PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
6560­
50­
P
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Parts
51,
52,
and
80
[
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
and
Prevention
of
Significant
Deterioration
as
they
Apply
in
Carbon
Monoxide,
Particulate
Matter
and
Ozone
NAAQS;
Final
Rule
for
Reformulated
Gasoline
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Final
Rules.

SUMMARY:
In
this
document,
we
are
taking
final
action
on
most
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
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
2
how
these
statutory
control
and
planning
obligations
apply
and
when
State
implementation
plan
(
SIP)
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.

In
this
rule,
we
are
also
finalizing
several
revisions
to
the
regulations
governing
the
nonattainment
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
(
PM),
and
carbon
monoxide
(
CO)
NAAQS.

Second,
we
are
revising
the
criteria
for
crediting
emissions
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
SIP.

Fourth,
we
are
changing
the
regulations
that
impose
a
PREDECISIONAL
DRAFT
 
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QUOTE,
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OR
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draft
11/
03/
05
3
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
CAA.
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
on
June
2,
2003
to
Implement
the
8­
hour
Ozone
National
Ambient
Air
Quality
Standard
(
NAAQS),
as
well
as
the
proposed
rule
published
on
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.

Finally,
this
rule
addresses
what
effect
the
transition
to
the
8­
hour
standard
will
have
on
certain
aspects
of
the
Reformulated
Gasoline
(
RFG)
program.
The
nine
original
mandatory
RFG
areas,
as
well
as
most
other
areas
that
have
PREDECISIONAL
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draft
11/
03/
05
4
become
mandatory
RFG
areas
by
being
reclassified
as
severe
areas
under
section
181(
b)
of
the
CAA,
will
continue
to
be
required
to
use
RFG
at
least
until
they
are
redesignated
to
attainment
for
the
8­
hour
NAAQS.
The
EPA
reserves
for
future
consideration
what
effect
the
transition
to
the
8­

hour
standard
will
have
on
areas
reclassified
as
severe
areas
for
the
1­
hour
NAAQS
under
section
181(
b)
of
the
CAA
that
were
redesignated
to
attainment
for
the
1­
hour
standard
before
revocation
of
that
standard.

EFFECTIVE
DATE:
This
rule
is
effective
on
[
insert
date
60
days
from
date
of
publication].

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

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

Confidential
Business
Information
or
other
information
whose
disclosure
is
restricted
by
statute.
Certain
other
material,
such
as
copyrighted
material,
is
not
placed
on
the
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,
PREDECISIONAL
DRAFT
 
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OR
DISTRIBUTE
draft
11/
03/
05
5
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
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
03,
Research
PREDECISIONAL
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draft
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03/
05
6
Triangle
Park,
NC
27711,
phone
number
(
919)
54l­
1450,
fax
number
(
919)
54l­
5509
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
NSR
and
RFG
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?
B.
How
will
we
address
long­
range
transport
of
ground­
level
ozone
and
its
precursors
when
implementing
the
8­
hour
ozone
standard?
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?
D.
How
will
EPA
address
requirements
for
modeling
and
attainment
demonstration
SIPs
for
areas
implementing
the
8­
hour
ozone
standard?
E.
What
requirements
for
RFP
should
apply
under
the
8­
hour
ozone
standard?
F.
Are
contingency
measures
required
in
the
event
of
failure
to
meet
a
milestone
or
attain
the
8­
hour
ozone
NAAQS?
G.
What
requirements
should
apply
for
RACM
and
RACT
for
8­
hour
ozone
nonattainment
areas?
H.
How
will
the
section
182(
f)
NOx
provisions
be
handled
under
the
8­
hour
ozone
standard?
I.
Should
EPA
promulgate
a
NSR
provision
to
encourage
development
patterns
that
reduce
overall
emissions?
J.
How
will
EPA
ensure
that
the
8­
hour
ozone
standard
will
be
implemented
in
a
way
which
allows
an
optimal
mix
of
PREDECISIONAL
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03/
05
7
controls
for
ozone,
PM2.5,
and
regional
haze?
K.
What
emissions
inventory
requirements
should
apply
under
the
8­
hour
ozone
NAAQS?
L.
What
guidance
should
be
provided
that
is
specific
to
Tribes?
M.
What
are
the
requirements
for
Ozone
Transport
Regions
(
OTRs)
under
the
8­
hour
ozone
standard?
N.
Are
there
any
additional
requirements
related
to
enforcement
and
compliance?
O.
What
requirements
should
apply
to
emergency
episodes?
P.
What
ambient
monitoring
requirements
will
apply
under
the
8­
hour
ozone
NAAQS?
Q.
When
will
EPA
require
8­
hour
attainment
demonstration
SIP
submissions?
R.
How
will
the
statutory
time
periods
in
the
CAA
be
addressed
when
we
redesignate
areas
to
nonattainment
following
initial
designations
for
the
8­
hour
NAAQS?

V.
EPA's
Final
Rule
for
New
Source
Review
A.
Background
B.
Summary
of
Final
Rule
and
Legal
Basis
C.
Comments
and
Responses
D.
NSR
Implementation
Under
the
8­
hour
ozone
NAAQS
VI.
Final
Rule
for
RFG
A.
Introduction
B.
Background
C.
What
Action
is
EPA
Taking?
D.
Why
is
EPA
Taking
This
Action?
E.
Future
Proceedings
F.
Miscellaneous
Administrative
Changes
to
RFG
Regulations
G.
Comments
and
Responses
VII.
Other
Considerations
A.
How
will
EPA's
implementation
of
the
8­
hour
ozone
NAAQS
affect
funding
under
the
Congestion
Mitigation
and
Air
Quality
Improvement
(
CMAQ)
Program?
B.
What
is
the
relationship
between
implementation
of
the
8­
hour
standard
and
the
CAA's
title
V
permits
program?
C.
What
action
is
EPA
taking
on
the
Overwhelming
Transport
Classification
for
Subpart
1
Areas?
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8
VIII.
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
L.
Petitions
for
Judicial
Review
M.
Determination
Under
Section
307(
d)

APPENDIX
A
TO
PREAMBLE
 
Methods
to
Account
for
Non­
Creditable
Reductions
when
Calculating
ROP
Targets
for
the
2008
and
Later
ROP
Milestone
Years
APPENDIX
B
TO
PREAMBLE
 
GLOSSARY
OF
TERMS
AND
ACRONYMS
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)

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
PREDECISIONAL
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draft
11/
03/
05
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
9
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
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,
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05
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.

10
2004,
we
granted
reconsideration
of
three
issues
raised
in
the
Earthjustice
Petition.
On
February
3,
2005
(
70
FR
5593),
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
May
20,
2005,
the
final
rule
on
these
two
issues
was
signed
by
the
Administrator
of
EPA.

On
April
4,
2005
(
70
FR
17018),
we
published
a
proposed
rule
to
take
comment
on
the
issue
of
whether
we
should
interpret
the
Act
to
require
areas
to
retain
major
NSR
requirements
that
apply
to
certain
1­
hour
ozone
nonattainment
areas
in
implementing
the
8­
hour
standard.
We
took
final
action
on
the
NSR
issues
on
June
30,
2005
(
70
FR
39413;
July
8,
2005).

On
January
10,
2005,
we
granted
reconsideration
of
the
overwhelming
transport
classification
issue
raised
by
Earthjustice
in
their
Petition.
At
the
same
time,
we
denied
reconsideration
of
the
issues
they
raised
in
their
Petition
dealing
with
the
applicability
of
RFG
when
the
1­
hour
NAAQS
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
11
is
revoked
and
future
8­
hour
ozone
redesignations
to
nonattainment.
We
intend
to
publish
a
proposed
rule
on
the
overwhelming
transport
classification
shortly.
We
are
continuing
to
review
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
intend
to
publish
that
list
shortly.

Concerning
the
major
NSR
provisions,
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
CAA
Amendments
for
major
stationary
sources
of
volatile
organic
compounds
(
VOC),
NOx,
particulate
matter
having
a
nominal
aerodynamic
diameter
less
than
or
equal
to
10
microns
(
PM10),
and
CO.
On
June
2,
2003
(
68
FR
32802),
we
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
12
proposed
a
rule
to
implement
the
8­
hour
ozone
NAAQS.
In
the
2003
action,
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).
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
for
implementing
the
8­
hour
ozone
NAAQS
(
68
FR
32844).
On
April
30,
2004
(
69
FR
23951),
we
published
a
final
rule
that
addressed
classifications
for
the
8­
hour
NAAQS.
The
April
2004
rule
also
included
the
NSR
permitting
requirements
for
the
8­
hour
ozone
standard,
which
necessarily
follow
from
the
classification
scheme
chosen
under
the
terms
of
subpart
1
and
subpart
2.

Also,
in
our
1996
action,
and
then
again
in
our
June
2,

2003
action,
we
proposed
to
amend
our
nonattainment
NSR
provisions
to
expressly
include
NOx
as
an
ozone
precursor
in
nonattainment
major
NSR
programs
(
61
FR
38297
and
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).
Moreover,
we
proposed
to
PREDECISIONAL
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
13
require
States
to
modify
their
existing
programs
to
include
NOx
as
an
ozone
precursor
in
attainment
areas
(
68
FR
32846).

