour
standardNAAQS
was
revoked
(
68
FR
32823).
The
draft
regulatory
text
provided
that
areas
with
approved
1­
hour
maintenance
plans
could
modify
those
plans
to
remove
the
obligation
to
submit
a
maintenance
plan
for
the
1­
hour
NAAQS
eight
years
after
approval
of
the
initial
1­
hour
maintenance
plan
and
to
remove
the
obligation
to
implement
contingency
measures
upon
a
violation
of
the
1­

hour
NAAQS.
The
draft
regulatory
text
providesd,
however,

that
these
requirements
would
remain
enforceable
until
EPA
approved
a
SIP
removing
or
revising
them
and
also
provided
that
EPA
would
not
approve
such
revisions
until
EPA
approves
an
8­
hour
attainment
demonstration
for
an
area
designated
nonattainment
for
the
8­
hour
NAAQS
or
an
8­
hour
maintenance
plan
for
an
area
designated
attainment
for
the
8­
hour
NAAQS.

Finally,
EPA
noted
that
such
a
SIP
revision
must
also
be
consistent
with
sections
110(
l)
and
193
of
the
ActCAA.
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OR
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04
1:
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pm
compared
with
2/
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04
version
215
2b.
Summary
of
Ffinal
Rrule
We
are
adopting
the
approach
we
set
forth
in
our
proposed
rule
and
providing
clarification
regarding
the
penalty
obligations
under
sections
181(
b)(
4)
and
185A
of
the
CAA
that
apply
in
severe
areas
that
do
not
attain
the
1­
hour
standardNAAQS
by
the
applicable
attainment
date.
The
final
rule
provides
that
as
of
the
effective
date
of
revocation
of
the
1­
hour
standard:


Areas
will
not
be
obligated
to
continue
to
demonstrate
conformity
for
the
1­
hour
NAAQS
as
of
the
effective
date
of
the
revocation
of
the
1­
hour
NAAQS.


NAAQS:


We
will
no
longer
make
findings
of
failure
to
attain
the
1­
hour
standardNAAQS
and,
therefore,
(
a)
we
will
not
reclassify
areas
to
a
higher
classification
for
the
1­
hour
standardNAAQS
based
on
such
a
finding,
and
(
b)

areas
that
were
classified
as
severe
for
the
1­
hour
NAAQS
are
not
obligated
to
impose
fees
as
provided
under
sections
181(
b)(
4)
and
185A
of
the
CAA.


Areas
will
not
be
obligated
to
continue
to
demonstrate
conformity
for
the
1­
hour
NAAQS
as
of
the
effective
date
of
the
revocation
of
the
1­
hour
NAAQS.


An
area
with
an
approved
1­­
hour
maintenance
plan
under
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
216
section
175A
of
the
CAA
may
modify
theits
maintenance
plan
to:
(
1)
remove
obligations
related
the
planning
obligation
to
developing
adevelop
the
second
10­
year
maintenance
plan
for
the
1­­
hour
NAAQS;
and,
(
2)

replace
the
obligation
to
implementexisting
1­
hour
contingency
measures
upon
a
violation
of
the
1­
hour
NAAQS.

measure
trigger
with
an
8­
hour
value.
However,
before
the
EPA
can
consider
approving
such
a
revision,
certain
conditions
must
be
met.
If
the
area
is
designated
nonattainment
for
the
8­
hour
ozone
NAAQS,
it
must
first
have
an
approved
8­
hour
attainment
demonstration
in
place.
If
the
area
has
been
designated
as
attainment
for
the
8­
hour
ozone
NAAQS,
it
must
first
have
an
approved
section
110(
a)(
1)
maintenance
plan
in
place
for
the
8­
hour
NAAQS.


NSR
under
the
1­
hour
NAAQS
will
no
longer
apply
in
areas
that
are
8­
Hour
NAAQS
nonattainment/
1­
Hour
NAAQS
nonattainment.

Each
of
these
provisions
is
discussed
further
below.

(
i)
Findings
of
Failure
to
Attain
the
1­
hour
NAAQS.

We
continue
to
believe,
as
stated
in
the
preamble
to
the
proposed
rule,
that
areas
should
focus
their
resources
on
attainment
of
the
8­
hour
standardNAAQS
and
that
it
would
be
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
217
counterproductive
to
establish
new
obligations
for
States
with
respect
to
the
1­
hour
standardNAAQS
after
they
have
begun
planning
for
the
8­
hour
standardNAAQS.
Moreover,
we
do
not
believe
there
is
a
basis
to
determine
whether
an
area
has
met
the
1­
hour
standardNAAQS
once
that
standardNAAQS
no
longer
applies
 
;
once
the
1­
hour
standardNAAQS
is
revoked,

there
will
not
be
an
applicable
attainment
date
with
which
to
make
a
determination
as
to
whether
an
area
has
met
its
attainment
date
or
not.
Since
the
obligations
to
reclassify
areas
and
impose
fees
are
based
on
a
determination
that
an
area
has
failed
to
meet
the
standardNAAQS
by
the
appropriate
attainment
date,
those
obligations
also
would
no
longer
apply
for
the
1­
hour
standardNAAQS
once
the
1­
hour
standardNAAQS
has
been
revoked.

While
we
did
not
specifically
state
in
our
proposal
that
severe
areas
would
no
longer
be
obligated
to
impose
fees
under
sections
181(
b)(
4)
and
185A
based
on
a
failure
to
attain
the
1­
hour
NAAQS
after
the
effective
date
of
the
revocation
of
the
1­
hour
NAAQS,
it
is
a
logical
extension
of
our
proposal
as
that
obligation
is
triggered
by
a
finding
of
failure
to
attain.
In
addition,
this
is
consistent
with
Appendix
B
of
the
June
2,
2003
proposal,
which
did
not
identify
the
section
185A
fee
provision
as
an
applicable
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
218
requirement.

(
ii)
Conformity
under
the
1­
hour
NAAQS.
Regarding
conformity,
we
are
adopting
the
approach
we
set
forth
in
our
proposed
rule.(
68
FR
32823).
The
final
rule
provides
that,

upon
revocation
of
the
1­
hour
NAAQS
for
an
area,
conformity
determinations
will
no
longer
be
required
for
the
1­
hour
NAAQS.
At
that
time,
any
provisions
of
applicable
SIPs
that
require
conformity
determinations
for
the
1­
hour
standardNAAQS
in
such
areas
will
no
longer
be
enforceable
pursuant
to
section
176(
c)(
5)
of
the
CAA.

Under
section
176(
c)
of
the
CAA,
conformity
applies
to
areas
designated
nonattainment
or
subject
to
the
requirement
to
develop
a
maintenance
plan
pursuant
to
section
175A
for
a
specific
NAAQS.
Once
the
1­
hour
standardNAAQS
is
revoked,

areas
designated
attainment
for
the
8­
hour
standardNAAQS
would
no
longer
be
subject
to
the
obligation
to
demonstrate
conformity
for
the
1­
hour
standardNAAQS
and
would
have
no
conformity
obligation
for
the
8­
hour
standardNAAQS.

Likewise,
even
areas
designated
nonattainment
for
the
8­
hour
standardNAAQS
would
no
longer
have
an
obligation
to
demonstrate
conformity
under
the
1­
hour
standardNAAQS.
The
reason
for
this
is
that
these
areas
would
no
longer
be
designated
nonattainment
for
the
1­
hour
standardNAAQS
and
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
219
would
no
longer
be
required
to
develop
a
maintenance
plan
under
section
175A
for
purposes
of
the
1­
hour
standardNAAQS.

(
iii)
1­
hour
maintenance
plans.
Regarding
the
revisions
to
1­
hour
maintenance
plans,
as
noted
above,
upon
revocation
of
the
1­
hour
NAAQS,
an
area
with
an
approved
1­
hour
maintenance
plan
under
section
175A
of
the
CAA
may
modify
the
maintenance
plan
to
remove
both
the
obligation
to
submit
a
second
maintenance
plan
for
the
1­
hour
NAAQS
8
years
after
approval
of
the
initial
1­
hour
maintenance
plan
and
the
obligation
to
implement
contingency
measures
upon
a
violation
of
the
1­
hour
NAAQS.
The
maintenance
plan
requirements
will
remain
enforceable
as
part
of
the
approved
1­
hour
NAAQS
SIP
until
such
time
as
EPA
approves
a
SIP
revision
removing
such
obligations.
We
will
not
approve
a
SIP
revision
requesting
these
modifications
until
the
State
submits
and
EPA
approves
an
attainment
demonstration
for
the
8­
hour
NAAQS
for
an
area
designated
nonattainment
for
the
8­

hour
ozone
NAAQS
or
a
maintenance
SIP
for
the
8­
hour
NAAQS
for
an
area
designated
attainment
for
the
8­
hour
NAAQS.
Any
revision
to
such
SIP
must
meet
the
requirements
of
section
110(
l)
and
193
of
the
CAA.

3(
iv)
New
Source
Review
under
the
1­
hour
NAAQS.
As
noted
above
concerning
anti­
backsliding
provisions
related
to
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
220
growth
measures,
our
June
2,
2003
proposal
indicated
that
1­

hour
NSR
requirements
would
continue
to
apply
in
a
nonattainment
area
if
that
area's
classification
under
the
1­
hour
ozone
standard
(
at
the
time
of
designation
for
the
8­

hour
standard)
is
higher
than
its
classification
under
the
8­
hour
standard
(
68
FR
32821).
We
indicated
at
proposal
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.
Accordingly,
we
proposed
that
the
1­
hour
NSR
obligations
continue
to
apply
after
revocation.

We
have
now
determined
that
it
is
inappropriate
to
mandate
that
a
State
continue
to
apply
1­
hour
nonattainment
NSR
requirements
to
such
areas.
Therefore,
today's
final
rule
specifies
that,
at
the
time
that
the
1­
hour
NAAQS
is
revoked,
a
State
may
request
approval
of
a
SIP
revision
to
replace
its
1­
hour
nonattainment
NSR
program
with
an
NSR
program
based
on
its
8­
hour
classification.
We
will
approve
such
changes
to
a
State's
SIP
upon
a
finding
based
on
section
110(
l)
of
the
Act
that
the
change
will
not
interfere
with
the
State's
ability
to
reach
attainment
of
the
8­
hour
standard
and
will
be
consistent
with
reasonable
further
progress.
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
221
For
example,
upon
approval
of
a
SIP
revision
for
a
nonattainment
area
that
we
classify
as
marginal
for
the
8­

hour
standard,
the
major
source
threshold
would
be
100
tpy
and
the
offset
ratio
would
be
at
least
1:
1.
Any
lower
major
stationary
source
threshold
and
higher
offset
ratio
that
applied
by
virtue
of
the
area's
previous
1­
hour
classification
would
no
longer
apply.

Although
the
proposal
identified
nonattainment
NSR
as
a
measure
to
address
growth
and
not
a
control
obligation,
we
proposed
to
treat
NSR
in
the
same
manner
as
control
obligations.
We
stated
that
such
requirements
should
continue
to
apply
based
on
Congressional
intent
to
prohibit
States
from
altering
or
removing
provisions
from
SIPs
if
the
SIP
revision
would
jeopardize
the
air
quality
protection
provided
in
the
approved
plan.
68
FR
at
32819.
We
further
concluded
that
Congress
intended
the
specified
control
obligations
in
subpart
2
to
continue
to
apply
after
revocation
by
virtue
of
the
1­
hour
classifications.

Upon
further
reflection,
and
consideration
of
public
comments,
we
have
revised
our
approach
concerning
NSR
in
areas
that
were
non­
attainment
for
the
1­
hour
NAAQS
and
continue
to
be
nonattainment
under
the
8­
hour
NAAQS.
While
some
commenters
believed
that
NSR
requirements
that
are
part
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
222
of
SIPs
submitted
to
meet
1­
hour
NAAQS
requirements
should
be
retained,
several
preferred
that
the
1­
hour
NSR
program
be
replaced
by
an
NSR
program
under
the
8­
hour
standard
when
the
1­
hour
standard
is
revoked.
Other
commenters
supported
removing
the
1­
hour
NSR
requirements
based
on
a
showing
that
removing
the
requirements
would
not
interfere
with
attainment
or
maintenance
of
the
8­
hour
standard.
We
agree
with
these
commenters
that
there
is
no
need
to
retain
1­
hour
NSR
programs
where
there
is
a
finding
under
section
110(
l)

that
8­
hour
NSR
will
not
interfere
with
the
State's
ability
to
reach
attainment
of
the
8­
hour
standard.
Moreover,
we
note
major
NSR
only
applies
to
new
sources
and
to
existing
sources
that
have
a
physical
change
or
change
in
the
method
of
operation.
Therefore,
emission
limitations
and
other
requirements
in
NSR
permits
issued
under
1­
hour
NSR
programs
will
continue
to
be
in
force
when
the
1­
hour
NAAQS
is
revoked.

Also,
our
revised
approach
is
more
consistent
with
our
longstanding
treatment
of
NSR
as
a
growth
measure.
We
have
historically
treated
control
measures
differently
from
measures
to
control
growth.
We
provided
no
rationale
in
our
proposal
for
treating
control
measures
and
growth
measures
in
the
same
manner
for
purposes
of
the
8­
hour
standard,
in
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
223
contrast
with
our
historical
approach.

Unlike
control
requirements
such
as
RACT
and
I/
M,
the
NSR
program
is
a
growth
measure
and
is
not
specifically
designed
to
produce
emissions
reductions.
Instead,
its
purpose
is
to
allow
new
source
growth
to
occur
without
interfering
with
an
area's
ability
to
attain.
The
statute
and
regulatory
history
identify
nonattainment
NSR
as
a
growth
measure.
Thus,
we
have
previously
concluded
that
NSR
is
not
a
"
control"
measure
in
the
context
of
Section
175A
maintenance
plans.
See
68
FR
25418,
25436
(
May
12,
2003).

Specifically,
we
explained
that
the
requirement
that
contingency
provisions
include
"
control"
measures
does
not
include
nonattainment
NSR.
We
reasoned
that
the
LAER
and
offset
requirements
included
in
existing
NSR
permits
would
remain
in
effect
for
those
sources.
Thus,
the
LAER
and
offset
measures
that
were
relied
upon
to
attain
the
NAAQS
would
remain
in
effect
after
the
nonattainment
NSR
program
was
replaced.
We
also
noted
that
another
preconstruction
review
program
(
in
that
context,
PSD)
would
be
triggered
to
limit
growth
consistent
with
attainment
in
the
future.

Those
considerations
apply
with
equal
force
here,
as
discussed
in
more
detail
below.

The
role
of
the
NSR
permitting
program
as
a
growth
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
42
Part
D
New
Source
Review
(
part
D
NSR)
Requirements
for
Areas
Requesting
Redesignation
to
Attainment,
October
14,
1994,
from
Mary
D.
Nichols.

224
measure,
rather
than
a
control
measure,
is
evident
in
the
structure
of
the
Act,
which
delineates
nonattainment
NSR
and
control
measures
as
separate
SIP
requirements.
In
the
general
requirements
for
nonattainment
plan
provisions,
NSR
permits
are
listed
in
CAA
172(
c)(
5),
while
control
measures
are
listed
in
CAA
172(
c)(
6).
Similarly,
in
defining
implementation
plan
requirements,
CAA
110(
a)(
2)(
C)
sets
forth
the
requirement
for
permit
programs
and
CAA
110(
a)(
2)(
A)
the
control
measures.
As
we
explained
in
our
1994
policy
memo42,
if
the
term
"
measures,"
as
used
in
sections
110(
a)(
2)(
A)
and
110(
a)(
2)(
C),
had
been
intended
to
include
PSD
and
part
D
NSR,
there
would
have
been
no
point
to
requiring
that
SIPs
include
both
measures
and
preconstruction
review.
Section
172(
e),
which
applies
when
EPA
relaxes
a
NAAQS,
only
requires
EPA
to
ensure
that
"
controls"
are
no
less
stringent
than
they
were
for
the
more
stringent
NAAQS
that
has
been
replaced.
It
contains
no
specific
requirements
concerning
growth
measures.

