1Note
that
§
51.900
provides
the
following
definitions:
(
p)
Reasonable
further
progress
(
RFP)
means
for
the
purposes
of
the
8­
hour
NAAQS,
the
progress
reductions
required
under
section
172(
c)(
2)
and
section
182(
b)(
1)
and
(
c)(
2)(
B)
and
(
c)(
2)(
C)
of
the
CAA.
(
q)
Rate
of
progress
(
ROP)
means
for
purposes
of
the
1­
hour
NAAQS,
the
progress
reductions
required
under
section
172(
c)(
2)
and
section
182(
b)(
1)
and
(
c)(
2)(
B)
and
(
c)(
2)(
C)
of
the
CAA.
7/
8/
05
ver8/
4/
05
RFP
excerpt
 
8­
hr
O3
NAAQS
Implementation
Rule
 
Phase
2
E.
What
requirements
for
RFP
should
apply
under
the
8­
hour
ozone
standard?
[
Section
VI.
I.
of
June
2,
2003
proposed
rule
(
68
FR
32832);
§
51.909
and
§
51.910
in
draft;
§
51.910(
d)
in
final
regulatory
text.]
1.
General
discussion
a.
Background
As
noted
in
the
June
2,
2003
proposal,
section
172(
c)(
2),
which
is
located
in
subpart
1,
requires
State
plans
for
nonattainment
areas
to
require
RFP.
Section
171(
1)
of
the
CAA
defines
RFP
to
mean
"
such
annual
incremental
reductions
in
emissions
of
the
relevant
air
pollutant
as
are
required
by
this
part
[
part
D
of
title
I]
or
may
reasonably
be
required
by
the
Administrator
for
the
purpose
of
ensuring
attainment
of
the
applicable
[
NAAQS]
by
the
applicable
date."
Subpart
2
provides
more
specific
RFP
requirements
for
ozone
areas
classified
under
section
181.1
In
particular,
subpart
2
specifies
the
base
year
emissions
inventory
upon
which
RFP
is
to
be
planned
for
and
implemented,
the
increments
of
emissions
reductions
required
over
specified
time
periods,
and
the
process
for
determining
whether
the
RFP
milestones
were
achieved.
Subpart
2
does
not
specify
RFP
requirements
for
marginal
areas.
Section
182(
b)(
1)(
A)
mandates
a
15
percent
VOC
emission
reduction,
accounting
for
growth,
between
1990
and
1996
for
moderate
and
above
ozone
nonattainment
areas.
Furthermore,
section
182(
c)(
2)(
B)
of
the
CAA
requires
each
serious
and
above
ozone
nonattainment
area
to
submit
a
SIP
revision
providing
for
an
actual
VOC
emission
reduction
of
at
least
3
percent
per
year
averaged
over
each
consecutive
3­
year
period
beginning
in
1996
until
the
area's
attainment
date
(
the
post­
1996
ROP
plan).
Section
182(
c)(
2)(
C)
of
the
CAA
allows
for
substitution
of
NOx
for
VOC
emissions
reductions
in
the
post­
1996
ROP
plan.
The
EPA's
policy,
NOx
Substitution
Guidance
(
December
15,
1993;
available
at
http://
www.
epa.
gov/
ttn/
oarpg/
t1pgm.
html),
addresses
the
substitution
of
NOx
emissions
reductions
for
VOC
emissions
2Although
some
8­
hour
ozone
nonattainment
areas
have
additional
areas
beyond
the
boundary
of
the
former
1­
hour
nonattainment
area
and
thus
would
be
faced
with
new
requirements
for
the
higher
classification.

2
reductions.
The
baseline
emissions
inventory
for
determining
the
required
ROP
reductions
is
specified
as
1990.
The
requirements
for
RFP
under
subparts
1
and
2,
as
described
above,
are
the
minimum
required
for
an
area.
More
reductions
may
be
necessary
for
attainment
within
the
nonattainment
area.
Moreover,
an
upwind
area
that
contributes
to
nonattainment
in
a
downwind
area
in
the
same
State
may
need
more
reductions
in
a
shorter
time
in
order
for
the
downwind
area
to
reach
attainment
by
its
required
attainment
date.
Although
we
believe
most
8­
hour
nonattainment
areas
will
attain
the
standard
by
their
statutory
attainment
date,
we
recognize
that
some
areas
classified
under
subpart
2
may
need
additional
time
beyond
the
statutory
attainment
date
for
their
area
to
attain
as
expediously
as
practicable.
As
discussed
in
the
Phase
1
Rule
(
69
FR
at
23959,
col.
3),
in
the
event
an
area
cannot
practicably
attain
by
the
maximum
date
for
its
classification,
the
Clean
Air
Act
provides
the
opportunity
for
more
time.
An
area
regulated
under
subpart
2
can
receive
a
later
maximum
attainment
date
through
a
State
request
to
bump­
up
to
a
higher
classification
(
e.
g.
from
moderate
to
serious).
The
Act
requires
EPA
to
grant
a
State
request
to
reclassify
an
area
to
a
higher
classification;
the
State
plan
still
must
provide
for
attainment
as
expeditiously
as
practicable.
Although
bump­
up
means
that
certain
additional
specified
requirements
apply,
an
area
may
already
be
meeting
most
or
all
of
these
specified
requirements
due
to
controls
previously
adopted
to
implement
the
1­
hour
ozone
standard.
This
is
because
some
areas
had
1­
hour
classifications
that
were
higher
(
and
more
restrictive)
than
the
areas'
8­
hour
classification,
2
and
because
the
Phase
1
final
implementation
rule
for
the
8­
hour
O3
NAAQS
contains
anti­
backsliding
provisions
generally
requiring
areas
to
continue
implementating
measures
required
for
the
1­
hour
classification.
Although
there
may
not
be
additional
mandatory
control
measures
required
because
the
areas
may
already
have
such
measures
in
place,
an
area
that
needs
more
time
to
attain
may
need
additional
emission
reductions
to
reach
attainment.
These
reductions
may
be
achieved
through
implementation
of
measures
that
are
necessary
to
demonstrate
RFP
requirements
or
additional
reductions
beyond
RFP
may
be
needed.
Preliminary
analyses
indicate
that
already
required
control
measures
(
e.
g.,
motor
vehicle
and
nonroad­
engine
rules,
CAIR,
etc.)
may
largely
or
fully
fulfill
reasonable
further
progress
requirements
for
many
areas
and
that
they
will
provide
substantial
progress
toward
attainment
for
most
areas.
3
Many
areas
may
have
significant
creditable
reductions
as
a
result
of
federal
motor
vehicle
and
non­
road
rules,
the
NOx
SIP
Call,
and
the
Clean
Air
Interstate
Rule.
With
the
statutory
exceptions
enumerated
above,
assured
emissions
reductions
that
will
occur
in
an
area
after
the
base
year
can
be
credited
toward
meeting
an
RFP
emission
reduction
milestone.
To
reduce
interstate
ozone
transport,
the
CAIR
(
described
above
in
section
IV.
B.)
established
statewide
ozone­
season
NOx
budgets
for
25
States
and
the
District
of
Columbia
(
eastern
part
of
the
United
States
where
all
8­
hour
nonattainment
areas
are
classified
as
moderate
or
below).
As
noted
above,
the
first
phase
of
NOx
reductions
under
CAIR
starts
in
2009
(
covering
2009­
2014);
the
second
phase
of
NOx
reductions
begins
in
2015
(
covering
2015
and
thereafter).
With
respect
to
timing
of
reductions,
the
following
table
shows
how
summertime
NOx
reductions
from
local
CAIR
sources
that
will
be
achieved
by
May
1,
2009,
or
earlier
can
assist
in
demonstrating
RFP.

Type
of
8­
hour
nonattainment
area
RFP
Requirement*
Relationship
of
CAIR
and
RFP
Subpart
1
areas
with
attainment
dates
within
5
years
of
designation
Meet
RFP
through
showing
of
expeditious
attainment
No
separate
RFP
requirement,
so
creditability
of
CAIR
reductions
not
relevant
Subpart
1
areas
with
attainment
dates
6­
10
years
from
designation
Must
demonstrate
RFP
through
their
attainment
date
CAIR
reductions
in
2009
or
earlier
can
help
fulfill
RFP
requirement
Subpart
2
marginal
areas
No
subpart
2
RFP
requirement
for
marginal
areas
Not
relevant
Subpart
2
moderateand
above
areas
that
previously
achieved
15%
RFP
for
1­
hour
ozone
standard
Subject
to
subpart
1
RFP;
must
demonstrate
RFP
through
their
attainment
date
CAIR
NOx
reductions
in
2009
or
earlier
can
help
fulfill
RFP
requirement
Subpart
2
moderateand
above
areas
that
did
not
implement
15%
VOC
reductions
for
1­
hour
ozone
standard
15%
VOC
reduction
required
between
2002
and
2008;
continued
progress
required
through
attainment
date
CAIR
2009
NOx
reductions
can
help
demonstrate
continued
progress
after
2008
to
attainment
date.
4
*
RFP
requirement
descriptions
in
table
are
abbreviated;
RFP
requirements
are
more
precisely
described
elsewhere
in
preamble
and
rule
text.
CAIR
provisions
do
not
require
emission
reductions
prior
to
January
1,
2009.
However,
some
sources
may
elect
to
apply
CAIRlevel
NOx
controls
earlier
than
that
date.
If
such
controls
are
made
enforceable
in
the
SIP
(
e.
g.,
through
a
permit
restriction
adopted
into
the
SIP
or
specific
rule),
the
State
may
take
RFP
credit
for
such
emission
reductions
for
the
period
ending
December
31,
2008.
The
RFP
provisions
in
the
Act
for
both
subpart
1
and
subpart
2
areas
require
that
actual
emissions
be
reduced
from
the
baseline
to
the
milestone
year.
Therefore,
only
projected
actual
emission
reductions
may
be
credited
toward
the
State's
RFP
obligation.
In
developing
their
RFP
plans,
States
will
have
to
provide
their
best
estimate
of
the
CAIR­
affected
sources
that
are
expected
to
actually
apply
controls
to
meet
the
CAIR
requirements
and
those
that
are
expected
to
meet
CAIR
through
holding
allowances
and
not
actually
reducing
emissions.
Local
CAIR
NOx
reductions
by
May
1,
2015,
could
assist
in
meeting
RFP
in
the
event
an
area
received
an
attainment
date
extension
to
2015
or
beyond.
b.
Summary
of
final
RFP
features
We
are
adopting
nearly
all
the
approaches
set
forth
in
our
proposed
rule
for
the
various
8­
hour
RFP
issues.
We
are
making
exceptions
to
those
issues
for
which
convincing
arguments
were
presented
by
commenters
for
a
suitable
alternative
or
where,
through
reassessment
of
the
issue,
EPA
was
able
to
develop
a
better
option
that
still
maintains
the
integrity
of
the
original
proposal.
The
issues
for
which
we
have
adopted
new
approaches
are:
a)
the
timing
of
the
submission
of
the
RFP
plan;
b)
the
structuring
of
RFP
requirements
in
subpart
1
areas;
c)
the
implementation
of
RFP
in
areas
designated
for
the
8­
hour
ozone
standard
that
entirely
or
in
part
encompass
an
area
that
was
designated
nonattainment
for
the
1­
hour
ozone
standard;
and
d)
the
substitution
of
controls
from
outside
the
nonattainment
area
within
100
kilometers
(
km)
for
VOC
and
200
km
for
NOx.
These
changes
are
discussed
in
the
sections
below.
In
developing
an
approach
for
addressing
the
RFP
requirements
for
the
8­
hour
ozone
standard,
we
are
adopting
the
following:
°
The
same
baseline
year
would
be
used
both
to
address
growth
(
in
emissions,
vehicle
miles
traveled
(
VMT)
or
otherwise)
and
to
calculate
the
RFP
target
level.
The
baseline
year
of
2002
applies
for
areas
with
an
8­
hour
ozone
nonattainment
designation
effective
in
June
2004.
°
Emissions
reductions
from
outside
the
nonattainment
area
up
to
100
km
for
VOC
and
200
km
for
NOx
(
and
Statewide
for
3Memorandum
of
December
29,
1997
from
Richard
D.
Wilson
to
Regional
Administrators,
Regions
I­
X
re
"
Guidance
for
Implementing
the
1­
Hour
Ozone
and
Pre­
Existing
PM10
NAAQS."
Located
at
URL:
http://
www.
epa.
gov/
ttn/
oarpg/
t1/
memoranda/
iig.
pdf.
This
policy
recognized
that
VOC
emissions
up
to
100
km
and
NOx
emissions
up
to
200
km
from
the
nonattainment
area
could
be
relied
on
for
RFP.
Those
distances
resulted
from
FACA
discussions
cited
earlier
and
generally
represent
transport
of
1
to
2
days.
We
still
believe
it
is
appropriate
to
allow
this
credit.
However,
as
noted
below,
because
we
received
concerns
about
this
policy
outside
the
rulemaking
process,
we
are
in
the
process
of
subjecting
this
policy
to
a
technical
review
and
may
revise
it
in
light
of
that
review.

5
areas
that
are
part
of
a
regional
strategy)
would
be
allowed
consistent
with
the
concepts
in
EPA's
existing
December
1997
interim
implementation
policy
for
1­
hour
ozone
NAAQS.
3
°
For
areas
classified
under
subpart
2,
the
RFP
requirements
specified
in
subpart
2
would
apply,
namely
a
15
percent
VOC
emission
reduction,
accounting
for
growth,
in
the
first
6
years
after
the
baseline
year
for
moderate
and
above
ozone
nonattainment
areas.
In
addition,
for
areas
classified
as
serious
and
above,
the
RFP
provisions
in
subpart
2
require
a
VOC
or
NOx
emission
reduction
of
at
least
three
percent
per
year
averaged
over
each
consecutive
3­
year
period
beginning
6
years
after
the
baseline
year.
(
See
section
182(
c)(
2)(
B)).
Areas
classified
under
subpart
2
as
marginal,
which
are
required
to
attain
3
years
following
classification,
are
subject
only
to
such
RFP
as
necessary
to
attain.
We
believe
the
periods
for
RFP
under
subpart
2
for
the
8­
hour
ozone
NAAQS
should
run
from
the
date
of
the
baseline
year,
and
would
be
equivalent
to
the
periods
Congress
established
in
subpart
2,
which
applied
for
the
1­
hour
NAAQS.
Thus,
the
first
15
percent
reduction
would
be
required
for
the
6­
year
period
starting
after
the
end
of
the
last
day
of
the
baseline
year
(
i.
e.,
January
1,
2003
­
December
31,
2008).
The
first
3­
year
period
for
the
subsequent
(
average
of)
three
percent
per
year
emission
reduction
requirement
in
serious
and
higher
areas
would
begin
6
years
after
the
end
of
the
last
day
of
the
baseline
year
(
January
1,
2009
­
December
31,
2011).
However,
the
last
period
for
any
area
would
end
on
the
attainment
date
for
the
area.
°
Many
areas
subject
to
subpart
1
are
subject
only
to
such
RFP
as
necessary
to
attain.
For
areas
with
attainment
dates
5
years
or
less
after
designation,
emissions
reductions
needed
for
attainment
must
be
implemented
by
the
beginning
of
the
full
ozone
season
prior
to
the
attainment
date
(
or
about
4
years
after
designation)
to
enable
a
SIP
to
demonstrate
4With
today's
rulemaking,
this
provision
is
now
codified
as
40
CFR
§
51.908(
d).

5E.
g.,
if
the
area's
attainment
date
is
2014,
and
a
total
of
30
percent
reduction
is
needed
between
the
end
of
2008
and
the
attainment
date
(
a
6­
year
period)
to
reach
attainment,
roughly
15
percent
must
be
achieved
during
the
first
3
years
(
2009,
2010,
2011),
and
the
remaining
15
percent
over
the
next
3
years
(
2012,
2013,
2014).
The
actual
percentage
would
have
to
be
calculated
based
on
the
number
of
days.

6
attainment
as
expeditiously
as
practicable
within
5
years
after
designation
(
See
40
CFR
§
51.908).
4
Under
the
final
rule,
RFP
would
be
met
by
emissions
reductions
needed
for
attainment
by
the
attainment
date.
This
approach
is
similar
to
the
approach
of
subpart
2
RFP
for
areas
classified
as
marginal.
For
subpart
1
areas
with
attainment
dates
beyond
5
years
after
designation,
the
RFP
SIP
would
first
have
to
provide
for
a
15
percent
emission
reduction
(
either
NOx
and/
or
VOC)
from
the
baseline
year
within
6
years
after
the
baseline
year.
For
each
subsequent
3­
year
period
out
to
the
attainment
date,
the
RFP
SIP
would
have
to
provide
for
an
additional
increment
of
progress
equal
to
at
least
the
amount
of
emissions
reductions
that
would
be
roughly
proportional
to
the
time
between
the
end
of
the
first
RFP
increment
and
the
attainment
date.
5
°
New
moderate
areas
would
have
to
submit
RFP
plans
within
3
years
after
designation
and
obtain
the
emissions
reductions
within
4
years
after
designation
(
6
years
after
the
baseline
year
2002).
°
Allow
credit
after
the
2002
base
year
for
future
reductions
from
any
Federal
and
regional
measures
promulgated
after
1990
(
except
those
measures
that
were
not
creditable
under
the
CAA's
creditablility
provisions).
°
Allow
use
of
the
"
Clean
Data
Policy".
c.
Comments
and
responses
This
set
of
comments
and
responses
on
our
proposal
on
RFP
are
of
a
general
nature.
Comments
and
responses
on
specific
topics
appear
with
the
sections
below
on
those
topics.
Comment:
One
commenter
stated
that
EPA's
proposed
8­
hour
ozone
rule
would
sharply
slow
momentum
to
implement
health
protective
emission
reduction
strategies
in
areas
with
unhealthful
air
quality.
It
would
curtail
the
effectiveness
of
transportation
conformity
in
areas
with
inadequate
air
quality,
including
both
old
and
new
ozone
nonattainment
areas.
It
would
do
this
by
proposing
to
eliminate
any
further
RFP
requirements
for
pollution
reduction
in
existing
1­
hour
ozone
areas.
7
Response:
The
EPA
has
developed
anti­
backsliding
provisions
to
ensure
continuing
progress
toward
attainment
of
the
ozone
NAAQS.
Under
these
provisions,
areas
that
are
nonattainment
for
the
8­
hour
standard
must
continue
to
meet
most
obligations
for
the
1­
hour
standard,
including
RFP
requirements.
Those
provisions
(
adopted
as
part
of
the
Phase
1
rule
published
April
30,
2004)
will
ensure
areas
maintain
progress
in
achieving
emissions
reductions
in
areas
with
unhealthful
air
quality.
Comment:
Another
commenter
recommends
that
EPA
not
strictly
interpret
the
CAA
requirement
of
a
15
percent
reduction
in
VOC
in
the
first
6
years.
If
reductions
in
VOC
would
not
assist
the
area
in
progress
toward
attainment
and
if
an
area
can
provide
an
analysis
that
it
is
at
least
as
sensitive
to
NOx
controls,
then
the
area
should
be
able
to
reduce
NOx
emissions
for
RFP
requirements.
Response:
We
addressed
in
general
those
comments
that
recommended
alternatives
to
the
mandatory
measures
of
subpart
2
(
which
includes
the
RFP
requirement)
in
the
response
to
comments
above
under
the
topic,
"
Should
prescribed
requirements
of
subpart
2
apply
in
all
8­
hour
nonattainment
areas
classified
under
subpart
2,
or
is
there
flexibility
in
application
in
certain
narrowly
defined
circumstances?"
We
conclude
in
that
section
that
EPA
has
no
discretion
to
broadly
waive
mandatory
requirements.
However,
we
noted
that
case
law
may
provide
support
for
case­
by­
case
waivers
where
implementation
of
a
measure
would
produce
an
absurd
result.
Comment:
One
commenter
stated
that
EPA
should
consider
highly
reactive
VOC
reductions
that
achieve
ozone
reductions
equivalent
to
an
average
of
3
percent
per
year
reduction
of
VOC
and/
or
NOx
as
meeting
RFP
requirements.
Response:
The
CAA's
RFP
provisions
do
not
appear
to
provide
for
variations
in
the
required
percent
reduction
in
VOC
based
on
differences
of
reactivity
of
the
various
VOC
compounds.
However,
EPA
is
participating
with
a
group
called
the
Reactivity
Research
Working
Group,
along
with
representatives
from
States,
industry
and
universities,
to
study
the
scientific
aspects
of
reactivity
and
to
try
to
determine
if
more
cost­
effective
and
greater
ozone
reductions
can
be
achieved
through
use
of
the
concept.
The
requirement
to
obtain
the
required
percent
reduction
of
total
VOCs
remains,
and
if
EPA
decides
to
propose
a
change,
it
would
be
undertaken
in
a
separate
rulemaking
action.
2.
What
is
the
content
and
timing
of
the
plan
for
addressing
the
RFP
requirements
under
section
182(
b)(
1)
for
areas
covered
under
subpart
2?

[
Section
VI.
I.
3
of
June
2,
2003
proposed
rule
(
68
FR
32833);
§
51.910(
a)(
1)(
ii)
of
the
draft
and
final
regulatory
text.]
a.
Background
8
a.
Background
Currently,
for
many
areas
of
the
country,
particularly
in
the
Eastern
U.
S.
outside
major
metropolitan
areas,
there
is
a
greater
need
for
NOx
reductions
rather
than
VOC
reductions
to
bring
about
reduced
ozone
concentrations.
However,
under
the
prescribed
requirements
of
subpart
2
of
the
CAA,
NOx
substitution
is
only
allowed
for
the
post­
1996
RFP
requirement
(
three
percent
per
year
averaged
over
3
years),
not
for
the
initial
15
percent
RFP
requirement
Section
182(
b)(
1)
requires
areas
classified
as
moderate
and
above
to
submit
a
plan
to
achieve
a
15
percent
reduction
in
VOC
emissions
over
a
6­
year
period
following
the
baseline
year.
Section
182(
c)(
2)(
B)
requires
serious
and
above
areas
to
achieve
and
average
of
nine
percent
additional
emission
reductions
for
each
subsequent
3­
year
period.
We
proposed
2
options
to
address
this
issue.
regarding
how
this
requirement
might
apply
for
purposes
of
implementing
the
8­
hour
NAAQS.
(
i)
Option
1.
Continue
to
rRequire
15
percent
VOC
reductions
within
6
years
after
the
baseline
year
for
all
areas
designated
moderate
and
above
for
the
8­
hour
ozone
NAAQS.
After
6
years,
all
serious
and
above
areas
would
be
required
to
achieve
a
nine
percent
reduction
in
VOC
and/
or
NOx
emissions
every
3
years,
i.
e.,
an
average
of
three
percent
per
year,
until
attainment.
(
ii)
Option
2.
For
those
areas
that
have
an
approved
15
percent
plans
for
their
1­
hour
ozone
SIPs,
an
additional
15
percent
VOC
reduction
is
not
necessary.
Areas
that
are
classified
as
moderate
under
the
8­
hour
standard
that
have
already
implemented
theirapproved
15
percent
plans
underfor
their
1­
hour
ozone
SIPsstandard
would
be
considered
to
have
met
the
statutory
15
percent
requirement
and
RFP
for
the
first
6
years
from
the
baseline
year
and
would
be
covered
under
the
more
genericinstead
would
be
subject
to
the
general
RFP
requirements
of
subpart
1.
S
in
the
same
manner
as
subpart
1
RFP
requirements
are
discussed
belowas.
Areas
that
are
classified
as
serious
and
above
under
the
8­
hour
standard
that
have
already
implemented
theirapproved
15
percent
plans
underfor
the
1­
hour
ozone
standard
would
be
subject
to
the
RFP
requirement
in
section
182(
c)(
2)(
B)
and
would
have
to
include
in
their
SIPs
an
RFP
plan
that
would
achieve
an
average
of
three
percent
per
year
of
VOC
and/
or
NOx
over
each
3­
year
period
starting
at
the
end
of
the
baseline
year
out
to
their
attainment
year.
We
recognized
in
the
proposal
that
it
would
be
difficult
to
adopt
and
implement
emission
controls
that
would
provide
for
the
first
nine
percent
emission
reduction
within
3
years
after
nonattainment
designation.
Therefore,
consistent
with
what
Congress
did
under
section
182(
b)(
1),
we
proposed
to
allow
the
first
RFP
increment
to
be
averaged
over
6
years.
We
proposed
that
an
area
classified
serious
or
above
submit
its
RFP
plan
within
2
years
after
designation
such
that
it
provides
for
18
9
percent
emissions
reductions
(
VOC
and/
or
NOx)
over
the
first
6
years
from
the
baseline
year
(
January
1,
2003
to
December
31,
2008
using
the
proposed
2002
Baseline
year).
Then,
within
3
years
after
designation,
submit
a
plan
that
provides
nine9
percent
emissions
reductions
(
VOC
and/
or
NOx)
over
each
of
the
next
3­
year
periods
until
the
area's
attainment
date
(
i.
e.,
from
January
1,
2009
to
the
attainment
date).
The
proposal
noted
that
this
option
recognizes
previous
efforts
by
areas
that
submitted
15
percent
plans
as
required
under
the
1­
hour
ozone
NAAQS
and
provides
flexibility
to
States
to
use
a
mix
of
NOx
and
VOC
reductions
as
appropriate
to
meet
the
additional
ROP/
RFP
requirements.
We
noted
that
weFor
many
areas
of
the
country,
particularly
in
the
Eastern
U.
S.
outside
major
metropolitan
areas,
there
is
a
greater
need
for
NOx
reductions
rather
than
VOC
reductions
to
bring
about
reduced
ambient
ozone
levels.
Areas
do
not
have
the
flexibility
to
control
NOx
under
the
15
percent
requirement
 
NOx
substitution
is
only
allowed
under
section
182
for
the
post­
1996
RFP
requirement
(
three
percent
per
year
averaged
over
3
years).
We
believe
that
the
statute
can
be
interpreted
to
require
the
mandatory
15
percent
VOC
reduction
only
once
for
a
given
area.
Once
15
percent
VOC
reduction
requirements
have
been
met,
an
area
could
actually
havewould
instead
be
subject
to
the
other
RFP
requirements
of
the
Act.
In
some
cases,
such
as
for
serious
and
above
areas,
this
might
result
in
an
obligation
to
achieve
greater
emissions
reductions,
i.
e.,
an
average
of
three
percent
per
year,
but
could18
percent
rather
than
15
percent
for
the
6­
year
period,
but
the
area
would
have
the
flexibility
to
choose
either
VOC
or
NOx
reductions
as
appropriate.
We
indicated
in
the
proposal
that
we
preferred
this
second
option
because
it
provides
more
flexibility
for
the
RFP
plan
to
be
consistent
with
the
area's
needs
in
attaining
the
standard
and
t.
The
draft
regulatory
text
incorporated
this
option.
The
proposal
did
not
specifically
address
an
8­
hour
area
that
is
comprised
in
part
of
one
or
more
1­
hour
ozone
nonattainment
areas
with
approved
15
percent
plans
and
in
part
of
areas
that
were
not
previously
subject
to
the
15
percent
requirement.
b.
Summary
of
Final
Rule
The
final
rule
incorporatesWe
are
adopting
the
second
option
noteddescribed
in
the
Background
above,
as
adjusted
in
response
to
comment,
namely,
that
for
those.
1.
Final
rule
for
8­
hour
areas
comprised
in
total
of
one
or
more
1­
hour
nonattainment
areas
with
approved
15
percent
plans
for
the
1­
hour
standard.
Those
8­
hour
areas
that
are
composed
entirely
of
one
or
more
1­
hour
areas
and
that
have
approved
15
percent
plans
for
their
1­
hour
ozone
SIPs,
an
additionalwill
be
considered
to
have
met
the
6As
discussed
below
in
section
5
(
the
discussion
of
the
timing
of
submission
of
the
RFP
plan)
the
RFP
plan
would
have
to
be
submitted
within
3
years
after
designation
(
not
2
years
as
proposed).