In
1996,
we
proposed
to
revise
the
regulations
limiting
offsets
from
emissions
reductions
due
to
shutting
down
an
existing
source
or
curtailing
production
or
operating
hours
below
baseline
levels
("
shutdowns/
curtailments").
We
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.

On
July
23,
1996,
we
proposed
to
revise
§
52.24
to
incorporate
changes
made
by
the
1990
CAA
Amendments
related
to
the
applicability
of
construction
bans
(
61
FR
38305).
To
clarify
our
intent,
our
proposed
8­
hour
ozone
NAAQS
implementation
rule
in
June
2003
explained
that
§
52.24(
k)

remained
in
effect
and
would
be
retained.
In
that
action,

we
also
proposed
that
we
would
revise
§
52.24(
k)
to
reflect
the
changes
in
the
1990
CAA
Amendments
(
68
FR
32846).
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
3
years
after
designation.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
14
For
the
reader's
convenience,
a
glossary
and
list
of
acronyms
appears
in
Appendix
B
of
this
preamble.

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:
RACT
and
RACM;
RFP;
modeling
and
attainment
demonstrations;
and
NSR.

It
also
addresses
what
effect
the
transition
to
the
8­
hour
standard
will
have
on
certain
aspects
of
the
RFG
program.

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

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

Summary
of
Section
IV:
Final
Rule
for
Phase
2
Elements
Other
than
NSR
and
RFG
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
15
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?

The
EPA
has
issued
two
major
rules
to
address
interstate
transport
of
ozone
pollution.
The
1998
NOx
SIP
Call
Rule
already
is
achieving
significant
reductions
in
NOx
emissions
that
contribute
to
interstate
ozone
pollution
in
the
eastern
United
States.
Nineteen
States
were
required
to
achieve
reductions
by
May
2004,
and
additional
reductions
are
required
by
May
2007.

On
May
12,
2005,
EPA
published
the
Clean
Air
Interstate
Rule
(
CAIR)
in
the
Federal
Register
(
70
FR
25162).
It
establishes
statewide
sulfur
dioxide
(
SO2)
and
NOx
emissions
budgets
for
upwind
States
that
significantly
contribute
to
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
16
nonattainment
or
interfere
with
maintenance
of
the
fine
particle
or
8­
hour
ozone
air
quality
standards
in
downwind
States.
For
ozone,
this
action
established
summertime
NOx
budgets
for
the
District
of
Columbia
and
25
States
in
the
eastern
half
of
the
country,
with
reductions
to
be
achieved
by
2009
and
2015.
The
CAIR
goes
beyond
the
SIP
call
by
requiring
reductions
from
additional
States
and
by
requiring
further
emissions
reductions
in
SIP
call
States.

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
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.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
17
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.
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
three
elements
that
each
attainment
demonstration
SIP
must
include:
(
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,
and
(
3)
contingency
measures
required
under
PREDECISIONAL
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
18
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.
Attainment
demonstration
due
date.

Areas
required
to
submit
an
attainment
demonstration
must
do
so
no
later
than
3
years
after
the
effective
date
of
designation
for
the
8­
hour
ozone
NAAQS.

2.
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
expeditiously
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.

3.
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.

4.
Multi­
pollutant
assessments
(
one­
atmosphere
modeling)
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
19
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
rate­
of­
progress
(
ROP)
and
8­
hour
RFP
issues.

2.
What
is
the
content
and
timing
of
the
plan
for
addressing
the
RFP
requirements
under
section
182(
b)(
1)
for
areas
covered
under
subpart
2?

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.
Reasonable
further
progress
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
3­
year
period
out
to
the
attainment
year.

An
8­
hour
nonattainment
area
that
is
identical,
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
20
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
emissions
reductions
that
occur
after
the
2002
baseline
emissions
inventory
year
are
creditable
in
the
combined
new
area.
The
reductions
must
be
of
VOC
only.

Option
2.
Treat
the
8­
hour
nonattainment
area
as
divided
between
the
old
1­
hour
area(
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
21
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.

The
subpart
1
RFP
provisions
addressed
by
the
rule
below
that
are
applicable
in
the
former
1­
hour
portion
of
the
area
depend
on
the
subpart
2
area's
attainment
date
as
follows:

°
In
moderate
areas
that
have
an
attainment
date
within
5
years
after
their
8­
hour
designation,
for
which
portions
of
the
area
have
previously
met
their
15
percent
requirements
under
the
1­
hour
standard,
the
former
1­
hour
portion
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
moderate
areas
that
have
an
attainment
date
beyond
5
years
after
their
8­
hour
designation,
for
which
portions
of
the
area
have
previously
met
their
15
percent
requirements
under
the
1­
hour
standard,
the
former
1­
hour
portion
will
only
be
subject
to
subpart
1
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22
RFP
requirements,
which
will
be
satisfied
with
a
plan
to
demonstrate
15
percent
emissions
reductions
(
which
may
be
either
VOC
or
NOx
or
a
combination
of
both)
from
2002
to
2008,
and
any
additional
emissions
reductions
needed
for
attainment
beyond
2008.
Thus,
these
areas
(
the
entire
8­
hour
nonattainment
area)
would
establish
a
motor
vehicle
emission
budget
for
2008
and
for
their
attainment
year.

Serious
and
above
areas
will
be
developing
both
a
15
percent
VOC
plan
for
the
new
portion
of
the
8­
hour
nonattainment
area
and
an
18
percent
VOC/
NOx
plan
for
the
portion
of
the
area
that
previously
met
its
15
percent
requirement.
Thus,

the
RFP
plan
as
a
whole
will
establish
total
allowable
emissions
for
2008
for
the
entire
8­
hour
nonattainment
area.

Therefore,
the
plans
for
these
areas,
as
well
as
moderate
areas
that
choose
option
one,
will
establish
motor
vehicle
emissions
budgets
for
both
2008
and
the
attainment
year.

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
RFP
requirement
for
areas
designated
nonattainment
in
2004
primarily
because
of
timing
concerns
related
to
attainment
dates
and
when
data
is
collected
and
PREDECISIONAL
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23
compiled.
However,
in
response
to
several
comments,
we
are
allowing
States
the
option
of
justifying
the
use
of
an
alternative
baseline
year
inventory
year
for
RFP.

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
1
additional
year
(
until
the
end
of
2008)
for
control
measures
to
be
implemented.
The
RFP
SIP
for
any
remaining
3­
year
periods
PREDECISIONAL
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draft
11/
03/
05
24
out
to
the
attainment
date
beyond
the
first
6
years
would
be
required
to
be
submitted
with
the
attainment
demonstration,

i.
e.,
within
3
years
after
designation.
We
recommend
that
States
complete
their
RFP
plans
as
soon
as
possible
after
designation
to
provide
more
time
for
sources
to
implement
the
emissions
reductions.

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

All
emissions
reductions
that
occur
after
the
baseline
emissions
inventory
year
are
creditable
for
purposes
of
the
RFP
requirements
in
this
section
except
as
specifically
provided
in
section
182(
b)(
1)(
C)
and
(
D)
and
section
182(
c)(
2)(
B)
of
the
CAA
which
exclude
four
categories
of
emissions
reductions
requirements
required
to
be
adopted
prior
to
1990.

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
CAA's
division
of
attainment
dates
for
subpart
1
areas
under
section
172(
a)(
2).
The
following
are
the
two
scenarios
and
the
RFP
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25
requirements
for
each:

Scenario
A:
Areas
with
attainment
dates
5
years
or
less
after
designation
(
i.
e.,
for
most
areas
on
or
before
June
15,
2009).
Reasonable
further
progress
for
these
areas
would
be
met
by
ensuring
emissions
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).

°
Either
NOx
or
VOC
emissions
reductions
(
or
both)
could
be
used
to
achieve
the
15
percent
emission
reduction
requirement.
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26
°
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
the
amount
of
emissions
reductions
that
would
be
roughly
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.
Where
part
of
an
8­
hour
nonattainment
area
was
a
1­
hour
nonattainment
area
with
a
ROP
obligation
extending
past
2002,
can
emissions
reductions
from
the
area's
1­
hour
ROP
plan
be
used
as
credit
toward
meeting
the
area's
8­
hour
RFP
plan?

Where
an
area
has
both
1­
hour
and
8­
hour
RFP
obligations
for
the
post­
2002
period,
the
State
may
rely
on
emissions
reductions
from
the
1­
hour
plan
in
achieving
RFP
for
the
8­
hour
standard.
The
State
could
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
any
newly
added
portion
of
the
8­
hour
standard
nonattainment
area).
Emissions
reductions
from
measures
in
the
1­
hour
ozone
SIP
that
are
PREDECISIONAL
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draft
11/
03/
05
27
achieved
after
the
8­
hour
ozone
NAAQS
baseline
year
could
count
(
subject
to
creditability
restrictions
as
discussed
above)
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.
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;
see
40
CFR
51.905(
a)(
1)(
iii)).

