PREDECISIONAL
DRAFT
 
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OR
DISTRIBUTE
draft
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6/
05
6560­
50­
P
H
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Parts
51
and
52
[
OAR
2003­
0079,
FRL­
]

RIN
2060­
AJ99
Final
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard
 
Phase
2;
Final
Rule
to
Implement
Certain
Aspects
of
the
1990
Amendments
Relating
to
New
Source
Review
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Final
rule.

SUMMARY:
In
this
document,
we
are
taking
final
action
on
remaining
elements
of
the
program
to
implement
the
8­
hour
ozone
national
ambient
air
quality
standard
(
NAAQS
or
standard).
This
final
rule
addresses,
among
other
things,

the
following
control
and
planning
obligations
as
they
apply
to
areas
designated
nonattainment
for
the
8­
hour
ozone
NAAQS:
reasonably
available
control
technology
and
measures
(
RACT
and
RACM),
reasonable
further
progress
(
RFP),
modeling
and
attainment
demonstrations,
and
new
source
review
(
NSR).

We
are
issuing
this
rule
so
that
States
and
Tribes
will
know
PREDECISIONAL
DRAFT
 
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QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
2
how
these
statutory
control
and
planning
obligations
apply
and
when
State
implementation
plan
(
SIPs)
revisions
are
due
for
these
obligations
so
that
the
States
may
develop
timely
submissions
consistent
with
the
statutory
obligations
and
attain
the
NAAQS
as
expeditiously
as
practicable
but
no
later
than
their
maximum
attainment
dates.
The
intended
effect
of
the
rule
is
to
provide
certainty
to
States
and
Tribes
regarding
development
of
those
plans.
The
first
phase
of
the
final
rule
was
published
on
April
30,
2004.

In
this
rule,
we
are
also
finalizing
several
revisions
to
the
regulations
governing
the
nonattainment
new
source
review
(
NSR)
programs
mandated
by
section
110(
a)(
2)(
C)
and
part
D
of
title
I
of
the
Clean
Air
Act
(
CAA).
First,
we
are
codifying
requirements
added
to
part
D
of
title
I
of
the
CAA
in
the
1990
amendments
related
to
permitting
of
major
stationary
sources
in
areas
that
are
nonattainment
for
the
ozone,
particulate
matter
(
PM10),
and
carbon
monoxide
NAAQS.

Second,
we
are
revising
the
criteria
for
crediting
emission
reductions
credits
from
shutdowns
and
curtailments
as
offsets.
Third,
we
are
revising
the
regulations
for
permitting
of
major
stationary
sources
in
nonattainment
areas
in
interim
periods
between
designation
of
new
nonattainment
areas
and
EPA's
approval
of
a
revised
State
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draft
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05
3
Implementation
Plan
(
SIP).
Fourth,
we
are
changing
the
regulations
that
impose
a
moratorium
(
ban)
prohibiting
construction
of
new
or
modified
major
stationary
sources
in
nonattainment
areas
where
the
State
fails
to
have
an
implementation
plan
meeting
all
of
the
requirements
of
part
D.
In
addition
to
the
changes
to
the
nonattainment
NSR
regulations,
we
also
are
making
one
change
to
the
Prevention
of
Significant
Deterioration
(
PSD)
regulations
under
part
C
of
title
I
of
the
Act.
We
are
codifying
nitrogen
oxides
(
NOx)
as
an
ozone
precursor
in
attainment
and
unclassifiable
areas.

Today's
changes
regarding
NSR
are
based
on
the
proposed
rule
published
June
2,
2003
to
Implement
the
8­
hour
Ozone
National
Ambient
Air
Quality
Standard
(
NAAQS),
as
well
as
the
proposed
rule
published
July
23,
1996
for
"
Prevention
of
Significant
Deterioration
(
PSD)
and
Non­
attainment
New
Source
Review
(
NSR)".
These
changes
provide
a
consistent
national
program
for
permitting
major
stationary
sources
under
section
110(
a)(
2)(
C)
and
parts
C
and
D
of
title
I,

including
major
stationary
sources
of
ozone
precursors
in
ozone
nonattainment
areas.

EFFECTIVE
DATE:
This
rule
is
effective
on
xxxx
2005.

ADDRESSES:
The
EPA
has
established
a
docket
for
this
action
PREDECISIONAL
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OR
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draft
2/
6/
05
4
under
Docket
ID
No.
OAR­
2003­
0079.
All
documents
in
the
docket
are
listed
in
the
EDOCKET
index
at
http://
www.
epa.
gov/
edocket.
Although
listed
in
the
index,

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

Confidential
Business
Information
or
other
information
whose
disclosure
is
restricted
by
statute.
Certain
other
material,
such
as
copyrighted
material,
is
not
placed
on
the
Internet
and
will
be
publicly
available
only
in
hard
copy
form.
Publicly
available
docket
materials
are
available
either
electronically
in
EDOCKET
or
in
hard
copy
at
the
EPA
Docket
Center
(
Air
Docket),
EPA/
DC,
EPA
West,
Room
B102,

1301
Constitution
Ave.,
NW,
Washington,
DC.
The
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
telephone
number
for
the
Public
Reading
Room
is
(
202)
566­
1744,
and
the
telephone
number
for
the
Office
of
Air
and
Radiation
Docket
and
Information
Center
is
(
202)
566­
1742.

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

http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
o3imp8hr.

FOR
FURTHER
INFORMATION
CONTACT:
For
general
information:

Mr.
John
Silvasi,
Office
of
Air
Quality
Planning
and
PREDECISIONAL
DRAFT
 
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05
5
Standards,
U.
S.
Environmental
Protection
Agency,
Mail
Code
C539­
02,
Research
Triangle
Park,
NC
27711,
phone
number
(
919)
54l­
5666,
fax
number
(
919)
54l­
0824
or
by
e­
mail
at
silvasi.
john@
epa.
gov
or
Ms.
Denise
Gerth,
Office
of
Air
Quality
Planning
and
Standards,
U.
S.
Environmental
Protection
Agency,
Mail
Code
C539­
02,
Research
Triangle
Park,
NC
27711,
phone
number
(
919)
54l­
5550,
fax
number
(
919)
54l­
0824
or
by
e­
mail
at
gerth.
denise@
epa.
gov.
For
information
concerning
new
source
review:
Ms.
Janet
McDonald,
Office
of
Air
Quality
Planning
and
Standards,

U.
S.
Environmental
Protection
Agency,
Mail
Code
C539­
02,

Research
Triangle
Park,
NC
27711,
phone
number
(
919)
54l­

5550,
fax
number
(
919)
54l­
1450
or
by
e­
mail
at
mcdonald.
janet@
epa.
gov
.

SUPPLEMENTARY
INFORMATION:

Outline
I.
What
is
the
background
for
this
rule?

II.
What
is
Included
in
this
Rule?

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

IV.
Final
Rule
for
Phase
2
Elements
other
than
New
Source
Review
A.
Should
prescribed
requirements
of
subpart
2
apply
in
all
8­
hour
nonattainment
areas
classified
under
subpart
2,
or
is
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6
there
flexibility
in
application
in
certain
narrowly
defined
circumstances?

1.
Background
2.
Final
Rule
3.
Comment
and
Responses
B.
How
will
we
address
long­
range
transport
of
ground­
level
ozone
and
its
precursors
when
implementing
the
8­
hour
ozone
standard?

1.
Background
2.
Current
Approach
3.
Comments
and
Responses
C.
How
will
we
address
transport
of
ground­
level
ozone
and
its
precursors
for
rural
nonattainment
areas,
areas
affected
by
intrastate
transport,
and
areas
affected
by
international
transport?

1.
Rural
transport
nonattainment
areas
a.
Background
b.
Summary
of
final
rule
c.
Comments
and
Responses
2.
Intrastate
Transport
a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
Responses
PREDECISIONAL
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OR
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2/
6/
05
7
3.
How
will
EPA
address
transport
of
ground­
level
ozone
and
its
precursors
for
[...]
areas
affected
by
international
transport?

a.
Background
b.
Final
Rule
c.
Comments
and
Responses
D.
How
will
EPA
address
requirements
for
modeling
and
attainment
demonstration
SIPs
for
areas
implementing
the
8­

hour
ozone
standard?

1.
Areas
with
early
attainment
dates
a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
Responses
2.
Areas
with
later
attainment
dates
a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
Responses
3.
Multi­
State
nonattainment
areas
a.
Background
b.
Summary
of
final
rule
c.
Comments
and
Responses
4.
Role
of
modeling
guidance
in
attainment
demonstrations
a.
Background
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b.
Summary
of
Final
Rule
c.
Comments
and
Responses
5.
Mid­
course
review
(
MCR)

a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
Responses
6.
Multi­
pollutant
assessments
(
one­
atmosphere
modeling)

a.
Background
b.
Summary
of
final
rule
c.
Comments
and
Responses
E.
What
requirements
for
RFP
should
apply
under
the
8­
hour
ozone
standard?

1.
General
Discussion
a.
Background
b.
Summary
of
Final
RFP
and
rate
of
progress
(
ROP)

Features
c.
Comments
and
responses
2.
For
subpart
2
areas,
should
the
initial
15
percent
RFP
requirement
be
limited
to
volatile
organic
compounds
(
VOC)

emissions?

a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
responses
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05
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3.
What
baseline
year
should
be
required
for
the
emissions
inventory
for
the
RFP
requirement?

a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
responses
4.
Should
moderate
and
higher
classified
areas
be
subject
to
prescribed
additional
RFP
requirements
prior
to
their
attainment
date?

a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
responses
5.
What
is
the
timing
of
the
submission
of
the
RFP
plan?

a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
responses
6.
How
should
CAA
restrictions
on
creditable
measures
be
interpreted?
Which
national
measures
should
count
as
generating
emissions
reductions
credit
toward
RFP
requirements?

a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
responses
7.
For
areas
covered
only
by
subpart
1,
how
should
the
RFP
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10
requirement
be
structured?

a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
responses
8.
How
should
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
standard?

a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
responses
9.
Will
EPA's
"
Clean
Data
Policy"
apply
for
purposes
of
8­

hour
RFP?

a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
responses
10.
How
will
RFP
be
addressed
in
Tribal
areas?

a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
responses
11.
How
will
RFP
targets
be
calculated?

a.
Background
b.
Summary
of
Final
Rule
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11
c.
Comments
and
responses
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?

a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
responses
13.
When
must
RFP
emission
reductions
be
achieved?

a.
Background
b.
Summary
of
Final
Rule.

c.
Comments
and
Responses.

14.
Banked
Emission
Reduction
Credits
(
Including
Shutdown
Credits)

a.
Background
F.
Are
contingency
measures
required
in
the
event
of
failure
to
meet
a
milestone
or
attain
the
8­
hour
ozone
NAAQS?

1.
Background
2.
Summary
of
final
rule
3.
Comments
and
Responses
G.
What
requirements
should
apply
for
RACM
and
RACT
for
8­

hour
ozone
nonattainment
areas?

1.
Reasonably
Available
Control
Technology
(
RACT)
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a.
Background
b.
Summary
of
Final
Rule
c.
Comments
and
responses
2.
Reasonably
Available
Control
Measures
(
RACM)

a.
Background
b.
Summary
of
final
rule
c.
Comments
and
Responses
H.
How
will
the
section
182(
f)
NOx
provisions
be
handled
under
the
8­
hour
ozone
standard?

1.
Background
2.
Summary
of
Final
Rule
3.
Comments
and
responses
I.
Should
EPA
promulgate
an
NSR
provision
to
encourage
development
patterns
that
reduce
overall
emissions?

1.
Background
2.
Summary
of
Final
Rule
3.
Comments
and
Responses
J.
How
will
EPA
ensure
that
the
8­
hour
ozone
standard
will
be
implemented
in
a
way
which
allows
an
optimal
mix
of
controls
for
ozone,
PM2.5,
and
regional
haze?

1.
Background
2.
Summary
of
Final
Rule
3.
Comments
and
responses
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05
13
K.
What
emissions
inventory
requirements
should
apply
under
the
8­
hour
ozone
NAAQS?

1.
Background
2.
Summary
of
final
rule
3.
Comments
and
Responses
L.
What
guidance
should
be
provided
that
is
specific
to
Tribes?

1.
Background
2.
Summary
of
final
rule
3.
Comments
and
Responses
M.
What
are
the
requirements
for
Ozone
Transport
Regions
(
OTRs)
under
the
8­
hour
ozone
standard?

1.
Background
2.
Summary
of
Final
Rule
3.
Comments
and
Responses
N.
Are
there
any
additional
requirements
related
to
enforcement
and
compliance?

1.
Background
2.
Summary
of
final
rule
3.
Comments
and
Responses
O.
What
requirements
should
apply
to
emergency
episodes?

1.
Background
2.
Summary
of
final
rule
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3.
Comments
and
Responses
P.
What
ambient
monitoring
requirements
will
apply
under
the
8­
hour
ozone
NAAQS?

1.
Background
2.
Summary
of
final
rule
3.
Comments
and
Responses
Q.
When
will
EPA
require
8­
hour
attainment
demonstration
SIP
submissions?

1.
Background
2.
Summary
of
final
rule
3.
Comments
and
Responses
R.
How
will
the
statutory
time
periods
in
the
Act
be
addressed
when
we
redesignate
areas
to
nonattainment
following
initial
designations
for
the
8­
hour
NAAQS?

1.
Background
2.
Final
Rule
3.
Comments
and
Responses
V.
EPA's
Final
Rule
for
New
Source
Review
A.
Background
1.
The
Major
NSR
Program
2.
What
We
Proposed
a.
Proposed
Changes
to
Incorporate
the
1990
Clean
Air
Act
Amendments
PREDECISIONAL
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15
b.
Proposed
Changes
to
Criteria
for
Emission
Reduction
Credits
from
Shutdowns
and
Curtailments
c.
Proposed
Changes
to
Revise
the
Construction
Ban
Provisions
d.
Proposed
Changes
On
Applicability
of
Appendix
S
and
the
Transitional
NSR
Program
e.
Proposed
Changes
to
Identify
NOx
as
an
Ozone
Precursor
in
Attainment
and
Unclassifiable
areas.

B.
Summary
of
Final
Rule
and
Legal
Basis
1.
Final
Action
and
Legal
Basis
for
Changes
to
Incorporate
the
1990
Clean
Air
Act
Amendments
a.
Final
Changes
to
Incorporate
the
1990
Clean
Air
Act
Amendments
b.
Legal
Basis
for
Changes
to
Incorporate
the
1990
Clean
Air
Act
Amendments
2.
Final
Action
and
Legal
Basis
for
Changes
to
Criteria
for
Emission
Reduction
Credits
from
Shutdowns
and
Curtailments
a.
Final
Changes
to
Criteria
for
Emission
Reduction
Credits
from
Shutdowns
and
Curtailments
b.
Legal
Basis
for
Changes
to
Criteria
for
Emission
Reduction
Credits
from
Shutdowns
and
Curtailments
3.
Final
Action
and
Legal
Basis
for
Changes
to
the
Construction
Ban
Provisions
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a.
Final
Action
for
Changes
to
the
Construction
Ban
Provisions
b.
Legal
Basis
for
Changes
to
the
Construction
Ban
Provisions
4.
Final
Action
and
Legal
Basis
for
Changes
on
Applicability
of
Appendix
S
and
the
Transitional
NSR
Program
a.
Final
Changes
on
Applicability
of
Appendix
S
and
the
Transitional
NSR
Program
b.
Legal
Basis
for
Changes
to
Applicability
of
Appendix
S
and
the
Transitional
NSR
Program
5.
Final
Action
and
Legal
Basis
for
Changes
to
Identify
NOx
as
an
Ozone
Precursor
in
Attainment
and
Unclassifiable
Areas
a.
Final
Changes
to
Identify
NOx
as
an
Ozone
Precursor
in
Attainment
and
Unclassifiable
Areas.

b.
Legal
Basis
to
Identify
NOx
as
an
Ozone
Precursor
in
Attainment
and
Unclassifiable
areas
6.
Final
Changes
and
Legal
Basis
for
Changes
to
Emission
Offset
Provisions
of
Appendix
S.

a.
Final
Changes
to
Emission
Offset
Provisions
of
Appendix
S.

b.
Legal
Basis
for
Changes
to
Emission
Offset
Provisions
of
Appendix
S.

C.
Comments
and
Responses
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1.
Comments
on
Proposed
Changes
to
Incorporate
the
1990
Clean
Air
Act
Amendments
2.
Comments
on
Proposed
Revisions
to
Criteria
for
Emission
Reduction
Credits
from
Shutdown
and
Curtailments
3.
Comments
on
Construction
Ban
Provisions
4.
Comments
on
Applicability
of
Appendix
S
and
the
Transitional
Program
5.
Comments
on
Changes
to
Identify
NOx
as
an
Ozone
Precursor
in
Attainment
and
Unclassifiable
Areas
6.
Comments
on
Removing
the
50­
ton
Exemption
D.
NSR
Implementation
Under
the
8­
hour
ozone
NAAQS
1.
Areas
That
Have
Never
Been
Nonattainment
for
Ozone
2.
Areas
That
Are
Nonattainment
for
the
1­
hour
NAAQS
and
the
8­
hour
NAAQS
3.
Part
D
NSR
SIP
Submittals
4.
Effective
Date
for
Today's
Requirements
5.
Requirements
for
Offsets
VI.
OTHER
CONSIDERATIONS
A.
How
will
EPA's
action
affect
funding
under
the
Congestion
Mitigation
and
Air
Quality
Improvement
(
CMAQ)

Program?

1.
Background
2.
Current
Position
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3.
Comments
and
Responses
B.
What
is
the
relationship
between
implementation
of
the
8­
hour
standard
and
the
CAA's
Title
V
permit
program?

1.
Background
2.
Current
Position
3.
Comments
and
Responses
VII.
STATUTORY
AND
EXECUTIVE
ORDER
REVIEWS
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
B.
Paperwork
Reduction
Act
C.
Regulatory
Flexibility
Act
D.
Unfunded
Mandates
Reform
Act
E.
Executive
Order
13132:
Federalism
F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
and
Safety
Risks
H.
Executive
Order
13211:
Actions
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
I.
National
Technology
Transfer
Advancement
Act
J.
Executive
Order
12898:
Federal
Actions
to
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
Populations
K.
Congressional
Review
Act
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19
I.
What
is
the
background
for
this
rule?

On
June
2,
2003
(
68
FR
32805),
we
published
a
proposed
rule
to
implement
the
8­
hour
ozone
NAAQS.
The
proposal
addressed
a
number
of
implementation
issues.
We
proposed
one
or
more
options
for
each
issue
addressed
in
the
proposal.
Please
refer
to
the
proposed
rule
(
68
FR
32802,

June
2,
2003)
for
a
detailed
discussion
and
background
information
on
the
8­
hour
ozone
NAAQS;
the
associated
litigation;
our
proposed
strategy
for
areas
to
achieve
the
NAAQS;
and
the
stakeholder
process
for
gathering
input
into
this
effort,
among
other
topics.

On
August
6,
2003
(
68
FR
46536),
we
published
a
notice
of
availability
of
the
draft
regulatory
text
for
the
proposed
rule
to
implement
the
8­
hour
ozone
NAAQS.
This
notice
started
a
30­
day
public
comment
period
on
the
draft
regulatory
text.

On
April
30,
2004
(
69
FR
23951),
we
published
a
final
rule
that
addressed
the
following
key
elements
related
to
implementation
of
the
8­
hour
ozone
NAAQS:
classifications
for
the
8­
hour
NAAQS;
revocation
of
the
1­
hour
NAAQS
(
i.
e.,

when
the
1­
hour
NAAQS
will
no
longer
apply);
how
antibacksliding
principles
will
ensure
continued
progress
toward
attainment
of
the
8­
hour
ozone
NAAQS;
attainment
dates;
and
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1Three
petitions
for
reconsideration
of
the
Phase
1
Rule
were
filed
by:
1)
Earthjustice
on
behalf
of
the
American
Lung
Association,
Environmental
Defense,
Natural
Resources
Defense
Council,
Sierra
Club,
Clean
Air
Task
Force,
Conservation
Law
Foundation,
and
Southern
Alliance
for
Clean
Energy;
2)
the
National
Petrochemical
and
Refiners
Association
and
the
National
Association
of
Manufacturers;
and
3)
the
American
Petroleum
Institute,
American
Chemistry
Council,
American
Iron
and
Steel
Institute,
National
Association
of
Manufacturers
and
the
U.
S.
Chamber
of
Commerce.

20
the
timing
of
emissions
reductions
needed
for
attainment.

Following
publication
of
the
April
30,
2004
final
rule,

the
Administrator
received
three
petitions,
pursuant
to
section
307(
b)(
7)(
B)
of
the
CAA
requesting
reconsideration
of
a
number
of
aspects
of
the
final
rule.
1
On
September
23,

2004,
we
granted
reconsideration
of
three
issues
raised
in
the
Earthjustice
Petition.
On
XXX_____________________,
we
published
a
proposed
rule
to
take
comment
on
two
of
these
issues:
1)
the
provision
that
section
185
fees
would
no
longer
be
applicable
once
the
1­
hour
NAAQS
is
revoked
and
2)

the
timing
for
determination
of
what
is
an
"
applicable
requirement."
On
xxx___________________________,
we
published
a
proposed
rule
to
take
comment
on
the
issue
of
the
NSR
anti­
backsliding
provisions.
We
plan
to
take
final
action
on
these
three
issues
by
May
20,
2005.

[
XXX
THIS
MAY
NEED
TO
BE
REVISED
]
We
are
continuing
to
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21
review
the
remaining
issues
raised
in
the
Earthjustice
Petition,
as
well
as
the
issues
raised
in
the
National
Petrochemical
and
Refiners
Association
and
American
Petroleum
Institute
Petitions.
Copies
of
the
Petitions
for
Reconsideration
and
actions
EPA
has
taken
regarding
the
Petitions
may
be
found
at:

www.
epa.
gov/
ttn/
naaqs/
ozone/
o3imp8hr.

In
addition,
in
the
April
30,
2004
rule,
we
established
a
subpart
E
in
40
CFR
part
81
"
Identification
of
Area
Designations
and
Classifications
for
the
1­
Hour
Ozone
NAAQS
as
of
June
15,
2004
[
Reserved]."
We
will
not
publish
the
list
of
areas
under
subpart
E
of
part
81
until
we
address
the
petitions
for
reconsideration.

II.
What
is
Included
in
this
Rule?

Today's
action,
Phase
2
of
the
implementation
rule,

addresses
numerous
topics,
but
primarily
focuses
on
the
following
key
implementation
obligations
for
areas
designated
nonattainment
for
the
8­
hour
NAAQS:
reasonably
available
control
technology
and
measures
(
RACT
and
RACM);

RFP;
modeling
and
attainment
demonstrations;
and
new
source
review
(
NSR).

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

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

Summary
of
Section
IV:
Final
Rule
for
Phase
2
Elements
Other
than
New
Source
Review
A.
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?

There
may
be
a
basis
for
waiving
a
prescribed
requirement
on
a
case­
by­
case
basis
where
imposition
of
the
requirement
would
create
an
absurd
result.
If
a
State
submits
a
demonstration
that
application
of
a
specific
requirement
in
a
specific
nonattainment
area
would
create
an
absurd
result,
we
will
consider
application
of
the
absurd
results
doctrine
at
that
time.
We
believe
that
absurd
results
that
might
occur
from
application
of
mandatory
control
measures
would
happen
only
in
rare
instances,
if
at
all.

B.
How
will
we
address
long­
range
transport
of
ground­
level
ozone
and
its
precursors
when
implementing
the
8­
hour
ozone
standard?
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We
are
addressing
the
long­
range
transport
of
ozone
and
its
precursors
through
a
separate
rulemaking.
Based
on
a
reassessment
of
interstate
transport
for
the
8­
hour
standard,
we
proposed
the
"
Rule
to
Reduce
Interstate
Transport
of
Fine
Particulate
Matter
and
Ozone,"
now
known
as
the
proposed
Clean
Air
Interstate
Rule
(
CAIR)
on
January
30,
2004
(
69
FR
4566).
This
action
proposed
statewide
NOx
budgets
for
25
States
and
the
District
of
Columbia.
These
budgets
are
based
on
a
proposed
determination
that
emissions
from
these
26
jurisdictions
are
significantly
contributing
to
8­
hour
ozone
(
and
fine
particulate
matter)
problems
in
downwind
States.
On
June
10,
2004
(
69
FR
32684),
we
issued
a
supplemental
proposal
for
the
CAIR,
which
included
a
proposed
model
cap­
and­
trade
program
that
States
could
use
to
meet
the
NOx
budgets.

C.
How
will
we
address
transport
of
ground­
level
ozone
and
its
precursors
for
rural
nonattainment
areas,
areas
affected
by
intrastate
transport,
and
areas
affected
by
international
transport?

1.
Rural
transport
nonattainment
areas
The
final
rule
does
not
contain
any
revisions
to
current
policy
on
rural
transport
areas
under
section
182(
h).
We
do
not
believe
there
are
any
8­
hour
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nonattainment
areas
covered
under
subpart
2
that
are
"
rural"

and
therefore
eligible
for
consideration
for
coverage
under
section
182(
h).

2.
Intrastate
Transport
The
final
rule
does
not
contain
any
additional
provisions
for
addressing
intrastate
transport
for
the
reasons
stated
in
the
proposal.

3.
How
will
EPA
address
transport
of
ground­
level
ozone
and
its
precursors
for
[...]
areas
affected
by
international
transport?

We
are
not
setting
forth
any
regulatory
provisions
related
to
international
transport
in
this
rule
as
section
179B
of
the
CAA
applies
for
these
purposes.
We
continue
to
recommend
that
States
confer
with
the
appropriate
EPA
Regional
Office
to
establish
on
a
case­
by­
case
basis
the
technical
requirements
for
these
analyses.
These
analyses
will
be
subject
to
public
comment
during
the
State
and
federal
SIP
processes.

D.
How
will
EPA
address
requirements
for
modeling
and
attainment
demonstration
SIPs
for
areas
implementing
the
8­

hour
ozone
standard?

The
final
rule
retains
the
following
four
elements
that
each
attainment
demonstration
SIP
must
include:
(
1)
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technical
analyses
to
locate
and
identify
sources
of
emissions
that
are
causing
violations
of
the
8­
hour
NAAQS
within
nonattainment
areas
(
i.
e.,
analyses
related
to
the
emissions
inventory
required
for
the
nonattainment
area),

(
2)
adopted
measures
with
schedules
for
implementation
and
other
means
and
techniques
necessary
and
appropriate
for
attainment,
(
3)
commitments,
in
some
cases,
to
perform
a
mid­
course
review
(
MCR),
and
(
4)
contingency
measures
required
under
section
172(
c)(
9)
of
the
CAA
that
can
be
implemented
without
further
action
by
the
State
or
the
Administrator
to
cover
failures
to
meet
RFP
milestones
and/
or
attainment.

1.
Areas
with
early
attainment
dates
Subpart
1
areas
may
rely
on
acceptable
available
modeling
to
demonstrate
attainment
within
3
years
after
the
effective
date
of
the
designation.
If
acceptable
available
modeling
does
not
demonstrate
attainment
within
three
years
after
the
area's
designation,
the
area
would
need
to
submit
a
local
modeled
attainment
demonstration.

2.
Areas
with
later
attainment
dates
Areas
with
later
attainment
dates
such
as
other
subpart
1
areas
and
areas
classified
as
moderate
or
higher
under
section
51.903
are
required
to
submit
an
attainment
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demonstration
no
later
than
3
years
after
the
effective
date
of
designation
for
the
8­
hour
ozone
NAAQS.

3.
Multi­
State
nonattainment
areas
State
partners
involved
in
a
multi­
State
ozone
nonattainment
area
must
work
together
to
perform
the
appropriate
modeling
analyses
to
identify
control
measures
that
will
enable
the
area
to
achieve
attainment
as
expeditious
as
practicable.
Each
State
will
be
responsible
for
its
portion
of
the
control
program
and
will
be
held
accountable
for
controls
identified
for
implementation
within
its
State
boundaries.

4.
Role
of
modeling
guidance
in
attainment
demonstrations
Attainment
demonstrations
must
be
consistent
with
40
CFR
51.112.
We
will
generally
review
the
demonstrations
for
technical
merit
using
EPA's
most
recent
modeling
guidance
at
the
time
the
modeled
attainment
demonstration
is
performed.

5.
Mid­
course
review
(
MCR)

Areas
with
an
attainment
date
beyond
6
years
after
the
effective
date
of
the
area's
designation
are
required
to
commit
to
perform
a
MCR
midway
between
the
due
date
for
the
area's
attainment
demonstration
SIP
and
the
area's
attainment
date.

6.
Multi­
pollutant
assessments
(
one­
atmosphere
modeling)
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27
There
is
no
regulatory
text
on
this
issue,
but
the
preamble
makes
several
recommendations
concerning
multipollutant
assessments.

E.
What
requirements
for
RFP
should
apply
under
the
8­
hour
ozone
standard?

1.
General
Discussion
We
are
adopting
nearly
all
the
approaches
set
forth
in
our
proposed
rule
for
the
various
1­

hour
ROP
and
8­
hour
RFP
issues.

2.
For
subpart
2
areas,
should
the
initial
15
percent
RFP
requirement
be
limited
to
VOC
emissions?

Areas
that
are
classified
as
moderate
under
the
8­
hour
standard
that
have
already
implemented
their
15
percent
plans
under
their
1­
hour
ozone
SIPs
would
be
considered
to
have
met
the
statutory
15
percent
requirement.
RFP
for
the
first
6
years
from
the
baseline
year
would
be
covered
under
the
more
generic
RFP
requirements
of
subpart
1.
Serious
and
above
areas
would
have
to
meet
3
percent
reductions
per
year
starting
in
the
baseline
year
averaged
over
each
three
year
period
out
to
the
attainment
year.

3.
What
baseline
year
should
be
required
for
the
emissions
inventory
for
the
RFP
requirement?

We
are
using
the
2002
inventory
as
the
baseline
inventory
for
the
ROP
requirement
for
areas
designated
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
28
nonattainment
in
2004
primarily
because
of
timing
concerns
related
to
attainment
dates
and
when
data
is
collected
and
compiled.

4.
Should
moderate
and
higher
classified
areas
be
subject
to
prescribed
additional
RFP
requirements
prior
to
their
attainment
date?
Moderate
areas
would
have
to
provide
additional
emissions
reductions
(
VOC/
NOx)
needed
to
provide
for
attainment
by
the
beginning
of
the
ozone
season
prior
to
the
area's
attainment
date.
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.

5.
What
is
the
timing
of
the
submission
of
the
RFP
plan?

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
one
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
29
would
be
required
to
be
submitted
with
the
attainment
demonstration,
i.
e.,
within
3
years
after
designation.

However,
we
recommend
that
States
complete
their
RFP
plans
as
soon
as
possible
after
designation
to
provide
more
time
for
sources
to
implement
the
emission
reductions.

6.
How
should
CAA
restrictions
on
creditable
measures
be
interpreted?
Which
national
measures
should
count
as
generating
emissions
reductions
credit
toward
RFP
requirements?

b.
Summary
of
Final
Rule.

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
Act
which
exclude
four
categories
of
pre­
1990
emission
reductions.

7.
For
areas
covered
only
by
subpart
1,
how
should
the
RFP
requirement
be
structured?

We
are
finalizing
rules
for
two
rather
than
three
categories
of
areas
based
on
the
Act's
division
of
attainment
dates
for
subpart
1
areas
under
section
172(
a)(
2).
The
following
are
the
two
scenarios
and
the
RFP
requirements
for
each:

Scenario
A:
Areas
with
attainment
dates
5
years
or
less
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
2/
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05
30
after
designation
(
i.
e.,
on
or
before
June
15,
2009).
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.
This
would
be
similar
to
subpart
2
RFP
for
areas
classified
as
marginal.

Scenario
B:
Areas
with
attainment
dates
beyond
5
years
after
designation
(
i.
e.,
beyond
2009)

°
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
within
6
years
after
the
baseline
year
(
i.
e.,
out
to
2008).

°
The
15
percent
RFP
SIP
would
have
to
be
submitted
within
3
years
after
designation
(
i.
e.,
in
2007).

°
However,
since
the
area
is
subject
only
to
subpart
1,

either
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
31
for
an
additional
increment
of
progress
no
less
than
the
amount
of
emission
reductions
that
would
be
proportional
to
the
time
between
the
end
of
the
first
increment
(
in
2008)
and
the
attainment
date.
This
second
RFP
SIP
would
also
have
to
be
submitted
within
3
years
after
the
effective
date
of
designation
(
i.
e.,
in
2007).

8.
How
should
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
standard?
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.
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
but
also
contains
areas
that
do
not
have
an
approved
15
percent
VOC
ROP
plan,
the
final
rule
allows
States
the
choice
between
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
emission
reductions
that
occur
after
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
32
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(
s)
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.
The
previous
nonattainment
area
that
fell
under
the
1­
hour
standard
will
now
be
subject
to
the
subpart
1
provisions
of
the
CAA
and
will
be
able
to
credit
both
VOC
and
NOx
toward
meeting
the
RFP
target
for
this
portion
of
the
nonattainment
area.
VOC
reductions
to
meet
the
15
percent
requirement
for
the
portion
of
the
new
8­
hour
nonattainment
area
that
has
not
yet
met
this
requirement
may
come
from
across
the
entire
8­
hour
area.

EPA
notes
that
where
a
moderate
area
with
a
previously
approved
15%
plan
for
a
portion
of
the
8­
hour
nonattainment
area
chooses
the
second
option
of
developing
a
new
15%
plan
for
only
the
new
portion
of
the
8­
hour
nonattainment
area,

the
emissions
projections
included
in
such
plans
will
not
constitute
motor
vehicle
emissions
budgets
for
purposes
of
the
transportation
conformity
rules
because
they
will
be
not
establish
total
allowable
emissions
for
2008
for
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
33
nonattainment
area
as
a
whole.
Since
the
portions
of
moderate
areas
that
have
previously
met
their
15%

requirements
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.
In
contrast,
for
2008
serious
and
above
areas
will
be
developing
both
a
15%
VOC
plan
for
the
new
portion
of
the
8­
hour
nonattainment
area
and
an
18%

VOC/
NOx
plan
for
the
portion
of
the
area
that
previously
met
its
15%
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.

9.
Will
EPA's
"
Clean
Data
Policy"
apply
for
purposes
of
8­

hour
RFP?
We
intend
to
apply
the
Clean
Data
Policy
for
the
8­
hour
standard
in
the
same
manner
as
we
applied
it
for
the
1­
hour
standard.

10.
How
will
RFP
be
addressed
in
Tribal
areas?
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
34
We
intend
to
follow
the
Tribal
Authority
Rule
(
TAR),
which
provides
Tribes
with
the
ability
to
develop
Tribal
implementation
plans
(
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."

11.
How
will
RFP
targets
be
calculated?

Appendix
A
to
the
preamble
to
this
final
rule
provides
calculation
procedures
for
determining
the
RFP
targets.

These
have
been
revised
from
those
in
the
proposal
to
account
for
NOx
and
for
other
emissions
models.

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?

We
intend
to
continue
to
rely
on
this
policy
at
the
current
time,
but
also
intend
to
reassess
whether
the
policy
should
be
revised
in
light
of
comments
related
to
issues
of
equity
and
the
potential
for
double
counting
of
emission
reductions.

13.
When
must
RFP
emission
reductions
be
achieved?

The
target
level
of
emissions
must
be
met
by
the
attainment
date
of
the
attainment
year.
Section
PREDECISIONAL
DRAFT
 
DO
NOT
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OR
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draft
2/
6/
05
35
182(
c)(
2)(
B)
requires
that
RFP
be
continued
out
to
the
attainment
date.
Therefore,
if
the
area's
last
increment
of
progress
(
out
to
the
area's
attainment
date)
would
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.

14.
Banked
Emission
Reduction
Credits
(
Including
Shutdown
Credits):
Can
pre­
baseline
emission
reduction
credits
be
used
to
satisfy
the
RFP
requirement?

°
The
baseline
emissions
should
not
include
pre­
enactment
banked
emission
credits
since
they
were
not
actual
emissions
during
the
calendar
year
of
enactment.

°
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
as
authorized.

°
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.
Prior
guidance
on
this
issue
is
still
relevant
for
banked
emission
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
36
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
prior
guidance
should
be
interpreted
with
that
baseline
in
mind
instead
of
enactment
of
the
1990
Amendments.

F.
Are
contingency
measures
required
in
the
event
of
failure
to
meet
a
milestone
or
attain
the
8­
hour
ozone
NAAQS?

Contingency
measures
are
required
to
be
implemented
in
the
event
of
failure
to
meet
a
milestone
or
attain
the
8­

hour
ozone
NAAQS
and
must
accompany
the
attainment
demonstration
SIP.
All
subpart
1
and
subpart
2
areas
other
than
marginal
areas
need
contingency
measures.

G.
What
requirements
should
apply
for
RACM
and
RACT
for
8­

hour
ozone
nonattainment
areas?

1.
Reasonably
Available
Control
Technology
(
RACT)

For
subpart
1
areas
that
do
not
request
an
attainment
date
extension
(
beyond
5
years
after
designation),
RACT
is
met
with
the
control
requirements
associated
with
a
demonstration
that
the
NAAQS
is
attained
as
expeditiously
as
practicable.

For
subpart
1
areas
that
request
an
attainment
date
PREDECISIONAL
DRAFT
 
DO
NOT
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OR
DISTRIBUTE
draft
2/
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05
37
extension
(
beyond
5
years
after
designation),
subpart
2
moderate
and
above
areas,
and
areas
within
an
Ozone
Transport
Region,
RACT
is
required.
The
RACT
submittal
date
is
two
years
after
designation,
except
subpart
1
areas
shall
submit
the
RACT
SIP
with
its
attainment
date
extension
request.
States
must
require
sources
to
implement
RACT
no
later
than
the
first
ozone
season
or
portion
thereof
which
occurs
30
months
after
the
required
submittal
date.

Where
RACT
is
required,
State
SIPs
implementing
the
8­

hour
standard
generally
must
assure
that
RACT
is
met,
either
through
a
certification
that
previously
required
RACT
controls
represent
RACT
for
8­
hour
implementation
purposes
or
through
a
new
RACT
determination.
States
may
use
existing
EPA
guidance
in
making
RACT
determinations.

Sources
subject
to
the
NOx
SIP
Call
trading
program
meet
NOx
RACT
requirements
under
existing
RACT
guidance.
States
are
free
to
conduct
case­
by­
case
RACT
determinations,
or
RACT
determinations
or
certifications
for
groups
of
sources,
at
their
discretion.

2.
Reasonably
Available
Control
Measures
(
RACM)

For
each
nonattainment
area
required
to
submit
an
attainment
demonstration,
the
State
must
submit
with
the
attainment
demonstration
a
SIP
revision
demonstrating
that
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
2Memorandum
dated
January
14,
2005,
"
Guidance
on
Limiting
Nitrogen
Oxides
(
NO
x)
Requirements
Related
to
8­
Hour
Ozone
Implementation"
from
Stephen
D.
Page,
Director,

38
it
has
adopted
all
control
measures
necessary
to
demonstrate
attainment
as
expeditiously
as
practicable
and
to
meet
any
RFP
requirements.

H.
How
will
the
section
182(
f)
NOx
provisions
be
handled
under
the
8­
hour
ozone
standard?

The
final
rule
allows
a
person
to
petition
the
Administrator
for
an
exemption
from
nonattainment
major
NSR
and/
or
RACT
requirements
for
major
stationary
sources
of
NOs
in
8­
hour
ozone
nonattainment
areas
and
for
any
area
in
a
section
184
ozone
transport
region.
The
final
rule
includes
an
extension
of
the
NOx
waiver
provisions
to
8­
hour
ozone
nonattainment
areas
covered
under
subpart
1
(
as
proposed)
as
well
as
subpart
2
nonattainment
areas.
In
addition,
the
final
rule
states
that
a
section
182(
f)
NOx
exemption
granted
under
the
1­
hour
ozone
standard
does
not
relieve
the
area
from
any
requirements
under
the
8­
hour
ozone
standard.

A
petition
must
contain
adequate
documentation
that
the
exemption
provisions
in
section
182(
f)
are
met.
We
recently
issued
updated
guidance
on
appropriate
documentation
regarding
section
182(
f)
for
application
to
the
8­
hour
ozone
program.
2
PREDECISIONAL
DRAFT
 
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draft
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6/
05
Office
of
Air
Quality
Planning
and
Standards,
to
Air
Directors,
Regions
I­
X.

39
I.
Should
EPA
promulgate
an
NSR
provision
to
encourage
development
patterns
that
reduce
overall
emissions?
Section
V
of
this
preamble
below
addresses
rules
for
NSR
for
the
8­

hour
ozone
standard.
We
are
not
at
this
time
issuing
any
rule
related
to
Clean
Air
Development
Communities
(
CADCs).

J.
How
will
EPA
ensure
that
the
8­
hour
ozone
standard
will
be
implemented
in
a
way
which
allows
an
optimal
mix
of
controls
for
ozone,
PM2.5,
and
regional
haze?

We
are
continuing
our
policy
of
encouraging
each
State
with
an
ozone
nonattainment
area
which
overlaps
or
is
nearby
a
PM2.5
nonattainment
area
to
take
all
reasonable
steps
to
coordinate
the
required
revisions
for
these
nonattainment
areas
and
meet
reasonable
progress
goals
for
regional
haze.

K.
What
emissions
inventory
requirements
should
apply
under
the
8­
hour
ozone
NAAQS?

Existing
emissions
reporting
requirements
in
40
CFR
Part
51
subpart
A
are
sufficient
to
satisfy
the
emissions
inventory
data
requirements
under
the
8­
hour
ozone
NAAQS.

L.
What
guidance
should
be
provided
that
is
specific
to
Tribes?

CAA
section
301(
d)
recognizes
that
American
Indian
PREDECISIONAL
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40
Tribal
governments
are
generally
the
appropriate
authority
to
implement
the
CAA
in
Indian
country.
As
discussed
in
the
Tribal
Authority
Rule
(
TAR),
it
is
appropriate
to
treat
Tribes
in
the
same
manner
as
States
for
purposes
of
implementing
all
of
the
provisions
of
the
CAA,
except
those
provisions
for
which
EPA
has
specifically
determined
that
it
is
not
appropriate
to
treat
Tribes
in
the
same
manner
as
States.
(
The
CAA
provisions
for
which
EPA
has
determined
it
is
not
appropriate
to
treat
Tribes
in
the
same
manner
as
States
are
listed
in
Section
IV.
L.
of
this
preamble.)

Examples
of
CAA
provisions
for
which
EPA
has
determined
it
is
not
appropriate
to
treat
Tribes
in
the
same
manner
as
States
include
specific
plan
submittal
and
implementation
deadlines.

In
implementing
this
rule,
it
is
important
for
both
States
and
Tribes
to
work
together
to
coordinate
planning
efforts.
Other
than
in
very
limited
circumstances,
State
regulations
do
not
apply
to
Indian
Country,
but
SIP
control
measures
could
impact
downwind
areas,
including
Indian
communities.
In
addition,
nonattainment
area
boundaries
may
include
a
portion
of
Indian
Country.
Coordinated
planning
will
help
ensure
that
the
planning
decisions
made
by
the
States
and
Tribes
complement
each
other
and
achieve
progress
PREDECISIONAL
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05
41
toward
meeting
the
NAAQS.

M.
What
are
the
requirements
for
OTRs
under
the
8­
hour
ozone
standard?

Section
184
continues
to
apply
for
purposes
of
the
8­

hour
standard;
therefore,
the
current
OTR
remains
in
place
and
the
section
184
control
requirements
continue
to
apply
for
purposes
of
the
8­
hour
standard.
If
a
new
OTR
is
established
for
purposes
of
the
8­
hour
standard
pursuant
to
section
176A,
that
area
would
also
be
subject
to
the
provisions
and
additional
control
requirements
of
section
184.

N.
Are
there
any
additional
requirements
related
to
enforcement
and
compliance?

We
are
not
setting
forth
any
additional
rule
related
to
compliance
and
enforcement.

O.
What
requirements
should
apply
to
emergency
episodes?

We
have
not
yet
proposed
any
rule
revision
related
to
emergency
episodes,
and
the
final
rule
below
does
not
contain
any
such
rule
revision.

P.
What
ambient
monitoring
requirements
will
apply
under
the
8­
hour
ozone
NAAQS?

No
monitoring
requirements
are
being
promulgated
as
part
of
this
rulemaking.
The
preamble
discusses
current
PREDECISIONAL
DRAFT
 
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draft
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05
42
relevant
requirements
and
anticipated
activities.

Q.
When
will
EPA
require
8­
hour
attainment
demonstration
SIP
submissions?

Modeled
attainment
demonstrations
 
where
required
 
must
be
submitted
within
3
years
after
the
effective
date
of
the
area's
nonattainment
designation.
A
subpart
1
area
that
desires
an
attainment
date
within
3
years
after
designation
would
have
to
provide
a
demonstration
within
18
months
after
designation.

R.
How
will
the
statutory
time
periods
in
the
Act
be
addressed
when
we
redesignate
areas
to
nonattainment
following
initial
designations
for
the
8­
hour
NAAQS?

For
any
area
that
is
initially
designated
attainment
or
unclassifiable
for
the
8­
hour
NAAQS
and
subsequently
redesignated
to
nonattainment
for
the
8­
hour
ozone
NAAQS,

the
attainment
date
and
dates
for
submittal
of
any
applicable
requirements
under
subpart
1
or
subpart
2
and
these
regulations
would
run
from
the
date
of
redesignation
to
nonattainment
of
the
8­
hour
NAAQS.

Summary
of
Section
V
EPA's
Final
Rule
for
New
Source
Review
In
today's
action,
we
are
finalizing
previously
proposed
changes
to
three
regulations
that
govern
major
NSR
permitting
of
major
stationary
sources
in
nonattainment
PREDECISIONAL
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05
43
areas­
40
CFR
51.165,
Appendix
S
of
40
CFR
part
51,
and
40
CFR
52.24.

The
regulations
at
40
CFR
51.165
contain
the
minimum
elements
that
a
State's
preconstruction
permitting
program
for
major
stationary
sources
in
nonattainment
areas
must
contain
in
order
for
EPA
to
approve
the
State's
program
into
the
SIP.
In
section
51.165,
we
are
making
revisions
to
incorporate
the
major
stationary
source
thresholds,

significant
emission
rates,
and
offset
ratios
pursuant
to
part
D
of
title
I
of
the
1990
Amendments
to
the
CAA
for
the
8­
hour
ozone
NAAQS,
the
carbon
monoxide
NAAQS,
and
the
PM10
NAAQS.
We
are
also
promulgating
final
changes
to
the
requirements
for
emission
reductions
achieved
from
shutdowns
or
curtailments
at
51.165(
a)(
3)(
ii)(
C).
We
are
not
currently
acting
on
any
other
proposed
changes
to
40
CFR
51.165.

Appendix
S
of
40
CFR
part
51
contains
the
preconstruction
permitting
program
that
applies
to
major
stationary
sources
in
nonattainment
areas
lacking
an
approved
part
D
NSR
program.
It
applies
during
the
interim
period
after
EPA
designates
an
area
as
nonattainment,
but
before
EPA
approves
a
SIP
to
implement
the
nonattainment
NSR
requirements
for
that
pollutant
(
SIP
development
period).
PREDECISIONAL
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44
We
are
making
the
same
changes
to
Appendix
S
that
we
are
making
to
section
51.165
to
implement
the
1990
Amendments.

In
addition,
we
are
finalizing
revisions
to
Section
VI
of
Appendix
S
to
qualify
applicability
of
this
section.
This
revision
is
an
outgrowth
of
the
proposed
revisions
to
Section
VI
in
the
8­
hour
NAAQS
implementation
proposal
(
68
FR
32802).
We
also
are
removing
an
outdated
exemption
for
sources
increasing
emissions
less
than
50
tons
per
year
(
tpy).

The
regulations
at
40
CFR
52.24
contain
restrictions
on
the
construction
or
modification
of
major
stationary
sources,
including
a
construction
ban
applicable
in
circumstances
enumerated
by
the
1977
Clean
Air
Act.
These
regulations
also
apply
if
the
Administrator
determines
pursuant
to
CAA
section
173(
a)(
4)
that
the
State
is
not
adequately
implementing
the
SIP
for
meeting
the
part
D
requirements.
Today's
final
rules
codify
requirements
of
the
1990
amendments
related
to
the
applicability
of
construction
bans.
The
final
rules
at
section
52.24
also
codify
that
section
51.165
applies
in
interpreting
the
terms
in
section
52.24.
The
regulations
at
40
CFR
52.24(
k)
retain
the
requirement
that
Appendix
S
governs
permits
to
construct
and
operate
applied
for
during
the
period
between
the
date
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45
of
designation
as
nonattainment
and
the
date
the
part
D
plan
for
NSR
is
approved,
but
is
updated
to
remove
the
reference
to
the
construction
ban.

In
addition
to
the
changes
to
the
nonattainment
NSR
regulations,
we
also
are
making
one
change
to
the
PSD
regulations
under
part
C
of
title
I
of
the
Act.
We
are
codifying
NOx
as
an
ozone
precursor
in
attainment
and
unclassifiable
areas.

Summary
of
Section
VI.
Other
Considerations
A.
How
will
EPA's
action
affect
funding
under
the
Congestion
Mitigation
and
Air
Quality
Improvement
(
CMAQ)

Program?

Depending
on
the
specific
characteristics
of
a
nonattainment
area,
implementation
of
the
8­
hour
ozone
standard
will
have
varying
effects
on
CMAQ
funding
eligibility.
Nonattainment
areas
designated
under
the
8­

hour
ozone
standard
are
eligible
for
CMAQ
funding.
However,

the
formula
for
determining
the
amount
of
funds
apportioned
to
the
States
only
takes
into
account
the
areas
that
are
classified
pursuant
to
CAA
sections
181,
186,
and
188.

Hence,
under
the
transportation
statute
CMAQ
funds
cannot
be
apportioned
to
the
States
on
the
basis
of
the
designations
for
the
8­
hour
ozone
standard
that
are
not
also
classified
PREDECISIONAL
DRAFT
 
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05
46
under
subpart
2.

B.
What
is
the
relationship
between
implementation
of
the
8­
hour
standard
and
the
CAA's
Title
V
permit
program?

The
interrelationship
between
implementation
of
the
8­

hour
ozone
standard
and
the
Title
V
permit
program
was
not
discussed
in
the
proposed
rule.
Various
questions
have
been
raised
about
the
interface
between
the
implementation
of
the
8­
hour
ozone
standard
and
the
title
V
operating
permits
program.
The
preamble
presents
several
questions
and
answers,
mainly
dealing
with
how
title
V
applicability
is
affected
by
the
new
8­
hr
ozone
standard
and
the
revocation
of
the
1­
hr
ozone
standard.

C.
What
action
is
EPA
taking
on
the
Overwhelming
Transport
Classification
for
subpart
1
areas?
This
section
discusses
the
petition
for
reconsideration
of
the
overwhelming
transport
classification
that
we
received
from
Earth
Justice,
guidance
on
overwhelming
transport,
and
the
applicable
requirements
for
subpart
1
areas
that
are
classified
as
overwhelming
transport.

IV.
Final
Rule
for
Phase
2
Elements
other
than
New
Source
Review
[
NOTE:
The
discussion
of
many
of
the
regulatory
elements
below
address
timing
of
required
actions,
such
as
submission
PREDECISIONAL
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05
47
dates
for
SIP
revisions.
The
discussion
is
primarily
directed
toward
8­
hour
ozone
nonattainment
areas
for
which
the
effective
date
of
the
designation
was
June
15,
2004.

However,
a
number
of
areas
may
have
later
effective
dates
for
their
designations,
such
as
early
action
compact
areas
and
areas
subsequently
redesignated
from
attainment
to
nonattainment
for
the
8­
hour
ozone
standard.
For
these
situations,
the
timing
will
run
from
the
effective
date
of
those
designations.
In
cases
in
this
preamble
where
we
have
used
June
15,
2005
as
a
substitute
for
the
"
effective
date,"

we
are
using
it
only
for
purposes
of
those
areas
with
an
effective
date
of
June
15,
2004.]

A.
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?
[
Section
VI.
D.
of
June
2,
2003
proposed
rule
(
68
FR
32825);
no
draft
or
final
regulatory
text.]

1.
Background
The
1990
Clean
Air
Act
Amendments
(
CAAA)
overhauled
the
Clean
Air
Act's
(
CAA)
requirements
for
ozone
nonattainment
areas
and,
in
doing
so,
specified
new
mandatory
measures
for
many
areas.
The
approach
embodied
in
subpart
2
was
to
classify
areas
according
to
the
severity
of
their
pollution.
PREDECISIONAL
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48
Areas
with
more
serious
ozone
pollution
were
given
a
higher
classification
that
did
two
things.
First,
the
successively
higher
classifications
provided
a
successively
longer
maximum
time
frame
for
attaining
the
ozone
NAAQS.
Second,

each
higher
classification
mandated
specific
additional
and/
or
more
stringent
obligations
than
the
classification
immediately
below.
Congressional
proponents
of
this
approach
argued
that
specifying
mandatory
measures
in
the
statute
was
necessary
because
States
and
EPA,
prior
to
1990,

had
failed
to
ensure
that
SIPs
achieved
steady
reasonable
progress
in
reducing
emissions
or
to
require
readily
available
measures
that
were
cost
effective
and
necessary
to
meet
the
standard.

For
this
rule,
we
examined
the
issue
of
mandatory
measures
from
both
a
legal
and
policy
standpoint.
Our
legal
view
is
guided
by
the
statutory
language
in
Part
D
of
title
I
of
the
CAA.
In
addition,
we
were
guided
by
the
Supreme
Court's
view
of
this
language.

We
have
consistently
interpreted
the
CAA
to
mean
that
once
an
area
is
classified
under
subpart
2,
the
subpart
2
requirements
apply.
While
certain
requirements
allow
for
some
flexibility
in
how
they
apply,
the
requirements
do
not
allow
for
broad
waivers.
For
example,
all
areas
classified
PREDECISIONAL
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49
as
serious
or
above
must
meet
the
requirement
for
an
enhanced
inspection
and
maintenance
(
I/
M)
program,
however,

there
is
some
flexibility
in
determining
what
type
of
I/
M
program
meets
the
requirement
for
an
enhanced
I/
M
program.

The
Court,
in
addressing
whether
the
classification
provisions
in
subpart
2
applied
for
purposes
of
the
8­
hour
ozone
NAAQS
found
that
they
did
and
stated
that
EPA's
implementation
scheme,
which
would
have
avoided
classifications
under
subpart
2,
was
unreasonable
because
it
would
effectively
nullify
the
subpart
2
provisions
that
Congress
created
with
the
intent
to
limit
State
and
EPA
discretion.
Whitman
v.
American
Trucking
Assoc.,
__
US
___.

XXX
NEED
CITATION
In
the
proposed
rule,
we
recognized
that
there
is
case
law
doctrine
that
might
allow
a
case­
by­
case
waiver
from
mandatory
requirements
when
sufficient
evidence
is
presented
that
application
of
a
specific
requirement
in
a
particular
area
would
cause
absurd
results.

2.
Final
Rule
We
continue
to
interpret
the
Act
to
mean
that
the
prescribed
requirements
for
each
classification
under
subpart
2
apply
to
areas
with
such
classification
for
the
8­

hour
NAAQS.
As
we
noted
in
the
preamble
to
the
proposed
PREDECISIONAL
DRAFT
 
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NOT
QUOTE,
CITE
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05
50
rule,
there
may
be
a
basis
for
waiving
a
prescribed
requirement
on
a
case­
by­
case
basis
where
imposition
of
the
requirement
would
create
an
absurd
result.
As
we
stated
in
the
proposed
rule,
we
believe
that
absurd
results
that
might
occur
from
application
of
mandatory
control
measures
would
happen
only
in
rare
instances,
if
at
all.
If
a
State
submits
a
demonstration
that
application
of
a
specific
requirement
in
a
specific
nonattainment
area
would
create
an
absurd
result,
we
will
consider
application
of
the
absurd
results
doctrine
at
that
time.

3.
Comment
and
Responses
Comment:
A
number
of
commenters
supported
the
approach
that
we
discussed
in
the
proposed
rule.
Other
commenters
agreed
with
the
overall
concept
that
we
proposed
but
felt
that
we
should
take
additional
factors
into
consideration
if
we
make
case­
by­
case
waivers
from
subpart
2
requirements.

Several
commenters
suggested
that
we
take
the
cost
of
controls
into
consideration
when
determining
if
there
were
an
absurd
result
while
others
suggested
that
we
look
at
relative
control
strategy
effectiveness,
e.
g.,
allowing
a
demonstration
that
NOx
reductions
are
more
effective
and
therefore
may
be
substituted
for
mandatory
VOC
emissions
reductions.
PREDECISIONAL
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Several
other
commenters
stated
that
we
should
more
broadly
allow
substitution
of
subpart
2
mandatory
measures.

One
commenter
felt
that
substitution
of
subpart
2
measures
should
be
allowed
as
long
as
the
substituted
measures
are
at
least
equivalent
to
the
mandatory
measures.
Another
commenter
stated
that
we
should
allow
areas
to
adopt
substitute
measures
in
lieu
of
subpart
2
measures
where
the
subpart
2
measures
would
not
be
as
effective
as
the
substitute
measures
in
reaching
attainment.
The
commenter
stated
that
we
have
been
overly
limited
in
our
characterization
of
when
subpart
2
measures
might
be
waived
to
avoid
an
absurd
result.
The
commenter
believed
that
we
should
create
a
categorical
exemption
as
an
exercise
of
agency
power
to
allow
areas
to
substitute
NOx
for
VOC
measures
or
more
effective
control
measures
for
less
effective
control
measures
when
doing
so
would
expedite
attainment.
Another
commenter
urged
us
to
limit
the
strict
application
of
subpart
2
measures
because
the
imposition
of
such
measures
creates
economic
disincentives
for
companies
to
locate
and
expand
in
nonattainment
areas.
A
number
of
commenters
stated
that
they
do
not
support
the
vehicle
inspection
and
maintenance
(
I/
M)
or
stage
II
vapor
recovery
programs
and
recommended
that
we
provide
States
with
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NOT
QUOTE,
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draft
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05
52
flexibility
in
meeting
these
requirements.

Response:
Many
of
the
commenters'
suggestions
go
beyond
the
application
of
an
absurd
results
doctrine
and
instead
suggest
broad
waiver
of
subpart
2
requirements
based
on
a
determination
that
an
alternative
or
substitute
is
more
effective.
We
do
not
believe
that
we
have
the
authority
to
broadly
waive
measures
mandated
by
Congress.
As
indicated
in
the
legislative
history
and
noted
by
the
Supreme
Court,

Congress
intended
to
cabin
States'
discretion
when
it
mandated
the
specific
controls
under
subpart
2.
See
e.
g.,

Whitman,
__
US
___
[
xxx
NEED
CITATION]
("
Whereas
subpart
1
gives
EPA
considerable
discretion
to
shape
nonattainment
programs,
subpart
2
prescribes
large
parts
of
them
by
law"

and
"
EPA
may
not
construe
the
statute
in
a
way
that
completely
nullifies
textually
applicable
provisions
meant
to
limit
discretion").
xxx
ADD
CITE]
We
do
not
believe
that
we
or
the
States
can
take
action
to
override
this
Congressional
intent.

However,
as
stated
in
our
proposed
rule,
we
believe
that
case
law
may
provide
EPA
with
limited
flexibility
to
waive
federally
mandated
requirements
on
a
case­
by­
case
basis
where
application
of
those
requirements
would
produce
an
absurd
result.
We
do
not
need
to
conclude
here
what
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
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OR
DISTRIBUTE
draft
2/
6/
05
53
precise
circumstances
would
create
an
absurd
result.

Rather,
that
decision
would
need
to
be
made
on
a
case­

bycase
basis
in
the
context
of
a
specific
request.
In
general,
we
note
that
to
demonstrate
an
absurd
result,
a
State
would
need
to
demonstrate
that
application
of
the
requirement
would
result
in
more
harm
than
benefit.
Because
the
programs
mandated
under
subpart
2
are
generally
effective
in
reducing
emissions
of
the
two
ozone
precursors
 
NOx
and
VOC
 
and
because
reductions
of
those
precursors
generally
lead
to
improved
air
quality,
we
believe
that
such
a
demonstration
could
be
made,
if
at
all,
only
in
rare
instances.

Comment:
A
few
commenters
disagreed
with
the
approach
in
our
proposed
rule.
One
commenter
stated
that
we
do
not
have
the
statutory
authority
to
create
new
waivers
to
subpart
2
requirements.
Another
commenter
stated
that
the
CAA
does
not
allow
case­
by­
case
waivers
to
avoid
"
absurd"

results.
The
commenter
further
stated
that
doing
so
would
in
effect
require
us
to
rewrite
the
statute
by
regulation.

Response:
As
stated
above,
we
agree
that
we
do
not
have
broad
authority
to
waive
subpart
2
requirements
and
that
the
CAA
itself
does
not
expressly
create
authority
to
waive
such
requirements.
However,
the
"
absurd
results"
line
of
cases
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
54
provides
that
where
application
of
a
statute
as
written
would
create
a
result
counter
to
what
Congress
intended,
an
Agency
has
limited
authority
to
construe
that
provision
in
a
manner
than
would
effectuate
Congress'
intent.
[
XXX
ADD
ABSURD
RESULTS
CITES]

B.
How
will
we
address
long­
range
transport
of
ground­
level
ozone
and
its
precursors
when
implementing
the
8­
hour
ozone
standard?
[
Section
VI.
F.
of
June
2,
2003
proposed
rule
(
68
FR
32827);
no
draft
or
final
regulatory
text.]

1.
Background
Interstate
transport
can
make
it
difficult
or
impossible
for
some
States
to
meet
their
attainment
deadlines
solely
by
regulating
sources
within
their
own
boundaries.
Section
110(
a)(
2)(
D)
of
the
Act
provides
an
important
tool
for
addressing
the
problem
of
transport.
It
provides
that
a
State
must
include
adequate
provisions
in
its
SIP
to
prohibit
sources
within
the
State
from
emitting
air
pollutants
in
amounts
that
contribute
significantly
to
nonattainment,
or
interfere
with
maintenance,
in
one
or
more
downwind
States.
Section
110(
k)(
5)
of
the
Act
authorizes
EPA
to
find
that
a
SIP
is
substantially
inadequate
to
meet
any
CAA
requirement,
including
the
requirements
of
section
110(
a)(
2)(
D)
of
the
Act.
If
we
make
such
a
finding,
we
must
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require
the
State
to
submit,
within
a
specified
period,
a
SIP
revision
to
correct
the
inadequacy.
The
CAA
further
addresses
interstate
transport
of
pollution
in
section
126,

which
authorizes
any
State
to
petition
EPA
for
a
finding
designed
to
protect
the
State
from
transport
of
emissions
from
significant
upwind
sources
of
air
pollutants
from
other
States.

In
1998,
we
issued
the
NOx
SIP
Call,
which
found
the
SIPs
for
certain
States
in
the
eastern
U.
S.
to
be
substantially
inadequate
to
address
emissions
transported
to
downwind
States
and
required
those
States
to
select
and
adopt
control
measures
to
meet
statewide
NOx
emissions
budgets
(
63
FR
57356,
October
27,
1998.)
State
programs
to
implement
the
rule
have
focused
on
reducing
emissions
from
electric
power
generators
and
large
industrial
emitters.
In
the
NOx
SIP
Call,
we
made
determinations
of
whether
emissions
from
sources
in
upwind
States
are
significantly
contributing
to
downwind
nonattainment
problems
under
both
the
1­
hour
and/
or
8­
hour
ozone
standards.
In
the
final
SIP
Call
rule,
we
determined
that
the
same
level
of
reductions
was
needed
to
address
transport
for
both
the
1­
hour
and
8­

hour
standards.

The
compliance
date
for
achieving
the
required
NOx
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reductions
under
the
NOx
SIP
Call
was
May
31,
2004.
All
of
the
affected
States
submitted
approvable
SIPs
in
response
to
the
NOx
SIP
Call
and
are
implementing
their
NOx
control
programs.
The
NOx
SIP
Call
is
ensuring
substantial
emissions
reductions
from
sources
in
upwind
States,
and
these
reductions
will
significantly
improve
the
boundary
conditions
that
downwind
States
must
consider
as
they
work
to
identify
how
areas
within
the
State
will
attain
and
maintain
the
NAAQS.
By
reducing
the
level
of
transported
emissions
at
the
boundaries
of
the
States,
there
will
be
less
burden
to
achieve
additional
emission
reductions
from
areas
within
the
State.
In
the
proposed
rule,
we
said
that
unlike
in
the
past,
States
affected
by
transport
can
develop
their
local
ozone
implementation
plans
with
the
knowledge
that
the
issue
of
interstate
transport
has
already
been
addressed
"
up
front."
However,
in
the
8­
hour
implementation
proposal,
we
also
indicated
that
we
intended
to
investigate
the
extent,
severity,
and
sources
of
interstate
ozone
transport
that
will
exist
after
implementation
of
the
NOx
SIP
Call.

2.
Current
Approach.

Since
the
8­
hour
implementation
proposal,
we
have
conducted
a
reassessment
of
interstate
transport
for
the
8­
PREDECISIONAL
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draft
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05
57
hour
standard.
Based
on
these
analyses,
on
January
30,
2004
(
69
FR
4566),
we
proposed
the
"
Rule
to
Reduce
Interstate
Transport
of
Fine
Particulate
Matter
and
Ozone,"
now
known
as
the
proposed
Clean
Air
Interstate
Rule
(
CAIR).
This
action
proposed
statewide
NOx
budgets
for
25
States
and
the
District
of
Columbia.
These
budgets
are
based
on
a
proposed
determination
that
emissions
from
these
26
jurisdictions
are
significantly
contributing
to
8­
hour
ozone
(
and
fine
particulate
matter)
problems
in
downwind
States.
On
June
10,
2004
(
69
FR
32684),
we
issued
a
supplemental
proposal
for
the
CAIR,
which
included
a
proposed
model
cap­
and­
trade
program
that
States
could
use
to
meet
the
NOx
budgets.

3.
Comments
and
Responses
Comment:
Several
commenters
thought
the
June
2,
2003,

8­
hour
implementation
proposal
failed
to
adequately
address
transport
and
disagreed
with
our
statement
that
8­
hour
transport
has
been
addressed
up
front
by
the
NOx
SIP
Call.

Some
added
that
this
puts
northeastern
States
located
in
the
Ozone
Transport
Region
(
OTR)
in
a
situation
where
their
citizens
and
businesses
are
bearing
a
disproportionate
burden
of
health
and
economic
impacts
compared
to
upwind
States
that
have
fewer
control
requirements
than
OTR
States.

Some
OTR
State
commenters
said
that
the
rule
should
address
PREDECISIONAL
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05
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this
inequity.
One
said
we
cannot
assume
that
transport
has
been
addressed
until
after
the
NOx
SIP
Call
is
implemented
and
has
been
evaluated.

Response:
The
8­
hour
implementation
rule
is
not
intended
as
a
rule
to
address
interstate
transport
of
pollution
and
to
achieve
emission
reductions
from
upwind
sources.
Rather,
its
purpose
is
to
explain
how
the
provisions
of
subparts
1
and
2
of
part
D
of
title
I
of
the
CAA
apply
for
purposes
of
the
8­
hour
NAAQS.
We
continue
to
believe
that
the
NOx
SIP
call
provides
substantial
benefit
for
areas
that
are
affected
by
the
significant
transport
of
pollution
from
other
States
and
will
ease
the
planning
burden
for
those
areas.
Under
the
CAIR,
we
have
proposed
to
find
that
there
is
a
need
for
NOx
reductions
beyond
those
required
by
the
NOx
SIP
Call
to
further
reduce
the
interstate
transport
of
ozone
and
the
precursor
NOx
for
purposes
of
addressing
significant
contribution
for
the
8­

hour
ozone
standard.

Comment:
Two
commenters
recommended
a
regional
approach
among
States
to
address
transport.
One
commenter
thought
that
Clear
Skies
is
the
best
way
to
address
transport,
but
absent
that,
would
support
a
regional
approach.
Some
commenters
thought
the
8­
hour
implementation
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proposal
ignored
the
issue
that
ozone
is
a
regional
problem
that
can
only
be
solved
through
regional
planning.
These
commenters
added
that
instead
of
incentives
for
regional
planning
there
were
disincentives.
Another
commenter
thought
that
EPA
unrealistically
expects
States
to
be
able
to
resolve
all
potential
conflicts
between
the
States
by
working
together
in
a
collaborative
process
to
identify
and
adopt
appropriate
controls
that
provide
for
attainment.
The
commenter
suggested
that
EPA
oversight
may
be
necessary
in
these
situations.
One
commenter
thought
the
development
of
multiple
ozone
transport
regions
for
regional
planning
and
coordination
may
be
highly
desirable
to
bring
States
with
a
common
problem
together
to
coordinate
efforts
with
the
strength
of
several
States
rather
than
to
go­
it
alone.

Another
suggested
some
criteria
for
EPA
to
use
if
we
were
to
choose
to
establish
OTRs.

Response:
We
believe
that
addressing
interstate
transport
requires
regional
cooperation.
The
NOx
SIP
Call
is
providing
significant
benefit
to
areas
affected
by
transported
pollution.
In
addition,
we
have
proposed
to
require
additional
NOx
emissions
reductions
from
a
number
of
States
covered
by
the
NOx
SIP
call
and
to
required
several
other
States
to
reduce
NOx
emissions.
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05
60
We
note
that
groups
of
States
have
worked
effectively
together
in
the
past
to
address
regional
ozone
problems.

For
example
the
Lake
Michigan
Air
Directors
Consortium
(
LADCO)
was
established
in
1990
by
the
States
of
Illinois,

Indiana,
Michigan,
and
Wisconsin.
The
main
purpose
of
LADCO
is
to
provide
technical
assessments
for
and
assistance
to
its
member
States
on
problems
of
ozone
air
quality
and
to
provide
a
forum
for
its
member
States
to
discuss
air
quality
issues.
We
will
continue
to
encourage
these
multi­
State
efforts
to
assess
and
address
ozone
nonattainment
and
will
work
with
these
States
as
needed
to
provide
support
and
ensure
progress.
We
believe
these
federal
rules
in
conjunction
with
voluntary
cooperation
between
States
will
be
effective
in
addressing
the
8­
hour
ozone
problem.

At
this
time,
we
do
not
anticipate
formalizing
any
additional
transport
regions.
Thus,
it
would
not
only
be
premature
but
would
also
be
an
inefficient
use
of
resources
to
develop
criteria
that
we
would
apply
in
establishing
additional
transport
regions.

Comment:
Many
commenters
supported
our
intention
to
investigate
the
extent,
severity,
and
sources
of
interstate
transport
that
will
exist
after
the
NOx
SIP
Call
is
implemented
in
2004.
Two
commenters
said
this
investigation
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should
be
preceded
by
rigorous,
peer­
reviewed
modeling
and
observation
analyses
in
an
open
public
process.
One
commenter
thought
we
should
conduct
modeling
similar
to
the
NOx
SIP
Call
modeling
and
assign
the
transport
responsibility
to
States.
Another
recommended
that
the
States
be
involved
from
the
beginning.
Several
urged
us
to
issue
a
transport
rule
as
soon
as
possible.

Several
State
commenters
claimed
that
the
air
coming
into
their
States
is
often
at
or
above
the
level
of
the
8­

hour
standard
and
thus
it
would
not
be
possible
to
solve
nonattainment
within
their
boundaries
without
reducing
the
amount
of
ozone
and
its
precursors
being
transported
into
the
State.
Others
said
our
preliminary
modeling
indicates
that
ozone
concentrations
in
air
being
transported
to
the
Northeast
will
be
at
levels
near
or
above
the
8­
hour
standard,
even
after
the
implementation
of
the
NOx
SIP
Call.

One
commenter
said
upwind
States
are
not
reducing
emissions
sufficiently
to
ensure
a
downwind
State
can
meet
its
legal
obligations.