10
15
percent
VOC
reduction
is
not
necessaryrequirement
in
section
182(
b)(
1).
ASuch
areas
that
are
classified
as
moderate
under
the
8­
hour
standard
and
that
are
composed
entirely
of
areas
that
have
already
implemented
their
15
percent
plans
under
their
1­
hour
ozone
SIPs
would
be
considered
to
have
met
the
statutory
15
percent
VOC
emission
reduction
requirement.
Reasonable
further
progress
for
the
first
6
years
from
the
baseline
year
would
be
covered
under
the
more
genericwould
instead
be
subject
to
the
more
general
RFP
requirements
of
subpart
1.
As
discussed
below,
the
subpart
1
requirement
would
depend
on
the
moderate
area's
attainment
date
as
follows:
°
Subpart
2Moderate
areas
that
have
an
attainment
date
within
5
years
after
their
8­
hour
designation,
for
which
all
portions
of
the
area
have
previously
met
their
15
percent
requirements
under
the
1­
hour
standard,
will
only
be
subject
to
subpart
1
RFP
requirements,
which
will
be
satisfied
with
the
measures
that
demonstrate
attainment
as
expeditiously
as
practicable,
these
areas
will
not
be
developing
RFP
plans
separate
from
their
attainment
plans.
°
Subpart
2
areas
that
have
an
attainment
date
beyond
5
years
after
their
8­
hour
designation,
for
which
all
portions
of
the
area
have
previously
met
their
15
percent
requirements
under
the
1­
hour
standard,
will
only
be
subject
to
subpart
1
RFP
requirements,
which
will
be
satisfied
with
a
plan
to
demonstrate
15
percent
emission
reductions
(
which
may
be
either
VOC
or
NOx
or
a
combination
of
both)
from
2002
to
2008,
and
any
additional
emission
reductions
needed
for
attainment
beyond
2008.

Areas
Such
areas
that
are
classified
as
serious
would
have
to
meetor
above
would
be
subject
to
the
RFP
requirements
of
section
182(
c)(
2)(
B)
and
would
need
to
submit
a
plan
achieving
an
average
of
3
percent
reductions
per
year
averaged
over
the
6
years
for
the
first
increment
and
then
averaged
over
eachfollowing
the
baseline
year
and
then
an
average
of
3
percent
per
year
for
each
subsequent
3­
year
period
out
to
the
attainment
year.
6
2.
Final
rule
for
8­
hour
areas
comprised
in
part
of
a
1­
hour
attainment
area
with
an
approved
15
percent
plan
for
the
1­
hour
standard
and
in
part
of
areas
without
approved
15
percent
plans
for
the
1­
hour
standard.
11
For
8­
hour
moderate
areas
that
include
all
or
part
of
one
or
more
1­
hour
areas
with
an
approved
1­
hour
15
percent
plan,
but
also
include
areas
that
were
not
subject
to
1­
hour
15
percent
plan,
the
final
rule
would
allow
the
area
to
choose
between
two
alternative
approaches
that
are
consistent
with
the
proposed
rule.
°
Approach
1.
Develop
a
new
baseline
and
new
8­
hour
15
percent
VOC
ROP
emission
reduction
target
for
the
entire
8­
hour
area.
Emissions
reductions
that
occur
after
the
2002
baseline
emissions
inventory
year
are
creditable
except
as
limited
by
section
182,
as
described
elsewhere
in
this
final
rule.
The
reductions
must
be
of
VOC
only.
°
Approach
2.
°
Treat
the
8­
hour
nonattainment
area
as
divided
between
portions
of
the
area
that
are
subject
to
an
approved
15
percent
VOC­
only
plan
for
the
1­
hour
standard
and
the
portions
of
the
area
that
are
not
subject
to
a
15
percent
plan
for
the
1­
hour
standard.
°
For
those
areas
not
subject
to
an
approved
15
percent
plan
for
the
1­
hour
standard,
States
must
establish
a
separate
15
percent
VOC
target
under
subpart
2.
VOC
emission
reductions
to
meet
the
15
percent
requirement
may,
however,
come
from
across
the
entire
8­
hour
nonattainment
area.
°
For
the
portion
of
the
area
with
an
approved
15
percent
plan
for
the
1­
hour
standard,
the
subpart
1
RFP
requirements
will
apply
if
the
area
is
classified
as
moderate
for
the
8­
hour
standard
and
the
section
182(
c)(
2)(
B)
RFP
requirement
will
apply
if
the
area
is
classified
as
serious
of
above
for
the
8­
hour
standard.
These
requirements
would
apply
as
described
above
for
areas
comprised
entirely
of
areas
with
approved
15
percent
plans
for
the
1­
hour
standard.
c.
Comments
and
responses
Comment:
One
commenter
expressed
concern
that
for
a
number
of
subpart
2
areas
that
are
also
existing
1­
hourwere
nonattainment
areasfor
the
1­
hour
standard,
especially
those
dominated
by
mobile
source
emissions
and/
or
those
with
existing
stringent
stationary
source
controls,
it
may
be
difficult
to
achieve
another
18
percent
precursor
emission
reduction
within
6
years
from
the
baseline
year
and
then
an
additional
3
percent
per
year
precursor
reduction
after
that
until
the
area's
attainment
date.
Specific
areas
were
mentioned
such
as
the
South
Coast
District
of
California
and
the
Houston­
Galveston
Area,
which
the
commenter
indicated
will
be
well
beyond
best
available
control
technology
(
BACT)
controls
and
in
some
cases
at
or
near
lowest
achievable
emission
rate
(
LAER)
NOx
controls
on
stationary
sources
making
them
dependent
on
mobile
source
fleet
turnover
for
12
SIP
RFP
emissions
reductions.
The
commenter
further
suggested
that
EPA
should
have
available
approved
policy
options
that
allow
areas
in
such
predicaments
to
maintain
approved
SIPs
if
additional
emissions
reductions
are
not
available
to
meet
RFP
requirements
and/
or
if
available
emission
reduction
techniques
might
be
counterproductive
to
other
local
and
regional
air
quality
goals.
Response:
We
addressed
in
general
those
comments
that
recommended
alternatives
to
the
mandatory
measures
of
subpart
2
(
which
includes
the
RFP
requirement)
in
the
response
to
comments
above
under
the
topic,
"
Should
prescribed
requirements
of
subpart
2
apply
in
all
8­
hour
nonattainment
areas
classified
under
subpart
2,
or
is
there
flexibility
in
application
in
certain
narrowly
defined
circumstances?"
We
concluded
in
that
section
that
EPA
has
no
discretion
to
broadly
waive
mandatory
requirements.
However,
we
noted
that
case
law
may
provide
support
for
case­
by­
case
waivers
where
implementation
of
a
measure
would
produce
an
absurd
result.
Additionally,
we
note
that
section
182(
b)(
1)(
A)(
ii)
specifically
addresses
the
situation
where
an
area
demonstrates
that
it
cannot
achieve
the
required
15
percent
reduction.
It
provides
that
if
an
area
may
achieve
less
than
15
percent
VOC
reduction
required
where
the
State
demonstrates
(
1)
new
source
review
requirements
apply
as
they
would
in
an
area
classified
as
extreme
except
that
the
terms
"
major
source"
and
"
major
stationary
source"
shall
include
any
source
with
the
potential
to
emit
at
least
5
tons
per
year
of
VOCs;
(
2)
RACT
is
required
for
all
major
sources
(
i.
e.,
a
source
with
the
potential
to
emit
at
least
5
tons
per
year
of
VOCs;
and
(
3)
the
plan
includes
all
measures
that
can
feasibly
be
implemented
in
light
to
technological
achievability.
Comment:
Another
commenter
supported
EPA's
efforts
to
recognize
in
recognizing
the
previous
efforts
of
areas
to
meet
ROP
requirements
under
the
1­
hour
standard.
The
commenter
concurs
with
EPA's
preferred
option,
which
allows
States
the
flexibility
to
choose
a
combination
of
NOx
and
VOC
strategies
to
meet
ROP/
RFP
requirements
consistent
with
an
area's
need
to
meet
the
standard.
Response:
We
agree
with
the
commenter
that
if
an
area
has
already
met
the
15
percent
VOC
emission
reduction
requirement
for
the
1­
hour
standard,
the
area
should
not
be
required
to
meet
that
requirement
a
second
time
for
the
8­
hour
standard
but
instead
will
be
subject
to
the
other
applicable
RFP
provisions
of
the
CAA.
Comment:
One
commenter
preferred
Option
1
as
more
protective
of
air
quality
and
more
consistent
with
the
requirements
of
the
CAA.
Option
1
would
require
States
to
develop
RFP
plans
based
on
severity
and
local
situation.
Option
2
has
some
attractive
features
by
recognizing
progress
that
13
States
have
already
made.
This
commenter
believed
that
Option
2
is
problematic,
however,
because
it
relies
on
plans
developed
based
on
1990
to
1996
emissions.
This
time
period
has
passed.
One
commenter
believed
EPA
to
be
completely
without
authority
to
waive
the
15
percent
RFP
plan
requirement,
which
is
an
explicit
mandate
of
subpart
2.
A
15
percent
ROP
plan
under
the
1­
hour
standard
cannot
possibly
satisfy
the
15
percent
RFP
plan
obligation
for
the
8­
hour
standard,
because
the
new
RFP
requirement
is
designed
to
implement
a
revised
NAAQS
and
is
measured
from
a
different
baseline
year.
They
further
believe
that
EPA
offers
no
plausible
legal
rationale
for
waiving
the
15
percent
ROP
requirement,
and,
indeed,
none
exists.
Moreover,
although
the
agency
proposed
to
require
RFP
demonstrations
for
the
first
6
years
for
serious
and
severe
areas,
there
is
no
lawful
or
rational
basis
for
exempting
moderate
areas
from
this
statutory
requirement.
Allowing
States
to
rely
on
their
1­
hour
15
percent
ROP
demonstrations
is
further
unsupportable
because
those
demonstrations
are
almost
certainly
no
longer
valid.
Response:
The
EPA
acknowledges
that
under
subpart
2
we
must
require
15
percent
VOC
reductions
for
all
moderate
and
above
areas,
but
we
maintain
that
if
an
area
has
met
this
requirement
while
subject
to
section
182(
b)(
1)(
A)
underfor
the
1­
hour
standard,
they
will
not
have
to
meet
it
again
for
the
8­
hour
standard.
The
EPA
believes
that
the
CAA
is
quite
clear
that
the
SIP
must
provide
for
a
15
percent
reduction
in
baseline
VOC
emissions
for
some
period
after
1990
in
an
area
subject
to
section
182(
b)(
1)(
A),
and,
consequently,
the
SIP
for
any
area
newly
subject
to
section
182(
b)(
1)(
A)
must
provide
for
a
15
percent
reduction
in
VOC
baseline
emissions.
But,
EPA
disagrees
that
the
CAA
plainly
requires
that
the
SIP
for
an
area
must
require
a
second
15
percent
reduction
in
VOC
baseline
emissions
under
a
revised
ozone
standard.
The
EPA
believes
that
section
182(
b)(
2)(
A)
plainly
limits
our
discretion
only
to
the
extent
that
we
cannot
let
the
SIP
for
any
area
classified
as
moderate
or
worse
for
the
8­
hour
standard
avoid
a
demonstration
that
the
SIP
contains
sufficient
measures
to
achieve
a
15
percent
reduction
in
VOC
baseline
emissions
orand
further
limits
our
discretion
to
allow
NOx
substitution
for
the
initial15
percent
RFP
demonstration
requirement
ofunder
section
182(
b)(
1)(
A).
If
serious
and
above
areas
have
already
met
the
15
percent
requirement
under
the
1­
hour
standard,
they
must
meet
the
next
RFP
requirement,
namely,
the
section
182(
c)(
2)(
B)
RFP
requirement,
which
will
actually
achieve
greater
reductions,
i.
e.,
3
percent
per
year
over
6
years
for
a
total
of
18
percent,
but
they
can
meet
it
with
either
VOC
or
NOx
reductions.
For
moderate
areas
that
have
already
met
the
15
percent
VOC
emission
reduction
requirement
for
the
1­
hour
standard,
EPA
believes
appropriate
RFP
under
subpart
1
should
be
achieved.
For
purposes
14
of
RFP
under
subpart
1,
there
is
nothing
that
limits
such
reductions
to
only
VOC
reductions.
This
provision
simply
requires
reasonable
annual
incremental
reductions
towards
attainment
by
the
applicable
attainment
date,
and
this
could
be
achieved
by
either
VOC
or
NOx
emissions
reductions
or
a
combination
of
both.
Section
182(
b)(
1)(
A)
is
the
only
statutory
provision
that
limits
State
discretion
to
substitute
NOx
reductions
for
VOC
reductions.
This
applies
only
for
purposes
of
the
initial
15
percent
reduction
requirement
for
the
6­
year
period
after
the
baseline
year.
The
EPA
believes
that
the
CAA
does
not
clearly
require
a
second
15
percent
VOC­
only
reduction
under
a
revised
ozone
NAAQS
in
an
area
that
(
1)
is
designated
nonattainment
or
maintenance
for
the
1­
hour
standard
at
the
time
the
area
was
designated
nonattainment
for
the
8­
hour
standard
and
classified
as
moderate,
and
(
2)
is
already
covered
by
a
15
percent
reduction
plan
in
the
approved
SIP
for
at
least
all
of
the
area
within
the
boundaries
of
the
8­
hour
nonattainment
area.
Such
an
area
has
met
the
literal
requirement
set
forth
in
section
182(
b)(
1)(
A).
The
final
rule,
therefore,
provides
the
following:
If
classified
as
moderate,
areas
under
the
8­
hour
standard
that
have
already
implemented
their
15
percent
plans
under
their
1­
hour
ozone
SIPs
would
be
covered
under
the
more
generic
RFP
requirements
of
subpart
1,
which
is
discussed
below
in
the
preamble.
If
classified
as
serious
or
higher
for
the
8­
hour
standard,
the
3
percent
per
year
average
reduction
requirement
of
section
182(
c)(
2)
would
still
apply,
except
that
EPA
would
require
that
the
SIP
for
such
serious
and
above
areas
must
provide
for
18
percent
emissions
reductions
over
the
first
6
years
after
the
baseline
year
and
then
9
percent
over
each
of
the
next
3­
year
periods
until
the
area's
attainment
date.
The
15
percent
reduction
requirement
still
remains
valid
for
areas
that
never
did
the
initial
15
percent
emission
reduction.
Comment:
Another
commenter
believed
the
subpart
2
provisions
of
the
CAA
do
not
allow
for
NOx
for
VOC
substitutions
for
the
initial
15
percent
RFP
requirements.
Response:
The
EPA
believes
that
the
statute
allowsWe
agree
that
the
15
percent
requirement
in
section
182(
b)(
1)
does
not
allow
the
substitution
of
NOx
for
VOC
under
certain
circumstances.
The
EPA
does
not
believe
it
is
able
to
allow
substitution
of
NOx
reductions
for
the
initial.
However,
the
RFP
requirements
in
section
172(
c)(
2)
and
182(
c)(
2)(
B)
are
not
constrained
by
that
limitation
and
either
VOC
or
NOx
emission
reductions
may
be
counted
toward
meeting
RFP
under
those
two
provisions.
15
Text
Moved
Here:
2
Comment:
Some
commenters
believed
an
additional
15
percent
VOC
reduction
should
not
be
necessary
for
8­
hour
areas
that
encompass
in
whole
or
in
part
a
1­
hour
nonattainment
area
with
an
approved
15
percent
plan.
Such
areas
should
simply
be
required
to
achieve
whatever
NOx
or
VOC
emissions
reductions
are
needed
for
attainment.
End
Of
Moved
Text
One
commenter
noted
that
the
proposed
§
51.910(
a)(
ii)
did
not
address
all
boundary
change
scenarios
consistent
with
our
proposed
approach
found
in
section
VI.
I.
9.
of
the
June
2,
2003
proposed
rule
(
68
FR
32835).
Response:
We
agree
with
the
commenter
that
an
area
with
an
approved
15
percent
VOC
reductions
requirement,
but
the
CAA
does
allow
States
to
use
both
VOC
and
NOxplan
for
the
31­
hour
standard
is
not
required
to
adopt
a
second
15
percent
plan
under
section
182(
b)(
1)
for
purposes
of
the
8­
hour
standard.
However,
if
a
portion
of
the
8­
hour
area
was
not
subject
to
an
approved
15
percent
plan
for
the
1­
hour
standard,
section
182(
b)(
1)
applies
to
that
portion
of
the
8­
hour
area
and
may
be
met
by
one
of
two
approaches
described
above
and
in
the
regulatory
text.
We
agree
with
the
second
commenter
who
noted
that
the
proposed
rule
did
not
explicitly
address
all
possible
boundary
scenarios;
we
believe
we
have
fully
addressed
these
different
boundary
scenarios
in
the
final
rule
in
a
manner
consistent
with
the
proposal.
Comment:
A
commenter
indicated
that
it
preferred
to
work
with
EPA
in
the
development
of
an
alternative
that
will
eliminate
or
minimize
the
planning
burdens
associated
with
development
of
a
15
percent
RFP
plan
for
one
town.
One
alternative
might
be
the
development
of
a
"
comparability
demonstration,"
showing
that
the
town
had
implemented
the
same
controls
that
had
been
previously
responsible
for
achieving
a
15
percent
reductions
thereafter.
reduction
in
VOCs
in
the
l­
hour
ozone
nonattainment
area
associated
with
the
8­
hour
nonattainment
area
including
this
town.
Response:
We
are
willing
to
work
with
individual
areas
as
they
develop
their
8­
hour
15
percent
plans
and
to
help
them
avoid
unnecessary
planning
burdens.
We
believe
that
the
portion
of
an
8­
hour
area
not
subject
to
an
approved
1­
hour
15
percent
plan
may
be
able
to
meet
the
15
percent
obligation
for
the
8­
hour
standard
if
the
area
adopts
the
same
VOC
control
measures
(
for
example,
VOC
RACT
at
the
same
source
thresholds,
Stage
II,
I/
M,
etc...)
as
in
the
portion
of
the
8­
hour
nonattainment
area
subject
to
a
15
percent
plan
for
the
1­
hour
standard
and
if
the
area
has
the
same
mix
of
sources
(
point
with
similar
industrial
mix/
area/
mobile)
as
in
the
area
subject
to
the
15
percent
plan
for
the
1­
hour
16
standard.
EPA
could
propose
approval
of
a
SIP
on
this
basis
where
supported
by
the
record.
Comments
on
draft
regulatory
text
Comment:
Another
commenter
generally
supported
the
RFP
provisions
but
suggested
that
in
subsection
section
51.910(
a)(
1)(
ii)(
A)
[
of
the
draft
§
51.910]
regulatory
text,
we
insert
the
bolded
aslanguage
shown
herein
bold:
"
An
area
classified
as
moderate
or
higher
that
has
the
same
boundaries
as
an
area
for
which
EPA
fully
approved
a
15
percent
plan
for
the
1­
hour
NAAQS
is
not
subject
to
section
182(
b)(
1)
of
the
CAA
for
the
8­
hour
NAAQS,
but
instead
 
(
A)
If
classified
as
moderate,
is
subject
to
RFP
under
section
172(
c)(
2)
of
the
CAA
and
shall
meet
that
obligation
by
submitting
3
years
after
the
effective
date
of
its
designation
a
SIP
revision
that
provides
for
implementation
of
all
emission
reductions
of
VOCs
and/
or
NOx
needed
for
attainment
by
the
beginning
of
the
ozone
season
in
the
area's
attainment
year."
The
commenter
claimed
this
language
is
consistent
with
the
approach
EPA
has
taken
in
other
provisions
of
this
draft.
Response:
The
commenter's
concern
is
noted.
Section
51.910
has
been
restructured
for
reasons
noted
elsewhere
in
this
preamble
and
it
addresses
the
commenter's
concern.
Comment:
One
commenter
suggested
that
§
51.910(
a)(
3)
of
the
draft
regulatory
text
be
revised
to
allow
(
even
if
conditional)
NOx
reductions
to
be
substituted
for
VOC
reductions
(
for
any
ROP
or
RFP
requirement)
whenever
such
reductions
would
"
result
in
a
reduction
in
ozone
concentrations
at
least
equivalent
to
that
which
would
result
from
the
amount
of
VOC
emission
reductions
required."
Response:
We
addressed
in
general
those
comments
that
recommended
alternatives
to
the
mandatory
measures
of
subpart
2
(
which
includes
the
VOC
only
15
percent
RFP
requirement)
in
the
response
to
comments
above
under
the
topic,
"
Should
prescribed
requirements
of
subpart
2
apply
in
all
8­
hour
nonattainment
areas
classified
under
subpart
2,
or
is
there
flexibility
in
application
in
certain
narrowly
defined
circumstances?"
We
concluded
there
that
EPA
had
no
discretion
to
broadly
waive
mandatory
subpart
2
requirements.
However,
we
noted
that
case
law
may
provide
support
for
case­
by­
case
waivers
where
implementation
of
a
measure
would
produce
an
absurd
result.

