FINAL
RULE
TO
IMPLEMENT
THE
8­
HOUR
NATIONAL
AMBIENT
AIR
QUALITY
STANDARD
FOR
OZONE
(
PHASE
1)
RESPONSE
TO
COMMENTS
DOCUMENT
APRIL
15,
2004
A.
HOW
WILL
EPA
RECONCILE
THE
CLASSIFICATION
PROVISIONS
OF
SUBPARTS
1
AND
2?

SECTION
A.
1.
HOW
WILL
EPA
CLASSIFY
NONATTAINMENT
AREAS
FOR
THE
8­
HOUR
STANDARD?

Classifications.
This
issue
was
addressed
in
section
VI.
A.
of
the
June
proposal
(
68
FR
32811)
and
in
sections
51.902
and
51.903
of
the
draft
regulatory
text.
It
is
addressed
in
section
51.902
and
51.903
of
the
final
rule.

I.
COMMENTS
ON
PROPOSED
OPTIONS
General
Summary
of
Comments:
The
commenters
on
the
June
2003
proposal
were
split
in
whether
they
preferred
Option
1,
under
which
all
areas
are
classified
under
subpart
2
of
the
Act
or
Option
2,
under
which
8­
hour
nonattainment
areas
with
1­
hour
ozone
design
values
at
the
time
of
designation
are
classified
under
subpart
2
and
all
other
areas
8­
hour
nonattainment
areas
are
classified
under
subpart
1.
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
may
be
perceived
as
inequitable.
In
addition,
several
commenters
recommended
options
different
than
either
of
the
options
proposed
by
EPA.

Comment:
Many
of
the
commenters
that
supported
Option
2
believe
that
it
made
better
policy
sense
than
Option
1.
One
commenter
noted
that
Option
2
better
preserves
EPA's
discretion
to
allow
areas
to
develop
the
most
efficient
and
effective
measures
to
achieve
attainment
of
the
8­
hour
ozone
standard.
This
is
critical
because,
as
discussed
above,
the
best
mix
of
emission
reduction
strategies
for
one
area
is
not
necessarily
the
best
for
another.
In
many
areas,
the
highly
prescriptive
requirements
of
Subpart
2
will
be
neither
appropriate
nor
effective.
Option
2
thus
is
preferable
because
it
enables
EPA
and
the
States
to
utilize
the
discretion
afforded
by
Subpart
1
to
tailor
requirements
for
each
area.

Also,
one
commenter
noted
that
the
adoption
of
Option
2
should
also
encourage
and
motivate
air
quality/
environmental
agencies
to
accelerate
SIP
development
so
that
motor
vehicle
emissions
budgets
will
be
in
place
as
soon
as
possible,
thereby
ensuring
that
motor
vehicle
emissions
remain
consistent
with
attainment
plans.
This
can
provide
a
strong
incentive
for
States
2
to
develop
SIPs
expeditiously
and
for
EPA
to
review
them
in
a
timely
manner.
One
commenter
favored
option2
only
if
a
congressional
fix
that
reconciled
subparts
1
and
2
were
not
possible.

Response:
We
agree
with
these
commenters
that
Option
2
makes
better
policy
sense
for
the
reasons
stated
in
the
preamble
to
the
final
rule.

Comment:
Many
of
the
commenters
that
favored
Option
2,
noted
that
the
subpart
2
requirements
are
more
rigid
than
the
requirements
under
subpart
1
and
that
Option
2
would
provide
more
flexibility
to
state
and
local
officials
in
determining
the
mix
of
control
measures
appropriate
on
an
area­
by­
area
basis.
Specifically,
these
commenters
believed
that
Option
2
gives
local
areas
the
most
choice
and
alternatives
in
reducing
ozone
levels
and
that
local
leaders,
air
quality
agencies,
and
local
and
state
governments
can
best
identify
and
propose
solutions
to
reducing
ozone
levels
that
are
a
result
of
local
emissions.

One
of
these
commenters
said
there
seems
to
be
little,
if
any,
"
practical
difference"
between
classifying
areas
under
subpart
1
or
classifying
them
as
"
marginal"
under
subpart
2.
Another
commenter
supported
Option
2
because
the
distinct
difference
between
these
"
marginal"
nonattainment
areas
and
other
areas
with
more
pervasive
ozone
problems
is
clearly
identified
by
applying
different
subpart
requirements.

Several
commenters
said
Option
2
is
equitable
because
it
provides
flexibility
to
States
in
the
development
of
implementation
plans,
particularly
in
areas
that
are
close
to
attaining
the
8­
hour
ozone
standard
and
for
which
prescriptive
measures
would
not
hasten
attainment
or
benefit
downwind
areas.
In
the
13
years
since
enactment
of
the
1990
Amendments,
much
has
been
learned
about
the
complex
chemistry
and
numerous
site­
specific
factors
that
affect
ozone
formation.
It
has
become
increasingly
clear
that
the
best
mix
of
policies
and
requirements
for
one
area
is
not
necessarily
the
best
mix
of
policies
and
requirements
for
another.
Certainly
the
highly
prescriptive
requirements
contained
in
Subpart
2
make
more
sense
for
some
areas
than
for
others.
Thus,
EPA
should
utilize
the
increased
discretion
available
under
Subpart
1
to
tailor
requirements
for
each
area.

Response:
We
agree
with
the
commenters
that
Option
2
is
preferable
because
it
provides
more
discretion
for
those
areas
that
Congress
did
not
mandate
be
covered
by
subpart
2.

Comment:
Several
commenters
that
favored
option
2
noted
it
also
provides
more
flexibility
in
addressing
areas
that
are
impacted
by
transport
since
EPA
has
a
greater
ability
to
determine
appropriate
requirements
and
to
extend
attainment
dates
for
areas
under
subpart
1.
One
of
these
commenters
suggested
that
for
areas
that
are
rural,
it
does
not
make
sense
to
have
them
covered
under
subpart
2
and
be
bumped
up
for
failure
to
attain.
Another
of
these
commenters
claimed
that
subpart
1
is
more
appropriate
than
subpart
2
for
downwind
areas
like
San
Diego
County,
where
the
highest
ozone
concentrations
are
heavily
influenced
by
transported
pollution
from
upwind
areas.
Under
Subpart
2,
a
downwind
area
that
fails
to
attain
by
its
attainment
date
must
be
bumped
up
and
implement
statutorily­
specified,
more­
stringent
stationary­
source
control
3
requirements
even
though
these
additional
down­
wind
stationary­
source
controls
do
not
address
the
root
cause
of
the
continued
nonattainment
problem
 
transport
from
the
upwind
area.
This
problem
is
avoided
under
subpart
1,
which
authorizes
EPA
to
prescribe
additional
control
measures
to
be
included
in
the
State
Implementation
Plan
when
an
area
fails
to
attain.
That
authority
would
allow
EPA,
the
state(
s),
and
the
upwind
and
downwind
areas
to
work
together
to
identify
and
implement
appropriate
measures
to
effectively
reduce
transport
and
expeditiously
correct
the
failure
to
attain
in
the
downwind
area.

Response:
We
agree
with
the
commenters
that
subpart
1
provides
more
flexibility
to
address
areas
that
are
affected
by
transported
pollution
and
that
it
makes
sense
to
classify
areas
under
subpart
1
where
Congress
has
not
mandated
that
they
be
classified
under
subpart
2.

Comment:
One
commenter
believed
that
subpart
2
carries
a
rigid
set
of
deadlines
and
prescriptive
control
measures
that
are
neither
necessary
nor
appropriate
for
the
new
nonattainment
areas
in
Georgia.
All
three
of
the
recommended
new
nonattainment
areas
in
Georgia
(
Macon,
Augusta,
and
part
of
Murray
County)
are
expected
to
attain
the
8­
hour
standard
once
certain
state
and
federal
requirements
that
have
already
been
promulgated
are
fully
implemented.
Therefore,
the
imposition
of
prescriptive
control
measures
that
would
be
mandated
by
a
nonattainment
classification
under
Subpart
2
of
the
CAA
would
be
unnecessary.
The
flexibility
in
adopting
control
measures
and
setting
attainment
deadlines
afforded
state
and
local
planning
agencies
under
Subpart
1
will
result
in
more
sensible
and
cost­
effective
attainment
strategies
that
are
tailored
to
each
nonattainment
area's
unique
needs.

Response:
Where
the
Act
provides
flexibility
to
place
areas
under
subpart
1
rather
than
to
classify
under
subpart
2,
the
rule
provides
for
such
areas
not
to
be
classified
under
subpart
2.
We
note,
however,
that
all
areas
under
subpart
1
as
well
as
those
under
subpart
2
must
attain
as
expeditiously
as
practicable
and
they
cannot
simply
await
implementation
of
future
controls
if
implementation
of
reasonable
measures
will
expedite
attainment.

Comment:
With
respect
to
the
issue
of
whether
it
would
be
"
equitable"
that
some
areas
would
be
classified
as
Moderate
(
subject
to
all
the
requirements
under
Subpart
2
for
Moderate
areas),
while
others
with
the
very
same
8­
hour
ozone
design
values
would
be
regulated
only
under
Subpart
1,
one
commenter
stated
that
treating
identically
situated
areas
differently
would
raise
legitimate
concerns,
but
in
this
case
the
areas
are
not
identically
situated.
The
commenter
noted
that
some
areas
have
1­
hour
ozone
design
values
that
are
at
or
below
the
1­
hour
standard,
and
some
are
above
that
standard.
The
areas
with
1­
hour
design
values
that
are
above
the
1­
hour
standard
are
those
areas
where
achieving
attainment
with
the
ozone
standard
has
proven
most
difficult
and
where
the
statute
has
already
required
the
most
substantial
efforts.
The
significant
difference
among
8­
hour
nonattainment
areas
depending
on
their
1­
hour
design
values
is
clearly
suggested
by
the
fact
that
approximately
18
of
the
27
8­
hour
nonattainment
areas
that
would
be
classified
as
moderate
under
Option
1,
but
that
would
be
regulated
under
subpart1
under
Option
2
are
expected
to
achieve
attainment
with
the
8­
hour
standard
by
2007.
The
commenter
notes
that
there
is
no
indication
in
the
record
that
the
moderate
areas
under
Option
2
will
be
able
to
achieve
4
attainment
with
the
8­
hour
ozone
NAAQS
within
the
same
short
timeframe.
Moreover,
as
interpreted
in
Whitman,
the
CAA
does
not
allow
EPA
to
regulate
areas
that
are
still
nonattainment
for
the
1­
hour
ozone
NAAQS
under
subpart
1.

Response:
We
generally
agree
with
the
commenters
remarks.
As
provided
in
more
detail
in
the
preamble,
EPA
agrees
that
the
areas
classified
under
subpart
1
and
those
classified
under
subpart
2
are
not
identically
situated.
As
proposed
in
June
2003,
we
plan
to
consider
as
we
develop
the
final
Phase
2
rule
whether
controls
for
certain
areas
under
subpart
1
should
be
similar
to
controls
under
subpart
2
for
areas
with
the
similar
8­
hour
design
values.

Comment:
Some
commenters
associated
the
subpart
2
controls
with
being
more
costly.
One
commenter
suggested
that
the
subpart
2
requirements
"
oftentimes
result
in
longer
and
more
resource
intensive
permitting
processes."
Another
commenter
noted
that
the
added
flexibility
of
subpart
1
meant
that
implementation
could
occur
at
a
lower
cost.

Response:
Because
subpart
1
provides
more
flexibility
in
the
choice
of
controls,
we
agree
that
it
is
likely
to
lead
to
lower
costs.

Comment:
Several
commenters
explicitly
stated
agreement
with
EPA
that
with
existing
federal
measures
already
in
place
(
e.
g.,
NOx
SIP
Call,
clean
fuel
engines),
many
areas
that
would
be
subject
to
subpart
1
would
attain
the
8­
hour
standard
without
additional
controls
and
that
it
would
be
unnecessarily
burdensome
from
an
administrative
planning
and
control
strategy
standpoint
to
place
those
areas
under
the
more
prescriptive/
less
flexible
provision
of
Subpart
2.
One
of
these
commenters
also
cited
the
industrial
MACT
Standards
and
potential
Multi­
Emissions
legislation
that
could
move
additional
areas
into
attainment.

Response:
We
agree
that
many
areas
that
will
be
classified
under
subpart
1
will
be
able
to
attain
the
8­
hour
standard
without
adopting
additional
controls.
We
note,
however,
that
subpart
1
areas
will
still
need
to
demonstrate
that
there
are
not
reasonably
available
control
measures
that
will
advance
the
attainment
date.

Comment:
Several
commenters
cited
more
reasonable
attainment
dates
as
a
reason
for
supporting
Option
2.
One
commenter
anticipated
that
others
might
suggest
that
allowing
some
areas
to
implement
the
8­
hour
standard
under
subpart
1
would
result
in
less
expeditious
attainment.
The
commenter
disagrees,
stating
that
subpart
1
mandates
effectively
all
of
the
same
general
control
requirements
as
Subpart
2
 
a
demonstration
of
attainment
as
expeditiously
as
practicable;
Reasonable
Further
Progress;
Reasonably
Available
Control
Technology;
and
Reasonably
Available
Control
Measures.
Although
subpart
2
is
more
prescriptive
than
subpart
1,
it
is
not
more
effective.
The
detailed
stationary­
source
control
measures
for
each
classification
in
Subpart
2
were
specified
by
Congress
in
1990,
based
on
a
1980'
s
level
of
understanding
of
the
science
associated
with
1­
hour
ozone
control.
It
is
not
reasonable
to
presume
that
these
particular
measures
would
now
be
the
most
effective
measures
for
bringing
all
new
8­
hour
ozone
nonattainment
areas
into
attainment
expeditiously.
In
addition,
in
some
cases
Subpart
2
is
less
5
stringent.
For
example,
areas
such
as
San
Diego
County
that
would
be
classified
moderate
under
Subpart
2
would
be
allowed
up
to
six
years
to
attain.
However,
under
Subpart
1
such
areas
would
have
only
up
to
five
years
to
attain
unless
they
could
make
a
sufficient
demonstration
that
the
area
meets
the
specified
criteria
to
qualify
for
an
extension
pursuant
to
§
172(
a)(
2)(
A)
of
Subpart
1.

One
commenter
supported
Option
2
because
more
and
more
data
and
modeling
results
show
that
the
8­
hour
ozone
standard
will
be
extremely
difficult,
if
not
impossible,
for
some
areas
to
meet.
Thus,
flexibility
and
reasonable
time
frames
for
implementation
of
the
standard
(
as
provided
under
subpart
1)
are
critical
to
facilities
operating
in
these
areas.

Response:
We
agree
that
subpart
1
will
not
be
"
less
effective"
than
subpart
2
in
bring
areas
into
attainment
in
a
timely
manner.
As
the
commenter
notes,
both
subparts
require
areas
to
demonstrate
attainment
as
expeditiously
as
practicable.
While
the
initial
"
maximum"
time
period
for
attainment
under
subpart
1
 
five
years
 
is
longer
than
the
initial
maximum
attainment
period
for
marginal
areas
under
subpart
2,
it
is
shorter
than
the
initial
maximum
time
period
for
attainment
for
all
other
classifications
under
subpart
2.
To
demonstrate
that
an
area
would
need
longer
than
five
years
to
attain
the
standard
under
subpart
1,
the
State
would
need
to
demonstrate
that
the
severity
of
the
nonattainment
problem
in
the
area
and
the
availability
and
feasibility
of
controls
supported
a
longer
attainment
period.
In
addition,
States
must
demonstrate
that
there
are
not
reasonably
available
control
measures
that
can
expedite
the
attainment
date
for
the
area.

We
also
agree
with
the
commenter
that
subpart
1
provides
additional
flexibility
in
setting
attainment
dates
(
within
the
maximum
ten­
year
period
provided
under
section
172(
A)(
2)),
where
there
are
technical
constraints.
However,
we
disagree
that
subpart
1
provides
more
flexibility
than
subpart
2
in
establishing
implementation
periods.
As
provided
in
the
Preamble,
States
must
demonstrate
(
under
both
subparts)
that
implementation
of
control
measures
is
expeditious
and
is
not
delayed
beyond
reasonable
time
frames
and
that
the
area
will
attain
as
expeditiously
as
practicable.

Comment:
One
commenter
stated
that
adoption
of
Option
1
without
changes
to
Subpart
2
requirements
would
not
be
a
"
reasonable"
reconciliation
of
the
Act's
nonattainment
provisions
because
it
would
require
additional
regulation
"
for
the
sake
of
regulation"
without
measurable
progress
toward
attaining
the
ozone
NAAQS.

Response:
Since
we
are
not
adopting
Option
1,
we
need
not
address
whether
the
scenario
presented
by
the
commenter
would
be
"
reasonable."

Comment:
Several
commenters
noted
that
Option
2
was
consistent
with
the
Supreme
Court's
decision
which
recognized
that
some
provisions
in
subpart
2
were
ill
 
fitted
for
implementation
of
the
8­
hour
NAAQS.
One
commenter
stated
that
Whitman
affords
the
Agency
with
regulatory
flexibility
in
providing
a
reasonable
resolution
of
the
roles
of
Subpart
1
and
2
in
implementing
the
8­
hour
standard.
Existing
federal
measures
already
in
place
(
e.
g.,
NOx
SIP
Call,
clean
fuel
engines)
will
bring
many
areas
that
would
be
classified
under
Subpart
1
into
attainment
with
the
8­
6
hour
standard
without
additional
controls.
Regulation
of
these
areas
under
the
more
prescriptive/
less
flexible
provision
of
Subpart
2
would
be
an
unnecessary
burden
for
both
state
SIP
planning
and
control
strategy
selection.

Option
1
would
classify
all
areas
under
Subpart
2
 
a
result
the
Court
clearly
indicated
was
not
required.
EPA's
preferred
Option
2
is
consistent
with
the
Supreme
Court's
opinion
in
Whitman,
and
is
a
far
superior
approach
than
Option
1.

Response:
As
provided
more
fully
in
the
Preamble
to
the
final
rule,
we
agree
that
Option
2
is
legally
supported
by
the
CAA
as
interpreted
by
the
Court
in
Whitman
and
that
the
CAA
does
not
mandate
that
all
areas
designated
nonattainment
for
the
8­
hour
standard
be
classified
under
subpart
2.

Comment:
Several
commenters
were
concerned
that
EPA's
methodology
for
developing
8­
hour
classifications
for
Subpart
2
areas
does
not
take
into
account
the
severity
of
an
area's
8­
hour
ozone
problem
or
how
long
it
will
take
to
attain
the
standard.
The
commenters
noted
that
many
existing
1­
hour
areas
will
have
lower
classifications
under
the
8­
hour
standard
even
though
the
8­
hour
standard
may
be
more
difficult
to
attain
and
that
areas
will
have
all
of
the
mandatory
control
requirements
of
the
higher
1­
hour
classification
but
with
a
shorter
time
frame
to
attain
a
more
stringent
standard.
Many
nonattainment
areas
will
not
be
able
to
achieve
sufficient
emission
reductions
to
demonstrate
attainment
by
their
designated
deadlines
and
will
not
be
able
to
submit
approvable
SIPs.
These
commenters
suggested
that
EPA
develop
a
more
meaningful
classification
scheme
and
attainment
deadlines
that
reflects,
as
Congress
intended,
the
relative
difficulty
an
area
may
have
in
achieving
the
standard.
The
commenters
believe
these
area
"
should
not
stand
in
jeopardy
of
being
penalized
for
not
attaining
a
standard
that
cannot
be
met
in
the
time
frame
provided."

Some
of
these
commenters
supported
three
alternatives
for
providing
higher
classifications
(
and
longer
attainment
periods)
for
more
areas:

°
Maintain
a
rebuttable
presumption
that
an
area's
1­
hour
classification
would
be
retained
under
the
8­
hour
standard
if
the
1­
hour
classification
was
higher
than
the
8­
hour
classification.
°
Translate
the
classification
table
using
only
one­
half
the
percentage
above
the
standard
that
each
statutory
classification
threshold
(
or
cutpoint)
represents.
(
These
percentages
are
shown
in
Table
2
of
the
proposed
rule,
68
FR
at
32812,
and
were
the
basis
for
translating
the
1­
hour
ozone
values
in
Table
1
of
section
181
of
the
CAA
into
8­
hour
ozone
values.)
For
further
description,
see
p.
13
of
docket
document
OAR­
2003­
0079­
0281.
°
Use
a
distribution
of
classifications
that
mirrors
more
closely
the
distribution
of
areas
in
the
original
1991
classifications.
1Qualitative
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.
February
20,
2004.

2Additionally,
section
181(
a)(
4)
establishes
a
90­
day
process
for
reclassifying
areas
following
the
initial
designations/
classifications.

7
Another
commenter
suggested
that
states
be
given
the
ability
to
retain
their
existing
1­
hour
classification
or
to
apply
for
a
higher
classification
than
the
minimum
required
by
EPA
in
order
to
give
themselves
reasonable
time
to
implement
controls
to
reach
attainment.

Another
commenter
noted
that
EPA
has
ample
authority
under
American
Trucking
to
maintain
current
1­
hour
classifications
under
the
8­
hour
standard.
The
U.
S.
Supreme
Court
held,
in
part,
that
Subpart
1
of
Part
D
of
Title
I
of
the
Act
was
not
the
exclusive
means
for
implementation
of
the
8­
hour
standard.
The
Court
was
clearly
aware
of
the
importance,
under
Subpart
2,
of
longer
deadlines
for
areas
with
higher
ozone
levels.
Nothing
in
the
case
even
suggests
that
EPA
is
constrained
to
preserve
the
precise
percentages
of
the
1­
hour
design
value
thresholds
in
setting
the
8­
hour
thresholds.
Rather,
the
Court
made
it
abundantly
clear
that
EPA
has
considerable
discretion
to
fashion
an
8­
hour
implementation
rule
within
the
basic
framework
of
Subpart
2.
The
commenter
recommended
that
EPA
should
not
rely
on
bump­
ups
to
address
a
classification
system
that
does
not
give
adequate
time
for
areas
to
attain.

Response:
As
we
provide
in
more
detail
in
the
Preamble
and
the
addendum
to
the
cost
analysis
for
this
rule1
we
believe
that
most
areas
will
be
able
to
attain
the
standard
by
the
maximum
attainment
date
specified
for
their
classification.
However,
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
standard
than
their
classification
would
permit.
We
considered
the
alternatives
suggested
by
these
commenters
when
we
reopened
the
comment
period
on
the
proposed
rule.
We
have
concluded
that
it
does
not
make
sense
to
establish
a
system
that
would
automatically
place
more
areas
in
higher
classifications.
These
types
of
alternatives
not
only
would
place
areas
that
need
more
time
to
attain
in
the
higher
classifications,
they
would
also
shift
to
higher
classifications
some
areas
that
EPA
believes
may
attain
in
the
relatively
near
term.
As
we
discuss
in
the
Preamble,
the
statute
does
not
provide
relief
for
areas
that
are
placed
in
a
classification
that
is
higher
than
needed.
However,
it
does
provide
a
remedy
for
areas
that
are
placed
in
a
classification
that
is
too
low.
Under
section
181(
b)(
3)
of
the
Act,
a
State
can
request
a
higher
classification
 
including
the
classification
the
area
had
under
the
1­
hour
standard.
EPA
must
grant
the
State's
request
and
publish
notice
of
the
request
and
EPA's
approval.
The
result
would
be
to
increase
the
cost
of
meeting
the
standard.
2
8
We
do
not
believe
that
the
option
of
automatically
placing
areas
into
the
classification
they
had
for
the
1­
hour
standard
is
consistent
with
the
statute.
Section
181(
a)
is
written
in
the
present
tense
and
we
believe
Congress
intended
classifications
to
be
based
on
an
area's
design
value
at
the
time
the
area
is
classified
 
not
on
a
14­
year­
old
design
value
for
a
different
standard.
We
disagree
with
the
commenters'
suggestion
that
areas
will
have
less
time
to
attain
the
8­
hour
standard
even
though
it
may
be
more
difficult
to
attain
than
the
1­
hour
standard
and
with
their
concern
that
areas
will
have
all
of
the
mandatory
requirements
for
their
1­
hour
classification,
but
less
time
to
attain.
First,
it
is
difficult
to
determine
what
measurement
the
commenters
are
using.
Are
they
comparing
the
fact
that
an
area
that
was
given
15
years
(
severe­
15
classification)
to
attain
the
1­
hour
standard
in
1990
might
now
have
only
9
years
(
serious
classification)
to
attain
the
8­
hour
standard?
If
so,
we
note
that
such
an
area
has
now
had
almost
14
years
to
make
substantial
progress
in
reducing
ambient
ozone
levels.
Thus
providing
an
additional
9
years
to
attain
the
8­
hour
standard
is
not
unreasonable.

Or,
are
the
commenters
suggesting,
for
example,
that
it
will
be
more
difficult
for
an
area
to
reduce
ozone
levels
for
the
8­
hour
standard
from
0.124
ppm
to
less
than
0.085
over
a
9
year
period
than
it
was
for
the
area
to
reduce
1­
hour
ozone
levels
from
0.185
ppm
to
less
than
0.125
ppm?
As
noted
in
the
Preamble,
we
have
predicted
that
the
8­
hour
attainment
periods
will
be
appropriate
and
feasible
for
most
areas.
If
a
State
believes
an
area
needs
more
time
to
attain,
the
state
can
take
advantage
of
the
voluntary
reclassification
provision.

While
it
is
true
that
some
areas
may
need
to
retain
controls
adopted
for
the
1­
hour
standard
even
after
they
have
met
that
standard,
we
see
no
evidence
that
Congress
intended
those
areas
to
retain
the
same
classification
they
had
for
the
1­
hour
standard
for
purposes
of
the
8­
hour
standard.
As
we
state
above,
the
classification
provision
is
written
in
the
present
tense
and
EPA
must
consider
the
area's
current
design
value.
Furthermore,
we
see
no
benefit
in
automatically
placing
areas
in
these
(
presumptively
higher)
classifications.
Even
if
the
area
were
to
receive
a
higher
classification,
it
would
still
need
to
attain
as
expeditiously
as
practicable
and
could
not
defer
attainment
until
the
maximum
attainment
date
solely
on
the
basis
that
additional
national
and/
or
local
controls
may
bring
the
area
into
attainment
at
that
later
date.
Thus,
we
believe
it
makes
more
sense
to
adopt
Option
2
and
allow
those
areas
that
need
more
time
to
attain
(
because
there
are
not
reasonably
available
control
measures
that
will
allow
them
to
attain
by
their
attainment
date)
to
request
a
higher
classification.

Comment:
Other
commenters
opined
that
EPA
should
modify
Option
2
to
base
all
8­
hour
classification
determinations
on
8­
hour
ozone
design
values.
EPA's
proposal
to
place
8­
hour
nonattainment
areas
in
Subpart
1
or
in
Subpart
2
on
the
basis
of
their
1­
hour
design
values
creates
the
potential
for
anomalies
and
inequities
that
EPA
itself
recognizes.
The
commenter
suggested
that
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.
The
record
in
the
1997,
8­
hour
NAAQS
rulemaking
indicates
that
the
approximate
8­
hour
equivalent
of
the
0.120
ppm
1­
hour
NAAQS
is
0.090
ppm.
Thus,
rather
than
starting
the
translated
Table
1
at
0.080
ppm
(
or
0.085
ppm,
in
light
of
rounding
conventions
for
9
attainment
determination
purposes),
EPA
should
start
it
at
0.090
ppm
(
or,
more
appropriately,
0.091
ppm),
which
would
be
the
lower
bound
for
marginal
areas.
Under
this
approach,
EPA
should
use
the
same
"
percentage"
mechanism
that
it
proposes
to
use
in
setting
thresholds
under
its
translated
Table
1
.
Areas
with
8­
hour
values
of
0.091
ppm
or
greater
would
be
classified
pursuant
to
Subpart
2
and
the
table
above.
Other
areas,
which
would
be
considered
"
submarginal,"
would
be
classified
under,
and
be
subject
to,
Subpart
1.
This
modified
version
of
EPA's
proposed
approach
would
avoid
the
anomaly
of
some
areas
being
placed
in
subpart
1
even
though
they
have
8­
hour
ozone
design
values
as
high
as
or
higher
than
some
areas
that
fall
under
Table
1
in
section
181
and
thus
are
covered
under
subpart
2.
It
would
ensure
that
all
areas
are
treated
equitably
with
respect
to
their
relative
8­
hour
design
values.
One
of
these
commenters
believed
this
approach
is
consistent
with
Whitman,
which
recognized
the
problems
that
would
result
from
"
using
the
old
1­
hour
averages
of
ozone
levels"
because
doing
so
"
would
produce
at
best
an
inexact
estimate
of
the
new
8­
hour
averages."
This
recommended
approach
bases
classification
determinations
not
on
"
the
old
1­
hour
averages
of
ozone
levels"
but
on
"
the
new
8­
hour
averages."
At
the
same
time,
it
recognized
that
"
Subpart
2
contains
a
gap"
consisting
of
areas
that
violate
the
new
standard
but
are
below
"
the
approximation
of
the
old
standard
codified
by
Table
1,"
and
would
place
those
"
gap"
areas
under
Subpart
1
on
the
basis
of
their
lower
8­
hour
ozone
levels.

Response:
In
the
October
21,
2003
notice
that
reopened
the
comment
period,
we
solicited
comment
on
this
approach
and
also
included
it
as
part
of
Alternative
A.
A
number
of
commenters
opposed
the
idea
of
regulatorily
creating
a
relationship
between
the
8­
hour
and
1­
hour
standards
and
were
also
concerned
about
the
way
in
which
the
relationship
was
established.
They
claim
that
the
relationship
is
not
scientifically
supported.

While
we
agree
that
in
theory
this
type
of
approach
could
be
consistent
with
the
CAA
as
interpreted
by
the
Supreme
Court,
we
have
rejected
it,
in
part,
because
we
also
have
concerns
about
establishing
such
a
relationship
between
the
1­
hour
and
8­
hour
standards.
For
reasons
stated
elsewhere
in
this
RTC
and
in
the
preamble,
we
are
not
persuaded
that
Option
2
will
create
inequities
and,
to
the
extent
it
may,
those
can
be
addressed
when
we
take
final
action
in
Phase
2
on
how
we
interpret
the
control
requirements
in
subpart
1
apply
to
areas.
For
example,
as
provided
in
the
proposed
rulemaking,
we
are
considering
whether
to
define
RFP
in
the
same
manner
as
it
is
defined
under
subpart
2
for
areas
with
similar
8­
hour
design
values.
68
FR
32835.
We
also
proposed
a
similar
interpretation
of
the
RACT
requirement.
68
FR
32838.

Comment:
Several
commenters
suggested
that
more
flexibility
be
built
into
Option
2.
These
commenters
suggested
that
in
addition
to
considering
the
1­
hour
design
value
for
an
area
to
determine
whether
it
is
subject
to
subpart
1
or
subpart
2,
EPA
should
also
consider
(
1)
an
area's
past
record
for
achieving
the
1­
hour
ozone
standard;
(
2)
emission
reductions
and
improved
air
quality
expected
from
measures
already
required
and
on
a
schedule
to
be
implemented
such
as
the
NOx
SIP
call,
Tier
2
standards,
the
heavy­
duty
diesel
rule,
and
the
requirements
for
low
sulfur
content
in
fuel;
and,
(
3)
the
amount
of
transport
an
area
receives.
The
commenters
noted
that
the
end
goal,
attainment
of
the
eight­
hour
ozone
standard,
would
not
be
hindered
by
this
approach
 
10
the
only
difference
is
that
Subpart
1
areas
are
offered
more
flexibility
in
attaining
the
standard.
Another
commenter
appeared
to
suggest
something
similar
by
stating
that
application
of
subpart
2
requirements
to
areas
covered
by
the
NOx
SIP
call
or
section
126
rules
would
unnecessarily
subject
them
to
the
stricter
time
frames
and
requirements
of
subpart
2.
Yet
another
commenter
suggested
that
EPA
should
consider
overwhelming
transport
as
a
factor
in
deciding
which
areas
would
be
classified
under
subpart
1
and
which
under
subpart
2.

Response:
We
do
not
believe
that
the
Act
allows
for
EPA
to
consider
the
wide
array
of
factors
suggested
by
these
commenters
in
determining
whether
an
area
should
be
classified
under
subpart
1
or
subpart
2.
The
Supreme
Court
noted
there
was
a
gap
in
the
statute
only
as
to
those
areas
with
a
1­
hour
design
value
below
the
lowest
level
in
Table
l
in
section
181.
Thus,
EPA
does
not
believe
it
has
discretion
to
place
under
subpart
1
an
area
with
a
1­
hour
design
value
at
or
above
0.121
ppm.

Comment:
One
commenter
believes
that
the
ability
to
implement
the
8­
hour
standard
under
subpart
1
is
important
and
should
be
retained
because
it
provides
more
flexibility
than
subpart
2.
Because
of
the
limited
number
of
counties
that
would
qualify
for
subpart
1
applicability
under
Option
2
in
the
commenter's
State,
the
commenter
recommends
revising
the
methodology
in
such
a
way
to
allow
for
more
counties
to
have
the
additional
flexibility.
The
commenter
contends
that
to
subject
counties
in
the
State
to
subpart
2
would
impose
undue
economic
constraints
on
those
areas
without
resulting
in
air
quality
benefits.
The
commenter
notes
that
subpart
2
was
developed
at
a
time
when
less
knowledge
was
available
about
the
kinds
of
controls
that
would
be
more
effective
in
reducing
ozone.

Response:
As
provided
by
the
Supreme
Court
in
Whitman,
the
statute
requires
that
areas
that
have
a
design
value
that
meets
the
approximation
of
the
1­
hour
standard
in
Table
1
of
section
must
be
classified
under
subpart
2.
We
do
not
see
flexibility
to
shift
additional
areas
to
subpart
1.

Comment:
One
commenter
noted
that
if
an
area
is
currently
classified
extreme
under
the
1­
hour
standard
but
is
no
longer
classified
extreme
under
the
8­
hour
standard,
it
may
not
be
able
to
utilize
authority
explicitly
granted
to
Extreme
areas
to
employ
SIP
measures
that
anticipate
development
of
new
technologies.
CAA
§
182(
e)(
5).
Under
this
authority,
U.
S.
EPA
has
approved
measures
that
are
not
yet
proven
or
that
are
defined
with
less
specificity
than
it
has
required
of
other
SIP
provisions.
An
inability
to
use
such
measures
in
an
attainment
demonstration
would
limit
the
area's
options
in
fashioning
new
control
measures,
and
could
result
in
a
need
to
resort
to
more
disruptive
and
expensive
control
strategies.
This
commenter
also
recommended
that
if
EPA
decides
to
adopt
the
classification
system
in
the
Proposed
Rule,
the
implementation
rule
should
provide
that
"
technology
forcing"
authority
applicable
to
Extreme
1­
hour
areas
shall
continue
in
effect
in
such
areas
until
they
attain
the
8­
hour
standard.
Thus,
all
of
the
provisions
of
section
182(
e)(
which
specifies
control
requirements
for
Extreme
areas,
and
which
includes
paragraph
182(
e)(
5)
that
explicitly
allows
technology­
forcing
measures)
should
remain
applicable
to
such
areas.
Congress
clearly
intended
that
Extreme
areas
be
subject
to
the
11
most
stringent
control
requirements,
but
that
they
also
have
available
the
additional
tools
allowed
by
section
182(
e)(
5).
.
Response:
Section
182(
e)(
5)
applies
only
to
areas
that
are
classified
extreme
for
the
relevant
standard.
We
believe
that
the
Act
provides
sufficient
flexibility
for
areas
to
consider
new
technologies.
For
example,
in
one
recent
situation
where
a
State
had
adopted
nearly
all
NOx
control
measures
that
had
been
adopted
anywhere
else
in
the
country,
but
still
needed
additional
NOx
reductions
to
demonstrate
attainment,
EPA
determined
it
was
appropriate
to
accept
an
enforceable
commitment
from
the
State
to
submit
additional
measures
later
to
address
a
small
gap
in
the
emission
reductions
needed
for
attainment.
See
66
FR
57160
(
November
14,
2001).
Of
course,
states
are
free
to
revise
their
SIPs
at
any
time
to
replace
or
supplement
existing
measures
so
long
as
the
requirements.
Thus
a
State
will
be
able
to
continue
to
consider
alternative
control
requirements
as
it
moves
toward
attainment.
Finally,
an
area
could
request
a
voluntary
bump­
up
to
extreme
if
it
felt
it
needed
to
take
advantage
of
the
procedure
in
section
182(
e).

Comment:
One
commenter
supported
Option
2
because
they
believed
that
option
would
allow
Texas
to
accommodate
counties
which
were
never
designated
as
nonattainment
areas
for
the
1­
hour
standard,
but
which
have
adopted
voluntary
control
strategies
to
ensure
that
air
quality
in
the
region
was
addressed.

Response:
We
believe
the
commenter
may
have
misinterpreted
the
proposed
rule
in
that
Option
2
would
place
each
whole
8­
hour
nonattainment
areas
into
either
subpart
1
or
subpart
2.
It
would
not
treat
different
portions
of
a
nonattainment
area
differently
for
8­
hour
classification
purposes.

Comment:
One
commenter
suggested
that
under
Option
#
2
the
subpart
2
requirements
apply
only
for
so
long
as
the
area
is
showing
a
design
value
of
0.121
or
greater.

Response:
It
appears
that
the
commenter
is
suggesting
that
an
area
that
may
originally
be
covered
under
subpart
2
by
virtue
of
having
a
1­
hour
design
value
of
0.121
ppm
or
greater,
may
later
be
covered
only
under
subpart
1
if
its
1­
hour
design
value
drops
below
0.121.
We
believe
that
the
Act
does
not
provide
for
reclassifying
an
area
to
a
lower
classification
as
the
air
quality
in
the
area
proceeds
to
improve.
Rather,
it
provides
that
areas
are
classified
as
"
a
matter
of
law"
based
on
their
design
value
at
the
time
of
the
initial
classification.

Comment:
Another
commenter
recommended
that
to
ensure
no
backsliding,
EPA
should
modify
the
classification
system
for
8­
hour
nonattainment
areas
so
as
to
avoid
placing
most
areas
into
classifications
lower
than
the
classification
that
applies
for
the
1­
hour
standard.
The
lower
classifications
could
allow
nonattainment
areas
to
rescind
nondiscretionary
control
measures
required
by
the
Clean
Air
Act
for
the
higher
1­
hour
classifications
(
e.
g.
stringent
new
source
review
thresholds)
and
convert
such
measures
to
contingency
status
upon
attainment
of
the
1­
hour
standard
 
even
though
the
8­
hour
standard
has
not
yet
been
attained.
Such
reduction
in
stringency
of
rules
in
other
areas
could
increase
competitive
disadvantages
for
sources
in
South
Coast,
and
limit
markets
for
 
and
incentives
to
develop
 
new
control
technologies.
The
12
commenter
recommended
that
if
EPA
adopts
the
classification
system
in
the
Proposed
Rule
nondiscretionary
control
requirements
specified
in
the
Clean
Air
Act
for
1­
hour
nonattainment
areas
should
continue
in
effect
until
such
areas
attain
the
8­
hour
standard.

Response:
Under
the
final
rule's
anti­
backsliding
provisions
(
section
51.905),
8­
hour
nonattainment
areas
will
not
be
able
to
shift
mandatory
control
measures
required
for
purposes
of
the
area's
1­
hour
standard
classification
to
contingency
measures.
The
area
must
continue
to
implement
these
control
measures
until
the
area
attains
and
is
redesignated
to
attainment
for
the
8­
hour
NAAQS.
We
do
not
believe
the
final
rule
will
discourage
development
of
new
technologies
or
limit
markets
for
such
technology.
As
noted
elsewhere
in
this
document
and
the
preamble
to
the
final
rule,
regardless
of
an
area's
classification,
it
must
demonstrate
attainment
as
expeditiously
as
practicable,
thereby
keeping
pressure
on
the
development
of
new
technologies
to
help
meet
air
quality
goals.
.

Comment:
Several
commenters
supported
EPA's
original
proposal
of
a
"
transitional'
classification
for
areas
that
meet
the
1­
hour
standard,
do
not
currently
meet
the
8­
hour
standard,
but
will
meet
both
standards
upon
the
implementation
of
the
NOx
SIP
Call.
The
commenters
claim
that
areas
in
their
state
which
are
classified
as
8­
hour
nonattainment
are
certain
to
be
in
this
situation.
The
commenters
believe
that
EPA
should
not
impose
additional
control
measures
on
areas
that
under
this
situation
unless
they
fail
to
meet
the
8­
hour
standard
by
2007.

One
of
these
commenters
stated
that
the
most
effective
control
measures
need
to
be
implemented
on
a
large
(
possibly
national)
scale,
such
as
gasoline
reformulation,
vehicle
exhaust
controls,
and
caps
on
nitrogen
oxides
(
NOx).
For
example,
diesel
engine
controls
and
diesel
fuel
reformulation
are
large
scale
solutions
that
can't
be
effectively
implemented
by
a
single
nonattainment
area
or
even
a
single
state.
Perhaps
even
regional
or
national
implementation
of
reasonably
available
control
technology
(
RACT)
requirements
might
be
considered
as
well.
The
commenter
concludes
that
because
ozone
is
a
regional
problem,
a
regional
problem
needs
regional
solution.

Response:
When
we
originally
promulgated
the
8­
hour
standard
in
1997,
we
indicated
that
we
would
implement
the
standard
under
subpart
1.
We
envisioned
at
the
time
a
transitional
classification
(
which
would
have
been
allowed
under
subpart
1)
for
areas
that
submitted
a
SIP
prior
to
designations
for
the
8­
hour
standard
submitted
a
SIP
demonstrating
that
the
area
would
attain
the
8­
hour
standard
no
later
than
three
years
following
designation.
A
key
component
of
that
strategy
was
the
early
submission
of
a
SIP
demonstrating
that
the
area
could
attain
based
on
existing
national
and
regional
controls
and
including
any
additional
local
controls
needed
for
attainment
as
adopted
measures.
The
Supreme
Court
rejected
EPA's
implementation
approach
that
would
have
placed
all
areas
under
subpart
1
for
purposes
of
implementing
the
8­
hour
NAAQS.
Because
of
the
ongoing
litigation
over
the
NAAQS,
States
would
not
have
had
sufficient
time
between
the
time
EPA
finalized
a
revised
8­
hour
implementation
and
the
time
of
designation
to
submit
the
early
SIP
as
contemplated
by
the
transitional
classification.
13
Comment:
One
commenter
was
concerned
that
the
proposal
provided
no
criteria
for
how
EPA
would
determine
which
"
gap"
areas
would
be
subject
to
subpart
2.
The
commenter
stated
that
the
public
should
be
provided
the
opportunity
to
comment
upon
the
criteria
for
how
EPA
will
exercise
its
discretion
in
determining
whether
an
area
that
is
in
attainment
of
the
1­
hour
standard
should
be
classified
under
subpart
2,
if
EPA
intends
to
exercise
such
discretion.

Several
other
commenters
noted
that
in
Section
V.
A.,
of
the
proposal,
the
second
paragraph
states
that
the
areas
meeting
the
1­
hour
ozone
standard
would
likely
be
regulated
under
subpart
1
and
that
"
the
rest
of
the
areas
­
those
exceeding,
and
a
few
that
may
be
meeting
the
1­
hour
standard
­
would
be
classified
under
subpart
2
in
the
same
manner
as
option
1.
It
is
not
apparent
which
areas
meeting
the
1­
hour
standard,
and
eligible
to
be
treated
under
subpart
1,
would
be
classified
under
subpart
2
and
some
under
subpart
1.
The
commenters
asked
that
the
rules
be
more
specific
in
defining
how
an
area
eligible
to
be
treated
under
subpart
1
will
be
classified
under
subpart
2,
by
either
naming
the
areas
or
specifically
stating
the
conditions
that
determine
how
an
area
will
be
regulated
under
subpart
1
or
subpart
2.

Response:
The
section
quoted
by
the
commenters
served
as
a
synopsis
of
the
proposal
and
the
analysis
of
EPA
at
that
time.
The
Options
EPA
proposed
were
laid
out
more
fully
in
Section
VI.
A.
of
the
June
2,
2003
proposal
(
68
FR
32813).
The
final
rule
 
consistent
with
proposed
option
2
 
provides
that
8­
hour
nonattainment
areas
with
1­
hour
ozone
design
values
equal
to
or
greater
than
0.121
ppm
will
be
covered
under
subpart
2,
and
all
other
8­
hour
nonattainment
areas
(
those
with
1­
hour
design
values
less
than
0.121
ppm)
will
be
covered
under
subpart
1.
Thus,
under
the
final
rule,
there
are
no
"
gap"
areas
that
would
be
subject
to
subpart
2.

Comment:
One
commenter
believed
Option
2
is
more
appropriate
for
areas
that
have
committed
to
an
Early
Action
Compact
(
EAC).
Under
Option
1,
an
EAC
area
classified
as
Marginal
because
the
8­
hour
readings
fall
between
0.085
and
0.092
would
have
three
years
after
designations
become
final
to
attain
the
standard,
which
would
be
sooner
than
under
an
EAC.
It
would
be
impossible
to
justify
requiring
areas
under
traditional
nonattainment
to
come
into
attainment
quicker
than
areas
that
have
committed
to
an
EAC.

Response:
Marginal
areas
under
both
Options
1
and
2
would
have
three
years
to
attain
the
8­
hour
standard.
Thus,
to
the
extent
the
commenter
sees
an
issue
with
Option
1,
it
applies
equally
to
Option
2.
We
believe
Congress
intended
areas
that
are
violating
based
on
a
design
value
just
above
the
standard
to
attain
the
standard
within
three
years.
The
Agency
did
not
consider
the
EAC
concept
in
the
proposed
implementation
rule
or
in
developing
this
final
rule.
To
the
extent
the
commenter
has
a
concern
that
EAC
attainment
dates
might
be
later
than
attainment
dates
for
areas
classified
as
marginal,
they
should
raise
that
as
a
consideration
in
any
EPA
action
establishing
an
EAC.

Comment:
One
commenter
suggests
that
EPA
apply
Subpart
2
to
all
new
8­
hour
non­
attainment
areas
classified
"
moderate"
or
above
to
the
greatest
extent
possible.
The
commenter
contends
that
Congress
clearly
abandoned
the
approach
in
Subpart
1
for
reducing
ozone
in
areas
with
14
moderate
or
more
serious
ozone
levels.
The
commenter
recognizes
that
some
measures
in
Subpart
2
may
not
be
necessary
based
on
new
insight
we
have
gained
during
the
last
decade
and
recommends
that
EPA
adopt
an
approach
that
is
consistent
with
the
intent
of
Congress.
Such
an
approach
would
follow
Subpart
2,
with
milestones,
deadlines,
and
mandatory
measures
comparable
to
those
found
in
the
statute
but
would
allow
for
adjustment
in
light
of
the
greater
role
NOx
emissions
are
believed
to
play
in
ozone
formation
than
was
understood
when
the
1990
Amendments.
Another
commenter
suggested
that
there
may
be
flexibility
under
subpart
2
to
substitute
some
required
measures
for
others
that
achieve
comparable
emission
reductions
and
suggested
that
such
an
approach
would
be
superior
to
the
complexity
of
a
combined
Subpart
1
and
2
process
and
more
sustainable
legally.

Response:
We
believe
the
commenter
is
suggesting
that
all
8­
hour
nonattainment
areas
with
a
design
value
that
would
place
them
in
the
moderate
classification
be
classified
under
subpart
2.
The
commenter
also
suggests
that
EPA
could
modify
the
mandatory
control
requirements
in
subpart
2
to
reflect
newer
knowledge
about
ozone
formation
and
control.
In
our
notice
reopening
the
comment
period,
we
considered
modifying
Option
2
such
that
any
"
gap"
area
with
an
8­
hour
design
value
equivalent
to
a
moderate
or
above
design
value
would
be
placed
in
subpart
2.
For
the
reasons
articulated
in
the
Preamble,
we
have
determined
that
it
is
more
reasonable
to
place
all
of
the
gap
areas
in
subpart
1.

In
our
proposal,
we
stated
that
the
Agency
does
not
have
the
authority
to
modify
or
waive
statutory
subpart
2
requirements
unless
application
of
a
requirement
would
lead
to
an
absurd
result.
We
will
address
this
issue
further
in
the
Phase
2
rulemaking.

Comment:
One
commenter
stated
that
if
EPA
classifies
some
areas
under
subpart
1,
then
areas
under
subpart
1
that
fail
to
attain
should
be
reclassified
under
subpart
2
to
the
next
appropriate
classification
because
the
control
strategies
and
SIP
elements
required
under
subpart
1
are
insufficient
to
address
the
difficult
air
quality
challenges
faced
by
areas
that
find
they
have
failed
to
attain
after
submitting
an
approvable
SIP.

Response:
Subpart
1
(
section
179(
c)
and
(
d))
provides
a
mechanism
for
addressing
a
failure
to
attain.
These
provisions
give
EPA
broad
discretion
to
prescribe
measures
that
such
an
area
must
adopt.
It
is
unclear
whether
the
statute
provides
authority
for
EPA
to
reclassify
an
area
under
subpart
2
based
on
a
failure
to
attain
under
subpart
1.
In
any
event,
such
action
is
unnecessary
in
light
of
the
authority
provided
under
section
179(
d)(
2).

Comment:
Several
commenters
on
the
notice
that
reopened
the
comment
period
took
issue
with
the
characterization
that
Option
2
would
result
in
inequities.
Areas
under
either
subpart
1
or
2
still
have
to
attain
as
expeditiously
as
practicable.
One
commenter
did
not
believe
Option
2
results
in
inequities,
claiming
that
subpart
2
itself
causes
inequities
since
it
requires
controls
that
may
not
be
helpful
and
may
be
hurtful
toward
attainment
of
the
ozone
standard.
15
Response:
We
believe
that
real
or
perceived
inequities
due
to
the
classification
approach
adopted
in
the
final
rule
should
be
addressed
in
considering
how
to
interpret
the
subpart
1
requirements
for
areas
classified
under
that
subpart.

Comment:
Several
commenters
were
concerned
that
litigation
could
delay
efforts
to
implement
the
8­
hour
NAAQS.
One
commenter
believed
that
Option
2
could
easily
be
challenged
 
once
again
diverting
resources
from
actually
planning
to
meet
the
standard.
The
commenter
contended
that
EPA
has
done
more
than
fill
the
gaps
identified
by
the
Supreme
Court
in
reconciling
the
applicability
of
subpart
2
 
EPA
has
developed
a
rationale
for
using
Subpart
1
as
much
as
possible.
Another
commenter
that
supported
Option
2,
was
concerned
about
its
defensibility,
in
particular
language
in
section
181
of
the
Clean
Air
Act,
which
provides
"[
e]
ach
area
designated
nonattainment
for
ozone
...
shall
be
classified...
by
operation
of
law,
as
a
Marginal
Area,
a
Moderate
Area,
a
Serious
Area,
a
Severe
Area,
or
an
Extreme
Area..."
The
commenter
is
concerned
that
this
language
mandates
that
all
ozone
nonattainment
areas
must
be
classified
under
subpart
2
and
appears
to
preclude
Option
#
2.
This
commenter
is
concerned
that
adoption
of
Option
2
could
spur
further
litigation,
creating
additional
uncertainty
for
the
transportation
and
air
quality
planning
processes
and
delaying
attainment
of
clean
air.

Response:
While
it
is
true
that
some
parties
could
suggest
delaying
implementation
of
the
8­
hour
standard
due
to
ongoing
litigation,
we
do
not
believe
a
delay
would
be
appropriate.
In
general,
regulations
remain
effective
while
litigation
proceeds
and
it
is
only
in
unusual
circumstances
that
EPA
or
a
court
would
stay
a
regulation
pending
litigation.
We
do
not
believe
a
stay
would
be
justified.
We
do
not
believe
that
there
is
any
classification
option
that
we
could
adopt
that
would
go
unchallenged.

We
disagree
with
the
commenter
that
is
concerned
that
the
quoted
language
from
section
181
(
in
subpart
2)
precludes
any
implementation
under
subpart
1.
The
Supreme
Court
rejected
the
holding
of
the
D.
C.
Circuit
that
the
statute
clearly
requires
implementation
of
the
8­
hour
NAAQS
under
subpart
2.
Instead,
the
Supreme
Court
recognized
that
there
was
a
"
gap"
in
the
statute
to
the
extent
"
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."
Whitman,
531
U.
S.
at
483.

Comment:
The
commenters
that
supported
Option
1
generally
suggested
that
option
made
better
policy
sense
and
was
more
consistent
with
the
Clean
Air
Act
and
the
Supreme
Court's
decision
in
Whitman.
Other
commenters
suggested
that
Option
2
violates
the
Clean
Air
Act
and
the
Whitman
decision.

Response:
We
do
not
agree
that
Option
1
makes
better
policy
sense.
We
believe
Option
2
is
a
reasonable
method
for
addressing
the
gaps
that
the
Supreme
Court
recognized
in
the
CAA
by
providing
more
flexibility
than
Option
1
to
States
and
Tribes
to
design
strategies
to
meet
the
8­
hour
ozone
standard
in
the
most
effective
and
least
costly
way
considering
local
circumstances,
while
requiring
and
providing
incentives
for
expeditious
attainment
of
the
health­
based
standard.
16
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
subparts
1
and
2
require
attainment
dates
"
as
expeditious
as
practicable"
regardless
of
the
maximum
attainment
dates
specified
in
the
Act.

We
also
believe
that
Option
2
is
consistent
both
with
the
Act
and
the
Supreme
Court's
decision
in
Whitman.
The
legal
framework
for
this
classification
approach
is
described
in
detail
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
nonattaining)
but
less
than
the
approximation
of
the
old
standard
codified
by
Table
1."
Whitman,
531
U.
S.
at
483.
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
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.

Comment:
One
commenter
noted
that
EPA
estimates
indicate
that
under
Option
2
more
than
half
of
the
8­
hour
ozone
nonattainment
areas
would
be
subject
to
subpart
1;
this
result
is
inconsistent
with
Justice
Scalia's
admonishment
that
Subpart
2
"
unquestionable
does"
apply
to
the
revised
ozone
standards.

Response:
We
disagree
with
the
commenter.
In
addressing
EPA's
argument
that
subpart
2
did
not
apply
to
any
area
for
purposes
of
implementing
the
8­
hour
NAAQS,
the
Court
rejected
EPA's
argument
and
made
the
statement
that
subpart
2
"
unquestionably"
applies
for
classifying
ozone
areas
under
the
revised
NAAQS.
Whitman,
531
U.
S.
at
482.
But
the
Court
went
on
to
recognize
that
there
is
a
gap
in
the
statute
with
respect
to
those
areas
that
are
violating
the
8­
hour
standard
but
with
ozone
levels
"
less
than
the
approximation
of
the
old
standard
codified
by
Table
1."
Whitman,
531
U.
S.
at
483.

Comment:
Several
commenters
believed
EPA
has
misinterpreted
the
Supreme
Court's
determination
that
there
are
gaps
in
the
statute.
The
commenters
noted
that
the
Court
specifically
recognized
the
gap
evident
in
the
structure
of
Table
1
of
subpart
2
as
it
relates
to
the
8­
hour
standard.
The
commenter
believed
that,
instead
of
resolving
the
ambiguity
created
by
this
particular
gap,
EPA
is
using
this
gap
in
its
regulatory
proposal
to
jettison
entirely
subpart
2'
s
applicability
for
many,
if
not
most,
nonattainment
areas
and
widening
its
discretion
by
relying
on
subpart
1.
The
commenter
contends
that
this
is
just
the
type
of
interpretation
that
the
Supreme
Court
found
unreasonable.
Several
other
commenters
made
a
similar
point,
claiming
that
Option
2
was
contrary
to
the
Supreme
Court's
decision
because
it
would
render
the
Subpart
2
scheme
"
nugatory"
or
"
unimportant."
One
commenter
stated
that
the
Supreme
Court
found
EPA's
similar
1997
implementation
approach
unlawful.
17
Response:
Where
there
is
a
gap
in
the
statute,
such
as
that
identified
by
the
Supreme
Court
with
respect
to
areas
that
are
violating
the
8­
hour
standard,
but
with
ozone
levels
below
0.121
for
the
1­
hour
standard,
it
is
left
to
EPA
to
develop
a
reasonable
interpretation
of
the
statute
to
address
the
gap.
See
e.
g.,
Whitman,
531
U.
S.
at
484
("
we
would
defer
to
the
EPA's
reasonable
resolution
of
that
ambiguity").
EPA
disagrees
with
these
commenters
that
classifying
all
of
the
gap
areas
under
subpart
1
will
jettison
the
subpart
2
scheme
or
render
its
provisions
nugatory.
Rather
subpart
2
will
continue
to
apply
directly
to
many
areas
for
purposes
of
implementing
the
8­
hour
standard.
In
addition,
those
area
that
were
subject
to
subpart
2
for
purposes
of
implementing
the
1­
hour
standard
will
continue
to
remain
obligated
to
most
of
their
1­
hour
obligations
until
the
area
attains
and
is
redesignated
to
attainment
for
the
8­
hour
standard.
Additionally,
even
after
the
area
was
redesignated
to
attainment
for
the
8­
hour
standard,
it
could
not
eliminate
such
measures
from
the
SIP,
but
could
only
move
them
to
the
contingency
measure
portion
of
the
SIP
based
on
a
demonstration
under
section
110(
l).
Thus,
contrary
to
the
commenters'
concerns,
subpart
2
will
continue
to
have
apply
and
have
meaning
for
those
areas
to
which
Congress
mandated
it
apply.
We
have
explained
elsewhere
in
the
Preamble
and
the
RTC
why
we
believe
classifying
all
"
gap"
areas
under
subpart
1
is
reasonable.

Nor
do
we
agree
with
the
commenter
that
suggests
that
Option
2
is
similar
to
the
implementation
scheme
suggested
by
EPA
in
1997.
In
1997,
EPA
provide
that
subpart
2
would
play
no
role
in
States
efforts
to
implement
the
revised
8­
hour
NAAQS.
Option
2,
however,
provides
subpart
2
with
a
significant
role
for
those
areas
that
Congress
mandated
by
classified
under
subpart
2.

Comment:
Several
commenters
believed
that
Option
2
allows
areas
to
avoid
Subpart
2'
s
carefully
drawn
restrictions
on
the
basis
of
modeling
that
demonstrates
such
areas
will
attain
the
8­
hour
standard
within
three
years
 
a
result
Congress
sought
to
limit
through
enacting
Subpart
2
and
that
the
Supreme
Court
struck
down
as
unreasonable
in
Whitman.

Response:
Option
2
does
not
allow
areas
to
modify
their
classification
based
on
modeling.
It
appears
the
commenter
is
referring
to
the
"
incentive
feature,"
which
EPA
proposed
could
apply
to
either
Option
1
or
Option
2
and
that
would
have
allowed
subpart
2
areas
to
receive
a
lower
classification
based
on
modeling
that
the
area
could
attain
by
the
earlier
attainment
date
for
the
lower
classification.
EPA
is
not
adopting
the
incentive
feature.

Comment:
One
commenter
believed
only
Option
1
finds
support
in
the
language,
structure
and
history
of
the
CAA.
The
commenter
cited
the
three
successive
major
overhauls
of
the
Clean
Air
Act
in
which
Congress
enacted
increasingly
prescriptive
federal
requirements
in
order
to
protect
public
health
in
response
to
the
failure
of
areas
to
attain
the
NAAQS.
Congress
did
not
resort
to
a
more
"
flexible"
approach,
nor
did
it
allow
EPA
and
the
states
to
forego
implementing
aggressive
anti­
pollution
measures
while
they
awaited
future
reductions
from
pre­
existing
programs.

Response:
We
agree
that
over
the
history
of
amendments
of
the
Clean
Air
Act,
Congress
enacted
increasingly
prescriptive
federal
requirements
in
order
to
protect
public
health
in
response
18
to
the
failure
of
areas
to
attain
the
ambient
air
quality
standards.
However,
consistent
with
the
Supreme
Court
decision,
we
believe
Congress
mandated
that
the
prescriptive
requirements
of
subpart
2
apply
only
to
certain
areas.

Comment:
One
commenter
noted
that
the
Act
carefully
defines
the
circumstances
in
which
changes
in
the
initial
Subpart
2
classification
may
occur,
see
CAA
§
§
181(
a)(
4)
and
181(
b),
and
further
prescribes
carefully
circumscribed
authority
to
redesignate
an
area
to
attainment.
See
CAA
§
107(
d)(
3).
In
particular,
an
area
may
be
redesignated
to
attainment
for
the
pollutant
ozone
only
if
it
satisfies
the
requirements
of
§
107(
d)(
3)(
E)
and
175A
with
respect
to
each
ozone
NAAQS
in
effect
at
the
time
of
redesignation.
EPA
lacks
authority
to
administratively
amend
the
Act
by
inserting
additional
agency­
created
reclassification
mechanisms.

EPA
agrees
with
the
commenter
that
section
107(
d)(
3)
established
the
criteria
for
redesignating
an
area
from
nonattainment
to
attainment.
In
addition,
section
181
provides
the
basis
for
classifying
areas
under
subpart
2
of
the
Act.
The
commenter
appears
to
be
suggesting
that
EPA's
actions
with
respect
to
the
8­
hour
standard
are
in
fact
redesignations
of
areas
and
reclassifications
of
areas
(
under
sections
107(
d)(
3)
and
181(
b))
as
opposed
to
initial
designations
for
the
8­
hour
NAAQS
(
under
sections
107(
d)(
1)
and
(
181(
a).
EPA
is
not
modifying
the
redsignation
or
reclassification
procedures
of
the
Act.
Rather,
this
final
rule
establishes
how
the
statutory
classifications
in
section
181(
a)
apply
for
purposes
of
areas
that
are
initially
designated
nonattainment
for
the
8­
hour
NAAQS
under
section
107(
d)(
1).

Response:
EPA
agrees
with
the
commenter
that
section
107(
d)(
3)
established
the
criteria
for
redesignating
an
area
from
nonattainment
to
attainment.
In
addition,
section
181
provides
the
basis
for
classifying
areas
under
subpart
2
of
the
Act.
The
commenter
appears
to
be
suggesting
that
EPA's
actions
with
respect
to
the
8­
hour
standard
are
in
fact
redesignations
of
areas
and
reclassifications
of
areas
(
under
sections
107(
d)(
3)
and
181(
b))
as
opposed
to
initial
designations
for
the
8­
hour
NAAQS
(
under
sections
107(
d)(
1)
and
(
181(
a).
EPA
is
not
modifying
the
redesignation
or
reclassification
procedures
of
the
Act.
Rather,
this
final
rule
establishes
how
the
statutory
classifications
in
section
181(
a)
apply
for
purposes
of
areas
that
are
initially
designated
nonattainment
for
the
8­
hour
NAAQS
under
section
107(
d)(
1).

Comment:
One
commenter
stated
that
EPA
may
not
apply
subpart
1
if
subpart
2
explicitly
addresses
a
particular
nonattainment
issue,
nor
may
EPA
render
subpart
2
nugatory.
Any
deference
to
EPA's
interpretations
of
the
interaction
between
subparts
1
and
2
should
be
limited
to
areas
where
there
is
uncertainty
about
whether
subpart
2
supercedes
subpart
1.

Response:
We
agree
with
the
commenter.
Thus,
under
Option
2,
those
areas
that
Congress
mandated
be
classified
under
subpart
2
will
be
classified
under
subpart
2.
Where
the
statute
is
unclear
 
i.
e.,
for
the
"
gap"
areas
 
it
is
left
to
EPA
to
develop
a
reasonable
interpretation
of
how
subparts
1
and
2
should
apply.
19
Comment:
One
commenter
believed
that
the
Supreme
Court
directed
EPA
to
classify
nonattainment
areas
under
subpart
2.
Thus,
Option
1
is
the
most
legally
sound
option
and
will
avoid
further
delays
in
implementing
the
8­
hour
ozone
standard.

Response:
We
disagree
with
the
commenter.
As
stated
above,
the
Court
recognized
that
there
was
a
gap
in
the
statute
for
certain
areas
designated
nonattainment
for
the
8­
hour
standard
and
ordered
EPA
to
develop
a
reasonable
interpretation
of
how
to
reconcile
subpart
1
and
subpart
2
for
these
areas.

Comment:
One
commenter
believed
that
Congress
did
not
intend
that
areas
with
poorer
air
quality
under
the
new
standard
should
have
more
"
flexibility"
in
achieving
the
new
standard.
One
commenter
noted
that
this
is
not
the
time
for
the
type
of
flexibility
proposed
by
the
EPA.
We
need
a
uniform
approach
to
address
emissions
across
the
board.
The
public
deserves
a
solution
that
would
require
states
across
the
country
to
take
steps
to
improve
their
air
quality
now.
Option
2
falls
far
short
of
this
goal.
Additionally,
the
Supreme
Court
was
very
clear
about
the
consideration
of
costs
in
the
NAAQS­
setting
process.
The
Court
stated;
"
The
text
of
103(
b),
interpreted
in
its
statutory
and
historical
context
with
appreciation
for
its
importance
to
the
CAA
as
a
whole,
unambiguously
bars
cost
considerations.
from
the
NAAQS­
setting
process,
and
thus
ends
the
matter
for
us
as
well
as
the
EPA."
Option
2
is
highly
suspect
in
that
this
proposal
seems
to
be
motivated
by
cost
which
has
already
been
adjudicated
as
an
unlawful
consideration
when
setting
NAAQS.
Public
health,
not
cost,
should
be
the
primary
consideration
in
the
implementation
of
the
rule.

Response:
For
the
reasons
provided
in
the
preamble,
we
believe
it
is
consistent
with
the
CAA
and
it
makes
sense
to
place
all
gap
areas
in
subpart
1.
We
note
that
the
CAA
has
historically
placed
the
primary
burden
for
developing
SIPs
on
the
States
and
that
this
inherently
means
that
uniform
approaches
will
not
be
adopted
whether
areas
are
placed
under
subpart
1
or
subpart
2.
However,
as
we
have
stated
elsewhere
in
the
preamble
and
the
RTC,
all
areas
will
be
required
to
improve
air
quality
and
attain
as
expeditiously
as
practicable.

Although
the
Supreme
Court
was
very
clear
about
the
consideration
of
costs
in
the
NAAQS­
setting
process
(
i.
e.,
they
cannot
be
considered),
the
rule
in
question
here
is
not
the
setting
of
a
NAAQS,
but
rather
the
implementation
of
a
NAAQS.
As
a
matter
of
law,
costs
can
be
taken
into
account
in
implementing
a
NAAQS,
and
as
a
matter
of
good
public
policy,
should
be
taken
into
account.

Comment:
Another
commenter
claimed
that
Congress
could
not
have
intended
that
adoption
of
a
more
health
protective
ozone
standard
would
result
in
most
areas
being
placed
into
lower
classifications.
If
anything,
a
more
health­
protective
standard
should
result
in
more
areas
being
placed
in
higher
classifications
so
that
they
would
be
subject
to
more
stringent
emission
control
requirements.
This
is
appropriate
because
the
current
state
of
knowledge
indicates
that
pollution
in
such
areas
is
a
more
serious
health
threat
than
previously
thought.
This
commenter
understands
that
EPA
considered
and
rejected
the
view
that
adoption
of
a
more
stringent
standard
should
20
result
in
more
areas
being
included
in
higher
classifications,
but
the
commenter
find
U.
S.
EPA's
reasons
for
such
rejection
to
be
unpersuasive
and
not
legally
supported
by
the
Clean
Air
Act.

Response:
EPA
disagrees
with
the
commenter
based
on
the
facts,
as
they
stand
now.
While
the
8­
hour
standard
is
considered
more
stringent
than
the
1­
hour
standard,
areas
have
made
significant
progress
in
reducing
ozone
levels
since
Congress
enacted
the
subpart
2
classification
structure
in
1990.
If
EPA
were
classifying
areas
in
1990
for
the
8­
hour
standard,
many
areas
would
likely
have
a
higher
classification
than
they
will
have
based
on
the
improved
air
quality
levels
of
today.
Similarly,
if
we
were
to
classify
areas
for
the
1­
hour
standard
today,
based
on
current
1­
hour
values,
areas
would
have
lower
classifications
than
those
they
were
given
in
1990.
In
1990,
areas
had
a
more
significant
air
quality
problem
and
also
needed
a
longer
period
of
time
to
reduce
harmful
air
quality
levels
to
levels
that
protect
public
health.
It
is
appropriate,
however,
for
areas
to
have
classifications
that
reflect
the
area's
current
air
quality
and
thus
reflect
the
air
quality
emission
reductions
that
still
need
to
be
achieved
and
the
time
needed
to
correct
the
existing
air
quality
problem.
For
this
reason,
the
designation
and
classification
provisions
of
the
statute
require
EPA
to
base
designations
and
classifications
on
an
area's
current
air
quality.

Comment:
Another
commenter
disagreed
with
EPA's
rationale
for
regulating
"
gap"
areas,
under
subpart
1
only.
EPA
states
that
regional
modeling
indicates
that
the
majority
of
gap
areas
will
attain
the
8­
hour
standard
by
2007
based
on
other
existing
programs.
However,
on
the
very
next
page
of
the
proposed
rule,
under
a
discussion
about
proposed
incentive
features
it
is
stated
that
"
EPA
notes
that
regional
scale
modeling
alone
is
not
considered
sufficient
for
an
approvable
attainment
demonstration"
pointing
to
the
uncertainty
in
these
same
regional
models.