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

hour
RFP,
attainment
demonstrations
and
other
related
requirements?

We
intend
to
apply
the
Clean
Data
Policy,
which
we
had
applied
under
the
1­
hour
standard,
for
purposes
of
the
8­

hour
standard.
In
this
action
EPA
is
finalizing
the
statutory
interpretation
that
is
embodied
in
the
policy.

The
text
of
the
final
rule
encapsulates
the
statutory
interpretation
set
forth
in
the
policy.

10.
How
will
RFP
be
addressed
in
Tribal
areas?

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
PREDECISIONAL
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28
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
emissions
models
in
addition
to
the
MOBILE
model.

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.
The
use
of
emissions
reductions
outside
the
nonattainment
area
must
be
shown
to
be
beneficial
toward
reducing
ozone
in
the
nonattainment
area
and
must
ensure
that
the
reductions
meet
the
standard
tests
of
creditability
(
permanent,
enforceable,
surplus,
and
quantifiable).

13.
When
must
RFP
emissions
reductions
be
achieved?

The
target
level
of
emissions
must
be
met
by
the
attainment
date
of
the
attainment
year.
Section
182(
c)(
2)(
B)
requires
that
RFP
be
continued
out
to
the
PREDECISIONAL
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29
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
of
the
CAA
Amendments
of
1990.

°
Banked
emissions
reductions
credits
created
prior
to
enactment
of
the
CAA
Amendments
of
1990
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
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
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05
30
interpreted
with
that
baseline
in
mind
instead
of
enactment
of
the
CAA
Amendments
of
1990.

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
submit
a
demonstration
of
attainment
for
5
or
less
years
after
designation
(
i.
e.,
do
not
request
an
attainment
date
extension
beyond
5
years
after
designation),
the
CAA's
RACT
requirement
is
met
with
the
control
requirements
associated
with
a
demonstration
that
the
NAAQS
is
attained
as
expeditiously
as
practicable.

For
subpart
1
areas
that
submit
an
attainment
demonstration
that
requests
an
attainment
date
extension
(
i.
e.,
beyond
5
years
after
designation),
subpart
2
moderate
and
above
areas,
and
areas
within
an
Ozone
Transport
Region
PREDECISIONAL
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2This
is
generally
expected
with
the
submission
of
the
attainment
demonstration.

3Alternatively,
a
State
need
not
perform
a
NOx
RACT
analysis
for
sources
subject
to
Federal
implementation
plan
that
implements
the
emission
reductions
required
by
the
NOx
31
(
OTR),
a
RACT
SIP
is
required
covering
CTG
sources
and
major
non­
CTG
sources.
The
RACT
submittal
date
is
27
months
after
designation,
except
a
subpart
1
area
shall
submit
the
RACT
SIP
with
its
attainment
date
extension
request.
2
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
a
RACT
SIP
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.
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
adopted
by
the
State
and
approved
by
EPA
as
meeting
the
NOx
SIP
Call
requirements
or,

in
States
achieving
CAIR
reductions
solely
from
electric
generating
units
(
EGUs),
the
CAIR
NOx
requirements.
3
States
PREDECISIONAL
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draft
11/
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SIP
call
or
the
CAIR.

32
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
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
NOx
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
4Memorandum
dated
January
14,
2005,
"
Guidance
on
Limiting
Nitrogen
Oxides
(
NOx)
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.

33
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.
4
I.
Should
EPA
promulgate
a
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,
fine
particulate
matter
(
PM2.5),
and
regional
haze?

We
are
continuing
our
policy
of
encouraging
each
State
with
an
ozone
nonattainment
area
which
overlaps
or
is
nearby
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
34
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
ozone­
relevant
emissions
data
element
requirements
under
40
CFR
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?

Section
301(
d)
of
the
CAA
recognizes
that
American
Indian
Tribal
governments
are
generally
the
appropriate
authority
to
implement
the
CAA
in
Indian
country.
As
discussed
in
the
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
35
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
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.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
36
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
(
at
40
CFR
part
51,
subpart
H),
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
relevant
requirements
(
40
CFR
part
58)
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.

R.
How
will
the
statutory
time
periods
in
the
CAA
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
37
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
for
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
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
§
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
CAA,
as
amended
in
1990,
for
the
8­
hour
ozone
NAAQS,
the
CO
NAAQS,
and
the
PM10
NAAQS.
We
are
also
promulgating
final
changes
to
the
requirements
for
emissions
reductions
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
38
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).

We
are
making
the
same
changes
to
appendix
S
that
we
are
making
to
§
51.165
to
implement
the
CAA
as
revised
by
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
CAA.
These
regulations
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
39
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
CAA
Amendments
related
to
the
applicability
of
construction
bans.
The
final
rules
at
§
52.24
also
codify
that
§
51.165
applies
in
interpreting
the
terms
in
§
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
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
CAA.
We
are
codifying
NOx
as
an
ozone
precursor
in
attainment
and
unclassifiable
areas.

Summary
of
Section
VI:
Final
Rule
for
RFG
Today's
rule
specifies
that
the
nine
original
RFG
mandatory
areas
must
continue
to
use
RFG
at
least
until
they
are
redesignated
to
attainment
for
the
8­
hour
standard.

Similarly,
areas
that
have
been
reclassified
as
severe
areas
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
40
under
section
181(
b)
of
the
CAA
for
the
1­
hour
NAAQS,
and
which
were
not
redesignated
to
attainment
for
the
1­
hour
NAAQS
prior
to
its
revocation,
must
continue
to
use
RFG
at
least
until
they
are
redesignated
to
attainment
for
the
8­

hour
standard.
The
EPA
is
reserving
for
future
consideration
what
RFG
requirements
apply
to
areas
that
were
reclassified
as
severe
under
the
1­
hour
standard,
but
were
redesignated
to
attainment
for
that
standard
before
its
revocation.
The
only
such
area
that
was
redesignated
to
attainment
prior
to
revocation
of
the
1­
hour
standard
is
Atlanta,
Georgia.
The
EPA
is
also
reserving
for
future
consideration
whether
areas
must
continue
using
RFG
after
they
are
redesignated
to
attainment
for
the
8­
hour
standard,

for
the
original
nine
mandatory
areas
as
well
as
the
areas
reclassified
to
severe.
Finally,
EPA
clarifies
that
the
current
opt­
in
rules
will
remain
in
place
after
the
1­
hour
standard
is
revoked.
Areas
classified
under
subpart
2
as
marginal
or
above
are
eligible
to
opt­
in
to
the
RFG
program.

Summary
of
Section
VII:
Other
Considerations
A.
How
will
EPA's
implementation
of
the
8­
hour
ozone
NAAQS
affect
funding
under
the
Congestion
Mitigation
and
Air
Quality
Improvement
(
CMAQ)
Program?

This
section
describes
the
relationship
between
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
41
CMAQ
program
and
the
8­
hour
ozone
NAAQS
implementation
program.

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

The
interrelationship
between
implementation
of
the
8­

hour
ozone
standard
and
the
title
V
permits
program
was
not
discussed
in
the
proposed
rule.
However,
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
hour
ozone
standard.

C.
What
action
is
EPA
taking
on
the
Overwhelming
Transport
Classification
for
subpart
1
areas?
We
are
not
completing
rulemaking
on
the
overwhelming
transport
classification
in
this
rulemaking.
This
section
discusses
the
status
of
the
rulemaking.

IV.
Final
Rule
for
Phase
2
Elements
Other
than
New
Source
Review
and
Reformulated
Gasoline
The
discussion
of
many
of
the
regulatory
elements
below
address
timing
of
required
actions,
such
as
submission
dates
for
SIP
revisions.
The
discussion
is
primarily
directed
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
42
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,
2004
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
CAA
Amendments
overhauled
the
CAA's
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.
Areas
with
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
43
more
serious
ozone
pollution
were
given
a
higher
classification
that
did
two
things.
First,
the
successively
higher
classifications
provided
a
successively
longer
maximum
timeframe
for
attaining
the
ozone
NAAQS.
Second,

each
higher
classification
mandated
specific
additional
and/
or
more
stringent
obligations
than
the
classification
immediately
below.
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.
See
generally
H.
R.
Rep.
No.
101­
490
at
144­
48
(
1990).

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.
Our
policy
view
is
guided
by
past
precedents
and
also
the
principles
we
set
forth
in
our
proposed
rule
(
June
3,
2003;
68
FR
32802).

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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
44
some
flexibility
in
how
they
apply,
the
requirements
do
not
allow
for
broad
waivers.
For
example,
all
areas
classified
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
Supreme
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.,
531
U.
S.

484­
85.

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
CAA
to
mean
that
the
prescribed
requirements
for
each
classification
under
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45
subpart
2
apply
to
areas
with
such
classification
for
the
8­

hour
NAAQS.
As
we
noted
in
the
preamble
to
the
proposed
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.
However,
as
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
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OR
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03/
05
46
therefore
may
be
substituted
for
mandatory
VOC
emissions
reductions.