Text
Moved
Here:
3
Comment:
One
commenter
stated
that
draft
§
51.910(
a)(
1)(
ii)
eliminates
the
15
percent
requirement
for
areas
that
have
already
achieved
this
requirement
under
the
8­
hour
standard
and
supported
that
change.
However,
they
further
state
that
the
strict
criteria
of
"
same
boundaries"
should
be
revisited
because
there
may
be
limited
changes
in
the
nonattainment
areas
"
boundaries"
17
when
areas
are
designated
for
the
8­
hour
standard.
Such
changes
should
not
negate
this
provision.
A
broader
definition
needs
to
apply
to
this
section
to
allow
for
changes
to
boundaries
in
nonattainment
areas
between
1­
hour
and
8­
hour
designations
where
such
changes
do
not
substantially
alter
the
geographical
or
population
characteristics
for
the
area.
Another
commenter
supports
an
exemption
for
8­
hour
nonattainment
areas
that
have
met
the
15
percent
ROP
requirement
for
the
1­
hour
NAAQS.
The
commenter
requests
that
EPA
clarify
the
criteria
that
the
area
must
have
the
same
geographic
boundaries
to
qualify
for
the
exemption.
This
means
that
in
the
geographic
areas
for
which
a
State
has
an
approved
15
percent
plan,
the
15
percent
requirement
will
not
apply,
and
the
15
percent
requirement
is
only
intended
to
apply
to
the
new
geographic
areas
of
the
8­
hour
nonattainment
area,
and
that
the
15
percent
reduction
of
emissions
from
the
new
areas
could
come
from
the
entire
nonattainment
area
to
satisfy
this
requirement.
End
Of
Moved
Text
Response:
As
we
explain
in
our
summary
of
the
final
rule,
we
have
recognized
that
there
are
a
variety
of
boundary
scenarios
for
8­
hour
nonattainment
areas
in
relation
to
the
boundaries
of
areas
for
the
1­
hour
standard.
We
have
modified
the
draft
regulatory
text
such
that
the
final
rule
speaks
in
terms
of
8­
hour
areas
that
include
all
or
part
of
an
area
with
an
approved
15
percent
plan
for
the
1­
hour
standard.
For
those
portions
of
the
8­
hour
area
with
an
approved
1­
hour
15
percent
plan,
the
8­
hour
area
is
not
required
to
develop
a
second
15
percent
plan
under
section
182(
b)(
1)
for
purposes
of
the
8­
hour
standard,
but
instead
will
be
subject
to
section
172(
c)(
2)
if
it
is
an
8­
hour
moderate
area
or
subject
to
section
182(
c)(
2)(
B)
if
it
is
classified
as
serious
or
above
for
the
8­
hour
standard.
If
the
8­
hour
area
includes
both
areas
that
were
subject
to
an
approved
15
percent
plan
for
the
1­
hour
standard
and
areas
that
were
not,
then
the
8­
hour
area
can
choose
whether
to
develop
a
section
182(
b)(
1)
15
percent
plan
for
the
entire
8­
hour
area
or
to
develop
a
182(
b)(
1)
plan
only
for
the
area
not
previously
subject
to
such
a
plan
and
to
treat
the
remaining
portions
of
the
area
under
section
172(
c)(
2)
or
182(
c)(
2)(
B),
as
described
above,
as
applicable.
As
noted,
EPA
does
not
believe
the
statute
allows
it
to
exempt
any
area
that
not
already
met
the
15
percent
requirement
for
the
1­
hour
standard
from
the
obligation
to
meet
that
requirement
except
as
provided
in
section
182(
b)(
1)(
A)(
ii).
Additionally,
case
law
may
provide
some
basis
for
exemption
if
EPA
determined
that
application
of
the
statute,
as
written,
produced
an
absurd
result.
3.
What
baseline
year
should
be
required
for
the
emissions
inventory
for
the
RFP
requirement?
7Memorandum
of
November
18,
2002,
from
Lydia
Wegman
and
Peter
Tsirigotis,
"
2002
Base
Year
Emission
Inventory
SIP
Planning:
8­
hr
Ozone,
PM2.5
and
Regional
Haze
Programs."
This
document
is
available
at
the
following
web
site:
http://
www.
epa.
gov/
ttn/
oarpg/
meta.
442.1.2002baseinv.
pdf.

18
[
Section
VI.
I.
4.
of
June
2,
2003
proposed
rule
(
68
FR
32833);
§
51.909
of
the
draft
regulatory
text;
§
51.910(
d)
of
the
final
regulatory
text.]
a.
Background
The
baseline
inventory
for
RFP
(
under
subpart
2)
is
used
as
the
starting
point
for
the
determination
of
a
target
level
of
emissions
for
the
future
year
RFP
and
as
the
baseline
from
which
creditable
reductions
are
determined.
We
designated
ozone
nonattainment
areas
in
April
2004.
Under
the
"
Consolidated
Emissions
Reporting
Rule"
(
67
FR
39602,
June
10,
2002)
revised
emissions
inventories
are
required
for
the
years
2002
and
2005;
therefore,
we
proposed
to
require
use
of
the
2002
inventory
as
the
baseline
inventory
for
the
RFP
requirement.
This
would
be
the
most
recent
inventory
available
at
the
time
of
designation.
We
issued
a
memorandum
identifying
2002
as
the
anticipated
emissions
inventory
base
year
for
the
SIP
planning
process
to
address
the
8­
hour
ozone
and
the
PM2.5
standards.
7
b.
Summary
of
Final
Rule
As
set
forth
in
our
proposed
rule,
for
areas
designated
nonattainment
underfor
the
8­
hour
ozone
NAAQS
with
an
effective
date
of
June
15,
2004,
we
are
requiring
States
to
use
the
2002
inventory
as
the
baseline
inventory
for
the
RFP
requirement
for
areas
designated
nonattainment
in
2004.
As
noted
in
the
proposal,
the
inventory
for
the
2002
calendar
year
would
be
the
most
recently
available
inventory
at
the
time
of
designation
in
2004.
We
noted
that
we
had
issued
a
memorandum
identifying
2002
as
the
anticipated
emission
inventory
base
year
for
the
SIP
planning
process
to
address
the
8­
hour
ozone
and
the
PM2.5
standards.
7
The
baseline
emissions
inventory
is
calculated
as
of
the
effective
date
of
an
area's
nonattainment
designation
using
the
most
recent
calendar
year
for
which
a
complete
inventory
is
required
to
be
submitted
to
EPA
under
subpart
A
of
this
part.
Under
subpart
A,
States
are
required
to
submit
a
comprehensive
inventory
on
3­
year
cycles
bywithin
17
months
after
the
close
of
the
reporting
period.
Thus,
the
2002
inventory
was
due
17
months
after
the
December
31,
2002
close
of
the
latest
3­
year
cyclereporting
period,
i.
e.,
was
due
by
June
1,
2004.
For
those
areas
designated
nonattainment
for
the
8­
hour
ozone
NAAQS
effective
June
15,
2004
(
69
FR
23858,
April
30,
2004),
the
baseline
emissions
inventory
shall
be
based
on
the
calendar
year
2002
because
the
2002
inventory
was
due
under
subpart
A
of
this
8E.
g.,
where
the
effective
date
of
the
first
designation
to
nonattainment
for
an
area
underfor
the
8­
hour
ozone
NAAQS
is
after
June
1,
2007
but
before
June
1,
2010,
the
baseline
inventory
will
be
for
calendar
year
2005.

19
part
prior
to
the
time
of
designation.
For
areas
with
an
effective
nonattainment
designation
in
the
future,
the
baseline
inventory
will
be
for
the
calendar
year
of
the
most
recent
triennial
inventory
as
of
the
date
of
designation.
8
c.
Comments
and
responses
Comment:
One
commenter
is
convinced
that
EPA
has
misread
the
statute
as
requiring
that
the
6­
year
time
period
for
achieving
a
15
percent
reduction
in
moderate
areas
or
for
achieving
an
18
percent
reduction
in
serious
areas
starts
with
the
baseline
year.
Instead,
the
commenter
believes
that
the
statute
requires
that
the
6­
year
time
period
begins
with
the
date
of
designation,
rather
than
the
date
of
the
most
recent
completed
VOC
inventory.
The
commenter
maintains
that
the
starting
point
for
the
6­
year
period
obviously
affects
the
ending
point,
and
under
EPA's
interpretation
there
would
not
be
a
meaningful
period
of
time
available
to
accomplish
the
reductions
required
in
serious
areas.
Another
commenter
noted
that
the
18
percent
reduction
for
serious
areas
would
have
to
be
achieved
by
2008.
This
is
6
years
after
the
base
year.
The
commenter
noted
that
the
2
years
that
would
remain
after
SIP
submission
(
from
the
proposed
SIP
due
date
of
2006
until
2008)
would
be
totally
inadequate
to
achieve
either
the
15
percent
reduction
in
VOCs
or
the
18
percent
reduction
in
VOCs
and/
or
NOx.
The
commenter
noted
the
CAA
provides
for
submission
of
RFP
plans
within
3
years
(
from
1990)
in
section
182(
b)(
1)(
A)
and
4
years
in
section
182(
c)(
2).
Another
commenter
agreed
there
is
a
reasonable
basis
to
select
2002
as
the
date
of
emissions
inventories
for
purpose
of
establishing
creditable
reductions
from
the
inventory.
States
are
not
required
by
the
CAA
to
adopt
the
year
of
the
nonattainment
designation
for
the
8­
hour
standard
as
the
basis
for
their
planning,
even
though
that
was
the
case
under
the
1990
CAA
Amendments.
The
commenter
claims
there
are
a
variety
of
measures
that
would
be
implemented
after
2002
that
local
jurisdictions
would
like
to
be
able
to
account
for
as
new
emissions
reductions
in
their
modeling
demonstrations.
The
commenter
claims
that
this
in
part
is
justified
on
the
basis
of
the
1997
revisions
to
the
ozone
NAAQS,
including
maximum
achievable
control
technology
(
MACT)
reductions
and
NOx
SIP
Call/
126
rule
reductions.
The
commenter
thus
believes
that
reductions
between
these
years
"
should
count."
In
addition,
this
was
the
most
recent
quality
assured/
quality
controlled
inventory
used
to
support
the
States'
recommendations
for
proposed
20
nonattainment
designations
on
July
15,
2003.
Even
if
EPA
allows
States
to
show
that
air
quality
improved
between
2001­
2003
for
purposes
of
final
designations,
it
will
be
on
the
basis
of
reductions
from
these
earlier
inventories.
Another
commenter
referred
to
EPA's
proposal
language
regarding
the
RFP
SIP
that
would
have
required
submission
of
the
RFP
plan
within
2
years
after
designation.
They
stated
that
EPA
is
missing
the
point
in
that
the
attainment
and
RFP
submission
dates
established
in
subpart
2
are
to
allow
States
a
sufficient
amount
of
time
to
achieve
the
mandated
goals.
That
commenter
referred
to
another
alternative
that
would
amend
the
proposal
to
require
a
1990,
rather
than
2002
baseline
for
those
areas
not
having
a
previously­
approved
15
percent
RFP
plan.
They
further
commented
that
although
a
1990
baseline
would
not
eliminate
the
planning
burden
associated
with
this
requirement,
it
would
go
far
towards
minimizing
the
necessary
additional
work.
Response:
The
EPA
has
decided
to
establish
2002
as
the
baseline
year
for
the
8­
hour
ozone
implementation
ruleRFP
SIPs
in
conformity
with
both
the
language
of
the
CAA
and
the
inventory
year
cycle.
Of
reasonable
importance
is
the
need
to
maintain
consistency
with
the
periodic
inventory
for
use
in
various
milestone
considerations
such
as
ROFP,
milestone
compliance
demonstration,
attainment,
and
contingency
plans.
In
addition,
there
should
be
little
if
any
difference
in
the
result
in
terms
of
emissions
reductions
needed
to
demonstrate
timely
attainment.
If
we
use
2002,
the
baseline
may
be
higher
but
areas
can
take
credit
for
any
2002­
2004
emission
reductions
from
federally
enforceable
control
measures.
If
we
use
2004,
the
baseline
may
be
lower
but
areas
can't
take
credit
for
measures
that
produce
emissions
reductions
between
2002­
2004.
Depending
on
the
area,
the
difference
should
be
minimal
in
terms
of
the
difference
in
the
amount
of
reductions
needed
to
reach
attainment
and
what
new
measures
are
necessary
to
get
there.
Also,
EPA
selected
this
baseline
year
at
the
request
of
many
States
to
allow
areas
to
take
credit
for
emissions
reductions
achieved
in
the
2002­
2004
period
as
a
result
of
numerous
recently
adopted
Federal
and
State
measures.
We
believe
it
is
reasonable
to
select
an
inventory
year
for
which
States
were
already
required
to
produce
an
inventory
rather
than
requiring
States
to
produce
an
additional
inventory
(
e.
g.,
for
2004)
that
is
not
otherwise
required.
Moreover,
the
use
of
an
inventory
for
the
designation
year
would
cause
delay,
as
it
would
take
the
States
1­
2
years
after
the
end
of
2004
to
produce
the
inventory
which
would
be
the
basis
for
selecting
controls
to
achieve
the
necessary
reductions.
We
disagree
with
the
commenters
who
urged
use
of
the
1990
inventories.
Use
of
the
1990
baseline
would
be
unreasonable
now
since
it
would
have
to
be
substantially
recalculated
due
to
9We
note
that
even
though
the
draft
regulatory
text
was
structured
to
place
the
specification
of
the
baseline
year
for
RFP
(
as
well
as
for
attainment
demonstrations)
in
§
51.909,
the
final
rule
places
the
RFP
baseline
year
requirement
in
§
51.910.

21
changes
in
emission
calculating
methodologies.
Furthermore,
a
1990
inventory
was
only
required
for
nonattainment
areas
as
of
enactment
of
the
1990
CAA
Amendments
and
therefore
may
not
exist
for
a
number
of
areas
that
are
currently
designated
nonattainment
for
the
8­
hour
standard.
Finally,
we
believe
that
reliance
on
emission
reductions
that
may
have
occurred
well
before
8­
hour
designations
and
classifictions
should
not
be
counted
as
making
progress
toward
attainment.
Comment:
A
comment
on
draft
regulatory
text
§
51.909
noted
that
EPA
specified
various
program
milestone
dates,
which
were
derived
from
the
relationship
of
these
dates
to
the
expected
date
of
initial
designation.
The
commenter
recommends
deleting
all
such
specific
date
references
from
the
regulation,
to
avoid
the
need
for
revising
regulations
if
the
initial
designations
are
not
concluded
as
expected.
This
should
be
replaced
by
a
generic
approach,
for
example
by
requiring
the
most
recent
year's
data
to
be
used
as
the
baseline
in
the
second
sentence
of
§
51.909.
Deleting
the
calendar­
specific
dates
would
not
change
the
result
if
the
designations
occur
as
planned,
yet
would
allow
for
more
recent
data
to
be
used
if
factors
beyond
the
agency's
control
create
a
delay
in
designations.
This
approach
also
will
allow
the
regulation
to
apply
to
future
area
designation
changes,
such
as
areas
that
are
redesignated
nonattainment
at
some
point
in
the
future.
Such
specific
dates
are
more
appropriately
included
as
examples
in
agency
guidance
or
within
the
preamble
of
a
final
rule
with
a
discussion
of
how
they
are
derived.
The
regulation
itself
should
retain
only
the
generic
relationship
between
the
milestone
and
the
effective
date
of
designation,
which
is
the
approach
taken
elsewhere
in
the
rule.
Response:
Because
the
designations
have
already
taken
effect
at
this
point,
we
believe
removing
the
2002
specification
may
only
be
confusing
to
some.
The
final
version
of
rule
(
now
§
51.910(
d))
provides
specificity
regarding
the
appropriate
baseline
year
for
subsequent
nonattainment
designations.
9
4.
Should
moderate
and
higher
classified
areas
be
subject
to
prescribed
additional
RFP
requirements
prior
to
their
attainment
date?
[
Section
VI.
I.
5
of
June
2,
2003
proposed
rule
(
68
FR
32834);
no
draft
orregulatory
text;
section
51.910(
a)(
1)(
i)
of
final
regulatory
text.]
a.
Background
22
As
noted
in
the
proposal,
for
areas
initially
classified
moderate
and
higher
underfor
the
1­
hour
ozone
standard,
the
baseline
inventory
was
defined
as
1990
in
the
CAA
Amendments.
Therefore,
the
6­
year
period
for
the
initial
15
percent
RFP
requirement
ended
in
the
same
year
as
the
attainment
date
for
moderate
areas,
viz.,
1996.
For
areas
classified
moderate
and
higher
under
the
8­
hour
ozone
standard,
however,
we
proposed
that
the
15
percent
RFP
target
level
of
emissions
would
be
calculated
for
the
6­
year
period
after
the
2002
baseline
year,
i.
e.,
2003­
2008.
Moderate
areas
would
be
required
to
meet
an
attainment
date
no
later
than
6
years
after
the
area
is
designated
nonattainment
for
the
8­
hour
standard.
Since
the
effective
date
of
designation
of
nonattainment
areas
is
June
15,
2004,
the
outside
statutory
attainment
date
would
be
June
15,
2010.
This
leaves
approximately
a
1­
1/
2
year
gap
between
the
end
of
the
6­
year
period
for
the
15
percent
RFP
requirement
(
i.
e.,
December
31,
2008)
and
the
maximum
statutory
attainment
date.
If
we
were
to
also
require
moderate
areas
to
obtain
an
additional
three
percent
per
year
emission
reduction
beyond
2008
for
the
1­
1/
2
additional
years
out
to
2010,
the
RFP
requirement
could
be
more
than
what
we
believe
Congress
intended
for
moderate
areas
under
subpart
2.
Additional
three
percent
per
year
reductions
were
only
required
for
serious
and
higher
classified
1­
hour
ozone
nonattainment
areas.
We
proposed
that
the
only
specific
RFP
requirement
applicable
for
moderate
areas
is
the
15
percent
VOC
requirement
between
the
end
of
2002
and
the
end
of
2008.
However,
section
172(
c)(
2)
also
applies,
which
requires
areas
to
meet
RFP
generally,
would
apply
for
any
period
for
which
RFP
is
not
addressed
in
subpart
2.
For
purposes
of
section
172(
c)(
2),
RFP
means
annual
incremental
reductions
as
may
be
required
by
the
Administrator
for
purposes
of
ensuring
attainment.
CAA
Section
171(
1).
Therefore,
we
proposed
a
moderate
area
would
still
also
haveneed
to
provide
any
additional
emissions
reductions
 
VOC
and/
or
NOx
 
needed
to
provide
for
attainment
by
the
area's
attainment
date.
In
proposing
this
approach
for
this
circumstance,
we
interpreted
the
subpart
1
RFP
requirement
to
mean
that
the
area
must
achieve
whatever
further
reduction
is
needed
for
attainment
in
the
remaining
period
prior
to
the
attainment
date
(
2009
through
June
15,
2010).
We
proposed
that
serious
and
higher
classified
areas
would
need
to
provide
in
their
SIPs
an
additional
average
of
three
percent
per
year
emission
reduction
over
each
subsequent
3­
year
period
beyond
the
initial
6­
year
period
through
the
attainment
year,
consistent
with
what
Congress
specified
in
section
182(
c)(
2)(
B)
of
the
CAA.
b.
Summary
of
Final
Rule
In
the
final
rule,
we
are
taking
the
approach
we
proposed.
Moderate
areasWe
are
not
subject
to
anyprescribing
additional
10We
note
that
areas
must
implement
controls
prior
to
the
beginning
of
the
last
ozone
season
preceding
the
attainment
date.
For
moderate
areas
designated
as
of
June
15,
2004,
such
reductions
would
be
needed
by
the
beginning
of
the
2009
ozone
season.

23
prescribed
emissionsincrements
of
reductions
for
RFP
but
insteadthe
1­
1/
2
years
before
the
maximum
attainment
date
for
moderate
areas.
Such
areas
must
provide
for
any
additional
emissions
reductions
(
VOC/
NOx)
needed
to
provide
for
attainment
by
the
beginning
of
the
ozone
season
prior
to
the
area's
attainment
date.
10
Serious
and
higher
classified
areas
would
need
to
provide
in
their
SIPs
an
additional
average
of
three
percent
per
year
emission
reduction
over
each
subsequent
3­
year
period
beyond
the
initial
6­
year
period
through
the
attainment
year.
c.
Comments
and
responses
Comment:
One
commenter
suggested
that
following
the
statutory
timetable
rather
than
the
one
proposed
by
EPA
would
eliminate
the
problem
of
how
to
handle
the
"
1
½
year
gap
between
the
end
of
the
6­
year
period
for
the
15
percent
RFP
requirement
(
i.
e.,
December
31,
2008,
as
proposed
by
EPA)
and
the
attainment
date."
The
commenter
continued
by
saying
that
no
such
gap
is
contemplated
by
subpart
2,
which
provides
in
section
18l(
b)(
l)
that
moderate
areas'
attainment
dates
and
their
15­
percent
VOC
RFP
date
are
to
be
the
same:
6
years
after
their
designation
and
classification.
Response:
WAs
provided
in
an
earlier
response,
we
do
not
believe
the
CAA
requires
the
end
of
the
15
percent
RFP
period
and
the
attainment
date
to
be
the
same.
The
CAA
does
provide,
however,
that
the
15
percent
emission
reductions
under
section
182(
b)(
1)(
A)
must
be
accomplished
within
6
years
of
a
base
year.
We
have
in
a
previous
discussion
above
determined
that
2002
is
the
most
appropriate
baseline
year
for
RFP
purposes.
Therefore,
if
a
moderate
area
needs
additional
emissions
reductions
beyond
2008
for
attainment,
there
will
continue
to
be
a
need
for
additional
emissions
reductions
between
the
end
of
that
6­
year
period
and
the
beginning
of
the
ozone
season
prior
to
the
attainment
date.
Comment:
Another
commenter
noted
the
proposal
states
that
the
only
specific
RFP
requirement
applicable
for
moderate
areas
is
the
15
percent
VOC
requirement
between
the
end
of
2002
and
the
end
of
2008.
However,
section
172(
c)(
2)
also
applies,
requiring
areas
to
meet
RFP
generally.
Therefore,
a
moderate
area
would
still
also
have
to
provide
any
additional
emissions
reductions­
VOC
and/
or
NOx,
i.
e.,
whatever
is
needed
to
provide
for
attainment
by
the
beginning
of
the
ozone
season
prior
to
the
24
area's
attainment
date.
The
commenter
agrees
that
any
additional
emissions
reductions
needed
to
achieve
attainment
are
the
only
reductions
that
should
be
required
of
moderate
areas.
Response:
We
agree
with
the
commenter,
and
our
rule
requires
that
for
purposes
of
meeting
RFP
beyond
2008
until
the
area's
attainment
date,
moderate
areas
must
obtain
such
specific
annual
reductions
inreduce
VOC
and
NOx
emissions
as
necessary
to
attain
by
the
area's
attainment
date.
5.
What
is
the
timing
of
the
submission
of
the
RFP
plan?
[
Section
VI.
I.
6
of
June
2,
2003
proposed
rule
(
68
FR
32834);
§
51.910
of
the
draft
and
final
regulatory
text
(
several
locations).]
a.
Background
As
noted
in
the
proposal,
section
182(
b)(
1)
requires
that
moderate
and
higher
classified
areas
submit
their
15
percent
RFP
plans
within
3
years
after
1990.
Obviously,
applying
the
statute
as
written
is
absurd,
since
we
are
well
past
that
date.
The
CAA
uses
identical
language
for
identifying
areas'
attainment
dates
under
subpart
2.
In
our
Phase
1
rRule,
for
purposes
of
attainment
dates
for
the
8­
hour
NAAQS,
we
interpreted
the
CAA's
language
referring
to
the
date
of
enactment
of
the
1990
CAA
Amendments
to
mean
the
date
of
designations
for
the
8­
hour
standard.
We
noted
in
the
proposal
that
if
we
applied
the
same
interpretation
for
RFP
plans,
i.
e.,
that
they
should
be
submitted
within
3
years
after
the
area's
nonattainment
designation
date
(
i.
e.,
in
2007
if
we
designatethe
area
has
an
effective
designation
in
2004),
the
plans
would
have
to
be
implemented
within
1
year
after
submission
to
ensure
the
15
percent
emissions
reductions
are
achieved
by
the
end
of
the
relevant
6­
year
period
(
i.
e.,
December
2008).
We
indicated
concern
that
this
might
not
provide
sources
with
sufficient
time
to
achieve
the
reductions
by
the
required
deadline.
Therefore,
we
proposed
that
the
RFP
SIP
be
submitted
within
2
years
after
nonattainment
designation
 