Several
commenters
thought
upwind
areas
should
be
held
accountable
for
their
impacts
by
implementing
controls
similar
to
those
required
in
the
downwind
areas
they
impact.

One
commenter
believes
that
the
same
type
of
control
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measures
already
in
place
throughout
the
OTR
should
be
applied
in
upwind
areas
affecting
the
air
quality
in
the
OTR.
One
suggested
that
as
a
starting
point
upwind
areas
should
be
required
to
implement
requirements
such
as
RACT,

I/
M,
and
NSR.
Several
commenters
stated
that
all
types
of
industrial
facilities
should
be
controlled
to
prevent
transport.
Another
urged
us
to
do
our
part
to
adopt
national
controls
on
fuels
and
mobile
sources.
One
commenter
said
that
we
have
not
demonstrated
that
the
existing
and
anticipated
control
programs
in
upwind
States
will
solve
the
transport
problem
for
northeastern
States
despite
our
assertion
that
interstate
transport
has
already
been
addressed.

Response:
In
certain
cases,
for
the
States
to
be
successful
in
developing
local
plans
demonstrating
attainment
of
the
8­
hour
standard,
we
agree
that
upwind
sources
of
emissions
must
be
effectively
and
efficiently
controlled.
These
emission
reductions
may
be
achieved
through
federal
rules
(
such
as
those
regulating
engines
and
vehicles)
or
through
rules
requiring
upwind
States
to
address
the
interstate
transport
of
pollutants
through
SIP
revisions.
However,
in
any
rule
issued
by
EPA
under
sections
110(
a)(
2)(
D)
and
(
k)(
3),
EPA
cannot
mandate
the
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specific
controls
the
State
must
adopt
 
such
as
RACT,
I/
M
and
NSR
 
as
suggested
by
the
commenters.
We
may
identify
the
level
of
contribution
that
needs
to
be
addressed,
but
the
State
has
the
responsibility
to
identify
the
controls
to
achieve
those
reductions.

For
the
proposed
CAIR,
we
conducted
new
analyses
of
the
degree
of
transport
that
will
remain
after
implementation
of
the
NOx
SIP
Call.
In
assessing
whether
emissions
from
upwind
States
significantly
contribute
to
8­
hour
ozone
nonattainment
in
downwind
States,
we
followed
the
general
approach
used
in
the
NOx
SIP
Call.
However,
we
used
an
updated
model
and
updated
inputs
that
reflect
current
requirements
(
including
the
NOx
SIP
Call
itself).
We
proposed
to
conclude
that
certain
States
and
the
District
of
Columbia
are
significantly
contributing
to
8­
hour
ozone
problems
in
downwind
States
and
proposed
statewide
NOx
budgets
for
these
jurisdictions.
In
the
rulemaking
process,

we
have
made
all
of
the
transport
analyses
available
for
public
comment
and
review.

Comment:
Two
commenters
thought
that
we
should
not
evaluate
what
actions
are
needed
to
address
transport
beyond
the
existing
NOx
SIP
Call
until
after
States
have
had
a
chance
to
address
the
new
standard
with
SIPs.
The
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64
commenters
pointed
out
that
the
SIP
Call
reductions
will
just
be
implemented
in
2004.
One
pointed
out
that
the
NOx
SIP
Call
was
designed
to
address
both
1­
hour
and
8­
hour
transport.
Several
commenters
thought
that
because
the
existing
NOx
SIP
Call
eliminates
significant
contribution
from
other
States,
under
that
rule
there
is
no
basis
for
any
further
requirements
to
reduce
NOx
for
the
purpose
of
addressing
long
range
transport
issues.
Another
stated
that
any
changes
to
the
NOx
SIP
Call
should
be
limited
to
expanding
the
geographic
coverage
of
the
requirements.
The
commenter
said
we
should
not,
and
have
not,
justified
modifying
the
NOx
SIP
call
for
States
that
have
fully
controlled
under
the
NOx
SIP
Call.

Response:
As
discussed
above,
we
are
addressing
the
issue
of
transport
in
CAIR,
and
the
sufficiency
of
the
analysis
in
that
rule
or
the
legal
authority
of
such
action
is
not
an
issue
for
this
rulemaking.
We
agree
that
States
should
work
together
in
the
SIP
development
process
to
ensure
localized
transport
is
addressed.
States
that
share
an
interstate
nonattainment
area
are
expected
to
work
together
in
developing
the
nonattainment
SIP
for
that
area
and
in
reducing
emissions
that
contribute
to
local­
scale
interstate
transport
problems.
We
would
also
encourage
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collaborative
efforts
even
in
cases
where
there
is
not
a
multi­
State
nonattainment
area
but
where
significant
emissions
sources
in
one
State
might
affect
air
quality
in
a
nonattainment
area
in
an
adjacent
State.

Comment:
One
commenter
said
that
in
order
for
areas
to
attain
the
8­
hour
standard
by
the
applicable
attainment
date,
a
regional
strategy
with
deeper
and
quicker
(
i.
e.,
by
the
end
of
this
decade)
reductions
than
has
been
offered
to
date
is
needed.
The
commenter
urged
us
to
reconsider
the
options
submitted
in
April
2002,
through
the
Ozone
Transport
Commission,
regarding
transport
and
ozone
implementation.

Another
commenter
agreed
that
significant
regional
or
national
reductions
that
coincide
with
attainment
dates
are
essential.
The
commenter
pointed
out
that
Clear
Skies
and
Tier
IV
nonroad
engine
standards
are
not
yet
in
place
and
in
any
event
would
not
bring
timely
relief
from
transport.
One
State
commenter
urged
us
to
quickly
promulgate
a
transport
rule
to
address
8­
hour
ozone
problems
in
a
time
frame
to
help
areas
attain
the
standards.
Several
commenters
thought
that
any
results
from
EPA's
investigation
of
interstate
transport
that
will
exist
after
the
NOx
SIP
Call
will
likely
come
too
late
to
help
downwind
8­
hour
areas
meet
their
attainment
dates.
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Response:
As
noted
above,
the
issues
raised
by
these
commenters
are
being
considered
separately
in
the
CAIR
and
are
not
part
of
this
rulemaking.
In
both
the
January
2004
proposal
and
the
June
2004
supplemental
proposal
for
the
CAIR,
we
solicited
comment
on
the
proposed
compliance
deadlines
for
Phase
I
(
2010)
and
Phase
II
(
2015)
reductions.

In
that
rulemaking,
we
are
evaluating
the
balance
between
the
need
for
near­
term
reductions
to
attain
the
8­
hour
ozone
and
PM2.5
standards,
the
ability
of
States
to
develop
firm
plans
for
achieving
the
required
reductions,
and
the
ability
of
affected
emissions
sources
to
install
pollution
controls
in
a
fashion
that
is
least
disruptive
to
the
economy.
We
are
currently
reviewing
the
comments
we
have
received
and
will
make
final
decisions
on
the
timing
for
compliance
with
the
CAIR
after
we
have
carefully
considered
all
relevant
policy
issues.
xxx
may
need
to
be
revised
and
updated
based
on
what
we
say
in
the
CAIR]

Comment:
Two
commenters
expressed
concern
that
if
upwind
emissions
are
not
controlled,
downwind
local
areas
will
be
driven
to
adopt
more
costly
(
and
less
cost
effective)
measures.
One
added
that
this
would
exacerbate
the
existing
inequity
between
upwind
sources
and
the
OTR
States.
Another
thought
that
areas
affected
by
transport
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should
not
be
required
to
achieve
all
reductions
from
local
controls
even
if
local
control
would
achieve
attainment,

since
local
measures
may
be
extremely
expensive
when
compared
either
to
control
measures
that
could
be
implemented
in
upwind
areas
or
compared
to
regional
measures.
Two
commenters
stated
that
the
cost
and
benefit
of
controls
to
address
transported
emissions
should
be
carefully
evaluated
and
compared
to
the
cost
and
benefits
of
downwind
local
control
measures.

Response:
We
agree
that
upwind
States
have
the
responsibility
to
control
emissions
that
are
significantly
contributing
to
downwind
nonattainment
problems.
Although
numerous
areas
will
attain
the
8­
hour
ozone
standard
in
the
near
term
with
existing
controls,
we
believe
that
other
areas
will
need
further
emissions
reductions
(
in
some
cases,

large
reductions)
to
attain
the
8­
hour
standard.
Many
of
these
areas
have
already
adopted
significant
local
control
measures
to
reduce
1­
hour
ozone
levels.
As
discussed
in
the
proposed
CAIR,
we
conducted
an
analysis
to
evaluate
the
effect
of
local
measures
on
8­
hour
ozone
attainment.
In
this
analysis,
hypothetical
total
NOx
and
VOC
emissions
reductions
of
25
percent
were
applied
in
all
projected
nonattainment
areas
east
of
the
continental
divide
in
2010.
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Despite
these
substantial
reductions,
approximately
eight
areas
were
projected
to
have
ozone
levels
exceeding
the
8­

hour
standard
in
2010.
We
believe
that
this
hypothetical
local
control
scenario
is
an
indication
that
attaining
the
8­
hour
standard
will
entail
substantial
cost
in
a
number
of
areas,
and
that
further
regional
reductions
are
warranted.

The
NOx
reductions
proposed
under
the
CAIR
would
greatly
assist
the
downwind
8­
hour
ozone
nonattainment
areas
in
achieving
the
8­
hour
NAAQS.
Moreover,
as
we
stated
in
the
proposed
CAIR,
addressing
upwind
emissions
would
help
ensure
that
attainment
would
be
achieved
in
a
more
equitable,

costeffective
manner
than
if
each
nonattainment
area
attempted
to
achieve
attainment
by
implementing
local
emissions
reductions
without
the
benefit
of
these
upwind
emission
reductions.
[
xxx
NEED
TO
CONTINUE
TO
CONSIDER
THIS
RESPONSE
IN
LIGHT
OF
HOW
WE
ULTIMATELY
ADDRESS
THE
NPRA
&
API
PETITIONS
FOR
RECONSIDERATION.
MAYBE
MOVE
THIS
COMMENT/
RESPONSE
TO
RTC
DOC?]

Comment:
Three
commenters
thought
the
NOx
SIP
Call
was
not
designed
to
address
the
8­
hour
standard.
One
said
that
the
NOx
SIP
Call
was
based
largely
on
the
work
of
the
Ozone
Transport
Assessment
Group
(
OTAG),
which
was
established
to
address
transport
under
the
1­
hour
standard.
Two
stated
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that
even
with
the
NOx
SIP
Call's
significant
emission
reductions,
our
preliminary
modeling
indicates
that
air
being
transported
to
the
Northeast
will
be
at
levels
above
the
8­
hour
health
standard.

Response:
Although
the
NOx
SIP
Call
relies
in
part
on
the
OTAG
analyses,
we
conducted
additional
analyses
of
interstate
transport
with
respect
to
both
the
1­
hour
and
8­

hour
standards
and
promulgated
the
NOx
SIP
Call
to
address
transport
for
both
standards
(
see
62
FR
60318;
November
7,

1997
and
63
FR
57356;
October
27,
1998).
Several
years
have
passed
since
promulgation
of
the
NOx
SIP
Call
and
updated
data
are
available.
Therefore,
we
are
reassessing
the
degree
to
which
ozone
transport
will
remain
a
problem
under
the
8­
hour
NAAQS
after
full
implementation
of
the
NOx
SIP
Call.
Based
on
new
analyses,
we
proposed
in
CAIR
to
conclude
that
additional
reductions
are
needed
to
address
the
significant
transport
of
emissions
and
to
ensure
progress
toward
attainment
in
downwind
areas
affected
by
those
transported
emissions.
Therefore,
we
proposed
the
CAIR,
which
would
require
additional
NOx
emissions
reductions
requirements
for
25
States
and
the
District
of
Columbia
to
address
the
interstate
transport
problem.
We
are
continuing
to
evaluate
the
issue
of
transport
and
plan
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to
take
final
action
on
the
CAIR
no
later
than
xxx
[
date??].

Comment:
Some
commenters
stated
that
we
should
not
rely
on
the
proposed
Clear
Skies
legislation
to
reduce
emissions
transport
because
there
is
no
guarantee
that
the
legislation
will
be
enacted.
Several
State
commenters
added
that
Clear
Skies
would
not
provide
adequate
or
timely
emissions
reductions.
Another
commenter
suggested
that
we
work
with
Congress
to
enact
legislation
to
allow
for
the
development
and
use
of
a
transport
argument
in
attainment
demonstrations.

Response:
While
we
still
hope
that
Congress
will
adopt
the
Administration's
Clear
Skies
multi­
pollutant
legislation,
we
acknowledge
that
the
outcome
of
that
process
is
uncertain.
Therefore,
relying
on
existing
regulatory
authorities,
we
proposed
the
CAIR,
which
would
require
upwind
States
to
address
any
transported
NOx
emissions
reductions
as
expeditiously
as
possible.

Comment:
One
commenter
proposed
that
rather
than
addressing
transport
through
national
measures,
we
could
include
transport
as
one
of
the
criteria
for
determining
the
adequacy
of
a
SIP.
This
commenter
supported
the
multi­
State
collaborative
effort
mentioned
in
the
proposed
rule,
so
that
areas
work
together
to
address
transport
as
their
SIPs
are
PREDECISIONAL
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being
developed.
The
commenter
asserted
that
our
proposed
early,
top­
down
approach
could
significantly
hinder
SIP
planning
for
local
areas
considering
the
complex
chemistry
of
ozone
and
PM2.5
formation.

Response:
We
believe
that
the
Act
does
allow
the
States
to
work
together
in
a
collaborative
fashion
to
assess
regional
or
sub­
national
transport.
The
EPA
worked
with
a
State­
led
effort
in
the
mid
to
late
1990'
s
(
the
OTAG
process)
to
perform
such
an
assessment,
which
documented
the
magnitude
and
extent
of
long­
range
transport
of
ozone
and
its
precursors.
At
that
time,
EPA
concluded
that
without
some
certainty
of
what
levels
of
emission
controls
would
be
required
in
the
larger
region,
it
was
impossible
for
States
to
assume
realistic
amounts
of
ozone
and
precursor
concentrations
being
transported
into
the
modeling
domain
of
the
nonattainment
area
for
which
they
were
required
to
develop
their
attainment
demonstrations.
Therefore,
EPA
issued
the
NOx
SIP
call
that
required
affected
States
to
cap
NOx
emissions.
In
this
way,
eastern
US
States
could
then
have
a
fair
degree
of
certainty
regarding
the
amount
of
transport
to
be
assumed
in
their
1­
hour
ozone
attainment
demonstrations
for
individual
nonattainment
areas.
Based
on
this
experience,
we
believe
it
would
likely
take
States
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
3This
section
of
the
proposal
also
addressed
multi­
State
nonattainment
areas.
The
discussion
of
multi­
State
nonattainment
areas
is
now
covered
under
the
discussion
below
on
attainment
demonstrations
and
modeling.

72
working
together
in
a
collaborative
fashion
to
agree
on
a
regional
control
strategy
much
more
time
than
the
Act
provides
for
States
to
develop
attainment
demonstrations.

Therefore,
we
believe
the
commenter
is
incorrect
that
the
"
top­
down"
approach
would
significantly
hinder
SIP
planning
for
the
individual,
and
on
the
contrary,
if
done
expeditiously,
would
provide
the
certainty
needed
to
complete
the
attainment
demonstrations
in
a
timely
manner.

C.
How
will
we
address
transport
of
ground­
level
ozone
and
its
precursors
for
rural
nonattainment
areas,
areas
affected
by
intrastate
transport,
and
areas
affected
by
international
transport?
[
Section
VI.
G.
of
June
2,
2003
proposed
rule
(
68
FR
32828);
no
draft
or
final
regulatory
text.]
3
1.
Rural
transport
nonattainment
areas
a.
Background
In
the
June
2,
2003
proposal,
we
noted
that
section
182(
h)
of
the
CAA
(
under
subpart
2)
recognizes
that
the
ozone
problem
in
a
rural
transport
area
is
almost
entirely
attributable
to
emissions
from
upwind
areas.
This
section
provides
that
the
only
requirements
applicable
to
an
area
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
4Based
on
current
information,
we
do
not
believe
there
are
currently
any
8­
hour
nonattainment
areas
covered
under
subpart
2
that
are
"
rural"
and
therefore
eligible
for
consideration
for
coverage
under
section
182(
h).

73
classified
under
subpart
2
that
we
determine
is
a
rural
transport
area
are
the
minimal
requirements
specified
for
marginal
areas,
i.
e.,
those
areas
expected
to
attain
within
3
years
of
designation.
The
timing
for
attainment
for
these
areas
will
depend
on
the
schedule
for
adoption
and
implementation
of
control
measures
in
the
upwind
areas.
We
did
not
propose
any
revision
to
current
policy
and
practices
related
to
the
rural
transport
area
provisions
under
section
182(
h).

b.
Summary
of
final
rule
The
final
rule
does
not
contain
any
revisions
to
current
policy
on
rural
transport
areas
under
section
182(
h).
4
c.
Comments
and
Responses
Comment:
Several
commenters
favored
the
proposed
approach
of
not
revising
our
current
policies
with
regard
to
subpart
2
areas
that
meet
the
criteria
for
being
a
rural
transport
area
under
section
182(
h).

Response:
We
agree
with
these
comments.

Comment:
Several
commenters
urged
us
to
provide
more
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
74
flexibility
such
as
extending
the
provision
to
other
areas
whose
problems
are
caused
by
transport
but
that
do
not
qualify
as
rural
under
section
182(
h).

Response:
These
commenters
did
not
suggest
any
legal
mechanism
for
granting
flexibility
for
areas
that
do
not
qualify
as
rural
under
section
182(
h).
We
have
not
found
any
such
legal
mechanism
and
therefore
the
final
rule
does
not
provide
additional
flexibility
beyond
that
allowed
under
section
182(
h).

2.
INTRASTATE
TRANSPORT
a.
Background
In
the
proposed
rule,
we
noted
that
a
number
of
State
air
agency
representatives
had
voiced
concern
about
intrastate
transport
of
ozone
and
precursor
emissions
and
asked
EPA
to
address
this
concern.
We
indicated
that
the
CAA
requires
individual
States,
as
an
initial
matter,
to
deal
with
intrastate
transport.
We
also
pointed
out
that
a
State
could
recommend
designation
of
nonattainment
areas
that
are
large
enough
to
encompass
upwind
and
downwind
areas
of
the
State
and
require
that
the
individual
jurisdictions
work
together
on
an
attainment
plan
that
accounts
for
transport
and
results
in
attainment
by
the
attainment
date
for
the
entire
nonattainment
area.
We
also
solicited
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
75
comments
on
other
ways
of
addressing
intrastate
transport
within
the
context
of
the
CAA
provisions.

b.
Summary
of
Final
Rule
The
final
rule
does
not
contain
any
additional
provisions
for
addressing
intrastate
transport
for
the
reasons
stated
in
the
proposal.
However,
as
indicated
in
the
Phase
1
rule
published
on
April
30,
2004,
for
subpart
1
areas,
States
and
EPA
could
consider
intrastate
transport
in
determining
the
attainment
date
for
an
area.
(
Intrastate
transport
also
could
be
considered
in
determining
the
attainment
date
that
is
as
expeditious
as
practicable
for
subpart
2
areas,
but
if
that
date
were
later
than
allowed
for
the
area's
classification,
the
state
would
need
to
request
bump­
up
of
the
area
to
a
higher
classification
for
that
date
to
be
approvable.)

c.
Comments
and
Responses
Comment:
Two
commenters
recommended
that
States
have
regulatory
authority
to
require
controls
as
necessary
regarding
the
problem
of
intrastate
transport.
They
asserted
that
nonattainment
areas
within
a
State
should
work
together
to
address
regional
transport
within
the
State.

Response:
As
provided
in
the
proposed
rule
(
68
FR
32829)
we
agree
with
the
commenters
that
States
have
the
obligation
PREDECISIONAL
DRAFT
 
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CITE
OR
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draft
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6/
05
76
and
authority
to
address
the
transport
of
pollution
from
one
area
of
the
State
to
a
different
area.

Comment:
Several
comments
recommended
an
intrastate
transport
classification.

Response:
Our
response
to
those
comments
is
in
the
response
to
comment
document
for
the
Phase
1
notice
of
April
30,

2004.
Docket
document
OAR­
2003­
0079­
0717;
p.
68.)

3.
How
will
EPA
address
transport
of
ground­
level
ozone
and
its
precursors
for
[...]
international
transport?

a.
Background
As
discussed
in
the
proposal,
international
transboundary
transport
of
ozone
and
ozone
precursors
can
contribute
to
exceedances
of
the
NAAQS.
It
is
possible
that
the
international
transport
of
air
pollutants
may
affect
the
ability
of
some
areas
to
attain
and
maintain
the
8­
hour
ozone
NAAQS.
Section
179B
of
the
CAA
(
International
Border
Areas),
applies
to
nonattainment
areas
that
are
affected
by
emissions
emanating
from
outside
the
United
States
(
U.
S.).

This
provision
requires
EPA
to
approve
a
SIP
for
an
ozone
nonattainment
area
if
it
meets
all
of
the
requirements
applicable
under
the
CAA,
other
than
a
requirement
that
the
area
demonstrate
attainment
and
maintenance
of
the
ozone
NAAQS
by
the
applicable
attainment
date,
and
the
affected
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
77
State
establishes
to
EPA's
satisfaction
that
the
SIP
would
be
adequate
to
attain
and
maintain
the
ozone
NAAQS
by
the
applicable
attainment
date
but
for
emissions
emanating
from
outside
the
U.
S.
The
preamble
to
the
proposed
rule
recommended
that
States
should
confer
with
the
appropriate
EPA
Regional
Office
to
establish
on
a
case­
by­
case
basis
the
technical
requirements
for
these
analyses.

b.
Final
Rule
As
in
the
proposal,
we
are
not
setting
forth
any
regulatory
provisions
related
to
international
transport.

Section
179B
of
the
CAA
applies
for
these
purposes.
We
continue
to
recommend
that
States
confer
with
the
appropriate
EPA
Regional
Office
to
establish
on
a
case­

bycase
basis
the
technical
requirements
for
analyses
to
support
showings
under
section
179B.
These
analyses
will
be
subject
to
public
comment
during
the
State
and
federal
SIP
processes.

c.
Comments
and
Responses
Comment.
Several
commenters
addressed
the
discussion
of
international
transport
in
the
proposed
rule.
Two
commenters
suggested
that
EPA
is
placing
too
high
a
burden
on
States
to
make
a
demonstration
that
a
nonattainment
area
would
attain
but
for
international
transport
(
e.
g.,
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
78
assessing
emissions
from
foreign
countries).
These
commenters
stated
that
EPA
has
the
appropriate
resources
and
technical
expertise
to
evaluate
international
transport
and
highlighted
certain
data
EPA
has
gathered
and
modeling
EPA
has
performed.
The
commenters
suggested
that
EPA
should
reevaluate
relevant
policies
regarding
Section
179B
of
the
CAA
to
ensure
they
are
streamlined
and
not
unnecessarily
burdensome
on
States
in
making
an
international
transport
demonstration.
Another
commenter
thought
that
the
proposed
rule
does
not
adequately
address
ozone
from
international
sources,
especially
in
a
situation
where
a
State
does
not
have
jurisdiction
over
most
of
the
significant
sources
of
ozone
or
access
to
available
data
for
modeling
in
that
region.
Another
commenter
encouraged
EPA
to
expand
its
view
of
the
applicability
of
Section
179B
and
allow
consideration
of
the
impact
on
attainment
of
smoke
from
crop
burning
activities
in
Southern
Mexico
and
Central
America.

Response.
The
CAA,
not
EPA's
proposed
rule,
places
the
burden
on
States
to
demonstrate
that
an
area
would
be
able
to
attain
but
for
emissions
from
sources
located
outside
the
U.
S.
However,
EPA
agrees
with
the
commenters
that
EPA
has
been
performing
numerous
activities
that
will
provide
data
that
States
may
be
able
to
rely
on
as
they
develop
these
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
79
demonstrations.
We
recognize
that
adequate
data
for
foreign
sources
may
not
be
available
to
States.
Therefore,

modeling,
according
to
the
modeling
guidance
for
attainment
demonstrations,
may
not
be
possible
in
all
cases.
Because
the
availability
of
information
and
the
causes
of
international
pollution
vary
significantly
from
one
area
to
another,
EPA
continues
to
believe
that
the
best
approach
for
addressing
international
transport
is
for
States
to
work
with
EPA
on
an
area­
by­
area
basis
to
determine
what
is
the
best
available
information
and
the
best
method
for
analysis
that
fits
the
unique
situation
for
each
area.

Regarding
consideration
under
section
179B
of
the
impact
on
attainment
of
smoke
from
crop
burning
activities
in
Southern
Mexico
and
Central
America,
in
many
cases
it
may
not
be
possible
to
confidently
quantify
the
impacts
to
the
total
ozone
or
PM
loadings
from
individual
foreign
sources
that
are
hundreds
or
even
thousands
of
miles
from
the
U.
S.

border.
Particularly
since
1998,
when
spring
fires
in
Mexico
and
Central
America
were
very
severe,
EPA
has
received
much
information
about
the
potential
impacts
from
such
occurrences
on
ozone
and
PM
levels
in
the
U.
S.
A
prime
lesson
learned
from
those
experiences
is
that
a
welldesigned
detailed
analysis
is
required
before
one
can
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
80
estimate
the
degree
of
influence
from
such
fires.
In
many
cases,
sufficient
data
will
not
exist
to
draw
such
a
conclusion.
Case­
by­
case
consultation
between
EPA
and
the
State
will
help
determine
how
best
to
consider
this
information
in
attainment
planning.

With
respect
to
the
applicability
of
section
179B
to
areas
affected
by
emissions
from
very
distant,
foreign
sources,
EPA
currently
has
not
taken
a
position.
If
and
when
there
are
any
SIP
submittals
that
request
a
section
179B
dispensation
on
such
a
basis,
EPA
will
examine
those
submittals
on
a
case­
by­
case
basis,
including
focusing
on
the
sufficiency
of
the
technical
demonstration,
in
order
to
make
a
determination
of
section
179B
applicability.

The
EPA
considers
international
transport
of
pollution
an
important
issue.
The
EPA
is
engaged
in
several
international
efforts
that
will
allow
us
to
better
understand
the
linkages
between
air
pollution
sources
in
other
countries
and
their
impacts
on
public
health
and
air
quality
in
the
U.
S.
The
EPA
has
cooperative
agreements
with
both
Canada
and
Mexico
to
investigate
international
border
transport.
The
information
generated
by
these
partnerships
will
assist
States
in
evaluating
international
transport
affecting
8­
hour
nonattainment
areas.
PREDECISIONAL
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
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6/
05
81
D.
How
will
EPA
address
requirements
for
modeling
and
attainment
demonstration
SIPs
for
areas
implementing
the
8­

hour
ozone
standard?
[
Section
VI.
H.
of
June
2,
2003
proposed
rule
(
68
FR
32830);
section
51.908
in
draft
and
final
regulatory
text.]

As
noted
in
the
proposal,
an
attainment
demonstration
SIP
consists
of
(
1)
technical
analyses
to
locate
and
identify
sources
of
emissions
that
are
causing
violations
of
the
8­
hour
NAAQS
within
nonattainment
areas
(
i.
e.,
analyses
related
to
the
emissions
inventory
required
for
the
nonattainment
area),
(
2)
adopted
measures
with
schedules
for
implementation
and
other
means
and
techniques
necessary
and
appropriate
for
attainment,
(
3)
commitments,
in
some
cases,

to
perform
a
mid­
course
review
(
MCR),
and
(
4)
contingency
measures
required
under
section
172(
c)(
9)
of
the
CAA
that
can
be
implemented
without
further
action
by
the
State
or
the
Administrator
to
cover
failures
to
meet
RFP
milestones
and/
or
attainment.
The
final
rule
retains
these
four
elements.

In
the
Phase
1
final
rule,
section
51.908
contained
only
the
requirement
related
to
the
timing
of
implementation
of
the
emission
reductions
needed
for
attainment.
In
today's
final
rule,
that
provision
is
retained
as
paragraph
PREDECISIONAL
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82
(
d)
of
section
51.908,
and
other
requirements
related
to
modeling
and
attainment
demonstrations
appear
in
the
remaining
paragraphs
of
section
51.908.
The
draft
regulatory
text
made
available
in
August
2003
included
51.904(
b)(
2),
regarding
subpart
1
areas
that
request
an
attainment
date
of
three
years
or
less.
That
issue
was
not
addressed
in
Phase
1,
but
will
be
addressed
here.
For
completeness
and
organizational
purposes,
we
now
include
that
provision
in
section
51.908,
as
it
makes
sense
to
include
it
in
the
same
location
in
the
rule
as
the
other
regulatory
provisions
regarding
attainment
demonstration
requirements
and
submittal
dates.

In
the
proposal,
we
also
solicited
public
comment
on
the
guidance
related
to
multi­
pollutant
assessments
(
as
discussed
below),
areas
with
earlier
and
later
attainment
dates,
MCR,
modeling
guidance,
and
multi­
State
nonattainment
areas.
These
topics
are
discussed
below.
Associated
with
the
attainment
demonstration
also
are
the
RFP/
ROP
plans
and
the
SIP
submission
concerning
RACM,
which
we
discussed
elsewhere
in
the
preamble
to
the
proposed
rule
and
which
are
discussed
in
later
sections
of
this
preamble.

1.
Areas
with
early
attainment
dates
a.
Background
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
5Even
though
the
June
2,
2003
proposal
contained
the
reference
to
the
0.005
ppm
criterion,
the
draft
regulatory
text
issued
for
public
comment
did
not
contain
a
reference
to
this
criterion.

83
The
proposal
noted
that
under
section
182(
a),
marginal
areas,
which
have
a
maximum
attainment
date
of
3
years
or
less
after
designation,
are
not
required
to
perform
a
complex
modeling
analysis
using
photochemical
grid
modeling.

We
noted
that
areas
covered
under
either
subpart
1
or
2
with
ozone
concentrations
close
to
the
level
of
the
NAAQS
(
e.
g.,

within
0.005
parts
per
million
(
ppm))
5,
will
most
likely
come
into
attainment
within
3
years
after
designation
as
nonattainment
without
any
additional
local
planning
as
a
result
of
national
and/
or
regional
emission
control
measures
that
are
scheduled
to
occur.
We
noted
that
regional
scale
modeling
for
national
rules,
such
as
the
NOx
SIP
Call
and
Tier
II
motor
vehicle
tailpipe
standards,
projects
major
ozone
benefits
for
the
3­
year
period
of
2004­
2006.

Attainment
for
many
areas
classified
as
marginal
is
further
indicated
by
subsequent
modeling
used
to
support
proposal
of
the
CAIR.
This
3­
year
period
coincides
with
the
period
that
would
be
used
to
determine
whether
an
area
attains
the
8­

hour
standard
within
3
years
after
designation
for
areas
classified
as
marginal.
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05
84
If
existing
modeling
for
a
marginal
area
does
not
indicate
the
area
will
attain
with
the
current
planned
control
measure,
EPA
encouraged
the
areas
to
request
reclassification
to
moderate
and
encouraged
the
State
or
Tribe
to
develop
an
attainment
demonstration
using
photochemical
grid
modeling.
See
68
FR
32831.)
Even
though
modeling
is
not
required,
it
may
be
prudent.

In
the
proposal,
we
postulated
that
for
subpart
1
areas,
3
years
is
not
enough
time
to
perform
the
detailed
photochemical
grid
modeling
needed
to
develop
the
demonstration
and
to
then
complete
the
regulatory
process
needed
to
adopt
and
implement
control
measures
sufficiently
before
the
attainment
date.
Three
years
is
generally
adequate
time
to
perform
the
modeling
analysis
and
other
parts
of
the
process
save
implementation.
Additional
time
is
generally
needed
to
implement
the
control
measures.

Since
many
subpart
1
areas
are
projected
through
regional
modeling
to
come
into
attainment
within
three
years
after
designation
with
current
control
programs,
it
would
not
be
reasonable
to
require
these
areas
to
expend
the
amount
of
resources
needed
to
perform
a
complex
modeling
analysis.

Therefore,
we
proposed
that
no
additional
modeled
attainment
demonstration
would
be
required
for
areas
with
air
quality
PREDECISIONAL
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85
observations
close
to
the
level
of
the
standard
as
described
above
and
where
regional
or
national
modeling
exists
and
that
is
appropriate
for
use
in
the
area
demonstrates
the
area
will
attain
the
8­
hour
standard
within
3
years
after
designation
(
i.
e.,
based
on
data
from
2004­
2006).

We
proposed
that
areas
subject
only
to
subpart
1
may
request
an
attainment
date
no
later
than
3
years
following
designation
for
the
8­
hour
NAAQS
by
submitting
within
1
year
of
the
designation
a
SIP
that
demonstrates
the
area
will
attain
within
3
years
following
designation.
The
demonstration
must
include
modeling
results
and
analyses
that
the
State
is
relying
on
to
support
its
claim.
Such
modeling
must
be
consistent
with
EPA
guidance
and
must
be
appropriate
for
the
area.

b.
Summary
of
Final
Rule
The
final
rule
generally
follows
the
approach
of
the
proposal.
A
subpart
1
area
may
rely
on
acceptable
available
modeling
to
obtain
an
attainment
date
of
3
years
or
less
after
the
effective
date
of
the
designation.
Thus,
the
rule
does
not
require
the
area
to
submit
a
separate
local
modeled
attainment
demonstration.
We
anticipate
that
most
of
the
areas
that
meet
these
criteria
and
thus
are
potentially
eligible
for
an
early
attainment
date
will
be
included
in
PREDECISIONAL
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6One
approach,
for
instance,
could
be
to
perform
a
linear
interpolation,
using
available
regional
or
local
modeling,
between
base
and
future
years
to
estimate
ozone
concentrations
at
intermediate
years.
This
approach
could
be
improved
by
using
the
fractional
portion
of
control
measures
as
an
adjustment
factor
to
the
linear
interpolated
concentrations
so
as
to
take
the
timing
of
the
control
programs
into
consideration.
Though
this
approach
may
not
consider
the
emissions
mix
achieved
or
the
nonlinearity
in
the
ozone
chemistry,
and
therefore
may
not
be
appropriate
for
attainment
demonstrations,
it
should
provide
a
reasonable
estimate
of
whether
the
area
is
expected
to
attain
within
3
years
after
designation.

86
the
modeling
analyses
conducted
by
areas
with
later
attainment
dates.
States
are
encouraged
to
use
these
available
analyses,
as
well
as
any
future
EPA
national
or
regional
modeling,
as
opportunities
to
review
the
impact
control
programs
will
have
on
areas
with
early
attainment
dates.
6
Although
the
proposal
set
forth
a
criterion
that
only
areas
whose
base
year
design
value
is
within
0.005
ppm
of
the
standard
level
could
rely
on
acceptable
available
modeling
to
obtain
an
attainment
date
of
3
years
or
less
after
designation,
we
do
not
believe
that
criterion
is
necessary
and
is
therefore
not
included
in
the
final
rule.

For
subpart
1
areas
that
wish
to
take
advantage
of
this
provision,
the
State
must
submit
within
18
months
after
the
effective
date
of
the
designation
a
SIP
that
demonstrates
the
area
will
attain
within
3
years
following
designation.
PREDECISIONAL
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draft
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05
7If
an
assessment
indicates
that
a
regional
modeling
analysis
is
not
applicable
to
a
particular
nonattainment
area,
additional
local
modeling
would
be
required.

87
Even
though
the
proposal
called
for
submission
within
1
year
after
designation,
the
fact
that
this
phase
2
final
rule
has
been
issued
later
than
anticipated
has
led
us
to
allow
an
additional
6
months
for
the
submission.
However,
we
recommend
that
the
demonstration
be
submitted
as
soon
as
possible.
The
demonstration
must
include
modeling
results
and
analyses
that
the
State
or
Tribe
is
relying
on
to
support
its
claim.
Such
modeling
should
be
consistent
with
EPA
guidance
and
should
be
applicable
and
appropriate
for
the
area.
7
If
acceptable
available
modeling
does
not
demonstrate
attainment
within
three
years
after
the
area's
designation,
the
area
would
need
to
submit
a
local
modeled
attainment
demonstration.

The
draft
regulatory
text
(
section
51.908(
a))
was
structured
such
that
no
attainment
demonstration
was
needed
for
subpart
1
areas
that
received
an
attainment
date
within
3
years
after
the
effective
date
of
the
nonattainment
designation.
However,
this
was
misleading,
since
the
draft
51.904(
b)(
2)
provision
that
affected
these
areas
required
a
demonstration
of
attainment
within
3
years
after
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88
designation.
The
final
regulatory
text
in
51.908(
f)

clarifies
this
point.

c.
Comments
and
Responses
Comment:
Several
commenters
recommended
that
the
requirement
for
attainment
demonstrations
from
all
subpart
1
areas
be
eliminated.

Response:
Section
172(
c)(
1)
clearly
requires
that
nonattainment
areas
".
.
.
shall
provide
for
attainment
of
the
national
primary
ambient
air
quality
standards."
To
meet
this
requirement
a
State
must
demonstrate
that
the
area
will
attain
by
a
specified
date
and
identify
and
adopt
the
control
measures
that
will
bring
the
area
into
attainment.

We
see
no
authority
for
waiving
this
requirement
for
areas.

However,
we
do
believe,
that
in
light
of
the
CAA's
provisions
for
areas
classified
as
marginal
under
subpart
2,

that
it
is
appropriate
to
rely
on
existing
national
and
regional
modeling
for
this
demonstration
for
subpart
1
areas
that
are
similar
to
marginal
areas
in
terms
of
the
severity
of
the
air
pollution
problem
and
the
time
needed
for
attainment.

Comment:
What
are
the
requirements
for
subpart
1
areas
requesting
attainment
dates
within
3
years
of
designation?

Response:
Subpart
1
areas
that
request
an
attainment
PREDECISIONAL
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89
date
within
3
years
of
designation
must
submit
within
18
months
after
the
effective
designation
date
an
attainment
demonstration
as
specified
in
the
rule.
These
areas
should
begin
to
work
immediately
with
the
appropriate
regional
office
to
establish
modeling
protocols
and
agreements
on
the
technical
analyses
need
to
support
its
claim.

2.
Areas
with
later
attainment
dates
a.
Background
For
areas
with
attainment
dates
of
more
than
3
years
after
designation,
regardless
of
whether
they
are
covered
under
subpart
1
or
subpart
2
(
except
marginal
areas),
we
proposed
to
require
them
to
submit
an
attainment
demonstration
SIP.
This
proposal
was
reflected
in
section
51.908(
b)
and
(
c)
of
the
draft
regulatory
text.
We
stated
that
local,
regional
and
national
modeling
developed
to
support
Federal
or
local
controls
could
be
used
provided
the
modeling
is
consistent
with
EPA's
modeling
guidance.

Several
States
have
invested
considerable
time
and
resources
in
regional
8­
hour
ozone
modeling
projects
following
this
guidance.
Where
exceedances
of
the
8­
hour
ozone
standard
are
more
pervasive
and
widespread
than
they
were
for
the
1­

hour
ozone
standard,
we
recommended
that
States
work
together
in
multi­
State
modeling
efforts
and
leverage
off
PREDECISIONAL
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8U.
S.
EPA,
(
XXXMONTH
NEEDED
2005),
Guidance
on
the
Use
of
Models
and
Other
Related
Analyses
in
Attainment
Demonstrations
for
the
8­
Hour
Ozone
NAAQS,
EPA­
454/
R­
04­
005,
http://
www.
epa.
gov/
ttn/
scram,
(
Modeling
Guidance,
File
name:
FINAL8HR)

90
work
under
development
and
resources
spent
on
these
projects.
This
will
be
most
beneficial
in
developing
attainment
demonstrations
to
achieve
attainment.

b.
Summary
of
Final
Rule
Areas
with
attainment
dates
later
than
3
years
after
designation,
such
as
areas
classified
as
moderate
or
higher
under
section
51.903,
are
required
to
submit
an
attainment
demonstration
no
later
than
3
years
after
the
effective
date
of
designation
for
the
8­
hour
ozone
NAAQS.
For
example,

areas
with
attainment
dates
later
than
3
years
after
designation
(
whose
effective
date
of
designation
is
June
15,

2004)
are
required
to
submit
an
attainment
demonstration
no
later
than
June
15,
2007.
These
demonstrations
shall
be
consistent
with
Appendix
W.
For
the
review
of
technical
adequacy,
we
will
generally
rely
on
our
most
recent
modeling
guidance
at
the
time
the
modeled
attainment
demonstration
is
performed.
We
will
be
making
available
a
final
version
of
the
modeling
guidance
related
to
the
8­
hour
ozone
standard.
8
Local,
regional
and
national
modeling
developed
to
support
PREDECISIONAL
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05
91
Federal
or
local
controls
may
be
used
provided
the
modeling
is
consistent
with
EPA's
modeling
guidance.

c.
Comments
and
Responses
We
received
no
comments
on
this
topic
per
se;
comments
on
the
timing
of
submission
of
attainment
demonstrations
is
discussed
elsewhere.
We
noted
in
the
proposal
that
comments
on
the
guidance
were
welcome
at
any
time
and
that
we
would
consider
those
comments
in
any
future
revision
of
the
document.
We
noted
that
comments
submitted
on
the
modeling
guidance
document
would
not
be
docketed
as
part
of
this
rulemaking,
nor
would
a
comment/
response
summary
of
these
comments
be
a
part
of
the
final
8­
hour
ozone
implementation
rule
since
they
will
not
affect
the
rule
itself.

3.
Multi­
State
nonattainment
areas
a.
Background
As
discussed
in
the
June
2003
proposal,
section
182(
j)

of
the
Act
defines
a
multi­
State
ozone
nonattainment
area
as
an
ozone
nonattainment
area,
portions
of
which
lie
in
two
or
more
States.
Section
182(
j)(
1)(
A)
and
(
B)
set
forth
certain
requirements
for
such
areas.
First,
each
State
in
which
a
multi­
State
ozone
nonattainment
area
lies
must
take
all
reasonable
steps
to
coordinate
the
implementation
of
the
required
revisions
to
SIPs
for
the
given
nonattainment
area
PREDECISIONAL
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92
[
section
182(
j)(
1)(
A)].
Next,
section
182(
j)(
1)(
B)
requires
the
States
to
use
photochemical
grid
modeling
or
any
other
equally
effective
analytical
method
approved
by
us
for
demonstrating
attainment.
We
are
prevented
by
section
182(
j)
from
approving
any
SIP
revision
submitted
under
that
section
if
a
State
has
failed
to
meet
the
above
requirements.

To
address
the
provisions
of
section
182(
j)(
1)(
A),

States
that
include
portions
of
a
multi­
State
ozone
nonattainment
area
should
develop
a
joint
work
plan
as
evidence
of
early
cooperation
and
integration.
The
work
plan
should
include
a
schedule
for
developing
the
emissions
inventories,
and
the
attainment
demonstration
for
the
entire
multi­
State
area.
Each
State
within
a
multi­
State
ozone
nonattainment
area
is
responsible
for
meeting
all
the
requirements
relevant
to
the
given
area.
Care
should
be
taken
to
coordinate
strategies
and
assumptions
in
a
modeled
area
with
those
in
other,
nearby
modeled
areas
in
order
to
ensure
that
consistent,
plausible
strategies
are
developed.

Section
182(
j)(
2)
for
multi­
State
nonattainment
areas
recognizes
that
one
State
may
not
be
able
to
demonstrate
attainment
for
the
nonattainment
area
if
other
States
in
which
portions
of
the
nonattainment
area
are
located
do
not
PREDECISIONAL
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05
93
adopt
and
submit
the
necessary
attainment
plan
for
the
area.

In
such
cases,
even
though
the
area
as
a
whole
would
not
be
able
to
demonstrate
attainment,
the
sanction
provisions
of
section
179
shall
not
apply
in
the
portion
of
the
nonattainment
area
located
in
a
State
that
submitted
an
attainment
plan.

b.
Summary
of
final
rule
As
discussed
in
the
proposal,
State
partners
involved
in
a
multi­
State
ozone
nonattainment
area
must
work
together
to
perform
the
appropriate
modeling
analyses
to
identify
control
measures
that
will
enable
the
area
to
achieve
attainment
as
expeditiously
as
practicable.
Each
State
will
be
responsible
for
its
portion
of
the
control
program
and
therefore
will
be
held
accountable
for
controls
identified
for
implementation
within
its
State
boundaries.
The
modeling
analyses
should
encompass
the
entire
multi­
state
nonattainment
area
as
well
as
adjacent
counties
which
may
contribute
to
the
nonattainment
problem.
State
plans
should
address
local
transport
within
the
region
and
its
contribution
to
nonattainment
in
the
multi­
state
area.

Consideration
of
long­
range
transport
and
its
contributions
to
nonattainment
is
discussed
in
section
IV.
B.
of
this
preamble.
The
same
modeling
and
attainment
demonstration
PREDECISIONAL
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94
requirements
of
the
final
rule
apply
to
multi­
State
nonattainment
areas,
including
areas
covered
under
subpart
1.
Marginal
multi­
State
nonattainment
areas
do
not
have
to
submit
a
modeled
attainment
demonstration
because
section
182(
a)
exempts
marginal
areas
from
the
requirement
to
submit
an
attainment
demonstration.

c.
Comments
and
Responses
Comment:
Several
commenters
encouraged
us
to
clearly
define
in
the
rule
how
multi­
State
nonattainment
areas
will
be
treated
if
all
or
a
portion
of
an
area
is
governed
by
subpart
1.
One
of
these
commenters
requested
a
clarification
that
photochemical
grid
modeling
will
not
be
required
for
multi­
State
areas
classified
under
Subpart
1
or
areas
that
are
classified
as
marginal.
The
commenter's
reasoning
was
that
such
modeling
is
unnecessary
since
they
are
close
to
achieving
the
8­
hour
NAAQS
and
will
be
in
attainment
before
the
modeling
can
be
completed.

Response:
We
agree
with
these
commenters
that
since
section
182(
a)
exempts
marginal
areas
from
the
requirement
to
submit
an
attainment
demonstration,
such
areas
need
not
develop
an
attainment
demonstration.
We
recognize
that
Section
182(
j)

of
the
CAA
requires
that
multi­
State
areas
use
photochemical
grid
modeling
as
part
of
their
attainment
demonstrations
but
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
95
that
Section
172
(
Subpart
1
areas)
of
the
CAA
does
not
require
photochemical
grid
modeling.
For
subpart
1
areas
that
do
not
seek
an
attainment
date
of
three
years
or
less
after
designation,
we
make
no
distinction
between
multi­

State
and
single­
State
subpart
1
nonattainment
areas.

However,
subpart
1
nonattainment
areas
are
required
to
submit
an
attainment
demonstration
that
relies
on
photochemical
grid
modeling,
either
one
that
has
already
been
performed
that
is
appropriate
for
use
in
the
area,
or
a
new
one.
We
do
not
believe
that
techniques
other
than
those
based
on
photochemical
grid
modeling
will
provide
credible
assurance
that
an
area
will
achieve
the
8­
hour
ozone
standard
by
the
area's
attainment
date.

Comment:
One
commenter
requested
that
we
perform
the
modeling
for
the
multi­
state
areas.
Two
commenters
stated
that
if
any
additional
photochemical
modeling
is
required
for
such
areas
pursuant
to
CAA
182(
j)(
1)(
B),
then
EPA
should
refine
previous
modeling;
perform
new
modeling;
or
approve
a
less
resource­
intensive,
alternate
method
that
fulfills
the
requirement.
The
commenters
asserted
that
we
should
assist
the
States
in
coordinating
the
development
of
the
attainment/
maintenance
plans
and
ensure
that
areas
involving
multiple
EPA
Regions
are
not
hampered
by
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
96
jurisdictional
conflicts
and
inconsistencies.

Response:
We
have
already
conducted
regional
scale
modeling
for
many
of
the
potential
nonattainment
areas
that
involve
multiple
States.
The
modeling
results
will
be
made
available
for
States
to
assess
whether
the
regional
modeling
results
are
applicable
for
local
attainment
demonstrations
(
ICF
Consulting/
SAI,
S.
Douglas,
et.
al.
"
Use
of
Regional­
Scale
Modeling
to
support
8­
Hour
Ozone
Assessments",
2004,
AWMA,
Indianapolis,
ID,
Technical
Report).
If
an
assessment
indicates
that
a
regional
modeling
analysis
is
not
applicable
to
a
particular
nonattainment
area,
additional
local
modeling
would
be
required.
If
additional
photochemical
modeling
is
required
for
such
areas,
then
the
States
involved
should
refine
previous
modeling
or
perform
new
modeling
to
support
a
local
attainment
demonstration.
We
will
assist
and
work
with
States
to
coordinate
the
development
of
the
attainment/
maintenance
plans.

4.
Role
of
modeling
guidance
in
attainment
demonstrations
a.
Background
The
proposal
noted
that
section
182(
b)(
1)(
A)
requires
ozone
nonattainment
areas
to
develop
an
attainment
demonstration
which
provides
for
reductions
in
VOC
and
NOx
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
9As
noted
above
in
the
discussion
of
subpart
1
areas
with
early
attainment
dates,
although
the
draft
regulatory
text
(
section
51.908(
a)
was
structured
such
that
no
attainment
demonstration
was
needed
for
subpart
1
areas
that
received
an
attainment
date
within
3
years
after
the
effective
date
of
the
nonattainment
designation,
this
was
misleading,
since
the
draft
51.904(
b)(
2)
provision
that
affected
these
areas
required
a
demonstration
of
attainment
within
3
years
after
designation.
The
final
regulatory
text
in
51.908(
f)
clarifies
this
point.

97
emissions
"
as
necessary
to
attain
the
national
primary
ambient
air
quality
standard
for
ozone."
Section
172(
c),

requires
areas
covered
under
subpart
1
to
demonstrate
attainment.
For
a
subpart
1
area
that
does
not
qualify
for
an
attainment
date
within
3
years
after
designation,
we
proposed
to
require
the
State
to
develop
and
submit
a
modeled
attainment
demonstration.
9
We
noted
that
section
182(
c)(
2)(
A)
provides
that
for
serious
and
higher­
classified
areas
the
"
attainment
demonstration
must
be
based
on
photochemical
grid
modeling
or
any
other
analytical
method
determined
by
the
Administrator,
in
the
Administrator's
discretion,
to
be
at
least
as
effective."
A
photochemical
grid
model
should
meet
several
general
criteria
for
it
to
be
a
candidate
for
consideration
in
an
attainment
demonstration.
We
noted
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
10U.
S.
EPA,
(
1991),
Guideline
for
Regulatory
Application
of
the
Urban
Airshed
Model,
EPA­
450/
4­
91­
013.
Available
at:
http://
www.
epa.
gov/
scram001/
tt25.
htm
;
see
document
DRAFT8HR.

11U.
S.
EPA,
(
May
1999),
Draft
Guidance
on
the
Use
of
Models
and
Other
Analyses
in
Attainment
Demonstrations
for
the
8­
Hour
Ozone
NAAQS,
EPA­
454/
R­
99­
004,
http://
www.
epa.
gov/
ttn/
scram,
(
Modeling
Guidance,
File
name:
DRAFT8HR).

98
that,
unlike
in
previous
guidance,
10
we
did
not
propose
recommending
a
specific
photochemical
grid
model
for
use
in
the
attainment
demonstration
for
the
8­
hour
NAAQS
for
ozone.

At
present,
there
is
no
single
model
which
has
been
extensively
tested
and
shown
to
be
clearly
superior
or
easier
to
use
than
other
available
models.
Criteria
for
attainment
demonstrations
are
contained
in
40
CFR
51.112,

including
appendix
W
(
i.
e.,
"
EPA's
Guideline
on
Air
Quality
Models",
68
FR
18440,
April
15,
2003).
Appendix
W
refers
to
EPA's
"
Use
of
Models
and
Other
Analyses
in
Attainment
Demonstrations
for
the
8­
Hour
Ozone
NAAQS"
and
lists
a
set
of
general
requirements
that
an
air
quality
model
should
meet
to
qualify
for
use
in
an
attainment
demonstration
for
the
8­
hour
ozone
NAAQS.
11
The
proposal
described
alternatives
available
to
the
States
and
the
scope
and
coverage
of
the
draft
guideline.
The
draft
regulatory
text
of
2003
addressed
this
requirement
in
section
51.908(
d).
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
99
We
noted
that
we
were
planning
to
make
substantial
changes
to
the
draft
version
of
this
document
before
finalizing
the
attainment
demonstration
aspects
of
the
implementation
rule.
We
said
we
welcomed
public
comments
on
the
guidance
at
any
time
and
would
consider
those
comments
in
any
future
revision
of
the
document.
However,
we
said
we
would
not
consider
comments
on
the
technical
merits
of
the
modeling
guidance
in
this
present
rulemaking.

b.
Summary
of
Final
Rule
The
final
rule
requires
each
attainment
demonstration
to
be
consistent
with
Appendix
W
of
this
part.
We
will
generally
review
the
demonstrations
for
technical
merit
using
EPA's
most
recent
modeling
guidance
at
the
time
the
modeled
attainment
demonstration
is
performed.
This
guidance
will
generally
have
the
State
provide
(
1)
technical
analyses
to
locate
and
identify
sources
of
emissions
that
are
causing
violations
of
the
8­
hour
NAAQS
within
nonattainment
areas,
(
2)
adopted
measures
with
schedules
for
implementation
and
other
means
and
techniques
necessary
and
appropriate
for
attainment
that
are
needed
for
attainment,

with
implementation
no
later
than
the
beginning
of
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
12See
40
CFR
51.900(
g)
for
definition.

100
attainment
year
ozone
season12
(
e.
g.,
prior
to
2009
ozone
season
for
areas
with
June
15,
2010
attainment
dates),
and
(
3)
contingency
measures
required
under
section
172(
c)(
9)
of
the
CAA
that
can
be
implemented
without
further
action
by
the
State
or
the
Administrator
to
cover
emissions
shortfalls
in
RFP
plans
and
failures
to
attain.

c.
Comments
and
Responses
Comment:
One
commenter
recommended
that
EPA
must
ensure
that
attainment
demonstrations
are
based
on
scientifically
valid
regional
air
shed
modeling
rather
than
scientifically
invalid
linear
proportional
rollback
and
weight­
of­
evidence
methods.

Response:
Criteria
for
attainment
demonstrations
are
contained
in
40
CFR
51.112,
including
appendix
W
(
i.
e.,

"
EPA's
Guideline
on
Air
Quality
Models",
68
FR
18440,
April
15,
2003).
Appendix
W
cites
EPA's
"
Use
of
Models
and
Other
Analyses
in
Attainment
Demonstrations
for
the
8­
Hour
Ozone
NAAQS"
and
describes
a
set
of
general
criteria
that
an
air
quality
model
and
its
application
should
meet
to
qualify
for
use
in
an
attainment
demonstration
for
the
8­
hour
ozone
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
13U.
S.
EPA,
(
May
1999),
Draft
Guidance
on
the
Use
of
Models
and
Other
Analyses
in
Attainment
Demonstrations
for
the
8­
Hour
Ozone
NAAQS,
EPA­
454/
R­
99­
004,
http://
www.
epa.
gov/
ttn/
scram,
(
Modeling
Guidance,
File
name:
DRAFT8HR).

101
NAAQS.
13
The
draft
guidance
was
developed
through
a
collaborative
process
which
included
review
from
the
scientific
community,
and
it
has
been
revised
to
reflect
recent
review
comments.
The
procedures
described
are
considered
a
scientifically
valid
use
of
regional
and
urban
airshed
modeling.
The
modeled
attainment
test
makes
use
of
the
model
derived
relationship
between
ozone
and
its
precursors.
It
does
not,
as
is
the
case
with
proportional
rollback,
assume
equal
proportions
of
the
precursors
will
provide
an
equally
proportional
reduction
in
ozone.
For
example,
it
does
not
assume
that
20
percent
reduction
in
precursors
will
provide
20
percent
improvement
in
ozone.

The
guidance
also
identifies
additional
data
which,
if
available,
should
enhance
the
credibility
of
model
results
and
results
of
other
analyses
used
in
a
weight
of
evidence
determination.
EPA
believes
use
of
weight
of
evidence
is
appropriate
as
do
many
in
the
scientific
community.
Weight
of
evidence
is
a
credible
approach
for
considering
inherent
uncertainties
in
a
modeling
application.
As
noted
above,
we
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
14U.
S.
EPA,
(
XXX
MONTH
NEEDED
2005),
Guidance
on
the
Use
of
Models
and
Other
Related
Analyses
in
Attainment
Demonstrations
for
the
8­
Hour
Ozone
NAAQS,
EPA­
454/
R­
04­
005,
http://
www.
epa.
gov/
ttn/
scram,
(
Modeling
Guidance,
File
name:
FINAL8HR)

102
will
be
making
available
a
final
version
of
the
modeling
and
attainment
demonstration
guidance
for
the
8­
hour
ozone
standard.
14
Comment:
All
attainment
demonstrations
should
be
subject
to
the
same
rigorous
standards.

Response:
EPA
envisions
that
the
final
8­
hour
ozone
modeling
guidance
will
be
available
for
use
by
the
majority
of
subpart
1
areas
and
subpart
2
areas
classified
as
moderate
and
above.
However,
due
to
the
unique
nature
of
the
ozone
problem
in
many
areas,
EPA
will
accept
various
applications
of
the
guidance.
Although
EPA
anticipates
all
areas
will
follow
the
guidance
closely
there
will
be
variation
based
on
availability
of
new
and
improved
data
methods
and
field
study
data.
EPA
is
always
striving
to
make
best
use
of
available
data
and
improvements
in
methodologies
as
the
science
and
our
understanding
of
ozone
formation
and
transport
in
different
parts
of
the
country
increases.
Unique
to
many
areas
is
the
source
receptor
configuration,
level
of
precursor
data
collected
and
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
103
model's
ability
to
simulate
unique
factors
influencing
the
formation
and
transport
of
ozone.
As
more
information
becomes
available
in
particular
areas,
EPA
expects
more
rigorous
demonstrations
will
be
provided.
Areas
close
to
attaining
the
standard
for
which
there
is
a
better
understanding
of
the
meteorology
and
the
relationships
between
precursor
emissions
and
ozone
may
not
require
as
much
rigor.
These
decisions
will
be
made
on
a
case­
by­
case
basis
and
the
public
will
be
able
to
express
their
views
during
the
State
SIP
development
and
EPA
review
process.

Comment:
EPA
cannot
adopt
or
change
the
1999
Draft
Guidance,
use
it
for
regulatory
purposes,
or
require
States
to
use
it
for
regulatory
purposes,
without
subjecting
it
to
separate
notice
and
comment
rulemaking.

Response:
EPA
is
not
adopting
the
Guidance
as
a
rule.
EPA
plans
to
use
the
current
(
2005)
guidance
and
future
updates
as
a
benchmark
for
reviewing
the
technical
analysis
submitted
in
support
of
8­
hour
ozone
attainment
demonstrations.
The
guidance
document
is
not
a
regulation.

Therefore,
it
does
not
impose
binding,
enforceable
requirements
on
any
party,
and
may
not
apply
to
a
particular
situation
based
upon
the
circumstances.
The
EPA
and
State
decision
makers
have
the
discretion
to
adopt
approaches
on
a
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
104
case­
by­
case
basis
that
differ
from
this
guidance
where
appropriate.
Any
decisions
by
the
EPA
regarding
adequacy
of
a
particular
SIP
to
meet
the
8­
hour
ozone
NAAQS
will
be
based
on
the
CAA
and
our
regulations.
Therefore,
interested
parties
are
free
to
raise
questions
and
objections
about
the
appropriateness
of
the
application
of
this
guidance
to
a
particular
situation
during
the
State
SIP
development
and
EPA
review
process.

Comment:
One
commenter
requested
an
opportunity
to
review
and
comment
on
the
revised
guidance
prior
to
the
"
final"

release.

Response:
States,
Tribes
and
others
were
given
an
opportunity
to
comment
on
the
proposed
changes
in
the
draft
guidance.
Also,
EPA
received
additional
comments
on
the
draft
guidance
during
the
comment
period
on
the
implementation
rule.
EPA
has
reviewed
and
considered
the
comments
and
will
be
releasing
the
final
guidance.
For
more
information
and
updates
to
the
modeling
guidance
for
ozone
visit
EPA's
Technology
Transfer
Network
Support
Center
for
Regulatory
Air
Models
(
TTN/
SCRAM)
on
the
internet,

http://
www.
epa.
gov/
ttn/
scram/).
Even
though
the
guidance
will
be
issued
in
final
form
shortly,
EPA
is
always
open
to
suggestions
for
future
improvements
to
the
guidance,
PREDECISIONAL
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OR
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draft
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6/
05
105
including
the
incorporation
of
methodologies
and
procedures
that
increase
accuracy
and
credibility
of
results.
Such
suggestions
may
be
made
to
EPA
regional
or
headquarters
modeling
contacts
listed
at
the
above
TTN/
SCRAM
web
site.

Comment:
EPA
should
carefully
consider
the
resources
that
will
be
needed
to
perform
the
requisite
modeling
for
multiple
areas
in
many
States.

Response:
States/
Tribes
are
encouraged
to
share
and
leverage
resources
currently
being
used
in
regional
model
applications
that
affect
multiple
areas.
There
is
much
opportunity
for
common
use
of
data
and
methodologies
among
the
modeling
requirements
for
the
regional
haze
program,
the
PM2.5
attainment
demonstrations
and
the
ozone
attainment
demonstrations
that
should
make
the
overall
exercise
less
onerous.
States
and
Tribes
are
encouraged
to
model
multiple
precursor
strategies
for
multiple
areas
and
review
their
efficacy
for
all
three
programs.

Comment:
Any
photochemical
grid
model
utilized
must
either
be
in
the
public
domain
or
licensed
for
unlimited
use
by
any
person
for
purposes
of
modeling
within
the
area.

Response:
EPA
modeling
guidance
supports
this
comment
which
is
addressed
in
section
11
of
the
modeling
guidance.

"
Applicable
models"
may
be
used,
if
they
are
non­
PREDECISIONAL
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05
106
proprietary.
A
"
non­
proprietary"
model
is
one
whose
source
code
is
available
for
free
or
for
a
reasonable
cost.

Further,
the
user
must
be
free
to
revise
the
code
to
perform
diagnostic
analyses
and/
or
to
improve
the
model's
ability
to
describe
observations
in
a
credible
manner.

Comment:
One
commenter
recommended
that
EPA
update
its
guidance
in
40
CFR
51
Appendix
W
to
include
a
discussion
of
the
role
of
weight­
of­
evidence
as
part
of
a
modeling
demonstration,
and
to
make
any
updates
in
Appendix
W
subject
to
public
review.

Response:
In
regard
to
the
role
of
weight
of
evidence,
EPA
does
not
plan
to
revise
Appendix
W.
Use
of
weight
of
evidence
is
dependent
on
local
information
only
available
when
the
technical
analysis
for
a
specific
model
application
is
under
development.
Therefore
use
of
weight
of
evidence
is
reviewed
on
a
case­
by­
case
basis
as
the
appropriate
Regional
Office
works
with
the
State
as
it
develops
its
SIP
and,
once
submitted,
during
the
SIP
approval
process.

5.
Mid­
course
review
(
MCR)

a.
Background
The
proposal
noted
that
a
MCR
provides
an
opportunity
to
assess
whether
a
nonattainment
area
is
or
is
not
making
sufficient
progress
toward
attainment
of
the
8­
hour
ozone
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
15Memorandum
of
March
28,
2002,
from
Lydia
N.
Wegman
and
J.
David
Mobley,
re:
"
Mid­
Course
Review
Guidance
for
the
1­
Hour
Ozone
Nonattainment
Areas
that
Rely
on
Weight­
of­
Evidence
for
Attainment
Demonstration."
Located
at
URL:
http://
www.
epa.
gov/
scram001/
guidance/
guide/
policymem33d.
pdf
.

107
standard,
as
predicted
in
its
attainment
demonstration.
We
noted
that
a
commitment
to
perform
a
MCR
is
a
critical
element
of
an
attainment
demonstration
that
employs
a
longterm
projection
period
and
relies
on
weight
of
evidence.

Because
of
the
uncertainty
in
long­
term
projections,
we
said
we
believed
such
attainment
demonstrations
need
to
contain
provisions
for
periodic
review
of
monitoring,
emissions,
and
modeling
data
to
assess
the
extent
to
which
refinements
to
emission
control
measures
are
needed.

A
number
of
States
participated
in
a
consultative
process
with
EPA,
which
resulted
in
the
development
of
the
1­
hour
MCR
guidance.
15
We
noted
that
we
would
update
the
1­

hour
MCR
policy
and
technical
guidance
to
include
8­
hour
metrics
and
that
we
were
soliciting
comment
on
appropriate
revisions.
We
proposed
that
the
final
MCR
guidance
incorporating
8­
hour
metrics
would
be
available
at
the
time
we
issue
our
final
implementation
rule.

The
proposal
briefly
described
the
procedure
for
performing
a
MCR.
The
proposal
noted
that
States
would
not
PREDECISIONAL
DRAFT
 
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OR
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draft
2/
6/
05
108
have
to
commit
in
advance
to
adopt
new
control
measures
as
a
result
of
the
MCR
process.
Based
on
the
MCR,
if
we
determine
sufficient
progress
has
not
been
made,
we
would
determine
whether
additional
emissions
reductions
are
necessary
from
the
State(
s)
in
which
the
nonattainment
area
is
located
or
upwind
States
or
both.
We
would
then
require
the
appropriate
State(
s)
to
adopt
and
submit
new
measures
to
bring
about
the
necessary
emission
reductions
within
a
specified
period.
We
anticipated
that
these
findings
would
be
made
as
calls
for
SIP
revisions
under
section
110(
k)(
5)

and,
therefore,
the
period
for
submission
of
the
measures
would
be
no
longer
than
18
months
after
the
EPA
finding.

Thus,
we
proposed
that
States
complete
the
MCR
three
or
more
years
before
the
applicable
attainment
date
to
ensure
that
any
additional
controls
that
may
be
needed
can
be
adopted
in
sufficient
time
to
reduce
emissions
by
the
start
of
the
ozone
season
in
the
attainment
year.

b.
Summary
of
Final
Rule
Areas
with
an
attainment
date
beyond
6
years
after
the
effective
date
of
the
area's
designation
are
also
required
to
commit
to
perform
a
MCR
midway
between
the
due
date
for
its
attainment
demonstration
SIP
and
the
area's
attainment
date.
(
Thus,
moderate
areas
are
not
required
to
commit
to
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
16Memorandum
of
March
28,
2002,
from
Lydia
N.
Wegman
and
J.
David
Mobley,
re:
"
Mid­
Course
Review
Guidance
for
the
1­
Hour
Ozone
Nonattainment
Areas
that
Rely
on
Weight­
of­
Evidence
for
Attainment
Demonstration."
Located
at
URL:
http://
www.
epa.
gov/
scram001/
guidance/
guide/
policymem33d.
pdf
109
perform
a
MCR.)
The
8­
hour
ozone
modeling
guidance
(
EPA,

2004)
is
expected
to
identify
measurements
and
activities
to
support
subsequent
reviews
of
an
attainment
demonstration
SIP
(
i.
e.,
MCR),
such
as
improvements
in
air
quality
monitoring,
meteorology
and
emission
measurements.
Even
though
the
proposal
noted
that
we
expected
to
revise
the
existing
1­
hour
mid­
course
review
guidance,
EPA
now
believes
the
1­
hour
mid­
course
review
guidance
coupled
with
the
8­
hour
modeling
guidance
provides
sufficient
guidance.

States
should
consult
with
EPA
prior
to
using
a
methodology
other
than
the
one
developed
through
the
public
consultative
process.

Guidance
for
performing
a
MCR
for
the
1­
hour
ozone
NAAQS
identifies
several
methods
for
reviewing
whether
the
existing
SIP
is
sufficient
for
the
area
to
attain
by
its
attainment
date.
16
These
guidance
documents
should
provide
adequate
information
for
developing
protocols
for
performing
MCRs
for
the
8­
hour
ozone
NAAQS.
States/
Tribes
should
prepare
protocols
which
identify
analyses
and
data
bases
to
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
110
be
used
to
support
a
MCR
and
discuss
these
with
the
appropriate
EPA
Regional
Office
prior
to
performing
a
MCR.

If
we
determine
that
additional
guidance
is
needed,
we
will
issue
updated
guidance
in
a
time
frame
suitable
to
support
the
timely
completion
of
MCRs.

c.
Comments
and
Responses
Comment:
Requiring
the
MCR
3
or
more
years
prior
to
the
attainment
date
is
not
reasonable
or
feasible
for
some
areas.
EPA
needs
to
recognize
that
for
moderate
and
lower
classifications
the
MCR
would
be
due
at
the
time
of
the
SIP
submittal.
MCR's
should
be
required
only
for
areas
with
nonattainment
classifications
of
serious
or
greater,
as
at
least
3
years
of
monitored
data
are
required
for
a
MCR,

after
the
implementation
of
controls.

Response:
EPA
is
requiring
each
nonattainment
area
with
an
attainment
date
greater
than
6
years
after
the
effective
date
of
the
area's
designation
to
complete
and
submit
to
EPA
a
MCR
midway
between
the
due
date
for
its
attainment
demonstration
SIP
and
the
area's
attainment
date.
This
requirement
is
applicable
to
areas
classified
under
subpart
1
and
subpart
2.
Thus,
areas
classified
as
marginal
or
moderate
under
subpart
2
would
not
be
required
to
commit
to
a
MCR.
Areas
classified
under
subpart
2
as
serious
or
above
PREDECISIONAL
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draft
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6/
05
111
would
be
required
to
perform
a
MCR.

Comment:
One
commenter
recommended
that
EPA
make
the
MCR
process
part
of
the
requirements
for
RFP
and
ROP.

Response:
EPA
believes
the
State
may
develop
a
coordinated
RFP/
MCR
analysis
to
assess
progress
in
both
emission
reductions
and
reductions
in
ambient
ozone
concentrations.

However,
the
RFP
requirement
and
milestone
reductions
and
milestone
compliance
demonstrations
under
section
182
paragraphs
(
b)(
1),
(
c)(
2)
and
(
g)
set
forth
specific
timing
that
may
or
may
not
match
the
timing
of
the
required
MCR
submission.

Comment:
EPA
should
develop
proper
analysis
techniques
so
that
meteorological
conditions
do
not
affect
a
nonattainment
area's
perceived
progress
towards
attainment.
A
MCR
should
also
include
an
evaluation
of
ozone
transport
into
the
nonattainment
area
and
control
implementation
in
upwind
areas.

Response:
Assessments
of
transport
are
covered
in
the
MCR
guidance.
EPA
is
improving
methods
for
determining
the
ozone
trends
and
how
they
are
affected
by
meteorology.
The
latest
information
will
be
made
available.

Comment:
EPA
needs
to
release
the
revised
MCR
guidance
before
the
final
rule
is
issued
in
order
for
it
to
be
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
17Memorandum
of
March
28,
2002,
from
Lydia
N.
Wegman
and
J.
David
Mobley,
re:
"
Mid­
Course
Review
Guidance
for
the
1­
Hour
Ozone
Nonattainment
Areas
that
Rely
on
Weight­
of­
Evidence
for
Attainment
Demonstration."
Located
at
URL:
http://
www.
epa.
gov/
scram001/
guidance/
guide/
policymem33d.
pdf
112
reviewed
and
commented
on
during
the
public
comment
period.

Response:
The
final
rule
does
not
incorporate
any
MCR
guidance
by
reference.
The
8­
hour
ozone
modeling
guidance
(
U.
S.
EPA,
2004)
is
expected
to
identify
measurements
and
activities
to
support
subsequent
reviews
of
an
attainment
demonstration
SIP
(
i.
e.,
MCR),
such
as
improvements
in
air
quality
monitoring,
meteorology
and
emission
measurements.