Moreover,
the
statute
is
clear
regarding
the
roles
of
the
NSR
program
and
control
measures
in
nonattainment
areas.

CAA
172(
a)(
2)
requires
attainment
as
expeditiously
as
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
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04
version
225
practicable
considering
control
measures
and
CAA
172(
c)(
1)

and
(
c)(
6)
require
implementation
of
all
control
measures
as
expeditiously
as
practical
to
provide
for
attainment
of
the
NAAQS
by
the
area's
attainment
date.
Conversely,
CAA
173(
a)(
1)(
A)
requires
only
that
growth
due
to
proposed
sources,
when
considered
together
with
the
other
plan
provisions
required
under
section
172,
be
sufficient
to
ensure
RFP.
Thus,
unlike
the
control
measures
required
by
Section
172(
c)(
1)
and
(
c)(
6),
NSR
is
not
a
measure
in
and
of
itself
to
assure
attainment
of
the
NAAQS.
Rather,
NSR
should
be
considered
in
conjunction
with
a
State's
control
measures
to
assure,
consistent
with
the
requirements
in
Section
172(
c)(
4),
that
the
emissions
from
new
sources
will
be
consistent
with
RFP
and
not
interfere
with
attainment
of
the
applicable
NAAQS.

In
light
of
these
different
statutory
goals,
we
believe
the
appropriate
review
of
NSR
SIP
revisions
under
the
8­
hour
standard
is
whether:
1)
the
SIP
revision
is
consistent
with
reasonable
further
progress;
and
whether
2)

the
SIP
revision
will
not
interfere
with
the
ability
to
attain.

With
regard
to
the
specific
requirements
of
110(
l),
we
do
not
believe
that
States
will
have
difficulty
STAFF
DRAFT
 
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NOT
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1:
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pm
compared
with
2/
26/
04
version
226
demonstrating
that
replacing
the
1­
hour
NSR
program
with
an
NSR
program
based
on
the
area's
8­
hour
classification
satisfies
the
Section
110(
l)
requirements.
As
one
commenter
noted,
NSR
is
a
prospective
permitting
program
that
only
applies
to
future
emissions
from
new
and
modified
sources.

Any
source
that
is
subject
to
the
1­
hour
NSR
requirements
is
required
to
continue
to
comply
with
those
requirements.
In
this
respect,
there
will
be
no
degradation
of
air
quality
by
virtue
of
this
SIP
change.
Moreover,
unlike
control
measures,
States
do
not
rely
on
the
NSR
program
to
generate
emissions
reductions
to
move
an
area
further
toward
attainment.
The
essential
question
is
whether
the
NSR
program
changes
will
hinder
future
air
quality
improvements
based
on
future
growth
projections.
Such
a
question
inherently
involves
a
look
at
the
present
day
air
quality,

which
is
best
reflected
by
the
current
8­
hour
classifications.
As
long
as
the
State
plans
to
manage
growth
within
the
emissions
inventory
and
include
growth
in
their
attainment
plans,
new
source
growth
will
be
consistent
with
RFP
and
not
interfere
with
the
State's
ability
to
attain.
Therefore,
we
believe
that
the
8­
hour
NSR
program
requirements,
based
on
an
area's
present
air
quality
needs,

will
assure
that
progress
continues
toward
attainment
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compared
with
2/
26/
04
version
227
despite
future
economic
growth.

c.
Comments
and
Rresponses
a.(
i)
Comments
on
June
2,
2003
proposal:

COMMENT:
Several
commenters
addressed
this
issue.

Most
agreed
with
the
proposal,
but
recommended
that
we
clarify
that
the
section
185A
penalty
fees
would
not
be
imposed
after
the
1­
hour
standardNAAQS
is
revoked.
A
few
of
the
commenters
disagreed
on
the
basis
that
EPA
should
not
revoke
the
1­
hour
standardNAAQS
and
that
all
requirements
that
apply
for
purposes
of
the
1­
hour
standardNAAQS
remain
applicable.

Regarding
conformity,
the
majority
of
commenters
that
addressed
this
issue
objected
to
EPA's
proposal.
Most
of
these
commenters
believed
the
1­
hour
standardNAAQS
and
any
1­
hour
SIP
budgets
should
remain
in
effect,
such
that
for
an
area
that
was
designated
nonattainment
under
the
1­
hour
standardNAAQS,
or
was
redesignated
to
attainment
and
had
an
approved
maintenance
plan
under
the
1­
hour
standardNAAQS,

conformity
requirements
would
still
apply.
Given
the
variety
of
comments
we
received
about
how
conformity
will
be
implemented,
in
this
section
we
provide
a
response
following
each
type
of
comment.

Comment:
Several
commenters
indicated
that
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compared
with
2/
26/
04
version
228
revoking
the
1­
hour
standardNAAQS
for
conformity
is
backsliding,
and
offered
several
arguments
for
why
the
1­

hour
budgets
should
be
retained
in
1­
hour
nonattainment
and
maintenance
areas.

Some
commenters
indicated
that
once
approved,
the
motor
vehicle
emissions
budget
is
part
of
the
applicable
implementation
plan,
and
EPA
may
not
render
them
nugatory
for
conformity
purposes.
Commenters
also
asserted
that
EPA
may
not
unilaterally
revise
a
state's
SIP
or
suspend
it,
and
in
order
to
require
states
to
revoke
the
budgets
in
their
SIPs,
EPA
would
have
to
find
the
budgets
inadequate.

Further,
commenters
argued
that
EPA
may
not
lawfully
allow
states
to
discontinue
implementation
of
the
budgets
in
their
current
SIPs,
and
if
states
were
to
decide
on
their
own
that
budgets
no
longer
apply
for
conformity
purposes,
commenters
said
that
EPA
would
be
obligated
to
impose
sanctions
pursuant
to
section
179(
a)(
3).
Commenters
asserted
that
states
may
not
revise
their
SIPs
to
remove
budgets
without
complying
with
section
110(
l),
which
states
that
EPA
cannot
approve
revisions
"
if
the
revision
would
interfere
with
any
applicable
requirement
concerning
attainment
and
reasonable
further
progress
(
as
defined
in
section
171),
or
any
other
applicable
requirement
of
this
Act."
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compared
with
2/
26/
04
version
229
Commenters
also
specifically
made
the
point
that
revoking
the
1­
hour
standard
in
areas
that
are
maintenance
for
that
standard
conflicts
with
EPA's
proposal
that
areas
can
modify
discretionary
measures
only
if
section
110(
l)
is
met.

Response:

RESPONSE:
The
CAA
specifically
states
that
conformity
applies
only
in
"
a
nonattainment
area..."
and
"
an
area
that
was
designated
as
a
nonattainment
area
but
that
was
later
redesignated
by
the
Administrator
as
an
attainment
area
and
that
is
required
to
develop
a
maintenance
plan
under
section
7505a
of
this
title..."
(
42
U.
S.
C.
7506(
5)).
Therefore,
CAA
section
176(
c)(
5)
restricts
conformity
to
nonattainment
areas
and
areas
that
are
required
to
submit
maintenance
plans
under
section
175A;
in
these
areas,
the
Federal
government's
sovereign
immunity
is
waived
so
that
states
can
require
conformity
to
be
determined
by
the
U.
S.
Department
of
Transportation.
However,
after
revocation
of
the
1­
hour
standardNAAQS,
the
areas
previously
nonattainment
for
the
1­

hour
standardNAAQS
are
no
longer
nonattainment
for
that
standardNAAQS.
Similarly,
after
revocation
of
the
1­
hour
standardNAAQS,
the
areas
previously
required
to
submit
section
175A
maintenance
plans
under
the
statute
for
the
1­
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4/
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04
1:
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pm
compared
with
2/
26/
04
version
230
hour
standardNAAQS
will
no
longer
be
required
to
do
so.

Therefore,
after
revocation
the
statute
will
no
longer
waive
sovereign
immunity
to
allow
sStates
to
require
the
U.
S.

Department
of
Transportation
to
perform
conformity
determinations
in
such
areas
after
revocation.

States
are
not
taking
any
action
to
remove
the
budgets
for
the
1­
hour
ozone
standardNAAQS
in
their
SIPs,
nor
are
they
required
to
do
so.
In
fact,
EPA
has
proposed
that
8­

hour
nonattainment
areas
would
be
able
to
use
the
1­
hour
budgets
for
conformity
for
the
8­
hour
standardNAAQS,
if
they
exist
in
an
area
(
November
5,
2003,
proposed
rule,
68
FR
62690).
Thus,
although
the
1­
hour
budgets
would
remain
in
the
SIP,
areas
previously
designated
nonattainment
or
maintenance
for
the
1­
hour
standardNAAQS
would
no
longer
be
required
or
even
authorized
to
show
conformity
under
CAA
section
176(
c)(
5)
for
that
standardNAAQS.
Similarly,
EPA
would
have
no
grounds
for
imposing
sanctions
where
conformity
is
not
conducted
in
these
areas
because
there
would
be
no
SIP
planning
or
implementation
failure,
since
any
SIP
provisions
requiring
conformity
would
become
enforceable
under
section
176(
c)(
5)
after
revocation.
EPA
also
disagrees
that
States
cannot
revise
their
SIPs
to
remove
budgets
without
a
demonstration
that
110(
l)
is
met,
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4/
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04
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pm
compared
with
2/
26/
04
version
231
because
states
will
not
be
revising
their
SIPs
to
remove
budgets.

As
we
acknowledged
in
our
June
2,
2003,
proposal,
EPA's
conclusion
that
conformity
cannot
apply
in
1­
hour
maintenance
areas
once
the
1­
hour
standardNAAQS
is
revoked
differs
from
the
approach
we
planned
to
take
in
1997.
In
1997,
we
interpreted
revoking
the
1­
hour
ozone
standardNAAQS
to
mean
that
conformity
would
not
apply
for
the
1­
hour
ozone
standardNAAQS
in
areas
that
were
nonattainment
for
the
1­

hour
ozone
standardNAAQS,
but
that
conformity
would
continue
to
apply
for
the
1­
hour
ozone
standardNAAQS
in
areas
with
a
maintenance
plan.
However,
the
1997
interpretation
would
lead
to
an
unfair
and
counter­
intuitive
result:
areas
that
had
attained
the
standardNAAQS
and
had
made
the
effort
to
establish
a
maintenance
plan
would
have
to
continue
a
required
program,
but
areas
that
had
not
attained
would
not.

We
reconsidered
this
result
and
found
it
to
be
unfair
and
inappropriate.
Further,
upon
reanalyzing
CAA
section
176(
c)(
5),
we
concluded
that
this
interpretation
did
not
fit
with
the
text
of
the
statute.

Although
section
110(
l)
would
normally
require
areas
to
demonstrate
that
removing
prior
SIP
requirements
would
not
interfere
with
any
applicable
requirements
of
the
CAA,
where
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compared
with
2/
26/
04
version
232
the
CAA
itself
now
forbids
application
of
a
prior
requirement
such
a
demonstration
would
be
unnecessary.

Further,
it
would
interfere
with
the
statutory
limitation
on
the
applicability
of
conformity
to
require
conformity
determinations
in
areas
that
are
no
longer
required
by
the
CAA
to
submit
section
175A
maintenance
plans.

CommentCOMMENT:
Commenters
remarked
that
revoking
the
1­
hour
ozone
standardNAAQS
is
of
particular
concern
in
areas
that
are
currently
nonattainment
or
maintenance
for
the
1­

hour
ozone
standardNAAQS
that
are
projected
to
bewill
be
designated
attainment
for
the
8­
hour
ozone
standardNAAQS,

because
once
the
standardNAAQS
is
revoked,
these
areas
will
no
longer
be
subject
to
conformity.
A
couple
of
commenters
made
the
point
that
revoking
the
1­
hour
standardNAAQS
would
have
economic
implications
for
their
area
because
without
transportation
conformity,
the
emissions
from
the
transportation
sector
could
grow
without
restraint
and
therefore,
emissions
from
the
industrial
sector
would
have
to
be
limited
further.
Commenters
were
also
concerned
that
their
region
would
lose
the
ability
to
forecast
whether
a
violation
could
occur.

ResponseRESPONSE:
We
promulgated
the
8­
hour
ozone
standardNAAQS
in
response
to
the
latest
data
and
science
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compared
with
2/
26/
04
version
233
regarding
ozone;
we
believe
the
8­
hour
ozone
standardNAAQS
is
more
protective
of
public
health.
In
1997,
EPA
made
the
decision
to
replace
the
1­
hour
ozone
standardNAAQS
with
the
8­
hour
ozone
standardNAAQS,
because
EPA
concluded
that
the
1­
hour
standardNAAQS
is
not
needed
to
protect
health
and
welfare.

It
is
our
conclusion
that
areas
that
are
in
attainment
for
the
8­
hour
standardNAAQS
would
not
be
subject
to
conformity
because
the
statute
explicitly
limits
the
applicability
of
conformity
to
designated
nonattainment
and
to
maintenance
areas.
These
areas
still
have
an
incentive
to
monitor
the
growth
of
emissions
from
the
transportation
sector;
if
these
areas
violate
the
8­
hour
standardNAAQS,
EPA
could
designateredesignate
them
as
nonattainment
for
the
8­

hour
standardNAAQS
and
conformity
would
then
apply.

The
EPA
notes
that
although
States
could
not
implement
conformity
for
attainment
areas
as
a
matter
of
federal
law,

they
could
still
requirework
with
their
MPOs
to
estimate
regional
emissions
that
would
be
generated
by
the
planned
transportation
activitiessystem
to
see
whether
a
violation
could
occur,
and
could
even
limit
the
MPOs
from
growing
beyond
a
certain
amount.

b.
Comments
on
draft
regulatory
text
(
sect.
51.905(
e)
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compared
with
2/
26/
04
version
234
of
the
draft):

Comment:
Several
commenters
supported
this
provision.

and
to
address
motor
vehicle
emissions
growth.
These
type
of
State
activities
may
be
done
under
State
law,
when
possible,
or
on
a
voluntary
basis.

COMMENT:
One
commenter
supports,
in
part,
our
proposal
to
allow
amendment
of
maintenance
plans,
but
takes
issue
with
the
fact
that
States
would
face
a
continuing
obligation
to
implement
contingency
measures
after
revocation
of
the
1­

hour
standardNAAQS
and
the
criteria
for
approval
of
such
amendments.
After
the
1­
hour
NAAQS
is
revoked,
a
State's
obligation
to
implement
contingency
measures
should
automatically
be
lifted.
The
Illinois
EPA
recommends
that
amendments
to
the
maintenance
plans
for
these
areas
be
approved
after
the
1­
hour
NAAQS
has
been
revoked.

RESPONSE:
Once
we
revoke
the
1­
hour
standardNAAQS,
the
requirement
for
submission
 
or
subsequent
improvements
to
or
additions
 
revision
of
a
section
175A
maintenance
plan
under
the
1­
hour
standard
areNAAQS
no
longer
requiredapply.

The
State
still
has
an
obligation
to
ensure
that
air
quality
remains
clean,
and
to
invoke
contingency
measures
if
concentration
increases
threaten
to
violaten
accordance
with
the
NAAQSterms
of
the
approved
SIP.
The
final
rule
provides
STAFF
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compared
with
2/
26/
04
version
235
that,
upon
revocation
of
the
1­
hour
NAAQS,
an
area
with
an
approved
1­
hour
maintenance
plan
under
section
175A
of
the
CAA
may
modify
the
maintenance
plan
to
remove
the
obligation
to
submit
a
maintenance
plan
for
the
1­
hour
NAAQS
8
years
after
approval
of
the
initial
1­
hour
maintenance
plan
and
to
remove
the
obligation
to
implement
contingency
measures
upon
a
violation
of
the
1­
hour
NAAQS.
The
final
rule
provides
that
EPA
would
not
approve
a
SIP
revision
requesting
these
modifications
until
the
State
submits
and
EPA
approves
an
attainment
demonstration
for
the
8­
hour
NAAQS
for
an
area
initially
designated
nonattainment
for
the
8­
hour
ozone
NAAQS
or
a
maintenance
SIP
for
the
8­
hour
NAAQS
for
an
area
initially
designated
attainment
for
the
8­
hour
NAAQS.
Any
revision
to
such
SIP
must
meet
the
requirements
of
section
110(
l)
and
193
of
the
CAA.
For
areas
that
are
not
required
to
submit
attainment
demonstrations
(
e.
g.,
marginal
areas),

the
SIP
revisions
that
affect
prior
maintenance
plans
under
the
1­
hour
standardNAAQS
may
be
made
when
other
portions
of
the
8­
hour
SIP
are
due
(
e.
g,
the
NSR
provisions).