namely
by
2006
for
areas
designated
in
2004.
This
would
provide
for
2
years
for
the
State
to
develop
and
submit
its
RFP
plan,
and
another
2
years
for
the
control
measures
to
be
implemented.
We
also
proposed
that
an
area
classified
serious
or
above
submit
its
ROP
plan
within
2
years
after
designation
its
RFP
plan
that
provides
for
18
percent
emissions
reductions
(
VOC
and/
or
NOx)
over
the
first
6
years
from
the
baseline
year
and
then
submit
within
3
years
after
designation
a
ROFP
plan
that
provides
nine
percent
emissions
reductions
(
VOC
and/
or
NOx)
over
each
of
the
next
3­
year
periods
until
the
area's
attainment
date.
b.
Summary
of
Final
Rule
In
the
final
rule,
we
are
taking
a
different
approach
than
proposed
in
light
of
concerns
raised
by
States
in
public
comments.
These
commenters
stated
that
they
would
need
more
than
2
years
for
development,
adoption
and
submission
of
RFP
plans
for
25
the
increment
of
progress
over
the
first
6
years
after
the
baseline
year.
The
EPA
agrees
with
the
several
commenters
who
urged
that
3
years
was
more
consistent
with
the
CAA.
Additionally,
3
years
is
a
more
reasonable
time
period
for
submission
because
it
allows
States
the
necessary
time
to
move
regulatory
actions
through
their
legislative
processes
and
allows
States
to
consider
RFP
in
conjunction
with
their
attainment
demonstrations.
Therefore,
for
moderate
and
higher
classified
areas,
the
first
RFP
SIP
must
be
submitted
within
3
years
after
the
area's
nonattainment
designation.
For
areas
with
a
June
15,
2004
effective
date,
for
the
8­
hour
designations,
the
SIP
would
be
due
by
June
15,
2007.
This
would
provide
up
to
3
years
for
States
to
develop
and
submit
RFP
plans,
and
1
additional
year
(
until
the
end
of
2008)
for
control
measures
to
be
implemented.
The
RFP
SIP
for
any
remaining
3­
year
periods
out
to
the
attainment
date
beyond
the
first
6
years
also
would
be
submitted
with
the
attainment
demonstration,
i.
e.,
within
3
years
after
designation.
However,
since
States
maintain
the
flexibility
to
submit
plans
early
to
provide
more
time
for
implementation
of
their
SIP
control
measures,
we
recommend
that
States
complete
their
RFP
plans
as
soon
as
possible
after
designation
to
provide
as
much
time
as
possible
for
sources
to
implement
the
emissions
reductions.
Furthermore,
States
may
also
begin
implementing
their
control
measures
before
submission
to
EPA
as
part
of
their
SIPs,
which
would
provide
additional
time
sources
may
need
to
comply.
c.
Comments
and
responses
Comment:
Several
commenters
opposed
EPA's
proposal
to
shorten
to
2
years
the
statutory
3­
year
period
for
development
and
submittal
of
15­
percent
VOC
RFP
plans.
They
claim
this
proposal
violates
the
guarantee
of
3
years
for
plan
development
to
the
State
in
section
182(
b)(
l)(
A)
and
is
contrary
to
EPA's
basic
proposed
principle
that
[
quoting
from
the
proposal]
"
subpart
2
SIP
submittals
will
be
due
as
a
general
matter
by
the
same
period
of
time
after
designation
and
classification
under
the
8­
hour
standard
as
provided
in
subpart
2
for
areas
designated
and
classified
at
the
time
of
enactment
of
the
1990
CAA."
The
commenters
contended
that
subpart
2
gives
EPA
no
authority
to
shorten
the
statutory
3­
year
period.
In
contrast,
Congress
in
subpart
1
authorized
EPA
to
set
a
schedule
for
nonattainment
SIP
submissions,
which
may
be
no
later
than
3
years
after
designation.
Congress
therefore
knew
how
to
give
EPA
discretion
to
shorten
SIP
submission
deadlines
according
to
the
commenters;
it
did
not
do
so
in
subpart
2.
Concerning
the
timing
of
submission
of
the
RFP
plan,
another
commenter
was
concerned
that
the
States
may
not
have
sufficient
photochemical
modeling
and
ambient
air
analyses
to
indicate
the
best
mix
of
RFP
SIP
controls.
Additionally,
in
areas
dominated
26
by
mobile
source
emissions,
it
may
not
be
feasible
to
implement
control
measures
to
achieve
the
RFP
target
within
the
next
2
years
after
the
proposed
required
RFP
SIP
submission
date
as
EPA
has
suggested.
The
commenter
suggested
that
EPA
havedevelop
policy
options
available
that
allow
areas
in
such
predicaments
to
maintain
approved
SIPs
if
emissions
reductions
are
not
available
to
meet
RFP
requirements
and/
or
if
available
emission
reduction
techniques
might
be
counterproductive
to
other
local
and
regional
air
quality
goals.
Another
commenter
stated
revisions
to
State
emission
reduction
measures
cannot
be
adopted
and
implemented
easily
in
a
2­
year
time
period
because
they
require
administrative
action
and
frequently
State
legislation
to
approve.
This
period
can
lengthen
when
proposed
measures
like
enhanced
vehicle
I/
M
involve
controversial
actions
affecting
the
public.
Logistically,
a
State
must
establish
a
regulation
by
administrative
action
with
public
input
before
(
though
sometimes
after)
such
a
measure
is
approved
by
the
State's
legislature.
A
number
of
jurisdictions'
legislatures
are
only
in
regular
session
to
consider
such
measures
several
months
or,
in
alternate
years.
Thus,
it
is
unreasonable
for
States
to
have
only
2
years
from
their
nonattainment
designations
to
adopt
new
measures.
Another
commenter
referenced
the
case
NRDC
v.
EPA,
22
F.
3d
1125,
1135
(
D.
C.
Cir.,
1994),
where
the
Court
considered
the
propriety
of
EPA's
extension
of
the
deadlines
by
which
States
had
to
submit
elements
of
their
SIPs.
The
Court
upheld
EPA's
decision
to
extend
the
deadline
for
compliance
with
a
procedural
requirementsubmission
of
the
CAAa
SIP
given
EPA's
failure
to
meet
its
own
deadline
for
providing
certain
necessary
guidance
to
the
States.
The
Court
allowed
EPA
to
use
the
extraordinary
remedy
of
a
deadline
extension
in
this
instance
because
Congress
would
have
intended
that
the
deadline
be
extended
to
provide
a
party
the
full
statutory
time
for
acting
on
the
agency
guidance.
The
commenter
contended
that
section
182(
b)(
1)
does
not
give
EPA
the
discretion
to
set
a
shorter
time
period
than
3
years,
it
only
allows
a
State
to
make
its
submission
early
if
it
so
desires.
The
commenter
referenced
CAA
section
126(
c)
where
EPA
may
set
a
compliance
deadline
"
as
expeditiously
as
possible,
but
in
no
case
later
than
3
years
after
the
date
of
such
finding."
One
commenter
noted
that
CAA
section
182(
b)(
1)(
A)
as
modified
by
section
181(
b)(
1)
requires
for
moderate
areas
that
the
RFP
SIP
be
submitted
3
years
after
designation.
The
commenter
disagreed
with
the
RFP
plan
requirement
to
submit
the
plan
2
years
after
the
effective
date
of
the
nonattainment
designation
as
not
being
consistent
with
or
supported
by
these
CAA
sections.
The
resources
involved
in
developing,
proposing
and
adopting
any
SIP
revision
are
not
insignificant.
In
order
to
ensure
the
most
efficient
use
of
resources,
the
commenter
27
contended
that
EPA
should
not
require
this
SIP
revision
sooner
than
the
submission
of
the
attainment
demonstration,
3
years
after
the
effective
date
of
the
designations.
Allowing
States
3
years
to
submit
the
RFP
plan
is
consistent
with
existing
CAA
requirements.
Response:
After
consideration
of
the
comments,
we
have
changed
the
final
rule
to
be
consistent
with
the
approach
advocated
inby
a
number
of
commenters.
In
consideration
of
the
2004
designation
and
the
need
to
achieve
the
2008
RFP
reductions
by
December
2008,
it
seems
reasonable
to
EPA
that
States
first
be
given
sufficient
time
after
designation
to
formulate
RFP
plans
and
then
adequate
time
to
meet
the
RFP
demonstration
after
the
RFP
plan
is
due.
Therefore,
the
final
rule
allows
States
up
to
3
years
after
designation
to
submit
their
RFP
SIPs.
WHowever,
to
the
extent
States
are
relying
on
newly
developed
rules
to
meet
all
or
part
of
the
RFP
requirement,
we
recommend
that
States
complete
their
RFP
plansadopt
those
rules
as
soon
as
possible
after
designation
to
provide
as
much
time
as
possible
for
sources
to
achieve
the
emissions
reductions.
6.
How
should
CAA
restrictions
on
creditable
measures
be
interpreted?
Which
national
measures
should
count
as
generating
emissions
reductions
credit
toward
RFP
requirements?
[
Section
VI.
I.
7
of
June
2,
2003
proposed
rule
(
68
FR
32834);
§
51.910(
a)(
4)
of
the
draft
regulatory
text;
§
51.910(
a)(
3)
of
the
final
regulatory
text.]
a.
Background
Section
182(
b)(
1)
contains
provisions
that
limit
creditability
toward
meeting
RFP
for
certain
limited
emission
reduction
measures
required
prior
to
the
enactment
of
the
CAA
Amendments
of
1990.
We
noted
in
the
proposal
that
we
believe
these
specific
restrictions
should
continue
to
apply
for
purposes
of
the
8­
hour
NAAQS.
The
proposal
noted
that
Congress
intended
to
prevent
areas
from
taking
credit
for
RFP
only
for
those
specific
measures
that
were
already
adopted
and
in
place
(
or
required
to
be
in
place)
prior
to
the
date
of
enactment
of
the
CAA
Amendments
of
1990
(
November
15,
1990).
We
said
that
this
same
logic
holds
true
for
the
RFP
requirement
as
it
applies
to
the
8­
hour
ozone
standard,
namely
preventing
credit
toward
the
mandatory
RFP
percent
reductions
for
continuing
reductions
from
those
specific
measures
cited
in
the
CAA
that
were
already
adopted
and
in
place
(
or
required
to
be
adopted
and
in
place)
prior
to
the
date
of
enactment
of
the
CAA
Amendments
of
1990.
There
is
no
indication
in
the
CAA
that
this
exclusion
should
be
changed.
Congress
mandated
many
emissions
reductions
in
the
1990
Amendments
with
no
indication
that
they
should
not
be
credited
to
meeting
RFP
or
attainment
of
any
existing
or
revised
NAAQS.
Therefore,
we
proposed
that
all
emissions
reductions
that
occur
from
all
Federal
and
any
other
measures
not
otherwise
identified
28
in
section
182(
b)(
1)(
C)
and
(
D)
and
that
occur
after
the
baseline
emissions
inventory
year
would
be
creditable
for
the
RFP
requirement.
A
number
of
examples
demonstrating
emissions
reductions
that
would
be
creditable
toward
the
RFP
requirement
were
set
forth
in
our
proposal.
b.
Summary
of
final
rule
We
are
taking
the
approach
we
proposed,
under
which
all
emissions
reductions
that
occur
after
the
baseline
emissions
inventory
year
are
creditable
for
purposes
of
the
RFP
requirements
in
this
section
except
as
specifically
provided
in
section
182(
b)(
1)(
C)
and
(
D)
and
section
182(
c)(
2)(
B)
of
the
CAA.
These
provisions
exclude
emissions
reductions
from
four
categories
identified
above
in
the
background.
The
restriction
imposed
by
section
182(
b)(
1)(
D)
limits
crediting
reductions
from
the
following
four
categories:
°
Corrections
to
SIPs:
corrections
to
or
additions
of
RACT
rules
as
required
by
CAA
section
182(
a)(
2)(
A).
°
Corrections
to
SIPs:
corrections
to
I/
M
programs
for
areas
where
the
SIP
included
or
was
required
to
include
a
schedule
for
I/
M
implementation
under
the
CAA
in
effect
immediately
before
November
15,
1990.
°
Regulations
concerning
Reid
Vapor
Pressure
(
RVP)
promulgated
by
EPA
before
November
15,
1990
or
required
to
be
promulgated
under
CAA
section
211(
h).
°
Motor
vehicle
exhaust
or
evaporative
emissions
measures
promulgated
by
EPA
by
January
1,
1990.
c.
Comments
and
responses
Comment:
One
commenter
supported
EPA's
proposal
to
allow
credit
towards
RFP
requirements
of
all
emissions
reductions,
which
occur
after
the
baseline
emissions
inventory
year
(
2002)
from
all
Federal,
and
any
other
measures
not
otherwise
identified
under
section
182(
b)(
1)(
D).
This
would
include
reductions
from
cleaner
fuels
and
engines,
reductions
from
ongoing
1­
hour
SIP
controls
and
VOC
reductions
from
implementation
of
MACT
standards
after
the
baseline
year.
The
commenter
stated
that
this
proposed
approach
would
be
critical
in
a
number
of
areas
that
already
have
stringent
stationary
source
controls
and/
or
in
areas
dominated
by
mobile
source
emissions.
Response:
The
EPA
acknowledges
this
comment
of
support
for
our
final
action.
Comment:
Another
commenter
believed
that
early
voluntary
emissions
reductions
prior
to
2003,
and
not
required
under
the
CAA,
should
also
be
creditable
toward
RFP
requirements.
The
commenter
recommended
that
EPA's
final
rule
clarify
that
States
be
allowed
credit
for
RFP
for
early
voluntary
emissions
reductions
occurring
prior
to
2003.
As
a
company
that
has
proactively
taken
measures
to
reduce
NOx
emissions
through
innovative
Combustion
Initiative
(
an
enhanced
efficiency
11For
example,
if
an
area
had
VOC
emissions
in
2001
of
100
tons
per
day,
and
a
source
reduces
emissions
by
10
tons
per
day
in
2002,
the
baseline
emissions
will
be
90
tons
per
day.
Thus,
the
area
will
need
to
achieve
13.5
tons
per
day
reduction
to
meet
its
15
percent
requirement,
rather
than
15
tons
per
day.
However,
the
area
cannot
take
credit
in
the
15
percent
plan
for
the
10
tons
per
day
of
emissions
that
are
not
part
of
the
baseline
inventory.

29
technology),
the
commenter
believed
that
EPA's
regulations
should
take
these
efforts
into
account
as
they
have
resulted
in
real
improvements
to
air
quality.
Another
commenter
stated
that
companies
who
made
voluntary
reductions
prior
to
2003
would
be
penalized
for
having
undertaken
such
voluntary
measures
and,
thus
disallowing
credit
for
these
reductions
provides
disincentives
for
voluntary
reductions.
Response:
Voluntary
reductions
that
occur
prior
to
January
1,
2003
will
be
reflected
in
the
area's
baseline
inventory.
This
lower
baseline
means
that
fewer
reductions
will
be
needed
to
achieve
RFP.
11
Allowing
an
area
to
take
credit
for
reducing
emissions
that
are
not
included
in
the
inventory
would
result
in
"
double
counting"
of
those
emission
reductions.
Comment:
One
commenter
suggested
that
areas
should
be
able
to
take
credit
for
MACT
standards
that
may
reduce
VOC
for
which
compliance
is
required
after
the
2002
baseline
year.
The
commenter
said
it
would
be
helpful
to
States
if
EPA
produced
a
document
detailing
the
expected
VOC
reductions
after
implementation
of
MACT
standards.
States
could
claim
these
reductions
toward
any
reductions
required
to
meet
their
target.
The
commenter
suggested
that
the
most
useful
way
to
express
the
reduction
would
be
as
a
percent
of
the
2002
emissions.
Response:
The
EPA
agrees
that
areas
can
take
credit
in
RFP
plans
for
post­
2002
VOC
reductions
from
MACT
standards.
We
are
still
considering
whether
to
develop
the
recommended
guidance.
Comment:
One
commenter
objected
to
EPA's
proposal
to
allow
States
to
claim
RFP
credit
from
any
reductions
achieved
through
post
1990­
adoption
of
the
types
of
measures
listed
in
section
182(
b)(
1)(
D).
TheyThe
commenter
further
stated
that
section
182(
b)(
1)(
D)
prohibits
granting
RFP
credit
for
any
measures
contained
on
the
list.
Congress
wanted
the
RFP
reductions
to
be
new
reductions
rather
than
emission
cuts
that
would
have
occurred
anyway.
In
the
case
of
8­
hour
nonattainment
areas,
the
baseline
year
will
be
2002.
Therefore,
according
to
the
commenter,
to
be
consistent
with
subpart
2,
EPA
must
disallow
RFP
credit
for
measures
listed
in
section
182(
b)(
1)(
D)
adopted
any
time
prior
to
2002.
12Applicable
requirements
are
federally­
enforceable
requirements
under
the
CAA
that
are
created
elsewhere
but
incorporated
into
a
Title
V
permit.
See
the
definition
of
"
Applicable
requirement"
in
40
CFR
70.2
and
71.2
30
Another
commenter
urged
EPA
to
consider
a
hybrid
approach
that
gives
States
credit
for
approved
RFP
plans
that
go
beyond
2002,
provided
that
the
Plan
is
evaluated
on
a
2002
baseline.
This
approach
would
give
States
credit
for
ongoing
emissions
reductions,
recognize
the
need
to
address
the
8­
hour
standard
as
the
ozone
standard
(
rather
than
rely
on
plans
developed
to
meet
the
1­
hour
standard),
and
potentially
avoid
some
unneeded
controls.
Another
commenter
recommended
that
EPA
not
allow
emissions
reductions
credit
for
all
emissions
reductions
occurring
after
the
baseline
year.
Emissions
reductions
to
satisfy
the
RFP
requirements
of
CAA
section
182(
b)(
1)
and
182(
c)(
2)(
B)
are
required
to
be
achieved
by
submitting
"
a
revision
to
the
applicable
implementation
plan
to
provide
for
.
.
.
emissions
reductions."
The
commenter
argued
that
emissions
reductions
already
required
by,
or
accounted
for
in,
the
applicable
implementation
plan
may
not
be
credited
toward
the
new
RFP
requirements.
For
example,
reductions
that
were
required
to
be
achieved
by
SIP
or
other
requirements,
but
which
were
not
achieved
in
practice
prior
to
the
baseline
year,
should
not
be
credited
toward
meeting
the
new
RFP
reductions
required
after
the
baseline
year.
Only
new
measures
submitted
with
the
new
SIP
revision
may
be
credited
for
this
purpose.
Response:
The
EPA
believes
that,
with
certain
exceptions
(
see
CAA
section
182(
b)(
1)(
C)
and
(
D)),
any
reductions
that
occur
after
2002
are
creditable
towards
RFP
and
attainment
and
that
it
should
not
matter
when
the
State
initially
adopted
or
EPA
promulgated
the
measures
that
produce
those
reductions.
The
CAA
does
not
mandate
the
approaches
advocated
in
the
comments.
While
the
comments
cite
phrases
in
the
CAA
that
might
be
read
to
support
the
approach
advocated
in
the
comments,
EPA
believes
such
an
interpretation
is
at
odds
with
other
provisions
of
the
CAA.
In
addition
to
the
restriction
imposed
by
section
182(
b)(
1)(
D)
on
crediting
certain
measures,
section
182(
b)(
1)(
C)
places
only
two
restrictions
on
creditability
of
reductions
towards
RFP:
first,
reductions
are
creditable
if
they
result
from
measures
in
the
applicable
implementation
plan,
i.
e.,
the
approved
SIP,
or
from
rules
promulgated
by
EPA
or
from
a
permit
issued
under
title
V,
or
from
the
applicable
requirements12
that
are
incorporated
into
a
Title
V
permit;
and
secondly,
only
those
reductions
that
have
actually
occurred
after
the
baseline
year
and
before
the
milestone
date
may
be
credited
towards
a
RFP
milestone.
The
31
requirement
that
the
reductions
result
from
measures
in
the
applicable
implementation
plan,
or
EPA
regulations,
or
a
tapplicable
requirements
contained
in
a
Title
V
operating
permit
placesimposes
no
restriction
that
such
measures
must
be
measures
promulgated
by
EPA,
adopted
by
the
State,
or
in
a
title
V
permit
issuedenacted
after
the
date
of
designation
or
after
the
baseline
year.
This
restriction
only
requires
that
the
measure
be
approved
into
the
SIP,
be
a
rule
promulgated
by
EPA,
or
be
an
applicable
requirement
included
in
a
Title
V
permit
issued
before
or
concurrently
with
approval
of
the
RFP
SIP
revisions,
and
that
the
reductions
occur
after
the
baseline
year
and
before
the
milestone
date.
While
this
provision
limits
EPA's
discretion
to
allow
credit
towards
the
RFP
requirement
from
any
reduction
that
does
not
fit
into
any
of
the
three
aforementioned
classes
of
measures,
EPA
does
not
see
anything
in
the
statute
that
mandates
the
adoption
of
the
approach
advocated
in
the
comments.
In
fact,
EPA
believes
the
opposite
is
the
case.
The
same
argument
(
i.
e.,
that
creditable
RFP
measures
must
be
measures
adopted/
promulgated
after
designation
or
after
the
baseline
year)
could
have
been
made
for
the
various
programs
mandated
by
the
1990
CAA
Amendments.
These
mandated
measures
included
RACT
requirements
under
section
182(
b)(
2),
stage
II
vapor
recovery
under
section
182(
b)(
3),
motor
vehicle
I/
M
under
sections
182(
b)(
4)
and
182(
c)(
3),
reformulated
gasoline
under
section
211(
k),
and
the
Tier
1
motor
vehicle
standards
under
title
II.
The
EPA
believes
the
statute
is
plain
that
Congress
envisioned
that
all
of
these
would
be
adopted
after
1990
and
in
most
cases
implemented
before
1996
because
the
statute
contains
enforceable
deadlines
for
submission
of
the
requisite
SIP
revisions
or
promulgation
of
the
EPA
rules.
In
many
cases,
they
contain
required
implementation
dates
before
1996.
Congress
clearly
did
not
limit
credit
from
thefor
RFP
requirements
for
any
of
these
measures.
In
our
proposed
rulemaking,
EPA
specifically
proposed
allowing
use
of
reductions
resulting
from
any
measure
as
long
as
the
reductions
meet
the
creditability
criteria
of
section
182(
b)(
1)(
C)
for
the
very
reason
EPA
concluded
Congress
did
not
intend
to
impose
the
sort
of
limit
on
creditability
advocated
in
the
comments
for
the
1­
hour
standard
and
for
any
revised
standard.
In
summary,
the
statute
says
that
only
four
specific
categories
of
emissions
reductions
are
restricted.
It
does
not
refer
to
or
include
any
post­
1990
rules'
emissions
reductions
as
restricted
and
only
speaks
to
creditability
in
terms
of
when
the
reductions
occurred,
not
when
the
rules
or
measures
were
adopted.
As
explained
in
the
proposal
and
the
preceding
paragraphs,
Congress
had
reason
to
limit
creditability
of
pre­
1990
rules,
mandated
many
post­
90
rules
and
allowed
these
rules
to
be
32
credited
towards
post­
90
RFP,
and
nothing
in
the
statute
leads
us
to
believe
that
Congress
would
not
have
wanted
them
to
also
be
creditable
to
post­
2002
RFP.
The
EPA
believes
it
is
appropriate
to
allow
credit
toward
RFP
for
emissions
reductions
other
than
reductions
from
the
four
categories
specified
in
the
CAA
pursuant
to
section
182(
b)(
1)(
CD).
Language
that
was
once
pertinent
to
the
schedule
of
the
1990
CAA
Amendments
should
be
reinterpreted
now
to
mean
emission
reductions
are
creditable
toward
emission
reductions
requirements
to
the
extent
they
have
actually
occurred
as
of
6
years
after
any
baseline
year
including
2002.
7.
For
areas
covered
only
by
subpart
1,
how
should
the
RFP
requirement
be
structured?
[
Section
VI.
I.
8.
of
June
2,
2003
proposed
rule
(
68
FR
32834);
§
51.910(
b)
of
the
draft
and
final
regulatory
text.]
a.
Background
The
proposal
noted
that
the
RFP
requirement
under
subpart
1
is
more
general
than
that
under
subpart
2,
and
EPA
thus
has
more
flexibility
in
determining
what
RFP
means
under
subpart
1.
For
instance,
the
State
may
rely
on
emissions
reductions
of
VOC
or
NOx,
or
a
combination
of
both
to
meet
its
RFP
requirement
whereas
subpart
2
limits
the
initial
15
percent
to
VOC
emissions
reductions.
However,
we
acknowledged
the
need
for
ensuring
equity
betweenconcern
about
providing
similar
treatment
of
areas
with
similar
8­
hour
ozone
problems
covered
under
subpart
1
and
those
covered
under
subpart
2.
We
proposed
three
scenarios
for
three
types
of
areas
described
as
(
a)
Areas
with
attainment
dates
3
years
or
less
after
designation,
(
b)
Areas
with
attainment
dates
between
3
to
6
years
after
designation,
and
(
c)
Areas
with
attainment
dates
beyond
6
years
after
attainment.
°
Areas
with
attainment
dates
3
years
or
less
after
designation.
We
proposed
an
RFP
requirement
for
these
areas
similar
to
that
for
areas
under
subpart
2
that
are
classified
as
marginal.
Such
an
area
would
not
be
subject
to
a
separate
RFP
requirement,
but
RFP
would
be
met
by
demonstrating
the
area
could
attain
the
standard
by
its
attainment
date.
°
Areas
with
attainment
dates
between
3
to
6
years
after
designation.
These
areas
would
have
attainment
dates
similar
to
subpart
2
areas
classified
as
moderate.
We
proposed
two
options
for
these
areas:
°
Option
1.
This
option
would
require
the
RFP
plan
to
be
submitted
with
the
attainment
demonstration
within
3
years
after
designation
of
the
nonattainment
area.
The
SIP
would
have
to
show
that
all
emissions
reductions
needed
for
attainment
would
be
implemented
by
the
attainment
date.
Where
areas
have
only
3
years
after
SIP
submission
before
13NOx
Substitution
Guidance.
December
15,
1993;
available
at
http://
www.
epa.
gov/
ttn/
oarpg/
t1pgm.
html).