Guidance
for
performing
a
MCR
for
the
1­
hour
ozone
NAAQS
identifies
several
methods
for
reviewing
whether
a
SIP
is
on
track
to
attain
within
prescribed
time
limits.
17
These
guidance
documents
should
provide
adequate
information
for
developing
protocols
for
performing
MCRs
for
the
8­
hour
ozone
NAAQS.
States/
Tribes
should
prepare
protocols
which
identify
analyses
and
data
bases
to
be
used
to
support
a
MCR
and
discuss
these
with
the
appropriate
EPA
Regional
Office
prior
to
performing
a
MCR.
If
we
determine
that
additional
guidance
is
needed,
we
will
issue
updated
guidance
in
a
time
frame
suitable
to
support
completion
of
MCR's
within
established
deadlines.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
18Use
of
models
that
are
capable
of
simulating
transport
and
formation
of
multiple
pollutants
simultaneously.
For
example,
for
ozone
and
fine
particles,
it
is
critical
that
the
model
simulate
photochemistry,
which
includes
interactions
among
the
pollutants
and
their
precursors.

113
6.
Multi­
pollutant
assessments
(
one­
atmosphere
modeling18)

a.
Background
The
proposal
noted
that
many
factors
affecting
formation
and
transport
of
secondary
fine
particles
(
i.
e.,

PM2.5
components)
are
the
same
as
those
affecting
formation
and
transport
of
ozone.

The
proposal
therefore
noted
that
models
and
data
analysis
intended
to
address
visibility
impairment
need
to
be
capable
of
simulating
transport
and
formation
of
both
secondary
fine
particles
and
ozone.
At
a
minimum,
modeling
should
include
previously
implemented
or
planned
measures
to
reduce
ozone,
secondary
fine
particles,
and
visibility
impairment.
An
integrated
assessment
of
the
impact
controls
have
on
ozone,
secondary
fine
particles,
and
regional
haze
provides
safeguards
to
ensure
ozone
controls
will
not
preclude
optimal
controls
for
secondary
fine
particles
and
visibility
impairment.

The
concept
of
modeling
control
impacts
on
all
three
programs
is
further
strengthened
by
the
alignment
of
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
2/
6/
05
114
implementation
process
for
ozone
and
secondary
fine
particles.
As
the
dates
for
attainment
demonstration
and
planning
SIPs
for
the
three
programs
are
fairly
close,
the
practicality
of
using
common
data
bases
and
analysis
tools
for
all
three
programs
is
viable
and
encourages
use
of
shared
resources.

The
proposal
noted
that
States
that
undertake
multipollutant
assessments
as
part
of
their
attainment
demonstration
would
assess
the
impact
of
their
ozone
attainment
strategies
on
secondary
fine
particles
and
visibility
or
perform
a
consistent
analysis
for
ozone,

secondary
fine
particles,
and
visibility.
To
facilitate
such
an
effort,
we
encouraged
States
to
work
closely
with
established
regional
haze
Regional
Planning
Organizations
(
RPOs)
and
the
jurisdictions
responsible
for
developing
PM2.5
implementation
plans.
We
encourage
States
to
perform
similar
multi­
pollutant
assessments
as
part
of
their
ozone
attainment
demonstrations,
considering
the
control
programs
that
are
in
place
at
the
time
of
the
assessment.

Multipollutant
assessments
are
discussed
elsewhere
in
this
proposed
rulemaking.

b.
Summary
of
final
rule
There
is
no
regulatory
text
on
the
issue
of
multi­
PREDECISIONAL
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QUOTE,
CITE
OR
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draft
2/
6/
05
115
pollutant
assessments,
but
we
recommend
the
following:


Attainment
demonstration
modeling
should
include
previously
implemented
or
planned
measures
to
reduce
ozone,
secondary
fine
particles,
and
visibility
impairment.


An
integrated
assessment
of
the
impact
controls
have
on
ozone,
secondary
fine
particles,
and
regional
haze
is
encouraged
to
promote
efficiencies
in
strategies
for
achieving
all
three
goals.


States
are
also
encouraged
to
use
common
data
bases
and
analysis
tools
for
all
three
programs
and
work
closely
with
established
regional
haze
RPOs
and
the
jurisdictions
responsible
for
developing
PM2.5
implementation
plans.


States
are
encouraged
to
follow
EPA's
lead
and
perform
similar
multi­
pollutant
assessments
as
part
of
their
ozone
attainment
demonstrations,
considering
the
control
programs
that
are
in
place
at
the
time
of
the
assessment.

c.
Comments
and
Responses
Comments:
EPA
received
several
comments
on
the
recommendation
that
States
perform
multi­
pollutant
assessments
as
part
of
their
ozone
attainment
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
116
demonstrations.
Almost
all
of
the
comments
agreed
with
the
basic
rationale
behind
encouraging
an
analysis
of
the
expected
ozone,
PM2.5,
and
visibility
impacts
of
a
given
set
of
air
quality
control
measures
associated
with
an
8­
hour
ozone
attainment
demonstration.
The
comments
differed
on
whether
multi­
pollutant
assessments
should
be
required
or
only
encouraged.
The
commenters
who
urged
EPA
to
encourage
rather
than
require
a
multi­
pollutant
assessment
provided
reasons
for
why
they
believe
a
multi­
pollutant
assessment
is
not
possible
at
this
time.
One
commenter
indicated
that
the
proposal
was
unclear
as
to
whether
the
multi­
pollutant
assessments
were
required.

One
commenter
recommended
that
EPA
require,
in
certain
unspecified
cases,
nonattainment
areas
to
perform
an
integrated
control
strategy
assessment
to
ensure
that
ozone
controls
will
not
preclude
optimal
controls
for
secondary
fine
particles
and
visibility
impairment.
Conversely,

several
other
commenters
expressed
the
opinion
that
the
multi­
pollutant
assessment
should
not
be
a
requirement
of
an
ozone
attainment
demonstration.
Several
reasons
were
offered
for
why
the
assessment
should
remain
optional:
1)

that
the
state
of
the
science
for
assessing
PM2.5
and
visibility
is
not
yet
sufficient
for
providing
meaningful
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117
input
to
the
regulatory
process,
2)
that
the
additional
resources
necessary
to
model
the
atmosphere
as
a
single
system
resulted
in
an
undue
burden
on
the
States,
and
3)

that
requiring
a
PM2.5
and
visibility
assessment
would
result
in
delayed
attainment
due
to
the
additional
time
necessary
to
complete
such
an
analysis.

Response:
EPA
continues
to
believe
that
encouraging,
but
not
requiring,
multi­
pollutant
assessments
is
the
most
sound
approach
for
total
air
quality
management
given
the
schedule
by
which
ozone
attainment
demonstrations
are
legally
required.
Much
progress
has
been
made
on
improving
the
available
PM2.5
models
and
inputs
to
these
models
over
the
past
three
years.
As
a
result,
EPA
believes
that
the
available
tools
are
able
to
support
air
quality
planning.

Further
improvements
are
likely
over
the
next
1­
3
years;

much
of
which
will
be
driven
by
the
RPO's.
By
working
closely
with
the
appropriate
RPO's,
States
can
reduce
the
burden
associated
with
one­
atmosphere
modeling
analyses.

EPA
recognizes
however,
that
many
States
have
already
invested
resources
in
an
ozone­
only
modeling
platform
analysis
which
is
typically
conducted
over
a
finite
number
of
episode
days
and
for
geographic
regions
that
are
typically
less
than
(
in
time)
and
smaller
than
(
in
space)
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118
what
might
be
required
in
a
multi­
pollutant
assessment.
By
encouraging
States
to
consider
such
assessments
EPA
hopes
to
speed
the
process
of
the
transition
to
more
integrated
air
quality
planning
tools
while
yielding
sound
multi­
pollutant
control
strategies.
It
is
prudent
for
areas
to
perform
these
multi­
pollutant
assessments
earlier
as
it
will
lessen
the
planning
burden
in
the
long­
term
since
later
planning
activities
for
PM2.5
and
regional
haze
will
need
to
consider
the
effects
of
emission
control
measures
adopted
for
the
ozone
attainment
plan.

7.
What
baseline
emission
inventory
should
be
used
for
the
attainment
demonstration?
[
Not
addressed
in
the
June
2,
2003
proposal;
section
51.909
of
the
draft
regulatory
text.]

The
June
2,
2003
proposal
did
not
discuss
baselines
for
purposes
of
the
attainment
demonstration.
Section
51.909
of
the
draft
regulatory
text,
however,
would
have
established
2002
as
the
baseline
emission
inventory
for
purposes
of
both
RFP
and
the
attainment
demonstration
for
areas
with
an
effective
date
of
designation
of
June
15,
2004.
We
recognize,
however,
that
some
areas
have
already
begun
to
perform
modeling
for
their
attainment
demonstrations
using
baseline
year
inventories
earlier
than
the
2002
inventory,

and
because
the
2002
inventory
may
not
be
in
a
format
to
PREDECISIONAL
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19EPA
guidance
on
baseline
years
is
found
in
the
memorandum
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.
That
document
noted,
"
The
EPA
is
aware
that
some
areas
have
already
begun
on
a
voluntary
basis
to
model
for
purposes
of
the
8­
hour
ozone
standard.
These
areas
may
continue
to
use
modeling
from
previous
base
years
for
each
set
of
meteorological
episode
conditions
for
use
in
their
SIP
submittals
if
these
studies
are
still
applicable
for
an
attainment
demonstration."

119
readily
be
used
for
photochemical
grid
modeling.
19
Therefore,
the
final
rule
does
not
specify
a
baseline
for
purposes
of
the
attainment
demonstration
and
modeling.
The
specification
of
2002
as
a
baseline
year
for
RFP
purposes
(
for
for
areas
with
an
effective
date
of
designation
of
June
15,
2004)
appears
in
the
RFP
provisions
of
40
CFR
51.910.

Section
51.909
remains
reserved.

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);
sections
51.909
and
51.910
in
draft;

section
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
PREDECISIONAL
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20Note
that
section
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.

120
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
181.20
In
particular,

subpart
2
specifies
the
base
year
emissions
inventory
upon
which
RFP
is
to
be
planned
for
and
implemented,
the
increments
of
emission
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
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121
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
emission
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
or
where
the
area
contributes
to
a
nonattainment
problem
in
a
downwind
area
in
the
State.

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
PREDECISIONAL
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122
to
reach
attainment
by
its
required
attainment
date.

b.
Summary
of
Final
RFP
and
ROP
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
allowing
of
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
PREDECISIONAL
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21Memorandum
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
used
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.

123
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
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.
21
°
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
PREDECISIONAL
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124
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.
PREDECISIONAL
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draft
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05
22With
today's
rulemaking,
this
provision
is
now
codified
as
40
CFR
51.908(
d).

125
°
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,

emission
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
attainment
as
expeditiously
as
practicable
within
5
years
after
designation
(
See
40
CFR
51.90822).
Under
the
final
rule,
RFP
would
be
met
by
emission
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
emission
reductions
that
would
be
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23E.
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.

126
proportional
to
the
time
between
the
end
of
the
first
RFP
increment
and
the
attainment
date.
23
°
New
moderate
areas
would
have
to
submit
RFP
plans
within
3
years
after
designation
and
obtain
the
emission
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
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127
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.

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
emission
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
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128
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
Clean
Air
Act'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
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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.
For
subpart
2
areas,
should
the
initial
15
percent
RFP
requirement
be
limited
to
VOC
emissions?
[
Section
VI.
I.
3
of
June
2,
2003
proposed
rule
(
68
FR
32833);
section
51.910(
a)(
1)(
ii)
of
the
draft
and
final
regulatory
text.]

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.
We
proposed
2
options
to
address
this
issue.

(
i)
Option
1.
Continue
to
require
15
percent
VOC
reductions
within
6
years
after
the
baseline
year
for
all
areas
designated
moderate
and
above
for
the
8­
hour
ozone
NAAQS.
After
6
years,
all
serious
and
above
areas
would
be
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130
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
approved
15
percent
plans
for
their
1­
hour
ozone
SIPs,
an
additional
15
percent
VOC
reduction
is
not
necessary.
Areas
that
are
classified
as
moderate
under
the
8­
hour
standard
that
have
already
implemented
their
15
percent
plans
under
their
1­

hour
ozone
SIPs
would
be
considered
to
have
met
the
statutory
15
percent
requirement
and
RFP
for
the
first
6
years
from
the
baseline
year
would
be
covered
under
the
more
generic
RFP
requirements
of
subpart
1.
Subpart
1
RFP
requirements
are
discussed
below.
Areas
that
are
classified
as
serious
and
above
under
the
8­
hour
standard
that
have
already
implemented
their
15
percent
plans
under
the
1­
hour
ozone
standard
would
have
to
include
in
their
SIPs
an
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
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131
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
percent
emissions
reductions
(
VOC
and/
or
NOx)
over
the
first
6
years
from
the
baseline
year
(
January
1,
2003
to
December
31,
2008)
and
then
within
3
years
after
designation
submit
a
plan
that
provides
nine
percent
emission
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
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
have
to
achieve
greater
emission
reductions,

i.
e.,
an
average
of
three
percent
per
year,
but
could
choose
either
VOC
or
NOx
reductions
as
appropriate.
We
indicated
in
the
proposal
that
we
preferred
this
second
option
because
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24As
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).

132
it
provides
more
flexibility
for
the
RFP
plan
to
be
consistent
with
the
area's
needs
in
attaining
the
standard
and
the
draft
regulatory
text
incorporated
this
option.

b.
Summary
of
Final
Rule.

The
final
rule
incorporates
the
second
option
noted
in
the
Background
above,
as
adjusted
in
response
to
comment,

namely,
that
for
those
areas
that
are
composed
entirely
of
areas
and
that
have
approved
15
percent
plans
for
their
1­

hour
ozone
SIPs,
an
additional
15
percent
VOC
reduction
is
not
necessary.
Areas
that
are
classified
as
moderate
under
the
8­
hour
standard
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
requirement.
RFP
for
the
first
6
years
from
the
baseline
year
would
be
covered
under
the
more
generic
RFP
requirements
of
subpart
1
(
discussed
below).

Areas
that
are
serious
would
have
to
meet
3
percent
reductions
per
year
averaged
over
6
years
for
the
first
increment
and
then
averaged
over
each
three
year
period
out
to
the
attainment
year.
24
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133
c.
Comments
and
responses
Comment:
One
commenter
expressed
concern
that
for
a
number
of
Subpart
2
areas
that
are
also
existing
1­
hour
nonattainment
areas,
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
SIP
RFP
emission
reductions.
The
commenter
further
suggested
that
EPA
should
have
available
approved
policy
options
that
allow
areas
in
such
predicaments
to
maintain
approved
SIPs
if
emission
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.
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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:
Another
commenter
supported
EPA's
efforts
to
recognize
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
chose
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
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135
hour
standard
but
instead
will
be
subject
to
the
other
applicable
RFP
provisions
of
the
Act.

Comment:
One
commenter
prefered
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
States
have
already
made.
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
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136
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)
under
the
1­
hour
standard,
they
will
not
have
to
meet
it
again
for
the
8­
hour
standard.
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.
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
or
to
allow
NOx
substitution
for
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
137
initial
RFP
demonstration
requirement
of
section
182(
b)(
1)(
A).
If
serious
and
above
areas
do
not
meet
the
15
percent
requirement,
again,
they
must
meet
the
section
182(
c)(
2)(
B)
RFP
requirement,
which
will
achieve
greater
reductions,
that
is,
3
percent
per
year
over
6
years
for
a
total
of
18
percent,
but
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
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
emission
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.

Congress
mandated
that
areas
classified
as
moderate
and
above
for
ozone
must
submit
a
SIP
revision
after
1990
to
get
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
138
a
15
percent
reduction
in
baseline
VOC
emissions
under
CAA
section
182(
b)(
1)(
A).

Therefore
any
area,
except
any
part
which
is
covered
by
an
approved
15
percent
VOC
reduction
plan
in
the
applicable
SIP,
that
is
classified
as
moderate
or
above
nonattainment
for
the
8­
hour
standard
must
submit
a
SIP
that
provides
for
a
15
percent
reduction
in
baseline
emissions.

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).
EPA
concludes
that
we
must
require
such
an
area
to
do
the
following
depending
upon
its
8­
hour
classification:

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
considered
to
have
met
the
statutory
15
percent
requirement
and
RFP
for
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
139
the
first
6
years
from
the
baseline
year
would
be
covered
under
the
more
generic
RFP
requirements
of
subpart
1.

If
classified
as
serious
or
higher
for
the
8­
hour
standard,
EPA
believes
that
the
3
per
cent
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
emission
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
EPA
is
not
waiving
the
15
percent
requirement
for
areas
that
have
satisfied
that
requirement
in
their
initial
15
percent
emission
reduction
performed
under
the
1­
hour
standard.
These
areas
will
continue
to
make
reductions
with
the
3
percent
per
year
incremental
emission
reductions.
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
allows
the
substitution
of
NOx
for
VOC
under
certain
circumstances.

EPA
does
not
believe
it
is
able
to
allow
substitution
of
NOx
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
140
reductions
for
the
initial
15
percent
VOC
reductions
requirement,
but
the
CAA
does
allow
States
to
use
both
VOC
and
NOx
for
the
3
percent
reductions
thereafter.

Comments
on
draft
regulatory
text
Comment:
Another
commenter
generally
supported
the
RFP
provisions
in
this
section,
suggesting
that
in
subsection
(
a)(
1)(
ii)(
A)
[
of
draft
section
51.910]
we
insert
the
bolded
as
shown
here:

"
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
Act
for
the
8­
hour
NAAQS,
but
instead
 
(
A)
If
classified
as
moderate,
is
subject
to
RFP
under
section
172(
c)(
2)
of
the
Act
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
141
preamble
and
now
addresses
the
commenter's
concern.

Comment:
One
other
commenter
suggested
that
if
it
is
shown
that
reduction
of
one
precursor
would
be
more
beneficial
than
reduction
of
another,
then
the
area
should
be
allowed
to
substitute.
They
recommended
that
EPA
allow
NOx
substitution
for
VOC
for
any
ROP
or
RFP
requirements,
not
just
those
for
areas
designated
serious
or
worse
for
ozone.

They
also
suggested
that
Section
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
142
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.

3.
What
baseline
year
should
be
required
for
the
emissions
inventory
for
the
RFP
requirement?
[
Section
VI.
I.
4.
of
June
2,
2003
proposed
rule
(
68
FR
32833);
section
51.909
of
the
draft
regulatory
text;
section
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
25Memorandum
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.

26Memorandum
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.

143
the
8­
hour
ozone
and
the
PM2.5
standards.
25
b.
Summary
of
Final
Rule.

As
set
forth
in
our
proposed
rule,
for
areas
designated
nonattainment
under
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.
26
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
27E.
g.,
where
the
effective
date
of
the
first
designation
to
nonattainment
for
an
area
under
the
8­
hour
ozone
NAAQS
is
after
June
1,
2007
but
before
June
1,
2010,
the
baseline
inventory
will
be
for
calendar
year
2005.

144
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
by
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
cycle,
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
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.
27
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
145
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
Act
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
146
basis
for
their
planning,
even
though
that
was
the
case
under
the
1990
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
proposed
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
147
goals.

That
commenter
refered
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:
EPA
has
decided
to
establish
2002
as
the
baseline
year
for
the
8­
hour
implementation
rule
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
rate­
of­
progress,
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
measures.
If
we
use
2004,
the
baseline
may
be
lower
but
areas
can't
take
credit
for
measures
that
produce
emission
reductions
between
2002­
2004.
Depending
on
the
area,
the
difference
should
be
minimal
in
terms
of
the
difference
in
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
148
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
emission
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
Sttes
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.

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
changes
in
emission
calculating
methodologies.
Furthermore,
a
1990
inventory
was
only
required
for
nonattainment
areas
as
of
enactment
of
the
1990
CAAA
and
therefore
may
not
exist
for
a
number
of
areas
that
are
currently
designated
nonattainment
for
the
8­
hour
standard.

Comment:
A
comment
on
draft
regulatory
text
section
51.909
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
149
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
section
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
28We
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
section
51.909,
the
final
rule
places
the
RFP
baseline
year
requirement
in
section
51.910.

150
effect
at
this
point,
we
believe
removing
the
2002
specification
may
only
be
confusing
to
some.
The
final
version
of
rule
(
now
section
51.910(
d))
provides
specificity
regarding
the
appropriate
baseline
year
for
subsequent
nonattainment
designations.
28
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
or
final
regulatory
text.]

a.
Background.
As
noted
in
the
proposal,
for
areas
initially
classified
moderate
and
higher
under
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.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
151
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
one
and
a
half
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.

Therefore,
a
moderate
area
would
still
also
have
to
provide
any
additional
emissions
reductions
 
VOC
and/
or
NOx
 
needed
to
provide
for
attainment
by
the
area's
attainment
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
29We
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.

152
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
areas
are
not
subject
to
any
additional
prescribed
emissions
reductions
for
RFP
but
instead
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.
29
Serious
and
higher
classified
areas
would
need
to
provide
in
their
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
153
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
1/
2
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:
We
do
not
believe
the
Act
requires
the
end
of
the
15
percent
RFP
period
and
the
attainment
date
to
be
the
same.
The
Act
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
areas
needs
additional
emission
reductions
beyond
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
154
2008
for
attainment,
there
will
continue
to
need
for
additional
emission
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
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
in
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);
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
155
section
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
Act
uses
identical
language
for
identifying
areas'
attainment
dates
under
subpart
2.
In
our
phase
1
rule,
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
designate
in
2004),
the
plans
would
have
to
be
implemented
within
1
year
after
submission
to
ensure
the
15
percent
emissions
reductions
are
achieved
by
the
end
of
the
relevant
6­
year
period
(
i.
e.,
December
2008).
We
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.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
156
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
that
provides
for
18
percent
emissions
reductions
(
VOC
and/
or
NOx)
over
the
first
6
years
from
the
baseline
year
and
then
submit
within
3
years
after
designation
a
ROP
plan
that
provides
nine
percent
emissions
reductions
(
VOC
and/
or
NOx)
over
each
of
the
next
3­
year
periods
until
the
area's
attainment
date.

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
that
they
would
need
more
than
2
years
for
development,
adoption
and
submission
of
RFP
plans
for
the
increment
of
progress
over
the
first
6
years
after
the
baseline
year.
EPA
agrees
with
the
several
commenters
who
urged
that
3
years
was
more
consistent
with
the
Act.

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
allos
States
to
consider
RFP
in
conjunction
with
their
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
157
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
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
emission
reductions.

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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
158
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
by
mobile
source
emissions,
it
may
not
be
feasible
to
implement
control
measures
to
achieve
the
RFP
target
within
the
next
2
years
as
EPA
has
suggested.
The
commenter
suggested
that
EPA
have
policy
options
available
that
allow
areas
in
such
predicaments
to
maintain
approved
SIPs
if
emission
reductions
are
not
available
to
meet
RFP
PREDECISIONAL
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
159
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
two­
year
time
period
because
they
require
administrative
action
and
frequently
State
legislation
to
approve.
This
period
can
lengthen
when
proposed
measures
like
enhanced
vehicle
inspection
and
maintenance
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
160
with
a
procedural
requirement
of
the
Act
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
three
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
PREDECISIONAL
DRAFT
 
DO
NOT
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CITE
OR
DISTRIBUTE
draft
2/
6/
05
161
resources,
the
commenter
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
in
a
number
of
comments.
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;
however,
we
recommend
that
States
complete
their
RFP
plans
as
soon
as
possible
after
designation
to
provide
as
much
time
as
possible
for
sources
to
achieve
the
emission
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);
PREDECISIONAL
DRAFT
 
DO
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CITE
OR
DISTRIBUTE
draft
2/
6/
05
162
section
51.910(
a)(
4)
of
the
draft
regulatory
text;
section
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
emission
reductions
in
the
1990
Amendments
with
no
indication
that
they
should
not
be
credited
to
meeting
RFP
PREDECISIONAL
DRAFT
 
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OR
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draft
2/
6/
05
163
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
in
section
182(
b)(
1)(
D)
and
that
occur
after
the
baseline
emissions
inventory
year
would
be
creditable
for
the
RFP
requirement.
A
number
of
examples
demonstrating
emission
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
Act.
These
provisions
exclude
emission
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
reasonable
available
control
technology
(
RACT)
rules
as
required
by
CAA
section
182(
a)(
2)(
A).

°
Corrections
to
SIPs:
corrections
to
vehicle
inspection
maintenance
(
I/
M)
programs
for
areas
where
the
SIP
PREDECISIONAL
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DISTRIBUTE
draft
2/
6/
05
164
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
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
credit
towards
RFP
requirements
all
emission
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
on­
going
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:
EPA
acknowledges
this
comment
of
support
for
our
final
action.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
30For
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
emission
will
be
90
tons
per
day.
Thus
the
area
will
need
to
achieve
13.5
tons
per
day
165
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
nitrogen
oxide
(
NOx)
emissions
through
innovative
Combustion
Initiative
(
an
enhanced
efficiency
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.
30
Allowing
an
area
to
take
credit
PREDECISIONAL
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
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.

166
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:
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
PREDECISIONAL
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
167
in
section
182(
b)(
1)(
D).
They
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.

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
emission
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
reduction
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
168
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:
EPA
believes
that,
with
certain
exceptions,
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
Act
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
Act.

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
PREDECISIONAL
DRAFT
 
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draft
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05
169
if
they
result
from
measures
in
the
applicable
implementation
plan,
i.
e.,
the
approved
SIP,
from
rules
promulgated
by
EPA
or
from
a
permit
issued
under
Title
V;

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
requirement
that
the
reductions
result
from
measures
in
the
applicable
implementation
plan,
EPA
regulations,
or
a
Title
V
operating
permit
places
no
restriction
that
such
measures
must
be
measures
promulgated
by
EPA,
adopted
by
the
State,

or
in
a
Title
V
permit
issued
after
the
date
of
designation
or
after
the
baseline
year.
This
restriction
only
requires
that
the
measure
be
approved
into
the
SIP,
promulgated
by
EPA.
or
included
in
a
the
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.
PREDECISIONAL
DRAFT
 
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NOT
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OR
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draft
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05
170
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
amendments
to
the
CAA.

These
mandated
measures
included
reasonably
available
control
technology
requirements
under
section
182(
b)(
2),

stage
II
vapor
recovery
under
section
182(
b)(
3),
motor
vehicle
inspection
and
maintenance
under
sections
182(
b)(
4)

and
182(
c)(
3),
reformulated
gasoline
under
section
211(
k),

the
Tier
1
motor
vehicle
standards
under
Title
II.
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
and
in
many
cases
contain
required
implementation
dates
before
1996.
Congress
clearly
did
not
limit
credit
from
the
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
PREDECISIONAL
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171
the
1­
hour
standard
and
for
any
revised
standard.

In
summary,
the
statute
says
that
only
four
specific
categories
of
emission
reductions
are
restricted.
It
does
not
refer
to
or
include
any
post­
1990
rules'
emission
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
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
emission
reductions
other
than
reductions
from
the
four
categories
specified
in
the
Act
pursuant
to
section
182(
b)(
1)(
C).
Language
that
was
once
pertinent
to
the
schedule
of
the
1990
CAAA
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
PREDECISIONAL
DRAFT
 
DO
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QUOTE,
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OR
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draft
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05
172
proposed
rule
(
68
FR
32834);
section
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
emission
reductions
of
VOC
or
NOx
or
a
combination
of
both
to
meet
its
RFP
requirement.
However,
we
acknowledged
the
need
for
ensuring
equity
between
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
PREDECISIONAL
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173
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
attainment,
this
option
recognizes
that
there
may
be
only
a
short
amount
of
time
available
to
achieve
any
specified
emission
reduction
beyond
that
needed
to
demonstrate
attainment
and
therefore
would
not
require
a
showing
that
a
specified
amount
of
emission
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
PREDECISIONAL
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DISTRIBUTE
draft
2/
6/
05
31NOx
Substitution
Guidance.
December
15,
1993;
available
at
http://
www.
epa.
gov/
ttn/
oarpg/
t1pgm.
html)

174
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
emission
reductions
could
be
relied
on
to
meet
the
15
percent
reduction
requirement,
consistent
with
EPA's
NOx
substitution
policy.
31
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
emission
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
in
attainment
dates
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
PREDECISIONAL
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draft
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175
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
emission
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
emission
reductions
that
would
be
proportional
to
the
time
between
the
end
of
the
first
increment
(
in
2008)
to
the
attainment
date.
This
second
RFP
SIP
would
have
to
be
submitted
at
the
same
time
as
the
attainment
demonstration,

namely
within
3
years
after
designation.

b.
Summary
of
Final
Rule.

We
are
finalizing
rules
for
two,
rather
than
three,

categories
of
areas
based
on
the
Act'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
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176
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
the
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,
emission
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
PREDECISIONAL
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draft
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177
treated
similar
to
subpart
2
RFP
for
areas
classified
as
marginal
(
although
marginal
areas
are
not
required
under
the
Act
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
additional
increment
of
progress
no
less
than
PREDECISIONAL
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draft
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6/
05
178
the
amount
of
emission
reductions
that
would
be
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
three
years
or
less
should
have
no
separate
RFP
PREDECISIONAL
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draft
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6/
05
179
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.

Another
commenter
believed
that
a
15
percent
emissions
reduction
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
180
a
specified
percentage
even
where
such
reductions
would
yield
no
positive
environmental
benefits
is
an
unfortunate
result
of
the
Congress's
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.

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
areas
not
subject
to
15
percent
VOC
reductions
and
with
near­
term
attainment
dates.
The
measures
that
bring
about
near­
term
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
181
attainment
dates
to
ensure
interim
progress
towards
attainment
and
on
equity
grounds.

8.
How
should
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
standard?
[
Section
VI.
I.
9.
of
June
2,
2003
proposed
rule
(
68
FR
32835);
no
draft
regulatory
text;

section
51.910(
a)(
1)(
iii)
of
final
rule.]

a.
Background.
We
proposed
the
following
approach
to
address
this
issue.
The
State
would
have
to
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
the
newly
added
portion
of
the
8­
hour
standard
nonattainment
area).
Emissions
reductions
from
measures
in
the
1­
hour
ozone
SIP
that
are
achieved
after
the
8­
hour
ozone
NAAQS
baseline
year
could
count
(
subject
to
creditability
restrictions
as
discussed
above
in
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
182
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
tha
were
not
previously
subject
to
the
15
percent
ROP
requirement.

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
proposal.
The
final
rule
allows
States
the
choice
between
the
following
two
options.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
183
°
Option
1.
Develop
a
new
baseline
and
new
15
percent
VOC
ROP
emission
reduction
target
for
the
entire
newly
expanded
area.
Determine
that
emission
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.
VOC
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
emission
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
184
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
section
51.910(
a)(
1)(
ii),
EPA
has
modified
the
text
in
section
51.910(
a)(
1)(
ii)
of
the
final
rule
to
embody
this
change.
Then,
as
a
result,
these
areas
will
need
to
implement
either
"
whatever
reductions
are
necessary
for
attainment
by
its
attainment
date,"
if
moderate,
or
3
percent
NOx/
VOC
per
year
(
averaged
over
each
3­
year
period
out
to
the
attainment
date),
if
serious
and
above.
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.

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
the
EPA­
approved
15
percent
VOC­
only
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
185
that
portion
of
the
area
that
was
not
previously
subject
to
an
EPA­
approved
15
percent
VOC­
only
plan
approved.
Under
either
option,
the
15
percent
reduction
needed
to
meet
the
RFP
milestone
for
the
new
portion
of
the
nonattainment
area
can
come
from
the
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.
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
can
not
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
186
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
emission
reductions
to
make
up
the
3
percent
per
year
(
9
percent
averaged
over
3
years)
after
the
initial
6
years.

c.
Comments
and
responses
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.

Such
areas
should
simply
be
required
to
achieve
whatever
NOx
or
VOC
emission
reductions
are
needed
for
attainment.

Another
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
187
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
EPA­
approved
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
section
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
188
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
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
of
the
8­
hour
area
was
expanded
to
include
additional
areas
beyond
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
VOC­
only
reduction
plans:

°
The
first
scenario
is
where
the
1­
hour
boundaries
are
exactly
the
same
as
the
8­
hour
boundaries.
The
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
189
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
190
approved
15
percent
plan
have
been
added.

We
had
proposed
an
approach
not
to
require
a
15
percent
VOC­
only
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
191
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
baselne
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
section
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
192
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
VOConly
requirement.
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
can
not
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
193
Comment:
One
commenter
stated
that
draft
section
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"
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
194
emissions
from
the
new
areas
could
come
from
the
entire
nonattainment
area
to
satisfy
this
requirement.

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
VOConly
plan
either
the
plan
approved
for
the
1­
hour
standard
or
a
new
15
percent
RFP
plan
for
the
8­
hour
standrd,
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.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
32Memorandum
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.

195
9.
Will
EPA's
"
Clean
Data
Policy"
apply
for
purposes
of
8­

hour
RFP?
[
Section
VI.
I.
10
of
June
2,
2003
proposed
rule
(
68
FR
32835);
no
draft
or
final
regulatory
text.]

a.
Background.
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.
32
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.

As
proposed,
the
Clean
Data
Policy
will
apply
for
purposes
of
the
8­
hour
standard
in
the
same
manner
as
we
applied
it
for
the
1­
hour
standard.

c.
Comments
and
responses
Comment:
One
commenter
stated
that
EPA's
"
clean
data
policy"
is
unlawful
with
respect
to
both
the
1­
hour
and
8­

hour
NAAQS.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
196
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
Act
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:
EPA
believes
that
the
Clean
Data
Policy
comports
with
the
general
language
of
the
Act
in
regard
to
attainment
demonstrations,
rate
of
progress
plans.
The
Clean
Data
Policy,
issued
on
May
10,
1995,
provides
that
where
EPA
has
determined
that
an
area
has
attained
the
standard,
certain
submissions
are
not
required
(
e.
g.,
RFP)
for
so
long
as
the
area
remains
in
attainment.

As
stated
in
the
policy,
the
attainment
demonstration
and
RFP
requirements
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.

One
circuit
court
has
already
upheld
the
use
of
this
policy.
See
Sierra
Club
v.
EPA,
99
F.
3d
1551
(
10th
Cir.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
197
1996).

Comment:
Another
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
Cir.
1996),
as
supporting
the
Clean
Data
Policy.
The
commenter
contended
that
case
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.
Cir.
2002)
(
holding
that
EPA
is
without
authority
to
infer
exceptions
to
attainment
deadlines
and
to
explicit
Subpart
2
requirements
for
RFP
plans).

Response:
EPA
believes
that
the
comments
misconstrue
Sierra
Club
v.
EPA,
293
(
Sierra
Club
2002)
F.
3d
155
(
D.
C.
Cir.

2002).
At
issue
in
the
Sierra
Club
2002
case
was
whether:
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
198
(
1)
EPA
could
extend
an
area's
attainment
date
through
a
means
other
than
reclassification
(
which
is
not
associated
with
the
waiver
of
the
obligation
to
submit
the
attainment
demonstration
or
any
other
planning
requirement
through
some
method
other
than
a
bump­
up
or
1
year
extension
pursuant
to
section
181;
(
2)
whether
EPA
could
approve
the
RFP
plan
for
an
area
with
an
attainment
date
of
2005
with
only
a
demonstration
that
the
plan
contained
RFP
of
3
percent
per
year
through
1999;
and
(
3)
other
issues
which
are
also
not
germane
to
this
issue.
The
issue
of
whether
an
area
was
required
to
submit
an
attainment
demonstration
and/
or
an
RFP
plan
was
not
raised
or
decided
Sierra
Club
2002.
Rather
the
issues
under
consideration
were
the
content
of
the
RFP
demonstration
and
the
legality
of
extending
the
statutorilyprescribed
maximum
attainment
date.

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
air
quality
goals
will
be
met
(
i.
e.,

"
attain
the
NAAQS")
and
a
plan
to
obtain
reasonable
periodic
reductions
towards
attaining
that
air
quality
goal.

EPA
continues
to
believe
that
the
need
for
an
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
199
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
unnecessary
once
the
NAAQS
is
attained.
Likewise,
EPA
concludes
RFP
 
a
plan
for
annual
incremental
reductions
leading
to
attainment
 
is
also
unnecessary
once
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.

EPA
believes
that
Whitman
does
not
provide
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.

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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
200
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
Tribal
implementation
plans
(
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
source­
specific
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
201
No
comments
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);
section
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
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
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.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
202
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
203
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
Act.

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
Reid
Vapor
Pressure
(
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).

The
commenter
claimed
that
the
EPA
proposal
specifies
using
the
MOBILE6
command
NO
CAA
in
the
calculation
of
the
non­
creditable
emission
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.)
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
204
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.
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
33The
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
Act,
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
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)

205
reductions
occurring
upt
to
100
km
outside
the
area
and
for
NOx
reductions
occurring
up
to
200
km
outside
the
area
for
(
Statewide
where
a
regional
NOx
control
strategy
is
being
implemented.
The
policy
indicates
that
credit
may
be
taken
only
for
the
emission
reductions
from
measures
not
otherwise
mandated
by
the
Act.
As
explained
in
the
policy,
EPA
believes
that
this
additional
flexibility
for
crediting
reductions
outside
nonattainment
areas
is
consistent
with
the
Act.
33
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.
NOx
emission
reductions
from
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
206
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.
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.

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
Cir.
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
34U.
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.

207
are
reassessing
the
current
policy
in
light
of
concerns
raised
outside
the
rulemaking
process
that
indicated
a
potential
for
double
counting
of
emission
reductions
and
problematic
equity
issues.
34
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,

col.
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"
emission
reductions
from
sources
up
to
100
km
for
VOC
and
200
km
for
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
208
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.

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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
35EPA
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.

209
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's
intent
for
the
ROP
requirement
is
to
lower
ozone
concentrations
within
the
nonattainment
area.
It
is
consistent
with
that
intent
that
emission
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
Act
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.
35
Section
171(
1)
of
the
Act
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
210
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
reduction
strategies
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
emission
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
36U.
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.

211
feasibility.
36
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:
EPA
disagrees
with
the
comment
that
the
area
in
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
212
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
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
37Memorandum
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
.

38
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.
See,
69
FR
at
23861,
April
30,
2004.

213
our
designation
guidance.
37
After
identifying
such
areas
 
MSAs/
CMSAs/
single
counties
 
with
violating
monitors,
we
then
determined
which
nearby
jurisdictional
units
38
were
contributing
to
the
nearby
violation
even
those
not
monitoring
violations.
We
considered
each
of
11
applicable
factors
indentified
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
214
with
that
statutory
obligation
in
the
designation
process.

However,
there
may
be
emissions
from
areas
that
were
not
designated
as
part
of
the
NAA
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
Comment:
One
commenter
recommended
that
EPA
state,
either
in
the
preamble
to
this
rule
or
in
the
rule
itself,
that
any
VOC
emission
reductions
within
100
km
and
any
NOx
emission
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
section
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
215
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
Act
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.
EPA
believes
that
any
reductions
that
in
fact
result
in
improved
air
quality
within
the
nonattainment
area
can
be
credited
to
RFP
demonstrations.
Voluntary
emission
reductions
that
are
used
to
satisfy
RFP
requirements
 
or
any
requirements
under
the
Act
 
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
216
that
the
Act
limits
the
scope
of
creditable
emission
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
emission
reductions
outside
the
State
in
which
the
nonattainment
area
is
located.

13.
When
must
RFP
emission
reductions
be
achieved?

[
Section
VI.
I.
of
June
2,
2003
proposed
rule
(
several
locations
starting
at
68
FR
32832);
several
locations
including
section
51.910(
a)(
1)
of
the
draft
and
final
regulatory
text.]

a.
Background.
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,
section
51.910(
a)(
2)
of
the
draft
regulatory
text
provided,
"
For
each
area
classified
as
serious
or
higher
under
section
51.903,
the
State
must
submit
no
later
than
3
years
after
the
effective
date
of
the
area's
nonattainment
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
39With
this
rulemaking,
this
provision
is
codified
as
40
CFR
51.908(
d).

217
designation
a
SIP
revision
consistent
with
section
182(
c)(
2)(
B)
of
the
Act
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
Act,
but
must
be
"
as
expeditious
as
practicable"
but
no
later
than
the
outermost
date
provided
in
the
Act
(
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,
section
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,
section
section
51.90839
(
What
is
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
40With
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.

218
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
Act
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
I
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
outside
attainment
date
identified
in
the
statute
for
the
area's
classification.
40
Consistent
with
the
manner
in
which
ROP
plans
under
the
1­
hour
ozone
standard
were
developed,
the
RFP
baseline
for
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
41Note
that
40
CFR
51.900(
g)
defines
"
Attainment
year
ozone
season"
as
the
ozone
season
immediately
preceding
a
nonattainment
area's
attainment
date.

219
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.
41
As
noted
above,
section
182(
c)(
2)(
B)
requires
that
RFP
be
continued
out
to
the
attainment
date.

Therefore,
if
the
area's
last
increment
of
progress
(
out
to
the
area's
attainment
date)
would
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.

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
emission
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
Act
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
six­
year
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
220
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.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
221
Table
1
Reduction
Requirements
for
Periods
for
Areas
Classified
as
Serious
and
above
with
an
approved
1­
hour
15
percent
Plan
in
the
SIP
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
Table
1
Reduction
Requirements
for
Periods
for
Areas
Classified
as
Serious
and
above
with
an
approved
1­
hour
15
percent
Plan
in
the
SIP
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
222
5
Next
Full
3
year
Period
(
January
1,
2017
to
December
31,
2019)
9
percent
through
2019
attainment
year
9
percent
9
percent
6
Next
Full
3
year
Period
(
January
1,
2020
to
December
31,
2023)
6
percent
through
2021
attainment
year
9
percent
7
The
period
terminating
in
extreme
area
attainment
date
(
January
1,
2023
to
attainment
date
at
end
of
2024)
6
percent
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
223
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).
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
224
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
225
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.
[
Fed.
Reg
of
April
16,

1992;
57
FR
13507;
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
42Guidance
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.

4351
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
226
must
be
included
in
the
nonattainment
area's
attainment
demonstration
for
ozone
to
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]

EPA's
1992
guidance
on
calculating
the
15
percent
emission
target42
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[
43],
the
State
is
allowed
to
use
its
preenactment
banked
emissions
reduction
credits
to
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
227
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
CAAA
(
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,
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
228
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.

F.
Are
contingency
measures
required
in
the
event
of
failure
to
meet
a
milestone
or
attain
the
8­
hour
ozone
NAAQS?
[
Section
VI.
J.
of
June
2,
2003
proposed
rule
(
68
FR
32837);
no
draft
or
final
regulatory
text.]

1.
Background
Under
the
CAA,
nonattainment
areas
subject
only
to
subpart
1,
as
well
as
those
classified
under
subpart
2
as
moderate,
serious,
severe,
and
extreme
must
include
in
their
SIPs
contingency
measures
consistent
with
sections
172(
c)(
9)

and
182(
c)(
9),
as
applicable.
Contingency
measures
are
additional
controls
to
be
implemented
in
the
event
the
area
fails
to
meet
a
RFP
milestone
or
fails
to
attain
by
its
attainment
date.
These
contingency
measures
must
be
fully
adopted
rules
or
measures
which
are
ready
for
implementation
quickly
upon
failure
to
meet
milestones
or
attainment.

For
additional
background
information,
see
the
Proposal
(
68
FR
105,
June
2,
2003).
Other
related
information
can
be
PREDECISIONAL
DRAFT
 
DO
NOT
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CITE
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DISTRIBUTE
draft
2/
6/
05
229
found
in
the
following
applicable
guidance
documents:

°
"
Contingency
Measures
for
Ozone
and
Carbon
Monoxide
(
CO)
Redesignations,"
Memorandum
from
G.
T.
Helms,

Chief,
Ozone/
Carbon
Monoxide
Programs
Branch,
June
1,

1992
°
"
Procedures
for
Processing
Requests
to
Redesignate
Areas
to
Attainment,"
Memorandum
from
John
Calcagni,

Director,
Air
Quality
Management
Division,
September
4,

1992
°
"
Guidance
for
Growth
Factor,
Projections,
and
Control
Strategies
for
the
15
percent
Rate­
of­
Progress
Plans,"

(
EPA­
452/
R­
93­
002),
March
1993
°
"
Early
Implementation
of
Contingency
Measures
for
Ozone
and
Carbon
Monoxide
(
C))
Nonattainment
Areas,"

Memorandum
from
G.
T.
Helms,
Chief,
Ozone/
Carbon
Monoxide
Programs
Branch,
August
13,
1993
°
"
Guidance
on
Issues
Related
to
the
15
Percent
Rate­
of­

Progress
Plans,"
Memorandum
from
Michael
H.
Shapiro,

Acting
Assistant
Administrator
for
Air
and
Radiation
to
the
Regional
Division
Directors,
August
23,
1993
°
"
Clarification
of
Issues
Regarding
the
Contingency
Measures
that
are
due
on
November
15,
1993
for
Moderate
and
Above
Ozone
Nonattainment
Areas,"
Memorandum
from
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
2/
6/
05
230
D.
Kent
Berry,
Acting
Director,
Air
Quality
Management
Division,
November
8,
1993
°
"
Guidance
on
the
Post
1996
Rate­
of­
Progress
Plan
(
ROP)

and
Attainment
Demonstration,"
(
EPA­
452/
R­
93­
015),

January
1994
2.
Summary
of
final
rule
Contingency
measures
are
required
to
be
implemented
in
the
event
of
failure
to
meet
a
milestone
or
attain
the
8­

hour
ozone
NAAQS.
We
are
adopting
the
approach
taken
in
our
proposal.
All
subpart
1
and
subpart
2
areas
other
than
marginal
areas
need
contingency
measures.
The
contingency
measures
SIP
should
accompany
the
attainment
demonstration
SIP
required
for
submission
by
June
15,
2007.

It
should
be
noted
that
the
Act
requires
States
to
identify
contingency
measures
that
will
go
into
effect
without
further
action
on
the
part
of
the
federal
government.
We
have
recognized,
however,
that
some
additional
State
or
local
action
may
be
necessary
(
such
as
notification
of
sources)
before
implementation.

Under
Subpart
2,
areas
that
are
nonattainment
for
the
8­
hour
ozone
NAAQS
that
have
unused
adopted
contingency
measures
for
the
1­
hour
ozone
NAAQS
may
use
those
measures
as
appropriate
as
contingency
measures
for
the
8­
hour
NAAQS.
PREDECISIONAL
DRAFT
 
DO
NOT
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CITE
OR
DISTRIBUTE
draft
2/
6/
05
231
For
Subpart
1,
States
should
follow
the
same
guidance
used
for
Subpart
2
areas.
We
intend
to
provide
any
additional
guidance
if
needed.

3.
Comments
and
Responses
Comment:
Two
commenters
raised
concerns
about
the
difficulty
some
areas
may
have
in
identifying
what
they
referred
to
as
"
reserve"
or
"
unused"
measures
for
the
1­
hour
standard
that
could
be
used
as
contingency
measures
for
the
8­
hour
standard
for
subpart
2
areas.
These
commenters
requested
protection
for
areas
that
have
no
"
leftover"

measures
to
be
used
in
the
event
of
failure
to
meet
the
milestone.
The
commenters
contended
that
EPA
needs
to
have
policies
that
do
not
penalize
areas
that
have
implemented
all
feasible
measures
to
attain
the
standard
and
may
not
have
any
identified
contingency
measures
left.

Response:
The
commenters
appear
to
be
asking
EPA
to
drop
the
requirement
for
a
nonattainment
area
SIP
to
contain
contingency
measures.
The
commenters
have
not
provided
a
legal
rationale
why
they
believe
it
is
possible
to
do
this.

The
purpose
of
contingency
measures
is
to
have
a
quickly
implementable
backup
plan
of
action
should
primary
measures
fail
to
bring
a
nonattaining
area
to
the
requisite
level
(
be
it
attainment
of
the
NAAQS
or
meeting
a
RFP
milestone).
It
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
232
is
up
to
each
State
to
determine
what
measures
the
State
will
commit
to
implement
should
failure
occur.
We
note
that
States
may
rely
on
regional
and
national
control
measures
as
well
as
local
control
measures
to
meet
the
contingency
measure
obligation.

A
list
of
example
contingency
measures
has
been
provided.
See
section
9.5
of
Guidance
for
Growth
Factor,

Projections,
and
Control
Strategies
for
the
15
percent
Rateof
Progress
Plans,"
(
EPA­
452/
R­
93­
002),
March
1993.
The
States
have
the
responsibility
of
determining
what
contingency
measures
are
most
appropriate
for
their
area(
s).

To
allow
nonattaining
areas
with
seemingly
few
potential
contingency
measures
to
opt
out
of
the
contingency
measure
requirement
is
counter
to
the
contingency
measure
provision
in
the
CAA.
EPA
does
not
see
any
way
to
interpret
the
clear
language
of
the
statute
other
than
as
requiring
contingency
measures
in
all
nonattainment
areas
other
than
marginal
subpart
2
areas.
It
should
also
be
noted
that
the
Act's
requirement
for
an
area's
SIP
to
demonstrate
attainment
by
the
attainment
date
is
not
limited
to
"
feasible"
or
reasonably
available
control
measures.

Comment:
One
commenter
alleged
EPA's
proposal
to
allow
Federal
measures
that
result
in
additional
emission
PREDECISIONAL
DRAFT
 
DO
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draft
2/
6/
05
233
reductions
beyond
RFP
or
attainment
to
qualify
as
contingency
measures
is
legally
invalid.
The
commenter
further
stated
that
contingency
measures
must
consist
of
control
requirements
that
will
be
taken
off
the
shelf
and
undertaken
if
and
when
an
RFP
or
attainment
failure
occurs;

in
other
words,
new
measures
not
federal
or
local
measures
that
already
exist.

Response:
The
CAA
states
that
contingency
measures
are
to
be
"
specific
measures
to
be
undertaken
if
the
area
fails
to
make
reasonable
further
progress,
or
to
attain
.
.
.
by
the
attainment
date."
In
guidance,
EPA
interprets
this
provision
to
mean
that
contingency
measures
must
be
fully
adopted
rules
or
measures
which
are
ready
for
implementation
quickly
upon
failure
to
meet
milestones
or
attainment.
This
could
include
federal
measures
and
local
measures
already
scheduled
for
implementation.

EPA
has
approved
numerous
SIPs
under
this
interpretation
 
i.
e.,
that
use
as
contingency
measures
one
or
more
federal
or
local
measures
that
are
in
place
and
provide
reductions
that
are
in
excess
to
the
attainment
demonstration
or
RFP
plan.
(
62
FR
15844,
April
3,
1997;
62
FR
66279,
December
18,
1997;
66
FR
30811,
June
8,
2001;
66
FR
586
and
66
FR
634,
January
3,
2001.)
The
key
is
that
the
PREDECISIONAL
DRAFT
 
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OR
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draft
2/
6/
05
234
statute
requires
extra
reductions
that
are
not
relied
on
for
RFP
or
attainment
and
that
are
in
the
demonstration
to
provide
a
cushion
while
the
plan
is
revised
to
meet
the
missed
milestone.
In
other
words,
contingency
measures
are
intended
to
achieve
reductions
over
and
beyond
those
relied
on
in
the
attainment
and
RFP
demonstrations.
Nothing
in
the
statute
precludes
a
State
from
implementing
such
measures
before
they
are
triggered.
In
fact,
a
recent
court
ruling
upheld
contingency
measures
that
were
previously
required
and
implemented
where
they
were
in
excess
of
the
attainment
demonstration
and
RFP
SIP.
See
LEAN
v.
EPA,
382
F.
3d
575
5th
Cir.
2004.

Comment:
One
commenter
supported
EPA's
proposal
to
continue
to
observe
existing
policies
regarding
contingency
measures
for
areas
covered
under
subpart
2
for
the
8­
hour
standard.
Additionally,
the
commenter
anticipated
that
EPA's
additional
guidance
on
the
contingency
measure
requirement
for
Subpart
1
will
be
patterned
after
the
subpart
2
requirement.

Response:
EPA
acknowledges
the
commenter's
support
of
our
proposal
regarding
contingency
measures.
As
to
the
commenter's
anticipation
of
how
additional
guidance
will
be
patterned,
as
stated
in
both
our
proposed
and
final
rule
PREDECISIONAL
DRAFT
 
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OR
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draft
2/
6/
05
235
regarding
subpart
1,
we
intend
to
develop
guidance
as
needed.

G.
What
requirements
should
apply
for
RACM
and
RACT
for
8­

hour
ozone
nonattainment
areas?
[
Section
VI.
K.
of
June
2,

2003
proposed
rule
(
68
FR
32837);
section
51.912
in
draft
and
final
regulatory
text.]

The
first
subsection
of
this
section
covers
RACT
and
the
second
subsection
covers
RACM.

1.
Reasonably
Available
Control
Technology
(
RACT)

a.
Background
As
described
in
more
detail
in
the
June
2
proposal,

subpart
1
of
part
D
includes
a
requirement
that
an
attainment
plan
provide
for
the
implementation
of
all
RACM
as
expeditiously
as
practicable,
including
such
reductions
that
may
be
obtained
through
RACT.
Under
subpart
2,

marginal
areas
are
required
to
correct
pre­
1990
RACT
requirements
and
new
RACT
requirements
are
specified
for
moderate
and
above
ozone
nonattainment
areas.
Additionally,

States
must
adopt
RACT
for
all
areas
in
an
ozone
transport
region
(
OTR).
The
RACT
requirement
applies
to
both
ozone
precursors
 
NOx
and
VOC.
Since
1990,
we
have
issued
guidance
documents
on
the
RACT
requirements
in
subpart
2.

Prior
to
enactment
of
the
CAA
Amendments
of
1990,
EPA
also
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
236
issued
detailed
guidance
documents
on
RACT
for
ozone
nonattainment
area
SIPs.

In
the
period
prior
to
enactment
of
the
1990
CAA
Amendments,
only
the
general
requirements
for
RACM
and
RACT
existed.
Also,
prior
to
the
1990
Amendments
EPA
had
issued
control
technique
guideline
(
CTG)
documents
to
provide
presumptive
norms
for
RACT
for
VOC
controls
for
States
to
follow
in
adopting
RACT
for
ozone
nonattainment
areas.
In
1990,
Congress
specified
more
detailed
RACT
provisions
and
explicitly
required
RACT
for
NOx
as
well
as
for
VOC.
Also
in
1990,
section
183(
c)
required
EPA
to
issue
technical
documents
which
identify
alternative
control
techniques
(
ACT
documents)
for
large
stationary
sources
of
NOx
and
VOC.
The
EPA
completed
12
ACT
documents
for
VOC
source
categories.

Over
a
five
year
period,
1991­
94,
EPA
issued
nine
ACT
guideline
documents
for
large
stationary
sources
of
NOx.
In
2000,
updates
to
the
NOx
ACT
documents
were
completed
for
stationary
internal
combustion
engines
and
cement
kilns.

Although
the
ACT
documents
do
not
set
a
presumptive
RACT
level
as
do
CTGs,
they
are
intended
to
help
States
in
making
RACT
determinations.

Section
183(
c)
of
the
CAA
also
requires
EPA
to
"
revise
and
update
such
documents
[
i.
e.,
CTGs
and
ACTs]
as
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
237
Administrator
determines
necessary."
The
EPA
intends
in
the
future
to
develop
updated
technology
guidance,
especially
with
respect
to
source
categories
emitting
multiple
pollutants
in
large
amounts.
In
addition,
EPA
will
be
considering
related
recommendations
from
the
Clean
Air
Act
Advisory
Committee
that
are
expected
in
January
2005
in
response
to
the
recent
National
Research
Council
report
on
Air
Quality
Management
in
the
United
States
(
January
2004).

In
the
June
2,
2003
proposal,
we
proposed
several
requirements
with
respect
to
RACT.
For
subpart
1
areas,
we
proposed
several
options.
We
proposed
in
one
option
to
interpret
the
CAA
in
a
manner
similar
to
that
under
subpart
2
by
requiring
areas
covered
under
subpart
1
to
face
different
RACT
requirements
based
on
the
magnitude
of
the
ozone
problem
in
the
area
(
i.
e.,
the
area's
design
value).

In
another
option
we
proposed
that
RACT
would
be
met
if
the
area
were
able
to
demonstrate
attainment
of
the
standard
as
expeditiously
as
practicable
with
emission
control
measures
in
the
SIP.
We
also
proposed
as
an
early
attainment
incentive
that
RACT
would
be
met
in
an
area
which
demonstrates
attainment
within
3
years
and
submits
the
demonstration
within
1
year.

For
subpart
2
areas,
we
proposed
to
apply
RACT
as
PREDECISIONAL
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DO
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draft
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05
238
specified
in
subpart
2.
We
proposed
the
RACT
submittal
dates
for
subpart
1
areas
would
be
either
the
same
as
the
submittal
date
for
the
attainment
plan
(
within
3
years)
or
the
same
as
the
deadline
for
subpart
2
areas
(
within
2
years).
In
addition,
we
proposed
the
date
for
affected
sources
to
implement
RACT
in
subpart
2
areas
would
be
thirty
months
after
the
required
submittal
date.
We
also
proposed
that
States
may
use
current
EPA
guidance
in
making
RACT
determinations;
consequently,
in
some
cases,
sources
previously
evaluated
under
the
1­
hour
ozone
RACT
requirement
and
sources
subject
to
the
NOx
SIP
Call
cap­
and­
trade
program
could
be
determined
to
meet
the
8­
hour
ozone
RACT
requirement.

b.
Summary
of
Final
Rule.

For
subpart
1
areas
that
do
not
request
an
attainment
date
extension
(
beyond
5
years
after
designation),
RACT
will
be
met
with
control
requirements
sufficient
to
demonstrate
that
the
NAAQS
is
attained
as
expeditiously
as
practicable.

The
RACT
submittal
date
for
these
areas
is
the
same
as
the
submittal
date
for
the
attainment
plan.
This
submission
date
is
no
later
than
three
years
after
designation.

For
subpart
1
areas
that
request
an
attainment
date
extension
(
beyond
5
years
after
designation),
subpart
2
PREDECISIONAL
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draft
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05
239
moderate
and
above
areas,
and
areas
within
an
Ozone
Transport
Region,
RACT
is
required
under
subpart
2
and
the
RACT
submittal
date
is
two
years
after
designation.
States
must
require
sources
to
implement
RACT
no
later
than
the
first
ozone
season
or
portion
thereof
which
occurs
30
months
after
the
required
submittal
date.

Where
RACT
applies
(
except
certain
subpart
1
areas,
as
described
above,
and
except
certain
sources
subject
to
the
NOx
SIP
Call,
as
described
below),
State
SIPs
implementing
the
8­
hour
standard
must
assure
that
RACT
is
met,
either
through
a
certification
that
previously
required
RACT
controls
represent
RACT
for
8­
hour
implementation
purposes
or
through
a
new
RACT
determination.
States
may
use
existing
EPA
guidance
in
making
RACT
determinations.
Where
a
State
has
adopted
and
EPA
has
approved
a
control
measure
as
RACT
for
a
specific
major
stationary
source
or
source
category
for
the
1­
hour
ozone
NAAQS,
and
absent
data
indicating
that
the
previous
RACT
determination
is
no
longer
appropriate
in
lieu
of
a
RACT
rule,
the
State
may
submit
a
certification
that
the
source
is
subject
to
RACT.
Such
certification
shall
be
accompanied
by
appropriate
supporting
information,
such
as
consideration
of
updated
EPA
guidance
and
other
relevant
information
such
as
information
received
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
240
from
public
commenters.

For
purposes
of
meeting
the
NOx
RACT
requirement
in
areas
located
in
a
State
subject
to
the
NOx
SIP
Call,
the
State
may
conduct
case­
by­
case
RACT
determinations
or
consider
the
RACT
SIP
requirements
met
for
sources
subject
to
the
State's
emission
cap­
and­
trade
program
where
the
cap­
and­
trade
program
has
been
approved
by
EPA
as
part
of
a
SIP
meeting
the
NOx
SIP
Call
requirements.
Additionally,

RACT
is
considered
met
for
cement
kilns
and
stationary
internal
combustion
engines
that
are
subject
to
a
SIP­
approved
obligation
to
install
and
operate
controls
that
are
expected
to
achieve
at
least
a
30
percent
and
82
percent
reduction,
respectively,
from
uncontrolled
levels.
As
new
or
updated
EPA
RACT
guidance
becomes
available,
States
should
consider
the
new
information
in
their
RACT
determinations.

States
are
free
to
conduct
case­
by­
case
RACT
determinations
or
RACT
determinations
or
certifications
for
groups
of
sources,
at
their
discretion.
A
State
may
meet
the
NOx
RACT
requirement
by
showing
that
the
weighted
average
emission
rate
from
sources
in
the
nonattainment
area
subject
to
RACT
 
including
sources
subject
to
the
NOx
SIP
Call
requirements
 
meet
RACT
requirements.
PREDECISIONAL
DRAFT
 
DO
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QUOTE,
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OR
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draft
2/
6/
05
241
It
should
be
noted
that
for
purposes
of
meeting
the
RACT
obligations
under
section
182(
b)(
2)(
C)
of
the
Act
for
major
stationary
sources
of
VOCs
and
under
section
182(
f)
of
the
Act
for
major
stationary
sources
of
NOx,
the
definition
of
major
stationary
source
in
section
302
of
the
Act,
as
modified
by
the
major
source
definition
in
either
section
182(
b),
(
c),
(
d)
or
(
e)
of
the
Act
as
applicable
to
the
area's
classification,
applies.

c.
Comments
and
responses
Comments:
For
subpart
2
ozone
nonattainment
areas,

several
States
expressed
agreement
with
the
proposed
approach
for
implementing
RACT
consistent
with
section
182
of
the
CAA.

Response:
The
EPA
agrees
with
these
comments.

Comments:
For
subpart
1
ozone
nonattainment
areas,
EPA
received
several
comments
for
and
against
the
options
proposed
for
addressing
RACT.

Several
State
and
industry
commenters
supported
EPA's
proposed
approach
that
RACT
would
be
met
if
the
area
is
able
to
demonstrate
attainment
of
the
standard
as
expeditiously
as
practicable
with
emission
control
measures
in
the
SIP.

The
reasons
provided
by
these
commenters
were
generally
as
follows:
States
should
be
able
to
use
their
discretion
in
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
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6/
05
242
determining
which
control
strategies
are
the
most
effective
in
addressing
a
particular
area's
air
quality
problem;

flexibility
is
needed
as
areas
differ
in
sensitivity
to
NOx
and
VOC
reductions;
EPA's
regional
modeling
shows
these
requirements
are
unnecessary
in
many
areas;
and
many
of
these
areas
violate
the
ozone
standard
primarily
or
entirely
due
to
transport.

The
EPA
also
received
comments,
primarily
from
several
States
and
environmental
groups,
opposing
the
approach
that
RACT
would
be
met
by
control
measures
that
are
part
of
a
SIP
demonstrating
attainment
of
the
standard
as
expeditiously
as
practicable.
These
commenters
made
the
following
points:

since
section
172(
c)(
1)
of
the
Act
explicitly
mandates
RACT
"
at
a
minimum"
in
all
nonattainment
areas,
Congress
plainly
intended
to
require
RACT
as
a
floor
level
of
control
technology
in
addition
to
any
measures
needed
to
demonstrate
timely
attainment;
even
where
RACT
does
not
advance
attainment,
it
is
needed
in
order
to
reduce
the
severity
and
number
of
violations;
under
this
approach,
the
statutory
RACT
provisions
add
nothing
to
the
statutory
attainment
mandate
 
which
violates
basic
canons
of
statutory
interpretation;
RACT
in
nonattainment
areas
will
substantially
reduce
transport
of
ozone
and
ozone
PREDECISIONAL
DRAFT
 
DO
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draft
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6/
05
243
precursors;
for
equity
reasons,
sources
in
similar
areas
should
be
subject
to
the
same
control;
and
RACT
is
a
useful
tool
that
should
not
be
abandoned
through
flexibility
mechanisms.

Response:
The
general
RACT
provision
under
subpart
1
in
the
statute,
is
found
in
section
172(
c)(
1).
It
is
a
portion
of
the
RACM
provision
found
in
that
same
section.
Our
longstanding
interpretation
of
the
RACM
provision
is
that
areas
need
only
submit
such
RACM
as
will
contribute
to
timely
attainment
and
meet
RFP,
and
that
measures
which
might
be
available
but
would
not
advance
attainment
or
contribute
to
RFP
need
not
be
considered
RACM.
This
interpretation
has
been
upheld
in
several
recent
court
cases.
See
Sierra
Club
v.
EPA,
294
F.
39
155,
162
(
DC
Cir.
2002)
(
concerning
the
Metropolitan
Washington,
D.
C.,
attainment
demonstration)
and
Sierra
Club
v.
EPA,
No.
01­
60537
(
5th
Cir.
2002)
(
concerning
the
Beaumont
attainment
demonstration).
Since
subpart
1
RACT
is
a
portion
of
RACM,
these
cases
also
support
a
conclusion
that,
where
we
are
dealing
only
with
section
172
RACT,
it
is
reasonable
to
require
only
such
RACT
as
will
meet
RFP
and
advance
attainment.
In
view
of
these
court
cases,
EPA
disagrees
with
the
comments
listed
above
opposing
the
approach
that,
in
subpart
1
areas,
RACT
would
be
met
by
PREDECISIONAL
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05
244
control
measures
in
a
SIP
demonstrating
attainment
of
the
standard
as
expeditiously
as
practicable
and
meeting
RFP.

The
EPA
generally
agrees
with
comments
that
States
should
have
flexibility
to
determine
which
control
strategies
are
the
most
effective
in
reaching
attainment
as
expeditiously
as
practicable
and
providing
for
RFP,
and
the
CAA
gives
primary
authority
to
States
and
local
governments
to
select
the
mix
of
controls
necessary
to
meet
the
NAAQS.

In
addition,
EPA
believes
that
section
172(
c)
is
not
the
appropriate
section
of
the
CAA
to
address
the
transport
of
ozone
and
ozone
precursors;
EPA
has
conducted
and
is
conducting
rulemaking
pursuant
to
sections
110
and
126
for
that
purpose.

Finally,
EPA
agrees
with
commenters
who
suggest,
for
equity
reasons,
that
sources
in
similar
areas
should
be
subject
to
the
same
control.
In
the
proposal,
EPA
suggested
subpart
1
and
2
areas
with
the
8­
hour
ozone
design
values
above
91
ppb
should
all
be
required
to
meet
RACT.
The
EPA
also
proposed
that
RACT
would
be
met
in
an
area
which
demonstrates
attainment
within
3
years
and
submits
the
demonstration
within
1
year.
In
the
final
rule,
EPA
has
addressed
equity
concerns
by
taking
portions
of
these
two
proposals,
such
that
subpart
1
and
2
areas
with
attainment
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
245
deadlines
longer
than
5
years
after
designation
must
meet
the
same
RACT
requirements.
We
believe
(
longer
than)
5
years
is
more
appropriate
than
the
3
years
proposed
for
this
requirement
since
this
approximates
the
maximum
attainment
date
for
subpart
2
(
moderate)
areas
subject
to
RACT
and
since
this
approach
is
consistent
with
the
manner
ROP/
RFP
requirements
are
treated
in
the
final
rule.

Therefore,
in
subpart
1
areas
that
do
not
request
an
extension
beyond
the
initial
5
years
after
designation,
the
final
rule
indicates
that
RACT
would
be
met
by
the
emission
control
measures
in
a
SIP
that
demonstrates
attainment
of
the
standard
as
expeditiously
as
practicable
and
meets
RFP.

In
addition,
the
final
rule
requires
subpart
1
areas
with
maximum
attainment
deadlines
longer
than
5
years
after
designation
to
meet
the
same
RACT
requirements
as
subpart
2
areas.
This
approach
minimizes
the
RACT
inequity
with
subpart
2
areas
and
provides
flexibility
for
subpart
1
areas
demonstrating
attainment
within
5
years.

Comment:
One
commenter
believes
that
new
marginal
nonattainment
areas
should
be
subject
to
RACT
under
the
8­

hour
standard
just
as
they
would
have
been
subject
to
RACT
immediately
prior
to
the
CAAA
of
1990.

Response:
Section
182(
a)
provides
that
marginal
and
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
246
higher
classified
areas
for
the
1­
hour
standard
with
pre­

1990
RACT
obligations
had
to
submit
corrections
to
their
RACT
rules
within
6
months
after
classification
under
the
1990
CAAA.
To
the
extent
that
any
8­
hour
ozone
nonattainment
areas
did
have
this
obligation,
they
already
met
it.
See
footnote
60
in
the
June
2,
2003
proposal.
The
CAA
does
not
require
RACT
for
marginal
areas
other
than
the
obligation
to
"
correct"
pre­
1990
RACT
requirements.

Comments:
The
EPA
received
several
comments
for
and
against
the
proposal
that
States
may
use
a
prior
RACT
determination
with
respect
to
the
1­
hour
ozone
standard
for
purposes
of
meeting
the
RACT
requirements
for
the
8­
hour
ozone
standard.
Further,
EPA
received
comments
on
the
proposal
that
a
new
RACT
determination
is
required
in
cases
where
the
initial
RACT
analysis
under
the
1­
hour
standard
for
a
specific
source
or
source
category
concluded
that
no
additional
controls
were
necessary.

Several
State
and
industry
commenters
supported
EPA's
proposed
approach
that
a
prior
RACT
analysis
under
the
1­

hour
ozone
standard
should
meet
RACT
requirements
under
the
8­
hour
standard
where
major
sources
or
source
categories
were
previously
reviewed
and
controls
applied
to
meet
RACT.

These
commenters
stated
that
RACT
is
not
specific
to
any
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
247
particular
ozone
standard,
such
that
once
a
source
has
met
RACT,
it
has
met
RACT,
whether
or
not
the
ozone
standard
is
revised
to
become
more
(
or
less)
stringent;
just
as
with
the
15
percent
VOC
requirement,
the
statute
provides
no
basis
for
duplicative
imposition
of
RACT;
and
there
is
no
basis
in
the
statute
to
read
in
a
new
requirement
for
RACT.
In
addition,
some
industry
commenters
stated
that
electric
generating
units
which
meet
Title
IV
NOx
control
requirements
would
also
meet
the
NOx
RACT
requirement.

The
EPA
also
received
comments
from
several
States
opposing
EPA's
proposed
approach.
These
commenters
believe
the
NOx
and
VOC
guidance
is
too
old,
needs
updating
and,
in
the
case
of
NOx
controls,
the
improvement
over
the
last
three
years
has
been
dramatic
with
controls
previously
considered
to
be
Best
Available
Control
Technology
(
BACT)

(
and
therefore
generally
considered
at
the
time
to
be
more
stringent
than
RACT)
are
now
considered
to
be
merely
RACT.

In
addition,
one
State
suggested
the
presumptive
RACT
level
should
be
revised
to
at
least
85
percent
control
or
that
NOx
RACT
should
be
defined
as
up
to
$
10,000/
ton
of
pollutant
removed.

Two
States
disagreed
with
EPA's
proposal
that
a
new
RACT
determination
should
be
required
in
cases
where
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
248
initial
RACT
analysis
under
the
l­
hour
NAAQS
found
that
no
additional
controls
were
necessary
for
a
specific
source
or
source
category.
They
indicated
such
re­
analysis
would
be
an
unwise
use
of
resources
because
it
would
not
yield
significant
benefits.
Further,
they
do
not
agree
that
a
RACT
determination
is
warranted
for
major
VOC
or
NOx
sources
not
in
existence
during
the
previous
RACT
determination,

because
new
sources
in
1­
hour
nonattainment
areas
have
been
permitted
pursuant
to
the
requirements
for
NSR
and,
where
applicable,
have
already
been
subject
to
more
stringent
control
requirements.

Response:
In
1992,
EPA
set
presumptive
NOx
RACT
for
boilers
as
combustion
modification,
consistent
with
Title
IV
acid
rain
requirements.
For
all
other
NOx
stationary
source
categories,
EPA
guidance
in
1994
indicated
States
should
consider
in
their
RACT
determinations
technologies
that
achieve
30­
50
percent
reduction
within
a
cost
range
of
$
160­

1300
per
ton
of
NOx
removed.
In
the
NOx
SIP
Call
Rule,
we
reviewed
all
major
NOx
source
categories
and
stated
in
the
final
rule
that
the
NOx
SIP
Call
controls,
at
less
than
$
2,000/
ton,
represent
reductions
beyond
those
required
by
RACT.
We
cannot
agree
with
the
suggestion
of
one
State
that
EPA's
RACT
guidance
should
be
revised
to
reflect
85
percent
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
249
control
and
$
10,000/
ton
of
pollutant
removed
because
the
comment
lacked
supporting
documentation
that
these
values
represent
feasible
control
levels
for
the
many
source
categories
affected
by
the
RACT
program.