In
addition,
EPA's
example
of
a
previous
situation
following
the
CAA
Amendments
of
1990
where
areas
that
were
not
considered
under
subpart
2
at
that
time
seems
inconsistent
with
what
is
being
considered
in
this
proposal.
Those
areas
were
either
transitional
or
could
not
be
definitively
shown
to
be
exceeding
the
health
standard
while
in
this
proposal
areas
being
considered
not
to
fall
under
subpart
2
(
in
EPA's
Option
2)
clearly
exceed
the
current
ozone
NAAQS.
It
seems
illogical
to
establish
a
more
protective
health
standard,
that
rightfully
bring
areas
into
nonattainment
that
were
not
before
under
the
1­
hour
standard,
but
provide
less
stringent
means
to
attain
that
standard.

Response:
EPA
supports
its
statement
that
regional
modeling
would
not
be
a
sufficient
tool
for
an
attainment
demonstration.
However,
we
also
believe
that
such
modeling
can
provide
a
likely
picture
of
what
will
occur.
We
did
not
base
our
rationale
for
including
all
gap
areas
in
subpart
1
on
the
conclusion
that
all
or
most
such
areas
would
in
fact
attain
the
8­
hour
standard
in
three
years.
Rather,
we
relied
on
the
regional
modeling
to
support
our
conclusions
that
many
"
gap"
areas
will
not
need
additional
local
controls
or,
in
some
cases,
will
need
very
limited
local
controls
to
attain
the
8­
hour
NAAQS
expeditiously
 
within
three
years
of
designation.
By­
and­
large,
the
gap
areas
do
not
have
a
significant
problem
with
the
8­
hour
ozone
NAAQS.
Because
they
should
be
able
to
reach
attainment
relatively
quickly
and
primarily
with
control
measures
already
in
place,
we
believe
it
is
reasonable
to
classify
them
under
subpart
1.
21
The
commenter
misconstrues
our
reference
to
the
"
sub­
marginal"
areas
immediately
following
the
1990
Amendments.
We
referenced
those
areas
to
indicate
that
even
for
the
1­
hour
standard,
Congress
did
not
mandate
that
all
areas
be
classified
under
subpart
2.
The
fact
that
the
circumstances
for
those
areas
are
different
than
the
circumstances
for
"
gap"
areas
for
the
8­
hour
standards
is
irrelevant.
It
is
clear
that
Congress
intended
and
mandated
that
areas
that
have
had
a
historical
and
significant
1­
hour
ozone
nonattainment
problem
be
covered
by
prescriptive
requirements
that
were
developed
with
the
1­
hour
standard
in
mind.
Our
classification
approach
is
consistent
with
this
intent
as
mandated
in
Table
1
in
section
181(
a).

Comment:
Several
commenters
submitted
comments
on
both
the
proposed
rule
and
the
notice
reopening
the
comment
period
opposing
Option
2
or
any
variant
of
it
(
including
Alt.
A
and
Alt.
B).
They
claimed
that
the
classifications
must
use
a
similar
approach
that
Congress
employed,
resulting
in
a
similar
distribution.
In
support,
the
commenters
cited
to
legislative
history
that
explains
that
the
specified
attainment
date
for
each
classification
is
the
outside
attainment
date
and
areas
must
attain
as
expeditiously
as
practicable.
Additionally,
the
commenter
noted
that
the
explicit
anti­
backsliding
provisions
of
the
Act
further
support
Congressional
intent
that
the
distribution
of
areas
for
a
more
stringent
NAAQS
should
not
be
less
protective
13
years
after
Congress
created
the
table.

Response:
We
see
nothing
in
the
statute
or
the
legislative
history
that
indicates
that
Congress
was
striving
for
a
specific
distribution
of
areas
when
it
established
the
classifications.
The
legislative
history
cited
by
the
commenter
merely
supports
the
fact
that
Congress
did
not
want
States
to
rely
blindly
on
the
specified
attainment
dates,
but
rather
to
undertake
the
exercise
of
determining
whether
there
were
reasonably
available
controls
that
could
be
adopted
such
that
the
area
would
attain
sooner.
This
approach
is
consistent
with
the
approach
adopted
by
EPA
in
selecting
Option
2.

We
believe
that
Congress
established
the
classifications
 
with
their
increased
maximum
period
to
attain
coupled
with
more
stringent
requirements
 
based
on
a
generalized
assumption
of
the
time
groups
of
areas
with
similar
monitored
air
quality
levels
would
need
to
attain
the
standard
and
the
level
of
control
that
could
bring
them
into
attainment.
Congress
then
provided
for
areas
to
attain
as
expeditiously
as
practicable
and
provided
for
voluntary
and
mandatory
bump­
ups
to
address
areas
that
did
not
line
up
with
their
more
generalized
predictions.
We
believe
that
our
approach
is
consistent
with
that
established
by
Congress.
For
most
areas,
we
believe
the
maximum
attainment
dates
provided
will
be
neither
too
short
nor
too
long.
Those
areas
that
can
attain
earlier
through
adoption
and
implementation
of
reasonably
available
control
measures
must
do
so.
Similarly,
there
may
be
some
areas
that
will
need
to
seek
a
voluntary
bump­
up
(
or
will
need
to
be
bumped
up
based
on
a
failure
to
attain)
so
that
the
attainment
date
and
level
of
control
more
closely
matches
an
area's
needs.
Based
on
our
analyses,
we
believe
most
areas
will
be
able
to
attain
the
8­
hour
standard
within
the
time
specified
for
the
classification
that
they
will
be
subject
to
under
our
adopted
approach.
22
We
disagree
with
the
commenter
about
the
purpose
of
the
anti­
backsliding
language
of
the
statute.
These
provisions
govern
the
demonstration
a
state
must
make
if
it
wishes
to
modify
or
remove
an
obligation
in
the
approved
SIP.
They
do
not
apply
to
assure
that
an
area
does
not
have
a
different
classification
for
a
different
NAAQS.
We
have
addressed
the
obligation
to
retain
SIPapproved
controls
in
the
anti­
backsliding
section
of
the
Preamble
and
of
the
RTC.

Comment:
Another
commenter
stated
that
although
the
Supreme
Court
noted
"
gaps"
in
Subpart
2
that
render
the
Act
ambiguous,
the
Court
emphasized
that
EPA's
resolution
of
that
ambiguity
must
be
reasonable.
Because
the
gaps
in
Subpart
2
are
"
few"
and
the
applicability
of
Subpart
1
to
a
revised
ozone
NAAQS
is
"
limited,"
the
agency's
implementation
rule
must
be
based
primarily
on
Subpart
2,
and
any
divergence
must
be
cogently
justified
based
on
the
statutory
language
and
purposes,
respecting
Subpart
2'
s
"
carefully
designed
restrictions
on
EPA
discretion."

Response:
We
agree
with
the
commenter's
interpretation
that
there
are
"
few"
gaps
in
subpart
2,
as
noted
by
the
Court
in
Whitman.
One
of
those
gaps
is
that
the
Act
does
not
address
which
subpart
applies
to
8­
hour
nonattainment
areas
with
a
1­
hour
ozone
design
value
below
0.121
ppm.
We
disagree
with
the
commenter's
seeming
interpretation
of
the
Supreme
Court's
reference
to
"
limited."
The
commenter
appears
to
equate
the
use
of
"
limited"
with
"
few."
We
interpret
it
in
its
more
common
usage
to
mean
"
restricted."
Thus,
we
believe
the
"
gap"
is
limited
to
those
8­
hour
ozone
nonattainment
areas
with
a
1­
hour
design
value
of
less
than
0.121
ppm,
regardless
that
slightly
more
than
half
the
nonattainment
areas
would
fall
into
that
category.

Comment:
One
commenter
noted
that
the
Supreme
Court's
recent
decision
admonished
EPA
not
to
ignore
the
Subpart
2
framework,
but
also
left
the
EPA
room
to
provide
flexibility
on
the
requirements.
Given
the
Court's
direction
and
the
measure
of
flexibility
afforded,
the
commenter
sees
no
reason
for
the
EPA
to
return
to
Subpart
1
for
classification
purposes.

Response:
We
disagree
with
the
commenter
that
the
Supreme
Court
left
EPA
with
flexibility
to
determine
the
requirements
that
would
apply
under
subpart
2.
The
sole
implementation
issue
before
the
Court
was
whether
the
classification
provisions
of
subpart
2
apply
for
purposes
of
the
8­
hour
NAAQS.
The
parties
did
not
raise
and
the
Court
did
not
purport
to
address
whether
there
was
flexibility
in
how
the
control
requirements
in
subpart
2
might
apply
for
purposes
of
a
revised
NAAQS.
We
believe
the
statute
is
clear
on
that
point.
For
each
classification,
Congress
specified
control
measures
and
that
apply.
We
do
not
see
flexibility
to
modify
or
waive
those
requirements
unless
application
would
produce
an
absurd
result.

Comment:
One
commenter
stated
that
CAA
section
181(
a)(
1)
requires
that
"
each"
ozone
nonattainment
area
"
shall"
be
classified
under
Subpart
2,
not
Subpart
1.
According
to
CAA
section
172(
a)(
1)(
D),
subpart
1'
s
classification
scheme
"
shall
not
apply
with
respect
to
nonattainment
areas
for
which
classifications
are
specifically
provided
under
other
provisions
of
[
Part
D]"
of
the
CAA.
In
addition,
the
title
of
subpart
2
is
"
Additional
Provisions
for
Ozone
Nonattainment
Areas"
not
"
Additional
Provisions
for
Areas
in
Nonattainment
of
the
One
Hour
Ozone
Standard
Since
1990."
3These
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
23
Response:
The
"
switching"
provision
in
section
172(
a)(
1)(
D)
was
one
of
the
provisions
specifically
raised
to
and
considered
by
the
Supreme
Court.
Whitman,
531
U.
S.
at
481­
484.
In
finding
a
"
gap"
in
the
statute
for
those
areas
that
are
violating
the
8­
hour
standard,
but
with
a
1­
hour
design
value
less
than
0.121
ppm,
the
Court
concluded
that
the
Part
D
(
section
181)
does
not
"
specifically
provide[]"
classifications
for
the
"
gap"
areas.

As
to
the
title
of
subpart
2,
the
argument
is
unpersuasive.
While
we
agree
with
the
commenter
that
the
heading
does
not
limit
the
provisions
of
subpart
2
to
areas
that
are
nonattainment
for
the
1­
hour
standard,
it
also
does
not
do
what
the
commenter
suggests
 
i.
e.,
clearly
provide
that
those
provisions
apply
to
all
areas
designated
nonattainment
for
any
ozone
standard.
For
example,
it
does
not
say
"
Additional
Provisions
for
All
Ozone
Nonattainment
Areas."
In
addition,
the
title
of
section
181(
a)
is
"
Classification
and
Attainment
Dates
for
1989
Nonattainment
Areas,"
which
would
seem
to
limit
the
classifications
to
only
those
areas
that
were
nonattainment
in
1989.
If
anything,
this
would
seem
to
clarify
the
vague
language
of
the
general
heading
in
favor
of
an
interpretation
that
subpart
2
only
applies
for
purposes
of
the
1­
hour
NAAQS.
However,
we
note
that
we
made
that
argument
to
both
the
Court
of
Appeals
and
the
Supreme
Court.
Both
Courts
rejected
the
Agency's
argument
and
indicated
the
limited
role
titles
play
in
interpreting
a
statute.

Comment:
One
commenter
stated
that
the
classification
of
an
area
designated
nonattainment
for
ozone
pursuant
to
section
107(
d)
under
the
1­
hour
standard
was
to
be
based
on
the
design
value
"
at
the
time
of
such
designation."
Section
181(
a)(
1).
The
"
time
of
designation"
prescribed
by
section
107(
d)(
4)(
A)(
i)
and
(
ii)
was
240
days
after
November
15,
1990.
Areas
that
were
designated
at
that
time,
or
that
were
subsequently
redesignated
to
nonattainment
pursuant
to
section
107(
d)(
3)
acquired
a
classification
based
on
the
design
value
determined
by
EPA
at
the
initial
time
of
designation.

Response:
The
commenter
misreads
the
provisions
of
section
107(
d).
Section
107(
d)(
4)
provides
the
timeframe
for
the
initial
designations
(
or
reaffirmations
of
designations)
of
the
1­
hour
ozone
standard.
However,
section
107(
d)(
1)
provides
that
designations
for
a
new
or
revised
national
ambient
air
quality
standard
 
such
as
the
8­
hour
ozone
standard
 
are
to
occur
within
the
timeframes
of
that
subsection.
While
the
Supreme
Court
recognized
that
subpart
2
provides
for
classifying
nonattainment
ozone
areas
under
the
revised
standard,
it
did
identify
a
"
gap"
in
coverage
of
Table
1
of
section
181.
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
1.3
We
believe
it
is
appropriate
to
ozone
standard
by
virtue
of
their
expected
number
of
exceedances,
but
whose
design
values
were
lower
than
the
threshold
for
which
an
area
can
be
classified
under
Table
1
of
subpart
2
(
submarginal
areas).
See
57
FR
13498
at
13524
col.
3
et
seq.
(
April
16,
1992).

24
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.

Comment:
A
number
of
commenters
noted
the
progress
that
had
been
made
since
1990
under
the
provisions
of
subpart
2.
For
example,
one
commenter
stated
that
"
the
mandatory
control
programs
established
by
Congress
in
Subpart
2,
as
implemented
by
EPA,
the
states
and
the
regulated
community,
deserve
much
of
the
credit
for
the
decrease
in
ozone
pollution
that
EPA
discusses
in
the
proposed
rule.
Other
commenters
claim
that
classifying
areas
under
subpart
1
would
forego
important
control
programs
mandated
under
subpart
2
such
as
Inspection
and
Maintenance
of
vehicles
and
NOx
RACT.
One
commenter
notes
that
in
1990
Congress
rejected
the
one­
size
fits
all
strategy
of
subpart
1
in
favor
of
subpart
2,
which
contains
a
graduated
ozone
control
program
codifying
proven
ozone­
reducing
technologies
and
cost­
effective
solutions
to
reverse
the
past
failures
in
lowering
harmful
ozone
levels.
Another
commenter
stated
it
is
unacceptable
for
areas
that
are
attaining
the
1­
hour
standard
to
escape
more
stringent
control
measures
under
subpart
2.
The
commenter
states
that
there
is
no
justification
for
slack
enforcement
of
the
8­
hour
standard
simply
because
an
area
is
not
violating
the
1­
hour
standard.
Air
quality
in
these
areas
is
still
harmful
to
human
health
and
needs
to
be
cleaned
up
as
soon
as
practicable.

Response:
It
is
true
that
the
national,
regional
and
local
controls
implemented
since
1990
have
led
to
significant
air
quality
improvements
in
many
areas.
These
include
federal
and
regional
control
measures
as
well
as
local
controls
mandated
by
subpart
2
and
other
local
controls
states
have
adopted
for
the
purpose
of
attaining
the
ozone
standard.
The
subpart
2
programs
will
continue
to
apply
in
many
areas
under
the
anti­
backsliding
provisions.
The
national
and
regional
control
programs
will
apply
regardless
of
whether
an
area
is
classified
under
subpart
1
or
subpart
2.
While
certain
control
programs
will
not
be
mandated
for
areas
subject
to
subpart
1
(
e.
g.,
inspection
and
maintenance
programs),
states
are
free
to
adopt
such
programs
if
they
are
effective
at
achieving
reductions.
Other
programs,
such
as
RFP
and
RACT
do
apply
under
subpart
1.
As
provided
in
the
Preamble
and
elsewhere
in
the
RTC,
we
believe
that
subpart
1
programs
will
be
an
effective
means
to
bring
areas
into
attainment
of
the
8­
hour
NAAQS
as
expeditiously
as
practicable.

Comment:
A
few
commenters
suggested
Option
2
was
unreasonable
and
stated
EPA
had
not
demonstrated
that
Option
2
does
not
result
in
a
disparity
in
air
quality
improvements.

Response:
Because
the
CAA
places
the
burden
on
states
to
develop
air
quality
plans
to
demonstrate
attainment,
EPA
cannot
predict
now
how
circumstances
would
vary
from
area
to
area
based
on
whether
the
area
was
subject
to
subpart
1
or
subpart
2.
However,
whether
subject
to
subpart
1
or
subpart
2,
nonattainment
areas
are
required
to
attain
the
NAAQS
as
expeditiously
25
as
practicable,
to
adopt
and
implement
reasonably
available
control
measures
and
to
make
reasonable
progress
toward
attainment.
Thus,
although
States
may
choose
different
means
of
attaining
the
NAAQS,
EPA
does
not
believe
that
there
will
be
any
disparity
in
air
quality
improvement
regardless
of
whether
an
area
is
subject
to
subpart
1
or
subpart
2.

Comment:
Several
commenters
believed
that
subpart
1
coverage
would
result
in
delays
in
attaining
the
8­
hour
standard.
One
commenter
claimed
that
as
it
would
apply
for
the
8­
hour
standard,
Subpart
2
contains
more
stringent
attainment
dates
for
cleaning
up
air
quality
under
the
new,
8­
hour
standard
than
does
Subpart
1,
requiring
dirty
areas
to
come
into
attainment
two
to
five
years
earlier
than
those
classified
under
Option
2.
Another
commenter
noted
that
more
than
43
million
people
live
in
the
areas
that
would
be
subject
to
subpart
1
and
these
areas
will
have
between
5
and
12
years
to
come
into
attainment
and,
if
they
fail
to
meet
ozone
attainment
deadlines,
they
are
not
required
to
be
"
bumped
up"
to
the
next
higher
ozone
classification
to
implement
more
stringent
control
requirements
but
instead
could
get
an
additional
12
years
to
comply.
One
commenter
noted
that
Option
2
creates
a
disconcerting
disparity
with
respect
to
attainment
dates
for
areas
under
subparts
1
and
2.
Subpart
1
areas
(
which
would
ostensibly
have
less
to
do
than
subpart
2
areas)
will
have
five
years
to
attain
the
standard
while
subpart
2
marginal
areas
will
have
three
years
to
attain.
One
commenter
suggested
that
implementation
under
Option
1
would
make
it
easier
for
areas
to
achieve
attainment
of
the
more
healthful
8­
hour
ozone
limit
in
the
shortest
possible
time.
EPA's
proposal
allows
significant
leeway
to
areas
that
would
be
designated
under
the
Option
2,
with
very
few
requirements
or
incentives
to
act
prior
to
the
fiveyear
deadline
extension
of
2014
for
areas
classified
under
subpart
1.
This
would
delay
public
health
protection
for
citizens
in
those
areas,
and
creates
inequities
between
areas
classified
under
subpart
1
and
2.
One
commenter
noted
that
Subpart
1
classification
under
option
2
would
allow
upwind
areas
more
time
 
up
to
10
years
 
to
attain,
thereby
delaying
downwind
areas'
ability
to
attain.
One
commenter
claimed
Option
2
would
result
in
dramatically
delayed
time
lines
and
ineffective
ozone
control
strategies.
Another
commenter
noted
that
the
higher
classifications
of
option
2
would
also
provide
more
time
for
areas
to
attain
 
more
time
that
in
some
cases
may
not
be
warranted.
Thus
EPA's
final
rule
must
ensure
that
every
area
has
an
attainment
deadline
that
is
"
as
expeditious
as
practicable,"
as
specified
in
the
Clean
Air
Act.

Response:
Whether
an
area
is
covered
under
subpart
1
or
subpart
2,
it
is
still
required
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,
such
area
will
be
required
to
achieve
clean
air
on
the
same
schedule.
We
point
out
that
CAA
section
172(
c)(
1)
requires
that
a
SIP
for
a
nonattainment
area
".
.
.
shall
provide
for
implementation
of
all
reasonably
available
control
measures
["
RACM"]
as
expeditiously
as
practicable
.
.
.
and
shall
provide
for
attainment
of
the
[
NAAQS]."
Section
172(
a)(
2)
also
provides
that
the
attainment
date
for
an
area
covered
under
subpart
1
is
".
.
.
as
expeditiously
as
practicable,
but
no
later
than
.
.
."
5
years
or,
under
limited
circumstances,
10
years.
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
these
provisions
to
ensure
all
RACM
are
adopted
and
implemented
as
expeditiously
as
practicable
and
that
the
attainment
date
is
as
expeditious
as
practicable.
Subpart
26
1
sets
an
initial
outside
attainment
date
of
5
years
following
designation
for
the
8­
hour
standard.
Subpart
2
sets
the
earliest
outside
attainment
date
as
3
years
following
designation
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.
Thus,
in
general,
Congress
anticipated
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
standard
on
a
similar
timeframe
as
areas
classified
as
marginal
(
i.
e.,
3
years
following
designation).
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
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,
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
one
year
earlier
 
i.
e.,
five
years
following
designation
rather
than
six
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
for
areas
with
similar
air
quality
problems)
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.

Comment:
Another
commenter
contends
that
EPA
must
ensure
that
appropriate
time
frames
and
backstops
are
in
place,
including
sanctions,
for
failing
to
act.

Response:
Under
both
subparts
1
and
2,
areas
that
fail
to
submit
a
SIP
or
submit
a
SIP
that
EPA
disapproves
are
subject
to
the
mandatory
sanctions
provisions
of
section
179(
a)
and
(
b)
of
the
Act.

Comment:
Another
commenter
expressed
concern
that
the
flexibility
that
was
proposed
under
subpart
2
would
result
in
the
delay
or
elimination
of
the
requirement
for
timely
emissions
reductions
in
many
upwind
areas.

Response:
We
do
not
believe
this
concern
is
justified.
As
provided
in
more
detail
in
the
Preamble
and
elsewhere
in
the
RTC,
all
areas
are
required
to
attain
as
expeditiously
as
practicable,
to
adopt
all
reasonably
available
control
measures
and
to
make
reasonable
progress
toward
attainment.
27
With
regard
to
the
elimination
of
control
measures,
the
anti­
backsliding
provisions
of
the
final
rule
require
certain
obligations
that
applied
for
purposes
of
the
1­
hour
standard
to
continue
to
apply
until
the
area
attains
and
is
redesignated
for
the
8­
hour
standard
at
which
point
they
can
be
shifted
to
contingency
measures,
but
only
based
on
a
demonstration
that
such
a
shift
will
not
interfere
with
maintenance
of
the
8­
hour
standard.

Comment:
One
commenter
stated
that
Option
2
creates
the
prospect
of
ozone
nonattainment
areas
with
split
classifications.
i.
e.,
some
parts
of
the
nonattainment
area
would
be
subject
to
subpart
1
while
other
parts
would
be
subject
to
subpart
2.
As
a
result,
where
areas
in
an
outside
ring
of
a
metropolitan
area
are
regulated
under
subpart
1,
but
city
core
areas
are
subject
to
subpart
2
requirements,
new
industry
would
have
an
incentive
to
locate
outside
the
central
city
to
take
advantage
of
the
lower
NSR
offsets.
This
in
turn
will
promote
growth
in
the
vicinity
of
the
new
industry,
yielding
further
increases
in
air
pollution
emissions
that
accompany
such
sprawl.

Response:
Each
nonattainment
area
will
have
only
one
classification
for
the
entire
nonattainment
area.
In
other
words,
each
nonattainment
area
will
either,
as
a
whole,
be
classified
under
subpart
1
or
under
subpart
2
as
marginal,
moderate,
serious,
severe
or
extreme.
Therefore
there
would
be
no
split
classifications
within
a
nonattainment
year.
However,
under
the
anti­
backsliding
provisions,
if
part
of
an
8­
hour
nonattainment
area
was
subject
to
certain
obligations
based
on
its
1­
hour
classification,
the
part
of
the
8­
hour
area
that
had
been
designated
nonattainment
for
the
1­
hour
standard
would
remain
subject
to
those
obligations.
Unless
required
because
of
the
area's
8­
hour
classification,
the
state
could
choose
whether
the
remainder
of
the
8­
hour
nonattainment
(
the
part
that
was
not
designated
nonattainment
for
the
1­
hour
standard)
should
also
be
subject
to
those
obligations.

Comment:
One
commenter
believed
flexibility
also
leads
to
regulatory
uncertainty
and
specifically
noted
that
Option
1
provides
regulatory
certainty
such
that
motor
vehicle
inspection
and
maintenance
(
I/
M)
programs
can
continue
to
provide
consistent,
important
emissions
reductions.

Response:
Option
1
does
not
provide
any
greater
certainty
regarding
continuation
of
existing
I/
M
programs
than
does
Option
2.
The
continuation
of
existing
programs
is
addressed
by
the
antibacksliding
provisions
of
the
implementation
rule.
Those
areas
currently
subject
the
I/
M
requirements
of
the
Act
would
remain
subject
to
that
obligation
under
the
anti­
backsliding
provisions
of
the
final
rule
but
could
move
the
I/
M
program
to
the
contingency
measure
portion
of
the
SIP
upon
attainment
of
the
8­
hour
or
the
1­
hour
standard
based
on
a
demonstration
under
section
110(
l).

Comment:
One
commenter
was
concerned
that
Early
Action
Compact
(
EAC)
areas
that
are
classified
under
subpart
1
and
that
fail
to
attain
by
the
end
of
2007
could
have
as
long
as
ten
more
years
to
attain
the
8­
hour
standard.
This
could
adversely
affect
areas
downwind
of
the
EAC
areas.
28
Response:
As
we
have
stated
previously,
the
EAC
concept
has
not
formed
the
basis
for
any
part
of
this
rule.
However,
we
note
that
section
172(
a)(
2)(
A)
(
in
subpart
1)
requires
areas
to
attain
as
expeditiously
as
practicable
but
within
five
years
of
designation
unless
the
area
can
demonstrate
that
attainment
is
infeasible
based
on
the
severity
of
pollution
and
the
availability
and
feasibility
of
controls.
The
areas
that
have
taken
steps
to
participate
as
EACs
all
have
ozone
levels
that
are
close
to
the
level
of
the
8­
hour
standard
and,
in
addition,
have
been
able
to
identify
a
variety
of
controls
that
they
are
considering
for
adoption.
Based
on
the
information
currently
before
us,
we
do
not
believe
any
such
area
would
need
the
full
initial
five
year
period.
And,
we
believe
it
is
even
more
unlikely
that
such
an
area
would
be
eligible
for
the
additional
five
years
provided
under
section
172(
a)(
2)(
A)
on
the
basis
of
the
severity
of
thee
pollution
problem
and
availability
of
controls.

Comment:
One
commenter
believed
that
the
bump­
up
provision
has
been
a
major
incentive
for
states
to
stay
on
track
with
their
ozone
planning
during
the
1990s.
By
eliminating
the
threat
of
more
requirements
for
failure
to
do
what
is
necessary
to
attain
the
standard,
there
is
less
assurance
that
states
will
stay
on
target
in
a
timely
manner.

Response:
While
the
potential
for
a
"
bump­
up"
under
section
181(
b)(
2)
and
more
controls
may
provide
incentive
to
areas
to
attain
by
the
applicable
attainment
date,
we
believe
that
the
similar
authority
under
subpart
1
also
will
provide
an
incentive.
Under
section
179(
d),
the
Administrator
may
prescribe
additional
measures
that
an
area
must
adopt
if
it
fails
to
attain
by
its
attainment
date.

Comment:
Several
commenters
cited
legislative
history
from
the
1990
CAA
in
support
of
adopting
Option
1,
which
would
classify
all
areas
under
subpart
2.
In
1990,
Congress
recognized
that
ozone
levels
had
not
decreased
as
expected
and
noted
that
"
in
the
case
of
ozone
....
we
had
no
`
magic'
solutions."
As
a
result,
Congress
enacted
the
multiple
classification
scheme
of
subpart
2
of
part
D
of
the
Act,
which
established
different
attainment
dates
and
specified
control
strategies
for
nonattainment
areas
depending
on
the
extent
of
the
area's
ozone
pollution
concentrations.
Subpart
2
thereby
contains
a
graduated
ozone
control
program
codifying
proven
ozone­
reducing
technologies
and
cost­
effective
solutions
to
reverse
the
past
failures
in
lowering
harmful
ozone
levels.
Another
commenter
pointed
out
that
EPA
recognized
in
the
proposal
that
Congress
determined
that
the
prescriptive
subpart
2
measures
of
the
1990
CAA
Amendments
were
necessary
because
areas
had
not
attained
the
1
 
hour
ozone
standard
under
the
more
flexible
subpart
1
measures.
The
commenter
was
concerned
that
under
Option
2,
the
regulatory
flexibility
that
would
be
granted
to
many
nonattainment
areas
(
including
upwind
areas)
would
come
at
the
expense
of
timely
emission
reductions.
Many
of
the
areas
that
would
be
classified
under
subpart
1
are
upwind
of
Massachusetts,
and
their
subpart
1
classification
will
have
an
adverse
impact
on
Massachusetts'
ability
to
attain
the
standard.
The
commenter
believed
that
the
Option
2
classification
scheme
would
create
an
inequitable
situation
for
states
like
Massachusetts
that
will
fall
under
subpart
2
but
will
continue
to
receive
pollution
from
subpart
1
areas
subject
to
less
stringent
requirements.
Another
commenter
believed
that
the
subpart
2
provisions
should
be
utilized
exclusively
because
they
are
the
most
recent
mechanism
that
Congress
enacted
to
address
29
the
ground
level
ozone
problem
and
have
been
successful
in
bringing
most
areas
of
the
country
into
attainment
with
the
1­
hour
ozone
standard.

Response:
In
1990,
Congress
addressed
the
concern
that
many
areas
had
not
attained
the
1­
hour
ozone
NAAQS
in
the
10
years
since
it
was
promulgated
by
EPA.
Many
of
these
areas
had
a
recalcitrant
ozone
problem
since
the
time
the
CAA
was
initially
enacted
in
1970.
Many
of
the
areas
that
are
being
designated
nonattainment
for
the
8­
hour
ozone
standard
are
areas
that
have
never
before
been
designated
nonattainment
and
which
also
have
levels
not
far
above
the
standard.
We
disagree
with
the
commenters
that
Congress
intended
in
1990
to
subject
these
areas
to
the
provisions
of
subpart
2.
In
addition,
we
note
that
the
Supreme
Court
recognized
that
the
Clean
Air
Act
is
not
clear
that
Congress
intended
areas
with
1­
hour
design
values
below
0.121
ppm
to
be
subject
to
the
provisions
of
subpart
2.
We
agree
with
the
commenter
that
much
progress
has
been
made
since
1990,
although
we
note
that
the
progress
has
been
made
through
a
combination
of
the
controls
mandated
by
subpart
2,
regional
control
programs
and
national
measures.
We
note
that
the
type
of
programs
mandated
by
subpart
2
will
do
little
to
address
the
type
of
transport
that
affects
Massachusetts
and
other
states
in
the
northeast.
Rather,
these
areas
are
primarily
affected
by
the
long­
range
transport
of
ozone
and
NOx.
Consistent
with
the
determination
we
made
at
the
time
we
promulgated
the
NOx
SIP
Call
in
1998,
we
believe
that
these
transported
emissions
are
best
addressed
through
the
adoption
of
control
measures
for
large
stationary
sources
of
NOx
emissions.
EPA
is
continuing
to
analyze
the
transport
issue
and
recently
proposed
the
Interstate
Air
Quality
Rule,
which,
if
finalized,
will
further
reduce
transported
emissions.

Comment:
Some
commenters
noted
that
Subpart
2
has
done
much
to
level
the
playing
field
by
requiring
that
ozone
nonattainment
areas
all
have
the
same
core
pollution
control
programs
including
new
source
review
and
industrial
offsets.
One
commenter
cites
to
an
area
that
was
nonattainment
for
the
1­
hour
standard
and
noted
that
it
would
be
subject
to
the
prescriptive
control
measures
under
subpart
2
based
on
its
designation
and
classification
for
the
8­
hour
standard;
however,
a
new
8­
hour
nonattainment
area
with
worse
air
quality
would
not
be
subject
to
those
same
control
measures
if
it
were
classified
under
subpart
1.
Equity,
fairness,
recognition
of
progress
made
and
the
desire
for
clean
air
all
point
to
a
more
level
playing
field
under
subpart
2.
Moreover,
if
an
area
fails
to
attain
the
standard
in
the
time
frame
required,
classification
under
subpart
2
will
ensure
equal
treatment
in
terms
of
extensions
and
bumping
up
to
the
next
classification.
Several
commenters
raise
the
concern
that
under
Option
2,
two
areas
with
identical
8­
hour
design
values
could
have
very
different
requirements
and
attainment
dates
if
one
is
classified
under
subpart
1
and
the
other
under
subpart
2.

Response:
All
nonattainment
areas
are
required
to
have
certain
core
programs
such
as
new
source
review,
including
offsets,
and
conformity.
Although
some
areas
may
be
classified
under
subpart
1
despite
similar
design
values
to
those
of
areas
classified
under
subpart
2,
we
believe
that
to
the
extent
the
areas
have
similar
problems,
they
will
need
to
develop
similar
programs.
For
example,
if
the
two
areas
both
have
a
heavy
industrial
base,
it
is
likely
that
they
will
both
adopt
control
measures
for
those
stationary
industrial
sources.
Similarly,
if
they
both
have
heavy
30
commuting
and
high
vehicle
miles
traveled
(
VMT),
they
may
focus
more
on
ways
to
address
vehicle
emissions.
However,
while
some
areas
may
have
similar
problems,
we
believe
each
area
is
unique
and
will
need
to
assess
what
strategy
will
be
most
effective
given
local
circumstances.

Although
it
is
true
that
subpart
2
does
mandate
some
specific
controls
 
e.
g.,
inspection
and
maintenance
programs
for
moderate
and
above
areas
 
we
believe
it
does
not
make
sense
to
classify
"
gap"
areas
under
subpart
2
on
the
basis
that
they
should
be
required
to
adopt
whatever
programs
apply
to
areas
that
Congress
mandated
fall
into
subpart
2.
Rather,
we
have
examined
whether
it
makes
sense
to
mandate
those
programs
for
areas
where
Congress
provided
EPA
with
discretion
in
light
of
13
years
experience
since
passage
of
the
CAA.
We
note
that
our
June
proposal
included
several
options
that
would
treat
subpart
1
obligations
similar
to
subpart
2
obligations
for
areas
with
higher
8­
hour
design
values.
We
will
take
final
action
on
these
issues
in
Phase
2.

As
to
"
bump­
up,"
subpart
1
also
has
provisions
that
apply
when
an
area
fails
to
attain
the
standard
by
its
attainment
date.
While
the
provision
is
not
identical
to
that
in
subpart
2
(
which
provides
for
a
bump­
up
to
the
next
higher
classification),
we
think
its
effect
can
be
similar,
Under
section
179(
d),
EPA
has
authority
to
prescribe
reasonable
measures
for
an
area
that
fails
to
attain
by
its
attainment
date.
Thus,
if
at
the
time
a
specific
area
fails
to
attain
the
8­
hour
NAAQS
by
its
attainment
date
under
subpart
1,
EPA
could
prescribe
measures
 
including
those
prescribed
for
areas
classified
under
subpart
2
 
if
it
determines
they
are
reasonable.

Comment:
One
commenter
on
the
notice
that
reopened
the
comment
period
suggested
that
if
any
areas
are
under
subpart
1
they
should
be
treated
as
marginal
and
bumped
up
for
failure
to
attain
after
3
years.

Response:
Subpart
1
does
not
have
provisions
that
require
an
area
to
be
bumped
up
to
a
subpart
2
classification
if
it
fails
to
attain
by
its
attainment
date.
As
noted
above,
subpart
1
has
provisions
for
addressing
a
failure
to
attain.
Because
we
believe
that
areas
in
subpart
1
should
not
be
required
to
adopt
the
mandatory
measures
of
a
subpart
2
classification,
neither
our
proposed
or
final
rule
contains
provisions
for
the
kind
of
bump­
up
that
the
commenter
requested.

Comment:
Another
commenter
believed
using
an
area's
1­
hour
design
value
will
produce
inconsistent
results.
The
1­
hour
standard
is
so
different
than
the
8­
hour
standard
and
thus
an
area's
status
for
the
1­
hour
standard
is
not
indicative
of
the
area's
8­
hour
problem.
Where
an
area
with
a
sizable
8­
hour
problem
is
regulated
under
subpart
1,
EPA
does
not
want
to
use
its
discretion
to
subject
those
areas
to
Subpart
2,
but
instead,
EPA
prefers
to
exercise
its
discretion
to
define
required
controls
within
the
confines
of
Subpart
1.
Since
most
control
strategies
are
costly
to
industry
or
provide
a
measure
of
inconvenience
to
the
public,
Option
2
will
be
seen
as
arbitrary
if
it
results
in
EPA
requiring
a
program
in
one
area
and
not
another,
where
the
ozone
design
value
is
the
same
or
even
worse.
This
approach
will
undercut
local
support
for
the
program.
31
Response:
We
disagree
with
the
commenter
that
because
of
the
differences
between
the
1­
hour
and
8­
hour
standard
it
doesn't
make
sense,
as
a
first
step,
to
separate
the
areas
into
two
groups
based
on
their
1­
hour
design
value.
We
first
note
that
this
is
the
division
that
Congress
created
in
the
statute.
As
the
Supreme
Court
noted,
there
is
a
gap
in
the
statute
for
areas
that
are
violating
the
8­
hour
standard
but
with
a
1­
hour
design
value
less
than
"
the
approximation
of
the
old
standard
codified
by
Table
1."
To
determine
that
the
statute,
as
written
should
not
apply,
EPA
would
need
to
conclude
that
application
of
the
statute
would
create
an
"
absurd
result."
See
e.
g.,
Mova
Pharmaceutical
Corp.
v.
Shalala,
140
F.
3d
1060,
1068
(
D.
C.
Cir.
1998).
We
do
not
believe
that
it
does.
While
we
think
it
might
be
more
reasonable
to
allow
states
to
choose
the
mix
of
controls
necessary
to
attain
the
8­
hour
NAAQS,
we
cannot
conclude
broadly
that
it
is
absurd
for
an
area
to
plan
for
attainment
under
subpart
2.
We
have
proposed,
however,
(
and
will
address
in
Phase
2)
that
where
application
of
a
particular
subpart
2
requirement
in
a
specific
area
might
lead
to
an
absurd
result,
we
would
consider
whether
to
waive
or
modify
that
requirement
for
that
specific
area.
However,
we
also
believe
that
to
classify
areas
under
subpart
2
based
on
the
area's
1­
hour
design
value
would
produce
an
absurd
result.
We
agree
with
the
commenter
that
the
1­
hour
standard
is
different
than
the
8­
hour
standard.
Under
a
scheme
that
is
set
up
to
place
areas
into
classifications,
which
sets
control
requirements
and
attainment
dates
based
on
the
severity
of
the
problem
in
the
area,
it
would
be
absurd
to
apply
a
standard
(
the
1­
hour
standard)
that
would
not
result
in
a
division
of
areas
based
on
the
severity
of
their
problem
for
the
8­
hour
standard.
Since
the
classification
sets
the
control
requirements
and
attainment
dates
under
subpart
2,
those
classifications
should
be
based
on
an
area's
problem
for
the
8­
hour
standard.

However,
we
also
believe
that
where
there
is
a
gap
in
the
statute
and
EPA
must
determine
a
reasonable
interpretation
regarding
whether
to
classify
the
"
gap"
areas
under
subpart
1
or
subpart
2.
For
the
reasons
noted
in
detail
elsewhere
in
the
RTC
and
in
the
Preamble,
we
believe
it
is
reasonable
to
classify
all
of
the
gap
areas
under
subpart
1.
In
the
June
proposal,
we
proposed
that
certain
control
obligations
for
areas
classified
under
subpart
1
be
similar
to
the
requirements
that
would
apply
to
areas
with
a
similar
design
value
but
classified
under
subpart
2.
We
will
take
final
action
on
this
aspect
of
the
proposal
in
Phase
2.

Comment:
Several
commenters
felt
that
classifying
new
8­
hour
ozone
nonattainment
areas
under
subpart
1
is
simply
not
equitable
to
those
regions
that
have
reduced
emissions
through
both
State
and
regional
rules.
In
particular,
these
commenters
were
concerned
about
transported
emissions.
One
commenter
believes
that
by
using
Section
110
(
a)
(
2)
(
D)
of
the
CAA,
EPA
could
make
certain
that
SIPs
must
not
be
approved
until
the
downwind
areas
achieve
attainment.

Response:
We
believe
that
the
attainment
demonstrations
under
subparts
1
and
2
are
for
the
purpose
of
demonstrating
attainment
of
the
NAAQS
within
the
local
area
and
consideration
of
whether
the
demonstration
addresses
transported
emissions
is
not
appropriate
in
our
review.
However,
we
have
taken
action
under
section
110(
a)(
2)(
D)
 
the
NOx
SIP
Call
and
section
126
to
require
areas
to
address
transported
emissions
of
ozone
and
the
precursor
NOx.
In
addition,
we
recently
proposed
the
Interstate
Air
Quality
Rule
which
also
would
require
reductions
in
transported
emissions,
if
finalized.
32
Comment:
Several
commenters
believed
Option
2
fails
to
adequately
address
the
transport
of
air
pollution
across
state
boundaries.
The
failure
to
address
transport
will
result
in
northeast
states
bearing
a
disproportionate
burden
of
the
health
and
economic
impacts
of
air
pollution
and
make
it
much
more
difficult
for
these
states
to
meet
the
8­
hour
ozone
standard.
One
commenter
is
concerned
that
the
flexibility
that
is
proposed
to
be
granted
to
many
nonattainment
areas
would
delay
or
eliminate
the
requirement
for
timely
emission
reductions
in
many
areas,
including
those
that
are
upwind
of
the
commenter's
State.
To
insure
timely
emission
reductions,
the
commenter
believes
that
all
nonattainment
areas
should
be
classified
under
subpart
2
of
the
Clean
Air
Act.
Another
commenter
also
believed
Option
2
has
adverse
implications
for
transport.
In
particular,
Option
2
is
patently
unfair
to
the
states
in
the
Ozone
Transport
Region
(
OTR).
States
that
are
part
of
the
OTR
have
already
been
required
to
do
more
than
the
strict
Subpart
2
classification
requirements
for
many
areas.
Upwind
states
not
in
the
OTR
were
not
required
to
implement
these
reductions.
In
addition,
subpart
2
is
well
defined
and
could
be
the
only
tool
we
have
in
hand
to
address
residual
transport
after
the
NOx
SIP
Call.
Its
requirements
are
clear,
and
attainment
dates
will
be
known
as
soon
as
EPA
finalizes
its
implementation
rule.
Another
commenter
noted
that
the
mechanism
to
hold
states
accountable
for
emissions
is
to
require
states
that
contribute
to
downwind
attainment
or
maintenance
problems
to
comply
with
subpart
2.
The
use
of
subpart
1
for
some
areas
and
subpart
2
for
others
creates
a
disparity
between
new
and
existing
nonattainment
areas
and
ignores
the
intent
of
Congress
in
creating
subpart
2
­
increasingly
more
stringent
requirements
and
timeframes
depending
on
the
severity
of
the
ozone
problem
in
a
nonattainment
areas.
This
two­
tiered
approach
will
forego
application
of
effective,
proven
measures
that
existing
nonattainment
areas
within
the
OTC
already
have
in
place,
such
as
NOx
RACT.
The
commenter
supports
an
option
under
which
all
areas
are
classified
under
subpart
2
but
are
given
flexibility
to
substitute
some
required
measures
with
others
that
achieve
comparable
emission
reductions.

Response:
The
primary
purpose
of
the
implementation
requirements
in
subparts
1
and
2
is
to
address
localized
pollution
problems
within
a
nonattainment
area,
not
transported
emissions
between
two
or
more
areas.
Section
110(
a)(
2)(
D)
of
the
Act
requires
states
to
address
transported
emissions
and
EPA
has
required
most
states
in
the
eastern
portion
of
the
country
to
reduce
NOx
emissions
to
address
the
significant
transport
of
ozone
and
the
precursor
NOx
to
downwind
areas.
Additionally,
EPA
recently
proposed
the
Interstate
Air
Quality
Rule
that
would
result
in
significant
reductions
in
NOx
emissions.
69
FR
4566
(
January
30,
2004).
The
decision
of
whether
an
area
is
subject
to
subpart
1
or
subpart
2
should
have
limited
effect
on
addressing
the
transport
of
emissions,
such
as
emissions
from
the
midwest
or
southeast
to
the
northeast,
since
many
of
the
controls
mandated
by
subpart
2
(
e.
g.,
15%
VOC
reductions,
VOC
RACT,
I/
M)
provide
primarily
localized
benefits.

Regardless,
as
we
have
stated
elsewhere
in
the
RTC
and
in
the
Preamble,
all
areas
will
need
to
adopt
the
controls
necessary
to
attain
as
expeditiously
as
practicable,
whether
the
area
is
subject
to
subpart
1
or
subpart
2.
Thus,
we
believe
that
upwind
areas
will
need
to
achieve
the
same
level
of
reduction
 
i.
e.,
the
reductions
needed
to
attain
the
standard
in
the
local
area
 
regardless
of
which
subpart
applies.
Additionally,
we
note
that
in
the
June
2003
proposal,
EPA
33
recognized
that
the
subpart
1
RACT
requirement
is
expressly
not
limited
to
VOC
and
we
proposed
to
recognize
both
NOx
and
VOCs
as
precursors
to
ozone
and
to
require
NOx
and
VOC
RACT
under
subpart
1.
As
we
have
noted
elsewhere
in
the
RTC,
EPA
does
not
believe
it
has
the
flexibility
to
allow
areas
to
adopt
alternative
controls
in
place
of
those
mandated
by
subpart
2.

Comment:
Several
commenters
believe
none
of
the
options
 
including
the
alternatives
described
in
the
October
21,
2003
notice
that
reopened
the
comment
period
 
address
the
inequities
(
using
2002
data)
that
appear
for
St.
Louis
and
Kansas
City.
One
commenter
compared
the
St.
Louis
area,
which
would
be
classified
under
Subpart
2
as
marginal
with
1­
hour
and
8­
hour
design
values
of
0.123
and
0.090
parts
per
million,
with
the
Kansas
City
area,
which
would
be
subject
to
subpart
1,
but
has
1­
hour
and
8­
hour
design
values
of
0.115
and
0.085,
respectively.
Using
these
values,
Kansas
City
could
potentially
be
subject
to
stricter
requirements,
although
they
have
better
air
quality.
Unless
EPA
makes
the
classification
approach
more
equitable
under
this
option,
Option
1
appears
to
be
a
better
approach
for
classification
purposes.

Response:
We
believe
there
may
be
some
misunderstanding
on
the
part
of
the
commenter.
In
the
St.
Louis/
Kansas
City
example,
St.
Louis
would
be
subject
to
subpart
2
as
a
"
marginal"
area
and
could
be
bumped
up
to
a
higher
classification
if
it
fails
to
attain
in
three
years
whereas
Kansas
City
would
be
subject
to
the
more
flexible
subpart
1
planning
requirement.
While
it
is
true
that
marginal
areas
have
minimal
control
obligations,
in
our
June
proposal,
we
proposed
that
control
requirements
for
subpart
1
areas
that
demonstrate
they
will
attain
the
8­
hour
standard
within
the
same
time
period
(
three
years),
should
be
similar
to
the
marginal
requirements.
It
should
be
noted
that
Kansas
City
is
not
being
designated
nonattainment
using
2003
data.

Comment:
While
those
that
supported
Option
2
interpreted
the
requirements
in
subpart
2
as
"
rigid,"
those
that
supported
Option
1,
viewed
the
requirements
of
subpart
2
as
"
stronger
tools."
These
commenters
believe
that
subpart
1
provides
"
a
world
of
endlessly
extended
deadlines
for
reaching
attainment,
and
insufficient
control
measures
in
new
8­
hour
nonattainment
areas."
One
commenter
stated
that
the
control
obligations
for
areas
under
subpart
1
are
ineffective.
For
example,
EPA
has
proposed
an
option
that
will
allow
areas
to
ignore
the
RACT
requirement
that
is
mandated
under
Subpart
2,
substituting
a
requirement
that
areas
simply
demonstrate
that
they
will
reach
attainment
of
the
8­
hour
standards
as
"
expeditiously
as
practicable."
Another
commenter
stated
that
all
8­
hour
ozone
nonattainment
areas
should
be
classified
under
subpart
2
because
it
provides
the
additional
air
pollution
control
tools
that
are
necessary
to
address
problems
faced
by
areas
with
persistent
ozone
problems.
More
aggressive
strategies
are
needed,
necessarily
accompanied
by
the
authority
and
mandates
associated
with
subpart
2.
Subpart
1
strategies
and
SIP
requirements
are
ill­
suited
for
areas
with
complex
and
difficult
ozone
problems
and
thus
subpart
1
classification
is
not
appropriate.

Response:
Subpart
1
and
subpart
2
both
require
attainment
as
expeditious
as
practicable.
Therefore,
regardless
of
whether
an
area
is
covered
under
subpart
1
or
subpart
2,
the
law
requires
it
to
attain
by
the
same
amount
of
time.
The
fact
that
subpart
2
requires
certain
specific
mandated
control
measures
is
no
guarantee
that
an
area
will
attain
more
expeditiously
than
if
the
specific
34
control
measures
were
not
required.
Neither
subpart
1
nor
subpart
2
provides
for
"
endlessly
extended
attainment
deadlines."
As
an
initial
matter,
EPA
may
not
approve
an
attainment
demonstration
under
either
subpart
unless
it
demonstrates
attainment
as
expeditiously
as
practicable,
but
no
later
than
certain
outside
attainment
dates.
Under
both
subparts,
if
an
area
fails
to
attain
by
its
approved
attainment
date,
then
it
must
submit
a
new
SIP;
under
subpart
2,
the
area
would
be
bumped­
up
to
a
higher
classification
and
the
SIP
must
be
consistent
with
those
obligations.
Under
subpart
1,
EPA
may
prescribe
reasonable
measures
that
the
state
must
adopt.

Even
if
the
commenter
is
correct
that
subpart
2
is
better
suited
to
deal
with
complex
ozone
problems,
we
believe
the
areas
classified
under
subpart
1
generally
do
not
have
complex
ozone
problems.
Of
the
64
hypothetical
nonattainment
areas
that
would
be
covered
under
subpart
1,
47
have
8­
hour
design
values
that
would
have
placed
them
in
the
marginal
classification
under
Option
1,
and
17
have
8­
hour
design
values
that
would
have
placed
them
in
the
moderate
classification
under
Option
1.
None
have
8­
hour
design
values
that
would
have
placed
them
in
any
higher
classification.
Additionally,
most
of
these
areas
have
not
historically
had
excessive
levels
of
ozone
pollution
and
have
not
had
the
recalcitrant
air
quality
problems
faced
by
the
areas
subject
to
subpart
2.
We
will
address
RACT
requirements
in
Phase
2.

Comment:
Due
to
the
lack
of
specificity
in
subpart
1,
EPA
may
jeopardize
its
efforts
to
bring
areas
placed
under
subpart
1
into
attainment
with
the
8­
hour
ozone
standard.
Some
states
cannot
be
more
stringent
than
what
the
federal
law
requires.
Therefore,
EPA
may
find
itself
requiring
an
area,
by
policy,
to
take
action
to
come
into
attainment
and
states
unable
to
adopt
requirements
not
specifically
mandated
by
federal
law.

Response:
The
Clean
Air
Act
requires
all
areas
to
attain
the
standard
as
expeditiously
as
practicable
and
thus
to
adopt
any
control
measures
necessary
to
do
so.
Thus,
the
adoption
of
measures
necessary
to
attain
the
standard
would
not
be
construed
as
adoption
of
measures
more
stringent
than
required
by
federal
law.

Commenter:
One
commenter
specifically
pointed
out
that
NSR
is
weaker
under
subpart
1.

Response:
The
fact
that
NSR
under
subpart
1
does
not
require
as
many
emission
offsets
should
not
affect
the
ability
of
the
nonattainment
area
to
attain
as
expeditiously
as
practicable.
New
source
review
is
primarily
a
program
to
ensure
that
industrial
source
growth
will
not
increase
emissions.
To
attain
the
standard,
areas
will
need
to
significantly
reduce
existing
emissions
through
control
of
existing
sources.

Comment:
One
commenter
indicated
they
could
not
support
an
approach
that
classifies
some
areas
under
subpart
1
because
it
will
leave
those
areas
essentially
unaccountable
for
addressing
their
own
ozone
nonattainment
problem
and
transport
in
a
timely
manner
and
it
requires
no
particular
measures
to
address
the
problem
and
no
milestones
by
which
the
area
must
show
progress
in
addressing
the
problem.
4Qualitative
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.

35
Response:
We
disagree
with
the
commenter
that
classification
under
subpart
1
will
leave
areas
unaccountable
for
addressing
their
own
nonattainment
problem.
Under
subpart
1,
an
area
must
submit
an
attainment
demonstration
demonstrating
attainment
as
expeditiously
as
practicable.
The
attainment
date
can
be
no
later
than
five
years
following
designation
unless
the
state
demonstrates
that
the
severity
of
air
pollution
and
the
availability
and
feasibility
of
controls
warrant
up
to
an
additional
five
years.
In
addition,
the
State
must
demonstrate
that
the
area
has
adopted
all
reasonably
available
control
measures
and
that
it
is
making
reasonable
further
progress.
In
the
June
proposal,
EPA
proposed
how
to
interpret
some
of
those
requirements;
we
will
take
final
action
on
that
aspect
of
the
proposal
in
Phase
2.
We
do
note
that
there
could
be
areas
classified
under
subpart
1
that
have
a
nonattainment
problem
that
is
primarily
due
to
transported
air
pollution.
While
these
areas
may
be
able
to
justify
a
longer
attainment
date
based
on
when
upwind
control
measures
will
take
effect,
we
do
not
believe
that
this
leaves
the
area
unaccountable
for
addressing
its
localized
contribution.
In
addition,
to
the
extent
emissions
from
subpart
1
areas
significantly
impact
attainment
in
downwind
areas,
we
believe
the
primary
mechanism
to
address
that
contribution
is
through
section
110(
a)(
2)(
D)
not
the
control
programs
in
subparts
1
and
2.

Comment:
Another
commenter
urged
that
the
classification
rule
should
not
place
a
large
number
of
areas
into
lower
classifications
than
under
the
1­
hour
standard.
Due
to
EPA's'
familiarity
with
projections
of
8­
hour
ozone
levels
around
the
country,
EPA
is
in
a
better
position
than
a
local
district
to
develop
a
specific
system
to
accomplish
this
goal.

Response:
The
final
classification
scheme
does
take
into
account
the
numbers
of
areas
that
are
expected
to
attain
the
ozone
standard
by
their
attainment
date
with
and
without
additional
national,
regional
and
local
controls.
As
discussed
in
the
preamble,
some
classification
schemes
would
have
placed
more
areas
into
higher
classifications,
and
some
would
have
placed
more
areas
into
lower
classifications.
We
believe
that
the
classification
scheme
reflected
in
the
final
rule
represents
a
reasonable
choice.
Under
this
scheme,
most
areas
are
projected
to
come
into
attainment
without
additional
local
controls
by
their
maximum
attainment
date.
4
Comment:
One
commenter
suggested
that
EPA
offers
more
loopholes
for
areas
with
air
quality
violating
the
new
standard
because
areas
with
average
smog
concentrations
high
enough
to
warrant
moderate
or
greater
8­
hour
classifications,
but
not
currently
violating
the
less
rigorous
1­
hour
standard
would
be
able
to
avoid
Congressionally­
mandated
controls
altogether.
Some
areas
5Qualitative
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.

36
with
air
quality
at
levels
just
violating
the
new
standard
would
be
given
an
additional
3­
year
hall
pass,
with
the
possible
result
that
they
could
avoid
having
to
meet
the
standard
until
2019.

Response:
Modeled
projections
show
that
many
subpart
1
areas
would
attain
within
3
years
with
no
additional
local
controls.
5
We
do
not
see
how
the
commenter
arrives
at
an
attainment
date
for
the
8­
hour
standard
of
2019
for
any
subpart
1
area.
The
initial
maximum
attainment
date
for
a
subpart
1
area
would
be
2009
though
the
area
could
receive
until
2014
if
it
could
demonstrate
more
time
was
needed
due
to
the
severity
of
its
air
pollution
and
the
availability
and
flexibility
of
controls.
Assuming
the
area
received
an
attainment
date
of
2014
and
failed
to
attain,
it
might
be
eligible
for
two
1­
year
extensions
to
2016.
As
under
subpart
2,
all
areas
must
attain
as
expeditiously
as
practicable.
We
do
not
believe
the
imposition
of
Congressionally­
mandated
controls
will
necessarily
affect
an
area's
ability
to
attain.
However,
we
did
propose
that
certain
subpart
1
areas
be
subject
to
requirements
similar
to
those
under
subpart
2.
We
will
take
final
action
on
this
aspect
of
the
proposal
in
Phase
2.

Comment:
One
commenter
stated
that
allowing
two
different
classification
schemes
for
the
same
pollutant
with
differing
requirements
and
flexibilities
creates
barriers
for
subpart
2
areas
to
attain
in
a
timely
manner
because
it
allows
"
upwind"
areas
subject
to
subpart
1
to
have
more
time
to
achieve
reductions
than
downwind
areas
subject
to
the
stricter
requirements
of
subpart
2.

Response:
Ozone
transport
is
a
complex
phenomenon
with
many
areas
being
both
upwind
and
downwind
areas.
Thus,
there
is
no
easy
answer
under
either
subpart
1
or
subpart
2
to
ensure
that
upwind
emission
reductions
are
achieved
consistent
with
a
downwind
area's
attainment
date.
In
general,
we
believe
the
long
range
transport
of
emissions
has
been
addressed
by
the
NOx
transport
rules
issued
pursuant
to
section
110
and
126
and
may
be
further
addressed
pursuant
to
the
proposed
Interstate
Air
Quality
Rule
69
FR
4566
(
January
30,
2004).
Local
control
measures
will
not
significantly
address
these
longer­
range
transported
emissions.
While
there
may
be
some
relatively
localized
transport
from
other
areas
that
will
be
addressed
from
local
controls,
we
do
not
believe
an
area's
classification
under
subpart
1
or
subpart
2
will
have
a
significant
effect
on
when
and
how
those
emissions
are
addressed.
On
the
one
hand,
subpart
1
provides
slightly
more
flexibility
in
establishing
attainment
dates;
however,
the
maximum
outside
attainment
date
is
significantly
earlier
(
10
years
following
designation)
that
for
subpart
2
areas
(
20
years
following
designations).
As
we
have
noted
elsewhere
in
the
RTC
and
in
the
preamble,
because
both
subparts
require
attainment
as
expeditiously
as
practicable
and
also
require
RACM
and
RFP,
we
believe
that
inclusion
of
an
area
under
subpart
1
or
subpart
2
should
not
have
a
significant
effect
37
on
the
area's
attainment
date
or
level
of
emission
reductions
although
it
may
have
an
effect
on
the
controls
it
adopts
to
reach
those
goals.
We
further
note
that
even
for
the
1­
hour
standard
where
most
areas
were
subject
to
subpart
2,
a
number
of
areas
had
difficulty
attaining
the
1­
hour
standard
by
the
area's
attainment
date
due
to
transported
emissions.
Thus,
we
do
not
believe
that
the
classification
system
will
significantly
benefit
or
significantly
harm
a
downwind
area's
ability
to
attain.
We
will
continue
to
work
with
areas
to
ensure
that
transported
emissions
are
addressed
as
effectively
and
as
quickly
as
practicable
so
that
all
areas
may
attain
the
standard
expeditiously.

Comment:
One
commenter
also
claimed
that
the
potentially
significant
delays
under
the
Early
Action
Compacts
(
EACs)
have
not
been
analyzed
and
concluded
that
an
analysis
would
show
that
the
Option
2
could
not
meet
the
rule
objectives.

Response:
We
disagree
that
there
would
be
significant
delays
under
the
EAC
program.
On
the
contrary,
to
remain
eligible,
areas
must
actually
achieve
all
emission
reductions
needed
for
attainment
by
the
end
of
2005,
much
earlier
than
if
they
developed
an
implemented
an
attainment
plan
under
the
final
8­
hour
rule.

Comment:
One
commenter
said
that
in
the
October
2003
notice
reopening
the
comment
period
EPA
mischaracterized
their
comments
by
suggesting
that
they
offered
a
variant
or
alternative
to
option
2.
They
claimed
that
EPA
mischaracterized
and
misrepresented
their
comments
by
placing
them
in
a
context
that
implies
assent
with
EPA's
classification
option
2.
The
commenter
opposed
option
2
and
the
use
of
subpart
1
for
classifying
areas.

Response:
We
acknowledge
and
regret
the
error;
it
was
an
unintentional
mistake.

Comment:
One
commenter
stated
that
the
labeling
of
nonattainment
severity
under
subpart
2
is
an
important
and
useful
communication
tool.

Response:
While
some
may
believe
that
the
classification
label
of
a
nonattainment
area
is
a
useful
tool,
we
do
not
believe
that
outweighs
our
considerations
in
determining
to
classify
the
gap
areas
under
subpart
1.

Comment:
One
commenter
stated
that
Congress
created
subpart
2
in
response
to
past
failures
to
attain
the
ozone
standard
in
the
1980s
and
prescribed
control
measures
and
mechanisms
to
ensure
that
emissions
reductions
occurred
in
a
timely
fashion.
This
subpart
has
provided
significant
progress
toward
attaining
the
ozone
standard.
One
commenter
noted
that
relying
on
vague
pre­
1990
subpart
1
provisions
does
not
seem
prudent
given
they
were
unsuccessful
in
bringing
many
of
the
same
proposed
8­
hour
ozone
nonattainment
areas
into
attainment
with
the
1­
hour
standard.

Another
commenter
noted
that
Option
2,
EPA
would
potentially
allow
areas
with
average
smog
concentrations
high
enough
to
warrant
moderate
or
serious
8­
hour
classification
to
avoid
38
that
classification
scheme
altogether,
and
also
to
avoid
rigorous
Congressionally
mandated
control
measures.

Response:
We
disagree
with
the
commenters
on
these
points.
We
believe
it
is
appropriate
to
place
under
subpart
1
these
8­
hour
ozone
nonattainment
areas
in
the
"
gap"
identified
by
the
Supreme
Court­­
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
transport
of
ozone
and
its
precursors
has
significantly
advanced.
In
addition,
subpart
2
was
developed
at
the
time
that
the
1­
hour
NAAQS
was
the
NAAQS
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
NAAQS
is
different
in
many
ways
from
the
1­
hour
NAAQS.
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
few,
if
any,
controls
for
existing
sources
were
required)
would
have
to
employ
additional
local
controls
to
meet
the
1­
hour
ozone
NAAQS
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
Call,
63
FR
53756).
Today,
regional
modeling
by
EPA
indicates
that
the
majority
of
potential
8­
hour
nonattainment
areas
that
fall
into
the
gap
will
attain
the
8­
hour
NAAQS
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.
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.)
If
these
areas
were
to
be
classified
as
moderate,
they
would
be
required
to
implement
statutorily
specified
controls
for
moderate
areas.
We
believe
it
is
reasonable
to
adopt
an
approach
that
would
not
mandate
new
local
controls
in
areas
projected
to
meet
the
NAAQS
within
3
years
through
emission
reductions
required
by
existing
programs.

Comment:
One
commenter
recommended
that
we
allow
13
years
after
classification
for
a
marginal
area
attainment
date;
this
allows
for
10
years
for
Clear
Skies
controls
to
work
and
3
years
to
determine
compliance
with
the
air
quality
standard.
This
comment
was
based
the
commenter's
calculation
of
attainment
dates
under
the
1990
CAA
running
for
a
number
of
years
from
the
date
of
revision
of
the
ozone
standard
in
1979.

Response:
We
do
not
believe
any
reading
of
the
Act
or
the
Supreme
Court
ruling
would
support
such
long
periods
for
attainment.
If
an
area
is
subject
to
subpart
2,
Table
1
of
Section
181
of
the
39
Act
clearly
provides
certain
maximum
periods
of
attainment
from
a
starting
point.
The
starting
point
chosen
 
the
effective
date
of
a
nonattainment
designation
and
classification
 
is
a
reasonable
stating
point
as
explained
in
the
final
rule.
We
also
note
that
the
Clean
Air
Act
requires
attainment
as
expeditiously
as
practicable
but
no
later
than
the
maximum
periods
prescribed
in
the
law.
Finally,
we
recognize
that
Congress
has
not
enacted
Clear
Skies.
It
would
be
in
appropriate
to
base
this
rule
on
actions
being
considered
by
Congress
but
not
enacted
into
law.

II.
COMMENTS
CONCERNING
TABLE
1
AND
EPA'S
TRANSLATION
TO
8­
HOUR
VALUES:

Comment:
A
number
of
commenters
(
whether
they
supported
Option
1
or
Option
2)
supported
our
proposed
translation
of
Table
1
of
section
181
from
1­
hour
to
8­
hour
design
values.
One
commenter
noted
that
EPA
properly
resolved
the
imperfect
fit
of
the
Subpart
2,
Table
1
classification
breakpoints
by
translating
the
classification
thresholds
in
Table
1
of
section
181
from
1­
hour
values
to
8­
hour
values.
Setting
the
8­
hour
values
for
each
classification
at
the
same
percentages
above
the
effective
standard
that
Congress
used
in
Table
1
"
is
most
consistent
with
the
apparent
intent
of
Congress
in
establishing
the
thresholds
in
the
classification
system
in
section
181."
Another
commenter
agrees
with
using
a
classification
system
based
on
a
proportional
relationship
of
8­
hour
and
1­
hour
design
values.

Response:
We
agree
with
these
commenters.

Comment:
A
number
of
commenters
urged
EPA
to
use
a
1­
hour
design
value
of
0.125
ppm
as
the
basis
for
determining
whether
an
area
should
be
subject
to
subpart
1
or
subpart
2
if
EPA
adopts
Option
2.
The
commenters
stated
that
using
the
rounding
convention,
0.125
ppm
is
the
level
at
which
an
area
is
determined
to
be
violating
the
1­
hour
ozone
NAAQS.
One
commenter
argued
that
using
a
design
value
of
0.121
conflicts
with
EPA's
guidance
for
redesignating
areas
to
attainment
on
the
basis
that
monitored
values
less
than
or
equal
to
0.124
are
rounded
to
0.12,
and
thus
show
attainment.
The
commenter
recommended
that
we
use
that
rounding
convention
when
determining
whether
subpart
1
or
2
will
apply
when
classifying
areas
for
the
8­
hour
standard.
Another
commenter
called
EPA's
use
of
0.121
ppm
a
"
strange
arithmetic
quirk"
because
an
area
not
violating
the
standard
but
with
a
design
value
of
0.121
to
0.124
ppm
would
be
treated
differently
from
an
area
also
not
violating
the
standard
with
a
design
value
of
0.120
ppm.

Other
commenters
suggested
a
slight
variation
of
this
idea
 
that
EPA
should
look
at
expected
exceedances
of
greater
than
1
rather
than
putting
all
areas
with
a
design
value
of
0.121
ppm
or
more
into
subpart
2.
However,
these
commenters
appeared
to
be
using
the
expected
exceedance
rate
and
0.125
ppm
interchangeably,
by
later
saying
that
EPA
should
change
the
rule
to
0.125
ppm,
which
is
the
lowest
concentration
that
is
considered
to
exceed
the
standard.
They
claimed
that
to
include
concentrations
less
than
this
penalizes
areas
with
attaining
values.
EPA's
40
method
could
put
counties
that
are
attaining
the
one­
hour
standard
(
with
two
exceedances
in
a
three­
year
period)
into
subpart
2.

Response:
EPA's
use
of
0.121
ppm
is
based
on
the
specific
language
in
Table
1
of
section
181
and
the
Supreme
Court's
interpretation
of
this
language.
The
Supreme
Court
determined
that
"
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."
Whitman,
531
U.
S.
at
483.
The
"
approximation
of
the
old
standard
codified
by
Table
1"
is
0.121
ppm.
Thus,
the
Court
concluded
that
there
is
not
a
gap
in
the
statute
with
respect
to
areas
violating
the
new
standard,
but
with
a
1­
hour
design
value
at
or
above
0.121
ppm.
Since
there
is
not
a
"
gap"
in
the
statute
with
respect
to
areas
with
a
1­
hour
design
value
of
at
least
0.121
ppm
but
no
more
than
0.124
ppm,
we
do
not
believe
we
have
discretion
to
classify
such
areas
under
subpart
1.
Similarly,
we
do
not
believe
we
have
authority
to
classify
areas
based
on
their
expected
exceedance
rate
for
the
1­
hour
standard.

Comment:
Several
commenters
supported
EPA's
proposal
to
consider
0.085
ppm
the
low
end
of
the
8­
hour
marginal
classification,
due
to
rounding.
The
8­
hour
ozone
NAAQS
is
0.08
ppm,
and
not
0.080
ppm.
Because
the
standard
has
two
significant
digits
and
not
three,
any
number
less
than
0.085
is
properly
rounded
to
0.08
ppm,
which
is
attainment
of
the
standard.
Because
Table
1
will
apply
only
to
nonattainment
areas,
the
classifications
should
start
with
0.085
ppm.

Response:
We
have
adopted
this
approach
in
the
final
rule.
We
believe
it
is
consistent
with
the
form
of
the
8­
hour
standard,
which
is
a
concentration­
based
standard.
Only
an
area
with
a
design
value
of
0.085
ppm
or
greater
can
be
nonattainment
for
the
8­
hour
standard.
Thus,
we
note
that
the
use
of
0.85
ppm
rather
0.81
ppm
will
have
no
practical
effect.