33
attainment,
this
option
recognizes
that
there
may
be
only
a
short
amount
of
time
available
to
achieve
any
specified
emission
reductions
beyond
thatthose
needed
to
demonstrate
attainment
and
therefore
would
not
require
a
showing
that
a
specified
amount
of
emissions
reductions
occur
between
the
time
of
SIP
submission
and
the
attainment
date.
The
draft
regulatory
text
incorporated
this
option.
°
Option
2.
This
option
would
have
required
these
areas
to
be
treated
in
a
manner
similar
to
subpart
2
areas
classified
as
moderate.
The
RFP
SIP
would
have
to
provide
for
a
15
percent
emission
reduction
from
the
baseline
year
within
6
years
after
the
baseline
year.
The
RFP
SIP
would
have
to
be
submitted
within
2
years
after
designation.
However,
since
the
area
is
subject
only
to
subpart
1,
VOC
or
NOx
emissions
reductions
could
be
relied
on
to
meet
the
15
percent
reduction
requirement,
consistent
with
EPA's
NOx
substitution
policy.
13
Also,
we
solicited
comment
on
whether
a
percentage
other
than
15
percent
should
be
required
as
the
minimum.
Additional
measures
that
would
provide
the
remaining
portion
of
the
emissions
reductions
needed
for
attainment
would
have
to
be
submitted
with
the
area's
attainment
demonstration
within
3
years
after
designation.
°
Areas
with
attainment
dates
beyond
6
years
after
designation.
These
areas
are
similar
inwould
have
attainment
dates
similar
to
areas
classified
under
subpart
2
as
serious
or
higher.
We
proposed
that
the
RFP
plan
show
increments
of
progress
from
the
baseline
emissions
inventory
year
out
to
the
attainment
date.
The
RFP
SIP
would
first
have
to
provide
for
a
15
percent
emission
reduction
from
the
baseline
year
within
6
years
after
the
baseline
year.
The
15
percent
RFP
SIP
would
have
to
be
submitted
within
2
years
after
designation.
However,
since
the
area
is
subject
only
to
subpart
1,
NOx
emissions
reductions
could
be
substituted
for
some
or
all
of
the
15
percent
reduction
requirement,
consistent
with
EPA's
NOx
substitution
policy.
Also,
we
solicited
comment
on
whether
a
percentage
other
than
15
percent
would
be
more
appropriate.
Then,
for
each
subsequent
3­
year
period
out
to
the
attainment
date,
another
RFP
SIP
would
have
to
provide
for
an
additional
increment
of
progress
no
less
than
the
amount
of
emissions
reductions
that
would
be
roughly
proportional
to
the
time
between
the
end
of
the
first
increment
(
in
2008)
to
the
attainment
date.
This
second
RFP
SIP
would
have
to
be
submitted
at
the
same
time
as
the
attainment
demonstration,
namely
within
3
years
after
designation.
34
b.
Summary
of
Final
Rule
We
are
finalizing
rules
for
two,
rather
than
three,
categories
of
areas
based
on
the
CAA's
division
of
attainment
dates
for
subpart
1
areas
under
section
172(
a)(
2).
This
provision
requires
that
subpart
1
areas
must
attain
as
expeditiously
as
practicable
but
no
later
than
5
years
after
designation
as
a
nonattainment
area.
It
also
allows
the
Administrator
to
extend
the
attainment
date
beyond
that
5
year
period
"
.
.
.
for
a
period
no
greater
than
10
years
from
the
date
of
designation
as
nonattainment,
considering
the
severity
of
nonattainment
and
the
availability
and
feasibility
of
pollution
control
measures."
The
two
scenarios
for
RFP
for
subpart
1
areas
are
based
on
whether
the
area
does
or
does
not
receive
thean
extended
attainment
date.
The
following
are
the
two
scenarios
and
the
RFP
requirements
for
each:
Scenario
A:
Areas
with
attainment
dates
5
years
or
less
after
designation
(
i.
e.,
on
or
before
June
15,
2009
for
areas
designated
June
15,
2004).
As
noted
elsewhere
in
this
preamble,
for
areas
classified
under
subpart
1,
emissions
reductions
needed
for
attainment
must
occur
by
the
beginning
of
the
ozone
season
preceding
the
attainment
date.
Thus,
to
enable
a
SIP
to
demonstrate
attainment
by
June
15,
2009,
the
area
must
achieve
all
necessary
reductions
by
the
beginning
of
the
2008
ozone
season.
The
final
rule
provides
that
RFP
for
these
areas
would
be
met
by
ensuring
emission
reductions
needed
for
attainment
are
implemented
as
noted
above
by
the
beginning
of
the
ozone
season
prior
to
the
attainment
date.
In
other
words,
for
purposes
of
RFP,
these
areas
would
be
treated
similar
to
subpart
2
RFP
for
areas
classified
as
marginal
(
although
marginal
areas
are
not
required
under
the
CAA
to
submit
an
attainment
demonstration).
Scenario
B:
Areas
with
attainment
dates
more
than
5
years
after
designation
(
i.
e.,
beyond
June
15,
2009
for
those
areas
designated
June
15,
2004).
For
these
areas:
°
The
RFP
plan
must
show
increments
of
progress
from
the
baseline
emissions
inventory
year
out
to
the
attainment
date.
°
The
RFP
SIP
would
first
have
to
provide
for
a
15
percent
emission
reduction
from
the
baseline
year
through
the
6th
year
after
the
baseline
year
(
i.
e.,
from
January
1,
2003
through
December
31,
2008).
°
The
15
percent
RFP
SIP
must
be
submitted
within
3
years
after
designation
(
i.
e.,
by
June
15,
2007).
°
However,
since
the
area
is
subject
only
to
subpart
1,
NOx
or
VOC
emission
reductions
(
or
both)
could
be
used
to
achieve
the
15
percent
emission
reduction
requirement.
°
For
each
subsequent
3­
year
period
(
after
2008)
out
to
the
attainment
date,
the
RFP
SIP
would
have
to
provide
for
an
35
additional
increment
of
progress
no
less
than
the
amount
of
emission
reductions
that
would
be
roughly
proportional
to
the
time
between
the
end
of
the
first
increment
(
December
31,
2008)
and
the
attainment
date.
This
second
RFP
SIP
must
also
be
submitted
within
3
years
after
the
effective
date
of
designation
(
i.
e.,
by
June
15,
2007).
While
the
adopted
rule
is
not
identical
to
any
of
the
proposed
options,
we
believe
it
is
a
logical
outgrowth
of
our
three
proposed
scenarios.
The
adopted
approach
is
more
stringent
than
certain
of
the
proposed
options
and
less
stringent
than
others.
Since
this
final
decision
incorporates
elements
of
the
three
proposed
scenarios,
we
believe
it
is
similar
in
result
to
the
three
scenarios
proposed.
c.
Comments
and
responses
Comment:
One
commenter
stated
that
EPA
has
no
authority
to
adopt
"
Option
1"
for
areas
with
attainment
dates
between
3
and
6
years
after
designation,
because
that
option
would
waive
any
showing
of
RFP.
Others
supported
the
proposal
that
ties
the
required
RFP
showing
to
the
attainment
date.
Specifically,
these
commenters
supported
the
proposal
that
areas
with
attainment
dates
of
3
years
or
less
should
have
no
separate
RFP
requirement,
consistent
with
the
requirement
applicable
to
marginal
areas
under
subpart
2.
In
addition,
support
was
shown
for
Option
1
for
subpart
1
areas
with
an
attainment
date
between
3
and
6
years
following
designations.
Under
Option
1,
areas
would
have
to
show
an
adequate
rate
of
reduction
in
order
to
achieve
attainment
by
the
deadline,
but
there
would
be
no
specific
percentage
reduction
required.

Text
Was
Moved
From
Here:
1
Response:
The
EPA
acknowledges
that
Congress
prescribed
specific
RFP
requirements
under
subpart
2,
but
for
subpart
1
provided
more
flexibility.
Our
rule
does
not
eliminate
RFP
obligations
for
subpart
1
areas.
We
are
not
requiring
any
specific
percent
reduction
for
subpart
1
areas
not
subject
to
15
percent
VOC
reductions
and
with
near­
term
attainment
dates.
The
measures
that
bring
about
nearterm
attainment
represent
all
the
reductions
that
are
reasonable
to
require
as
annual
incremental
progress
towards
attainment.
The
EPA
is
not
compelled
to
require
a
15
percent
emission
reduction
for
all
subpart
1
areas,
especially
in
those
cases
where
a
full
15
percent
is
not
needed
in
order
to
reach
attainment.
However,
we
believe
that
it
is
generally
appropriate
to
require
the
full
15
percent
for
areas
with
long­
term
attainment
dates
to
ensure
interim
progress
towards
attainment
and
on
equity
grounds.
8.
How
should.
36
Comment:
Some
commenters
supported
the
proposal
that
ties
the
required
RFP
showing
to
the
attainment
date.
Specifically,
these
commenters
supported
the
proposal
that
areas
with
attainment
dates
of
3
years
or
less
should
have
no
separate
RFP
requirement,
consistent
with
the
requirement
applicable
to
marginal
areas
under
subpart
2.
In
addition,
support
was
shown
for
Option
1
for
subpart
1
areas
with
an
attainment
date
between
3
and
6
years
following
designations.
Under
Option
1,
areas
would
have
to
show
an
adequate
rate
of
reduction
in
order
to
achieve
attainment
by
the
deadline,
but
there
would
be
no
specific
percentage
reduction
required.
Response:
We
acknowledge
the
support
of
these
comments.

Text
Moved
Here:
1
Comment:
Another
commenter
believed
that
a
15
percent
emissions
reductions
requirement
should
only
be
required
where
such
reductions
would
meaningfully
advance
the
date
of
attainment.
The
RFP
requirement
in
subpart
1
requires
that
the
SIP
provide
for
"
reasonable
further
progress,"
and
where
emissions
reductions
would
not
create
"
reasonable
further
progress"
either
in
the
area
itself
or
in
downwind
areas,
there
is
no
basis
under
subpart
1
to
require
such
specific
emission
reductions.
They
further
said
that
requiring
a
potentially
expensive
reduction
in
emissions
in
those
cases
where
that
reduction
would
not
improve
air
quality
was
not
justified
based
on
a
notion
of
"
equity"
with
similar
areas
classified
under
subpart
2
and
noted
that
such
an
interpretation
was
not
required
by
the
statute
or
sensible.
That
some
subpart
2
areas
might
have
to
reduce
emissions
by
a
specified
percentage
even
where
such
reductions
would
yield
no
positive
environmental
benefits
is
an
unfortunate
result
of
the
Congress'
decision
to
limit
EPA's
discretion
under
subpart
2
 
which
in
turn
is
a
result
of
a
far
less
sophisticated
understanding
of
the
dynamics
of
ozone
creation
in
1990
than
exists
now
 
and
where
EPA
has
the
discretion
not
to
dictate
an
ineffective
and
inefficient
result,
it
must
exercise
that
discretion.
End
Of
Moved
Text
Response:
We
addressed
in
general
those
comments
that
recommended
alternatives
to
the
mandatory
measures
of
subpart
2
(
which
includes
the
RFP
requirements
be
implemented
for
areas
designated
for
the
8­
hour
ozone
standard
that
entirely
or
in
part
encompass
areas
that
were
designated
nonattainment
for
the
1­
hour
ozone
standardrequirement)
in
the
response
to
comments
above
under
the
topic,
"
Should
prescribed
requirements
of
subpart
2
apply
in
all
8­
hour
nonattainment
areas
classified
under
subpart
2,
or
is
there
flexibility
in
application
in
certain
narrowly
defined
circumstances?"
We
conclude
in
that
section
that
EPA
has
no
discretion
to
broadly
waive
mandatory
requirements.
However,
37
we
noted
that
case
law
may
provide
support
for
case­
by­
case
waivers
where
implementation
of
a
measure
would
produce
an
absurd
result.
8.
Where
part
of
an
8­
hour
nonattainment
area
was
a
1­
hour
nonattainment
area
with
an
ROP
obligation
extending
past
2002,
can
emission
reductions
from
the
area's
1­
hour
ROP
plan
be
used
as
credit
toward
meeting
the
area's
8­
hour
RFP
plan?
[
Section
VI.
I.
9.
of
June
2,
2003
proposed
rule
(
68
FR
32835);
no
draft
or
final
regulatory
text;
§
51.910(
a)(
1)(
iii)
of
final
rule.]
a.
Background
We
proposed
the
following
approach
to
address
this
issue.
Where
an
area
has
both
1­
hour
and
8­
hour
RFP
obligations
for
the
post­
2002
period,
the
State
may
rely
on
emission
reductions
in
from
the
1­
hour
plan
in
achieving
RFP
for
the
8­
hour
standard.
The
State
would
have
tocould
develop
a
new
baseline
and
new
RFP
emission
reduction
targets
for
the
entire
8­
hour
standard
nonattainment
area
(
i.
e.,
the
old
1­
hour
standard
nonattainment
area
and
theany
newly
added
portion
of
the
8­
hour
standard
nonattainment
area).
Emissions
reductions
from
measures
in
the
1­
hour
ozone
SIP
that
are
achieved
after
the
8­
hour
ozone
NAAQS
baseline
year
could
count
(
subject
to
creditability
restrictions
as
discussed
above
in
the
proposed
rulemaking)
toward
meeting
the
RFP
requirement
for
the
entire
8­
hour
area.
This
approach
would
set
an
RFP
target
for
the
entire
8­
hour
ozone
nonattainment
area.
The
State
would
have
to
ensure
that
the
target
is
at
least
as
stringent
as
the
1­
hour
RFP
target,
thus
ensuring
no
backsliding
on
the
1­
hour
NAAQS
requirements.
Under
this
approach,
the
new
RFP
target
for
the
8­
hour
standard
would
replace
the
previous
1­
hour
ROP
target
(
while
ensuring
that,
at
a
minimum,
the
emissions
reductions
required
to
meet
the
old
target
are
met).
The
proposal
did
not
address
how
the
15
percent
ROP
requirement
would
apply
to
an
8­
hour
area
that
includes
(
in
whole
or
in
part)
a
1­
hour
area
that
previously
met
the
15
percent
ROP
requirement,
but
also
included
one
or
more
counties
that
were
not
previously
subject
to
the
15
percent
ROP
requirement.;
see
40
CFR
51.905(
a)(
1)(
iii)).
b.
Summary
of
final
rule
We
are
incorporating
the
proposed
approach.
As
noted
above,
an
8­
hour
nonattainment
area
that
is
identical,
geographically,
to
its
predecessor
1­
hour
nonattainment
area
(
which
has
already
done
the
15
percent
reduction)
will
not
be
required
to
do
another
15
percent
VOC­
only
reduction
plan.
Although
the
proposal
did
not
address
the
15
percent
VOC
reduction
requirement
for
an
8­
hour
moderate
or
higher
nonattainment
area
that
contains
a
1­
hour
nonattainment
area
that
has
an
approved
15
percent
VOC
ROP
plan,
we
have
addressed
this
in
the
final
rule.
We
believe
the
approach
we
have
adopted
is
consistent
with
the
intent
of
the
38
proposal.
The
final
rule
allows
States
the
choice
between
the
following
two
options.
°
Option
1.
Develop
a
new
baseline
and
new
15
percent
VOC
ROP
emission
reduction
target
for
the
entire
newly
expanded
area.
Determine
that
emissions
reductions
that
occur
after
the
2002
baseline
emissions
inventory
year
are
creditable
in
the
combined
new
area.
The
reductions
must
be
of
VOC
only.
°
Option
2.
Treat
the
8­
hour
nonattainment
area
as
divided
between
the
old
1­
hour
area
and
the
newly
added
8­
hour
area.
For
the
newly
added
portion
(
which
had
not
previously
implemented
a
15
percent
plan),
States
must
establish
a
separate
15
percent
VOC
target
under
subpart
2.
Volatile
organic
compound
reductions
to
meet
the
15
percent
requirement
for
the
portion
of
the
new
8­
hour
nonattainment
area
may
come
from
across
the
entire
8­
hour
area.
The
portion
of
the
area
that
was
nonattainment
for
the
1­
hour
standard
is
subject
to
the
subpart
1
provisions
of
the
CAA,
and
both
VOC
and
NOx
emissions
reductions
can
be
credited
toward
meeting
the
RFP
target
for
this
portion
of
the
nonattainment
area.
Furthermore,
for
an
8­
hour
nonattainment
area
that
is
composed
in
total
by
various
1­
hour
areas
that
had
15
percent
plans
(
i.
e.,
the
8­
hour
boundaries
are
not
exactly
the
same
as
the
1­
hour
boundaries
but
all
parts
of
the
area
were
a
part
of
a
1­
hour
area
with
a
15
percent
plan),
EPA
will
also
consider
that
the
area
has
met
its
15
percent
VOC­
only
requirement.
As
explained
elsewhere
in
the
preamble
in
response
to
comment
on
the
draft
regulatory
text
for
§
51.910(
a)(
1)(
ii),
EPA
has
modified
the
text
in
§
51.910(
a)(
1)(
ii)
of
the
final
rule
to
embody
this
change.
If
part
of
an
8­
hour
area
(
town,
county,
etc.)
was
never
part
of
a
1­
hour
area
with
a
a
15
percent
VOC­
only
plan
approved
by
EPA,
the
8­
hour
area
must
prepare
and
submit
a
15
percent
VOC­
only
plan
with
the
caveats
outlined
below.
The
subpart
1
RFP
provisions
addressed
by
the
rule
below
that
are
applicable
in
the
former
1­
hour
portion
of
the
area
depend
on
the
subpart
2
area's
attainment
date
as
follows:
°
In
subpart
2
areas
that
have
an
attainment
date
within
5
years
after
their
8­
hour
designation,
for
which
portions
of
the
area
have
previously
met
their
15
percent
requirements
under
the
1­
hour
standard,
the
former
1­
hour
portion
of
the
area
will
only
be
subject
to
subpart
1
RFP
requirements,
which
will
be
satisfied
with
the
measures
that
demonstrate
attainment
as
expeditiously
as
practicable,
these
areas
will
not
be
developing
RFP
plans
separate
from
their
attainment
plans.
Thus,
for
these
areas,
the
only
motor
vehicle
emissions
budgets
that
will
be
developed
will
be
for
the
attainment
year.
39
°
In
subpart
2
areas
that
have
an
attainment
date
beyond
5
years
after
their
8­
hour
designation,
for
which
portions
of
the
area
have
previously
met
their
15
percent
requirements
under
the
1­
hour
standard,
the
former
1­
hour
portion
of
the
area
will
only
be
subject
to
subpart
1
RFP
requirements,
which
will
be
satisfied
with
a
plan
to
demonstrate
15
percent
emission
reductions
(
which
may
be
either
VOC
or
NOx
or
a
combination
of
both)
from
2002
to
2008,
and
any
additional
emission
reductions
needed
for
attainment
beyond
2008.
Thus,
these
areas
(
the
entire
8­
hour
nonattainment
area)
would
establish
a
motor
vehicle
emission
budget
for
2008
and
for
their
attainment
year.
Serious
and
above
areas
will
be
developing
both
a
15
percent
VOC
plan
for
the
new
portion
of
the
8­
hour
nonattainment
area
and
an
18
percent
VOC/
NOx
plan
for
the
portion
of
the
area
that
previously
met
its
15
percent
requirement.
Thus,
the
RFP
plan
as
a
whole
will
establish
total
allowable
emissions
for
2008
for
the
entire
8­
hour
nonattainment
area.
Therefore,
the
plans
for
these
areas,
as
well
as
moderate
areas
that
choose
option
one,
will
establish
motor
vehicle
emissions
budgets
for
both
2008
and
the
attainment
year.
Therefore,
in
the
case
of
an
8­
hour
nonattainment
area
that
is
classified
as
moderate
or
higher
and
includes
an
area
that
was
not
part
of
a
1­
hour
area
with
an
EPA­
approved
15
percent
VOConly
plan
and
also
includes
areas
that
had
an
EPA­
approved
15
percent
VOC­
only
plan(
s),
there
are
two
possible
options:
(
1)
the
entire
8­
hour
nonattainment
area
needs
to
have
a
new
15
percent
VOC­
only
plan;
or
(
2)
the
15
percent
VOC­
only
reduction
plan
needs
to
be
prepared
for
that
portion
of
the
area
that
was
not
previously
subject
to
an
EPA­
approved
15
percent
VOC­
only
plan
approved,
and
the
former
1­
hour
portion
of
the
area
is
subject
to
the
subpart
1
RFP
requirements
previously
discussed.
Under
either
option,
the
15
percent
reduction
needed
to
meet
the
RFP
milestone
for
the
new
portion
of
the
nonattainment
area
can
come
from
anywhere
in
the
8­
hour
nonattainment
area.
As
an
added
alternative
to
preparing
a
fully
modeled
15
percent
VOC­
only
plan
for
the
expanded
area,
EPA
believes
that
if
this
expanded
area
implements
and
has
SIP­
approved
the
same
VOC
control
measures
(
for
example,
VOC
RACT
at
the
same
source
thresholds,
Stage
II,
I/
M,
etc...)
that
the
initial
area
which
demonstrated
15
percent
had
implemented
and
the
mix
of
sources
(
point
with
similar
industrial
mix/
area/
mobile)
is
similar
to
the
existing
area,
then
EPA
will
consider
and
presume
that
the
expanded
area
has
met
its
15
percent
VOC­
only
requirement.
The
EPA
will
propose
this
as
acceptable
on
a
case­
by­
case
basis
for
any
area
that
meets
this
criteria.
This
would
be
only
a
presumption,
because
EPA
cannot
guarantee
areas,
up­
front,
that
they
will
not
have
to
do
something
more
for
the
15
percent
reduction.
This
would
be
40
determined
on
a
case­
by­
case
basis
in
the
SIP
approval
rulemaking
in
which
EPA
would
have
to
respond
to
any
comments
that
the
presumption
was
inappropriate
and
the
area
actually
failed
to
make
15
percent.
If
EPA
does
not
take
action
to
formally
agree
that
the
area
has
met
the
15
percent
VOC­
only
obligation
in
the
expanded
area,
then
that
new
portion
of
the
8­
hour
ozone
nonattainment
area
must
do
a
15
percent
VOC­
only
plan
from
the
2002
base
year.
Nonattainment
areas
subject
to
subpart
2
are
required
initially
to
reduce
their
emissions
by
15
percent
no
later
than
6
years
from
the
base
year.
These
reductions
can
only
occur
for
VOC
in
order
to
be
credited
toward
those
first
6
years.
States
can
begin
to
use
NOx
emissions
reductions
to
make
up
the
3
percent
per
year
(
9
percent
averaged
over
3
years)
after
the
initial
6
years.
adopting
the
approach
from
the
proposal.
c.
Comments
and
responses
Text
Was
Moved
From
Here:
2
AnotherComment:
One
commenter
agreed
with
the
approach
outlined
in
the
proposal
but
cautioned
that
the
States
would
have
to
ensure
that
the
target
is
at
least
as
stringent
as
the
1­
hour
ROP
target,
thus
ensuring
no
backsliding
on
the
1­
hour
NAAQS
requirements.
Under
this
approach,
the
State
would
have
to
develop
a
new
baseline
and
new
RFP
emission
reduction
targets
for
the
entire
8­
hour
standard
nonattainment
area.
Emissions
reductions
from
measures
in
the
1­
hour
ozone
SIP
that
are
achieved
after
the
8­
hour
ozone
NAAQS
baseline
year
could
count
(
subject
to
credibility
restrictions
as
discussed
in
the
proposed
rulemaking)
toward
meeting
the
RFP
requirement
for
the
entire
8­
hour
area.
The
new
RFP
target
for
the
8­
hour
standard
would
replace
the
previous
1­
hour
ozone
target
(
while
ensuring
that,
at
a
minimum,
the
emissions
reductions
required
to
meet
the
old
target
are
met).
Response:
As
noted
elsewhere
in
the
preamble,
if
an
8­
hour
nonattainment
area
is
classified
as
moderate
or
higher,
and
has
the
same
geographic
boundaries
as
a
1­
hour
area
which
has
an
EPAapproved
15
percent
ROP
plan,
EPA
believes
that
the
area
does
not
need
to
prepare
an
additional
15
percent
VOC­
only
plan.
We
agree
with
the
commenter
who
noted
that
the
proposed
§
51.910(
a)(
ii)
did
not
address
all
boundary
change
scenarios
consistent
with
our
proposed
approach
found
in
section
VI.
I.
9.
of
the
June
2,
2003
proposed
rule
(
68
FR
32835).
We
proposed
an
approach
to
deal
with
what
RFP
requirements
should
be
implemented
for
areas
designated
for
the
8­
hour
ozone
standard
that
entirely
or
in
part
encompass
an
area
that
was
designated
nonattainment
for
the
1­
hour
ozone
standard.
We
stated
in
the
proposed
rule
that
our
intent
was
that
those
portions
of
an
8­
hour
nonattainment
area
already
covered
by
an
approved
15
percent
VOC­
41
only
plan
would
not
be
subject
to
a
second
15
percent
VOC­
only
requirement.
In
our
discussion
in
section
VI.
I.
9.
of
the
June
2,
2003
proposed
rule,
we
focused
mainly
on
the
most
likely
boundary
change
scenario
which
is
where
the
boundary
ofthat
the
emission
reduction
targets
under
the
8­
hour
standard
must
be
at
least
as
stringent
as
the
1­
hour
targets.
Section
IV.
E.
3.
of
this
preamble
discusses
the
requirements
for
RFP
for
several
situations
relative
to
the
area's
former
obligations
under
the
1­
hour
standard
and
the
current
obligations
under
the
8­
hour
standard.
The
obligations
of
an
area
under
the
anti­
backsliding
provisions
of
40
CFR
51.905(
a)(
1)(
iii))
would
still
apply,
meaning
that
emission
reductions
under
the
1­
hour
ROP
requirements
would
still
be
required
as
if
the
1­
hour
standard
had
never
been
revoked.
Therefore,
the
new
8­
hour
emission
target
for
the
8­
hour
area
was
expanded
to
include
additional
areas
beyondwould
be
logically
at
least
as
stringent
as
under
the
1­
hour
area's
boundaries.
Considering
this
comment
in
light
of
our
experience
in
setting
the
actual
boundaries
of
the
initially
designated
areas,
we
have
now
identified
four
scenarios
of
boundary
changes
relative
to
areas
with
approved
15
percent
VOConly
reduction
plans:
°
The
first
scenario
is
where
the
1­
hour
boundaries
are
exactly
the
same
as
the
8­
hour
boundaries.
Section
51.910(
a)(
1)(
ii)
of
the
proposed
regulatory
text
was
intended
to
cover
these
areas.
°
The
second
scenario
is
where
a
specific
8­
hour
area
encompasses
part
of
a
former
1­
hour
area
that
already
had
an
approved
15
percent
VOC­
only
reduction
plan.
Such
a
scenario
arises
where
the
boundaries
shrink
due
to
deletion
of
part
of
the
1­
hour
area,
or,
the
former
1­
hour
area
has
been
divided
among
two
or
more
adjacent
8­
hour
areas.
°
The
third
scenario
arises
where
an
existing
1­
hour
area
covered
by
an
approved
15
percent
VOC­
only
plan
receives
additional
portions
from
one
or
more
1­
hour
areas
that
were
also
covered
by
an
approved
15
percent
VOC­
only
plan
and
does
not
include
additional
areas
not
covered
by
an
approved
15
percent
plan.
°
The
fourth
scenario
arises
where
part
of
the
8­
hour
area
consisting
of
portions
of
one
or
more
existing
1­
hour
areas
each
of
which
is
covered
by
an
approved
15
percent
VOC­
only
plan
is
expanded
to
include
additional
portions
which
are
not
covered
by
an
approved
15
percent
VOC­
only
plan.
This
case
also
includes
the
situation
where
a
single
1­
hour
area,
that
is
covered
by
an
approved
15
percent
VOC­
only
plan,
is
expanded
to
receive
additional
areas
that
are
not
covered
by
an
approved
15
percent
VOC­
only
plan.
We
have
concluded
that
there
is
no
rationale
to
require
an
area
that
falls
into
either
the
second
or
third
scenario
to
do
42
another
15
percent
VOC­
only
plan
just
because
the
boundaries
do
not
exactly
coincide
with
a
single
1­
hour
area,
or,
just
because
no
areas
without
coverage
under
an
approved
15
percent
plan
have
been
added.
We
had
proposed
an
approach
not
to
require
a
15
percent
VOConly
plan
for
the
portion
of
an
8­
hour
area
which,
in
part,
encompassed
an
area
that
was
designated
nonattainment
for
the
1­
hour
ozone
standard,
and
which,
in
part,
encompassed
new
areas.
For
the
fourth
scenario,
we
see
no
reason
to
distinguish
the
case
where
the
8­
hour
area
is
built
from
around
one
former
nonattainment
area
and
from
where
the
8­
hour
area
is
built
from
portions
of
more
than
one
former
1­
hour
area.
Likewise,
we
see
no
rationale
to
distinguish
an
8­
hour
area
which
falls
in
the
second
scenario
from
the
former
1­
hour
nonattainment
area
portion
of
an
8­
hour
area
that
falls
under
the
fourth
scenario;
the
latter
portion
is
not
required
to
have
a
15
percent
VOC­
only
plan
for
that
portion
because
the
boundaries
have
been
enlarged.
We
had
intended
to
treat
all
of
these
areas
in
a
similar
manner.
We
received
extensive
comments
in
support
of
our
proposal
to
allow
flexibility
in
regards
to
the
initial
RFP
requirement
of
section
182(
b)(
1).
Many
of
the
comments
decried
the
need
for
flexibility
to
allow
needed
NOx
reductions
to
count
towards
RFP
where
NOx
reductions
contribute
to
attainment
of
the
8­
hour
NAAQS.
As
discussed
in
the
June
2,
2003
proposed
rule
and
elsewhere
in
this
preamble,
we
must
require
that
the
initial
RFP
targets
reflect
a
15
percent
reduction
in
baseline
VOC
emissions
in
those
areas,
or
portions
of
areas,
not
included
in
an
approved
15
percent
plan
in
the
SIP.
We
have
revised
the
final
§
51.910(
a)(
1)(
ii)
from
that
proposed
to
clarify
this
issue
and
encompass
the
first
through
third
scenarios.
Section
51.910(
a)(
1)(
iii)
covers
the
third
scenario.
Comment:
Another
commenter
prefers
to
work
with
EPA
in
the
development
of
an
alternative
that
will
eliminate
or
minimize
the
planning
burdens
associated
with
development
of
a
15
percent
RFP
plan
for
one
town.
One
alternative
might
be
the
development
of
a
"
comparability
demonstration,"
showing
that
the
town
had
implemented
the
same
controls
that
had
been
previously
responsible
for
achieving
a
15
percent
reduction
in
VOCs
in
its
l­
hour
ozone
nonattainment
area.
Response:
As
noted
above
in
the
summary
of
the
final
rule,
we
have
made
the
following
provision:
If
part
of
an
8­
hour
area
(
town,
county,
etc.)
was
never
part
of
a
1­
hour
area
with
a
15
percent
VOC­
only
plan
approved
by
EPA,
the
8­
hour
area
must
prepare
and
submit
a
15
percent
VOC­
only
plan
with
the
caveats
outlined
below.
As
an
added
alternative
to
preparing
a
fully
modeled
15
percent
VOC­
only
plan
for
the
expanded
area,
EPA
believes
that
if
this
expanded
area
implements
and
has
SIP­
43
approved
the
same
VOC
control
measures
(
for
example,
VOC
RACT
at
the
same
source
thresholds,
Stage
II,
I/
M,
etc...)
that
the
initial
area
which
demonstrated
15
percent
had
implemented
and
the
mix
of
sources
(
point
with
similar
industrial
mix/
area/
mobile)
is
similar
to
the
existing
area,
then
EPA
will
consider
and
presume
that
the
expanded
area
has
met
its
15
percent
VOConly
requirement.
The
EPA
will
propose
this
as
acceptable
on
a
case­
by­
case
basis
for
any
area
that
meets
this
criteria.
This
would
be
only
a
presumption,
because
EPA
cannot
guarantee
areas,
up­
front,
that
they
will
not
have
to
do
something
more
for
the
15
percent
reduction.
This
would
be
determined
on
a
case­
by­
case
basis
in
the
SIP
approval
rulemaking
in
which
EPA
would
have
to
respond
to
any
comments
that
the
presumption
was
inappropriate
and
the
area
actually
failed
to
make
15
percent.
If
EPA
does
not
take
action
to
formally
agree
that
the
area
has
met
the
15
percent
VOC­
only
obligation
in
the
expanded
area,
then
that
new
portion
of
the
8­
hour
ozone
nonattainment
area
must
do
a
15
percent
VOC­
only
plan
from
the
2002
base
year.
Comments
on
draft
regulatory
text
Text
Was
Moved
From
Here:
3
Response:
In
the
final
rule,
we
addressed
situations
where
the
8­
hour
nonattainment
area
includes
areas
that
already
have
approved
15
percent
VOC
plans
as
well
as
areas
that
do
not
have
such
plans.
As
a
general
rule,
EPA
believes
that
the
entire
8­
hour
nonattainment
area
needs
a
15
percent
VOC­
only
plan,
either
the
plan
approved
for
the
1­
hour
standard
or
a
new
15
percent
RFP
plan
for
the
8­
hour
standard,
or
alternatively,
the
15
percent
VOC­
only
reduction
plan
needs
to
be
prepared
for
that
portion
of
the
area
which
previously
did
not
have
an
EPA
approved
15
percent
VOC­
only
plan
approved
(
i.
e.,
the
expanded
area).
As
an
added
alternative
to
preparing
a
fully
modeled
15
percent
VOC­
only
plan
for
the
expanded
area,
EPA
believes
that
if
this
expanded
area
implements
and
has
SIP­
approved
the
same
VOC
control
measures
that
the
initial
area
which
demonstrated
15
percent
had
implemented
and
the
mix
of
sources
is
similar
to
the
existing
area,
then
EPA
will
initially
consider
and
presume
that
the
expanded
area
has
met
its
15
percent
VOC­
only
requirement,
as
described
above.
Beyond
this
presumption,
EPA
does
not
believe
that
the
statute
would
allow
expanded
areas
to
avoid
implementation
of
a
15
percent
plan.
for
a
given
time
period.
9.
Will
EPA's
"
Clean
Data
Policy"
apply
for
purposes
of
8­
hour
RFP,
attainment
demonstrations
and
other
related
requirements?
[
Section
VI.
I.
10
of
June
2,
2003
proposed
rule
(
68
FR
32835);
no
draft
or
final
regulatory
text.]
a.
Background
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.