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
I/
M
PREDECISIONAL
DRAFT
 
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05
47
or
Stage
II
vapor
recovery
programs
and
recommended
that
we
provide
States
with
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
noted
by
the
Supreme
Court,
Congress
intended
to
cabin
States'

discretion
when
it
mandated
the
specific
controls
under
subpart
2.
See
e.
g.,
Whitman,
531
U.
S.
484­
85.
("
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").

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
precise
circumstances
would
create
an
absurd
result.
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48
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.
For
example,
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.

With
regard
to
the
comment
relating
to
Stage
II
vapor
recovery,
section
202(
a)(
6)
of
the
CAA
does
provide
for
revision
or
waiver
of
the
Stage
II
vapor
recovery
requirement
under
certain
conditions:
"
The
requirements
of
section
182(
b)(
3)
(
relating
to
stage
II
gasoline
vapor
recovery)
for
areas
classified
under
section
181
as
moderate
for
ozone
shall
not
apply
after
promulgation
of
such
standards
and
the
Administrator
may,
by
rule,
revise
or
waive
the
application
of
the
requirements
of
such
section
182(
b)(
3)
for
areas
classified
under
section
181
as
Serious,

Severe,
or
Extreme
for
ozone,
as
appropriate,
after
such
time
as
the
Administrator
determines
that
onboard
emissions
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49
control
systems
required
under
this
paragraph
are
in
widespread
use
throughout
the
motor
vehicle
fleet."

Currently,
EPA
is
formulating
policy
concerning
how
widespread
use
will
be
determined
and
has
been
seeking
participation
from
affected
parties.
Further
information
is
available
at:

http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
ozonetech/
stage2/.

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
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'
PREDECISIONAL
DRAFT
 
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draft
11/
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5See
Holy
Trinity
Church
v.
United
States,
143
U.
S.
457
(
1892)
("
If
literal
construction
of
the
words
of
a
statute
be
absurd,
the
act
must
be
so
construed
to
avoid
the
absurdity.");
Griffin
v.
Oceanic
Contractors,
Inc.
458
U.
S.
564
(
1982)
(
recognizing
the
absurdity
exemption,
but
concluding
that
a
harsh
penalty
provision
did
not
produce
results
counter
to
Congress'
intent);
Mova
Pharm.
Corp.
v.
Shalala,
140
F.
3d
1060
(
D.
C.
Cir.
1998)
(
recognizing
the
absurdity
exemption,
but
finding
that
a
"
successful
defense"
regulation
went
beyond
the
statute
was
not
necessary
to
meet
Congressional
intent.)

50
intent.
5
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
attainment
deadlines
for
areas
within
their
boundaries
solely
by
regulating
sources
within
their
own
boundaries.
Section
110(
a)(
2)(
D)
of
the
CAA
provides
an
important
tool
for
addressing
the
problem
of
interstate
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
PREDECISIONAL
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51
maintenance,
in
one
or
more
downwind
States.
Section
110(
k)(
5)
of
the
CAA
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
CAA.
If
we
make
such
a
finding,
we
must
require
the
State
to
submit,
within
a
specified
period,
a
SIP
revision
to
correct
the
inadequacy.
The
CAA
further
addresses
interstate
transport
of
pollution
in
section
126,
which
authorizes
any
State
to
petition
EPA
to
regulate
emissions
from
significant
upwind
sources
of
air
pollutants
in
other
States.

In
addition
to
requiring
States
to
control
interstate
air
pollution
under
section
110(
a)(
2)(
D),
the
CAA
requires
States
with
nonattainment
areas
to
develop
State
plans
under
part
D
that
provide
for
meeting
the
NAAQS
as
expeditiously
as
practicable,
and
for
maintaining
healthy
air
quality
in
those
areas
over
time.
Together,
the
section
110(
a)(
2)(
D)

and
part
D
provisions
provide
for
upwind
State
and
in­
State
controls
to
ensure
that
national
health­
based
air
quality
standards
are
met
and
maintained.

2.
Current
approach
In
the
NOx
SIP
Call
Rule,
EPA
found
the
SIPs
for
certain
States
in
the
eastern
U.
S.
to
be
substantially
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
6In
light
of
various
challenges
to
the
8­
hour
NAAQS,
we
stayed
the
8­
hour
basis
for
the
NOx
SIP
Call
Rule
(
65
FR
56245;
September
18,
2000).

52
inadequate
to
address
emissions
transported
to
downwind
States
and
required
those
States
to
select
and
adopt
control
measures
to
meet
statewide
ozone­
season
NOx
emissions
budgets
based
on
highly
cost­
effective
NOx
emissions
reductions
(
63
FR
57356,
October
27,
1998.)
In
that
rule,

we
determined
that
the
same
level
of
emissions
reductions
was
needed
to
address
transport
for
both
the
1­
hour
and
8­

hour
standards.
6
The
NOx
SIP
Call
Rule
is
achieving
substantial
emissions
reductions
and
air
quality
improvement
well
in
advance
of
the
attainment
dates
of
8­
hour
nonattainment
areas.
In
the
eastern
United
States,
monitoring
data
shows
a
10
percent
improvement
between
2002
and
2004
in
the
seasonal
(
May­
September)
average
of
daily
maximum
8­
hour
ozone
concentrations,
after
adjustment
for
meteorological
differences.
The
EPA
believes
that
the
NOx
reductions
achieved
as
a
result
of
the
NOx
SIP
Call
are
an
important
factor
in
this
improvement.
The
compliance
date
for
achieving
the
required
NOx
reductions
under
phase
I
of
the
NOx
SIP
Call
was
May
31,
2004.
All
of
the
19
affected
PREDECISIONAL
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53
States
and
the
District
of
Columbia
submitted
complete
Phase
I
SIPs,
which
EPA
approved,
in
response
to
the
NOx
SIP
Call
and
are
implementing
their
NOx
control
programs.
State
programs
to
implement
the
rule
have
focused
on
reducing
emissions
from
electric
power
generators
and
large
industrial
emitters.
The
phase
II
NOx
SIP
Call
Rule,
which
responds
to
court
decisions
on
issues
from
the
original
SIP
call
rule
involving
certain
types
of
sources
and
geographic
coverage,
requires
additional
emissions
reductions
by
May
1,

2007.

The
EPA'S
modeling
for
the
CAIR
indicates
that
ozone
levels
across
the
eastern
half
of
the
country
will
improve
substantially
by
2010
because
of
existing
requirements
 
including
the
NOx
SIP
call,
federal
motor
vehicle
and
nonroad
engine
regulations,
and
other
existing
State
and
federal
rules.
Last
year,
EPA
designated
more
than
100
areas
in
that
region
as
having
ozone
levels
not
meeting
the
8­
hour
ozone
standard,
based
on
2001­
2003
data.
Air
quality
improvements
due
to
existing
requirements
(
i.
e.,
without
State
measures
required
for
areas
designated
nonattainment
for
the
8­
hour
standard)
are
projected
to
leave
only
16
of
these
areas
in
nonattainment
in
2010.
This
estimate
is
derived
from
base
case
CAIR
modeling
results
shown
in
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
7The
CAIR
first
phase
also
provides
an
annual
NOx
budget,
which
also
starts
in
2009.

54
final
notice
for
the
CAIR
(
70
FR
25254,
Table
VI
 
12).

On
May
12,
2005,
EPA
published
the
Clean
Air
Interstate
Rule
in
the
Federal
Register
(
70
FR
25162).
The
EPA
determined
that
28
States
and
the
District
of
Columbia
contribute
significantly
to
downwind
nonattainment,
or
interfere
with
maintenance,
of
the
PM2.5
and
8­
hour
ozone
NAAQS
in
other
States.
The
rule
requires
these
States
to
submit
SIP
revisions
to
reduce
SO2
and/
or
NOx
emissions.

To
reduce
interstate
ozone
transport,
the
rule
established
statewide
ozone­
season
NOx
budgets
for
25
States
and
the
District
of
Columbia.
The
budgets
are
based
on
the
level
of
emissions
that
can
be
achieved
through
highly
costeffective
controls
that
EPA
determined
are
available
from
EGUs;
however,
States
have
flexibility
to
choose
the
measures
they
will
use
to
achieve
the
necessary
emissions
reductions.
Due
to
feasibility
constraints,
EPA
is
requiring
the
CAIR
budgets
to
be
achieved
in
two
phases.

For
summertime
NOx,
the
first
phase
starts
in
2009
(
covering
2009­
2014);
7
the
second
phase
of
NOx
reductions
begins
in
2015
(
covering
2015
and
thereafter).

The
25
States
that
are
required
to
meet
a
summertime
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
11/
03/
05
8The
CAIR
requires
summertime
NOx
reductions
in
the
following
States
not
covered
by
the
NOx
SIP
Call:
Arkansas,
Florida,
Iowa,
Louisiana,
Mississippi,
and
Wisconsin.
The
NOx
SIP
Call
has
requirements
for
two
States
not
covered
by
CAIR
ozone
requirements:
Rhode
Island
and
Georgia.
The
EPA
has
proposed
a
stay
of
applicability
of
the
SIP
Call
to
Georgia
as
an
initial
response
to
a
petition
for
reconsideration
on
whether
Georgia
should
be
covered.