Many
areas
subject
to
the
major
source
RACT
requirement
under
the
8­
hour
ozone
standard
have
previously
addressed
the
RACT
requirement
with
respect
to
the
1­
hour
ozone
standard.
For
example,
major
sources
located
in
States
of
the
Ozone
Transport
Commission
(
OTC)
were
subject
to
the
NOx
RACT
requirement
in
the
mid­
1990s.
We
believe
that,
in
many
cases,
a
new
RACT
determination
under
the
8­
hour
standard
would
result
in
the
same
or
similar
control
technology
as
the
initial
RACT
determination
under
the
1­
hour
standard
because
the
fundamental
control
techniques,
as
described
in
the
CTGs
and
ACTs,
are
still
applicable.
In
cases
where
controls
were
applied
due
to
the
1­
hour
ozone
RACT
requirement,
we
expect
the
incremental
emission
reductions
from
application
of
a
second
round
of
controls
would
be
small
and
would
not
be
cost­
effective.
In
such
cases,
EPA
believes
the
cost
per
ton
of
NOx
removed
associated
with
installing
a
second
round
of
RACT
controls
(
and
perhaps
the
removal
of
initial
RACT
controls)
is
likely
to
be
beyond
the
RACT
levels
in
our
current
guidance
($
160­
1300/
ton).
In
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
250
contrast,
a
RACT
analysis
for
uncontrolled
sources
would
be
much
more
likely
to
find
that
RACT
level
controls
are
economically
and
technically
feasible.

The
CTGs
and
ACTs
for
VOC
were
completed
over
a
period
from
the
late
1970s
to
mid­
1990s
and
have
not
been
updated.

The
CTGs
are
still
used
to
presumptively
define
VOC
RACT.

The
EPA
issued
NOx
ACT
documents
between
1992
and
1995.
In
September
2000,
updates
to
the
NOx
ACT
documents
were
completed
for
stationary
internal
combustion
engines
and
cement
kilns.
The
NOx
and
VOC
ACTs
describe
available
control
techniques
and
their
cost
effectiveness,
but
do
not
define
presumptive
RACT
levels
as
the
CTGs
do.
Updating
the
ACTs
would
not,
by
itself,
change
EPA's
NOx
or
VOC
RACT
guidance,
but
it
could
provide
information
that
would
lead
to
a
new
conclusion
as
to
which
control
measures
constitute
RACT
for
a
specific
source
or
source
category.
Since
RACT
can
change
over
time
as
new
technology
becomes
available
or
the
cost
of
existing
technology
decreases,
EPA
does
not
agree
with
comments
that
once
a
source
has
met
RACT,
it
has
met
RACT
whether
or
not
the
ozone
standard
is
revised.

We
agree
that
progress
has
been
made
in
improving
the
cost
effectiveness
of
some
NOx
and
VOC
controls.
States
and
other
interested
parties
should
consider
available
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
251
information
that
may
supplement
the
CTG
and
ACT
documents.

In
cases
where
additional
information
is
presented,
for
example,
as
part
of
notice­
and­
comment
rulemaking
on
a
RACT
SIP
submittal,
States
(
and
EPA)
would
necessarily
consider
the
additional
data
in
reviewing
what
control
obligation
is
consistent
with
RACT.
For
example,
as
part
of
the
1998
NOx
SIP
Call
and
2004
CAIR
rulemakings,
EPA
developed
and
used
control
and
cost
data
for
large
boilers
and
turbines
based
on
newer
information
than
contained
in
the
ACTs.
Similarly,

we
encourage
States
to
use
the
latest
information
available
in
making
RACT
determinations,
whether
it
is
in
CTGs,
ACTs,

or
elsewhere.

The
EPA
agrees
that
it
is
more
efficient
for
EPA
to
broadly
assess
what
is
RACT
for
a
specific
source
category
than
for
States
to
conduct
source­
by­
source
RACT
determinations,
especially
considering
that
States
need
to
initiate
RACT
programs
in
the
near
future
(
as
discussed
in
a
separate
comment/
response).
The
EPA's
current
RACT
guidance
may
be
used
for
purposes
of
the
8­
hour
standard.
At
the
same
time,
we
agree
with
comments
that
many
of
the
CTGs/
ACTs
have
not
been
revised
since
issued
and
thus
may
not
provide
the
most
accurate
picture
of
current
control
options.

Therefore,
we
believe
States
must
consider
new
information
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
252
that
has
become
available
and
certify
that
a
1­
hour
ozone
RACT
determination,
even
where
controls
were
required,
still
represents
an
appropriate
RACT
level
of
control
for
the
8­

hour
ozone
program.
In
the
alternative,
the
State
should
revise
the
SIP
to
reflect
a
modified
RACT
requirement
for
specific
sources
or
source
categories.
We
intend
to
develop
updated
technology
guidance,
especially
with
respect
to
source
categories
emitting
multiple
pollutants
in
large
amounts.
States
should
consider
the
updated
guidance
in
any
RACT
determinations
or
certifications
that
have
not
been
issued
as
of
the
time
such
an
update
becomes
available.

In
summary,
we
believe
the
current
NOx
and
VOC
RACT
guidance,
including
CTGs
and
ACTs,
may
continue
to
be
used
by
States
in
making
RACT
determinations
with
respect
to
the
8­
hour
ozone
standard.
As
the
guidance
is
updated,
States
should
consider
the
new
information
in
their
RACT
determinations
or
certifications.
Regardless,
States
should
ensure
that
their
SIPs
accurately
reflect
RACT
based
on
the
current
availability
of
technically
and
economically
feasible
controls.

Therefore,
in
portions
of
8­
hour
ozone
nonattainment
areas
where
major
sources
or
source
categories
were
previously
reviewed
and
controls
subsequently
applied
to
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
253
meet
the
RACT
requirement
under
the
1­
hour
standard,
the
final
rule
allows
States
to
review
and,
if
appropriate,

accept
the
initial
RACT
analysis
as
meeting
the
RACT
requirements
for
the
8­
hour
standard.
Absent
data
indicating
that
the
previous
RACT
determination
is
no
longer
appropriate,
the
State
need
not
submit
a
new
RACT
SIP
for
these
sources.
In
such
cases,
the
State
should
submit
a
certification
as
part
of
its
SIP
revision,
with
appropriate
supporting
information,
such
as
consideration
of
updated
EPA
guidance,
that
it
previously
met
the
RACT
requirement
for
these
sources
and
that
the
previous
determination
still
represents
an
appropriate
RACT
level
of
control.
Where
the
initial
RACT
analysis
under
the
1­
hour
standard
for
a
specific
source
or
source
category
concluded
that
no
additional
controls
were
necessary,
the
final
rule
requires
a
new
RACT
determination.
The
new
RACT
determination
is
needed
to
consider
whether
more
cost­
effective
control
measures
have
become
available
for
sources
that
were
not
previously
regulated.
A
re­
analysis
may
determine
that
controls
are
now
economically
and
technically
feasible
and
should
be
required
to
meet
RACT.
Furthermore,
in
this
situation,
we
expect
the
incremental
emissions
reductions
to
be
significant,
compared
to
the
uncontrolled
emissions
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
254
levels,
thereby
reducing
the
cost
per
ton
of
emissions
controlled
and
therefore
more
reasonably
available.
In
all
cases
where
additional
information
is
presented
as
part
of
notice­
and­
comment
rulemaking,
including
a
RACT
SIP
submittal
for
sources
previously
controlled,
States
(
and
EPA)
must
consider
the
additional
information
as
part
of
that
rulemaking.

We
agree
with
several
State
and
industry
comments
that
a
RACT
determination
would
be
necessary
for
major
sources
in
any
portion
of
the
8­
hour
nonattainment
area
that
was
not
subject
to
a
RACT
program
for
the
1­
hour
standard.

Some
commenters
objected
to
EPA's
proposal
that
any
major
VOC
or
NOx
source
that
did
not
exist
during
a
previous
RACT
determination
must
be
subject
to
a
RACT
determination
as
part
of
the
SIP
for
the
8­
hour
ozone
standard.
These
commenters
stated
that
the
BACT
or
LAER
provisions
would
assure
at
least
RACT
level
controls
on
such
sources.
We
agree
this
should
be
true
in
many
cases,
but
not
all.
The
BACT/
LAER
analyses
do
not
automatically
ensure
compliance
with
RACT
since
the
applicability
thresholds
may
differ
and
the
analyses
may
be
conducted
many
years
apart.
States
may,

however,
use
information
gathered
from
prior
BACT
or
LAER
analyses
to
help
complete
a
RACT
analysis.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
255
Comments:
Several
State
and
industry
commenters
supported
EPA's
proposed
approach.
These
commenters
stated
that
the
level
of
emissions
reductions
required
by
the
NOx
SIP
call
is
far
greater
than
the
level
of
reductions
achieved
by
controls
that
have
been
determined
to
be
NOx
RACT.
Other
commenters
pointed
out
that
many
companies
have
employed
averaging
programs
for
NOx
SIP
Call
compliance
and
want
this
option
preserved
under
the
8­
hour
ozone
standard
since
requiring
sources
to
individually
meet
NOx
RACT
requirements
would
greatly
increase
the
costs
of
compliance
at
sources
already
subject
to
the
NOx
cap­
and­
trade
program
without
achieving
greater
emission
reductions.
One
State
encourages
EPA
to
provide
this
exemption
to
other
areas
subject
to
approved
cap­
and­
trade
programs
in
addition
to
those
areas
affected
by
the
NOx
SIP
call.

The
EPA
also
received
comments,
primarily
from
several
States
and
environmental
groups,
opposing
the
approach.

These
commenters
stated
that
there
are
no
exceptions
to
the
RACT
mandates
in
either
subpart
1
or
subpart
2
for
sources
subject
to
SIP
call
cap­
and­
trade
programs,
and
EPA
is
without
authority
to
invent
such
an
exception.
Because
the
NOx
SIP
Call's
cap
and
trade
program
does
not
require
emission
control
technologies
to
be
installed
at
a
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
2/
6/
05
256
particular
source,
some
commenters
conclude
that
RACT
requirements
are
necessary
and
appropriate
to
ensure
that
all
sources
implement
at
least
a
minimum
level
of
control.

One
State
indicated
there
have
been
numerous
cases
where
sources
subject
to
the
NOx
SIP
Call
have
not
had
to
install
controls
comparable
to
RACT.
Commenters
also
suggested
that
RACT
is
intended
to
be
a
benchmark
for
control
technology
at
individual
stationary
sources,
not
a
level
of
regional
reductions.
In
addition,
some
commenters
noted
that
the
NOx
SIP
Call
requirements
are
specific
to
the
ozone
season,

where
RACT
requirements
are
year
round.
Consequently,
these
commenters
recommended
that
EPA
should
also
consider
nonozone
related
nitrogen
issues,
including
fine
particles,

visibility,
nitrification
and
acidification
of
watersheds
and
eutrophication
of
coastal
waters
all
of
which
would
be
reduced
with
year­
round
controls.

Response:
The
EPA
believes
the
RACT
mandate
in
subpart
1
and
subpart
2
applies
in
specific
geographic
areas
but
does
not
necessarily
require
every
major
source
to
install
controls.
For
example,
as
discussed
in
a
separate
comment/
response,
where
we
are
dealing
only
with
subpart
1
RACT,
we
only
require
such
RACT
as
will
advance
attainment
or
meet
RFP.
Thus,
EPA
does
not
agree
with
commenters
who
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
2/
6/
05
257
conclude
that
RACT
requirements
are
necessary
and
appropriate
to
ensure
that
all
sources
implement
at
least
a
minimum
level
of
control
or
that
RACT
is
intended
to
be
a
benchmark
for
control
technology
at
all
individual
stationary
sources.

Some
commenters
pointed
out
that
the
NOx
SIP
Call
requirements
are
specific
to
the
ozone
season,
yet
RACT
requirements
are
year
round.
While
there
are
some
exceptions,
EPA
agrees
that
RACT
usually
is
an
application
of
controls
year
round.
With
respect
to
the
NOx
SIP
Call,

EPA
believes
that
the
vast
majority
of
sources
in
the
capand
trade
program
will
install
combustion
controls
to
decrease
NOx
emissions
because
it
is
almost
always
the
most
cost­
effective
strategy.
Since
combustion
controls
meet
EPA's
NOx
RACT
guidance
for
level
of
control
and
since
these
controls
would
be
operated
year
round,
EPA
believes
the
RACT
requirement
would
be
met
year
round
in
the
vast
majority
of
cases.
Further,
because
many
affected
sources
also
installed
post­
combustion
controls
to
meet
the
NOx
SIP
Call
requirements,
these
additional
emission
reductions
provide
further
assurance
that
RACT
equivalent
emission
reductions
will
occur,
on
average,
at
sources
affected
by
the
cap
and
trade
program.
We
agree
that
there
would
be
non­
ozone­
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
44In
the
1998
NOx
SIP
Call
rule,
average
costs
of
compliance
were
estimated
at
about
$
1500/
ton
and
average
RACT
level
costs
are
less
than
$
1300/
ton.
Recent
estimates
of
the
projected
cost
of
allowances
are
about
$
2000­
4000/
ton
(
NOx
Budget
Trading
Program,
2003
Progress
and
Compliance
Report,
August
2004,
EPA­
430­
R­
04­
010).
With
respect
to
RACT,
we
would
note
that
in
some
cases,
the
State
may
determine
that
additional
controls
are
not
technically
and
economically
feasible.
Thus,
even
if
the
State
analyzed
RACT
for
each
source
subject
to
the
cap­
and­
trade
program,

258
related
nitrogen
benefits,
including
fine
particles,

visibility,
nitrification
and
acidification
of
watersheds
and
eutrophication
of
coastal
waters
due
to
year­
round
controls.

Some
commenters
argue
that
RACT
should
apply
to
each
source
because
some
sources
subject
to
the
NOx
SIP
Call
cap
and
trade
program
might
not
install
controls
and
could
meet
the
SIP
Call
requirements
solely
by
purchasing
allowances.

Because
the
NOx
SIP
Call
is
a
market­
based
program,
there
could
be
units
that
choose
to
meet
those
requirements
simply
by
emissions
trading.
We
expect
that
very
few
sources
subject
to
RACT
and
rules
implemented
by
the
State
under
the
NOx
SIP
Call
would
choose
to
not
install
control
equipment
and,
instead,
choose
to
meet
the
NOx
SIP
Call
requirements
solely
by
purchasing
allowances.
Most
likely
the
cost
for
purchasing
allowances
will
be
higher
than
the
cost
for
a
achieving
a
RACT
level
of
control.
44
In
addition,
many
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
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OR
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draft
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6/
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that
would
not
guarantee
additional
emission
reductions
at
each
source
because
the
RACT
determination
for
some
could
conclude
no
additional
controls
are
required.

259
units
subject
to
the
SIP
call
cap
will
install
beyond­
RACT
controls,
as
discussed
below.
Therefore,
we
believe
that
the
NOx
SIP
call
will
achieve
at
least
a
RACT
level
of
control,
on
average,
among
sources
subject
to
RACT
in
each
nonattainment
area.
Meeting
RACT
in
this
way
is
consistent
with
EPA
guidance
allowing
RACT
to
be
met
in
the
aggregate
within
a
nonattainment
area,
rather
than
by
each
individual
source.

In
other
cases,
a
facility
might
choose
to
meet
NOx
RACT
through
emissions
averaging;
e.
g.,
over
controlling
one
large
unit
and
not
controlling
other
smaller
units
because
the
smaller
units
may
be
retired
in
the
near
future
or
labor
or
capital
is
not
immediately
available.
We
agree
with
comments
that
emission
averaging
programs
such
as
the
NOx
SIP
Call
Rule
achieve
emission
reductions
at
lower
costs.

EPA's
NOx
RACT
guidance,
published
in
1992
(
57
FR
55625),

was,
in
part,
for
the
purpose
of
"
enhancing
the
ability
of
States
to
adopt
market­
based
trading
systems
for
NOx"
and
to
encourage
States
to
"
structure
their
RACT
requirements
to
inherently
incorporate
an
emissions
averaging
concept
(
i.
e.,
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
2/
6/
05
260
installing
more
stringent
controls
on
some
units
in
exchange
for
lesser
control
on
others)."
Since
the
NOx
SIP
Call
requires
greater
reductions,
on
average,
than
RACT,
(
see
proposal
notice
at
68
FR
32839
and
discussion
below)
we
believe
the
average
emissions
at
the
facility
in
this
example
would
be
less
than
its
emissions
under
application
of
a
RACT
program
alone.
We
would
also
expect
this
scenario
to
be
a
short
term
case
since
the
facility
may
choose
later
to
install
controls
on
the
smaller
units
and
sell
any
excess
allowances,
depending
on
the
projected
cost
of
allowances.

We
agree
with
comments
indicating
the
overall
emission
reduction
due
to
the
NOx
SIP
Call
would
be
greater
overall
than
with
a
RACT
program
alone,
and
we
believe
they
would
be
greater
within
each
nonattainment
area.
All
States
submitting
SIP
revisions
to
meet
the
NOx
SIP
Call
(
October
27,
1998,
63
FR
57356)
elected
to
require
large
boilers
and
turbines
to
comply
with
an
emissions
cap­
and­
trade
program
consistent
with
EPA's
model
cap­
and­
trade
rule.
As
a
result,
all
these
sources
are
already
subject
to
stringent
control
requirements.
As
described
in
the
June
2,
2003
proposal,
these
sources
collectively
achieve
more
emissions
reductions
than
would
be
required
by
application
of
RACT
requirements
to
each
source.
In
the
NOx
SIP
Call
control
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
45EPA's
1992
NOx
RACT
guidance
sets
Title
IV
equal
to
RACT
and
specifies
emission
rates
three
times
larger
than
the
rates
later
used
for
coal­
fired
units
in
the
NOx
SIP
Call
(
0.45­
0.50
lb/
mmBtu
versus
0.15).

46
Memorandum
of
March
16,
1994,
from
D.
Kent
Berry
re:
"
Cost­
Effective
Nitrogen
Oxides
(
NOx)
Reasonably
Available
Control
Technology
(
RACT)."
U.
S.
Environmental
Protection
Agency,
Research
Triangle
Park,
North
Carolina.

261
case,
electricity
generating
units
(
EGUs)
achieve
a
64
percent
reduction
beyond
the
base
case
requirements.
45
The
non­
EGUs
subject
to
the
States'
cap­
and­
trade
program
achieve
a
60
percent
reduction
from
uncontrolled
levels.

These
EGU
and
non­
EGU
reductions
are
clearly
beyond
the
30­

50
percent
expected
from
a
RACT
program.
46
We
stated
in
the
final
rule
that
the
NOx
SIP
Call
controls
"
represent
reductions
beyond
those
required
by
Title
IV
or
Title
I
RACT."
In
addition,
because
the
cap­
and­
trade
program
covers
units
serving
a
25
megawatt
generator,
it
requires
emission
reductions
at
many
units
emitting
at
less
than
the
general
RACT
threshold
of
100
tons
per
year.
As
explained
above,
we
believe
that
the
vast
majority
of
sources
subject
to
the
SIP
call
cap
would
install
combustion
controls
at
a
minimum,
rather
than
rely
solely
on
purchase
of
allowances
for
compliance.
Thus,
based
on
our
existing
NOx
RACT
guidance,
we
expect
the
NOx
SIP
Call
to
achieve
more
emission
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
262
reductions
within
each
nonattainment
area
than
would
be
achieved
through
a
RACT
program.

For
the
above
reasons,
EPA
believes
the
sources
that
comply
with
the
NOx
SIP
Call
cap­
and­
trade
program
meet
NOx
RACT
requirements.
Accordingly,
the
State
need
not
perform
a
NOx
RACT
analysis
for
sources
subject
to
the
State's
emission
cap­
and­
trade
program
where
the
cap­
and­
trade
program
has
been
approved
by
EPA
as
meeting
the
NOx
SIP
Call
requirements
and
the
State
need
not
submit
a
new
NOx
RACT
SIP
for
those
sources.
As
new
or
updated
EPA
RACT
guidance
becomes
available,
however,
States
should
consider
the
new
information
in
their
RACT
determinations.

As
proposed,
in
cases
where
States
have
adopted
controls
for
cement
kilns
consistent
with
the
NOx
SIP
Call
(
i.
e.,
30
percent
reduction),
the
State
may
choose
to
accept
the
NOx
SIP
Call
requirements
as
meeting
the
NOx
RACT
requirements
for
the
8­
hour
standard
and
need
not
submit
a
new
NOx
RACT
SIP
for
those
sources.
In
its
RACT
SIP
submission,
the
State
should
identify
the
cement
plants
that
are
subject
to
NOx
SIP
Call
controls
and
that,
therefore,

already
meet
RACT.
The
EPA
received
comments
from
States
supporting
the
proposal.
For
the
same
reasons,
EPA
believes
a
State
may
choose
to
accept
the
Phase
II
NOx
SIP
Call
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
47As
described
in
the
April
21,
2004
Federal
Register.

263
control
level
for
stationary
internal
combustion
engines47
as
meeting
the
NOx
RACT
requirements.
As
new
or
updated
EPA
RACT
guidance
becomes
available
for
cement
kilns
and/
or
engines,
States
should
consider
the
new
information
in
their
RACT
determinations.

In
addition,
through
the
NOx
SIP
Call
or
other
programs,
(
including
a
SIP
approved
cap­
and­
trade
program
outside
the
NOx
SIP
Call
area),
States
may
have
adopted
control
measures
for
specific
NOx
sources
that
equal
or
exceed
RACT
requirements.
For
these
sources,
States
may
choose
to
submit,
as
part
of
its
NOx
RACT
SIP
revision,

documentation
that
the
previously
adopted
control
measure
meets
the
RACT
requirement.
The
EPA's
NOx
RACT
guidance
(
NOx
General
Preamble
at
57
FR
55625)
encourages
States
to
develop
RACT
programs
that
are
based
on
"
areawide
average
emission
rates."
Thus,
States
can
submit
a
demonstration
as
part
of
their
RACT
submittal
showing
that
the
weighted
average
emission
rate
from
sources
in
the
nonattainment
area
subject
to
RACT
 
including
sources
reducing
emissions
to
meet
the
NOx
SIP
Call
requirements
 
meet
RACT
requirements.

It
should
also
be
noted
that
this
rule
in
no
way
limits
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
264
States'
discretion
to
require
beyond­
RACT
NOx
reductions
from
any
source
(
including
NOx
SIP
Call
sources)
in
a
plan
to
demonstrate
attainment
of
the
health­
based
ozone
standards.
In
certain
areas,
States
may
choose
to
require
NOx
controls
based
on
more
advanced
control
technologies
to
provide
for
attainment
of
the
ozone
standards.

Comments:
Several
States
expressed
support
for
the
proposed
RACT
submittal
date
of
2
years
after
designation
for
subpart
1
and
2
areas.
Other
commenters
suggested
the
RACT
submittal
date
for
subpart
1
areas
should
be
3
years
after
designation
in
order
to
coincide
with
the
attainment
demonstration
submittal
deadline
and
to
allow
a
more
efficient
use
of
resources.
In
addition,
comments
from
industry
suggested
a
48­
60
month
period
is
needed
for
installation
of
controls,
rather
than
the
30
month
period
proposed.

Response:
As
described
in
an
earlier
comment/
response,

in
subpart
1
areas
that
do
not
request
an
extension
of
their
attainment
date,
RACT
is
met
with
the
control
requirements
associated
with
a
demonstration
that
the
NAAQS
is
attained
as
expeditiously
as
practicable.
The
EPA
agrees
with
commenters
that
it
would
be
more
efficient,
in
these
areas,

if
the
date
for
submittal
of
the
RACT
rules
were
to
coincide
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
48This
assumes
the
ozone
season
in
this
example
begins
May
1.
June
15,
2009
is
the
maximum
statutory
timeframe
for
subpart
1
areas
that
do
not
seek
an
extension.
Since
the
CAA
requires
attainment
as
expeditiously
as
practicable,
some
subpart
1
nonattainment
areas
may
have
an
attainment
date
earlier
than
June
15,
2009.

265
with
submittal
of
the
attainment
demonstration
since
RACT
is
closely
tied
to
the
attainment
demonstration.
Therefore,
in
the
final
rule,
the
RACT
submittal
date
for
these
areas
is
the
same
as
the
submittal
date
for
the
attainment
plan,

which
is
three
years
after
designation
(
June
2007).

Although
EPA
is
not
setting
a
specific
RACT
rule
implementation
deadline
for
these
areas,
as
provided
in
the
Phase
1
rule
controls
must
be
implemented
by
the
beginning
of
the
attainment
year
ozone
season.
Thus,
for
example,

States
would
need
to
require
implementation
no
later
than
May
1,
2008
in
order
to
help
areas
attain
the
ozone
standard
by
a
June
15,
2009
attainment
date.
48
In
some
cases,
the
time
from
State
rule
adoption
to
installation
of
controls
by
sources
may
be
relatively
short;
in
other
cases,
sources
may
need
more
time.
Therefore,
EPA
encourages
States
to
adopt
any
necessary
rules
expeditiously
(
prior
to
the
June
2007
deadline,
where
possible)
so
that
sources
have
more
than
sufficient
time
to
install
the
controls
prior
to
the
start
of
the
attainment
year
ozone
season.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
49In
the
1990
amendments
to
the
CAA,
Congress
specifically
added
RACT
requirements
for
major
sources
in
section
182.
Section
182
required
the
RACT
rules
to
be
implemented
"
as
expeditiously
as
practicable"
but
no
later
than
30
months
after
the
submittal
deadline.

266
For
subpart
2
moderate
and
above
areas,
areas
within
an
Ozone
Transport
Region,
and
subpart
1
areas
that
request
an
attainment
date
extension
beyond
5
years
after
designation
for
the
8­
hour
standard,
the
final
rule
is
consistent
with
the
provisions
in
section
182
of
the
CAA
which
require
States
to
submit
RACT
rules
for
these
areas
within
24
months
(
June
15,
2006)
of
the
designation.
Several
commenters
supported
this
approach.

For
areas
subject
to
the
24
month
RACT
submittal
date
(
June
15,
2006),
EPA
believes
the
proposed
30
month
(
December
15,
2008)
period
for
installation
of
controls
is
reasonable,
given
that
this
is
the
statutorily­
prescribed
period49
(
for
the
areas
covered
under
subpart
2)
and
based
on
our
prior
experience
with
States
adopting
and
implementing
RACT
requirements.
Subsequent
to
the
NOx
RACT
SIP
revisions
for
the
1­
hour
standard
subject
to
the
30
month
CAA
period,
EPA
approved
NOx
RACT
SIP
submittals
in
some
areas
which
had
been
exempt
from
the
requirements,

including
the
Dallas
and
Houston
areas,
which
required
PREDECISIONAL
DRAFT
 
DO
NOT
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CITE
OR
DISTRIBUTE
draft
2/
6/
05
267
implementation
within
2
years
from
the
State
adoption
date.

The
EPA
recently
determined
that
a
24
month
period
is
adequate
for
stationary
internal
combustion
engines
to
install
low
emission
combustion
controls
(
69
FR
21633).

Furthermore,
EPA
believes
30
months
is
adequate
since
available
data
support
that
one
of
the
most
challenging
retrofit
installations
 
application
of
selective
catalytic
reduction
(
SCR)
as
described
in
the
January
2004
CAIR
proposal
 
can
be
completed,
on
average,
in
21
months
(
69
FR
4617).

The
60
month
period
(
June
15,
2011)
for
installation
of
controls
suggested
by
some
commenters
was
not
adequately
supported,
i.
e.,
there
was
a
lack
of
detailed
justification
that
more
time
is
necessary.
In
addition,
as
described
in
an
earlier
comment/
response,
EPA
anticipates
that
many
sources
which
applied
controls
due
to
RACT
requirements
with
the
1­
hour
ozone
standard
will
not
need
to
install
new
controls
for
the
8­
hour
standard.
Thus,
because
fewer
sources
will
be
subject
to
a
new
RACT
requirement
there
will
be
less
demand
for
control
equipment
and
States
and
many
sources
face
a
reduced
burden
compared
to
the
same
CAA
requirement
in
the
1990s.

Since
the
ozone
season
(
40
CFR
part
58,
Appendix
D)
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
50Note,
since
the
CAA
requires
attainment
as
expeditiously
as
practicable,
some
moderate
nonattainment
areas
may
have
an
attainment
date
earlier
than
June
15,
2010.

268
does
not
begin
for
many
areas
until
May
1,
however,
the
final
rule
allows
sources
until
the
beginning
of
the
area's
2009
ozone
season
(
generally
May
1,
2009)
rather
than
December
15,
2008
to
install
controls.
Installation
of
controls
before
the
2009
ozone
season
is
sufficient
to
provide
the
benefits
for
timely
attainment
of
the
ozone
standard
in
areas
with
a
2010
or
later
attainment
date.
50
And
the
short
delay
(
generally
between
December
2008
and
May
2009)
will
cause
no
harm
since
it
is
prior
to
the
ozone
season,
which
is
when
ozone
levels
are
most
like
to
be
at
harmful
levels.

For
subpart
1
areas
that
request
an
attainment
date
extension
(
beyond
5
years
after
designation),
the
final
rule
sets
the
RACT
submittal
and
implementation
dates
the
same
as
required
for
subpart
2
moderate
and
above
areas,
except
subpart
1
areas
shall
submit
the
RACT
SIP
with
its
attainment
date
extension
request.
The
EPA
believes
this
approach
is
reasonable
and
provides
equity
for
subpart
1
and
2
areas
with
attainment
dates
beyond
five
years
after
designation.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
51"
State
Implementation
Plans;
General
Preamble
for
the
Implementation
of
Title
I
of
the
Clean
Air
Act
Amendments
of
1990;
Proposed
Rule."
57
FR
13498
at
13560
(
April
16,
1992).
"
Guidance
on
the
Reasonably
Available
Control
Measures
(
RACM)
Requirement
and
Attainment
Demonstration
Submissions
for
Ozone
Nonattainment
Areas."
John
S.
Seitz,
Director,
Office
of
Air
Quality
Planning
and
Standards.
November
30,
1999.
Web
site:
www.
epa.
gov/
ttn/
oarpg/
t1pgm.
html.
Memorandum
of
December
14,
2000,
from
John
S.
Seitz,
Director,
Office
of
Air
Quality
Planning
and
Standards,
re:
"
Additional
Submission
on
RACM
from
States
with
Severe
One­
Hour
Ozone
Nonattainment
Area
SIPs."

269
2.
Reasonably
Available
Control
Measures
(
RACM)

a.
Background
As
noted
in
the
June
2,
2003
proposed
rule,
Subpart
1
of
part
D
includes
general
requirements
for
all
designated
nonattainment
areas,
including
a
requirement
that
a
nonattainment
plan
provide
for
the
implementation
of
all
RACM
as
expeditiously
as
practicable,
including
such
reductions
that
may
be
obtained
through
RACT.
We
have
also
issued
guidance
for
implementing
the
RACM
provisions
of
the
CAA
that
interprets
those
provisions
to
require
a
demonstration
that
the
State
has
adopted
all
reasonable
measures
to
meet
RFP
and
attainment
as
expeditiously
as
practicable
and
thus
that
no
additional
measures
that
are
reasonably
available
will
advance
the
attainment
date
or
contribute
to
RFP
for
the
area.
51
The
RACM
requirement,
PREDECISIONAL
DRAFT
 
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draft
2/
6/
05
270
which
is
set
forth
in
section
172(
c)(
1)
of
the
CAA,
applies
to
all
nonattainment
areas
that
are
required
to
submit
an
attainment
demonstration,
whether
covered
under
only
subpart
1
or
also
subpart
2.
The
June
2,
2003,
proposal
implied
that
the
current
policies
and
procedures
related
to
RACM
would
continue
to
apply
for
the
8­
hour
ozone
standard.
The
draft
regulatory
text
provided
that
for
each
nonattainment
area
required
to
submit
an
attainment
demonstration
under
section
51.908,
the
State
would
have
to
submit
with
the
attainment
demonstration
a
SIP
revision
demonstrating
that
it
has
adopted
all
control
measures
necessary
to
demonstrate
attainment
as
expeditiously
as
practicable
and
to
meet
any
RFP
requirements.

b.
Summary
of
final
rule
Section
51.912(
d)
of
the
final
rule
reflects
our
proposal
and
draft
regulatory
text.
For
each
nonattainment
area
required
to
submit
an
attainment
demonstration
under
section
51.908,
the
State
must
submit
with
the
attainment
demonstration
a
SIP
revision
demonstrating
that
it
has
adopted
all
control
measures
necessary
to
demonstrate
attainment
as
expeditiously
as
practicable
and
to
meet
any
RFP
requirements.

c.
Comments
and
Responses
PREDECISIONAL
DRAFT
 
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NOT
QUOTE,
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OR
DISTRIBUTE
draft
2/
6/
05
52"
State
Implementation
Plans;
General
Preamble
for
the
Implementation
of
Title
I
of
the
Clean
Air
Act
Amendments
of
1990;
Proposed
Rule."
57
FR
13498
at
13560
(
April
16,
1992).

271
Comment:
One
commenter
asked
that
we
clarify
whether
old
SIP
measures
become
RACM.

Response:
Under
EPA's
policy
concerning
RACM,
there
are
no
measures
that
are
automatically
deemed
RACM.
The
determination
of
whether
a
SIP
contains
all
RACM
requires
an
area­
specific
analysis
that
there
are
no
additional
economically
and
technologically
feasible
control
measures
(
alone
or
in
conjunction
with
others)
that
will
advance
the
attainment
date.
52
Comment:
One
commenter
recommended
that
EPA
revise
its
policy
permitting
SIPs
to
exclude
otherwise
feasible
and
potentially
reasonably
available
control
measures
that
achieve
emissions
reductions
in
increments
less
than
the
amount
necessary
to
advance
the
attainment
date
by
a
full
year.
The
commenter
believed
this
was
an
onerous
standard
that
has
stymied
development
of
new
control
measures,

particularly
transportation
control
measures.
The
commenter
believed
EPA's
RACM
standard
is
especially
harmful
to
the
ability
to
provide
SIP
credit
for
Smart
Growth
land
use,
due
to
the
long
time
frame
over
which
land
is
developed
and
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
272
redeveloped.
The
commenter
believes
that
ever­
increasing
suburbanization
of
our
nation
inflates
the
growth
rate
in
vehicle
miles
traveled
(
VMT),
thereby
neutralizing
improvements
in
vehicle
emissions.
The
commenter
claimed
that
a
significant
air
quality
improvement
strategy
for
the
21st
Century
is
compact
mixed
use
pedestrian­
friendly
development
near
frequent
transit
and
believed
that
changing
land
use
plans
in
this
direction
will
benefit
air
quality
by
reducing
the
rate
of
growth
in
VMT
and
emissions.
The
commenter
recommended
that
EPA
be
aware
of
this
and
revise
its
RACM
standard
to
encourage
local
governments
to
alter
their
land
use
plans
by
providing
a
mechanism
to
give
credit
for
air
quality
beneficial
land
use
changes.

Response:
We
do
not
believe
our
RACM
policy
has
"
stymied"
development
of
new
control
technologies.
New
emission
reduction
technologies
have
surfaced
and
continue
to
surface
to
meet
market
demands
resulting
in
part
from
Clean
Air
Act
requirements,
which
include
the
requirements
to
demonstrate
attainment
as
expeditiously
as
practicable
and
to
make
RFP
toward
attainment.
In
addition,
viable
control
measures
that
produce
emissions
reductions
can
be
approved
into
SIPs
whether
or
not
such
measures
meet
the
definition
of
RACM.
Our
RACM
policy
merely
interprets
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
53Improving
Air
Quality
Through
Land
Use
Activities;
Transportation
and
Regional
Programs
Division,
Office
of
Transportation
and
Air
Quality,
U.
S.
Environmental
Protection
Agency.
EPA420­
R­
01­
001.
January
2001.

273
Act
as
not
mandating
measures
that
do
not
contribute
to
expeditious
attainment
and
timely
RFP.
The
policy
does
not
limit
the
potential
for
States
to
develop
any
control
measures
they
wish,
including
land
use
measures.
In
fact,

we
have
prepared
a
separate
guidance
document
on
how
areas
can
develop
and
receive
SIP
credit
for
land
use
control
measures.
53
We
conclude,
however,
that
to
require
areas
to
adopt
and
implement
as
RACM
every
control
technology
or
measure
that
obtains
a
small
amount
of
emissions
reductions
even
if
such
measure
would
not
advance
the
attainment
date
or
contribute
to
RFP
is
not
justified.
Such
a
policy
would
be
extremely
burdensome
to
planning
agencies,
would
detract
from
the
effort
to
develop
more
reasonable
and
effective
controls
to
meet
the
NAAQS,
and
would
not
be
necessary
to
meet
the
statutory
goal
of
expediting
attainment.
For
these
reasons
and
because
such
requirement
is
not
mandated
by
the
statute,
we
are
not
adopting
such
a
policy.

Comment:
One
commenter
believed
that
the
RACM
requirements
for
subpart
1
areas
should
be
designed
so
as
to
not
require
extensive
and
unneeded
control
due
to
the
fact
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
274
that
in
most
or
all
cases
these
controls
will
not
be
needed
for
the
area
to
attain.

Response:
We
believe
the
current
RACM
guidance,
which
applies
to
both
subpart
1
and
2
areas,
works
to
avoid
extensive
and
unneeded
controls,
while
ensuring
that
areas
meet
the
health­
based
NAAQS
as
expeditiously
as
practicable.

Comment:
One
commenter
believed
our
RACM
guidance
provides
only
minimum
requirements
to
ensure
attainment
as
expeditiously
as
practicable
and
believes
that
every
nonattainment
area
must
be
required
to
consider
adoption
of
measures
that
have
been
implemented
in
other
areas,

including
the
South
Coast
of
California,
so
as
to
achieve
progress
and
attainment
as
expeditiously
as
practicable.
An
area
should
be
allowed
to
reject
such
measures
only
upon
a
showing
that
they
are
not
practicable
due
to
specified
unique
circumstances.
The
commenter
urged
that
given
the
importance
of
this
issue
to
fair,
expeditious
and
lawful
implementation
of
the
8­
hour
standard,
EPA's
final
8­
hour
standard
implementation
rule
must
explicitly
require
compliance
with
this
guidance.

Response:
To
meet
the
RACM
provision
of
the
Act,
the
State
must
determine
as
part
of
its
attainment
demonstration
whether
there
are
additional
measures
that
are
feasible
that
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
54In
"
State
Implementation
Plans;
General
Preamble
for
the
Implementation
of
Title
I
of
the
Clean
Air
Act
Amendments
of
1990;
Proposed
Rule,"
we
noted
in
the
discussion
of
the
RACM
requirement
that
"
In
addition,
any
measure
that
a
commenter
indicates
during
the
public
commenter
period
is
reasonably
available
for
a
given
area
should
be
closely
reviewed
by
the
planning
agency
to
determine
if
it
is
in
fact
reasonably
available
for
implementation
in
the
area
in
light
of
local
circumstances."
The
discussion
of
RACM
in
that
document
contains
other
relevant
history
concerning
the
RACM
requirement.

275
would
expedite
attainment.
In
addition,
EPA's
RACM
policy
indicates
that
areas
should
consider
all
candidate
measures
that
are
potentially
available,
including
any
that
have
been
suggested
for
the
particular
nonattainment
area.
54
Although
areas
should
consider
all
available
measures,
including
those
being
implemented
in
other
areas
such
as
California,

areas
need
adopt
measures
only
if
they
are
both
economically
and
technologically
feasible
and
will
advance
the
attainment
date.
This
interpretation
of
the
section
172
requirements
has
recently
been
upheld
by
several
courts.
See,
e.
g.,

Sierra
Club
v.
EPA,
et
al.,
294
F.
3d
155
(
D.
C.
Cir.
2002).

Comment:
Several
commenters
agreed
with
our
proposal
to
require
that
the
RACM
analysis
and
measures
be
submitted
within
3
years
after
the
effective
date
of
designation
for
the
8­
hour
NAAQS.

Response:
We
acknowledge
the
support
of
the
comments
PREDECISIONAL
DRAFT
 
DO
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OR
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draft
2/
6/
05
55See
57
FR
55622
("
Nitrogen
Oxides
Supplement
to
the
General
Preamble,"
published
November
25,
1992).

276
on
the
submission
timing
of
the
RACM
requirements.

H.
How
will
the
section
182(
f)
NOx
provisions
be
handled
under
the
8­
hour
ozone
standard?
[
Section
VI.
L.
of
June
2,

2003
proposed
rule
(
68
FR
32840);
section
51.913
in
draft
and
final
regulatory
text.]

1.
Background
While
NOx
emissions
are
necessary
for
the
formation
of
ozone
in
the
lower
atmosphere,
a
local
decrease
in
NOx
emissions
can,
in
some
cases,
increase
local
ozone
concentrations.
This
potential
"
NOx
disbenefit"
resulted
in
Congress
including
the
NOx
exemption
provisions
in
section
182(
f)
of
the
CAA
for
areas
classified
under
subpart
2.

Section
182(
f)
requires
States
to
apply
the
same
requirements
to
major
stationary
sources
of
NOx
as
are
applied
to
major
stationary
sources
of
VOC
under
subpart
2.

The
applicable
requirements
are
RACT
and
nonattainment
major
NSR
for
major
stationary
sources
of
NOx
in
certain
ozone
nonattainment
areas
and
throughout
States
in
the
OTR.
55
In
addition,
section
182(
f)
specifies
circumstances
under
which
these
NOx
requirements
would
be
limited
or
would
not
apply
("
NOx
exemption").
Further,
areas
granted
a
NOx
exemption
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
56As
stated
in
EPA's
I/
M
(
57
FR
52950)
and
conformity
rules
(
60
FR
57179
for
transportation
rules
and
58
FR
63214
for
general
rules),
certain
NOx
requirements
in
those
rules
do
not
apply
where
EPA
granted
an
areawide
exemption
under
section
182(
f).

57See
57
FR
55620,
"
Nitrogen
Oxides
Supplement
to
the
General
Preamble,"
published
November
25,
1992.

58September
1,
2004
at
69
FR
53378.

59The
EPA's
primary
guidance
regarding
section
182(
f)
is
contained
in
the
"
Guideline
for
Determining
the
Applicability
of
Nitrogen
Oxide
Requirements
under
Section
182(
f),"
issued
by
John
S.
Seitz,
Director,
Office
of
Air
277
under
section
182(
f)
may
be
exempt
from
motor
vehicle
I/
M
and
certain
Federal
requirements
of
general
and
transportation
conformity.
56
In
the
June
2,
2003
notice,
we
proposed
to
apply
the
NOx
requirements
and
exemption
provisions
in
section
182(
f)

for
subpart
2
nonattainment
areas
and
in
OTRs.
57
In
addition,
we
proposed
to
allow
subpart
1
nonattainment
areas
to
seek
a
NOx
exemption,
where
appropriate.
Further,
we
proposed
that
areas
previously
granted
a
NOx
exemption
under
the
1­
hour
ozone
standard
would
need
to
request
an
exemption
for
purposes
of
the
8­
hour
standard
in
order
to
account
for
any
new
information
that
may
point
to
a
different
conclusion
with
respect
to
the
8­
hour
standard.
Recently,
we
invited
comment58
on
draft
guidance
intended
to
update
the
existing
1­
hour
ozone
guidance59
regarding
section
182(
f)
for
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
Quality
Planning
and
Standards,
to
the
Regional
Division
Directors,
December
16,
1993.

60Memorandum
dated
January
14,
2005,
"
Guidance
on
Limiting
Nitrogen
Oxides
(
NO
x)
Requirements
Related
to
8­
Hour
Ozone
Implementation"
from
Stephen
D.
Page,
Director,
Office
of
Air
Quality
Planning
and
Standards,
to
Air
Directors,
Regions
I­
X
278
application
to
the
8­
hour
ozone
program.
We
issued
the
updated
guidance
regarding
section
182(
f)
on
January
14,

2005.60
2.
Summary
of
Final
Rule.

As
proposed,
the
final
rule
allows
a
person
to
petition
the
Administrator
for
a
NOx
exemption
under
either
section
182(
f)
or
our
regulations
for
any
area
designated
nonattainment
for
the
8­
hour
ozone
NAAQS
and
for
any
area
in
a
section
184
ozone
transport
region.
As
with
the
1­
hour
ozone
standard,
the
NOx
exemption
provision
applies
to
subpart
2
ozone
nonattainment
areas
and
in
a
section
184
ozone
transport
region.
In
addition,
the
final
rule
extends
to
subpart
1
ozone
nonattainment
areas
the
opportunity
to
petition
the
Administrator
for
an
exemption
from
nonattainment
major
NSR
and/
or
RACT
requirements
in
a
manner
consistent
with
section
182(
f)
provisions.
The
petition
must
contain
adequate
documentation
that
the
provisions
of
section
182(
f)
and/
or
our
regulations
are
met.
We
recently
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
61Memorandum
dated
January
14,
2005,
"
Guidance
on
Limiting
Nitrogen
Oxides
(
NO
x)
Requirements
Related
to
8­
Hour
Ozone
Implementation"
from
Stephen
D.
Page,
Director,
Office
of
Air
Quality
Planning
and
Standards,
to
Air
Directors,
Regions
I­
X
279
issued61
updated
guidance
on
appropriate
documentation
regarding
section
182(
f)
for
application
to
the
8­
hour
ozone
program.
In
addition,
the
final
rule
states
that
a
section
182(
f)
NOx
exemption
granted
under
the
1­
hour
ozone
standard
does
not
relieve
the
area
from
any
requirements
under
the
8­

hour
ozone
standard.
That
is,
a
new
petition
with
respect
to
8­
hour
ozone
must
be
submitted
to
EPA
and
must
be
approved
by
EPA
before
an
area
is
exempt
from
any
8­
hour
ozone
standard
NOx
requirements.

3.
Comments
and
responses
Comments:
Several
commenters
supported
EPA's
proposal
to
make
NOx
waivers
available
to
8­
hour
nonattainment
areas
and
States
in
an
ozone
transport
region
under
either
subpart
1
or
subpart
2,
pursuant
to
the
provisions
of
section
182(
f)

of
the
Act.
Some
commenters
stated
that
requiring
a
reapproval
of
existing
NOx
waivers
amounts
to
rescinding
the
existing
waivers.
Another
commenter
asked
what
is
needed
to
maintain
an
exemption.
One
commenter
stated
that
EPA
should
make
it
clear
that
there
is
no
presumption
that
a
NOx
waiver
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
280
granted
under
Section
182(
f)
of
the
Act
for
the
1­
hour
ozone
standard
is
continued
for
the
8­
hour
standard.
Other
commenters
recommended
that
the
NOx
waiver
should
automatically
apply
for
the
8­
hr
ozone
standard
in
areas
where
EPA
previously
granted
a
NOx
waiver
under
the
1­
hr
ozone
standard.
One
commenter
stated
that
the
technical
basis
for
granting
waivers
under
the
l­
hour
NAAQS
remains
valid.

Response:
We
agree
with
comments
supporting
the
proposal
to
apply
the
section
182(
f)
exemption
provisions
to
subpart
2
nonattainment
areas
and
OTRs
and
to
extend
these
protections
to
subpart
1
areas
through
regulation.

Since
a
NOx
exemption
granted
for
the
1­
hr
ozone
was
completed
through
notice­
and­
comment
rulemaking,
the
exemption
remains
effective
for
the
1­
hour
standard
unless
and
until
EPA
completes
rulemaking
to
remove
or
revise
the
waiver
for
a
specific
area.
This
rulemaking
on
the
8­
hour
ozone
implementation
program
does
not
rescind
any
existing
1­
hour
NOx
waiver
provision.

However,
for
areas
previously
granted
a
NOx
waiver
under
the
1­
hour
ozone
standard,
a
petitioner
would
need
to
seek
a
new
waiver
for
purposes
of
the
8­
hour
ozone
standard.

The
EPA
does
not
believe
NOx
waivers
granted
under
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
62E.
g:
Recision
of
NOx
waiver
for
the
Dallas­
Fort
Worth
area
on
April
20,
1999
(
64
FR
19283).
Also,
the
temporary
waiver
for
Houston
and
Beaumont
(
originally
granted
April
19,
1995
60
FR
19515)
expired
December
31,
1997.

281
1­
hour
ozone
standard
should
always
be
permanent.
As
sources
are
regulated
and
the
mix
of
pollutants
is
altered,

circumstances
could
show
that
NOx
reductions
will
begin
to
provide
a
benefit.
In
several
cases
the
1­
hour
NOx
waiver
has
been
removed
in
subsequent
rulemaking
actions.
62
Indeed,
when
EPA
issued
waivers
under
the
1­
hour
ozone
standard,
we
stated
that
the
NOx
waivers
would
be
removed
where
new
information
became
available
and
the
rationale
for
the
initial
NOx
waiver
no
longer
was
supported.
For
example,
the
waiver
may
be
removed
through
rulemaking
if
subsequent
modeling
data
demonstrated
an
ozone
attainment
benefit
from
NOx
emission
controls.

Given
that
many
NOx
waiver
actions
were
based
on
air
quality
and
dispersion
modeling
analyses
made
in
the
mid­

1990s,
EPA
believes
that
newer
data
and
analyses
should
be
used
to
determine
if
a
NOx
waiver
under
the
8­
hour
ozone
standard
is
warranted.
Many
NOx
waivers
were
simply
based
on
whether
an
area
had
ambient
air
quality
showing
attainment
of
the
1­
hr
ozone
standard;
this
is
not
an
appropriate
basis
for
a
waiver
under
the
8­
hour
ozone
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
282
standard
since
areas
may
be
attaining
the
1­
hour
standard
but
exceeding
the
8­
hour
standard.
Some
NOx
waivers
were
based
on
dispersion
modeling.
In
some
cases
the
modeling
later
proved
inadequate
as
attainment
was
not
met
in
the
forecast
year.
In
other
cases
those
modeling
analyses
have
been
replaced
with
more
recent
analyses.
The
EPA
believes
that
NOx
waivers
under
the
8­
hour
ozone
standard
should
be
supported
by
analyses
specific
to
the
8­
hour
ozone
standard
and
should
consider
relevant
information
developed
after
the
1­
hour
waivers
were
granted.

The
EPA
believes
the
NOx
waivers
may
not
be
granted
except
through
notice
and
comment
rulemaking
action.
That
is,
since
EPA
approval
of
a
waiver
request
would
change
SIP
requirements,
EPA
must
conduct
notice
and
comment
rulemaking
on
that
request.
The
EPA
believes
this
requirement
precludes
automatic
approval
of
8­
hr
NOx
waiver
requests
based
on
previously
issued
1­
hr
NOx
waivers.

Comment:
Some
commenters
urged
EPA
to
expand
the
section
182(
f)
waiver
to
VOC
RACT
as
well
as
NOx
RACT.
One
commenter
states
that
EPA
has
substantially
more
discretion
under
Subpart
1
than
it
does
under
Subpart
2,
and
to
fail
to
exercise
that
discretion
to
avoid
ineffective
and
inefficient
requirements
(
through
NOx
and
VOC
waivers)
would
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
63December
1991
NAS
report,
Rethinking
the
Ozone
Problem
in
Urban
and
Regional
Air
Pollution,
page
377.

283
be
irresponsible,
and
an
abuse
of
its
discretion.

Response:
The
EPA
disagrees
with
these
comments.
We
do
not
see
any
provision
in
the
Act
that
would
give
us
the
authority
to
create
such
an
exemption.
While
Congress
could
have
created
a
VOC
waiver
at
the
same
time
the
section
182(
f)
NOx
waiver
provisions
were
enacted,
Congress
choose
not
to
do
so.
The
Congress
further
provided
for
additional
review
and
study
under
section
185B
"
to
serve
as
the
basis
for
the
various
findings
contemplated
in
the
NOx
provisions"

(
H.
R.
Rep.
490
at
257).
Under
section
185B,
EPA,
in
conjunction
with
the
National
Academy
of
Sciences
(
NAS),

conducted
a
study
on
the
role
of
ozone
precursors
in
tropospheric
ozone
formation.
The
final
section
185B
report
incorporates
this
NAS
report
along
with
an
EPA
report
addressing
the
availability
and
extent
of
NOx
controls.

With
respect
to
VOC,
the
NAS
report
states
that
"
control
of
VOCs
never
leads
to
a
significant
increase
in
ozone"
63
Thus,
the
section
185B
report
does
not
support
a
waiver
provision
for
VOC.
Thus,
while
dispersion
modeling
analyses
show
that
NOx
emission
reductions
can
be
counterproductive
under
certain
circumstances
(
the
reason
for
the
NOx
waiver
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
284
provision),
we
do
not
see
a
similar
case
for
VOC.

Therefore,
we
are
not
expanding
the
section
182(
f)
exemption
concept
to
VOC.

Comment:
One
commenter
stated
that
the
draft
guidance
does
not
contain
a
discussion
of
the
linkages
between
182(
f)

NOx
exemptions
and
certain
other
regional
NOx
reduction
requirements
such
as
the
NOx
SIP
Call
and
the
proposed
"
Clean
Air
Interstate
Rule."
The
commenter
believed
EPA
has
an
obligation
to
assess
the
impact
of
any
section
182(
f)

exemption
request
under
the
provisions
of
section
110(
a)(
2)(
D),
including
the
potential
for
emissions
exempted
from
controls
to
contribute
to
downwind
nonattainment
or
to
interfere
with
the
maintenance
of
any
national
ambient
air
quality
standard.

Response:
As
discussed
in
section
4.2
of
the
draft
8­

hour
exemption
guidance,
EPA
encourages
States/
petitioners
to
include
consideration
of
air
quality
effects
that
may
extend
beyond
the
designated
nonattainment
area.
States
should
consider
such
impacts
since
they
are
ultimately
responsible
for
achieving
attainment
in
all
portions
of
their
State
and
for
ensuring
that
emissions
originating
in
their
State
do
not
contribute
significantly
to
nonattainment
in,
or
interfere
with
maintenance
by,
any
other
State.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
285
However,
EPA
believes
NOx
exemptions
under
section
182(
f)
of
the
CAA
and
interstate
transport
of
emissions
under
section
110(
a)(
2)(
D)
of
the
Act
can
be
considered
independently.

The
EPA
has
separate
authority
under
section
110(
a)(
2)(
D)
to
require
a
State
to
reduce
emissions
from
stationary
and/
or
mobile
sources
where
there
is
evidence
showing
that
such
emissions
would
contribute
significantly
to
nonattainment
or
interfere
with
maintenance
in
other
States.
In
some
cases,

then,
EPA
may
grant
an
exemption
from
certain
NOx
requirements
and,
in
a
separate
action,
require
NOx
emission
decreases
under
section
110(
a)(
2)(
D).
Thus,
a
NOx
exemption
doesn't
affect
an
obligation
of
a
State
to
meet
a
NOx
budget
esablished
under
a
SIP
call
or
other
transport
rule.

I.
Should
EPA
promulgate
an
NSR
provision
to
encourage
development
patterns
that
reduce
overall
emissions?

[
Section
O.
9.
of
the
June
2,
2003
proposed
rule
(
68
FR
32849).
No
draft
or
final
regulatory
text.]

Note:
Section
V
of
this
preamble
below
addresses
rules
for
NSR
for
the
8­
hour
ozone
standard.
This
section
addresses
only
the
June
2,
2003
proposal
related
to
Clean
Air
Development
Communities
(
CADC).

1.
Background
In
the
June
2,
2003
proposal,
we
considered
two
options
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
286
designed
to
recognize
the
air
quality
benefits
which
can
accrue
when
areas
site
new
sources
and
plan
development
in
a
manner
that
results
in
overall
reduced
emissions.
We
proposed
to
define
a
community
that
changes
its
development
patterns
in
such
a
way
that
air
emissions
within
the
nonattainment
area
are
demonstrably
reduced
as
a
"
Clean
Air
Development
Community"
(
CADC).
As
a
result
of
becoming
a
CADC,
an
area
would
obtain
a
certain
amount
of
flexibility
in
its
NSR
program.

In
the
first
option,
we
proposed
that
a
CADC
would
have
a
more
flexible
NSR
program
by
1)
being
subject
to
subpart
1
NSR
as
opposed
to
subpart
2
NSR;
2)
lowering
NSR
major
source
thresholds
for
these
areas
to
make
them
similar
to
the
thresholds
for
PSD
areas;
and
3)
allowing
areas
that
meet
certain
development
criteria
(
development
zones)
to
receive
NSR
offsets
from
State
offset
pools.
In
the
second
option,
we
proposed
that
a
CADC
would
be
able
to
receive
a
pool
of
NSR
offset
credits
equal
to
the
reduced
emissions
from
new
development
patterns.
Credits
from
the
pool
could
be
provided
to
any
new
or
modified
source
in
a
"
development
zone"
as
offsets.

We
also
requested
comments
on
the
options
and
encouraged
comments
suggesting
other
ways
of
encouraging
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development
patterns
that
would
result
in
lower
emissions.

2.
Summary
of
Final
Rule
The
EPA
is
not
at
this
time
issuing
any
rule
related
to
CADCs.

3.
Comments
and
Responses
Comments:
The
EPA
received
numerous
comments
on
the
proposal,
some
supporting
and
others
opposing
the
CADC
provision.
A
number
of
the
commenters
noted
that
the
proposal
did
not
appear
to
have
enough
detail.
A
summary
of
the
comments
appears
in
the
response
to
comment
document.

Response:
The
EPA
appreciates
the
many
the
comments
it
has
received
on
this
section.
The
EPA
agrees
with
a
number
of
commenters
that
while
the
ideas
in
this
section
are
interesting
and
designed
to
achieve
useful
goals,
much
more
work
is
needed
in
a
separate
effort
to
work
through
the
many
issues
involved.
Therefore,
EPA
will
not
move
forward
with
this
particular
effort
at
this
time.

However,
EPA
does
not
plan
to
ignore
the
issue.
The
EPA
will
be
looking
to
bring
a
group
of
stakeholders
together
to
see
if
the
group
can
come
up
with
and
support
one
or
more
ways
that
we
can
use
existing
programs
and
authorities
to
create
positive
incentives
and
tools
for
communities
to
reduce
sprawl.
The
process
will
not
be
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designed
to
work
only
through
the
specific
issues
in
establishing
a
program
to
encourage
Clean
Air
Development
Communities
as
outlined
in
the
proposal
but
will
be
open
to
all
ideas.

J.
How
will
EPA
ensure
that
the
8­
hour
ozone
standard
will
be
implemented
in
a
way
which
allows
an
optimal
mix
of
controls
for
ozone,
PM2.5,
and
regional
haze?
[
Section
VI.
P.

of
June
2,
2003
proposed
rule
(
68
FR
32852);
no
draft
or
final
regulatory
text.]

1.
Background
As
noted
in
the
proposal,
in
many
cases,
States
will
be
developing
strategies
to
attain
both
the
8­
hour
ozone
and
PM2.5
NAAQS
in
the
same
nonattainment
area
or
in
nonattainment
areas
that
have
some
area
or
areas
in
common.

Requirements
for
regional
haze
apply
to
all
areas.
Certain
ozone
control
measures
may
also
be
helpful
as
part
of
a
PM2.5
control
strategy
or
a
regional
haze
plan.
Similarly,

controls
for
PM2.5
may
lead
to
reductions
in
ozone
or
regional
haze.
Because
the
precursors
for
ozone
and
PM2.5
may
be
transported
hundreds
of
kilometers,
regional
scale
impacts
may
also
be
relevant
to
consider.
The
EPA
expects
that
strategies
to
decrease
ozone
concentrations
will
not
adversely
affect
strategies
to
attain
the
PM2.5
NAAQS.
We
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believe
integration
of
ozone,
PM2.5,
and
regional
haze
planning
will
reduce
overall
costs
of
meeting
multiple
air
quality
goals.

2.
Summary
of
Final
Rule.

We
are
encouraging
each
State
with
an
ozone
nonattainment
area
which
overlaps
or
is
nearby
a
PM2.5
nonattainment
area
to
take
all
reasonable
steps
to
coordinate
the
required
revisions
for
these
nonattainment
areas
and
meet
reasonable
progress
goals
for
regional
haze.

Specifically,
EPA
encourages
States
conducting
modeling
analyses
for
ozone
to
separately
estimate
effects
of
a
strategy
on
the
following:
mass
associated
with
sulfates,

nitrates,
organic
carbon,
elemental
carbon,
and
all
other
species.
However,
the
final
rule
does
not
contain
any
requirements/
regulatory
text
on
this
subject.

3.
Comments
and
responses
Comments:
Several
commenters
supported
EPA's
recommendation
for
States
to
integrate
planning
for
8­
hour
ozone,
PM2.5,
and
regional
haze.
These
commenters
agreed
that
the
integration
of
ozone,
PM2.5
and
regional
haze
controls
will
reduce
the
overall
costs
of
meeting
multiple
air
quality
goals
and
that
EPA
should
continue
to
synchronize
the
SIP
planning
requirements
for
these
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05
290
pollutants
to
aid
in
this
integration.
One
commenter
asked
EPA
to
clarify
that
this
analysis
is
not
an
approvability
issue
associated
with
an
8­
hour
attainment
demonstration.

Other
commenters
recommended
that
EPA
require
nonattainment
areas
to
perform
an
integrated
control
strategy
assessment
to
ensure
ozone
controls
will
not
preclude
optimal
controls
for
secondary
fine
particles
and
visibility
impairment.

Response:
We
recognize
the
importance
of
integrating
planning
for
8­
hour
ozone,
PM2.5,
and
regional
haze
as
much
as
possible,
given
the
overlap
in
technical
work
and
likely
control
strategies.
None
of
the
commenters,
however,
has
identified
legal
authority
that
allows
EPA
to
require
nonattainment
areas
to
perform
an
integrated
control
strategy
assessment
to
ensure
ozone
controls
will
not
preclude
optimal
controls
for
secondary
fine
particles
and
visibility
impairment.
Therefore,
we
will
continue
to
encourage
States
to
coordinate
their
work,
but
it
is
not
a
requirement
and,
thus,
not
an
approvability
issue.

Comments:
Other
commenters
encouraged
EPA
to
identify
flexibility
so
that
areas
may
be
provided
more
time
if
they
are
developing
a
multi­
pollutant
strategy.
Commenters
stated
that
it
is
imperative
that
SIP
obligations
and
attainment
dates
with
respect
to
these
regulated
air
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pollutants
be
harmonized
and
that
regulatory
requirements
and
deadlines
be
closely
coordinated.
One
commenter
stated
this
may
require
certain
deadlines
be
extended
and
that
they
believe
Congress
would
not
be
opposed
to
extending
deadlines
in
the
name
of
efficiency.

Response:
To
the
extent
our
legal
authority
allows,
we
are
working
to
harmonize
SIP
time
lines
for
ozone,
PM2.5,
and
regional
haze.
This
8­
hr
ozone
implementation
rule
is
necessarily
based
on
the
existing
CAA
and
does
not
assume
any
changes
to
the
Act
that
may
occur
in
the
future.
Thus,

we
cannot
fully
harmonize
the
deadlines.
However,
the
substantial
overlap
in
planning
periods
will
allow
states
to
coordinate
planning
efforts
among
programs,
without
postponing
implementation.

K.
What
emissions
inventory
requirements
should
apply
under
the
8­
hour
ozone
NAAQS?
[
Section
VI.
Q.
of
June
2,
2003
proposed
rule
(
68
FR
32853);
section
51.915
in
draft
and
final
regulatory
text.]

1.
Background
As
noted
in
the
June
2,
2003
proposed
rule,
we
are
relying
on
existing
emissions
reporting
requirements
in
40
CFR
Part
51
subpart
A
to
satisfy
the
emissions
inventory
data
requirements
under
the
8­
hour
ozone
NAAQS.
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292
2.
Summary
of
final
rule
Section
51.915
of
the
final
rule
reflects
our
proposal
and
draft
regulatory
text.
Existing
emissions
reporting
requirements
in
40
CFR
Part
51
subpart
A
are
sufficient
to
satisfy
the
emissions
inventory
data
requirements
under
the
8­
hour
ozone
NAAQS.

3.
Comments
and
Responses
Comment:
Several
commenters
said
that
the
proposal
does
not
discuss
specific
requirements
above
and
beyond
those
in
the
Consolidated
Emissions
Reporting
Rule
(
CERR).
However,

the
proposal
does
mention
one
EPA
guidance
document,

Emissions
Inventory
Guidance
for
Implementation
of
Ozone
and
Particulate
Matter
National
Ambient
Air
Quality
Standards
(
NAAQS)
and
Regional
Haze
Regulations.
This
document
states
that
"
The
EPA
developed
this
guidance
document
to
complement
the
CERR
and
to
provide
specific
guidance
to
State
and
local
agencies
and
Tribes
on
how
to
develop
emissions
inventories
for
8­
hour
ozone,
PM2.5,
and
regional
haze
SIPs."
Since
the
8­
hour
emissions
inventory
requirements
are
the
same
for
the
CERR,
there
should
be
no
additional,
special
requirements
needed
in
emissions
inventory
development
for
the
proposed
8­
hour
rule.

Response:
We
agree
that
the
CERR
requirements
should
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satisfy
8­
hour
ozone
SIP
emissions
inventory
requirements.

Depending
on
when
an
area
is
designated
nonattainment
and
therefore
when
the
SIP
is
due,
in
some
cases
it
may
be
necessary
to
update
the
2002
emissions
inventory
that
was
submitted
under
CERR.
If
a
State's
2005
emission
inventory
(
or
a
later
one)
becomes
available
in
time
to
use
for
an
area
subsequently
redesignated
nonattainment,
then
that
inventory
should
be
used.
We
also
encourage
the
cooperation
of
the
Tribes
and
the
State
and
local
agencies
in
preparing
their
emissions
inventories.

Comment:
One
commenter
was
concerned
with
the
timing
of
the
release
of
the
final
version
of
the
NONROAD
model
(
used
to
estimate
mobile
source
emissions
from
non­
road
sources).
The
commenter
agreed
that
the
draft
version
out
for
comment
during
the
comment
period
was
superior
to
previous
calculation
methodology
and
should
be
used
for
planning
purposes,
however
EPA
needs
to
be
cognizant
of
how
disruptive
to
the
planning
process
it
is
for
new
versions
of
emissions
models
to
be
released
and
incorporated
in
the
middle
of
the
development
of
a
SIP.
The
commenter
strongly
encourages
EPA
to
expedite
the
review
and
approval
of
any
new
models
that
will
ultimately
be
used
by
States.

Response:
We
acknowledge
that
the
timing
of
the
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release
of
new
models
can
sometimes
complicate
the
SIP
planning
process.
In
this
case,
the
timing
of
the
final
release
of
the
NONROAD
is
dependent
on
the
timing
of
the
new
nonroad
standards
final
rule.
We
will
do
what
we
can
to
expedite
the
release
of
a
new
version
of
NONROAD
that
reflects
the
emissions
benefits
of
the
nonroad
rule
as
soon
as
possible.
In
addition,
we
intend
to
provide
guidance
on
the
use
of
NONROAD
that
allows
for
completion
of
ongoing
work
with
the
current
version
of
NONROAD
if
switching
to
the
new
version
would
cause
significant
delay.
EPA
has
included
similar
language
in
previous
SIP
policy
guidance
for
the
MOBILE
model.

Comment:
One
commenter
urged
EPA
to
improve
the
quality
of
PM2.5
rates
in
MOBILE6.2
so
that
areas
will
have
a
more
reliable
tool
for
creating
a
2002
base­
year
inventory
and
SIP
planning.
The
commenter
was
concerned
about
developing
PM2.5
emissions
inventories
because
PM2.5
emission
factors
in
MOBILE6.2
are
based
largely
on
the
old
Part
#
5
emission
model
and
are
not
as
sophisticated
as
the
rates
for
CO,
NOx,
and
VOC.
The
commenter
also
expressed
concern
about
the
lack
of
knowledge
and
techniques
available
for
performing
on­
road
mobile
source
fine
particulate
emissions
inventories.
Metropolitan
Planning
Organizations
(
MPOs)
and
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air
quality
agency
staff
need
to
have
a
more
reliable
tool
and
acceptable
methods
for
creating
base
year
PM2.5
inventories
and
for
SIP
planning.

Response:
Particulate
emission
factors
in
MOBILE6.2
are
based
on
the
best
technical
information
available
at
the
time
the
model
was
developed
and
we
believe
that
it
is
the
best
available
tool
for
estimating
on­
road
emission
factors
for
PM2.5.
We
are
currently
developing
a
project
to
collect
additional
PM
data
which
will
be
incorporated
in
future
versions
of
the
EPA
mobile
source
emission
factor
model.
We
continue
to
work
to
improve
models
and
inventory
methods
for
all
pollutants.
We
will
facilitate
the
development
of
workshops
and
training
opportunities
to
assist
MPO
and
air
quality
staff
who
are
working
on
PM2.5
inventories.

Comment:
One
commenter
stated
that
since
the
CERR
requires
inventories
every
three
years,
that
the
CERR
should
replace
the
Emission
Statement
Reporting
Program
(
ESRP)

requirement,
which
was
required
before
the
CERR
was
adopted.

Response:
The
ESRP
is
statutorily
prescribed
in
section
182
(
a)(
3)(
B)
of
the
Act
and
cannot
be
replaced
by
rulemaking.
In
addition,
the
emission
statement
requirement
satisfies
a
different
need
from
the
periodic
emissions
inventory
requirement,
namely
that
affected
sources
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themselves
have
to
report
to
the
State
their
updated
emissions
information,
whereas
the
emissions
inventory
requirement
is
a
requirement
on
States
to
compile
and
make
available
to
EPA
an
emissions
inventory.
We
believe
that
the
ESRP
is
a
complementary
program
to
the
CERR
and
makes
it
easier
for
States
to
satisfy
their
CERR
reporting
requirements
by
providing
data
to
the
States
from
the
sources.

Comment:
One
commenter
said
that
persistent
inaccuracies
in
official
emissions
inventories
have
hindered
regulatory
acknowledgment
and
mitigation
of
the
automobile
VOC
and
CO
gross
polluter
problem.
EPA
should
develop
realistic
emissions
inventories
and
require
States
to
do
the
same.
Known
errors
in
these
inventories
continue
to
misdirect
emission
reduction
efforts.
In
particular,
too
little
focus
has
been
placed
on
the
potential
for
rapid,

substantial
VOC
and
CO
reductions
from
the
in­
use
automobile
fleet.

Response:
We
agree
that
realistic
emissions
inventories
are
important
to
properly
direct
emission
reduction
efforts.
Current
emission
factor
models
and
inventory
methods
are
far
superior
to
previous
models
and
methods
and
we
are
working
to
continually
improve
models
an
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methods
for
developing
emissions
inventories
for
on­
road
and
nonroad
vehicles
and
equipment.

Comment:
One
commenter
stated
that
the
official
emissions
inventories
generated
and
used
by
EPA
and
State
regulatory
agencies
for
SIP
planning
and
implementation
have
been
shown
repeatedly
to
suffer
from
serious
inaccuracies
and
biases.
Problems
with
inventories
include
errors
in
the
total
amount
of
emissions,
as
well
as
errors
in
the
apportionment
of
emissions
among
various
source
categories.

The
most
serious
inventory
problems
center
on
VOC
and
CO,

while
problems
with
NOx
inventories
appear
to
be
more
modest.
Since
emissions
inventories
are
a
fundamental
input
to
the
process
of
choosing
pollution
reduction
measures
and
to
the
modeling
used
to
demonstrate
future
attainment
of
NAAQS,
an
inaccurate
inventory
is
likely
to
lead
to
poor
policy
choices
in
terms
of
cost,
effectiveness,
or
both.

Response:
We
agree
that
emissions
inventories
are
fundamental
inputs
to
the
air
quality
management
process.