Comment:
Several
commenters
support
the
predication
that
The
EPA
disagrees
with
the
comments
that
certain
obligations
in
the
maintenance
plan
should
no
longer
apply
upon
revocation
of
the
1­
hour
standard,
EPA
would
no
longer
be
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NOT
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OR
DISTRIBUTE
 
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13/
04
1:
30
pm
compared
with
2/
26/
04
version
236
required
to
determine
whether
an
area
has
attained
the
1­

hour
standard
by
its
1­
hourNAAQS.
The
EPA
believes
that
in
order
to
ensure
that
these
revisions
will
not
interfere
with
attainment
or
maintenance
of
the
8­
hour
NAAQS,
these
areas
should
first
have
an
approved
8­
hour
attainment
deadline
or
to
reclassify
the
area
to
a
higher
classification
based
on
a
"
failure
to
attain"
determination.
One
commenter
agrees
with
EPA's
approach
to
allow
States
to
request
the
removal
of
obligations
to
submit
an
8
year
update
to
1­
hour
maintenance
plans
and
implement
contingency
measures
upon
a
violation
of
the
standard.
Anotheror
maintenance
SIP
in
place.

COMMENT:
A
commenter
recommended
that,
in
general,
the
rule
should
make
it
clear
that
any
revocation
actionsSIP
revisions
must
comply
with
Sections
1l0(
1)
and
193.

RESPONSE:
The
proposed
rule
 
as
well
as
the
final
rule
 
provides
that
EPA
will
not
approve
revisions
to
the
maintenance
plan
until
EPA
approves
the
area's
8­
hour
SIP
for
either
attainment
or
maintenance,
which
will
ensure
noninterference
with
the
8­
hour
standardNAAQS.
However,
the
final
rule
also
includes
a
requirement
that
the
changes
must
be
in
accordance
with
sections
110(
l)
and
193.

Comment:
Several
commenters
supported
the
proposed
rule.
STAFF
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
237
Other
commenters
believed
the
1­
hour
NAAQS
should
not
be
revoked
at
all,
and
therefore
there
would
not
be
a
need
for
the
anti­
backsliding
provision
regarding
NSR.

Response:
We
address
the
issue
of
the
revocation
of
the
1­

hour
NAAQS
elsewhere
in
this
notice
and
do
not
repeat
it
here.

(
ii)
Comments
on
draft
regulatory
text
(
sect.
51.905(
e)
of
the
draft):

COMMENT:
One
commenter
believes
that
proposed
40
CFR
§
51.905(
e)(
l)
contains
an
apparent
misstatement
that
EPA
should
correct.
That
provision
states
that
upon
revocation
of
the
1­
hour
NAAQS,
an
area
with
an
approved
maintenance
plan
for
that
NAAQS
may
modify
that
plan
to
remove
the
obligation
under
CAA
§
175A(
b)
to
submit
a
"
second
round"

maintenance
plan
eight
years
after
redesignation
to
attainment
and
to
remove
the
obligation
to
implement
contingency
measures
upon
a
1­
hour
NAAQS
violation.
The
provision
goes
on
to
say
that
EPA
will
not
approve
a
SIP
revision
making
these
modifications
until
the
state
submits
and
EPA
approves:
(
1)
an
8­
hour
attainment
demonstration,
if
the
area
is
designated
nonattainment
for
the
8­
hour
NAAQS;

or
(
2)
an
8­
hour
maintenance
SIP
under
proposed
40
CFR
§
51.905(
a)(
3)(
iii),
if
the
area
is
designated
attainment
for
STAFF
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QUOTE,
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OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
238
the
8­
hour
standardNAAQS.
Option
(
2)
does
not
make
sense,

however.
Proposed
40
CFR
§
51.905(
e)
by
its
terms
applies
to
areas
with
approved
1­
hour
maintenance
plans.
Thus,
these
areas
by
definition
have
been
redesignated
to
attainment
 
i.
e.,
are
no
longer
nonattainment
 
for
the
1­
hour
NAAQS.

Yet
proposed
40
CFR
§
51.905(
a)(
3)(
iii)
applies
only
to
areas
that
are
"
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
revocation
of
the
1­
hour
NAAQS".
NAAQS."

Thus,
contrary
to
the
last
clause
of
§
51.905(
e)(
l),
areas
that
are
maintenance
for
the
1­
hour
NAAQS
and
attainment
for
the
8­
hour
NAAQS
cannot
be
subject
to
§
51.905(
a)(
3)(
iii).

RESPONSE:
The
commenter
has
pointed
out
a
flaw
in
the
proposal.
The
final
rule
has
been
modified
from
the
proposal
to
account
for
this
situation.
A
separate
parallel
provision
has
been
established
in
section
51.905(
a)(
4)
for
areas
that
haverequiring
1­
hour
maintenance
plans
at
the
time
of
revocation
of
the
1­
hour
standard
under
which
they
would
be
obligatedplan
areas
to
submit
a
maintenance
plan
under
section
110(
a)(
1).
As
provided
earlier,
EPA
has
also
changed
the
proposed
regulatory
text
 
consistent
with
the
June
proposal
 
to
indicate
that
51.905(
a)(
3)
and
(
4)
apply,

respectively
to
areas
that
are
nonattainment
or
maintenance
of
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
8­
STAFF
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
239
hour
NAAQS.
Section
51.905(
e)(
1)
has
been
modified
to
provide
that
the
State
would
not
be
able
to
modify
thean
existing
1­
hour
maintenance
plan
until
EPA
approves
the
new
8­
hour
maintenance
plan.

CommentCOMMENT:
One
commenter
provided
suggested
language
changes
to
section
51.905(
e).
that
would
have
basically
retained
the
section
175A
maintenance
plan
and
the
conformity
requirement.

RESPONSE:
As
noted
above
under
other
similar
comments
on
the
June
2,
2003
proposal,
once
EPA
revokes
the
1­
hour
standardNAAQS,
and
the
area
is
an
8­
hour
attainment
area,

section
175A
maintenance
provisions
do
not
apply
and
conformity
for
the
1­
hour
standardNAAQS
no
longer
applies.

Section
51.905(
f)
6.
What
is
the
continued
applicability
of
the
NOx
SIP
Call
after
revocation
of
the
1­
hour
NAAQS?

(
Section
VI.
C.
3.
c.
of
proposal;
see
68
FR
32824;
section
51.905(
f)
of
the
proposed
and
final
rules)

1a.
Background
In
the
June
2,
2003
proposal
(
68
FR
32824),

we
noted
that
it
is
important
to
ensure
that
the
transition
to
the
8­
hour
standardNAAQS
does
not
jeopardize
the
controls
required
to
be
in
place
under
the
NOx
SIP
Call
rule
and
the
section
126
rule
(
i.
e.,
the
rules
for
addressing
the
longrange
transport
of
ozone
and
its
precursor,
NOx).
We
STAFF
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
43When
EPA
promulgated
the
NOx
SIP
Call,
we
required
the
same
level
of
reductions
for
both
the
1­
hour
and
8­
hour
ozone
NAAQS
(
63
FR
57356,
October
27,
1998).
In
response
to
the
Court
of
Appeals
remand
of
the
8­
hour
standardNAAQS,
EPA
stayed
the
8­
hour
basis
of
the
NOx
SIP
Call
(
65
FR
2674,
January
18,
2000).
However,
since
the
same
level
of
reductions
was
required
for
both
the
8­
hour
and
1­
hour
standardsNAAQS,
the
stay
had
no
practical
effect
on
States'
compliance
with
the
rule.
Because
EPA
also
stayed
the
8­
hour
portion
of
the
Section
126
Rule,
we
did
not
move
forward
to
make
the
section
126
findings
under
the
8­
hour
standardNAAQS
which
would
trigger
the
8­
hour
control
requirements
(
65
FR
2674,
January
18,
2000).
We
plan
to
complete
rulemaking
action
on
the
8­
hour
petitions
at
the
time
we
lift
the
8­
hour
stay.
All
of
the
States
affected
by
the
1­
hour
and/
or
8­
hour
Section
126
Rule
are
also
covered
by
the
NOx
SIP
Call.
The
Section
126
Rule
contains
a
provision
under
which
the
Section
126
findings
and
control
requirements
would
be
withdrawn
if
States
have
approved
SIPs
meeting
the
NOx
SIP
Call.
The
EPA
has
already
withdrawn
the
1­
hour
Section
126
Rule
in
3three
States
and
the
District
of
Columbia
and
proposed
to
withdraw
the
1­
hour
rule
in
all
other
affected
States
except
one.
(
We
expect
to
propose
action
with
respect
to
the
rule
in
the
remaining
State
shortly.)

240
jointly
referred
to
these
rules
in
the
proposal
as
the
NOx
transport
rules.
We
indicated
that
we
plan
to
lift
the
stay
of
the
8­
hour
basis
for
the
NOx
transport
rules.
43
Regardless
of
whether
we
lift
that
stay,
the
controls
required
have
substantial
benefits
for
reductions
of
both
1­
hour
and
8­
hour
ozone
levels.
We
indicated
that
we
believe
that
relaxing
such
controls
would
be
contrary
to
the
principles
we
identified
in
the
proposal
for
an
effective
transition.
Thus,
we
proposed
that
States
must
continue
to
adhere
to
the
emission
budgets
established
by
the
NOX
STAFF
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4/
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04
1:
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pm
compared
with
2/
26/
04
version
241
transport
rules
after
the
1­
hour
standardNAAQS
is
revoked
in
whole
or
in
part.

The
draft
regulatory
text
reflected
the
discussion
in
the
June
proposal.

2b.
Summary
of
Ffinal
Rrule.
We
are
adopting
the
approach
we
set
forth
in
our
proposed
rule
and
draft
regulatory
text.

States
must
continue
to
adhere
to
the
emission
budgets
established
by
the
NOx
transport
rules
after
the
1­
hour
standardNAAQS
is
revoked.
States
retain
the
authority
to
revise
control
obligations
they
have
established
for
specific
sources
or
source
categories
under
the
NOx
SIP
Call
rule
so
long
as
the
State
demonstrates
consistent
with
section
110(
l)
that
such
modification
will
not
interfere
with
attainment
of
or
progress
toward
meeting
the
8­
hour
NAAQS
or
any
other
applicable
requirement
of
the
CAA.
We
continue
to
believe
that
the
reductions
required
by
the
NOx
transport
rules
are
necessary
to
address
transported
emissions
for
the
8­
hour
ozone
NAAQS
as
well
as
the
1­
hour
ozone
NAAQS.

3c.
Comments
and
Rresponses
(
i)
Comments
on
the
June
2,
2003
proposal:

Only
a
handful
of
commenters
addressed
this
issue,
all
of
whom
supported
the
proposal.
Several
of
these
commenters
STAFF
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OR
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4/
13/
04
1:
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pm
compared
with
2/
26/
04
version
242
recommended
that
we
lift
the
stay
of
the
NOx
transport
rules
with
respect
to
the
8­
hour
standardNAAQS.
Additionally,

only
a
few
commenters
specifically
commented
on
this
provision
of
the
draft
regulatory
text
(
51.905(
f)),
and
all
supported
the
concept.

D.
What
is
the
Required
Timeframe
for
Obtaining
Emissions
Reductions
to
Ensure
Attainment
by
the
Attainment
Date?

(
Section
VI.
E
of
the
proposed
rule
(
68
FR
32826);
Section
51.908(
e)
of
the
draft
regulatory
text;
Section
51.908
of
theand
final
rule.
s)

1.
Background:.
In
the
June
2003
proposal,
we
proposed
that
emissions
reductions
needed
for
attainment
must
be
implemented
by
an
area's
attainment
date.
We
noted
this
meant
that
emissions
reductions
must
be
implemented
by
the
beginning
of
the
final
ozone
season
prior
to
the
attainment
date.
For
example,
for
areas
with
an
attainment
date
in
May
2010,
the
emissions
reductions
need
to
be
implemented
by
the
beginning
of
the
2009
ozone
season
because
a
determination
of
attainment
will
be
based
on
air
quality
monitoring
data
from
2007,
2008
and
2009.
The
proposal
cautioned
that
States
should
be
aware
of
the
consequences
of
failing
to
implement
the
control
measures
necessary
for
attainment
sufficiently
far
in
advance
of
their
attainment
date.
As
STAFF
DRAFT
 
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QUOTE,
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OR
DISTRIBUTE
 
4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
44
See
section
4.
entitled,
"
How
Will
EPA
Address
the
Provision
Regarding
1­
Year
Extensions?"
where
we
interpret
the
clause
"
no
more
than
1
exceedance"
in
section
181(
5)(
b)
to
mean,
for
purposes
of
the
8­
hour
NAAQS,
that
the
4th
high
reading
at
an
ozone
monitor
in
the
ozone
season
preceding
the
attainment
date
is
less
than
0.85
ppm.

243
noted
above,
for
areas
covered
under
subpart
2,
section
181(
a)(
5)
of
the
CAA
allows
up
to
two
1­
year
attainment
date
extensions
if
two
criteria
are
met:
the
area
has
complied
with
all
requirements
and
commitments
in
the
approved
SIP
and
the
area
has
no
more
than
one
exceedance
of
the
NAAQS
in
the
attainment
year.
As
provided
above,
we've
interpreted
the
second
criterion
to
mean
that
to
obtain
the
first
1­
year
extension,
the
area
must
be
meeting
the
level
of
the
standardNAAQS
in
the
attainment
year
itself.
44
Thus,
States
should
ensure
that
the
emissions
reductions
are
implemented
to
ensure
that
ozone
levels
for
the
ozone
season
preceding
the
attainment
date
are
below
the
level
of
the
standardNAAQS.
If
an
area
does
not
meet
the
eligibility
requirements
for
the
1­
year
extension,
it
would
be
subject
to
a
reclassification
to
a
higher
classification
(
bump
up).

Areas
covered
under
subpart
1
are
able
to
obtain
up
to
two
1­
year
attainment
date
extensions,
however
there
is
no
provision
for
a
bump
up
in
subpart
1.
If
an
area
covered
under
subpart
1
fails
to
attain,
section
179
of
the
CAA
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4/
13/
04
1:
30
pm
compared
with
2/
26/
04
version
244
provides
that
EPA
publish
a
finding
of
failure
to
attain
which
starts
a
1­
year
time
frame
for
States
to
submit
a
SIP
revision
that
provides
for
attainment
within
a
specified
time
frame.

2.
Summary
of
final
rule:.
In
section
51.908,
we
are
adopting
the
approach
we
set
forth
in
our
proposed
rule,

namely
that
emissions
reductions
needed
for
attainment
must
be
implemented
by
the
beginning
of
the
ozone
season
immediately
preceding
the
area's
attainment
date.
We
believe
that
Congress
contemplated
that
control
measures
would
continue
to
be
implemented
up
to
the
attainment
year.