44
As
noted
in
the
proposal,
we
issued
a
policy
on
May
10,
1995,
which
allows
EPA
to
determine
that
an
area
has
attained
the
standard
and
that
certain
planning
requirements
(
e.
g.,
RFP
and
attainment
demonstrations)
will
not
apply
so
long
as
the
area
remains
in
attainment.
14
This
is
referred
to
as
the
"
Clean
Data
Policy."
We
proposed
that
this
policy
would
remain
effective
for
purposes
of
areas
that
EPA
determines
have
attained
the
8­
hour
ozone
NAAQS.
b.
Summary
of
final
rule
AsIn
the
proposed
rule,
we
indicated
that
the
Clean
Data
Policy
will,
which
we
had
applied
under
the
1­
hour
standard,
should
apply
for
purposes
of
the
8­
hour
standard
in.
We
are
adopting
the
same
manner
as
we
applied
it
for
the
1­
hour
standardis
approach.
In
this
notice
EPA
is
taking
final
rulemaking
action
onfinalizing
the
statutory
interpretation
that
we
are
applyingis
embodied
in
the
policy.
Determinations
as
to
whether
individual
areas
have
attained
the
8­
hour
standard
and
thus
qualify
for
application
of
the
policy
will
be
made
in
the
context
of
rulemakings
for
those
individual
areas.
The
EPA
has
applied
the
Clean
Data
policy
in
rulemakings
under
the
one­
hour
1­
hour
ozone
standard
to
both
Ssubpart
1
areas
(,
e.
g.,
San
Francisco
Bay
Area,
(
69
FR
21717
(;
April
22,
2004))
and
Ssubpart
2
areas
(,
e.
g.,
St.
Louis,
Missouri,
(
68
FR
25418;
May
12,
2003).
The
EPA
will
continue
toalso
apply
the
policy
to
Sboth
subpart
1
and
Ssubpart
2
areas
under
the
8­
hour
standard.
c.
Comments
and
responses
Comment:
One
commenter
stated
that
EPA's
"
cClean
dData
pPolicy"
is
unlawful
with
respect
to
both
the
1­
hour
and
8­
hour
NAAQS.
A
commenter
argued
that
EPA
also
has
no
authority
to
waive
the
attainment
demonstration
and
RFP
plans
mandated
by
subpart
2
on
the
pretext
that
an
area
has
clean
data.
The
CAA
unambiguously
requires
these
plans
for
any
area
designated
nonattainment
for
the
pollutant
ozone,
and
gives
EPA
no
power
whatsoever
to
waive
such
plan
requirements.
Several
other
commenters
supported
the
continued
use
of
the
"
Clean
Data
Policy."
Response:
The
EPA
believes
that
the
Clean
Data
Policy
comports
with
the
provisions
of
the
CAA
in
regard
to
attainment
45
demonstrations,
ROP
plans,
RACM,
contingency
measures
and
other
related
requirements.
The
Clean
Data
Policy,
issued
on
May
10,
1995,
sets
forth
EPA's
interpretation
that
where
EPA
has
determined
that
an
area
has
attained
the
standard,
certain
submissions
are
not
requiredSIP
requirements
are
suspended
(
e.
g.,
RFP)
for
so
long
as
the
area
remains
in
attainment.
As
set
forth
in
its
May
10,
1995
policy,
EPA
believes
it
is
reasonable
to
interpret
the
provisions
regarding
RFP
and
attainment
demonstrations,
along
with
certain
other
related
provisions,
as
not
requiring
further
submissions
to
achieve
attainment
if
anfor
so
long
as
the
area
is
in
fact
attaining
the
standard.
Under
its
the
policy,
EPA
is
not
granting
an
exemption
from
any
applicable
requirements
under
part
D.
Rather,
EPA
has
interpreted
certainthese
requirements
of
subparts
1
and
2
as
not
being
applicable
once
an
area
has
attained
the
standard,
for
as
long
as
it
continues
to
do
sofor
so
long
as
the
area
remains
in
attainment
with
the
standard.
This
is
not
a
waiver
of
requirements
that
by
their
terms
apply;
it
is
a
determination
that
certain
requirements
are
written
so
as
to
be
operative
only
if
the
area
is
not
attaining
the
standard.
The
EPA
has
explained
in
other
rulemaking
actions
on
the
1­
hour
ozone
standard
its
rationale
for
the
reasonableness
of
this
interpretation
of
the
CAA
and
incorporates
these
explanations
by
reference.
See,
for
example,
67
FR
49600
(
July
31,2002),
65
FR
37879
(
June
19,
2000)
(
Cincinnati­
Hamilton,
Ohio­
Kentucky);
61
FR
20458
(
May
7,
1996)
(
Cleveland­
Akron­
Lorain,
Ohio);
66
FR
53094
(
October
19,
2001)
(
Pittsburgh­
Beaver
Valley,
Pennsylvania);
60
FR
37366
(
July
20,
1995),
61
FR
31832­
33
(
June
21,
1996)
(
Grand
Rapids,
MI);
60
FR
36723
(
July
18,
1995)
(
Salt
Lake
and
Davis
Counties,
Utah);
68
FR
25418
(
May
12,
2003)
(
St.
Louis,
Missouri)
69
FR
21717
(
April
22,
2004)(
San
Francisco
Bay
Area).
The
EPA
has
also
set
forth
its
legal
rationale
for
the
Clean
Data
Policy
in
briefs
filed
in
the
10th,
7th,
and
9th
Circuits,
and
hereby
incorporates
those
briefs
insofar
as
relevant
here.
See
Sierra
Club
v.
EPA,
No.
95­
9541
(
10th
Cir.),
Sierra
Club
v.
EPA,
No.
03­
2839,
03­
3329
(
7th
Cir.),
Our
Children's
Earth
Foundation
v.
EPA,
No.
04­
730312
(
9th
Circuit).
As
stated
in
the
policy,
the
attainment
demonstration,
RFP
requirements
and
contingency
measure
requirement
are
designed
to
bring
an
area
into
attainment.
Once
this
goal
has
been
achieved,
it
is
appropriate
to
suspend
the
obligation
that
States
submit
plans
to
meet
these
goals,
so
long
as
the
area
continues
to
attain
the
relevant
standard.
The
Tenth,
Seventh
and
Ninth
Circuits
hasve
upheld
EPA
rulemlakings
applying
the
use
of
thisClean
Data
policy.
See
Sierra
Club
v.
EPA,
99
F.
3d
1551
(
10th
Circuit,
1996).
See
also,
Sierra
Club
v.
EPA,
375
F.
3d
537
(
7th
Circuit,
2004)
(
rejecting
a
challenge
to
the
policy).
and
Our
Children's
Earth
46
Foundation
v.
EPA,
No.
04­
73032
(
9th
Circuit,
June
28,
2005)
memorandum
opinion.
Comment:
A
commenter
said
that
although
subpart
2
contains
some
narrowly
crafted
exceptions
(
e.
g.,
CAA
182(
b)(
1)(
A)(
ii)),
there
are
no
exceptions
based
on
clean
data.
In
the
past,
EPA
has
cited
a
Tenth
Circuit
decision,
Sierra
Club
v.
EPA,
99
F.
3d
1551
(
10th
Circuit
1996),
as
supporting
the
Clean
Data
Policy.
The
commenter
contended
that
case
was
wrongly
decided
and
has
been
superseded
by
the
Supreme
Court
decision
in
Whitman
v.
American
Trucking
Assoc.,
Inc.,
531
U.
S.
457
(
2001).
There,
the
Court
held
that
subpart
2
eliminates
regulatory
discretion
previously
allowed
to
EPA
under
subpart
1,
and
noted
that
subpart
2
prescribes
large
parts
of
nonattainment
programs,
for
example,
section
182.
The
requirements
for
RFP
and
attainment
demonstrations
are
among
those
subpart
2
nonattainment
programs
that
Congress
prescribed
by
law,
thereby
eliminating
EPA
discretion
to
accept
something
less.
See
also
Sierra
Club
v.
EPA,
293
F.
3d
155
(
D.
C.
Circuit
2002)
(
holding
that
EPA
is
without
authority
to
infer
exceptions
to
attainment
deadlines
and
to
explicit
subpart
2
requirements
for
RFP
plans).
Response:
The
EPA
believes
that
the
Tenth
Circuit
correctly
decided
Sierra
Club
v.
EPA
and
that
the
comments
misconstrue
both
Whitman
and
Sierra
Club
v.
EPA,
293
(
Sierra
Club
2002)
F.
3d
155
(
D.
C.
Circuit.
2002).
The
(
Sierra
Club
2002).
The
Sierra
Club
2002
case
addressed
the
statutory
requirements
applicable
to
an
area
not
attaining
the
standard.
The
issue
of
the
requirements
of
part
D
of
Title
I
of
the
CAA
that
are
applicablemust
continue
to
be
met
by
areas
that
EPA
has
determined
are
monitoring
attainment
of
the
standard
was
not
before
the
court.
As
discussed
below,
the
Sierra
Club
2002
decision
upheld
EPA's
determination
that
the
RACM
provision
under
section
172(
c)(
1)
requires
only
additional
measures
that
could
contribute
to
reasonable
further
progress
or
attainment,
which
is
an
element
of
EPA's
application
of
the
Clean
Data
Policy.
To
this
limited
extent,
Sierra
Club
2002
is
relevant
to
EPA's
interpretation
that
the
policy
will
apply
for
the
8­
hour
ozone
standard,
and
the
decision
supports
EPA's
interpretation.
However,
the
other
issues
addressed
in
the
decision
(
extension
of
the
statutory
attainment
date
for
areas
affected
by
ozone
transport,
the
content
of
a
demonstration
of
reasonable
further
progress
toward
attainment,
and
whether
contingency
measures
must
be
submitted
as
part
of
an
attainment
demonstration
or
plan
for
RFP)
did
not
relate
to
the
Clean
Data
Policy
or
how
the
subpart
2
requirements
applicableapply
to
areas
attaining
the
standard.
The
issue
addressed
by
the
Clean
Data
Policy
is
whether
an
area
that
has
attained
the
standard
(
as
evinced
by
air
quality
monitoring
data)
still
needs
to
submit
a
demonstration
of
how
the
area
will
achieve
enough
reductions
to
demonstrate
that
it
will
15[
The
EPA's
interpretation
that
the
statute
requires
only
implementation
of
RACM
measures
that
would
advance
attainment
was
upheld
by
the
United
States
Court
of
Appeals
for
the
Fifth
Circuit
(
Sierra
Club
v.
EPA,
314
F.
3d
735,
743­
745
(
5th
Cir.
2002)
and
by
the
United
States
Court
of
Appeals
for
the
D.
C.
Circuit
(
Sierra
Club
v.
EPA,
294
F.
3d
155,
162­
163
(
D.
C.
Cir.
2002).
See
also
the
final
rulemakings
for
Pittsburgh­
Beaver
Valley,
Pennsylvania,
66
FR
53096
(
October
19,
2001)
and
St.
Louis,
68
FR
25418
(
May
12,
2003).]