Comment:
One
commenter
stated
that
EPA
has
improperly
indicated
that
a
number
of
areas
will
be
classified
as
"
Marginal."
EPA's
final
rule
promulgating
the
8­
hour
NAAQS
rule
indicates
that
the
8­
hour
standard
will
be
rounded
up
to
0.085
ppm.
Based
upon
this
definition
of
the
standard,
it
would
follow
that
areas
with
annual
average
highest
8­
hour
ozone
concentrations
of
0.085
or
less
already
are
attaining
the
8­
hour
ozone
standard.
EPA's
proposal,
however,
treats
such
areas
as
being
in
"
marginal"
nonattainment,
with
the
result
that
economic
sanctions
could
be
imposed
in
these
areas
if
they
experience
continuing
levels
of
ozone
in
this
range.
These
areas
also
would
be
subject
to
economic
sanctions,
such
as
NSR
restrictions.
For
these
reasons,
EPA's
proposed
nonattainment
designation
of
these
"
marginal"
areas
is
improper
and
inconsistent
with
existing
EPA
regulation.

Response:
The
commenter
misunderstands
the
rounding
convention.
The
standard
itself
is
not
rounded
up.
The
8­
hour
ozone
NAAQS
is
0.08
ppm,
and
not
0.080
ppm.
(
See
40
CFR
50.10
(
b)
and
Appendix
I).
Because
the
standard
has
two
significant
digits
and
not
three,
any
number
less
than
0.085
is
properly
rounded
to
0.08
ppm,
which
is
attainment
of
the
standard.
Thus,
any
areas
with
an
8­
hour
design
value
less
than
0.085
ppm
will
not
be
designated
nonattainment.
Because
Table
1
only
applies
to
areas
designated
nonattainment,
even
if
EPA
were
to
use
0.081
ppm
as
the
41
starting
point
for
the
marginal
classification,
the
table
would
apply
only
to
areas
with
a
design
value
of
0.085
ppm
or
higher
since
those
are
the
only
areas
that
would
be
designated
nonattainment.

Comment:
One
commenter
stated
that
if
Option
1
is
chosen,
EPA
should
provide
the
scientific
rationale
on
how
Table
1
of
Subpart
2
is
translated
from
a
1­
hour
ozone
standard
to
an
8­
hour
ozone
standard
and
the
appropriateness
of
the
comparison
of
the
values.
Also,
when
this
approach
was
first
discussed,
EPA
had
the
"
marginal"
bottom
threshold
number
for
the
translated
8­
hour
ozone
standard
set
at
0.081
parts
per
million
(
ppm).
EPA
has
since
revised
this
number
to
a
0.085
ppm.
However,
the
other
values
in
the
table
have
remained
the
same
and
have
not
increased
accordingly.
Further
clarification
is
needed
to
better
understand
EPA's
rationale
when
translating
these
values.

A
commenter
noted
that
under
Option
2,
most
subpart
2
areas
would
be
classified
as
marginal
or
moderate.
The
commenter
requested
that
EPA
provide
the
scientific
basis
and
analysis
for
this
scheme.
As
it
did
during
the
development
of
the
1990
CAA
Amendments,
they
believe
that
EPA
should
study
the
ozone
problems
within
the
8­
hour
nonattainment
areas
to
assess
what
types
of
controls
could
produce
attainment,
and
from
there
assess
reasonable
subpart
2
classifications.
Basing
classifications
on
a
curve,
on
percentages
above
the
standard,
or
on
the
1­
hour
standard
does
little
to
ensure
that
the
most
appropriate
classification
scheme
is
in
place
to
address
ozone
nonattainment
problems.

Response:
The
June
2,
2003
proposal
described
the
rationale
for
translating
Table
1
of
section
181
from
1­
hour
to
8­
hour
values.
This
translation
was
proposed
for
classifications
for
areas
covered
under
subpart
2,
regardless
of
whether
classification
Option
1
or
Option
2
were
chosen.
We
proposed
to
adapt
the
subpart
2
classification
scheme,
which
specified
1­
hour
design
values,
by
adopting
by
regulation
a
modified
version
of
the
subpart
2
classification
table
that
contains
8­
hour
design
value
thresholds
for
each
classification.
We
proposed
to
translate
the
classification
thresholds
in
Table
1
of
section
181
from
1­
hour
values
to
8­
hour
values
in
the
following
manner:
Determine
the
percentage
by
which
each
classification
threshold
in
Table
1
of
section
181
exceeds
the
1­
hour
ozone
standard
and
set
the
8­
hour
threshold
value
at
the
same
percentage
above
the
8­
hour
ozone
standard.
For
example,
the
threshold
separating
marginal
and
moderate
areas
in
Table
1
is
15
percent
above
the
1­
hour
standard,
so
we
would
set
the
8­
hour
moderate
area
lower
threshold
value
at
15
percent
above
the
8­
hour
standard.
68
FR
32812
(
June
2,
2003).

An
examination
of
the
percentages
derived
indicated
that
Congress
set
the
classification
thresholds
at
certain
percentages
or
fractions
above
the
level
of
the
standard.
These
are
the
percentages
above
the
standard
that
we
used
and
applied
to
the
level
of
the
8­
hour
standard
to
yield
new
threshold
levels
for
the
8­
hour
standard.
Table
2
of
the
proposed
rulemaking
depicts
how
the
translation
would
be
done
and
the
results.
68
FR
32812
(
June
2,
2003).
6Additional
Options
Considered
for
"
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard."
U.
S.
Environmental
Protection
Agency,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
NC.
March
2003.

42
We
considered
other
options
for
the
translation
of
the
classification
table
in
the
CAA.
These
options
are
discussed
in
a
separate
document
available
in
the
docket.
6
These
other
possible
ways
of
translating
the
classification
table,
in
our
opinion,
do
not
have
the
same
degree
of
consonance
with
the
intent
of
Congress
when
it
enacted
subpart
2
as
those
we
proposed,
so
we
did
not
propose
them.
We
believe
the
use
of
percentage
ranges
above
the
standard
concentration
for
the
classification
thresholds
is
an
appropriate
manner
of
classifying
areas
based
on
the
relative
magnitude
of
their
problem.
We
chose
those
percentages
for
the
8­
hour
standard
that
Congress
chose
for
the
1­
hour
standard,
since
it
would
result
in
the
same
relative
degree
of
problem
magnitude
for
each
classification
that
Congress
selected
in
1990.

As
we
have
noted
elsewhere
in
the
Preamble
and
the
RTC,
we
believe
this
scheme
will
place
most
areas
in
a
classification
that
reflects
the
level
of
control
and
time
needed
to
attain.

Comment:
One
commenter
on
the
notice
that
reopened
the
comment
period
recommended
that
only
areas
with
8­
hour
design
values
between
0.080
to
0.082
could
possibly
be
classified
subpart
1.
This
commenter
cited
the
1992
General
Preamble
for
our
interpretation
that
ozone
nonattainment
areas
should
be
covered
by
subpart
2.
The
commenter
noted
that
the
Supreme
Court's
identification
of
the
"
gap"
cannot
be
used
to
avoid
subpart
2
requirements
as
EPA
has
done
and
noted
that
the
rule
must
focus
on
attainment
as
expeditiously
as
practicable.

Response:
Areas
with
8­
hour
design
values
of
0.080
to
0.082
would
not
be
nonattainment
under
the
8­
hour
standard
under
EPA's
rounding
convention.
The
interpretation
in
the
1992
General
Preamble
was
based
on
the
1­
hour
standard
and
how
the
statute
applied
to
that
standard.
First,
because
the
1­
hour
standard
is
exceedance­
based,
areas
could
have
a
design
value
less
than
0.125
ppm
and
be
designated
nonattainment.
Second,
some
areas
were
designated
nonattainment
prior
to
enactment
of
the
1990
Amendments
and
the
Amendments
retained
those
designations
after
enactment,
and,
therefore,
could
have
had
1­
hour
design
values
less
than
0.121
ppm.
For
the
1­
hour
standard,
any
area
designated
nonattainment
for
the
1­
hour
standard
and
with
a
design
value
greater
than
0.121
ppm
would
be
classified
under
subpart
2.
Similarly,
for
the
8­
hour
standard,
any
area
designated
nonattainment
area
for
the
8­
hour
standard
and
with
a
1­
hour
ozone
design
value
equal
or
greater
than
0.121
ppm
will
be
classified
under
subpart
2.

III.
COMMENTS
CLAIMING
BOTH
CLASSIFICATION
OPTIONS
ARE
FLAWED
OR
RECOMMENDED
ALTERNATIVE
APPROACHES
Comment:
Several
commenters
believed
that
EPA
should
rely
on
existing
designations
for
the
1­
hour
ozone
standard
as
promulgated
by
federal
rule
to
determine
whether
to
classify
8­
hour
nonattainment
areas
under
subparts
1
or
2
of
the
Clean
Air
Act.
43
Response:
We
believe
these
commenters
are
suggesting
that
only
areas
designated
nonattainment
for
the
1­
hour
NAAQS
should
be
classified
under
subpart
2.
As
provided
elsewhere
in
the
RTC
and
the
Preamble,
we
do
not
believe
such
an
approach
is
consistent
with
the
Act.
The
Supreme
Court
found
a
"
gap"
in
the
statute
only
to
the
extent
that
an
area
that
is
designated
nonattainment
for
the
8­
hour
standard
has
a
1­
hour
design
value
less
than
the
lowest
design
value
in
Table
1
in
section
181
 
0.121
ppm.
Section
181
requires
that
classifications
be
made
based
on
an
area's
current
air
quality.

Comment:
Several
commenters
that
opposed
Option
1
suggested
that
if
the
Supreme
Court
had
intended
to
mandate
exclusive
implementation
of
the
8­
hour
NAAQS
under
Subpart
2,
then
the
Court
could
have
simply
affirmed
the
decision
of
the
D.
C.
Circuit
Court
of
Appeals.
Instead,
the
Supreme
Court
rejected
the
Court
of
Appeals
approach.
The
commenter
referenced
language
in
the
Court's
decision
that
pointed
out
various
ambiguities
between
Subpart
2
and
the
8­
hour
NAAQS.
The
Court
noted
that
these
"
gaps
in
Subpart
2'
s
scheme
prevent
us
from
concluding
that
Congress
clearly
intended
Subpart
2
to
be
the
exclusive,
permanent
means
of
enforcing
a
revised
ozone
standard
in
nonattainment
areas."
The
commenters
concluded
that
they
"
cannot
understand
why
EPA
is
proposing
the
very
option
rejected
by
Court.
It
is
clearly
inconsistent
with
both
the
structure
of
Subpart
2
of
the
Clean
Air
Act
and
the
decision
of
the
U.
S.
Supreme
Court."

Response:
While
we
are
not
adopting
Option
1,
we
disagree
with
the
commenter
that
it
is
inconsistent
with
the
Court's
opinion.
The
Supreme
Court
rejected
the
Court
of
Appeals
conclusion
that
subpart
2
was
clear
on
its
face
that
it
governed
implementation
of
the
revised
NAAQS.
The
Supreme
Court
held
that
certain
areas
designated
nonattainment
for
the
8­
hour
NAAQS
were
clearly
covered
by
subpart
2
(
those
with
a
1­
hour
design
value
at
or
above
0.121
ppm),
but
found
that
the
statute
was
ambiguous
as
to
areas
designated
nonattainment
for
the
8­
hour
NAAQS,
but
with
a
1­
hour
design
value
less
than
0.121
ppm.
Where
a
statute
is
ambiguous,
it
is
left
to
the
Agency
to
develop
a
reasonable
interpretation
of
the
statute.
The
Supreme
Court
remanded
the
implementation
policy
to
EPA
to
develop
a
reasonable
approach
for
reconciling
the
applicability
of
subparts
1
and
2
to
areas
that
fall
into
the
gap.
The
language
referred
to
by
the
commenters
was
language
that
the
Court
relied
on
for
rejecting
the
Court
of
Appeals
conclusion
that
subpart
2
must
apply
for
purposes
of
implementing
the
revised
NAAQS.
Since
EPA
had
not
adopted
an
implementation
approach
that
would
have
required
full
implementation
under
subpart
2,
the
Court
did
not
address
whether
such
an
approach
would
be
a
reasonable
interpretation
of
the
Act.
EPA
considered
the
inconsistencies
cited
by
the
Court
in
developing
the
implementation
options
and
believes
that
both
options
set
forth
in
the
proposal
were
based
on
reasonable
interpretations
of
the
statute.
For
the
reasons
stated
in
the
preamble,
EPA
believes
Option
2
is
the
better
approach.

Comment:
Several
commenters
believed
that
Option
2
is
better
supported
by
the
Whitman
decision,
but
is
flawed
to
the
extent
that
it
would
place
some
areas
under
the
classification
provisions
of
subpart
2
and
thus
would
require
EPA
to
"
rewrite"
parts
of
the
statutory
table
in
section
181.
Specifically,
the
proposed
rule
would
re­
write
the
statute
by
substituting
the
design
44
values
in
Subpart
2
with
values
for
the
8­
hour
NAAQS.
These
commenters
interpret
the
Supreme
Court
decision
as
not
requiring
EPA
to
classify
any
areas
designated
nonattainment
for
the
8­
hour
NAAQS
under
Subpart
2;
rather,
they
claim
that
the
Court
held
that
EPA
cannot
ignore
"
textually
applicable"
provisions
of
subpart
2,
although
they
note
that
the
Court
does
not
specify
what
these
"
textually
applicable"
provisions
are.
Specifically,
the
commenters
noted
that
the
classification
system
in
subpart
2
with
its
plain
statutory
language
of
design
values
and
attendant
classifications
and
time
frames
established
for
a
1­
hour
NAAQS
standard
does
not
apply
to
an
8­
hour
NAAQS
standard.
The
commenters
also
suggested
that
the
"
textually
applicable"
provisions
of
Subpart
2
include
provisions
that,
by
the
plain
statutory
language,
are
not
limited
to
a
1­
hour
NAAQS,
and
hence,
also
can
be
applied
to
an
8­
hour
NAAQS,
including
ozone
transport
under
Section
184
and
measures
that
have
already
been
implemented
under
Subpart
2
in
certain
1­
hour
NAAQS
nonattainment
areas,
which
are
retained
under
EPA's
traditional
anti­
backsliding
approach.
In
addition,
the
commenter
claims
that
Option
2
does
not
make
good
policy
sense
as
it
would
subject
areas
with
similar
air
quality
to
different
implementation
approaches
and
that
such
a
result
"
is
 
by
definition
 
`
arbitrary
and
capricious.'"

Response:
We
disagree
with
the
interpretation
of
the
Supreme
Court's
opinion
articulated
these
commenters.
The
implementation
policy
that
EPA
announced
in
1997
would
have
required
all
areas
designated
nonattainment
for
the
8­
hour
ozone
NAAQS
to
implement
that
standard
under
subpart
1.
Additionally,
but
as
separate
matter,
all
areas
that
were
violating
the
1­
hour
NAAQS
would
remain
obligated
to
continue
to
implement
the
requirements
of
subpart
2
for
the
purpose
of
attaining
the
1­
hour
standard.
The
issue
before
the
Court
of
Appeals
and
then
before
the
Supreme
Court
was
whether
EPA's
implementation
policy
for
the
8­
hour
NAAQS,
which
provided
no
role
for
subpart
2
for
implementation
of
the
8­
hour
standard,
was
supported
under
the
Act.
Before
both
Courts,
EPA
argued
that
the
title
and
structure
of
section
181
indicated
that
the
classification
scheme
in
subpart
2
was
solely
for
purposes
of
implementing
the
1­
hour
NAAQS.
The
Court
of
Appeals
rejected
EPA's
arguments
regarding
the
structure
and
titles
in
section
181
and
held
that
subpart
2
clearly
applied
for
purposes
of
implementing
the
revised
standard.
The
Supreme
Court
rejected
the
Court
of
Appeals
decision
in
part.
As
an
initial
matter,
the
Supreme
Court
unambiguously
concluded
that
the
subpart
2
classification
scheme
does
apply
for
purposes
of
implementing
a
revised
ozone
NAAQS.
However,
the
Supreme
Court
rejected
the
Court
of
Appeals
holding
insofar
as
it
applied
to
areas
designated
nonattainment
for
the
8­
hour
NAAQS
but
with
a
1­
hour
design
value
of
less
than
the
lowest
value
specified
in
Table
1
of
section
181.
For
those
areas,
the
Supreme
Court
concluded
that
the
classification
provisions
in
sections
181
and
172
were
ambiguous.
The
commenter
takes
a
significant
leap
by
suggesting
that
the
Supreme
Court's
consideration
only
of
language
in
section
181
 
the
classification
provision
in
subpart
2
 
somehow
stretches
into
a
discourse
on
what
other
provisions
in
subpart
2
might
or
might
not
be
textually
applicable.
We
find
absolutely
not
support
for
the
approach
suggested
by
the
commenter
in
the
Supreme
Court's
opinion.
In
fact,
we
note
that
the
approach
suggested
by
the
commenter
is
remarkably
similar
to
the
approach
EPA
announced
in
1997
and
that
both
the
Court
of
Appeals
and
the
Supreme
Court
emphatically
rejected.
45
As
to
the
commenter's
suggestion
that
EPA
does
not
have
authority
to
"
revise"
the
design
value
levels
in
Table
1
of
section
181,
we
disagree.
The
Courts
have
found
that
where
application
of
a
statute
as
written
would
produce
an
absurd
result
and
subvert
clear
Congressional
intent,
agencies
do
have
limited
authority
to
apply
the
statute
in
the
manner
intended.
In
the
present
case,
we
believe
(
for
the
reasons
stated
in
the
Preamble
and
elsewhere
in
the
RTC)
that
to
apply
the
1­
hour
values
for
purposes
of
classifying
areas
for
the
8­
hour
standard
would
produce
an
absurd
result
and
is
not
consistent
with
Congressional
intent.
Therefore,
EPA
has
adjusted
the
design
values
in
Table
1
to
align
with
the
revised
8­
hour
standard
in
the
same
manner
that
Congress
applied
the
1­
hour
values
for
purposes
of
implementing
the
1­
hour
NAAQS.
We
believe
we
have
addressed
elsewhere
in
the
RTC
why
it
is
not
arbitrary
or
inequitable
to
place
some
areas
under
subpart
1
although
their
8­
hour
design
value
is
similar
to
the
design
value
for
some
areas
under
subpart
2.
This
narrowly
tailored
change
in
the
statute
is
supported.

Comment:
Several
commenters
suggested
that
EPA's
two
options,
which
rely
exclusively
or
significantly
on
implementation
under
subpart
2,
would
result
in
reduced
flexibility
for
states
as
well
as
for
the
U.
S.
electronics
industry,
thereby
reducing
the
industry's
ability
to
compete
in
the
world
market
with
little
or
no
air
quality
or
health
benefit.
These
commenters
recommended
that
EPA
designate
areas
for
the
8­
hour
NAAQS
only
after
the
area
had
attained
the
1­
hour
NAAQS
and
to
then
classify
such
areas
under
subpart
1.
The
commenters
suggested
that
their
approach
is
consistent
with
section
107
of
the
Act
because
section
107
does
not
prevent
EPA
from
implementing
the
1­
hour
NAAQS
and
the
8­
hour
NAAQS
sequentially
for
the
few
nonattainment
areas
to
which
it
would
apply
and
any
past
non­
adherence
by
EPA
with
Section
107
is
just
that
 
past
non­
adherence
 
and
should
not
prevent
EPA
from
exercising
the
appropriate
judgment
and
discretion
regarding
Section
107
in
the
future.

Response:
As
provided
elsewhere
in
the
RTC
and
in
the
Preamble,
EPA
believes
an
implementation
scheme
that
does
not
provide
for
classification
under
subpart
2
of
8­
hour
nonattainment
areas
with
a
1­
hour
design
value
at
or
above
0.121
ppm
conflicts
with
the
CAA
as
interpreted
by
the
Supreme
Court.
The
approach
suggested
by
the
commenters
is
the
same
as
or
similar
to
the
approach
suggested
by
Judge
Tatel
of
the
D.
C.
Circuit
in
his
concurring
opinion
on
rehearing.
195
F.
3d
at
11­
13.
Although
the
Supreme
Court
did
not
directly
address
Judge
Tatel's
concurring
opinion,
that
approach
is
clearly
precluded
by
the
Court's
conclusion
that
the
classification
scheme
of
subpart
2
does
apply
for
purposes
of
implementing
a
revised
NAAQS.

In
addition,
we
disagree
with
the
commenters
that
such
an
approach
is
consistent
with
section
107
of
the
Act.
Section
107(
d)(
1)
requires
EPA
to
designate
all
areas
for
a
new
or
revised
NAAQS
no
later
than
three
years
following
promulgation
of
that
standard.
(
These
dates
were
slightly
modified
by
TEA­
21
and
other
legislation
for
the
8­
hour
standard.)
It
does
not
contemplate
that
some
subset
of
areas
will
not
be
designated
for
the
new
or
revised
standard
(
here,
the
only
standard
we
say
is
needed
to
protect
public
health)
while
those
areas
continue
to
implement
the
pre­
existing
standard
(
here,
a
standard
we
have
concluded
is
not
necessary
to
protect
public
health).
We
see
no
statutory
authority
for
delaying
designations.
46
Comment:
One
commenter
also
noted
that
if
EPA
continues
to
maintain
that
the
Supreme
Court's
decision
in
Whitman
does
not
allow
it
to
adopt
sequential
implementation,
then
EPA
should
adopt
a
third
alternative
to
classifications
as
follows:
All
areas
that
currently
attain
the
1­
hour
standard
should
be
classified
under
Subpart
1.
Those
areas
currently
in
nonattainment
with
the
1­
hour
standard
would
be
subject
to
Subpart
2,
with
a
rebuttable
presumption
that
their
1­
hour
classification
would
be
retained
under
the
8­
hour
standard
unless
the
area
demonstrates
that
it
can
meet
the
8­
hour
standard
in
a
shorter
period
of
time.
The
commenter
claims
this
approach
is
more
legally
supportable
than
Alternatives
A
or
B
(
described
in
the
October
21,
2003
notice),
because
it
does
not
necessitate
EPA
fundamentally
re­
writing
Table
1
of
Subpart
2.
In
addition,
it
maximizes
the
number
of
areas
that
implement
the
revised
standard
under
Subpart
1,
and
has
the
advantage
of
granting
additional
time
for
attainment
in
those
areas
that
are
likely
to
have
the
most
intractable
8­
hour
ozone
nonattainment
issues
 
i.
e.,
those
areas
that
have
experienced
the
greatest
difficulty
in
attaining
the
1­
hour
ozone
standard
.

Response:
As
noted
elsewhere
in
the
Preamble
and
the
RTC,
we
believe
we
have
authority
to
develop
an
appropriate
version
of
section
181'
s
Table
1
for
classification
for
the
8­
hour
standard.
In
addition,
section
181
requires
that
areas
be
classified
based
on
their
current
design
value,
not
a
design
value
from
13
years
ago.

Comment:
One
commenter
stated
that
it
is
a
challenge
to
enforce
a
new
8­
hour
ozone
NAAQS
that
(
A)
is
not
reflected
in
subpart
2
and
that
(
B)
doesn't
require
implementation
of
all
of
the
subpart
2
control
strategies.
The
only
clear
solution
is
a
legislative
fix
that
would
strike
subpart
2
in
its
entirety
and
implement
the
new
8­
hour
ozone
NAAQS
under
subpart
1.
Such
an
approach
would
provide
ample
flexibility
to
nonattainment
areas
under
both
the
1­
hour
ozone
NAAQS
and
8­
hour
ozone
NAAQS
to
develop
and
implement
any
control
strategy
needed
to
demonstrate
attainment.
Subpart
1
also
contain
deadlines
for
attainment
(
five
years
that
can
be
extended
by
the
EPA
Administrator
to
ten
years).
In
addition,
one
commenter
noted
that
the
CAA
as
amended
in
1990,
at
least
in
regard
to
ozone
and
PM2.5
nonattainment
designations
and
reduction
measures,
is
intrinsically
flawed
and
should
be
reviewed
and
amended
to
make
the
law
consistent
with
the
science.

Response:
We
believe
the
8­
hour
ozone
NAAQS
can
be
implemented
under
existing
law
and,
indeed,
both
the
Supreme
Court
and
Court
of
Appeals
indicated
the
Congress
established
subpart
2
(
at
least
in
part)
to
do
so.

Comment:
A
commenter
recommended
that
EPA
use
a
dual
approach
for
determining
the
classification
of
an
area.
Areas
that
have
attained
the
1­
hour
NAAQS
and
have
been
redesignated
to
attainment
would
be
classified
under
subpart
1.
Areas
that
are
nonattainment
for
the
1­
hour
NAAQS
with
a
design
value
greater
than
0.121
ppm
would
be
classified
under
subpart
2
and
areas
that
are
nonattainment
for
the
1­
hour
NAAQS
with
a
design
value
less
than
0.121
ppm
would
be
subject
to
subpart
1.
Another
commenter
also
disagreed
with
using
the
1­
hour
design
value
to
determine
if
an
area
should
be
classified
under
subpart
1
or
subpart
2.
They
felt
that
classification
should
be
determined
by
the
area's
attainment/
nonattainment
designation
for
the
1­
47
hour
standard
at
the
time
of
the
area's
8­
hour
designation.
The
commenter
further
suggested
that
if
an
area
is
not
attaining
the
1­
hour
standard
and
if
the
8­
hour
design
value
is
less
that
0.091
ppm,
the
area
would
be
covered
under
subpart
1;
and
if
an
area
is
not
attaining
the
1­
hour
standard
and
if
the
8­
hour
design
value
is
greater
than
or
equal
to
0.091
ppm,
the
area
would
be
covered
under
subpart
2,
using
the
translation
of
Table
1
in
the
June
2003
proposal.
Requiring
these
areas
to
be
classified
under
subpart
2
removes
needed
flexibility
while
potentially
requiring
the
area
to
implement
control
measures
under
the
Act
that
may
not
be
needed
or
that
do
not
address
the
specific
air
pollution
issues
of
that
area.
By
allowing
these
areas
to
be
classified
under
subpart
1,
the
area
would
have
necessary
flexibility,
including
an
attainment
date
that
reflects
the
attainment
date
of
contributing
upwind
nonattainment
areas.

Response:
As
noted
elsewhere
in
the
RTC
and
the
Preamble,
the
Supreme
Court
concluded
that
areas
that
were
violating
the
8­
hour
NAAQS
and
that
had
a
1­
hour
design
value
at
or
above
0.121
ppm
were
subject
to
subpart
2.
We
do
not
have
discretion
to
adopt
the
suggested
approach.

IV.
OTHER
CLASSIFICATION­
RELATED
COMMENTS
A.
Classification
Adjustment
Under
Section
181(
a)(
4)

Comment:
Several
commenters
supported
the
use
to
the
extent
possible
of
provisions
in
Section
181(
a)(
4)
to
allow
adjustment
of
a
classification
if
an
area's
design
value
is
within
5%
of
another
classification.
If
an
area
would
not
benefit
significantly
from
the
increased
controls
of
the
higher
classification,
reasonable
cost
savings
would
be
realized
for
citizens
by
dropping
to
the
lower
classification.

Response:
The
5
percent
adjustment
provided
in
section
181(
a)(
4)
will
be
available
to
areas
classified
under
subpart
2
for
the
8­
hour
NAAQS.

Comment:
One
commenter
believed
that
EPA
should
consider
several
factors
in
making
the
adjustment
under
section
181(
a)(
4),
including
the
number
of
exceedances
of
the
standard
and
complexity
of
the
problem.
The
commenter
noted
that
its
area,
based
on
the
proposed
rule,
will
fall
into
the
serious
classification,
but
it
is
also
an
area
with
the
most
8­
hour
ozone
exceedances
in
the
nation
for
the
last
three
years.
The
area's
design
value
is
right
on
the
edge
of
this
5%
threshold
based
on
2000­
2002
data,
and
could
be
one
of
the
areas
that
will
fit
into
this
5%
window
when
the
2003
data
becomes
available.
The
commenter
requested
that
EPA
explain
how
the
Administrator
would
make
this
decision
and
the
process
that
will
be
used.
The
commenter
recommended
that
EPA
Regions
that
have
areas
that
will
fit
into
the
5%
windows
should
begin
now
to
work
directly
with
the
areas
that
could
be
affected.
Waiting
until
after
finalization
of
the
implementation
rule
to
begin
these
discussions
with
affected
air
agencies
would
not
allow
adequate
time
for
full
consideration
of
the
issues
by
decision
makers
prior
to
the
release
of
the
designations.
Another
commenter
recommended
that
the
test
under
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
standard
before
deemed
in
compliance.
48
Response:
Separate
from
this
rulemaking,
EPA
is
developing
policy
and
procedures
regarding
how
the
5
percent
provision
will
be
applied.
These
will
likely
parallel
the
process
at
the
time
of
the
initial
classifications
following
enactment
of
the
1990
Amendments.
We
note
that
the
classification
adjustment
must
be
made
within
90
days
after
the
initial
designations.
The
5
percent
provision
does
not
allow
for
other
adjustments
related
to
meteorological
fluctuations
as
suggested
by
one
of
the
commenters.
The
preamble
to
the
rule
that
sets
forth
designations
and
classifications
for
individual
areas
provides
additional
discussion
on
use
of
the
5
percent
provision.

B.
Related
to
Incentive
Feature
(
Note:
Discussion
of
comments
received
directly
on
the
proposed
incentive
feature
appears
elsewhere
in
this
response
to
comment
document.)

Comment:
Under
EPA's
proposed
incentive
feature,
a
Subpart
2
area
could
be
classified
at
a
lower
classification
than
it
would
otherwise
receive
based
on
its
design
value
if
a
modeled
demonstration
indicates
the
area
will
attain
the
standard
by
the
attainment
date
for
the
lower
classification.
This
concept
of
considering
the
benefits
that
will
be
occurring
from
scheduled
emission
reductions
is
appropriate.
Therefore,
we
recommend
that
EPA
use
this
same
rationale
in
first
determining
whether
an
area
should
be
Subpart
1
or
2.

Response:
As
noted
in
the
Preamble,
we
are
not
adopting
the
incentive
feature
that
we
proposed.
As
provided
in
the
Preamble
and
elsewhere
in
the
RTC,
EPA
believes
Congress
mandated
that
certain
areas
be
covered
under
subpart
2
and
EPA
does
not
have
the
discretion
to
create
a
scheme
to
place
such
areas
under
subpart
1.

C.
Miscellaneous
Comment:
One
commenter
urged
EPA
to
include
both
frameworks
for
classification
in
its
final
rule.
The
commenter
indicates
this
is
preferable
because
it
provides
greater
flexibility
to
state
agencies
as
they
address
their
specific
air
quality
issues
allowing
attainment
of
the
standard
at
a
lower
overall
cost.

Response:
EPA
must
establish
one
strategy
for
classifying
areas
for
the
8­
hour
NAAQS
and
provide
certainty
to
the
States.
Morever,
the
two
proposed
schemes
have
contrary
components
and
could
not
work
together.

Comment:
A
number
of
commenters
supported
the
creation
of
an
interstate
transport
classification
for
areas
that
can
demonstrate
that
overwhelming
transport
is
the
cause
of
the
nonattainment
problem.
One
commenter
suggested
that
such
areas
be
removed
from
the
requirements
of
this
rule
because
requiring
transport
areas
to
implement
pollution
reduction
measures
is
both
unfair
and
impractical.
Transport
areas
cannot
reach
attainment
through
their
49
own
actions
and
local
controls
would
not
have
a
discernable
effect.
These
areas
will
achieve
attainment
status
when
the
upwind
area(
s)
achieve
attainment
of
the
NAAQS.

Response:
The
final
rule
provides
for
an
overwhelming
transport
classification
for
subpart
1
areas
(
see
section
51.904(
a)).
Subpart
2
also
contains
provision
for
rural
transport
areas
if
EPA
determines
the
area's
nonattainment
is
caused
by
overwhelming
transport.
Areas
affected
by
transport
are
subject
to
the
statutory
requirements
for
nonattainment
areas
under
the
Act
and
EPA
does
not
have
authority
to
exempt
them
from
coverage
of
the
statute.

Comment:
One
commenter
noted
that
many
areas
will
not
be
able
to
attain
the
8­
hour
standard
by
their
attainment
date
under
EPA's
Option
2
and
suggested
that
EPA
adopt
a
more
meaningful
8­
hour
classification
scheme
that
appropriately
classifies
each
area
in
a
manner
that
accurately
reflects
the
severity
of
the
ozone
problem
and
the
time
needed
to
attain
the
standard.
Additionally,
EPA
should
also
develop
policy
options
allowing
States
to
change
classifications
given
that
it
may
not
be
possible
to
accurately
classify
all
areas
with
one
standardized
approach.
The
commenter
believed
that
Congress
did
not
intend
for
EPA
to
establish
attainment
deadlines
that
would
in
a
large
number
of
cases
automatically
require
areas
to
use
deadline
extensions
and
claimed
that
such
areas
have
probably
been
misclassified.

Response:
Subpart
2
provides
for
three
types
of
classification
adjustments.
First,
section
181(
a)(
4)
provides
that
the
Administrator
may
reclassify
an
area
to
a
higher
or
lower
classification
if
the
area's
design
value
used
for
the
initial
classification
is
within
5
percent
of
a
classification
threshold
value
for
a
higher
or
lower
classification.
This
adjustment
must
be
made
within
90
days
of
the
initial
classification.
Second,
section
181(
b)(
3)
provides
that
a
State
may
request
at
any
time
a
higher
classification
and
EPA
must
grant
such
a
request.
(
This
provision
does
not
allow
for
a
request
for
a
lower
classification.)
Finally,
section
181(
b)(
2)
requires
that
an
area
be
reclassified
based
upon
a
determination
by
EPA
that
the
area
failed
to
attain
by
its
attainment
date
if
it
was
classified
as
marginal,
moderate
or
serious
classification.

As
provided
elsewhere
in
the
preamble
and
the
RTC,
EPA
disagrees
with
the
commenter
that
the
classification
scheme
adopted
by
EPA
will
place
many
areas
in
classifications
that
do
not
provide
sufficient
time
to
attain.
However,
the
reclassification
provisions
in
section
181
are
available
in
limited
instances
when
reclassification
may
be
necessary.

Comment:
One
commenter
asked
EPA
to
clarify
that
when
new
areas
are
added
to
the
8­
hour
nonattainment
area
that
were
not
part
of
the
1­
hour
nonattainment
area
and
that
are
attaining
the
1­
hour
NAAQS,
the
new
areas
will
be
classified
under
Subpart
1.

Response:
Each
nonattainment
area
covered
by
subpart
2
will
be
classified
as
a
whole
under
the
final
rule.
Subpart
2'
s
classification
provision
requires
that
each
nonattainment
area
be
designated
based
on
the
design
value
for
the
nonattainment
area.
Thus,
it
does
not
permit
multiple
classifications
of
a
single
nonattainment
area.
Likewise,
each
nonattainment
area
covered
by
subpart
1
will
be
covered
in
whole
under
subpart
1.
50
Comment:
One
commenter
indicated
that
the
volatile
organic
compound
(
VOC)
controls
required
by
subpart
2
and
the
proposed
rule
do
not
actually
reflect
the
levels
of
emissions
reductions
needed.
EPA
has
not
demonstrated
that
indeed
the
additional
controls
required
for
each
classification
level
is
actually
warranted,
let
alone
effective.
While
it
makes
sense
to
require
more
emissions
reductions
for
bigger
air
quality
problems,
these
additive
controls
have
not
been
shown
to
correlate
with
the
emissions
reductions
needed
by
areas
classified
at
the
various
levels
of
nonattainment.
The
commenter
refers
to
another
comment
that
was
submitted
that
suggested
that
levels
of
classification
be
directly
tied
to
the
emissions
reductions
needed
to
bring
the
area
into
attainment.
For
example,
a
marginal
area
would
attain
with
NOx
SIP
Call
controls,
a
moderate
area
with
NOx
SIP
and
Tier
2
controls,
and
so
on.
We
believe
classifications
along
these
lines
to
be
reasonable,
and
are
certainly
justifiable
in
that
areas
with
more
pollution
would
be
required
to
make
more
reductions.

Response:
Congress
established
subpart
2
and
mandated
specific
controls
for
specific
classifications
of
areas.
Furthermore,
we
do
not
believe
we
have
the
authority
to
make
the
broad
modifications
to
subpart
2
suggested
by
the
commenter
 
i.
e.,
to
change
the
controls
that
apply
under
each
classification.
In
general,
we
believe
that
these
controls
will
be
effective
in
combination
with
other
local
controls
as
well
as
the
national
and
regional
control
measures
mentioned
by
the
commenter.

Comment:
One
commenter
believed
that
the
proposed
rule
does
not
provide
sufficient
clarity
for
areas
to
determine
which
of
the
two
classification
options
would
enable
the
region
to
achieve
the
new
ozone
standard
more
expeditiously.
Thus,
the
commenter
is
unable
to
express
a
strong
preference
for
one
option
over
the
other.

Response:
As
noted
elsewhere
in
this
document,
both
subparts
1
and
2
require
attainment
"
as
expeditious
as
practicable"
regardless
of
the
maximum
attainment
dates
specified
in
the
Act
Thus,
we
do
not
believe
the
choice
of
Option
1
or
Option
2
will
affect
the
time
by
which
areas
will
need
to
attain
the
NAAQS..

Comment:
One
commenter
believed
Subpart
1
and
Subpart
2
are
not
intended
to
be
interpreted
separately,
but
are
to
act
in
a
complementary
manner
in
the
designation
of
nonattainment
areas.
Subpart
1
of
the
CAA
provides
an
overview
of
the
nonattainment
process,
but
references
Subpart
2
for
clarification
for
specific
pollutants.

Response:
EPA
agrees
that
subparts
1
and
2
of
part
D
of
title
I
of
the
Clean
Air
Act
are
not
entirely
separate.
As
EPA
stated
in
the
proposed
rule,
areas
subject
to
the
subpart
2
requirements
of
the
CAA
remain
subject
to
the
requirements
of
subpart
1
to
the
extent
such
provisions
are
not
inconsistent
with
the
more
specific
planning
obligations
in
subpart
2.
However,
an
area
can
be
7See
"
General
Preamble
for
the
Implementation
of
Title
I
of
the
Clean
Air
Act
Amendments
of
1990;
Proposed
Rule"
April
16,
1992.
57
FR
13524­
13525.

51
subject
only
to
the
subpart
1
requirements
and
not
those
under
subpart
2.7
Specifically,
EPA
noted
in
the
June
2,
2003
proposal:

Throughout
this
proposed
rulemaking,
we
repeatedly
discuss
whether
an
area
is
subject
to
the
planning
requirements
of
subpart
1
or
subpart
2.
This
language
is
convenient
shorthand
for
purposes
of
this
proposal.
Actually,
if
an
area
is
subject
to
subpart
2
requirements,
it
is
also
subject
to
subpart
1
requirements.
In
some
cases,
subpart
1
and
subpart
2
requirements
are
inconsistent
or
overlap.
To
the
extent
that
subpart
2
addresses
a
specific
planning
obligation,
the
provisions
in
subpart
2
control.
For
example,
under
section
182(
b),
moderate
areas
are
subject
to
15
percent
ROP
requirements
rather
than
the
more
general
RFP
requirements
of
section
172(
c)(
2).
However,
moderate
areas
remain
subject
to
the
contingency
measure
requirement
of
section
172(
c)(
9),
as
that
requirement
is
not
addressed
for
moderate
areas
in
subpart
2.

68
FR
at
32611,
col.
2.

Comment:
One
commenter
believed
whether
an
area
will
be
subject
to
subpart
1
or
subpart
2
will
likely
make
little
difference
to
progress
in
reducing
emissions.
Existing
national
regulations
will
eliminate
most
remaining
ozone
precursors,
and
these
requirements
are
independent
of
the
8­
hour
ozone
implementation
rule.
The
commenter
alleged
that
comments
on
the
proposed
rule
from
environmental
activists
confuse
formal
administrative
and
legal
requirements
with
substantive
air
pollution
reductions.
They
appear
to
be
unfamiliar
with
the
sources
responsible
for
most
air
pollution,
trends
in
actual
pollution
emissions,
and
the
measures
already
in
place
that
will
continue
to
achieve
large
national
reductions
in
emissions
from
the
pollution
sources
that
contribute
the
vast
majority
of
ozone
precursors.
The
environmental
activists
are
incorrect
when
they
claim
EPA's
policies
on
implementation
of
the
8­
hour
rule,
such
as
whether
areas
are
classified
based
on
Subpart
1
or
Subpart
2,
or
how
NSR
is
implemented,
will
have
much
effect
on
progress
in
reducing
ozone
precursors
because
actions
necessary
to
eliminate
most
ozone
precursors
have
already
been
taken,
and
are
progressing
independently
of
the
8­
hour
NAAQS
rule
and
other
administrative
CAA
requirements.
Since
the
NAAQS
classification
and
SIP
planning
process
will
have
little
effect
on
future
reductions
in
ozone
precursors,
there
is
little
risk
to
air
quality
in
providing
as
much
flexibility
as
possible
to
nonattainment
areas
so
they
can
seek
least­
cost
methods
for
meeting
their
CAA
obligations.
This
argues
for
classifying
as
many
areas
as
possible
under
Subpart
1.

Response:
While
we
agree
generally
with
the
commenter
that
placement
of
an
area
in
subpart
1
or
subpart
2
should
not
affect
the
area's
timely
attainment
of
the
of
the
ozone
standard
or
the
level
of
controls
that
it
will
need
to
reach
attainment,
we
disagree
that
the
statutory
requirements
of
subpart
2
areas
will
have
little
or
no
effect
on
air
quality.
52
Comment:
One
commenter
stated
that
EPA
will
diminish
the
effectiveness
of
the
NOx
SIP
Call
by
using
Subpart
1
to
classify
nonattainment
areas.
In
particular,
such
action
will
forego
application
of
effective,
proven
measures
that
existing
nonattainment
areas
within
the
Ozone
Transport
Region
(
OTR)
already
have
in
place,
such
as
NOx
RACT.

Response:
As
noted
elsewhere
in
this
document,
subpart
1
and
subpart
2
both
require
attainment
as
expeditious
as
practicable.
Therefore,
regardless
of
whether
an
area
is
covered
under
subpart
1
or
subpart
2,
the
law
requires
the
area
to
attain
within
the
same
amount
of
time.
The
fact
that
subpart
2
requires
specific
mandated
control
measures
is
no
guarantee
that
an
area
will
attain
more
expeditiously
than
if
the
specific
control
measures
were
not
required.

Comment:
Several
of
the
commenters,
when
describing
EPA's
Option
2,
described
that
option
as
classifying
all
areas
"
designated
nonattainment
for
the
first
time"
under
subpart
1.

Response:
These
comments
misrepresent
EPA's
proposal.
The
proposal
relies
on
the
1­
hour
design
value
for
an
area
at
time
of
designation
for
the
8­
hour
NAAQS,
not
whether
an
area
has
previously
been
designated
nonattainment
for
the
1­
hour
standard.

Comment:
One
commenter
raised
concerns
about
Ellis
County,
Texas.
The
commenter
noted
that
Ellis
County
is
designated
attainment
for
the
1­
hour
standard
although
it
is
monitoring
violations
of
that
standard.
The
county,
therefore
is
subject
to
the
less­
stringent
control
and
offset
requirements
associated
with
"
clean
air"
designations.
The
commenter
states
that
Ellis
County
is
currently
monitoring
nonattainment
for
the
8­
hour
standard,
based
on
2000­
2002
data,
with
a
design
value
of
0.86
for
the
period.
The
commenter
believed
that
under
option
2,
areas
not
previously
designated
nonattainment
for
the
1­
hour
standard
would
be
classified
and
regulated
under
subpart
1
and
thus,
if
Ellis
County
is
not
redesignated
to
nonattainment
under
the
1­
hour
standard
prior
to
April
2004,
then
Ellis
County
would
be
classified
under
and
subject
to
the
requirements
of
subpart
1
of
the
Act.

Response:
The
commenter
misunderstands
how
Option
2
would
work.
An
area
designated
nonattainment
for
the
8­
hour
standard
will
be
subject
to
subpart
2
if
the1­
hour
ozone
design
value
for
the
area
at
the
time
of
designation
is
at
or
above
0.121
ppm.
Thus,
if
Ellis
County
is
designated
as
part
of
a
nonattainment
area
for
the
8­
hour
standard
and
that
area
has
a
design
value
at
or
above
0.121
ppm,
then
the
nonattainment
area,
including
Ellis
County
will
be
subject
to
subpart
2
for
purposes
of
the
8­
hour
NAAQS.

Comment:
Three
commenters
objected
to
EPA's
use
of
1­
hour
design
values
as
the
parameter
by
which
EPA
determines
eligibility
for
participation
under
Subpart
1.
The
commenters
believe
EPA
should
use
actual
and
current
designations
of
nonattainment
under
the
1­
hour
standard
as
the
criterion
under
which
areas
are
required
to
comply
with
Subpart
2
because
such
an
approach
would
allow
EPA
to
remain
faithful
to
the
Supreme
Court's
holding
regarding
the
interrelationships
between
subparts
1
and
2,
yet
it
also
bases
the
8­
hour
classification
process
on
53
actual
1­
hour
designations
(
which
have
been
subjected
to
public
notice
and
comment),
rather
than
on
data
which
have
not
been
subjected
to
extensive
scrutiny.

Response:
We
are
required
to
consider
an
area's
current
air
quality
in
making
designations
and
classifications
for
the
8­
hour
ozone
standard.
Additionally,
as
noted
elsewhere
in
the
RTC
and
the
Preamble
in
more
detail,
the
Supreme
Court
found
the
statute
ambiguous
only
to
the
extent
an
area's
1­
hour
design
value
is
less
than
the
lowest
value
in
Table
1
in
section
181
 
i.
e.,
0.121
ppm.
Thus,
EPA
does
not
believe
it
can
use
a
different
factor
for
determining
which
areas
are
subject
to
subpart
2.
In
addition,
we
note
that
the
monitoring
data
on
which
we
rely
for
these
classifications
is
subject
to
the
same
level
of
scrutiny
as
the
monitoring
data
used
for
the
initial
1­
hour
designations.

Comment:
One
commenter
indicated
support
for
using
design
values
based
on
data
from
2000­
2002
for
purposes
of
determining
classifications.

Response:
EPA
is
using
the
same
data
for
both
designations
and
classifications
 
air
quality
data
from
2001­
2003.

Comment:
The
purpose
of
an
area's
classification
is
to
indicate
both
the
severity
of
the
ozone
problem
and
the
time
needed
to
provide
for
attainment.
An
area's
downwind
contribution
is
a
separate
matter
from
the
classification
process.
If
EPA
chooses
to
use
significant
downwind
contributions
as
a
factor
when
determining
the
adequacy
of
a
SIP,
then
that
should
be
spelled
out
in
the
regulatory
proposal
and
not
intertwined
with
the
issue
of
classifications.

Response:
We
interpret
this
comment
to
reference
the
proposed
incentive
feature
for
classifications
under
subpart
2,
under
which
an
area
could
obtain
a
lower
classification
if
it
demonstrated
attainment
by
a
deadline
consistent
with
the
maximum
attainment
date
of
the
lower
classification.
We
proposed
that
in
applying
the
incentive
feature
we
would
take
into
account
the
extent
to
which
the
area
significantly
contributes
to
downwind
nonattainment
or
interferes
with
maintenance
under
section
110(
a)(
2)(
D)
of
the
CAA.
We
solicited
comment
on
possible
mechanisms
for
assessing
this
contribution
for
purposes
of
granting
the
lower
classification,
and
possible
tests
for
whether
to
grant
or
deny
the
lower
classification.
As
explained
in
the
preamble
to
the
final
rule
and
elsewhere
in
this
document,
we
have
decided
not
to
include
the
incentive
feature
as
part
of
the
classification
approach
in
the
final
rule.

Comment:
EPA
must
ensure
that
certain
states
with
unhealthy
smog
levels
are
required
to
implement
effective
and
time­
tested
smog
pollution
control
measures
required
by
Congress
and
the
Clean
Air
Act.
EPA
should
not
blithely
exempt
vast
areas
of
the
country
from
implementing
these
key
public
health
protections.

Response:
We
do
not
believe
the
final
rule
will
exempt
vast
areas
of
the
country
from
implementing
the
public
health
protection
provisions
of
the
Clean
Air
Act.
The
final
classification
system
sets
up
an
approach
that
requires
States
to
develop
implementation
plans
to
attain
the
8­
54
hour
ozone
standard
as
expeditiously
as
practicable
but
no
later
than
deadlines
specified
in
the
Act.
The
anti­
backsliding
provisions
of
section
51.905
prevent
backsliding
from
requirements
that
areas
are
already
obligated
to
meet.

Comment:
One
commenter
on
the
notice
that
reopened
the
comment
period
does
not
believe
the
8­
hour
standard
is
necessary
and
believes
the
Supreme
Court
decision
provided
EPA
with
adequate
discretion
to
determine
which
areas
should
be
regulated
under
the
more
flexible
Subpart
1
of
the
CAA
or
the
more
prescriptive
Subpart
2.
EPA
should
consider
the
area's
status
under
the
1­
hour
rule,
the
impacts
of
current
national
and
regional
controls,
ozone
transport,
an
area's
past
record
for
achieving
reductions,
etc.

Response:
For
the
reasons
stated
elsewhere
in
the
RTC
and
the
Preamble,
EPA
does
not
believe
it
has
discretion
to
consider
the
factors
urged
by
the
commenter
in
determining
whether
an
area
is
subject
to
subpart
2.
Comments
on
the
necessity
of
the
8­
hour
standard
should
be
raised
during
the
periodic
review
of
the
standard
under
section
109
of
the
Act
and
are
not
an
issue
for
this
rulemaking.

Comment:
One
commenter
felt
EPA's
rounding
conventions
are
inappropriate
&
illegal.

Response:
EPA's
rounding
conventions
are
not
the
subject
of
this
rulemaking.
EPA's
rounding
conventions
have
been
in
place
for
a
number
of
years.
The
rounding
convention
for
the
8­
hour
NAAQS
was
established
at
the
time
EPA
promulgated
the
8­
hour
NAAQS
and
is
specified
in
40
CFR
part
50,
Appendix
I.

Comment:
One
commenter
noted
that
although
EPA
acknowledges
the
fact
that
"
regional
NOx
reductions
are
effective
in
producing
ozone
benefits"
and
that
"
ozone
is
transported,
and
that
ozone
aloft
is
carried
over
and
transported
from
one
day
to
the
next,"
EPA
does
not
address
this
problem
in
the
proposal.
The
commenter
believed
it
is
incumbent
on
EPA
to
analyze
and
demonstrate
that
the
requirements
and
time
frames
under
Subpart
1
classification
would
provide
comparable
reductions
­
locally
and
downwind
­
to
classification
under
Subpart
2.
Another
commenter
noted
that
both
classification
options
fail
to
address
the
important
issue
of
interstate
transport.
A
consequence
of
this
omission
is
that
downwind
States
will
struggle
to
meet
attainment
while
upwind
States
may
do
nothing.
This
result
will
further
hinder
the
goal
to
improve
air
quality
across
the
country.
EPA
should
consider
alternative
options
as
these
fall
short
of
what
is
needed
to
have
the
8­
hour
ozone
standard
make
a
real
impact
on
improving
the
air.

Response:
We
intend
to
address
comments
on
transport
issues
in
Phase
2
of
our
rule.

V.
CLASSIFICATION
COMMENTS
SPECIFIC
TO
DRAFT
REGULATORY
TEXT
A.
Comments
on
Section
51.902
Planning
provisions
of
the
Act
applicable
to
areas
designated
nonattainment
for
the
8­
hour
NAAQS
55
Comment:
A
commenter
stated
that
the
draft
regulatory
text
does
not
classify
areas
qualifying
for
flexibility
under
subpart
1
according
to
the
new
Table
1
although
in
several
of
the
sections
that
follow
(
51.904,
51.905,
51.908),
the
text
indicates
that
all
nonattainment
areas
described
in
51.902
seem
to
have
been
classified
in
Table
1.

Response:
Areas
covered
under
subpart
1
(
see
section
51.902(
b)
of
the
final
rule)
are
not
subject
to
subpart
2
and
are
therefore
not
classified
under
Table
1
which
only
provides
classifications
for
areas
subject
to
subpart
2
(
see
section
51.902(
a)).
Section
51.904
covers
classification
and
attainment
date
provisions
for
areas
covered
under
subpart
1
and
sets
forth
an
overwhelming
transport
classification
for
qualifying
areas;
other
subpart
1
areas
are
not
classified.
Section
51.905
sets
forth
anti­
backsliding
provisions
that
address
which
planning
and
control
obligations
under
the
1­
hour
standard
are
retained
after
the
1­
hour
standard
is
revoked;
references
to
classification
have
been
removed,
since
the
requirements
apply
irrespective
of
whether
an
area
is
classified
or
not.
Section
51.908,
which
addresses
the
timeframe
for
obtaining
emission
reductions
to
ensure
attainment
by
the
attainment
date
also
applies
irrespective
of
an
area's
classification.

Comment:
One
commenter
stated
that
if
EPA
maintains
that
classifications
under
subpart
1
and
subpart
2
should
be
based
on
1­
hour
design
values
then
the
conversion
of
the
values
from
Table
1
of
section
181
should
reflect
the
exact
translation
of
the
1­
hour
threshold
(
0.121)
or
0.081
ppm
for
the
8­
hour
standard.
This
is
necessary
to
maintain
the
continuity
between
the
1­
hour
and
8­
hour
NAAQS.

Response:
For
areas
subject
to
subpart
2,
EPA
has
converted
the
1­
hour
values
in
Table
1
to
8­
hour
values.
When
we
proposed
the
translation
of
the
values
in
Table
1,
we
explained
that
the
Table
started
at
the
design
value
that
reflects
a
violation
of
the
8­
hour
standard,
namely
0.085
ppm.
If
we
were
to
have
translated
the
0.121
value
the
same
way
we
translated
the
other
thresholds,
it
would
have
produced
0.082
ppm
8­
hour
(
not
0.081
ppm).
Whether
the
lowest
value
in
the
translated
table
is
0.085
ppm
or
0.081
ppm
or
0.082
ppm
makes
no
practical
difference.
Because
violations
of
the
8­
hour
standard
are
based
on
the
areas
design
value,
there
will
be
no
areas
designated
nonattainment
for
the
8­
hour
standard
that
have
a
design
value
less
than
0.085
ppm.

Comment:
One
commenter
stated
that
the
use
of
the
term
"
area"
in
the
proposed
rule
language
is
confusing.
For
example,
if
an
existing
1­
hour
nonattainment
area
is
within
a
larger
area
that
will
probably
will
be
designated
nonattainment
for
the
8­
hour
NAAQS,
the
term
area
could
refer
to
the
existing
1­
hour
nonattainment
area,
the
entire
8­
hour
nonattainment
area,
or
the
area
that
is
not
part
of
the
1­
hour
nonattainment
area,
but
part
of
the
8­
hour
nonattainment
area.
Therefore,
the
entire
area
could
be
subject
to
subpart
2,
or
the
existing
1­
hour
nonattainment
area
could
be
subject
to
subpart
2
while
the
rest
could
be
subject
to
subpart
1.
The
commenter
supported
the
latter
interpretation
that
portions
of
an
entire
8­
hour
nonattainment
area
can
be
classified
as
either
subpart
1
or
subpart
2.
By
allowing
blended
classifications,
areas
would
have
necessary
flexibility
not
to
implement
costly
unneeded
controls
and
to
tailor
requirements
to
those
counties.
8Memorandum
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
.

56
Additionally,
because
under
subpart
1
the
attainment
date
can
be
up
to
10
years,
the
attainment
date
can
correspond
to
the
dates
under
subpart
2
unless
the
area
is
classified
as
severe
or
extreme.

Response:
Section
51.902
has
been
revised
in
the
final
rule
to
clarify
that
applicability
is
to
an
area
designated
nonattainment
for
the
8­
hour
ozone
NAAQS,
as
was
indicated
in
the
heading
of
section
51.902.
Section
181(
a)
of
the
CAA
requires
that
a
nonattainment
area
be
classified
based
on
the
design
value
for
the
nonattainment
area.
EPA
does
not
have
discretion
to
establish
different
classifications
for
different
portions
of
a
single
nonattainment
area.

Comment:
A
commenter
claimed
that
the
proposed
§
51.902(
c)
provision
related
to
calculating
1­
hour
design
values
would
produce
results
that
are
anomalous
and
in
conflict
with
§
182(
a)(
1)'
s
directive
to
eliminate
unhealthful
ozone
as
expeditiously
as
practicable.
Under
section
51.902,
1­
hour
nonattainment
areas
can
abandon
the
more
rigorous
subpart
2
ozone
controls
that
were
required
of
them
prior
to
the
promulgation
of
the
revised
8­
hour
ozone
standard
 
a
standard
based
on
the
need
for
increased
protection
from
ozone's
adverse
health
effects.

Response:
We
are
not
sure
of
the
point
that
the
commenter
makes.
The
procedures
for
calculating
1­
hour
ozone
design
values
is
provided
in
past
EPA
guidance8
and
was
generally
referred
to
in
section
181(
a)(
1)
of
the
Act.
We
are
not
sure
about
the
reference
the
commenter
makes
to
section
182(
a)(
1),
which
addresses
the
emission
inventory
obligation
for
marginal
and
higher
classified
areas.
The
final
rule's
anti­
backsliding
provisions
would
retain
applicable
requirements
for
current
1­
hour
nonattainment
areas
 
regardless
of
whether
they
are
covered
under
subpart
1
or
2
 
so
they
could
not
stop
enforcing
those
requirements
until
the
area
attains
and
is
redesignated
for
the
8­
hour
standard,
and
only
then
with
proper
showings
under
sections
110(
l)
and
193.
The
requirements
could
not
be
dropped
completely
but
must
be
retained
as
contingency
measures.

VI.
COMMENTS
ON
10/
21/
03
NOTICE
THAT
REOPENED
THE
COMMENT
PERIOD
ON
CLASSIFICATION
OPTIONS
General
Summary
­
Despite
the
fact
that
we
entertained
comment
on
several
classification
options
and
concepts
other
than
those
we
proposed
on
June
2,
2003,
a
number
of
commenters
preferred
Option
1,
under
which
all
areas
are
classified
under
subpart
2
of
the
Act
or
Option
2,
under
which
8­
hour
nonattainment
areas
with
1­
hour
ozone
design
values
greater
than
0.121
ppm
at
the
time
of
designation
are
classified
under
subpart
2
and
all
other
areas
8­
hour
nonattainment
areas
are
classified
under
subpart
1.

For
Option
2
57
­
EPA
needs
to
provide
flexibility
not
afforded
under
subpart
2
so
that
areas
can
take
advantage
of
national
controls
that
have
not
yet
been
implemented.

­
Also
do
not
believe
option
2
results
in
inequities.
Subpart
2
itself
was
claimed
to
cause
inequities
since
it
requires
controls
that
may
not
be
helpful
and
may
be
hurtful
toward
attainment
of
the
ozone
standard.

­
Areas
under
either
subpart
1
or
2
still
have
to
attain
as
expeditiously
as
practicable.
If
option
2
does
not
provide
enough
time
for
areas
to
attain,
EPA
should
adjust
the
classification
table
to
allow
longer
times
for
attainment
than
the
ones
in
the
CAA.

­
Support
Option
2
as
proposed
in
June
2003
with
the
caveat
that
areas
that
have
been
redesignated
to
attainment
for
the
1­
hour
NAAQS
automatically
be
classified
under
Subpart
1
for
the
8­
hour
NAAQS
if
their
classification
under
Subpart
2
would
be
the
same
or
lower
than
it
was
for
the
1­
hour
NAAQS.
Subpart
2
interim
planning
deadlines
and
RFP
requirements
are
not
necessary
for
areas
that
have
been
redesignated
attainment
for
the
1­
hour
standard.

­
Opposed
starting
classifications
at
0.091
ppm
8­
hour
value
because
it
would
eliminate
too
many
areas
from
subpart
2
coverage.

­
Does
not
support
establishing
linear
8­
hr
equivalent
of
1­
hr
std.
Bthinks
it's
technically
flawed
and
would
place
more
areas
into
subpart
2
,
which
commenter
believes
is
unnecessary.

Against
Option
2
­
Option
2
does
not
provide
enough
time
for
attainment
for
some
areas.
It
would
result
in
areas
not
being
able
to
develop
a
SIP,
with
subsequent
loss
of
highway
funding,
which
makes
areas
inhospitable
to
development.
Subpart
1
classification
under
option
2
would
allow
upwind
areas
more
time
B
up
to
10
years
B
to
attain,
thereby
delaying
downwind
areas'
(
like
Rhode
Island)
ability
to
attain.

­
Two
commenters
believe
that
Option
2
results
in
inequities.
Approach
A
and
B
are
preferable
to
that
in
original
option
2,
but
still
strongly
prefers
option
1.

­
Regarding
transport,
if
the
classification
approach
results
in
subpart
1
areas
upwind,
then
EPA
must
ensure
that
those
areas
develop
control
strategies
that
address
the
downwind
areas'
attainment
dates.

­
Classification
bandwidth
should
be
proportionally
narrower
such
that
higher
classifications
(
with
tighter
requirements)
have
wider
bandwidths.
This
also
works
to
ensure
areas
that
can
attain
more
expeditiously
will
do
so.
58
Alternative
A
Support
Alternative
A
Six
commenters
supported
our
possible
Alternative
A
where
only
8
hr­
DV's
are
used.
Under
this
option,
areas
<
0.091
ppm
8­
hour
design
value
would
be
covered
under
subpart
1.
All
others
are
covered
under
subpart
2.
In
addition,
Alternative
A
employed
a
translated
classification
table
using
50%
of
the
percentages
used
in
our
June
2,
2003
proposal.

­
The
0.091
ppm
8­
hr
cutpoint
of
Alt.
A
eliminates
too
many
areas
from
subpart
2.
Marginal
class
low
threshold
should
be
0.081
ppm.

­
Endorsing
Alternative
A
with
a
0.081
ppm
bottom
threshold
and
retaining
1­
hr
classifications
and
SIP
requirements
without
opportunity
to
have
a
lower
class.

­
Neither
Alternative.
A
or
B
provide
as
much
flexibility
as
original
Option
2,
but
favors
Alternative
A
over
B.

­
Prefers
Opt.
1,
but
notes
that
Alternative
A
is
preferable
to
B;
Alternative
B.
is
most
inequitable.

­
Both
Alternatives
A
and
B
are
preferable
than
original
proposed
classification
approaches
because
they
place
more
areas
into
classifications
that
are
more
consistent
with
current
1­
hour
classifications.

­
Prefers
a
combination
of
Alternatives.
A
and
B
as
follows:
­­
translate
Table
1
with
minimum
8­
hr
DV
equivalent
to
0.121
1
hr.
but
use
0.085
ppm
for
this
value.

­
Supports
Alternative
A
based
on
0.091cut
point
Also,
a
number
of
commenters
opposed
Alternative
A.

Opposed
Alternative
A
­
Problems
noted
with
Alternative
A's
use
of
an
8­
hr
equivalence
to
the
1­
hr
standard
are
that
the
8­
hr
std.
is
more
health­
protective
than
the
1­
hr
standard
and
the
2
standards
are
different
in
a
number
of
respects
so
it
is
meaningless
to
discuss
mathematical
equivalence
between
the
two
standards
­
The
translation
of
the
1­
hour
standard
to
an
8­
hour
value
is
not
supportable.
Also,
the
alternative
assigns
too
many
areas
to
marginal
and
therefore
not
enough
time
to
attain
for
many
of
them
59
­
Alternative
A
shows
too
much
variability
in
classification
of
NE
states
B
e.
g.,
Western
MA
would
be
classified
marginal
but
New
York
City
area
would
be
severe­
15,
meaning
that
MA
would
have
to
wait
until
NY
attained
before
it
could
attain
due
to
overwhelming
transport.

­
Also,
the
technical
basis
for
equivalence
between
1hr
std.
and
8­
hr
value
is
questionable
and
it
shortens
time
that
some
nonattainment
areas
have
to
attain.

­
Alternative
A
would
weaken
8­
hr
standardBdoesn't
classify
areas
violating
8­
hr
standard.

­
Alternative
A
is
not
rational
because
it
involves
establishing
a
linear
relationship
between
the
1­
hr
and
8­
hour
values;
this
will
exacerbate
the
attainment
deadline
issue
by
forcing
more
areas
into
lower
classifications
­
Alternative
A
has
no
statutory
basis;
also
0.091
ppm
should
not
be
considered
a
"
relatively
high
magnitude"
problem,
since
one
area
at
least
with
such
a
value
is
projected
to
attain
with
the
NOx
SIP
call
reductions.

­
Flawed
technical
basis
for
equating
the
1­
and
­
8­
hour
standards.

­
Contradicts
stated
policy
of
providing
flexibility
by
moving
more
areas
into
subpart
2.

Alternative
B
Three
COMMENTERS
supported
Alternative
B.
Under
this
Alternative,
there
are
2
conditions
for
subpart
1
­
1­
hr
DV
<
0.121
and
8
hr
DV<
0.091
(
i.
e.,
less
than
moderate).
All
others
are
covered
under
subpart
2.
This
alternative
also
employed
a
translated
classification
table
using
50%
of
the
percentages
used
in
our
June
2,
2003
proposal.

For
Alternative
B
­
Alternative
B
approach
of
placing
higher
8­
hr
valued
areas
with
1­
hr
values
<
0.121
ppm
would
help
resolve
inequities
of
Option
2.

Opposed
Alternative
B
A
number
of
commenters
opposed
Alternative
B.

­
Under
Alternative
B,
RFP
for
extra
years
for
Baltimore
and
DC
would
be
difficult.

­
Alternative
B
mandates
subpart
2
controls
that
may
not
be
needed.
Also,
Attachment
has
legal
problems
since
it
rests
on
equating
the
1­
hour
and
8­
hour
standard,
which
EPA
itself
argued
against;
it
not
necessary
to
compress
8­
hr
design
values
to
give
more
time
to
attain.
Alternative
B
would
provide
too
much
time
for
some
areas
to
attain
60
­
Supported
modification
of
Alternative.
B.
This
modification
was:
­
all
areas
with
1­
hr
DV's
less
than
0.121
ppm
would
be
covered
under
subpart
1;
they
claim
that
with
Clear
Skies
modeling,
most
areas
will
have
lower
design
values
eventually
and
therefore
there
will
not
be
disproportionate
inequities
in
the
future.
­
reduce
original
threshold
percentages
by
50%;
start
at
0.085
­
employ
a
rebuttable
presumption
of
the
area's
1­
hour
classification
if
that
is
higher
­
Difficult
to
support
­­
huge
investment
of
public/
private
resources
to
support
reg.
control
programs.

­
Subpart
2
is
flawed
(
and
more
areas
would
be
placed
in
subpart
2)

­
Technical
rationale
for
starting
at
0.091
needs
to
be
better
developed
and
explained.
No
technical
basis
for
Alternative
B
except
it
puts
more
areas
in
higher
classifications.
Advocates
flexibility
in
implementation.

­
Contradicts
stated
policy
of
providing
flexibility
by
moving
more
areas
into
subpart
2.

­
Concerned
that
increased
number
of
areas
will
be
in
higher
classifications
based
on
Alternatives
A
and
B.
50%
cut
points
seem
to
be
based
on
historical
trends.

Another
commenter
favored
a
similar
approach.
The
commenter
does
not
agree
that
1­
hour
DVs
should
be
used
to
determine
if
an
area
is
under
subpart
1
vs.
2.
Classify
areas
that
are
N/
A
for
both
1­
hr
and
8­
hr
under
subpart
2;
classify
new
8­
hour
N/
A
under
subpart
1.
An
alternative
would
be
to
use
0.091(
rather
than
0.085)
as
the
cutpoint
for
determining
if
areas
are
in
subpart
1
vs.
2.
If
we
decide
that
1­
hr
DVs
are
the
basis
for
subpart
1
vs.
2,
revise
1­
hour
cutpoint
from
0.121
to
0.125.
Alternatives
are
not
easy
to
understand.

Another
variant
of
Option
2
was
suggested
.
This
variant
use
a
translated
classification
table
using
50%
of
the
percentages
used
in
our
June
2,
2003
proposal,
and
a
presumption
that
1­
hr
classifications
would
be
retained
under
the
8­
hour
standard
if
higher.

Favor
50%
adjustment
­
the
50%
adjustment
of
classification
thresholds
and
a
rebuttable
presumption
of
1­
hr
classifications
allows
enough
time
for
difficult
areas
to
attain
by
taking
account
of
anticipated
national
measures.

Against
50%
adjustment
­
provided
data
analysis
and
concluded
that
the
50%
figure
provided
by
API
is
unsupported.
61
­
Method
suggested
for
adjusting
the
thresholds
(
the
50%
adjustment)
is
arbitrary
and
not
all
areas
had
8­
hr
trends
that
were
half
the
rate
of
decline
of
their
1­
hr
trends.
Also,
future
trends
may
not
be
the
same
as
past
trends.

­
Additional
analysis
is
needed
on
the
50%
adjustment
concept.

Response:
Subsequent
analysis
of
the
rationale
behind
the
suggestion
to
use
50%
of
the
percentages
used
in
the
June
2,
2003
indicated
that
this
might
not
be
a
proper
way
of
addressing
the
issue
of
proper
attainment
dates.
The
analysis
is
in
the
docket.
(
OAR­
2003­
0079­
0685).

Also,
a
number
of
persons
offered
comments
on
other
issues
we
described
in
the
October
21,
2003
notice:

$
Use
exceeding
design
value
for
the
1­
hour
standard
to
distinguish
between
subparts
1
and
2
instead
of
lowest
value
in
Table
1
for
marginal
areas
(
i.
e.,
0.121).