55
NOx
cap
for
ozone
purposes,
along
with
the
District
of
Columbia,
are
Alabama,
Arkansas,
Connecticut,
Delaware,

Florida,
Illinois,
Indiana,
Iowa,
Kentucky,
Louisiana,

Maryland,
Massachusetts,
Michigan,
Mississippi,
Missouri,

New
Jersey,
New
York,
North
Carolina,
Ohio,
Pennsylvania,

South
Carolina,
Tennessee,
Virginia,
West
Virginia,
and
Wisconsin.

The
CAIR
is
geographically
broader
and
more
stringent
than
EPA's
previous
ozone
interstate
transport
rule,
the
NOx
SIP
Call,
adopted
in
1998.8
The
CAIR's
ozone
requirements
are
based
on
updated
analyses
of
the
impacts
of
pollution
transported
across
State
borders,
and
of
highly
costeffective
control
opportunities
for
NOx.

As
detailed
in
the
final
CAIR
action,
the
CAIR
rule
will
further
reduce
ozone
transport
to
assist
States
in
their
efforts
to
bring
ozone
nonattainment
areas
into
attainment
or
­­
in
the
case
of
downwind
receptor
areas
that
attain
prior
to
some
or
all
CAIR
reductions
­­
maintain
air
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quality
meeting
the
8­
hour
ozone
NAAQS.
In
the
CAIR
rulemaking,
EPA
projected
that
39
counties
(
in
the
16
nonattainment
areas
referenced
above)
would
have
ozone
levels
exceeding
the
standard
in
2010
in
the
absence
of
further
control
requirements
(
i.
e.,
the
base
case
without
CAIR).
Most
of
these
counties
were
projected
to
be
within
a
few
parts
per
billion
(
ppb)
of
the
standard.
For
the
39
counties,
the
average
reduction
in
ozone
levels
estimated
from
2009
CAIR
NOx
controls
is
0.4
ppb,
and
the
maximum
improvement
is
1.4
ppb
(
70
FR
25254,
Table
VI
 
12.)
The
2009
CAIR
NOx
requirements
will
achieve
reductions
prior
to
the
maximum
attainment
date
for
downwind
8­
hour
ozone
areas
classified
as
moderate.

We
believe
that
States
will
be
able
to
demonstrate
timely
attainment
for
most
8­
hour
ozone
nonattainment
areas
with
the
help
of
emissions
reductions
from
Federal
rules.

However,
we
also
believe
that
a
limited
number
of
downwind
areas,
while
showing
improvement,
are
likely
to
remain
in
nonattainment
after
2009.
This
is
due
to
the
severity
of
projected
ozone
levels
in
certain
areas,
uncertainties
about
the
levels
of
emissions
reductions
that
will
actually
occur,

and
persistence
of
historical
difficulties
with
attaining
the
1­
hour
ozone
standard.
The
EPA
determined
in
the
CAIR
PREDECISIONAL
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9For
the
22
counties
projected
to
be
in
nonattainment
in
2015
in
the
absence
of
further
control
requirements
(
i.
e.,
the
CAIR
base
case),
the
average
ozone
reduction
in
2015
from
CAIR
is
1.1
ppb,
and
the
maximum
improvement
is
1.6
ppb.
(
70
FR
25254,
25455,
Table
VI
 
13.)

57
that
even
if
all
downwind
receptor
areas
attained
on
time,

many
areas
will
remain
close
enough
to
the
standard
to
be
at
risk
of
falling
back
into
nonattainment.
The
EPA
concluded
that
the
2015
summertime
NOx
reductions
will
assist
attainment
and
maintenance
of
the
8­
hour
standard.
9
In
addition
to
controlling
interstate
air
pollution
under
section
110(
a)(
2)(
D),
EPA
national
rules
and
State
rules
for
controlling
local
sources
of
emissions
are
significantly
reducing,
and
in
the
future
will
further
reduce,
the
amount
of
pollution
transported
to
8­
hour
ozone
nonattainment
areas
in
downwind
States.
Downwind
States,
in
devising
their
attainment
and
maintenance
plans,
will
be
able
to
take
required
upwind
reductions
into
account.

Depending
on
the
particular
area,
the
upwind
reductions
will
help
to
hasten
attainment
of
the
NAAQS,
make
attainment
and
maintenance
of
the
NAAQS
less
difficult
and
costly,
or
both.

The
EPA
notes
that
interstate
pollution
transport
will
be
further
reduced
through
cost­
effective
measures
that
individual
States
adopt
for
purposes
of
bringing
their
ozone
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Many
types
of
sources
contribute
to
ozone
transport.
The
CAIR
reduction
requirements
are
based
solely
upon
potential
reductions
from
EGUs;
EPA
did
not
find
other
source
types
highly
cost
effective
to
control.

58
nonattainment
areas
into
attainment.
10
Given
the
potential
for
measures
adopted
by
one
State
to
improve
air
quality
downwind,
EPA
is
supportive
of
multi­
State
cooperation
on
strategies
for
attaining
the
8­
hour
standard.

3.
Comments
and
responses
This
section
addresses
the
more
significant
comments
received;
the
response
to
comment
document
addresses
other
comments
also.

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
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
this
inequity.
One
said
we
cannot
assume
that
transport
has
been
addressed
until
after
the
NOx
SIP
Call
is
implemented
and
has
been
evaluated.
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Response:
The
8­
hour
ozone
implementation
rule
is
not
intended
as
a
rule
to
address
interstate
transport
of
pollution
and
to
achieve
emissions
reductions
from
upwind
sources
as
provided
under
CAA
section
110(
a)(
2)(
D).
Rather,

its
purpose
is
to
interpret
nonattainment
requirements
(
in
subparts
1
and
2
of
part
D
of
title
I)
for
State
plans
to
implement
the
8­
hour
NAAQS.
We
have
addressed
the
section
110(
a)(
2)(
D)
obligation
through
the
NOx
SIP
Call
and
CAIR,

which
provide
substantial
air
quality
benefit
for
downwind
areas
significantly
affected
by
transport
of
pollution
from
other
States.

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
ozone
implementation
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
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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
OTRs
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
approaches
and
regional
cooperation.
The
EPA
has
ensured
regional
action
to
reduce
interstate
ozone
transport
through
the
NOx
SIP
Call
Rule
and
CAIR.
In
addition,
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
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nonattainment
and
will
work
with
these
States
as
needed
to
provide
support
and
ensure
progress.

We
agree
with
other
commenters
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
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.

In
response
to
comments
suggesting
that
EPA
establish
additional
transport
regions,
at
this
time
we
do
not
anticipate
formalizing
any
additional
transport
regions.
We
believe
that
the
NOx
SIP
Call
and
CAIR
rules
go
far
to
effectively
address
the
kind
of
transport
that
establishment
of
a
transport
region
would
be
intended
to
address,
without
the
costs
of
setting
up
a
commission
to
oversee
the
transport
region.

Comment:
Some
commenters
stated
that
we
should
not
rely
on
the
proposed
Clear
Skies
legislation
to
reduce
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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.
To
ensure
that
regional
transport
is
addressed
in
a
timely
manner,
EPA
finalized
the
CAIR
in
May
2005
based
on
our
existing
regulatory
authority.

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
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.
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Response:
We
believe
that
the
NOx
SIP
Call
and
CAIR
help,
rather
than
hinder,
SIP
planning
for
nonattainment
areas.
We
agree
that
the
CAA
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
Ozone
Transport
Assessment
Group
(
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,
States
faced
great
uncertainty
regarding
the
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
 
and
more
recently,

CAIR
­­
to
establish
the
emission
reduction
responsibilities
of
upwind
States
under
section
110(
a)(
2)(
D).
In
this
way,

eastern
States
could
then
have
a
fair
degree
of
certainty
regarding
required
upwind
reductions
and
the
amount
of
transported
emissions
to
be
assumed
in
their
1­
hour
ozone
attainment
demonstrations
for
individual
nonattainment
areas.
Based
on
the
OTAG
experience,
we
believed
that
there
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was
high
risk
that
States
working
together
in
a
collaborative
fashion
would
not
agree
on
a
regional
control
strategy
within
the
time
the
CAA
provides
for
States
to
develop
8­
hour
attainment
demonstrations.
Therefore,
we
believe
the
commenter
is
incorrect
that
the
"
top­
down"

approach
will
significantly
hinder
SIP
planning
for
the
individual
areas,
and
on
the
contrary,
will
provide
the
certainty
needed
to
complete
the
attainment
demonstrations
in
a
timely
manner.