47
"
attain
the
NAAQS",
NAAQS,"
a
plan
to
obtain
reasonable
periodic
reductions
towards
the
goal
of
attainment
and
other
related
requirements.
The
EPA
continues
to
believe
that
the
statutory
requirement
for
an
attainment
demonstration
 
a
SIP
revision
which
identifies
the
level
of
future
reductions
needed
to
achieve
the
NAAQS
and
any
additional
adopted
measures
needed
to
achieve
these
future
reductions
 
is
written
so
as
to
be
inapplicable
once
the
NAAQS
is
attained.
In
addition,
EPA
believes
that
the
RACM
requirements
are
a
"
component"
of
an
area's
attainment
demonstration
under
section
172(
c)(
1).
General
Preamble
57
FR
13560
(
April
16,
1992).
Thus,
since
for
the
same
reason
the
attainment
demonstration
is
no
longer
an
applicable
requirementapplies
by
its
own
terms,
RACM
is
also
no
longer
an
applicable
requirementapplies.
The
EPA
has
consistently
interpreted
this
provision
to
require
only
implementation
of
potential
RACM
measures
that
could
contribute
to
reasonable
further
progress
or
to
attainment
General
Preamble
57
FR
13498
(
April
16,
1992).
Thus,
where
an
area
hasis
already
attainedattaining
the
standard,
no
additional
RACM
measures
are
required.
The
EPA's
interpretation
that
the
statute
requires
only
implementation
of
RACM
measures
that
would
advance
attainment
was
upheld
by
the
United
States
Court
of
Appeals
for
the
Fifth
Circuit
(
Sierra
Club
v.
EPA,
314
F.
3d
735,
743­
745
(
5th
Cir.
2002)
and
by
the
United
States
Court
of
Appeals
for
the
D.
C.
Circuit
(
Sierra
Club
v.
EPA,
294
F.
3d
155,
162­
163
(
D.
C.
Cir.
2002).
See
also
the
final
rulemakings
for
Pittsburgh­
Beaver
Valley,
Pennsylvania,
66
FR
53096
(
October
19,
2001)
and
St.
Louis,
68
FR
25428
(
May
12,
2003).
15
Likewise,
EPA
concludes
that
the
provision
for
RFP
 
a
plan
for
annual
incremental
reductions
leading
to
attainment
 
is
also
expressed
in
terms
that
show
that
RFP
is
unnecessary
oncein
areas
attaining
the
standard.
,
For
areas
in
attainment
is
reached.
If
the
goal
of
attainment
has
been
met,
there
is
no
longer
a
need
to
plan
for
measures
to
meet
that
goal.
Similarly,
EPA
continues
to
believe
that
the
contingency
measure
requirements
of
section
172(
c)(
9)
are
no
longer
applicable
onceapply
in
an
area
has
48
attainedthat
is
attaining
the
standard
since
those
"
contingency
measures
are
directed
at
ensuring
RFP
and
attainment
by
the
applicable
date."
(
See
57
FR
13564;
April
16,
1992).
The
section
182(
c)(
9)
contingency
measure
requirement
also
no
longer
applies
once
an
area
has
attained
the
standard.
The
EPA's
interpretation
of
the
statute
is
consistent
with
the
statute's
plain
language.
To
the
extent
that
the
statutory
language
is
ambiguous,
the
interpretation
is
reasonable
and
must
be
upheld
under
Chevron,
USA
Inc
v.
NRDC
,
467
US
837,
842­
45
(
1984).
CAA
section
172(
c)(
2)
and
the
related
provisions
of
Subpart
2
provide
that
reasonable
further
progress
is
required
only
where
an
area
continues
to
violate
the
standard.
By
definition,
the
"
reasonable
further
progress"
provision
requires
only
such
reductions
in
emissions
as
are
necessary
to
attain
the
NAAQS
by
the
attainment
date.
If
an
area
has
attained
the
standard,
the
stated
purpose
of
the
reasonable
further
progress
provision
has
been
fulfilled.
SAlso,
section
172(
c)(
1)
and
the
related
provisions
of
Subpart
2
provide
that
require
SIPS
shall
to
provide
for
attainment
of
the
NAAQS.
(
See
also
section
182(
b)(
1)(
A)(
i)
which
requires
that
SIPS
for
moderate
ozone
nonattainment
areas
must
"
provide
for
such
specific
annual
reductions
in
emissions
of
[
VOCs]
and
[
NOx]
as
necessary
to
attain
the
[
ozone
NAAQS]"
by
the
applicable
attainment
date
.)
When
an
area
has
attained
the
NAAQS,
there
is
no
need
for
a
plan
demonstrating
how
it
will
reach
attainment,
and
thus
the
attainment
demonstration
provision
is
no
longer
applicable
applies.
Similarly
section
172(
c)(
9)
and
the
related
provisions
of
Subpart
2
provide
that
SIPs
in
nonattainment
areas
shall
provide
for
contingency
measures
to
be
undertaken
if
the
area
fails
to
make
reasonable
further
progress
or
to
attain
the
NAAQS
by
the
applicable
attainment
date.
Since
contingency
measures
are
required
only
if
reasonable
further
progress
or
attainment
is
not
achieved,
there
is
no
need
for
them
where
the
area
has
attained
the
standard.
The
language
of
these
statutory
provisions
indicates
that
Congress
intended
that
when
an
area
has
attained
the
standard
these
requirements
designed
to
attain
the
standard
are
no
longer
applicable
to
itapply
as
the
purpose
of
these
provisions
 
attainment
 
has
been
accomplished.
The
EPA
believes
that
Whitman
does
not
provide
a
basis
to
reconsider
our
position
on
the
Clean
Data
Policy.
In
Whitman,
the
Court
was
addressing
EPA's
stated
approach
that
subpart
2
did
not
apply
for
purposes
of
implementing
the
8­
hour
NAAQS.
In
the
Phase
1
rule,
EPA
addressed
the
Court's
decision
and
concluded
that
subpart
2
does
apply.
The
issue
here
is
not
whether
it
applies,
but
how
those
requirements
apply
under
a
specific
situation
where
an
area
has
attained
the
NAAQS.
That
issue
was
not
addressed
by
the
Court
in
Whitman.
In
Whitman
the
Supreme
Court
was
considering
which
subpart
of
part
D
of
the
CAA
should
49
be
used
for
implementation
of
the
newly­
promulgated
8­
hour
NAAQS.
The
decision
in
Whitman
has
no
bearing
on
the
question
of
whether
an
area
that
has
demonstrated
attainment
must
nonetheless
submit
an
attainment
demonstration
plan
and
related
requirements.
Thus,
Whitman
does
not
undermine
the
Tenth
Circuit's
reasoning
in
Sierra
Club
v.
EPA,
99
F.
3d
1551
(
10th
Circuit,
1996).
See
also
the
post­
Whitman
decisions
in
Sierra
Club
v.
EPA,
375
F.
3d
637
(
7th
Circuit,
2004),
and
Our
Children's
Earth
Foundation
v.
EPA,
No.
04­
73032,
memorandum
opinion
(
9th
Circuit,
June
28,
2005)
rejecting
a
challenges
to
the
Clean
Data
Policy
and
upholding
a
redesignation
actions
based
on
the
policy.
10.
How
will
RFP
be
addressed
in
Tribal
areas?
[
Section
VI.
I.
11.
of
June
2,
2003
proposed
rule
(
68
FR
32835);
no
draft
or
final
regulatory
text.]
a.
Background
The
TAR
provides
flexibility
for
Tribes
in
the
preparation
of
a
TIP
to
address
the
NAAQS.
As
mentioned
in
the
proposed
rulemaking,
the
TAR
provides
the
Tribes
with
the
ability
to
develop
TIPs
to
address
and
implement
the
NAAQS
in
Indian
country.
It
further
provides
the
Tribes
with
flexibility
to
develop
these
plans
in
a
modular
way,
as
long
as
the
elements
of
their
TIPs
are
reasonably
"
severable."
For
example,
each
TIP
submission
must
include
a
demonstration
that
the
Tribe
has
authority
to
develop
and
run
its
program,
the
ability
to
enforce
its
rules,
and
the
capacity
and
resources
to
implement
the
program
it
adopts.
Therefore,
it
may
include
one
or
two
sourcespecific
requirements
but
may
not
include
provisions
for
RFP
and
other
SIP
requirements.
The
proposal
noted
that
these
TIPs
can
be
an
important
step
in
addressing
an
overall
air
quality
plan
to
achieve
health
and
environmental
goals
on
Tribal
lands.
Where
a
Tribe
chooses
not
to
address
a
specific
planning
element,
EPA
may
be
obligated
to
step
in.
Such
action
would
not
preclude
a
Tribe
from
addressing
those
elements
at
a
later
time.
b.
Summary
of
policy
We
intend
to
take
the
approach
noted
in
the
proposal.
There
is
no
regulatory
text
for
this
intention.
c.
Comments
and
responses
No
comments
were
received
on
this
portion
of
the
proposal.
11.
How
will
RFP
targets
be
calculated?
[
Section
VI.
I.
12.
of
June
2,
2003
proposed
rule
(
68
FR
32836);
§
51.910(
c)
of
the
draft
and
final
regulatory
text.]
a.
Background
We
proposed
a
methodology
for
the
calculation
of
RFP
target
levels
of
emissions
that
is
based
on
the
method
we
developed
for
the
1­
hour
standard,
while
taking
into
account
our
interpretation
of
CAA
restrictions
on
creditable
emissions
and
our
proposal
to
use
the
2002
inventory
as
the
baseline
inventory
for
the
RFP
50
requirement.
The
CAA
specifies
four
types
of
measures
that
were
not
creditable
toward
the
15
percent
RFP
requirement.
These
are:
(
1)
Any
measure
relating
to
motor
vehicle
exhaust
or
evaporative
emissions
promulgated
by
the
Administrator
by
January
1,
1990.
(
2)
Regulations
concerning
Reid
Vapor
Pressure
(
RVP)
promulgated
after
1990
or
required
under
section
211(
h).
(
3)
Measures
required
under
section
182(
a)(
2)(
A)
to
correct
deficiencies
in
SIPs
regarding
VOC
RACT
regulations
required
prior
to
enactment
of
the
CAA
Amendments
of
1990.
(
4)
State
regulations
submitted
to
correct
deficiencies
in
I/
M
existing
or
required
programs.
These
four
types
of
measures
were
all
expected
to
result
in
a
decrease
in
emissions
between
1990
and
1996.
Of
these
four
types
of
measures,
RACT
and
I/
M
program
corrections
and
the
1992
RVP
requirements
were
completely
in
place
by
1996
and
therefore
are
already
accounted
for
in
the
2002
baseline.
As
a
result,
they
would
produce
no
additional
reductions
between
2002
and
2008
or
later
milestone
years.
However,
the
pre­
1990
Federal
Motor
Vehicle
Control
Program
(
FMVCP)
will
continue
to
provide
additional
benefits
during
the
first
two
decades
of
the
21st
century
as
remaining
vehicles
meeting
pre­
1990
standards
are
removed
from
the
vehicle
fleet.
Because
these
benefits
are
not
creditable
for
RFP
purposes,
in
order
to
calculate
the
target
level
of
emissions
for
future
RFP
milestone
years
(
i.
e.,
2008,
2011,
etc.),
States
must
first
calculate
the
reductions
that
would
occur
over
these
future
years
as
a
result
of
the
pre­
1990
FMVCP.
We
proposed
three
methods
to
properly
account
for
the
non­
creditable
reductions
when
calculating
RFP
targets
for
the
2008
and
later
RFP
milestone
years.
b.
Summary
of
final
rule
The
calculation
methods
have
been
revised
to
account
for
NOx
and
for
other
emissions
models.
They
appear
as
appendix
A
of
this
preamble.
These
methods
are
consistent
with
the
requirements
of
sections
182(
b)(
1)(
C)
and
(
D)
and
182(
c)(
2)(
B)
of
the
CAA.
c.
Comments
and
responses
Comment:
One
commenter
agreed
that
the
base
emission
level
should
be
decreased
by
the
pre­
1990
FMVCP
reductions
(
1990
I/
M
program
and
fuel
RVP
of
9.0
or
7.8
psi).
However,
the
commenter
further
recommended
that
the
pre­
1990
FMVCP
reductions
be
calculated
using
the
I/
M
program
and
fuel
properties
in
effect
during
the
new
baseline
year
of
2002.
The
commenter
claimed
an
advantage
of
the
recommended
change
is
that
it
removes
from
the
non­
creditable
pre­
1990
FMVCP
reductions,
creditable
reductions
from
controls
implemented
prior
to
2003
(
such
as
improvements
to
the
I/
M
program
or
cleaner
gasoline).
16The
final
interim
implementation
guidance
of
1997
referenced
the
proposed
interim
implementation
policy
of
December
13,
1996,
which
said,
"
The
EPA
believes
that
this
additional
flexibility
for
States
in
their
ROP
SIP's
is
consistent
with
the
CAA,
since
reductions
from
outside
a
nonattainment
area
within
these
limits
contribute
to
progress
toward
attainment
within
the
area.
The
3
percent
per
year
ROP
requirement
is
a
general
rate
of
progress
51
The
commenter
claimed
that
the
EPA
proposal
specifies
using
the
MOBILE6
command
NO
CAA
in
the
calculation
of
the
noncreditable
emissions
reductions.
The
commenter
concurred
that
this
command
could
be
used,
but
recognized
that
some
of
the
controls
in
effect
during
2002
cannot
be
modeled
with
this
command.
(
Refer
to
technical
specifics
of
this
comment
in
the
response
to
comment
document.)
Response:
The
EPA
does
not
agree
with
the
commenter
that
the
non­
creditable
pre­
1990
FMVCP
reductions
should
be
calculated
using
the
I/
M
program
and
fuel
properties
in
effect
during
the
new
baseline
year
of
2002.
Including
the
I/
M
program
and
fuel
properties
in
effect
in
2002
in
the
calculation
of
non­
creditable
reductions
would
not
accurately
account
for
reductions
that
are
the
result
of
pre­
1990
Federal
motor
vehicle
control
measures.
The
EPA
believes
that
the
methods
provided
in
the
final
rule
accurately
identify
the
non­
creditable
reductions
from
pre­
1990
motor
vehicle
standards
and
provide
appropriate
credit
for
all
post­
1990
control
measures.
12.
Should
EPA
continue
the
policy
of
allowing
substitution
of
controls
from
outside
the
nonattainment
area
within
100
kilometers
for
VOC
and
200
kilometers
for
NOx?
[
Section
VI.
I.
2.
of
June
2,
2003
proposed
rule
(
68
FR
32833);
no
draft
or
final
regulatory
text.]
a.
Background
The
proposal
noted
that
EPA
currently
has
a
policy
that
allows
States
to
take
credit
for
RFP
for
NOx
and
VOC
controls
that
occur
outside
the
nonattainment
areas
["
Guidance
for
Implementing
the
1­
Hour
Ozone
and
Pre­
Existing
PM10
NAAQS,
December
29,
1997,
68
FR
32833].
Specifically,
the
guidance
generally
allows
credit
for
VOC
reductions
occurring
up
to
100
km
outside
the
area
and
for
NOx
reductions
occurring
up
to
200
km
outside
the
area
(
Statewide
where
a
regional
NOx
control
strategy
is
being
implemented).
The
policy
indicates
that
credit
may
be
taken
only
for
the
emissions
reductions
from
measures
not
otherwise
mandated
by
the
CAA.
As
explained
in
the
policy,
EPA
believes
that
this
additional
flexibility
for
crediting
reductions
outside
nonattainment
areas
is
consistent
with
the
CAA.
16
requirement,
not
a
requirement
for
specific
programs
or
measures
such
as
vehicle
inspection
and
maintenance.
Allowing
this
flexibility
would
continue
to
provide
the
same
rate
of
progress
in
terms
of
reducing
emissions."
(
61
FR
65758).

52
Under
this
approach,
the
geographic
area
for
substitution
of
VOC
emission
reductions
is
100
km
from
the
nonattainment
area
and
the
geographic
area
for
substitution
of
NOx
reductions
is
200
km
from
the
nonattainment
area
with
the
possibility
for
additional
expansion
of
the
NOx
substitution
area
as
follows.
Nitrogen
oxides
emissions
reductions
from
anywhere
within
the
State
may
be
credited
for
those
States
that
participate
in
a
regional
NOx
control
strategy
such
as
the
NOx
SIP
Call.
All
other
States
implementing
a
NOx
substitution
strategy
for
RFP
would
be
restricted
to
a
distance
of
200
km
from
the
nonattainment
area,
unless
a
substitution
for
a
greater
distance
is
accompanied
by
adequate
technical
justification.
Substitutions
are
restricted
to
intrastate
areas
unless
two
or
more
States
involved
reach
mutual
agreement.
There
are
some
cases
in
the
western
portions
of
the
United
States
where
100
km
for
VOC
substitution
or
200
km
for
NOx
substitution
from
the
nonattainment
areas
are
not
appropriate
for
RFP
credit.
In
those
cases,
States
should
obtain
approval
from
the
appropriate
Regional
Office
to
verify
credit
and
applicability
prior
to
implementing
such
a
substitution.
The
EPA
notes
that
in
all
cases
the
distances
in
the
policy
provide
only
a
general
policy
presumption
that,
if
used,
would
need
data
resources
in
the
record
showing
that
reductions
from
sources
in
the
specific
locations
in
attainment
areas
benefit
the
nonattainment
area.
See
LEAN
v.
EPA,
382
F.
3d
575
5th
Circuit,
2004.
b.
Summary
of
final
rule
We
believe
that
States
should
continue
to
be
able
to
rely
on
emissions
reductions
from
outside
the
nonattainment
area
for
credit
toward
their
RFP
obligations.
However,
we
are
reassessing
the
current
policy
in
light
of
concerns
and
recommendations
raised
outside
the
rulemaking
process
by
the
EPA
Office
of
Inspector
General
that
indicated
a
potential
for
double
counting
of
emissions
reductions
and
problematic
equity
issues.
15
We
responded
to
that
report
that
we
are
considering
the
various
components
of
the
recommendations
as
we
assess
existing
policies
and
guidance
in
parallel
to
the
rulemaking
for
implementing
the
8­
hour
ozone
standard.
16
We
fully
expect
that
any
revisions
to
the
policy
will
continue
to
allow
States
to
take
credit
toward
their
RFP
obligation
from
emission
reductions
outside
the
17
Last
September,
the
EPA
Office
of
Inspector
General
submitted
a
report
(
outside
the
rulemaking
process)
outlining
concerns
and
recommendations
with
respect
to
the
potential
for
double
counting
of
emissions
reductions
and
problematic
equity
issues.
U.
S.
EPA
Office
of
the
Inspector
General.
We
responded
to
that
report
that
we
are
considering
the
various
components
of
the
recommendations
as
we
assess
existing
policies
and
guidance
in
parallel
to
the
rulemaking
for
implementing
the
8­
hour
ozone
standard.
[
Evaluation
Report:
EPA
and
States
Not
Making
Sufficient
Progress
in
Reducing
Ozone
Precursor
Emissions
In
Some
Major
Metropolitan
Areas.
Report
No.
2004­
P­
00033.
September
29,
2004.]
[
Memorandum
from
Jeffery
R.
Holmstead
to
J.
Rick
Beusse,
"
Response
to
the
Office
of
the
Inspector
General
(
OIG)
Evaluation
Report,
EPA
and
States
Not
Making
Sufficient
Progress
in
Reducing
Ozone
Precursor
Emissions
in
Some
Major
Metropolitan
Areas,
Report
No.
2004­
P­
00033
(
December
29,
2004).
March
24,
2005.]

53
nonattainment
area,
but
will17
In
doing
so,
States
should
ensure
that
the
reductions
meet
the
standard
tests
of
creditability
(
permanent,
enforceable,
surplus,
and
quantifiable)
and
are
shown
to
be
beneficial
toward
reducing
ozone
in
the
nonattainment
area.
c.
Comments
and
responses
Comment:
Several
commenters
supported
this
feature
of
EPA's
proposal
regarding
RFP
because
it
allows
the
States
flexibility
to
tailor
control
strategies
to
address
the
issues
specific
to
a
particular
nonattainment
area.
The
commenters
supported
codification
(
68
FR
32833,
column
1)
in
the
final
rule
of
the
December
29,
1997,
guidance
memo
("
Guidance
for
Implementing
the
1­
Hour
Ozone
and
Pre­
Existing
PM10
NAAQS")
that
allows
emissions
reductions
from
outside
the
nonattainment
area
to
be
creditable
toward
RFP.
One
commenter
agreed
that
States
ought
to
be
able
to
account
for
regional
emissions
in
their
attainment
demonstrations.
On
the
other
hand,
the
commenter
was
concerned
that
the
Agency
might
allow
jurisdictions
to
"
credit"
emissions
reductions
from
sources
up
to
100
km
for
VOC
and
200
km
for
NOx
toward
15
percent
RFP
plans,
and
this
in
turn
could
encourage
jurisdictions
in
need
of
these
tonnage
reductions
to
regulate
without
a
sound
basis.
The
commenter
contended
that
while
ozone
is
known
to
be
a
"
regional
pollutant",
EPA
has
failed
to
establish
in
this
rulemaking
any
technical
basis
for
allowing
States
to
impose
regulations
on
sources
outside
the
nonattainment
area
boundaries
without
independent
justification
of
the
impact
of
such
sources
on
an
area's
failure
to
attain
the
standard.
18The
EPA
notes
that
paragraph
(
1)
of
subsection
182(
b)
is
entitled
"
Plan
Provisions
for
Reasonable
Further
Progress"
and
that
subparagraph
(
B)
of
paragraph
182(
c)(
2)
is
entitled
"
Reasonable
Further
Progress
Demonstration,"
thereby
making
it
clear
that
both
the
15
percent
plan
requirement
of
section
182(
b)(
1)
and
the
3
percent
per
year
requirement
of
section
182(
c)(
2)
are
specific
varieties
of
RFP
requirements.

54
Response:
We
developed
our
1997
policy
as
a
result
of
the
modeling
results
relating
to
the
NOx
SIP
Call
(
see,
for
example,
63
FR
57355,
October
27,
1998,
and
69
FR
21604,
April
21,
2004).
These
modeling
analyses
demonstrate
that
significant
contribution
to
nonattainment
resulted
not
only
from
source
emissions
within
a
nonattainment
area
but
also
from
source
emissions
over
a
much
broader
area.
Not
only
do
these
emissions
from
outside
the
nonattainment
area
affect
air
quality
within
the
nonattainment
area,
in
some
cases
it
might
be
necessary
to
include
and
control
emission
sources
located
in
the
nearby
areas
in
order
to
attain
the
standard.
We
believe
it
is
appropriate
to
allow
States
to
take
credit
for
reductions
from
sources
outside
their
nonattainment
areas
where
data
indicate
that
those
emissions
affect
air
quality
in
the
nonattainment
areas.
We
note
that
section
182(
c)(
2)(
C),
which
provides
for
the
substitution
of
NOx
controls
for
VOC,
speaks
in
terms
of
reductions
of
ozone
concentrations
rather
than
strictly
reductions
in
emissions.
This
provision
led
us
to
conclude
that
Congress'
intent
for
the
ROP
requirement
is
to
lower
ozone
concentrations
within
the
nonattainment
area.
It
is
consistent
with
that
intent
that
emissions
reductions
from
outside
the
nonattainment
area
that
will
reduce
ozone
concentrations
in
the
nonattainment
area
should
be
creditable
in
RFP
demonstrations.
We
also
believe
that
the
CAA
is
clear
that
both
the
15
percent
plan
requirement
of
section
182(
b)(
1)
and
the
3
percent
per
year
requirement
of
section
182(
c)(
2)
are
specific
varieties
of
RFP
requirements.
18
Section
171(
1)
of
the
CAA
states
that,
for
purposes
of
part
D
of
title
I,
RFP
"
means
such
annual
incremental
reductions
in
emissions
of
the
relevant
air
pollutant
as
are
required
by
this
part
or
may
reasonably
be
required
by
the
Administrator
for
the
purpose
of
ensuring
attainment
of
the
applicable
NAAQS
by
the
applicable
date."
Thus,
whether
dealing
with
the
general
RFP
requirement
of
section
172(
c)(
2),
or
the
more
specific
RFP
requirements
of
subpart
2
for
classified
ozone
nonattainment
areas
(
the
15
percent
plan
requirement
of
section
182(
b)(
1)
and
the
3
percent
per
year
requirement
of
section
182(
c)(
2)),
the
purpose
of
RFP
is
to
ensure
attainment
by
the
applicable
attainment
date.
Emissions
reductions
strategies
19U.
S.
EPA
Office
of
the
Inspector
General.
Evaluation
Report:
EPA
and
States
Not
Making
Sufficient
Progress
in
Reducing
Ozone
Precursor
Emissions
In
Some
Major
Metropolitan
Areas.
Report
No.
2004­
P­
00033.
September
29,
2004.

55
applied
to
sources
outside
the
nonattainment
area
may
have
a
beneficial
effect
on
the
nonattainment
problem
within
the
designated
area.
Since
RFP/
ROP
is
progress
towards
attainment,
specific,
annual
emissions
reductions
from
geographic
areas
outside
the
nonattainment
area
boundaries
that
contribute
to
attainment
in
the
nonattainment
area
would
fall
within
the
scope
of
"
such
annual
incremental
reductions
in
emissions
of
the
relevant
air
pollutant
as
are
required
.
.
.
for
the
purpose
of
ensuring
attainment
of
the
applicable
NAAQS
by
the
applicable
date."
However,
as
noted
above
in
the
Background
portion,
we
intend
to
reassess
whether
the
policy
should
be
revised
in
light
of
concerns
brought
to
our
attention
outside
the
rulemaking
process
pertaining
to
its
technical
feasibility.
19
Comment:
One
commenter
requested
clarification
that
if
the
100
km/
200
km
area
extends
into
adjacent
States
that
reductions
in
those
States
should
also
be
creditable,
especially
with
regard
to
the
implementation
of
federal
measures.
Response:
We
intend
to
look
into
this
issue
further
in
the
future
as
part
of
the
overall
reassessment
of
the
100km/
200km
credit
issue.
Comment:
Another
commenter
expressed
confusion
by
the
provision
to
allow
creditable
reductions
be
made
outside
nonattainment
areas.
They
asked
if
reductions
made
outside
a
nonattainment
area
actually
bring
that
nonattainment
area
into
compliance
with
the
standard,
then
shouldn't
those
outside
areas
be
designated
nonattainment
by
definition?
The
commenter
contended
that
this
contradiction
is
unacceptable,
and
a
fatal
flaw
of
current
designation
efforts
and
this
implementation
proposal.
Response:
The
EPA
disagrees
with
the
comment
that
the
area
in
which
creditable
ROP/
RFP
reductions
are
obtained
must
be
part
of
the
nonattainment
area.
Emissions
are
only
one
of
many
factors
to
determine
if
an
area
should
be
part
of
the
nonattainment
area
built
around
a
violating
monitor.
Once
we
determine
that
a
monitor
is
recording
a
violation,
the
next
step
is
to
determine
if
there
are
any
nearby
areas
that
are
contributing
to
the
violation
and
include
them
in
the
designated
nonattainment
area.
For
guidance
on
determining
the
nonattainment
boundary
for
the
8­
hour
ozone
standard,
we
look
to
CAA
section
107(
d)(
4)
that
established
the
Consolidated
20Memorandum
from
John
Seitz,
"
Boundary
Guidance
on
Air
Quality
Designations
for
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standards
(
NAAQS
or
Standard)."
March
28,
2000.
Found
at:
http://
www.
epa.
gov/
ozonedesignations/
guidance.
htm.