$
Modification
of
the
5
percent
classification
adjustment
feature
of
section
181(
a)(
4).

$
Two
commenters
objected
to
the
Legal
approach
for
re­
writing
the
5%
adjustment
feature.

$
Percentages
other
than
50%
for
the
adjustment
to
the
translation
of
the
classification
table.

$
EPA
should
waive
additional
required
local
controls
if
a
demonstration
is
made
that
national
controls
will
bring
an
area
into
attainment.

$
Classification
should
allow
13
years
after
classification
for
a
marginal
area
attainment
date;
this
allows
for
10
years
for
Clear
Skies
controls
to
work
and
3
years
to
determine
compliance
with
the
air
quality
standard.

$
"
Sequential
implementation"
opposed
because
it
is
contrary
to
the
Supreme
Court's
ruling
and
would
cause
an
inequity
regarding
attainment
timeframes.

$
Sequential
approach
should
be
followed.

$
If
EPA
maintains
that
the
Supreme
Court's
decision
in
Whitman
does
not
allow
sequential
implementation,
then
EIA
believes
EPA
should
adopt
a
third
alternative
to
classifications
where
areas
that
currently
attain
the
1­
hour
standard
should
be
classified
under
Subpart
1
and
areas
in
nonattainment
under
Subpart
2,
with
a
rebuttable
presumption
that
their
1­
hour
classification
be
retained
under
the
8­
hour
standard
unless
the
area
demonstrates
that
it
can
meet
the
8­
hour
standard
in
a
shorter
period
of
time.

$
1­
hr
classification
rebuttable
presumption
opposed.

$
Supports
0.085
as
lowest
bound
in
classification
table
$
EPA
should
require
contribution
demonstrations
as
part
of
the
SIP
from
upwind
states
$
If
emission
inventories
are
inaccurate,
additional
time
is
required
to
address
and
develop
more
appropriate
controls.

$
Differences
in
reactivity
of
VOC
species
has
not
been
fully
addressed;
control
of
different
precursor
species
may
be
needed
compared
to
those
originally
envisioned
in
1990.

$
Attainment
date
clock
should
start
upon
full
implementation
of
the
NOx
SIP
call
or
the
8­
hour
designation,
whichever
comes
later.

$
8­
hour
values
should
be
used
to
classify
subpart
2
areas;
the
threshold
should
start
at
0.125
ppm.;
EPA
should
entertain
additional
comment
on
the
range
of
classification
design
values.
62
$
The
most
prescriptive
requirements
should
not
be
imposed
on
an
area
without
regard
for
the
degree
to
which
the
area
exceeds
the
8­
hour
standard.

$
Alternative
approach
was
proposed:
­
1hr
NA
+
8­
hr
<
0.091
ppm
=
subpart
1
­
1hr
NA
+
8­
hr
>=
0.091
ppm
=
subpart
2
­
use
original
6/
2/
03
translation
table
for
subpart
2
classification
$
"
Incentive
feature"
should
apply
to
marginal
areas
so
they
can
be
designated
attainment
if
projected
to
attain,
or
at
least
create
a
transitional
category.

$
Need
to
address
transport;
marginal
areas
that
will
attain
as
a
result
of
the
NOx
SIP
call
should
be
considered
attainment
or
transitional;
don't
use
1­
hour
standard
as
starting
point
Response:
Comments
related
to
the
use
of
an
exceeding
design
for
the
1­
hour
standard
are
discussed
elsewhere
in
this
document.
Because
we
have
not
chosen
either
Alternative
A
or
B
or
any
variation
that
would
affect
the
spread
of
the
classifications
in
Table
1,
comments
received
on
percentages
other
50
percent
for
the
adjustment
of
the
translation
of
the
table
are
irrelevant
to
the
final
rule
and
are
not
discussed
here.
For
the
same
reason,
comments
related
to
the
modification
of
the
5
percent
adjustment
feature
of
section
181(
a)(
4)
are
also
irrelevant
to
the
final
rule
and
are
not
discussed
here.

VII.
COMMENTS
ON
DESIGNATIONS
We
received
a
number
of
comments
concerning
the
designation
process.
We
summarize
these
below
for
informational
purposes.
However,
the
June
2,
2003
proposal
explicitly
stated
that
we
were
not
proposing
any
rule
concerning
the
designation
process,
and
that
designations
would
be
done
through
a
separate
action.

°
One
commenter
argued
that
EPA
should
defer
nonattainment
designation
for
communities
that
fall
into
the
so­
called
"
gap"
between
attainment
of
the
1­
hour
ozone
standard
and
nonattainment
of
the
8­
hour
ozone
standard,
if
they
agree
to
expedited
voluntary
emission
reduction
measures,
and
demonstrate
progress
in
implementing
those
measures.
Deferral
is
especially
appropriate
for
those
"
gap"
communities
that
are
very
close
to
meeting
the
8­
hour
ozone
standard
and
are
projected
to
attain
the
standard
within
three
years
or
sooner
through
measures
already
implemented
in
its
current
State
Implementation
Plan
(
SIP).
The
commenter
also
offered
examples
of
how
deferral
will
avoid
increased
emissions
from
sprawl
and
sustain
brownfield
and
smart
growth
effects.
Denying
"
gap"
communities
the
benefits
of
nonattainment
deferral
will
do
nothing
to
improve
air
quality
or
expedite
attainment.
The
commenter's
area
is
already
projected
to
meet
the
8­
hour
standard
in
a
few
years
through
measures
in
its
current
SIP
and
national
mobile
source
emissions
measures.
Nonattainment
designation,
on
the
other
hand,
will
increase
vehicle
and
sprawl­
related
emissions
and
delay
attainment.
°
One
commenter
argued
that
EPA
must
use
its
statutory
authority
under
Section
110(
a)(
2)(
D)
of
the
CAA
to
designate
as
nonattainment
those
source
areas,
no
matter
what
63
their
8­
hour
design
values
are,
that
significantly
contribute
to
nonattainment
in
other
areas.
Their
SIPs
must
not
be
approved
until
the
downwind
areas
achieve
attainment.
9EPA's
guidance
on
such
determinations
appears
in
"
Criteria
for
Assessing
the
Role
of
Transport
of
Ozone/
Precursors
in
Ozone
Nonattainment
Areas,"
May
1991.
U.
S.
Environmental
Protection
Agency,
Office
of
Air
Quality
Planning
and
Standards,
Technical
Support
Division,
Research
Triangle
Park,
NC
27711.
Available
at:
http://
www.
epa.
gov/
scram001/
tt25.
htm.
Look
for
zip
file
named
UAMIVGUIDE.
Unzip
to
access
file
name
UAMCRIT.

64
SECTION
A.
2.
UNDER
THE
FINAL
CLASSIFICATION
APPROACH,
HOW
WILL
EPA
CLASSIFY
SUBPART
1
AREAS?

Classification
of
subpart
1
areas
Comment:
Several
commenters
supported
inclusion
of
the
option
of
no
classifications
for
subpart
1
areas.
Other
commenters
agreed
that
EPA
should
establish
an
overwhelming
transport
classification
for
subpart
1
areas
that
can
demonstrate
that
their
violations
are
due
to
overwhelming
transport.
Some
commenters
noted
that
based
upon
EPA's
modeling
and
projections,
there
are
likely
to
be
many
such
areas,
particularly
in
the
east
and
southeastern
parts
of
the
country.

Response:
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
Act.
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
and
will
issue
revised
guidance
in
the
future.
9
While
EPA
agrees
there
may
be
a
number
of
areas
that
are
affected
by
overwhelming
transport,
we
note
that
"
overwhelming
transport"
as
addressed
by
this
policy
is
a
higher
hurdle
than
the
"
significant
contribution,"
which
was
addressed
by
EPA's
NOx
Transport
rules.

Comment:
Several
commenters
addressed
the
criteria
for
determining
overwhelming
transport.
One
commenter
suggested
that
the
criteria
for
an
area
being
classified
as
an
overwhelming
transport
area
should
be
proposed
by
EPA
with
specific
regulatory
language
and
adequate
time
provided
to
stakeholders
for
input.
Another
commenter
supported
a
rural
transport
classification
and
bump­
up
protection
for
areas
that
are
truly
rural
in
character
but
recommended
that
such
an
area
needs
to
make
a
showing
that
their
emissions
(
1)
are
a
trivial
component
of
their
local
ozone
formation;
(
2)
are
not
contributing
to
a
downwind
area's
nonattainment
status;
and
(
3)
do
not
have
the
potential
to
interfere
with
a
downwind
area's
maintenance
of
the
standard.
One
commenter
recommended
that
EPA
rigorously
define
the
criteria
under
which
this
classification
applies.
Each
area
must
be
required
to
address
the
local
sources
of
ozone
precursors,
and
should
not
rely
on
reductions
from
500
to
700
miles
away.

Response:
We
plan
to
develop
revised
guidance
on
determination
of
overwhelming
transport
and
issue
it
in
the
future,
and
we
will
provide
an
opportunity
for
public
comment
on
the
guidance
and
on
the
requirements
that
would
apply
to
such
areas.
10Op.
cit.

65
Comment:
Several
commenters
stated
that
our
proposal
unduly
restricted
the
availability
of
the
overwhelming
transport
classification
to
areas
outside
C/
MSA's
and
asked
that
the
criteria
not
include
the
limitation
that
the
area
meet
the
definition
of
a
rural
transport
area.
Some
noted
that
the
C/
MSA
boundaries
are
not
necessarily
indicative
of
urban
areas
and
in
fact
contain
rural
areas.
One
commenter
noted
that
controls
that
could
be
applied
in
its
area
if
it
does
not
receive
the
overwhelming
transport
classification
could
cripple
the
State's
economy
without
gaining
attainment.
One
commenter
noted
that
Section
172
provides
EPA
with
broad
authority
to
determine
the
appropriate
classification
for
a
nonattainment
area,
considering
"
such
factors
as
the
severity
of
nonattainment
in
such
area
and
the
availability
and
feasibility
of
the
pollution
control
measures
that
the
Administrator
believes
may
be
necessary
to
provide
for
attainment
of
such
standard
in
such
area."
One
commenter
supported
the
proposed
approach
of
restricting
the
classification
to
rural
areas.

Response:
The
final
rule
requires
that
an
overwhelming
transport
area
meet
the
definition
of
a
rural
transport
area.
Although
the
CAA
does
not
mandate
that
an
area
be
considered
rural
in
order
to
receive
an
overwhelming
transport
classification
under
subpart
1,
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.
We
note
that
subpart
1
does
provide
flexibility
to
areas
in
developing
plans
to
attain
the
standard
and
that
for
those
areas
affected
by
transport
but
that
are
not
"
rural,"
EPA
and
the
States
can
consider
appropriate
controls
in
the
SIP
development
process.

Comment:
One
commenter
expressed
concerned
about
the
overwhelming
transport
classification
because
there
were
"
too
many
unknowns"
with
that
classification.
These
unknowns
include:
impact
to
transportation
conformity,
definition
of
"
overwhelming
transport,"
the
change
in
the
definition
of
Metropolitan
Statistical
Area/
Consolidated
Metropolitan
Statistical
Areas
(
MSA/
CMSA)
by
the
Office
of
Management
&
Budget
(
OMB),
and
undefined
attainment
date.

Response:
Comments
on
the
impact
on
transportation
conformity
in
relation
to
the
overwhelming
transport
classification
are
discussed
below.
Regarding
the
definition
of
"
overwhelming
transport,"
although
the
June
2,
2003
proposed
rule
provided
reference
to
EPA's
existing
Overwhelming
Transport
Policy,
we
plan
to
issue
a
new
guidance
document
that
will
apply
for
purposes
of
the
8­
hour
NAAQS.
10
We
will
provide
notice
of
and
an
opportunity
to
comment
on
that
document.
Section
172(
a)(
2)
provides
maximum
attainment
dates
for
areas
covered
under
subpart
1;
we
will
approve
a
"
subpart
1"
area's
attainment
date
­
whether
it
is
classified
as
Overwhelming
Transport"
or
not
­
when
we
approve
the
area's
attainment
demonstration.
Thus,
there
is
no
more
uncertainty
regarding
an
Overwhelming
Transport
area's
attainment
date
under
subpart
1
than
there
is
for
a
subpart
1
area.
The
attainment
date
for
any
nonattainment
area
cannot
be
known
in
advance,
since
it
must
be
"
as
expeditious
as
practicable"
but
no
later
than
the
maximum
periods
allowed
under
the
Act.
Regarding
the
MSA/
CMSA
definition,
EPA
is
planning
to
use
the
1999
definition
of
the
66
MSA/
CMSAs
rather
than
newer
definitions.
This
is
consistent
with
the
understanding
many
States
had
in
their
recommendations
for
nonattainment
areas.

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
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).

Comment:
One
commenter
suggested
that
EPA
provide
flexibility
and
relief
for
areas
affected
by
overwhelming
transport
by
allowing
a
different
standard
of
violation
than
areas
that
are
not
subject
to
overwhelming
transport.
The
standard
for
violations
in
those
areas
should
be
extended
to
six
excursions
of
the
standard
instead
of
four.
Four
excursions
in
three
years
is
intended
to
account
for
statistical
anomalies,
yet
transport
areas
cannot
impact
the
air
quality
in
their
area,
and
should
be
further
insulated
from
statistical
anomalies.
Additional
regulatory
burdens
should
not
be
imposed
on
citizens
based
on
rare
meteorological
events.

Response:
Under
the
Clean
Air
Act,
EPA
establishes
national
ambient
air
quality
standards,
not
standards
that
vary
area­
by­
area.
These
standards
are
based
on
the
levels
that
are
needed
to
protect
public
health
and
are
based
on
the
level
(
i.
e.,
0.08
ppm),
the
averaging
time
(
8
hours)
and
the
NAAQS
statistic
(
the
average
of
the
4th
high).
In
this
action,
EPA
is
considering
how
to
implement
the
existing
NAAQS
and
is
not
considering
a
revision
to
the
NAAQS,
which
is
what
the
commenter
is
requesting
(
i.
e.,
a
change
in
the
NAAQS
statistic).

Comment:
One
commenter
suggested
that
EPA
explore
additional
ways
of
addressing
transport,
since
a
monitor
can
be
located
in
an
MSA
or
adjacent
to
an
MSA,
but
be
impacted
by
transport
from
other
areas
due
to
complex
terrain
or
other
factors.

Response:
In
a
separate
rulemaking
(
69
FR
4566,
January
30,
2004),
EPA
is
continuing
to
examine
whether
to
further
regulate
sources
of
interstate
transport
of
ozone
and
its
precursors.
Additionally,
as
noted
elsewhere,
subpart
1
provides
the
States
and
EPA
with
some
flexibility
when
developing
attainment
plans
for
areas.
67
Comment:
One
commenter
recommended
that
the
final
rule
should
provide
enough
flexibility
so
that
recipients
of
overwhelming
ozone
transport
pollution
in
either
a
rural
area
or
an
area
contained
within
a
MSA
can
receive
a
delayed
or
transitional
designation
that
allows
time
for
upwind
areas
to
meet
the
attainment
date
before
formally
designating
the
downwind
areas.

Response:
The
CAA
does
not
provide
for
a
delayed
or
transitional
designation
suggested
by
the
commenter.
The
final
rule
would
allow
8­
hour
nonattainment
areas
classified
under
subpart
1
and
that
are
rural
and
that
are
affected
by
overwhelming
transport
to
be
classified
as
such
and
receive
an
attainment
date
(
up
to
10
years
following
designation)
that
accounts
for
the
upwind
area's
attainment.

Comment:
Several
commenters
recommended
that
areas
impacted
overwhelmingly
by
transport
be
exempted
from
performing
transportation
conformity.
One
reason
provided
was
it
does
not
provide
benefit,
it
only
shows
that
the
ozone
standards
are
being
exceeded
by
pollutants
which
are
coming
from
sources
outside
the
area
being
modeled.
This
is
particularly
applicable
in
rural
areas
where
the
conformity
process
will
be
a
drain
on
state
and
local
resources.
Another
commenter
noted
that
conducting
transportation
conformity
is
costly
and
restrictive,
and
the
transport
classification
could
intensify
the
onerous
requirement
of
transportation
conformity.
Another
commenter
noted
that
for
these
areas
it
is
clearly
not
local
transportation
facilities
that
are
causing
ozone
exceedances.

Response:
Under
the
Act,
we
cannot
exempt
nonattainment
areas
B
even
those
overwhelmed
by
transport
B
from
the
conformity
requirement.
In
fact,
the
rural
transport
classification
which
addresses
overwhelming
transport
for
areas
under
subpart
2,
makes
clear
that
such
areas
are
still
subject
to
the
requirements
that
would
apply
to
areas
classified
as
marginal,
which
would
include
conformity.
The
June
2,
2003
proposed
rule
indicated
that
we
were
contemplating
more
flexibility
in
how
conformity
applies
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
these
areas
but
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
conformity
rule
already
provides
flexibility
in
such
things
as
transportation
modeling
requirements
for
smaller
areas
with
less
severe
local
air
quality
problems.

Comment:
One
commenter
supported
EPA's
concept
for
"
less
restrictive"
NSR
requirements
in
areas
subject
to
Subpart
1
and
that
would
qualify
for
the
"
overwhelming
interstate
transport"
classification.
The
commenter
reserved
further
comment
regarding
this
issue
since
EPA
has
not
identified
the
requirements
of
a
"
less
restrictive"
nonattainment
NSR
in
this
proposal
and
proposes
to
do
so
in
a
separate,
future
rulemaking.

Response:
In
our
proposed
ozone
implementation
rule,
we
indicated
that
we
were
contemplating
more
flexibility
for
NSR
for
such
areas.
We
intend
to
issue
a
separate
proposal
on
this.

Comment:
One
commenter
who
objected
to
using
subpart
1
at
all
for
implementation
of
the
8­
hour
standard
also
objected
to
the
proposed
provision
that
would
"
graft
into
subpart
1
a
provision
68
of
subpart
2
that
allows
rural
ozone
nonattainment
areas
to
escape
certain
prescriptive
subpart
2
nonattainment
requirements
if
their
nonattainment
problem
is
caused
by
sources
located
outside
the
area
boundary,
rather
than
classifying
all
ozone
nonattainment
areas
under
subpart
2
of
the
Act,
as
Congress
intended.
"
The
commenter
believes
that
all
areas
should
be
classified
under
subpart
2
and
then
the
section
182(
h)
authority
would
be
available
to
such
areas.

Response:
We
address
why
certain
8­
hour
ozone
nonattainment
areas
should
be
covered
by
subpart
1
elsewhere
in
this
response
to
comment
document
in
discussion
of
comments
received
on
the
classification
approach.
The
comment
is
unclear
about
why
it
is
improper
to
establish
under
subpart
1
an
overwhelming
transport
classification
for
areas
that
mirrors
the
rural
transport
provision
in
section
182(
h).

INTRASTATE
TRANSPORT
Comment:
Several
commenters
recommended
that
EPA
also
offer
an
Intrastate
Transport
Classification.
One
commenter
noted
that
there
may
be
as
many
as
six
8­
hour
nonattainment
areas
in
the
commenter's
state
and
that
Texas
is
similar
in
size,
geographically,
to
the
size
of
many
of
the
Northeastern
states
combined.
However,
the
commenter's
State's
nonattainment
areas
are
confined
to
one
state
unlike
in
the
Northeastern
United
States.
(
See
Attachment
1
to
docket
number
0260
for
map
demonstrating
the
relative
geographic
size
of
Texas
compared
to
several
Northeast
states
in
the
NOx
SIP
call.)
Also,
one
commenter
believed
the
subpart
2
classification
system
should
account
for
intrastate
transport.
The
commenter
claimed
the
existing
classification
structure
in
Subpart
2
of
the
Clean
Air
Act
that
relates
mandatory
requirements
and
attainment
dates
to
local
ozone
levels
is
effective
and
should
be
used
for
8­
hour
nonattainment
areas
that
contribute
substantially
to
their
own
pollution
problems.
However,
Subpart
2
does
not
work
well
for
the
commenter's
State's
rural
areas
that
are
overwhelmed
by
air
pollution
transport
because
it
imposes
a
greater
burden,
even
though
these
areas
do
not
have
the
corresponding
ability
to
accelerate
attainment
in
the
local
region.
For
these
rural
areas,
the
general
requirements
in
Subpart
1
are
more
appropriate.
Commenter
recommends
a
hybrid
of
U.
S.
EPA's
proposed
options
for
8­
hour
ozone
classifications
to
distinguish
between
these
types
of
nonattainment
areas.
Under
this
approach
major
urban
areas
in
the
commenter's
State
would
continue
to
implement
federal
Clean
Air
Act
ozone
programs
under
Subpart
2,
regardless
of
their
ozone
levels,
and
the
new,
rural,
transport­
impacted
nonattainment
areas
would
implement
the
8­
hour
standard
under
the
more
flexible
framework
of
Subpart
1.

Response:
The
final
rule
(
section
51.904(
a))
sets
forth
an
overwhelming
transport
classification
under
subpart
1
that
applies
regardless
of
whether
the
transport
is
interstate,
intrastate,
or
even
international.
EPA
does
not
believe
that
the
CAA
allows
for
EPA
to
place
areas
in
subpart
1
based
on
whether
the
area
is
affected
by
transport.
As
provided
in
more
detail
elsewhere,
the
Supreme
Court
held
that
there
is
not
a
gap
in
the
statute
regarding
areas
with
a
1­
hour
design
value
at
or
above
0.121
ppm.
Rural
areas
that
are
covered
under
subpart
2
may
be
able
to
qualify
for
rural
transport
area
treatment
under
section
181(
h)
of
the
CAA.
69
70
SECTION
A.
3.
WILL
EPA
ADJUST
CLASSIFICATIONS?

A.
Classification
Adjustment
Under
Section
181(
a)(
4)

Comment:
Several
commenters
supported
the
use
to
the
extent
possible
of
provisions
in
Section
181(
a)(
4)
to
allow
adjustment
of
a
classification
if
an
area's
design
value
is
within
5%
of
another
classification.
If
an
area
would
not
benefit
significantly
from
the
increased
controls
of
the
higher
classification,
reasonable
cost
savings
would
be
realized
for
citizens
by
dropping
to
the
lower
classification.

One
commenter
noted
regarding
the
section
181(
a)(
4)
provision
that
the
Administrator
should
consider
several
factors
in
making
the
adjustment,
including
the
number
of
exceedances
of
the
standard
and
the
complexity
of
the
problem.
The
commenter
noted
that
its
area,
based
on
the
proposed
rule,
will
fall
into
the
serious
classification,
but
it
is
also
an
area
with
the
most
8­
hour
ozone
exceedances
in
the
nation
for
the
last
three
years.
The
area's
design
value
is
right
on
the
edge
of
this
5%
threshold
based
on
2000­
2002
data,
and
could
be
one
of
the
areas
that
will
fit
into
this
5%
window
when
the
2003
data
becomes
available.
The
commenter
requested
that
EPA
explain
how
the
Administrator
would
make
this
decision
and
the
process
that
will
be
used.
The
commenter
recommended
that
EPA
regions
that
have
areas
that
will
fit
into
the
5%
window
should
begin
now
to
work
directly
with
the
areas
that
could
be
affected.
Waiting
until
after
finalization
of
the
implementation
rule
(
December
2003
or
later)
to
begin
these
discussions
with
affected
air
agencies
would
not
allow
adequate
time
for
full
consideration
of
the
issues
by
decision
makers
prior
to
the
release
of
the
designations.
Another
commenter
recommended
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
standard
before
deemed
in
compliance.

Response:
EPA
guidance
on
the
5
percent
adjustment
provision
in
section
181(
a)(
4)
is
contained
in
the
November
6,
1991
Federal
Register
(
56
FR
56698)
which
established
the
initial
designations
and
classifications.
In
a
Federal
Register
notice
designating
and
classifying
areas
for
the
8­
hour
NAAQS,
EPA
is
inviting
States
to
submit
requests
for
the
5
percent
adjustment.
Section
181(
a)(
4)
authorizes
the
Administrator
to
adjust
a
classification
within
90
days
after
the
initial
classification.
The
reclassification
provision
in
section
181(
a)
applies
only
to
reclassifications
under
subpart
2
and
does
not
provide
for
reclassification
from
subpart
2
to
subpart
1.

[
END
OF
COMMENTS
ON
3.
WILL
EPA
ADJUST
CLASSIFICATIONS?"]
71
4.
PROPOSED
INCENTIVE
FEATURE
(
Section
VI.
A.
of
proposed
rule;
68
FR
32815;
Section
51.903(
b)
of
the
draft
regulatory
text;
no
corresponding
provision
in
final
rule)

VI.
A.
6.
Proposed
incentive
feature
Comment:
In
general,
the
commenters
that
oppose
use
of
the
incentive
feature
raised
three
issues:
the
incentive
feature
violates
the
CAA;
it
relies
on
modeling
which
is
inaccurate
and
uncertain
compared
with
monitoring;
and
EPA
failed
to
identify
the
type
of
modeling
that
would
provide
the
basis
for
a
lower
classification.
The
commenters
that
support
the
use
of
the
incentive
feature
primarily
applauded
its
use
to
provide
more
flexibility
to
an
area
to
avoid
more
restrictive
planning
obligations
where
the
area
could
demonstrate
it
would
attain
by
the
attainment
date
for
a
lower
classification.
These
comments
and
response
to
them
are
provided
below.

Response:
The
final
rule
does
not
incorporate
the
incentive
feature
as
proposed.
The
feature
would
not
have
helped
very
many
areas.
Of
21
hypothetical
nonattainment
areas
(
based
on
2000­
2002
air
quality
data),
our
modeling
projects
that
only
3
would
have
qualified
without
further
controls
for
the
feature.
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
allowed
the
feature,
we
do
not
believe
there
would
have
been
enough
time
for
areas
that
would
have
been
classified
moderate
to
submit
a
plan
with
local
controls
that
demonstrated
attainment
by
a
Spring
attainment
date
in
2007,
since
they
would
have
to
complete
implementation
of
the
controls
by
Spring
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,
as
noted
below.
We
believe
the
difficulties
involved
in
administering
such
a
program,
together
with
the
unfavorable
timing,
and
the
anticipated
low
number
of
areas
that
could
benefit
from
the
feature
lead
us
to
avoid
incorporating
the
feature
in
the
final
rule.

Comment:
A
number
of
commenters
claimed
that
EPA
does
not
have
the
legal
authority
to
rely
on
modeling
rather
than
monitoring
data
to
establish
classifications.
One
commenter
stated
that
the
Supreme
Court
made
clear
that
Subpart
2
contains
"
carefully
designed
restrictions
on
EPA
discretion"
in
designing
rules
for
implementation
of
a
new
ozone
NAAQS
and
"
eliminates
regulatory
discretion"
that
Subpart
1
allowed.
Just
as
Subpart
2
provides
no
regulatory
discretion
to
avoid
reclassifying
areas
to
a
higher
classification
when
they
fail
to
attain
the
NAAQS
by
their
statutory
attainment
deadline,
Subpart
2
provides
no
regulatory
discretion
to
move
areas
to
a
lower
classification
(
subject
to
an
earlier
attainment
deadline)
than
that
provided
by
the
statute.
Another
commenter
contested
EPA's
position
that
the
Supreme
Court
decision
provides
room
for
adopting
the
incentive
feature,
noting
that
in
Whitman,
the
Court
stated:
"
While
Subpart
1
permits
the
EPA
to
establish
classifications
for
nonattainment
areas,
Subpart
2
classifies
areas
as
a
matter
of
law
based
on
a
table."
One
commenter
analogized
the
incentive
feature
to
the
attainment
date
extensions
that
several
courts
found
were
not
allowed
under
the
Clean
Air
Act,
citing
Sierra
Club
v.
Whitman,
130
F.
Supp.
2d
78
(
7th
Cir.,
2001);
Sierra
Club
v.
Whitman,
294
F.
3d
155
(
D.
C.
Cir.
72
2002);
Sierra
Club,
et
al.,
v.
EPA,
314
F.
3d
735
(
5th
Cir.
2002);
Southern
Organizing
Committee
for
Social
and
Economic
Justice,
et
al.,
v.
US
EPA,
333
F.
3d
1288
(
11th
Cir.
2003).
The
commenter
stated
that
incentive
feature
has
the
same
effect
as
the
attainment
date
extensions
 
avoiding
the
additional
control
and
SIP
requirements
associated
with
reclassification
while
extending
the
attainment
date
 
and
thus
suffers
from
the
same
defect.
Finally,
another
commenter
argued
that
the
"
incentive
feature"
is
not
authorized
by
the
Clean
Air
Act,
and
indeed,
is
directly
contrary
to
its
express
terms
and
Congressional
intent.
No
provision
of
the
Act
allows
EPA
to
bump
down
an
area
based
on
modeling:
To
the
contrary,
the
Act
requires
reclassification
to
based
on
measured
design
values
 
not
modeling.

One
commenter
that
appeared
to
support
the
incentive
feature
noted
that
EPA
must
provide
additional
legal
justification
regarding
how
it
is
allowed
under
Subpart
2.
The
commenter
indicated
that
while
Subpart
2
clearly
applies
the
use
of
the
ozone
design
value
to
classify
an
area,
and
a
"
bump­
up"
provision
for
areas
which
do
not
meet
the
standard
by
the
attainment
date,
it
does
not
include
a
"
bump­
down"
provision
for
areas
which
need
less
time
to
attain
the
standard.

Other
commenters
that
supported
the
incentive
feature
indicated
that
it
was
a
reasonable
method
of
harmonizing
the
8­
hour
ozone
classification
process
with
the
"
ill­
fitted"
provisions
of
Subpart
2.

Finally,
one
commenter
recognized
that
section
181
of
the
CAA
requires
areas
to
attain
the
standard
as
expeditiously
as
practicable
and
indicated
the
incentive
feature
is
thus
consistent
with
the
congressional
intent
of
Subpart
2.
The
commenter
stated
that
the
incentive
feature
is
particularly
appropriate
for
areas
that
want
to
commit
to
quicker
implementation
of
control
measures
so
that
the
8­
hour
ozone
standard
is
attained
more
expeditiously
than
required.

Response:
Because
EPA
has
determined
not
to
adopt
the
incentive
feature,
we
do
not
need
to
address
the
problems
cited.

Comment:
Many
of
the
commenters
addressed
the
modeling
that
would
be
used
as
the
basis
of
the
incentive
feature.
The
commenters
that
opposed
the
incentive
feature
raised
general
concerns
that
models
and
modeling
are
uncertain
and
weak
and
a
few
were
specifically
concerned
that
regionalscale
modeling
might
be
used
to
support
use
of
the
incentive
feature.
Many
of
the
commenters
that
supported
the
incentive
feature
addressed
the
type
of
modeling
that
should
form
the
basis
for
an
area's
request
to
receive
a
lower
classification.

The
commenters
opposed
to
the
incentive
feature
claimed
that
modeling
is
weak
and
uncertain
and
that
it
would
be
inappropriate
to
allow
states
to
avoid
the
mandatory
controls
of
a
higher
classification
based
on
these
weak
and
uncertain
modeling
results.
One
commenter
specifically
noted
that
these
areas
would
"
escape
more
vigorous
NSR
requirements,
transportation
conformity,
and
other
requirements."
One
commenter
claimed
that
EPA's
modeling
is
"
highly
suspect"
as
is
the
input
data.
Another
commenter
stated
that
the
abuse
or
inaccuracy
of
modeling
was
cited
by
the
Senate
Environment
and
Public
Works
committee
as
a
major
reason
for
a
lack
of
73
success
in
reducing
ozone
levels
in
the
1980'
s
and
that
the
burden
falls
on
EPA
to
justify
the
broad
substitution
of
modeling
for
emissions
reduction
that
is
contemplated
in
several
of
the
options
found
in
the
proposal.
Yet
another
commenter
said
that
it
would
be
inappropriate
and
reckless
to
attempt
to
replace
reliance
on
monitoring
data
with
a
reliance
on
predictions
and
projections.
Finally,
a
number
of
these
commenters
were
concerned
that
EPA
had
failed
to
identify
the
type
of
modeling
that
states
could
rely
on
to
receive
a
lower
classification
or
to
provide
any
details
about
the
modeling.

One
commenter,
in
support
of
statements
that
modeling
is
unreliable,
noted
that
in
meetings
with
South
Carolina
DHEC
on
March
25
of
2003,
DHEC
officials
stated
that
their
model
showed
that
it
would
be
doubtful
to
reach
attainment
by
2007
without
further
controls
on
industry
and
an
electricity
generating
unit.
However,
on
June
26th
of
2003,
after
EPA's
proposal
on
the
incentive
feature,
South
Carolina
claimed
they
would
be
able
to
reach
attainment
by
2007
based
upon
new
modeling.

Many
commenters
that
opposed
the
incentive
feature
as
well
as
some
who
supported
it,
opposed
the
use
of
regional­
scale
modeling
for
this
purpose.
Several
commenters
claimed
that
regional­
scale
modeling
does
not
meet
EPA's
modeling
guidance
for
attainment
demonstrations.
One
commenter
stated
that
EPA
itself
admits
"
is
not
considered
sufficient
for
an
approvable
attainment
demonstration."

Most
of
the
commenters
who
supported
the
incentive
feature
and
that
addressed
the
issue
of
the
type
of
modeling
that
should
be
used
supported
use
of
EPA
regional­
scale
modeling
to
make
determinations
of
which
Subpart
2
areas
should
receive
a
lower
classification.
One
of
these
commenters
noted
that
EPA
should
also
use
regional­
scale
modeling
to
identify
which
areas
will
not
attain
by
their
proposed
deadlines.

One
commenter
recommended
that
EPA
can
use
regional
scale
modeling
to
determine
which
areas
can
initially
receive
a
lower
classification,
but
the
Agency
should
still
allow
states
to
complete
local
modeled
demonstrations
if
they
choose.
In
either
case,
prior
to
classifications,
EPA
should
consider
modeled
demonstrations
rather
than
revising
classifications
at
a
later
time.
(
P.
2)

Response:
As
provided
above,
EPA
is
not
adopting
the
incentive
feature
and
thus
does
not
need
to
address
what
would
be
the
appropriate
models
to
be
required
for
implementing
the
incentive
feature.

Comment:
Those
commenters
that
opposed
the
incentive
feature
believed
it
largely
would
provide
a
mechanism
for
areas
to
avoid
controls
that
would
otherwise
be
mandated
and
that
are
necessary
for
clean
air.
Commenters
who
supported
use
of
the
incentive
feature
believed
it
provided
a
mechanism
for
areas
to
avoid
rigorous
and
unnecessary
planning
requirements.
Those
opposing
the
incentive
feature
noted
specific
programs
they
believed
areas
would
be
able
to
avoid,
such
as
NSR
and
RACT
because
lower
classifications
have
higher
major
source
thresholds
for
certain
stationary
source
controls
requirements
and
lower
offset
ratios.
Another
commenter
indicated
sources
would
74
be
able
to
avoid
the
requirement
to
pay
emissions
fees
and
that
certain
areas
would
not
be
subject
to
reformulated
gas
and
clean
fuel
programs.
Yet
another
commenter
noted
that
areas
receiving
a
marginal
classification
would
not
be
required
to
have
contingency
measures
or
an
attainment
plan.

One
commenter
claims
EPA
is
obligated
to
ensure
that
areas
can
meet
the
NAAQS
as
early
as
practicable
and
use
of
the
incentive
feature
would
not
fulfill
that
obligation.

Response:
Because
EPA
has
determined
not
to
adopt
the
incentive
feature,
we
need
not
address
whether
its
use
would
have
allowed
areas
to
avoid
controls.

Comment:
A
number
of
commenters
raised
concerns
about
what
would
happen
if
an
area
that
took
advantage
of
the
incentive
feature
and
failed
to
attain
by
the
earlier
date.
One
commenter
believed
that
further
delay
in
cleaning
air
would
occur.
One
commenter
raised
the
concern
that
if
an
area
fails
to
attain
by
the
earlier
attainment
date
and
it
is
then
reclassified
back
to
the
original
higher
classification,
the
state
will
have
less
time
to
get
appropriate
measures
in
place
and
likely
be
delayed
further
in
attaining
the
standard.
It
makes
more
sense
to
maintain
the
current
system
where
an
area
showing
actual
improved
air
quality
to
the
lower
classification
can
be
reclassified
at
that
time.

Response:
Because
EPA
has
determined
not
to
adopt
the
incentive
feature,
we
need
not
address
what
would
happen
if
the
area
received
a
lower
classification
and
did
not
attain
by
the
attainment
date.
In
general,
if
a
State
believes
a
nonattainment
area
has
a
classification
for
which
the
attainment
date
may
be
too
short
may
request
EPA
under
section
181(
b)(
3)
for
a
voluntary
reclassification
to
a
higher
classification;
EPA
is
required
to
grant
such
requests.

Comment:
Several
comments
on
the
draft
Sec.
51.903(
b)
provision
that
EPA
would
"
take
into
account
the
extent
to
which
the
area
significantly
contributes
to
nonattainment
or
interferes
with
maintenance
in
a
downwind
area."
The
commenters
suggested
that
the
provision
is
vague
and
needs
more
specificity.
The
commenters
believe
that,
when
a
finding
of
significant
contribution
to
nonattainment
or
interference
with
maintenance
is
made,
EPA
must
ensure
the
provisions
of
section
110(
a)(
2)(
d)
of
the
Clean
Air
Act
(
CAA)
are
met.
EPA
must
clearly
delineate
how
contributions
to
downwind
nonattainment
areas
will
be
addressed
in
this
context.
Another
commenter
also
noted
the
lack
of
specificity
of
this
provision
and
further
stated
that
provision
could
not
lawfully
be
applied
in
situations
where
it
would
adversely
affect
downwind
areas
 
for
example,
by
erasing
upwind
area
control
requirements
addressing
pollution
that
impacts
downwind
areas;
the
commenter
referenced
section
110(
a)(
2)(
D)
of
the
Act.

Response:
As
provided
above,
EPA
is
not
adopting
the
incentive
feature
and
thus
does
not
need
to
address
how
the
feature
would
work
related
to
an
area's
contribution
to
downwind
nonattainment.

Comment:
One
commenter
asked
EPA
to
identify
in
clear
regulatory
language
how
the
early
attainment
incentive
feature
would
work,
what
modeling
demonstrations
would
be
acceptable,
and
the
consequences
for
failure
to
meet
the
early
attainment
date
so
that
States
can
decide
if
pursuit
of
this
option
would
be
in
their
best
interest.
As
an
example,
the
commenter
noted
that
EPA
proposes
75
to
do
away
with
"
bump­
up"
provisions
for
areas
that
fail
to
meet
the
1­
hour
standard.
Unless
States
face
consequences
for
failing
to
meet
the
earlier
attainment
designation
under
the
incentive
feature,
EPA's
use
of
an
incentive
feature
may
be
inconsistent
with
its
"
anti­
backsliding"
policy.

Response:
Because
EPA
is
not
adopting
the
incentive
feature,
there
is
no
need
for
it
to
address
how
that
feature
would
work.
EPA
notes
that
the
commenter
may
be
interpreting
EPA's
statements
about
the
bump­
up
provisions
no
longer
applying
for
the
1­
hour
standard
to
also
mean
that
EPA
would
not
apply
those
provisions
for
the
8­
hour
standard.
That
is
not
so.
If
an
area
fails
to
attain
the
8­
hour
standard
by
its
8­
hour
attainment
date,
EPA
would
be
required
under
section
181(
b)(
2)
to
"
bump­
up"
the
area.

Comment:
One
commenter
who
supported
the
incentive
feature
also
suggested
that
if
an
area
can
demonstrate
that
federal
measures
alone
will
bring
it
into
attainment
of
the
8­
hour
standard
then
it
should
have
the
ability
to
request
a
single
bump­
up
or
reclassification.

Response:
We're
not
sure
if
the
commenter
meant
to
use
the
term
"
bump
down."
The
CAA
requires
areas
to
attain
the
national
ambient
air
quality
standards
as
expeditiously
as
practicable.
See,
e.
g.,
CAA
sections
172(
a)(
2)
and
181(
a)(
1).
If
an
area
believes
that
it
cannot
attain
the
8­
hour
ozone
NAAQS
by
the
attainment
date
for
its
classification,
it
can
request
a
"
bump­
up"
to
a
higher
classification
under
section
181(
b)(
3).
If
an
area
is
reclassified
to
a
higher
classification,
it
becomes
subject
to
all
of
the
requirements
applicable
for
that
classification.

Comment:
Several
commenters
suggested
that
the
use
of
the
incentive
feature
be
expanded
to
allow
marginal
areas
to
qualify
for
a
lower
classification
(
e.
g.,
a
marginal
area
to
be
reclassified
under
subpart
1).
Similarly,
one
commenter
suggested
that
the
same
idea
behind
the
incentive
feature
 
the
concept
of
considering
benefits
that
will
be
occurring
from
scheduled
emission
reductions
 
should
also
be
used
to
determine
whether
an
area
should
be
Subpart
1
or
Subpart
2.

Response:
As
provided
above,
EPA
has
determined
not
to
adopt
the
incentive
feature.
However,
even
if
EPA
did
adopt
the
incentive
feature,
EPA
does
not
believe
that
it
could
be
used
to
relieve
marginal
areas
of
the
requirements
of
subpart
2.
In
Whitman,
the
Supreme
Court
held
that
there
is
no
gap
in
the
statute
and
that
subpart
2
applies
to
areas
with
air
quality
levels
at
or
above
0.121
for
the
1­
hour
standard
­
the
level
reflected
in
table
1
in
section
181(
a)(
1).
EPA
does
not
see
a
legal
basis
allowing
areas
to
be
reclassified
from
subpart
2
to
subpart
1.

Comment:
One
commenter
that
supported
the
incentive
feature
felt
that
it
should
be
used
to
further
reduce
the
amount
of
time
that
an
area
was
subject
to
transportation
and
general
conformity
 
specifically
noting
the
requirement
that
an
area
remain
subject
to
conformity
during
the
two
successive
10­
year
maintenance
plan
periods
(
for
a
total
of
20
years)
after
an
area
is
redesignated
to
attainment.
Response:
Section
176(
c)(
5)
of
the
CAA
makes
clear
that
an
area
required
to
have
a
maintenance
plan
under
section
175A
remains
subject
to
general
and
transportation
conformity.
Section
175A
requires
areas
that
are
redesignated
from
nonattainment
to
attainment
to
develop
2
maintenance
76
plans
that
provide
for
maintenance
for
20
years
following
redesignation
to
attainment.
EPA
sees
no
legal
authority
for
modifying
this
statutory
mandate.

Comment:
One
commenter
urged
EPA
not
to
consider
whether
an
area
contributes
to
nonattainment
downwind
in
deciding
whether
to
let
the
area
take
advantage
of
the
incentive
feature.
The
commenter
suggested
that
the
EPA
should
consider
additional
controls
"
upwind"
only
if
EPAapproved
modeling
predicts
a
downwind
area
will
not
meet
the
8­
hour
ozone
standard
as
a
result
of
reductions
from
the
NOx
SIP
call,
the
Federal
Motor
Vehicle
Emissions
Control
Program,
other
"
on
the
way"
controls,
and
additional
local
controls
(
beyond
the
"
on
the
way"
regional
and
national
controls)
will
not
bring
the
area
into
attainment.

Similarly,
another
commenter
raised
a
concern
that
the
reference
to
"
significant"
downwind
contribution
is
vague
and
might
ultimately
be
used
as
the
rationale
for
making
an
area
ineligible
for
a
lower
classification
or
eligible
far
a
higher
classification.
The
commenter
suggested
that
the
purpose
of
an
area's
classification
is
to
indicate
both
the
severity
of
the
ozone
problem
and
the
time
needed
to
provide
for
attainment
and
that
the
area's
downwind
contribution
is
a
separate
matter
from
the
classification
process.
If
EPA
chooses
to
use
significant
downwind
contributions
as
a
factor
when
determining
the
adequacy
of
a
SIP,
then
that
should
be
spelled
out
in
the
regulatory
proposal
and
not
intertwined
with
the
issue
of
classifications.

Response:
As
provided
above,
EPA
is
not
adopting
the
incentive
feature
and
thus
does
not
need
to
address
the
role
that
transported
emissions
might
play
in
determining
whether
an
area
is
eligible
to
receive
a
lower
classification
under
the
incentive
feature.

Comment:
One
commenter
claimed
that
the
NAAQS
classification
and
SIP
planning
process
will
have
little
effect
on
future
reductions
in
ozone
precursors
and
that
this
argues
for
classifying
as
many
areas
as
possible
under
Subpart
1,
and
adopting
the
incentive
feature
that
would
allow
additional
areas
to
be
classified
under
less
restrictive
and
bureaucratic
regulatory
regimes.

Response:
EPA
disagrees
with
the
general
premise
stated
by
the
commenter
 
that
classifications
and
the
development
of
SIPs
pursuant
to
those
classifications
 
will
provide
little
in
the
way
of
emission
reductions.
Regardless,
for
the
reasons
provided
above,
EPA
is
not
adopting
the
incentive
feature.
However,
EPA
notes
that
one
of
its
goals
in
the
implementation
rulemaking
is
to
provide
areas
with
flexibility
where
allowed
by
the
CAA.

Comment:
One
commenter
was
concerned
that
the
incentive
feature
does
not
help
downwind
areas
affected
by
transport,
such
as
many
West
Michigan
counties,
which
are
unable
to
demonstrate
attainment
until
the
upwind
area
meets
its
attainment
date.

Response:
As
provided
above,
EPA
is
not
adopting
the
incentive
feature.
The
commenter
is
correct,
however,
that
if
adopted,
it
would
not
provide
relief
to
areas
that
would
be
unable
to
demonstrate
attainment
until
an
upwind
area
or
areas
install
sufficient
emission
controls.
77
Comment:
Several
commenters
supported
allowing
areas
to
submit
the
required
demonstration
of
attainment
after
the
initial
classification
at
a
higher
level,
rather
than
requiring
such
submittals
prior
to
the
initial
classification
because
of
the
quickly­
approaching
designation
date
of
April
15,
2004
would
provide
little
opportunity
for
the
showing
before
designation.
One
commenter
stated
that
EPA
should
allow
for
the
modeled
demonstration
to
be
submitted
after
the
initial
classification
to
allow
states
the
time
to
fully
evaluate
this
option
and
conduct
the
modeling
necessary
to
support
the
lower
classification.
The
commenter
noted,
however,
that
if
EPA
determines
that
the
incentive
feature
must
be
applied
for
prior
to
the
initial
classifications,
areas
should
be
allowed
to
use
EPA's
regional­
scale
modeling
rather
than
urban­
scale
modeling
to
make
the
determination
of
the
lower
classification.
One
commenter
specifically
noted
that
or
many
areas
in
California
state­
of­
the­
art
photochemical
ozone
modeling
is
currently
being
developed
to
better
understand
the
processes
involved
in
ozone
formation
and
transport
throughout
California
and
such
modeling
won't
be
available
until
after
the
designations.

Other
commenters
believed
the
documentation
should
be
submitted
and
resolved
at
the
time
of
the
initial
designation
and
classification
in
April
2004.
These
commenters
generally
supported
reliance
on
regional
scale
modeling
to
establish
the
initial
classification.
And
one
commenter
suggested
that
states
be
required
to
follow
up
within
a
year
or
so
of
designations
with
local
scale
modeling.

Response:
As
provided
above,
EPA
is
not
adopting
the
incentive
feature
and
thus
does
not
need
to
address
what
would
be
the
appropriate
timing
for
submission
of
modeled
demonstrations
to
support
the
use
of
the
incentive
feature
in
a
particular
area.

Comment:
One
comment
on
draft
Sec.
51.903(
b)
noted
that
the
section
allows
States
12
months
to
request
a
lower
classification
for
areas
designated
under
Table
1
and
to
demonstrate
that
the
area
will
attain
by
the
earlier
attainment
date.
The
commenter
noted
a
complete
modeling
study
cannot
be
completed
in
the
timeframe
EPA
has
set.
At
a
minimum,
States
should
be
allowed
to
demonstrate
attainment
not
only
through
modeling,
but
alternatively
by
a
weight­
of­
evidence
approach
using
monitoring
data
and
trends
analysis.
The
section
does
not
indicate
what
recourse
States
have
if
EPA
fails
to
take
action
within
the
24
months
allotted
for
its
decision.

Response:
As
provided
above,
EPA
is
not
adopting
the
incentive
feature
and
thus
does
not
need
to
address
the
details
of
the
modeled
demonstration
needed
under
the
incentive
feature,
nor
what
recourse
States
have
if
EPA
fails
to
take
action
within
the
24
months
alloted.
78
B.
ATTAINMENT
DATES
1.
HOW
WILL
EPA
TREAT
ATTAINMENT
DATES
FOR
THE
8­
HOUR
OZONE
STANDARD?

Attainment
Dates
Comment:
Several
commenters
reiterated
the
CAA's
requirement
that
areas
attain
the
standard
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
and
downwind
states
that
upwind
states
are
meeting
their
longer­
term
compliance
deadlines.
Other
commenters
felt
that
the
attainment
dates
under
both
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
frames
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
three
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
frames
established
under
subpart
2
of
the
CAA
from
the
date
of
8­
hour
nonattainment
designations.
In
addition,
a
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.

One
commenter
claimed
that
in
both
Options
1
and
2,
EPA
has
not
established
reasonable
deadlines
for
attainment.
EPA
must
use
its
discretionary
authority
to
allow
a
realistic
time
frame
for
attainment.
Flexibility
is
a
critical
principle
for
implementing
the
new
standard
to
ensure
that
areas
implement
the
most
efficient
and
effective
SIPs.

Response:
As
stated
in
our
June
2,
2003
proposal,
under
subpart
2
of
the
CAA,
maximum
attainment
dates
and
most
SIP
submittal
dates
are
fixed
as
a
function
of
a
nonattainment
area's
classification
under
Table
1.
The
CAA
provides
that
an
area's
attainment
date
must
be
"
as
expeditious
as
practicable
but
no
later
than"
the
date
prescribed
in
Table
1
for
that
area's
classification.
The
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
attainment
dates
that
have
already
passed
for
areas
in
the
lower
classifications.
Consequently,
we
have
determined
that
attainment
dates
will
run
from
the
effective
date
of
designations
and
classifications
for
the
8­
hour
ozone
NAAQS.
We
anticipate
that
the
79
designations
will
be
effective
on
June
1,
2004,
which
means
the
corresponding
attainment
dates
would
be
June
1
of
the
appropriate
year.

Although
a
direct
application
of
the
statute
as
written
would
produce
absurd
results,
we
do
not
believe
that
this
gives
EPA
broad
discretion
in
re­
writing
the
statute.
Rather,
we
believe
we
must
apply
the
statute
as
Congress
would
have
intended.
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
three
years
from
the
effective
date
of
designations
for
the
8­
hour
standard
in
2007,
the
moderate
attainment
being
six
years
from
the
effective
date
of
designations
for
the
8­
hour
standard
in
2010,
etc.

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
for
areas
subject
to
subpart
1
or
2
as
several
commenters
suggested.
All
areas
are
required
to
attain
as
expeditiously
as
practicable
and
cannot
defer
attainment
if
there
are
reasonable
controls
available.
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.
Consequently,
if
an
area
submits
an
approvable
attainment
demonstration
showing
that
they
can
attain
the
8­
hour
standard
in,
e.
g.,
four
years,
the
area's
attainment
date
will
be
four
years
from
the
effective
date
of
designations
for
the
8­
hour
NAAQS.

Comment:
One
commenter
thinks
that
the
appropriate
commencement
date
for
the
implementation
strategy
should
be
the
date
that
areas
are
designated
by
EPA
under
the
8­
hour
ozone
NAAQS.
This
issue
also
encompasses
a
number
of
timing
subissues
including
when
the
1­
hour
ozone
NAAQS
should
be
made
ineffective,
when
should
attainment
dates
occur,
when
will
new
rate
of
progress
(
ROP)
submissions
be
made,
when
should
attainment
demonstrations
be
due,
and
when
do
transportation
conformity
requirements
take
effect.
All
of
these
timing
issues
should
work
from
the
same
reference
point
­
the
date
areas
are
designated.

Response:
We
agree
with
the
commenter.
The
time
frames
in
the
final
rule
for
SIP
submissions
(
attainment
demonstrations
and
reasonable
further
progress
plans)
and
attainment
dates
run
from
the
effective
date
of
8­
hour
designations.
As
noted
in
the
proposed
rule,
conformity
applies
one
year
after
the
effective
date
of
a
nonattainment
designation.
80
B.
2.
HOW
WILL
EPA
ADDRESS
THE
PROVISION
REGARDING
1­
YEAR
EXTENSIONS?

Comment:
The
commenters
generally
supported
EPA's
proposed
interpretation
for
granting
up
to
two
1­
year
attainment
date
extensions.
One
commenter
requested
clarification
that
the
4th
highest
daily
average
8­
hour
ozone
concentration
that
would
be
used
to
grant
the
extensions
would
be
calculated
on
a
monitor
by
monitor
basis.
The
commenter
further
expressed
support
for
this
approach
since
it
is
consistent
with
how
EPA
determines
whether
an
area
is
violating
the
8­
hour
NAAQS.

Response:
No
commenters
opposed
this
aspect
of
EPA's
proposal.
The
final
rule
clarifies
that
the
area's
4th
highest
daily
8­
hour
average
shall
be
from
the
monitor
with
the
highest
4th
highest
daily
8­
hour
average
of
all
the
monitors
that
represent
that
area.
81
C.
HOW
WILL
EPA
IMPLEMENT
THE
TRANSITION
FROM
THE
1­
HOUR
TO
THE
8­
HOUR
STANDARD
IN
A
WAY
TO
ENSURE
CONTINUED
MOMENTUM
IN
STATES'
EFFORTS
TOWARD
CLEANER
AIR?

1.
WHEN
WILL
EPA
REVOKE
THE
1­
HOUR
STANDARD?
(
Section
VI.
C.
2.
of
proposed
rule;
68
FR
32819;
Section
50.9(
b)
of
the
draft
regulatory
text
and
final
rule)

VI.
C.
2.
When
will
EPA
revoke
the
1­
hour
standard?

General
Summary
of
Comments:
A
number
of
the
commenters
indicated
support
for
Option
1
 
that
the
1­
hour
standard
be
revoked
in
whole
one
year
following
designations
for
the
8­
hour
standard,
while
only
a
few
commenters
supported
Option
2
 
partial
revocation
of
the
1­
hour
standard
one
year
following
designations
for
the
8­
hour
standard.
The
commenters
who
supported
Option
1
seemed
to
differ
on
the
extent
to
which
planning
obligations
for
the
1­
hour
standard
should
remain
in
place.
A
number
of
the
commenters
cited
the
strong
anti­
backsliding
provisions
as
the
basis
for
their
support
for
revoking
the
1­
hour
standard
one
year
after
8­
hour
designations.
Others,
however,
urged
EPA
to
eliminate
1­
hour
planning
obligations
so
that
areas
could
focus
on
planning
for
the
8­
hour
standard.

Many
commenters
did
not
support
either
option
proposed
by
EPA
and,
instead,
recommended
their
own
alternatives.
In
general,
these
commenters
comprised
two
groups.
The
first
group
urged
that
the
1­
hour
standard
be
revoked
immediately
upon
designations
for
the
8­
hour
standard.
The
second
group
generally
disfavored
revocation
of
the
1­
hour
standard
until
additional
actions
had
occurred.
Many
of
these
latter
commenters
suggested
that
revocation
be
linked
to
progress
in
meeting
the
1­
hour
standard
 
i.
e.,
that
it
not
be
revoked
for
an
area
until
that
area
met
the
1­
hour
standard.
Others
suggested
revocation
be
linked
to
progress
under
the
8­
hour
standard
 
i.
e.,
at
the
time
EPA
approves
an
8­
hour
SIP
for
an
area..
Finally,
a
number
of
commenters
proposed
specific
revocation
approaches
for
specific
types
of
areas
(
e.
g.,
an
area
that
is
attaining
both
standards
and
Early
Action
Compact
areas).
The
comments
addressing
the
time
when
the
1­
hour
standard
will
be
revoked
are
described
more
fully
below.
To
the
extent
these
commenters
raised
related
issues
concerning
the
continued
obligation
to
adopt
and/
or
implement
measures
for
the
1­
hour
standard,
we
summarize
and
respond
to
those
comments
in
section
C.
2.
of
this
RTC
document.

Comment:
A
large
number
of
commenters
stated
general
support
for
Option
1,
but
did
not
provide
significant
reasons
beyond
those
stated
by
EPA
in
its
proposal.

A
number
of
commenters
stated
that
they
supported
Option
1
because
it
would
simplify
implementation
and
avoid
wasting
State
resources.
These
commenters
either
generally
or
in
more
detail
suggested
that
retaining
the
1­
hour
standard
for
a
longer
period
of
time
would
divert
state
resources
from
planning
for
the
8­
hour
standard.
They
noted
that
implementation
of
the
8­
hour
standard
would
require
commitment
of
significant
resources
by
states
and
local
areas
and
that
expeditious
phase­
out
of
the
1­
hour
standard
is
essential
to
successful
implementation
of
the
8­
hour
82
standard
so
that
state
and
local
governments
could
focus
limited
resources
on
implementation
of
the
8­
hour
NAAQS.
One
commenter
stated
that
by
having
only
one
standard
in
place
EPA
will
be
facilitating
the
development
and
implementation
of
measures
to
advance
attainment
of
the
8­
hour
ozone
standard
more
quickly
than
if
areas
were
subject
to
two
different
standards
simultaneously.
Required
implementation
of
existing
1­
hour
ozone
SIPs
will
ensure
that
progress
continues
without
interruption
but
will
allow
States
to
concentrate
efforts
on
developing
SIPS
for
attainment
of
the
8­
hour
standard
and
will
help
state
environmental
and
transportation
agencies
best
utilize
limited
resources
in
developing
attainment
and
conformity
SIPs
to
meet
the
8­
hour
ozone
standard.
One
commenter
also
noted
that
if
the
1­
hour
standard
is
retained,
state
and
local
agencies
would
need
to
devote
resources
to
tracking
compliance
with
the
1­
hour
standard
and
that
such
efforts
are
duplicative
and
counterproductive
for
state
agencies
with
limited
resources
in
light
of
the
fact
that
the
8­
hour
standard
is
more
stringent
and
more
protective
of
human
health
and
the
environment.
One
commenter
believed
that
requiring
MPOs,
states
and
federal
agencies
to
work
with
two
different
standards
would
be
burdensome
on
staff
and
would
result
in
negligible
additional
benefits
and
noted
that
EPA
has
stated
previously
that
the
8­
hour
standard
is
a
better
measure
of
harmful
impacts
on
human
beings
and
it
supercedes
the
1­
hour
standard
in
protecting
the
public.
Another
commenter
stated
that
while
progress
toward
compliance
with
the
1­
hour
standard
should
not
be
sacrificed,
full
resources
should
be
applied
toward
compliance
with
the
8­
hour
standard.
State
planning
resources
are
finite
and
simultaneously
managing
the
planning
process
for
both
standards
dilutes
the
efficiency
and
efficacy
of
that
process.
One
commenter
preferred
the
first
revocation
option
to
the
second
because
it
seemed
to
the
commenter
to
provide
more
certainty
in
the
conformity
process.
This
commenter
is
concerned
that
Option
2
would
require
that
conformity
be
done
for
both
the
1­
hour
standard
and
the
8­
hour
standard
at
the
same
time,
until
areas
attain
the
1­
hour
standard.
However,
the
commenter
acknowledged
that
if
conformity
does
not
apply
for
both
standards
at
once,
then
option
2
could
be
acceptable.
One
commenter,
in
supporting
revocation
of
the
1­
hour
standard,
claimed
it
is
wasteful
of
valuable
resources
for
States
to
be
developing
multiple
plans
yielding
potentially
conflicting
control
measures.

Several
commenters
supported
Option
1
(
revocation
in
whole)
because
it
is
simpler
and
less
confusing
than
Option
2
(
revocation
in
part).
One
commenter
also
noted
that
since
both
options
would
achieve
the
same
result
in
terms
of
anti­
backsliding,
the
less
confusing
option
 
Option
1
 
should
be
chosen.

Many
of
the
commenters
who
supported
Option
1
noted
that
it
is
not
necessary
to
keep
the
1­
hour
standard
in
effect
because
the
8­
hour
standard
is
more
protective
and
there
are
strong
antibacksliding
measures.
Elaborating
on
this
point,
one
commenter
recognized
that
the
proposal
would
ensure
that
sufficient
protections
would
remain
in
place
to
allow
areas
to
transition
from
compliance
with
1­
hour
ozone
requirements
to
compliance
with
the
8­
hour
ozone
requirements.
For
example,
requiring
the
implementation
of
existing
1­
hour
ozone
SIPs
will
ensure
that
progress
continues
without
interruption
and
allow
States
to
concentrate
their
efforts
on
developing
SIPS
for
attainment
of
the
8­
hour
standard
and
deciding
what
additional
controls
may
be
needed
to
augment
existing
or
planned
federal
and
state
controls.
Yet
another
commenter
conditioned
support
of
Option
1
on
the
83
existence
of
strong
and
effective
steps
being
taken
to
prevent
any
potential
for
back­
sliding
during
the
transition.

A
couple
of
commenters
indicated
that
they
believed
Option
1
is
consistent
with
Whitman
 
which
clearly
rejected
any
simultaneous
implementation
approach.
Several
other
commenters
said
that
Option
1
is
reasonable
in
light
of
the
Supreme
Court's
ruling
under
Whitman
because
EPA
has
maintained
the
integrity
of
the
CAA
Subpart
2
provisions
through
strong
anti­
backsliding
measures
for
existing
1­
hour
controls
and
subsequent
8­
hour
classifications
while
providing
appropriate
flexibility
to
state
and
local
planning
entities.
This
provides
adequate
protection
of
human
health
and
the
environment.
With
a
more
protective
8­
hour
standard
and
strong
anti­
backsliding
measures
to
keep
existing
1­
hour
controls
in
place,
the
administrative
and
planning
requirements
for
keeping
the
1­
hour
standard
in
effect
are
not
justified,
are
no
longer
necessary,
and
thus
would
be
an
unreasonable
severe
drain
on
limited
state
and
local
resources.

One
commenter
noted
that
each
of
the
two
previous
versions
of
40
C.
F.
R.
§
50.9(
b)
 
i.
e.,
as
originally
promulgated
in
1997
and
as
revised
in
2000
 
required
revocation
rather
than
indefinite
retention
of
the
1­
hour
NAAQS.
Neither
the
1997
nor
the
2000
rulemaking
actions
addressing
revocation
were
the
subject
of
a
timely
challenge
in
the
U.
S.
Court
of
Appeals
for
the
D.
C.
Circuit.
See
CAA
§
307(
b).
The
commenter
believes
that
the
fundamental
policy
decision
that
the
1­
hour
NAAQS
should
be
revoked,
a
decision
made
by
EPA
more
than
six
years
ago,
should
not
be
revisited.
The
commenter
also
believes
that
EPA's
basic
proposal
to
revoke
the
1­
hour
NAAQS
in
all
areas
one
year
after
the
effective
date
of
8­
hour
designations
is
appropriate
for
the
reasons
given
in
EPA's
June
2
proposal
and
should
be
made
final.

Response:
The
final
rule
incorporates
the
option
supported
by
these
commenters
 
Option
1
revocation
of
the
1­
hour
standard
in
whole
one
year
after
the
effective
date
of
the
8­
hour
designations.
We
generally
agree
with
the
points
the
commenters
make
about
the
benefits
of
Option
1,
such
as
it
would
simplify
implementation,
avoid
wasting
State
resources,
and
facilitate
the
development
and
implementation
of
measures
to
advance
attainment
of
the
8­
hour
ozone
standard
more
quickly.
It
is
simpler
and
less
confusing
than
Option
2,
it
is
not
necessary
to
keep
the
1­
hour
standard
in
effect
because
the
8­
hour
standard
is
more
protective
and
there
are
strong
antibacksliding
measures,
and
Option
1
is
consistent
with
Whitman.

We
note
that
several
commenters
indicated
that
they
believed
that
Option
1
is
consistent
with
the
Supreme
Court's
decision.
However,
the
issue
of
when
the
1­
hour
standard
should
no
longer
apply
was
not
raised
to
and
thus
was
not
addressed
by
the
Court.
The
sole
implementation
issue
before
the
Court
was
whether
areas
designated
nonattainment
for
the
8­
hour
ozone
NAAQS
were
subject
to
the
classification
provisions
of
subpart
2.
As
indicated
more
fully
in
the
preamble,
as
part
of
our
NAAQS­
setting
authority,
EPA
also
has
the
authority
to
determine
that
a
standard
is
no
longer
necessary
to
protect
public
health.
EPA
made
that
determination
in
1997
and
was
then
faced
with
the
decision
as
to
how
to
transition
from
the
existing
standard
(
which
is
not
necessary
to
protect
public
health)
to
the
new
health­
based
standard.
The
CAA
does
not
explicit
address
this
issue
when
the
new
NAAQS
is
more
stringent
than
the
existing
NAAQS.
EPA
believes
Option
1,
84
in
conjunction
with
the
strong
antibacksliding
provisions
in
this
rule,
appropriately
balances
the
need
to
ensure
continued
progress
toward
reducing
ozone
levels
while
not
unduly
encumbering
states
with
continued
obligations
for
the
old
standard.

Comment:
One
commenter
suggested
that
EPA
consider
other
options
with
regard
to
the
timing
of
the
revocation
if
a
state
submits
an
8­
hour
attainment
demonstration
prior
to
one
year
after
the
effective
date
of
the
8­
hour
designation.
Other
options
could
include:
upon
submittal
of
an
8­
hour
attainment
demonstration,
or
upon
EPA's
determination
of
completeness
of
an
8­
hour
attainment
demonstration.

Response:
The
June
2,
2003
proposal
noted
that
we
did
consider
other
options
for
revoking
the
1­
hour
standard.
See
68
FR
32820.
The
options
urged
by
the
commenter
would
potentially
result
in
revocation
of
the
1­
hour
standard
only
a
few
months
prior
to
the
time
when
revocation
would
normally
result
under
option
1
which
we
are
adopting.
Options
such
as
those
suggested
by
the
commenter
would
add
a
level
of
administrative
complexity
since,
because
these
dates
are
uncertain,
EPA
would
need
to
take
action
to
revise
the
CFR
to
reflect
that
the
standard
had
been
revoked
for
a
specific
area
when
the
event
occurred.
In
general,
we
do
not
anticipate
that
many
areas
would
be
able
to
take
advantage
of
such
a
provision
due
to
the
short
period
in
which
they
would
need
to
take
action
and
thus
any
such
provision
would
have
limited
applicability.
Similarly,
since
the
standard
would
be
revoked
within
one
year
of
designations
(
only
slightly
more
than
one
year
from
now)
there
would
be
little
to
no
benefit
to
the
areas
affected.
Thus,
we
do
not
believe
that
this
option
warrants
the
administrative
effort.

Comment:
Another
commenter
believed
that
the
most
effective
way
to
continue
progress
during
the
transition
from
the
1­
hour
to
the
8­
hour
standard
is
to
retain
the
1­
hour
standard
until
EPA
approves
an
8­
hour
SIP
for
each
nonattainment
area.
The
commenter
noted
that
the
June
2,
2003
proposed
rule
(
40
CFR
Part
51
pp.
32819)
held
that
the
"
deciding
factor
supporting
the
schedule
for
the
revocation
is
to
ensure
that
areas
do
not
have
to
perform
conformity
analyses
for
both
the
1­
hour
and
the
8­
hour
standards
at
the
same
time."
The
commenter
believes
that
the
premise
for
this
decision
is
flawed
since
budgets
are
established
in
the
SIP
development
process
and
therefore
an
8­
hour
budget
would
not
be
established
until
2007
at
the
earliest.
If
the
1­
hour
budgets
no
longer
apply
in
the
2005
timeframe,
areas
will
simply
have
to
conduct
a
"
build/
no­
build''
test
until
8­
hour
budgets
are
established.
In
addition
to
not
revoking
the
1­
hour
ozone
standard
until
an
8­
hour
SIP
is
approved
by
EPA,
the
commenter
recommends
that
areas
should
be
bound
to
their
established
1­
hour
emission
budgets
until,
new
8­
hour
budgets
are
approved
through
the
SIP
development
process.

Response:
EPA
proposed
conformity
regulations
for
the
new
8­
hour
ozone
standard
and
new
fine
particulate
matter
standard
on
November
5,
2003
(
68
FR
62690
­
62729).
We
proposed
that
new
8­
hour
ozone
areas
that
have
1­
hour
ozone
SIPs
would
meet
one
of
several
tests
for
fulfilling
8­
hour
ozone
conformity
requirements.
We
proposed
to
offer
a
menu
of
options
depending
on
how
the
8­
hour
area
boundary
relates
to
the
1­
hour
area
boundary.
We
will
consider
the
issue
raised
by
the
85
commenter
and
provide
a
full
response
in
the
context
of
that
rulemaking.
See
docket
number
OAR­
2003­
0049
for
the
complete
response
to
these
comments.