We
continue
to
strive
to
work
with
State
and
local
agency
partners
to
develop
emissions
inventories
that
best
reflect
the
real
world
and
will
thus
assist
in
identifying
control
strategies
to
make
reasonable
further
progress
and
attain
the
NAAQS.
One
should
be
aware,
however,
that
it
is
PREDECISIONAL
DRAFT
 
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NOT
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OR
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draft
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6/
05
298
impossible
to
develop
an
emissions
inventory
for
an
area
that
is
100
percent
accurate.
Part
of
the
problem
is
that
most
sources
 
including
mobile
sources
 
don't
monitor
and
report
emissions
continuously,
and
therefore
we
and
the
States
must
use
other
methods
to
estimate
emissions
from
them.
Thus,
emission
inventories
are
by
nature
estimates
of
actual
releases
to
the
atmosphere.
EPA
believes
that
current
emission
inventories
are
sufficiently
accurate
to
support
the
air
quality
management
decisions
that
are
derived
from
the
application
of
emission
inventories
and
air
quality
models.
The
emissions
data
generated
and
used
by
EPA
and
State
regulatory
agencies
for
SIP
planning
and
implementation
is
the
best
available.
Although
inventories
are
often
criticized
as
lacking
accuracy,
seldom
do
critics
supply
better
information.

Comment:
One
commenter
stated
that
the
Agency
proposes
that
the
latest
approved
version
of
the
MOBILE
model
should
be
used
to
estimate
emissions
from
on­
road
transportation
systems.
The
commenter
recommended
that
if
there
are
other
models,
which
meet
EPA
performance
criteria
and
are
scientifically
peer
reviewed,
they
should
also
be
acceptable
(
e.
g.,
the
California
mobile
model,
"
EMission
FACtor"

(
EMFAC)).
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Response:
We
believe
that
MOBILE
is
the
best
available
tool
for
estimating
emissions
from
on­
road
transportation
systems
outside
of
California.
We
are
working
to
continually
improve
emission
factor
models
and
inventory
methods
for
on­
road
vehicles.
EMFAC
is
not
designed
to
be
able
to
estimate
fleet,
activity,
fuel,
and
environmental
characteristics
outside
of
California
and
is
not
a
reasonable
substitute
for
MOBILE
in
States
other
than
California.

Comment:
One
commenter
supported
the
use
of
MOBILE6
in
the
8­
hour
emissions
inventory
analyses
and
believed
that
EPA
should
change
the
guidance
with
respect
to
the
use
of
MOBILE6
from
"
should
be
used"
to
"
must
be
used."
The
commenter
cautioned
that
MOBILE6
still
significantly
overpredicts
emission
from
passenger
cars
and
light
duty
trucks
for
many
reasons
including
the
following:
1)
the
model
does
not
adequately
account
for
the
benefits
of
onboard
diagnostic
regulation
in
non­
IM
areas;
and
2)
the
model
does
not
reflect
the
decline
in
trips
per
day
versus
vehicle
age.

Response:
We
cannot
use
the
word
"
must"
in
guidance
unless
the
guidance
refers
to
a
requirement
mandated
by
the
statute
or
our
regulations.
In
this
case,
neither
the
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statute
nor
our
regulations
specifically
requires
the
use
of
the
latest
approved
version
of
MOBILE
(
currently
MOBILE6.2).

in
SIPs.
MOBILE6.2
is
based
on
the
best
information
available
at
the
time
of
its
development
and
release
and,

therefore,
EPA
has
indicated
that
it
should
be
used.
We
do
not
believe
that
more
OBD
benefits
in
non­
I/
M
areas
was
justified
based
on
available
data
at
the
time
of
the
release
of
MOBILE6.2.
Likewise,
we
did
not
have
sufficient
data
to
develop
alternative
assumptions
about
the
relationship
between
trips
per
day
and
vehicle
age.
We
are
working
to
continually
improve
emission
factor
models
and
inventory
methods
for
on­
road
vehicles
and
will
review
these
issues
during
the
development
of
the
next
emission
factor
model.

L.
What
guidance
should
be
provided
that
is
specific
to
Tribes?
[
Section
VI.
R.
of
June
2,
2003
proposed
rule
(
68
FR
32854);
no
draft
or
final
regulatory
text.]

1.
Background
As
noted
in
the
preamble
to
the
proposal,
the
Tribal
Authority
Rule
(
TAR)(
40
CFR
part
49),
which
implements
section
301(
d)
of
the
CAA,
gives
Tribes
the
option
of
developing
Tribal
Implementation
Plans
(
TIPs)
which
can
then
be
submitted
to
EPA
for
approval.
Unlike
States,
Tribes
are
not
required
to
develop
implementation
plans.
Under
the
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64See
40
CFR
Part
49.4(
a).
In
addition,
EPA
determined
it
was
not
appropriate
to
treat
tribes
similarly
to
states
with
respect
to
provisions
of
the
CAA
requiring
as
a
condition
of
program
approval
the
demonstration
of
criminal
enforcement
authority
or
providing
for
the
delegation
of
such
criminal
enforcement
authority.
See
40
CFR
Part
49.4(
g).
To
the
extent
a
tribe
is
precluded
from
asserting
criminal
enforcement
authority,
the
federal
government
will
exercise
primary
criminal
enforcement
responsibility.
See
40
CFR
Part
49.8.
In
such
circumstances,
tribes
seeking
approval
for
CAA
programs
provide
potential
investigative
leads
to
an
appropriate
federal
enforcement
agency.

301
TAR,
eligible
Tribes
are
treated
in
the
same
manner
as
a
State
when
implementing
the
CAA;
however,
EPA
has
determined
that
Tribes
are
not
required
to
meet
plan
submittal
and
implementation
deadlines
in
the
CAA,
e.
g.,
110(
a)(
1),

172(
a)(
2),
182,
187,
and
191.64
The
TAR
provides
flexibility
for
Tribes
in
the
preparation
of
a
TIP
to
address
the
NAAQS.
The
"
modular
approach"
was
described
in
the
June
2,
2003
proposal
of
this
rule.
The
TAR
indicates
that
EPA
ultimately
has
the
responsibility
for
implementing
CAA
programs
in
Indian
country,
as
necessary
or
appropriate,
if
Tribes
choose
not
to
implement
those
provisions.
EPA
may
find
it
necessary
to
develop
a
Federal
Implementation
Plan
(
FIP)
to
reduce
emissions
from
sources
in
Indian
country
where
the
Tribe
has
not
developed
a
TIP
to
address
an
air
quality
problem.

Finally,
as
discussed
in
the
June
2,
2003
proposal,
it
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is
important
for
both
States
and
Tribes
to
work
together
to
coordinate
planning
efforts
since
many
nonattainment
areas
may
include
both
Tribal
land
and
non­
Tribal
land.

Coordinated
planning
will
help
ensure
that
the
planning
decisions
made
by
the
States
and
Tribes
complement
each
other
and
that
the
nonattainment
area
makes
reasonable
progress
toward
attainment
and
ultimately
attains
the
NAAQS.

In
reviewing
and
approving
the
individual
TIPs
and
SIPs,
we
will
make
certain
they
do
not
conflict
with
the
overall
air
quality
plan
for
an
area,
when
Indian
country
lands
are
part
of
a
multi­
jurisdictional
area.

2.
Summary
of
Policy.

Section
301
(
d)
of
the
CAA
recognizes
that
eligible
Indian
Tribes
are
generally
the
appropriate
non­
federal
authority
to
implement
the
CAA
in
Indian
country.
As
stated
in
the
Tribal
Authority
Rule,
it
is
appropriate
to
treat
eligible
tribes
in
the
same
manner
as
States,
except
for
certain
identified
provisions,
including
provisions
relating
to
plan
submittal
and
implementation
deadlines,
40
CFR
section
49.3,
49.4.
Therefore,
when
we
discuss
the
role
of
the
State
in
implementing
this
rule,
we
are
also
generally
referring
to
eligible
tribes,
with
the
above
exception.

As
we
noted
in
the
June
2,
2003
proposal,
States
have
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303
an
obligation
to
notify
Tribes
as
well
as
other
States
in
advance
of
any
public
hearing(
s)
on
their
State
plans
that
will
significantly
impact
such
jurisdictions.
Under
40
CFR
51.102(
d)(
5),
States
must
notify
the
affected
States
of
hearing
on
their
SIPs;
this
requirement
extends
to
Tribes
under
301(
d)
of
the
CAA
and
the
TAR.
40
CFR
Part
49).

Therefore,
affected
Tribes
that
have
achieved
"
treatment
in
the
same
manner
as
States"
status
must
be
informed
of
the
contents
of
such
plans
and
the
extent
of
documentation
to
support
the
plans.
In
addition
to
this
mandated
process,
we
encourage
states
to
extend
the
same
notice
to
all
Tribes
for
the
reasons
noted
in
the
comment
and
response
below.
EPA
as
a
matter
of
policy
intends
to
consult
with
and
assist
all
Tribes,
regardless
of
whether
a
Tribe
has
received
Treatment
in
a
similar
manner
as
a
State
(
TAS)
approval
for
the
purpose
of
implementing
its
own
TIP,
and
we
encourage
states
to
do
the
same.

Understanding
the
content
of
a
SIP
will
be
important
to
Tribes
located
next
to
areas
where
SIPs
apply,
particularly
to
Tribes
who
do
not
choose
or
have
the
capacity
to
develop
a
TIP.
Therefore
EPA
intends
to
offer
Tribes
the
opportunity
for
consultation
on
activities
potentially
affecting
the
achievement
and
maintenance
of
the
NAAQS
in
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Indian
country.
In
addition,
we
expect
States
to
work
with
Tribes
with
land
that
is
part
of
the
same
air
quality
area
during
the
SIP
development
process
and
to
coordinate
with
Tribes
as
they
develop
the
SIPs.
In
the
case
where
the
State
models
projected
emissions
and
air
quality
under
the
SIP,
the
Tribes
should
be
made
aware
of
these
modeling
analyses.
Tribes
may
wish
to
determine
if
the
Tribal
area
has
been
affected
by
upwind
pollution
and
whether
projected
emissions
from
the
Tribal
area
have
been
considered
in
the
modeling
analysis.

Generally,
Tribal
lands
have
few
major
sources,
but
in
many
cases,
air
quality
in
Indian
country
is
affected
by
the
transport
­
both
long
range
and
shorter
distance
transport
­

of
pollutants.
In
many
cases,
Tribal
nonattainment
problems
caused
by
upwind
sources
will
not
be
solved
by
long­
range
transport
policies,
as
the
Tribes'
geographic
areas
are
small.
Tribes
are
sovereign
entities,
and
not
political
subdivisions
of
States.
Strategies
used
for
intrastate
transport
are
not
always
available.
Most
of
the
strategies
and
policies
used
by
States
in
dealing
with
short­
range
transport
are
not
available
to
Tribes,
e.
g.,
requiring
local
governments
to
work
together
and
expanding
the
area
to
include
the
upwind
sources.
Unlike
Tribes,
States
can
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305
generally
require
local
governments
to
work
together,
or
make
the
nonattainment
area
big
enough
to
cover
contributing
and
affected
areas.
We
believe
that
it
is
also
unfair
to
Tribes
to
require
disproportionate
local
regulatory
efforts
to
compensate
for
upwind
emissions.
In
many
cases,

attainment
could
not
be
reached
even
if
emissions
from
the
Tribe
were
zero.

To
address
these
concerns,
in
the
June
2,
2003
proposal,
we
took
comment
on
the
following:
EPA
will
review
SIPs
for
their
effectiveness
in
preventing
significant
contributions
to
nonattainment
in
downwind
Tribal
areas
with
the
same
scrutiny
it
applies
to
reviewing
SIPs
with
respect
to
impacts
on
downwind
States.
Where
a
Tribe
has
"
treatment
in
the
same
manner
as
States,"
EPA
will
support
the
Tribes
in
reviewing
upwind
area
SIPS
during
the
State
public
comment
period.
We
intend
to
take
the
approach
noted
in
the
proposal.
There
is
no
regulatory
text
for
this
intention.

3.
Comments
and
Responses
Comment:
One
commenter
stated
a
concern
about
the
transport
of
pollutants,
including
ozone
precursors
from
urbanized
areas
into
areas
of
Indian
country.
The
commenter
expressed
strong
support
for
the
proposed
8­
hour
implementation
rule
language
which
addresses
these
transport
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concerns.
He
supported
the
EPA
proposal
language:
"
EPA
will
review
SIPS
for
their
effectiveness
in
preventing
significant
contributions
to
nonattainment
in
downwind
Tribal
areas
with
the
same
scrutiny
it
applies
to
impacts
on
downwind
States.
Where
a
Tribe
has
`
treatment
in
the
same
manner
as
States,'
EPA
will
support
the
Tribe
in
reviewing
upwind
area
SIPs
during
the
State
public
comment
period."

This
commenter
asked
for
clarification
on
the
nature
of
EPA's
support
for
Tribes
without
TAS
status.
The
commenter
also
asked
if
EPA
would
support
Tribes
without
TAS
approval
in
reviewing
upwind
area
SIPs
and
provide
technical
assistance
in
interpreting
SIP
documentation.

Response:
In
the
TAR
we
stated
that
the
CAA
protections
against
interstate
pollutant
transport
apply
with
equal
force
to
States
and
eligible
Tribes.
We
stated
that
the
prohibitions
and
authority
contained
in
sections
110(
a)(
2)(
D)
and
126
of
the
CAA
apply
to
eligible
tribes
in
the
same
manner
as
states.
See
63
Fed.
Reg.
7254,
7260
(
February
12,
1998).
Section
110(
a)(
2)(
D)
requires,
among
other
things,
that
states
include
provisions
in
their
SIPs
that
prohibit
any
emissions
activity
within
the
state
from
significantly
contributing
to
nonattainment,
interfering
with
maintenance
of
the
national
ambient
air
quality
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standards
(
NAAQS)
or
Prevention
of
Significant
Deterioration
(
PSD)
or
visibility
protection
programs
in
another
state.

In
addition,
Section
126
authorizes
any
state
or
eligible
tribe
to
petition
EPA
to
enforce
these
prohibitions
against
a
state
containing
an
allegedly
offending
source
or
group
of
sources.

We
intend
to
consult
with
and
assist
Tribes
during
the
TIP
and
SIP
development
process,
regardless
of
whether
a
Tribe
has
received
TAS
approval
for
the
purpose
of
implementing
its
own
TIP.
Executive
Orders
and
the
EPA
Indian
policy
generally
call
for
EPA
to
be
proactive
with
the
Tribes.
Executive
Order
13175,
entitled
"
Consultation
and
Coordination
with
Indian
Tribal
Governments"
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
Tribal
officials
in
the
development
of
regulatory
policies
that
have
Tribal
implications."
As
part
of
EPA's
ongoing
efforts
to
actively
involve
tribal
officials
in
the
development
of
programs
which
have
tribal
implications,
EPA
in
the
July
18,
2000
"
Guidance
on
8­
hour
Ozone
Designations
for
Indian
Tribes"
established
a
consultation
process
with
each
Tribe
that
EPA
used
throughout
the
designations
process
regardless
of
whether
a
particular
Tribe
has
received
an
eligibility
determination
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308
to
implement
Section
107
of
the
CAA.
In
summary,
EPA
intends,
as
a
matter
of
policy,
to
consult
with
and
assist
interested
Tribal
governments,
regardless
of
their
TAS
status,
in
ensuring
that
the
NAAQS
are
achieved
in
Indian
country,
including
working
with
those
Tribes
located
downwind
from
a
polluting
area.

Comment:
One
commenter
also
asked
us
to
explain
how
we
envision
our
role
in
maintaining
continued
consultation
with
Tribes
throughout
the
state
implementation
plan
development
process.

Response:
We
intend
to
continue
to
offer
Tribes
the
opportunity
for
consultation
on
activities
potentially
affecting
the
achievement
and
maintenance
of
the
NAAQS
in
Indian
country.
In
addition,
we
expect
States
to
work
with
Tribes
with
land
that
is
part
of
a
nonattainment
area
in
the
SIP
development
process
and
to
inform
Tribes
of
the
content
of
these
SIPs
as
they
develop
them.
States
should
coordinate
with
Tribes
when
projecting
emissions
from
counties
or
other
areas
which
include
areas
of
Indian
country
to
ensure
that
assumptions
regarding
demographics,

economic
activity,
commuting
patterns,
etc.
are
accurate
for
the
Tribal
portions.
Where
the
State
models
project
future
emissions
under
the
SIP
and
their
effect
on
air
quality,
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
309
then
Tribes
should
be
made
aware
of
these
modeling
analyses
in
order
to
determine
if
their
Indian
country
has
been
affected
by
upwind
pollution
and
whether
this
impact
has
been
considered
in
the
modeling
analyses.

States
have
an
obligation
under
40
CFR
51.102(
d)(
5)
to
notify
other
States
in
advance
of
any
public
hearing(
s)
of
their
State
plans
which
will
significantly
impact
those
other
entities.
This
CAA
requirement
for
States
to
notify
other
parties
extends
to
Tribes
under
section
301(
d)
and
the
TAR.

Historically,
States
have
not
always
understood
their
responsibility
to
coordinate
with
other
affected
entities,

including,
where
appropriate,
Tribes.
States
may
not
know
how
to
contact
Tribes,
particularly
when
Tribal
air
programs
are
not
well
developed.
It
may
be
difficult
for
a
State
to
obtain
a
copy
of
the
control
requirements
for
Indian
country.
We
can
assist
States
in
identifying
and
contacting
Tribes
that
they
should
be
consulting.
When
developing
control
strategies
and
making
policy
decisions,
States
should
as
appropriate,
coordinate
with
Tribes
at
the
earliest
opportunity.
Where
States
utilize
stake­

holderbased
consensus
processes
to
develop
SIP
strategies,
we
recommend
that
Tribes
be
provided
the
opportunity
to
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
310
participate
in
the
process
to
the
extent
they
can.

We
are
considering
providing
Tribes
guidance
describing
how
to
include
Tribes
in
SIP
development
and
implementation.

Many
Tribes
may
not
possess
the
resources
to
develop
a
TIP
or
may
decide
not
to
develop
a
TIP,
while
others
will
develop
robust
air
quality
programs,
which
may
or
may
not
include
a
TIP.
We
intend
to
work
with
Tribes
with
all
levels
of
air
management
programs.
In
general,
where
areas
of
Indian
country
have
poor
air
quality,
it
is
most
likely
as
a
result
of
transported
pollution
sources.
We
recognize
that
the
manner
in
which
States
construct
the
SIP
and
what
sources
the
SIP
controls
may
impact
Indian
country
located
in
downwind
areas.
We
intend
to
develop
guidance,
tools
and
training
sessions
for
interested
Tribal
communities
to
understand
the
SIP
development
process
and
to
become
active
participants
if
they
wish.

Comment:
One
commenter
representing
a
tribal
organization
raised
concerns
about
the
practical
impacts
of
the
New
Source
Review
(
NSR)
program
on
Indian
Tribes.
The
commenter
noted
that
Tribes
have
long
traditions
of
environmental
stewardship
and
recognize
their
responsibility
to
protect
the
health
of
their
citizens.
However,
he
notes
Tribes
have
the
right
to
pursue
industrial
and
economic
development.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
311
While
that
development
must
comply
with
all
current
environmental
standards,
the
Tribes
should
not
be
burdened
with
requirements
that
in
effect
subsidize
non­
tribal
sources
of
pollution.

Under
the
non­
attainment
NSR
program,
new
major
sources
locating
in
a
non­
attainment
area
are
required
to
obtain
emission
reductions,
referred
to
as
offsets.
The
commenter
states
that
this
requirement
poses
a
hardship
on
an
Indian
reservation
located
in
a
larger
non­
attainment
area.
The
new
source
wishing
to
locate
on
the
reservation
must
obtain
offsets
from
elsewhere
in
the
non­
attainment
area;
there
are
not
usually
enough
sources
on
the
reservation
to
supply
the
needed
emission
reductions.
When
a
tribe
is
located
in
such
a
non­
attainment
area,
efforts
to
increase
economic
development
may
be
stalled
by
an
inability
to
obtain
offsets.
The
commenter
concludes
that
this
requirement
is
unfair
to
tribes
because
of
past
barriers
to
economic
development
in
Indian
country.
The
Commenter
also
states
that
in
many
cases
air
pollution
is
transported
onto
the
reservation.

Response:
EPA
acknowledges
that
Offsets
are
a
concern
for
Tribes.
We
are
currently
evaluating
potential
options
for
addressing
this
concern.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
312
M.
What
are
the
requirements
for
OTRs
under
the
8­
hour
ozone
standard?
[
Section
VI.
S.
of
June
2,
2003
proposed
rule
(
68
FR
32855);
section
51.916
in
draft
and
final
regulatory
text.]

1.
Background
Section
176A
of
subpart
1
provides
EPA
with
authority
to
establish
interstate
transport
regions
where
transport
of
air
pollutants
from
one
or
more
States
contributes
significantly
to
a
violation
of
a
NAAQS
in
one
or
more
other
States.

Section
184
of
subpart
2
establishes
additional
provisions
for
OTRs.
Section
184(
a)
specifically
established
an
OTR
comprising
12
Northeast
and
Mid­
Atlantic
States
and
the
District
of
Columbia
in
order
to
address
the
longstanding
problem
of
interstate
ozone
pollution
in
that
region.
To
date,
the
existing
OTR
is
the
only
transport
region
for
any
pollutant
that
has
been
established.
The
general
provisions
of
section
176A
apply
to
any
OTR
established
under
section
184.

Section
184(
b)
sets
forth
specific
VOC
and
NOx
control
requirements
to
be
applied
throughout
the
entire
OTR,
in
both
attainment
and
nonattainment
areas,
to
reduce
interstate
pollution.
These
additional
regional
control
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
313
requirements
are
part
D
NSR
(
for
VOC
and
NOx),
RACT
(
for
VOC
and
NOx),
enhanced
vehicle
I/
M,
and
Stage
II
vapor
recovery
(
for
vehicle
refueling)
or
a
comparable
measure.
In
general,
these
requirements
duplicate
requirements
for
certain
ozone
nonattainment
areas
that
are
classified
under
subpart
2.
In
the
proposal,
we
indicated
that
we
believed
that
under
section
184
the
current
OTR
will
remain
in
place
and
remain
subject
to
the
section
184
control
requirements
for
purposes
of
the
8­
hour
standard.

2.
Summary
of
Final
Rule
In
today's
rule
we
are
determining
that
section
184
continues
to
apply
for
purposes
of
the
8­
hour
standard.

Therefore,
the
current
OTR
remains
in
place
and
the
section
184
control
requirements
continue
to
apply
for
purposes
of
the
8­
hour
standard.

Today's
rule
also
describes
RACT
requirements
for
portions
of
an
Ozone
Transport
Region
that
are
not
classified
moderate
or
above.
The
State
must
submit
a
SIP
revision
that
meets
the
RACT
requirements
of
section
184
of
the
Act
for
each
area
designated
as
attainment
or
unclassifiable
or
that
may
be
classified
marginal
or
under
section
51.904
of
this
subpart,
but
which
is
located
in
an
ozone
transport
region.
A
major
stationary
source
for
these
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
314
areas
is
defined
as
a
source
which
directly
emits,
or
has
the
potential
to
emit,
100
tons
per
year
or
more
of
NOx
or
50
tons
per
year
or
more
of
VOC.
The
State
is
required
to
submit
the
RACT
revision
no
later
than
2
years
after
the
effective
date
of
the
nonattainment
designation
of
any
area
in
the
OTR
for
the
8­
hour
NAAQS
and
must
provide
for
implementation
of
RACT
as
expeditiously
as
practicable
but
no
later
than
30
months
after
the
RACT
SIP
is
due.

We
believe
that
this
does
not
result
in
any
new
control
requirements
for
any
area
in
the
OTR
because
these
control
requirements
are
not
associated
with
an
area's
designation
or
classification
and
already
apply
region
wide
under
the
1­

hour
ozone
standard.
If
a
new
OTR
is
established
for
purposes
of
the
8­
hour
standard
pursuant
to
section
176A,

that
area
would
also
be
subject
to
the
provisions
and
control
requirements
of
section
184.

3.
Comments
and
Responses
Comments:
The
EPA
received
two
comments
supporting
our
interpretation
of
section
184
with
regard
to
the
8­
hour
standard.
One
commenter
further
asserted
that
for
any
areas
that
might
be
added
to
the
OTR,
or
for
any
new
OTR,
if
modeling
shows
that
the
control
requirements
from
section
184
are
not
appropriate
and
should
not
be
required,
then
EPA
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
315
has
the
discretion
to
exempt
such
areas
from
those
requirements.
The
commenter
pointed
to
a
portion
of
the
decision
in
Alabama
Power
v.
Costle,
636
F.
2d.
323
(
DC
Cir.

1979).

Response:
Regarding
the
comment
about
modeling,
we
are
not
prepared
to
determine
whether
the
de
minimis
doctrine
established
by
the
court
in
Alabama
Power
would
be
available
in
the
situation
the
commenter
describes.
As
the
court
in
that
case
explained,
such
a
determination
would
first
require
EPA
to
assess
whether
Congress,
in
enacting
section
184
of
the
CAA,
was
so
prescriptive
as
to
foreclose
granting
such
waivers.
Since
that
issue
of
statutory
interpretation
for
the
described
situation
is
not
presently
before
the
Agency,
EPA
is
not
addressing
whether
de
minimis
authority
exists
under
section
184.

N.
Are
there
any
additional
requirements
related
to
enforcement
and
compliance?
[
Section
VI.
T.
of
June
2,
2003
proposed
rule
(
68
FR
32855);
no
draft
or
final
regulatory
text.]

1.
Background
In
the
proposal,
we
noted
that
Section
172(
c)(
6)

requires
nonattainment
SIPs
to
"
include
enforceable
emission
limitations,
and
such
other
control
measures,
means
or
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
316
techniques
.
.
.
as
well
as
schedules
and
timetables
for
compliance
,
as
may
be
necessary
or
appropriate
to
provide
for
attainment
.
.
."
We
also
noted
that
the
current
guidance,
"
Guidance
on
Preparing
Enforceable
Regulations
and
Compliance
Programs
for
the
15
Percent
Rate­
of­
Progress
Plans
(
EPA­
452/
R­
93­
005,
June
1993)"
is
relevant
to
rules
adopted
for
SIPs
under
the
8­
hour
ozone
NAAQS
and
should
be
consulted
for
purposes
of
developing
appropriate
nonattainment
plan
provisions
under
section
172(
c)(
6).
We
proposed
no
specific
regulatory
provisions
related
to
compliance
and
enforcement.

2.
Summary
of
final
rule
As
in
the
proposal,
we
are
not
setting
forth
any
additional
rule
related
to
compliance
and
enforcement.

3.
Comments
and
Responses
We
received
no
comments
on
the
proposed
approach
of
handling
enforcement
and
compliance
provisions
related
to
SIPs
for
the
8­
hour
ozone
standard.

O.
What
requirements
should
apply
to
emergency
episodes?

[
Section
VI.
U.
of
June
2,
2003
proposed
rule
(
68
FR
32856);

no
draft
or
final
regulatory
text.]

1.
Background
In
the
June
2,
2003
proposal,
we
noted
that
subpart
H
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
317
of
40
CFR
part
51
specifies
requirements
for
SIPs
to
address
emergency
air
pollution
episodes
and
for
preventing
air
pollutant
levels
from
reaching
levels
determined
to
cause
significant
harm
to
the
health
of
persons.
We
noted
that
we
anticipate
proposing
a
separate
rulemaking
in
the
future
to
update
portions
of
that
rule.

2.
Summary
of
final
rule
We
have
not
yet
proposed
any
rule
revision
related
to
emergency
episodes,
and
the
final
rule
below
does
not
contain
any
such
rule
revision.

3.
Comments
and
Responses
We
received
no
comments
on
our
proposed
approach.

P.
What
ambient
monitoring
requirements
will
apply
under
the
8­
hour
ozone
NAAQS?
[
Section
VI.
V.
of
June
2,
2003
proposed
rule
(
68
FR
32856);
no
draft
or
final
regulatory
text.]

1.
Background
Ozone
monitoring
data
play
an
important
role
in
designations,
control
strategy
development,
and
related
implementation
activities.
We
did
not
propose
any
revisions
to
current
ambient
monitoring
requirements
listed
in
40
CFR
part
58.

We
indicated
in
the
proposal
that
we
do
plan
to
modify
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
318
the
existing
ozone
monitoring
requirements
in
a
separate
rulemaking
as
part
of
implementation
of
the
National
Ambient
Air
Monitoring
Strategy
(
NAAMS),
including
adoption
of
a
national
strategy
introducing
national
core
monitoring
sites
(
NCore)
as
a
replacement
for
traditional
national
air
monitoring
stations/
State
and
local
air
monitoring
stations
(
NAMS/
SLAMS)
monitoring
currently
codified
at
40
CFR
part
58.
Part
of
the
NCore
network
would
include
the
existing
ozone
monitoring
sites
that
currently
support
the
NAAQS­
related
activities.
The
regulatory
modifications
are
expected
to
include
ozone
monitoring
requirements
based
upon
the
population
of
an
area
and
its
historical/
forecasted
ozone
air
quality
values.

We
indicated
in
the
proposal
that
as
part
of
ongoing
air
quality
monitoring
network
assessments
(
outside
the
scope
of
this
present
rulemaking),
each
State,
local,
and
Tribal
air
monitoring
agency
is
being
asked
to
assess
the
adequacy
of
its
air
pollution
monitoring
networks,
including
those
sites
that
measure
ozone.
We
will
work
with
these
agencies
to
develop
network
plans
to
ensure
approval
of
all
network
designs.
It
is
expected
that
the
number
and
location
of
the
original
sites
will
be
very
similar
to
the
current
network.
However,
on
a
local
basis
there
will
be
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
319
some
relocation,
addition,
and
removal
of
ozone
sites
as
a
result
of
regional
network
assessments.

In
addition,
we
stated
that
we
anticipate
that
we
will
include
a
requirement
for
measuring
multiple
air
pollutants,

including
ozone
precursors
at
select
locations.
The
NCore
sites
are
expected
to
include
high­
sensitivity
nitrogen
oxide
(
NO)
and
total
reactive
oxides
of
nitrogen
(
NOy)

measurements
at
locations
across
the
nation
to
support
the
tracking
of
emission
reduction
strategy
efforts
such
as
the
NOx
SIP
Call,
the
CAIR
if
promulgated,
and,
if
created,
a
statute
codifying
the
Administration's
Clear
Skies
Act,

which
addresses
NOx
reductions
across
the
nation.

The
CAA
requires
that
ozone
precursor
monitoring
be
conducted
in
any
ozone
nonattainment
area
classified
as
serious,
severe,
or
extreme.
We
adopted
regulations
reflecting
the
statutory
requirements
in
40
CFR
part
58
in
1994
as
the
Photochemical
Assessment
Monitoring
Stations
(
PAMS)
program.

The
PAMS
monitoring
requirements
("
enhanced
monitoring"

of
ambient
air
under
section
182(
c)(
1)
of
the
Act)
are
retained
in
areas
currently
designated
as
1­
hour
ozone
serious,
severe,
and
extreme
non­
attainment
areas.
Areas
that
are
designated
serious
or
above
under
the
8­
hour
ozone
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
320
NAAQS
are
not
currently
addressed
in
40
CFR
part
58
for
ozone
precursor
monitoring.
The
revisions
to
the
monitoring
regulations
will
also
cover
all
areas
that
are
classified
as
serious
or
above
for
the
8­
hour
NAAQS.
If
an
area
is
bumped
up
to
serious
or
above
for
the
8­
hour
NAAQS,
it
would
be
subject
to
the
enhanced
monitoring
rule
and
would
be
required
to
conduct
the
appropriate
PAMS
monitoring.

2.
Summary
of
final
rule
There
is
no
change
from
the
proposal.
No
monitoring
requirements
are
being
promulgated
as
part
of
this
rulemaking.

3.
Comments
and
Responses
Comment:
One
commenter
noted
that
the
NAAMS,
which
will
likely
influence
the
future
of
the
ozone
monitoring
network,
is
based
on
the
presumption
that
less
criteria
pollutant
monitoring
is
needed
and
that
resources
must
be
shifted
into
measures
that
support
other
analyses.
The
commenter
pointed
out
that
many
States
have
already
curtailed
their
criteria
pollutant
monitoring
networks
in
order
to
meet
program
requirements.
The
commenter
argued
that
we
should
support
and
maintain
the
ozone
monitoring
network
since
the
data
is
used
as
the
basis
of
attainment
determinations
and
the
tracking
of
progress.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
321
Response:
While
we
did
discuss
some
aspects
of
the
NAAMS
in
the
proposed
rule,
this
rulemaking
effort
does
not
affect
the
ambient
monitoring
requirements
listed
in
40
CFR
part
58.
As
such,
comments
on
the
NAAMS
are
not
germane
to
this
action.
As
noted
above,
we
are
working
on
a
separate
rulemaking
effort
to
amend
the
ambient
monitoring
requirements.
We
will
address
comments
on
the
NAAMS
under
that
action.

We
recognize
that
ozone
continues
to
pose
a
significant
environmental
threat,
and
agree
that
the
current
ozone
network
should
be
maintained.
The
NAAMS
does
not
recommend
curtailing
ozone
monitoring,
but
rather
recommends
that
State
and
local
agencies
perform
assessments
of
their
ozone
networks
to
assure
that
the
available
resources
are
used
to
maximum
benefit.
We
do
not
foresee
significant
changes
to
the
existing
ozone
network
as
a
result
of
these
assessments.

The
NAAMS
does
recommend
that
resources
be
shifted
from
criteria
pollutant
monitoring
to
other
monitoring
initiatives
(
e.
g.,
air
toxics)
for
those
criteria
pollutants
whose
ambient
concentrations
are
well
below
their
respective
NAAQS.
Specifically,
the
strategy
recommends
significant
reductions
in
total
suspended
particulate
(
TSP),
PM10,
SO2,

CO
and
NO2
monitoring.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
322
Comment:
Two
commenters
questioned
the
appropriateness
of
making
high
sensitivity
nitrogen
oxide
and
carbon
monoxide
measurements
at
NCore
Level
2
sites
which
may
be
in
urban
areas.

Response:
This
rulemaking
effort
does
not
affect
the
ambient
monitoring
requirements
listed
in
40
CFR
part
58.

As
such,
comments
on
the
appropriateness
of
making
high
sensitivity
nitrogen
oxide
and
carbon
monoxide
measurements
in
urban
areas
are
not
germane
to
this
action.

Comment:
One
commenter
urged
the
continued
support
of
the
Photochemical
Assessment
Monitoring
Stations
(
PAMS)

program.
The
commenter
points
out
that
the
PAMS'
data
has
been
used
to
evaluate
(
and
improve)
emissions
inventories,

apply
observation­
based
models,
evaluate
photochemical
grid­
based
models,
and
assess
effectiveness
of
control
programs.
The
commenter
argues
that
while
fine­
tuning
the
PAMS
requirements
may
be
appropriate,
the
program
should
be
maintained.

Response:
As
part
of
the
anti­
backsliding
provisions
of
the
Phase
1
rule,
the
PAMS
monitoring
requirements
are
retained
in
areas
currently
designated
as
1­
hour
ozone
serious,
severe,
and
extreme
non­
attainment
areas.
(
See
40
CFR
51.900(
f)(
9).)
In
addition,
areas
that
are
designated
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
323
serious
or
above
under
the
8­
hour
ozone
NAAQS
will
also
be
required
to
comply
with
the
PAMS
monitoring
requirements.

Also,
if
an
area
is
bumped
up
to
serious
or
above
for
the
8­
hour
NAAQS,
it
would
be
subject
to
the
enhanced
monitoring
rule
(
section
182(
c)(
5)
of
the
CAA)
and
would
be
required
to
conduct
the
appropriate
PAMS
monitoring.

Currently,
areas
that
are
designated
serious
or
above
under
the
8­
hour
ozone
NAAQS
are
not
addressed
in
40
CFR
part
58
for
ozone
precursor
monitoring.
As
discussed
above,

we
are
working
on
a
separate
rulemaking
effort
to
amend
the
ambient
monitoring
requirements.
We
expect
these
revisions
to
ensure
that
all
areas
that
are
classified
as
serious
or
above
for
the
8­
hour
NAAQS
are
covered
by
the
PAMS
requirements.

Q.
When
will
EPA
require
8­
hour
attainment
demonstration
SIP
submissions?
[
Section
VI.
W.
of
June
2,
2003
proposed
rule
(
68
FR
32856);
section
51.908(
e)
in
draft
regulatory
text
and
section
51.908(
d)
of
final
regulatory
text.]

1.
Background
In
the
June
2,
2003
notice,
we
proposed
that
required
attainment
demonstrations,
which
will
be
based
on
photochemical
grid
modeling
for
all
areas
must
be
submitted
within
3
years
after
designation.
However,
we
proposed
that
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
324
a
subpart
1
area
that
desires
an
attainment
date
within
3
years
after
designation
would
have
to
provide
a
demonstration
within
1
year
after
designation
that
it
would
attain
by
that
date.

We
noted
that
the
proposed
time
of
submission
is
expected
to
result
in
a
closer
synchronization
of
the
8­
hour
ozone
and
PM2.5
attainment
demonstration
SIP
submittal
dates.

2.
Summary
of
final
rule
The
final
rule
incorporates
the
approach
in
the
proposal,
with
one
exception.
Modeled
attainment
demonstrations
 
where
required
 
must
be
submitted
within
3
years
after
the
effective
date
of
the
area's
nonattainment
designation.
For
subpart
1
areas
that
request
an
attainment
date
within
3
years
after
designation,
we
are
extending
the
12
month
submission
period
we
proposed
to
18
months.
Thus,

a
subpart
1
area
requesting
an
attainment
date
of
3
years
after
designation
must
submit
an
attainment
demonstration
within
18
months
after
designation
for
the
8­
hour
standard.

We
are
allowing
an
additional
6
months
because
of
the
longer­
than­
expected
time
required
to
publish
this
final
rule.

On
June
18,
2004
(
69
FR
34076),
EPA
announced
it
was
reconsidering
the
boundaries
of
the
Las
Vegas,
NV,
8­
hour
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
325
ozone
nonattainment
area.
The
EPA
deferred
the
effective
date
of
the
designation
until
September
13,
2004,
and
that
this
reconsideration
would
not
affect
the
time
SIPs
would
be
due
for
the
Clark
County
nonattainment
area.

3.
Comments
and
Responses
Comment:
Several
commenters
noted
that
they
believed
some
areas
would
need
longer
than
3
years
to
submit
their
attainment
demonstration.
At
least
one
of
these
commenters
noted
that
section
182(
c)(
2)
allows
up
to
4
years
(
rather
than
3
years)
for
submission
of
a
modeled
attainment
demonstration
for
serious
and
above
areas.
One
commenter
recommended
that
for
areas
that
are
violating
the
eight­
hour
standard
and
that
are
currently
not
contained
within
the
one­
hour
boundary,
EPA
should
consider
extending
attainmentmodeling
deadlines
for
areas
that
are
not
currently
contained
within
the
one­
hour
boundary,
but
will
now
be
included
in
the
eight­
hour
boundary.
At
least
one
commenter
agreed
with
the
timing
we
proposed.

Response:
For
the
reasons
stated
in
the
proposal,
we
believe
it
is
appropriate
to
require
that
the
modeled
attainment
demonstrations
be
submitted
within
3
years
after
designation.
In
the
proposal
we
noted
the
following:

°
We
do
not
believe
it
is
appropriate
or
desirable
to
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
326
require
States
to
submit
attainment
demonstrations
for
areas
designated
nonattainment
under
the
8­
hour
standard
at
greatly
different
times
for
different
areas.
We
recognize
that
photochemical
grid
modeling
 
required
by
the
CAA
for
interstate
moderate
nonattainment
areas,
as
well
as
serious
and
higherclassified
areas
 
will
be
performed
on
large
enough
scales
to
address
transport
and
will
in
most
cases
encompass
a
number
of
nonattainment
areas.
These
numerous
nonattainment
areas
may
differ
by
classification
(
some
areas
may
be
intrastate
moderate
areas,
some
interstate
moderate
areas,
and
others
serious
and
above
nonattainment
areas).
Some
areas
that
may
require
attainment
demonstrations
may
be
subject
to
subpart
1
while
others
may
be
subject
to
subpart
2.

°
The
control
strategies
that
may
be
modeled
for
all
the
areas
in
the
modeling
domain
will
likely
be
modeled
simultaneously,
especially
if
all
the
areas
are
located
in
a
single
State.

°
At
the
time
of
enactment
of
the
CAA
Amendments
of
1990,

Congress
allowed
areas
that
used
the
recently
developed
and
complex
photochemical
grid
model
an
extra
year
(
4
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
327
years
rather
than
3
years)
to
submit
their
attainment
demonstration.
Photochemical
grid
modeling
is
now
a
standardized
model
for
purposes
of
developing
attainment
demonstrations,
and
all
areas
will
be
using
these
models
for
purposes
of
their
attainment
demonstrations.
Thus,
there
is
no
distinction
between
the
tools
used
for
attainment
modeling
that
would
justify
additional
time
for
these
areas
to
submit
attainment
demonstrations.

In
light
of
these
reasons,
we
do
not
believe
it
is
reasonable
to
defer
submission
of
attainment
demonstrations
beyond
3
years
after
designation.
We
also
note
that
an
area's
RFP
plan
and
the
RACM
demonstration
under
section
172(
c)(
1)
are
due
within
3
years
after
designation.
For
the
reasons
stated
in
sections
describing
those
requirements,
it
is
appropriate
that
the
attainment
demonstration,
the
RFP
plan,
and
the
RACM
demonstration
be
submitted
at
the
same
time.

R.
How
will
the
statutory
time
periods
in
the
Act
be
addressed
when
we
redesignate
areas
to
nonattainment
following
initial
designations
for
the
8­
hour
NAAQS?

[
Section
VI.
B.
of
June
2,
2003
proposed
rule
(
68
FR
32816);

section
51.906
in
draft
and
final
regulatory
text.]
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
65Section
181(
b)
provides
that
"
any
absolute,
fixed
date
applicable
in
connection
with
any
such
requirement
is
extended
by
operation
of
law
by
a
period
equal
to
the
length
of
time
between
the
date
of
enactment
of
the
CAAA
of
1990
and
the
date
the
area
is
classified
under
this
paragraph."
Under
section
181(
b),
the
date
of
classification
is
the
same
as
the
date
of
redesignation
to
nonattainment.

328
1.
Background
We
noted
in
the
proposal
that
section
181(
b)
of
the
CAA
provides
that
for
areas
designated
attainment
or
unclassifiable
for
ozone
immediately
following
enactment
of
the
1990
CAA
Amendments
and
subsequently
redesignated
to
nonattainment,
the
period
to
the
maximum
statutory
attainment
date
would
run
from
the
date
the
area
is
classified
under
subpart
2.65
Thus,
if
an
area
designated
as
attainment
for
the
1­
hour
ozone
standard
in
1990
was
redesignated
to
nonattainment
for
the
1­
hour
ozone
standard
in
January
2002
and
classified
as
moderate,
the
area's
1­

hour
attainment
date
would
be
no
later
than
6
years
following
January
2002,
i.
e.,
January
2008.
Section
172(
a)(
2)
of
the
CAA
provides
for
attainment
dates
to
be
calculated
from
the
time
the
area
is
designated
nonattainment.

We
also
noted
in
the
proposal
that
most
of
the
SIP
submittal
dates
in
subpart
2
run
for
a
fixed
period
from
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
329
date
of
enactment
of
the
1990
CAA
Amendments,
which
was
also
the
date
of
designation
and
classification
by
operation
of
law
for
most
subpart
2
areas.
Section
181(
b)(
1)
of
the
CAA
provides
that
any
fixed
dates
applicable
in
connection
with
any
such
requirements
under
section
110,
subpart
1
and
subpart
2
will
be
extended
by
operation
of
law
to
a
period
equal
to
the
length
of
time
between
the
date
of
enactment
of
the
CAA
Amendments
and
the
date
that
an
area
is
subsequently
designated
and
classified.

2.
Final
Rule
We
are
adopting
the
approach
set
forth
in
the
proposed
rule.
For
any
area
that
is
initially
designated
attainment
or
unclassifiable
for
the
8­
hour
NAAQS
and
subsequently
redesignated
to
nonattainment
for
the
8­
hour
ozone
NAAQS,

the
periods
for
the
attainment
date
and
dates
for
submittal
of
any
applicable
requirements
under
subpart
1
or
subpart
2
would
run
from
the
date
of
redesignation
to
nonattainment
of
the
8­
hour
NAAQS.
This
is
consistent
with
section
181(
b),

which
gives
areas
redesignated
to
nonattainment
the
same
amount
of
time
to
submit
plans
and
to
attain
the
standard
as
areas
initially
designated
nonattainment.

3.
Comments
and
Responses
Comment:
One
commenter
asked
what
the
reasoning
was
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
330
behind
the
time
period
extension
and
if
this
is
an
attempt
to
provide
equity,
based
on
the
wording
of
the
draft
regulatory
text.

Response:
As
stated
above,
the
CAA
provides
for
extending
by
operation
of
law
any
absolute,
fixed
date
applicable
in
connection
with
a
nonattainment
requirement
by
a
period
equal
to
the
length
of
time
between
the
date
of
enactment
of
the
CAAA
of
1990
and
the
date
the
area
is
classified
and
designated
(
or
redesignated).
Thus,
an
area
redesignated
to
nonattainment
for
the
1­
hour
standard
and
classified
as
moderate
would
have
been
given
3
years
to
submit
an
attainment
demonstration
and
up
to
6
years
to
attain,
which
are
the
same
time
periods
given
to
an
area
designated
nonattainment
and
classified
by
operation
of
law
at
the
time
of
the
1990
CAA
Amendments.
Since
it
does
not
make
sense
to
run
deadlines
from
the
date
of
the
CAA
Amendments
of
1990,
we
have
adopted
an
approach
consistent
with
the
intent
of
that
section
 
that
the
statutory
time
periods
run
from
the
date
of
designation.

V.
EPA's
Final
Rule
for
New
Source
Review
A.
Background
1.
The
Major
NSR
Program
The
major
NSR
program
contained
in
parts
C
and
D
of
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
66
For
a
more
complete
discussion
of
this
decision
and
its
implications,
see
69
FR
23956.

331
title
I
of
the
Act
is
a
preconstruction
review
and
permitting
program
applicable
to
new
and
modified
major
stationary
sources
of
air
pollutants
regulated
under
the
Act.
In
areas
not
meeting
health­
based
NAAQS
and
in
ozone
transport
regions
(
OTR),
the
program
is
implemented
under
the
requirements
of
section
110(
a)(
2)(
C)
and
part
D
of
title
I
of
the
Act.
We
call
this
program
the
"
nonattainment"

major
NSR
program.
Subpart
1
of
part
D
of
title
I
contains
general
requirements
for
nonattainment
areas
for
any
criteria
pollutant
and
subpart
2
contains
provisions
specifically
for
ozone
nonattainment
areas.
Subparts
3
and
4
contain
provisions
specifically
for
carbon
monoxide
and
PM10,
respectively.
In
Whitman
v.
American
Trucking
Associations,
[
531
U.
S.
457,
482­
86
(
2001)],
the
Supreme
Court
reviewed
EPA's
implementation
strategy
for
the
revised
8­
hour
ozone
NAAQS,
and
remanded
it
to
EPA
to
develop
a
reasonable
resolution
of
the
roles
of
subparts
1
and
2
in
classifying
areas
for
and
implementing
the
revised
ozone
standard.
66
In
areas
meeting
the
NAAQS
("
attainment"
areas)
or
for
which
there
is
insufficient
information
to
determine
whether
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
67
In
some
cases,
subpart
1
and
subpart
2
requirements
are
inconsistent
or
overlap.
To
the
extent
that
subpart
2
addresses
a
specific
obligation,
the
provisions
in
subpart
2
control.
68
FR
32811.

332
they
meet
the
NAAQS
("
unclassifiable"
areas),
the
NSR
requirements
under
part
C
of
title
I
of
the
Act
apply.
We
call
this
program
the
Prevention
of
Significant
Deterioration
(
PSD)
program.
Collectively,
we
also
commonly
refer
to
the
attainment
and
nonattainment
programs
as
the
major
NSR
program.
These
regulations
are
contained
in
40
CFR
51.165,
51.166,
52.21,
52.24,
and
part
51,
Appendix
S.
Of
these,
the
nonattainment
area
regulations
are
contained
in
40
CFR
51.165,
52.24,
and
part
51,

Appendix
S.

The
major
NSR
provisions
of
the
Act
are
implemented
primarily
through
SIP­
approved
State
preconstruction
permitting
programs.
As
provided
in
section
172(
c)(
5)
of
the
Act,
the
SIP
must
require
permits
for
the
construction
and
operation
of
new
or
modified
major
stationary
sources
in
accordance
with
section
173
of
the
Act.
Subpart
2
of
title
I
of
the
Act
sets
forth
additional
SIP
requirements
for
ozone
nonattainment
areas,
including
preconstruction
permitting
requirements.
67
The
minimum
permitting
requirements
States
must
meet
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
333
before
EPA
can
approve
a
State's
nonattainment
major
NSR
program
into
a
SIP
are
found
in
part
D
of
title
I
and
40
CFR
51.165.
However,
some
States
are
lacking
a
SIP­
approved
major
NSR
program
for
the
8­
hour
ozone
NAAQS.
This
may
be
because
the
State
has
never
had
a
nonattainment
area
in
which
it
needed
to
apply
a
nonattainment
NSR
program
or
because
the
approved
program
does
not
apply
to
an
8­
hour
ozone
nonattainment
area.
As
discussed
in
Section
V.
D
of
this
preamble,
EPA
is
providing
States
3
years
to
develop
and
submit
an
approvable
nonattainment
major
NSR
program
for
the
8­
hour
NAAQS.
The
regulations
at
40
CFR
52.24(
k)

specify
that
Appendix
S
governs
permits
to
construct
and
operate
that
a
source
applies
for
during
this
SIP
development
period
(
the
interim
period
between
the
effective
date
of
designations
and
the
date
that
EPA
approves
a
nonattainment
major
NSR
program).

Appendix
S
is
an
interpretation
of
40
CFR
subpart
I
(
including
section
51.165),
and
has
historically
reflected
substantially
the
same
requirements
as
those
in
51.165,

subject
to
a
limited
exemption
in
Section
VI.
This
includes
the
requirement
that
a
source
comply
with
the
lowest
achievable
emission
rate
(
LAER)
and
obtain
offsetting
emission
reductions.
Pursuant
to
section
52.24(
k),
where
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
68
On
December
31,
2002,
we
finalized
five
actions
from
that
proposal
related
to
the
applicability
of
the
NSR
regulations.
For
a
summary
of
the
regulatory
development
process
and
stakeholder
development
for
that
rulemaking,
see
67
FR
80188.

334
necessary,
Appendix
S
governs
nonattainment
major
NSR
permitting
of
ozone
precursors
in
8­
hour
ozone
nonattainment
areas
during
the
SIP
development
period.
Thus,
consistent
with
section
110(
a)(
2)(
C),
permitting
of
new
and
modified
stationary
sources
in
the
area
will
be
regulated
as
necessary
to
ensure
that
the
NAAQS
are
achieved.

As
we
describe
further
in
Section
V.
A.
2
of
this
preamble,
today's
final
regulations
were
proposed
as
part
of
two
different
regulatory
packages.
On
July
23,
1996
(
61
FR
38250),
we
proposed
changes
to
the
major
NSR
program,

including
codification
of
the
requirements
of
part
D
of
title
I
of
the
1990
Amendments.
68
On
June
2,
2003
(
68
FR
32802),
we
proposed
a
rule
to
implement
the
8­
hour
ozone
NAAQS.
On
April
30,
2004,
we
promulgated
the
final
rule
and
you
will
find
a
summary
of
the
regulatory
development
process
and
stakeholder
development
for
that
rulemaking
at
69
FR
23951.

2.
What
We
Proposed
a.
Proposed
Changes
to
Incorporate
the
1990
Clean
Air
Act
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
335
Amendments
On
July
23,
1996
(
61
FR
38250),
we
proposed
changes
to
section
51.165
and
Appendix
S
to
incorporate
requirements
in
part
D
of
title
I
of
the
1990
amendments
to
the
CAA
for
ozone,
carbon
monoxide,
and
PM10
nonattainment
areas.

Concerning
ozone,
we
proposed
(
among
other
things)
to
codify
the
following
provisions
from
Section
182
of
the
Act.

°
major
stationary
source
thresholds
(
ranging
from
10
to
100
tpy,
depending
on
classification)

°
significant
emission
rates
(
ranging
from
0
to
25
tpy)

°
offset
ratios
(
ranging
from
1.1:
1
to
1.5:
1)

°
special
modification
provisions
implementing
CAA
sections
182(
c),
(
d),
and
(
e)
for
serious,
severe,
and
extreme
ozone
nonattainment
areas
In
the
1996
proposal,
we
proposed
that
the
major
stationary
source
thresholds
and
offset
ratios
of
CAA
section
182
(
subpart
2
of
part
D)
would
apply
to
all
major
stationary
sources
of
VOC
and
NOx
to
implement
major
NSR
under
the
1­
hour
ozone
NAAQS.
This
proposal
is
consistent
with
the
1991
and
1992
Transition
Policy
Memos
explaining
major
NSR
requirements
under
the
1990
Clean
Air
Act
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
69
John
S.
Seitz,
"
New
Source
Review
(
NSR)
Program
Transitional
Guidance,"
March
11,
1991.
We
provided
additional
transitional
guidance
for
nonattainment
areas
in
our
September
3,
1992
memorandum,
New
Source
Review
(
NSR)
program
Supplemental
Transitional
Guidance
on
Applicability
of
New
Part
D
NSR
Permit
Requirements,
from
John
Seitz,
Director,
Office
of
Air
Quality
Planning
and
Standards.

336
Amendments.
69
These
memos
also
explained
that
permits
must
comply
with
the
new
statutory
requirements
for
major
NSR
under
the
1­
hour
NAAQS
after
the
deadlines
set
by
Congress,

regardless
of
the
delay
in
incorporating
them
into
SIPs.

Our
1996
proposal
predated
promulgation
of
the
8­
hour
ozone
NAAQS
and
thus
did
not
explain
the
details
of
implementation
of
these
standards
under
section
51.165
or
Appendix
S.
For
a
discussion
of
implementation
of
the
1­

hour
and
8­
hour
ozone
NAAQS
under
section
51.165
and
Appendix
S,
see
Section
V.
D.
of
this
preamble.

Also,
in
our
1996
notice,
and
then
again
in
our
June
2,

2003
notice,
we
proposed
to
amend
our
nonattainment
NSR
provisions
to
expressly
include
NOx
as
an
ozone
precursor
in
nonattainment
major
NSR
programs.
(
61
FR
38297,68
FR
32847)

We
also
proposed
that,
as
provided
under
CAA
section
182(
f),

a
waiver
from
nonattainment
NSR
for
NOx
as
an
ozone
precursor
would
be
available
for
both
subpart
1
and
subpart
2
areas.
(
68
FR
32846)
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
337
On
June
2,
2003,
we
proposed
a
rule
to
identify
the
statutory
requirements
that
apply
for
purposes
of
developing
SIPs
under
the
CAA
to
implement
the
8­
hour
ozone
NAAQS.
(
68
FR
32802)
Specifically,
we
proposed
two
options­
one
in
which
all
nonattainment
areas
would
be
classified
and
regulated
under
subpart
2
of
part
D
of
title
I,
and
one
in
which
some
nonattainment
areas
would
be
regulated
under
the
less
restrictive
requirements
of
subpart
1
and
some
would
be
classified
and
regulated
under
subpart
2.
For
areas
classified
under
subpart
2
 
those
with
a
1­
hour
ozone
design
value
at
or
above
0.121
ppm
 
the
classifications
set
forth
in
subpart
2
(
marginal,
moderate,
etc.)
would
govern
part
D
SIPs
for
the
8­
hour
ozone
standard,
with
each
area's
classification
determined
by
a
modified
version
of
the
subpart
2
classification
table
containing
1­
hour
design
values
and
translated
8­
hour
design
values
for
each
classification.
The
NSR
permitting
requirements
for
the
8­

hour
ozone
standard
necessarily
follow
from
the
classification
scheme
chosen
under
the
terms
of
subpart
1
and
subpart
2.
We
did
not
propose
specific
regulatory
language
for
implementation
of
NSR
under
the
8­
hour
NAAQS.

However,
we
indicated
that
we
intended
to
revise
the
nonattainment
NSR
regulations
to
be
consistent
with
the
rule
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
338
for
implementing
the
8­
hour
ozone
NAAQS.
(
68
FR
32844)

Concerning
carbon
monoxide,
in
1996
we
proposed
the
following.

°
Major
stationary
source
threshold
of
50
tpy
for
serious
nonattainment
areas
in
which
the
Administrator
has
determined
that
stationary
sources
are
significant
contributors
to
carbon
monoxide
levels
°
Significant
emission
rate
of
50
tpy
for
serious
nonattainment
areas
in
which
the
Administrator
has
determined
that
stationary
sources
are
significant
contributors
to
carbon
monoxide
levels
Concerning
PM10,
in
1996
we
proposed
to
amend
our
nonattainment
NSR
regulations
to
incorporate
requirements
of
the
1990
Amendments
and
establish
significant
emission
rates.
Specifically
we
proposed
the
following.

53.
Major
stationary
source
threshold
of
100
tpy
PM10
or
any
specific
PM10
precursor
in
moderate
PM10
nonattainment
areas
54.
Major
stationary
source
threshold
of
70
tpy
PM10
or
any
specific
PM10
precursor
in
serious
PM10
nonattainment
areas
55.
Significant
emission
rate
of
15
tpy
PM10
and
40
tpy
PM10
precursors
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
339
b.
Proposed
Changes
to
Criteria
for
Emission
Reduction
Credits
from
Shutdowns
and
Curtailments
In
1996
we
proposed
to
revise
the
regulations
limiting
offsets
from
emission
reductions
due
to
shutting
down
an
existing
source
or
curtailing
production
or
operating
hours
below
baseline
levels
("
shutdowns/
curtailments").
The
prior
regulations
at
section
51.165(
a)(
3)(
ii)(
C)
provided
that
such
emission
reductions
could
be
used
as
offsets
if
the
State
lacked
an
approved
attainment
demonstration,
unless
the
shutdown/
curtailment
occurred
after
the
date
the
new
source
permit
application
was
filed
or
the
applicant
could
establish
that
the
proposed
new
source
is
a
replacement
for
the
shutdown/
curtailed
source.
We
proposed
to
revise
the
existing
provisions
for
crediting
emission
reductions
by
restructuring
existing
section
51.165(
a)(
3)(
ii)(
C)(
1)
and
(
2)
for
clarity
without
changing
the
current
requirements
therein.
[
See
proposed
section
51.165
(
a)(
3)(
ii)(
C)(
1)

through
(
4).]
We
also
proposed
substantive
revisions
in
two
alternatives
that
would
ease,
under
certain
circumstances,

the
existing
restrictions
on
the
use
of
emission
reduction
credits
from
source
shutdowns
and
curtailments
as
offsets.

We
explained
that
easing
the
restrictions
may
be
warranted
by
the
1990
Amendments,
in
which
Congress
significantly
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
70
For
a
complete
discussion
of
how
the
1990
Amendments
attainment
planning
requirements
related
to
shutdown/
curtailment
credits,
see
61
FR
38311.

71
Use
of
Shutdown
Credits
for
Offsets,
July
21,
1993,
John
Seitz,
Director,
Office
of
Air
Quality
Planning
and
Standards.

340
reworked
the
attainment
planning
requirements
of
part
D
of
title
I
of
the
CAA
such
that
an
approved
attainment
demonstration
is
unnecessary.

The
revised
Act
emphasizes
the
emission
inventory
as
the
first
requirement
in
planning,
includes
new
provisions
keyed
to
the
inventory
requirements,
and
mandates
several
adverse
consequences
for
States
that
fail
to
meet
the
planning
or
emission
reductions
requirements
related
to
inventories.
70
In
1993,
we
issued
a
policy
memorandum
addressing
the
use
of
shutdown
credits
for
offsets
in
ozone
nonattainment
areas
and
areas
in
the
OTR
in
light
of
the
new
statutory
requirements.
71
According
to
our
longstanding
policy,
we
emphasized
that
sources
may
use
emission
reduction
credits
generated
from
shutdowns
and
curtailments
as
offsets
if
the
State
continues
to
include
the
emissions
in
the
emissions
inventory
for
attainment
demonstration
and
RFP
milestone
purposes.
We
proposed
two
alternatives
to
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
341
revise
the
regulations
that
limit
a
source's
use
of
emission
reductions
as
offsets
if
the
reductions
were
achieved
by
shutting
down
an
existing
emissions
unit
or
curtailing
production
or
operating
hours
of
a
unit
(
shutdowns/
curtailments).

Under
Alternative
1,
we
proposed
to
allow
emission
reductions
from
shutdowns
and
curtailments
from
sources
located
in
ozone
nonattainment
areas
that
lack
an
EPAapproved
attainment
demonstration
to
be
used
as
offsets
or
netting
credits,
if
the
emission
reductions
occur
after
November
15,
1990
and
the
area
is
current
with
part
D
ozone
nonattainment
planning
requirements.
See
proposed
section
51.165(
a)(
3)(
ii)(
C)(
5)
and
(
6)[
Alternative
1].
Proposed
Alternative
2
generally
would
have
allowed
emission
reductions
from
source
shutdowns
and
source
curtailments
in
all
nonattainment
areas
and
for
all
pollutants
to
be
used
as
offsets
or
netting
credits
when
such
reductions
occur
after
the
base
year
of
the
emissions
inventory
for
that
pollutant.

See
proposed
section
51.165(
a)(
3)(
ii)(
C)(
5)[
Alternative
2].

The
1996
proposal
retained
the
provision
that
the
permitting
authority
may
consider
the
shutdown
or
curtailment
to
have
occurred
after
the
date
of
its
most
recent
emissions
inventory
if
the
inventory
explicitly
includes
as
current
PREDECISIONAL
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05
342
existing
emissions
the
emissions
from
such
previously
shutdown
or
curtailed
sources.

c.
Proposed
Changes
to
Revise
the
Construction
Ban
Provisions
On
July
23,
1996,
we
proposed
to
revise
section
52.24(
a)
to
incorporate
changes
made
by
the
1990
Amendments
related
to
the
applicability
of
construction
bans.
Under
the
1977
Amendments,
section
110(
a)(
2)(
I)
of
the
Act
required
the
EPA
to
place
certain
areas
under
a
federally
imposed
construction
moratorium
(
ban)
that
prohibited
the
construction
of
new
or
modified
major
stationary
sources
in
nonattainment
areas
where
the
State
failed
to
have
an
implementation
plan
meeting
all
of
the
requirements
of
part
D.
The
1990
amendments
removed
these
provisions
from
the
Act.
However,
in
section
110(
n)(
3)
of
the
Act
(
Savings
Clause),
the
1990
Amendments
retained
the
prohibition
in
cases
where
it
was
applied
prior
to
the
1990
Amendments
based
upon
a
finding
by
the
Administrator
that
the
area:

(
1)
lacked
an
adequate
NSR
permitting
program
(
as
required
by
section
172(
b)(
6)
of
the
1977
Act);
or
(
2)
the
State
plan
failed
to
achieve
the
timely
attainment
of
the
NAAQS
for
sulfur
dioxide
by
December
31,
1982.
All
other
construction
bans
pursuant
to
section
110(
a)(
2)(
I)
are
lifted
as
a
result
PREDECISIONAL
DRAFT
 
DO
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QUOTE,
CITE
OR
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draft
2/
6/
05
343
of
the
new
statutory
provision.
This
includes
previously
imposed
construction
bans
based
upon
a
finding
that
the
plan
for
the
area
did
not
demonstrate
timely
attainment
and
maintenance
of
the
ozone
or
CO
NAAQS.
In
accordance
with
the
amended
section
110(
n)(
3)
of
the
Act,
any
remaining
construction
ban
continues
in
effect
until
the
Administrator
determines
that
the
SIP
meets
either
the
amended
part
D
permit
requirements,
or
the
requirements
under
subpart
5
of
part
D
for
attainment
of
the
NAAQS
for
sulfur
dioxide,
as
applicable.

We
note
that
section
52.24(
k)
was
not
retained
in
our
proposed
rule
text.
However,
the
preamble
did
not
in
any
manner
indicate
that
EPA
believed
that
NSR
permits
complying
with
Appendix
S
were
not
required
during
the
SIP
development
period
where
necessary.
To
clarify
our
intent,
our
proposed
8­
hour
ozone
NAAQS
implementation
rule
explained
that
section
52.24(
k)
remained
in
effect
and
would
be
retained.

In
that
action,
we
also
proposed
that
we
would
revise
section
52.24(
k)
to
reflect
the
changes
in
the
1990
Amendments.
(
68
FR
32846)
The
prior
language
at
section
52.24(
k)
allowed
States
to
issue
permits
under
Appendix
S
for
a
maximum
period
of
18
months
after
designation.
After
this
time,
if
the
nonattainment
area
did
not
have
an
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
344
approved
part
D
NSR
permit
program,
the
construction
ban
would
apply.
However,
the
1990
Amendments
to
the
construction
ban
provisions
altered
the
provisions
of
the
construction
ban
such
that
it
would
not
apply
when
a
State
lacked
an
approved
part
D
NSR
program
in
the
future.
Thus,

the
1990
Amendments
supersede
that
portion
of
prior
section
52.24
dealing
with
the
construction
ban
but
leave
unaltered
the
requirement
that
Appendix
S
continues
to
apply
through
section
52.24
(
k).
We
explained
that
we
have
interpreted
this
language
to
allow
States
or
EPA
to
issue
permits
under
Appendix
S
from
designation
to
approval
even
if
the
time
period
between
designation
and
approval
exceeds
18
months,

and
proposed
to
revise
section
52.24(
k)
to
properly
reflect
this
interpretation.

We
also
proposed
regulatory
text
to
reflect
the
revisions
to
CAA
Section
173(
a)(
4).
Before
the
State
can
issue
a
nonattainment
major
NSR
permit,
the
reviewing
authority
must
first
find
pursuant
to
section
173(
a)(
4)
that
the
"
Administrator
has
not
determined
that
the
applicable
implementation
plan
is
not
being
adequately
implemented
for
the
nonattainment
area"
in
accordance
with
the
requirements
of
part
D.
We
stated
our
intent
to
make
this
determination
by
sending
a
letter
to
the
permitting
authority,
and
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
345
publishing
a
subsequent
notice
in
the
Federal
Register,
but
we
solicited
comment
on
the
need
to
undertake
notice­

andcomment
procedures
before
taking
final
action.

Section
113(
a)(
5)
of
the
Act
provides
that
the
EPA
may
issue
an
order
prohibiting
the
construction
or
modification
of
any
major
stationary
source
in
any
area,
including
an
attainment
area,
where
the
Administrator
finds
that
the
State
is
not
in
compliance
with
the
NSR
requirements.

Specifically,
the
EPA
may
issue
an
order
under
section
113(
a)(
5)
banning
construction
in
an
area
whenever
the
Administrator
finds
that
a
State
is
not
acting
in
compliance
with
any
requirement
or
prohibition
of
the
Act
relating
to
construction
of
new
sources
or
the
modification
of
existing
sources.
To
codify
the
requirements
of
section
113(
a)(
5),
we
proposed
new
language
in
section
52.24(
c).

We
proposed
to
remove
the
transition
provisions
under
existing
section
52.24(
c)
and
(
g).
These
paragraphs
were
proposed
to
be
removed
because
they
were
originally
designed
to
clarify
the
applicable
requirements
for
permits
issued
prior
to
the
initial
SIP
revisions
required
by
the
1977
Amendments.

In
addition
to
the
significant
changes
already
discussed,
we
proposed
several
minor
changes
to
section
PREDECISIONAL
DRAFT
 
DO
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draft
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6/
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346
52.24.
These
minor
changes
included:
(
1)
the
addition
of
requirements
applicable
to
transport
regions;
(
2)
the
inclusion
of
requirements
applicable
to
criteria
pollutant
precursors;
(
3)
incorporation
of
the
definitions
proposed
in
section
51.165(
a);
(
4)
revisions
to
the
language
at
section
52.24(
h)(
2);
and
(
5)
revisions
to
section
52.24(
j).

d.
Proposed
Changes
On
Applicability
of
Appendix
S
and
the
Transitional
NSR
Program
On
June
2,
2003
(
68
FR
32802),
we
explained
implementation
of
the
major
NSR
program
under
the
8­
hour
ozone
NAAQS
during
the
SIP
development
period,
and
proposed
flexible
NSR
requirements
for
areas
that
expected
to
attain
the
8­
hour
NAAQS
within
three
years
after
designation.
We
stated
that
the
existing
regulation
codified
at
40
CFR
52.24(
k)
requires
that
permits
be
issued
in
compliance
with
Appendix
S
during
this
time,
and
that
a
State
would
have
to
continue
implementing
part
D
nonattainment
requirements
under
Appendix
S
unless
the
source
was
eligible
for
flexibility
under
Section
VI
of
the
appendix.
(
68
FR
32846­

48.)

Our
June
2,
2003
proposal
would
limit
the
circumstances
under
which
Section
VI
of
Appendix
S
applies.
(
68
FR
32844)

Under
the
existing
regulatory
structure
of
Section
VI,
major
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
347
new
sources
and
major
modifications
located
in
nonattainment
areas
for
which
the
attainment
date
has
not
yet
passed
may
avoid
the
requirement
to
comply
with
LAER
and
obtain
sourcespecific
offsets
if
the
new
emissions
will
not
interfere
with
an
area's
ability
to
reach
attainment
by
its
attainment
date.
Because
we
believed
that
most
new
emissions
in
8­
hour
nonattainment
areas
would
generally
not
meet
this
criteria
of
non­
interference,
we
proposed
to
apply
Section
VI
only
in
areas
that
qualify
for
a
"
transitional
classification."
(
68
FR
32846)
Accordingly,
we
called
this
revised
Section
VI
the
Transitional
NSR
Program.
We
proposed
that
the
program
would
apply
only
in
nonattainment
areas
that:
(
1)
are
attaining
the
1­
hour
NAAQS;
(
2)
are
subject
to
subpart
1
(
rather
than
subpart
2)
of
part
D
of
title
I;
(
3)
for
which
the
State
submitted
an
attainment
plan
by
April
15,
2004
that
demonstrates
attainment
within
3
years
after
designation;
(
4)
and
for
which
the
State
submitted
an
attainment
plan
containing
any
additional
local
control
measures
needed
for
attainment
of
the
8­
hour
standard.
(
68
FR
32847)
We
also
proposed
that
the
sources
using
Section
VI
would
be
required
to
comply
with
BACT.

On
August
6,
2003
(
68
FR
46536),
we
solicited
comment
on
additional
options
for
implementing
major
NSR
under
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
348
8­
hour
NAAQS,
including
a
major
rewrite
of
Appendix
S
that
would
include
the
proposed
changes
to
Section
VI.
We
also
solicited
comment
on
two
alternatives
to
Appendix
S
for
implementing
NSR
in
newly
designated
nonattainment
areas
during
the
transitional
SIP
development
period.
One
alternative
was
a
federal
part
D
NSR
regulatory
program
for
major
new
and
modified
sources,
to
be
codified
at
40
CFR
section
52.10,
under
which
EPA
would
be
responsible
for
permitting
unless
a
State
took
delegation
of
the
program.

The
other
alternative
was
application
of
the
federal
PSD
program
at
40
CFR
section
52.21
in
such
newly
designated
nonattainment
areas.

Commenters
stated
that
neither
of
those
alternatives
was
sufficiently
developed
for
public
comment,
and
we
have
not
pursued
them
further.

One
other
proposal
affects
Appendix
S
applicability.

In
1978
(
43
FR
26408)
and
1979
(
44
FR
3276),
we
proposed
that
applicability
under
PSD
and
Appendix
S
respectively
be
based
on
uncontrolled
emissions,
but
sources
would
be
exempt
from
control
requirements
unless
the
increase
in
allowable
emissions
was
at
least
50
tons
per
year
(
tpy),
1,000
pounds
per
day,
or
100
pounds
per
hour.
The
U.
S.
Court
of
Appeals
for
the
District
of
Columbia
Circuit,
however,
ruled
that
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
349
major
source
applicability
should
be
based
on
potential
to
emit,
rather
than
uncontrolled
emissions.
Alabama
Power
Co.

v.
Costle,
606
F.
2d
1068
(
D.
C.
Cir.
1979),
amended
636
F.
3d
323,
356­
57
(
D.
C.
Cir.
1980).
The
court
also
ruled
that
EPA
had
exceeded
its
authority
in
establishing
the
50
tpy
exemption
and
remanded
the
exemption
for
reconsideration.