The
commenter
also
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.
It
is
true
that
section
110(
a)(
2)(
D)(
i)(
I)
requires
a
SIP
to
"
contain
adequate
provisions
.
.
.
prohibiting,
consistent
with
the
provisions
of
this
title,
any
source
or
other
type
of
emissions
activity
within
the
State
from
emitting
any
air
pollutant
in
amounts
which
will
)

(
I)
contribute
significantly
to
nonattainment
in,
or
interfere
with
maintenance
by,
any
other
State
with
respect
to
any
such
national
primary
or
secondary
ambient
air
quality
standard
.
.
."
Furthermore,

sections
110(
a)(
1)
and
(
2)
of
the
CAA
require
States
to
submit
SIPs
that
implement,
maintain,
and
enforce
a
new
or
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revised
NAAQS
within
3
years
of
promulgation
of
the
standard.
Among
other
things,
these
SIP
revisions
must
address
a
State's
significant
contribution
of
pollution
to
nonattainment
and
maintenance
problems
in
other
States
under
section
110(
a)(
2)(
D).
On
March
10,
2005,
EPA
officially
notified
States
that
they
have
failed
to
submit
SIPs
to
satisfy
this
requirement
of
the
CAA
with
respect
to
the
8­

hour
ozone
and
PM2.5
NAAQS
(
70
FR
21147;
April
25,
2005).

The
finding
starts
a
2­
year
clock
for
EPA
to
issue
a
final
Federal
Implementation
Plan
(
FIP)
that
will
address
the
requirements
of
section
110(
a)(
2)(
D)
unless
a
SIP
revision
correcting
the
deficiency
is
approved
by
EPA
before
the
FIP
is
promulgated.
The
EPA
plans
to
issue
guidance
regarding
how
States
could
satisfy
the
section
110(
a)(
2)(
D)

requirement.
For
States
affected
by
CAIR,
an
approved
SIP
responding
to
the
CAIR
would
satisfy
the
requirement
and
turn
off
the
FIP
clock.

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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
11This
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.

66
32828);
no
draft
or
final
regulatory
text.]
11
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
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
after
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
12Based
on
current
information,
we
do
not
believe
there
are
any
8­
hour
nonattainment
areas
covered
under
subpart
2
that
are
"
rural"
and
therefore
eligible
for
consideration
for
coverage
under
section
182(
h).
Existing
policy
on
rural
transport
areas
includes
the
"
General
Preamble
for
the
Implementation
of
Title
I
of
the
Clean
Air
Act
Amendments
of
1990;
Proposed
Rule,"
April
16,
1992
(
57
FR
13505).

67
182(
h).
12
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
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
the
flexibility
provided
under
section
182(
h)
to
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
extend
the
flexibility
provided
under
section
182(
h)
to
additional
areas.
PREDECISIONAL
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05
68
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
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
PREDECISIONAL
DRAFT
 
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NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
13Intrastate
transport
also
could
be
considered
in
determining
the
attainment
date
that
is
as
expeditious
as
practicable
for
subpart
2
areas,
but
if
the
date
were
later
than
allowed
for
the
area's
classification,
the
State
would
need
to
requires
bump­
up
of
the
area
to
a
higher
classification
for
that
date
to
be
approved.

69
determining
the
attainment
date
for
an
area.
13
In
identifying
the
appropriate
attainment
date
for
an
area,
the
State
should
consider
measures
to
address
intrastate
transport
of
pollution
from
sources
within
its
jurisdiction.

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
should
work
with
upwind
contributing
areas
within
the
State
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
and
authority
to
address
the
transport
of
pollution
from
one
area
of
the
State
to
a
different
area
of
the
State.

Comment:
Several
comments
recommended
an
intrastate
transport
classification.

Response:
Our
response
to
those
comments
is
in
the
PREDECISIONAL
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draft
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05
70
response
to
comment
document
for
the
Phase
1
Rule
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
areas
affected
by
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.
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
State
establishes
to
EPA's
satisfaction
that
the
SIP
would
be
adequate
to
attain
and
maintain
the
ozone
NAAQS
by
the
applicable
attainment
date
but
for
emissions
emanating
from
outside
the
United
States.
The
preamble
to
the
proposed
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05
71
rule
recommended
that
States
should
confer
with
the
appropriate
EPA
Regional
Office
to
establish
on
a
case­

bycase
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.,

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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
72
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
United
States.
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
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.
PREDECISIONAL
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05
73
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
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
United
States.
A
prime
lesson
learned
from
those
experiences
is
that
a
well­
designed,
detailed
analysis
is
required
before
one
can
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
PREDECISIONAL
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draft
11/
03/
05
74
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
United
States.
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.

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

hour
ozone
standard?
PREDECISIONAL
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75
[
Section
VI.
H.
of
June
2,
2003
proposed
rule
(
68
FR
32830);
§
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
three
of
these
four
elements,
the
exception
being
the
requirement
for
a
commitment
to
perform
a
MCR.
As
noted
below,
EPA
will
assess
whether
a
MCR
is
needed
on
a
case­
by­
case
basis
in
reviewing
individual
attainment
demonstrations.

In
the
Phase
1
Rule,
§
51.908
contained
only
the
requirement
related
to
the
timing
of
implementation
of
the
emissions
reductions
needed
for
attainment.
In
today's
final
rule,
that
provision
is
retained
as
paragraph
(
d)
of
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14Even
though
the
June
2,
2003
proposal
contained
the
reference
to
the
0.005
ppm
criterion,
the
draft
regulatory
76
§
51.908,
and
other
requirements
related
to
modeling
and
attainment
demonstrations
appear
in
the
remaining
paragraphs
of
§
51.908.

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,
both
of
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
The
proposal
noted
that
under
section
182(
a),
marginal
areas,
which
have
a
maximum
attainment
date
of
3
years
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)]
14
will
most
likely
come
into
PREDECISIONAL
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draft
11/
03/
05
text
issued
for
public
comment
did
not
contain
a
reference
to
this
criterion.

77
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
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.

If
existing
modeling
for
a
marginal
area
does
not
indicate
the
area
will
attain
with
the
current
planned
control
measures,
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;
June
2,

2003.)
Even
though
modeling
is
not
required,
it
may
be
prudent.

In
the
proposal,
we
noted
that
many
subpart
1
areas
are
PREDECISIONAL
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78
projected
through
regional
modeling
to
come
into
attainment
within
3
years
after
designation
with
current
control
programs.
Therefore,
we
proposed
that
no
additional
modeled
attainment
demonstration
would
be
required
for
areas
with
air
quality
observations
close
to
the
level
of
the
standard
and
where
regional
or
national
modeling
exists
that
is
appropriate
for
use
to
demonstrate
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
Although
we
proposed
that
subpart
1
areas
requesting
an
attainment
date
within
3
years
after
designation
should
submit
their
attainment
demonstration
within
12
months,
we
have
removed
that
provision
from
the
final
rule.
A
subpart
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15The
EPA
notes
that
8­
hour
ozone
nonattainment
areas
are
also
free
to
develop
early
SIPs
with
motor
vehicle
emissions
budgets
for
transportation
conformity
purposes
in
advance
of
a
complete
SIP
attainment
demonstration.
For
more
information
on
establishing
an
early
8­
hour
ozone
SIP
and
how
it
could
be
used
for
conformity,
please
refer
to
EPA's
July
1,
2004,
conformity
final
rule
(
69
FR
40019).

16If
an
assessment
indicates
that
a
regional
modeling
analysis
is
not
applicable
to
a
particular
nonattainment
area,
additional
local
modeling
would
be
required.

79
1
area
is
free
to
choose
to
submit
its
attainment
demonstration
at
any
time
prior
to
the
3­
year
due
date.
15
As
is
the
case
with
all
required
attainment
demonstrations,
the
demonstration
must
be
submitted
no
later
than
3
years
following
designation
and
must
be
appropriate
for
use
in
the
area.
We
anticipate
that
most
subpart
1
areas
will
be
included
in
the
modeling
analyses
conducted
by
areas
with
later
attainment
dates.
States
are
encouraged
to
use
these
available
analyses,
as
well
as
future
EPA
national
or
regional
modeling.
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.
16
If
acceptable
available
modeling
does
not
demonstrate
attainment,
the
area
would
need
to
submit
a
local
modeled
attainment
demonstration.
PREDECISIONAL
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80
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.

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

Response:
Subpart
1
areas
must
submit
their
attainment
demonstrations
within
3
years
after
designation.

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
PREDECISIONAL
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81
§
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
work
under
development
and
resources
spent
on
these
projects.

b.
Summary
of
final
rule
Subpart
1
areas
with
attainment
dates
later
than
3
years
after
designation
and
areas
classified
as
moderate
or
higher
under
§
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.
Areas
with
an
effective
date
of
designation
of
June
15,
2004
are
required
to
submit
an
attainment
demonstration
no
later
than
June
15,

2007.
These
demonstrations
must
be
consistent
with
section
51.112,
including
appendix
W.
In
addition,
for
the
review
of
technical
adequacy,
we
will
generally
rely
on
our
most
PREDECISIONAL
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05
17U.
S.
EPA,(
2005),
Guidance
on
the
Use
of
Models
and
Other
Related
Analyses
in
Attainment
Demonstrations
for
the
8­
Hour
Ozone
NAAQS,
EPA­
454/
R­
05­
002,
http://
www.
epa.
gov/
ttn/
scram,
(
Modeling
Guidance,
File
name:
ozone­
final.
pdf).