Comment:
A
few
commenters
favored
Option
2
 
revoking
the
1­
hour
standard
in
part
one
year
after
designations
for
the
8­
hour
standard.
In
general,
these
commenters
believed
that
this
option
was
more
protective
of
air
quality
and
more
consistent
with
the
anti­
backsliding
requirements.
One
commenter
believed
that
partial
revocation
is
a
more
clear
approach
because,
as
EPA
discusses,
Congress
intended
for
states'
obligations
under
Subpart
2
to
continue
to
apply
as
a
matter
of
law,
and
the
1­
hour
designations
are
the
mechanism
Congress
identified
for
triggering
applicability
of
these
requirements.
One
commenter,
which
supported
a
delay
in
revoking
the
standard
indicated
that
of
the
two
options
proposed
by
EPA,
Option
2
was
preferable
because
although
EPA
has
assured
the
public
that
the
same
emission
control
requirements
would
remain
in
place
regardless
of
which
option
is
chosen,
persons
considering
investing
resources
to
develop
new
emission
control
technologies
will
not
perceive
as
serious
a
rollback
of
attainment
efforts
if
the
standard
is
only
partially
revoked.

Response:
We
believe
that
Option
1
is
preferable
to
Option
2
since
it
is
more
straightforward
and
easier
to
understand
than
Option
2,
as
evidenced
by
the
significant
support
for
this
option.
Since
both
options
would
produce
the
same
substantive
result,
we
have
selected
Option
1.

Comment:
The
commenters
that
opposed
both
options
proposed
by
EPA
did
so
based
on
a
variety
of
policy
and
legal
concerns.
Many
of
these
commenters
opposed
the
two
options
because
the
commenters
believed
they
would
undermine
on­
going
state
planning
processes
in
major
metropolitan
areas
designed
to
lower
harmful
ozone
concentrations
as
part
of
the
efforts
to
achieve
the
1­
hour
ozone
standard.
In
particular,
a
number
of
the
commenters
stated
that
the
two
proposed
revocation
options
would
delay
the
time
areas
are
required
to
reduce
emissions
to
meet
the
ozone
health
standard
because
the
areas
will
be
given
a
new,
later
date
for
attainment
of
the
ozone
standard.
For
example,
one
commenter
noted,
under
the
l­
hour
standard,
the
Philadelphia
area
must
reach
attainment
by
2005,
but,
under
the
expected
8­
hour
classification
for
the
area,
Philadelphia
will
not
have
to
attain
until
2010.
The
commenter
believed
that
Option
1
created
an
absurd
result
by
not
requiring
the
area
to
meet
the
2005
attainment
obligation.
Another
commenter
referred
to
Atlanta,
which
has
a
1­
hour
attainment
date
of
2004,
but
will
likely
be
classified
as
"
severe­
15"
with
an
attainment
date
of
2019
for
the
8­
hour
standard.
Currently,
if
the
area
fails
to
meet
its
2004
attainment
date,
it
will
be
bumped
up
to
severe,
which
would
trigger
additional
control
requirements.
Because
of
the
longer
attainment
date
for
the
8­
hour
standard,
Atlanta
will
avoid
having
to
take
a
number
of
meaningful
actions
to
reduce
ozone
pollution
for
another
15
years.
The
abandonment
of
the
1­
hour
standard
in
this
manner
disregards
Congressional
intent
to
ensure
that
areas
out
of
attainment
reduce
ozone
levels
in
a
timely
manner.
Another
commenter
referenced
areas
such
as
Houston
and
Dallas,
which
have
put
enormous
amounts
of
time
and
energy
into
developing
SIPs
to
meet
the
1­
hour
standard.
Much
of
the
air
pollution
regulation
in
Texas
has
been
driven
by
SIP
deadlines
and
removing
the
1­
hour
requirements
and
deadlines
will
result
in
pressure
on
Texas
and
other
states
to
eliminate
the
more
onerous
provisions
of
their
SIPs,
resulting
in
more
air
pollution
and
delays
in
the
short
term.
Another
commenter
cited
the
South
Coast
Area
in
86
California
and
noted
that
areas
classified
as
severe­
17
for
the
8­
hour
standard
would
have
a
2021
attainment
date
and
that
such
a
later
date
should
not
be
a
basis
for
delaying
progress.
Another
commenter
also
foresaw
possible
delays
in
the
Houston
area.

One
of
these
commenters
claimed
that
even
if
EPA
has
authority
to
revoke
the
1­
hour
standard
prior
to
its
attainment,
the
proposed
rule
and
regulatory
text
contain
no
assurance
that
the
progress
that
would
have
occurred
under
1­
hour
standard
SIPS
(
e.
g.
attainment
of
the
1­
hour
standard
by
currently­
applicable
attainment
deadlines)
would
be
preserved
or
that
the
1­
hour
standard
would
ever
be
attained.
Thus,
the
proposed
regulatory
text
does
not
ensure
compliance
with
the
Act's
anti­
backsliding
requirements,
or
with
requirements
for
reasonable
further
progress.
Similarly,
it
is
important
that
the
1­
hour
standard
remain
in
effect
to
assure
that
it
will
be
achieved.
This
commenter
claimed
that
the
proposal
to
revoke
the
1­
hour
standard
prior
to
its
attainment
has
real
potential
to
delay
progress
toward
clean
air,
by
eliminating
an
enforceable
attainment
deadline
and
replacing
it
with
a
one
that,
in
South
Coast,
will
likely
be
eleven
years
later.
This
proposal
could
undermine
incentives
for
expeditious
actions
by
governmental
bodies
as
well
as
by
persons
involved
in
developing
and
commercializing
the
advanced
control
technologies
that
will
be
needed
for
the
area
to
attain.
Even
if
the
8­
hour
standard
were
in
all
cases
more
health­
protective
than
the
1­
hour
standard,
this
would
not
be
a
sufficient
basis
for
revoking
the
1­
hour
standard.
At
present,
nonattainment
areas
have
deadlines
for
attaining
the
1­
hour
standard
that
are
well
in
advance
of
their
expected
deadlines
for
attaining
the
8­
hour
standard.
The
RFP
requirements
of
the
policy
for
implementing
the
8­
hour
standard
do
not
assure
that
the
1­
hour
standard
will
be
met
in
a
timely
fashion,
or
ever.
Therefore,
the
1­
hour
standard
should
be
retained
to
assure
steady
progress
toward
health
protective
air
quality
and
no
delays
relative
to
existing
legal
requirements.
Another
commenter
believed
that
controls
to
achieve
the
8­
hour
standard
should
be
implemented
as
expeditiously
as
practicable.

Response:
The
strong
anti­
backsliding
provisions
in
section
51.905
will
ensure
not
only
that
controls
already
adopted
under
the
1­
hour
standard
continue
to
be
implemented
until
an
area
attains
the
8­
hour
ozone
standard,
but
also
that
there
will
be
no
or
minimal
delay
in
obtaining
additional
emission
reductions
comparable
to
those
that
would
have
been
required
had
the
1­
hour
standard
remained
in
place.
Although
attainment
of
the
1­
hour
standard
would
no
longer
be
a
goal,
the
provisions
of
section
51.905
would
retain
the
control
measures
and
the
planning
obligations
(
or
substitutes
for
those
obligations)
required
for
the
1­
hour
standard.
For
example,
areas
would
still
be
obligated
to
meet
ROP
goals
in
their
SIPs
and
to
either
plan
separately
for
outstanding
1­
hour
ROP
obligations
or
to
ensure
that
those
obligations
would
be
met
through
planning
for
the
8­
hour
SIP.
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
emission
reductions
toward
meeting
the
8­
hour
standard
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
standard.
In
addition,
we
note
that
sections
110(
l)
and
193
of
the
CAA
place
limits
on
EPA's
ability
to
approve
SIP
revisions
and
provide
a
check
on
any
State
effort
to
relax
a
SIP.
We
believe
that
retaining
the
1­
hour
standard
itself
would
become
largely
superfluous
from
the
standpoint
of
obtaining
timely
emission
reductions
and
would
unnecessarily
burden
States
with
87
having
to
plan
for
and
meet
a
goal
that
EPA
determined
in
1997
is
not
needed
to
protect
public
health.

For
comments
and
responses
specifically
concerning
NSR
(
a
measure
to
address
growth,
not
a
control
measure)
under
the
8­
hour
NAAQS,
please
see
section
C.
2.
(
Portions
related
to
growth
measures)
of
this
document.
See
Section
entitled,
"
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?"

Comment:
Additionally,
many
commenters
urged
EPA
to
retain
the
1­
hour
standard
because
it
addresses
health
issues
not
addressed
by
the
8­
hour
standard.
Several
commenters
noted
that
the
1­
hour
standard
addresses
short­
term
spikes
which
do
not
cause
exceedances
of
the
8­
hour
standard,
which
measures
long­
term
but
lower
level
exposures.
Revocation
of
the
1­
hour
standard
would
free
states
from
implementing
or
keeping
controls
designed
to
minimize
short­
term
ozone
problems.

Response:
EPA
is
not
reconsidering
in
this
rulemaking
our
1997
decision
that
the
1­
hour
standard
is
not
necessary
to
protect
public
health.
Any
such
concerns
should
be
raisesd
during
the
standardsetting
process.

Comment:
One
commenter
stated
that
EPA's
own
data
demonstrate
that
the
8­
hour
NAAQS
is
less
protective
of
children's
health
in
certain
areas
than
the
1­
hour
standard
and
that
EPA
can
avoid
these
harmful
outcomes
by
retaining
the
1­
hour
standard
and
its
associated
designations
and
classifications
for
current
1­
hour
nonattainment
areas.
The
commenter
cited
EPA
analyses
showing
that
the
1­
hour
standard
is
more
protective
of
children's
health
in
urban
areas
 
such
as
Houston
and
Los
Angeles
 
with
high,
short
duration
ozone
peaks.
In
these
areas,
it
is
likely
that
more
children
will
suffer
more
adverse
health
effects
under
the
new
8­
hour
standard
than
the
1­
hour
standard.
This
commenter
discussed
the
implication
of
EPA's
proposal
for
several
1­
hour
nonattainment
areas
in
Texas
and
noted
that
how
EPA
handles
the
transition
from
the
1­
hour
standard
is
of
particular
importance
to
the
roughly
10
million
Texans
that
live
in
these
areas.
Without
the
1­
hour
provisions,
there
will
be
no
disincentive
for
failing
to
attain
the
1­
hour
standard.
Another
commenter
supported
this
comment.

Another
commenter
suggests
that
EPA's
proposal
to
revoke
the
1­
hour
ozone
standard
threatens
to
adversely
affect
public
health
in
areas
such
as
the
Los
Angeles
region.
While
EPA
believes
the
8­
hour
standard
is
generally
more
protective
than
the
1­
hour
standard,
this
ignores
the
fact
that
in
some
cases,
the
1­
hour
standard
will
be
exceeded
even
though
the
8­
hour
standard
is
not
violated.
In
such
cases,
the
adverse
health
effects
observed
as
a
result
of
short­
term
exposure
to
ozone
will
still
occur.
It
is
important
to
keep
the
one­
hour
standard
in
place
to
guard
against
these
adverse
effects.
EPA
has
not
presented
any
rationale
for
revoking
the
1­
hour
standards
in
light
of
the
need
to
protect
against
the
adverse
effects
of
short­
term
exposure.
This
commenter
believes
that
the
8­
hour
standard
does
not
protect
public
health
against
all
the
risks
that
the
1­
hour
standard
is
designed
to
avoid.
The
commenter
concedes
the
8­
hour
standard
is
in
one
sense
more
protective
because
it
recognizes
that
adverse
effects
can
occur
at
lower
exposure
levels
if
they
are
continued
88
over
a
longer
period.
However,
the
commenter
contends
the
8­
hour
standard
is
also
in
one
sense
less
protective
because
it
does
not
guarantee
that
there
will
not
be
1­
hour
exposures
which
exceed
the
levels
at
which
adverse
health
effects
will
occur.
The
1­
hour
standard
was
based
upon
clear
evidence
of
changes
in
lung
function
and
respiratory
symptoms
especially
with
exercise
or
working
outdoors.
These
adverse
health
effects
will
still
occur
with
exposures
exceeding
the
1­
hour
standard
even
if
the
eight­
hour
standard
is
not
exceeded.
Therefore,
the
eight­
hour
standard
by
itself
is
not
sufficient
to
protect
against
adverse
effects
from
short­
term
exposure.
Accordingly,
the
commenter
believes
EPA
must
retain
the
one­
hour
standard
and
continue
to
require
all
nonattainment
areas
to
meet
that
standard.
The
1­
hour
standard
should
not
be
revoked.

Another
commenter
stated
that
"[
b]
est
science
tells
us
that
one­
hour
ozone
peaks
are
especially
harmful
to
vegetation"
and
contended
that
since
EPA
did
not
set
a
secondary
(
welfare)
standard
for
ozone
that
would
address
harm
to
vegetation,
EPA
should
keep
the
1­
hour
standard
in
place.
As
a
legal
matter,
this
commenter
contended,
EPA's
proposed
one­
hour
standard
"
phaseout
violates
the
mandate
in
CAA
§
109
that
EPA
shall
protect
against
known
and
anticipated
adverse
environmental
impacts
from
criteria
air
pollutants.

Response:
In
setting
the
8­
hour
standard
in
1997,
EPA
concluded
that
it
was
not
necessary
to
retain
the
1­
hour
standard
to
protect
public
health.
In
other
words,
EPA
concluded
in
1997
that
replacing
the
1­
hour
standard
with
an
8­
hour
standard
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.
EPA
is
not
reconsidering
here
whether
a
1­
hour
standard
is
necessary
to
protect
public
health.
Any
concersn
regarding
that
issue
should
be
raised
during
the
standard­
setting
process.
The
sole
issue
here
is
when
the
1­
hour
standard
should
no
longer
apply
in
light
of
States
moving
forward
to
implement
the
current
health­
protective
standard.

Comment:
A
number
of
commenters
believed
that
although
the
1­
hour
and
8­
hour
standards
address
different
problems,
many
control
strategies
will
be
applicable
to
both
standards
and
the
continued
applicability
of
both
standards
should
not
be
prohibitively
difficult
or
expensive.
One
commenter
stated
that
some
areas
have
been
striving
to
achieve
the
1­
hour
standard
and
because
the
controls
needed
for
the
1­
hour
standard
might
need
to
be
implemented
to
achieve
the
8­
hour
standard,
EPA
should
encourage
areas
to
continue
the
work
and
regulations
in
progress.
Another
commenter
stated
that
planning
for
both
standards
need
not
be
duplicative
if
EPA
develops
a
strategy
that
merges
planning
for
both
standards.
One
commenter
relied
on
statements
by
the
state
of
California
that
by
postponing
current
deadlines,
ongoing
cleanup
plans
could
be
delayed
or
scrapped.
Since
the
controls
required
to
meet
the
1­
hour
standard
will
be
essential
to
any
effort
to
meet
the
8­
hour
standard,
to
scrap
the
current
program
then
is
to
endorse
dirtier
air
for
a
longer
time.
EPA
would
open
up
new
loopholes
for
areas
that
violate
the
8­
hour
standard
but
not
the
1­
hour
standard,
by
permitting
these
areas
to
avoid
congressionally
mandated
controls.
This
approach
could
well
be
illegal.
It
is
most
certainly
arbitrary
and
illogical.
Similarly,
another
commenter
opposed
revocation
of
the
1­
hour
standard,
asking
"
if
an
area
wanted
to
meet
the
8­
hour
designation
by
2010,
wouldn't
they
have
to
meet
the
old
1­
hour
standard
somewhere
in
time
before
2010?"
The
commenter
is
concerned
about
several
areas
in
North
Texas
that
are
designated
11Latest
Findings
on
National
Air
Quality:
2002
Status
and
Trends.
EPA
Publication
No.
EPA
454/
K­
03­
001.
Office
of
Air
Quality
Planning
and
Standards,
United
States
Environmental
Protection
Agency,
Research
Triangle
Park,
NC
89
nonattainment
for
the
1­
hour
standard
with
a
compliance
date
in
2005
(
after
many
extensions
and
missed
deadlines)
and
notes
that
local
officials
want
to
abandon
a
midcourse
review
and
correction
of
the
current
SIP
in
favor
of
the
new
8­
hour
designations
with
a
deadline
of
2010.
The
commenter
said
that
approach
means
five
more
years
of
bad
air
and
EPA
should
not
allow
the
state
to
backslide.
Finally,
another
commenter
stated
any
regulatory
program
that
reduces
emissions
to
achieve
the
1­
hour
standard
also
makes
progress
toward
achieving
the
8­
hour
standard
and
it
is
inappropriate
to
adopt
a
scheme
that
would
provide
an
incentive
for
states
to
abandon
their
1­
hour
SIP
obligations,
as
EPA's
proposal
does.

Response:
We
agree
that
controls
designed
to
meet
the
1­
hour
standard
will
also
generally
provide
progress
toward
meeting
the
8­
hour
standard.
EPA's
own
trends
report11
shows
that
over
the
past
20
years,
8­
hour
national
ozone
concentrations
have
declined
as
did
1­
hour
concentrations,
although
at
a
lower
rate,
attesting
to
the
fact
that
emission
controls
put
in
place
to
address
the
1­
hour
ozone
standard
also
helped
lower
8­
hour
ozone
concentrations.
As
noted
elsewhere
in
responding
to
comments,
the
strong
anti­
backsliding
provisions
in
section
51.905
will
ensure
that
not
only
will
controls
already
adopted
under
the
1­
hour
standard
continue
to
be
implemented
until
an
area
attains
the
8­
hour
ozone
standard,
but
also
that
there
will
be
no
or
minimal
delay
in
obtaining
additional
emission
reductions
comparable
to
those
that
would
have
been
required
had
the
1­
hour
standard
remained
in
place.
The
anti­
backsliding
provisions
of
section
51.905
would
also
retain
enforceable
commitments
in
1­
hour
ozone
SIPs,
including
commitments
to
develop
and
submit
a
mid­
course
review
to
assess
the
progress
toward
improving
air
quality.
In
light
of
these
strong
anti­
backsliding
provisions,
we
do
not
believe
it
is
necessary
to
retain
the
1­
hour
standard
indefinitely
as
a
means
to
ensure
areas
continue
to
make
progress
in
cleaning
the
air.

For
comments
and
responses
specifically
concerning
NSR
(
a
measure
to
address
growth,
not
a
control
measure)
under
the
8­
hour
NAAQS,
please
see
section
C.
2.
(
portions
related
to
growth
measures)
of
this
document.
See
the
section
entitled,
"
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?"

Comment:
Several
commenters
alleged
that
the
revocation
options
p
roposed
by
EPA
are
unlawful
because
the
Clean
Air
Act
is
clear
that
EPA
may
only
alter
nonattainment
designations
pursuant
to
the
requirements
of
section
107(
d)(
3)(
E),
which
first
requires
an
area
to
achieve
the
1­
hour
ozone
standard
and
to
adopt
a
long­
term
maintenance
plan
to
ensure
on­
going
public
health
protection.
One
commenter
also
alleged
revocation
of
the
1­
hour
standard
is
contrary
to
subpart
2
of
Part
D,
wherein
Congress
expressly
mandated
both
planning
and
control
requirements
to
assure
progress
toward,
and
timely
attainment
of,
the
ozone
standard
in
place
in
1990:
namely
the
1­
hour
standard.
Revocation
of
the
1­
hour
standard
is
wholly
inconsistent
with
the
anti­
backsliding
principle
embodied
in
section
172(
e)
and
more
generally
in
90
section
193
of
the
Act.
In
a
number
of
nonattainment
areas,
enforcement
of
planning
and
control
requirements
for
progress
toward,
and
timely
attainment
of,
the
1­
hour
standard
will
require
actual
emission
reductions
and
air
quality
improvements
over
the
next
two
to
four
years
 
before
8
hour
SIPs
are
even
due.

One
commenter
believed
the
proposal
to
revoke
the
1­
hour
standard
is
illegal
and
threatens
public
health.
In
addition
to
being
bad
policy,
EPA's
proposal
is
unauthorized.
Remarkably,
EPA
fails
to
cite
any
legal
authority
for
revoking
the
l­
hour
standard.
The
commenter
believes
the
proposal
is
unlawful.
The
proposal
purports
to
administratively
nullify
the
1­
hour
standard
that
forms
the
basis
of
numerous
fundamental
provisions
of
the
Clean
Air
Act.
These
include
area
classifications,
control
requirements
and
attainment
deadlines.
Through
adoption
of
these
provisions,
Congress
effectively
codified
the
1­
hour
standard.
EPA
has
no
more
authority
to
nullify
the
1­
hour
standard
than
it
would
have
to
repeal
the
Clean
Air
Act
provisions
which
implement
the
standard.
As
the
Supreme
Court
held
in
Whitman
v.
American
Trucking
Assns.,
SubpartT
2,
which
implements
the
1­
hour
standard,
"
was
obviously
written
to
govern
implementation
for
some
time
....
A
plan
reaching
so
far
into
the
future
was
not
enacted
to
be
abandoned
the
next
time
the
EPA
reviewed
the
ozone
standard..."
531US.
at
485.
Therefore,
EPA
may
not
lawfully
revoke
the
1­
hour
standard.

Response:
In
1997,
EPA
promulgated
a
revised
8­
hour
ozone
standard
and
determined
that
it
was
not
necessary
to
retain
the
1­
hour
NAAQS
to
protect
public
health.
Neither
section
107
not
section
181
of
the
CAA
prohibit
EPA
from
determining
that
the
1­
hour
standard
in
existence
at
the
time
of
the
1990
Amendments
to
the
CAA
was
no
longer
needed
to
protect
public
health.
Nor,
once
EPA
has
drawn
that
conclusion,
do
either
of
those
provisions
govern
when
the
1­
hour
standard
should
no
longer
apply,
which
is
the
issue
EPA
is
addressing
in
this
rulemaking.

We
believe
the
Act
vests
the
authority
in
EPA
to
establish
the
process
for
transitioning
from
an
existing
standard
to
a
revised
standard.
The
issue
of
whether
the
1­
hour
standard
should
continue
to
apply
to
protect
public
health
was
resolved
in
July
1997.
The
issue
here
is
what
should
be
the
timing
for
transitioning
away
from
implementation
of
the
1­
hour
standard
as
implementation
of
the
8­
hour
standard
begins.
There
is
nothing
in
the
Act
that
directly
speaks
to
this
issue,
but
EPA
believes
its
authority
to
determine
the
transition
process
derives
from
its
authority
to
set
and
revise
NAAQS.

Designations
are
associated
with
a
specific
ozone
NAAQS.
Once
EPA
determines
that
the
1­
hour
NAAQS
should
no
longer
apply,
the
designation
for
that
standard
also
would
not
apply.
Section
107(
d)(
3)(
E)
of
the
Act
applies
for
purposes
of
redesignating
an
area
for
purposes
of
a
specific
NAAQS.
Thus,
if
an
area
that
was
designated
nonattainment
for
the
1­
hour
standard
were
now
meeting
that
standard,
it
could
be
redesignated
to
attainment
for
the
1­
hour
standard
if
it
met
the
other
specified
criteria
in
section
107(
d)(
3)(
E).
There
is
nothing
express
or
implied
in
this
provision
that
indicates
it
has
any
relevance
for
an
EPA
determination
of
the
time
at
which
the
transition
from
one
standard
(
which
EPA
has
already
concluded
is
not
needed
to
protect
health)
to
another
standard
(
which
is
the
sole
standard
needed
to
protect
public
health)
should
occur.
We
also
91
note
that
this
provision
does
not
apply
for
purposes
of
designating
areas
for
the
new
8­
hour
standard.
Rather,
EPA
will
be
designating
areas
for
the
8­
hour
standard
under
section107(
d)(
1),
which
expressly
applies
whenever
EPA
promulgates
a
new
or
revised
NAAQS.

We
also
disagree
with
the
commenters'
statement
that
Congress
codified
the
1­
hour
standard
at
the
time
it
enacted
the
CAA
Amendments
of
1990,
specifically
"
subpart
2."
In
fact,
the
Court
of
Appeals
rejected
that
argument
when
made
by
the
industry
and
state
litigants
in
the
American
Trucking
case.
However,
we
do
agree
with
the
commenters
in
so
far
as
we
believe
that
Congress
intended
areas
designated
nonattainment
for
the
1­
hour
NAAQS
to
continue
implementing
the
mandated
controls
in
subpart
2
for
purposes
of
meeting
the
applicable
ozone
NAAQS
(
here,
the
8­
hour
standard).
We
provide
more
detail
on
this
in
the
"
anti­
backsliding"
section
of
the
preamble,
including
a
discussion
of
section
172(
e).
We
note
that
section
193
continues
to
apply
to
areas
designated
nonattainment
for
whichever
ozone
standard
or
standards
are
in
effect.

The
commenters
also
cite
language
from
the
Supreme
Court's
decision
in
Whitman.
In
the
Whitman
case,
the
Supreme
Court
was
considering
EPA's
interpretation
that
subpart
2
of
the
Act
did
not
apply
for
purposes
of
implementing
the
8­
hour
ozone
NAAQS.
The
Court
was
troubled
that
EPA's
interpretation
might
render
subpart
2
prematurely
obsolete
because
those
provisions
would
not
be
used
to
implement
the
revised
health­
based
standard.
The
Court
was
not
asked
to
and
did
not
consider
the
issue
of
whether
the
1­
hour
standard
must
be
retained
and
whether
subpart
2
must
continue
for
purposes
of
implementing
the
1­
hour
standard.
Although
we
disagree
with
the
commenters
that
the
Supreme
Court
decision
addressed
retention
of
the
1­
hour
standard,
we
believe
that
the
commenters
underlying
concerns
are
addressed
by
the
anti­
backsliding
provisions
of
this
rule.
Most
of
the
subpart
2
requirements
will
remain
in
place
for
areas
that
were
subject
to
those
provisions
for
1­
hour
standard
until
those
areas
attain
the
8­
hour
standard.
Because
these
emission
control
obligations
will
be
retained
until
an
area
attains
the
8­
hour
NAAQS,
there
will
be
no
backsliding
after
the
1­
hour
standard
is
revoked
and
before
States
submit
plans
to
address
the
8­
hour
ozone
NAAQS.

Comment:
One
commenter
believes
that
EPA's
proposed
options
contravene
§
181(
a)(
1),
which
established
nonattainment
classifications
"
by
operation
of
law."
The
Supreme
Court
has
determined
that
this
Clean
Air
Act
section
provides
a
"
plan
reaching
so
far
into
the
future
[
that
it]
was
not
enacted
to
be
abandoned
the
next
time
the
EPA
reviewed
the
ozone
standard.
.
.
."
The
Agency's
proposal,
however,
directly
disobeys
these
instructions
by
using
the
new
8­
hour
standard
as
an
excuse
to
abandon
the
former
1­
hour
standard.

Response:
While
we
agree
that
section
181(
a)(
1)
established
nonattainment
classifications
by
operation
of
law,
we
do
not
believe
that
this
mandates
retention
of
the
1­
hour
standard
indefinitely.
We
have
addressed
this
point
in
the
antibacksliding
section
of
this
rulemaking.
The
commenter
misrepresents
the
decision
by
the
Supreme
Court
in
Whitman
v.
ATA.
At
issue
in
Whitman
was
the
applicability
of
subpart
2
(
and
more
specifically
the
classifications
in
section
181(
a)(
1))
for
purposes
of
implementing
the
8­
hour
standard.
It
was
in
the
context
of
rejecting
EPA's
approach
that
92
subpart
2
would
not
apply
for
purposes
of
implementing
the
8­
hour
NAAQS,
the
Court
made
the
quoted
statement
about
abandoning
the
subpart
2
structure.

Comment:
Another
commenter
believed
that
because
the
8­
hour
standard
is
more
stringent
than
the
1­
hour
standard,
and
thus
will
engender
more
stringent
emission
controls,
there
is
no
basis
for
EPA
to
take
an
administrative
action
that
effectively
nullifies
the
applicability
of
numerous
fundamental
requirements
established
by
Congress
for
the
1­
hour
standard.
These
requirements
are
stated
in
sections
181
and
182
of
the
Clean
Air
Act
and
include
area
classifications,
attainment
deadlines
and
control
requirements.
The
fact
that
in
some
limited
circumstances,
a
different
mix
of
controls
might
be
desired
for
attaining
the
8­
hour
standard
does
not
support
revocation
of
the
1­
hour
standard.
In
particular,
EPA
has
not
shown
that
requiring
continued
compliance
with
the
Act's
provisions
governing
the
1­
hour
standard
would
prevent
attainment
of
the
8­
hour
standard.
There
is
thus
no
legal
basis
to
find
a
conflict
between
the
standards
that
would
justify
interpreting
that
Act
as
allowing
revocation
of
the
1­
hour
standard
prior
to
attainment.

Response:
The
commenter
misunderstands
the
action
EPA
is
taking.
In
the
1997
rulemaking
establishing
the
8­
hour
NAAQS,
EPA
concluded
that
the
1­
hour
NAAQS
was
not
necessary
to
protect
public
health.
This
determination
was
not
based
in
any
way
on
a
conclusion
that
there
was
a
conflict
between
the
standards.
In
addition,
contrary
to
the
commenter's
contentions,
EPA
is
not
taking
action
to
"
effectively
nullif[
y]"
the
requirements
that
applied
for
purposes
of
the
1­
hour
standard.
In
the
antibacksliding
section
of
the
proposal
(
and
of
this
final
rule),
EPA
provided
that
requirements
that
applied
by
virtue
of
an
area's
1­
hour
classification
would
continue
to
apply.
These
requirements
are
preserved
by
the
provisions
in
section
51.905
of
the
final
rule.
These
strong
anti­
backsliding
provisions
will
ensure
that
not
only
will
controls
already
adopted
under
the
1­
hour
standard
continue
to
be
implemented
until
an
area
attains
the
8­
hour
ozone
standard,
but
also
that
there
will
be
no
or
minimal
delay
in
obtaining
additional
emission
reductions
comparable
to
those
that
would
have
been
required
had
the
1­
hour
standard
remained
in
place.
Moreover,
many
areas
designated
nonattainment
for
the
8­
hour
standard
will
be
subject
to
the
provisions
of
subpart
2
for
purposes
of
implementing
that
standard.

For
comments
and
responses
specifically
concerning
NSR
(
a
measure
to
address
growth,
not
a
control
measure)
under
the
8­
hour
NAAQS,
please
see
section
C.
2.
(
portions
related
to
growth
measures)
of
this
document.
See
the
section
entitled,
"
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?"

Comment:
In
terms
of
timing,
several
of
commenters
urged
EPA
to
keep
the
1­
hour
standard
in
place
as
a
safety
net
until
there
is
progress
toward
meeting
the
new
standard.
Some
of
these
commenters
defined
progress
as
meaning
that
the
area
has
an
approved
8­
hour
ozone
SIP.
For
example,
one
commenter
said
it
would
be
inappropriate
to
revoke
the
1­
hour
standard
when
there
are
no
immediately
effective
regulatory
control
measures
to
take
the
place
of
1­
hour
requirements.
Thus,
the
1­
hour
standard
should
not
be
revoked
until
the
8­
hour
SIP
(
with
control
measures)
has
been
approved.
One
commenter
raised
a
concern
that
if
EPA
adopts
either
of
its
proposed
options,
93
the
8­
hour
ozone
implementation
rule
would
be
subject
to
legal
challenge,
which
would
leave
both
EPA
and
the
states
with
no
operative
standard.
Thus,
the
commenter
supported
the
position
that
the
1­
hour
ozone
standard
must
remain
in
place
until
such
time
as
other
federally
enforceable
control
measures
are
in
place
to
address
the
8­
hour
ozone
standard.

Response:
As
described
in
a
number
of
the
above
responses,
the
anti­
backsliding
provisions
of
section
51.905
obligate
areas
to
continue
to
implement
mandatory
controls
adopted
for
purposes
of
the
1­
hour
standard
and
to
address
outstanding
control
and
planning
obligations.
Thus,
there
will
not
be
a
planning
gap
as
the
commenter
implies.
In
addition,
while
we
realize
that
these
commenters,
as
well
as
others,
may
indeed
challenge
the
final
implementation
rule,
we
do
not
believe
that
the
threat
of
litigation
should
dictate
that
the
Agency
make
unwise
policy
choices.
We
believe
that
it
makes
the
most
sense
to
continue
the
progress
and
obligations
established
by
the
1­
hour
standard,
without
dictating
that
the
standard
itself
remain
in
place
indefinitely
and
forcing
areas
to
continue
to
measure
progress
in
terms
of
a
standard
that
is
not
adequate
to
protect
public
health.
For
comments
and
responses
specifically
concerning
NSR
(
a
measure
to
address
growth,
not
a
control
measure)
under
the
8­
hour
NAAQS,
please
see
section
C.
2.
(
portions
related
to
growth
measures)
of
this
document.

Comment:
Some
commenters
recommended
that
the
1­
hour
standard
remain
in
place
for
areas
that
are
currently
nonattainment
at
least
until
such
time
as
those
areas
attain
that
standard.
One
commenter
more
specifically
stated
that
revocation
of
the
1­
hour
standard
should
occur
only
after
an
area
has
demonstrated
attainment
of
the
1­
hour
standard,
adopted
a
maintenance
plan,
and
EPA
has
taken
final
action
approving
the
maintenance
plan's
adequacy.
The
commenter
also
urged
EPA
to
fully
retain
all
existing
legal
and
administrative
1­
hour
obligations
for
areas
for
that
same
time
period.

Response:
As
noted
elsewhere
in
this
response
to
comment
document,
we
believe
that
the
strong
antibacksliding
provisions
we
are
adopting
in
the
final
rule
will
ensure
that
progress
continues
as
envisioned
by
Congress
for
areas
that
were
nonattainment
for
the
1­
hour
standard.
These
comments
suggest
that
attainment
of
the
1­
hour
standard
is
a
goal
that
areas'
should
continue
to
strive
for.
As
we
also
have
noted
above,
in
1997,
EPA
concluded
that
the
1­
hour
standard
is
not
necessary
to
protect
public
health.
Thus,
we
see
no
basis
to
retain
the
obligation
that
areas
meet
that
standard
or
that
they
develop
plans
to
maintain
that
standard.
Rather,
areas
should
continue
with
mandated
control
and
progress
obligations,
but
should
focus
their
resources
on
meeting
the
8­
hour
standard,
which
is
the
standard
necessary
to
protect
public
health.

For
comments
and
responses
specifically
concerning
NSR
(
a
measure
to
address
growth,
not
a
control
measure)
under
the
8­
hour
NAAQS,
please
see
section
C.
2.
(
portions
related
to
growth
measures)
of
this
document.
"
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?"

Comment:
Some
commenters
did
not
specify
a
precise
period
that
the
1­
hour
standard
should
remain
in
effect
but
simply
said
EPA
should
ensure
continued
compliance
with
the
long­
standing
94
public
health
standard
for
smog,
and
ensure
that
large
highly­
polluted
communities
continue
to
meet
air
pollution
control
obligations
under
the
pre­
existing
smog
health
standard.
Other
commenters
expressed
concern
that
EPA's
proposal
appears
to
weaken
protection.

Response:
As
noted
elsewhere
in
this
response
to
comment
document,
the
anti­
backsliding
provisions
of
the
final
rule
will
accomplish
these
objectives.

Comment:
One
commenter
recommended
that
EPA
revoke
the
1­
hour
standard
upon
finalization
of
the
rules
to
implement
the
8­
hour
standard.
The
commenter
was
concerned
that
delaying
revocation
until
one
year
following
designation
of
an
area
for
the
8­
hour
standard
could
potentially
result
in
an
area
violating
the
1­
hour
standard
but
not
the
8­
hour
standard
and
such
area
would
need
to
cope
with
all
the
paperwork
and
controls
of
nonattainment
for
the
1­
hour
standard
while
working
to
maintain
attainment
for
the
8­
hour
standard.
Another
commenter
requested
that
the
1­
hour
ozone
standard
be
revoked
or
phased
out
as
soon
as
legally
possible
and
stated
that,
since
the
8­
hour
standard
is
more
restrictive,
no
"
backsliding"
would
occur.
This
commenter
was
particularly
concerned
that
communities
participating
in
Early
Action
Compacts
could
be
subject
to
both
the
1­
hour
and
8­
hour
ambient
air
quality
standards
for
a
longer
period
of
time
than
areas
not
participating
in
an
Early
Action
Compact
even
though
those
other
areas
might
have
a
more
severe
ozone
problem.

Response:
We
disagree
with
the
commenter
that
revocation
of
the
1­
hour
standard
immediately
upon
designation
for
the
8­
hour
standard
would
not
result
in
any
backsliding.
As
we
noted
in
the
preamble
to
our
proposed
rule
(
and
re­
emphasize
in
the
final
rule),
areas
are
not
obligated
to
comply
with
the
conformity
obligations
for
the
8­
hour
standard
until
one
after
being
designated
nonattainment
for
that
standard.
If
we
were
to
revoke
the
1­
hour
standard
upon
designation
for
the
8­
hour
standard,
many
areas
would
have
a
one
year
gap
during
which
they
would
not
be
required
to
address
conformity.
To
the
extent
the
commenter
is
concerned
about
an
area
designated
attainment
for
the
1­
hour
standard
will
violate
that
standard
during
the
1­
year
period
before
it
is
revoked,
EPA
noted
that
it
has
discretion
to
determine
whether
to
redesignate
as
area
from
attainment
to
nonattainment.
In
light
of
the
fact
that
the
1­
hour
standard
is
not
needed
to
protect
public
health
and
its
imminent
revocation,
we
do
not
anticipate
that
we
would
be
redesignating
areas
as
nonattainment
for
that
standard.
With
respect
to
EAC
areas,
which
will
remain
subject
to
the
1­
hour
standard
for
a
longer
period
of
time
since
we
intend
to
defer
the
effective
date
of
these
area's
8­
hour
nonattainment
designation,
we
note
that
an
additional
basis
for
choosing
not
to
redesignate
an
area
from
attainment
to
nonattainment
(
for
the
1­
hour
standard)
is
the
consideration
of
actions
the
area
is
taking
to
control
pollution.
Thus,
so
long
as
the
EAC
area
is
meeting
the
obligations
of
the
Compact,
which
includes
the
adoption
of
local
controls,
this
would
provide
further
support
for
EPA
to
exercise
its
discretion
not
to
redesignate
the
area
as
nonattainment
for
the
1­
hour
standard.

Comment:
One
commenter
believes
that
the
1­
hour
ozone
NAAQS
must
be
replaced
at
the
same
time
that
areas
are
designated
under
the
8­
hour
ozone
NAAQS
since
this
date
also
serves
as
the
starting
point
for
the
effectiveness
of
requirements
associated
with
implementation
of
the
8­
hour
95
ozone
NAAQS.
As
a
legal
matter,
the
CAA
mandates
that
there
can
only
be
one
effective
NAAQS
for
each
form
of,
or
threat
posed
by,
a
criteria
pollutant.

Response:
The
commenter
cites
no
basis
for
its
conclusion
that
the
CAA
mandates
that
there
can
be
only
one
effective
NAAQS
for
a
criteria
pollutant
and
we
are
aware
of
none.
In
fact,
we
have
two
NAAQS
for
PM­
2.5
(
a
24­
hour
NAAQS
and
an
annual
NAAQS),
two
NAAQS
for
carbon
monoxide
(
a
1­
hour
NAAQS
and
an
8­
hour
NAAQS),
and
three
for
sulfur
oxides
(
an
annual
primary
NAAQS,
a
24­
hour
primary
NAAQS,
and
a
3­
hour
secondary
NAAQS).

Comment:
Several
commenters
provided
thoughts
concerning
the
provision
in
the
current
version
of
40
CFR
51.9(
b)
(
which
part
has
been
stayed)
that
the
1­
hour
standard
will
no
longer
apply
".
.
.
after
the
8­
hour
standard
has
become
fully
enforceable
under
part
D
of
title
I
of
the
CAA
and
subject
to
no
further
legal
challenge."
Several
commenters
supported
this
provision.
One
commenter
who
supported
the
provision
also
questioned
what
criteria
would
be
used
to
make
the
determination
that
the
8­
hour
standard
is
no
longer
subject
to
legal
challenge.
Several
commenters
who
supported
the
provision
also
believed
that
there
are
no
remaining
legal
challenges
to
the
8­
hour
NAAQS
since
the
Supreme
Court
affirmed
the
standard.
The
8­
hour
standard
is
now
fully
enforceable
under
Part
D
of
Title
I
of
the
Clean
Air
Act.
One
commenter
suggested
that
the
provision
is
no
longer
needed
since
they
believed
that
the
8­
hour
standard
is
no
longer
subject
to
legal
challenge.
One
commenter
recommended
that
the
provision
to
retain
the
old
standard
until
the
8­
hour
standard
is
no
longer
subject
to
legal
challenge
be
nullified,
asserting
that
legal
challenges
can
be
brought
on
virtually
any
subject
for
cause.
The
commenter
contends
that
the
current
language
of
40
CFR
50.9(
b)
essentially
retains
the
old
standard
in
perpetuity.

Response:
While
we
disagree
with
the
commenter
that
claims
this
language
would
result
in
the
old
standard
being
retained
in
perpetuity,
we
nevertheless
agree
that
this
language
should
not
be
retained.
The
language
referenced
by
these
commenters
was
added
to
the
regulation
in
light
of
the
uncertainty
created
by
the
decisions
of
the
Court
of
Appeals
for
the
D.
C.
Circuit
in
ATA.
This
uncertainty
is
now
resolved
because
(
1)
the
Supreme
Court
rejected
the
D.
C.
Circuit's
conclusion
that
EPA
interpretation
of
its
standard­
setting
authority
created
an
unconsitutional
delegation
of
authority;
(
2)
the
Supreme
Court
clarified
EPA's
authority
to
implement
the
8­
hour
standard;
(
3)
the
D.
C.
Circuit
resolved
all
remaining
issues
on
remand
from
the
Supreme
Court;
and
(
4)
EPA
addressed
through
rulemaking
the
sole
remaining
issue
from
the
D.
C.
Circuit's
initial
decisions
 
consideration
of
the
beneficial
effects
of
UV­
b
 
and
that
action
was
not
challenged.
Therefore,
EPA
sees
no
reason
to
retain
this
language.

Comment:
The
1­
hour
standard
should
be
revoked
in
Early
Action
Compact
areas
at
the
same
time
as
in
other
areas.

Response:
We
do
not
believe
it
is
appropriate
to
create
the
situation
where
an
area
does
not
have
an
effective
designation
for
any
ozone
standard.
We
note
that
all
EAC
areas
are
currently
violating
the
8­
hour
ozone
standard.
Revoking
the
1­
hour
standard
without
an
effective
8­
hour
ozone
designation
would
result
in
areas
that
are
currently
designated
nonattainment
for
the
1­
hour
96
standard
being
relieved
of
nonattainment
NSR
and
conformity.
We
see
no
basis
for
relieving
an
area
with
unhealthy
air
from
these
obligations.
In
addition,
the
key
basis
for
selecting
one
year
following
8­
hour
designations
as
the
time
for
when
the
1­
hour
standard
would
be
revoked
is
to
ensure
that
areas
will
not
have
duplicative
conformity
obligations
for
the
8­
hour
and
1­
hour
standards.
Since
EAC
areas
will
not
be
subject
to
8­
hour
conformity
until
one
year
after
their
8­
hour
designations
take
effect
they
will
not
be
subject
to
a
duplicative
conformity
obligation
in
the
interim.

For
comments
and
responses
specifically
concerning
NSR
(
a
measure
to
address
growth,
not
a
control
measure)
under
the
8­
hour
NAAQS,
please
see
section
C.
2.
(
portions
related
to
growth
measures)
of
this
document.
"
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?"

Comment:
One
commenter
appeared
to
believe
our
proposal
would
have
required
areas
to
meet
the
1­
hour
standard
as
well
as
the
8­
hour
standard
and
opposed
that
approach
given
that
EPA
issued
the
8­
hour
standard
because
it
found
it
to
be
more
protective
of
public
health
than
the
1­
hour
standard.

Response:
Neither
the
proposed
rule
nor
the
final
rule
would
require
areas
to
attain
the
1­
hour
standard.
In
fact
section
51.905(
e)(
2)
makes
clear
that
EPA
will
no
longer
make
determinations
of
whether
an
area
has
attained
the
1­
hour
standard.

Comment:
One
commenter
notes
that
EPA
does
not
include
in
its
discussion
of
the
transition
from
the
1­
hour
to
the
8­
hour
standard
how
EPA
will
address
areas
that
have
submitted
requests
for
redesignation
to
attainment
under
the
1­
hour
standard
where
EPA
has
not
acted
upon
the
request.
The
commenter
suggests
redesignating
areas
that
have
attained
the
1­
hour
standard
prior
to
designating
areas
under
the
8­
hour
standard
so
the
less
stringent
obligations
for
1­
hour
maintenance
areas
apply.
As
an
alternative,
when
the
1­
hour
standard
is
revoked
and
EPA
promulgates
regulations
specifying
those
requirements
that
would
continue
to
apply
after
the
revocation
of
the
1­
hour
standard,
base
the
regulations
on
the
1­
hour
attainment
status
of
the
area
as
determined
by
current
1­
hour
ozone
design
levels.

Response:
Section
107(
d)(
3)(
E)
of
the
Act
provides
specific
requirements
for
areas
to
be
redesignated
from
nonattainment
to
attainment.
An
EPA
determining
that
an
area
has
attained
the
1­
hour
standard
is
only
one
of
five
criteria
for
approving
a
request
for
redesignation
to
attainment.
The
applicable
requirements
of
subpart
2
that
would
continue
to
be
obligations
after
the
1­
hour
standard
is
revoked
are
a
function
of
the
attainment
status
of
the
area
(
not
actual
air
quality
data).
However,
the
final
rule
(
section
51.905(
a))
does
provide
several
alternatives
for
1­
hour
nonattainment
areas
to
fulfill
unmet
planning
obligations
(
rate
of
progress
plans
and/
or
attainment
demonstrations).
97
C.
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?

Section
VI.
C.
of
the
preamble
to
the
proposed
rule
concerned
the
requirements
that
would
continue
to
apply
to
1­
hour
nonattainment
and
maintenance
areas
as
we
transition
to
implementation
of
the
8­
hour
standard,
i.
e.,
"
anti­
backsliding."
Section
51.905
of
the
final
rule
(
and
of
the
draft
regulatory
text)
addresses
the
antibacksliding
requirements.

We
received
comments
that
addressed
antibacksliding
in
a
very
broad
manner
as
well
as
comments
that
addressed
specific
aspects
of
our
June
2,
2003
proposal
and
the
draft
regulatory
text.
We
present
the
more
general
comments
first,
followed
by
comments
on
specific
antibacksliding
provisions.

General
Comments
Support.
Several
commenters
expressed
general
support
for
the
proposed
anti­
backsliding
provisions.
One
commenter
supported
EPA's
anti­
backsliding
proposal,
agreeing
that,
by
revising
the
ozone
standard,
EPA
did
not
open
the
door
for
states
to
remove
SIP­
approved
measures
or
to
avoid
control
obligations
with
which
they
have
not
yet
complied.
One
comment
generally
supported
some
anti­
backsliding
provision,
but
did
not
provide
any
detail
as
to
whether
they
supported
what
EPA
proposed
or
some
alternative.

Oppose
 
too
stringent.
Other
commenters
believed
the
proposal
would
mandate
measures
that
may
not
be
needed
for
achieving
the
8­
hour
standard.
Several
commenters
generally
support
the
proposed
anti­
backsliding
provisions
with
certain
exceptions,
noting
that
existing
control
measures
should
remain
where
they
help
an
area
move
into
attainment
with
the
8­
hour
NAAQS
and
they
should
not
arbitrarily
be
retained
regardless
of
projected
impact
on
an
area's
ability
to
attain
and
maintain
the
8­
hour
NAAQS.
One
commenter
noted
that
the
difference
in
the
formats
of
the
1­
hour
and
8­
hour
standards
makes
them
difficult
to
compare
and
thus
there
is
no
reason
to
maintain
requirements
enacted
to
attain
the
1­
hour
standard
as
they
are
not
necessarily
reasonable
for
purposes
of
attaining
the
8­
hour
ozone
NAAQS.
For
this
reason
alone,
EPA
should
not
enforce
the
1­
hour
ozone
NAAQS
one
year
after
designation
of
new
8­
hour
nonattainment
areas
(
i.
e.,
the
time
it
takes
for
conformance
measures
to
be
implemented).

Legal.
One
of
commenter
that
raised
a
general
opposition
to
the
anti­
backsliding
proposal
stated
that
Section
172(
e)
is
not
appropriate
to
this
situation
regarding
retention
of
1­
hour
standard
obligations
because
the
8­
hour
ozone
NAAQS
reflects
a
more
stringent
standard
than
the
1­
hour
ozone
NAAQS,
not
a
relaxation
of
an
NAAQS.
Section
110(
l)
provides
that
changes
to
control
measures
cannot
be
approved
by
EPA
if
they
interfere
with
the
attainment
and
reasonable
progress
towards
a
standard.
The
commenter
believes
this
section
should
be
interpreted,
after
the
implementation
of
the
8­
hour
ozone
NAAQS,
to
refer
to
the
attainment
of
and
progress
towards
the
8­
hour
ozone
NAAQS,
and
not
the
1­
hour.
The
commenter
claims
EPA
is
not
legally
bound
to
require
1­
hour
control
measures
(
that
were
adopted
after
November
1990)
and
urges
EPA
to
finalize
a
rule
that
reflects
this.
As
an
"
anti­
backsliding"
measure,
EPA
would
have
the
discretion
to
99
not
approve
SIP
revisions
(
including
removing
controls
required
as
a
result
of
1­
hour
classifications)
that
they
believe
would
interfere
with
an
area's
attainment
of
the
8­
hour
ozone
NAAQS.

Oppose
 
too
lax.
Several
commenters
believed
the
1­
hour
standard
should
remain
in
place,
which
would
prevent
backsliding,
and
that
EPA's
proposed
anti­
backsliding
provisions
would
not
provide
the
same
level
of
protection
as
would
retaining
the
1­
hour
standard.
A
number
of
commenters
raised
a
general
concern
that
EPA
not
weaken
or
extend
the
schedule
for
the
emission
control
measures
currently
required
for
the
1­
hour
standard
during
the
transition
from
the
1­
hour
to
the
8­
hour
standard.

Comment:
Several
commenters
advocated
retaining
the
planning
obligations
under
the
1­
hour
standard.
The
commenters
expressed
the
belief
that
momentum
in
developing
1­
hour
attainment
demonstrations
and
providing
for
emission
reductions
under
the
1­
hour
standard
will
be
lost
in
implementing
controls
if
these
obligations
aren't
retained.
Many
of
these
commenters
oppose
revocation
of
the
1­
hour
standard
and
believe
Congress
intended
the
1­
hour
standard
to
be
planned
for
and
met.
Several
commenters
urged
EPA
to
establish
requirements
that
would
not
weaken
or
extend
the
schedule
for
emission
control
measures
currently
required
for
the
1­
hour
standard
during
the
transition
from
the
1­
hour
to
the
8­
hour
standard
and
to
immediately
establish
emission
control
requirements
with
schedules
to
meet
the
new
8­
hour
standard,
as
the
new
standards
will
eventually
be
more
protective
of
human
health.
One
of
these
commenters
also
said
that
we
must
have
requirements
that
will
work
in
a
timely
manner
to
protect
human
health
and
also
the
health
of
our
natural
areas
and
parks
by
reducing
pollution
from
old,
inefficient,
coal
and
oil
fueled
plants,
including
cement
kilns
that
use
hazardous
waste
as
fuel.
One
commenter
noted
that
the
new
8­
hour
standard
should
not
serve
as
a
pass
granting
extensions
to
air
quality
improvement
measures
that
should
have
been
implemented
under
the
l­
hour
standard.
One
commenter
generally
urged
EPA
to
retain
the
emission
control
requirements
and
schedules
currently
in
place
for
the
1­
hour
standard
during
the
transition
from
the
1­
hour
to
the
8­
hour
standard
in
the
Dallas/
Fort
Worth
nonattainment
area
so
that
the
longer
schedules
allowed
for
implementation
of
control
measures
to
meet
the
8­
hour
standard
would
not
effect
a
slow
down
in
the
cleaning
up
of
air.
One
commenter
believed
that
for
purposes
of
anti­
backsliding
the
test
should
be
to
meet
all
obligations
accrued
by
virtue
of
the
area's
1­
hour
classification
in
order
to
level
the
playing
field.
Any
allowed
modification
should
not
only
ensure
attainment
of
the
8­
hour
standard
in
that
area
but
in
downwind
areas
as
well.

Response:
The
anti­
backsliding
provisions
of
the
final
rule
retain
applicable
requirements
by
virtue
of
an
area's
classification
under
the
1­
hour
standard
due
to
the
fact
that
those
requirements
were
placed
on
the
1­
hour
nonattainment
area
"
by
operation
of
law."
EPA
does
not
believe
that
Congress
intended
those
requirements
to
no
longer
be
mandatory
upon
revision
of
the
NAAQS.
As
noted
in
the
June
2,
2003
proposal,
we
will
entertain
requests
for
waivers
of
applicable
requirements
 
such
as
subpart
2
mandatory
measures
 
only
in
cases
where
implementation
of
such
measures
would
cause
an
"
absurd
result."
We
are
developing
guidance
for
SIP
revisions
under
section
110(
l)
and
will
make
it
available
after
publication
of
the
final
rule
for
implementation
of
the
8­
hour
ozone
standard.
100
Comment:
One
commenter
that
supported
immediate
revocation
of
the
1­
hour
standard
stated
a
concern
that
there
be
no
backsliding
on
the
implementation
of
current
ozone
pollution
control
measures
after
the
1­
hour
ozone
NAAQS
is
revoked
and
implementation
of
the
8­
hour
ozone
NAAQS
is
in
its
early
stages.
The
commenter
believed
that
EPA
focused
most
heavily
on
CAA
§
110(
l)
for
protection
against
backsliding
and
did
has
not
recognize
the
direct
applicability
that
other
anti­
backsliding
provisions
of
the
CAA
have
to
the
transition
to
the
8­
hour
ozone
NAAQS.

Response:
For
purposes
of
the
anti­
backsliding
provisions
of
the
regulations
(
40
CFR
51.905),
we
relied
on
several
provisions
of
the
statute
­­
the
"
as
a
matter
of
law"
classifications
in
section
181(
a);
the
provision
in
section
172(
e)
governing
transition
where
EPA
promulgates
a
less
stringent
NAAQS;
and
the
maintenance
requirements
in
section
175A
for
areas
when
they
are
redesignated
for
a
NAAQS.
As
described
more
fully
in
the
preamble,
we
looked
to
these
provisions
to
discern
what
Congress
would
have
intended
where
EPA
is
transitioning
to
a
more
stringent
NAAQS.
Based
on
our
review,
we
determined
that
there
are
certain
SIP
requirements
that
must
remain
in
place
for
areas
that
were
designated
nonattainment
(
or
that
are
maintenance)
for
the
1­
hour
standard.
We
define
these
obligations
as
"
applicable
requirements."
Our
discussions
of
section
110(
l)
focus
on
what
test
applies
when
an
area
wishes
to
modify
a
requirement
that
is
not
an
applicable
requirements
or
wishes
to
modify
an
applicable
requirement
consistent
with
what
is
allowed
under
the
statute.
As
we
note
early
in
the
Preamble,
when
we
reference
section
110(
l),
we
also
mean
that
the
revision
is
subject
to
section
193
to
the
extent
the
area
is
designated
nonattainment
and
the
requirement
being
revised
was
part
of
the
SIP
or
required
to
be
part
of
the
SIP
prior
to
enactment
of
the
1990
Amendments.
We
are
developing
guidance
for
SIP
revisions
under
section
110(
l)
and
will
make
it
available
after
publication
of
the
final
rule
for
implementation
of
the
8­
hour
ozone
standard.

Comment:
One
commenter
recommended
that
areas
that
are
designated
as
nonattainment
for
the
1­
hour
ozone
standard
upon
the
date
of
EPA
designation
of
the
same
(
or
an
expanded)
area
for
the
8­
hour
standard
would
appropriately
be
subject
to
the
more
stringent
time
frames
and
requirements
of
subpart
2
for
that
portion
of
the
area
that
encompasses
the
historical
1­
hour
ozone
area
boundary.
Areas
that
attain
the
8­
hour
ozone
standard
but
violate
the
1­
hour
standard
would
need
to
attain
the
1­
hour
standard
prior
to
its
revocation
in
those
areas,
or
have
some
other
mechanism
to
provide
equivalent
assurance
that
backsliding
will
be
avoided.

Response:
We
believe
the
final
rule
(
section
51.905(
a))
incorporates
provisions
that
address
the
commenter's
recommendations.

Comment:
One
commenter
states
that
anti­
backsliding
must
be
a
key
principle
of
the
transition
rule.
A
prohibition
on
backsliding
is
inherent
in
the
above­
referenced
requirements
of
subpart
2,
and
in
section
110(
l)
of
the
Act.
The
language
of
section
172(
e)
means
that
Congress
intended
to
bar
the
relaxation
of
implementation
requirements
­­
not
only
where
EPA
relaxes
a
NAAQS,
but
also
where
(
as
here)
EPA
has
strengthened
the
NAAQS.
Id.
at
32819/
2
&
n.
23.
Revocation
of
the
1­
hour
standard,
however,
is
wholly
inconsistent
with
the
antibacksliding
principle
embodied
in
section
172(
e)
and
more
generally
in
section
193
of
the
Act.
In
a
number
of
nonattainment
areas,
enforcement
of
planning
and
control
requirements
for
progress
toward,
and
timely
attainment
of,
the
1­
hour
standard
will
require
actual
emission
reductions
and
air
quality
improvements
over
the
next
two
to
four
years
 
before
8
hour
SIPs
are
even
due.
Any
weakening
or
delay
of
such
requirements
would
plainly
constitute
backsliding.
EPA
correctly
asserts
that
states
cannot
be
allowed
to
modify
or
remove
any
control
measure
required
by
the
Act
for
a
1­
hour
nonattainment
area
except
to
the
extent
that
the
state
could
modify
or
remove
that
measure
for
purposes
of
the
1­
hour
standard.
In
any
case
the
state
must
also
show
compliance
with
section
110(
l)
 
that
any
plan
revision
may
not
interfere
with
any
applicable
requirement
concerning
attainment
and
reasonable
further
progress
towards
attainment,
or
any
other
requirement
of
the
Act.
However,
EPA
wrongly
suggests
that
the
section
110(
l)
demonstration
in
such
cases
can
be
confined
to
determining
whether
the
revision
would
interfere
with
attainment
or
progress
toward
attainment
of
only
the
8­
hour
standard.
As
noted
above,
timely
attainment
and
progress
toward
attainment
of
the
1­
hour
standard
remain
applicable
requirements
of
the
Act,
even
after
promulgation
of
the
8­
hour
standard.
Thus,
SIP
revisions
cannot
be
approved
unless
they
assure
compliance
with
the
1­
hour,
as
well
as
8­
hour,
progress
and
attainment
requirements.
Such
an
approach
is
dictated
not
only
by
the
language
of
subpart
2
and
section
110(
l),
but
also
by
the
purposes
of
the
8­
hour
NAAQS
revision
and
of
the
Act.
The
8­
hour
standard
was
intended
to
provide
greater,
not
less,
public
health
protection
from
ozone.
Yet
an
interpretation
that
reads
the
1­
hour
standard
out
of
section
110(
l)
would
allow
for
a
slowing
of
ozone
reductions,
and
in
some
cases
even
a
worsening
of
interim
ozone
levels.
The
commenter
argued
that
under
EPA's
proposal,
an
area
that
had
a
higher
classification
under
the
1­
hour
standard
than
it
has
under
the
8­
hour
standard
could
relax
"
discretionary"
control
requirements
that
are
indisputably
needed
to
assure
timely
attainment
of
(
or
progress
toward
attaining)
the
1­
hour
standard
by
2005,
as
long
as
the
relaxation
would
not
jeopardize
required
rates
of
progress
or
timely
attainment
of
the
8­
hour
standard.
This
could
well
allow
violations
of
the
1­
hour
standard
to
occur
beyond
the
2005
deadline
contemplated
by
Congress,
exposing
residents
of
the
area
to
unhealthful
air
and
delaying
pollution
reductions
that
would
otherwise
have
occurred.
Such
an
untenable
result
is
completely
contrary
to
the
Act's
language
and
public
health
purposes,
and
to
EPA's
stated
intent
of
strengthening
public
health
protection
through
adoption
of
the
8­
hour
standard.
The
commenter
also
notes
that
the
term
"
discretionary"
is
a
misnomer
used
by
EPA
to
describe
control
measures
that
are
needed
to
achieve
timely
progress
or
attainment,
but
that
are
not
specifically
identified
in
subpart
2.
These
measures
are
no
more
"
discretionary"
than
the
specific
measures
identified
in
subpart
2.
Rather,
they
are
mandated
by
subpart
2'
s
provisions
requiring
SIPs
to
contain
enforceable
measures
sufficient
to
achieve
timely
progress
and
attainment.
The
commenter
also
questions
how
a
state
can
make
a
legally
sufficient
section
110(
l)
demonstration
with
respect
to
the
8­
hour
standard
prior
to
EPA's
full
approval
of
the
8­
hour
SIP
for
the
area
in
question.
Until
EPA
has
determined
(
through
the
SIP
approval
process)
that
the
state's
ROP
and
attainment
demonstrations
for
the
8­
hour
standard
are
technically
and
legally
sufficient,
the
agency
can
hardly
conclude
that
pre­
existing
measures
can
be
discontinued
without
interferring
with
timely
progress
and
attainment
with
respect
to
the
8­
hour
standard.

Response:
As
an
initial
matter,
we
note
that
the
use
of
the
terms
"
discretionary"
and
"
mandatory"
with
respect
to
SIP
measures
is
meant
to
distiguish
between
specific
control
requirements
specified
by
Congress
in
the
Act
(
i.
e.,
that
are
mandated
by
Congress)
and
measures
adopted
pursuant
to
programs
where
Congress
gave
the
States
discretion
in
determining
the
necessary
measures
to
12Memorandum,
``
Guidance
on
the
Reasonably
Available
Control
Measures
(
RACM)
Requirement
and
Attainment
Demonstration
Submissions
for
Ozone
Nonattainment
Areas.''
John
S.
Seitz,
Director,
Office
of
Air
Quality
Planning
and
Standards.
November
30,
1999.
Web
site:
http://
www.
epa.
gov/
ttn/
oarpg/
t1pgm.
html.

102
adopt.
The
distinction
between
these
two
types
of
control
is
critical
in
anlayzing
the
application
of
section
110(
l)
to
SIP
revisions.
Where
Congress
has
mandated
that
a
State
adopt
a
specific
measure
(
e.
g.,
stage
2
emissions
controls),
a
State
has
no
flexibility
to
revise
the
SIP
to
remove
that
measure
regardless
of
the
effect
on
attainment
and
maintenance
of
the
NAAQS.
In
other
words,
removal
of
the
measure
would
"
interfere
with"
an
"
applicable
requirement"
(
i.
e.,
the
requirement
to
adopt
stage
2)
and
EPA
must
disapprove
the
SIP
revision
request.
Thus,
EPA
need
not
review
the
effect
of
the
SIP
revision
on
attainment
or
reasonable
further
progress
or
any
other
requirement
of
the
Act.
However,
where
Congress
has
provided
the
State
with
discretion
to
determine
the
mix
of
controls
needed
to
meet
a
statutory
obligation,
such
as
attainment
or
a
rate­
of­
progress
obligation,
the
control
itself
is
not
an
"
applicable
requirement."
In
reviewing
whether
the
control
may
be
removed
or
modifed,
EPA
must
assess
whether
that
action
would
interfere
with
attainment
or
maintenance
or
any
other
applicable
requirement.
For
that
reason,
we
provide
that
discretionary
measures
may
be
modified
as
noted
in
the
proposal
within
the
constraints
of
sections
110(
l)
and
193
of
the
Act
(
just
as
they
could
previously
be
modified
for
purposes
of
the
1­
hour
standard),
but
that
mandatory
measures
must
remain
in
the
SIP
and
be
implemented
until
the
area
attains
the
applicable
ozone
standard.

The
commenters'
substantive
premise
is
that
when
applying
section
110(
l),
EPA
must
continue
to
assess
the
implications
for
purposes
of
the
1­
hour
standard
because
of
the
health
benefits
provided
by
the
1­
hour
standard.
However,
as
EPA
has
noted
elsewhere
in
the
preamble
to
the
final
rule
and
the
response
to
comment
document,
EPA
determined
in
July
1997
that
the
1­
hour
standard
was
not
necessary
to
protect
health
and
the
environment.
Thus,
once
we
have
transitioned
from
the
1­
hour
standard
to
the
8­
hour
standard
(
i.
e.,
at
the
time
the
1­
hour
standard
is
revoked),
we
don't
believe
it
is
necessary
and
states
will
not
be
required
to
evaluate
the
effect
of
SIP
revisions
with
respect
to
the
1­
hour
standard.
We
note
that
although
8­
hour
ozone
attainment
dates
will
be
later
than
those
for
the
1­
hour
standard,
we
do
not
anticipate
that
States
will
be
able
to
significantly
delay
emission
reductions
that
are
already
required
under
the
SIP.
The
requirement
that
a
nonattainment
area
must
contain
implement
all
reasonably
available
control
measures
(
RACM)
as
expeditiously
as
practicable
will
prevent
the
removal
of
measures
that
are
RACM
with
respect
to
the
8­
hour
standard.
As
provided
in
the
November
30,
1999
Seitz
memorandum
12,
States
must
provide
for
expeditious
implementation
of
controls
and
we
do
not
believe
it
is
appropriate
for
States
to
delay
emission
reductions
that
are
economically
and
technologically
feasible
at
an
earlier
date
simply
because
the
area
has
a
later
attainment
date
for
the
8­
hour
standard
than
it
did
for
the
1­
hour
standard.

We
are
developing
guidance
for
SIP
revisions
under
section
110(
l)
and
will
make
it
available
after
publication
of
the
final
rule
for
implementation
of
the
8­
hour
ozone
standard.
We
believe
that
a
state
can
make
a
legally
sufficient
section
110(
l)
demonstration
with
respect
to
the
8­
hour
103
standard
prior
to
EPA's
full
approval
of
the
8­
hour
SIP
for
an
area,
but
the
demonstration
will
likely
have
to
be
of
similar
technical
rigor
as
an
attainment
demonstration.
We
do
not
intend
to
approve
such
revisions
without
a
technically
credible
demonstration
that
the
revision
will
not
interfere
with
timely
progress
and
attainment
with
respect
to
the
8­
hour
standard.

Comment:
One
commenter
opposes
the
proposed
rule
because
they
oppose
revocation
of
the
1­
hour
standard.
In
addition,
they
opposed
the
rule
even
if
the
1­
hour
standard
can
legally
be
revoked
because
they
believe
all
the
textually
applicable
requirements
of
the
Act
under
subpart
2
may
not
be
revoked.
The
commenter
noted
the
rule
would
allow
major
backsliding.
Many
of
the
1­
hour
SIP
submission
and
implementation
deadlines
have
expired,
and
indeed
SIPs
have
been
put
in
place
pursuant
to
those
requirements.
In
some
areas,
SIPs
remain
to
be
put
in
place
to
implement
those
expired
deadlines.
Allowing
areas
to
restart
the
clock
by
shunting
aside
those
statutory
requirements
and
SIP
provisions
would
effectively
repeal
the
initial
obligations
imposed
on
the
states,
and
slow
efforts
to
achieve
the
emissions
reductions
needed
for
timely
attainment
of
both
ozone
NAAQS.
Such
an
outcome
contravenes
the
statutory
provisions
establishing
those
requirements,
and
constitutes
an
anomalous
and
arbitrary
approach
to
implementation
of
a
revised
NAAQS
premised
on
the
need
for
greater
protection
from
ozone's
effects.

Response:
As
EPA
explains
in
the
portion
of
the
RTC
concerning
revocation
of
the
1­
hour
NAAQS,
EPA
has
the
authority
to
promulgate
and
revise
NAAQS
and
it
exercised
that
authority
in
1997
when
it
determined
to
establish
a
revised
8­
hour
ozone
NAAQS
and
also
determined
that
the
1­
hour
NAAQS
was
not
necessary
to
protect
public
health.
EPA
is
now
examining
in
this
rulemaking
how
to
best
effectuate
the
transition
from
the
1­
hour
to
the
8­
hour
NAAQS,
including
when
the
1­
hour
standard
should
no
longer
apply
and
what
obligations
that
applied
for
purposes
of
the
1­
hour
standard
should
continue
to
apply.
The
commenter
makes
a
number
of
general
statements
about
EPA's
approach
allowing
backsliding,
but
does
not
address
concrete
components
of
the
proposal.
In
general,
the
commenter
is
mistaken
about
EPA's
proposed
antibacksliding
proposal.
To
the
extent
areas
have
outstanding
obligations
under
subpart
2
for
the
1­
hour
standard,
EPA's
antibacksliding
rules
will
require
the
area
to
continue
to
meet
those
obligations.
With
respect
to
attainment
demonstrations,
we
provide
some
flexibility
to
states
because
we
believe
that
attainment
of
the
1­
hour
standard
(
which
again
EPA
formerly
concluded
is
not
necessary
to
protect
public
health)
should
not
be
a
required
goal.
Although
the
8­
hour
standard
is,
in
most
case,
more
stringent
than
the
1­
hour
standard,,
there
is
not
a
linear
relationship
and
attainment
of
the
1­
hour
standard
does
not
necessarily
mean
progress
toward
attainment
of
the
8­
hour
standard.
Thus,
for
purposes
of
outstanding
1­
hour
attainment
demonstrations,
we
provide
the
alternative
of
submitting
that
demonstration
or
taking
other
action
to
achieve
emission
reductions.
(
See
section
51.905(
a)(
1)(
ii)
and
the
related
portion
of
RTC,
above.)