21
Generally
counties
(
in
the
case
of
parts
of
New
England,
the
township)
were
used
as
the
basic
jurisdictional
unit
for
defining
nonattainment
area
boundaries.
But
consideration
of
topographical/
geographical
factors
could
lead
to
splitting
counties
(
69
FR
at
23861,
April
30,
2004).

56
Metropolitan
Statistical
Area
(
CMSA)
or
Metropolitan
Statistical
Area
(
MSA)
presumptive
boundary
for
more
polluted
areas
when
we
promulgated
our
designation
actions
in
1991
for
the
1­
hour
ozone
standard.
We
generally
started
with
counties
in
the
CMSA
or
MSA
because
that
area,
defined
by
the
Office
of
Management
and
Budget
(
OMB),
generally
shares
economic,
transportation,
population
and
other
linkages
that
are
similar
to
air
quality
related
factors
that
produce
ozone
pollution.
The
actual
size
of
the
nonattainment
area
may
be
larger
or
smaller
than
the
CMSA
or
the
MSA
boundaries,
or,
than
the
single
county
with
a
violating
monitor
(
in
the
case
of
a
single
county
not
in
any
MSA/
CMSA
area)
and
depends
on
a
number
of
air
quality
related
technical
factors
contained
in
our
designation
guidance.
20
After
identifying
such
areas
 
MSAs/
CMSAs/
single
counties
 
with
violating
monitors,
we
then
determined
which
nearby
jurisdictional
units21
were
contributing
to
the
nearby
violation
even
those
not
monitoring
violations.
We
considered
each
of
11
applicable
factors
identified
in
our
designation
guidance
in
making
our
assessment
of
whether
a
jurisdictional
unit
was
a
nearby
area
contributing
to
the
violation
that
should
be
included
in
the
designated
nonattainment
area.
These
factors
include
emissions,
traffic
patterns,
population
density,
and
area
growth.
Only
after
consideration
of
all
11
factors
did
we
add
a
jurisdictional
unit
to
a
nonattainment
area.
In
sum,
for
purposes
of
designating
an
area,
we
are
required
to
designate
the
area
violating
the
standard
and
any
"
nearby"
area
that
is
contributing
to
the
violation.
We
complied
with
that
statutory
obligation
in
the
designation
process.
However,
there
may
be
emissions
from
areas
that
were
not
designated
as
part
of
the
nonattainment
area
that
contribute
to
violations
of
the
standard.
Our
approach
to
allowing
credit
for
reductions
in
these
emissions
is
not
inconsistent
with
the
designation
process.
Comments
on
draft
regulatory
text
57
Comment:
One
commenter
recommended
that
EPA
state,
either
in
the
preamble
to
this
rule
or
in
the
rule
itself,
that
any
VOC
emissions
reductions
within
100
km
and
any
NOx
emissions
reductions
within
200
km
of
the
nonattainment
boundary,
including
reductions
in
adjacent
States,
are
creditable
for
RFP
plan
purposes.
They
also
suggested
that
EPA
address
voluntary
reductions
for
RFP
purposes
to
state
that
reductions
from
voluntary
measures
should
be
incorporated
into
the
baseline
emissions
inventory
calculation.
Another
commenter
stated
that
EPA
does
not
specify
in
§
51.910(
a)(
4)
that
in
areas
where
the
3
percent
annual
reduction
is
required,
those
reductions
must
be
achieved
within
the
statutorily
defined
baseline
"
area."
(
CAA
section
182(
b)(
1)(
B)).
The
commenter
stated
that
we
issued
initial
NOx
substitution
guidance
in
1993
that
required
RFP
reductions
to
be
achieved
from
sources
within
the
designated
nonattainment
area.
The
commenter
noted
that
subsequently,
we
attempted
to
unlawfully
allow
RFP
reductions
to
be
obtained
from
sources
within
the
modeling
domain.
The
commenter
advocated
that
we
clarify
that
the
CAA
requires
creditable
reductions
to
be
obtained
only
from
sources
within
the
designated
nonattainment
areas.
Response:
We
believe
that
the
policy
does
not
need
to
be
incorporated
into
a
rule.
Since
areas
must
include
record
support
for
application
of
the
policy
in
an
area
demonstrating
that
such
reductions
will
have
a
positive
impact
on
the
specific
nonattainment
area,
individual
rulemaking
in
the
context
of
an
area's
SIP
must
be
conducted
in
any
event
to
implement
the
policy.
The
EPA
believes
that
any
reductions
that
in
fact
result
in
improved
air
quality
within
the
nonattainment
area
can
be
credited
to
RFP
demonstrations.
Voluntary
emissions
reductions
that
are
used
to
satisfy
RFP
requirements
 
or
any
requirements
under
the
CAA
 
must
meet
EPA's
criteria
for
creditability
of
such
reductions,
including
inclusion
of
the
emissions
reductions
in
the
baseline.
As
explained
elsewhere
in
response
to
another
comment
on
the
policy
of
allowing
substitution
of
controls
from
outside
the
nonattainment
area
within
100
km
for
VOC
and
200
km
for
NOx,
EPA
disagrees
with
the
comment
that
the
CAA
limits
the
scope
of
creditable
emissions
reductions
to
only
those
reductions
in
emissions
emanating
from
within
the
nonattainment
area
boundaries.
Our
full
rationale
is
set
forth
in
a
previous
response.
We
also
address
elsewhere
the
comment
relating
to
allowance
of
RFP
credit
from
emissions
reductions
outside
the
State
in
which
the
nonattainment
area
is
located.
13.
When
must
RFP
emissions
reductions
be
achieved?
[
Section
VI.
I.
of
June
2,
2003
proposed
rule
(
several
locations
starting
at
68
FR
32832);
several
locations
including
§
51.910(
a)(
1)
of
the
draft
and
final
regulatory
text.]
a.
Background
22With
this
rulemaking,
this
provision
is
codified
as
40
CFR
51.908(
d).

58
Section
51.910(
a)(
1)
of
the
draft
regulatory
text
that
was
made
available
for
public
comment
provided
that
for
areas
initially
designated
nonattainment
for
the
8­
hour
NAAQS,
the
initial
6­
year
period
for
RFP
shall
run
from
January
1,
2003
to
December
31,
2008.
Section
182(
c)(
2)(
B),
applicable
to
serious
and
above
areas,
requires
that
RFP
be
continued
out
to
the
attainment
date.
Therefore,
§
51.910(
a)(
2)
of
the
draft
regulatory
text
provided,
"
For
each
area
classified
as
serious
or
higher
under
§
51.903,
the
State
must
submit
no
later
than
3
years
after
the
effective
date
of
the
area's
nonattainment
designation
a
SIP
revision
consistent
with
section
182(
c)(
2)(
B)
of
the
CAA
for
each
3
year
period
following
the
initial
6­
year
period
addressed
under
paragraph
(
a)(
1)(
ii)(
B)
of
this
section
until
the
area's
attainment
date.
For
areas
initially
designated
nonattainment
for
the
8­
hour
NAAQS
the
3­
year
periods
referenced
in
section
182(
c)(
2)(
B)
of
the
Act
shall
begin
January
1,
2009."
In
applying
the
requirement
of
section
182(
c)(
2)(
B),
it
is
necessary
to
know
the
attainment
date
for
the
area.
The
attainment
date
is
not
necessarily
the
maximum
allowed
under
part
D
of
the
CAA,
but
must
be
"
as
expeditious
as
practicable"
but
no
later
than
the
outermost
date
provided
in
the
CAA
(
e.
g.,
9
years
after
designation
for
a
serious
area).
Thus,
the
State
must
theoretically
have
completed
an
attainment
demonstration
and
RACM
analysis
(
discussed
elsewhere
in
this
preamble)
to
demonstrate
that
the
attainment
date
selected
is
as
expeditious
as
practicable.
The
Phase
1
rule,
§
51.900(
g)
sets
forth
the
following
definition:
"
Attainment
year
ozone
season
shall
mean
the
ozone
season
immediately
preceding
a
nonattainment
area's
attainment
date."
Also,
§
51.90822
(
What
is
the
required
time
frame
for
obtaining
emission
reductions
to
ensure
attainment
by
the
attainment
date?)
provides:
"
For
each
nonattainment
area,
the
State
must
provide
for
implementation
of
all
control
measures
needed
for
attainment
no
later
than
the
beginning
of
the
attainment
year
ozone
season."
Thus,
if
the
latest
attainment
date
allowed
by
the
CAA
for
a
serious
area
designated
in
2004
is
June
15,
2013,
the
(
complete)
ozone
season
preceding
that
date
would
occur
in
2012.
However,
if
all
of
the
reductions
necessary
to
achieve
attainment
are
in
place
prior
to
that
ozone
season,
then
the
most
expeditious
attainment
date
would
in
fact
be
just
after
the
end
of
that
ozone
season
in
2012
(
assuming
the
RACM
analysis
did
not
compel
a
more
expeditious
attainment
year).
Thus,
in
light
of
the
Phase
1
rule,
the
latest
possible
attainment
date
for
all
areas
will
be
just
after
the
end
of
the
ozone
season
in
the
year
prior
to
the
23With
the
exception
of
areas
with
year­
round
ozone
seasons,
in
which
case
the
latest
attainment
date
may
be
earlier
in
the
year
of
the
outside
attainment
date
identified
in
the
statute.

24Note
that
40
CFR
51.900(
g)
defines
"
Attainment
year
ozone
season"
as
the
ozone
season
immediately
preceding
a
nonattainment
area's
attainment
date.

59
outside
attainment
date
identified
in
the
statute
for
the
area's
classification.
23
Consistent
with
the
manner
in
which
ROP
plans
under
the
1­
hour
ozone
standard
were
developed,
the
RFP
baseline
for
2002
will
have
a
typical
summer
day
tons/
day
basis.
As
such,
the
attainment
year
target
will
also
be
a
typical
summer
day
target.
Thus,
the
target
level
of
emissions
must
be
met
by
the
attainment
date
of
the
attainment
year.
24
As
noted
above,
section
182(
c)(
2)(
B)
requires
that
RFP
be
continued
out
to
the
attainment
date.
Therefore
Thus,
ifto
some
extent,
the
area's
last
increment
of
progress
(
out
toRFP
requirement
may
help
determine
the
area's
attainment
date)
would
.
In
the
example
discussed
above
of
a
serious
area,
the
first
milestone
year
after
2008
by
which
an
annual
average
of
3
percent
emission
reductions
would
have
to
be
achieved
over
each
3­
year
period
(
i.
e.,
9
percent
over
3
years)
would
be
2011,
with
an
additional
annual
average
of
3
percent
per
year
between
the
end
of
2011
and
the
attainment
year
(
if
the
attainment
year
is
beyond
2011).
The
maximum
statutory
attainment
year
under
the
discussion
above
would
be
2013,
but,
for
the
reasons
explained
above
concerning
the
date
by
which
emissions
reductions
must
be
achieved,
the
actual
maximum
attainment
year
would
generally
be
the
year
prior,
viz.,
2012.
If
for
example
this
area
needs
an
additional
7
percent
emission
reduction
for
attainment
purposes
beyond
2008,
however,
RFP
would
require
implementation
of
the
entire
7
percent
no
later
than
the
end
of
2011.
Since
that
is
the
amount
needed
for
attainment,
the
area
would
actually
achieve
attainment
by
2011,
and
the
attainment
date
would
then
have
to
be
no
later
than
2011.
If
the
area
did
not
achieve
this
7
percent
reduction
until
the
end
of
2011,
the
RFP
requirement
in
this
case
could
not
require
the
full
9
percent
reduction.
Thus,
since
RFP
is
only
needed
up
to
the
attainment
date,
should
the
area
achieve
the
7%
earlier
in
the
year
it
would
have
achieved
attainment
and
no
further
ROP
would
be
required.
Therefore,
in
this
example
RFP
would
not
require
more
reductions
than
needed
for
attainment.
Furthermore,
the
RFP
requirement
by
itself
would
not
force
an
attainment
year
earlier
than
2011
for
this
case
(
e.
g.,
2010
 
2
years
after
2008),
since
the
7
percent
reduction
over
2
years
is
greater
than
an
annual
60
average
of
3
percent,
which
is
beyond
that
required
by
the
RFP
requirement.
1
In
summary,
RFP
reductions
end
at
the
attainment
date,
and
as
shown
the
RFP
requirement
would
not
result
in
emissions
reductions
greater
than
needed
for
attainment,
then
that
final
increment
of
progress
still
needs
to
be
implemented
by
the
area's
attainment
date.
However,
we
do
not
believe
that
there
will
likely
be
a
situation
where
RFP
requirements
will
result
in
emission
reductions
that
will
be
greater
than
the
reductions
needed
for
attainment.
The
reason
is
that
the
RFP
requirement
is
based
on
reducing
typical
summer
day
emissions.
The
last
increment
of
progress
would
be
in
the
attainment
year,
and
would
be
achieved
for
the
ozone
season
prior
to
the
attainment
date.
We
do
not
consider
partial
years
in
the
calculation
of
the
RFP
requirement
(
thus,
there
would
not
be
an
"
extra
increment"
between
the
beginning
of
the
ozone
season
and
the
attainment
date
that
would
occur
after
the
ozone
season).
The
emission
reductions
needed
for
attainment
must
also
be
achieved
prior
to
the
ozone
season
prior
to
the
attainment
date;
therefore
the
emission
reductions
needed
by
the
attainment
date
would
satisfy
the
last
RFP
increment
out
to
the
attainment
date.
An
example
of
how
this
might
play
out
appears
in
Appendix
C
of
this
preamble.
b.
Summary
of
final
rule
For
each
area
classified
as
moderate
or
higher,
the
State's
15
percent
VOC
emission
reduction
plan
must
provide
for
the
emissions
reductions
to
be
achieved
by
the
end
of
the
6
year
period
after
the
baseline
year.
The
6­
year
period
referenced
in
section
182(
b)(
1)
of
the
CAA
shall
begin
January
1
of
the
year
following
the
year
used
for
the
baseline
emissions
inventory.
For
areas
initially
designated
nonattainment
for
the
8­
hour
NAAQS,
the
6­
year
period
runs
from
January
1,
2003
to
December
31,
2008.
For
each
area
classified
as
serious
or
higher,
the
State's
RFP
plan
must
provide
a
3
percent
annual
emission
reduction
requirement
averaged
over
every
3­
year
period
after
the
initial
6­
year
period.
For
areas
initially
designated
nonattainment
for
the
8­
hour
NAAQS,
the
first
3­
year
period
shall
run
from
January
1,
2009
and
end
December
31,
2011.
The
final
increment
of
progress
must
be
achieved
no
later
than
the
attainment
date
for
the
area.
An
example
of
the
recommended
approach
is
shown
in
Table
1
for
serious
and
above
areas;
assume
the
area
has
already
completed
its
15
percent
VOC
reduction
under
the
1­
hour
ozone
standard.
To
summarize,
for
areas
designated
nonattainment
for
the
8­
hour
NAAQS
with
an
effective
date
of
June
15,
2004,
the
rule
would
establish
the
following:
61
°
The
6
year
period
in
section
51.910(
a)(
1)(
i)(
A)
and
(
ii)(
C)(
1)
would
run
from
January
1,
2003
to
December
31,
2008.
°
The
first
3
year
period
in
section
51.910(
a)(
1)(
i)(
B)
would
run
from
January
1,
2009
and
end
December
31,
2011.
°
The
baseline
emissions
inventory
in
section
51.910(
d)
would
be
for
calendar
year
2002..
62
Table
1
Reduction
Requirements
for
Periods
for
Areas
Classified
as
Serious
and
above
with
an
approved
1­
hour
15
percent
Plan
in
the
SIP
(
assumes
spring
to
fall
ozone
season)

RFP
Requirement
­
As
a
Percentage
of
Baseline
VOC
and/
or
NOx
Emissions
NOTE
2
Classification
Row
Time
Period
/
Terminal
Period
NOTE
1
Serious
Severe­
15
Severe­
17
Extreme
1
First
6
years
after
the
Baseline
Year
(
Typical
summer
day,
2002
to
December
31,
2008)
18
percent
18
percent
18
percent
18
percent
2
Next
Full
3­
year
Period
(
January
1,
2009
to
December
31,
2011)
9
percent
9
percent
9
percent
9
percent
3
Next
Full
3­
year
Period
(
January
1,
2012
to
December
31,
2014)
3
percent
in
the
2012
attainment
year
9
percent
9
percent
9
percent
4
Next
Full
3­
year
Period
(
January
1,
2015
to
December
31,
2017)
9
percent
9
percent
9
percent
Table
1
Reduction
Requirements
for
Periods
for
Areas
Classified
as
Serious
and
above
with
an
approved
1­
hour
15
percent
Plan
in
the
SIP
(
assumes
spring
to
fall
ozone
season)

RFP
Requirement
­
As
a
Percentage
of
Baseline
VOC
and/
or
NOx
Emissions
NOTE
2
Classification
Row
Time
Period
/
Terminal
Period
NOTE
1
Serious
Severe­
15
Severe­
17
Extreme
63
5
Next
Full
3­
year
Period
(
January
1,
2017
to
December
31,
2019)
6
percent
in
2018
attainment
year
9
percent
9
percent
6
Next
Full
3­
year
Period
(
January
1,
2020
to
December
31,
2022)
3
percent
in
2020
attainment
year
9
percent
7
The
period
terminating
in
extreme
area
attainment
date
(
January
1,
2022
to
attainment
date
at
end
of
2023)
6
percent
in
2023
attainment
year
64
NOTES:

1.
Time
periods
in
parentheses
are
for
areas
designated
and
classified
effective
June
15,
2004.

2.
RFP
credit
allowed
for
NOx
reductions
using
substitution
under
section
182(
c)(
2)(
C).
65
c.
Comments
and
responses
No
comments
were
received
on
the
proposal
concerning
the
timing
of
emission
reductions
needed
for
RFP.
14.
Banked
emission
reduction
credits
(
including
shutdown
credits)
Can
pre­
baseline
emission
reduction
credits
be
used
to
satisfy
the
RFP
requirement?
[
No
discussion
in
June
2,
2003
proposal;
no
draft
or
final
regulatory
text.]
a.
Background
This
topic
was
not
discussed
in
the
proposed
rulemaking,
but
we
believe
that
questions
that
have
arisen
on
this
topic
bear
some
discussion
here.
The
CAA
provides
the
following
definition
in
section
182(
b)(
1)(
D)
regarding
the
15
percent
VOC
RFP
requirement:
Baseline
emissions.
For
purposes
of
subparagraph
(
A),
the
term
"
baseline
emissions"
means
the
total
amount
of
actual
VOC
or
NOx
emissions
from
all
anthropogenic
sources
in
the
area
during
the
calendar
year
of
the
enactment
of
the
Clean
Air
Act
Amendments
of
1990,
excluding
.
.
.
[
emphasis
added.]

The
April
1992
General
Preamble
provides:
The
adjusted
base
year
inventory
(
i.
e.,
baseline
emissions)
must
contain
only
actual
emissions
occurring
in
the
base
year,
1990,
within
the
designated
nonattainment
area
boundaries.
The
baseline
emissions
should
not
include
pre­
enactment
banked
emission
credits
since
they
were
not
actual
emissions
during
the
calendar
year
of
enactment
[
57
FR
13507;
April
16,
1992;
emphasis
added].

and
Pre­
enactment
banked
emissions
reductions
credits
are
not
creditable
toward
the
15
percent
progress
requirement.
However,
for
purposes
of
equity,
EPA
encourages
States
to
allow
sources
to
use
such
banked
emissions
credits
for
offsets
and
netting.
When
States
use
such
banked
credits
for
offsets
and
netting
to
the
extent
otherwise
creditable
under
the
Part
D
NSR
regulations,
these
pre­
enactment
emissions
credits
must
be
treated
as
growth.
Consequently,
this
"
growth"
must
be
accounted
for,
as
is
the
case
with
all
other
anticipated
growth,
in
order
to
ensure
that
it
does
not
interfere
with
the
15
percent
rate
of
progress
requirement
(
which
is
"
net"
of
growth).
In
addition,
when
such
growth
emissions
are
used
as
offsets,
they
must
be
applied
in
accordance
with
the
offset
ratio
prescribed
for
the
area
of
concern
(
e.
g.,
1.3
to
1
for
severe
areas,
etc.).
All
pre­
enactment
banked
credits
must
be
included
in
the
nonattainment
area's
attainment
demonstration
for
ozone
to
25Guidance
on
the
Adjusted
Base
Year
Emissions
Inventory
and
the
1996
Target
for
the
15
Percent
Rate­
of­
Progress
Plans.
Ozone/
Carbon
Monoxide
Programs
Branch,
U.
S.
Environmental
Protection
Agency,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
NC
27711.
EPA­
452/
R­
92­
005.
October
1992.

2651
FR
233
"
Emissions
Trading
Policy
Statement;
General
Principles
for
Creation,
Banking
and
Use
of
Emission
Reduction
Credits;
Final
Policy
Statement
and
Technical
Issues
Document."
December
4,
1986.
This
document
has
been
replaced
by
Improving
Air
Quality
with
Economic
Incentive
Programs,
January
2001,
available
at
http://
www.
epa.
gov/
region07/
programs/
artd/
air/
policy/
search.
htm.

66
the
extent
that
the
State
expects
that
such
credits
will
be
used
for
offsets
or
netting
prior
to
attainment
of
the
ambient
standards.
Credits
used
after
that
date
will
need
to
be
consistent
with
the
area's
plan
for
maintenance
of
the
ambient
standard
[
57
FR
13508].

The
EPA's
1992
guidance
on
calculating
the
15
percent
emission
target25
contained
the
following:
4.3
Pre­
enactment
Banked
Emissions
Reduction
Credits.
If
the
State
has
an
emissions
credit
bank
that
meets
the
EPA's
requirements
under
an
earlier
policy
statement[
26],
the
State
is
allowed
to
use
its
pre­
enactment
banked
emissions
reduction
credits
to
facilitate
the
location
of
new
sources
in
nonattainment
areas
during
the
1990­
1996
period.
However,
because
these
reduction
credits
represent
emissions
that
are
not
included
in
the
1990
base
year
inventory,
any
additional
emissions
that
result
from
the
use
of
banked
credits
must
be
treated
as
growth
in
order
to
ensure
that
the
15
percent
VOC
emissions
reduction
requirement
is
achieved.
Also,
it
is
important
to
note
that
the
use
of
pre­
enactment
banked
emissions
credits
must
be
in
accordance
with
the
offset
ratios
prescribed
in
the
CAA
Amendments
(
e.
g.,
1.3
to
1
in
severe
areas.)

The
1992
guidance
document
provides
an
example
calculation
of
the
above
guidance.
b.
Interpretation
for
8­
hour
ozone
NAAQS
The
guidance
provided
above
is
still
relevant
for
banked
emission
reduction
credits
in
relation
to
the
RFP
requirement
for
the
8­
hour
ozone
standard.
However,
because
the
rule
for
implementing
the
8­
hour
ozone
standard
uses
a
2002
baseline
year,
the
above
guidance
should
be
read
 
for
purposes
of
implementing
the
8­
hour
ozone
RFP
requirement
 
by
substituting
"
pre­
enactment
banked
emission
credits"
with
"
pre­
2002
banked
emission
credits."
A
pre­
2002
banked
emission
credit
is
one
that
was
generated
before
January
1,
2002
and
that
is
certified
in
a
bank
that
EPA
has
approved
for
such
purposes.
For
a
discussion
of
the
use
of
shutdown/
curtailment
credits
for
offsets
and
netting,
see
section
V.
B.
1.
a
of
this
preamble.
For
a
discussion
of
the
use
of
emission
reduction
credits
for
offsets
and
netting,
see
section
V.
D.
5
of
this
preamble.