For
example,
section
182(
c)(
2)(
B)
requires
areas
classified
as
serious
or
higher
to
achieve
an
average
of
3
percent
reduction
in
emissions
per
year
over
each
three­
year3­
year
period
until
the
area's
attainment
date.
If
Congress
intended
areas
to
achieve
all
reductions
needed
for
attainment
three3
years
prior
to
attainment,
then
the
last
9
percent
reductions
required
for
serious
and
above
areas
would
be
reductions
beyond
those
needed
for
attainment.
We
do
not
believe
that
Congress
mandated
these
reductions
in
addition
to
the
reductions
needed
to
attain
the
standardNAAQS.
In
fact,
this
requirement
is
included
in
the
statute
as
a
part
of
the
subparagraph
addressing
attainment
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version
45
As
discussed
in
the
section
regarding
the
two
1­
year
attainment
date
extensions,
section
172(
a)(
2)(
C),
which
applies
to
all
pollutants,
allows
for
a
1­
year
attainment
date
extension
if
the
area
has
had
"
minimal
exceedances"
in
the
attainment
year
and
section
181(
a)(
5),
which
applies
to
245
and
reasonable
further
progress,
which
indicates
that
Congress
intended
it
to
address
progress
toward
attainment.

This
is
further
supported
by
the
definition
of
reasonable
further
progress
in
section
171(
1)
as
"
annual
incremental
reductions
in
emissions
...
for
the
purpose
of
ensuring
attainment
..."
Other
provisions
in
the
CAA
also
support
the
concept
that
areas
do
not
need
to
achieve
three3
years
in
advance
of
the
attainment
date
the
full
complement
of
reductions
needed
for
attainment.
For
example,
Congress
only
provided
marginal
areas
with
three3
years
to
attain
the
standardNAAQS
and
did
require
at
least
minimal
additional
controls
be
implemented
in
such
areas.
In
addition,
the
fact
that
Congress
provided
for
two
1­
year
extensions
of
the
attainment
date
also
indicated
that
Congress
believed
that
some
areas
might
not
be
fully
implementing
all
measures
needed
for
attainment
three3
years
in
advance
of
the
attainment
date.
Rather,
Congress
contemplated
that
areas
would
have
air
quality
healthy
enough
to
make
it
substantially
likely
the
area
would
attain
within
the
next
one1
or
two2
years.
45
Finally,
we
note
that
the
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version
ozone
nonattainment
areas
classified
under
subpart
2,
allows
for
a
1­
year
extension
if
the
area
has
had
no
more
than
1
exceedance
in
the
attainment
year.

246
standardNAAQS
itself
does
not
contemplate
that
air
quality
must
be
at
"
attainment
levels"
for
each
of
the
three3
years
on
which
attainment
is
based.
Rather,
attainment
is
determined
based
on
an
average
of
the
4th
high
reading
at
a
monitor
over
a
three3
year
period.
Thus,
the
4th
high
reading
for
an
area
could
be
above
the
standardNAAQS
for
one
or
both
of
the
years
preceding
the
attainment
year,
but
so
long
as
the
4th
high
level
for
the
other
year(
s)
was
low
enough
to
produce
an
average
at
or
below
0.084
ppm,
the
area
would
be
attaining
the
standardNAAQS.

As
noted
in
the
June
2003
preamble,
despite
the
fact
that
we
believe
an
area
need
not
have
all
controls
implemented
until
the
beginning
of
the
final
attainment
season,
the
State
needs
to
consider
that
attainment
is
based
on
a
3­
year
average.
Thus,
the
State
will
need
to
ensure
that
implementation
of
controls
is
not
unduly
delayed.
A
State
that
plans
to
achieve
reductions
by
the
beginning
of
the
ozone
season
prior
to
the
attainment
date
may
still
experience
meteorology
conducive
to
very
high
ozone
formation
in
that
last
ozone
season
that
may
result
in
the
area
having
a
4th
highest
daily
ozone
concentration
above
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version
46Memorandum,
``
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.
Wweb
site:
http://
www.
epa.
gov/
ttn/
oarpg/
t1pgm.
html.

247
the
level
of
the
8­
hour
standardNAAQS,
making
it
ineligible
for
the
first
of
the
1­
year
extensions.
Such
an
area
 
if
classified
under
subpart
2
 
would
then
be
reclassified
(
bumped
up)
to
a
higher
classification
and
be
subject
to
additional
planning
requirements
and
mandatory
control
measures.
Thus,
a
State
should
be
aware
of
the
consequences
of
delaying
too
long
to
implement
control
measures
needed
for
attainment.
Additionally,
in
reviewing
implementation
timeframes
in
SIPs,
EPA
will
consider
whether
those
timeframes
are
as
expeditious
as
practicable.
A
guidance
memorandum
from
John
Seitz
of
November
30,
199946
reiterates
the
need
to
implement
measures
as
expeditiously
as
practicable:

In
order
for
EPA
to
determine
whether
an
area
has
provided
for
implementation
as
expeditiously
as
practicable,
the
State
must
explain
why
the
selected
implementation
schedule
is
the
earliest
schedule
based
on
the
specific
circumstances
of
that
area.
Such
claims
cannot
be
general
claims
that
more
time
is
needed
but
rather
should
be
specifically
grounded
in
evidence
of
economic
or
technologic
infeasibility.
While
it
may
be
appropriate
for
some
control
measures
to
be
implemented
shortly
after
adoption,
the
EPA
recognizes
that
other
measures
may
need
a
longer
period.
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version
248
The
EPA
will
review
the
State's
submission
to
ensure
that
sufficient
information
is
provided
for
the
EPA
to
determine
whether
the
State
has
adopted
all
RACM
necessary
for
attainment
as
expeditiously
as
practicable
and
provided
for
implementation
of
those
measures
as
expeditiously
as
practicable.
The
EPA
will
make
those
determinations
based
on
the
information
provided
by
the
State
and
any
other
information
available
to
the
EPA
at
the
time
the
Agency
approves
or
disapproves
the
attainment
demonstration.

3.
Comments
and
Rresponses
CommentCOMMENT:
Some
commenters
agreed
with
our
proposal
as
written,
i.
e.,
to
require
that
emission
reductions
needed
for
attainment
be
implemented
by
the
beginning
of
the
ozone
season
prior
to
the
attainment
year.

However,
several
commenters
disagreed
with
the
timeframe
that
was
included
in
our
proposal
that
required
reductions
be
in
place
by
the
beginning
of
the
ozone
season
prior
to
the
attainment
date
because
it
precludes
areas
from
realizing
the
benefit
of
Federal
measures
prior
to
developing
additional
local
controls.

Another
commenter
stated
that
the
attainment
deadlines
place
an
extraordinary
burden
on
metropolitan
areas
to
achieve
the
level
of
emissions
reductions
necessary
to
demonstrate
attainment.
The
commenter
felt
that
requiring
emissions
reductions
to
be
implemented
at
the
beginning
of
the
ozone
season
prior
to
the
attainment
date
is
one1
year
earlier
than
is
required.
The
commenter
stated
that
so
long
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compared
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04
version
249
as
there
are
no
exceedances
in
the
attainment
year,
i.
e.,

having
controls
in
place
by
the
beginning
of
the
ozone
season
of
the
attainment
year,
the
area
has
meet
the
statutory
requirement
and
could
qualify
for
the
first
of
two
1­
year
attainment
date
extensions
allowed
under
the
CAA.

The
commenter
further
stated
that
controls
for
moderate
areas
would
need
to
be
in
place
by
about
the
same
time
the
area's
SIP
must
be
submitted
to
EPA
in
order
to
provide
three3
years
of
clean
data
for
the
demonstration
of
attainment.

Other
commenters
stated
that
all
emissions
reductions
needed
for
attainment
must
be
implemented
in
sufficient
time
to
ensure
attainment
by
the
attainment
date
without
relying
on
the
CAA
provisions
for
the
1­
year
extensions.

ResponseRESPONSE:
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
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04
version
250
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.

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.
The
final
rule
on
how
those
extension
provisions
would
be
implemented
appears
elsewhere
in
this
preamble
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
standardNAAQS
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
standardNAAQS.
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
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04
version
251
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
standardNAAQS
in
the
General
Preamble
of
April
16,
1992
(
57
FR
13498,
13506);
this
discussion
may
have
some
applicability
to
the
8­
hour
standardNAAQS.

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.
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04
version
252
COMMENT:
Comment:
Several
commenters
suggested
that
nonattainment
areas
should
be
afforded
the
opportunity
to
install
controls
in
time
to
monitor
for
attainment
before
the
attainment
deadline.
The
commenters
believes
that
for
many
industrialized
and
metropolitan
areas
classified
under
Subpart
2
as
marginal,
moderate
or
serious,
it
will
not
be
feasible
to
have
stationary
and
mobile
source
controls
in
place
three3
years
before
the
attainment
deadlines
for
the
purposes
of
attainment
monitoring.
Pragmatically,
state
SIPS
will
not
be
finalized
until
mid­
2007,
at
which
time
industrial
facilities
can
begin
the
18­
24
month
period
for
detailed
engineering,
permitting
and
procurement
of
NOXx
control
equipment.
The
installation
of
controls
would
occur
over
a
5­
year
average
facility
turnaround
period.

Furthermore,
Tier
II
fuels
and
engines
will
just
be
entering
the
market
as
will
cleaner
diesel
fuel
and
engines.
It
is
virtually
certain
that
many
of
these
areas
will
not
have
the
necessary
emission
reductions
in
place
three3
years
before
the
attainment
deadline
and
will
be
required
to
rely
on
the
case­
by­
case
extensions
to
the
designated
attainment
deadlines.
The
commenters
believe
that
Congress
did
not
intend
for
EPA
to
establish
attainment
deadlines
that
would
in
a
large
number
of
castes
automatically
require
areas
to
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04
version
253
use
deadline
extensions;
such
areas
have
probably
been
misclassified.
All
nonattainment
areas
should
be
afforded
the
opportunity
to
install
controls
in
time
to
monitor
for
attainment
by
the
attainment
deadline,
but
not
three
years
prior
to
the
attainment
year.
This
would
also
eliminate
the
need
for
case­
by­
case
extensions.

RESPONSE:
The
final
rule
does
not
require
emission
reductions
to
be
in
place
three
ozone
seasons
prior
to
the
attainment
date.
However,
the
after­
the­
fact
determination
of
whether
an
area
actually
attains
the
NAAQS
by
its
attainment
date
must
be
done
by
looking
back
at
the
previous
3
years
of
ambient
air
quality
data.
However,
as
noted
elsewhere
in
this
preamble,
the
ActCAA
provides
for
up
to
two
1­
year
extensions
of
the
attainment
date.

CommentCOMMENT:
Marginal
areas
may
not
be
able
to
demonstrate
compliance
in
three3
years
and
the
final
rule
should
provide
for
automatic
extensions
for
such
areas.

Additional
time
to
implement
all
of
these
reductions
may
be
required
in
order
for
marginal
areas
to
comply.
By
creating
an
automatic
extension,
EPA
will
avoid
the
inevitable
cost
of
SIP
nonattainment
planning
problems
that
communities
will
face
if
these
measures
are
fully
implemented.

RESPONSE:
Subpart
2
does
not
require
marginal
areas
to
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04
version
254
submit
an
attainment
demonstration.
As
noted
elsewhere
in
this
preamble,
the
ActCAA
provides
for
up
to
two
1­
year
extensions
of
the
attainment
date.
However,
the
ActCAA
does
not
provide
for
"
automatic"
extensions.

CommentCOMMENT:
One
commenter
noted
that
EPA's
proposal
provides:
"
For
each
nonattainment
area,
the
State
must
provide
for
implementation
of
all
control
measures
needed
for
attainment
no
later
than
the
beginning
of
the
attainment
year
ozone
season."
CAA
§
51.908(
e).
Attainment
of
the
eight­
hour
standardNAAQS
is
based
on
analysis
of
three3
years
of
data.
Part
51,
App.
I
¶
2.3(
a)
("
The
primary
and
secondary
ozone
ambient
air
quality
standards
are
met
at
an
ambient
air
quality
monitoring
site
when
the
3­
year
average
of
the
annual
fourth
highest
daily
maximum
8­
hour
average
ozone
concentration
is
less
than
or
equal
to
0.08
ppm.").

Thus,
to
meet
the
statutory
requirement
that
SIPs
provide
for
attainment,
the
rule
must
require
SIPs
to
provide
for
implementation
of
all
control
measures
needed
for
attainment
no
later
than
three3
years
before
the
attainment
date.

RESPONSE:
We
disagree
with
the
comment.
In
section
51.908,

we
are
adopting
the
approach
we
set
forth
in
our
proposed
rule,
namely
that
emissions
reductions
needed
for
attainment
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04
version
255
must
be
implemented
by
the
beginning
of
the
ozone
season
immediately
preceding
the
area's
attainment
date.
We
believe
that
Congress
contemplated
that
control
measures
would
continue
to
be
implemented
up
to
the
attainment
year.

For
example,
section
182(
c)(
2)(
B)
requires
areas
classified
as
serious
or
higher
to
achieve
an
average
of
3
percent
reduction
in
emissions
per
year
over
each
three­
year
period
until
the
area's
attainment
date.
If
Congress
intended
areas
to
achieve
all
reductions
needed
for
attainment
three
years
prior
to
attainment,
then
the
last
9
percent
reductions
required
for
serious
and
above
areas
would
need
to
be
reductions
beyond
those
needed
for
attainment.
We
do
not
believe
that
Congress
mandated
these
reductions
in
addition
to
the
reductions
needed
to
attain
the
standard.

In
fact,
this
requirement
is
included
in
the
statute
as
a
part
of
the
subparagraph
addressing
attainment
and
reasonable
further
progress,
which
indicates
that
Congress
intended
it
to
address
progress
toward
attainment.
This
is
further
supported
by
the
definition
of
reasonable
further
progress
in
section
171(
1)
as
"
annual
incremental
reductions
in
emissions
...
for
the
purpose
of
ensuring
attainment
..."

Other
provisions
in
the
CAA
also
support
the
concept
that
areas
do
not
need
to
achieve
3
years
in
advance
of
the
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version
256
attainment
date
the
full
complement
of
reductions
needed
for
attainment.
For
example,
Congress
only
provided
marginal
areas
with
three
years
to
attain
the
standard
and
did
require
at
least
minimal
additional
controls
be
implemented
in
such
areas.
In
addition,
the
fact
that
Congress
provided
for
two
1­
year
extensions
of
the
attainment
date
also
indicated
that
Congress
believed
that
some
areas
might
not
be
fully
implementing
all
measures
needed
for
attainment
3
years
in
advance
of
the
attainment
date.
Rather,
Congress
contemplated
that
areas
would
have
air
quality
healthy
enough
to
make
it
substantially
likely
the
area
would
attain
within
the
next
one
or
two
years.
Finally,
we
note
that
the
standard
itself
does
not
contemplate
that
air
quality
must
be
at
"
attainment
levels"
for
each
of
the
three
years
on
which
attainment
is
based.
Rather,
attainment
is
determined
based
on
an
average
of
the
4th
high
reading
at
a
monitor
over
a
three
year
period.
Thus,
the
4th
high
reading
for
an
area
could
be
above
the
standard
for
one
or
both
of
the
years
preceding
the
attainment
year,
but
so
long
as
the
4th
high
level
for
the
other
year(
s)
was
low
enough
to
produce
an
average
at
or
below
0.084
ppm,
the
area
would
be
attaining
the
standard.

As
noted
in
the
June
2003
preamble,
despite
the
fact
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2/
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04
version
257
that
we
believe
an
area
need
not
have
all
controls
implemented
until
the
beginning
of
the
final
attainment
season,
the
State
needs
to
consider
that
attainment
is
based
on
a
3­
year
average.
Thus,
the
State
will
need
to
ensure
that
implementation
of
controls
is
not
unduly
delayed.
A
State
that
plans
to
achieve
reductions
by
the
beginning
of
the
ozone
season
prior
to
the
attainment
date
may
still
experience
meteorology
conducive
to
very
high
ozone
formation
in
that
last
ozone
season
that
may
result
in
the
area
having
more
than
the
allowed
number
of
days
with
concentrations
above
the
level
of
the
8­
hour
standard,

making
it
ineligible
for
the
first
of
the
1­
year
extensions.