In
response,
we
proposed
removing
the
50
tpy
exemption
from
the
PSD
rules
and
Appendix
S
in
the
1979
Notice
of
Proposed
Rulemaking
(
NPRM).
(
44
FR
51930)
We
finalized
these
changes
in
1980,
but
we
inadvertently
did
not
remove
the
change
in
all
the
places
in
Appendix
S
where
it
was
located,

specifically
footnotes
5
and
8
to
IV.
D.

e.
Proposed
Changes
to
Identify
NOx
as
an
Ozone
Precursor
in
Attainment
and
Unclassifiable
areas.

Currently,
only
VOCs
are
expressly
regulated
as
ozone
precursors
under
the
PSD
regulations.
Recognizing
the
role
of
NOx
in
ozone
formation
and
transport,
we
proposed
to
amend
our
PSD
regulations
to
expressly
include
NOx
as
an
ozone
precursor
in
attainment
and
unclassifiable
areas.

Moreover,
we
proposed
to
require
States
to
modify
their
existing
programs
to
include
NOx
as
an
ozone
precursor
in
these
areas.
(
68
FR
32846)

B.
Summary
of
Final
Rule
and
Legal
Basis
PREDECISIONAL
DRAFT
 
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draft
2/
6/
05
350
1.
Final
Action
and
Legal
Basis
for
Changes
to
Incorporate
the
1990
Clean
Air
Act
Amendments
a.
Final
Changes
to
Incorporate
the
1990
Clean
Air
Act
Amendments
In
today's
final
action,
we
revised
section
51.165
and
Appendix
S
to
incorporate
the
major
stationary
source
thresholds,
significant
emission
rates,
and
offset
ratios
for
sources
of
ozone
precursors
pursuant
to
part
D,
subpart
1
and
subpart
2
of
title
I
of
the
1990
amendments
to
the
CAA.
[
See
section
51.165(
a)(
1)(
iv),
(
a)(
1)(
v),
(
a)(
1)(
x),

(
a)(
8),
(
a)(
9)
and
Section
II.
A.
4,
5,
and
10
and
Section
IV.
G
and
H
of
Appendix
S.]
Accordingly,
consistent
with
statutory
requirements
and
the
final
rules
in
40
CFR
part
51,
subpart
X
(
Provisions
for
Implementation
of
8­
hour
Ozone
NAAQS),
today's
final
rules
in
section
51.165
require
States'
part
D
NSR
SIPs
implementing
the
8­
hour
ozone
standard
to
include
provisions
meeting
subpart
1
of
part
D
of
the
Act,
and
subpart
2
as
applicable,
based
on
the
area's
classification.
(
We
note
40
CFR
part
51,
subpart
X
includes
the
specific
provisions
for
determining
whether
an
area
is
designated
and
classified
under
subpart
1
or
subpart
2
and
these
rules
are
explained
in
the
preamble
to
those
final
rules
at
69
FR
23954.)
Also,
Appendix
S
requires
States
or
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
351
EPA
to
issue
permits
during
the
SIP
development
period
consistent
with
these
requirements.
Specifically,
under
subpart
1,
the
major
stationary
source
threshold
is
100
tpy,

and
an
offset
ratio
of
at
least
1:
1
applies.
Under
subpart
2,
the
major
stationary
source
threshold
ranges
from
10
to
100
tpy,
depending
on
the
classification
of
the
nonattainment
area
in
which
the
source
is
located.
The
applicable
offset
ratios
range
from
1:
1
to
1:
5,
also
depending
on
the
classification
of
the
nonattainment
area
in
which
the
source
is
located.

We
also
finalized
as
proposed
in
1996
and
2003
that
the
NSR
requirements
applicable
to
major
stationary
sources
of
VOC
(
including
provisions
regarding
major
modifications,

significant
emission
rates,
and
offsets)
apply
to
NOx
emissions.
These
requirements
apply
in
all
8­
hour
ozone
nonattainment
areas,
including
subpart
1
and
subpart
2
areas.
These
requirements
apply
except
where
the
Administrator
determines,
according
to
the
standards
set
forth
in
section
182(
f),
that
NOx
requirements
for
major
stationary
sources,
including
nonattainment
major
NSR
requirements,
would
not
apply
or
would
be
limited
("
NOx
waiver").
[
See
section
51.165(
a)(
8)
and
Appendix
S.]

Acccording
to
section
51.913(
c),
a
section
182(
f)
NOx
PREDECISIONAL
DRAFT
 
DO
NOT
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OR
DISTRIBUTE
draft
2/
6/
05
352
exemption
granted
under
the
1­
hour
ozone
standard
does
not
relieve
the
area
from
any
requirements
under
the
8­
hour
ozone
standard,
including
nonattainment
major
NSR
for
major
stationary
sources
of
NOx.
We
discuss
whether
a
NOx
waiver
under
section
182(
f)
applies
in
a
particular
area
and
the
effects
of
NOx
waivers
on
RACT
in
Section
IV.
H.
of
this
preamble.

We
are
not
taking
final
action
to
implement
the
special
modification
provisions
at
CAA
sections
182(
c),
(
d),
and
(
e)

for
serious,
severe,
and
extreme
ozone
nonattainment
areas
at
this
time.
We
are
evaluating
additional
issues
related
to
implementation
of
these
requirements
and
anticipate
taking
final
action
in
the
future.

As
proposed
on
July
23,
1996
(
61
FR
38250),
we
have
incorporated
requirements
in
part
D
of
title
I
of
the
1990
amendments
to
the
CAA
for
carbon
monoxide.
[
See
section
51.165(
a)(
1)(
iv)(
A)(
1)(
v)
and
(
a)(
1)(
x)(
D)
and
Appendix
S.]

We
have
also
made
final
changes
to
incorporate
the
requirements
of
the
1990
Amendments
concerning
PM10
nonattainment
areas.
Specifically,
we
have
promulgated
as
proposed
in
1996
the
major
stationary
source
thresholds
and
significant
emission
rates
for
PM10
in
PM10
nonattainment
areas.
[
See
section
51.165(
a)(
1)(
iv)(
A)(
1)(
vi)
and
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
353
(
a)(
1)(
x).
See
also
Appendix
S
at
II.
A.
4.(
i)(
a)(
6)
and
II.
A.
4.(
i).]
We
have
not
taken
final
action
on
our
1996
proposed
rules
for
PM10
precursors.
Instead,
we
plan
to
propose
regulations
concerning
PM
precursors
as
part
of
the
PM2.5
NAAQS
implementation
rule.
We
also
plan
to
address
requirements
for
stationary
sources
of
PM
in
that
action.

b.
Legal
Basis
for
Changes
to
Incorporate
the
1990
Clean
Air
Act
Amendments
In
areas
not
meeting
health­
based
NAAQS
and
in
the
OTR,

the
major
NSR
program
is
implemented
under
the
requirements
of
section
110(
a)(
2)(
C)
and
part
D
of
title
I
of
the
Act.

Subpart
1
of
part
D
of
title
I
contains
general
requirements
for
nonattainment
areas
for
any
criteria
pollutant,
subpart
2
contains
provisions
specifically
for
ozone
nonattainment
areas,
subpart
3
contains
provisions
specifically
for
carbon
monoxide
nonattainment
areas,
and
subpart
4
contains
provisions
specifically
for
PM10
nonattainment
areas.
On
July
23,
1996
(
61
FR
38250),
we
proposed
changes
to
section
51.165
and
Appendix
S
to
incorporate
requirements
in
part
D
of
title
I
of
the
1990
amendments
to
the
CAA
for
ozone,

carbon
monoxide,
and
PM10
nonattainment
areas.

We
promulgated
a
new
8­
hour
ozone
NAAQS
on
July
18,

1997.
We
indicated
that
we
anticipated
that
States
would
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
354
implement
the
8­
hour
ozone
NAAQS
under
the
less
prescriptive
subpart
1
requirements.
In
February
2001,
the
Supreme
Court
ruled
that
the
statute
was
ambiguous
as
to
the
relationship
of
subparts
1
and
2
for
purposes
of
implementing
the
8­
hour
ozone
NAAQS.
In
Whitman
v.
American
Trucking
Associations,

[
531
U.
S.
457,
482­
86
(
2001)],
the
Supreme
Court
reviewed
EPA's
implementation
strategy
for
the
revised
8­
hour
ozone
NAAQS,
and
remanded
it
to
EPA
to
develop
a
reasonable
resolution
of
the
roles
of
subparts
1
and
2
in
classifying
areas
for
and
implementing
the
revised
ozone
standard.
On
April
30,
2004,
we
promulgated
a
final
rule
to
implement
the
8­
hour
ozone
NAAQS
(
69
FR
23951),
in
which
some
nonattainment
areas
would
be
regulated
under
the
less
restrictive
requirements
of
subpart
1
and
some
would
be
classified
and
regulated
under
subpart
2.
All
ozone
nonattainment
areas
have
now
been
categorized
subpart
1
or
subpart
2
areas
in
40
CFR
part
81.
Now
that
we
have
designated
and
classified
nonattainment
areas,
the
NSR
program
requirements
(
including
the
specific
major
stationary
source
thresholds,
significant
emission
rates,

and
offset
ratios
associated
with
each
classification)
are
determined
by
reference
to
subpart
1
and
subpart
2,
as
codified
in
section
51.165
and
Appendix
S
through
this
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
355
rulemaking.
Thus,
as
described
in
further
detail
in
Section
V.
A.
2
of
this
preamble,
we
have
incorporated
the
requirements
of
the
1990
Amendments
for
major
stationary
sources
of
ozone
precursors
in
ozone
nonattainment
areas
as
proposed
in
1996,
and
codified
those
requirements
for
the
8­

hour
standard
consistent
with
the
designation
and
classification
scheme
finalized
in
the
8­
hour
ozone
implementation
rule
(
69
FR
23951)
promulgated
in
response
to
Whitman
v.
American
Trucking
Associations,
531
U.
S.
457
(
2001).

Concerning
carbon
monoxide,
Section
187(
c)
of
the
Act
unambiguously
establishes
the
major
stationary
source
threshold
of
50
tpy
codified
today
for
serious
nonattainment
areas
where
the
Administrator
has
determined
that
stationary
sources
contribute
significantly.
It
is
also
reasonable
to
set
the
significant
emission
rate
at
50
tpy
in
those
serious
nonattainment
areas
where
50
tpy
is
the
major
stationary
source
threshold.
The
regulations
at
section
51.165(
a)(
1)(
iv)(
A)(
2)
require
that
if
a
modification
itself
would
constitute
a
major
stationary
source,
the
modification
is
subject
to
major
NSR.

Concerning
PM10,
Section
189
of
the
Act
unambiguously
establishes
the
major
stationary
source
threshold
as
70
tpy
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
356
in
serious
nonattainment
areas.
EPA
also
has
the
authority
to
exempt
de
minimis
emissions
from
the
reach
of
a
rule.

See
Alabama
Power,
636
F.
2d
at
360­
61.
EPA
has
previously
defined
the
PM10
significant
emission
rate
(
that
is,
de
minimis
cut­
off
level)
as
at
or
above
15
tpy
for
purposes
of
determining
which
modifications
are
insignificant
and
thus
exempt
from
PSD
review.
52
FR
24672,
24694­
96
(
July
1,

1987).
We
believe
it
is
reasonable
to
use
the
same
significant
emission
rate
in
the
nonattainment
NSR
program.

This
is
consistent
with
our
past
practice
of
applying
the
same
significant
emissions
rates
for
each
pollutant
in
the
PSD
and
nonattainment
NSR
programs.

We
also
revised
Appendix
S
to
incorporate
the
requirements
of
the
1990
Amendments
to
part
D
of
title
I
of
the
Act.
These
changes
are
necessary
to
make
Appendix
S
consistent
with
part
D.
As
we
discuss
in
Section
V.
B.
3.
b
of
this
preamble,
we
have
determined
that
Congress
intended
for
permitting
equivalent
to
the
part
D
NSR
provisions
to
apply
during
the
SIP
development
period
through
the
use
of
Appendix
S
(
subject
to
the
limited
Section
VI
exemption).

In
light
of
this
determination,
there
is
no
reasonable
basis
for
declining
to
implement
the
NSR
requirements
in
the
1990
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
72
The
1991
NSR
transitional
guidance
issued
to
address
implementation
of
the
1990
Amendments
acknowledged
that
Appendix
S
did
not
contain
at
that
time
the
newly
enacted
part
D
provisions,
and
further
provided
that
the
new
requirements
of
part
D
to
title
I
did
not
apply
until
November
15,
1992
for
the
ozone
nonattainment
areas;
June
30,
1992,
for
the
PM10
nonattainment
areas;
and
three
years
from
designation
for
most
carbon
monoxide
nonattainment
areas.
NSR
Program
Transitional
Guidance,
at
A5
(
Mar.
11,
1991).
We
later
clarified
that
the
1990
Amendments
did
apply
to
all
permits
after
those
deadlines
passed.
NSR
Supplemental
Program
Transitional
Guidance
on
Applicability
of
New
Part
D
NSR
Requirements
at
3
(
Sept.
3,
1992).

73
Thus,
EPA
has
typically
conformed
Appendix
S
to
the
part
D
nonattainment
NSR
permitting
provisions
governing
SIPs
at
40
CFR
section
51.165
(
originally
codified
at
section
51.18)
whenever
those
regulations
were
revised.
See,
for
example,
45
FR
52676
(
Aug.
7,
1980);
47
FR
27554
(
June
25,
1982);
49
FR
43210
(
Oct.
26,
1984);
54
FR
27274
(
June
28,
1989);
57
FR
3941
(
Feb.
3,
1992).

357
Amendments
during
that
period.
72
Additionally,
Appendix
S
provides
on
its
face
that
it
is
an
interpretation
of
the
NSR
permitting
rules
in
40
CFR
subpart
I,
including
section
51.165.
Therefore,
it
is
necessary
to
have
Appendix
S
reflect
substantially
the
same
requirements
as
are
in
section
51.165.73
Thus,
we
proposed
to
amend
Appendix
S
in
this
manner
in
the
1996
NSR
proposal.
We
also
are
mindful
of
the
Supreme
Court's
decision
in
American
Trucking
Associations.
Although
the
decision
did
not
directly
address
NSR
implementation
during
the
SIP
development
period,
the
Court
emphasized
the
importance
of
creating
a
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
358
role
for
subpart
2
in
implementation
of
the
8­
hour
ozone
NAAQS.
We
believe
this
suggests
the
need
to
create
a
role
for
subpart
2
in
Appendix
S,
in
contrast
to
the
exclusive
subpart
1
scheme
currently
embodied
in
Appendix
S.

2.
Final
Action
and
Legal
Basis
for
Changes
to
Criteria
for
Emission
Reduction
Credits
from
Shutdowns
and
Curtailments
a.
Final
Changes
to
Criteria
for
Emission
Reduction
Credits
from
Shutdowns
and
Curtailments
The
final
revisions
lift
the
requirement
to
have
an
approved
attainment
plan
before
using
preapplication
credits
from
shutdowns
or
curtailments
as
offsets.
They
also
facilitate
the
availability
of
creditable
offsets,

consistent
with
the
requirements
of
Section
173
of
the
Act.

We
revised
the
provisions
at
section
51.165(
a)(
3)(
ii)(
C)
and
Appendix
S
concerning
emission
reduction
credits
generated
from
shutdowns
and
curtailments
as
proposed
in
Alternative
2
of
the
1996
proposal,
with
one
exception.
We
agree
with
the
commenter
who
found
the
regulatory
term
"
most
recent
emissions
inventory"
confusing.
We
have
revised
section
51.165(
a)(
3)(
C)(
1)
accordingly,
specifying
that
the
shutdown
or
curtailment
must
have
occurred
after
"
the
last
day
of
the
base
year
for
the
SIP
planning
process."
For
the
8­
hour
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
74
68
FR
32833.
See
also
"
2002
Base
Year
Emission
Inventory
SIP
Planning:
8­
hr
Ozone,
PM2.5
and
Regional
Haze
Programs,"
U.
S.
EPA,
pg.
1
(
November
18,
2002).

75
See
57
FR
13553.
After
the
1990
Amendments
were
enacted,
1990
was
the
base
year
for
1­
hour
ozone
NAAQS
attainment
planning
purposes.
See
57
FR
13502.
EPA
encouraged
States
to
allow
sources
to
use
pre­
enactment
banked
emissions
reductions
credits
for
offsetting
purposes.
States
have
been
allowed
to
do
so
if
the
restored
credits
meet
all
other
offset
creditability
criteria,
and
States
consider
such
credits
as
part
of
the
attainment
emissions
inventory
when
developing
their
post­
enactment
attainment
demonstration.

359
ozone
NAAQS,
the
base
year
is
2002.74
Additionally,
today's
final
provisions
allow
a
reviewing
authority
to
consider
a
prior
shutdown
or
curtailment
to
have
occurred
"
after
the
last
day
of
the
base
year
if
the
projected
emission
inventory
used
to
develop
the
attainment
demonstration
explicitly
includes
the
emissions
from
such
previously
shutdown
or
curtailed
emissions
unit."
This
provision
is
consistent
with
the
previous
regulation
which
also
allowed
the
reviewing
authority
to
treat
prior
shutdowns
or
curtailments
as
occurring
after
the
date
of
the
most
recent
emissions
inventory,
but
we
have
modified
the
regulatory
language
to
clarify
the
appropriate
emissions
inventory.

This
regulatory
language
is
consistent
with
our
previous
guidance
on
how
emission
reduction
credits
from
shutdowns
and
curtailments
are
used
in
attainment
planning.
75
The
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
76
For
a
discussion
of
emission
inventories
for
the
8­
hour
ozone
standard,
see
our
draft
emission
inventory
guidance,
Emissions
Inventory
Guidance
for
Implementation
of
Ozone
and
Particulate
Matter
NAAQS
at
http://
www.
epa.
gov/
ttn/
chief/
eidocs/
eiguid/
index.
html.
For
a
discussion
of
emission
projections
used
in
attainment
demonstrations,
see
Emission
Inventory
Improvement
Program,
Volume
X,
Emission
Projections,
December
1999,
available
at
http://
www.
epa.
gov/
ttn/
chief/
eiip/
techreport/.

360
base
year
inventory
includes
actual
emissions
from
existing
sources
and
would
not
reflect
emissions
from
units
that
were
shutdown
or
curtailed
before
the
base
year,
as
these
emissions
are
not
"
in
the
air."
To
the
extent
that
these
emission
reduction
credits
are
considered
available
for
use
as
offsets
and
are
thus
"
in
the
air"
for
purposes
of
demonstrating
attainment,
they
must
be
included
in
the
projected
emissions
inventory
used
in
the
attainment
demonstration
along
with
other
growth
in
emissions
over
the
base
year
inventory.
This
step
assures
that
emissions
from
shutdown
and
curtailed
units
are
accounted
for
in
attainment
planning.
76
As
with
the
prior
rules,
reviewing
authorities
thus
retain
the
ability
to
consider
a
prior
shutdown
or
curtailment
to
have
occurred
after
the
last
day
of
the
base
year
if
emissions
from
the
shutdown
or
curtailment
are
accounted
for
in
the
attainment
demonstration.
However,
in
no
event
may
credit
be
given
for
shutdowns
that
occurred
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
361
before
August
7,
1977,
a
provision
carried
over
from
the
previous
regulation.

The
other
changes
to
the
proposed
rule
text
also
are
nonsubstantive
and
instead
clarify
the
restrictions
on
credits
from
shutdowns
or
curtailments.
Specifically,
the
proposed
rule
retained
the
requirement
for
an
approved
attainment
demonstration,
but
made
that
requirement
inapplicable
where
the
credits
occurred
after
the
last
day
of
the
base
year
for
the
SIP
planning
process
or
where
they
were
included
in
the
most
recent
emissions
inventory.
The
final
rule
recognizes
there
is
no
requirement
for
an
approved
attainment
demonstration
in
those
circumstances,

and
thus
deletes
the
reference
to
that
former
requirement.

We
note
that
the
requirements
for
emission
reductions
used
as
offsets
and
for
netting
differ
from
those
for
emission
reduction
credits
used
for
RFP
and
ROP.
Section
IV.
E.
14.
of
this
preamble
discusses
requirements
for
emission
reduction
credits
used
for
RFP
and
ROP.
For
a
more
detailed
discussion
of
emission
reduction
credits
for
offsets
and
netting
under
the
8­
hour
ozone
NAAQS,
see
Section
V.
D.
5.
of
this
preamble.

b.
Legal
Basis
for
Changes
to
Criteria
for
Emission
Reduction
Credits
from
Shutdowns
and
Curtailments
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
362
The
revisions
to
the
rules
governing
use
of
emission
reductions
from
shutdowns/
curtailments
as
offsets
are
warranted
by
the
more
detailed
attainment
planning
and
sanction
provisions
of
the
1990
Amendments.
These
provisions
specifically
address
air
quality
concerns
in
nonattainment
areas
lacking
EPA­
approved
attainment
demonstrations.
As
a
threshold
matter,
we
note
that
CAA
Section
173
does
not
mandate
the
prior
restrictions
on
shutdown
credits,
specifically,
the
requirement
to
have
an
approved
attainment
demonstration.
[
See
48
FR
38742,
38751
(
Aug.
25,
1983).]
Rather,
in
promulgating
these
restrictions
in
1989,
EPA
recognized
that
it
had
a
large
degree
of
discretion
under
the
Act
to
shape
implementing
regulations,
as
well
as
the
need
to
exercise
that
discretion
such
that
offsets
are
consistent
with
RFP
as
required
in
CAA
Section
173.
[
See
54
FR
27286,
27292
(
June
28,
1989.]
EPA
originally
believed
that
areas
without
approved
attainment
demonstrations
lacked
adequate
safeguards
to
ensure
that
shutdown/
curtailment
credits
would
be
consistent
with
RFP.

We
thus
subjected
those
areas
to
more
restrictive
requirements
to
ensure
a
link
between
the
new
source
and
the
source
being
shut
down/
curtailed
(
that
is,

shutdown/
curtailment
must
occur
after
application
for
a
new
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
363
or
modified
major
source
is
filed).

The
1990
Amendments
changed
the
considerations
involved.
As
discussed
above,
for
areas
subject
to
Subpart
2,
Congress
emphasized
the
emission
inventory
requirement
in
section
172(
c)(
3)
as
a
fundamental
tool
in
air
quality
planning.
Congress
also
added
new
provisions
keyed
to
the
inventory
requirement,
including
specific
reduction
strategies
and
"
milestones"
that
measure
progress
toward
attainment
from
the
base
year
emissions
inventory
or
subsequent
revised
inventories.
Where
the
emission
reduction
credits
pre­
date
the
base
year,
State
and
local
agencies
must
include
the
credits
from
the
shutdown/
curtailment
in
the
projected
emissions
inventory
used
to
develop
the
attainment
demonstration.
Subpart
4
sets
forth
specific
reduction
strategies
and
milestones
for
attainment
of
the
PM10
standards.
Additionally,
there
are
now
several
adverse
consequences
where
States
fail
to
meet
the
planning
or
emission
reductions
requirements
of
the
Act.

For
example,
the
Act
contains
mandatory
increased
new
source
offset
sanctions
at
a
2:
1
ratio
where
the
Administrator
finds
that
a
State
failed
to
submit
a
required
attainment
demonstration.
In
areas
that
are
subject
to
Subpart
2
and
Subpart
4,
failure
to
attain
the
air
quality
standard
by
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
364
attainment
deadline
results
in
the
area
being
bumped
up
to
a
higher
classification.
Additional
regulatory
requirements
are
imposed
as
a
result
of
the
higher
classification.
These
statutory
changes
justify
shifting
the
focus
of
the
current
regulations
from
individual
offset
transactions
between
a
specific
new
source
and
shutdown
source
and
towards
a
systemic
approach.
Considering
the
changes
to
the
1990
Amendments,
we
now
believe
that
continuing
the
prohibition
on
the
use
of
shutdown/
curtailment
credits
generated
where
there
is
no
approved
attainment
demonstration
is
not
warranted.
We
believe
that
use
of
emission
reduction
credits
from
shutdowns/
curtailments
will
be
consistent
with
RFP
towards
attainment
under
CAA
Section
173
,
even
in
the
absence
of
an
approved
attainment
demonstration,
if
they
occur
after
the
last
day
of
the
base
year
for
the
SIP
planning
process
or
are
included
in
the
projected
emissions
inventory
used
to
develop
the
attainment
demonstration.

From
an
air
quality
planning
perspective,
emissions
from
the
shutdown
source
actually
impacted
the
measurements
of
air
quality
used
in
determining
the
nonattainment
status
of
an
area.
Subsequently,
emission
reductions
from
such
source
shutdowns/
curtailments
are
actual
emission
reductions,
and
their
use
as
emission
offsets
at
a
ratio
of
1:
1
or
greater
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
77
We
note
that
we
are
changing
the
cross­
reference
in
section
52.24(
f)
to
"
section
51.165"
instead
of
the
definitions
section
at
section
51.165(
a),
to
ensure
that
all
of
the
provisions
of
section
51.165
apply
in
interpreting
the
terms
of
section
52.24.

365
is
consistent
with
RFP
towards
improved
air
quality
as
set
forth
in
CAA
Section
173(
a)(
1)(
A).

3.
Final
Action
and
Legal
Basis
for
Changes
to
the
Construction
Ban
Provisions
a.
Final
Action
for
Changes
to
the
Construction
Ban
Provisions
We
are
promulgating
final
changes
to
section
52.24
to
implement
the
construction
ban
provisions
and
other
changes,

as
proposed
in
1996
and
2003.77
We
believe
these
changes
are
beneficial
to
conform
the
regulatory
text
with
the
requirements
that
apply
under
the
1990
Clean
Air
Act.

As
noted
in
our
June
2003
proposal,
we
are
retaining
the
provision
in
section
52.24(
k)
that
specifies
that
Appendix
S
governs
permits
to
construct
and
operate
applied
for
during
the
SIP
development
period.
Although
the
regulatory
text
proposed
in
1996
omitted
section
52.24(
k),

the
1996
preamble
also
explained
that
the
changes
to
section
52.24
were
intended
only
to
update
and
clarify
the
regulation
with
regard
to
the
changes
to
the
construction
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
366
ban
made
by
the
1990
Amendments.
(
61
FR
38250,
38305)
The
preamble
did
not
in
any
manner
indicate
that
EPA
believed
that
NSR
permits
complying
with
Appendix
S
were
not
required
during
the
SIP
development
period
where
necessary.

Additionally,
it
did
not
contemplate
nonattainment
major
NSR
permitting
in
light
of
the
situation
that
today's
final
action
addresses,
which
is
the
need
to
permit
nonattainment
area
sources
during
a
transition
period
in
which
a
substantial
number
of
new
nonattainment
areas
are
being
created.
Therefore,
we
are
retaining
section
52.24(
k).

As
we
proposed
in
the
8­
hour
ozone
NAAQS
implementation
rule
(
68
FR
32846),
we
made
one
change
to
the
regulatory
language
in
section
52.24(
k).
The
previous
language
at
section
52.24(
k)
only
allowed
States
to
issue
permits
under
Appendix
S
for
a
maximum
period
of
18
months
after
designation.
This
language
was
consistent
with
the
previous
SIP
development
period
and
construction
ban
under
the
1977
Act,
which
no
longer
apply
under
the
1990
CAA.
We
have
revised
section
52.24(
k)
to
allow
States
to
issue
permits
under
Appendix
S
from
designation
until
the
SIP
is
approved,

even
if
this
exceeds
18
months.
As
we
noted
in
our
proposal,
this
change
implements
the
removal
of
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
367
construction
ban
from
the
1990
Amendments
and
is
consistent
with
our
1991
policy
memo,
"
New
Source
Review
(
NSR)
program
Transitional
Guidance,
John
S.
Seitz,
March
11,
1991.

b.
Legal
Basis
for
Changes
to
the
Construction
Ban
Provisions
Section
110(
a)(
2)(
c)
of
the
CAA
establishes
a
general
duty
on
States
to
include
a
program
in
their
SIP
that
regulates
the
modification
and
construction
of
any
stationary
source
as
necessary
to
assure
that
the
NAAQS
are
achieved.
This
general
duty,
often
referred
to
as
"
minor
NSR,"
exists
during
all
periods,
including
before
a
State
has
an
approved
part
D
NSR
permit
program.

CAA
Section
110(
a)(
2)(
c)
does
not
define
specific
requirements
States
must
follow
for
issuing
major
source
permits
during
the
interim
period
between
nonattainment
designation
and
EPA
approval
of
a
part
D
nonattainment
NSR
SIP
("
interim
period").
However,
EPA's
regulations
at
section
52.24(
k)
require
States
to
follow
EPA's
Emission
Offset
Interpretative
Ruling,
40
CFR
Part
51,
Appendix
S,

during
this
time.

This
approach
is
consistent
with
Congressional
intent,

as
indicated
in
the
1977
Clean
Air
Act
Amendments
providing
for
major
NSR
permitting
during
the
SIP
development
period
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
368
in
accordance
with
Appendix
S.
[
See
Pub.
L.
No.
95­
95,

section
129(
a),
91
Stat.
685
(
1977).]
Specifically,

Congress
enacted
a
moratorium
on
construction
in
any
area
lacking
an
approved
part
D
NSR
SIP,
with
a
delayed
effective
date
of
July
1,
1979.
Congress
also
provided
that
Appendix
S,
as
modified
by
rule
of
the
Administrator,
govern
permitting
of
sources
constructing
in
such
areas
before
that
date,
subject
to
a
limited
waiver
by
the
Administrator.
Id.

108(
b),
129(
a).
We
subsequently
codified
the
use
of
Appendix
S
as
the
interim
major
NSR
program
in
40
CFR
section
52.24(
k),
reasoning
(
in
the
context
of
implementing
a
delay
in
the
construction
ban
for
then­
recently
designated
nonattainment
areas)
that
Congress
had
provided
that
Appendix
S
should
remain
in
effect
to
protect
air
quality
while
State
plans
were
being
designed.
(
45
FR
65209)
When
Congress
removed
the
construction
ban
(
except
as
provided
in
section
110(
n)(
3)),
it
left
in
place
40
CFR
section
52.24(
k),
implementing
the
interim
major
NSR
program
under
Appendix
S.

Accordingly,
we
have
historically
recognized
that
the
SIP
development
period
provided
for
in
section
172(
b)
leaves
a
gap
in
part
D
major
NSR
permitting
and
have
determined
that
this
gap
is
to
be
filled
with
an
interim
major
NSR
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
78Appendix
S
was
originally
promulgated
in
1976
to
address
whether,
and
to
what
extent,
new
and
modified
sources
would
be
allowed
to
construct
in
nonattainment
areas
whose
attainment
deadlines
had
already
passed,
in
light
of
the
regulatory
requirement
that
new
or
modified
sources
be
disapproved
where
the
source
would
interfere
with
attainment
of
the
NAAQS.
41
FR
55524
(
Dec.
21,
1976).
It
required,
inter
alia,
compliance
with
the
lowest
achievable
emission
rate
(
LAER)
and
offsetting
emission
reductions
in
excess
of
the
new
source's
emissions.
At
that
time,
part
D
NSR
was
not
part
of
the
CAA.
When
the
part
D
NSR
provisions
were
added
in
the
1977
Amendments
to
the
CAA,
Congress
added
the
requirement
that
SIPs
contain
nonattainment
NSR
provisions
as
set
forth
in
CAA
Section
173,
including
LAER
and
the
requirement
to
either
offset
the
increase
in
new
source
emissions
or
ensure
that
emissions
fell
within
a
growth
allowance.
(
The
growth
allowance
provision
was
repealed
in
1990.)
Additionally,
Congress
provided
that
Appendix
S,
as
modified
by
rule
of
the
Administrator,
would
govern
preconstruction
permitting
in
areas
lacking
approved
part
D
SIPs
before
a
construction
ban
went
into
effect,
as
discussed
in
more
detail
above.

369
program
that
is
substantially
similar
to
the
requirements
of
part
D.
This
includes
the
LAER
and
offset
requirements
from
part
D.
(
57
FR
18070,
18076).
Appendix
S
has
been
used
by
EPA
and
the
States
as
this
interim
major
NSR
program.
78
Our
regulations
at
40
CFR
section
52.24(
k)
require
permits
issued
during
this
period
to
be
consistent
with
the
requirements
in
Appendix
S.
The
continued
application
of
Appendix
S
through
section
52.24(
k)
is
also
supported
by
the
purpose
of
the
CAA,
specifically,
Section
101(
b)(
1),
"
to
protect
and
enhance
the
quality
of
the
Nation's
air
resources
so
as
to
promote
the
public
health
and
welfare
and
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
79
See
Alabama
Power
Co.
v.
Costle,
636
F.
3d
323,
346­
047
(
D.
C.
Cir.
1980)
(
discussing
Sierra
Club
v.
Ruckelshaus,
344
F.
Supp.
253
(
D.
D.
C.
1972),
aff'd
per
curiam
4
ERC
1815
(
D.
C.
Cir.
1972),
aff'd
by
an
equally
divided
court,
sub
nom
Fri
v.
Sierra
Club,
412
U.
S.
541
(
1973).

370
the
productive
capacity
of
its
population."
This
provision
was
the
basis
for
the
original
judicial
finding
that
the
Act
imposed
an
obligation
to
prevent
significant
deterioration
in
areas
that
meet
the
NAAQS,
prior
to
Congress'
enactment
of
the
PSD
program
at
Part
C
of
the
Act.
79
This
policy
of
non­
degradation
applies
with
even
greater
force
in
areas
that
fail
to
meet
the
NAAQS.
Thus,
we
believe
that
an
interim
major
NSR
program
for
the
SIP
development
period
­

as
codified
at
Appendix
S
and
updated
to
reflect
CAA
amendments­
is
supported
by
section
110(
a)(
2)(
C),
section
101(
b)(
1),
Congressional
intent,
and
our
gapfilling
authority
under
section
301(
a).

4.
Final
Action
and
Legal
Basis
for
Changes
on
Applicability
of
Appendix
S
and
the
Transitional
NSR
Program
a.
Final
Changes
on
Applicability
of
Appendix
S
and
the
Transitional
NSR
Program
We
are
not
finalizing
the
Transitional
NSR
program
under
Section
VI
of
Appendix
S
as
proposed,
which
would
have
established
limited
criteria
for
determining
in
which
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
371
nonattainment
areas
Section
VI
could
apply.
Upon
consideration
of
public
comments,
we
decided
to
retain
the
original
eligibility
conditions,
but
added
a
procedural
requirement
that
the
Administrator
determine
whether
Section
VI
applies
for
a
specific
situation.

As
we
noted
at
68
FR
32848,
on
its
surface
Section
VI
could
apply
in
any
nonattainment
area
where
the
dates
for
attainment
have
not
passed
if
the
source
meets
all
applicable
SIP
emission
limitations
and
would
not
interfere
with
the
area's
ability
to
meet
its
attainment
date,
without
providing
any
specific
safeguards
for
such
noninterference.

We
noted
at
proposal,
however,
that
States
generally
would
not
be
able
to
show
that
a
nonattainment
area
would
continue
to
meet
its
attainment
date
if
it
does
not
apply
LAER
or
offsets
to
major
new
sources
and
major
modifications
in
the
absence
of
safeguards.
(
68
FR
32848)

We
continue
to
believe,
as
stated
in
the
proposal,
that
States
should
not
interpret
Section
VI
as
allowing
a
blanket
exemption
from
LAER
and
offsets
for
all
major
new
sources
and
major
modifications
in
a
given
area
before
attainment
dates
have
passed
for
that
area.
However,
based
on
public
comment,
we
now
believe
that
the
program
as
proposed
at
69
FR
32846
is
not
implementable.
As
many
commenters
noted,
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
372
the
April
15,
2004
deadline
for
submission
of
attainment
plans
and
December
31,
2004
deadline
for
implementation
of
all
necessary
attainment
controls
were
impracticable.
We
agree
with
the
many
commenters
who
supported
flexible
NSR
requirements
under
Section
VI
for
some
areas
and
maintained
that
attainment
would
not
be
in
jeopardy
due
to
such
programs.
While
we
do
not
identify
any
such
particular
instances
in
today's
final
rule,
we
believe
that
participation
in
programs
such
as
the
NOx
SIP
call
and
the
Clean
Air
Interstate
Rule
proposal
(
69
FR
4566,
Jan.
30,

2004)
will
achieve
significant
emission
reductions
across
broad
geographical
areas.
Certainly
we
want
to
encourage
development
of
programs
that
address
transported
air
pollution.
We
recognize
that
these
and
other
programs
may
prove
to
be
more
effective
and
practical
in
assuring
that
there
is
no
interference
with
an
area's
ability
to
meet
its
attatinment
deadline
than
relying
on
offsets
from
a
single
source.

For
these
reasons,
we
have
retained
the
original
eligibility
conditions
for
determining
when
Section
VI
applies,
but
added
a
procedural
requirement
that
the
Administrator
provide
public
notice
that
Section
VI
applies
for
a
specific
situation.
This
requirement
will
achieve
the
PREDECISIONAL
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373
proposal's
purpose
of
assuring
that
States
do
not
interpret
Section
VI
to
provide
a
broad
exemption
to
all
major
new
sources
and
major
modifications
in
any
nonattainment
area
for
which
the
attainment
date
has
not
passed.

We
also
are
taking
final
action
to
remove
the
50
tpy
exemption
from
Appendix
S.
As
discussed
in
Section
V.
A.
2.
f
of
this
preamble,
we
proposed
this
change
in
1979
and
finalized
it
in
most
respects
in
1980.
However,
we
inadvertently
did
not
remove
the
exemption
in
all
the
places
in
Appendix
S
where
it
was
located,
specifically
footnotes
5
and
8
to
IV.
D.
We
are
now
finalizing
the
1979
proposal
to
the
extent
it
remained
incomplete,
by
removing
these
last
two
references
to
the
50
tpy
exemption
in
Appendix
S.

b.
Legal
Basis
for
Changes
to
Applicability
of
Appendix
S
and
the
Transitional
NSR
Program
The
legal
basis
for
Appendix
S
itself,
including
Section
VI,
is
discussed
in
detail
in
Section
V.
B.
3.
b.
of
this
preamble.
We
have
historically
recognized
that
the
SIP
development
period
provided
for
in
section
172(
b)
leaves
a
gap
in
part
D
major
NSR
permitting
and
have
determined
that
this
gap
is
to
be
filled
with
an
interim
major
NSR
program
that
is
substantially
similar
to
the
requirements
of
part
D,

including
the
LAER
and
offset
requirements
from
part
D,
PREDECISIONAL
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05
374
subject
to
a
limited
exemption
where
the
attainment
deadline
will
be
met.
(
57
FR
18070,
18076).
This
interim
NSR
program
has
been
implemented
to
date
through
Appendix
S.

We
also
believe
that,
contrary
to
objections
made
by
some
commenters,
Appendix
S
­
and
in
particular,
Section
VI
­
has
not
been
superseded
by
the
1990
Amendments
to
title
I
of
the
Act.
In
short,
Appendix
S
only
applies
where
an
NSR
permitting
program
for
the
new
or
revised
NAAQS
is
not
otherwise
in
effect,
and
thus
does
not
replace
any
part
D
NSR
SIP
provisions,
as
many
commenters
erroneously
believed.

That
is,
it
applies
only
in
newly
designated
or
redesignated
nonattainment
areas
lacking
approved
part
D
programs
for
a
new
or
revised
NAAQS,
such
as
the
8­
hour
ozone
NAAQS.
Thus,

the
evasion
of
subpart
2
requirements
posited
by
commenters
and
the
anti­
backsliding
concerns
they
raise
are
not
triggered,
as
nothing
in
the
SIP
is
replaced.
Our
detailed
response
to
those
comments
is
set
forth
in
Section
V.
C.
4.
of
this
preamble.

The
Section
VI
exemption,
as
limited
by
this
final
rule,
is
consistent
with
the
section
110(
a)(
2)(
C)

requirement
that
the
preconstruction
permitting
is
implemented
"
as
necessary
to
assure
that
the
[
NAAQS]
are
achieved."
We
are
not
adopting
the
eligibility
criteria
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375
that
were
proposed
to
ensure
satisfaction
of
the
original
Section
VI
conditions.
However,
we
have
added
a
requirement
that
the
Administrator
determine
that
sources
exempted
from
LAER
and
offsets
under
Section
VI
will
meet
those
conditions,
in
particular,
noninterference
with
the
attainment
deadline.
Section
VI
also
is
consistent
with
the
exercise
of
our
gapfilling
authority
under
section
301,
as
informed
by
the
legislative
history.
That
is,
Appendix
S
reflects
Congressional
intent
that
standards
equivalent
to
part
D
govern
the
issuance
of
NSR
permits,
subject
to
a
limited
degree
of
flexibility
under
conditions
where
attainment
of
the
NAAQS
by
the
attainment
deadline
is
assured.

The
removal
of
the
50
tpy
exemption
from
Appendix
S
is
based
on
Alabama
Power
Co.
v.
Costle,
636
F.
3d
323,
356­
57
(
D.
C.
Cir.
1980),
in
which
the
court
held
that
EPA
had
exceeded
its
authority
to
establish
the
exemption,
as
discussed
in
more
detail
in
Section
V.
A.
2.
f.
above.

5.
Final
Action
and
Legal
Basis
for
Changes
to
Identify
NOx
as
an
Ozone
Precursor
in
Attainment
and
Unclassifiable
Areas
a.
Final
Changes
to
Identify
NOx
as
an
Ozone
Precursor
in
Attainment
and
Unclassifiable
Areas.

Our
existing
PSD
regulations
in
section
51.166
and
PREDECISIONAL
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OR
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draft
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376
section
52.21
define
regulated
NSR
pollutants,
which
includes
any
pollutant
for
which
we
promulgate
a
NAAQS
and
any
constituents
or
precursors
for
such
pollutants
as
identified
by
the
Administrator.
[
See
section
51.166(
b)(
49)(
i)
and
section
52.21(
b)(
50)(
i).]
Today,
the
Administrator
is
identifying
NOx
as
an
ozone
precursor
in
attainment
and
unclassifiable
areas.
Accordingly,
as
proposed,
we
amended
our
PSD
regulations
in
section
51.166
and
section
52.21
to
expressly
include
NOx
as
an
ozone
precursor.
Specifically,
we
have
amended
the
definitions
of
major
stationary
source,
major
modification,
significant,

and
regulated
NSR
pollutant
to
include
NOx
as
an
ozone
precursor.
[
See
section
51.166(
b)(
1)(
ii),
(
b)(
2)(
ii),

(
b)(
23),
and
(
b)(
49).
See
also
section
52.21(
b)(
1)(
ii),

(
b)(
2)(
ii),(
b)(
23),
and
(
b)(
50).]
We
have
also
amended
the
footnote
to
section
51.166(
i)(
5)(
i)(
e)
and
section
52.21(
i)(
5)(
i)
to
require
sources
with
a
net
increase
of
100
tpy
or
more
of
NOx
to
perform
an
ambient
impact
analysis.

b.
Legal
Basis
to
Identify
NOx
as
an
Ozone
Precursor
in
Attainment
and
Unclassifiable
areas
The
nonattainment
provisions
of
the
Act,
as
amended
in
1990,
recognize
NOx
as
an
ozone
precursor;
section
182(
f)
of
the
CAA
established
nonattainment
requirements
for
NOx.
The
PREDECISIONAL
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OR
DISTRIBUTE
draft
2/
6/
05
80
See
68
FR
32805­
06,
32840
footnote
58
(
discussing
national
rules
for
controlling
VOC
and
NOx
emissions);
Clean
Air
Interstate
Proposed
Rule,
69
FR
4566,
January
30,
2004.
68
FR
at
32840
note
57.

377
definition
of
air
pollutant
under
section
302(
g)
of
the
CAA
includes,
``*
*
*
any
precursors
to
the
formation
of
any
air
pollutant
*
*
*''
Also,
the
definition
of
regulated
NSR
pollutant
in
section
51.166
and
section
52.21
specifically
recognizes
that
a
regulated
NSR
pollutant
is
"
any
pollutant
for
which
a
national
ambient
air
quality
standard
has
been
promulgated
and
any
constituents
or
precursors
for
such
pollutant
identified
by
the
Administrator
(
e.
g.,
volatile
organic
compounds
are
precursors
for
ozone)."

EPA
has
recognized
NOx
as
an
ozone
precursor
in
several
national
rules
because
of
its
contribution
to
ozone
transport
and
the
ozone
nonattainment
problem.
EPA's
recognition
of
NOx
as
an
ozone
precursor
is
supported
by
scientific
studies,
which
have
long
recognized
the
role
of
NOx
in
ozone
formation
and
transport.
80
Such
formation
and
transport
is
not
limited
to
nonattainment
areas.
Therefore,

we
believe
NOx
should
be
treated
consistently
as
an
ozone
precursor
in
both
our
PSD
and
nonattainment
NSR
regulations.

For
these
reasons,
we
have
promulgated
final
PREDECISIONAL
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378
regulations
providing
that
NOx
is
an
ozone
precursor
in
attainment
areas.

6.
Final
Changes
and
Legal
Basis
for
Changes
to
Emission
Offset
Provisions
of
Appendix
S.

a.
Final
Changes
to
Emission
Offset
Provisions
of
Appendix
S.

We
are
revising
certain
provisions
in
Appendix
S
to
reflect
requirements
of
the
1990
Clean
Air
Act
Amendments
concerning
offsets
and
RFP.
Specifically,
we
have
conformed
Appendix
S
at
IV.
D.
to
the
1990
Amendments
by
replacing
the
interim
policy
on
offsetting
emissions
with
the
statutory
language
at
section
173(
c)(
1).
We
also
have
removed
the
language
concerning
reasonable
progress
in
Section
IV.
E.
of
Appendix
S
and
replaced
it
with
the
statutory
requirements
at
173(
a)(
1)(
A).

Also,
we
note
that
the
definition
of
net
emissions
increase
at
section
51.165(
a)(
1)(
vi)(
E)
requires
that
a
decrease
in
actual
emissions
is
creditable
only
to
the
extent
that
the
State
has
not
relied
on
it
in
demonstrating
attainment
or
RFP.
This
requirement
has
never
been
codified
in
Appendix
S.
However,
the
1990
CAA
at
Sections
172(
b)(
1)

and
182
codifies
the
requirements
concerning
RFP.
State
and
local
agencies
should
consider
the
effect
of
creditable
PREDECISIONAL
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OR
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81
See
Emission
Offset
Exemptions
for
Resource
Recovery
Facilities
from
Gerald
A
Emison,
Director,
Office
of
Air
Quality
Planning
and
Standards,
December
28,
1988.

379
decreases
from
permitting
under
Appendix
S
in
their
planning
for
demonstrating
attainment
and
RFP.

We
are
also
restating
our
policy
on
offsets
from
resource
recovery
facilities
under
Appendix
S.
Appendix
S
at
IV.
B.(
i)
exempts
resource
recovery
facilities
from
permitting
under
certain
circumstances.
Our
1988
policy
memo
indicates
that
as
a
matter
of
policy,
EPA
no
longer
adheres
to
the
offset
exemption
for
resource
recovery
facilities
in
Appendix
S.
81
As
we
did
not
propose
to
change
this
provision,
we
are
not
revising
the
final
rules
today
regarding
resource
recovery
facilities.
However,
we
plan
to
remove
this
exemption
in
a
future
rulemaking.

b.
Legal
Basis
for
Changes
to
Emission
Offset
Provisions
of
Appendix
S.

Because
we
have
not
revised
the
regulatory
text
in
Appendix
S
since
the
latest
revision
to
the
statute,
the
1990
Clean
Air
Act
provisions
limiting
the
use
of
offsets
are
not
explicitly
included
in
Appendix
S.
Nonetheless,

these
requirements
apply
to
sources
permitted
using
Appendix
S
because
Appendix
S
is
intended
to
reflect
the
same
offset
PREDECISIONAL
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380
requirements
contained
in
part
D
of
the
Act.
These
provisions
relate
to
offsets
and
RFP.

We
are
revising
Appendix
S
to
incorporate
the
statutory
restrictions
on
offsets
and
remove
the
existing
regulatory
text
that
is
outdated.
The
1977
Clean
Air
Act
is
silent
concerning
the
location
of
offsetting
emissions.
As
we
noted
in
footnote
9
to
Section
IV.
D.
of
Appendix
S,
in
the
absence
of
specific
statutory
language,
we
developed
an
interim
policy
on
offset
locations.
The
1990
Amendments
to
the
Clean
Air
Act
at
section
173(
c)(
1),
however,
placed
specific
limits
on
the
location
of
offsets
and
therefore
superceded
the
interim
policy
in
Appendix
S.
Accordingly,

we
conformed
Appendix
S
at
IV.
D.
to
the
1990
Amendments
by
replacing
the
interim
policy
on
offsetting
emissions
with
the
statutory
language
at
section
173(
c)(
1).

Appendix
S
at
Section
IV.
E.
contains
provisions
regarding
the
relationship
between
offsets,
reasonable
progress
towards
attainment,
and
RFP.
Under
the
1990
CAA,

section
173(
a)(
1)(
A)
was
revised
to
set
forth
the
extent
to
which
offsets
must
represent
RFP,
as
defined
in
section
171.

Therefore,
we
removed
the
language
concerning
reasonable
progress
in
Section
IV.
E.
of
Appendix
S
and
replaced
it
with
the
statutory
requirements
at
173(
a)(
1)(
A).
PREDECISIONAL
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05
381
C.
Comments
and
Responses
1.
Comments
on
Proposed
Changes
to
Incorporate
the
1990
Clean
Air
Act
Amendments
In
today's
final
action,
we
have
revised
section
51.165
and
Appendix
S
to
incorporate
the
major
stationary
source
thresholds,
significant
emission
rates,
and
offset
ratios
pursuant
to
part
D
of
title
I
of
the
1990
amendments
to
the
CAA
for
major
stationary
sources
of
ozone
precursors.
As
we
noted
in
Section
V.
A.
2.
a.
of
this
preamble,
now
that
the
designations
and
classifications
have
been
made,
the
provisions
of
Subpart
1
and
Subpart
2
determine
the
NSR
program
requirements.
Those
requirements
are
codified
in
this
rulemaking.
For
a
summary
of
comments
and
responses
related
to
when
subpart
1
or
subpart
2
applies,
please
see
the
preamble
to
those
final
rules
at
69
FR
23961.

Commenters
on
both
the
1996
and
2003
proposals
generally
supported
applying
the
nonattainment
major
NSR
requirements
applicable
to
major
stationary
sources
of
VOC
(
including
provisions
regarding
major
modifications,

significant
emission
rates,
and
offsets)
to
NOx
emissions,

except
where
the
Administrator
determines
pursuant
to
182(
f)

that
NOx
requirements
for
major
stationary
sources,

including
NSR
requirements,
would
not
apply
or
would
be
PREDECISIONAL
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382
limited
("
NOx
waiver").
A
few
commenters
opposed
waivers
under
182(
f)
for
exemptions
from
NOx
requirements,
due
to
their
effect
on
NOx
emissions
in
downwind
States.

We
agree
with
the
commenters
supporting
NOx
as
an
ozone
precursor
for
nonattainment
major
NSR
applicability,
and
have
retained
it
in
the
final
rule.
We
note
that
whether
a
NOx
waiver
applies
in
a
particular
area
and
the
effects
of
NOx
waivers
on
RACT
are
discussed
in
Section
IV.
H.
of
this
preamble.

2.
Comments
on
Proposed
Revisions
to
Criteria
for
Emission
Reduction
Credits
from
Shutdown
and
Curtailments
Many
commenters
generally
supported
EPA's
conclusion
that
emission
reduction
credits
from
shutdowns
and
curtailments
can
be
used
for
NSR
offsets.
These
commenters
believed
the
safeguards
in
the
1990
Amendments
justified
removing
the
previous
requirement
for
an
approved
attainment
plan
before
such
credits
can
be
used
as
offsets.
One
commenter
opposed
lifting
the
restrictions,
believing
that
the
cited
1990
Amendment
provisions,
including
submittal
of
SIP
attainment
demonstrations,
have
not
been
implemented.

While
no
commenters
supported
the
adoption
of
Alternative
1
exclusively,
a
few
commenters
supported
both
proposed
Alternatives.
However,
many
commenters
strongly
PREDECISIONAL
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383
supported
Alternative
2.
These
commenters
asserted
that
the
safeguards
in
the
1990
Amendments
address
progress
in
nonattainment
areas
and
that
an
approved
attainment
demonstration
is
no
longer
necessary
to
ensure
shutdown/
curtailment
credits
are
accounted
for
in
the
attainment
demonstration.
These
commenters
also
believed
Alternative
2
was
more
flexible
and
would
encourage
stable
banking
programs.
Many
commenters
believed
that
State
agencies
would
be
unable
to
meet
the
deadlines
in
Alternative
1.
They
also
believed
that
Alternative
1
was
unnecessarily
restrictive,
and
would
cause
confusion.

We
agree
with
the
commenters
who
supported
Alternative
2.
We
have
promulgated
final
regulations
that
allow
emission
reduction
credits
to
be
used
as
offsets
in
the
absence
of
an
approved
attainment
demonstration,
provided
that
these
emission
reduction
credits
were
generated
from
shutdowns
or
curtailments
that
are
included
in
the
base
year
emission
inventory
as
current
actual
emissions.

One
commenter
stated
that
the
regulatory
language
concerning
the
"
most
recent
emissions
inventory"
is
confusing.
The
commenter
believed
this
language
could
be
mistaken
to
mean
that
the
base
year
would
continue
to
shift.

The
commenter
noted
that
it
would
be
more
accurate
to
state
PREDECISIONAL
DRAFT
 
DO
NOT
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CITE
OR
DISTRIBUTE
draft
2/
6/
05
384
that
the
base
year
emissions
inventory
is
the
starting
point
and
all
creditable
emission
reductions
must
have
been
reported
in
the
base
year
inventory
or
a
subsequent
emissions
inventory.
We
agree
with
the
commenter
that
the
terminology
"
most
recent
emissions
inventory"
is
confusing
and
have
revised
section
51.165(
a)(
3)(
C)(
1)
accordingly,

specifying
the
cutoff
date
as
"
the
last
day
of
the
base
year
if
the
projected
emissions
inventory
used
to
develop
the
attainment
demonstration
explicitly
includes
the
emissions
from
such
previously
shutdown
or
curtailed
emission
units."

As
we
discussed
in
Section
V.
B.
2.
a.
of
this
preamble,
this
regulatory
language
is
consistent
with
our
previous
guidance
on
how
emission
reduction
credits
from
shutdowns
and
curtailments
are
used
in
attainment
planning.
Most
importantly,
it
assures
that
emissions
from
shutdown
and
curtailed
units
are
accounted
for
in
attainment
planning.

We
disagree
with
the
commenter
who
opposed
the
revisions.
Since
the
submission
of
this
comment
in
1997,

States
have
made
substantial
progress
in
implementing
the
1990
Amendments.
This
progress
includes
submitting
the
required
inventories
to
which
attainment
planning
is
keyed,
PREDECISIONAL
DRAFT
 
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05
82
Of
the
135
areas
designated
as
nonattainment
for
the
1­
hour
ozone
NAAQS
in
1991,
69
have
been
redesignated
as
attainment.
See
http://
www.
epa.
gov/
oar/
oaqps/
greenbk/
onsum2.
html.
Of
the
55
nonattainment
areas
with
classifications
of
moderate
and
higher
that
were
required
to
submit
SIPs
and
attainment
demonstrations,
all
but
4
have
an
approved
SIP
or
have
requested
redesignation
to
attainment.

385
along
with
the
required
attainment
demonstrations.
82
We
believe
that
implementation
of
the
1990
Amendments
to
date
supports
the
conclusion
that
emission
inventories
have
been
effective
in
attainment
planning,
and
will
continue
to
be
effective
in
implementing
the
8­
hour
standard.
Therefore,

we
disagree
with
the
commenter
that
the
1990
Amendments
do
not
justify
the
revisions
due
to
inadequate
implementation.

3.
Comments
on
Construction
Ban
Provisions
We
received
comments
on
the
following
procedural
issue.

In
the
proposal,
we
stated
our
intent
to
issue
determinations
of
inadequate
SIP
implementation
under
section
173(
a)(
4)
by
letter,
followed
by
publication
in
the
Federal
Register,
and
explained
that
such
determinations
would
result
in
a
prohibition
on
construction
in
the
area
pursuant
to
that
provision.
(
61
FR
38305)
We
also
solicited
comment
on
whether
an
opportunity
for
public
notice
and
comment
should
be
provided.
A
few
State
commenters
believed
that
EPA
should
provide
such
notice
and
comment,
but
did
not
PREDECISIONAL
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6/
05
386
state
a
basis
for
their
position.

The
text
of
section
52.24(
b)
as
proposed
tracked
the
language
of
section
173(
a)(
4)
and
did
not
include
a
provision
on
the
process
to
be
used
for
issuing
a
determination
of
inadequate
SIP
implementation.
We
have
finalized
section
52.24(
b)
in
substantially
the
same
form
as
we
proposed.
The
Agency
is
still
considering
the
appropriate
process
to
use
in
issuing
a
determination
under
CAA
section
173(
a)(
4).

4.
Comments
on
Applicability
of
Appendix
S
and
the
Transitional
Program
Many
commenters
opposed
our
proposed
Transitional
NSR
Program,
stating
that
it
would
not
be
protective
of
air
quality.
Many
other
commenters
supported
the
proposed
program,
believing
that
it
would
provide
needed
flexibility
and
would
not
interfere
with
achieving
attainment.
Many
commenters,
including
some
who
supported
the
Transitional
Program,
believed
the
schedule
for
submitting
attainment
plans
and
control
requirements
was
impracticable.
Some
commenters
opposed
the
Transitional
NSR
Program
on
legal
grounds,
arguing
that
Section
VI
does
not
authorize
any
NSR
flexibility
or
that
Appendix
S
has
been
superseded
in
its
entirety
by
various
sections
of
the
Clean
Air
Act.
PREDECISIONAL
DRAFT
 
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OR
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draft
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6/
05
387
We
agree
with
commenters
that
the
schedule
in
the
proposed
rule
for
submitting
attainment
plans
to
be
eligible
for
Transitional
NSR
was
impracticable.
On
the
other
hand,

however,
we
do
agree
with
the
many
commenters
who
urged
us
to
provide
flexible
NSR
requirements
for
some
areas.
While
we
have
not
promulgated
specific
criteria
for
when
such
flexibility
would
apply,
we
have
promulgated
final
regulations
specifying
that
Section
VI
applies
where
the
original
conditions
are
met
(
that
is,
the
attainment
deadline
has
not
passed,
the
source
would
not
interfere
with
attainment
by
the
deadline,
and
the
source
meets
all
applicable
SIP
emissions
limitations)
and
the
Administrator
has
determined
and
provided
public
notice
that
Section
VI
applies.

Regarding
the
objections
to
our
legal
authority
to
implement
flexible
NSR
under
Appendix
S,
some
commenters
argued
that
the
Section
VI
exemption
is
potentially
applicable
only
where
an
attainment
date
for
the
secondary
standards
has
not
yet
passed.
However,
this
comment
ignores
the
plain
language
of
Section
VI,
which
references
primary
standards.
It
states:
"
In
some
cases,
the
dates
for
attainment
of
primary
standards
have
not
yet
passed
due
to
the
delay
in
the
promulgation
of
a
plan
under
this
section
PREDECISIONAL
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83
Designations
are
in
40
CFR
81.300.
This
citation
has
been
corrected
in
today's
final
rules.

388
of
the
Act."
It
then
goes
on
to
note
that
the
attainment
deadlines
for
the
secondary
standards
may
also
not
yet
have
passed.
It
then
states:
"
In
such
cases
[
a
reference
to
attainment
dates
that
have
not
passed
for
both
primary
and
second
standards],
a
new
source
locating
in
an
area
designated
in
40
CFR
81.3000
et
seq.
as
nonattainment
may
be
exempt
from
the
conditions
of
Section
IV.
A"
83
where
certain
requirements
are
met.
Thus,
the
Section
VI
exemption
is
applicable
where
the
attainment
date
for
the
primary
standard
has
not
passed.

Other
commenters
argued
that
Appendix
S
and
40
CFR
52.24(
k)
have
been
superseded
by
or
prohibited
by
various
sections
of
the
Act.
(
EPA
will
use
the
term
"
Appendix
S"
in
this
section
of
the
preamble
to
refer
to
these
collectively.)
Although
commenters
made
this
argument
in
the
context
of
opposing
the
proposed
revisions
to
Section
VI
of
Appendix
S,
this
comment
applies
to
any
use
of
Appendix
S
for
permitting,
including
the
LAER
and
offset
requirements
of
Section
IV,
and
the
existing
version
of
Section
VI.

First,
the
commenter
contended
that
Appendix
S
has
been
superseded
by
section
181(
b)(
1)
within
subpart
2
of
the
Act,
PREDECISIONAL
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6/
05
389
under
which
it
believes
a
newly
designated
nonattainment
area
receives
its
nonattainment
classification
by
operation
of
law
and
immediately
becomes
subject
to
all
of
the
requirements
­­
including
section
110,
subpart
1,
and
subpart
2
­­
that
apply
to
that
classification.
EPA
disagrees
with
the
commenter.
As
a
threshold
matter,
even
if
the
commenter
were
correct
that
both
subpart
1
and
subpart
2
applied
upon
an
area's
nonattainment
classification,
the
statute
provides
that
the
area
may
have
a
period
of
time
to
develop
and
submit
a
SIP
or
SIP
revision
meeting
the
preconstruction
permitting
requirements
of
section
173.
See
CAA
Sections
172(
b)(
5)
and
182(
a)(
2)(
C).

For
the
SIP
development
period,
part
D
leaves
a
gap
as
to
the
NSR
requirements
applicable
to
the
newly
designated
nonattainment
area
(
if
the
State's
part
D
NSR
SIP
does
not
automatically
cover
the
area).
This
gap
exists
even
if
EPA
were
to
accept
the
commenter's
contention
that
subpart
2
applies.
Pursuant
to
40
CFR
52.24(
k),
this
gap
is
filled
by
Appendix
S,
which
requires
NSR
permitting
that
mirrors
part
D,
subject
to
the
Section
VI
exemption.

Additionally,
EPA
disagrees
with
the
commenter's
contention
that
subpart
2
must
apply
to
all
newly
designated
nonattainment
areas.
As
discussed
in
more
detail
in
the
PREDECISIONAL
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DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
390
preamble
to
the
8­
hour
ozone
implementation
rule
(
69
FR
23951),
EPA
has
determined
that
it
has
discretion
in
determining
whether
subpart
2
applies
to
these
areas
because
subpart
2
does
not
dictate
whether
it
applies
where
the
1­

hour
design
value
falls
below
the
lowest
value
in
the
subpart
2
classification
table.
EPA
has
described
in
that
rule
the
circumstances
in
which
subpart
2
applies.

The
commenter
also
contends
that
section
193
has
superseded
Appendix
S.
EPA
disagrees.
The
commenter
relies
on
the
following
language
in
section
193:
"
No
control
requirement
in
effect,
or
required
to
be
adopted
by
a[]
.
.

.
[
implementation]
plan
in
effect
before
November
15,
1990,

in
any
area
which
is
a
nonattainment
area
for
any
air
pollutant
may
be
modified
after
November
15,
1990,
in
any
manner
unless
the
modification
insures
equivalent
or
greater
emission
reductions
of
such
air
pollutant."
However,
this
part
of
section
193
is
of
no
relevance
to
Appendix
S
because
Appendix
S
does
not
replace
any
existing
SIP
requirements.

An
area
is
only
required
to
apply
Appendix
S
where
it
does
not
have
a
part
D
NSR
SIP
covering
permitting
for
the
8­
hour
standard.
In
other
words,
it
covers
only
the
gap
in
the
SIP
caused
by
the
lack
of
a
part
D
NSR
program
for
the
relevant
NAAQS,
and
is
supplemental
to
any
existing
SIP
PREDECISIONAL
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6/
05
84
Although
EPA
did
state
in
the
proposal
that
States
with
already
applicable
part
D
NSR
SIPs
may
choose
to
amend
their
SIPs
to
allow
them
to
take
advantage
of
the
proposed
revisions
to
Section
VI
(
68
FR
32844
n.
67),
the
decision
not
to
go
forward
with
the
Section
VI
revisions
as
proposed
makes
that
issue
moot.
NSR
under
Section
VI,
as
finalized,
will
involve
notification
by
the
Administrator
that
it
applies
for
new
sources
meeting
the
Section
VI
criteria
in
areas
lacking
approved
part
D
NSR
programs,
rather
than
replacement
of
an
NSR
program
in
the
SIP
with
an
alternative
NSR
Program.

391
requirements.
84
The
commenter
also
believes
that
use
of
Appendix
S
for
permitting
would
violate
section
110(
l),
which
provides,
in
relevant
part,
that:
"
The
Administrator
shall
not
approve
a
revision
of
a
plan
if
the
revision
would
interfere
with
any
applicable
requirement
concerning
attainment
and
reasonable
further
progress
.
.
."
The
commenter
states
that
nonattainment
preconstruction
permitting
requirements
"
concern[]
attainment
and
reasonable
further
progress,"
so
if
a
SIP
is
already
written
such
that
nonattainment
NSR
will
apply
in
an
area
as
soon
as
it
is
designated
nonattainment
under
the
8­
hour
standard,
then
any
revision
that
would
thwart
the
automatic
effectiveness
of
those
requirements
would
violate
section
110(
l).
Again,
Appendix
S
is
not
an
amendment
to
a
SIP,
and
does
not
replace
any
existing
SIP
requirements.
Rather,
it
covers
the
gap
caused
by
the
lack
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
392
of
a
part
D
NSR
SIP
for
the
newly
designated
nonattainment
area.
If
a
SIP
applies
the
nonattainment
NSR
program
to
a
newly
designated
nonattainment
area,
Appendix
S
does
not
apply
to
that
area.
[
See
40
CFR
52.24(
k)
and
Appendix
S,

Section
I.]
For
these
same
reasons,
the
commenter
is
incorrect
that
NSR
permitting
under
Appendix
S
violates
Congressional
intent
not
to
relax
pollution
control
requirements
when
the
NAAQS
are
revised,
as
expressed
in
section
172(
e).
One
commenter
stated
that
any
major
revisions
to
Appendix
S
should
be
subject
to
additional
notice
and
comment
because
such
revisions
could
not
be
a
logical
outgrowth
of
the
June
2,
2003
proposal.
We
disagree
that
the
public
lacked
adequate
notice
and
opportunity
to
comment.
The
changes
to
incorporate
the
1990
Amendments
to
part
D
of
title
I
of
the
Act
(
for
example,
major
stationary
source
thresholds,
significant
emission
rates,
and
offset
ratios)
and
the
revisions
to
the
rule
governing
creditable
emission
reductions
from
shutdowns
and
curtailments
were
proposed
in
1996
for
the
major
NSR
program,
including
Appendix
S.
(
61
FR
38252)
The
method
for
making
designations
and
classifications
specific
to
the
8­
hour
standard
under
Subparts
1
and
2
was
proposed
on
June
2,
2003
(
68
FR
32802).
Although
rule
language
was
not
proposed
PREDECISIONAL
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DO
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draft
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6/
05
393
specifically
for
Appendix
S,
the
rule
language
could
be
discerned
from
the
rule
language
proposed
for
section
51.165,
as
Appendix
S
states
it
is
an
interpretation
of
40
CFR
subpart
I,
which
includes
section
51.165.
Additionally,

the
Act
does
not
require
that
the
Agency
provide
notice
of
the
exact
rule
language
that
will
be
finalized,
but
rather
that
the
Agency
provide
a
statement
of
basis,
including,

among
other
things,
the
major
legal
interpretations
and
policy
considerations
underlying
the
proposal.
These
were
provided
by
the
1996
and
2003
proposals
and,
in
the
case
of
the
removal
of
the
50
tpy
exemption,
in
the
1979
proposal.

With
regard
to
the
changes
to
Section
VI
of
Appendix
S,

the
Agency
notes
that
because
it
declined
to
adopt
the
extensive
revisions
proposed,
the
changes
are
minimal.
The
additional
condition
regarding
approval
by
the
Administrator
is
a
logical
outgrowth
of
the
proposed
revisions
to
Section
VI,
which
explained
that
the
Agency's
goal
was
to
limit
the
applicability
of
Section
VI
to
situations
where
the
new
source
would
comply
with
all
of
the
conditions
in
Section
VI,
most
notably,
not
interfering
with
an
area's
ability
to
meet
its
attainment
deadline.

5.
Comments
on
Changes
to
Identify
NOx
as
an
Ozone
Precursor
in
Attainment
and
Unclassifiable
Areas
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
394
Commenters
supported
our
proposal
to
amend
our
PSD
regulations
to
expressly
include
NOx
as
an
ozone
precursor.

We
agree
with
these
commenters.

6.
Comments
on
Removing
the
50­
ton
Exemption
For
comments
on
removing
the
50­
ton
exemption,
see
the
discussion
in
the
1980
final
rules
at
45
FR
52689­
90.

D.
NSR
Implementation
Under
the
8­
hour
ozone
NAAQS
As
promulgated
at
69
FR
23858,
the
designation
and
classifications
for
the
8­
hour
NAAQS
became
effective
June
15,
2004.
The
transition
to
NSR
under
the
8­
hour
NAAQS
raises
multiple
implementation
questions,
which
are
discussed
below.
We
intend
to
address
additional
issues
in
the
future.

1.
Areas
That
Have
Never
Been
Nonattainment
for
Ozone
If
an
area
has
never
been
nonattainment
for
ozone
and
is
nonattainment
for
the
8­
hour
ozone
NAAQS,
it
became
subject
to
nonattainment
major
NSR
under
the
8­
hour
standard
on
June
15,
2004.
Permits
for
new
or
modified
major
stationary
sources
in
such
areas
issued
on
or
after
June
15,

2004
must
reflect
NSR
requirements
under
the
8­
hour
ozone
NAAQS.
Some
States
may
already
have
in
place
a
part
D
major
source
permitting
program
applicable
to
newly
designated
8­

hour
ozone
nonattainment
areas.
For
nonattainment
areas
in
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
395
States
whose
SIPs
contain
a
generic
requirement
to
issue
part
D
major
source
NSR
permits
in
areas
designated
as
nonattainment,
the
State
can
continue
to
issue
nonattainment
NSR
permits
for
new
and
modified
major
stationary
sources
under
the
part
D
NSR
SIP
on
or
after
June
15,
2004.
For
a
nonattainment
area
in
a
State
with
a
SIP
that
specifically
lists
the
areas
in
which
part
D
NSR
applies,
or
in
an
area
that
currently
has
no
nonattainment
plan
or
otherwise
lacks
authority
to
implement
NSR
for
the
8­
hour
ozone
NAAQS
through
a
SIP­
approved
permitting
program,
there
will
be
an
interim
period
between
June
15,
2004
and
the
date
that
the
State
amends
its
SIP
either
to
list
any
new
nonattainment
area(
s)
or
to
include
a
part
D
plan.
During
this
interim
period,
pursuant
to
section
52.24(
k),
permits
for
new
and
modified
major
stationary
sources
in
such
areas
must
be
consistent
with
the
requirements
in
Appendix
S.
Where
a
State
or
local
agency
lacks
authority
to
issue
permits
consistent
with
Appendix
S,
EPA
is
the
reviewing
authority.

Additionally,
we
note
that
from
June
15,
2004,
to
June
15,
2005,
two
designations
will
be
in
effect
for
ozone
for
newly
designated
nonattainment
areas
 
an
attainment
designation
based
on
the
1­
hour
classification
and
a
nonattainment
designation
based
on
the
8­
hour
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
85
Appendix
E
at
68
FR
32869­
70
and
note
3
at
68
FR
32869.