Comment:
One
commenter
supported
the
concept
of
no
backsliding,
but
said
that
areas
that
are
in
full
attainment
of
the
1­
hour
standard
deserve
the
flexibility
to
create
new
strategies
to
meet
the
new
standards
because
the
old
strategies
may
well
not
be
effective
in
meeting
a
new
target
and
would
increase
regulatory
complexity.
104
Response:
Sections
110(
l)
and
193
have
always
allowed
States
to
modify
the
discretionary
controls
in
their
SIPs
if
the
provisions
of
those
sections
are
met.
We
believe
this
provides
the
flexibility
that
the
commenter
is
seeking.

Comments
related
to
definition
of
"
Applicable
Requirements"
(
Section
51.900(
f)
of
draft
and
final
rule).

Comment:
One
commenter
stated
that
it
was
appropriate
that
the
section
185
fee
provision
SIP
requirement
of
the
CAA
was
not
listed
as
an
applicable
requirement
in
section
51.900(
f)
which
applies
to
the
requirements
that
remain
in
effect
for
areas
not
attaining
the
1­
hour
standard
when
it
is
revoked.
The
commenter
further
stated
that
the
section
185
fee,
if
applicable,
would
be
imposed
on
sources
that
have
already
taken
significant
and
costly
measures
to
reduce
emissions
and
have
contributed
to
the
area's
progress
toward
achieving
the
NAAQS.

Response:
The
final
rule
provides
that
once
the
1­
hour
standard
is
revoked,
we
will
no
longer
make
findings
of
failure
to
attain
the
1­
hour
standard
and,
therefore,
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.
Since
the
obligations
to
reclassify
areas
and
impose
fees
are
based
on
a
determination
that
an
area
has
failed
to
meet
the
standard,
those
obligations
also
would
no
longer
apply
for
the
1­
hour
standard
once
the
1­
hour
standard
has
been
revoked.

Comment:
Another
commenter
expressed
concern
about
the
definition
of
"
applicable
requirement"
because
it
did
not
address
how
the
options
for
waivers
and/
or
substitutions
(
in
lieu
of
adoption
of
a
particular
control
measure)
would
be
taken
into
account.
The
commenter
believed
it
is
more
stringent
than
the
requirement
imposed
by
the
CAA,
as
many
of
the
applicable
requirements
allow
for
waivers
or
substitution
in
lieu
of
adoption
of
a
particular
control
measure
and
these
options
are
not
explicitly
or
implicitly
included.
Without
a
reference
to
either
the
statutory
requirements
for
a
particular
measure,
or
a
generic
statement
that
States
may
satisfy
the
applicable
requirements
as
provided
for
in
Subpart
2,
Part
D
of
the
CAA
or
that
U.
S.
EPA
may
waive
a
particular
requirement,
U.
S.
EPA's
implementation
of
the
8­
hour
NAAQS
for
prior
1­
hour
NAAs
will
be
more
stringent
than
is
intended
by
Congress.

Response:
We
agree
with
the
commenter
that
the
anti­
backsliding
provisions
of
this
rule
do
not
in
any
way
modify
the
CAA
requirements
relating
to
the
mandatory
measures
of
subpart
2;
in
particular,
the
CAA's
provisions
for
certain
mandatory
measures,
such
as
the
Stage
II
vapor
recovery
provision
of
section
182(
b)(
3)
and
the
Clean
Fuel
Fleet
Program
of
section
182(
c)(
4),
allow
for
variations
or
substitutions
of
measures
under
prescribed
circumstances.
The
definition
of
"
applicable
requirements"
carries
forward
any
statutory
waivers
or
substitutions
because
it
provides
that
the
requirements
apply
"
to
the
extent"
the
requirements
apply
or
applied
at
the
time
the
area
is
designated
for
the
8­
hour
NAAQS.

Comment:
One
commenter
suggested
that
definition
of
"
applicable
requirements"
in
section
51.900(
f)
should
be
revised
to
specify
a
date
at
which
applicable
requirements
are
determined.
The
105
current
draft
regulatory
text
states
that
"
applicable
requirements
means
for
an
area
the
following
requirements
to
the
extent
such
requirements
applied
to
the
area's
classification
under
section
181(
a)(
1)
of
the
Act
for
the
1­
hour
NAAQS."
The
language
specifying
a
particular
time
period
has
not
been
included
in
the
draft
regulatory
text
and
this
should
be
clarified.

Response:
The
final
rule
clarifies
that
the
applicable
requirements
are
those
that
apply
at
the
time
an
area
is
designated
for
the
8­
hour
NAAQS.

Comment:
A
commenter
recommended
that
ROP
be
deleted
from
the
list
of
"
applicable
requirements"
in
section
51.900(
f)
since
the
requirements
in
section
51.905(
b)
prohibit
changing
an
ROP/
RFP
plan
for
the
1­
hour
NAAQS
unless
the
State
makes
a
demonstration
that
the
modification
will
not
interfere
with
the
attainment
or
progress
toward
achieving
the
8­
hour
NAAQS.

Response:
The
final
rule
retains
ROP
on
the
list
of
applicable
requirements
in
section
51.900(
f).
Some
1­
hour
nonattainment
areas
may
not
have
submitted
a
required
ROP
plan
or
completed
implementing
such
a
plan
if
submitted.
Therefore,
the
ROP
plan
and
its
implementation
must
remain
as
applicable
requirements.

Comment:
One
commenter
noted
that
EPA
proposes
to
define
"
applicable
requirements"
as
a
list
of
ten
items.
This
list
does
not
purport
to
include
all
statutorily
applicable
requirements,
and
indeed
omits
some
of
the
items
included
in
the
list
published
in
the
June
2
proposal.
See
Appendices
A
and
B,
68
Fed.
Reg.
32864­
67.
Appendix
A
cautioned:
"
This
is
only
an
outline
of
the
general
requirements
of
subparts
1
and
2
and
should
not
be
relied
on
for
regulatory
purposes."
68
Fed.
Reg.
32864.
A
fortiori,
proposed
regulatory
text
that
includes
fewer
statutory
requirements
than
this
nonregulatory
outline
must
not
"
be
relied
on
for
regulatory
purposes."
As
the
Supreme
Court
made
clear
in
Whitman,
EPA
lacks
authority
to
shunt
aside
textually
applicable
provisions
of
the
Clean
Air
Act.
The
proposal's
attempt
to
do
so
is
unlawful.
Among
the
provisions
omitted
from
the
list
are
the
attainment
demonstration
requirements
of
CAA
§
§
182(
b)(
1)(
A)
and
182(
c)(
2)(
A).
Those
requirements,
central
to
the
Act's
program
to
achieve
health­
based
air
quality
standards,
are
textually
applicable
requirements
that
EPA
lacks
discretion
to
abrogate.

Response:
We
disagree
with
the
commenter
that
the
attainment
demonstration
and
ROP
requirements
are
textually
applicable
requirements
even
after
the
1­
hour
standard
has
been
revoked.
As
provided
in
more
detail
in
the
Preamble,
we
believe
the
statute
is
ambiguous
as
to
whether
areas
are
required
to
adopt
an
attainment
demonstration
for
a
NAAQS
which
no
longer
applies.
Thus,
we
looked
to
the
language
of
the
statute
and
Congressional
intent
to
discern
a
reasonable
approach
for
treatment
of
these
plans.
We
believe
the
final
rule's
treatment
of
1­
hour
obligations
to
submit
attainment
demonstrations
and
ROP
plans
is
consistent
with
Congressional
intent
ensuring
continued
emission
reductions
as
areas
transition
to
implementation
of
the
revised
ozone
standard.
We
do
not
believe
that
forcing
States
to
submit
an
attainment
demonstration
for
the
1­
hour
standard
at
the
same
time
they
are
preparing
a
plan
to
achieve
an
even
more
stringent
standard
is
a
good
use
of
limited
State
resources.
The
final
rule
provides
several
alternatives
for
continued
106
emission
reductions,
one
of
which
is
to
submit
the
1­
hour
attainment
demonstration.
The
final
rule
also
retains
the
ROP
plan
obligation.

Nonattainment
for
the
8­
hour/
Nonattainment
for
the
1­
hour
ozone
NAAQS
on
or
after
November
15,
1990
(
Section
VI.
C.
3
of
the
preamble).

In
the
preamble
to
the
proposed
rule,
we
addressed
1­
hour
nonattainment
areas
and
1­
hour
maintenance
areas
in
the
same
section.
In
the
draft
regulatory
text,
we
created
separate
subsections
for
these
two
types
of
areas.
In
the
final
rule
and
the
preamble
to
the
final
rule
we
follow
the
approach
taken
in
the
draft
regulatory
text
where
we
address
these
types
of
areas
separately.

Mandatory
Control
Measures.
(
Section
VI.
C.
3.
a.(
i)
of
proposed
rule;
see
68
FR
32820;
sections
51.900(
f)
and
51.905(
a)(
1)
and
(
2)
of
final
rule.)

Comment:
Several
commenters
supported
the
proposal.

Response:
We
acknowledge
this
support.

Comment:
Several
commenters
opposed
EPA's
antibacksliding
proposal
on
the
basis
that
not
all
control
requirements
required
by
an
area's
1­
hour
classification
would
necessarily
help
achieve
the
8­
hour
standard.

Response:
As
we
noted
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
NAAQS,
section
172(
e),
and
the
CAA's
redesignation
provisions,
we
believe
that
Congress
intended
these
areas
to
continue
to
implement
mandatory
control
requirements
that
applied
in
the
area
for
the
1­
hour
NAAQS.

Comment:
Several
commenters
believed
that
retention
of
subpart
2
controls
may
have
unintended
negative
consequences
for
the
few
areas
that
recently
bumped­
up
pursuant
to
Court
cases
rejecting
EPA's
transport/
attainment
date
extension
policy.
Specifically,
most
of
these
areas
have
been
or
will
be
bump­
up
to
Serious
or
Severe
triggering
control
obligations
not
previously
required
for
those
areas.
Some
of
these
controls,
and
in
particular
VOC
controls
and
Reformulated
Gasoline
(
RFG),
may
not
benefit
and/
or
may
even
be
counterproductive
to
attaining
the
8­
hour
standard.
The
commenter
believes
that
for
areas
bumped­
up
as
the
result
of
the
transport
policy,
EPA
should
allow
states
to
evaluate
the
relative
ozone
reduction
benefits
of
the
higher
classification
controls
and,
where
appropriate,
substitute
more
effective
ozone
controls.

Response:
As
explained
in
the
June
2,
2003
proposal,
we
believe
that
Congress
intended
areas
to
remain
subject
to
obligations
that
applied
for
purposes
of
the
area's
1­
hour
classification.
While
EPA
believes
that
the
areas
that
have
recently
been
bumped
up
do
suffer
from
transport,
they
are
also
significant
metropolitan
areas
that
contribute
to
their
own
ozone
problem.
We
address
comments
on
RFG
as
an
"
applicable
requirement"
separately
elsewhere
in
this
Response
to
Comment
Document.

Comment:
One
comment
suggested
that
EPA
"
forgive"
outstanding
control
measure
requirements
and
that
all
that
should
be
required
are
the
new
controls
needed
to
attain
the
8­
hour
standard.

Response:
As
noted
in
the
June
2,
2003
proposed
rulemaking
and
the
preamble
to
the
final
rule,
EPA
examined
the
CAA
and
determined
that
Congress
intended
areas
to
remain
subject
to
the
control
obligations
that
applied
for
purposes
of
the
1­
hour
ozone
standard,
which
is
less
stringent
than
the
8­
hour
standard.
Once
an
area
attains
the
applicable
ozone
standard,
the
8­
hour
standard,
they
will
have
the
opportunity
to
switch
these
control
measures
to
contingency
measures
based
on
a
demonstration
under
section
110(
l).

Comment:
One
commenter
requested
clarification
about
how
the
anti­
backsliding
provisions
affect
mandatory
subpart
2
measures
for
which
the
CAA
allows
for
variations
or
substitutions,
such
as
Stage
II
vapor
recovery
or
the
Clean
Fuels
Fleet
Program.

Response:
The
anti­
backsliding
provisions
of
this
rule
do
not
in
any
way
modify
the
CAA
requirements
relating
to
the
mandatory
measures
of
subpart
2;
in
particular,
the
CAA's
provisions
for
certain
mandatory
measures,
such
as
the
Stage
II
vapor
recovery
provision
of
section
182(
b)(
3)
and
the
Clean
Fuel
Fleet
Program
of
section
182(
c)(
4),
allow
for
variations
or
substitutions
of
measures
under
prescribed
circumstances.
States
remain
free
to
modify
their
SIPs
consistent
with
a
variation
or
substitution
allowed
under
the
CAA
and
EPA's
rules
interpreting
those
provisions.

Comment:
One
commenter
noted
that
we
proposed
in
Section
51.905(
a)(
2)
to
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
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.
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)
that
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
108
"
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
a
discrepancy
between
the
proposed
regulatory
text
in
section
51.905(
a)(
1)
and
the
preamble
language
in
section
C.
3.
a.
iii
(
68
FR
32821).
The
regulatory
text
provides
that
the
listed
requirements
apply
based
on
an
areas
designation
for
the
1­
hour
standard
at
the
time
of
revocation
of
the
1­
hour
NAAQS
for
that
area
and
the
preamble
provides
that
the
requirements
apply
based
on
the
area's
designation
for
the
1­
hour
standard
at
the
time
of
designation
for
the
8­
hour
NAAQS.
The
commenter
noted
that
the
date
of
revocation
is
highly
uncertain
compared
to
the
date
of
designation,
which
is
driven
by
the
Consent
Decree
and
indicated
a
preference
for
the
date
of
designation
for
these
and
other
applicable
requirements.

Response:
We
agree
with
the
commenter
that
the
draft
regulatory
text
did
not
reflect
what
EPA
stated
in
the
proposed
rule.
EPA
agrees
with
the
commenter
that
the
regulatory
text
should
reflect
the
date
of
designation
for
the
8­
hour
NAAQS.
The
time
periods
for
submission
of
outstanding
obligations
in
section
51.905
(
see
e.
g.,
51.905(
a)(
1)(
ii))
run
from
the
date
of
designation
for
the
8­
hour
standard
and
many
of
these
periods
are
one
year.
The
1­
hour
standard
will
be
revoked
1­
year
following
designation
for
the
8­
hour
standard.
Thus,
if
EPA
adopted
the
alternative
language,
areas
could
face
uncertainty
about
whether
they
would
be
immediately
obligated
to
submit
a
SIP
at
the
time
of
revocation,
based
on
whether
or
not
they
had
been
redesignated
as
of
that
date.

Comment:
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.
A
commenter
suggested
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
the
8­
hour
SIP,
but
may
remain
contingency
measures,
unless
the
measures
are
required
to
be
implemented
by
the
Act."

Response:
The
final
rule
reflects
this
recommended
language
change
with
some
slight
modification.

Comment:
One
commenter
recommended
that
in
Sec.
51.905(
a)(
l)(
i),
the
language
should
be
changed
to
read
"...
51.900(
f)
to
the
extent
that
the
area
had
a
higher
classification"
to
"...
had
an
equal
or
higher
classification...''
109
Response:
EPA
agrees
with
the
commenter
that
and
has
been
revised
to
reflect
this
change.

Comment:
One
commenter
objected
to
the
portion
of
the
proposed
rule
that
includes
the
requirement
for
reformulated
gasoline
in
severe
areas
in
its
list
of
applicable
requirements
that
will
remain
in
effect
after
full
revocation
of
the
1­
hour
standard.
68
Fed.
Reg.
32802,
Appendix
B.
The
commenter
requests
that
we
remove
the
reformulated
gas
requirement
from
the
list
of
applicable
requirements
that
areas
must
continue
to
implement.

Response:
The
requirement
for
reformulated
gasoline
(
RFG)
was
listed
in
the
June
2,
2003
and
the
draft
regulatory
text
as
an
applicable
requirement
under
subpart
2.
Subsequent
analysis
by
EPA
supports
the
position
that
RFG
is
actually
a
requirement
under
Title
II
(
the
mobile
source­
related
provisions)
of
the
Clean
Air
Act,
and
must
remain
in
effect
once
initiated.
Therefore,
while
not
an
"
applicable
requirement"
under
subpart
2
of
Title
I,
it
is
nonetheless
an
applicable
requirement
under
the
Act
and
must
remain
in
effect
and
cannot
be
shifted
to
be
a
contingency
measure
after
the
area
attains
the
NAAQS.

Comments.
EPA's
June
2
proposal
listed
reformulated
gasoline
in
Appendix
B
as
an
"
applicable
requirement"
for
severe
and
above
ozone
non­
attainment
areas;
it
was
also
listed
as
an
"
applicable
requirement"
in
the
draft
regulatory
text
under
section
51.900(
f).
EPA
received
a
number
of
comments
addressing
reformulated
gasoline
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
non­
attainment
areas
to
opt­
in
to
the
RFG
program
should
be
liberalized,
to
allow
additional
areas
to
avail
themselves
of
the
benefits
of
RFG.
Another
commenter
believed
that
RFG
as
a
national
measure
would
aid
in
bringing
areas
into
attainment.
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
ins.

One
commenter
objected
to
the
portion
of
the
proposed
rule
that
includes
the
requirement
for
reformulated
gasoline
in
severe
areas
in
its
list
of
applicable
requirements
that
will
remain
in
effect
after
full
revocation
of
the
1­
hour
standard.
68
Fed.
Reg.
32802,
Appendix
B.
The
commenter
requests
that
we
remove
the
reformulated
gas
requirement
from
the
list
of
applicable
requirements
that
areas
must
continue
to
implement.

Response.
EPA
has
decided
that
it
is
not
appropriate
to
list
reformulated
gasoline
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,
reformulated
gasoline
is
required
under
a
federal
program.
It
is
prescribed
in
some
110
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.
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
reformulated
gasoline
does
not
appear
on
the
list
of
"
applicable
requirements"
in
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
attain
the
ozone
NAAQS.

Comment:
One
commenter
believed
that
1­
hour
maintenance
counties
designated
nonattainment
under
the
8­
hour
standard
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:
For
an
area
in
this
situation,
EPA
would
entertain
a
request
for
the
State
to
revise
any
commitment
in
the
SIP
to
submit
an
updated
maintenance
plan.
Because
the
State
would
at
that
time
be
working
on
a
plan
to
implement
the
8­
hour
standard
as
a
nonattainment
area,
it
is
not
reasonable
for
EPA
to
require
the
State
to
revise
a
maintenance
plan
related
to
maintaining
the
1­
hour
NAAQS.

Comment:
With
regard
to
limiting
the
applicability
of
1­
hour
obligations
to
that
portion
of
the
8­
hour
NAA
that
was
also
part
of
the
1­
hour
NAA,
one
commenter
supports
this
policy,
especially
for
its
enhanced
I/
M
program
in
Chicago.
The
commenter
believes
that
the
environmental
benefit
of
requiring
an
extension
of
the
enhanced
I/
M
program
from
areas
covered
under
the
higher
1­
hour
NAAQS
to
those
areas
recently
added
to
the
CMSA
for
the
8­
hour
NAAQS,
which
will
be
in
a
lower
classification
than
for
the
1­
hour
NAAQS,
to
be
minimal,
costly,
and
disruptive
of
the
continuing
implementation
of
the
enhanced
I/
M
program
in
the
current
1­
hour
NAA.

Response:
The
final
rule
provides
for
retaining
applicable
requirements
for
an
area's
1­
hour
classification
in
only
the
original
1­
hour
nonattainment
area
(
where
the
8­
hour
classification
is
lower
than
the
1­
hour
classification.

Discretionary
control
measures.
(
Section
VI.
C.
3.
a.
ii.
of
proposed
rule;
see
68
FR
32821;
section
51.905(
d)
of
draft
regulatory
text.
There
is
no
parallel
provision
in
final
rule.
As
noted
in
the
preamble,
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
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.)

Comment:
Several
commenters
supported
the
proposal
regarding
discretionary
control
measures.
One
commenter
believed
discretionary
control
measures
should
be
treated
in
the
same
manner
as
111
mandatory
measures.
Similarly,
another
commenter
recommended
that
all
control
measures
in
a
SIP
needed
to
meet
Subpart
2
emission
reduction
requirements
should
be
defined
as
Subpart
2
measures,
even
though
some
of
them
may
not
be
explicitly
mentioned
in
Subpart
2.
The
commenter
believes
that
the
only
discretionary
controls
would
be
those
that
would
create
emission
reductions
beyond
emission
levels
required
for
ROP
or
attainment
demonstration.

Response:
We
do
not
believe
there
is
a
basis
for
treating
control
measures
not
specifically
mandated
by
Congress
in
the
same
manner
as
those
measures
specified
by
Congress
under
the
CAA.
With
the
exception
of
those
controls
mandated
by
Congress,
the
CAA
grants
the
States
discretion
in
determining
the
mix
of
controls
necessary
to
make
progress
toward
attainment
and
to
attain
and
maintain
the
NAAQS.
Once
measures
have
been
approved
into
the
SIP,
the
State
may
modify
those
obligations
only
through
making
the
demonstrations
required
by
sections
110(
l)
and
193
of
the
Act.

Comment:
One
commenter
also
recommends
that
any
modification
or
removal
of
a
1­
hour
SIP
control
measure,
whether
Subpart
2
required
or
discretionary,
be
done
with
a
demonstration
of
not
interfering
with
attainment
of
the
8­
hour
standard,
instead
of
the
1­
hour
standard
as
indicated
in
the
proposal.
However,
another
commenter
suggested
that
allowing
discretionary
controls
in
the
SIP
to
be
modified
based
on
a
showing
of
noninterference
with
the
8­
hour
(
rather
than
the
1­
hour)
standard,
could
allow
greater
discretion
to
modify
or
relax
control
requirements.
This
is
because
the
applicable
attainment
date
will
be
many
years
later,
and
the
new
rate
of
progress
requirements
are
not
as
stringent
as
needed
for
timely
attainment.
This
could
result
in
delayed
air
quality
improvements
and
could
result
in
competitive
disadvantage
for
sources,
limited
incentives
to
develop
new
technologies,
and
increased
pressure
to
modify
rules.
Another
commenter
echoed
this
concern
and
stated
that
relying
on
a
demonstration
that
a
SIP
revision
will
not
"
interfere"
with
attainment
of
the
8­
hour
standard
in
essence
delays
attainment
with
ozone
reduction
goals
by
five
to
ten
years
or
more.

Response:
We
believe
that
as
the
1­
hour
standard
is
revoked
any
demonstration
under
section
110(
1)
and
193
must
demonstrate
that
a
SIP
revision
will
not
interfere
with
attainment
of
the
sole
health­
based
standard
 
the
8­
hour
NAAQS.
While
the
commenters
focused
on
one
aspect
to
the
section
110(
l)
and
193
demonstration
 
that
a
SIP
revision
will
not
interfere
with
attainment
of
the
8­
hour
NAAQS,
we
note
that
section
110(
l)
actually
provides
a
more
rigorous
test.
The
State
must
demonstrate
that
revision
will
not
interfere
with
any
applicable
requirement
of
the
Act,
thus
States
will
need
to
demonstrate
that
a
revision
will
not
interfere
with
timely
progress
toward
attainment
and
that
emission
reductions
are
not
delayed
beyond
a
period
that
provides
for
reasonable
implementation.

Comment:
One
commenter
supported
the
concept
of
no
backsliding,
but
said
that
areas
that
are
in
full
attainment
of
the
1­
hour
standard
deserve
the
flexibility
to
create
new
strategies
to
meet
the
new
standards
because
the
old
strategies
may
well
not
be
effective
in
meeting
a
new
target
and
would
increase
regulatory
complexity.
112
Response:
Sections
110(
l)
and
193
have
always
allowed
States
to
modify
the
discretionary
controls
in
their
SIPs
if
the
provisions
of
those
sections
are
met.
We
believe
this
provides
the
flexibility
that
the
commenter
is
seeking.

Comments
on
draft
regulatory
text:

Comment:
One
commenter
was
concerned
that
the
proposed
regulatory
text
does
not
describe
the
analysis
EPA
will
undertake
in
determining
whether
or
not
to
approve
a
proposed
SIP
revision
that
would
delay
or
relax
"
discretionary"
measures
in
an
approved
1­
hour
SIP.
While
the
June
proposal
(
68
Fed.
Reg.
32821)
stated
that
EPA
would
undertake
the
analysis
under
section
1l0(
1)
of
the
Clean
Air
Act
to
determine
whether
or
not
such
revisions
would
"
interfere"
with
attainment
of
the
ozone
standard,
and
stated
that
the
analysis
would
evaluate
interference
with
attainment
of
the
eight­
hour
standard
rather
than
the
one­
hour
standard,
the
proposed
regulatory
language
only
cites
section
1l0(
1)
of
the
Act
but
does
not
provide
any
explanation
of
how
EPA
will
implement
that
section
if
discretionary
measures
are
proposed
to
be
delayed
or
relaxed.
The
commenter
is
concerned
that
revocation
of
the
1­
hour
standard
coupled
with
(
1)
the
significantly
later
attainment
deadlines
for
the
eight­
hour
standard
and
(
2)
the
inadequacy
of
the
3%
per
year
ROP
requirement
to
achieve
emission
reductions
that
would
be
equivalent
to,
and
in
the
same
time
frame
as,
those
required
to
attain
the
1­
hour
standard
by
current
attainment
deadlines,
could
allow
states
to
delay
implementation
of
discretionary
measures
in
their
approved
1­
hour
SIPS.
The
extent
of
such
delay
depends
on
how
EPA
will
apply
section
110(
1)
in
this
situation.
This
concern
was
the
basis
for
their
comment
on
the
June
proposal
that,
if
EPA
insists
on
revoking
the
1­
hour
standard
prior
to
its
attainment
(
which
the
commenter
opposes),
EPA
must
at
least
require
that
all
measures
in
the
approved
1­
hour
SIP
shall
remain
in
effect
and
shall
not
be
delayed,
except
in
strictly
limited
circumstances.
Given
the
lack
of
explanation
in
the
proposed
regulatory
language
regarding
this
key
issue,
EPA
must,
in
its
final
rule,
state
specifically
how
it
will
analyze
requests
for
approval
of
SIP
revisions
that
would
delay
or
relax
discretionary
measures
in
a
1­
hour
SIP.
A
lack
of
such
explanation
provides
inadequate
basis
for
the
public
to
understand
the
impact
of
the
proposed
rule,
and
fails
to
disclose
the
major
legal
interpretations
and
policy
considerations
underlying
the
proposed
rule
as
required
by
Clean
Air
Act
section
307.
Specifically,
EPA
must
explain
whether
or
not
it
will
allow
delays
or
relaxations
that
would
not
have
been
allowed
had
the
1­
hour
standard
been
retained,
and
must
specify
the
circumstances
in
which
those
delays
or
relaxations
will
be
allowed.
EPA
must
also
explain
how
such
delays
or
relaxations
comport
with
anti­
backsliding
principles
and
Clean
Air
Act
requirements
for
reasonable
further
progress
towards,
and
attainment
of,
the
one­
hour
standard.

Response:
We
are
developing
guidance
on
how
SIP
revisions
may
be
made
under
section
110(
l)
and
will
publish
that
guidance
subsequent
to
publication
of
the
final
rule
for
implementation
of
the
8­
hour
standard.
Furthermore,
we
believe
that
with
the
revocation
of
the
1­
hour
standard,
the
antibacksliding
provisions
promulgated
below
will
not
result
in
any
wholesale
delay
of
emission
reductions
that
are
required
under
the
1­
hour
standard.
113
Comment:
One
commenter
suggested
that
draft
section
51.905(
d)
purports
to
allow
relaxation
of
SIP
requirements
"
consistent
with
sections
110(
l)
and
193
of
the
Clean
Air
Act
if
such
requirement
is
not
addressed
for
that
area
under
paragraph
(
a)
of
this
section."
The
commenter
noted
that
EPA
cannot
lawfully
authorize
relaxation
of
SIP
commitments
in
this
manner
 
either
for
1­
hour
or
8­
hour
nonattainment
areas.
The
agency
has
no
authority
to
allow
SIP
revisions
that
result
in
failure
of
the
SIP
to
comply
with
express
requirements
of
the
Act,
whether
or
not
the
revision
also
interferes
with
requirements
relating
to
attainment
and
RFP.

Response:
For
discretionary
control
measures
a
State
may
revise
provisions
of
its
SIP
for
a
nonattainment
area
as
long
as
it
meets
the
criteria
specified
in
sections
110(
l)
and
193.
One
of
the
provisions
of
section
110(
l)
is
that
the
revision
must
not
interfere
with
any
"
applicable
requirement"
of
the
Act.
Since
the
CAA
already
provides
these
mechanisms
for
revising
SIPs,
we
do
not
believe
a
provision
is
needed
in
the
final
rule
to
that
effect.
Therefor
the
final
rule
does
not
contain
the
section
51.905(
d)
provision
that
appeared
in
the
draft
regulatory
text.

Comment:
Several
commenters
noted
that
section
51.905(
d),
which
provides
that
a
State
may
revise
or
remove
requirements
in
the
approved
SIP
consistent
with
sections
110(
l)
and
193
of
the
Clean
Air
Act
if
such
requirement
is
not
addressed
for
that
area
under
paragraph
(
a)
of
this
section,
called
into
question
whether
a
State
could
revise
a
control
obligation
addressed
by
paragraph
(
a).
For
example,
the
requirement
for
former
1­
hour
nonattainment
areas
to
reduce
emissions
by
10%
if
they
failed
to
develop
a
fully­
approved
attainment
demonstration
falls
under
paragraph
(
a).
What
if
a
State
wanted
to
change
a
control
measure
selected
to
achieve
the
10%
reduction?
The
commenters
encouraged
EPA
to
revise
Section
51.905(
d)
to
provide
that
States
may
revise
or
remove
any
control
obligation
consistent
with
section
110(
l)
and
193
of
the
Clean
Air
Act.

Response:
Since
the
CAA
already
contains
provisions
for
revising
SIPs
under
sections
110(
l)
and
193,
we
do
not
believe
a
provision
is
needed
in
the
final
rule
to
that
effect.
Therefor
the
final
rule
does
not
contain
the
section
51.905(
d)
provision
that
appeared
in
the
draft
regulatory
text.

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
final
rule.)

Planning
SIPs
(
Section
VI.
C.
3.
a.
iv
of
proposal;
see
68
FR
32822;
section
51.905(
a)(
1)(
ii)
and
(
iii)
of
the
draft
regulatory
text;
section
51.905(
a)(
1)(
ii)
of
final
rule.)

Comment:
Two
commenters
generally
opposed
retaining
planning
obligations
under
the
1­
hour
standard.
Other
comments
opposed
revocation
of
the
1­
hour
standard,
which,
among
other
things,
would
retain
the
1­
hour
planning
obligations
for
areas
that
had
not
met
that
standard.
One
commenter
objected
to
the
continuing
requirement
for
submission
of
ROP
plans
and/
or
attainment
demonstrations
for
the
1­
hour
standard
after
it
is
revoked.
[
OAR­
2003­
0079­
0442
Dominion]

Response:
We
believe
Congress
intended
areas
to
continue
to
have
control
measures
no
less
stringent
than
those
that
applied
for
the
1­
hour
NAAQS.
Because
the
ROP
obligation
results
in
114
control
obligations,
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
NAAQS,
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
submit
and
implement
a
ROP
plan
under
the
1­
hour
NAAQS
could
experience
backsliding
by
being
released
from
the
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
NAAQS
were
not
revoked,
the
area
would
have
been
required
to
continue
to
ensure
emissions
would
be
reduced
by
specified
levels
in
specific
timeframes.
If
the
final
rule
contained
no
provision
comparable
to
section
51.905(
a)(
1)(
i),
achievement
of
those
emissions
reductions
would
almost
certainly
be
delayed.
Because
we
are
transitioning
to
a
more
stringent
and
protective
air
quality
NAAQS,
we
see
no
reason
why
there
should
be
provisions
that
would
provide
less
protection
to
public
health.

Comment:
Several
commenters
disagreed
with
EPA's
proposal
that
States
that
have
not
yet
implemented
all
1­
hour
ROP
measures
must
implement
those
measures.
One
commenter
stated
that,
in
some
cases,
implementing
all
1­
hour
ROP
measures
may
do
little
or
nothing
to
meet
the
8­
hour
NAAQS.
This
commenter
states
that
it
does
not
appear
legal
to
continue
to
require
such
measures
when
the
Agency
has
revised
the
standard
or
has
concluded
that
the
measures
required
under
Subpart
2
such
as
VOC
reductions
may
not
be
effective
for
achieving
compliance
of
the
8­
hour
standard.
The
commenters
recommend
these
areas
should
only
need
to
meet
their
obligations
under
the
new
standard
since,
most,
if
not
all,
of
these
areas
violate
the
8­
hour
NAAQS
and
to
require
states
to
continue
meeting
1­
hour
SIPs
would
overtax
scarce
state
agency
resources
and
make
programs
needlessly
complex.

Response:
We
continue
to
believe
that
to
ensure
momentum,
areas
should
be
required
to
address
outstanding
ROP
obligations
and
to
continue
to
implement
measures
in
their
SIPs
adopted
to
meet
the
1­
hour
ROP
requirement.
States
retain
the
flexibility
to
revise
the
control
measures
adopted
to
meet
1­
hour
ROP,
so
long
as
they
demonstrate
that
such
revision
will
not
interfere
with
the
percent
reduction
requirements
and
will
not
interfere
with
any
other
applicable
requirement
of
the
Act.
Thus,
we
disagree
with
the
commenters
that
this
obligation
means
that
States
would
be
forced
to
implement
measures
not
necessary
to
meet
the
8­
hour
NAAQS.

Furthermore,
with
respect
to
the
obligation
to
submit
a
SIP
to
address
any
unmet
ROP
obligation,
we
think
it
is
important
that
areas
remain
obligated
to
achieve
this
progress
mandated
by
Congress.
As
provided
in
the
final
rule,
to
the
extent
such
obligation
overlaps
with
8­
hour
ROP
requirements,
the
State
need
only
submit
one
SIP.
We
see
no
reason
why,
in
transitioning
to
a
more
stringent
and
protective
air
quality
standard,
there
should
be
provisions
that
would
not
retain
these
significant
assurances
of
public
health
protection
and
rely
solely
on
SIPs
that
will
not
be
dues
for
several
years
to
meet
the
8­
hour
standard.
115
Comment:
One
commenter
supports
retaining
the
requirement
to
implement
all
1­
hour
ROP
measures.
They
state
that
EPA
has
no
authority
to
relax
1­
hour
planning
obligations,
such
as
requirements
for
rate
of
progress
and
attainment
demonstration
SIPs.
They
support
the
EPA's
proposed
approach
that
1­
hour
nonattainment
areas
remain
subject
to
subpart
2
requirements
by
operation
of
law
and
note
that
ROP
for
1­
hour
nonattainment
areas
is
just
as
explicitly
mandated
by
subpart
2,
as
are
"
control"
measures.
They
also
support
EPA's
position
in
the
proposal
that
relaxation
of
unmet
planning
obligations
would
create
major
inequities
between
areas
that
have
complied
with
the
1­
hour
planning
obligations
and
those
that
have
not.
The
commenter
stated
there
is
no
merit
whatsoever
to
EPA's
claim
that
compliance
with
unmet
1­
hour
planning
obligations
would
somehow
"
divert
resources"
from
planning
to
meet
the
8­
hour
standard
and
said
they
believe
that
the
emissions
inventories,
modeling,
and
control
strategies
necessary
for
1­
hour
demonstrations
are
transferrable
in
virtually
all
material
respects
to
planning
for
the
8­
hour
standard
and
that
States
have
long
been
required
to
simultaneously
plan
for
attainment
of
both
short
and
long
term
NAAQS
for
the
same
pollutant
(
e.
g.,
PM10,
SO2,
CO).

Response:
As
noted
in
the
preamble
to
the
final
rule,
we
are
requiring
that
1­
hour
planning
obligations
 
or
substitutes
that
will
achieve
interim
emission
reductions
prior
to
implementation
of
the
8­
hour
standard
SIP
 
be
met
for
areas
that
are
designated
nonattainment
for
the
8­
hour
standard.
(
For
areas
that
are
designated
attainment
under
the
8­
hour
standard,
but
that
were
designated
nonattainment
for
the
1­
hour
standard,
we
believe
the
requirement
to
submit
a
maintenance
plan
under
section
110(
a)(
1)
 
in
conjunction
with
the
requirement
to
retain
subpart
2
control
measures
in
the
SIP
(
at
least
as
contingency
measures)
and
the
provisions
of
section
110(
l)
that
provides
safeguards
when
revising
an
area's
SIP
 
will
suffice
to
provide
continued
maintenance
of
the
8­
hour
standard
without
the
requirement
to
complete
subpart
2
planning
requirements
for
those
areas.)

Comment:
One
comment
recommended
that
EPA
reconsider
the
obligation
to
meet
1­
hour
ROP
emission
reduction
targets.
For
some
serious
nonattainment
areas
and
all
severe/
extreme
nonattainment
areas
under
the
1­
hour
standard,
this
obligation
is
valid
only
for
the
2002
milestone
year
before
the
1­
hour
standard
is
revoked
in
May
2005.
If
EPA
thinks
that
it
is
still
necessary,
EPA
should
specify
obligations
if
a
state
fails
to
meet
the
ROP
emission
target
in
2002.
For
example,
a
state
must
activate
some
or
all
contingency
measures,
and
the
implemented
contingency
measures
must
not
be
removed
after
the
1­
hour
standard
is
revoked.

Response:
We
believe
that
Congress
intended
areas
not
to
backslide
where
EPA
has
promulgated
a
more
stringent
NAAQS
in
place
of
an
existing
NAAQS.
While
this
intent
is
most
notable
for
control
measures
(
see,
e.
g.,
section
172(
e)
regarding
control
measures
where
EPA
promulgates
a
less
stringent
NAAQS),
EPA
also
believes
that
Congress
did
not
intend
for
areas
that
were
obligated
to
meet
progress
increments
under
the
less
stringent
standard
to
be
relieved
of
progress
requirements.
However,
recognizing
that
many
of
these
areas
will
also
be
planning
to
meet
the
8­
hour
NAAQS,
EPA
believes
it
is
possible
to
relieve
some
of
the
duplicative
planning
obligation
that
may
arise
by
retaining
the
1­
hour
planning
obligation.
Thus,
as
explained
in
more
detail
in
the
preamble
to
the
final
rule,
where
the
1­
hour
and
8­
hour
planning
obligations
overlap,
the
State
will
13Memorandum
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.

116
not
be
required
to
submit
two
separate
SIPs.
Many
areas
will
be
able
to
address
the
1­
hour
ROP
requirement
for
the
1­
hour
standard
(
if
they
have
not
done
so
already)
in
conjunction
with
addressing
the
initial
8­
hour
ROP
requirement.
Retaining
the
obligation
to
meet
1­
hour
ROP
emission
reduction
targets
will
ensure
that
any
delays
in
reduction
are
minimized
as
the
8­
hour
ROP
SIPs
will
not
be
due
for
several
years
after
designation
for
the
8­
hour
standard.

Comment:
One
commenter
recommends
that
ROP
plans
to
achieve
any
outstanding
ROP
reductions
required
under
the
1­
hour
standard
should
only
be
triggered
after
an
area
is
redesignated
to
nonattainment.
(
Submitted
as
comment
on
draft
sec.
51.905(
a)(
3)(
ii)(
B)(
2))

Response:
Under
the
terms
of
EPA's
"
Clean
Data
Policy,
13"
an
area
that
has
achieved
the
NAAQS
may
be
relieved
of
planning
requirements
as
long
as
the
area
remains
clean.
If
the
area
once
again
violates
the
NAAQS,
even
if
it
is
not
designated,
the
planning
requirements
must
then
be
met.
For
consistency
with
that
policy,
the
final
rule
offers
the
State
in
such
a
situation
a
choice
between
an
advance
increment
of
progress
(
5
percent)
or
submission
of
an
early
8­
hour
SIP.]

Comment:
One
commenter
generally
supported
our
proposal
to
require
that
States
fully
implement
the
provisions
contained
in
ROP
plans
adopted
to
meet
their
obligations
under
the
1­
hour
NAAQS,
but
raised
two
concerns
about
continuing
the
ROP
obligation.
First,
there
will
be
several
areas
that
are
nonattainment
for
both
standards
but
that
will
not
be
subject
to
RFP
for
the
8­
hour
and
that
will
be
subject
to
a
continuing
obligation
to
submit
further
1­
hour
ROP
plans.
Second,
areas
that
were
bumped­
up
after
2001
and
have
attained
the
1­
hour
NAAQS
but
are
not
redesignated
to
attainment
of
the
1­
hour
standard
prior
to
its
revocation,
are
also
required
to
submit
additional
ROP
measures
to
achieve
the
1­
hour
NAAQS.
This
serves
no
purpose
according
to
the
commenter.
The
commenter
recommends
that
an
area
should
not
be
subject
to
the
obligation
to
submit
a
1­
hour
ROP
plan
if
the
area
has
attained
the
1­
hour
NAAQS,
or
will
attain
the
8­
hour
NAAQS
within
three
years
of
designation,
or
for
any
period
such
area
is
subject
to
RFP
for
the
8­
hour
NAAQS.
Also,
the
commenter
recommends
that
ROP
be
deleted
from
the
list
of
applicable
requirements
since
section
51.905(
b)
already
would
prohibit
changing
an
ROP
plan
for
the
1­
hour
standard
unless
the
State
makes
a
demonstration
that
the
modification
will
not
interfere
with
the
attainment
of
or
progress
toward
achieving
the
8­
hour
standard.
14Memorandum
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.

117
Response:
Our
Clean
Data
Policy14
allows
areas
that
have
air
quality
data
meeting
the
1­
hour
ozone
standard
to
discontinue
incomplete
planning
obligations
(
such
as
the
ROP
requirement)
as
long
as
they
continue
to
have
"
clean"
data.
Control
measures
that
have
been
adopted
and
approved
in
the
SIP
to
meet
previous
planning
obligations
must
be
retained,
however.
We
disagree
with
the
commenter
that
deleting
ROP
for
the
list
of
applicable
requirements
is
appropriate
since
section
51.905(
b)
of
the
proposed
rule
would
prohibit
an
area
from
revising
an
ROP
SIP
unless
the
State
makes
a
demonstration
that
such
modification
will
not
interfere
with
attainment
of
or
progress
toward
the
8­
hour
NAAQS.
Such
an
approach
could
make
it
easier
for
an
areas
to
backslide
since
progress
obligations
for
the
1­
hour
standard
may
be
more
stringent
that
those
for
the
8­
hour
standard.
For
example,
some
areas
may
have
no
explicit
ROP
requirement
for
the
8­
hour
standard.
If
EPA
does
not
retain
the
obligation
that
the
State
continue
to
meet
the
percentage
reduction
it
was
obligated
to
meet
for
the
1­
hour
standard,
the
State
may
be
able
to
remove
controls
from
the
SIP
and
delay
progress
toward
healthier
air.

Comment:
In
commenting
on
Section
that
would
have
restricted
modification
of
ROP
measures
approved
into
the
SIP
for
the
1­
hour
NAAQS
provided
they
demonstrate
that
the
modification
ensures
equivalent
or
greater
emission
reductions,
one
commenter
noted
that
it
is
inappropriate
for
EPA
to
constrain
the
States'
ability
to
modify
ROP
measures
within
the
parameters
of
the
requirements
of
the
Act.
They
noted
that
Congress
mandated
ROP,
but
it
is
the
states
responsibility
to
determine
strategies.
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
standard
or
if
measures
are
no
longer
appropriate
due
to
updated
technical
information
regarding
emissions
inventory
and
control
strategy
effectiveness.
In
commenting
on
sec.
51.905(
a)(
1)(
iii)
of
the
draft
regulatory
text,
one
commenter
suggested
that
it
would
be
more
effective
to
require
a
state
to
demonstrate
that
the
proposed
change
to
ROP
measures
will
ensure
that
the
area
will
make
equivalent
or
faster
progress
toward
attainment
of
the
8­
hour
NAAQS.
One
commenter
supports
the
use
of
a
stringent
test
for
revising
or
removing
such
measures,
since
modeling
of
the
air
quality
improvement
from
any
single
measure
would
probably
not
show
significance,
and
would,
therefore,
be
difficult
for
States
to
retain
individual
measures.
The
comment
recommends
requiring
States
that
seek
to
revise
their
SIP's
to
substitute
alternate
measures
that
provide
equal
or
greater
reductions.

Response:
The
final
rule
does
not
contain
the
language
regarding
revisions
to
ROP
plans
that
was
contained
in
the
draft
regulatory
text.
Section
110(
l)
provides
the
criteria
for
EPA
to
approve
any
SIP
revision,
and
we
therefore
believe
no
additional
rule
is
necessary.

Comment:
With
respect
to
the
anti­
backsliding
provisions
regarding
ROP
in
areas
attaining
the
1­
hour
standard,
one
commenter
stated
that
EPA
has
no
authority
to
waive
the
ROP
plan
requirement
15Memorandum
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.

118
mandated
by
subpart
2
on
the
pretext
that
an
area
has
clean
data.
The
commenter
argues
that
the
CAA
requires
these
plans
for
any
area
designated
nonattainment
for
ozone
and
gives
EPA
no
power
to
waive
such
requirements.

Response:
We
disagree
with
the
commenters
assertion
concerning
authority.
The
defense
of
the
Clean
Data
Policy
is
provided
in
the
memorandum
that
established
that
policy.
15
Comment:
One
commenter
urged
EPA
to
ensure
that
momentum
is
not
lost
and
requested
that
areas
that
have
not
submitted
an
attainment
demonstration
for
the
1­
hour
ozone
standard
be
required
to
submit
a
SIP
revision
in
a
relatively
short
timeframe.

Response:
We
have
designed
the
final
rule
such
that
an
area
with
an
unmet
planning
obligation
for
the
1­
hour
standard
would
still
be
required
to
prepare
submit
and
implement
a
rate
of
progress
plan
and
an
attainment
demonstration
(
or
substitute
plan).
We
believe
this
approach
will
avoid
backsliding
and
will
continue
progress
toward
attainment
of
the
ozone
standard
during
the
interim
period
prior
to
implementation
of
the
SIP
required
for
the
8­
hour
NAAQS,
even
after
the
1­
hour
standard
is
revoked.

Comment:
One
commenter
suggested
reordering
the
wording
in
the
definition
of
RFP
(
51.900(
o))
by
moving
the
phrase
"
for
purposes
of
the
8­
hour
NAAQS"
to
the
beginning
of
the
definition
in
order
to
clarify
that
the
phrase
"
for
purposes
of
the
8­
hour
NAAQS"
modifies
the
definition
of
RFP.

Response:
We
agree
with
this
revision;
the
final
rule
definitions
of
both
RFP
and
ROP
reflects
this
structure.

Comment:
[
Oppose]
A
number
of
commenters
opposed
retaining
the
attainment
demonstration
requirements
under
the
1­
hour
standard
after
the
standard
is
revoked.
Several
commenters
believed
that
the
effort
should
be
on
achieving
the
more
stringent
8­
hour
standard
and
that
controls
designed
for
the
1­
hour
standard
may
not
be
appropriate
for
meeting
the
8­
hour
standard.
Another
commenter
more
specifically
noted
that
developing
attainment
SIPs
for
both
standard
would
be
duplicative
and
another
cited
limited
resources
as
a
basis
for
not
requiring
1­
hour
attainment
demonstrations.

Several
commenters
dismissed
EPA's
argument
that
equity
demands
that
areas
that
had
an
outstanding
1­
hour
planning
obligation
should
be
held
to
that
obligation.
Several
commenters
stated
that
this
would
not
result
in
inequities
associated
with
transitioning
from
1­
hour
to
8­
hour
planning
in
these
few
areas
(
i.
e.,
those
being
bumped
up
to
a
higher
classification)
that
already
have
119
significant
controls
in
place
and,
in
some
cases,
are
in
the
process
of
installing
additional
discretionary
and
mandatory
1­
hour
controls.

One
commenter
in
an
area
that
was
recently
reclassified
from
"
serious"
to
"
severe"
indicated
it
is
required
to
submit
a
``
severe
SIP
by
mid­
2004.
This
will
follow
by
a
couple
of
months
the
formal
8­
hour
designations
to
be
made
by
EPA
in
April
of
next
year.
The
commenter
group
has
no
choice
but
to
commence
work
on
the
"
severe"
SIP
if
it
is
to
meet
the
mid­
July
2004
deadline.
The
"
severe"
SIP
may
not
be
required
under
the
8­
hour
implementation
rules
expected
early
next
year.
There
should
be
some
mechanism
for
relief
from
this
scheduling
dilemma
and
the
possibility
of
considerable
wasted
effort.
Also,
a
revised
(
transport)
SIP
for
the
Baton
Rouge
area
was
recently
submitted
to
and
approved
by
EPA
and
the
commenter
group
believes
that
this
plan
provides
the
most
reasonable,
effective,
and
expeditious
path
to
attainment
of
the
1­
hour
ozone
standard
for
the
area.
The
commenter
also
notes
that
the
area
is
projected
to
attain
the
8­
hour
standard
shortly.
Therefore,
the
commenter
strongly
recommends
that
the
obligation
to
develop
the
1­
hour
"
severe
SIP"
be
dropped.
The
commenter
also
questions
why
a
separate
newly
designated
marginal
area
under
the
8­
hour
standard
should
be
exempt
from
implementation
plan
requirements,
while
an
area
previously
nonattainment
for
the
1­
hour
standard,
but
now
in
attainment
for
both
standards
be
required
to
continue
with
8
additional
years
of
maintenance
plan
requirements.

Response:
In
addition
to
equity
issues,
we
believe
that
areas
that
have
not
met
their
planning
obligations
under
the
1­
hour
standard
 
if
relieved
of
that
obligation
after
the
1­
hour
standard
is
revoked
 
would
provide
emission
reductions
on
a
more
protracted
time
schedule
than
areas
that
had
met
their
1­
hour
standard
planning
obligations,
thereby
deferring
the
benefits
of
either
the
1­
hour
or
the
8­
hour
standard.
For
example,
a
area
that
is
classified
severe­
15
for
the
1­
hour
standard
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
standard,
it
would
not
be
required
to
obtain
reductions
under
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
planning
obligation
 
allow
sufficient
flexibility
for
a
State
in
these
circumstances
to
choose
the
most
appropriate
means
to
overcome
this
deferral
of
protection.

We
are
aware
that
one
or
more
areas
may
that
may
have
unfulfilled
1­
hour
ROP
and
attainment
demonstration
obligations
and
a
higher
classification
under
the
1­
hour
standard
may
also
have
a
low
8­
hour
classification
or
may
be
covered
under
subpart
1
and
may
in
fact
attain
the
8­
hour
standard
within
3
years
after
designation.
There
may
be
a
concern
that
such
areas
would
continue
to
have
1­
hour
ROP
obligations
stretching
out
into
the
future
even
after
the
area
attains
the
8­
hour
standard.
States
with
such
situations
should
remember
that
under
our
"
Clean
Data
Policy,"
such
areas
could
avoid
additional
emission
reductions
that
would
no
longer
be
needed
for
attainment
of
the
8­
hour
standard
after
the
1­
hour
standard
is
revoked.]
120
Comment:
[
Support
some
type
of
obligation]
One
commenter
recommended
that
EPA
provide
a
flexible
planning
process
that
would
move
directly
to
an
early
8­
hour
SIP
in
lieu
of
1­
hour
SIP
revisions.
Without
the
flexibility
to
focus
efforts
on
the
more
stringent
8­
hour
standard,
states
are
faced
with
the
possibility
of
committing
valuable
resources
to
address
a
standard
that
would
shortly
be
revoked
under
both
options
proposed
by
EPA.
Another
commenter
noted
that
it
is
essential
that
States
be
allowed
to
focus
on
attainment
of
the
8­
hour
standard
exclusively.
To
require
States
to
continue
to
meet
1­
hour
planning
and
SIP
obligations
while
simultaneously
developing
8­
hour
attainment
demonstrations
and
SIPs
would
place
an
unreasonable
and
duplicative
burden
on
States.
EPA
promulgated
the
8­
hour
standard
because
it
believes
the
8­
hour
standard
to
be
a
more
protective
standard;
there
is
no
reason
to
retain
both
standards.
The
mandatory
controls
set
in
place
to
attain
the
1­
hour
standard
will
remain
in
place
except
where
showings
are
made
that
such
measures
are
no
longer
needed
or
will
actually
impede
an
area
from
attaining
the
8­
hour
standard.
States
will
then
have
the
resources
to
focus
on
8­
hour
attainment
demonstrations
where
required
and
on
8­
hour
SIP
requirements.

A
few
commenters
favored
the
approach
(
Alternative
1)
under
which
an
early
plan
that
provided
an
advance
increment
of
emission
reductions
toward
progress
toward
the
8­
hour
standard
would
be
required
in
lieu
of
the
attainment
demonstration
SIP
revision.
One
commenter
suggested
that
to
require
submission
of
a
1­
hour
plan
would
be
illogical
in
light
of
the
fact
that
the
1­
hour
standard
would
be
revoked
and
it
would
waste
resources
and
imperil
a
State's
ability
to
plan
for
and
attain
the
8­
hour
standard.
Another
commenter
indicated
that
an
early
increment
of
progress
SIP
could
be
a
strong
way
of
tying
implementation
of
the
8­
hour
standard
to
the
revised
transportation
conformity
rule
that
will
define
how
transportation
conformity
will
work
in
the
interim,
before
states
submit
attainment
plans.
This
commenter
also
suggested
an
alternative
way
of
defining
an
advance
increment,
namely
a
mobile
source
inventory
decrement
of
3
percent
per
year
from
a
2002
baseline.
The
draft
regulatory
text,
which
specified
a
10
percent
increment
of
reduction
elicited
several
negative
responses.
In
general,
these
commenters
did
not
appear
to
oppose
the
early
increment
of
reduction
approach,
but
believed
the
10
percent
was
arbitrary
and
not
based
on
any
technical
support.
A
number
of
these
commenters
urged
EPA
not
to
impose
the
10
percent
­
or
any
other
­
reduction
in
emissions
of
VOC
and/
or
NOx
across
the
board
because:
(
1)
this
is
a
new
requirement
that
does
not
currently
exist
in
the
CAA
despite
being
included
to
address
an
outstanding
attainment
demonstration
obligation;
(
2)
this
issue
is
not
one
of
the
"
gaps"
identified
by
the
Supreme
Court
and
which
EPA
is
required
to
address
on
remand
(
Whitman
v.
American
Trucking
Associations,
531
U.
S.
457
(
2001);
(
3)
EPA
has
not
provided
a
specific
justification
for
the
10%
emission
reduction
requirement
(
this
requirement
may
not
be
necessary
for
an
area
to
attain
the
standard);
and
(
4)
EPA
has
not
fully
explained
what
areas
might
be
affected
(
i.
e.,
would
it
be
the
areas
with
the
most
significant
problems
­
and,
if
so,
how
would
that
be
determined
­
would
this
apply
to
bump­
up
areas,
or
would
some
other
determining
criteria
be
applied?"
A
few
other
commenters
also
suggested
we
had
not
provided
a
justification
for
the
10
percent
reduction
and
that
it
appears
arbitrary.
Some
commenters
who
opposed
the
10
percent
advance
increment
of
progress
commented
that
the
10
percent
increment
appeared
to
be
punitive.
Some
commenters
who
opposed
the
10
percent
advance
increment
of
progress
commented
that
there
was
no
technical
support
for
the
10
percent
(
or
asked
that
we
identify
the
technical
support).
One
commenter
noted
that
finding
121
additional
measures
to
achieve
a
10%
reduction
in
ozone
precursor
emissions
beyond
existing
requirements
by
2007
would
be
impossible.
One
commenter
stated
that
EPA
should
subject
the
rationale
for
the
10
percent
increment
to
public
comment.

One
commenter
believed
the
10
percent
increment
was
appropriate.

Several
commenters
favored
the
approach
(
the
"
second
alternative"
noted
at
68
FR
32822,
col.
3)
under
which
the
State
would
be
required
to
submit
an
early
SIP
for
the
8­
hour
standard.

Another
commenter
supported
a
flexible
planning
process
that
would
move
efficiently
to
implementation
of
the
8­
hour
standard
while
requiring
areas
to
continue
meeting
their
obligations
under
the
1­
hour
standard.
The
commenter
encouraged
EPA
to
adopt
a
common­
sense
approach
that
would
provide
a
better
use
of
the
State's
limited
resources
and
would
enable
the
State
to
better
protect
public
health
and
air
quality
by
focusing
planning
efforts
on
the
more
protective
8­
hour
standard
sooner.
Without
this
flexibility,
the
commenter
estimates
that
the
State
could
be
in
the
position
of
developing
numerous
revisions
to
its
SIP
to
fully
address
the
outstanding
1­
hour
and
the
upcoming
8­
hour
obligations
in
nonattainment
areas
within
the
next
couple
of
years.
It
is
estimated
that
these
additional
efforts
could
cost
approximately
$
2.5
million
in
scarce
state
resources.
These
plans
would
be
submitted
to
EPA
after
8­
hour
designations
have
occurred
and
as
a
result,
the
commenter
would
be
inappropriately
focusing
efforts
on
finalizing
plans
for
a
standard
that
would
shortly
be
revoked
under
both
of
the
options
EPA
has
proposed.
Areas
would
then
be
forced
to
immediately
refocus
their
efforts
on
8­
hour
SIP
planning.
The
state's
ability
to
address
the
more
stringent
standard
may
be
seriously
impeded
without
this
flexibility.

Response:
EPA
agrees
with
the
commenters
that
the
submission
of
an
early
8­
hour
SIP
that
also
provides
an
early
increment
of
reductions
would
help
address
backsliding
concerns
and
would
be
a
sufficient
replacement
for
the
1­
hour
SIP.
In
addition,
we
have
retained
slightly
modified
versions
of
the
two
other
options
that
we
proposed
 
submit
the
1­
hour
SIP
or
provide
an
early
increment
of
progress
toward
the
8­
hour
standard.
We
believe
these
three
options
will
allow
states
to
make
the
best
decision
as
to
how
to
spend
their
resources
while
also
ensuring
that
momentum
is
maintained
and
that
progress
in
emission
reductions
will
continue
to
be
achieved.

It
appears
that
some
of
the
commenters
addressing
the
10%
obligation
also
assumed
that
this
proposed
requirement
would
apply
to
all
areas,
not
just
those
that
had
failed
to
meet
their
1­
hour
planning
obligations.
The
rule
text
has
been
revised
to
clarify
that
if
the
1­
hour
attainment
obligation
is
met,
the
area
need
not
provide
for
emission
reductions
under
this
provision.
While
an
advance
emission
reduction
increment
is
not
a
CAA
requirement,
submission
of
an
attainment
demonstration
for
certain
nonattainment
areas
is,
and
the
advance
increment
was
put
forth
and
discussed
in
the
June
2,
2003
proposal
as
an
alternative
to
submitting
the
actual
1­
hour
attainment
demonstration
(
68
FR
32822).
As
noted
in
the
final
rule
notice,
we
have
revised
the
alternative
that
would
substitute
for
the
obligation
by
allowing
the
State
several
alternatives,
including
a
smaller
advance
emission
reduction
increment
and
an
early
submission
of
the
8­
hour
SIP
attainment
demonstration.
We
believe
this
approach
addresses
the
concerns
expressed
by
some
commenters
122
that
we
should
not
allow
delays
in
obtaining
emission
reductions
that
would
ordinarily
have
occurred
if
we
did
not
revoke
the
1­
hour
standard.
In
the
June
2,
2003
proposal,
we
set
forth
5
or
10
percent
as
possibilities
for
the
advance
increment
of
emission
reductions.
We
received
much
adverse
comment
on
10
percent
as
an
amount.
The
final
rule
for
the
option
of
using
an
advance
increment
of
emission
reduction
reflects
the
low
end
of
our
proposal,
namely
5
percent.
The
amount
was
intended
to
continue
momentum
toward
making
emission
reductions
in
the
absence
of
completion
and
implementation
of
a
required
attainment
demonstration
under
the
1­
hour
standard.
In
the
way
of
comparison,
the
CAA's
rate
of
progress
provisions
require
certain
nonattainment
areas
under
subpart
2
to
obtain
an
average
of
3
percent
per
year
from
the
1990
baseline
year;
however,
States
may
take
credit
for
measures
 
including
federal
and
regional
measures
and
measures
already
contained
in
the
SIP
 
adopted
and
implemented
after
enactment
of
the
1990
CAAAs.
We
believe
a
total
of
5
percent
off
a
later
(
and
thus
lower
baseline
year,
namely
2002)
without
providing
credit
for
such
measures
is
roughly
comparable
to
effect
continued
progress
and
make
up
for
the
fact
that
the
State
has
not
completed
and
implemented
an
attainment
demonstration.
Since
the
area
would
not
necessarily
have
completed
an
8­
hour
attainment
demonstration
at
the
time
when
the
advance
emission
reduction
increment
would
have
to
be
implemented,
we
believe
we
must
rely
on
a
percentage
emission
reduction
off
a
baseline
to
set
a
minimum
amount
of
reduction.
The
rule
provides
that
these
reductions
may
also
be
credited
toward
the
area's
reasonable
further
progress
plan
and
attainment
demonstration.
The
purpose
of
the
provision
is
not
punitive,
but
rather
to
ensure
that
areas
continue
to
make
progress
in
reducing
emissions
and
not
delay
emission
reductions
that
would
have
occurred
if
the
State
had
met
its
obligation
to
submit
a
timely
attainment
demonstration.
However,
based
on
comments
received,
we
are
reducing
the
advance
increment
to
5
percent,
and
the
final
rule
also
allows
a
State
to
meet
an
unmet
attainment
demonstration
obligation
by
one
of
two
other
means
if
the
State
chooses
not
to
implement
an
advance
increment
of
progress.

The
final
rule
allows
the
State
to
choose
one
of
three
options
to
meet
the
requirement,
one
of
which
would
be
to
submit
its
1­
hour
attainment
demonstration.
We
do
not
expect
a
State
to
prepare
and
submit
another
SIP
while
review
of
a
submitted
SIP
is
still
pending
within
EPA.
Once
EPA
approves
the
attainment
demonstration
that
the
State
had
already
submitted,
the
State
will
have
met
its
obligation.

We
noted
in
the
June
2,
2003
proposal
that
the
general
rationale
for
the
alternative
of
some
percent
increment
of
progress
was
to
make
up
for
the
loss
of
waiving
the
obligation
to
submit
a
1­
hour
attainment
demonstration.
The
proposal
gave
a
range
of
the
suggested
increment,
and
the
draft
regulatory
text
provided
one
example.
We
did
receive
a
number
of
comments
on
the
June
2,
2003
proposal
advocating
that
the
1­
hour
standard
remain
in
effect
to
avoid
any
loss
of
momentum
in
obtaining
emission
reductions.
While
the
rule
will
result
in
revocation
of
the
1­
hour
standard,
the
rule
will
also
avoid
overt
backsliding
from
the
emission
reductions
that
would
have
resulted
from
retaining
the
1­
hour
standard.
123
Comment:
Several
commenters
believed
the
draft
regulatory
text
in
section
51.905(
a)(
1)(
ii)
was
unclear
on
what
will
happen
if
an
area
has
met
its
1­
hour
SIP
obligation
and
has
an
approved
SIP
and
whether
the
region
also
needs
to
meet
a
preset
percentage
reduction
in
emissions
by
2007
or
they
appeared
to
assume
it
did
apply
to
all
areas
regardless
of
whether
the
area
met
its
1­
hour
SIP
obligation.

Response:
The
rule
text
has
been
revised
to
clarify
that
if
the
1­
hour
attainment
demonstration
obligation
is
met,
the
area
need
not
provide
for
emission
reductions
under
this
provision.]

Comment:
One
commenter
believes
that
the
deadline
for
submission
of
the
plan
that
substitutes
for
the
1­
hour
attainment
demonstration
should
be
2
years
rather
than
1
year
after
designation.
Another
commenter
more
generically
objected
that
the
timeframes
for
submission
and
achieving
the
emission
reductions
under
the
advance
increment
of
emission
reductions
approach
were
too
short.

Response:
We
believe
that
it
is
necessary
to
require
the
unmet
1­
hour
planning
obligation
 
or
one
of
the
rule's
substitute
plans
 
to
be
submitted
within
1
year
after
designation
(
and
to
require
emission
reductions
within
a
short
period
thereafter)
in
order
to
meet
the
objective
of
obtaining
emission
reductions
on
a
similar
schedule
that
would
have
been
required
if
the
1­
hour
standard
were
not
revoked.
In
general,
this
one­
year
period
is
after
the
date
by
which
the
area's
1­
hour
attainment
demonstration
would
otherwise
be
due.

Comment:
Several
commenters
also
expressed
concern
that
the
early
increment
of
reduction
must
be
in
addition
to
those
efforts
already
adopted
by
existing
federal,
state
or
local
requirements.
Several
commenters
believed
we
did
not
provide
a
rationale
for
this
requirement
and
believed
it
is
more
stringent
than
the
requirement
to
develop
an
attainment
demonstration.
One
of
these
commenters
believed
that
application
of
this
rule
would
stifle
incentives
to
implement
new
clean
air
strategies
in
the
near
term
since
a
state
or
local
jurisdiction
would
not
likely
adopt
a
measure
in
the
near
term
knowing
that
its
emission
benefits
will
not
be
counted
toward
meeting
the
8­
hour
emission
reduction
goal.
One
of
these
commenters
also
believes
EPA's
proposal
does
not
constitute
equitable
treatment
to
areas
that
have
already
implemented
substantial
emission
reduction
measures
(
e.
g.,
most
areas
in
the
northeast's
ozone
transport
region)
compared
to
areas
that
have
not
yet
taken
similar
steps.
Flexibility
should
be
built
into
the
law
to
allow
all
new
clean
air
efforts
to
count
towards
EPA
mandated
emission
reductions,
if
not
under
the
1­
hour
efforts
than
towards
the
8­
hour
SIP
and
conformity
emission
reduction
requirements.
The
EPA
should
not
penalize
jurisdictions
for
taking
air
quality
beneficial
actions
prior
to
finalization
of
the
8­
hour
rule.

Response:
The
purpose
of
the
provision
is
to
ensure
that
areas
continue
to
make
progress
in
reducing
emissions
and
not
delay
emission
reductions
that
would
have
occurred
if
the
State
had
met
its
obligation
to
submit
a
timely
attainment
demonstration.
The
limit
on
credibility
of
measures
for
an
area
choosing
this
alternative
to
meet
the
1­
hour
attainment
demonstration
obligation
is
designed
to
ensure
additional
progress
is
made
and
to
not
allow
areas
to
simply
rely
on
reductions
that
are
already
required
by
the
significant
national
and
regional
programs
EPA
has
enacted
over
the
past
several
years.
If
a
State
believes
that
this
option
would
be
punitive,
it
may
choose
to
submit
the
124
outstanding
1­
hour
attainment
SIP
or
to
submit
an
early
8­
hour
SIP.
We
recognize
that
each
of
the
three
options
may
not
be
the
best
fit
for
particular
areas.
Thus,
we
determined
to
provide
States
with
the
choice
to
select
the
option
that
best
fits
any
planning
they
have
already
undertaken.

Comment:
Some
commenters
recommended
that
EPA
distinguish
among
areas
with
outstanding
attainment
SIPs
based
on
whether
the
area
has
made
a
good
faith
efforts
to
meet
those
obligations.
They
note
that
an
area
may
have
developed
and
submitted
an
attainment
demonstration
but
it
may
have
been
challenged
and
overturned
by
the
courts.
They
believe
that
such
areas
should
be
able
to
turn
their
attention
to
planning
for
the
8­
hour
standard
rather
than
continue
planning
for
the
1­
hour
standard.

Response:
While
EPA
disagrees
with
the
commenter
and
does
not
distinguish
areas
that
have
made
good
faith
efforts,
the
final
rule
provides
the
State
with
a
choice
of
three
options
to
meet
the
requirement,
one
of
which
would
be
to
submit
an
early
8­
hour
attainment
demonstration.

Comment:
Several
commenters
were
concerned
that
areas
that
would
be
subject
to
the
advance
emission
reduction
increment
were
those
who
had
been
granted
attainment
date
extensions
under
EPA's
attainment
date
extension
policy
due
to
transported
emissions;
that
policy
was
overturned
by
the
courts.
Several
commenters
suggested
that
the
requirement
only
be
required
of
an
area
that
has
not
submitted
a
required
plan
at
the
time
of
revocation
of
the
standard.
One
commenter
asked
for
clarification
on
this
point.

Response:
The
commenter
is
correct
that
many
areas
that
relied
on
EPA's
attainment
date
extension
policy
will
be
subject
to
this
provision
of
the
rule.
However,
EPA
is
providing
that
the
submission
of
a
1­
hour
attainment
demonstration
will
meet
this
obligation.
Therefore,
States
that
have
submitted
the
required
plan
(
i.
e.,
a
1­
hour
attainment
demonstration)
at
the
time
of
revocation
of
the
1­
hour
standard
will
have
made
the
required
submission
under
this
provision
of
the
regulations.

Comment:
One
commenter
objected
to
the
advance
emission
reduction
increment
apply
to
the
entire
8­
hour
nonattainment
area
rather
than
to
just
the
1­
hour
nonattainment
area.