Such
an
area
 
if
classified
under
subpart
2
 
would
then
be
reclassified
(
bumped
up)
to
a
higher
classification
and
be
subject
to
additional
planning
requirements
and
mandatory
control
measures.
Thus,
a
State
should
be
aware
of
the
consequences
of
delaying
too
long
to
implement
control
measures
needed
for
attainment.
Additionally,
in
reviewing
implementation
timeframes
in
SIPs,
EPA
will
consider
whether
those
timeframes
are
as
expeditious
as
practicable.
A
guidance
memorandum
from
John
Seitz
of
November
30,
1999
reiterates
the
need
to
implement
measures
as
expeditiously
as
practicable:
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compared
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04
version
258
In
order
for
the
EPA
to
determine
whether
an
area
has
provided
for
implementation
as
expeditiously
as
practicable,

the
State
must
explain
why
the
selected
implementation
schedule
is
the
earliest
schedule
based
on
the
specific
circumstances
of
that
area.
Such
claims
cannot
be
general
claims
that
more
time
is
needed
but
rather
should
be
specifically
grounded
in
evidence
of
economic
or
technologic
infeasibility.
While
it
may
be
appropriate
for
some
control
measures
to
be
implemented
shortly
after
adoption,
the
EPA
recognizes
that
other
measures
may
need
a
longer
period.

The
EPA
will
review
the
State's
submission
to
ensure
that
sufficient
information
is
provided
for
the
EPA
to
determine
whether
the
State
has
adopted
all
RACE
necessary
for
attainment
as
expeditiously
as
practicable
and
provided
for
implementation
of
those
measures
as
expeditiously
as
practicable.
The
EPA
will
make
those
determinations
based
on
the
information
provided
by
the
State
and
any
other
information
available
to
the
EPA
at
the
time
the
Agency
approves
or
disapproves
the
attainment
demonstration.

Comment:
Our
rationale
is
presented
above.

COMMENT:
In
addition,
a
commenter
stated
that
this
timing
was
inconsistent
with
the
draft
modeling
guidance
which
essentially
requires
areas
with
an
attainment
date
of
2013
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version
259
to
have
their
controls
in
place
by
2011
to
perform
an
attainment
demonstration.
The
2011
date
is
inconsistent
from
the
proposal
which
would
require
that
the
emissions
reductions
be
in
place
in
2012.
The
commenter
further
stated
that
it
seems
inappropriate
that
the
draft
modeling
guidance
would
be
driving
the
schedule
for
implementation
of
control
measures
as
opposed
to
the
8­
hour
implementation
rule.

RESPONSE:
Comments
on
the
modeling
requirements
will
be
addressed
in
Phase
2
of
this
rulemaking.
The
approach
on
when
emission
reductions
needed
for
attainment
must
be
in
place
was
not
based
on
the
modeling
requirements,
but
on
the
rationale
stated
in
the
preamble
to
the
final
rule.

E.
COMMENTS
ON
OTHER
ISSUESE.
Conformity
Under
the
8­
Hour
Ozone
Standard
The
June
2,
2003
proposal
provided
background
discussion
on
issues
related
to
transportation
conformity
and
general
conformity
under
the
8­
hour
ozone
standard.
See
sections
VI.
M
(
68
FR
32841)
and
VI.
N.
(
68
FR
32842).

However,
we
did
not
propose
any
rules
related
to
either.
We
did
receive
a
number
of
comments
on
this
topic,
however.

Responses
to
those
comments
are
included
in
the
response
to
comments
document.
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2/
26/
04
version
47EPA
issued
the
memorandum
"
Boundary
Guidance
on
Air
Quality
Designations
for
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard
(
NAAQS
or
Standard)"
on
March
28,
2000,
from
John
S.
Seitz,
Director,
Office
of
Air
Quality
Planning
and
Standards,
to
the
Air
Directors,
Regions
I­
X,
to
provide
guidance
to
State
and
local
agencies
and
Tribes
on
designating
areas
and
EPA's
views
on
boundaries
for
nonattainment
areas
for
the
8­
hour
NAAQS.

260
F.
Comments
on
Other
Issues
We
received
comments
on
other
issues
associated
with
elements
of
this
final
rulemaking.
We
address
those
comments
here.
Comments
on
any
other
issues
not
mentioned
herediscussed
in
this
preamble
will
be
addressed
in
the
second
phase
of
this
final
rulemaking.

1.
Designations
of
nonattainment
and
attainment
areas:
We
received
a
number
of
comments
on
the
designation
process.

RESPONSE:
As
we
noted
in
the
June
2,
2003
proposal,
we
did
not
propose
to
establish
attainment/
nonattainment
designations
nor
did
we
address
the
principles
that
will
be
considered
in
the
designation
process;
we
issued
guidance
on
the
principles
that
States
should
consider
in
making
designation
recommendations
in
March
2000.47
The
designation
process
is
being
conducted
separately.

2.
Early
Action
Compacts
(
EACs):.
(
Section
VIII.
A.
2.
and
3
of
the
proposal;
see
68
FR
32859).

We
received
a
number
of
comments
that
addressed
EACs.
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compared
with
2/
26/
04
version
261
The
June
2,
2003
proposal
included
a
description
and
background
information
concerning
EACs,
but
the
proposal
made
clear
that
we
were
not
proposing
any
rulemaking
on
EACs
in
that
notice.

RESPONSE:
The
comments
we
received
will
be
addressed
when
wein
the
rule
that
takes
final
action
on
the
proposed
rule
to
defer
the
effective
date
for
EAC
areas
and
therefore
those
comments
are
not
addressed
in
this
current
rulemaking.

We
note
that
existing
1­
hour
maintenance
areas
will
remain
subject
to
all
the
requirements
of
that
maintenance
plan
and
transportation
conformity,
until
the
1­
hour
standard
is
revoked
1
year
following
the
effective
date
of
the
area's
8­

hour
designation.
If
EPA
takes
final
action
deferring
the
effective
date
of
the
8­
hour
designation
for
an
EAC
area,

revocation
of
the
1­
hour
standard
will
also
be
effectively
deferred
for
such
area.
Therefore,
for
such
an
EAC
area
that
is
a
1­
hour
maintenance
area,
the
1­
hour
maintenance
plan,
and
1­
hour
conformity,
will
continue
to
apply
until
1
year
after
the
8­
hour
designation
takes
effect.

3.
Health
and
environmental
concerns:
We
received
a
number
of
general
comments
related
to
health
and
environmental
concerns.
Some
of
these
cited
national
health
statistics
or
provided
information
concerning
the
levels
of
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04
version
262
ozone
in
their
communities
or
information
concerning
the
adverse
health
symptoms
of
themselves
or
friends,
relatives,

or
patients.
These
commenters
generally
cited
this
information
as
a
way
of
encouraging
EPA
to
ensure
expeditious
attainment
of
the
8­
hour
ozone
standardNAAQS
and
in
some
cases
to
support
leaving
the
1­
hour
standardNAAQS
and
its
implementation
process
in
place.

RESPONSE:
We
have
addressed
these
latter
concerns
above
in
discussion
of
the
classification
system,
revocation
of
the
1­
hour
standardNAAQS
and
the
anti­
backsliding
provisions
that
serve
to
ensure
that
the
8­
hour
standardNAAQS
is
attained
as
expeditiously
as
practicable
with
little
or
no
delay
in
emission
reductions
as
a
result
of
revoking
the
1­

hour
standardNAAQS.

4.
Clarity
and
understandability
of
proposed
rule:
A
number
of
commenters
expressed
concern
about
the
complexity
of
the
proposed
rule,
and
the
lack
of
apparent
clarity
and
transparency.
A
number
of
these
commenters
complained
that
due
to
the
possible
large
number
of
combinations
and
permutations
of
options
that
were
possible
from
the
proposal,
it
was
difficult
or
impossible
to
determine
exactly
what
the
effect
of
the
rule
would
be.
RESPONSE:

One
of
our
principles
in
drafting
the
proposal
was
to
make
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04
version
263
the
rule
as
understandable
as
possible.
However,
the
Supreme
Court's
ruling
on
our
previous
implementation
approach
left
it
to
EPA
to
develop
an
implementation
scheme
with
only
general
guidance
as
to
how
to
proceed.
Because
the
consequences
of
implementation
under
a
particular
approach
might
be
fairly
large,
we
felt
obligated
to
place
as
many
practicable
options
in
our
proposal
as
possible
to
assess
public
reaction
and
comment.
This
approach
obviously
added
complexity
to
the
proposal.
We
tried
to
minimize
the
complexity
by
setting
forth
two
example
frameworks
for
how
some
options
could
work
in
conjunction
with
each
other.
We
also
attempted
in
the
draft
regulatory
text
to
focus
on
one
set
of
options
to
illustrate
how
one
set
of
options
would
work
together.
We
attempted
to
simplify
where
we
could
and
to
provide
other
materials
in
the
docket
and
on
our
websiteweb
site
for
this
rulemaking
(
e.
g.,
the
"
roadmap"
and
the
crosswalks
between
the
June
2,
2003
proposal
and
the
draft
regulatory
text)
to
enable
the
reader
to
more
easily
see
relations
between
various
sections
of
the
proposal
and
to
provide
a
synopsis
of
the
options
being
proposed.

Although
the
very
nature
of
the
proposal
was
complex,
we
believe
that
the
public
had
sufficient
opportunity
to
comment
on
the
rule.
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26/
04
version
48OAR­
2003­
0079­
0081,
0085
American
Petroleum
Institute
(
API)
requests
for
extension
to
the
August
1st,
2003
comment
deadline.

49OAR­
2003­
0079­
0405
Request
for
Extension
of
Time
for
Filing
Comments
on
Draft
Regulatory
Text
for
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard
(
NAAQS)
submitted
by
Howard
J.
Feldman,
Director,
American
Petroleum
Institute.

50OAR­
2003­
0079­
0542,
0589,
0590
Request
for
Extension
of
time
for
15­
day
comment
period
on
approaches
to
implement
the
8­
hour
ozone
NAAQS,
submitted
by
Gregory
Dana,
Vice
President
Environmental
Affairs,
Alliance
of
Automobile
Manufacturers.

264
5.
Regulatory
text:
A
number
of
commenters
chastised
us
for
not
providing
regulatory
text
with
the
proposal.

RESPONSE:
As
noted
above,
we
did
provide
for
public
comment
draft
regulatory
text,
which
reflected
one
set
of
proposed
options.
On
August
6,
2002
(
68
FR
46536),
we
published
a
notice
of
availability
of
the
draft
regulatory
text
for
the
proposed
rule
to
implement
the
8­
hour
ozone
NAAQS.
This
notice
started
a
30­
day
public
comment
period
on
the
draft
regulatory
text.

6.
Requests
for
Extension
of
Comment
Periods:
We
received
a
number
of
requests
for
extension
of
the
comment
periods
on
the
three
notices
related
to
our
proposal
(
the
June
2,
2003
proposal,
48
the
notice
of
availability
of
the
draft
regulatory
text,
49
and
the
notice
reopening
the
comment
period
on
the
classification
approach.
50)
We
did
not
grant
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version
OAR­
2003­
0079­
0555
Request
for
extension
of
time
for
15­
day
comment
period
on
alternative
approaches
to
implement
the
8­
hour
ozone
NAAQS
submitted
by
Howard
Feldman,
Director
Regulatory
Analysis
and
Scientific
Affairs,
American
Petroleum
Institute
(
API).

OAR­
2003­
0079­
0572
Request
for
Extension
of
Public
Comment
Period
submitted
by
Leslie
S.
Ritts,
Counsel
to
The
National
Environmental
Development
Associations
Clean
Air
Regulatory
Project
(
NEDA/
CARP).

51See,
for
instance,
OAR­
2003­
0079­
0165
Letter
from
S.
Page,
Director,
OAQPS
to
H.
J.
Feldman,
Director,
API,
denying
extension
of
comment
period.

265
any
of
these
requests.
51
We
provided
a
60­
day
comment
period
on
our
full
implementation
proposal,
which
was
published
on
June
2,
2003.
We
also
provided
a
separate
30­
day
comment
period
on
draft
regulatory
text
(
notice
of
availability
was
published
on
August
6,
2003).
The
October
21,
2003
notice
was
very
narrow,
supplementing
just
one
aspect
of
the
June
2,
2003
proposal.
We
believe
that
a
15­
day
comment
period
was
sufficient
to
address
this
limited
issue.
That
notice
was
based
on
several
comments
which
were
submitted
during
the
public
comment
period.
Those
comments
have
been
available
to
the
public
since
early
August.
We
are
committed
by
a
consent
decree
to
designate
areas
for
the
8­
hour
ozone
NAAQS
by
April
15,
2004.
We
believe
it
was
essential
to
move
forward
to
provide
the
public
health
protection
that
implementation
of
the
8­
hour
standardNAAQS
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version
266
will
yield.
We
have
recognized
the
strong
interest
from
many
stakeholders
in
our
issuance
of
a
final
implementation
rule
prior
to
the
April
2004
designation
deadline.
These
interests,
in
conjunction
with
the
reasons
set
forth
above,

support
our
denial
of
requests
for
an
extension
of
the
comment
period.
However,
as
is
normally
the
case,
we
considered
comments
received
after
the
close
of
the
comment
period
to
the
extent
we
were
able
to
do
so
without
impeding
the
process
for
issuing
the
final
rule.

F.
G.
Other
Considerations
Although
Phase
2
of
the
final
rule
will
address
aspects
of
implementation
of
the
8­
hour
ozone
NAAQS
that
are
not
addressed
in
this
rulemaking,
additional
information
is
provided
below
regarding
new
source
review
for
the
8­
hour
ozone
NAAQS.

1.
What
happens
if
a
source
is
in
the
process
of
PSD
permitting
at
the
time
that
the
area
in
which
it
is
located
is
designated
as
nonattainment
for
the
8­
hour
ozone
NAAQS?

An
area's
designation
at
the
time
the
final
permit
is
issued
determines
which
major
New
Source
Review
(
NSR)

requirements
apply
to
the
construction
activity.

Accordingly,
if
a
source
has
received
its
PSD
permit
before
the
area
is
designated
nonattainment,
it
may
construct
under
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with
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04
version
267
the
terms
of
that
permit
if
it
commences
an
ongoing
program
of
construction
within
the
required
time
period
and
completes
the
project
within
a
reasonable
time.
However,
if
the
area
is
designated
nonattainment
before
the
permit
is
issued
(
even
if
the
reviewing
authority
deemed
the
PSD
application
complete),
the
PSD
permit
may
not
be
issued.

The
source
would
be
required
to
submit
a
new
application
to
comply
with
the
requirements
of
the
applicable
nonattainment
major
NSR
program
before
receiving
a
final
permit
and
beginning
construction.
40
CFR
52.24(
k)
and
40
CFR
part
51,

appendix
S.
We
have
consistently
applied
this
approach
in
past
designation
and
redesignation
situations.

This
approach
is
consistent
with
CAA
section
165,
which
states
that
PSD
permitting
requirements
apply
only
in
attainment
and
unclassifiable
areas.
The
D.
C.
District
Court
of
Appeals
affirmed
this
plain
reading
of
the
statute
in
the
Alabama
Power
decision
[
636
F.
2d
323].
In
response
to
EPA's
attempt
to
apply
PSD
permitting
requirements
in
some
nonattainment
areas,
the
court
stated,
"
After
careful
consideration
of
the
statute
and
the
legislative
history,
we
must
accept
the
contention
of
the
industry
petitioners
that
the
phrase
`
constructed
in
any
area
to
which
this
part
applies'
limits
the
application
of
Section
165
to
major
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version
268
emitting
facilities
to
be
constructed
in
[
attainment
and
unclassifiable
areas]."
The
court
went
on
to
say,
"
The
plain
meaning
of
the
inclusion
in
section
165
of
the
words
`
any
area
to
which
this
part
applies'
is
that
Congress
intended
location
to
be
the
key
determinant
of
the
applicability
of
the
PSD
review
requirements."