396
classification.
Thus,
as
noted
in
the
proposal,
a
source
triggering
major
NSR
in
such
areas
will
be
subject
to
PSD
requirements
for
the
1­
hour
standard
and
subject
to
nonattainment
NSR
requirements
for
the
8­
hour
standard.
85
Generally,
nonattainment
NSR
requirements
would
supersede
PSD
requirements
because
of
the
more
stringent
LAER
requirement
and
the
requirement
to
offset
new
emission
increases
(
id.
at
32870).
We
believe
States
could
reasonably
interpret
their
SIPs
in
this
manner.
We
also
believe
that
the
obligation
to
obtain
offsets
satisfies
the
requirements
for
any
ambient
impacts
analysis
that
might
otherwise
apply
to
a
source
triggering
major
NSR
in
an
area
that
is
attainment
for
the
1­
hour
standard
and
nonattainment
for
the
8­
hour
standard.

States
may
not
issue
PSD
permits
to
address
major
NSR
obligations
arising
from
nonattainment
classifications.
As
we
stated
at
69
FR
23992,
PSD
permits
may
not
be
issued
after
June
14,
2004,
to
satisfy
permitting
obligations
under
the
8­
hour
nonattainment
designation.
We
clarify
here
that
States
are
not
precluded
from
issuing
PSD
permits
based
on
the
1­
hour
attainment
classifications,
but
such
actions
do
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
397
not
relieve
States
or
sources
from
addressing
nonattainment
NSR
obligations
based
on
the
8­
hour
classification.

2.
Areas
That
Are
Nonattainment
for
the
1­
hour
NAAQS
and
the
8­
hour
NAAQS
NSR
under
the
8­
hour
NAAQS
became
effective
in
8­
hour
nonattainment
areas
on
June
15,
2004.
Currently,
the
1­
hour
NAAQS
remains
in
effect.
Thus,
there
is
a
period
of
time
when
major
NSR
requirements
for
both
the
1­
hour
and
8­
hour
NAAQS
applies
in
an
area
or
parts
of
an
area.
During
this
period,
different
major
stationary
source
thresholds
and
offset
ratios
may
apply
in
a
given
nonattainment
area
under
the
1­
hour
and
8­
hour
ozone
NAAQS,
due
to
a
change
in
its
classification.
Permits
issued
during
this
transition
period
will
assure
compliance
with
both
programs
if
the
permit
requirements
are
based
on
the
highest
classification
that
applies
to
the
area.
If
the
area's
1­
hour
classification
is
higher
than
its
8­
hour
classification,
the
NSR
SIP
program
under
the
1­
hour
NAAQS
will
satisfy
the
requirements
of
both
programs.
If
the
8­
hour
classification
is
higher,
then
the
NSR
program
under
the
8­
hour
classification
will
determine
the
NSR
requirements.
For
example,
suppose
a
source
is
locating
in
an
area
that
is
now
classified
as
moderate
nonattainment
under
the
8­
hour
ozone
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
398
NAAQS
but
was
previously
classified
as
a
serious
ozone
nonattainment
area
under
the
1­
hour
NAAQS.
Any
permit
the
State
issues
during
the
transition
would
be
based
on
the
50
tpy
major
stationary
source
threshold
and
at
least
1.2:
1
offset
ratio
that
apply
to
serious
ozone
nonattainment
areas
under
the
1­
hour
ozone
NAAQS.

Pursuant
to
40
CFR
50.9(
b),
EPA
will
revoke
the
1­
hour
NAAQS
on
June
15,
2005.
We
anticipate
that,
upon
revocation
of
the
1­
hour
ozone
NAAQS,
States
will
submit
requests
for
approval
of
SIP
revisions
removing
NSR
requirements
based
on
the
1­
hour
classifications,
where
such
SIP
revisions
are
necessary
to
achieve
this
result.
At
69
FR
23985,
we
stated
that
upon
revocation
of
the
1­
hour
ozone
NAAQS,
for
any
area
that
was
designated
nonattainment
for
the
1­
hour
ozone
NAAQS,
the
area's
implementation
plan
provisions
satisfying
sections
172(
c)(
5)
and
173
(
including
provisions
satisfying
section
182)
based
on
the
area's
previous
1­
hour
ozone
NAAQS
classification
are
no
longer
required
elements
of
an
approvable
implementation
plan.
We
also
indicated
that
a
State
may
request
approval
of
a
SIP
revision
to
remove
its
1­
hour
nonattainment
NSR
program
from
its
SIP.

We
further
stated
that
we
will
approve
such
changes
to
a
State's
SIP
because
we
have
determined
based
on
110(
l)
of
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
399
the
Act
that
such
changes
will
not
interfere
with
any
State's
ability
to
reach
attainment
of
the
8­
hour
standard
and
will
be
consistent
with
RFP.

On
June
29,
2004,
we
received
a
Petition
for
Reconsideration
from
Earthjustice
concerning
these
statements
on
removing
the
1­
hr
NSR
SIP
and
on
the
110(
l)

determination
related
to
removing
the
1­
hr
NSR
SIP.
You
can
find
a
copy
of
this
Petition
for
Reconsideration
at
http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
o3imp8hr/
materials.
html.

We
have
granted
reconsideration
on
these
two
narrow
NSR
issues
in
the
Phase
I
Ozone
Implementation
Rule.
We
will
publish
a
Federal
Register
Notice
concerning
this
Petition
for
Reconsideration
and
will
request
public
comment
on
these
two
issues.
We
have
also
agreed
to
complete
the
reconsideration
process
by
May
20,
2005,
at
which
time
we
will
announce
our
final
action
on
these
two
issues.

As
we
stated
at
69
FR
23986
(
Column
1),
emission
limitations
and
other
requirements
in
major
NSR
permits
issued
under
1­
hour
NSR
programs
will
continue
to
be
in
force
when
the
1­
hour
NAAQS
is
revoked.
For
example,

suppose
an
existing
source
is
located
in
an
area
classified
as
serious
nonattainment
under
the
1­
hour
ozone
NAAQS
and
has
a
nonattainment
major
NSR
permit
based
on
its
PTE
of
75
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
86
As
noted
in
section
V.
D.
2
of
this
paragraph,
we
will
complete
our
reconsideration
on
issues
related
to
NSR
SIP
submittals
and
announce
our
final
action
by
May
20,
2005.

400
tpy
VOC.
That
major
NSR
permit
(
including
emission
limitations
and
other
requirements)
remains
in
force
on
and
after
June
15,
2005
even
if
the
area
that
the
source
is
located
in
is
now
classified
moderate
nonattainment
(
with
a
major
stationary
source
threshold
of
100
tpy)
under
the
8­

hour
ozone
NAAQS.

3.
Part
D
NSR
SIP
Submittals
Today's
final
action
on
the
regulations
at
section
51.165
establishes
the
minimum
requirements
for
part
D
SIPs
implementing
major
NSR
under
the
8­
hour
NAAQS.
Some
States
may
find
it
unnecessary
to
revise
their
SIPs
to
implement
NSR
under
the
8­
hour
NAAQS.
This
can
happen
when
the
approved
part
D
NSR
and
ozone
classification
scheme
SIP
applies
to
any
areas
designated
as
nonattainment
under
section
107
of
the
Act
or
listed
in
40
CFR
81.300
et
seq.

In
States
that
do
not
have
authority
to
implement
a
part
D
program
for
the
8­
hour
NAAQS,
a
SIP
revision
for
major
NSR
under
the
8­
hour
NAAQS
must
be
submitted.
86
The
revised
implementation
plan
must
include
requirements
to
implement
the
provisions
of
sections
172(
c)(
5)
and
173
of
the
Act
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
87
CAA
Section
182(
a)(
2)(
C)(
i)
requires
NSR
SIPs
to
meet
the
1­
hour
ozone
NAAQS
to
be
submitted
within
2
years
after
the
date
of
the
enactment
of
the
1990
Amendments
of
the
CAA.
This
requirement
has
been
met
by
the
submission
of
NSR
SIPs
due
on
November
15,
1992,
which
EPA
requested
on
April
16,
1992
at
57
FR
13499.
We
have
interpreted
the
twoyear
schedule
not
to
apply
for
the
NSR
SIPs
implementing
the
8­
hour
ozone
NAAQS.

401
based
on
the
area's
8­
hour
ozone
NAAQS
classification
under
40
CFR
part
81,
and
the
provisions
of
section
51.165
as
amended
in
today's
final
action.

States
must
submit
SIP
provisions
incorporating
today's
final
rules
at
section
51.165
no
later
than
June
15,
2007,

which
is
3
years
after
designation.
This
schedule
is
consistent
with
the
schedule
set
forth
in
CAA
Sections
172(
b)
and
1109a)(
1).
87
This
date
facilitates
coordination
of
NSR
program
changes
with
the
submission
of
the
attainment
plan,
which
is
also
due
within
three
years.
Part
D
NSR
SIPs
to
implement
the
8­
hour
NAAQS
should
reflect
the
requirements
of
today's
final
action,
as
well
as
the
requirements
in
subpart
X
of
Part
51
promulgated
on
April
30,
2004
at
69
FR
23951.
Before
EPA
can
approve
a
program
into
the
SIP
to
implement
a
nonattainment
major
NSR
program
for
the
8­
hour
ozone
NAAQS,
State
and
local
agency
programs
implementing
part
D
(
nonattainment
NSR
permit
program
in
section
51.165)
must
include
today's
changes
as
minimum
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
402
program
elements.
States
must
also
submit
SIP
provisions
incorporating
today's
final
rules
at
section
51.166
no
later
than
June
15,
2007.

4.
Effective
Date
for
Today's
Requirements
All
of
these
changes
will
take
effect
in
the
NSR
permitting
programs
for
nonattainment
areas
codified
at
Appendix
S
of
part
51
and
section
52.24
on
[
INSERT
DATE
OF
PUBLICATION
IN
THE
FEDERAL
REGISTER].
This
means
that
Appendix
S
as
amended
in
today's
final
action
will
apply
on
[
INSERT
DATE
OF
PUBLICATION
IN
THE
FEDERAL
REGISTER]
in
any
nonattainment
area
without
an
approved
part
D
NSR
SIP
that
applies
to
major
sources
in
the
nonattainment
area
for
the
nonattainment
pollutant.
The
provisions
of
section
51.165
and
section
52.24,
as
amended
in
today's
final
action,
also
apply
on
[
INSERT
DATE
OF
PUBLICATION
IN
THE
FEDERAL
REGISTER].

5.
Requirements
for
Offsets
Offsets
under
CAA
Section
173
are
typically
based
on
emission
reductions
achieved
through
installation
of
control
technology,
shutdown
of
a
source,
or
curtailment
of
production
or
operating
hours
below
baseline
levels.
Offset
must
meet
several
requirements
set
forth
in
Section
173
of
the
Act,
including
the
following.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
403
°
Offsets
must
be
obtained
by
the
time
the
source
is
to
commence
operation.
[
CAA
Section
173(
a)(
1)(
A)].

°
Offsets
must
be
consistent
with
reasonable
further
progress
[
CAA
Section
173(
a)(
1)(
A)]

°
Offsets
must
be
federally
enforceable
before
permit
issuance.
[
CAA
Section
173(
a)]

°
Offsets
must
be
in
effect
and
enforceable
by
the
time
a
new
or
modified
source
commences
operation.
[
CAA
Section
173(
c)(
1)(
B)]

°
Emission
reductions
that
are
otherwise
required
under
the
Act
cannot
be
creditable
as
offsets.
[
CAA
Section
173(
c)(
2)]

°
Offsets
must
come
from
a
source
in
the
same
nonattainment
area,
unless
it
comes
from
an
area
that
has
an
equal
or
higher
nonattainment
classification
and
the
emissions
from
such
other
area
contribute
to
a
violation
of
the
national
in
the
nonattainment
area
in
which
the
source
is
located.
[
CAA
Section
173(
c)(
1)]

If
an
emission
reduction
credit
(
including
an
emission
reduction
credit
generated
from
a
shutdown
or
curtailment)

has
been
used
to
meet
ROP
or
RFP
milestones,
it
is
not
available
for
use
as
an
offset
or
in
netting.
This
is
because
Section
173(
c)(
2)
of
the
Act
prohibits
use
of
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
404
emission
reductions
as
offsets
where
the
reductions
are
"
otherwise
required
by
the
Act."
Thus,
reductions
that
are
used
to
meet
federal
requirements,
including
SIP­
approved
ROP
and
RFP
obligations
under
CAA
Section
182,
are
not
creditable.
Where
emission
reductions
pre­
dating
2002
have
not
been
used
to
meet
ROP
and
RFP
obligations,
or
other
federal
requirements,
CAA
Section
173(
c)(
2)
does
not
prohibit
their
use.
Thus,
EPA
believes
that
such
credits
may
be
used
as
offsets
consistent
with
the
Act.
EPA
encourages
States
to
allow
sources
to
use
pre­
2002
banked
emissions
reductions
credits
(
that
is,
those
that
were
generated
before
January
1,
2002,
which
is
the
first
day
of
the
emissions
inventory
base
year
for
the
base
year
inventory
used
to
develop
the
attainment
demonstration)
for
offsetting
purposes.
States
may
do
so
as
long
as
the
banked
credits
meet
all
other
offset
creditability
criteria
and
such
credits
are
included
by
States
as
growth
in
developing
the
attainment
demonstration
as
discussed
elsewhere
in
this
preamble.
See
also
57
FR
13508­
09.
The
credits
must
be
certified
and
approved
for
such
purposes.

Additional
requirements
apply
to
credits
generated
from
shutdowns
or
curtailments.
Pursuant
to
today's
final
rule,

States
may
revise
their
SIPs
to
remove
the
requirement
for
PREDECISIONAL
DRAFT
 
DO
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draft
2/
6/
05
405
an
approved
attainment
demonstration
as
a
condition
of
using
shutdown/
curtailment
credits
pre­
dating
the
new
source
application.
Under
the
revised
rule,
emissions
from
the
shutdown/
curtailed
source
can
be
creditable
if
they
are
included
in
the
projected
emissions
inventory
used
to
develop
the
attainment
demonstration.
For
emission
reductions
from
shutdowns
or
curtailments
to
be
creditable
for
offset
purposes,
the
State
must
also
certify
that
emissions
from
the
shutdown
or
curtailed
source
have
not
been
used
and
are
not
necessary
to
meet
any
other
requirement
under
the
Act,
including
RFP
or
ROP.

Use
of
emission
reduction
credits
banked
before
the
base
year
(
that
is,
those
generated
before
January
1,
2002)

for
netting
continues
to
be
available
to
the
extent
allowed
under
State
rules.
However,
because
these
emission
reduction
credits
represent
emissions
that
are
not
included
in
the
2002
base
year
inventory,
States
should
consider
net
emission
increases
occurring
on
or
after
January
1,
2002
as
growth
even
though,
for
applicability
purposes,
the
source
does
not
have
a
significant
net
emissions
increase.

VI.
OTHER
CONSIDERATIONS
A.
How
will
EPA's
action
affect
funding
under
the
Congestion
Mitigation
and
Air
Quality
Improvement
(
CMAQ)
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
406
Program?

1.
Background
In
the
proposal,
we
noted
that
the
Transportation
Equity
Act
for
the
21st
Century
(
TEA­
21)
establishes
eligibility
for
the
use
of
CMAQ
program
funds
in
certain
nonattainment
and
maintenance
areas,
designated
under
section
107(
d)
of
the
CAA
(
42
U.
S.
C.
7407(
d)),
provided
the
area
is,
or
was,
also
classified
in
accordance
with
CAA
sections
181,
186,
and
188.
All
areas
designated
nonattainment
after
December
31,
1997
are
also
eligible,
but
without
regard
to
classification.

The
amount
of
CMAQ
funds
available
to
States
for
use
in
nonattainment
and
maintenance
areas
is
also
set
at
levels
authorized
by
TEA­
21.
The
funds
are
apportioned
to
States
through
the
statutory
formula
contained
in
section
104(
b)
of
title
23.
The
formula
is
based
primarily
on
the
classifications
of
ozone
and
CO
nonattainment
and
maintenance
areas,
and
the
population
in
such
areas.
The
formula
does
not
account
for
8­
hour
ozone
nonattainment
areas
not
classified
under
subpart
2
or
particulate
matter
nonattainment
areas.

2.
Current
Position
Depending
on
the
specific
characteristics
of
a
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
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OR
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draft
2/
6/
05
407
nonattainment
area,
as
described
above,
implementation
of
the
8­
hour
ozone
standard
will
have
varying
effects.

Nonattainment
areas
designated
under
the
8­
hour
ozone
standard
are
eligible
for
CMAQ
funding
as
described
above.

However,
the
formula
for
determining
the
amount
of
funds
apportioned
to
the
States
only
takes
into
account
the
areas
that
are
classified
pursuant
to
CAA
sections
181,
186,
and
188.
Hence,
under
the
transportation
statute
CMAQ
funds
cannot
be
apportioned
to
the
States
on
the
basis
of
the
designations
for
the
8­
hour
ozone
standard
that
are
not
also
classified
under
subpart
2.

The
impact
of
the
implementation
of
the
8­
hour
standard
will
take
place
in
two
primary
stages.
First,
the
newly
designated
8­
hour
nonattainment
areas
become
eligible
for
the
use
of
CMAQ
funds
at
the
time
of
designation.
However,

since
CMAQ
funds
are
apportioned
at
the
beginning
of
each
fiscal
year,
the
amount
of
CMAQ
funds
apportioned
to
the
State
will
not
be
affected
until
the
fiscal
year
following
designation.
It
is
also
important
to
note
that
there
is
a
net
increase
in
eligible
nonattainment
areas
and
covered
populations,
but
the
overall
funds
authorized
for
the
CMAQ
program
at
the
national
level
is
fixed.
The
second
impact
will
occur
when
EPA
revokes
the
1­
hour
ozone
standard.
When
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
408
this
happens,
some
areas
will
retain
CMAQ
eligibility
because
they
were
previously
designated
nonattainment
for
the
8­
hour
ozone
standard.
Other
1­
hour
ozone
nonattainment
or
maintenance
areas
will
lose
eligibility
because
they
are
attaining
the
8­
hour
ozone
standard.
Since
1­
hour
ozone
designations
will
no
longer
be
in
force,
the
authorized
eligibility
to
use
CMAQ
funds
under
23
USC
149(
b)
will
be
limited
to
existing
CO
and
PM­
10
nonattainment
and
maintenance
areas
and
areas
designated
after
December
31,

1997,
such
as
those
designated
under
the
8­
hour
standard.

The
amount
of
CMAQ
funds
apportioned
to
each
State,
and
thus
available
to
nonattainment
and
maintenance
areas,
will
also
change
under
the
current
apportionment
formula
and
8­

hour
ozone
designations
and
classifications.
How
a
State's
individual
apportionment
of
CMAQ
funds
changes
depends
on
how
a
State's
nonattainment
and
maintenance
area
population
changes
because
of
designation
and
classification
under
the
8­
hour
ozone
standard
and
revocation
of
the
1­
hour
ozone
standard.

3.
Comments
and
Responses
Comments:
EPA
received
several
comments
expressing
concern
that
implementation
of
the
8­
hour
ozone
standard
may
negatively
impact
an
area's
eligibility
for
CMAQ
Program
PREDECISIONAL
DRAFT
 
DO
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OR
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draft
2/
6/
05
409
funds
and/
or
the
amount
of
CMAQ
funding
the
State
would
receive.
The
comments
indicated
that
projects
and
programs
to
reduce
air
pollution
in
their
area
was
supported
thru
CMAQ
funding.
Some
comments
stated
that
their
area
was
attaining
the
8­
hour
ozone
standard,
and
thus
would
become
ineligible
for
CMAQ
funding
when
the
1­
hour
ozone
standard
is
revoked.
Other
comments
expressed
concern
that
any
increases
to
the
number
of
nonattainment
areas
or
changes
to
classifications
of
nonattainment
areas
could
reduce
the
amount
of
CMAQ
funds
available
to
the
area.

Response:
EPA
is
aware
that
eligibility
for
use
of
CMAQ
funds
is
dependent
on
designation
as
a
nonattainment
or
maintenance
area,
and
apportionment
of
CMAQ
funds
is
calculated
yearly
and
varies
according
to
changing
nonattainment
and
maintenance
area
population,
and
the
severity
of
air
pollution
as
classified
in
accordance
with
CAA
sections
181,
186,
and
188.
EPA
is
only
taking
action
to
implement
the
8­
hour
ozone
standard
and
has
no
authority
to
make
changes
to
the
eligibility
criteria
or
apportionment
formula
contained
in
TEA­
21.
Reauthorization
of
TEA­
21
is
being
discussed
in
Congress,
and
adjustments
to
the
eligibility
criteria
and
apportionment
formula
may
be
possible.
We
understand
the
importance
of
CMAQ
funding
to
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
88EPA
will
revoke
the
1­
hr
standard
in
full,
including
the
associated
area
designations
and
classifications,
on
June
15,
2005,
one
year
following
June
15,
2004,
the
effective
date
of
the
new
8­
hour
standard.

410
States
and
nonattainment
areas
and
are
prepared
to
work
with
the
U.
S.
Department
of
Transportation
(
DOT)
and
Congress
to
minimize
the
unintended
impact
of
the
8­
hour
ozone
NAAQS,
on
those
funds.

B.
What
is
the
relationship
between
implementation
of
the
8­
hour
standard
and
the
Clean
Air
Act's
title
V
permit
program?

1.
Background.
The
interrelationship
between
implementation
of
the
8­
hour
ozone
standard
and
the
Title
V
permit
program
was
not
discussed
in
the
proposed
rule.

Various
questions
have
been
raised
about
the
interface
between
the
implementation
of
the
8­
hour
ozone
standard
and
the
title
V
operating
permits
program.
The
following
questions
and
answers
address
these
questions.

Question
1:
How
is
title
V
applicability
affected
by
the
new
8­
hr
ozone
standard
and
the
revocation
of
the
1­
hr
ozone
standard88?

Response:
Section
502(
a)
of
the
Clean
Air
Act
and
40
CFR
70.3
and
71.3
establish
specific
criteria
for
determining
whether
a
source
is
subject
to
the
title
V
operating
permits
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
8940
CFR
70.3(
b)
and
71.3(
b)
provide
for
certain
area
source
deferrals
and
exemptions,
which
are
not
detailed
here.

411
program.
A
source
that
meets
one
or
more
of
these
criteria
is
subject
to
title
V:
title
IV
affected
sources,
major
sources,
sources
subject
to
standards
or
regulations
under
section
111
or
11289,
sources
required
to
have
a
permit
under
part
C
or
D
of
title
I,
or
any
other
stationary
source
in
a
category
designated
by
the
Administrator.
Although
a
source
is
required
to
obtain
a
title
V
permit
if
it
meets
one
or
more
of
these
criteria,
only
sources
which
are
brought
into
title
V
as
a
result
of
their
major
source
status
and/
or
the
requirement
to
obtain
a
part
C
or
D
permit
may
be
directly
affected
by
the
transition
from
the
1­
hour
ozone
standard
to
the
8­
hour
ozone
standard.

For
example,
a
source
currently
subject
to
title
V
solely
because
it
is
major
for
VOCs
under
a
1­
hour
ozone
classification
would
no
longer
be
subject
to
title
V
after
the
revocation
of
the
1­
hour
ozone
standard
(
on
June
15,

2005)
if
its
actual
and
potential
emissions
of
VOCs
under
an
8­
hour
ozone
classification
are
minor.
However,
if
the
same
source
was
also
subject
to
title
V
for
other
reasons,
the
source
would
remain
subject
to
title
V.
See
question
4
for
PREDECISIONAL
DRAFT
 
DO
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OR
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draft
2/
6/
05
412
further
information.
In
addition,
the
source's
title
V
applicability
could
also
be
affected
by
future
changes,
such
as
becoming
subject
to
PSD
or
major
nonattainment
NSR
under
the
8­
hour
ozone
classification.

Question
2:
When
do
the
8­
hr
major
source
thresholds
apply
for
determining
major
source
status
under
title
V?

Response:
For
purposes
of
title
V,
section
501(
2)
of
the
Act
defines
"
major
source"
in
part
as
"
a
major
stationary
source
as
defined
in
section
302
or
part
D
of
title
I."
The
part
70
and
part
71
regulations
incorporate
this
definition
and
the
part
D
major
source
thresholds.
"
Major
source"
for
ozone
nonattainment
areas
include
sources
which
emit
or
which
have
the
potential
to
emit
100
tons
per
year
or
more
of
volatile
organic
compounds
or
oxides
of
nitrogen
in
areas
classified
as
"
marginal"
or
"
moderate,"
50
tons
per
year
or
more
of
these
ozone
precursors
in
areas
classified
as
"
serious,"
25
tons
per
year
or
more
of
these
ozone
precursors
in
areas
classified
as
"
severe,"
and
10
tons
per
year
or
more
of
these
ozone
precursors
in
areas
classified
as
"
extreme."

Currently,
the
major
source
thresholds
for
the
1­
hour
ozone
classifications
and
the
8­
hour
ozone
classifications
are
in
effect
under
part
D
of
title
I,
and
therefore
under
PREDECISIONAL
DRAFT
 
DO
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draft
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6/
05
413
title
V
as
well.
After
revocation
of
the
1­
hour
ozone
standard
and
the
corresponding
area
classifications
on
June
15,
2005,
only
the
major
source
thresholds
for
the
8­
hour
ozone
classifications
will
determine
whether
a
source
is
major
for
ozone
precursors
under
title
V.
Our
review
of
the
1­
hour
and
8­
hour
nonattainment
classifications
indicates
that
no
additional
sources
became
subject
to
title
V
on
April
30,
2004
(
the
promulgation
date
of
40
CFR
part
81,

subpart
C)
based
solely
on
the
8­
hour
classifications
and
corresponding
major
source
thresholds.
This
is
because
the
current
8­
hour
classifications
do
not
result
in
a
lowering
of
the
major
source
threshold
for
any
area.

Question
3:
Are
title
V
permits
required
for
sources
that
trigger
the
major
source
applicability
cut­
offs
for
reasonably
available
control
technology
(
RACT)
in
40
CFR
51.900(
f)(
3)
due
to
the
8­
hour
ozone
anti­
backsliding
provisions
in
40
CFR
part
51,
subpart
X?

Example:
An
area
is
classified
as
extreme
under
the
1­
hour
ozone
standard.
In
an
extreme
area,
the
major
source
threshold
for
ozone
precursors
is
10
tons
per
year.
Under
the
8­
hour
standard
in
this
example,
this
same
area
is
classified
as
a
severe­
17
area.
In
a
severe­
17
area,
the
PREDECISIONAL
DRAFT
 
DO
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QUOTE,
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OR
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draft
2/
6/
05
414
major
source
threshold
for
ozone
precursors
is
25
tons
per
year.
Under
the
anti­
backsliding
provisions,
this
area
would
be
required
to
continue
its
application
of
RACT
to
sources
with
potential
emissions
of
10
or
more
tons
per
year
of
ozone
precursors.
However,
would
the
title
V
major
source
threshold
for
ozone
precursors
in
this
area
be
10
tons
per
year
or
25
tons
per
year
on
or
after
June
15,
2005?

Response:
After
revocation
of
the
1­
hour
ozone
standard,

the
title
V
major
source
thresholds
for
ozone
will
be
based
solely
on
the
8­
hour
classifications
and
thus
in
the
above
example
will
be
25
tons
per
year
for
ozone
precursors.
As
discussed
in
Question
1
above,
section
502(
a)
and
40
CFR
70.3
and
71.3
include
criteria
for
determining
title
V
applicability.
These
criteria
do
not
specifically
include
sources
subject
to
RACT,
but
do
include
major
sources.
And
as
discussed
in
Question
2
above,
section
501(
2)
defines
a
title
V
"
major
source"
in
part
as
"
a
major
stationary
source
as
defined
in
section
302
or
part
D
of
title
I"
and
40
CFR
70.2
and
71.2
incorporate
this
definition.

In
terms
of
the
language
in
40
CFR
51.900(
f)(
3)

regarding
"
major
source
applicability
cut­
offs
for
purposes
of
RACT,"
this
provision
does
not
apply
for
purposes
of
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
415
defining
a
"
major
source"
under
title
V
(
nor
could
it,
since
major
source
is
statutorily
defined
and
cannot
be
revised
by
regulation).
Rather,
the
cut­
offs
referenced
in
this
antibacksliding
provision
apply
in
determining
which
1­
hour
nonattainment
requirements
are
"
applicable
requirements"
for
an
area
­
requirements
which
will
be
continued
in
implementing
the
8­
hour
standard.
Additionally,
40
CFR
51.900
specifies
that
the
definition
of
"
applicable
requirements"
and
other
definitions
in
this
section
only
"
apply
for
purposes
of
this
subpart
[
subpart
X]."
Thus,
in
short,
the
major
source
applicability
cut­
offs
for
purposes
of
RACT
referenced
in
40
CFR
51.900(
f)(
3)
are
not
relevant
in
determining
whether
a
source
is
a
major
source
under
title
V.

Question
4:
In
many
nonattainment
areas,
the
major
stationary
source
threshold
under
the
8­
hour
ozone
standard
is
currently
higher
than
the
major
stationary
source
threshold
for
the
same
area
under
the
1­
hour
ozone
standard.

Example:
Under
the
1­
hour
ozone
standard,
an
area
is
classified
as
serious
with
a
50
tpy
major
stationary
source
threshold
for
ozone
precursors.
Under
the
8­
hour
standard,

this
same
area
is
classified
as
moderate
with
a
100
tpy
PREDECISIONAL
DRAFT
 
DO
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QUOTE,
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OR
DISTRIBUTE
draft
2/
6/
05
90
A
source
with
a
part
D
permit
obtained
under
the
1­
hour
standard
must
retain
its
part
D
permit
under
the
8­
hour
standard
even
though
it
is
now
in
an
area
with
a
higher
major
stationary
source
threshold.

416
major
stationary
source
threshold
for
ozone
precursors.
If
a
source
in
this
area
has
a
potential
to
emit
VOCs
at
75
tpy,
but
also
has
a
part
D
permit
obtained
under
the
1­
hour
standard,
is
this
source
subject
to
title
V
after
revocation
of
the
1­
hour
ozone
standard
on
June
15,
200590?

Response:
Yes.
Under
the
1­
hour
standard,
this
source
was
subject
to
title
V
both
because
it
was
a
major
source
and
also
because
it
was
required
to
have
a
part
D
permit.
Under
the
8­
hour
standard,
this
source
remains
subject
to
title
V
because
it
was
required
to
have
a
part
D
permit
under
the
1­

hour
standard
even
though
it
is
no
longer
subject
to
title
V
due
to
its
major
source
status.

Sources
that
are,
at
any
time,
required
to
have
a
permit
under
part
C
or
D
of
title
I
must
obtain
a
title
V
permit.
This
interpretation
is
consistent
with
the
Act
and
EPA's
implementation
policy
history.
See
the
Vastar
letter
discussed
below.
Section
502(
a)
states
in
part
that
"
any
other
source
required
to
have
a
permit
under
part
C
or
D
of
title
I"
is
required
to
have
a
title
V
permit.
We
interpret
the
phrase
"
required
to
have
a
permit
under
part
C
or
D
of
PREDECISIONAL
DRAFT
 
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OR
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draft
2/
6/
05
417
title
I"
to
include
any
source
required
to
obtain
a
permit
under
part
C
or
D
of
title
I
regardless
of
whether
the
permit
was
actually
obtained
by
the
source.
This
interpretation
is
consistent
with
the
legislative
history
which
indicates
Congress
intended
that
sources
"
subject
to...
requirements"
from
PSD
and
NSR
be
required
to
have
a
title
V
permit.
H.
R.
Rep.
No.
101­
490,
101st
Congress,
2d
Session,
at
344
(
May
17,
1990);
see
also
S.
Rep.
101­
228,

101st
Congress,
1st
Session,
at
349
(
Dec.
20,
1989).

Note
that
the
exemption
in
40
CFR
70.3(
b)(
1)
and
71.3(
b)(
1)
for
nonmajor
sources
does
not
apply
to
sources
required
to
have
a
part
C
or
D
permit.
As
EPA
has
previously
stated:
"...
section
70.3(
b)(
1)
cannot
be
appropriately
interpreted
as
allowing
title
V
permitting
authorities
to
exempt
nonmajor
part
C
or
D
sources
from
title
V,
especially
in
light
of
the
explicit
requirement
in
sections
71.5(
a)(
1)(
ii)
and
70.5(
a)(
1)(
ii)
that
these
sources
obtain
title
V
permits."
See
letter
from
R.
Long,

EPA
Region
8,
to
M.
Tarrillion,
Vastar
Resources,
Inc.,

September
10,
1999.
See
also
66
FR
59161,
59163
(
Nov.
27,

2001)("
A
source
required
to
have
a
part
C
or
D
permit
but
considered
nonmajor
for
part
70
would
be
subject
to
part
70.")
PREDECISIONAL
DRAFT
 
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OR
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draft
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6/
05
418
Title
V
permit
content
may
be
affected
for
sources
in
the
above­
noted
situation
because,
pursuant
to
40
CFR
70.3(
c)(
2)
and
71.3(
c)(
2),
for
any
nonmajor
source
subject
to
title
V,
the
permit
is
required
at
a
minimum
to
include
the
applicable
requirements
for
the
emissions
units
that
cause
the
source
to
be
subject
to
the
part
70
or
part
71
program.
If
an
emissions
unit
at
the
nonmajor
source
did
not
trigger
the
requirement
to
apply
for
a
title
V
permit,

then
none
of
that
unit's
applicable
requirements
are
required
to
be
included
in
the
source's
title
V
permit.
See
66
FR
at
59163
and
footnote
2.
However,
nothing
in
40
CFR
70.3(
c)(
2)
or
71.3(
c)(
2)
precludes
States
from
including
federal
applicable
requirements
for
other
emissions
units
at
a
nonmajor
source
in
the
source's
title
V
permit
if
States
choose
to
do
so.

2.
Summary
of
final
rule
There
has
been
no
change
in
the
final
rule
as
a
result
of
the
above
clarifications
regarding
the
interface
between
the
8­
hour
ozone
standard
and
the
title
V
operating
permits
program.

3.
Comments
and
Responses
Comment:
One
commenter
stated
support
of
the
antibacksliding
regulations
to
maintain
the
requirements
PREDECISIONAL
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05
419
established
under
the
1­
hour
standard
nonattainment
area
classifications
when
8­
hour
classification
requirements
would
be
less
stringent.
However,
the
commenter
requested
that
EPA
consider
using
the
major
source
thresholds
as
defined
by
the
8­
hour
standard
classifications
for
title
V
permitting
purposes.
The
commenter
further
suggested
that
EPA
evaluate
whether
a
lower
title
V
major
source
threshold
provides
sufficient
protections
to
justify
the
added
costs
involved,
especially
in
areas
such
as
that
of
the
commenter's
where
75%
of
the
reactive
organic
gases
(
ROG)

and
NOx
emissions
are
from
mobile
sources,
which
are
not
subject
to
control
under
title
V.
(
P.
2)

Response:
We
agree
that,
after
revocation
of
the
1­

hour
ozone
standard,
the
major
stationary
source
thresholds
will
only
be
determined
by
the
8­
hour
classifications,

rather
than
the
1­
hour
classifications.
Additionally,
as
stated
in
response
to
question
3
in
the
above
questions
and
answers,
the
language
in
40
CFR
51.900(
f)(
3)
regarding
"
major
source
applicability
cut­
offs
for
purposes
of
RACT"

does
not
apply
for
purposes
of
defining
a
"
major
source"

under
title
V
(
nor
could
it,
since
major
source
is
statutorily
defined
and
cannot
be
revised
by
regulation).

Rather,
the
cut­
offs
referenced
in
this
anti­
backsliding
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
91Filed
June
29,
2004
by
EarthJustice.
Petitioners
are:
American
Lung
Association,
Environmental
Defense,
Natural
Resources
Defense
Council,
Sierra
Club,
Clean
Air
Task
Force,
Conservation
Law
Foundation,
and
Southern
Alliance
for
Clean
Energy.
420
provision
apply
in
determining
which
1­
hour
nonattainment
requirements
are
"
applicable
requirements"
for
an
area
­

requirements
which
will
be
continued
in
implementing
the
8­
hour
standard.
Additionally,
40
CFR
51.900
specifies
that
the
definition
of
"
applicable
requirements"
and
other
definitions
in
this
section
only
"
apply
for
purposes
of
this
subpart
[
subpart
X]."
Thus,
in
short,
the
major
source
applicability
cut­
offs
for
purposes
of
RACT
referenced
in
40
CFR
51.900(
f)(
3)
are
not
relevant
in
determining
whether
a
source
is
a
major
source
under
title
V.

C.
What
action
is
EPA
taking
on
the
Overwhelming
Transport
Classification
for
subpart
1
areas?
The
phase
1
rule
created
an
overwhelming
transport
classification
that
would
be
available
to
subpart
1
areas
that
demonstrate
they
are
affected
by
overwhelming
transport
of
ozone
and
its
precursors
and
demonstrate
they
meet
the
definition
of
a
rural
transport
area
in
section
182(
h)
of
the
Clean
Air
Act.

(
40
CFR
51.904(
a)).
We
received
a
petition
for
reconsideration
of
the
overwhelming
transport
classification
from
Earth
Justice,
91
who
claimed
that
our
final
rule
of
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
421
April
30,
2004,
relied
on
guidance
that
was
not
publicly
available
during
the
comment
period
and
was
still
unavailable
at
the
time
of
final
rulemaking.
In
addition,

we
noted
in
the
phase
1
rule
that
we
were
considering
the
comments
we
received
on
the
issue
of
applicable
requirements
for
these
subpart
1
areas
and
that
we
would
address
this
issue
after
we
issue
guidance
on
assessment
of
overwhelming
transport.
We
recently
drafted
the
overwhelming
transport
guidance.
As
a
result,
we
are
granting
that
portion
of
the
Earth
Justice
petition
concerning
the
overwhelming
transport
classification
and,
in
a
separate
rulemaking
action,
are
inviting
comment
on
the
overwhelming
transport
classification,
the
draft
overwhelming
transport
guidance,

and
the
requirements
that
would
apply
to
such
areas.

We
noted
in
the
phase
1
rule
that
we
were
considering
the
comments
we
received
on
the
issue
of
applicable
requirements
for
these
subpart
1
areas
and
that
we
would
address
this
issue
after
we
issue
guidance
on
assessment
of
overwhelming
transport.
We
now
intend
to
address
the
applicable
control
requirements
for
these
areas
in
the
context
of
the
proposed
reconsideration
notice.

The
phase
1
rule
(
section
51.904(
a))
provided
for
a
subpart
1
area
to
be
classified
as
an
overwhelming
transport
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
422
area
if
it
meets
the
criteria
as
specified
for
rural
transport
areas
under
section
182(
h)
of
the
CAA
and
revised
overwhelming
transport
guidance
that
we
indicated
that
we
issue
in
the
future.
We
are
making
the
draft
overwhelming
transport
guidance
available
for
public
review
and
entertaining
comment
on
it
in
the
context
of
the
notice
of
reconsideration
of
the
overwhelming
transport
rule.

VII.
STATUTORY
AND
EXECUTIVE
ORDER
REVIEWS[[
xxx
This
section
likely
needs
revision.
The
tribal
section
was
updated,
and
the
paperwork
reduction
act
and
regulatory
flexibility
act
sections,
has
had
material
added
on
NSR.

Otherwise
currently
contains
the
language
from
the
phase
1
rule
published
April
30,
2004.]

A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866
(
58
FR
51735,
October
4,

1993),
the
Agency
must
determine
whether
the
regulatory
action
is
"
significant"
and,
therefore,
subject
to
Office
of
Management
and
Budget
(
OMB)
review
and
the
requirements
of
the
Executive
Order.
The
Order
defines
"
significant
regulatory
action"
as
one
that
is
likely
to
result
in
a
rule
that
may:

(
1)
have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
423
economy,
a
sector
of
the
economy,
productivity,
competition,

jobs,
the
environment,
public
health
or
safety,
or
State,

local,
or
Tribal
governments
or
communities;

(
2)
create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
another
agency;

(
3)
materially
alter
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
loan
programs
or
the
rights
and
obligations
of
recipients
thereof;
or
(
4)
raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President's
priorities,
or
the
principles
set
forth
in
the
Executive
Order."

Pursuant
to
the
terms
of
Executive
Order
12866,
it
has
been
determined
that
this
rule
is
a
"
significant
regulatory
action"
because
it
raises
novel
legal
or
policy
issues
arising
out
of
legal
mandates.
As
such,
this
action
was
submitted
to
OMB
for
review.
Changes
made
in
response
to
OMB
suggestions
or
recommendations
will
be
documented
in
the
public
record.

B.
Paperwork
Reduction
Act
1.
For
portion
of
rulemaking
other
than
new
source
review.

This
action
does
not
impose
an
information
collection
burden
under
the
provisions
of
the
Paperwork
Reduction
Act,

44
U.
S.
C.
3501
et
seq.
This
rule
merely
interprets
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
424
requirement
to
develop
SIPs
to
achieve
a
new
or
revised
NAAQS.
This
requirement
is
prescribed
in
the
CAA
sections
110
and
part
D,
subparts
1
and
2
of
Title
1.
The
present
final
rule
does
not
establish
any
new
information
collection
burden
apart
from
any
that
required
by
law.
A
SIP
contains
rules
and
other
requirements
designed
to
achieve
the
NAAQS
by
the
deadlines
established
under
the
CAA,
and
also
contains
a
demonstration
that
the
State's
requirements
will
in
fact
result
in
attainment.
Such
a
document
is
not
considered
information
collection.
Burden
means
the
total
time,
effort,
or
financial
resources
expended
by
persons
to
generate,
maintain,
retain,
or
disclose
or
provide
information
to
or
for
a
Federal
agency.
This
includes
the
time
needed
to
review
instructions;
develop,
acquire,

install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,
validating,
and
verifying
information,

processing
and
maintaining
information,
and
disclosing
and
providing
information;
adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.
An
agency
may
not
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
425
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
in
40
CFR
are
listed
in
40
CFR
part
9.

2.
For
portion
of
rulemaking
on
new
source
review
(
NSR)

The
Paperwork
Reduction
Act,
44
U.
S.
C.
§
§
3501
et
seq.,

does
not
apply
to
the
sections
of
this
action
related
to
the
standards
governing
SIPs.

The
information
collection
requirements
associated
with
NSR
permitting
for
ozone
are
covered
by
EPA's
request
to
renew
the
approval
of
the
ICR
for
the
NSR
program,
ICR
1230.17,
which
was
submitted
to
OMB
on
October
26,
2004.
The
information
collection
requirements
associated
with
NSR
permitting
were
previously
covered
by
ICR
1230.10
and
1230.11.
The
Office
of
Management
and
Budget
(
OMB)

previously
approved
the
information
collection
requirements
contained
in
the
existing
NSR
regulations
at
40
CFR
parts
51
and
52
under
the
provisions
of
the
Paperwork
Reduction
Act,

and
assigned
OMB
control
number
2060­
0003.
Although
the
OMB
approval
was
scheduled
to
expire
on
October
31,
2004,

under
OMB
regulations,
the
Agency
may
continue
to
conduct
or
sponsor
the
collection
of
information
while
a
renewal
request
is
pending
at
OMB.
A
copy
of
EPA's
renewal
request
PREDECISIONAL
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426
may
be
obtained
from
Susan
Auby,
Collection
Strategies
Division;
U.
S.
Environmental
Protection
Agency
(
2822T);
1200
Pennsylvania
Ave.,
NW,
Washington,
DC
20460
or
by
calling
(
202)
566­
1672.

Burden
means
the
total
time,
effort,
or
financial
resources
expended
by
persons
to
generate,
maintain,
retain,

or
disclose
or
provide
information
to
or
for
a
Federal
agency.
This
includes
the
time
needed
to
review
instructions;
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,

validating,
and
verifying
information,
processing
and
maintaining
information,
and
disclosing
and
providing
information;
adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.
An
agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
in
40
CFR
are
listed
in
40
CFR
part
9.

C.
Regulatory
Flexibility
Act
PREDECISIONAL
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427
1.
For
portion
of
rulemaking
other
than
new
source
review.

The
Regulatory
Flexibility
Act
generally
requires
an
Agency
to
prepare
a
regulatory
flexibility
analysis
of
any
rule
subject
to
notice
and
comment
rulemaking
requirements
under
the
Administrative
Procedures
Act
or
any
other
statute
unless
the
Agency
certifies
the
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
Small
entities
include
small
businesses,
small
organizations,
and
small
governmental
jurisdictions.

For
purposes
of
assessing
the
impacts
of
today's
rule
on
small
entities,
small
entity
is
defined
as:
(
1)
a
small
business
that
is
a
small
industrial
entity
as
defined
in
the
U.
S.
Small
Business
Administration
(
SBA)
size
standards.

(
See
13
CFR
121.);
(
2)
a
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,
school
district
or
special
district
with
a
population
of
less
than
50,000;
and
(
3)
a
small
organization
that
is
any
not­
for­
profit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.

After
considering
the
economic
impacts
of
today's
rule
on
small
entities,
I
certify
that
this
action
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
This
rule
will
not
impose
any
requirements
PREDECISIONAL
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on
small
entities.
Rather,
this
rule
interprets
the
obligations
established
in
the
CAA
for
States
to
submit
implementation
plans
in
order
to
attain
the
8­
hour
ozone
NAAQS.
We
are
issuing
this
rule
so
that
States
and
Tribes
will
know
how
we
plan
to
classify
areas
and
transition
from
implementation
of
the
1­
hour
NAAQS
to
implementation
of
the
8­
hour
NAAQS.

2.
For
portion
of
rulemaking
on
new
source
review
(
NSR)

We
determined
it
is
not
necessary
to
prepare
a
regulatory
flexibility
analysis
in
connection
with
this
final
rule.
We
have
also
determined
that
this
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
For
purposes
of
assessing
the
impacts
of
today'

s
rule
on
small
entities,
small
entity
is
defined
as:
(
1)

any
small
business
employing
fewer
than
500
employees;
(
2)
a
small
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,
school
district
or
special
district
with
a
population
of
less
than
50,000;
and
(
3)
a
small
organization
that
is
any
not­
for­
profit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.

After
considering
the
economic
impacts
of
today's
rule
on
small
entities,
EPA
has
concluded
that
this
action
will
PREDECISIONAL
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not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
A
Regulatory
Flexibility
Act
Screening
Analysis
(
RFASA,)
developed
as
part
of
a
1994
draft
Regulatory
Impact
Analysis
(
RIA)
and
incorporated
into
the
September
1995
ICR
renewal
analysis
showed
that
the
changes
to
the
NSR
program
due
to
the
1990
CAA
Amendments
would
not
have
an
adverse
impact
on
small
entities.
This
analysis
encompassed
the
entire
universe
of
applicable
major
sources
that
were
likely
to
also
be
small
businesses
(
approximately
50
"
small
business"
major
sources).
Because
the
administrative
burden
of
the
NSR
program
is
the
primary
source
of
the
NSR
program's
regulatory
costs,
the
analysis
estimated
a
negligible
"
cost
to
sales"
(
regulatory
cost
divided
by
the
business
category
mean
revenue)
ratio
for
this
source
group.
The
incorporation
of
the
major
source
thresholds
and
offset
ratios
from
the
CAA
1990
Amendments
in
§
51.165
and
Appendix
S
for
the
purpose
of
implementing
NSR
for
the
8­
hour
standard
does
not
change
this
conclusion.

Under
Section
110(
a)(
2)(
C),
all
States
must
implement
a
preconstruction
permitting
program
"
as
necessary
to
assure
that
the
[
NAAQS]
are
achieved,"
regardless
of
changes
to
today's
regulations.
Thus,
small
businesses
continue
to
be
subject
to
regulations
for
construction
and
modification
of
PREDECISIONAL
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05
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stationary
sources,
whether
under
State
and
local
agency
minor
NSR
programs,
SIPs
to
implement
§
51.165,
or
appendix
S,
to
ensure
that
the
8­
hour
standard
is
achieved.
We
have
therefore
concluded
that
today's
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.

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

local,
and
Tribal
governments,
in
the
aggregate,
or
to
the
private
sector,
of
$
100
million
or
more
in
any
1
year.

Before
promulgating
an
EPA
rule
for
which
a
written
statement
is
needed,
section
205
of
the
UMRA
generally
requires
EPA
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
adopt
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
that
achieves
the
objectives
of
the
rule.
The
provisions
of
section
205
PREDECISIONAL
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431
do
not
apply
when
they
are
inconsistent
with
applicable
law.

Moreover,
section
205
allows
EPA
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
if
the
Administrator
publishes
with
the
final
rule
an
explanation
why
that
alternative
was
not
adopted.
Before
EPA
establishes
any
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,

including
Tribal
governments,
it
must
have
developed
under
section
203
of
the
UMRA
a
small
government
agency
plan.
The
plan
must
provide
for
notifying
potentially
affected
small
governments,
enabling
officials
of
affected
small
governments
to
have
meaningful
and
timely
input
in
the
development
of
EPA
regulatory
proposals
with
significant
Federal
intergovernmental
mandates,
and
informing,

educating,
and
advising
small
governments
on
compliance
with
the
regulatory
requirements.

The
EPA
has
determined
that
this
rule
does
not
contain
a
Federal
mandate
that
may
result
in
expenditures
of
$
100
million
or
more
for
State,
local,
and
Tribal
governments,
in
the
aggregate,
or
the
private
sector
in
any
1
year.
The
estimated
administrative
burden
hour
and
costs
associated
with
implementing
the
8­
hour,
0.08
ppm
NAAQS
were
developed
upon
promulgation
of
the
NAAQS
and
presented
in
Chapter
10
PREDECISIONAL
DRAFT
 
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draft
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05
432
of
U.
S.
EPA
1997,
Regulatory
Impact
Analyses
for
the
Particulate
Matter
and
Ozone
National
Ambient
Air
Quality
Standards,
Innovative
Strategies
and
Economics
Group,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
N.
C.,
July
16,
1997.
The
estimated
costs
presented
there
for
States
in
1990
dollars
totaled
$
0.9
million.
The
corresponding
estimate
in
1997
dollars
is
$
1.1
million.

Should
the
more
traditional
classification
option
be
adopted
as
the
implementation
framework,
these
costs
may
increase
modestly,
but
would
not
reach
$
100
million.
Thus,
today's
rule
is
not
subject
to
the
requirements
of
section
202
and
205
of
the
UMRA.

The
CAA
imposes
the
obligation
for
States
to
submit
SIPs
to
implement
the
8­
hour
ozone
NAAQS;
in
this
rule,
EPA
is
merely
fleshing
out
those
requirements.
However,
even
if
this
rule
did
establish
a
requirement
for
States
to
submit
SIPs,
it
is
questionable
whether
a
requirement
to
submit
a
SIP
revision
would
constitute
a
Federal
mandate
in
any
case.

The
obligation
for
a
State
to
submit
a
SIP
that
arises
out
of
section
110
and
part
D
of
the
CAA
is
not
legally
enforceable
by
a
court
of
law,
and
at
most
is
a
condition
for
continued
receipt
of
highway
funds.
Therefore,
it
is
possible
to
view
an
action
requiring
such
a
submittal
as
not
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creating
any
enforceable
duty
within
the
meaning
of
section
421(
5)(
9a)(
I)
of
UMRA
(
2
U.
S.
C.
658(
a)(
I)).
Even
if
it
did,

the
duty
could
be
viewed
as
falling
within
the
exception
for
a
condition
of
Federal
assistance
under
section
421(
5)(
a)(
i)(
I)
of
UMRA
(
2
U.
S.
C.
658(
5)(
a)(
i)(
I)).

In
this
rule,
EPA
has
determined
that
this
rule
contains
no
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
Tribal
governments.
Nonetheless,
EPA
carried
out
consultations
with
governmental
entities
affected
by
this
rule.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
"
Federalism"
(
64
FR
43255,
August
10,
1999),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications."

"
Policies
that
have
federalism
implications"
is
defined
in
the
Executive
Order
to
include
regulations
that
have
"
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,

or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government."

This
rule
does
not
have
federalism
implications.
It
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will
not
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.
As
described
in
section
D,
above
(
on
UMRA),
EPA
previously
determined
the
costs
to
States
to
implement
the
8­
hour
ozone
NAAQS
to
be
approximately
$
1
million.
While
this
rule
considers
options
not
addressed
at
the
time
the
NAAQS
were
promulgated,
the
costs
for
implementation
under
these
options
may
rise
modestly.
This
rule
fleshes
out
the
statutory
obligations
of
States
in
implementing
the
8­
hour
ozone
NAAQS.
Finally,
the
CAA
establishes
the
scheme
whereby
States
take
the
lead
in
developing
plans
to
meet
the
NAAQS.
This
rule
would
not
modify
the
relationship
of
the
States
and
EPA
for
purposes
of
developing
programs
to
implement
the
NAAQS.
Thus,

Executive
Order
13132
does
not
apply
to
this
rule.

Although
section
6
of
Executive
Order
13132
does
not
apply
to
this
rule,
EPA
actively
engaged
the
States
in
the
development
of
this
rule.
EPA
held
regular
calls
with
representatives
of
State
and
local
air
pollution
control
agencies.
EPA
also
held
three
public
meetings
at
which
it
described
the
approaches
it
was
considering
and
provided
an
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opportunity
for
States
and
various
other
governmental
officials
to
comment
on
the
options
being
considered.

Finally,
EPA
held
three
public
hearings
after
the
proposed
rule
was
published
to
obtain
public
comments.

F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
Executive
Order
13175,
entitled
"
Consultation
and
Coordination
with
Indian
Tribal
Governments"
(
65
FR
67249,

November
9,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
tribal
officials
in
the
development
of
regulatory
policies
that
have
tribal
implications."
This
determination
is
stated
below.

This
rule
concerns
the
implementation
of
the
8­
hour
ozone
NAAQS
in
areas
designated
nonattainment
for
that
NAAQS.
The
CAA
provides
for
States
and
Tribes
to
develop
plans
to
regulate
emissions
of
air
pollutants
within
their
jurisdictions.
The
regulations
flesh
out
the
statutory
obligations
of
States
and
Tribes
that
develop
plans
to
implement
the
8­
hour
ozone
NAAQS.
The
Tribal
authority
Rule
(
TAR)
and
the
CAA
give
Tribes
the
opportunity
to
develop
and
implement
CAA
programs
such
as
the
8­
hour
ozone
NAAQS,
but
it
leaves
to
the
discretion
of
the
Tribe
whether
to
develop
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these
programs
and
which
programs,
or
appropriate
elements
of
a
program,
they
will
adopt.

This
rule
does
not
have
Tribal
implications
as
defined
by
Executive
Order
13175.
It
does
not
have
a
substantial
direct
effect
on
one
or
more
Indian
Tribes,
since
no
Tribe
has
implemented
a
CAA
program
to
attain
the
8­
hour
ozone
NAAQS
at
this
time.
Furthermore,
this
rule
does
not
affect
the
relationship
or
distribution
of
power
and
responsibilities
between
the
Federal
government
and
Indian
Tribes.
The
CAA
and
the
TAR
establish
the
relationship
of
the
Federal
government
and
Tribes
in
developing
plans
to
attain
the
NAAQS,
and
this
rule
does
nothing
to
modify
that
relationship.
Because
this
rule
does
not
have
Tribal
implications,
Executive
Order
13175
does
not
apply.

The
EPA
also
notes
that
even
if
Tribes
choose
to
develop
plans
to
implement
the
8­
hour
ozone
NAAQS
in
the
future,
these
regulations
would
not
impose
substantial
direct
compliance
costs
on
such
Tribes,
nor
would
they
preempt
Tribal
law.
As
provided
above,
EPA
has
determined
that
the
total
costs
for
implementing
the
8­
hour
ozone
NAAQS
by
State,
local,
and
Tribal
governments
is
approximately
$
1
million
in
all
areas
designated
nonattainment
for
the
NAAQS.

The
percentage
of
Indian
country
that
will
be
designated
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
437
nonattainment
for
the
8­
hour
ozone
NAAQS
is
very
small.
For
Tribes
that
choose
to
regulate
sources
under
their
jurisdiction,
the
costs
would
be
attributed
to
inspecting
regulated
facilities
and
enforcing
adopted
regulations.

Although
Executive
Order
13175
does
not
apply
to
this
rule,
EPA
did
consult
with
Tribal
leaders
and
environmental
staff
in
developing
this
rule
and
encouraged
Tribal
input
at
an
early
stage.
The
EPA
supports
the
national
"
Tribal
Designations
and
Implementation
Work
Group"
which
provided
an
open
forum
for
all
Tribes
to
voice
concerns
to
EPA
about
the
designation
and
implementation
process
for
the
8­
hour
ozone
NAAQS.
These
discussions
have
given
EPA
valuable
information
about
Tribal
concerns
regarding
implementation
of
the
8­
hour
ozone
NAAQS.
The
work
group
sent
issue
summaries
and
suggestions
for
addressing
them
to
the
newly
formed
National
Tribal
Air
Association
(
NTAA),
which
in
turn
sent
them
to
Tribal
leaders.
The
project
lead
for
this
rule
informed
interested
Tribal
leaders
about
progress
on
the
rule
and
invited
input.
EPA
encouraged
Tribes
to
participate
in
the
national
public
meetings
held
to
take
comment
on
early
approaches
to
the
rule.
Several
Tribes
made
public
comments
at
the
April
2002
public
meeting
in
Tempe,
Arizona.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
438
Furthermore,
EPA
sent
individualized
letters
to
all
federally
recognized
Tribes
about
the
proposal
inviting
Tribal
leaders
to
consult
with
EPA.
EPA
received
comment
from
the
NTAA
on
several
questions:
(
1)
NTAA
asked
for
clarification
on
the
nature
of
EPA's
support
for
Tribes
without
TAS
status
and
asked
if
EPA
would
provide
technical
assistance
in
interpreting
SIP
documentation
to
a
Tribe
without
TAS
approval;
(
2)
NTAA
asked
EPA
to
explain
how
it
envisions
its
role
in
continuing
consultation
with
Tribes
throughout
the
execution
of
SIPs.
These
comments
will
be
addressed
in
the
technical
support
document.
The
NTAA's
final
comment
cited
concerns
with
the
impact
of
NSR
requirements
on
the
Tribes.
EPA
acknowledges
that
Offsets
are
a
concern
for
Tribes.
We
are
currently
evaluating
potential
options
for
addressing
this
concern.

G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
and
Safety
Risks
Executive
Order
13045:
"
Protection
of
Children
From
Environmental
Health
and
Safety
Risks"
(
62
FR
19885,
April
23,
1997)
applies
to
any
rule
that
(
1)
is
determined
to
be
"
economically
significant"
as
defined
under
Executive
Order
12866,
and
(
2)
concerns
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
a
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
439
disproportionate
effect
on
children.
If
the
regulatory
action
meets
both
criteria,
the
Agency
must
evaluate
the
environmental
health
or
safety
effects
of
the
planned
rule
on
children,
and
explain
why
the
planned
regulation
is
preferable
to
other
potentially
effective
and
reasonably
feasible
alternatives
considered
by
the
Agency.

The
rule
is
not
subject
to
Executive
Order
13045
because
it
implements
a
previously
promulgated
health
based
Federal
standard
(
this
rule
implements
the
8­
hour
ozone
NAAQS).
Nonetheless,
we
have
evaluated
the
environmental
health
and
safety
effects
of
the
8­
hour
ozone
NAAQS
on
children.
The
results
of
this
evaluation
are
contained
in
40
CFR
part
50,
National
Ambient
Air
Quality
Standards
for
Ozone,
Final
Rule
(
62
FR
38855­
38896;
specifically,
62
FR
38855,
62
FR
38860
and
62
FR
38865).

H.
Executive
Order
13211:
Actions
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
This
rule
is
not
a
"
significant
energy
action"
as
defined
in
Executive
Order
13211,
"
Actions
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use,"

(
66
FR
28355,
May
22,
2001)
because
it
is
not
likely
to
have
a
significant
adverse
effect
on
the
supply,
distribution,
or
use
of
energy.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
440
Information
on
the
methodology
and
data
regarding
the
assessment
of
potential
energy
impacts
is
found
in
Chapter
6
of
U.
S.
EPA
2003,
Cost,
Emission
Reduction,
Energy,
and
Economic
Impact
Assessment
of
the
Proposed
Rule
Establishing
the
Implementation
Framework
for
the
8­
Hour,
0.08
ppm
Ozone
National
Ambient
Air
Quality
Standard,
prepared
by
the
Innovative
Strategies
and
Economics
Group,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
N.
C.

April
24,
2003.

I.
National
Technology
Transfer
Advancement
Act
Section
12(
d)
of
the
National
Technology
Transfer
Advancement
Act
of
1995
(
NTTAA),
Public
Law
No.
104­
113,

section
12(
d)
(
15
U.
S.
C.
272
note)
directs
EPA
to
use
voluntary
consensus
standards
(
VCS)
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Voluntary
consensus
standards
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,
and
business
practices)
that
are
developed
or
adopted
by
VCS
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
VCS.

This
rulemaking
does
not
involve
technical
standards.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
441
Therefore,
EPA
is
not
considering
the
use
of
any
VCS.

The
EPA
will
encourage
the
States
and
Tribes
to
consider
the
use
of
such
standards,
where
appropriate,
in
the
development
of
the
implementation
plans.

J.
Executive
Order
12898:
Federal
Actions
to
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
Populations
Executive
Order
12898
requires
that
each
Federal
agency
make
achieving
environmental
justice
part
of
its
mission
by
identifying
and
addressing,
as
appropriate,
disproportionate
high
and
adverse
human
health
or
environmental
effects
of
its
programs,
policies,
and
activities
on
minorities
and
low­
income
populations.

The
EPA
believes
that
this
rule
should
not
raise
any
environmental
justice
issues.
The
health
and
environmental
risks
associated
with
ozone
were
considered
in
the
establishment
of
the
8­
hour,
0.08
ppm
ozone
NAAQS.
The
level
is
designed
to
be
protective
with
an
adequate
margin
of
safety.
The
rule
provides
a
framework
for
improving
environmental
quality
and
reducing
health
risks
for
areas
that
may
be
designated
nonattainment.

K.
Congressional
Review
Act
The
Congressional
Review
Act,
5
U.
S.
C.
801
et
seq.,
as
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
442
added
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996,
generally
provides
that
before
a
rule
may
take
effect,
the
agency
promulgating
the
rule
must
submit
a
rule
report,
which
includes
a
copy
of
the
rule,
to
each
House
of
the
Congress
and
to
the
Comptroller
General
of
the
United
States.
The
EPA
will
submit
a
report
containing
this
rule
and
other
required
information
to
the
U.
S.
Senate,
the
U.
S.

House
of
Representatives,
and
the
Comptroller
General
of
the
United
States
prior
to
publication
of
the
rule
in
the
Federal
Register.
A
Major
rule
cannot
take
effect
until
60
days
after
it
is
published
in
the
Federal
Register.
This
action
is
not
a
"
major
rule"
as
defined
by
5
U.
S.
C.
804(
2).

This
rule
will
be
effective
June
15,
2004.

L.
Petitions
for
Judicial
Review
Under
section
307(
b)(
1)
of
the
CAA,
petitions
for
judicial
review
of
this
action
must
be
filed
in
the
United
States
Court
of
Appeals
for
the
District
of
Columbia
Circuit
by
June
29,
2004.
Filing
a
petition
for
reconsideration
by
the
Administrator
of
this
final
rule
does
not
affect
the
finality
of
this
rule
for
the
purposes
of
judicial
review
nor
does
it
extend
the
time
within
which
a
petition
for
judicial
review
may
be
filed,
and
shall
not
postpone
the
effectiveness
of
such
rule
or
action.
This
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
2/
6/
05
443
action
may
not
be
challenged
later
in
proceedings
to
enforce
its
requirements.
See
CAA
section
307(
b)(
2).

M.
Determination
Under
Section
307(
d)

Pursuant
to
section
307(
d)(
1)(
U)
of
the
CAA,
the
Administrator
determines
that
this
action
is
subject
to
the
provisions
of
section
307(
d).
Section
307(
d)(
1)(
U)
provides
that
the
provisions
of
section
307(
d)
apply
to
"
such
other
actions
as
the
Administrator
may
determine."
While
the
Administrator
did
not
make
this
determination
earlier,
the
Administrator
believes
that
all
of
the
procedural
requirements,
e.
g.,
docketing,
hearing
and
comment
periods,

of
section
307(
d)
have
been
complied
with
during
the
course
of
this
rulemaking.
Rule
to
Implement
the
8­
Hour
Ozone
Standard
Page
___
of
___

444
LIST
OF
SUBJECTS
IN
40
CFR
Part
50
Environmental
protection,
Air
pollution
control,
Carbon
monoxide,
Lead,
Nitrogen
dioxide,
Ozone,
Particulate
Matter,

Sulfur
oxides.

LIST
OF
SUBJECTS
in
40
CFR
Part
51
Air
pollution
control,
Intergovernmental
relations,
Ozone,

Particulate
matter,
Transportation,
Volatile
organic
compounds.

LIST
OF
SUBJECTS
in
40
CFR
Part
81
Environmental
protection,
Air
pollution
control,
National
parks,
Wilderness
areas.

AUTHORITY
42
U.
S.
C.
7408;
42
U.
S.
C.
7410;
42
U.
S.
C.
7501­
7511f;
42
U.
S.
C.
7601(
a)(
1);
42
U.
S.
C.
7401.

________________________________

Dated:

________________________________

Administrator.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
92These
methods
assume
the
use
of
EPA's
on­
road
motor
vehicle
emissions
model
in
all
states
other
than
California.
All
of
the
methods
given
here
require
the
user
to
turn
off
all
post­
1990
Clean
Air
Act
measures
as
part
of
the
calculation.
In
EPA's
current
motor
vehicle
emissions
model,
MOBILE6.2,
this
is
accomplished
using
the
NO
CLEAN
AIR
ACT
command
as
described
in
the
MOBILE6.2
User's
Guide
(
found
at
http://
www.
epa.
gov/
otaq/
m6.
htm).
Users
of
future
versions
of
EPA's
motor
vehicle
emissions
model
should
consult
the
appropriate
User's
Guide
for
the
version
of
the
model
they
are
using
for
instructions
on
what
model
command
to
use.
For
California
nonattainment
areas,
the
current
motor
vehicle
emissions
model
is
EMFAC2002.
Users
modeling
California
nonattainment
areas
should
consult
with
the
EPA
Regional
Office
for
information
on
doing
equivalent
calculations
in
that
model
and
in
future
versions.
445
APPENDIX
A
TO
PREAMBLE
Methods
to
Account
for
Non­
Creditable
Reductions
when
Calculating
ROP
Targets
for
the
2008
and
Later
ROP
Milestone
Years
The
following
methods
properly
account
for
the
noncreditable
emission
reductions
when
calculating
ROP
targets
for
the
2008
and
later
ROP
milestone
years.
92
They
are
consistent
with
requirements
of
sections
182(
b)(
1)(
C)
and
(
D)
and
182(
c)(
2)(
B)
of
the
Act.

(
1)
Method
1:
For
areas
that
must
meet
a
15
percent
VOC
reduction
requirement
by
2008:

(
A)
Estimate
the
actual
anthropogenic
base
year
VOC
inventory
in
2002
with
all
2002
control
programs
in
place
for
all
sources.

(
B)
Using
the
same
highway
vehicle
activity
inputs
used
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
446
to
calculate
the
actual
2002
inventory,
run
the
appropriate
motor
vehicle
emissions
model
for
2002
and
for
2008
with
all
post­
1990
CAA
measures
turned
off.

Any
other
local
inputs
for
vehicle
inspection
and
maintenance
(
I/
M)
programs
should
be
set
according
to
the
program
that
was
required
to
be
in
place
in
1990.

Fuel
Reid
Vapor
Pressure
(
RVP)
should
be
set
at
9.0
or
7.8
depending
on
the
RVP
required
in
the
local
area
as
a
result
of
fuel
RVP
regulations
promulgated
in
June,

1990.

(
C)
Calculate
the
difference
between
the
2002
and
2008
VOC
emission
factors
calculated
in
Step
B
and
multiply
by
2002
vehicle
miles
traveled
(
VMT).
The
result
is
the
VOC
emissions
reductions
that
will
occur
between
2002
and
2008
without
the
benefits
of
any
post­
1990
CAA
measures.
These
are
the
non­
creditable
reductions
that
occur
over
this
period.

(
D)
Subtract
the
non­
creditable
reductions
calculated
in
Step
C
from
the
actual
anthropogenic
2002
inventory
estimated
in
step
A.
This
adjusted
VOC
inventory
is
the
basis
for
calculating
the
target
level
of
emissions
in
2008.

(
E)
Reduce
the
adjusted
VOC
inventory
calculated
in
step
D
by
15
percent.
The
result
is
the
target
level
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
447
of
VOC
emissions
in
2008
in
order
to
meet
the
2008
ROP
requirement.
The
actual
projected
2008
inventory
for
all
sources
with
all
control
measures
in
place
and
including
projected
2008
growth
in
activity
must
be
at
or
lower
than
this
target
level
of
emissions.

(
2)
Method
2:
For
areas
covered
under
40
CFR
51.910(
a)(
1)(
ii)(
C)
and
must
meet
an
18
percent
VOC
emission
reduction
requirement
by
2008
with
NOx
substitution
allowed,

following
EPA's
NOx
Substitution
Guidance:

(
A)
Estimate
the
actual
anthropogenic
base
year
inventory
for
both
VOC
and
NOx
in
2002
with
all
2002
control
programs
in
place.

(
B)
Using
the
same
highway
vehicle
activity
inputs
used
to
calculate
the
actual
2002
inventory,
run
the
appropriate
motor
vehicle
emissions
model
for
2002
and
for
2008
with
all
post­
1990
CAA
measures
turned
off.

Any
other
local
inputs
for
I/
M
programs
should
be
set
according
to
the
program
that
was
required
to
be
in
place
in
1990.
Fuel
RVP
should
be
set
at
9.0
or
7.8
depending
on
the
RVP
required
in
the
local
area
as
a
result
of
fuel
RVP
regulations
promulgated
in
June,

1990.

(
C)
Calculate
the
difference
between
2002
and
2008
VOC
emissions
factors
calculated
in
Step
B
and
multiply
by
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
448
2002
VMT.
The
result
is
the
VOC
emissions
reductions
that
will
occur
between
2002
and
2008
without
the
benefits
of
any
post­
1990
CAA
measures.
These
are
the
non­
creditable
VOC
reductions
that
occur
over
this
period.
Calculate
the
difference
between
2002
and
2008
NOx
emissions
factors
calculated
in
Step
B
and
multiply
by
2002
VMT.
This
result
is
the
NOx
emissions
reductions
that
will
occur
between
2002
and
2008
without
the
benefits
of
any
post­
1990
CAA
measures.

These
are
the
non­
creditable
NOx
reductions
that
occur
over
this
period.

(
D)
Subtract
the
non­
creditable
VOC
reductions
calculated
in
Step
C
from
the
actual
anthropogenic
2002
VOC
inventory
estimated
in
Step
A.
Subtract
the
non­
creditable
NOx
reductions
calculated
in
Step
C
from
the
actual
anthropogenic
2002
NOx
inventory
estimated
in
Step
A.
These
adjusted
VOC
and
NOx
inventories
are
the
basis
for
calculating
the
target
level
of
emissions
in
2008.

(
E)
The
target
level
of
VOC
and
NOx
emissions
in
2008
needed
to
meet
the
2008
ROP
requirement
is
any
combination
of
VOC
and
NOx
reductions
from
the
adjusted
inventories
calculated
in
Step
D
that
total
18
percent.

For
example,
the
target
level
of
VOC
emissions
in
2008
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
449
could
be
a
10
percent
reduction
from
the
adjusted
VOC
inventory
in
Step
D
and
an
8
percent
reduction
from
the
adjusted
NOx
inventory
in
Step
D.
The
actual
projected
2008
VOC
and
NOx
inventories
for
all
sources
with
all
control
measures
in
place
and
including
projected
2008
growth
in
activity
must
be
at
or
lower
than
the
target
levels
of
VOC
and
NOx
emissions.