Response:
Since
the
purpose
of
the
requirement
is
to
minimize
delay
in
obtaining
emission
reductions
that
would
have
occurred
had
the
1­
hour
standard
not
been
revoked,
to
make
up
for
an
unmet
obligation
to
submit
an
attainment
demonstration
under
the
1­
hour
standard,
and
also
to
make
progress
toward
the
8­
hour
standard,
we
believe
the
advance
increment
requirement
is
best
applied
to
the
8­
hour
nonattainment
area.
However,
the
rule
also
provides
other
options
for
fulfilling
the
unmet
obligation,
including
submission
of
a
1­
hour
attainment
demonstration
;
that
requirement
could
be
met
by
addressing
only
the
1­
hour
nonattainment
area.

Response:
We
believe
the
commenter
may
not
have
seen
the
connection
between
this
provision
in
the
draft
regulatory
text
and
the
discussion
in
the
June
2,
2003
proposal
(
68
FR
32822)
concerning
unmet
obligations
to
submit
an
attainment
demonstration
under
the
1­
hour
standard;
our
two
16
Docket
documents
OAR­
2003­
0079­
0189
and
OAR­
2003­
0079­
0191.

17Memorandum
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.

125
crosswalks
that
we
prepared
and
made
available
in
the
docket16
and
on
our
implementation
web
site
were
designed
to
help
readers
link
the
provisions
in
the
draft
regulatory
text
with
the
associated
portions
of
the
June
2,
2003
proposed
rule.
The
purpose
of
the
provision
is
to
ensure
that
areas
continue
to
make
progress
in
reducing
emissions
and
not
delay
emission
reductions
that
would
have
occurred
if
the
State
had
met
its
obligation
to
submit
a
timely
attainment
demonstration.

Comment:
One
commenter
noted
that
EPA
provided
no
information
to
the
public
on
how
many
 
and
which
 
States
and
areas
might
be
affected
by
this
provision.

Response:
The
following
areas
are
likely
to
be
affected
by
the
regulatory
provision
concerning
areas
with
an
outstanding
obligation
to
submit
an
attainment
demonstration
under
the
1­
hour
standard.

°
The
following
are
the
areas
that
were
recently
bumped
up
to
severe
for
the
1­
hour
standard:

°
San
Joaquin,
CA
°
Washington,
D.
C,
VA,
MD.
°
Baton
Rouge,
LA
°
Atlanta,
GA
°
Areas
that
may
be
bumped
up
to
severe
for
the
1­
hour
standard:

°
Beaumont,
TX
°
Dallas,
TX
Comment:
One
commenter
is
deeply
concerned
about
the
uncertainties
associated
with
the
requirements
under
an
area's
reclassification
to
"
severe"
for
the
1­
hour
ozone
standard
and
the
concurrent
implementation
of
the
new
8­
hour
standard.
Of
special
concern
is
the
possibility
for
nonsensical
and
unproductive
regulatory
requirements
as
well
as
wasted
effort
and
expense
associated
with
the
overlap
of
the
two
compliance
programs.

Response:
An
area
that
is
reclassified
to
severe
for
the
1­
hour
standard
but
that
actually
attains
the
8­
hour
standard
may,
under
the
terms
of
EPA's
"
Clean
Data
Policy,
17"
be
relieved
of
planning
requirements
as
long
as
the
area
remains
clean.
Thus,
after
achieving
the
NAAQS,
the
area
would
126
not
be
required
to
continue
to
implement
rate
of
progress
requirements
for
the
8­
hour
standard
or
the
1­
hour
standard.
It
would,
however,
be
obligated
to
achieve
the
control
measure
requirements
until
the
time
specified
in
the
rule
when
measures
may
be
made
contingency
measures.

Comment:
One
commenter
suggested
that
Section
51.905(
a)(
1)(
ii)
of
the
draft
8­
hour
regulatory
text
be
changed
to
require
progress
plans
for
states
(
or
regions)
that
have
not
submitted
a
required
1­
hour
attainment
demonstration
SIP
and
do
not
have
air
quality
consistent
with
the
1­
hour
ozone
standard.

Response:
We
believe
the
final
rule
is
consistent
with
the
commenter's
suggestion,
since
the
rule
allows
as
an
option
the
submission
of
an
advance
increment
of
progress
(
or
an
early
8­
hour
SIP)
in
lieu
of
a
required
1­
hour
attainment
demonstration.

Comment:
One
commenter
asked
for
clarification
of
the
consequences
of
not
meeting
the
advance
increment
of
progress.

Response:
As
noted
in
the
final
rule
notice,
we
have
revised
the
alternative
that
would
substitute
for
the
obligation
by
allowing
the
State
several
alternatives,
including
a
smaller
advance
emission
reduction
increment
and
an
early
submission
of
the
8­
hour
SIP
attainment
demonstration.
If
the
State
fails
to
submit
a
SIP
consistent
with
one
of
these
alternatives
or
if
EPA
finds
a
submission
incomplete
or
unapprovable,
the
area
would
face
the
possibility
of
the
offset
and
highway
funding
sanctions
under
section
179(
a)
and
(
b)
of
the
Act.

Comment:
One
commenter
asked
whether
the
10
percent
advance
emission
reduction
increment
was
in
addition
to
the
ROP
requirement,
what
was
the
justification
and
whether
it
was
more
protective.

Response:
The
advance
increment
of
progress
was
intended
to
take
the
place
of
an
unmet
obligation
to
develop
and
submit
an
attainment
demonstration
under
the
1­
hour
standard.
An
unmet
ROP
obligation
is
a
related
but
separate
obligation
that
must
still
be
met.
The
final
rule
for
unmet
attainment
demonstrations
allows
the
State
to
choose
one
of
three
options
for
addressing
the
obligation.
Note
that
the
final
rule
also
obligates
States
to
address
separately
ROP
that
does
not
overlap
with
ROP
obligations
for
the
8­
hour
NAAQS;
where
the
ROP
obligations
overlap,
the
area
need
not
separately
address
ROP
for
the
1­
hour
standard.]

Comment:
One
comment
on
Section
51.905a.(
1)(
ii)
(
which
states
that
"
The
emission
reductions
from
achieving
the
ten
percent
reduction
must
be
in
addition
to
those
already
adopted
and
required
by
existing
federal,
state
or
local
requirements")
suggested
that
EPA
needs
to
define
"
existing
requirements".

Response:
The
final
regulatory
text
addresses
the
creditability
of
emission
control
measures.
127
Comment:
One
commenter
believes
the
draft
regulatory
text
was
not
clear
on
when
the
1­
hour
SIPs
were
supposed
to
have
been
submitted
to
avoid
the
requirement
for
the
advance
increment
of
progress.

Response:
The
final
rule
(
section
51.905(
a)(
1)(
ii))
provides
that
submission
of
an
outstanding
1­
hour
attainment
demonstration
SIP
one
year
after
the
effective
date
of
designation
will
fulfill
this
obligation.
This
is
one
of
the
three
alternatives
the
rule
provides
to
a
State
to
meet
an
unmet
attainment
demonstration
obligation.

Comment:
Several
commenters
recommended
that
the
baseline
year
from
which
the
advance
emission
reduction
increment
is
calculated
be
clarified
in
the
rule.
Another
wanted
clarification
of
the
baseline
year
and
the
period
of
time
by
which
reductions
under
the
increment
requirement
must
be
implemented.

Response:
The
regulatory
text
has
been
revised
to
clarify
the
baseline
year
for
the
advance
emission
reduction
increment
is
2002
and
the
time
by
which
the
reductions
must
occur,
i.
e.,
by
2
year
after
the
deadline
for
submission
of
the
rule
(
3
years
after
the
effective
date
of
designations
under
the
8­
hour
standard).

Comment:
One
commenter
believes
the
draft
10
percent
advance
increment
of
progress
approach
is
unclearly
defined,
unmotivated,
and
appears
arbitrary.
Also,
if
the
10
percent
emission
reduction
is
intended
to
be
calculated
off
of
the
new
8­
hour
base
year
(
2002),
then
this
reduction
should
already
be
in
place
prior
to
2007
due
to
1­
hour
attainment
efforts
already
underway,
and
the
reductions
are
not
needed.
If
the
reductions
are
proposed
off
of
a
different
base,
as
stated
above,
the
motivation
and
definition
are
not
established
by
the
draft
rule.

Response:
The
baseline
for
the
advance
increment
of
progress
option
in
the
final
rule
is
2002;
as
noted
elsewhere
in
this
document
and
in
the
final
rule
notice,
we
are
providing
three
options
for
the
State
to
meet
an
unmet
1­
hour
attainment
demonstration
planning
obligation,
one
of
which
is
an
advance
increment
of
only
5
percent
(
not
10
percent
as
in
the
draft
regulatory
text).
The
purpose
of
the
provision
is
to
ensure
that
areas
continue
to
make
progress
in
reducing
emissions
and
not
delay
emission
reductions
that
would
have
occurred
if
the
State
had
met
its
obligation
to
submit
a
timely
attainment
demonstration.

OPPOSING
BECAUSE
RULE
IS
NOT
STRINGENT
ENOUGH
Comment:
One
commenter
noted
in
a
footnote:
In
an
apparent
attempt
to
substitute
for
the
attainment
demonstration,
the
proposal
provides
for
a
10%
reduction
in
VOC
and/
or
NOx
to
be
achieved
by
2007.
Sect.
51.905(
a)(
1)(
ii).
For
reasons
stated
in
several
of
the
commenter's
letters,
EPA
lacks
authority
to
abrogate
the
statutory
attainment
demonstration
requirement
in
favor
of
an
agency­
devised
alternative
approach.
Assuming
argumendo
that
EPA
does
have
authority
to
establish
a
surrogate
for
the
attainment
demonstration,
however,
that
surrogate
(
in
this
case,
10
%
emission
reduction
prescribed
by
section
51.905)
would
need
to
be
in
addition
to
the
RFP
128
percentage
reductions
prescribed
by
section
51.910.
Any
other
approach
would
contravene
the
Act,
which
requires
nonattainment
area
SIPs
to
provide
both
for
attainment
and
RFP.

Response:
We
disagree
with
the
commenter
that
we
lack
authority
to
address
issues
related
to
the
transition
from
the
1­
hour
to
the
8­
hour
ozone
NAAQS.
We
believe
the
approach
in
the
final
rule
that
allows
a
State
several
alternatives
to
submission
of
a
1­
hour
ozone
attainment
demonstration
after
the
1­
hour
standard
is
revoked
would
continue
the
effort
to
ensure
emission
reductions
in
a
timely
fashion.
Furthermore,
the
final
rule
provides
that
the
obligation
to
address
the
1­
hour
ROP
requirements
is
a
separate
planning
obligation
from
the
1­
hour
attainment
demonstration
obligation.

Comment:
One
commenter
argued
against
the
provision
proposed
in
section
51.905(
a)(
1)(
iii)
that
1­
hour
ROP
plans
would
not
be
required
to
cover
periods
for
which
an
area
is
subject
to
ROP
for
the
8­
hour
standard
under
section
51.910.
They
believe
this
provision
would
result
in
backsliding
since
States
almost
certainly
would
delay
the
emission
reductions
and
ozone
improvement
that
would
otherwise
be
required
by
full
compliance
with
the
1­
hour
SIP
planning
mandates.
The
commenter
believes
that
requirements
which
merely
provide
for
progress
years
later
toward
the
8­
hour
standard
are
no
substitute
for
plans
to
reduce
emissions
today,
and
to
assure
attainment
of
the
1­
hour
standard
in
the
near
term.

Response:
The
commenter
misunderstood
EPA's
proposal.
We
proposed
that
to
the
extent
8­
hour
and
1­
hour
ROP/
RFP
obligations
overlap,
the
State
need
not
address
1­
hour
ROP
separately.
As
explained
in
more
detail
in
the
preamble
to
the
proposed
rule,
the
State
will
need
to
ensure
that
the
area
achieves
the
same
level
of
reductions
required
for
1­
hour
ROP
in
the
same
period
and
thus
will
not
be
able
to
delay
emission
reductions
Comment:
One
commenter
questioned
why
areas
 
that
either
did
not
meet
attainment
obligations
under
the
1­
hour
ozone
NAAQS
or
that
violate
the
1­
hour
ozone
NAAQS
and
are
attainment/
unclassifiable
for
the
8­
hr
ozone
NAAQS,
but
subsequently
violate
the
8­
hour
NAAQS
 
would
be
subject
to
an
RFP
requirement
of
10%
reduction
in
emissions
instead
of
being
subject
to
the
emission
reduction
requirements
under
subpart
2,
and
would
like
EPA
to
explain
the
rationale
behind
a
10%
reduction
requirement.

Response:
The
provision
referred
to
by
the
commenter
applies
to
areas
that
are
designated
nonattainment
for
the
1­
hour
NAAQS
with
an
outstanding
obligation
to
submit
an
attainment
demonstration
and
that
are
designated
nonattainment
for
the
8­
hour
NAAQS.
In
the
June
2,
2003
proposal
we
suggested
an
alternative
to
requiring
those
areas
to
submit
the
outstanding
attainment
demonstration
 
to
achieve
an
early
increment
of
progress
toward
attainment
of
the
8­
hour
NAAQS
and
we
suggested
a
5
percent
or
10
percent
reduction.
For
the
final
rule
notice,
we
have
provided
3
alternatives
for
state
with
outstanding
attainment
demonstration
obligations,
one
of
which
is
an
early
increment
of
progress.
For
purposes
of
the
final
rule,
we
adopted
5
percent.
These
requirements
address
the
obligation
of
the
area
to
meet
outstanding
planning
obligations.
Contrary
to
the
commenters
statements,
this
obligation
is
not
in
place
of
emission
reduction
requirements
that
would
apply
under
subpart
2
based
on
the
area's
designation
for
the
8­
hour
NAAQS.
The
area
129
would
be
subject
to
all
subpart
2
requirements
that
apply
by
virtue
of
its
classification
for
the
8­
hour
NAAQS,
in
addition
to
being
obligated
to
address
its
outstanding
obligation
for
the
1­
hour
NAAQS.
If
the
area
chooses
to
achieve
an
early
increment
of
progress
toward
the
8­
hour
NAAQS,
it
may
also
count
those
reductions
toward
meeting
RFP
and
attainment
for
the
8­
hour
NAAQS.

Comment:
Several
commenters
noted
that
EPA
had
not
fully
explained
what
areas
might
be
affected
by
the
provision
of
draft
regulatory
text
Sec.
51.905(
a)(
1)(
ii).
One
asked
whether
it
would
be
the
areas
with
the
most
significant
problems
­
and,
if
so,
how
would
that
be
determined
­
would
this
apply
to
bump­
up
areas,
or
would
some
other
determining
criteria
be
applied.
Another
commenter
claimed
it
is
not
clear
from
the
text
that
all
former
1­
hour
ozone
areas
are
not
required
to
reduce
emissions
by
10
percent.
Although
EPA
likely
intended
for
the
second
sentence
to
modify
the
first,
this
intention
should
be
clarified.
The
commenter
provided
suggested
revision
of
the
wording.

Response:
We
recognize
that
the
draft
regulatory
text
may
have
been
misinterpreted
to
apply
to
more
areas
than
we
intended.
The
final
regulatory
text
was
modified
to
clarify
that
the
planning
obligations
under
the
1­
hour
standard
and
the
associated
emission
reductions
needed
from
those
obligations
(
ROP
and/
or
attainment
demonstrations)
only
apply
to
areas
that
had
not
yet
met
those
obligations,
not
to
every
1­
hour
nonattainment
area.

Comment:
One
commenter,
in
addressing
sec.
51.905(
c),
recommended
that
the
10%
emissions
reduction
provision
should
be
eliminated
and
recommended
that
whether
or
not
additional
emissions
reductions
apply
throughout
an
area
should
be
a
decision
left
to
the
State
on
an
areaspecific
basis,
not
arbitrarily
mandated
through
this
rulemaking.
One
commenter
did
not
support
extending
the
10
percent
SIP
to
the
entire
8­
hour
NAA.

Response:
EPA
disagrees
with
the
first
commenter's
fundamental
premise
 
that
States
are
not
obligated
to
address
outstanding
planning
requirements
for
the
1­
hour
standard,
but
merely
to
do
what
is
necessary
to
attain
the
8­
hour
standard.
As
many
commenters
have
noted,
the
8­
hour
attainment
dates
are
later
than
the
attainment
dates
for
the
1­
hour
standard
and
without
retaining
the
obligation
to
meet
these
outstanding
planning
obligations,
States
could
delay
emission
reduction
beyond
the
time
they
would
have
been
required
for
the
1­
hour
standard.
As
explained
above,
EPA
agrees
with
the
commenters
that
10%
is
not
the
appropriate
progress
increment
to
mandate.
Instead,
we
allow
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)
advance
increment
of
emission
reductions.
The
reduction
is
applied
throughout
the
entire
8­
hour
nonattainment
area
because
the
obligation
is
being
used
to
address
reductions
for
purposes
of
the
8­
hour
standard,
not
the1­
hour
standard.
The
State
has
the
option
of
meeting
the
obligation
by
submitting
an
attainment
demonstration
for
the
1­
hour
standard
from
local
reductions
entirely
within
the
1­
hour
nonattainment
area
and
accounting
for
reductions
from
outside
the
nonattainment
area.
If
the
State
chooses
to
meet
the
obligation
through
either
alternative
option
(
an
early
8­
hour
SIP
or
the
advance
increment
of
progress
toward
the
8­
hour
standard)
those
options
must
address
130
the
8­
hour
standard
and
therefore
the
reductions
from
the
advance
increment
of
progress
must
be
obtained
based
on
the
8­
hour
nonattainment
area.

Comment:
One
commenter
supports
the
proposal
to
limit
the
obligation
to
implement
"
applicable
requirements"
to
those
portions
of
the
8­
hour
NAA
that
were
also
designated
NAA
for
the
1­
hour.

Response:
The
final
rule
(
section
51.905(
c))
requires
that
the
applicable
requirements
that
are
control
measures
would
be
retained
in
those
portions
of
the
8­
hour
nonattainment
area
that
were
also
nonattainment
for
the
1­
hour
NAAQS.
However,
if
a
State
chooses
to
meet
an
unmet
planning
obligation
under
section
51.905(
a)(
1)(
ii)(
B)
or
(
C)
(
an
advance
increment
of
progress
or
an
early
8­
hour
attainment
demonstration),
section
51.905(
c)
would
require
that
the
requirement
apply
throughout
the
8­
hour
nonattainment
area.

Other
Obligations.
(
Section
VI.
C.
3.
a.
v.
of
proposed
rule;
see
68
FR
32822;
Section
51.905(
d)
of
draft
regulatory
text.
There
is
no
parallel
provision
in
the
final
rule.
We
do
not
include
language
in
the
final
regulatory
text
providing
that
States
may
modify
"
discretionary"
controls
consistent
with
sections
110(
l)
and
193
of
the
Act
because
we
believe
such
language
is
not
necessary.)

Comment:
One
commenter
supported
the
proposal.
Several
commenters
believed
that
States
should
not
be
held
to
commitments
to
submit
the
mid­
course
review
required
of
some
States
under
their
1­
hour
SIP.
However,
at
least
one
commenter
supported
continuing
the
requirement
to
submit
a
mid­
course
review
for
the
1­
hour
standard.

Response:
As
noted
in
the
June
2,
2003
proposal,
these
SIP­
approved
commitments
are
enforceable,
and
EPA
and
the
States
can
use
these
mid­
course
reviews
to
ensure
that
progress
is
being
made
consistent
with
the
analysis
in
the
area's
1­
hour
attainment
demonstration.
We
feel
that
the
mid­
course
review
is
an
integral
part
of
the
process
needed
to
understand
how
the
current
control
program
is
affecting
the
area.
Therefore,
the
mid­
course
review
is
needed
to
provide
a
solid
foundation
for
the
development
of
the
8­
hour
ozone
attainment
demonstration.
The
State
remains
obligated
to
honor
these
commitments
unless
modified
under
the
provisions
of
section
110(
l).

Comment:
One
commenter
supports
the
provision
of
section
51.905(
d).
Several
commenters
noted
problems
concerning
section
51.905(
d),
which
provides
that
a
State
may
revise
or
remove
requirements
in
the
approved
SIP
consistent
with
sections
110(
l)
and
193
of
the
Clean
Air
Act
if
such
requirement
is
not
addressed
for
that
area
under
paragraph
(
a)
of
this
section.
The
commenters
note
that
it
is
not
clear
from
this
language
whether
a
State
could
revise
a
control
option
that
arises
under
paragraph
(
a).
For
example,
the
requirement
for
former
1­
hour
nonattainment
areas
to
reduce
emissions
by
10%
if
they
failed
to
develop
a
fully­
approved
attainment
demonstration
falls
under
paragraph
(
a).
What
if
a
State
wanted
to
change
a
control
measure
selected
to
achieve
the
10%
reduction?
Based
on
EPA's
proposed
rule
text
in
Section
51.905(
d),
the
State
could
not
revise
or
remove
the
control
because
the
control
relates
to
a
requirement
addressed
under
paragraph
(
a).
It
is
doubtful
that
this
was
EPA's
intention.
The
commenters
131
therefore
encourage
EPA
to
revise
Section
51.905(
d)
to
provide
that
States
may
revise
or
remove
requirements
consistent
with
section
110(
l)
and
193
of
the
Clean
Air
Act.

Response:
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
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.

Comment:
A
few
commenters
expressly
supported
the
proposal.
Several
commenters
believed
that
States
should
not
be
held
to
commitments
to
submit
the
mid­
course
review
required
of
some
States
under
their
1­
hour
SIPs.

Response:
For
areas
that
relied
on
weight
of
evidence
to
support
their
1­
hour
attainmetn
demonstrations,
EPA
required
the
areas
to
submit
an
enforceable
commitment
to
perform
a
midcourse
review
to
assess
progress
toward
attaining
the
standard.
EPA
continues
to
believe
these
commitments
are
important,
in
particular
since
a
number
of
these
areas
did
not
fully
model
all
of
the
control
measures
on
which
they
relied.
As
stated
in
the
preamble
to
the
June
2003
proposal,
rather
than
using
these
reviews
to
assess
progress
toward
attaining
the
1­
hour
NAAQS,
EPA
and
the
States
can
use
these
mid­
course
reviews
to
ensure
that
progress
is
being
made
consistent
with
the
analysis
in
the
area's
1­
hour
attainment
demonstration
(
i.
e.,
are
the
measures
being
implemented
and
are
reductions
resulting
in
air
quality
improvements)
and
to
help
evaluate
what
control
measures
may
best
help
an
area
make
progress
toward
attainment
of
the
8­
hour
standard.

Comment:
One
commenter
suggested
that
draft
section
51.905(
d)
purports
to
allow
relaxation
of
SIP
requirements
"
consistent
with
sections
110(
l)
and
193
of
the
Clean
Air
Act
if
such
requirement
is
not
addressed
for
that
area
under
paragraph
(
a)
of
this
section."
The
commenter
noted
that
EPA
cannot
lawfully
authorize
relaxation
of
SIP
commitments
in
this
manner
 
either
for
1­
hour
or
8­
hour
nonattainment
areas.
The
agency
has
no
authority
to
allow
SIP
revisions
that
result
in
failure
of
the
SIP
to
comply
with
express
requirements
of
the
Act,
whether
or
not
the
revision
also
interferes
with
requirements
relating
to
attainment
and
RFP.

Response:
We
believe
that
 
with
the
exception
of
subpart
2
mandatory
obligations
 
a
State
may
revise
provisions
of
its
SIP
as
long
as
it
meets
the
criteria
specified
in
sections
110(
l)
and
193.
One
of
the
provisions
of
section
110(
l)
is
that
the
revision
must
not
interfere
with
any
"
applicable
requirement"
of
the
Act.
In
the
proposed
and
final
rule,
we
have
provided
some
definition
to
the
term
"
applicable
requirement"
to
aid
in
the
interpretation
of
the
Act's
requirements.

Response:
We
do
not
include
language
in
the
final
regulatory
text
providing
that
States
may
modify
"
discretionary"
controls
consistent
with
sections
110(
l)
and
193
of
the
Act
because
we
believe
such
language
is
not
necessary.
These
provisions
of
the
Act
already
apply
for
purposes
of
SIP
revisions.
While
we
generally
don't
believe
that
States
will
be
"
relaxing"
SIPs,
we
note
that
section
110(
l)
does
not
prohibit
SIP
relaxations
so
long
as
the
state
demonstrates
that
the
relaxation
will
not
interfere
with
attainment,
progress
or
any
other
applicable
requirement
of
the
Act.
132
Comment:
One
commenter
recommends
that
the
draft
regulatory
text
be
rephrased
to
better
reflect
the
actual
situation
namely,
there
is
both
flexibility
available
for
revising
or
removing
control
obligations
and
statutory
constraints
on
that
flexibility.
The
rationale
given
for
this
recommendation
is:
(
1)
existing
control
measures
have
brought
areas
into
attainment
and
maintenance
of
the
1­
hour
standard;
(
2)
these
same
control
measures
are
allowing
maintenance
areas
for
the
1­
hour
standard
to
meet
the
8­
hour
standard
and
be
designated
attainment/
unclassifiable
for
the
8­
hour
standard;
(
3)
without
the
continuation
of
existing
control
measures,
it
is
not
certain
that
areas
will
be
able
to
continue
to
maintain
the
1­
hour
standard
and
the
8­
hour
standard;
(
4)
EPA
has
determined
that
the
8­
hour
standard
is
more
stringent
than
the
1­
hour
standard;
and
(
5)
in
the
face
of
such
uncertainty,
removal
of
control
measures
should
be
undertaken
only
with
caution
and
adequate
technical
demonstration.
The
commenter
recommended
that
the
regulatory
text
be
revised
to
provide:

A
State
may
revise
and
remove
requirements
in
the
approved
SIP
(
including
commitments
to
take
future
action)
if
and
only
if
the
following
two
conditions
area
met:
(
1)
such
revision
or
removal
meets
the
anti­
backsliding
requirements
of
sections
1l0(
1)
and
193
of
the
Clean
Air
Act
and
(
2)
the
requirement
is
not
addressed
under
paragraph
(
a)
of
this
section,

Response:
We
agree
with
many
of
the
points
made
by
the
commenter
such
as
the
progress
that
has
resulted
from
existing
controls
and
that
the
continued
implementation
of
those
controls
will
help
many
areas
maintain
the
8­
hour
standard.
We
disagree
with
the
commenter
that
maintenance
of
the
1­
hour
standard
is
a
goal
that
we
should
consider.
For
reasons
other
than
those
raised
by
this
commenter,
we
have
deleted
this
provision
from
the
final
regulatory
text
because
it
is
unnecessary.
We
believe
that
sections
110(
l)
and
193
apply
to
SIP
revisions
regardless
of
whether
there
is
a
regulatory
reference
to
those
provisions.
A
separate
commenter
(
see
above)
pointed
out
that
the
reference
to
the
requirements
under
paragraph
(
a)
was
confusing
since
those
obligations
may
also
be
modified
in
certain
circumstances
(
consistent
with
sections
110(
l)
and
193)
and
the
regulatory
text
implies
that
they
may
not.

What
obligations
continue
to
apply
for
areas
that
are
designated
attainment
under
the
8­
hour
standard
and
that
were
designated
nonattainment
for
the
1­
hour
standard
on
or
after
November
15,
1990?
(
Section
VI.
C.
3.
b.
of
proposal
see
68
FR
32822;
section
51.905(
a)(
3)
of
both
draft
regulatory
text;
sections
51.905(
a)(
3)
and
(
4)
of
the
final
rule.)

In
the
preamble
to
the
proposed
rule
and
the
draft
regulatory
text,
we
addressed
1­
hour
nonattainment
areas
and
1­
hour
maintenance
areas
in
the
same
section.
In
the
final
rule
and
the
preamble
to
the
final
rule,
we
address
these
types
of
areas
in
separate
provisions.

Obligations
Related
to
NSR.
(
Section
VI.
C.
3.
b(
i)
of
proposal;
see
68
FR
32823;
no
regulatory
text
in
draft
or
final
rule.)

Planning
Obligations
other
than
maintenance
plans
(
Section
VI.
C.
3.
b(
ii)
of
proposed
rule;
see
68
FR
32823;
Section
51.905(
a)(
3)(
ii)
of
the
draft
regulatory
text
and
the
final
rule.)
18Memorandum
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.

133
Comment:
One
commenter
believed
that
the
1­
hour
standard
should
remain
in
effect,
and
therefore
the
planning
obligations
for
the
1­
hour
standard
would
remain
in
effect
until
the
area
attained
that
standard.

Response:
As
stated
in
more
depth
in
several
of
our
responses
related
to
revocation
of
the
1­
hour
standard,
we
do
not
believe
that
the
1­
hour
standard
must
or
should
continue
to
apply
to
areas
indefinitely
once
areas
are
designated
for
the
8­
hour
NAAQS
and
begin
implementing
that
NAAQS.
Because
areas
designated
attainment
for
the
8­
hour
standard
are
meeting
the
health­
based
ozone
standard,
EPA
does
not
believe
that
such
areas
should
be
required
to
address
outstanding
planning
obligations
for
the
1­
hour
standard.

COMMENTS
OPPOSING
DRAFT
REGULATORY
TEXT
PROVISIONS
OPPOSITION
DUE
TO
BEING
TOO
STRINGENT
OR
UNNECESSARY
Comment:
One
commenter
objected
to
the
provisions
of
sec.
51.905(
a)(
3)(
ii)(
B)
because
they
believe
for
any
nonattainment
area
requirements
to
apply,
the
areas
should
first
be
designated
nonattainment.
One
commenter
objected
to
the
provisions
of
sec.
51.905(
a)(
3)(
ii)(
B)
because
they
believe
a
10%
emissions
reduction
in
addition
to
numerous
specified
requirements
was
not
authorized
by
Congress
nor
required
by
the
Supreme
Court,
and
may
not
be
necessary
to
attain
the
standard.

Response:
Under
the
terms
of
EPA's
"
Clean
Data
Policy,
18"
an
area
that
has
achieved
the
NAAQS
may
be
relieved
of
planning
requirements
as
long
as
the
area
remains
clean.
If
the
area
once
again
violates
the
NAAQS,
even
if
it
is
not
designated,
the
planning
requirements
must
then
be
met.
For
consistency
with
that
policy,
the
final
rule
offers
the
State
in
such
a
situation
a
choice
between
an
advance
increment
of
progress
(
5
percent)
or
submission
of
an
early
8­
hour
SIP.

Comment:
One
commenter
asked
why
in
section
51.905(
a)(
3)(
B)
how
can
an
area
be
designated
attainment
or
unclassifiable
for
the
8­
hour
NAAQS
yet
violate
the
8­
hour
NAAQS
at
the
same
time.
The
commenter
felt
this
is
contradictory.

Response:
An
area
may
be
initially
designated
attainment
for
the
8­
hour
standard
and
then
violate
after
designation.
The
language
in
section
51.905(
a)(
3)(
B)
has
been
revised
to
make
the
meaning
clearer.

Comment:
One
commenter
regarding
section
51.905(
a)(
3)(
ii)(
B)
believes
achieving
10%
reduction
in
emissions
above
and
beyond
current
requirements
would
be
impossible
and
134
recommends
that
the
provision
require
a
progress
plan
if
a
state
(
or
region)
violates
the
8­
hour
standard
(
after
being
designated
as
an
attainment
area)
and
has
not
submitted
a
required
maintenance
plan
by
the
applicable
deadline.
The
commenter
also
recommends
that
EPA
reconsider
the
percentage
reduction
required
in
such
progress
plans
and
provided
information
about
the
breakdown
of
emissions
controls
being
planned.
The
also
suggest
that
the
reasonably
available
control
measure
(
RACM)
assessment
approach
is
more
appropriate
and
potentially
more
effective
than
the
flat
demand
for
a
percentage
reduction.
[
OAR­
2003­
0079­
0475
Bay
Area
Air
Management
District.]

Response:
As
noted
in
the
preamble
to
the
final
rule,
we
have
modified
the
provision
to
allow
the
State
with
an
area
in
these
circumstances
a
choice
of
submitting
either
an
advance
increment
of
emission
reductions
of
5
percent
or
an
early
8­
hour
implementation
plan.

Obligations
Related
to
Maintenance
Plans
(
Section
VI.
C.
3.
b(
iii)
of
proposed
rule;
see
68
FR
32823;
Section
51.905(
a)(
3)(
iii)
of
draft
regulatory
text;
Sections
51.905(
a)(
3)(
iii)
and
(
a)(
4)(
ii)
of
final
rule.)

Comment:
Some
of
the
commenters
who
objected
to
the
requirement
for
a
section
110(
a)(
1)
maintenance
plan
believed
the
1­
hour
standard
should
remain
in
effect
and
with
it
any
existing
1­
hour
SIP
requirements,
including
the
requirement
to
attain
the
1­
hour
standard
and
to
develop
a
section
175A
maintenance
plan
(
which
would
require
conformity
determinations).
One
commenter
stated
that
EPA
does
not
have
the
authority
to
waive
the
requirement
for
a
section
175A
maintenance
plan.
Once
an
area
has
been
designated
nonattainment
for
the
1­
hour
standard,
it
cannot
be
redesignated
to
attainment
unless
and
until
it
has
submitted,
and
received
EPA
approval
of,
a
maintenance
plan
meeting
the
requirements
of
section
175A.

Response:
EPA
disagrees
with
the
fundamental
premise
made
by
the
commenters
 
that
EPA
does
not
have
the
authority
to
revoke
the
1­
hour
standard
and
the
it
must
remain
in
place
as
a
standard
that
areas
are
required
to
attain
and
maintain.
EPA
addresses
this
issue
more
fully
in
the
section
concerning
when
the
1­
hour
standard
will
be
revoked.
Because
EPA
has
previously
determined
that
the
1­
hour
standard
is
not
necessary
to
protect
public
health,
EPA
is
obligated
to
determine
how
best
to
effectuate
the
transition
from
implementation
of
the
1­
hour
standard
to
implementation
of
the
8­
hour
standard.
Because
the
1­
hour
standard
is
not
necessary
to
protect
public
health,
EPA
does
not
believe
it
is
necessary
to
retain
that
standard
indefinitely
or
to
require
areas
to
meet
that
standard
and
to
demonstrate
that
they
will
maintain
that
standard.

Comment:
Two
commenters
believed
that
eliminating
the
1­
hour
triggers
in
maintenance
plans
would
allow
backsliding.
EPA
has
no
authority
to
approve
the
removal
from
maintenance
SIPS
of
requirements
to
implement
contingency
measures
upon
a
violation
of
the
1­
hour
standard.
Section
175A
of
the
Act
explicitly
requires
that
maintenance
plans
must
contain
contingency
provisions
"
to
assure
that
the
State
will
promptly
correct
any
violation
of
the
standard"
that
occurs
after
135
redesignation.
The
"
standard"
being
referred
to
is
the
one
the
maintenance
plan
was
specifically
designed
to
protect
 
namely
the
1­
hour
standard.

Response:
Since
the
1­
hour
standard
will
no
longer
apply,
EPA
further
believes
it
is
appropriate
to
allow
areas
to
revise
their
SIPs
to
replace
the
1­
hour
violation
trigger
mechanism
in
their
contingency
plans.
These
areas
are
still
required
to
have
a
maintenance
plan
for
the
8­
hour
standard
under
section
110(
a)(
1),
including
contingency
measures.
However,
they
may
modify
the
mechanism
for
triggering
contingency
measures
so
that
it
reflects
the
health­
based
8­
hour
standard.

Comment:
Several
commenters
objected
to
eliminating
the
maintenance
requirement
under
section
175A
because
it
would
be
a
weakening
of
the
protection
under
the
Act.
The
110(
a)(
1)
plan
only
is
required
to
project
for
one
10­
year
period
whereas
the
section
175A
plan
was
required
to
project
to
two
10­
year
periods.

Response:
After
the
1­
hour
standard
is
revoked,
we
believe
that
an
area
 
that
was
previously
designated
nonattainment
for
the
1­
hour
standard
or
was
designated
attainment
with
a
maintenance
plan
 
and
that
initially
is
designated
attainment
for
the
ozone
standard,
should
be
required
to
demonstrate
maintenance
only
for
the
8­
hour
standard
at
that
point.
The
area
was
not
"
redesignated"
attainment
for
the
8­
hour
standard,
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
8­
hour
standard.
EPA
retains
the
authority
to
require
a
State
that
fails
to
maintain
the
standard
to
revise
its
SIP
to
provide
additional
maintenance
measures
or
to
redesignate
the
area
to
nonattainment.

Comment:
One
commenter
recommended
that
EPA
require
the
retention
of
the
maintenance
inventories
and
minimum
control
requirements
in
areas
previously
designated
as
nonattainment
for
the
1­
hour
ozone
standard.

Response:
The
final
rule
does
require
that
maintenance
plan
requirements
remain
in
effect
as
a
part
of
the
SIP
but
allows
the
State
to
revise
them
after
the
area
has
an
approved
8­
hour
maintenance
plan.
We
do
not
believe
that
maintenance
inventories
for
the
1­
hour
standard
will
continue
to
be
needed
once
the
area
has
in
place
an
8­
hour
maintenance
plan
that
demonstrates
maintenance
without
such
inventories.
In
addition,
the
State
will
need
to
demonstrate
that
revision
or
removal
of
any
control
measures
won't
interfere
with
maintenance
of
the
8­
hour
NAAQS.
Because
the
8­
hour
standard
is
generally
more
stringent
than
the
1­
hour
standard,
EPA
does
not
anticipate
that
areas
will
be
able
to
significantly
relax
their
SIPs
and
continue
to
demonstrate
maintenance.

Comment:
Several
commenters
claimed
that
the
requirement
for
a
section
110(
a)(
1)
maintenance
plan
was
unnecessary
and
not
required.
One
commenter
suggested
that
the
requirement
was
premature.

Response:
Section
110(
a)(
1)
of
the
Act
requires
all
areas
to
demonstrate
that
they
will
attain
and
maintain
the
national
ambient
air
quality
standards.
EPA
believes
that
areas
that
have
historically
136
had
an
ozone
problem
are
most
at
risk
for
a
potential
future
violation
of
the
8­
hour
standard
and
that
the
8­
hour
maintenance
plan
will
be
a
key
element
in
ensuring
that
the
air
remains
healthy
in
these
areas.

Comment:
One
commenter
suggested
that
EPA
clarify
that
any
specific
maintenance
plan
requirements
which
are
adopted
will
apply
only
to
areas
previously
designated
nonattainment
for
an
ozone
standard.

Response:
The
regulatory
text
of
the
final
rule
clarifies
that
the
maintenance
plan
requirement
in
section
51.905
apply
to
areas
that
were
designated
nonattainment
for
the
1­
hour
standard
on
or
after
November
15,
1990.
Of
course,
the
State
may
determine
that
it
is
appropriate
to
consider
a
larger
area
in
developing
the
maintenance
plan.

Comment:
One
commenter
suggested
that
areas
with
limited
maintenance
plans
be
provided
relief
from
the
requirement
to
submit
maintenance
plans
under
section
110(
a)(
1).

Response:
We
see
no
basis
for
relieving
these
areas
from
the
requirement
to
develop
a
section
110(
a)(
1)
maintenance
plan.
These
areas,
like
all
others
developing
a
section
110(
a)(
1)
maintenance
plan,
should
work
with
the
appropriate
EPA
regional
office
in
determining
the
specific
components
of
the
plan.

Comment:
One
commenter
who
objected
to
EPA's
proposal
to
require
a
section
110(
a)(
1)
maintenance
plan
for
areas
that
were
designated
nonattainment
for
the
1­
hour
standard
on
or
after
November
15,
1990,
and
that
are
initially
designated
attainment
for
the
8­
hour
standard
claimed
the
requirement
would
burden
the
State
and
would
detract
from
efforts
to
develop
plans
to
meet
the
8­
hour
standard.

Response:
As
noted
in
the
preamble
to
the
final
rule,
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
and
remaining
in
attainment
of
the
ozone
NAAQS.
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.

Comment:
One
commenter
understood
EPA's
statements
that
current
1­
hour
maintenance
areas
would
be
relieved
of
the
obligation
to
have
a
maintenance
plan
under
section
175A
of
the
CAA
to
mean
that
continued
requirements
and
any
obligations
as
a
maintenance
area
for
the
1­
hour
standard
would
cease
at
the
time
the
1­
hour
standard
is
revoked.
The
commenter
requested
clarification
on
any
continued
specific
obligations
required
of
maintenance
areas
under
the
1­
hour
standard
that
are
not
and
have
never
been
designated
as
violating
the
8­
hour
standard.

Response:
The
commenter
is
correct
that
the
area
would
be
relieved
of
the
requirement
to
have
a
maintenance
plan
under
section
175A
of
the
CAA
for
such
situations.
The
final
rule
(
section
51.905(
a)(
4),
which
was
not
originally
included
in
the
draft
regulatory
text)
contains
provisions
for
areas
that
are
initially
designated
attainment
of
the
8­
hour
standard
but
that
had
maintenance
plans
under
the
1­
hour
ozone
standard
at
the
time
of
revocation
of
the
1­
hour
standard.
The
rule
for
these
areas
(
as
well
as
8­
hour
attainment
areas
that
were
designated
nonattainment
for
the
1­
hour
standard
at
the
time
of
8­
hour
designation)
requires
such
areas
to
submit
a
maintenance
plan
under
section
110(
a)(
1)
within
3
years
after
the
effective
date
of
designation.

One
commenter
agreed
with
the
requirement.

Comments
on
draft
regulatory
text:

COMMENTS
SUPPORTING
DRAFT
REGULATORY
TEXT
PROVISIONS
Comment:
One
commenter
supports
the
provisions
of
sec.
51.905(
a)(
3)(
iii),
which
would
require
development
of
8­
hour
maintenance
plans
within
3
years
of
designation
as
an
8­
hour
attainment
area,
but
cautions
EPA
concerning
its
other
comments
concerning
section
51.905(
a)(
3)(
ii)(
B),
concerning
the
unmet
planning
obligations
under
the
1­
hour
NAAQS.
One
commenter
supports
EPA's
proposal
under
proposed
rule
51.905
that
the
1­
hour
maintenance
plans
could
be
modified
to
address
maintenance
of
the
8­
hour
standard.
The
commenter
also
supports
the
continued
requirement
for
contingency
measures
in
8­
hour
maintenance
plans
to
avoid
future
redesignations
to
nonattainment,
but
notes
that
EPA's
proposal
did
not
specify
the
trigger
for
implementing
these
measures.

Response:
EPA
plans
to
issue
guidance
on
section
110(
a)(
1)
maintenance
plans
subsequent
to
publication
of
the
final
rule
to
implement
the
8­
hour
ozone
standard.

Comment:
With
regard
to
section
51.905(
a)(
3)(
iii),
one
commenter
does
not
support
the
requirement
to
provide
a
maintenance
plan
for
areas
in
attainment
of
the
8­
hour
ozone
NAAQS,
as
currently
proposed.
The
commenter
states
that
section
110(
a)(
1)
does
not
provide
for
general
contingency
measures,
nor
requires
a
ten
year
plan.
The
commenter
believes
the
draft
regulatory
language
inappropriately
merges
§
175A
maintenance
plan
requirements
for
areas
being
redesignated
from
nonattainment
to
areas
originally
designated
attainment
for
a
NAAQS.
Requiring
areas
designated
nonattainment
for
the
1­
hour
ozone
NAAQS
to
continue
to
implement
the
applicable
requirements
to
the
extent
such
requirements
were
approved
in
the
1­
hour
SIP
is
an
adequate
mechanism
to
assure
continued
attainment
of
the
8­
hour
standard.
Any
§
110(
a)(
1)
maintenance
plan
for
such
areas
should
be
required
only
to
address
the
continuation
of
such
measures,
as
appropriate.
Additionally,
any
area
initially
designated
attainment
for
the
8­
hour
ozone
standard
that
violates
the
8­
hour
ozone
standard
would
be
subject
to
the
Act's
requirements
relating
to
areas
that
become
nonattainment.

Response:
Without
this
provision,
an
area
with
a
current
1­
hour
maintenance
plan
could
experience
backsliding
 
beyond
that
required
from
simply
keeping
mandatory
measures
as
contingency
measures
 
by
being
released
from
a
requirement
to
continue
to
maintain
the
NAAQS.
In
other
words,
if
the
1­
hour
standard
were
not
revoked,
the
area
would
have
been
required
to
continue
to
ensure
emissions
would
remain
at
levels
designed
to
maintain
the
1­
hour
standard.
If
the
final
rule
contained
no
provision
comparable
to
section
51.905(
a)(
3)(
iii),
maintenance
of
those
138
levels
of
emissions
could
not
be
guaranteed.
We
see
no
reason
why
in
transitioning
to
a
more
stringent
and
protective
air
quality
standard
why
there
should
be
provisions
that
would
provide
less
protection
to
public
health.

OPPOSITION
DUE
TO
LACK
OF
STRINGENCY
Comment:
One
commenter
believed
proposed
section
51.905
(
a)(
3)(
iii)
provision
to
implement
8­
hour
ozone
maintenance
plans
under
Section
110(
a)(
1)
of
the
Clean
Air
Act
for
the
areas
affected
(
those
that
were
maintenance
or
nonattainment
under
the
1­
hour
standard
but
that
are
attainment
under
the
8­
hour
standard)
 
combined
with
the
potential
loss
of
funding
under
the
Congestion
Mitigation
and
Air
Quality
(
CMAQ)
program
 
would
hamper
progress
toward
maintaining
and
improving
air
quality
in
former
nonattainment
areas,
and
eliminate
several
important
tools
that
prevent
emissions
increases
related
to
population
growth
and
transportation
sources.

Response:
Under
the
final
rule,
areas
affected
by
section
51.905(
a)(
3)(
iii)
are
still
required
to
develop
a
maintenance
plan
under
section
110(
a)(
1)
and
provide
for
maintenance
for
10
years.
Although
conformity
determinations
would
no
longer
be
made,
the
State
still
has
an
obligation
to
ensure
that
air
quality
remains
clean,
and
to
invoke
contingency
measures
if
concentration
increases
threaten
to
violate
the
NAAQS.
We
plan
to
address
the
CMAQ
program
in
the
second
phase
of
this
rule.

Comment:
Several
commenters
opposed
that
part
of
draft
section
51.905
that
eliminates
Section
175A
planning
requirements
in
favor
of
Section
110(
a)(
1)
maintenance
plans.
[
OAR­
2003­
0079­
0494
State
of
New
York
Department
of
Transportation;
OAR­
2003­
0079­
0461
Oregon
Department
of
Environmental
Quality.]
One
of
these
commenters
urges
EPA
to
amend
its
proposed
rule
51.905
to
allow
former
nonattainment
areas
an
option
of
implementing
maintenance
plans
under
Section
175A,
and
to
continue
requiring
conformity
determinations
under
the
maintenance
plan,
and
continue
requiring
subsequent
plan
revisions
under
this
section.
Alternatively,
states
that
demonstrate
that
a
Section
175A
maintenance
plan
is
not
necessary
to
maintain
the
standard
could
be
given
the
option
of
developing
Section
110(
a)(
1)
maintenance
plans
if
that
is
more
appropriate
for
a
local
area.
The
commenter
provided
draft
language
to
effect
these
changes.

Response:
Once
we
revoke
the
1­
hour
standard,
the
requirement
for
submission
 
or
subsequent
improvements
to
or
additions
 
of
a
section
175A
maintenance
plan
under
the
1­
hour
standard
are
no
longer
required.
Furthermore,
maintenance
plans
under
section
175A
only
accompany
redesignation
requests;
the
areas
covered
here
would
not
be
seeking
redesignation
to
attainment,
and
therefore,
section
175A
maintenance
plans
are
not
an
option
for
these
areas.

Likewise,
conformity
determinations
under
the
1­
hour
standard
will
not
only
not
be
required
but
may
not
be
made.
EPA
believes
that
conformity
cannot
apply
in
1­
hour
maintenance
areas
once
the
standard
is
revoked.
Clean
Air
Act
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
139
determined
by
the
U.
S.
Department
of
Transportation.
However,
after
revocation
of
the
1­
hour
standard,
the
areas
previously
required
to
submit
175A
maintenance
plans
under
the
statute
for
the
1­
hour
standard
will
no
longer
be
required
to
do
so.
Thus,
conformity
can
no
longer
be
required
in
1­
hour
maintenance
areas,
since
the
Act
no
longer
waives
the
Federal
government's
sovereign
immunity
for
these
areas
after
revocation.

Therefore,
we
must
reject
the
commenters
recommended
changes.
However,
we
note
that
under
the
final
rule,
areas
affected
by
section
51.905(
a)(
3)(
iii)
are
still
required
to
develop
a
maintenance
plan
under
section
110(
a)(
1)
and
provide
for
maintenance
for
10
years.
Although
conformity
determinations
would
no
longer
be
made,
the
State
still
has
an
obligation
to
ensure
that
air
quality
remains
clean,
and
to
invoke
contingency
measures
if
concentration
increases
threaten
to
violate
the
NAAQS.

COMMENTS
PROVIDING
SUGGESTIONS
OR
ASKING
FOR
CLARIFICATIONS
OF
DRAFT
REGULATORY
TEXT
PROVISONS
Comment:
One
commenter
expressed
concern
about
the
lack
of
specificity
concerning
the
content
and
process
for
section
110(
a)(
1)
maintenance
plans
and
believed
modeling
should
not
be
required
for
these
plans,
since
at
least
one
EPA
SIP
approval
rulemaking
noted
that
modeling
is
not
required
for
section
175A
maintenance
plans.

Response:
We
plan
to
issue
guidance
on
the
content
and
preparation
of
section
110(
a)(
1)
maintenance
plans
following
publication
of
the
final
rule
on
implementation
of
the
8­
hour
standard.

General
Comments
related
to
regulatory
text
Comment:
One
commenter
suggested
changes
for
formatting
consistency
in
section
51.905
of
the
draft
regulatory
text.
These
included:
­­
Add
new
definitions
(
including
"
baseline,"
"
existing
requirements,"
"
effective
date
of
designation."
 
Modifying
the
definition
of
"
applicable
requirements"
to
include
a
date
for
their
determination.
 
The
rule
should
specify
procedures
for
requesting
a
lower
classification
(
under
the
proposed
"
incentive
feature").
The
rule
should
also
address
provisions
for
the
5
percent
classification
adjustment
in
section
181(
a)(
4)
of
the
CAA.

Response:
Some
of
these
changes
have
been
made.
­­
We
did
include
a
definition
of
"
designation
for
the
8­
hour
NAAQS"
based
on
the
effective
date.
The
rule
itself
addresses
any
baseline
questions.
The
final
rule
(
section
51.905(
a)(
1)(
ii)(
B))
specifies
the
creditability
of
emission
reductions
needed
for
the
advance
increment
of
progress
plan.
 
The
definition
of
"
applicable
requirements,"
specifies
the
date
of
determining
an
area's
applicable
requirements
as
the
date
the
Administrator
signs
the
final
rule
designating
areas
for
the
8­
hour
NAAQS.
140
 
As
discussed
in
more
detail
elsewhere
in
this
document,
the
final
rule
does
not
include
the
proposed
incentive
feature
that
would
have
allowed
requests
for
lower
classifications
based
on
projected
attainment
timing.
The
final
rule
does
include
references
to
both
the
5
percent
adjustment
of
section
181(
a)(
4)
and
the
voluntary
bump­
up
procedure
under
section
181(
b)(
3)
of
the
CAA.

**********************

Obligations
Related
to
Conformity
(
Section
VI.
C.
3.
b(
iv)
of
proposed
rule;
see
68
FR
32823;
Section
51.905(
e)(
3)
of
draft
regulatory
text
and
final
rule.)

Comments
and
responses
are
under
the
section
What
additional
obligations
under
Part
D
of
Title
I
of
the
CAA
would
not
continue
to
apply
after
the
1­
hour
standard
is
revoked.

*********************

What
happens
with
respect
to
the
NOx
SIP
Call?
(
Section
VI.
C.
3(
c);
see
68
FR
32824;
section
51.905(
f)
of
both
draft
regulatory
text
and
final
rule.)

Comments
and
Responses
Comments
on
the
June
2,
2003
proposal:

Comment:
Only
a
handful
of
commenters
addressed
this
issue,
and
all
supported
the
proposal.
Several
of
these
recommended
that
we
lift
the
stay
of
the
NOx
SIP
call
as
it
relates
to
the
8­
hour
standard.

Response:
We
acknowledge
the
support
on
this
requirement.
As
noted
in
the
preamble,
we
do
intend
to
lift
the
stay
of
the
NOx
SIP
Cal
as
it
relates
to
the
8­
hour
ozone
standard.

Comment:
One
commenter
urged
EPA
to
adopt
strong
anti­
backsliding
provisions
when
revoking
the
1­
hour
standard
to
ensure
continued
progress
as
8­
hour
SIPs
are
developed
and
to
ensure
reduction
in
transported
pollution
to
downwind
areas
and
noted
that
any
regulatory
program
that
reduces
emissions
to
achieve
the
1­
hour
standard
also
makes
progress
toward
achieving
the
8­
hour
standard.
The
commenter
specifically
noted
that
programs
such
as
the
NOx
SIP
Call
and
Tier
2
vehicle
standards
must
also
continue
because
they
provide
relief
from
transported
pollution
and
EPA
has
found
the
benefits
of
these
programs
to
be
very
effective
with
respect
to
the
8­
hour
standard.
One
commenter
supported
EPA's
proposal
that
State's
must
continue
to
adhere
to
the
emission
budgets
established
by
the
NOx
SIP
Call
after
the
1­
hour
ozone
standard
is
revoked.

Response:
The
final
rule
would
retain
provisions
of
the
NOx
SIP
call.
141
Comments
on
the
draft
regulatory
text:

Comment:
Several
commenters
supported
to
provisions
of
draft
section
51.905(
f),
that
would
retain
implementation
of
the
NOx
SIP
call
provisions.
One
commenter
supports
the
provisions
of
the
section
subject
to
modifications
consistent
with
section
110(
1)
of
the
Act.

Comment:
One
commenter
urges
the
U.
S.
EPA
to
proceed
with
Phase
II
of
the
NOx
SIP
call
which
included
control
of
emissions
from
internal
combustion
engines
as
well
as
corrections
to
the
original
requirements.

Response:
The
EPA
Administrator
signed
the
Phase
II
rule
of
the
NOx
SIP
call
on
April
2,
2004.
See
http://
www.
epa.
gov/
airlinks/
rule4104.
pdf
***********************
What
additional
obligations
under
part
D
of
title
I
of
the
CAA
would
not
continue
to
apply
after
the
1­
hour
standard
is
revoked?
(
Section
VI.
C.
3(
d)
of
proposed
rule;
see
68
FR
328224;
section
51.905(
e)
of
final
rule.)

Comments
and
Responses
Comments
on
June
2,
2003
proposal:

Comment:
Several
commenters
addressed
this
portion
of
the
proposal.
Most
agreed
with
the
proposal.
A
few
of
the
commenters
disagreed
with
the
proposal.
One
cited
equity
reasons
and
possible
delay
in
obtaining
emission
reductions.
One
of
these
commenters
believe
we
should
not
revoke
the
1­
hour
standard
at
all.
One
commenter
disagrees
with
the
proposal
that
after
total
or
partial
revocation
of
the
1­
hour
standard
in
an
area,
the
Agency
would
not
make
findings
of
failure
to
attain
the
1­
hour
standard
or
reclassify
areas
that
failed
to
timely
attain
the
1­
hour
standard.
68
Fed.
Reg.
32824/
2.
This
proposal
conflicts
with
the
express
terms
of
the
Act,
which
mandates
that
EPA
make
a
finding
of
nonattainment
within
6­
months
following
the
applicable
attainment
date,
and
further
mandates
reclassification
"
by
operation
of
law"
for
areas
that
EPA
finds
have
not
timely
attained.
CAA
§
181(
b)(
2),
42
U.
S.
C.
§
7511(
b)(
2).
Moreover,
the
Act's
reclassification
requirements
are
part
and
parcel
of
the
specific
control
obligations
mandated
by
Subpart
2
 
obligations
that
EPA
itself
concedes
must
remain
in
effect
regardless
of
whether
of
1­
hour
standard
is
"
revoked."
EPA's
proposal
would
also
produce
grossly
inequitable
results.
For
example,
where
EPA
failed
to
timely
reclassify
an
area
prior
to
revocation
of
the
1­
hour
standard,
that
area
effectively
would
receive
a
grandfathered
exemption
from
the
stronger
subpart
2
control
requirements
that
would
continue
to
apply
in
areas
that
were
reclassified
on
time.
The
proposal
tries
to
justify
a
waiver
of
bump
ups
on
that
ground
that
states
should
focus
resources
on
attainment
of
the
8­
hour
standard,
and
that
"
it
would
be
counterproductive
to
establish
new
obligations
for
States
with
respect
to
the
1­
hour
standard
after
they
have
begun
planning
for
the
8­
hour
standard."
68
Fed.
Reg.
at
32824/
2.
There
is
absolutely
no
support,
however,
for
the
notion
that
bump
ups
would
divert
resources
from
8­
hour
planning,
or
that
the
stronger
control
requirements
for
a
higher
19Docket
documents
OAR­
2003­
0079­
0149,
0259,
0260
(
Texas
Commission
on
Environmental
Quality).

20Docket
document
OAR­
2003­
0079­
0239
(
Sacramento
Metropolitan
Air
Quality
Management
District).

21Docket
document
OAR­
2003­
0079­
0140
(
Bay
Area
Air
Quality
Management
District).

142
1­
hour
classification
would
somehow
by
"
counterproductive"
with
respect
to
the
8­
hour
standard.
As
EPA
itself
has
repeatedly
stated,
controls
to
achieve
the
1­
hour
standard
invariably
contribute
to
attainment
of
the
8­
hour
standard
as
well.

Response:
Elsewhere
in
this
document,
we
respond
to
the
issue
of
whether
we
can
revoke
the
1­
hour
standard.
After
the
1­
hour
standard
is
revoked,
it
would
not
exist,
nor
would
designations
or
classifications
under
the
1­
hour
standard
exist.
Therefore,
we
would
not
find
that
an
area
failed
to
attain
that
standard,
nor
would
we
reclassify
the
area
based
on
a
failure
to
attain
that
standard.
However,
the
anti­
backsliding
provisions
of
section
51.905
would
continue
to
require
progress
in
achieving
the
health­
based
standard
that
remains
in
place
(
viz.,
the
8­
hour
standard),
and
would
not
allow
backsliding
of
measures
to
reduce
emissions
that
were
required
under
the
1­
hour
standard.

We
disagree
with
the
comment
that
there
is
no
support
for
the
notion
that
classification
bump
ups
would
divert
resources
from
8­
hour
planning.
Several
commenters
have
provided
estimates
of
the
costs
of
preparing
implementation
plans
for
attainment
of
the
NAAQS.
One
commenter
stated
that
plans
7
areas
would
cost
about
$
2.5
million.
19
Another
commenter
stated
that
the
cost
to
preparation
of
a
single
local
agency
SIP
can
well
exceed
$
1
million
by
itself.
20
Another
commenter
stated
that
the
cost
to
prepare
and
submit
a
federal
ozone
attainment
plan
for
the
1­
hour
standard
is
well
over
$
2
million.
21
Continuing
to
spend
resources
of
that
magnitude
on
new
planning
for
the
1­
hour
standard
after
the
area
fails
to
achieve
the
1­
hour
standard
 
while
at
the
same
time
preparing
plans
to
achieve
the
8­
hour
standard
 
would
seem
to
spread
those
resources
too
thin.

We
also
disagree
that
there
is
no
support
for
the
claim
that
the
stronger
control
requirements
for
a
higher
1­
hour
classification
would
somehow
be
"
counterproductive"
with
respect
to
the
8­
hour
standard.
A
higher
classification
requires
the
area
to
adopt
mandatory
control
rules.
Some
of
those
mandatory
controls
are
far
more
expensive
per
ton
of
reduction
than
other
controls
that
may
be
more
effective
in
reducing
ozone
concentrations.
By
spending
limited
resources
in
implementing
the
less
effective
mandatory
controls,
an
air
agency
would
be
left
with
fewer
resources
to
implement
controls
that
would
be
more
effective
in
bringing
about
attainment
more
expeditiously.

Comment:
Several
commenters
urged
that
after
EPA
revokes
the
1­
hour
standard,
the
Agency
should
no
longer
make
findings
of
failure
to
attain
the
1­
hour
standard,
reclassify
areas
to
a
higher
classification,
or
impose
Section
185
penalties
for
failure
to
attain,
stating
that
with
a
more
143
protective
8­
hour
standard
and
strong
anti­
backsliding
measures,
the
administrative
and
planning
requirements
for
keeping
the
1­
hour
standard
in
effect
are
not
justified
and
would
be
a
severe
drain
on
state
and
local
resources.

Several
commenters
urged
EPA
to
confirm
explicitly
what
is
implicit
in
its
proposal:
that
any
penalties
associated
with
failure
to
attain
the
1
­
hour
NAAQS
by
Subpart
2
deadlines
would
not
be
imposed
upon
revocation
of
the
1­
hour
NAAQS.
Such
penalties
include
the
emission
fee
penalty
for
severe
nonattainment
areas
described
in
section
185
of
the
Act,
which
is
triggered
under
section
181(
b)(
4)
of
the
Act
upon
a
finding
that
the
area
failed
to
attain
by
its
attainment
date.
Thus,
for
the
same
reason
that
EPA
would
not,
after
revocation
of
the
1­
hour
NAAQS,
make
findings
of
failure
to
attain
the
1­
hour
NAAQS
(
and
would
not
reclassify
areas
under
section
181(
b)(
2)
of
the
Act),
a
1­
hour
severe
nonattainment
area's
failure
to
attain
the
1­
hour
NAAQS
would
not,
after
revocation
of
that
NAAQS,
trigger
the
section
185
penalty
fee
provision
for
that
area
under
section
181(
b)(
4).
Indeed,
EPA
recognizes
in
its
proposed
rule
that
the
section
185
penalty
fee
provision
is
not
a
SIP
emission
control
measure
that
would
remain
applicable
after
revocation
of
the
1­
hour
NAAQS
but
is
instead
a
financial
penalty
imposed
solely
as
a
consequence
of
a
finding
that
an
area
has
failed
to
attain.
Accordingly,
just
as
there
would
be
no
basis
for
a
finding
of
failure
to
attain
the
1­
hour
NAAQS
after
that
NAAQS
is
revoked,
there
would
be
no
basis
for
imposing
the
section
185
penalty
fee
provision
for
that
NAAQS.
One
of
these
commenters
noted
that
it
is
implicit
in
the
proposed
rule
that
this
penalty
fee
would
not
be
imposed
since
it
is
not
listed
as
an
"
applicable
requirement"
in
Appendix
B
of
the
proposed
rulemaking.

Response:
The
final
rule
provides
that
once
the
1­
hour
standard
is
revoked,
we
will
no
longer
make
findings
of
failure
to
attain
the
1­
hour
standard
and,
therefore,
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.
Since
the
obligations
to
reclassify
areas
and
impose
fees
are
based
on
a
determination
that
an
area
has
failed
to
meet
the
standard,
those
obligations
also
would
no
longer
apply
for
the
1­
hour
standard
once
the
1­
hour
standard
has
been
revoked.

Comment:
One
commenter
stated
that
EPA's
options
for
revocation
of
the
1­
hour
standard,
if
not
carried
out
with
appropriate
safeguard,
could
result
in
(
1)
reduced
progress
by
agencies
at
all
levels
of
government
to
control
emissions
from
sources
within
their
jurisdictions,
(
2)
competitive
disadvantages
for
businesses
in
the
South
Coast
due
to
other
areas
not
being
bumped­
up
in
response
to
a
failure
to
attain
the
1­
hour
standard,
and
(
3)
diminished
incentives
to
develop
needed
new
emission
control
technologies.
This
commenter
noted
the
consequences
that
would
befall
an
area
if
it
failed
to
attain
the
1­
hour
standard
by
its
attainment
date,
such
as:
(
1)
a
$
5,000
per
ton
emissions
fee
that
applies
to
emissions
in
excess
of
80%
of
actual
emissions
in
the
attainment
deadline
year;
(
2)
a
requirement
to
implement
contingency
measures
and
an
economic
incentive
program;
(
3)
a
requirement
to
submit
a
SIP
revision
to
correct
the
failure
to
attain.
The
commenter
believed
that
the
elimination
of
these
consequences
would
reduce
pressure
for
source
operators,
developers
of
new
control
technologies,
and
governments
at
all
levels
to
make
expeditious
progress
in
achieving
emissions
reductions.
The
commenter
is
also
concerned
that
the
lack
of
near­
term
consequences
for
failure
to
attain
would
make
it
more
difficult
for
the
local
areas
to
obtain
144
cooperation
from
the
federal
government
to
regulate
sources
within
its
jurisdiction.
If
attainment
deadlines
are
extended
to
2021,
the
federal
government
could
more
easily
take
the
position
that
it
need
not
commit
to
do
more
because
the
district
and
state
have
time
to
attempt
to
obtain
needed
reductions
from
sources
within
their
control.

Response:
We
believe
that
with
the
revocation
of
the
1­
hour
standard,
the
anti­
backsliding
provisions
promulgated
in
the
final
rule
will
not
result
in
any
wholesale
delay
of
emission
reductions
that
are
required
under
the
1­
hour
standard.
Furthermore,
EPA
always
retains
the
authority
to
require
a
State
that
may
fail
to
attain
the
standard
to
revise
its
SIP
to
provide
additional
control
measures
or,
if
the
area
actually
fails
to
attain,
to
redesignate
the
area
nonattainment
and
require
a
new
attainment
demonstration.

Comments
on
draft
regulatory
text
(
sect.
51.905(
e)
of
the
draft):

Comment:
Several
commenters
supported
this
provision.
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
standard
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.
With
respect
to
the
criteria
for
approval
of
amendments
to
maintenance
plans,
there
are
some
8­
hour
NAAs
that
have
1­
hour
maintenance
plans
that
will
not
have
an
obligation
to
submit
an
8­
hour
attainment
demonstration,
and
hence
may
face
continuing
obligations
for
the
1­
hour
NAAQS
after
it
has
been
revoked.
Marginal
areas,
for
example,
are
not
required
to
submit
an
attainment
demonstration.
For
such
areas,
the
commenter
notes
that
it
appears
that
we
intend
these
obligations
to
remain
in
place
until
2007.
By
2007,
many
of
these
areas
will
already
have
been
required
to
update
their
1­
hour
maintenance
plans.
The
commenter
recommends
that
amendments
to
the
maintenance
plans
for
these
areas
be
approved
after
the
1­
hour
NAAQS
has
been
revoked.
Another
commenter
also
notes
that
the
draft
regulatory
text
on
this
provision
is
not
clear
with
regard
to
areas
classified
marginal.

Response:
Once
we
revoke
the
1­
hour
standard,
the
requirement
for
submission
 
or
subsequent
improvements
to
or
additions
 
of
a
section
175A
maintenance
plan
under
the
1­
hour
standard
are
no
longer
required.
Furthermore,
maintenance
plans
under
section
175A
only
accompany
redesignation
requests;
the
areas
covered
here
would
not
be
seeking
redesignation
to
attainment,
and
therefore,
section
175A
maintenance
plans
are
not
an
option
for
these
areas.
After
revocation
of
the
1­
hour
standard,
the
areas
previously
required
to
submit
175A
maintenance
plans
under
the
statute
for
the
1­
hour
standard
will
no
longer
be
required
to
do
so.
We
note
that
under
the
final
rule,
areas
affected
by
section
51.905(
a)(
3)(
iii)
are
still
required
to
develop
a
maintenance
plan
under
section
110(
a)(
1)
and
provide
for
maintenance
for
10
years.
The
State
still
has
an
obligation
to
ensure
that
air
quality
remains
clean,
and
to
invoke
contingency
measures
if
concentration
increases
threaten
to
violate
the
NAAQS.
145
The
final
rule
provides
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.
However,
such
requirements
will
remain
enforceable
as
part
of
the
approved
SIP
until
such
time
as
EPA
approves
a
SIP
revision
removing
such
obligations.
One
revision
that
the
State
could
consider
is
replacement
of
contingency
measure
triggers
that
are
based
on
1­
hour
ozone
concentrations
with
triggers
that
are
based
on
8­
hour
ozone
concentrations.
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
standard
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
upon
revocation
of
the
1­
hour
standard,
EPA
would
no
longer
be
required
to
determine
whether
an
area
has
attained
the
1­
hour
standard
by
its
1­
hour
attainment
deadline
or
to
reclassify
the
area
to
a
higher
classification
based
on
a
"
failure
to
attain"
determination.
The
commenter
suggest
that
the
language
of
the
regulatory
text
should
affirm
this
position
by
changing
the
phrase
"
is
no
longer
obligated
to"
to
"
shall
not"
in
§
501.905(
e)(
2).

Response:
We
are
not
incorporating
the
recommended
change.
The
federal
government
generally
does
not
make
rules
that
bind
itself
to
take
or
refrain
from
taking
certain
actions.

Comment:
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.
However,
the
commenter
believes
the
SIP
modifications
to
address
these
issues
should
be
incorporated
as
part
of
the
8­
hour
SIP
submittals,
rather
than
a
separate
process.

Response:
The
rule
would
require
removal
of
control
measures
through
a
revision
of
the
8­
hour
ozone
SIP.

Comment:
One
commenter
recommended
that,
in
general,
the
rule
should
make
it
clear
that
any
revocation
actions
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
146
maintenance,
which
will
ensure
non­
interference
with
the
8­
hour
standard.
However,
the
final
rule
also
includes
a
requirement
that
the
changes
must
be
in
accordance
with
sections
110(
l)
and
193.