18The
guidance
may
not
apply
to
a
particular
situation,
depending
upon
the
circumstances.
The
EPA
and
State
decision
makers
retain
the
discretion
to
adopt
approaches
on
a
case­
by­
case
basis
that
differ
from
this
guidance
where
appropriate.
Any
decisions
by
EPA
regarding
a
particular
SIP
demonstration
will
only
be
made
based
on
the
statute
and
regulations,
and
will
only
be
made
following
notice
and
opportunity
for
public
review
and
comment.
Therefore,
interested
parties
will
be
able
to
raise
questions
and
objections
about
the
contents
of
this
guidance
and
the
appropriateness
of
its
application
for
any
particular
situation.

82
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
developing
attainment
demonstrations
for
the
8­
hour
ozone
standard.
17
Areas
required
to
submit
an
attainment
demonstration
are
encouraged
to
follow
the
procedures
described
in
this
guidance.
Local,
regional
and
national
modeling
developed
to
support
Federal
or
local
controls
generally
may
be
used
provided
the
modeling
is
consistent
with
EPA's
modeling
guidance
at
the
time
the
modeled
attainment
demonstration
is
performed.
18
c.
Comments
and
responses
PREDECISIONAL
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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
modeling
guidance
were
welcome
at
any
time
and
that
we
would
consider
those
comments
in
any
future
revision
of
that
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.
We
will
address
those
comments
at
the
time
we
issue
the
final
modeling
guidance.

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

of
the
CAA
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
[
section
182(
j)(
1)(
A)].
Next,
section
182(
j)(
1)(
B)
requires
PREDECISIONAL
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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
adopt
and
submit
the
necessary
attainment
plan
for
the
area.
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In
such
cases,
even
though
the
area
as
a
whole
would
not
have
an
approvable
attainment
demonstration,
the
sanction
provisions
of
section
179
will
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.
Multi­
State
nonattainment
areas
are
subject
to
the
same
modeling
and
attainment
demonstration
requirements
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of
the
final
rule
that
apply
to
all
other
areas.
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
subject
only
to
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.
Section
182(
j)
of
the
CAA
requires
that
multi­
State
areas
use
photochemical
grid
modeling
as
part
of
their
attainment
demonstrations
while
Section
172
(
Subpart
1
areas)
of
the
CAA
does
not
explicitly
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require
photochemical
grid
modeling.
For
subpart
1
areas
that
do
not
seek
an
attainment
date
of
3
years
or
less
after
designation,
we
make
no
distinction
between
multi­
State
and
single­
State
subpart
1
nonattainment
areas.
All
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
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
jurisdictional
conflicts
and
inconsistencies.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
88
Response:
The
EPA
has
conducted,
and
will
continue
to
conduct,
regional
and
national
scale
modeling
that
covers
most
of
the
ozone
nonattainment
areas.
Both
single
State
and
multi­
State
nonattainment
areas
will
be
able
to
make
use
of
EPA
modeling,
where
appropriate.
The
EPA
will
work
with
States
to
determine
the
steps
necessary
for
the
proper
use
of
EPA
modeling
in
a
local
attainment
demonstration.
States
that
plan
to
use
EPA
modeling
in
lieu
of
local
modeling
should
be
prepared
to
justify
the
local
use
of
the
regional
projections
as
well
as
conduct
additional
analyses
to
monitor
progress
towards
attainment.
The
EPA
will
continue
to
work
with
States
to
coordinate
the
development
of
consistent
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
19As
noted
above
in
the
discussion
of
subpart
1
areas
with
early
attainment
dates,
although
the
draft
regulatory
text
in
§
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
submission
of
a
demonstration
of
attainment
within
3
years
after
designation.
The
final
regulatory
text
in
§
51.908(
b)
clarifies
this
point.

20U.
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.

89
proposed
to
require
the
State
to
develop
and
submit
a
modeled
attainment
demonstration.
19
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
that,
unlike
in
previous
guidance,
20
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
21U.
S.
EPA,
(
May
1998),
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).

90
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.
21
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
§
51.908(
d).

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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
22See
40
CFR
§
51.900(
g)
for
definition.

91
would
not
consider
comments
on
the
technical
merits
of
the
modeling
guidance
in
this
present
rulemaking.

b.
Summary
of
final
rule
The
final
rule
[
§
51.908(
c)]
requires
each
attainment
demonstration
to
be
consistent
with
the
provisions
of
§
51.112,
including
appendix
W
to
40
CFR
part
51.
In
addition,
we
will
generally
review
the
demonstrations
for
technical
merit
using
EPA's
most
recent
modeling
guidance
at
the
time
the
modeling
relied
on
in
the
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
attainment
year
ozone
season22
(
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
23U.
S.
EPA,
(
1998),
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).

92
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
airshed
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
NAAQS.
23
The
draft
guidance
was
developed
through
a
collaborative
process,
which
included
review
from
the
scientific
community,
and
it
has
been
revised
to
reflect
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
24U.
S.
EPA,(
2005),
Guidance
on
the
Use
of
Models
and
Other
Related
Analyses
in
Attainment
Demonstrations
for
the
8­
Hour
Ozone
NAAQS,
EPA­
454/
R­
05­
002,
http://
www.
epa.
gov/
ttn/
scram,
(
Modeling
Guidance,
File
name:
ozone­
final.
pdf).

93
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.
The
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
will
be
making
available
a
final
version
of
the
modeling
and
attainment
demonstration
guidance
for
the
8­

hour
ozone
standard.
24
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
94
Comment:
All
attainment
demonstrations
should
be
subject
to
the
same
rigorous
standards.

Response:
The
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.
The
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
95
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:
The
EPA
cannot
adopt
or
change
the
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:
The
final
rule
[
§
51.908(
c)]
requires
each
attainment
demonstration
to
be
consistent
with
the
provisions
of
40
CFR
51.112,
including
appendix
W.
However,

we
are
not
adopting
the
Guidance
as
a
rule.
The
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
case­
by­
case
basis
that
differ
from
this
guidance
where
appropriate.
Any
decisions
by
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
11/
03/
05
96
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
revised
draft
guidance
prior
to
release.
Also,
EPA
received
additional
comments
on
the
draft
guidance
during
the
comment
period
on
the
implementation
rule.
The
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,

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:
The
EPA
should
carefully
consider
the
PREDECISIONAL
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OR
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draft
11/
03/
05
97
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:
The
EPA
modeling
guidance
supports
this
comment
which
is
addressed
in
section
10
of
the
modeling
guidance.
"
Applicable
models"
may
be
used,
if
they
are
nonproprietary
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.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
98
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
considered
on
a
case­
by­
case
basis
as
the
appropriate
Regional
Office
works
with
the
State
as
it
develops
its
SIP
and
during
the
State
adoption
process
and
during
EPA's
SIP
approval
process.
Any
weight
of
evidence
analysis
is
available
for
public
review.

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
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
long­
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
25Memorandum
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
.

99
term
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.
25
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
100
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
emissions
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
3
or
more
years
before
the
applicable
attainment
date
to
ensure
that
any
additional
controls
that
may
be
needed
can
be
adopted
in
sufficient
time
to
reduce
emissions
by
the
start
of
the
ozone
season
in
the
attainment
year.

b.
Summary
of
final
rule
The
final
regulatory
text
does
not
contain
a
requirement
for
the
MCR.
In
reviewing
attainment
demonstrations
from
individual
States,
however
EPA
will
assess
the
need
for
a
MCR
for
areas
with
an
attainment
date
beyond
6
years
after
the
effective
date
of
the
area's
designation
in
the
context
of
whether
the
attainment
demonstration
and
any
weight
of
evidence
analysis
is
supportable
without
a
commitment
by
the
State
to
perform
a
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
26U.
S.
EPA,(
2005),
Guidance
on
the
Use
of
Models
and
Other
Related
Analyses
in
Attainment
Demonstrations
for
the
8­
Hour
Ozone
NAAQS,
EPA­
454/
R­
05­
002,
http://
www.
epa.
gov/
ttn/
scram,
(
Modeling
Guidance,
File
name:
ozone­
final.
pdf).

27Memorandum
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
101
MCR.

The
8­
hour
ozone
modeling
guidance26
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
MCR
guidance,
EPA
now
believes
the
1­
hour
MCR
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.
27
These
guidance
documents
should
provide
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
102
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
timeframe
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.
The
EPA
needs
to
recognize
that
for
moderate
and
lower
classifications
the
MCR
would
be
due
at
the
time
of
the
SIP
submittal.
Mid­
course
review
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.

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

Response:
The
final
regulatory
text
does
not
require
a
MCR;
as
noted
above,
EPA
will
assess
on
a
case­
by­
case
basis
whether
a
MCR
would
be
needed
in
the
context
of
a
particular
attainment
demonstration.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
28U.
S.
EPA,(
2005),
Guidance
on
the
Use
of
Models
and
Other
Related
Analyses
in
Attainment
Demonstrations
for
the
8­
Hour
Ozone
NAAQS,
EPA­
454/
R­
05­
002,
http://
www.
epa.
gov/
ttn/
scram,
(
Modeling
Guidance,
File
name:
ozone­
final.
pdf).