(
3)
Method
3:
For
all
areas
that
have
used
Method
1
above
(
and
therefore
do
not
have
a
NOx
target
level
of
emissions
for
2008)
and
must
meet
an
additional
reduction
VOC
requirement
of
9
percent
every
3
years
after
2008
with
NOx
substitution
allowed,
following
EPA's
NOx
Substitution
Guidance.
Each
subsequent
target
level
of
emissions
should
be
calculated
as
an
emissions
reduction
from
the
previous
target.

(
A)
Estimate
the
actual
anthropogenic
base
year
NOx
inventory
in
2002
with
all
2002
control
programs
in
place
for
all
sources.

(
B)
Using
the
same
highway
vehicle
activity
inputs
used
to
calculate
the
actual
2002
inventory,
run
the
appropriate
emissions
model
for
VOC
and
NOx
in
2002
and
2008
(
previously
done
in
Step
B
in
Method
1
for
VOC
but
not
necessarily
for
NOx)
and
2011
with
all
post­
1990
CAA
measures
turned
off.
Any
other
local
inputs
for
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
450
I/
M
programs
should
be
set
according
to
the
program
that
was
required
to
be
in
place
in
1990.
Fuel
RVP
should
be
set
at
9.0
or
7.8
depending
on
the
RVP
required
in
the
local
area
as
a
result
of
fuel
RVP
regulations
promulgated
in
June,
1990.

(
C)
Calculate
the
difference
between
2008
and
2011
VOC
emission
factors
calculated
in
Step
B
and
multiply
by
2002
VMT.
The
result
is
the
VOC
emissions
reductions
that
will
occur
between
2008
and
2011
without
the
benefits
of
any
post­
1990
CAA
measures.
These
are
the
non­
creditable
VOC
reductions
that
occur
over
this
period.
Calculate
the
difference
between
2002
and
2011
NOx
emission
factors
calculated
in
Step
B
and
multiply
by
2002
VMT.
The
result
is
the
NOx
emissions
reductions
that
will
occur
between
2002
and
2011
without
the
benefits
of
any
post­
1990
CAA
measures.

These
are
the
non­
creditable
NOx
reductions
that
occur
over
this
period.

(
C)
Subtract
the
non­
creditable
VOC
reductions
calculated
in
Step
C
from
the
2008
VOC
target
level
of
emissions
calculated
previously.
Subtract
the
non­
creditable
NOx
reductions
calculated
in
Step
C
from
the
actual
2002
NOx
inventory
of
emissions
calculated
in
Step
A.
These
adjusted
VOC
and
NOx
inventories
are
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
451
the
basis
for
calculating
the
target
level
of
emissions
in
2011.

(
D)
The
target
level
of
VOC
and
NOx
emissions
in
2011
needed
to
meet
the
2011
ROP
requirement
is
any
combination
of
VOC
and
NOx
reductions
from
the
adjusted
inventories
calculated
in
Step
E
that
total
9
percent.

For
example,
the
target
level
of
VOC
emissions
in
2011
could
be
a
4
percent
reduction
from
the
adjusted
VOC
inventory
in
Step
C
and
an
5
percent
reduction
from
the
adjusted
NOx
inventory
in
Step
C.
The
actual
projected
2011
VOC
and
NOx
inventories
for
all
sources
with
all
control
measures
in
place
and
including
projected
2011
growth
in
activity
must
be
at
or
lower
than
the
target
levels
of
VOC
and
NOx
emissions.

(
E)
For
subsequent
3­
year
periods
until
the
attainment
date,
repeat
the
process
for
VOC.
For
subsequent
3­

year
periods,
the
adjusted
NOx
inventory
should
be
based
on
the
difference
in
NOx
emissions
during
that
3­

year
period
when
all
post­
1990
CAA
measures
are
turned
off,
subtracted
from
the
previous
NOx
target
level
of
emissions.
For
example,
for
2014,
take
the
difference
in
NOx
emissions
reductions
that
will
occur
between
2011
and
2014
without
the
benefits
of
any
post­
1990
CAA
measures.
This
value
is
subtracted
from
the
2011
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
452
target
level
of
NOx
emissions
calculated
in
Step
D
to
get
the
adjusted
NOx
inventory
to
be
used
as
the
basis
for
calculating
the
target
level
of
NOx
emissions
in
2014.

(
3)
Method
4:
For
all
areas
that
have
used
Method
2
above
(
and
therefore
do
have
a
NOx
target
level
of
emissions
for
2008)
and
must
meet
an
additional
reduction
VOC
requirement
of
9
percent
every
3
years
after
2008
with
NOx
substitution
allowed,
following
EPA's
NOx
Substitution
Guidance.
Each
subsequent
target
level
of
emissions
should
be
calculated
as
an
emissions
reduction
from
the
previous
target.

(
A)
Using
the
same
highway
vehicle
activity
inputs
used
to
calculate
the
actual
2002
inventory,
run
the
appropriate
emissions
model
for
VOC
and
NOx
in
2008
(
previously
done
in
Step
B
in
Method
2)
and
2011
with
all
post­
1990
CAA
measures
turned
off.
Any
other
local
inputs
for
I/
M
programs
should
be
set
according
to
the
program
that
was
required
to
be
in
place
in
1990.
Fuel
RVP
should
be
set
at
9.0
or
7.8
depending
on
the
RVP
required
in
the
local
area
as
a
result
of
fuel
RVP
regulations
promulgated
in
June,
1990.

(
B)
Calculate
the
difference
between
2008
and
2011
VOC
emission
factors
calculated
in
Step
A
and
multiply
by
2002
VMT.
The
result
is
the
VOC
emissions
reductions
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
453
that
will
occur
between
2008
and
2011
without
the
benefits
of
any
post­
1990
CAA
measures.
These
are
the
non­
creditable
VOC
reductions
that
occur
over
this
period.
Calculate
the
difference
between
2008
and
2011
NOx
emission
factors
calculated
in
Step
A
and
multiply
by
2002
VMT.
The
result
is
the
NOx
emissions
reductions
that
will
occur
between
2008
and
2011
without
the
benefits
of
any
post­
1990
CAA
measures.

These
are
the
non­
creditable
NOx
reductions
that
occur
over
this
period.

(
C)
Subtract
the
non­
creditable
VOC
reductions
calculated
in
Step
B
from
the
2008
VOC
target
level
of
emissions
calculated
previously.
Subtract
the
non­
creditable
NOx
reductions
calculated
in
Step
B
from
the
2008
NOx
target
level
of
emissions
calculated
previously.
These
adjusted
VOC
and
NOx
inventories
are
the
basis
for
calculating
the
target
level
of
emissions
in
2011.

(
D)
The
target
level
of
VOC
and
NOx
emissions
in
2011
needed
to
meet
the
2011
ROP
requirement
is
any
combination
of
VOC
and
NOx
reductions
from
the
adjusted
inventories
calculated
in
Step
E
that
total
9
percent.

For
example,
the
target
level
of
VOC
emissions
in
2011
could
be
a
4
percent
reduction
from
the
adjusted
VOC
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
454
inventory
in
Step
C
and
an
5
percent
reduction
from
the
adjusted
NOx
inventory
in
Step
C.
The
actual
projected
2011
VOC
and
NOx
inventories
for
all
sources
with
all
control
measures
in
place
and
including
projected
2011
growth
in
activity
must
be
at
or
lower
than
the
target
levels
of
VOC
and
NOx
emissions.

(
E)
Repeat
entire
process
for
subsequent
3­
year
periods
until
the
attainment
date.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
455
APPENDIX
B
TO
PREAMBLE
GLOSSARY
OF
TERMS
AND
ACRONYMS
ACT
Alternative
Control
Techniques
BACT
Best
Available
Control
Technology
CAA
Clean
Air
Act
(
Act)

CAAA
1990
Clean
Air
Act
Amendments
CADCs
Clean
Air
Development
Communities
CAIR
Clean
Air
Interstate
Rule
CERR
Conoslidated
Emissions
Reporting
Rule
CFR
Code
of
Federal
Regulations
CMAQ
Congestion
Mitigation
and
Air
Quality
CMSA
Consolidated
Metropolitan
Statistical
Area
CO
Carbon
Monoxide
DOT
Department
of
Transportation
EMFAC
EMissions
FACtors
(
a
mobile
emissions
model)

ESRP
Emissions
Statement
Reporting
Program
CTG
Control
Technique
Guidelines
EGUs
Electricity
Generating
Units
EPA
Environmental
Protection
Agency
FIP
Federal
Implementation
Plan
FMVCP
Federal
Motor
Vehicle
Control
Program
I/
M
Inspection
and
Maintenance
Area
km
Kilometers
LADCO
Lake
Michigan
Air
Directors
Consortium
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
456
LAER
Lowest
achievable
emission
rate
MACT
Maximum
Achievable
Control
Technology
MCR
Mid­
course
review
MPO
Metropolitan
Planning
Organization
MSA
Metropolitan
Statistical
Area
NAA
Nonattainment
Area
NAAMS
National
Ambient
Air
Modeling
Strategy
NAAQS
National
Ambient
Air
Quality
Standards
NAMS/
SLAMS
National
Air
Monitoring
Stations/
State
and
Local
Air
Monitoring
Stations
NCore
National
Core
Monitoring
Stations
NOx
Nitrogen
oxides
NOy
Reactive
Oxides
of
Nitrogen
NPRM
Notice
of
Proposed
Rulemaking
NSR
New
source
review
NTAA
National
Tribal
Air
Association
NTTAA
National
Technology
Transfer
Advancement
Act
of
1995
OMB
Office
of
Management
and
Budget
OTC
Ozone
Transport
Commission
OTR
Ozone
Transport
Region
PAMS
Photochemical
Assessment
Monitoring
Stations
PM
Particulate
Matter
ppm
Parts
per
million
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
457
PSD
Prevention
of
significant
deterioration
psi
Pounds
per
square
inch
RACM
Reasonably
available
control
measures
RACT
Reasonably
available
control
technology
RFP
Reasonable
further
progress
ROG
Reactive
Organic
Gases
ROP
Rate
of
progress
PROs
Regional
Planning
Organizations
RVP
Reid
Vapor
Pressure
SBA
Small
Business
Administration
SCR
Selective
Catalytic
Reduction
SIPs
State
implementation
plans
TAR
Tribal
Authority
Rule
TAS
Treatment
in
the
same
manner
as
a
State
("
Treatment
as
State")

TEA­
21
Transportation
Equity
Act
for
the
Twenty­
first
Century
TIPs
Tribal
Implementation
Plans
tpy
Tons
Per
Year
TSP
Total
Suspended
Particulates
TTN/
SCRAM
Technical
Transfer
Network/
Support
Center
for
Regulatory
Air
Models
UMRA
Unfunded
Mandates
Reform
Act
of
1995
VCS
Voluntary
consensus
standards
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
458
VMT
vehicle
miles
traveled
VOC
Volatile
organic
compound
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
459
For
the
reasons
stated
in
the
preamble,
Title
40,
Chapter
I
of
the
Code
of
Federal
Regulations
is
amended
as
follows:

Part
51
 
Requirements
for
Preparation,
Adoption,
and
Submittal
of
Implementation
Plans
1.
The
authority
citation
for
Part
51
continues
to
read
as
follows:

Authority:
23
U.
S.
C.
101;
42
U.
S.
C.
7401­
7671q.

Subpart
I
­
[
Amended]

2.
Section
51.165
is
amended:

a.
By
revising
paragraphs
(
a)(
1)(
iv)(
A)(
1)
and
(
2).

b.
By
adding
paragraph
(
a)(
1)(
iv)(
A)(
3).

c.
By
adding
paragraphs
(
a)(
1)(
v)(
E)
and
(
F).

d.
By
revising
paragraph
(
a)(
1)(
x).

e.
By
revising
paragraph
(
a)(
3)(
ii)(
C).

f.
By
adding
paragraphs
(
a)(
8)
and
(
a)(
9).

The
revisions
and
additions
read
as
follows:

§
51.165
Permit
requirements.

(
a)
*
*
*

(
1)
*
*
*

(
iv)
*
*
*

(
A)
*
*
*

(
1)
Any
stationary
source
of
air
pollutants
that
emits,
or
has
the
potential
to
emit,
100
tons
per
year
or
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
460
more
of
any
regulated
NSR
pollutant,
except
that
lower
emissions
thresholds
shall
apply
in
areas
subject
to
subpart
2,
subpart
3,
or
subpart
4
of
part
D,
title
I
of
the
Act,

according
to
paragraphs
(
a)(
1)(
iv)(
A)(
1)(
i)
through
(
v)
of
this
section.

(
i)
50
tons
per
year
of
volatile
organic
compounds
in
any
serious
ozone
nonattainment
area.

(
ii)
50
tons
per
year
of
volatile
organic
compounds
in
an
area
within
an
ozone
transport
region,
except
for
any
severe
or
extreme
ozone
nonattainment
area.

(
iii)
25
tons
per
year
of
volatile
organic
compounds
in
any
severe
ozone
nonattainment
area.

(
iv)
10
tons
per
year
of
volatile
organic
compounds
in
any
extreme
ozone
nonattainment
area.

(
v)
50
tons
per
year
of
carbon
monoxide
in
any
serious
nonattainment
area
for
carbon
monoxide,
where
stationary
sources
contribute
significantly
to
carbon
monoxide
levels
in
the
area
(
as
determined
under
rules
issued
by
the
Administrator)

(
vi)
70
tons
per
year
of
PM­
10
or,
where
applicable,
70
tons
per
year
of
a
specific
PM­
10
precursor,
in
any
serious
nonattainment
area
for
PM­
10;

(
2)
For
the
purposes
of
applying
the
requirements
of
paragraph
(
a)(
8)
of
this
section
to
stationary
sources
of
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
461
nitrogen
oxides
located
in
an
ozone
nonattainment
area
or
in
an
ozone
transport
region,
any
stationary
source
which
emits,
or
has
the
potential
to
emit,
100
tons
per
year
or
more
of
nitrogen
oxides
emissions,
except
that
the
emission
thresholds
in
paragraphs
(
a)(
1)(
iv)(
A)(
2)(
i)
through
(
vi)
of
this
section
shall
apply
in
areas
subject
to
subpart
2
of
part
D,
title
I
of
the
Act.

(
i)
100
tons
per
year
or
more
of
nitrogen
oxides
in
any
ozone
nonattainment
area
classified
as
marginal
or
moderate.

(
ii)
100
tons
per
year
or
more
of
nitrogen
oxides
in
any
ozone
nonattainment
area
classified
as
a
transitional,

submarginal,
or
incomplete
or
no
data
area,
when
such
area
is
located
in
an
ozone
transport
region.

(
iii)
100
tons
per
year
or
more
of
nitrogen
oxides
in
any
area
designated
under
section
107(
d)
of
the
Act
as
attainment
or
unclassifiable
for
ozone
that
is
located
in
an
ozone
transport
region.

(
iv)
50
tons
per
year
or
more
of
nitrogen
oxides
in
any
serious
nonattainment
area
for
ozone.

(
v)
25
tons
per
year
or
more
of
nitrogen
oxides
in
any
severe
nonattainment
area
for
ozone.

(
vi)
10
tons
per
year
or
more
of
nitrogen
oxides
in
any
extreme
nonattainment
area
for
ozone;
or
(
3)
Any
physical
change
that
would
occur
at
a
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stationary
source
not
qualifying
under
paragraphs
(
a)(
1)(
iv)(
A)(
1)
or
(
2)
of
this
section
as
a
major
stationary
source,
if
the
change
would
constitute
a
major
stationary
source
by
itself.

*
*
*
*
*

(
v)
*
*
*

(
E)
For
the
purpose
of
applying
the
requirements
of
(
a)(
8)
of
this
section
to
modifications
at
major
stationary
sources
of
nitrogen
oxides
located
in
ozone
nonattainment
areas
or
in
ozone
transport
regions,
whether
or
not
subject
to
subpart
2,
part
D,
title
I
of
the
Act,
any
significant
net
emissions
increase
of
nitrogen
oxides
is
considered
significant
for
ozone.

(
F)
Any
physical
change
in,
or
change
in
the
method
of
operation
of,
a
major
stationary
source
of
volatile
organic
compounds
that
results
in
any
increase
in
emissions
of
volatile
organic
compounds
from
any
discrete
operation,

emissions
unit,
or
other
pollutant
emitting
activity
at
the
source
shall
be
considered
a
significant
net
emissions
increase
and
a
major
modification
for
ozone,
if
the
major
stationary
source
is
located
in
an
extreme
ozone
nonattainment
area
that
is
subject
to
subpart
2,
part
D,

title
I
of
the
Act.

*
*
*
*
*
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(
x)(
A)
Significant
means,
in
reference
to
a
net
emissions
increase
or
the
potential
of
a
source
to
emit
any
of
the
following
pollutants,
a
rate
of
emissions
that
would
equal
or
exceed
any
of
the
following
rates:

POLLUTANT
EMISSION
RATE
Carbon
monoxide:
100
tons
per
year
(
tpy)

Nitrogen
oxides:
40
tpy
Sulfur
dioxide:
40
tpy
Ozone:
40
tpy
of
volatile
organic
compounds
or
NOx
Lead:
0.6
tpy
PM­
10:
15
tpy
PM­
10
PM­
10:
40
tpy
PM­
10
of
a
specific
PM­
10
precursor,
except
where
the
Administrator
has
determined
that
stationary
sources
of
PM­
10
precursors
do
not
contribute
significantly
to
PM­
10
levels
that
exceed
the
PM­
10
ambient
standards
(
B)
Notwithstanding
the
significant
emissions
rate
for
ozone
in
paragraph
(
a)(
1)(
x)(
A)
of
this
section,
significant
means,
in
reference
to
an
emissions
increase
or
a
net
emissions
increase,
any
increase
in
actual
emissions
of
volatile
organic
compounds
that
would
result
from
any
physical
change
in,
or
change
in
the
method
of
operation
of,

a
major
stationary
source
locating
in
a
serious
or
severe
ozone
nonattainment
area
that
is
subject
to
subpart
2,
part
D,
title
I
of
the
Act,
if
such
emissions
increase
of
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volatile
organic
compounds
exceeds
25
tons
per
year.

(
C)
For
the
purposes
of
applying
the
requirements
of
paragraph
(
a)(
8)
of
this
section
to
modifications
at
major
stationary
sources
of
nitrogen
oxides
located
in
an
ozone
nonattainment
area
or
in
an
ozone
transport
region,
the
significant
emission
rates
and
other
requirements
for
volatile
organic
compounds
in
paragraphs
(
a)(
1)(
x)(
A),
(
B),

and
(
E)
of
this
section
shall
apply
to
nitrogen
oxides
emissions.

(
D)
Notwithstanding
the
significant
emissions
rate
for
carbon
monoxide
under
paragraph
(
a)(
1)(
x)(
A)
of
this
section,
significant
means,
in
reference
to
an
emissions
increase
or
a
net
emissions
increase,
any
increase
in
actual
emissions
of
carbon
monoxide
that
would
result
from
any
physical
change
in,
or
change
in
the
method
of
operation
of,

a
major
stationary
source
in
a
serious
nonattainment
area
for
carbon
monoxide
if
such
increase
equals
or
exceeds
50
tons
per
year,
provided
the
Administrator
has
determined
that
stationary
sources
contribute
significantly
to
carbon
monoxide
levels
in
that
area.

(
E)
Notwithstanding
the
significant
emissions
rates
for
ozone
under
paragraphs
(
a)(
1)(
x)(
A)
and
(
B)
of
this
section,
any
increase
in
actual
emissions
of
volatile
organic
compounds
from
any
emissions
unit
at
a
major
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stationary
source
of
volatile
organic
compounds
located
in
an
extreme
ozone
nonattainment
area
that
is
subject
to
subpart
2,
part
D,
title
I
of
the
Act
shall
be
considered
a
significant
net
emissions
increase.

*
*
*
*
*

(
3)
*
*
*

(
i)
*
*
*

(
ii)
*
*
*

(
C)
Emission
Reduction
Credits
from
Shutdowns
and
Curtailments.

(
1)
Emissions
reductions
achieved
by
shutting
down
an
existing
emission
unit
or
curtailing
production
or
operating
hours
may
be
generally
credited
for
offsets
if
they
meet
the
requirements
in
paragraphs
(
a)(
3)(
ii)(
C)(
1)(
i)
through
(
ii)

of
this
section.

(
i)
Such
reductions
are
surplus,
permanent,

quantifiable,
and
federally
enforceable.

(
ii)
The
shutdown
or
curtailment
occurred
after
the
last
day
of
the
base
year
for
the
SIP
planning
process.
For
purposes
of
this
paragraph,
a
reviewing
authority
may
choose
to
consider
a
prior
shutdown
or
curtailment
to
have
occurred
after
the
last
day
of
the
base
year
if
the
projected
emissions
inventory
used
to
develop
the
attainment
demonstration
explicitly
includes
the
emissions
from
such
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previously
shutdown
or
curtailed
emission
units.
However,

in
no
event
may
credit
be
given
for
shutdowns
that
occurred
before
August
7,
1977.

(
2)
Emissions
reductions
achieved
by
shutting
down
an
existing
emissions
unit
or
curtailing
production
or
operating
hours
and
that
do
not
meet
the
requirements
in
paragraph
(
a)(
3)(
ii)(
C)(
1)(
ii)
of
this
section
may
be
generally
credited
only
if:

(
i)
The
shutdown
or
curtailment
occurred
on
or
after
the
date
the
construction
permit
application
is
filed;
or
(
ii)
The
applicant
can
establish
that
the
proposed
new
emissions
unit
is
a
replacement
for
the
shutdown
or
curtailed
emissions
unit,
and
the
emission
reductions
achieved
by
the
shutdown
or
curtailment
met
the
requirements
of
paragraph
(
a)(
3)(
ii)(
C)(
1)(
i)
of
this
section.

*
*
*
*
*

(
8)
The
plan
shall
provide
that
the
requirements
of
this
section
applicable
to
major
stationary
sources
and
major
modifications
of
volatile
organic
compounds
shall
apply
to
nitrogen
oxides
emissions
from
major
stationary
sources
and
major
modifications
of
nitrogen
oxides
in
an
ozone
transport
region
or
in
any
ozone
nonattainment
area,

except
in
ozone
nonattainment
areas
or
in
portions
of
an
ozone
transport
region
where
the
Administrator
has
granted
a
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NOx
waiver
applying
the
standards
set
forth
under
section
182(
f)
of
the
Act
and
the
waiver
continues
to
apply.

(
9)(
i)
The
plan
shall
require
that
in
meeting
the
emissions
offset
requirements
of
paragraph
(
a)(
3)
of
this
section
for
ozone
nonattainment
areas
that
are
subject
to
subpart
2,
part
D,
title
I
of
the
Act,
the
ratio
of
total
actual
emissions
reductions
of
VOC
to
the
emissions
increase
of
VOC
shall
be
as
follows:

(
A)
In
any
marginal
nonattainment
area
for
ozone
 
at
least
1.1:
1;

(
B)
In
any
moderate
nonattainment
area
for
ozone
 
at
least
1.15:
1;

(
C)
In
any
serious
nonattainment
area
for
ozone
 
at
least
1.2:
1;

(
D)
In
any
severe
nonattainment
area
for
ozone
 
at
least
1.3:
1
(
except
that
the
ratio
may
be
at
least
1.2:
1
if
the
approved
plan
also
requires
all
existing
major
sources
in
such
nonattainment
area
to
use
BACT
for
the
control
of
VOC);
and
(
E)
In
any
extreme
nonattainment
area
for
ozone
 
at
least
1.5:
1
(
except
that
the
ratio
may
be
at
least
1.2:
1
if
the
approved
plan
also
requires
all
existing
major
sources
in
such
nonattainment
area
to
use
BACT
for
the
control
of
VOC);
and
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(
ii)
Notwithstanding
the
requirements
of
paragraph
(
a)(
9)(
i)
of
this
section
for
meeting
the
requirements
of
paragraph
(
a)(
3)
of
this
section,
the
ratio
of
total
actual
emissions
reductions
of
VOC
to
the
emissions
increase
of
VOC
shall
be
at
least
1.15:
1
for
all
areas
within
an
ozone
transport
region
that
is
subject
to
subpart
2,
part
D,
title
I
of
the
Act,
except
for
serious,
severe,
and
extreme
ozone
nonattainment
areas
that
are
subject
to
subpart
2,
part
D,

title
I
of
the
Act.

(
iii)
The
plan
shall
require
that
in
meeting
the
emissions
offset
requirements
of
paragraph
(
a)(
3)
of
this
section
for
ozone
nonattainment
areas
that
are
subject
to
subpart
1,
part
D,
title
I
of
the
Act
(
but
are
not
subject
to
subpart
2,
part
D,
title
I
of
the
Act,
including
8­
hour
ozone
nonattainment
areas
subject
to
40
CFR
51.902(
b)),
the
ratio
of
total
actual
emissions
reductions
of
VOC
to
the
emissions
increase
of
VOC
shall
be
at
least
1:
1.

(
10)
The
plan
shall
require
that
the
requirements
of
this
section
applicable
to
major
stationary
sources
and
major
modifications
of
PM­
10
shall
also
apply
to
major
stationary
sources
and
major
modifications
of
of
PM­
10
precursors,
except
where
the
Administrator
determines
that
such
sources
do
not
contribute
significantly
to
PM­
10
levels
that
exceed
the
PM­
10
ambient
standards
in
the
area.
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*
*
*
*
*

3.
Section
51.166
is
amended:

a.
By
revising
paragraph
(
b)(
1)(
ii).

b.
By
revising
paragraph
(
b)(
2)(
ii).

c.
By
revising
paragraph
(
b)(
23).

d.
By
revising
paragraph
(
b)(
49).

e.
By
revising
the
second
sentence
of
footnote
1
to
paragraph
(
i)(
5)(
i)(
e)
to
state:
However,
any
net
emissions
increase
of
100
tons
per
year
or
more
of
volatile
organic
compounds
or
nitrogen
oxides
subject
to
PSD
would
be
required
to
perform
an
ambient
impact
analysis,
including
the
gathering
of
ambient
air
quality
data.

The
revisions
read
as
follows:

§
51.166
Prevention
of
significant
deterioration
of
air
quality.

(
b)
*
*
*

(
1)
*
*
*

(
ii)
A
major
source
that
is
major
for
volatile
organic
compounds
or
NOx
shall
be
considered
major
for
ozone.

(
2)
*
*
*

(
ii)
Any
significant
emissions
increase
(
as
defined
at
paragraph
(
b)(
39)
of
this
section)
from
any
emissions
units
or
net
emissions
increase
(
as
defined
in
pargraph
(
b)(
3)
of
this
section)
at
a
major
stationary
source
that
is
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significant
for
volatile
organic
compounds
or
NOx
shall
be
considered
significant
for
ozone.

*
*
*
*
*

(
23)
*
*
*

POLLUTANT
AND
EMISSIONS
RATE
*
*
*

Ozone:
40
tpy
of
volatile
organic
compounds
or
NOx
*
*
*
*
*

(
49)
*
*
*

(
i)
Any
pollutant
for
which
a
national
ambient
air
quality
standard
has
been
promulgated
and
any
constituents
or
precursors
for
such
pollutants
identified
by
the
Administrator
(
e.
g.,
volatile
organic
compounds
and
NOx
are
precursors
for
ozone);

Appendix
S
to
Part
51
­
[
Amended]

4.
Appendix
S
to
Part
51
is
amended
as
follows:

a.
By
revising
paragraph
II.
A.
4(
i)(
a)
and
(
b).

b.
By
adding
paragraph
II.
A.
4(
i)(
c).

c.
By
revising
paragraph
II.
A.
4(
ii).

d.
By
revising
paragraph
II.
A.
5
(
ii).

e.
By
adding
paragraphs
II.
A.
5(
iv)
through
(
v).

f.
By
revising
paragraph
II.
A.
6(
v)(
c).

g.
By
adding
paragraphs
II.
A.
10(
ii)
through
(
v).

h.
By
amending
paragraph
IV.
A
Condition
1
by
removing
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471
footnote
5.

i.
By
amending
paragraph
IV.
A
Condition
3
by
redesignating
footnote
6
as
footnote
5
and
by
redesignating
footnote
7
as
footnote
6.

j.
By
amending
paragraph
IV.
A
Condition
4
by
removing
footnote
8.

k.
By
revising
paragraph
IV.
C.
3.

l.
By
revising
paragraph
IV.
D.

m.
By
revising
paragraph
IV.
E.

n.
By
adding
paragraphs
IV.
G
through
H.

o.
By
amending
paragraph
V.
A
by
redesignating
footnote
10
as
footnote
7.

p.
By
revising
paragraph
VI.

The
revisions
and
additions
read
as
follows:

Appendix
S
to
Part
51
 
Emission
Offset
Interpretative
Ruling
*
*
*
*
*

II.
*
*
*

A.
*
*
*

4.(
i)
*
*
*

(
a)
Any
stationary
source
of
air
pollutants
which
emits,
or
has
the
potential
to
emit,
100
tons
per
year
or
more
of
any
pollutant
subject
to
regulation
under
the
Act,

except
that
lower
emissions
thresholds
shall
apply
in
areas
subject
to
subpart
2,
subpart
3,
or
subpart
4
of
part
D,
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title
I
of
the
Act,
according
to
paragraphs
II.
A.
4(
i)(
a)(
1)

through
(
5)
of
this
Ruling.

(
1)
50
tons
per
year
of
volatile
organic
compounds
in
any
serious
ozone
nonattainment
area.

(
2)
50
tons
per
year
of
volatile
organic
compounds
in
an
area
within
an
ozone
transport
region,
except
for
any
severe
or
extreme
ozone
nonattainment
area.

(
3)
25
tons
per
year
of
volatile
organic
compounds
in
any
severe
ozone
nonattainment
area.

(
4)
10
tons
per
year
of
volatile
organic
compounds
in
any
extreme
ozone
nonattainment
area.

(
5)
50
tons
per
year
of
carbon
monoxide
in
any
serious
nonattainment
area
for
carbon
monoxide,
where
stationary
sources
contribute
significantly
to
carbon
monoxide
levels
in
the
area
(
as
determined
under
rules
issued
by
the
Administrator)

(
6)
70
tons
per
year
of
PM­
10
or,
where
applicable,
70
tons
per
year
of
a
specific
PM­
10
precursor,
in
any
serious
nonattainment
area
for
PM­
10;

(
b)
For
the
purposes
of
applying
the
requirements
of
paragraph
IV.
H
of
this
Ruling
to
stationary
sources
of
nitrogen
oxides
located
in
an
ozone
nonattainment
area
or
in
an
ozone
transport
region,
any
stationary
source
which
emits,
or
has
the
potential
to
emit,
100
tons
per
year
or
PREDECISIONAL
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473
more
of
nitrogen
oxides
emissions,
except
that
the
emission
thresholds
in
paragraphs
II.
A.
4(
i)(
b)(
1)
through
(
6)
of
this
Ruling
apply
in
areas
subject
to
subpart
2
of
part
D,
title
I
of
the
Act.

(
1)
100
tons
per
year
or
more
of
nitrogen
oxides
in
any
ozone
nonattainment
area
classified
as
marginal
or
moderate.

(
2)
100
tons
per
year
or
more
of
nitrogen
oxides
in
any
ozone
nonattainment
area
classified
as
a
transitional,

submarginal,
or
incomplete
or
no
data
area,
when
such
area
is
located
in
an
ozone
transport
region.

(
3)
100
tons
per
year
or
more
of
nitrogen
oxides
in
any
area
designated
under
section
107(
d)
of
the
Act
as
attainment
or
unclassifiable
for
ozone
that
is
located
in
an
ozone
transport
region.

(
4)
50
tons
per
year
or
more
of
nitrogen
oxides
in
any
serious
nonattainment
area
for
ozone.

(
5)
25
tons
per
year
or
more
of
nitrogen
oxides
in
any
severe
nonattainment
area
for
ozone.

(
6)
10
tons
per
year
or
more
of
nitrogen
oxides
in
any
extreme
nonattainment
area
for
ozone;
or
(
c)
Any
physical
change
that
would
occur
at
a
stationary
source
not
qualifying
under
paragraph
II.
A.
4(
i)(
a)
or
(
b)
of
this
Ruling
as
a
major
stationary
source,
if
the
change
would
constitute
a
major
stationary
PREDECISIONAL
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474
source
by
itself.

(
ii)
A
major
stationary
source
that
is
major
for
volatile
organic
compounds
or
nitrogen
oxides
is
major
for
ozone.

*
*
*
*
*

5.
*
*
*

(
ii)
Any
net
emission
increas
that
is
considered
significant
for
volatile
organic
compounds
shall
be
considered
significant
for
ozone.

(
iv)
For
the
purpose
of
applying
the
requirements
of
paragraph
IV.
H
of
this
Ruling
to
modifications
at
major
stationary
sources
of
nitrogen
oxides
located
in
ozone
nonattainment
areas
or
in
ozone
transport
regions,
whether
or
not
subject
with
respect
to
ozone
to
subpart
2,
part
D,

title
I
of
the
Act,
any
significant
net
emissions
increase
of
nitrogen
oxides
is
considered
significant
for
ozone.

(
v)
Any
physical
change
in,
or
change
in
the
method
of
operation
of,
a
major
stationary
source
of
volatile
organic
compounds
that
results
in
any
increase
in
emissions
of
volatile
organic
compounds
from
any
discrete
operation,

emissions
unit,
or
other
pollutant
emitting
activity
at
the
source
shall
be
considered
a
significant
net
emissions
increase
and
a
major
modification
for
ozone,
if
the
major
stationary
source
is
located
in
an
extreme
ozone
PREDECISIONAL
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475
nonattainment
area
that
is
subject
to
subpart
2,
part
D,

title
I
of
the
Act.

6.
*
*
*

(
v)
*
*
*

(
c)
The
reviewing
authority
has
not
relied
on
it
in
issuing
any
permit
under
regulations
approved
pursuant
to
40
CFR
51.165;

*
*
*
*
*

10.
(
i)
*
*
*

Pollutant
And
Emissions
Rate
Carbon
monoxide:
100
tons
per
year
(
tpy)

Nitrogen
oxides:
40
tpy
Sulfur
dioxide:
40
tpy
Ozone:
40
tpy
of
volatile
organic
compounds
or
NOx
Lead:
0.6
tpy
Particulate
matter:
25
tpy
of
particulate
matter
emissions
PM­
10:
15
tpy
PM­
10
PM­
10:
40
tpy
of
a
specific
PM­
10
precursor,
except
where
the
Administrator
has
determined
that
stationary
sources
of
PM­
10
precursors
do
not
contribute
significantly
to
PM­
10
levels
that
exceed
the
PM­
10
ambient
standards
(
ii)
Notwithstanding
the
significant
emissions
rate
for
ozone
in
paragraph
II.
A.
10(
i)
of
this
Ruling,

significant
means,
in
reference
to
an
emissions
increase
or
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476
a
net
emissions
increase,
any
increase
in
actual
emissions
of
volatile
organic
compounds
that
would
result
from
any
physical
change
in,
or
change
in
the
method
of
operation
of,

a
major
stationary
source
locating
in
a
serious
or
severe
ozone
nonattainment
area
that
is
subject
to
subpart
2,
part
D,
title
I
of
the
Act,
if
such
emissions
increase
of
volatile
organic
compounds
exceeds
25
tons
per
year.

(
iii)
For
the
purposes
of
applying
the
requirements
of
paragraph
IV.
H
of
this
Ruling
to
modifications
at
major
stationary
sources
of
nitrogen
oxides
located
in
an
ozone
nonattainment
area
or
in
an
ozone
transport
region,
the
significant
emission
rates
and
other
requirements
for
volatile
organic
compounds
in
paragraphs
II.
A.
10(
i),
(
ii),

and
(
v)
of
this
Ruling
shall
apply
to
nitrogen
oxides
emissions.

(
iv)
Notwithstanding
the
significant
emissions
rate
for
carbon
monoxide
under
paragraph
II.
A.
10(
i)
of
this
Ruling,
significant
means,
in
reference
to
an
emissions
increase
or
a
net
emissions
increase,
any
increase
in
actual
emissions
of
carbon
monoxide
that
would
result
from
any
physical
change
in,
or
change
in
the
method
of
operation
of,

a
major
stationary
source
in
a
serious
nonattainment
area
for
carbon
monoxide
if
such
increase
equals
or
exceeds
50
tons
per
year,
provided
the
Administrator
has
determined
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that
stationary
sources
contribute
significantly
to
carbon
monoxide
levels
in
that
area.

(
v)
Notwithstanding
the
significant
emissions
rates
for
ozone
under
paragraphs
II.
A.
10(
i)
and
(
ii)
of
this
Ruling,
any
increase
in
actual
emissions
of
volatile
organic
compounds
from
any
emissions
unit
at
a
major
stationary
source
of
volatile
organic
compounds
located
in
an
extreme
ozone
nonattainment
area
that
is
subject
to
subpart
2,
part
D,
title
I
of
the
Act
shall
be
considered
a
significant
net
emissions
increase.

*
*
*
*
*

IV.
*
*
*

C.
*
*
*

3.
Emission
Reduction
Credits
from
Shutdowns
and
Curtailments.

(
i)
Emissions
reductions
achieved
by
shutting
down
an
existing
source
or
curtailing
production
or
operating
hours
may
be
generally
credited
for
offsets
if
they
meet
the
requirements
in
paragraphs
IV.
C.
3.
i.
1.
through
2
of
this
section.

(
1)
Such
reductions
are
surplus,
permanent,

quantifiable,
and
federally
enforceable.

(
2)
The
shutdown
or
curtailment
occurred
after
the
last
day
of
the
base
year
for
the
SIP
planning
process.
For
PREDECISIONAL
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purposes
of
this
paragraph,
a
reviewing
authority
may
choose
to
consider
a
prior
shutdown
or
curtailment
to
have
occurred
after
the
last
day
of
the
base
year
if
the
projected
emissions
inventory
used
to
develop
the
attainment
demonstration
explicitly
includes
the
emissions
from
such
previously
shutdown
or
curtailed
emission
units.
However,

in
no
event
may
credit
be
given
for
shutdowns
that
occurred
before
August
7,
1977.

(
ii)
Emissions
reductions
achieved
by
shutting
down
an
existing
source
or
curtailing
production
or
operating
hours
and
that
do
not
meet
the
requirements
in
paragraphs
IV.
C.
3.
i.
1.
through
2
of
this
section
may
be
generally
credited
only
if:

(
1)
The
shutdown
or
curtailment
occurred
on
or
after
the
date
the
new
source
permit
application
is
filed;
or
(
2)
The
applicant
can
establish
that
the
proposed
new
source
is
a
replacement
for
the
shutdown
or
curtailed
source,
and
the
emission
reductions
achieved
by
the
shutdown
or
curtailment
met
the
requirements
of
paragraphs
IV.
C.
3.
i.
1.
through
2
of
this
section.

D.
Location
of
offsetting
emissions.
The
owner
or
operator
of
a
new
or
modified
major
stationary
source
may
comply
with
any
offset
requirement
in
effect
under
this
Ruling
for
increased
emissions
of
any
air
pollutant
only
by
PREDECISIONAL
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479
obtaining
emission
reductions
of
such
air
pollutant
from
the
same
source
or
other
sources
in
the
same
nonattainment
area,

except
that
the
reviewing
authority
may
allow
the
owner
or
operator
of
a
source
to
obtain
such
emission
reductions
in
another
nonattainment
area
if
the
conditions
in
IV.
D.
1
and
2
are
met.

1.
The
other
area
has
an
equal
or
higher
nonattainment
classification
than
the
area
in
which
the
source
is
located.

2.
Emissions
from
such
other
area
contribute
to
a
violation
of
the
national
ambient
air
quality
standard
in
the
nonattainment
area
in
which
the
source
is
located.

E.
Reasonable
further
progress.
Permits
to
construct
and
operate
may
be
issued
if
the
reviewing
authority
determines
that,
by
the
time
the
source
is
to
commence
operation,
sufficient
offsetting
emissions
reductions
have
been
obtained,
such
that
total
allowable
emissions
from
existing
sources
in
the
region,
from
new
or
modified
sources
which
are
not
major
emitting
facilities,
and
from
the
proposed
source
will
be
sufficiently
less
than
total
emissions
from
existing
sources
prior
to
the
application
for
such
permit
to
construct
or
modify
so
as
to
represent
(
when
considered
together
with
the
plan
provisions
required
under
CAA
section
172)
reasonable
further
progress
(
as
defined
in
CAA
section
171).
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*
*
*
*
*

G.
Offset
Ratios.

1.
In
meeting
the
emissions
offset
requirements
of
paragraph
IV.
A,
Condition
3
of
this
Ruling
for
ozone
nonattainment
areas
that
are
subject
to
subpart
2,
part
D,

title
I
of
the
Act,
the
ratio
of
total
actual
emissions
reductions
of
VOC
to
the
emissions
increase
of
VOC
shall
be
as
follows:

(
i)
In
any
marginal
nonattainment
area
for
ozone
 
at
least
1.1:
1;

(
ii)
In
any
moderate
nonattainment
area
for
ozone
 
at
least
1.15:
1;

(
iii)
In
any
serious
nonattainment
area
for
ozone
 
at
least
1.2:
1;

(
iv)
In
any
severe
nonattainment
area
for
ozone
 
at
least
1.3:
1
(
except
that
the
ratio
may
be
at
least
1.2:
1
if
the
State
also
requires
all
existing
major
sources
in
such
nonattainment
area
to
use
BACT
for
the
control
of
VOC);
and
(
v)
In
any
extreme
nonattainment
area
for
ozone
 
at
least
1.5:
1
(
except
that
the
ratio
may
be
at
least
1.2:
1
if
the
State
also
requires
all
existing
major
sources
in
such
nonattainment
area
to
use
BACT
for
the
control
of
VOC);
and
2.
Notwithstanding
the
requirements
of
paragraph
IV.
G.
1
of
this
Ruling
for
meeting
the
requirements
of
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481
paragraph
IV.
A,
Condition
3
of
this
Ruling,
the
ratio
of
total
actual
emissions
reductions
of
VOC
to
the
emissions
increase
of
VOC
shall
be
at
least
1.15:
1
for
all
areas
within
an
ozone
transport
region
that
is
subject
to
subpart
2,
part
D,
title
I
of
the
Act,
except
for
serious,
severe,

and
extreme
ozone
nonattainment
areas
that
are
subject
to
subpart
2,
part
D,
title
I
of
the
Act.

(
3)
In
meeting
the
emissions
offset
requirements
of
paragraph
IV.
A,
Condition
3
of
this
Ruling
for
ozone
nonattainment
areas
that
are
subject
to
subpart
1,
part
D,

title
I
of
the
Act
(
but
are
not
subject
to
subpart
2,
part
D,
title
I
of
the
Act,
including
8­
hour
ozone
nonattainment
areas
subject
to
40
CFR
51.902(
b)),
the
ratio
of
total
actual
emissions
reductions
of
VOC
to
the
emissions
increase
of
VOC
shall
be
at
least
1:
1.

H.
Additional
provisions
for
emissions
of
nitrogen
oxides
in
ozone
transport
regions
and
nonattainment
areas.

The
requirements
of
this
Ruling
applicable
to
major
stationary
sources
and
major
modifications
of
volatile
organic
compounds
shall
apply
to
nitrogen
oxides
emissions
from
major
stationary
sources
and
major
modifications
of
nitrogen
oxides
in
an
ozone
transport
region
or
in
any
ozone
nonattainment
area,
except
in
ozone
nonattainment
areas
where
the
Administrator
has
granted
a
NOx
waiver
applying
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482
the
standards
set
forth
under
182(
f)
and
the
waiver
continues
to
apply.

*
*
*
*
*

VI.
POLICY
WHERE
ATTAINMENT
DATES
HAVE
NOT
PASSED
*
*
*
In
such
cases,
a
new
source
locating
in
an
area
designated
in
40
CFR
81.300
et
seq.
as
nonattainment
(
or,

where
Section
III
of
this
Ruling
is
applicable,
a
new
source
that
would
cause
or
contribute
to
an
NAAQS
violation)
may
be
exempt
from
the
Conditions
of
Section
IV.
A
if
the
conditions
in
paragraphs
VI.
A
through
C
are
met.

A.
The
new
source
meets
the
applicable
SIP
emission
limitations.

B.
The
new
source
will
not
interfere
with
the
attainment
date
specified
in
the
SIP
under
section
110
of
the
Act.

C.
The
Administrator
has
determined
that
conditions
A
and
B
of
this
section
are
satisfied
and
such
determination
is
published
in
the
Federal
Register.

5.
Subpart
X
of
Part
51
is
amended
by
revising
sections
51.906,
51.908,
51.910,
51.912,
51.914,
51.915,
and
51.916
to
read
as
follows:

Subpart
X
 
Provisions
for
Implementation
of
8­
hour
Ozone
National
Ambient
Air
Quality
Standard.
PREDECISIONAL
DRAFT
 
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483
*
*
*
*
*

Sec.
51.906
Redesignation
to
nonattainment
following
initial
designations
for
the
8­
hour
NAAQS.

For
any
area
that
is
initially
designated
attainment
or
unclassifiable
for
the
8­
hour
NAAQS
and
that
is
subsequently
redesignated
to
nonattainment
for
the
8­
hour
ozone
NAAQS,

any
absolute,
fixed
date
applicable
in
connection
with
the
requirements
of
this
part
is
extended
by
a
period
of
time
equal
to
the
length
of
time
between
the
effective
date
of
the
initial
designation
for
the
8­
hour
NAAQS
and
the
effective
date
of
redesignation,
except
as
otherwise
provided
in
this
subpart.

Section
51.908
is
revised
to
read
as
follows:

51.908
What
modeling
and
attainment
demonstration
requirements
apply
for
purposes
of
the
8­
hour
ozone
NAAQS?

(
a)
What
is
the
attainment
demonstration
requirement
for
an
area
classified
as
moderate
or
higher
under
subpart
2
pursuant
to
section
51.903?
An
area
classified
as
moderate
or
higher
under
section
51.903
shall
be
subject
to
the
attainment
demonstration
requirement
applicable
for
that
classification
under
section
182
of
the
Act,
except
such
demonstration
is
due
no
later
than
3
years
after
designation
of
the
area
for
the
8­
hour
NAAQS.

(
b)
What
is
the
attainment
demonstration
requirement
for
an
PREDECISIONAL
DRAFT
 
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484
area
subject
only
to
subpart
1
in
accordance
with
section
51.902(
b)?

(
1)
An
area
subject
to
section
51.904
for
which
EPA
has
not
approved
an
attainment
date
of
3
years
or
less
after
designation
under
paragraph
(
f)
of
this
section
must
submit
an
attainment
demonstration
no
later
than
3
years
after
designation
of
the
area
for
the
8­
hour
NAAQS.

(
2)
For
purposes
of
the
Las
Vegas,
NV,
8­
hour
ozone
nonattainment
area
designated
on
September
17,
2004
(
69
FR
55956),
the
area
shall
be
treated
as
having
an
effective
date
of
designation
of
June
15,
2004,
for
purposes
of
calculating
SIP
submission
deadlines
and
attainment
dates
under
these
regulations.

(
c)
What
criteria
must
the
attainment
demonstration
meet?

An
attainment
demonstration
due
pursuant
to
paragraph
(
a)
or
(
b)
of
this
section
must
meet
the
requirements
of
section
51.112.

(
d)
What
is
the
required
time
frame
for
obtaining
emission
reductions
to
ensure
attainment
by
the
attainment
date?
For
each
nonattainment
area,
the
State
must
provide
for
implementation
of
all
control
measures
needed
for
attainment
no
later
than
the
beginning
of
the
attainment
year
ozone
season.

(
e)
Is
a
mid­
course
review
(
MCR)
required?
For
each
PREDECISIONAL
DRAFT
 
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NOT
QUOTE,
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OR
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2/
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485
nonattainment
area
with
an
attainment
date
greater
than
6
years
after
the
area's
designation
for
the
8­
hour
standard,

a
State
must
complete
and
submit
to
EPA
a
mid­
course
review
midway
between
the
due
date
for
its
attainment
demonstration
SIP
and
the
area's
attainment
date.

(
f)
What
is
the
attainment
demonstration
requirement
for
areas
subject
only
to
subpart
1
in
accordance
with
section
51.902(
b)
and
requesting
an
attainment
date
no
later
than
3
years
following
designation
for
the
8­
hour
NAAQS?

(
1)
A
State
with
an
area
subject
only
to
subpart
1
in
accordance
with
section
51.902(
b)
of
this
part
may
request
an
attainment
date
of
no
later
than
3
years
following
designation
for
the
8­
hour
NAAQS.

(
2)
In
support
of
a
request
under
subparagraph
(
f)(
1)

of
this
section,
within
18
months
after
the
area's
designation
for
the
8­
hour
NAAQS,
the
State
shall
submit
a
SIP
that
demonstrates
the
area
will
attain
the
8­
hour
NAAQS
within
3
years
following
designation.
The
demonstration
must
include
modeling
results
and
analyses
that
the
State
is
relying
on
to
support
its
claim
and
must
meet
the
provisions
of
section
51.112
of
this
part.

51.909
[
Reserved]

51.910
What
requirements
for
reasonable
further
progress
(
RFP)
under
sections
172(
c)(
1)
and
182
apply
for
areas
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
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OR
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2/
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05
486
designated
nonattainment
for
the
8­
hour
ozone
NAAQS?

(
a)
What
are
the
general
requirements
for
RFP
for
an
area
classified
under
subpart
2
pursuant
to
section
51.903?
For
an
area
classified
under
subpart
2
pursuant
to
section
51.903,
the
RFP
requirements
specified
in
section
182
of
the
Act
for
that
area's
classification
shall
apply.

(
1)
What
is
the
content
and
timing
of
the
RFP
plan
required
under
section
182(
b)(
1)
of
the
Act
for
areas
classified
as
moderate
or
higher
pursuant
to
section
51.903
(
subpart
2
coverage)?

(
i)(
A)
Except
as
provided
in
paragraph
(
a)(
1)(
ii)

of
this
section,
for
each
area
classified
as
moderate
or
higher,
the
State
must
submit
a
SIP
revision
consistent
with
section
182(
b)(
1)
of
the
Act
no
later
than
3
years
after
the
effective
date
of
the
nonattainment
designation
for
the
area.
The
6­
year
period
referenced
in
section
182(
b)(
1)
of
the
Act
shall
begin
January
1
of
the
year
following
the
year
used
for
the
baseline
emissions
inventory.
For
areas
designated
nonattainment
for
the
8­
hour
NAAQS
with
an
effective
date
of
June
15,
2004,
the
six­
year
period
shall
run
from
January
1,
2003
to
December
31,
2008.

(
B)
For
each
area
classified
as
serious
or
higher,
the
State
must
submit
a
SIP
revision
consistent
with
section
182(
c)(
2)(
B)
of
the
Act
no
later
than
3
years
after
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
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OR
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2/
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05
487
designation
for
the
8­
hour
NAAQS.
For
areas
designated
nonattainment
for
the
8­
hour
NAAQS
with
an
effective
date
of
June
15,
2004,
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.

(
ii)
An
area
classified
as
moderate
or
higher
that
has
the
same
boundaries
as
an
area,
or
is
entirely
composed
of
several
areas
or
portions
of
areas,
for
which
EPA
fully
approved
a
15
percent
plan
for
the
1­
hour
NAAQS
is
considered
to
have
met
section
182(
b)(
1)
of
the
Act
for
the
8­
hour
NAAQS
and
must
meet
the
requirements
of
paragraphs
(
a)(
1)(
ii)(
A)
through
(
C)
of
this
section,
as
applicable:

(
A)
If
classified
as
moderate
with
an
attainment
date
of
5
years
or
less
after
designation,
the
area
is
subject
to
RFP
under
section
172(
c)(
2)
of
the
Act
and
shall
submit
no
later
than
3
years
after
designation
for
the
8­
hour
NAAQS
a
SIP
revision
that
meets
the
requirements
of
paragraph
(
b)(
2)(
i)
of
this
section.

(
B)
If
classified
as
moderate
with
an
attainment
date
more
than
5
years
after
designation,
the
area
is
subject
to
RFP
under
section
172(
c)(
2)
of
the
Act
and
shall
submit
no
later
than
3
years
after
designation
for
the
8­
hour
NAAQS
a
SIP
that
meets
the
requirements
of
PREDECISIONAL
DRAFT
 
DO
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QUOTE,
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OR
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2/
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488
paragraph
(
b)(
2)(
ii)
of
this
section.

(
C)
If
classified
as
serious
or
higher,
the
area
is
subject
to
RFP
under
section
182(
c)(
2)(
B)
of
the
Act
and
shall
submit
no
later
than
3
years
after
designation
for
the
8­
hour
NAAQS
an
RFP
SIP
providing
for
an
average
of
3
percent
per
year
of
VOC
and/
or
NOx
emissions
reduction
for
 
(
1)
the
6­
year
period
beginning
January
1
of
the
year
following
the
year
used
for
the
baseline
emissions
inventory.
For
areas
designated
nonattainment
for
the
8­
hour
NAAQS
with
an
effective
date
of
June
15,
2004,

the
6­
year
period
shall
run
from
January
1,
2003
to
December
31,
2008;
and
(
2)
all
remaining
3
year
periods
after
December
31,
2008
out
to
the
area's
attainment
date.

(
iii)
An
area
classified
as
moderate
or
higher
that
contains
one
or
more
areas,
or
portions
of
areas,
for
which
EPA
fully
approved
a
15
percent
plan
for
the
1­
hour
NAAQS
as
well
as
areas
for
which
EPA
has
not
fully
approved
a
15
percent
plan
for
the
1­
hour
NAAQS
may
meet
one
of
the
following
requirements:

(
A)
The
State
shall
develop
a
new
baseline
and
new
15
percent
VOC
RFP
emission
reduction
target
for
the
entire
8­
hour
nonattainment
area
and
meet
the
requirements
of
paragraph
(
a)(
1)(
i)
of
this
section.
PREDECISIONAL
DRAFT
 
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489
(
B)
The
State
shall
treat
the
area
as
two
parts,
each
with
a
separate
RFP
target
as
follows:

(
1)
For
the
portion
of
the
area
without
an
approved
15
percent
VOC
RFP
plan
for
the
1­
hour
standard,

the
State
shall
establish
a
separate
15
percent
VOC­
only
target
under
paragraph
(
a)(
1)(
i)(
A)
of
this
section.

Emissions
reductions
to
meet
this
requirement
may
come
from
anywhere
within
the
8­
hour
nonattainment
area.

(
2)
For
the
portion
of
the
area
with
an
approved
15
percent
VOC
plan
for
the
1­
hour
NAAQS,
the
State
shall
submit
a
SIP
as
required
under
paragraph
(
a)(
1)(
ii)(
A)

or
(
B)
of
this
section.

(
2)
What
restrictions
apply
on
the
creditability
of
emission
control
measures
for
the
RFP
plans
required
under
this
section?
Except
as
specifically
provided
in
section
182(
b)(
1)(
C)
and
(
D)
and
section
182(
c)(
2)(
B)
of
the
Act,

all
emissions
reductions
that
occur
after
the
baseline
emissions
inventory
year
are
creditable
for
purposes
of
the
RFP
requirements
in
this
section,
provided
the
reductions
meet
the
requirements
for
creditability,
including
the
need
to
be
enforceable,
permanent,
quantifiable
and
surplus,
as
described
for
purposes
of
State
economic
incentive
programs
in
the
requirements
of
section
51.493
of
this
part.

(
b)
What
are
the
general
requirements
for
RFP
for
an
area
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
490
subject
only
to
subpart
1
pursuant
to
section
51.902(
b)?
An
area
subject
only
to
subpart
1
pursuant
to
section
51.902(
b)

shall
meet
the
RFP
requirements
of
section
172(
c)(
2)
of
the
Act
as
follows:

(
1)
A
subpart
1
area
with
an
approved
SIP
pursuant
to
section
51.908(
f)
is
considered
to
have
met
the
RFP
obligation
under
section
172(
c)(
2)
of
the
Act
with
the
measures
that
will
bring
the
area
into
attainment
by
the
attainment
date.

(
2)
For
each
area
subject
to
section
51.902(
b)
without
an
approved
SIP
pursuant
to
section
51.908(
f),
the
State
shall
submit
no
later
than
3
years
following
designation
for
the
8­
hour
NAAQS
a
SIP
providing
for
RFP
consistent
with
the
following,
as
applicable:

(
i)
For
each
area
with
a
requested
attainment
date
of
5
years
or
less
after
designation
for
the
8­
hour
NAAQS,

the
SIP
revision
shall
show
that
all
emissions
reductions
needed
for
attainment
would
be
implemented
by
the
beginning
of
the
attainment
year
ozone
season.

(
ii)
For
each
area
with
a
requested
attainment
date
more
than
5
years
after
the
designation
for
the
8­
hour
NAAQS,
the
RFP
plan
 
(
A)
Shall
demonstrate
increments
of
progress
from
the
baseline
emissions
inventory
year
out
to
the
PREDECISIONAL
DRAFT
 
DO
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QUOTE,
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OR
DISTRIBUTE
2/
6/
05
491
attainment
date.

(
B)
Shall
provide
for
a
15
percent
emission
reduction
from
the
baseline
year
within
6
years
after
the
baseline
year.

(
C)
May
use
either
NOx
or
VOC
emission
reductions
(
or
both)
to
achieve
the
15
percent
emission
reduction
requirement.
Use
of
NOx
emission
reductions
must
meet
the
criteria
in
section
182(
c)(
2)(
C)
of
the
Act.

(
D)
For
each
subsequent
3­
year
period
out
to
the
attainment
date,
shall
provide
for
an
additional
increment
of
progress
no
less
than
the
amount
of
emission
reductions
that
would
be
proportional
to
the
time
between
the
end
of
the
first
increment
and
the
attainment
date.

(
c)
What
method
should
a
State
use
to
calculate
RFP
targets?

In
calculating
RFP
targets
pursuant
to
this
section,
the
State
shall
use
the
methods
consistent
with
requirements
of
sections
182(
b)(
1)(
C)
and
(
D)
and
182(
c)(
2)(
B)
to
properly
account
for
the
non­
creditable
reductions
when
calculating
RFP
targets
for
the
initial
6­
year
period
and
the
subsequent
3­
year
periods.

(
d)
What
is
the
baseline
emissions
inventory
for
RFP
plans?

(
1)
A
baseline
emissions
inventory
is
required
for
the
RFP
plan
required
under
this
section.
PREDECISIONAL
DRAFT
 
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OR
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492
(
2)
The
baseline
emissions
inventory
shall
be
determined
at
the
time
of
designation
for
the
8­
hour
NAAQS
and
shall
be
the
emissions
inventory
for
the
most
recent
calendar
year
for
which
a
complete
inventory
is
required
to
be
submitted
to
EPA
under
the
provisions
of
subpart
A
of
this
part.

(
3)
For
areas
designated
nonattainment
for
the
8­
hour
NAAQS
with
an
effective
date
of
June
15,
2004,
the
baseline
emissions
inventory
shall
be
for
calendar
year
2002.

51.911
[
Reserved]

51.912
What
requirements
apply
for
reasonably
available
control
technology
(
RACT)
and
reasonably
available
control
measures
(
RACM)
under
the
8­
hour
NAAQS?

(
a)
What
is
the
RACT
requirement
for
areas
subject
to
subpart
2
in
accordance
with
section
51.903?

(
1)
For
each
area
subject
to
subpart
2
in
accordance
with
section
51.903
of
this
part
and
classified
moderate
or
higher,
the
State
shall
submit
a
SIP
revision
that
meets
the
NOx
and
VOC
RACT
requirements
in
sections
182(
b)(
2)
and
182(
f)
of
the
Act.

(
2)
The
State
shall
submit
the
RACT
SIP
for
each
area
no
later
than
2
years
after
designation
for
the
8­
hour
NAAQS.

(
3)
The
State
shall
provide
for
implementation
of
RACT
as
expeditiously
as
practicable
but
no
later
than
the
first
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
2/
6/
05
493
ozone
season
or
portion
thereof
which
occurs
30
months
after
the
RACT
SIP
is
due.

(
b)
How
do
the
RACT
provisions
apply
to
areas
required
to
submit
a
RACT?

(
1)
VOC
and
NOx
are
to
be
considered
separately
for
purposes
of
determining
whether
a
source
is
a
major
stationary
source
as
defined
in
section
302
of
the
Act.

(
2)
States
may
use
current
EPA
guidance
to
assist
in
making
RACT
determinations
and
certifications.
As
new
or
updated
EPA
RACT
guidance
becomes
available,
States
shall
consider
the
new
information
in
their
RACT
determinations
or
certifications.

(
c)
What
is
the
RACT
requirement
for
areas
subject
only
to
subpart
1
pursuant
to
section
51.902(
b)?
Areas
subject
only
to
subpart
1
pursuant
to
section
51.902(
b)
are
subject
to
the
RACT
requirement
specified
in
section
172(
c)(
1)
of
the
Act.

(
1)
For
an
area
that
requests
an
attainment
date
5
years
or
less
after
designation
for
the
8­
hour
NAAQS,
the
State
shall
meet
the
RACT
requirement
by
submitting
an
attainment
demonstration
SIP
demonstrating
that
the
area
has
adopted
all
control
measures
necessary
to
demonstrate
attainment
as
expeditiously
as
practicable.

(
2)
For
an
area
that
requests
an
attainment
date
more
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than
5
years
after
designation
for
the
8­
hour
NAAQS,
the
State
shall
submit
a
SIP
consistent
with
the
requirements
of
section
51.912(
a)
and
(
b)
except
the
State
shall
submit
the
RACT
SIP
for
each
area
with
its
attainment
date
extension
request.

(
d)
What
is
the
Reasonably
Available
Control
Measures
(
RACM)
requirement
for
areas
designated
nonattainment
for
the
8­
hour
NAAQS?
For
each
nonattainment
area
required
to
submit
an
attainment
demonstration
under
section
51.908,
the
State
shall
submit
with
the
attainment
demonstration
a
SIP
revision
demonstrating
that
it
has
adopted
all
RACM
necessary
to
demonstrate
attainment
as
expeditiously
as
practicable
and
to
meet
any
RFP
requirements.

Sec.
51.913
How
do
the
section
182(
f)
NOx
exemption
provisions
apply
for
the
8­
hour
NAAQS?

(
a)
A
person
may
petition
the
Administrator
for
an
exemption
from
NOx
NSR
and/
or
RACT
requirement
for
any
area
designated
nonattainment
for
the
8­
hour
ozone
NAAQS
and
for
any
area
in
a
section
184
ozone
transport
region.

(
b)
The
petition
must
contain
adequate
documentation
that
the
criteria
in
section
182(
f)
are
met.

(
c)
A
section
182(
f)
NOx
exemption
granted
under
the
1­
hour
ozone
standard
does
not
relieve
the
area
from
any
requirements
under
the
8­
hour
ozone
standard.
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51.914
What
new
source
review
requirements
apply
for
8­
hour
ozone
nonattainment
area.

The
requirements
for
a
SIP's
new
source
review
provisions
for
the
8­
hour
ozone
standard
are
located
in
section
51.165
of
this
part.

Sec.
51.915
What
emissions
inventory
requirements
apply
under
the
8­
hour
NAAQS?

For
each
nonattainment
area
subject
to
subpart
2
in
accordance
with
section
51.903,
the
emissions
inventory
requirements
in
sections
182(
a)(
1)
and
182(
a)(
3)
of
the
Act
shall
apply,
and
for
each
nonattainment
area
subject
only
to
subpart
1
in
accordance
with
section
51.902(
b),
the
emissions
inventory
requirement
in
section
172(
c)(
3)
of
the
Act
shall
apply.
For
purposes
of
meeting
the
emissions
inventory
requirements
of
the
Act
for
these
areas,
the
ozone­
relevant
data
requirements
under
40
CFR
51
Subpart
A
apply.

51.916
What
are
the
requirements
for
an
Ozone
Transport
Region
under
the
8­
hour
NAAQS?

(
a)
In
General.
Sections
176A
and
184
of
the
Act
apply
for
purposes
of
the
8­
hour
NAAQS.

(
b)
RACT
Requirements
for
Certain
Portions
of
an
Ozone
Transport
Region.
The
State
must
submit
a
SIP
revision
that
meets
the
RACT
requirements
of
section
184
of
the
Act
for
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each
area
designated
as
attainment
or
unclassifiable,
or
that
may
be
classified
as
marginal,
or
that
is
covered
under
section
51.904
of
this
subpart,
but
which
is
located
in
an
ozone
transport
region.
A
major
stationary
source
for
purposes
of
this
paragraph
is
defined
as
a
source
which
directly
emits,
or
has
the
potential
to
emit,
100
tons
per
year
or
more
of
NOx
or
50
tons
per
year
or
more
of
VOC.

The
State
shall
submit
the
RACT
revision
no
later
than
2
years
after
the
effective
date
of
the
nonattainment
designation
of
any
area
in
the
OTR
for
the
8­
hour
NAAQS
and
shall
provide
for
implementation
of
RACT
as
expeditiously
as
practicable
but
no
later
than
30
months
after
the
RACT
SIP
is
due.

PART
52
­
[
Amended]

1.
The
authority
citation
for
part
52
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
7401,
et
seq.

Subpart
A
­
[
Amended]

2.
Section
52.21
is
amended
by:

a.
Revising
paragraph
(
b)(
1)(
ii).

b.
Revising
paragraph
(
b)(
2)(
ii).

c.
Revising
paragraph
(
b)(
23)(
i).

d.
Revising
paragraph
(
b)(
50).

e.
By
revising
the
second
sentence
of
footnote
1
to
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paragraph
(
i)(
5)(
i)(
e)
to
state:
However,
any
net
emissions
increase
of
100
tons
per
year
or
more
of
volatile
organic
compounds
or
nitrogen
oxides
subject
to
PSD
would
be
required
to
perform
an
ambient
impact
analysis,
including
the
gathering
of
ambient
air
quality
data.

The
revisions
read
as
follows:

(
b)
*
*
*

(
1)
*
*
*

(
ii)
A
major
source
that
is
major
for
volatile
organic
compounds
or
NOx
shall
be
considered
major
for
ozone.

*
*
*
*
*

(
2)
*
*
*

(
ii)
Any
significant
emissions
increase
(
as
defined
at
paragraph
(
b)(
40)
of
this
section)
from
any
emissions
units
or
net
emissions
increase
(
as
defined
in
pargraph
(
b)(
3)
of
this
section)
at
a
major
stationary
source
that
is
significant
for
volatile
organic
compounds
or
NOx
shall
be
considered
significant
for
ozone.

(
23)

(
i)
*
*
*

Pollutant
and
Emissions
Rate
*
*
*

Ozone:
40
tpy
of
volatile
organic
compounds
or
NOx
*
*
*
*
*
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(
50)
*
*
*

(
i)
Any
pollutant
for
which
a
national
ambient
air
quality
standard
has
been
promulgated
and
any
constituents
or
precursors
for
such
pollutants
identified
by
the
Administrator
(
e.
g.,
volatile
organic
compounds
and
NOx
are
precursors
for
ozone);

3.
Section
52.24
is
revised
to
read
as
follows:

§
52.24
Statutory
restriction
on
new
sources.

(
a)
Any
area
designated
nonattainment
pursuant
to
section
107(
d)
of
the
Act
to
which,
immediately
prior
to
the
enactment
of
the
Amendments
to
the
Act
of
1990
(
November
15,

1990),
a
prohibition
of
construction
or
modification
of
major
stationary
sources
was
applied,
shall
retain
that
prohibition
if
such
prohibition
was
applied
by
virtue
of
a
finding
of
the
Administrator
that
the
State
containing
such
an
area:

(
1)
Failed
to
submit
an
implementation
plan
meeting
the
requirements
of
an
approvable
new
source
review
permitting
program;
or
(
2)
Failed
to
submit
an
implementation
plan
that
provided
for
timely
attainment
of
the
national
ambient
air
quality
standard
for
sulfur
dioxide
by
December
31,
1982.

This
prohibition
shall
apply
until
the
Administrator
approves
a
plan
for
such
area
as
meeting
the
applicable
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requirements
of
part
D
of
title
I
of
the
Act
as
amended
(
NSR
permitting
requirements)
or
subpart
5
of
part
D
of
title
I
of
the
Act
as
amended
(
relating
to
attainment
of
the
national
ambient
air
quality
standards
for
sulfur
dioxide),

as
applicable.

(
b)
Permits
to
construct
and
operate
as
required
by
permit
programs
under
section
172(
c)(
5)
of
the
Act
may
not
be
issued
for
new
or
modified
major
stationary
sources
proposing
to
locate
in
nonattainment
areas
or
areas
in
a
transport
region
where
the
Administrator
has
determined
that
the
applicable
implementation
plan
is
not
being
adequately
implemented
for
the
nonattainment
area
or
transport
region
in
which
the
proposed
source
is
to
be
constructed
or
modified
in
accordance
with
the
requirements
of
part
D
of
title
I
of
the
Act.

(
c)
Whenever,
on
the
basis
of
any
information,
the
Administrator
finds
that
a
State
is
not
in
compliance
with
any
requirement
or
prohibition
of
the
Act
relating
to
the
construction
of
new
sources
or
the
modification
of
existing
sources,
the
Administrator
may
issue
an
order
under
section
113(
a)(
5)
of
the
Act
prohibiting
the
construction
or
modification
of
any
major
stationary
source
in
any
area
to
which
such
requirement
applies.

(
d)
The
restrictions
in
paragraphs
(
a)
and
(
b)
of
this
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section
apply
only
to
major
stationary
sources
of
emissions
that
cause
or
contribute
to
concentrations
of
the
pollutant
(
or
precursors,
as
applicable)
for
which
the
transport
region
or
nonattainment
area
was
designated
such,
and
for
which
the
applicable
implementation
plan
is
not
being
carried
out
in
accordance
with,
or
does
not
meet,
the
requirements
of
part
D
of
title
I
of
the
Act.

(
e)
For
any
transport
region
or
any
area
designated
as
nonattainment
for
any
national
ambient
air
quality
standard,

the
restrictions
in
paragraphs
(
a)
and
(
b)
of
this
section
shall
apply
to
any
major
stationary
source
or
major
modification
that
would
be
major
for
the
pollutant
(
or
precursors,
where
applicable)
for
which
the
area
is
designated
nonattainment
or
a
transport
region,
if
the
stationary
source
or
major
modification
would
be
constructed
anywhere
in
the
designated
nonattainment
area
or
transport
region.

(
f)
The
provisions
in
§
51.165
of
this
chapter
shall
apply
in
interpreting
the
terms
under
this
section.

(
g)
At
such
time
that
a
particular
source
or
modification
becomes
a
major
stationary
source
or
major
modification
solely
by
virtue
of
a
relaxation
in
any
enforceable
limitation
which
was
established
after
August
7,

1980,
on
the
capacity
of
the
source
or
modification
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otherwise
to
emit
a
pollutant,
such
as
a
restriction
on
hours
of
operation,
then:

(
1)
If
the
construction
moratorium
imposed
pursuant
to
this
section
is
still
in
effect
for
the
nonattainment
area
or
transport
region
in
which
the
source
or
modification
is
located,
then
the
permit
may
not
be
so
revised;
or
(
2)
If
the
construction
moratorium
is
no
longer
in
effect
in
that
area,
then
the
requirements
of
§
51.165
of
this
chapter
shall
apply
to
the
source
or
modification
as
though
construction
had
not
yet
commenced
on
the
source
or
modification.

(
h)
This
section
does
not
apply
to
major
stationary
sources
or
major
modifications
locating
in
a
clearly
defined
part
of
a
nonattainment
area
or
transport
region
(
such
as
a
political
subdivision
of
a
State),
where
the
EPA
finds
that
a
plan
which
meets
the
requirements
of
part
D
of
title
I
of
the
Act
is
in
effect
and
is
being
implemented
in
that
part.

(
i)
[
Reserved]

(
j)
[
Reserved]

(
k)
For
an
area
designated
as
nonattainment
after
July
1,
1979,
the
Emission
Offset
Interpretative
Ruling,
40
CFR
part
51,
Appendix
S
shall
govern
permits
to
construct
and
operate
applied
for
during
the
period
between
the
date
of
designation
as
nonattainment
and
the
date
the
part
D
plan
is
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