This
approach
is
also
consistent
with
the
regulatory
text
in
the
Federal
PSD
regulations.
These
regulations
limit
the
applicability
of
PSD
requirements
to
"
an
area
designated
as
attainment
or
unclassifiable."
40
CFR
51.166(
a)(
7)(
i);
52.21(
a)(
2)(
i).

H.
EPA's
Final
Action
xxx
NEED
TO
ADD
SUMMARY
V
We
are
taking
final
action
on
key
elements
of
the
program
to
implement
the
8­
hour
ozone
NAAQS.
This
final
rule
addresses
the
following
topics:
classifications
for
the
8­
hour
NAAQS;
revocation
of
the
1­
hour
NAAQS
(
i.
e.,
when
the
1­
hour
NAAQS
will
no
longer
apply);
how
anti­
backsliding
principles
will
ensure
continued
progress
toward
attainment
of
the
8­
hour
ozone
NAAQS;
attainment
dates;
and
the
timing
of
emission
reductions
needed
for
attainment.
A
summary
of
the
rule
appears
in
section
IV
of
this
preamble.

VI.
STATUTORY
AND
EXECUTIVE
ORDER
REVIEWS
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269
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
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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.
This
rule
merely
interprets
the
requirement
to
develop
State
implementation
plans
to
achieve
a
new
or
revised
NAAQS.
This
requirement
is
prescribed
in
the
CAA
sections
110
and
part
D,
subparts
1
and
2
of
Title
1.
The
present
final
rule
does
not
establish
any
new
information
collection
burden
apart
from
any
that
required
by
law.
A
SIP
contains
rules
and
other
requirements
designed
to
achieve
the
NAAQS
by
the
deadlines
established
under
the
CAA,
and
also
contains
a
demonstration
that
the
State's
requirements
will
in
fact
result
in
attainment.

Such
a
document
is
not
considered
information
collection.

Burden
means
the
total
time,
effort,
or
financial
resources
expended
by
persons
to
generate,
maintain,
retain,
or
disclose
or
provide
information
to
or
for
a
Federal
agency.

This
includes
the
time
needed
to
review
instructions;
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271
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,
validating,
and
verifying
information,
processing
and
maintaining
information,
and
disclosing
and
providing
information;

adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.
An
agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
in
40
CFR
are
listed
in
40
CFR
part
9.

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.
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272
For
purposes
of
assessing
the
impacts
of
today's
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
for­
profit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.

After
considering
the
economic
impacts
of
today's
rule
on
small
entities,
I
certify
that
this
action
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
This
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.
We
are
issuing
this
rule
so
that
States
and
Tribes
will
know
how
we
plan
to
classify
areas
and
transition
from
implementation
of
the
1­
hour
NAAQS
to
implementation
of
the
8­
hour
NAAQS.

D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
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version
273
(
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,
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
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274
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.

The
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
standardNAAQS
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,
N.
C.,
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
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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
this
rule,
EPA
has
determined
that
this
rule
contains
no
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
Tribal
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version
276
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
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
rule
considers
options
not
addressed
at
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compared
with
2/
26/
04
version
277
the
time
the
NAAQS
were
promulgated,
the
costs
for
implementation
under
these
options
would
may
rise
modestly.

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
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
rule.

Although
section
6
of
Executive
Order
13132
does
not
apply
to
this
rule,
EPA
actively
engaged
the
States
in
the
development
of
this
rule.
EPA
held
regular
calls
with
representatives
of
State
and
local
air
pollution
control
agencies.
EPA
also
held
three
public
meetings
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.

Finally,
EPA
held
three
public
hearings
after
the
proposed
rule
was
published
to
obtain
public
comments.

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,
STAFF
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13/
04
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30
pm
compared
with
2/
26/
04
version
278
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
determination
is
stated
below.

This
rule
concerns
the
implementation
of
the
8­
hour
ozone
standardNAAQS
in
areas
designated
nonattainment
for
that
standardNAAQS.
The
CAA
provides
for
States
and
Tribes
to
develop
plans
to
regulate
emissions
of
air
pollutants
within
their
jurisdictions.
The
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
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
rule
does
not
affect
the
relationship
or
distribution
of
power
and
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compared
with
2/
26/
04
version
279
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
rule
does
nothing
to
modify
that
relationship.
Because
this
rule
does
not
have
Tribal
implications,
Executive
Order
13175
does
not
apply.

The
EPA
also
notes
that
even
if
Tribes
choose
to
develop
plans
to
implement
the
8­
hour
ozone
NAAQS
in
the
future,
these
regulations
would
not
impose
substantial
direct
compliance
costs
on
such
Tribes,
nor
would
they
preempt
Tribal
law.
As
provided
above,
EPA
has
determined
that
the
total
costs
for
implementing
the
8­
hour
ozone
NAAQS
by
State,
local,
and
Tribal
governments
is
approximately
$
1
million
in
all
areas
designated
nonattainment
for
the
standardNAAQS.
The
percentage
of
Indian
country
that
will
be
designated
nonattainment
for
the
8­
hour
ozone
standardNAAQS
is
very
small.
For
Tribes
that
choose
to
regulate
sources
under
their
jurisdiction,
the
costs
would
be
attributed
to
inspecting
regulated
facilities
and
enforcing
adopted
regulations.

Although
Executive
Order
13175
does
not
apply
to
this
rule,
EPA
did
consult
with
Tribal
officials
in
developing
this
rule
and
encouraged
Tribal
input
at
an
early
stage.
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with
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26/
04
version
280
The
EPA
supports
a
national
"
Tribal
Designations
and
Implementation
Work
Group"
which
provided
an
open
forum
for
all
Tribes
to
voice
concerns
to
EPA
about
the
designation
and
implementation
process
for
the
8­
hour
ozone
standardNAAQS.
These
discussions
have
given
EPA
valuable
information
about
Tribal
concerns
regarding
implementation
of
the
8­
hour
ozone
NAAQS.
The
work
group
sent
issue
summaries
and
suggestions
for
addressing
them
to
the
newly
formed
National
Tribal
Air
Association
(
NTAA),
who
in
turn
sent
them
to
Tribal
leaders.
EPA
encouraged
Tribes
to
participate
in
the
national
public
meetings
held
to
take
comment
on
early
approaches
to
the
rule.
Several
Tribes
made
public
comments
at
the
April
2002
public
meeting
in
Tempe,
Arizona.

Furthermore,
EPA
sent
individualized
letters
to
all
federally
recognized
Tribes
about
the
proposal
and
gave
Tribal
leaders
the
opportunity
for
consultation.
EPA
received
comment
from
the
NTAA
raising
several
questions:

(
1)
NTAA
asked
for
clarification
on
the
nature
of
EPA's
support
for
Tribes
without
Treatment
in
a
similarthe
same
manner
as
a
State
(
TAS)
status
and
asked
if
EPA
would
provide
technical
assistance
in
interpreting
SIP
documentation
to
a
Tribe
without
TAS
approval;
(
2)
NTAA
STAFF
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04
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pm
compared
with
2/
26/
04
version
281
asked
EPA
to
explain
how
it
envisions
its
role
in
continuing
consultation
with
Tribes
throughout
the
execution
of
SIPs.

These
comments
will
be
addressed
in
the
technical
support
document.
The
NTAA's
final
comment
cited
concerns
with
the
impact
of
NSR
requirements
on
the
Tribes.
The
EPA
intends
to
address
these
NSR
comments
in
the
Tribal
NSR
Rule.

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
rule
is
not
subject
to
Executive
Order
13045
because
it
implements
a
previously
promulgated
health
based
Federal
standard
(
this
rule
implements
the
8­
hour
ozone
STAFF
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04
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30
pm
compared
with
2/
26/
04
version
282
NAAQS).
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
38855,
62
FR
38860
and
62
FR
38865).

H.
Executive
Order
13211:
Actions
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
This
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
2003,
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.
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26/
04
version
283
VIII.
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
rulemaking
does
not
involve
technical
standards.

Therefore,
EPA
is
not
considering
the
use
of
any
VCS.

The
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
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compared
with
2/
26/
04
version
284
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.

The
EPA
believes
that
this
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
rule
provides
a
framework
for
improving
environmental
quality
and
reducing
health
risks
for
areas
that
may
be
designated
nonattainment.

K.
Congressional
Review
Act
The
Congressional
Review
Act,
5
U.
S.
C.
801
et
seq.,
as
added
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996,
generally
provides
that
before
a
rule
may
take
effect,
the
agency
promulgating
the
rule
must
submit
a
rule
report,
which
includes
a
copy
of
the
rule,
to
each
House
of
the
Congress
and
to
the
Comptroller
General
of
the
United
States.
The
EPA
will
submit
a
report
containing
this
rule
and
other
required
information
to
the
U.
S.
Senate,
the
U.
S.

House
of
Representatives,
and
the
Comptroller
General
of
the
United
States
prior
to
publication
of
the
rule
in
the
285
Federal
Register.
A
Major
rule
cannot
take
effect
until
60
Rule
to
Implement
the
8­
Hour
Ozone
Standard
Page
___
of
___

286
days
after
it
is
published
in
the
Federal
Register.
This
action
is
not
a
"
major
rule"
as
defined
by
5
U.
S.
C.
804(
2).

This
rule
will
be
effective
(
Insert
60
days
from
date
of
publication)
June
1,
2004.

LIST
OF
SUBJECTS
in
40
CFR
Part
51
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:

________________________________

Administrator.
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287
APPENDIX
A
DRAFT
EXAMPLE
FOR
8­
HR
O3
PREAMBLE
PORTION
DEALING
WITH
ANTI­
BACKSLIDING
AND
OUTSTANDING
1­
HR
ROP
OBLIGATION.

For
example,
cConsider
a
1­
hour
nonattainment
area
classified
as
Severe­
15.
For
simplicity,
only
one
precursor
is
assumed
here,
and
this
example
does
not
account
for
issues
of
creditability
established
by
the
ActCAA.
The
1­

hour
Severe­
15
areas
are
required
to
reach
attainment
no
later
than
15
years
after
the
1990
base
year,
i.
e.,
in
year
2005.
The
ROP
requirement
over
this
15­
year
period
would
be
accomplished
by
an
initial
15%
15
percent
reduction
in
emissions
in
the
first
six
years,
followed
by
additional
3%
3
percent
per
year
reductions
(
9%
9
percent
averaged
over
three
years)
until
attainment
is
reached
but
no
later
than
the
attainment
date
(
with
any
additional
reductions
needed
for
attainment).
Suppose
an
area
started
with
a
base
year
emissions
inventory
of
1000
tons/
day
(
t/
d);
after
an
initial
15%
15
percent
reduction,
the
area's
emissions
in
1996
would
be
850
t/
d.
Subsequent
additive
linear
9%
9
percent
reductions
would
net
24%
24
percent,
33%
33
percent,

and
42%
42
percent
reductions,
leaving
emissions
of
760
t/
d
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288
in
1999,
670
t/
d
in
2002,
and
580
t/
d
in
2005.
(
Since
each
subsequent
9
year
incremental
reduction
toward
attainment
would
have
to
account
for
adjustments
in
the
base
year
inventory
because
of
noncreditable
reductions,
actual
reductions
would
vary
somewhat
from
those
shown
here.)

Assume
that
the
same
area
is
classified
Serious
for
the
8­
hour
NAAQS.
Under
one
of
our
proposed
options
for
such
an
area,
the
area
would
be
required
to
submit
an
RFP
plan
in
2006
that
shows
(
for
the
6­
year
period
from
the
end
of
2002
to
the
end
of
2008)
an
18%
18
percent
reduction
from
a
2002
base
year.
The
1­
hour
NAAQS
ROP
schedule
thus
overlaps
the
8­
hour
one,
which
begins
in
base
year
2002
and
continues
to
year
2013.
As
the
same
1­
hour
Severe­
15
area
transitions
to
an
8­
hour
serious
nonattainment
area,
overlap
occurs
during
years
2002
through
2005.
During
this
interval,
the
area
will
complete
its
last
9%
9
percent
incremental
reduction
in
year
2005
for
its
1­
hour
obligation
while
at
the
same
time
beginning
to
meet
the
8­
hour
obligation
of
18%
18
percent
by
2008.
Therefore,
between
2002
­
2005,
the
area
will
need
to
get
(
670
t/
d
­
580
t/
d
=)
90
t/
d
reductions
to
meet
its
1­
hour
obligation.
The
area
would
also
be
required
to
get
between
2002
­
2008
an
18%
18
percent
reduction
from
the
2002
base
inventory
of
670
t/
d
which
equals
a
121
t/
d
in
reductions.
However,
since
the
90
t/
d
is
already
obtained
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289
for
the
2002
­
2005
period,
the
area
need
only
get
an
additional
(
121
t/
d
­
90
t/
d
=)
31
t/
d
reductions
to
meet
the
8­
hour
obligation
from
2005
out
to
2008.
Therefore,
if
this
area
had
not
actually
submitted
a
1­
hour
ROP
plan
that
covered
the
2002­
2005
period,
and
it
submitted
its
8­
hour
RFP
plan
that
achieves
the
121
t/
d
reduction,
it
would
be
deemed
to
have
met
its
1­
hour
ROP
obligation,
provided
that
the
RFP
plan
insured
that
90
t/
d
would
be
achieved
by
2005.
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290
APPENDIX
B
GLOSSARY
OF
TERMS
AND
ACRONYMS
bump­
up
Reclassify
to
higher
classification
CAA
Clean
Air
Act
CAAA
1990
Clean
Air
Act
Amendments
CFR
Code
of
Federal
Regulations
CMSA
Consolidated
Metropolitan
Statistical
Area
EAC
Early
Action
Compacts
EPA
Environmental
Protection
Agency
I/
M
Inspection
and
Maintenance
Area
LAER
Lowest
achievable
emission
rate
LNB
Low
NOx
Burner
MCR
Mid­
course
review
MPO
Metropolitan
Planning
Organization
NAAQS
National
Ambient
Air
Quality
Standards
NOx
Nitrogen
oxides
NSR
New
source
review
NTAA
National
Tribal
Air
Association
NTTAA
National
Technology
Transfer
Advancement
Act
of
1995
OMB
Office
of
Management
and
Budget
OTR
Ozone
Transport
Region
PAMS
Photochemical
Assessment
Monitoring
Stations
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ppm
Parts
per
million
PSD
Prevention
of
significant
deterioration
RACM
Reasonably
available
control
measures
RACT
Reasonably
available
control
technology
RFG
Reformulated
gasoline
RFP
Reasonable
further
progress
ROP
Rate
of
progress
SBA
Small
Business
Administration
SCR
Selective
Catalytic
Reduction
SIPs
State
implementation
plans
TAR
Tribal
Authority
Rule
TAS
Treatment
in
the
same
manner
as
a
State
t/
d
Tons
per
day
TEA­
21
Transportation
Equity
Act
for
the
Twenty­
first
Century
UMRA
Unfunded
Mandates
Reform
Act
of
1995
VCS
Voluntary
consensus
standards
VOC
Volatile
organic
compound
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292
For
the
reasons
stated
in
the
preamble,
the
Environmental
Protection
Agency
revises
40
CFR
Part
50,
and
amends
40
CFR
Parts
51
and
81
as
follows:

40
CFR
Part
50
 
National
Primary
and
Secondary
Ambient
Air
Quality
Standards
The
second
sentence
of
40
CFR
50.9(
b)
is
amended
to
read
as
follows:

Sec.
50.9
National
1­
hour
primary
and
secondary
ambient
air
quality
standards
for
ozone.

*
*
*
*
*

(
b)
.
.
.
The
1­
hour
NAAQS
set
forth
in
section
50.9(
a)
will
no
longer
apply
to
an
area
one
year
after
the
effective
date
of
the
designation
of
that
area
for
the
8­
hour
ozone
NAAQS
pursuant
to
section
107
of
the
Clean
Air
Act.