Comment:
One
commenter
believes
that
proposed
40
C.
F.
R.
§
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
C.
F.
R.
§
51.905(
a)(
3)(
iii),
if
the
area
is
designated
attainment
for
the
8­
hour
standard.
Option
(
2)
does
not
make
sense,
however.
Proposed
40
C.
F.
R.
§
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
C.
F.
R.
§
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".
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
have
1­
hour
maintenance
plans
at
the
time
of
revocation
of
the
1­
hour
standard
under
which
they
would
be
obligated
to
submit
a
maintenance
plan
under
section
110(
a)(
1).
Section
51.905(
e)(
1)
has
been
modified
to
provide
that
the
State
would
not
be
able
to
modify
the
existing
1­
hour
maintenance
plan
until
EPA
approves
the
new
8­
hour
maintenance
plan.

Comment:
One
commenter
recommended
that
section
51.905(
e)(
2)
be
revised
to
indicate
whether
EPA
is
still
obligated
to
implement
a
FIP
after
revocation
of
the
1­
hour
standard.

Response:
FIPs
 
like
SIPs
 
remain
in
effect
unless
modified
by
EPA
rulemaking.
The
same
antibacksliding
principles
that
apply
to
SIPs
will
apply
to
FIPs,
and
unless
modified,
EPA
will
continue
to
implement
FIPs.
We
do
not
believe
a
change
is
needed
in
the
rule
itself
to
ensure
this
happens.

Comment:
With
regard
to
section
51.905(
e)(
1),
one
commenter
notes
that
EPA
would
be
required
to
act
upon
these
maintenance
plans
pursuant
to
section
110(
k)
(
12
months
after
completion)
while
also
reviewing
SIPs
for
8­
hour
attainment.

Response:
We
recognize
that
section
110(
k)
would
provide
that
EPA
must
act
on
SIP
revisions
within
12
months
after
a
determination
of
completeness
of
the
revision.

General
Characterization
of
Comments
Related
to
Conformity
147
Comments:
About
twice
as
many
commenters
were
against
revoking
the
1­
hour
ozone
standard
and
its
implications
for
conformity
once
the
8­
hour
standard
applies
than
were
in
support
of
it.
Those
commenting
against
revoking
the
1­
hour
standard
for
conformity
were
concerned
about
backsliding.
Many
commenters
thought
that
1­
hour
motor
vehicle
emissions
budgets
should
remain
in
effect
because
otherwise
8­
hour
areas
will
be
able
to
use
the
build/
no­
build
test
and
this
test
allegedly
allows
emissions
to
increase.
Other
commenters
specifically
mentioned
that
revoking
the
1­
hour
standard
conflicts
with
our
proposal
that
Clean
Air
Act
section
110(
l)
must
be
met
in
maintenance
areas.
Some
commenters
were
also
concerned
revocation
means
that
conformity
will
no
longer
apply
in
areas
that
are
attaining
the
8­
hour
standard.

Response:
More
detailed
comment
summaries
and
responses
follow.

Comment:
Commenters
against
revoking
the
1­
hour
standard
were
most
concerned
that
areas
would
no
longer
have
to
meet
the
motor
vehicle
emissions
budgets
established
for
the
1­
hour
standard.
Instead,
8­
hour
ozone
nonattainment
areas
that
were
nonattainment
or
maintenance
for
the
1­
hour
standard
would
be
able
to
determine
conformity
using
other
tests,
such
as
the
"
build/
nobuild
test,
until
8­
hour
budgets
become
available.

Some
commenters
stated
that
the
build/
no­
build
test
allows
traffic
and
pollution
growth
even
when
increased
emissions
will
exacerbate
adverse
health
effects,
because
emissions
from
the
"
build"
case
only
have
to
be
less
than
the
"
no­
build"
case,
rather
than
less
than
some
certain
amount
of
emissions.
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
a
variety
of
alternative
points
for
revoking
the
1­
hour
standard.
Commenters
suggested
retaining
conformity
for
the
1­
hour
standard
until:

°
motor
vehicle
emissions
budgets
for
the
8­
hour
standard
are
available;
°
areas
submit
and
EPA
approves
a
maintenance
plan
for
the
8­
hour
standard.
This
maintenance
plan
should
provide
for
continued
maintenance
of
the
8­
hour
standard
for
at
least
10
years
and
should
include
contingency
measures
that
would
be
implemented
upon
a
violation
of
the
8­
hour
standard.
°
the
end
of
the
1­
hour
maintenance
planning
period;
or
°
it
is
demonstrated
that
conformity
is
no
longer
necessary
for
maintenance
of
the
8­
hour
standard.

A
coalition
of
environmental
groups
also
suggested
that
instead
of
the
build/
no­
build
test,
areas
should
demonstrate
conformity
by
showing
that
a
transportation
plan
or
program
achieves
no
net
increase
in
emissions
in
the
period
between
designation
and
the
point
where
8­
hour
budgets
are
adequate.
Finally,
some
air
quality
agencies
were
concerned
that
air
quality
progress
made
under
the
1­
hour
ozone
standard
be
maintained
until
8­
hour
SIPs
are
established
several
years
after
designations.
Until
8­
hour
SIPs
are
in
place,
these
commenters
believed
that
existing
1­
hour
SIP
148
budgets
in
control
strategy
SIPs
and
maintenance
plans
be
used
for
transportation
conformity
purposes,
rather
than
the
relatively
lenient
build/
no­
build
test.

Response:
EPA's
Office
of
Transportation
and
Air
Quality
proposed
conformity
regulations
for
the
new
8­
hour
ozone
standard
and
new
fine
particulate
matter
standard
on
November
5,
2003
(
68
FR
62690
­
62729).
We
proposed
that
new
8­
hour
ozone
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
these
issues
in
that
rulemaking
and
provide
a
full
response
in
the
context
of
that
rulemaking.
Therefore,
please
refer
to
docket
number
OAR­
2003­
0049
for
the
complete
response
to
these
comments.

However,
at
this
point
EPA
can
respond
to
the
suggestions
to
revoke
the
1­
hour
standard
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
standards
at
the
same
time:
a
result
that
EPA
believes
could
lead
to
confusion
and
additional
burden
for
transportation
and
air
quality
planners.
EPA
believes
it
is
sufficient
that
conformity
be
determined
for
one
ozone
standard
at
a
time.
EPA
also
believes
that
conformity
cannot
apply
in
1­
hour
maintenance
areas
once
the
standard
is
revoked.
Clean
Air
Act
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
standard,
the
areas
previously
required
to
submit
section
175A
maintenance
plans
under
the
statute
for
the
1­
hour
standard
will
no
longer
be
required
to
do
so.
Thus,
conformity
can
no
longer
be
required
in
1­
hour
maintenance
areas,
since
the
Act
no
longer
waives
the
Federal
government's
sovereign
immunity
for
these
areas
after
revocation.
Finally,
since
the
8­
hour
standard
is
the
more
stringent
of
the
two
standards,
we
believe
conforming
to
that
standard
will
be
sufficient.

Comment:
Several
commenters
indicated
that
revoking
the
1­
hour
standard
and
terminating
conformity
for
the
1­
hour
standard
is
backsliding.
Commenters
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.

Commenters
also
remarked
that
revoking
the
1­
hour
ozone
standard
is
of
particular
concern
in
areas
that
are
currently
nonattainment
or
maintenance
for
the
1­
hour
ozone
standard
that
are
projected
to
be
attainment
for
the
8­
hour
ozone
standard,
because
once
the
standard
is
revoked,
these
areas
will
no
longer
be
subject
to
conformity
for
any
ozone
standard.

Two
commenters
referring
to
the
same
area
argued
that
eliminating
conformity
in
that
area,
a
maintenance
area
for
the
1­
hour
ozone
standard
that
monitors
attainment
for
the
8­
hour
standard,
would
have
significant
implications
for
the
state's
economic
recovery.
In
their
region,
one
commenter
explained,
motor
vehicle
emissions
budgets
for
transportation
have
been
purposefully
set
to
allow
industrial
expansion.
This
region
has
made
a
specific
decision
to
limit
emissions
from
149
the
transportation
sector
so
that
desired
economic
expansion
for
the
industrial
base
could
take
place.
A
couple
of
commenters
also
argue
that
eliminating
transportation
conformity
in
areas
that
are
maintenance
means
that
the
region
loses
the
ability
to
forecast
whether
a
violation
could
occur.
Instead,
the
area
would
know
of
a
violation
only
when
one
occurs.
One
commenter
is
concerned
that,
if
the
area
should
violate
the
standard,
the
likely
result
would
be
a
reduction
in
industrial
emissions,
which
could
inadvertently
limit
economic
development.

Response:
The
Clean
Air
Act
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)).
With
this
provision
of
the
statute
in
mind,
we
will
first
address
the
comment
that
revoking
the
1­
hour
standard
conflicts
with
EPA's
proposal
that
areas
must
meet
section
110(
l)
before
modifying
discretionary
measures,
and
second
address
the
concern
regarding
revoking
the
1­
hour
standard
in
8­
hour
attainment
areas.

Maintenance
areas.
As
stated
in
the
proposal
(
68
FR
32842),
we
have
concluded
that
the
better
interpretation
of
the
statute
is
that
conformity
would
not
apply
in
1­
hour
ozone
maintenance
areas
once
the
1­
hour
ozone
standard
is
revoked,
because
maintenance
areas
are
relieved
of
the
obligation
under
section
175A
of
the
CAA
(
42
U.
S.
C.
7505a)
to
have
a
maintenance
plan.
Since
these
areas
are
no
longer
required
to
have
a
maintenance
plan,
conformity
no
longer
applies
for
the
1­
hour
ozone
standard
in
these
areas
as
a
matter
of
law,
and
no
waiver
of
sovereign
immunity
applies
to
allow
imposition
of
conformity
requirements.
We
acknowledged
in
the
proposal
that
our
interpretation
that
conformity
would
not
apply
in
1­
hour
ozone
maintenance
areas
differs
from
the
approach
we
planned
to
take
in
1997.
In
1997,
we
interpreted
revoking
the
1­
hour
ozone
standard
to
mean
that
conformity
would
not
apply
for
the
1­
hour
ozone
standard
in
areas
that
were
nonattainment
for
the
1­
hour
ozone
standard,
but
that
conformity
would
continue
to
apply
for
the
1­
hour
ozone
standard
in
areas
with
a
maintenance
plan.
This
interpretation
lead
to
an
unfair
and
counter­
intuitive
result:
areas
that
had
attained
the
standard
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.

EPA
now
believes
that
conformity
cannot
apply
in
1­
hour
maintenance
areas
once
the
1­
hour
standard
is
revoked.
Clean
Air
Act
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
standard,
the
areas
previously
required
to
submit
175A
maintenance
plans
under
the
statute
for
the
1­
hour
standard
will
no
longer
be
required
to
do
so.
Therefore,
the
statute
will
no
longer
waive
sovereign
immunity
to
allow
states
to
require
conformity
determinations
in
such
areas
after
revocation.
Thus,
although
section
110(
l)
would
normally
require
areas
to
demonstrate
that
removing
prior
SIP
requirements
would
not
interfere
with
any
applicable
requirements
of
the
Act,
150
where
the
Act
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
Act
to
submit
175A
maintenance
plans.

Areas
attaining
the
8­
hour
ozone
standard.
We
promulgated
the
8­
hour
ozone
standard
in
response
to
the
latest
data
and
science
regarding
ozone;
we
believe
the
8­
hour
ozone
standard
is
more
protective
of
public
health.
EPA
has
made
the
decision
to
replace
the
1­
hour
ozone
standard
with
the
8­
hour
ozone
standard,
because
we
recognize
that
it
is
difficult
for
states
to
plan
for
both
standards
and
because
EPA
concludes
that
the
8­
hour
standard
is
the
more
appropriate
standard
to
protect
health
and
welfare.
It
is
our
conclusion
that
areas
that
are
in
attainment
for
the
8­
hour
standard
would
not
be
subject
to
conformity
because
the
statute
explicitly
limits
the
applicability
of
conformity
to
designated
nonattainment
and
maintenance
areas.
These
areas
still
have
incentive
to
monitor
the
growth
of
emissions
from
the
transportation
sector;
if
these
areas
violate
the
8­
hour
standard,
EPA
would
designate
them
nonattainment
for
the
8­
hour
standard
and
conformity
would
then
apply.

Last,
EPA
notes
that
although
States
could
not
implement
conformity
for
attainment
areas
as
a
matter
of
Federal
law,
they
could
still
work
with
their
MPOs
to
estimate
regional
emissions
that
would
be
generated
by
the
planned
transportation
system
to
see
whether
a
violation
could
occur,
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:
Comments
submitted
by
a
coalition
of
environmental
organizations
made
a
few
arguments
regarding
the
legality
of
the
revocation
proposal.

First,
commenters
assert
that
EPA
does
not
have
the
discretion
to
revoke
the
1­
hour
ozone
standard.
The
commenters
point
toward
the
Court's
conclusion
that
the
congressional
scheme
for
implementing
the
1­
hour
standard
"
reaching
so
far
into
the
future
was
not
enacted
to
be
abandoned
the
next
time
the
EPA
reviewed
the
ozone
standard
 
which
Congress
knew
could
happen
at
any
time."
Commenters
also
quoted
the
following
from
the
Court's
decision:
"
The
EPA
may
not
construe
the
statute
in
a
way
that
completely
nullifies
textually
applicable
provisions
meant
to
limit
its
discretion,"
and
conclude
that
because
the
regulatory
scheme
in
Subpart
2
was
enacted
to
require
implementation
of
the
1­
hour
ozone
standard,
that
standard
must
continue
to
be
implemented.

The
same
commenter
in
a
separate
comment
letter
made
the
same
point
in
commenting
on
the
definition
of
"
applicable
requirements"
in
section
51.900(
f)
of
the
draft
regulatory
text.
The
commenter
noted
that
the
definition
omitted
the
conformity
requirements
of
CAA
§
176(
c)
which
apply
to
areas
that
are
designated
nonattainment
for
the
pollutant
ozone
or
that
were
designated
nonattainment
for
ozone
but
that
were
later
redesignated
by
the
Administrator
as
an
attainment
areas.
The
omission
of
conformity
requirements
from
the
list
of
applicable
requirements
for
any
area
that
is
designated
as
nonattainment
or
attainment
(
maintenance)
for
ozone
pursuant
to
either
151
NAAQS
violates
the
Act.
In
further
support
hereof,
we
incorporate
by
reference
applicable
arguments
filed
in
the
litigation
challenging
EPA's
initial
revocation
of
the
1­
hour
ozone
NAAQS.
See
docket
number
0479.

Second,
commenters
assert
that
even
if
Congress
had
not
codified
the
1­
hour
ozone
standard
by
enacting
Table
1
and
required
its
implementation
by
enacting
the
provisions
of
Subpart
2,
EPA
may
not
lawfully
revoke
conformity
requirements
currently
in
effect.
Commenters
state
that
any
area
currently
designated
nonattainment
for
ozone
retains
that
designation
until
the
area
has
been
redesignated
to
attainment
pursuant
to
section
107(
d)(
3)(
E),
even
assuming
that
the
1­
hour
standard
could
be
revoked.
Areas
currently
nonattainment
for
ozone,
they
argue,
will
therefore
remain
subject
to
the
conformity
provisions
of
the
Act
as
either
nonattainment
or
redesignated
attainment
areas.
Further,
the
Act
offers
EPA
no
option
to
waive
the
requirement
of
section
176(
c)
when
a
new
standard
is
promulgated,
or
an
existing
standard
is
revised
or
revoked.

Commenters
also
indicate
that
EPA
has
created
by
rulemaking
the
motor
vehicle
emissions
budget
in
a
SIP
as
the
mechanism
for
implementing
the
statutory
requirement
for
consistency
between
transportation
activities
and
the
SIP.
Once
approved,
the
budget
is
part
of
the
applicable
implementation
plan,
and
EPA
may
not
by
fiat
remove
the
budgets
from
a
SIP
or
render
them
nugatory
for
transportation
conformity
purposes.
Commenters
assert
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.
Nor
may
EPA
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
believe
EPA's
obligation
is
to
impose
sanctions
pursuant
to
section
179(
a)(
3).

Third,
commenters
assert
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."

Response:
In
response
to
the
first
point,
EPA
disagrees
with
commenters'
interpretation
of
the
court
decision.
The
Court
could
have
specifically
stated
that
the
1­
hour
ozone
standard
could
not
be
revoked;
it
did
not.
Instead,
the
Court
instructed
EPA
to
find
a
means
of
implementing
the
8­
hour
ozone
standard
that
does
not
ignore
subpart
2,
the
specific
requirements
for
ozone
areas
that
apply
based
on
an
area's
classification.
Elsewhere
in
this
response
to
comment
document
is
a
response
to
legal
questions
concerning
revocation
of
the
1­
hour
ozone
standard.

In
response
to
the
second
point,
Congress
gave
EPA
the
authority
to
create
and
revise
the
standards.
In
CAA
section
109(
d)(
1),
Congress
directed
EPA
to
review
the
standards
every
5
years
and
"
make
such
revisions
in
such
criteria
and
standards
and
promulgate
such
new
standards...."
EPA
interprets
"
make
such
revisions
in...
standards"
to
mean
that
EPA
has
the
authority
to
replace
one
standard
with
another.
We
do
not
believe
that
Congress
intended
to
have
overlapping
standards
every
5
years
for
the
same
pollutant.
If
that
were
the
case,
states
would
be
required
to
152
develop
and
implement
a
SIP
for
each
version
of
the
standard.
Duplicating
these
efforts
would
waste
limited
resources
because
the
goal
of
each
standard
is
the
same:
to
protect
public
health.
We
believe
that
implicit
in
the
authority
to
revise
standards
is
the
authority
to
revoke
a
standard.
Certainly
the
Court
did
not
tell
us
otherwise.
We
need
to
be
able
to
revoke
standards
so
that
states
and
areas
can
move
on
to
implementing
the
new
standard
and
not
have
to
implement
old
standards
in
perpetuity.

EPA
disagrees
with
the
relevance
of
the
third
point
summarized
above,
which
is
that
states
cannot
revise
their
SIPs
to
remove
budgets
without
a
demonstration
that
section
110(
l)
is
met.
However,
states
are
not
revising
their
SIPs
to
remove
budgets.
At
the
point
when
EPA
revokes
the
1­
hour
ozone
standard,
conformity
will
no
longer
apply
for
that
standard
as
a
matter
of
law.
States
are
not
taking
any
action
to
remove
the
budgets
for
the
1­
hour
ozone
standard
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
these
budgets
if
they
exist
for
that
area
in
our
November
5,
2003,
proposed
rule
(
68
FR
62690
­
62729).
Thus,
although
the
1­
hour
budgets
would
remain
in
the
SIP,
areas
previously
designated
nonattainment
or
maintenance
for
the
1­
hour
standard
would
no
longer
be
required
to
show
conformity
under
CAA
section
176(
c)(
5).
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.

Comment:
One
commenter
noted
that
the
proposal
indicates
that
areas
attaining
the
8­
hour
standard
at
the
time
of
designation
would
no
longer
be
subject
to
conformity
requirements
for
the
ozone
standard.
The
commenter
asked
what
effect
would
that
have
on
existing
conformity
SIPs
and
regulations,
whether
approved
or
submitted?
Would
separate
application
and
action
be
necessary
to
repeal
those
SIPs
and
local
rules/
procedures
after
conformity
no
longer
applies?
Response:
Once
the
1­
hour
ozone
standard
is
revoked,
conformity
will
no
longer
be
required
under
Clean
Air
Act
section
176(
c)(
5)
and
40
CFR
93.102(
d)
of
the
conformity
rule
for
areas
that
are
attaining
the
8­
hour
standard.
States
are
not
required
to
take
any
action
to
remove
the
budgets
for
the
1­
hour
ozone
standard
in
their
control
strategy
SIPs
or
maintenance
plans
or
remove
state
and
local
procedures
for
conformity
requirements
for
the
1­
hour
standard
in
conformity
SIPs.
Although
the
1­
hour
SIPs
would
continue
to
remain,
areas
previously
designated
nonattainment
or
maintenance
for
the
1­
hour
standard
would
no
longer
be
required
to
show
conformity
under
the
statute.
Although
the
SIP
may
continue
to
include
regulations
requiring
conformity
in
areas
designated
nonattainment
or
maintenance
for
the
1­
hour
standard,
since
no
areas
would
be
so
designated
such
regulations
would
have
no
effect.

Comment:
The
comments
submitted
by
a
coalition
of
environmental
organizations
rebutted
EPA's
assertion
that
revoking
the
1­
hour
standard
is
necessary
so
that
agencies
can
focus
on
planning
for
the
8­
hour
standard.
Commenters
state
that
neither
the
revocation
of
the
1­
hour
standard
or
the
budgets
is
justified
on
this
basis
with
respect
to
transportation
and
emissions
modeling,
because
under
either
standard,
similar
work
in
establishing
base
year
inventories,
and
future
forecasts
of
travel
and
emissions
must
be
done.
Commenters
state
that
once
the
resources
are
in
place
to
make
future
forecasts,
the
level
of
effort
in
both
time
and
money
to
produce
analyses
to
different
regional
153
boundaries
is
relatively
small,
and
ample
resources
are
available
to
pay
for
the
additional
analyses
needed
to
determine
conformity
to
both
standards.

Response:
While
this
comment
focuses
on
the
resources
necessary
to
determine
conformity
for
both
standards,
EPA
believes
a
discussion
of
resources
should
include
all
aspects
of
attainment
planning.
Under
EPA's
proposal,
With
revocation
of
the
1­
hour
standard,
conformity
will
no
longer
apply
for
that
standard
as
a
matter
of
law.
Therefore,
in
order
for
conformity
to
apply
for
both
standards
as
the
commenter
requests,
both
standards
have
to
be
implemented
at
the
same
time,
i.
e.,
the
1­
hour
standard
would
have
to
be
implemented
in
addition
to
the
8­
hour
standard.
This
would
mean
no
revocation
of
the
standard
and
continuation
of
the
requirement
to
demonstrate
attainment
and
maintenance
of
the
1­
hour
as
well
as
the
8­
hour
standard.
However,
EPA
no
longer
believes
the
1­
hour
ozone
standard
is
adequately
protective
of
public
health.
Further,
EPA
believes
that
it
would
be
a
substantial
increase
in
burden
for
states
to
plan
for
attainment
of
both
standards,
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.
Where
they
are
not
required
by
anti­
backsliding
provisions,
EPA
does
not
believe
that
the
additional
burden
states
would
undertake
in
planning
to
achieve
both
the
1­
hour
and
the
8­
hour
standard
would
result
in
a
significant
benefit
to
public
health
over
attainment
planning
for
the
8­
hour
standard
alone,
especially
in
light
of
the
fact
that
the
1­
hour
standard
is
less
protective
of
public
health.

Comment:
A
number
of
commenters
supported
EPA's
proposal
that
conformity
apply
for
one
standard
at
a
time.
One
commenter
stated
that
determining
conformity
for
two
separate
ozone
standards
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
standards
would
drain
limited
resources
in
transportation
and
environmental
agencies.
One
of
these
commenters
continued
that
demonstrating
conformity
for
two
ozone
standards
could
in
fact
delay
progress,
due
to
the
high
administrative
burdens.
One
commenter
wanted
clarification
that
conformity
would
not
apply
in
1­
hour
nonattainment
areas
after
the
standard
is
revoked.

Several
commenters
suggested
that
EPA
provide
areas
a
choice
in
allowing
the
1­
hour
budgets
to
be
used.
A
couple
of
commenters
thought
that
allowing
8­
hour
ozone
nonattainment
areas
to
use
1­
hour
ozone
budgets
for
conformity
would
provide
continuity
and
eliminate
possible
backsliding.
Some
commenters
added
that
if
the
1­
hour
budgets
are
used,
then
an
area
should
not
also
be
subject
to
the
interim
emissions
tests
(
that
is,
the
build/
no­
build
test
and
the
baseline
year
test).

Response:
EPA
is
maintaining
the
position
in
the
final
rule
for
implementation
of
the
8­
hour
ozone
standard
that
conformity
no
longer
applies
for
the
1­
hour
standard
once
it
is
revoked.
EPA
has
also
proposed
in
its
conformity
rule
that
areas
can
continue
to
use
the
budgets
from
SIPs
that
address
the
1­
hour
standard
for
determining
conformity
to
the
8­
hour
standard,
as
appropriate.
We
also
154
have
specifically
proposed
that
in
areas
where
the
1­
hour
boundary
is
the
same
as,
or
encompasses
the
8­
hour
area
boundary,
the
budget
test
could
be
the
sole
test
needed.
Please
refer
to
the
November
5,
2003,
transportation
conformity
proposal
at
68
FR
62690­
62729
for
further
information.
The
docket
number
for
this
rulemaking
is
OAR­
2003­
0049.

Comment:
One
commenter
preferred
the
first
revocation
option
to
the
second
because
it
seemed
to
the
commenter
to
provide
more
certainty
in
the
conformity
process.
This
commenter
is
concerned
that
Option
2
would
require
that
conformity
be
done
for
both
the
1­
hour
standard
and
the
8­
hour
standard
at
the
same
time,
until
areas
attain
the
1­
hour
standard.
However,
the
commenter
acknowledged
that
if
conformity
does
not
apply
for
both
standards
at
once,
then
option
2
could
be
acceptable.

Response:
EPA
proposed
two
revocation
options
that
differed
in
method
but
not
in
results.
Under
either
revocation
option
proposed,
conformity
would
apply
for
only
one
ozone
standard
at
a
time.

Comment:
One
commenter
recommended
that
EPA
provide
an
option
that
allows
states
to
submit
budgets
for
the
8­
hour
ozone
standard
early
for
conformity
purposes,
and
suspend
the
requirement
to
determine
conformity
under
the
1­
hour
ozone
standard
at
the
time
that
the
8­
hour
budgets
are
determined
to
be
adequate.
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
or
contiguous
to
the
pre­
existing
l­
hour
boundary,
which
would
require
the
new
nonattainment
areas
to
develop
"
rough
draft"
SlPs
that
have
sufficient
detail
to
extract
the
budgets
from
projected
attainment
emission
inventories.

Response:
EPA
did
not
propose
to
revoke
the
1­
hour
standard
earlier
than
1
year
after
designations,
in
part
because
we
did
not
believe
that
areas
would
be
able
to
submit
an
8­
hour
SIP
earlier.
Furthermore,
EPA's
proposal
was
intended
to
align
the
revocation
of
the
1­
hour
standard
with
the
application
of
conformity
requirements
for
the
8­
hour
standard
one
year
after
the
effective
date
of
8­
hour
nonattainment
designations.
EPA
continues
to
believe
it
is
unlikely
that
areas
will
have
adequate
budgets
that
address
the
8­
hour
standard
before
EPA
revokes
the
1­
hour
standard.
Such
budgets
cannot
stand
alone
but
have
to
be
associated
with
adopted
control
measures
and
demonstrations
of
either
attainment
or
reasonable
further
progress,
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
one
year
from
the
effective
date
of
8­
hour
ozone
area
designations,
and
much
less
likely
that
States
have
submitted
them
sufficiently
in
time
for
EPA
to
find
them
adequate
before
the
1­
hour
standard
is
revoked.

Given
these
facts
and
that
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
standard,
nor
will
EPA
require
8­
hour
areas
to
expedite
development
of
their
8­
hour
SIP
for
this
purpose.
All
areas
must
turn
in
SIPs
as
soon
as
practicable,
and
EPA
wants
States
to
develop
quality
SIPs
to
support
attainment
demonstrations
and
conformity
155
determinations.
Prior
to
the
revocation
of
the
1­
hour
standard,
new
transportation
plan
and
TIPs
must
conform
to
the
applicable
SIP
budgets
for
the
1­
hour
standard.

NSR
Under
the
1­
Hour
Standard
Comment:
Some
commenters
believed
that
the
NSR
requirements
under
the
8­
hour
standard
should
apply
at
the
time
that
the
1­
hour
standard
is
revoked.
One
of
the
commenters
noted
that
the
major
stationary
source
thresholds
and
offset
ratios
under
the
8­
hour
NAAQS
classifications
would
apply
for
major
NSR
purposes
once
the
1­
hour
NAAQS
is
revoked.

Some
commenters
more
generally
noted
that
with
a
more
protective
8­
hour
standard,
keeping
the
1­
hour
requirements
in
place
was
unnecessary.

Comment:
Other
commenters
preferred
that
the
1­
hour
NSR
requirements
no
longer
apply,
provided
there
was
some
type
of
demonstration
regarding
the
8­
hour
standard.
One
commenter
advocated
that
major
source
thresholds
under
the
8­
hour
classifications
apply
instead
of
1­
hour
classifications
where
the
8­
hour
classifications
are
less
restrictive.
According
to
the
commenter,
however,
this
would
only
be
allowed
if
a
demonstration
can
be
made
that
the
area
has
equivalent
or
more
stringent
thresholds
in
place
in
other
forms.
The
commenter
stated
that
this
would
allow
areas
with
BACT
and
offset
thresholds
at
or
below
the
federal
NSR
major
source
program
to
avoid
extraneous
and
administrative
requirements.

Some
commenters
believed
that
a
SIP
measure
under
the
1­
hour
standard
could
be
modified
or
removed
if
a
State
demonstrates
that
such
modification
or
removal
will
not
interfere
with
attainment
or
maintenance
of
the
8­
hour
standard.
Others
more
generally
agreed
that
measures
that
do
not
assist
in
attaining
the
8­
hour
standard
should
be
removed.

Several
commenters
asserted
that
ozone
emissions
would
continue
to
decline
regardless
of
how
major
NSR
applies
under
the
8­
hour
standard,
due
to
other
programs
such
as
the
NO
x
SIP
call,
the
Acid
Rain
program
under
Title
IV,
SIP
revisions,
and
bump­
ups.
These
commenters
further
noted
that
many
sources
are
still
in
the
process
of
installing
controls
to
meet
the
1­
hour
standard,
and
that
emission
reductions
due
to
those
controls
have
not
been
realized.

Comment:
Although
they
differed
on
when
the
1­
hour
NSR
requirements
should
be
removed,
some
commenters
believed
that
the
1­
hour
NSR
requirements
should
remain
in
effect
after
revocation
of
the
1­
hour
standard.
Some
commenters
believed
the
1­
hour
NSR
requirements
should
remain
in
effect
until
the
1­
hour
NAAQS
is
achieved.
Some
commenters
agreed
with
our
proposal
that
to
the
extent
higher
major
stationary
source
thresholds
and
offset
ratios
apply
under
the
1­
hour
standard,
those
requirements
should
remain
in
place
under
the
8­
hour
standard.

Some
commenters
believed
the
1­
hour
NSR
requirements
should
remain
in
effect
until
the
8­
hour
NAAQS
is
achieved.
Other
commenters
believed
the
1­
hour
NSR
requirements
should
remain
in
effect
until
both
the
1­
hour
NAAQS
and
8­
hour
NAAQS
are
achieved.
One
commenter
is
156
concerned
that
there
not
be
a
window
during
which
new
sources
of
pollution
can
be
installed
without
meeting
standards
that
were
previously
in
place
under
the
l­
hour
rule.
If
a
region
faced
more
stringent
requirements
under
the
l­
hour
standard
than
they
initially
would
under
the
new
standard,
those
more
stringent
requirements
should
remain
in
place
until
the
area
has
attained
both
the
1­
hour
and
the
8­
hour
health
standards.
Likewise,
the
new
8­
hour
standard
should
not
serve
as
a
pass
granting
extensions
to
air
quality
improvement
measures
that
should
have
been
implemented
under
the
l­
hour
standard.

Response:
We
agree
with
commenters
who
stated
that
it
is
inappropriate
to
mandate
that
a
State
continue
to
apply
1­
hour
nonattainment
NSR
requirements
to
areas
that
are
designated
nonattainment
for
the
8­
hour
standard.
Therefore,
the
final
rule
specifies
that,
at
the
time
that
the
1­
hour
NAAQS
is
revoked,
a
State
is
no
longer
required
to
retain
a
nonattainment
NSR
program
in
its
SIP
based
on
the
requirements
that
applied
by
virtue
of
the
area's
previous
classification
under
the
1­
hour
standard.
Instead,
SIPs
will
be
required
to
include
an
NSR
program
based
on
the
area's
designation
and
classification
under
the
8­
hour
standard.

We
further
agree
with
commenters
that
a
finding
that
8­
hour
NSR
will
not
interfere
with
the
State's
ability
to
reach
attainment
of
the
8­
hour
standard
is
an
important
consideration.
Accordingly,
our
final
rules
provide
that
a
State
may
request
approval
of
a
SIP
revision
to
remove
its
1­
hour
nonattainment
NSR
program
from
its
SIP
and
replace
it
with
a
NSR
program
based
on
its
8­
hour
classification.
We
will
approve
such
changes
to
a
State's
SIP
because
we
have
determined
based
on
section
110(
l)
of
the
Act
that
such
changes
will
not
interfere
with
any
State's
ability
to
reach
attainment
of
the
8­
hour
standard
and
will
be
consistent
with
reasonable
further
progress.
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
despite
future
economic
growth.

We
also
agree
with
those
commenters
who
noted
that
ozone
emissions
are
declining
due
to
various
control
measures
in
place,
such
as
the
NO
x
SIP
call,
and
that
such
controls
are
also
achieving
reductions
of
ozone
precursors.
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
22For
a
more
complete
discussion
of
NSR
as
a
growth
measure,
see
the
promulgation
preamble
at
V.
C.
5.

157
measure.
22
An
8­
hour
NSR
program,
including
LAER
and
offsets
for
major
stationary
sources,
will
be
implemented
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.

For
the
reasons
stated
above,
we
are
unpersuaded
by
commenters
who
state
that
1­
hour
NSR
requirements
should
be
retained
after
the
1­
hour
NAAQS
is
revoked,
either
until
the
1­
hour
or
8­
hour
NAAQS
is
attained.

NSR
when
Area
is
redesignated
attainment
for
1­
hour
standard
Comment:
One
commenter
agreed
that
areas
that
were
designated
non­
attainment
for
the
1­
hour
standard,
and
have
been
redesignated
to
attainment
for
the
1­
hour
standard,
would
not
need
to
revert
back
to
the
NSR
program
it
had
for
purposes
of
the
1­
hour
standard.

***********************
Does
the
requirement
for
continued
implementation
of
the
obligations
addressed
above
expire
at
some
point?
(
Section
VI.
C.
4
of
proposed
rule;
see
68
FR
32824;
section
51.905(
b)
of
both
draft
regulatory
text
and
final
rule.)

Comments
from
June
2,
2003
proposal:

Several
commenters
supported
Option
1
(
mandatory
measures
can
be
shifted
to
contingency
measures
when
the
area
achieves
the
level
of
the
1­
hour
standard).
One
commenter
commented
that
this
option
gives
the
states
flexibility
to
move
control
measures
to
the
contingency
plan
as
warranted.

Several
commenters
supported
Option
2
(
mandatory
measures
can
be
shifted
to
contingency
measures
when
the
area
attains
the
8­
hour
standard).
One
commenter
commented
that
this
approach
would
allow
EPA
to
evaluate
an
areas
air
quality
programs
and
obligations
in
detail
during
the
approval
of
a
maintenance
plan
under
CAA
Section
175A
for
the
8­
hour
ozone
NAAQS.
One
commenter
said
that
this
option
allows
states
to
continue
to
focus
on
the
158
8­
hour
standard.
One
commenter
recommended
that
to
ensure
no
backsliding,
EPA
should
modify
the
classification
system
for
8­
hour
nonattainment
areas
so
as
to
avoid
placing
most
areas
into
lower
classifications
than
under
the
1­
hour
standard.
Alternatively,
EPA
should
require
that
control
requirements
specified
in
the
Clean
Air
Act
for
1­
hour
nonattainment
areas
continue
in
effect
at
least
until
such
areas
attain
the
eight
hour
standard.

Several
commenters
supported
options
other
than
Option
1
or
2.
One
commenter
suggested
the
time
for
the
shifting
occur
when
the
area
achieves
both
standards.
Another
commenter
recommended
that
the
rule
should
only
allow
States
to
move
measures
to
contingency
measures
if
the
State
can
demonstrate
that
such
a
move
will
not
interfere
with
attainment
or
maintenance
of
the
8­
hour
standard.

Another
commenter
recommended
that
1­
hr
requirements
remain
in
place
only
to
the
extent
that
they
will
help
with
attainment
of
the
8­
hr
standard.

Comments
from
draft
regulatory
text:

Comment:
One
comment
opposed
the
provision,
and
one
commenter
was
unclear
about
the
provision,
stating
only
that
1­
hr
mandatory
SIP
measures
that
do
not
help
toward
attainment
of
the
8­
hour
standard
should
not
be
continued.
One
other
commenter
supported
the
provision.
One
commenter
supports
backsliding
provisions
to
the
extent
that
these
provisions
help
an
area
attain
and
maintain
the
8­
hour
standard.
Once
the
1­
hour
standard
is
revoked
for
an
area,
there
should
no
longer
be
requirements
that
are
in
place
solely
to
achieve
attainment
of
the
1­
hour
NAAQS;
attainment
and
maintenance
of
the
8­
hour
NAAQS
should
be
the
driving
force
behind
SIP
requirements.

Response:
As
noted
in
the
June
2,
2003
proposed
rulemaking,
the
obligations
for
the
1­
hour
ozone
standard
under
subpart
2
were
imposed
"
by
operation
of
law"
based
on
an
area's
classification
and
therefore
must
remain
in
force
until
the
area
attains
the
applicable
ozone
standard.
We
have
decided
that
the
point
in
time
when
such
measures
may
be
relegated
to
contingency
measures
is
when
the
area
attains
the
8­
hour
standard
and
is
redesignated
to
attainment.
Also
as
noted
in
the
June
2,
2003
proposal,
if
implementation
any
particular
subpart
2
mandatory
measure
would
cause
an
"
absurd
result,"
in
a
particular
area,
we
proposed
to
entertain
a
request
to
waive
the
requirement
for
the
area.

Comment:
Regarding
this
provision,
one
commenter
recommends
that
if
the
1­
hour
standards
are
being
met
and
the
obligations
not
used
or
required,
that
they
be
allowed
to
be
applied
to
the
8­
hour
SIP
as
a
control
measure
or
any
other
way
needed
to
obtain
emission
reductions
required
under
the
new
standard.

Response:
There
is
nothing
in
our
proposed
or
final
rule
that
would
disallow
the
use
of
such
measures
in
the
way
recommended.
159
Comment:
One
commenter
notes
that
the
phrase
"
attains
the
level
of
the
1­
hour
NAAQS"
raises
questions
concerning
EPA's
intent.
Three
years
of
data
are
needed
to
determine
whether
an
area's
air
quality
meets
the
one­
hour
standard.
Part
50,
App.
H.
Thus,
mere
short­
term
occurrences
of
air
quality
at
or
below
"
the
level"
of
the
standard
does
not
demonstrate
air
quality
meeting
the
standard.
The
commenter
also
notes
that,
even
if
an
area
does
have
three
years
of
air
quality
data
meeting
the
one­
hour
standard,
EPA
lacks
authority
to
jettison
the
one­
hour
requirements.
Those
requirements
are
textually
applicable,
and
also
serve
an
important
role
in
achieving
compliance
with
the
eight
hour
standard.
The
commenter
notes
that
areas
meeting
the
one­
hour
standard
may
still
have
air
quality
violating
the
8­
hour
standard.

Response:
We
recognize
that
three
years
of
data
are
needed
to
determine
if
an
area
attains
the
standard,
and
the
proposal
was
not
intended
to
do
otherwise.
However,
this
point
is
now
moot
since
our
final
rule
uses
attainment
of
the
8­
hour
standard
as
the
point
in
time
when
areas
may
relegate
mandatory
control
measures
to
contingency
measure
status.
160
E.
WHAT
ASPECTS
OF
TRANSPORTATION
CONFORMITY
AND
THE
8­
HOUR
OZONE
STANDARD
ARE
ADDRESSED
IN
THIS
PROPOSAL?

This
subject
was
discussed
in
section
VI.
M.
of
the
June
2,
2003,
notice
(
68
FR
32841).
However,
we
did
not
propose
any
rule
on
transportation
conformity
under
the
8­
hour
standard.
We
did
receive
comments,
however,
which
are
discussed
below.

Comment:
Several
commenters
specifically
called
for,
or
supported
EPA's
intention
to
propose,
new
conformity
regulations.
Among
the
reasons
cited
were
that
the
rules
promulgated
after
the
passage
of
the
Clean
Air
Act
Amendments
of
1990
are
not
adequate
to
address
the
problems
associated
with
the
implementation
of
the
new
ozone
and
particulate
matter
standards;
and
that
the
proposed
new
standard
imposes
a
significant
burden
on
planning
officials,
especially
in
those
areas
that
are
already
very
close
to
attaining
the
standard.
One
commenter
stated
"
EPA
needs
to
seriously
consider
new
regulations
or
urge
Congress
to
act
through
legislation
to
avoid
these
senseless
mandates."
This
commenter
also
stated
that
EPA
needs
to
address
the
transition
period
between
the
1­
hour
and
8­
hour
standard
to
help
transportation
planners
avoid
having
to
use
the
arbitrary
build/
no­
build
test
to
comply
with
transportation
conformity
requirements.
Other
commenters
suggested
that
updates
to
the
conformity
tests
are
necessary,
and
indicated
the
regulation
needs
to
provide
flexibility
as
to
which
conformity
tests
will
be
allowed
prior
to
the
establishment
of
the
8­
hour
ozone
budgets
in
the
new
SIPs.

Several
commenters
indicated
their
desire
to
comment
on
the
proposed
transportation
conformity
rule,
or
their
willingness
to
work
with
EPA
in
the
development
of
that
rule.
Commenters
committed
to
identify
ways
to
develop
a
conformity
process
that
would
have
the
potential
to
add
value,
especially
in
areas
under
subpart
1,
and
yet
stay
focused
on
the
intent
of
conformity:
to
ensure
consistency
with
SIPs.
One
commenter
emphasized
the
importance
of
clarity
and
consistency
in
the
conformity
rulemaking.

Response:
In
our
November
5,
2003,
transportation
conformity
proposal
(
68
FR
62690),
EPA
proposed
some
changes
to
the
transportation
conformity
regulations
to
specifically
address
the
new
8­
hour
ozone
and
fine
particulate
matter
air
quality
standards.
EPA
has
endeavored
to
be
both
clear
and
consistent
while
offering
as
much
flexibility
as
possible
to
meet
statutory
requirements
in
our
November
5,
2003,
transportation
conformity
proposal.
This
proposal
includes
options
for
determining
conformity
in
the
transition
period
between
the
point
when
conformity
applies
and
the
point
when
SIP
budgets
are
available
for
the
new
standards.
We
proposed
to
allow
8­
hour
areas
with
1­
hour
ozone
SIPs
to
use
the
budgets
from
their
1­
hour
SIPs
to
determine
conformity
with
the
8­
hour
standard
where
appropriate.
Please
refer
to
this
proposal
for
additional
details;
the
docket
number
for
this
rulemaking
is
OAR­
2003­
0049.

EPA
developed
the
transportation
conformity
proposal
with
the
input
and
help
of
transportation
planners,
air
quality
planners,
and
transportation
and
environmental
interest
organizations.
We
appreciate
the
willingness
of
these
agencies
to
work
with
us
in
developing
the
rule
and
recognize
the
value
of
their
input
on
the
proposed
and
final
regulations.
161
Comment:
Some
commenters
suggested
that
EPA
provide
flexibility
in
transportation
conformity
for
areas
that
are
overwhelmingly
affected
by
transport
from
other
areas,
since
these
areas
have
limited
ability
to
implement
local
measures
to
reduce
ozone
precursors.
Two
of
these
commenters
added
that
conformity
flexibility
is
needed
for
all
subpart
1
areas.
Commenters
suggested
that
EPA
establish
a
de
minimis
provision,
reopen
the
Early
Action
Compact
program
or
develop
something
similar,
or
enable
these
areas
to
use
pre­
1990
conformity
procedures,
because
methods
such
as
these
would
achieve
the
goal
of
attainment
without
placing
an
unnecessary
burden
on
federal,
state,
or
local
planning
agencies.

In
addition
to
the
commenters
who
suggested
flexibility
for
transport
areas,
two
commenters
suggested
that
a
de
minimis
test
be
developed
for
all
areas
that
implement
transportation
conformity,
similar
to
the
de
minimis
test
used
in
the
general
conformity
program.
These
commenters
added
that
such
a
test
would
reduce
administrative
burden
and
create
parity
in
conformity
requirements
between
stationary
and
mobile
sources.

Another
commenter
believed
that
implementing
conformity
in
new
counties
for
the
8­
hour
ozone
standard
requires
a
different
approach
than
the
transition
rules
put
into
place
when
the
existing
conformity
regulation
was
first
promulgated
following
passage
of
the
Clean
Air
Act
Amendments
of
1990.
[
OAR­
2003­
0079­
0298,
0209,
0213,
0205,
0161,
0167,
0343]

Response:
EPA
cannot
allow
areas
affected
by
transport,
or
subpart
1
areas,
to
use
pre­
1990
conformity
procedures.
The
Clean
Air
Act
is
clear
that
the
requirements
of
section
176(
c)
 
including
a
determination
that
emissions
expected
from
implementation
of
transportation
plans
and
TIP
are
consistent
with
estimates
of
emissions
in
the
SIP
 
apply
to
all
areas
designated
nonattainment
and
areas
designated
attainment
subject
to
a
section
175A
maintenance
plan.

However,
EPA
has
proposed
flexibility
in
meeting
statutory
requirements
for
transportation
conformity
for
all
areas,
including
those
areas
affected
by
transport,
and
those
classified
in
subpart
1,
in
our
November
5,
2003,
proposed
rulemaking
(
68
FR
62690­
62729).
Please
refer
to
this
proposal
for
additional
details.

EPA
does
have
a
type
of
de
minimis
provision
for
the
transportation
conformity
rule.
Since
EPA
promulgated
the
original
conformity
rule
in
1993,
we
have
not
required
areas
with
insignificant
motor
vehicle
emissions
to
conduct
a
regional
emissions
analysis
for
a
pollutant
or
precursor
that
EPA
has
determined
is
insignificant
to
an
area's
air
quality
problem.
In
the
November
5,
2003,
transportation
conformity
proposal
for
the
new
8­
hour
ozone
and
fine
particulate
matter
standards,
we
have
proposed
two
changes
to
incorporate
our
existing
insignificance
policy
in
the
conformity
rule;
please
refer
to
the
discussion
at
68
FR
62715.

Comment:
One
commenter
representing
metropolitan
planning
organizations
supported
using
the
motor
vehicle
emissions
inventories
for
the
year
2002
as
de
facto
interim
budgets
for
conformity
determinations,
before
8­
hour
areas
have
SIPs
for
the
8­
hour
standard.
This
commenter
also
suggested
that
the
motor
vehicle
emissions
inventory
could
be
decreased
3%
per
year
between
the
162
base
year
of
2002
and
the
attainment
year,
to
represent
"
reasonable
further
progress"
for
the
transportation
sector.

Response:
As
these
comments
relate
to
transportation
conformity
tests,
EPA
will
address
them
in
the
context
of
the
transportation
conformity
rule
amendments
we
proposed
for
the
new
8­
hour
ozone
and
fine
particulate
matter
standards
on
November
5,
2003
(
68
FR
62690).
Therefore,
EPA
will
respond
to
these
comments
in
full
in
the
response
to
comments
document
we
prepare
for
the
conformity
rulemaking.
Please
refer
to
docket
OAR­
2003­
0049
for
a
complete
response
to
these
comments.

EPA
understands
the
commenter's
point
that
the
2002
inventory
is
similar
to
a
budget,
but
does
not
agree
that
the
2002
inventory
could
be
used
as
a
"
de
facto
budget"
for
every
area.
The
current
conformity
rule
allows
marginal
and
below
ozone
areas
to
choose
between
interim
emissions
tests,
which
are
the
baseline
year
test
and
the
build/
no­
build
test.
We
have
proposed
changes
to
both
of
these
tests
in
the
November
5,
2003,
transportation
conformity
proposal
(
68
FR
62690);
we
have
proposed
that
the
baseline
year
for
the
areas
designated
under
the
8­
hour
standard
would
be
2002.
For
marginal
and
below
areas
that
choose
the
baseline
year
test,
the
baseline
year
inventory
does
serve
a
similar
purpose
to
that
of
a
budget.
However,
the
current
conformity
rule
requires
both
the
baseline
year
test
and
the
build/
no­
build
test
for
moderate
and
above
ozone
areas.
We
proposed
several
choices
for
these
areas
in
the
November
5,
2003,
proposed
rule,
but
at
this
point,
we
have
not
concluded
that
the
baseline
year
test
alone
serves
the
same
purpose
as
a
budget
for
these
areas.
We
will
be
responding
to
this
issue
in
the
context
of
the
rulemaking
on
conformity
tests
for
the
new
standards.

EPA
appreciates
the
commenter's
idea
to
decrease
inventories
incrementally
for
the
purpose
of
the
baseline
year
conformity
test.
However,
given
that
EPA
did
not
propose
this
idea
in
the
November
5,
2003,
transportation
conformity
proposal,
it
is
unlikely
that
we
will
be
able
to
include
it
in
the
final
rule.
EPA
will
consider
this
issue
in
the
context
of
the
proposed
transportation
conformity
rule
for
the
new
standards.

Comment:
Several
commenters
on
both
the
transportation
and
air
quality
planning
sides
of
the
conformity
process
indicated
that
it
is
difficult
to
comment
on
the
implementation
proposal
without
the
proposal
for
updating
the
transportation
conformity
regulations.
Commenters
stated
that
"
we
all
stand
at
a
distinct
disadvantage
in
making
informed
decisions
on
resource
allocation
and
priorities
over
the
coming
months
and
as
the
8­
hour
standard
is
implemented."
These
commenters
stated
that
transportation
conformity
is
an
essential
component
of
the
new
standard,
and
that
it
is
critical
for
EPA
to
develop
a
proposed
rule
as
quickly
as
possible
on
how
the
transportation
conformity
requirements
would
apply
under
the
8­
hour
ozone
standard.
A
couple
of
commenters
advocated
that
EPA
should
have
its
conformity
proposal
done
by
the
finalization
of
the
8­
hour
ozone
designations.

Response:
EPA
agrees
it
was
necessary
to
complete
rulemaking
on
the
transportation
conformity
rule
revisions
as
soon
as
possible;
our
transportation
conformity
proposal,
which
addresses
163
conformity
in
areas
that
will
be
designated
for
the
new
8­
hour
ozone
and
the
fine
particulate
matter
standards,
was
published
on
November
5,
2003
(
68
FR
62690
­
62729).
EPA
is
currently
planning
to
take
final
action
on
the
proposed
changes
to
the
conformity
rule
in
the
Spring
of
2004,
in
time
to
implement
conformity
under
the
8­
hour
standard.

Comment:
One
commenter
was
concerned
that
states
were
required
to
submit
proposed
nonattainment
area
designations
for
the
8­
hour
ozone
standard
before
the
8­
hour
implementation
rule
was
finalized
and
before
the
transportation
conformity
rule
for
implementing
the
8­
hour
standard
was
proposed.
The
commenter
indicated
that
states
needed
this
regulatory
guidance
to
make
fully
informed
decisions
regarding
the
boundaries
and
classification
of
the
proposed
8­
hour
nonattainment
areas.
EPA
should
have
published
this
guidance
with
sufficient
lead
time
for
the
states
to
understand
and
use
this
information
in
their
nonattainment
designation
proposals.

Response:
EPA
acknowledges
that
the
regulatory
text
for
the
8­
hour
implementation
rule
and
the
transportation
conformity
proposal
were
not
available
at
the
time
states
made
boundary
recommendations.
The
implementation
rules,
however,
are
not
relevant
for
determining
whether
an
area
is
violating
the
8­
hour
ozone
NAAQS
or
is
a
nearby
area
contributing
to
a
violation
of
the
8­
hour
NAAQS.

EPA
notes
that
EPA
believes
states
had
sufficient
information
to
make
boundary
recommendations.
At
the
point
when
states
had
to
make
boundary
recommendations,
the
8­
hour
implementation
proposal
had
been
published
and
EPA
had
done
extensive
outreach
with
states,
both
to
offer
opportunity
for
input
and
to
ensure
that
the
options
EPA
proposed
were
communicated.
In
addition,
EPA
provided
a
significant
amount
of
outreach
to
states
and
conformity
implementers
in
developing
the
conformity
proposal
for
the
new
standards,
which
occurred
prior
to
states
having
to
make
boundary
recommendations.
Therefore,
we
believe
states
had
a
reasonable
sense
of
what
would
eventually
be
in
both
rules.
Furthermore,
the
conformity
regulations
have
been
around
for
years
and
the
program
is
familiar
for
the
majority
of
states
that
will
have
8­
hour
ozone
nonattainment
areas.

EPA
would
also
like
to
acknowledge
that
states
should
have
based
their
boundary
recommendations
on
relevant
considerations
related
to
air
quality
and
contribution
to
a
violation
of
the
standard
as
defined
by
the
statute.
The
nature
of
the
requirements
for
attainment
planning
and
conformity
should
not
influence
the
determination
of
proper
boundaries
for
nonattainment
areas.

Comment:
The
proposal
states,
"
no
changes
in
transportation
conformity
are
proposed."
However,
the
rule
proposes
to
change
when
conformity
would
apply,
and
discusses
an
option
under
the
New
Source
Review
program
(
i.
e.,
a
"
Clean
Air
Development
Community"
(
CADC))
that
would
affect
transportation
conformity.

Response:
The
8­
hour
implementation
proposal
stated
"
we
are
not
proposing
changes
to
the
transportation
conformity
rule
in
this
proposed
rulemaking"
(
68
FR
32841),
and
we
did
not.
Instead,
we
discussed
how
the
existing
statutory
1­
year
grace
period
for
conformity
in
newly
164
designated
areas
would
apply
in
different
areas
and
the
connection
between
this
grace
period
and
the
revocation
of
the
1­
hour
ozone
standard.
The
proposal
also
describes
an
option
under
the
New
Source
Review
program,
(
the
CADC
option),
which
would
affect
conformity
implementation
but
would
not
require
a
change
in
the
conformity
regulations.
We
specifically
included
a
question
and
answer
in
the
conformity
portion
of
the
preamble
to
point
readers
interested
in
conformity
to
the
description
of
the
CADC
option.
Currently,
EPA
does
not
intend
to
proceed
with
this
proposed
option.

VI.
M.
4.
When
Does
Transportation
Conformity
Apply
to
8­
hour
Ozone
Nonattainment
Areas
Comment:
One
commenter
questioned
whether
it
would
be
possible
to
avoid
having
to
do
a
conformity
determination
in
both
2004
and
2005.
This
area
is
scheduled
to
complete
a
new
conformity
determination
in
early
2004
using
the
1­
hour
budgets.
According
to
the
proposed
8­
hour
implementation
rules,
this
new
conformity
determination
will
apply
until
spring
of
2005,
when
conformity
under
the
8­
hour
standard
will
apply.
Given
that
this
area
would
be
using
the
1­
hour
budgets
for
conformity
under
the
8­
hour
standard,
could
the
area
move
directly
to
the
8­
hour
conformity
determination
to
avoid
the
time
and
expense
of
having
to
determine
conformity
twice?

Response:
In
the
development
of
the
final
transportation
conformity
rule
for
the
new
air
quality
standards,
EPA
can
consider
the
question
at
the
heart
of
this
comment:
whether
an
area
using
1­
hour
budgets
for
8­
hour
conformity
has
to
redetermine
conformity
by
the
end
of
the
grace
period
if
it
has
recently
completed
a
conformity
determination
for
the
1­
hour
standard,
and
the
geographic
boundaries
of
the
8­
hour
area
and
the
1­
hour
area
are
identical.
EPA
preliminarily
believes
that
the
commenter's
concerns
can
be
addressed,
and
we
will
address
this
issue
in
our
final
conformity
rule
for
the
new
standards.

Comment:
Several
commenters
recommended
that
EPA
defer
the
implementation
of
mandatory
measures,
such
as
new
source
review
and
transportation
conformity,
until
2007
in
those
areas
that
will
meet
the
8­
hour
ozone
standard
by
that
date.
This
is
three
years
following
the
implementation
of
the
NOx
SIP
Call.
If
the
area
fails
to
comply
with
the
8­
hour
ozone
standard
by
the
close
of
the
2007
ozone
season,
these
measures
would
immediately
go
into
effect.
If
mandates
for
these
areas
are
unavoidable,
we
believe
that
EPA
should
establish
a
less
stringent
form
of
new
source
review
and
transportation
conformity.

Response:
Clean
Air
Action
section
176(
c)(
6)
provides
a
one­
year
grace
period
before
conformity
applies
for
a
given
pollutant
and
air
quality
standard.
EPA
believes
that
this
statutory
language
precludes
EPA
from
extending
the
conformity
grace
period
beyond
one
year
for
new
8­
hour
ozone
nonattainment
areas.
On
November
5,
2003,
EPA
proposed
several
options
for
implementing
the
transportation
conformity
requirements
under
the
new
air
quality
standards,
including
several
options
that
would
provide
additional
flexibility
in
the
time
period
before
8­
hour
ozone
SIPs
are
submitted.
We
will
be
considering
comments
received
on
this
proposal
as
we
develop
the
final
transportation
rule
for
the
new
standards.
165
VI.
M.
6.
How
does
the
1­
year
grace
period
apply
in
"
donut'`
areas?

Comment:
Several
commenters
were
concerned
that
EPA
was
proposing
changes
for
how
conformity
is
to
be
determined
in
so­
called
"
donut
areas."
Donut
areas
are
those
areas
within
a
nonattainment
area's
boundary
that
are
outside
of
the
area
covered
by
a
metropolitan
planning
organization
(
MPO).
The
current
conformity
rule
and
DOT's
metropolitan
planning
regulations
require
cooperative
planning
and
analysis
between
the
MPO
and
the
State
department
of
transportation.
Commenters
were
concerned
that
the
preamble
indicated
that
the
MPO
was
solely
responsible
for
the
transportation
conformity
analysis
in
a
donut
area.
Commenters
recommended
any
change
with
regard
to
whom
is
responsible
for
conformity
in
donut
areas
be
removed
from
this
proposed
rulemaking.

Response:
EPA
did
not
intend
to
propose
any
change
with
regard
to
the
agencies
that
are
responsible
for
determining
conformity
in
donut
areas.
We
agree
with
the
commenters
that
the
current
regulations
regarding
donut
areas
are
appropriate
for
8­
hour
ozone
areas,
that
is,
that
consultation
processes
need
to
include
a
process
for
MPOs
and
the
state
departments
of
transportation
or
other
relevant
agencies
to
determine
conformity
in
donut
areas.

Miscellaneous
Comment:
One
commenter
requests
that
EPA
retract
the
memorandum
dated
April
19,
2000,
the
National
Memorandum
of
Understanding
Between
the
U.
S.
Department
of
Transportation
and
the
U.
S.
Environmental
Protection
Agency.
Appendix
A
of
this
memorandum
created
the
requirements
for
interim
plans
and
transportation
improvement
programs
(
TIPs).
The
requirement
for
interim
plans
and
TIPs
was
reiterated
in
the
federal
Department
of
Transportation's
January
2,
2002,
memorandum
titled,
"
Revised
Guidance
for
Implementing
the
March
1999
Circuit
Court
Decision
Affecting
Transportation
Conformity,"
and
in
the
February
7,
2002,
Federal
Register
notice
that
published
this
guidance,
but
public
comments
were
never
solicited
on
this
requirement.

Response:
EPA
has
no
intention
of
retracting
the
memo
mentioned
by
the
commenter.
This
joint
memorandum
of
understanding
(
MOU)
between
EPA
and
DOT
establishes
the
administrative
procedures
that
EPA
and
DOT
will
follow
when
a
conformity
lapse
is
imminent,
and
ensures
the
proper
implementation
of
the
existing
transportation
conformity
rule's
provisions
through
better
and
more
efficient
EPA
and
DOT
consultation.

We
do
not
believe
that
notice
and
comment
was
appropriate
for
this
memo
or
its
attachment.
EPA
and
DOT
did
not
create
a
new
requirement
for
interim
plans
and
TIPs
in
the
attachment
to
this
memo.
Federal
law
requires
that
projects
be
in
a
plan
and
TIP
to
receive
title
23
and
title
49
funds.
The
attachment
to
this
memo
simply
clarified
an
existing
regulation
that
allows
areas
that
do
not
have
a
conforming
plan
and
TIP
to
proceed
with
new
transportation
control
measures
through
a
mechanism
to
facilitate
federal
implementation
of
those
projects
that
are
not
subject
to
conformity
requirements.
166
EPA
also
notes
that
this
comment
regarding
the
MOU
is
outside
the
scope
of
this
rulemaking.

Comment:
A
coalition
of
environmental
groups
requested
that
EPA
and
DOT
promptly
issue
long­
promised
additional
model
guidance
and
regulations
to
assure
that
nonattainment
areas
properly
account
for
induced
land
use
and
traffic
effects
in
conformity
analysis
and
SIP
transportation
modeling.
EPA
should
also
take
steps
in
the
8­
hour
ozone
implementation
framework
to
ensure
better
analysis
tools
and
assumptions
are
used
by
the
agency
and
by
DOT
to
support
preparation
of
SIPs
and
conformity
determinations.

Response:
Modeling
guidance
for
conformity
implementation
was
not
a
topic
covered
by
this
rulemaking.
In
2001,
EPA
and
DOT
issued
joint
guidance
on
the
appropriate
information
to
use
in
modeling
(
January
18,
2001,
Memorandum
entitled,
"
Use
of
Latest
Planning
Assumptions
in
Conformity
Determinations").
EPA
and
DOT
remain
committed
to
facilitating
information
exchange
on
advancements
in
modeling,
and
will
work
with
stakeholders
as
appropriate
to
improve
the
state
of
the
practice
of
modeling.

Comment:
EPA
needs
to
clarify
when
conformity
applies
for
the
8­
hour
ozone
standard,
including
the
effective
date.
This
commenter
recommended
that
EPA
seek
legislation
to
ensure
that
the
8­
hour
conformity
requirements
occur
in
new
nonattainment
areas
six
months
after
EPA
finds
8­
hour
SIP
budgets
adequate.
Additionally,
the
commenter
recommended
that
the
areas
currently
in
nonattainment
for
the
l­
hour
standard
continue
conformity
requirements
for
existing
nonattainment
areas
until
the
new
8­
hour
conformity
requirements
take
effect.

Response:
Since
the
legislation
suggested
by
the
commenter
does
not
exist
at
this
time,
EPA
is
finalizing
its
proposal
to
revoke
the
1­
hour
ozone
standard
one
year
after
the
effective
date
of
the
8­
hour
ozone
designations.
Conformity
applies
for
the
8­
hour
ozone
standard
one
year
after
the
effective
date
of
EPA's
initial
nonattainment
designation
for
a
given
pollutant
and
standard,
consistent
with
Clean
Air
Act
section
176(
c)(
6)
and
§
93.102(
d)
of
the
conformity
regulation.
Conformity
will
continue
for
the
1­
hour
standard
until
the
1­
hour
standard
is
revoked
one
year
after
the
effective
date
for
8­
hour
designations
(
at
which
time
conformity
requirements
for
the
8­
hour
standard
take
effect).
EPA
does
not
believe
legislation
requiring
conformity
within
6
months
of
an
adequate
budget
is
necessary
or
appropriate
since
conformity
is
required
by
the
statute
and
under
EPA's
regulations
before
any
new
transportation
activity
occurs,
and
within
18
months
of
an
adequate
budget.
EPA
believes
that
areas
need
significantly
more
time
than
6
months
to
complete
a
conformity
determination
after
a
new
adequate
SIP
budget.
167
F.
WHAT
REQUIREMENTS
FOR
GENERAL
CONFORMITY
SHOULD
APPLY
TO
THE
8­
HOUR
OZONE
STANDARD?

This
subject
was
discussed
in
section
VI.
N.
of
the
June
2,
2003,
notice
(
68
FR
32842).
However,
we
did
not
propose
any
rule
on
transportation
conformity
under
the
8­
hour
standard.
We
did
receive
comments,
however,
which
are
discussed
below.

VI.
N.
What
requirements
for
General
Conformity
should
apply
to
the
8­
hour
ozone
standard?

Comment:
One
commenter
agrees
with
EPA's
explanation
of
how
the
General
Conformity
rule
would
apply
during
the
transition
from
the
1­
hour
to
the
8­
hour
standard,
as
well
as
the
de
minimis
levels
that
would
apply
to
nonattainment
areas
based
on
the
option
2
classification
scheme.
Commenter
also
supports
EPA's
recommendation
that
State
and
local
agencies
incorporate
growth
in
State
Implementation
Plan
(
SIP)
budgets
to
accommodate
future
actions
at
federal
facilities.

Response:
No
response
is
necessary,
as
this
comment
supports
the
adopted
approach.

VI.
N.
5.
a.
What
de
minimis
emission
levels
will
be
set
for
ozone
precursors?

Comment:
One
commenter
disagrees
with
the
way
in
which
de
minimis
levels
for
VOCs
are
set.
The
think
that
the
de
minimis
levels
should
be
tied
to
the
Maximum
Incremental
Reactivity
of
the
VOCs
emitted,
rather
than
the
mass
of
VOCs
emitted.
Their
disagreement
is
based
upon
the
findings
of
the
Texas
Air
Quality
Study
2000,
which
was
the
largest
air
quality
study
ever
conducted
in
Texas.
The
study
was
designed
to
improve
understanding
of
the
factors
that
control
the
formation
and
transport
of
air
pollutants
along
the
Gulf
Coast
of
southeastern
Texas.
During
this
study,
researchers
found
that
ozone
formation
in
Houston
is
dominated
by
the
reaction
of
a
few
highly
reactive
VOCs,
including
ethylene,
propylene,
1,3­
butadiene,
and
butenes.
The
findings
have
been
corroborated
by
TCEQ's
analysis
of
1996­
2002
VOC
data
from
Houston.
These
compounds
have
been
recognized
as
highly
reactive
VOCs,
which
form
more
ozone
than
most
other
VOCs.
Calculation
of
de
minimis
based
upon
mass
of
VOCs
ignores
the
fact
that
some
VOCs
are
much
more
effective
at
making
ozone
than
others.
Therefore,
the
commenter
CEQ
recommends
that
the
de
minimis
levels
for
VOCs
be
based
on
reactivity
as
opposed
to
mass,
because
mass
is
not
a
good
indicator
of
ozone
production.

Response:
The
proposal
to
base
the
de
minimis
emission
level
on
the
maximum
incremental
reactivity
(
MIR)
is
an
interesting
idea.
However,
the
implementation
of
such
an
approach
is
premature.
EPA
has
formed
the
Reactivity
Research
Working
Group
to
study
the
incorporation
of
reactivity
on
VOCs
into
EPA's
policies.
In
addition,
EPA
has
recently
issued
an
advanced
notice
of
proposed
rulemaking
on
the
subject.
Depending
upon
the
results
of
those
activities,
EPA
may
in
the
future
evaluate
the
use
of
MIR
in
determining
de
minimis
emission
levels.
168
VI.
N.
5.
c.
Are
there
any
other
impacts
on
the
SIPs
related
to
general
conformity
based
on
implementation
of
the
8­
hour
standard?

Comment:
In
the
proposed
rule
EPA
encouraged
state
and
local
air
quality
agencies
to
work
with
major
facilities
that
are
subject
to
the
general
conformity
regulations
to
"
establish
an
emission
budget
for
those
facilities
in
order
to
facilitate
future
conformity
determinations."
One
commenter
was
concerned
over
establishing
emissions
"
budgets"
for
conformity
purposes.
A
budget
implies
a
cap
that
restricts
growth.
The
commenter
agreed
that
facilities
should
work
with
the
state
and
local
air
quality
agencies
to
ensure
that
future
emissions
projections
are
included
in
the
applicable
SIPs,
however,
an
emissions
budget
for
a
facility
should
not
be
established.

Response:
A
facility
budget
in
a
SIP
would
expedite
the
general
conformity
process
by
allowing
the
facility
to
identify
their
emissions
in
the
SIP
and
by
allowing
the
facility
to
take
actions
to
reduce
its
emissions
and
thus
increasing
its
margin
for
growth,
Under
the
General
Conformity
rules,
the
budget
would
not
be
a
cap,
since
the
rules
allow
for
growth
in
emissions
if
those
emissions
are
offset.

VI.
N.
6.
How
does
the
1­
year
grace
period
apply
to
General
Conformity
determinations?

Comment:
This
section
states
that
"
once
the
1­
hour
ozone
standard
is
revoked
in
whole
or
in
part,
Federal
Agencies
will
be
required
to
conduct
conformity
determinations
for
the
8­
hour
standard
if
the
project/
action
is
in
an
area
designated
nonattainment
for
that
standard."
One
commenter
believed
that
the
general
conformity
process
is
an
integral
part
of
their
ability
to
attain
and
maintain
ambient
air
quality
standards
for
ozone.
They
believe
that
eliminating
the
general
conformity
requirements
for
areas
that
are
attainment
for
the
8­
hour
standard
(
but
have
an
existing
1­
hour
maintenance
plan
under
CAA
section
175A)
constitutes
backsliding.
They
recommended
that
EPA
reconsider
the
application
of
general
conformity
in
maintenance
areas
to
be
consistent
with
EPA's
no
backsliding
objective.

Response:
The
Conformity
Regulations,
both
general
and
transportation,
are
limited
by
law
to
nonattainment
and
maintenance
areas.
If
the
1­
hour
standard
is
revoked
and
the
area
is
attainment
for
the
8­
hour
standard,
then
there
is
no
authority
to
require
a
conformity
determination.