40
CFR
Part
51
 
Requirements
for
Preparation,
Adoption,
and
Submittal
of
Implementation
Plans
40
CFR
51
is
amended
by
adding
a
new
subpart
X
to
read
as
follows:

Subpart
X
 
Provisions
for
Implementation
of
8­
hour
Ozone
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National
Ambient
Air
Quality
Standard.

Sec.
51.900
Definitions.

Sec.
51.901
Applicability
of
Part
51.

Sec.
51.902
Which
classification
and
area
planning
provisions
of
the
CAA
shall
apply
to
areas
designated
nonattainment
for
the
8­
hour
NAAQS?

Sec.
51.903
How
do
the
classification
and
attainment
date
provisions
in
section
181
of
subpart
2
of
the
CAA
apply
to
areas
subject
to
section
51.902(
a)?

Sec.
51.904
How
do
the
classification
and
attainment
date
provisions
in
section
172(
a)
of
subpart
1
of
the
CAA
apply
to
areas
subject
to
section
51.902(
b)?

Sec.
51.905
How
do
areas
transition
from
the
1­
hour
NAAQS
to
the
8­
hour
NAAQS
and
what
are
the
anti­
backsliding
provisions?

Sec.
51.906
[
Reserved]

Sec.
51.907
For
an
area
that
fails
to
attain
the
8­
hour
NAAQS
by
its
attainment
date,
how
does
EPA
interpret
sections
172(
a)(
2)(
C)(
ii)
and
181(
a)(
5)(
B)
of
the
CAA?

Sec.
51.908
What
is
the
required
timeframe
for
obtaining
emission
reductions
to
ensure
attainment
by
the
attainment
date?

Sec.
51.909
[
Reserved]

Sec.
51.910
[
Reserved]
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Sec.
51.911
[
Reserved]

Sec.
51.912
[
Reserved]

Sec.
51.913
[
Reserved]

Sec.
51.914
[
Reserved]

Sec.
51.915
[
Reserved]

Sec.
51.916
[
Reserved]

Sec.
51.900
Definitions.

The
following
definitions
apply
for
purposes
of
this
subpart.
Any
term
not
defined
herein
shall
have
the
meaning
as
defined
in
40
CFR
51.100.

(
a)
1­
hour
NAAQS
means
the
1­
hour
ozone
national
ambient
air
quality
standards
codified
at
40
CFR
50.9.

(
b)
8­
hour
NAAQS
means
the
8­
hour
ozone
national
ambient
air
quality
standards
codified
at
40
CFR
50.10.

(
c)
1­
hour
ozone
design
value
is
the
1­
hour
ozone
concentration
calculated
according
to
40
CFR
part
50,

Appendix
H
and
the
interpretation
methodology
issued
by
the
Administrator
most
recently
before
the
date
of
the
enactment
of
the
CAA
AMENDMENTS
of
1990.

(
d)
8­
Hour
ozone
design
value
is
the
8­
hour
ozone
concentration
calculated
according
to
40
CFR
part
50,

Appendix
I.

(
e)
CAA
means
the
CAA
as
codified
at
42
U.
S.
C.
sections
7401
­
7671q
(
2003).
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295
(
f)
Applicable
requirements
means
for
an
area
the
following
requirements
to
the
extent
such
requirements
apply
or
applied
to
the
area
for
the
area's
classification
under
section
181(
a)(
1)
of
the
CAA
for
the
1­
hour
NAAQS
at
the
time
the
Administrator
signs
a
final
rule
designating
the
area
for
the
8­
hour
standard
as
nonattainment,
attainment
or
unclassifiable:

(
1)
Reasonably
available
control
technology
(
RACT).

(
2)
Inspection
and
maintenance
programs
(
I/
M).

(
3)
Offset
ratios
for
new
source
review
(
NSR).

(
43)
Major
source
applicability
cut­
offs
for
purposes
of
RACT
and
NSR.

(
54)
Rate
of
Progress
(
ROP)
reductions.

(
65)
Stage
II
vapor
recovery.

(
76)
Clean
fuels
fleet
program
under
section
183(
c)(
4)
of
the
CAA.

(
8)
Reformulated
gasoline
as
required
under
section
211(
k)(
1)(
D)
of
the
CAA.

(
97)
Clean
fuels
for
boilers
under
section
182(
e)(
3)
of
the
CAA.

(
108)
Transportation
Control
Measures
(
TCMs)
during
heavy
traffic
hours
as
provided
under
section
182(
e)(
4)
of
the
CAA.

(
119)
Enhanced
(
ambient)
monitoring
under
section
182(
c)(
1)
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296
of
the
CAA.

(
120)
Transportation
controls
under
section
182(
c)(
5)
of
the
CAA.

(
131)
Vehicle
miles
traveled
provisions
of
section
182(
d)(
1)

of
the
CAA.

(
142)
NOx
requirements
under
section
182(
f)
of
the
CAA.

(
g)
Attainment
year
ozone
season
shall
mean
the
ozone
season
immediately
preceding
a
nonattainment
area's
attainment
date.

(
h)
Designation
for
the
8­
hour
NAAQS
shall
mean
the
effective
date
of
the
8­
hour
designation
for
an
area.

(
i)
Higher
classification/
lower
classification.
For
purposes
of
determining
whether
a
classification
is
higher
or
lower,
classifications
are
ranked
from
lowest
to
highest
as
follows:
classification
under
subpart
1
of
the
CAA;

marginal;
moderate;
serious;
severe­
15;
severe­
17;
and
extreme.

(
j)
Initially
designated
means
the
first
designation
that
becomes
effective
for
an
area
for
the
8­
hour
NAAQS
and
does
not
include
a
redesignation
to
attainment
or
nonattainment
for
that
standard.

(
k)
Maintenance
area
for
the
1­
hour
NAAQS
means
an
area
that
was
designated
nonattainment
for
the
1­
hour
NAAQS
on
or
after
November
15,
1990
and
was
redesignated
to
attainment
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297
for
the
1­
hour
NAAQS
subject
to
a
maintenance
plan
as
required
by
section
175A
of
the
CAA.

(
l)
Nitrogen
Oxides
(
NOx)
means
the
sum
of
nitric
oxide
and
nitrogen
dioxide
in
the
flue
gas
or
emission
point,

collectively
expressed
as
nitrogen
dioxide.

(
m)
NOx
SIP
Call
means
the
rules
codified
at
40
CFR
51.121
and
51.122.

(
n)
Ozone
season
means
for
each
State,
the
ozone
monitoring
season
as
defined
in
40
CFR
Part
58,
Appendix
D,
section
2.5
for
that
State.

(
o)
Ozone
transport
region
means
the
area
established
by
section
184(
a)
of
the
CAA
or
any
other
area
established
by
the
Administrator
pursuant
to
section
176A
of
the
CAA
for
purposes
of
ozone.

(
p)
Reasonable
further
progress
(
RFP)
means
for
the
purposes
of
the
8­
hour
NAAQS,
the
progress
reductions
required
under
section
172(
c)(
2)
and
section
182(
b)(
1)
and
(
c)(
2)(
B)
and
(
c)(
2)(
C)
of
the
CAA.

(
q)
Rate
of
progress
(
ROP)
means
for
purposes
of
the
1­
hour
NAAQS,
the
progress
reductions
required
under
section
172(
c)(
2)
and
section
182(
b)(
1)
and
(
c)(
2)(
B)
and
(
c)(
2)(
C)

of
the
CAA.

(
r)
Revocation
of
the
1­
hour
NAAQS
means
the
time
at
which
the
1­
hour
NAAQS
no
longer
apply
to
an
area
pursuant
to
40
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298
CFR
50.9(
b).

(
s)
Subpart
1
means
subpart
1
of
part
D
of
title
I
of
the
CAA.

(
t)
Subpart
2
means
subpart
2
of
part
D
of
title
I
of
the
CAA.

(
u)
Attainment
Area
means,
unless
otherwise
indicated,
an
area
designated
as
either
attainment,
unclassifiable,
or
attainment/
unclassifiable.

Sec.
51.901
Applicability
of
Part
51.
The
provisions
in
subpart(
s)
A­
W
of
part
51
apply
to
areas
for
purposes
of
the
8­
hour
NAAQS
to
the
extent
they
are
not
inconsistent
with
the
provisions
of
this
subpart.

Sec.
51.902
Which
classification
and
nonattainment
area
planning
provisions
of
the
CAA
shall
apply
to
areas
designated
nonattainment
for
the
8­
hour
NAAQS?

(
a)
Classification
under
subpart
2.
An
area
designated
nonattainment
for
the
8­
hour
NAAQS
with
a
1­
hour
ozone
design
value
equal
to
or
greater
than
0.121
ppm
at
the
time
the
Administrator
signs
a
final
rule
designating
or
redesignating
the
area
as
nonattainment
for
the
8­
hour
NAAQS
will
be
classified
in
accordance
with
section
181
of
the
CAA,
as
interpreted
in
section
51.903(
a)
of
this
part,
for
purposes
of
the
8­
hour
NAAQS,
and
will
be
subject
to
the
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299
requirements
of
subpart
2
that
apply
for
that
classification.

(
b)
Covered
under
subpart
1.
An
area
designated
nonattainment
for
the
8­
hour
ozone
NAAQS
with
a
1­
hour
design
value
less
than
0.121
ppm
at
the
time
the
Administrator
signs
a
final
rule
designating
or
redesignating
the
area
as
nonattainment
for
the
8­
hour
NAAQS
will
be
covered
under
section
172(
a)(
1)
of
the
CAA
and
will
be
subject
to
the
requirements
of
subpart
1.

Sec.
51.903
How
do
the
classification
and
attainment
date
provisions
in
section
181
of
subpart
2
of
the
CAA
apply
to
areas
subject
to
section
51.902(
a)?

(
a)
In
accordance
with
section
181(
a)(
1)
of
the
CAA,
each
area
subject
to
section
51.902(
a)
shall
be
classified
by
operation
of
law
at
the
time
of
designation.
However,
the
classification
shall
be
based
on
the
8­
hour
design
value
for
the
area,
in
accordance
with
Table
1
below,
or
such
higher
or
lower
classification
as
the
State
may
request
as
provided
in
paragraphs
(
b)
and
(
c)
below.
The
8­
hour
design
value
for
the
area
shall
be
calculated
using
the
three
most
recent
years
of
air
quality
data.
For
each
area
classified
under
this
section,
the
primary
standardNAAQS
attainment
date
for
the
8­
hour
NAAQS
shall
be
as
expeditious
as
practicable
but
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not
later
than
the
date
provided
in
Table
1,
below.

TABLE
1
CLASSIFICATION
FOR
8­
HOUR
OZONE
NAAQS
FOR
AREAS
SUBJECT
TO
SECTION
51.902(
a)
Area
class
8­
hour
design
value
(
ppm
ozone)
Maximum
Period
for
Attainment
Dates
in
State
Plans
(
years
after
effective
date
of
nonattainment
designation
for
8­
hour
NAAQS)
Marginal
from
0.085
3
up
to*
0.092
Moderate
from
0.092
6
up
to*
0.107
Serious
from
0.107
9
up
to*
0.120
Severe­
15
from
0.120
15
up
to*
0.127
Severe­
17
from
0.127
17
up
to*
0.187
Extreme
equal
to
or
above
0.187
20
*
but
not
including
(
b)
A
State
may
request
a
higher
classification
for
any
reason
in
accordance
with
section
181(
b)(
3)
of
the
CAA.

(
C)
A
State
may
request
a
lower
classification
in
accordance
with
section
181(
a)(
4)
of
the
CAA.

Sec.
51.904
How
do
the
classification
and
attainment
date
provisions
in
section
172(
a)
of
subpart
1
of
the
CAA
apply
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to
areas
subject
to
section
51.902(
b)?

(
a)
Classification.
The
Administrator
may
classify
an
area
subject
to
section
51.902(
b)
as
an
overwhelming
transport
area
if:

(
1)
the
area
meets
the
criteria
as
specified
for
rural
transport
areas
under
section
182(
h)
of
the
ActCAA;

(
2)
transport
of
ozone
and/
or
precursors
into
the
area
is
so
overwhelming
that
the
contribution
of
local
emissions
to
observed
8­
hour
ozone
concentration
above
the
level
of
the
standardNAAQS
is
relatively
minor;
and
(
3)
The
Administrator
finds
that
sources
of
VOC
(
and,
where
the
Administrator
determines
relevant,
NOx)
emissions
within
the
area
do
not
make
a
significant
contribution
to
the
ozone
concentrations
measured
in
other
areas.

(
b)
Attainment
Dates.
For
an
area
subject
to
section
51.902(
b),
the
Administrator
will
approve
an
attainment
date
consistent
with
the
attainment
date
timing
provision
of
section
172(
a)(
2)(
A)
at
the
time
the
Administrator
approves
an
attainment
demonstration
for
the
area.

Sec.
51.905
Transition
from
the
1­
hour
NAAQS
to
the
8­
hour
NAAQS
and
anti­
backsliding.

(
a)
What
requirements
that
applied
in
an
area
for
the
1­

hour
NAAQS
continue
to
apply
after
revocation
of
the
1­
hour
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NAAQS
for
that
area?

(
1)
8­
Hour
NAAQS
Nonattainment/
1­
Hour
NAAQS
Nonattainment
The
following
requirements
apply
to
an
area
designated
nonattainment
for
the
8­
hour
NAAQS
and
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
8­
hour
NAAQS
for
that
area.

(
i)
The
area
remains
subject
to
the
obligation
to
adopt
and
implement
the
applicable
requirements
as
defined
in
section
51.900(
f),
except
as
provided
in
paragraph
(
a)(
1)(
iii)
of
this
section,
and
except
as
provided
in
paragraph
(
b)
of
this
section.

(
ii)
If
the
area
has
not
met
its
obligation
to
have
a
fullyapproved
attainment
demonstration
SIP
for
the
1­
hour
NAAQS,

the
State
must
comply
with
one
of
the
following:

(
A)
Submit
a
1­
hour
attainment
demonstration
no
later
than
1
year
after
designation;

(
B)
Submit
a
RFP
plan
for
the
8­
hour
standardNAAQS
no
later
than
1­
year
following
designations
for
the
8­
hour
NAAQS
providing
a
5
percent
increment
of
emissions
reduction
from
the
area's
2002
emissions
baseline,

which
must
be
in
addition
to
measures
(
or
enforceable
commitments
to
measures)
in
the
SIP
at
the
time
of
the
effective
date
of
designation
and
in
addition
to
national
or
regional
measures
and
must
be
achieved
no
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303
later
than
2
years
after
the
required
date
for
submission
(
3
years
after
designation).

(
C)
Submit
an
8­
hour
ozone
attainment
demonstration
no
later
than
1
year
following
designations
that
demonstrates
attainment
of
the
8­
hour
standardNAAQS
by
the
area's
attainment
date;
provides
for
8­
hour
RFP
for
the
area's
classificationarea
out
to
the
attainment
date;
and
for
the
initial
period
of
RFP
for
the
area's
classificationarea
(
between
2003­
2008),
achieve
the
emission
reductions
by
December
31,
2007.

(
iii)
If
the
area
has
an
outstanding
obligation
for
an
approved
1­
hour
ROP
SIP,
it
must
develop
and
submit
to
EPA
all
outstanding
1­
hour
ROP
plans;
where
a
1­
hour
obligation
overlaps
with
an
8­
hour
RFP
requirement,
the
State's
8­
hour
RFP
plan
can
be
used
to
satisfy
the
1­
hour
ROP
obligation
if
the
8­
hour
RFP
plan
has
an
emission
target
is
at
least
as
stringent
as
the
1­
hour
ROP
emission
target
forin
each
of
the
1­
hour
ROP
periodtarget
years
for
which
the
1­
hour
ROP
obligation
exists.

(
2)
8­
Hour
NAAQS
Nonattainment/
1­
Hour
NAAQS
Maintenance
Area
An
area
designated
nonattainment
for
the
8­
hour
NAAQS
that
is
a
maintenance
area
for
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
8­
hour
NAAQS
for
that
area
remains
subject
to
the
obligation
to
implement
the
applicable
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304
requirements
as
defined
in
section
51.900
(
f)
to
the
extent
such
obligations
are
required
by
the
approved
SIP,
except
as
provided
in
paragraph
(
b)
of
this
section.

MandatoryApplicable
measures
in
the
SIP
must
continue
to
be
implemented;
however,
if
these
measures
were
shifted
to
contingency
measures
prior
to
designation
for
the
8­
hour
NAAQS
for
the
area,
they
may
remain
as
contingency
measures,

unless
the
measures
are
required
to
be
implemented
by
the
CAA
by
virtue
of
the
area's
classificationrequirements
under
the
8­
hour
standardNAAQS.
The
State
may
not
remove
such
measures
from
the
SIP.

(
3)
8­
Hour
Attainment
or
Unclassifiable/
1­
HourNAAQS
Attainment/
1­
Hour
NAAQS
Nonattainment
(
i)
Obligations
in
an
approved
SIP.
For
an
area
designated
attainment
or
unclassifiable
for
the
8­
hour
NAAQS
and
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
8­
hour
NAAQSthat
is
8­
hour
NAAQS
attainment/
1­
hour
NAAQS
nonattainment,
the
State
may
request
that
obligations
under
the
applicable
requirements
of
section
51.900(
f)
be
shifted
to
contingency
measures,

consistent
with
sections
110(
l)
and
193
of
the
CAA,
after
revocation
of
the
1­
hour
NAAQS;
however,
the
State
cannot
remove
the
obligations
from
the
SIP.
For
such
areas,
the
State
may
request
that
the
nonattainment
NSR
provisions
be
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305
removed
from
the
SIP
on
or
after
the
date
of
revocation
of
the
1­
hour
standardNAAQS
and
need
not
be
shifted
to
contingency
measures,
provided
that
a
program
for
the
prevention
of
significant
deterioration
pursuant
to
section
51.166
or
52.21
covering
the
8­
hour
standardNAAQS
is
in
effect.

(
ii)
Attainment
demonstration
and
ROP
plans.

(
A)
To
the
extent
an
area
designated
attainment
or
unclassifiable
for
the
8­
hour
NAAQS
and
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
8­
hour
NAAQSattainment/
1­
hour
NAAQS
nonattainment
area
does
not
have
an
approved
attainment
demonstration
or
ROP
plan
that
was
required
for
the
1­
hour
NAAQS
under
the
CAA,
the
obligation
to
submit
such
an
attainment
demonstration
or
ROP
plan
(
1)
is
deferred
for
so
long
as
the
area
continues
to
maintain
the
8­
hour
NAAQS;
and
(
2)
no
longer
applies
once
the
area
has
an
approved
maintenance
plan
pursuant
to
paragraph
(
a)(
3)(
iii)
of
this
section.

(
B)
For
an
area
designated
attainment
or
unclassifiable
for
the
8­
hour
NAAQS
and
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
8­
hour
NAAQS
an
8­
hour
NAAQS
attainment/
1­
hour
NAAQS
nonattainment
area
that
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306
violates
the
8­
hour
NAAQS,
prior
to
having
an
approved
maintenance
plan
for
the
8­
hour
NAAQS
as
provided
under
paragraph
(
a)(
3)(
iii)
of
this
section,
subparagraphs
(
a)(
3)(
ii)(
1),
(
2),
and
(
3)
of
this
section
shall
apply.

(
1)
In
lieu
of
any
outstanding
obligation
to
submit
an
attainment
demonstration,
within
one1
year
after
the
date
on
which
EPA
publishes
a
determination
that
a
violation
of
the
8­
hour
NAAQS
has
occurred,
the
State
must
submit
(
or
revise
a
submitted)
maintenance
plan
for
the
8­
hour
NAAQS,
as
provided
under
paragraph
(
a)(
3)(
iii)
of
this
section,
to­­

(
A)
address
the
violation
by
relying
on
modeling
that
meets
EPA
guidance
for
purposes
of
demonstrating
maintenance
of
the
NAAQS;
or
(
B)
submit
a
SIP
providing
for
a
3
percent
increment
of
emissions
reductions
from
the
area's
2002
emissions
baseline;
these
reductions
must
be
in
addition
to
measures
(
or
enforceable
commitments
to
measures)
in
the
SIP
at
the
time
of
the
effective
date
of
designation
and
in
addition
to
national
or
regional
measures.

(
2)
The
plan
required
under
paragraph
(
a)(
3)(
ii)(
B)(
1)
of
this
section
must
provide
for
the
emission
reductions
required
within
3
years
after
the
date
on
which
EPA
publishes
a
determination
that
a
violation
of
the
8­
hour
NAAQS
has
occurred.
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(
3)
The
State
shall
submit
an
ROP
plan
to
achieve
any
outstanding
ROP
reductions
that
were
required
for
the
area
for
the
1­
hour
NAAQS,
and
the
three­
year3­
year
period
or
periods
for
achieving
the
ROP
reductions
will
begin
January
1
of
the
year
following
the
three­
year3­
year
period
on
which
EPA
bases
its
determination
that
a
violation
of
the
8­
hour
NAAQS
occurred.

(
iii)
Maintenance
Plans
for
the
8­
hour
NAAQS.
For
areas
initially
designated
attainment
for
the
8­
hour
NAAQS,
and
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
8­
hour
NAAQS,
the
State
shall
submit
no
later
than
3
years
after
the
area's
designation
for
the
8­

hour
NAAQS,
a
maintenance
plan
for
the
8­
hour
NAAQS
in
accordance
with
section
110(
a)(
1)
of
the
CAA.
The
maintenance
plan
must
provide
for
continued
maintenance
of
the
8­
hour
NAAQS
for
10
years
following
designation
and
must
include
contingency
measures.
This
provision
does
not
apply
to
areas
redesignated
from
nonattainment
to
attainment
for
the
8­
hour
NAAQS
pursuant
to
CAA
section
107(
d)(
3);
such
areas
are
subject
to
the
maintenance
plan
requirement
in
section
175A
of
the
CAA.

(
4)
8­
Hour
Attainment
or
Unclassifiable/
1­
Hour
Attainment
withNAAQS
Attainment/
1­
Hour
NAAQS
Maintenance
Plan
(
i)
Obligations
in
an
approved
SIP.
For
an
area
designated
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attainment
or
unclassifiable
for
the
8­
hour
ozone
NAAQS
and
designated
attainment
for
the
1­
hour
NAAQS
and
having
an
approved
1­
hour
maintenance
plan
at
the
time
of
designation
for
the
8­
hour
NAAQS8­
hour
NAAQS
attainment/
1­
hour
NAAQS
maintenance
area,
the
State
may
request
that
obligations
under
the
applicable
requirements
of
section
51.900(
f)
be
shifted
to
contingency
measures,
consistent
with
sections
110(
l)
and
193
of
the
CAA,
after
revocation
of
the
1­
hour
NAAQS;
however,
the
State
cannot
remove
the
obligations
from
the
SIP.

(
ii)
Maintenance
Plans
for
the
8­
hour
NAAQS.
For
areas
initially
designated
attainment
for
the
8­
hour
NAAQS
and
subject
to
the
maintenance
plan
for
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
8­
hour
NAAQS,
the
State
shall
submit
no
later
than
3
years
after
the
area's
designation
for
the
8­
hour
NAAQS,
a
maintenance
plan
for
the
8­
hour
NAAQS
in
accordance
with
section
110(
a)(
1)
of
the
CAA.
The
maintenance
plan
must
provide
for
continued
maintenance
of
the
8­
hour
NAAQS
for
10
years
following
designation
and
must
include
contingency
measures.
This
provision
does
not
apply
to
areas
redesignated
from
nonattainment
to
attainment
for
the
8­
hour
NAAQS
pursuant
to
section
107(
d)(
3);
such
areas
are
subject
to
the
maintenance
plan
requirement
in
section
175A
of
the
CAA.
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(
b)
Does
attainment
of
the
ozone
standardNAAQS
affect
the
obligations
under
paragraph
(
a)
of
this
section?
A
State
remains
subject
to
the
obligations
under
paragraphs
(
a)(
1)(
i)
and
(
a)(
2)
of
this
section
until
the
area
attains
the
8­
hour
NAAQS.
After
the
area
attains
the
8­
hour
NAAQS,

the
State
may
request
such
obligations
be
shifted
to
contingency
measures,
consistent
with
sections
110(
l)
and
193
of
the
CAA;
however,
the
State
cannot
remove
the
obligations
from
the
SIP.

(
c)
Which
portions
of
an
area
designated
for
the
8­
hour
NAAQS
remain
subject
to
the
obligations
identified
in
paragraph
(
a)
of
this
section?

(
1)
Except
as
provided
in
paragraph
(
c)(
2)
of
this
section,

only
the
portion
of
the
designated
area
for
the
8­
hour
NAAQS
that
was
required
to
adopt
the
applicable
requirements
in
51.900(
f)
for
purposes
of
the
1­
hour
NAAQS
is
subject
to
the
obligations
identified
in
paragraph
(
a)
of
this
section,

including
the
requirement
to
submit
a
maintenance
plan
for
purposes
of
paragraph
(
a)(
3)(
iii)
of
this
section.
40
CFR
Part
81,
Subpart
E
identifies
the
boundaries
of
areas
and
the
area
designations
and
classifications
for
the
1­
hour
NAAQS
at
the
time
the
1­
hour
NAAQS
no
longer
applied
to
each
area.

(
2)
For
purposes
of
paragraph
(
a)(
1)(
ii)(
B)
and
(
C)
of
this
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310
section,
the
requirement
to
achieve
emission
reductions
applies
to
the
entire
area
designated
nonattainment
for
the
8­
hour
ozone
NAAQS.

(
d)
Reserved
(
e)
What
obligations
that
applied
for
the
1­
hour
NAAQS
will
no
longer
apply
after
revocation
of
the
1­
hour
NAAQS
for
an
area?

(
1)
Maintenance
Plans.
Upon
revocation
of
the
1­
hour
NAAQS,

an
area
with
an
approved
1­
hour
maintenance
plan
under
section
175A
of
the
CAA
may
modify
the
maintenance
plan:
(
a)

to
remove
the
obligation
to
submit
a
maintenance
plan
for
the
1­
hour
NAAQS
8
years
after
approval
of
the
initial
1­
hour
maintenance
plan;
and
(
b)
to
remove
the
obligation
to
implement
contingency
measures
upon
a
violation
of
the
1­
hour
NAAQS.
However,
such
requirements
will
remain
enforceable
as
part
of
the
approved
SIP
until
such
time
as
EPA
approves
a
SIP
revision
removing
such
obligations.
The
EPA
shall
not
approve
a
SIP
revision
requesting
these
modifications
until
the
State
submits
and
EPA
approves
an
attainment
demonstration
for
the
8­
hour
NAAQS
for
an
area
initially
designated
nonattainment
for
the
8­
hour
ozone
NAAQS
or
a
maintenance
SIP
for
the
8­
hour
NAAQS
for
an
area
initially
designated
attainment
for
the
8­
hour
NAAQS.
Any
revision
to
such
SIP
must
meet
the
requirements
of
section
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311
110(
l)
and
193
of
the
CAA.

(
2)
Findings
of
failure
to
attain
the
1­
hour
NAAQS.
Upon
revocation
of
the
1­
hour
NAAQS
for
an
area,
EPA
is
no
longer
obligated
 
(
i)
to
determine
pursuant
to
section
181(
b)(
2)
or
section
179(
c)
of
the
CAA
whether
an
area
attained
the
1­
hour
NAAQS
by
that
area's
attainment
date
for
the
1­
hour
NAAQS;
or
(
ii)
to
reclassify
an
area
to
a
higher
classification
for
the
1­
hour
NAAQS
based
upon
a
determination
that
the
area
failed
to
attain
the
1­
hour
NAAQS
by
the
area's
attainment
date
for
the
1­
hour
NAAQS.

In
addition,
the
State
is
no
longer
required
to
impose
under
CAA
sections
181(
b)(
4)
and
185
fees
on
emissions
sources
in
areas
classified
as
severe
or
extreme
for
failure
to
meet
the
1­
hour
attainment
date.

(
3)
Conformity
determinations
for
the
1­
hour
NAAQS.
Upon
revocation
of
the
1­
hour
NAAQS
for
an
area,
conformity
determinations
pursuant
to
section
176(
c)
of
the
CAA
are
no
longer
required
for
the
1­
hour
NAAQS.
At
that
time,
any
provisions
of
applicable
SIPs
that
require
conformity
determinations
in
such
areas
for
the
1­
hour
NAAQS
will
no
longer
be
enforceable
pursuant
to
section
176(
c)(
5)
of
the
CAA.

(
4)
Nonattainment
area
new
source
review
under
the
1­
hour
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312
NAAQS.
Upon
revocation
of
the
1­
hour
NAAQS
for
an
area,

nonattainment
area
new
source
review
pursuant
to
section
182
of
the
CAA
is
no
longer
required
based
solely
on
the
area's
previous
1­
hour
NAAQS
classification.
Areas
that
are
designated
nonattainment
for
the
8­
hour
standard
would
be
covered
by
the
new
source
review
provisions
of
subpart
1
or
subpart
2
based
on
their
classification
and
coverage
under
this
subpart.

(
f)
What
is
the
continued
applicability
of
the
NOx
SIP
Call
after
revocation
of
the
1­
hour
NAAQS?
The
NOx
SIP
Call
shall
continue
to
apply
after
revocation
of
the
1­
hour
NAAQS.
Control
obligations
approved
into
the
SIP
pursuant
to
40
CFR
sections
51.121
and
51.122
may
be
modified
by
the
State
only
if
the
requirements
of
sections
51.121
and
51.122,
including
the
statewide
NOx
emission
budgets,

continue
to
be
met
and
the
State
makes
a
showing
consistent
with
section
110(
l).

Sec.
51.906
[
Reserved]

Sec.
51.907
For
an
area
that
fails
to
attain
the
8­
hour
NAAQS
by
its
attainment
date,
how
does
EPA
interpret
sections
172(
a)(
2)(
C)(
ii)
and
181(
a)(
5)(
B)
of
the
CAA?

For
purposes
of
applying
sections
172(
a)(
2)(
C)
and
181(
a)(
5)

of
the
CAA,
an
area
will
meet
the
requirement
of
section
STAFF
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313
172(
a)(
2)(
C)(
ii)
or
181(
a)(
5)(
B)
of
the
CAA
pertaining
to
1­

year
extensions
of
the
attainment
date
if:

(
a)
for
the
first
1­
year
extension,
the
area's
4th
highest
daily
8­
hour
average
in
the
attainment
year
is
0.084
ppm
or
less.

(
b)
for
the
second
1­
year
extension,
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.

Sec.
51.908
What
is
the
required
timeframe
for
obtaining
emission
reductions
to
ensure
attainment
by
the
attainment
date?

For
each
nonattainment
area,
the
State
must
provide
for
implementation
of
all
control
measures
needed
for
attainment
no
later
than
the
beginning
of
the
attainment
year
ozone
season.

Sec.
51.909
[
Reserved]

Sec.
51.910
[
Reserved]

Sec.
51.911
[
Reserved]

Sec.
51.912
[
Reserved]

Sec.
51.913
[
Reserved]

Sec.
51.914
[
Reserved]

Sec.
51.915
[
Reserved]
STAFF
DRAFT
 
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04
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314
Sec.
51.916
[
Reserved]

40
CFR
Part
81
 
Designation
of
Areas
for
Air
Quality
Planning
Purposes
40
CFR
81
is
proposed
to
be
amended
by
adding
and
reserving
a
new
subpart
E
to
read
as
follows:

Subpart
E
[
Reserved]

[
Note
 
this
subpart
will
identify
area
designations
and
classifications
for
the
1­
hour
NAAQS
in
place
at
the
time
the
1­
hour
NAAQS
no
longer
applies
to
each
area;
this
is
being
done
to
implement
the
rule
on
anti­
backsliding
under
40
CFR
51.905.]