103
Comment:
The
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.
The
EPA
is
improving
methods
for
determining
the
ozone
trends
and
how
they
are
affected
by
meteorology.

The
latest
information
will
be
made
available.

Comment:
The
EPA
needs
to
release
the
revised
MCR
guidance
before
the
final
rule
is
issued
in
order
for
it
to
be
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
guidance28
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
29Memorandum
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.

30Use
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.

104
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.
29
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
timeframe
suitable
to
support
completion
of
MCR's
within
established
deadlines.

6.
Multi­
pollutant
assessments
(
one­
atmosphere
modeling)
30
a.
Background
The
proposal
noted
that
many
factors
affecting
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
105
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
implementation
process
for
ozone
and
secondary
fine
particles.
As
the
dates
for
attainment
demonstration
and
planning
SIPs
for
the
three
programs
are
anticipated
to
be
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
106
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
encouraged
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
multipollutant
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
107
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:
The
EPA
received
several
comments
on
the
recommendation
that
States
perform
multi­
pollutant
assessments
as
part
of
their
ozone
attainment
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
108
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
input
to
the
regulatory
process,
2)
that
the
additional
resources
necessary
to
model
the
atmosphere
as
a
single
system
would
result
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:
The
EPA
continues
to
believe
that
encouraging,
but
not
requiring,
multi­
pollutant
assessments
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
109
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
3
years.
As
a
result,
EPA
believes
that
the
available
tools
are
able
to
support
air
quality
planning.
Further
improvements
are
likely
over
the
next
several
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.
However,
EPA
recognizes
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)

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
multipollutant
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
PREDECISIONAL
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OR
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draft
11/
03/
05
31The
EPA
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
110
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;
§
51.909
of
the
draft
regulatory
text.]

The
June
2,
2003
proposal
did
not
discuss
baselines
for
purposes
of
the
attainment
demonstration.
(
It
did,
however,

discuss
baselines
for
RFP
demonstrations.)
Section
51.909
of
the
draft
regulatory
text
provided
that
2002
should
be
used
as
the
baseline
emission
inventory
year
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
readily
be
used
for
photochemical
grid
modeling.
31
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
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."

111
Therefore,
the
final
rule
does
not
specify
a
baseline
for
purposes
of
the
attainment
demonstration
and
modeling.
As
discussed
more
fully
in
the
section
of
the
preamble
regarding
RFP,
the
specification
of
2002
as
a
baseline
year
for
RFP
purposes
(
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.

8.
Voluntary
Reclassifications
("
Bump­
ups").

Although
we
believe
most
8­
hour
nonattainment
areas
will
attain
the
standard
by
their
statutory
attainment
date,

we
recognize
that
some
areas
classified
under
subpart
2
may
need
additional
time
beyond
the
statutory
attainment
date
for
their
area
to
attain
as
expeditiously
as
practicable.

As
discussed
in
the
Phase
1
Rule
(
69
FR
at
23959,
col.
3),

in
the
event
an
area
cannot
practicably
attain
by
the
maximum
date
for
its
classification,
the
Clean
Air
Act
provides
the
opportunity
for
more
time.
An
area
regulated
under
subpart
2
can
receive
a
later
maximum
attainment
date
through
a
State
request
to
bump­
up
to
a
higher
PREDECISIONAL
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draft
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03/
05
32Although
some
8­
hour
ozone
nonattainment
areas
have
additional
areas
beyond
the
boundary
of
the
former
1­
hour
nonattainment
area
and
thus
would
be
faced
with
new
requirements
for
the
higher
classification.

112
classification
(
e.
g.
from
moderate
to
serious).
The
Act
requires
EPA
to
grant
a
State
request
to
reclassify
an
area
to
a
higher
classification;
the
State
plan
still
must
provide
for
attainment
as
expeditiously
as
practicable.

Although
bump­
up
means
that
certain
additional
specified
requirements
apply,
an
area
may
already
be
meeting
most
or
all
of
these
specified
requirements
due
to
controls
previously
adopted
to
implement
the
1­
hour
ozone
standard.

This
is
because
some
areas
had
1­
hour
classifications
that
were
higher
(
and
more
restrictive)
than
the
areas'
8­
hour
classification,
32
and
because
the
Phase
1
final
implementation
rule
for
the
8­
hour
O3
NAAQS
contains
antibacksliding
provisions
generally
requiring
areas
to
continue
implementing
measures
required
for
the
1­
hour
classification.
Although
there
may
not
be
additional
mandatory
control
measures
required
because
the
areas
may
already
have
such
measures
in
place,
an
area
that
needs
more
time
to
attain
may
need
additional
emission
reductions
to
reach
attainment.

E.
What
requirements
for
RFP
should
apply
under
the
8­
hour
PREDECISIONAL
DRAFT
 
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OR
DISTRIBUTE
draft
11/
03/
05
33Note
that
§
51.900
provides
the
following
definitions:
(
p)
Reasonable
further
progress
(
RFP)
means
for
the
purposes
of
the
8­
hour
NAAQS,
the
progress
reductions
required
under
section
172(
c)(
2)
and
section
182(
b)(
1)
and
(
c)(
2)(
B)
and
(
c)(
2)(
C)
of
the
CAA.
(
q)
Rate
of
progress
(
ROP)
means
for
purposes
of
the
1­
hour
NAAQS,
the
progress
reductions
required
under
section
172(
c)(
2)
and
section
182(
b)(
1)
and
(
c)(
2)(
B)
and
(
c)(
2)(
C)
of
the
CAA.

113
ozone
standard?

[
Section
VI.
I.
of
June
2,
2003
proposed
rule
(
68
FR
32832);
§
51.909
and
§
51.910
in
draft;
§
51.910(
d)
in
final
regulatory
text.]

1.
General
discussion
a.
Background
As
noted
in
the
June
2,
2003
proposal,
section
172(
c)(
2),
which
is
located
in
subpart
1,
requires
State
plans
for
nonattainment
areas
to
require
RFP.
Section
171(
1)
of
the
CAA
defines
RFP
to
mean
"
such
annual
incremental
reductions
in
emissions
of
the
relevant
air
pollutant
as
are
required
by
this
part
[
part
D
of
title
I]

or
may
reasonably
be
required
by
the
Administrator
for
the
purpose
of
ensuring
attainment
of
the
applicable
[
NAAQS]
by
the
applicable
date."

Subpart
2
provides
more
specific
RFP
requirements
for
ozone
areas
classified
under
section
181.33
In
particular,
PREDECISIONAL
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05
114
subpart
2
specifies
the
base
year
emissions
inventory
upon
which
RFP
is
to
be
planned
for
and
implemented,
the
increments
of
emissions
reductions
required
over
specified
time
periods,
and
the
process
for
determining
whether
the
RFP
milestones
were
achieved.

Subpart
2
does
not
specify
RFP
requirements
for
marginal
areas.
Section
182(
b)(
1)(
A)
mandates
a
15
percent
VOC
emission
reduction,
accounting
for
growth,
between
1990
and
1996
for
moderate
and
above
ozone
nonattainment
areas.

Furthermore,
section
182(
c)(
2)(
B)
of
the
CAA
requires
each
serious
and
above
ozone
nonattainment
area
to
submit
a
SIP
revision
providing
for
an
actual
VOC
emission
reduction
of
at
least
3
percent
per
year
averaged
over
each
consecutive
3­
year
period
beginning
in
1996
until
the
area's
attainment
date
(
referred
to
as
the
post­
1996
ROP
plan
for
the
1­
hour
standard).
Section
182(
c)(
2)(
C)
of
the
CAA
allows
for
substitution
of
NOx
for
VOC
emissions
reductions
for
reductions
required
under
section
182(
c)(
2)(
B).
The
EPA's
policy,
NOx
Substitution
Guidance
(
December
15,
1993;

available
at
http://
www.
epa.
gov/
ttn/
oarpg/
t1pgm.
html),

addresses
the
substitution
of
NOx
emissions
reductions
for
VOC
emissions
reductions.
The
baseline
emissions
inventory
for
determining
the
required
ROP
reductions
for
the
1­
hour
PREDECISIONAL
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05
115
standard
is
specified
in
section
182
as
1990.

The
requirements
for
RFP
under
subparts
1
and
2,
as
described
above,
are
the
minimum
required
for
an
area.
More
reductions
may
be
necessary
for
attainment
within
the
nonattainment
area.
Moreover,
an
upwind
area
that
contributes
to
nonattainment
in
a
downwind
area
in
the
same
State
may
need
reductions
in
order
for
the
downwind
area
to
reach
attainment
by
its
required
attainment
date.
As
we
noted
above
in
section
IV.
D.
8.,
we
recognize
that
some
areas
classified
under
subpart
2
may
need
additional
time
beyond
the
statutory
attainment
date
for
their
current
classification
to
attain
the
8­
hour
standard
as
expeditiously
as
practicable.
In
the
event
an
area
cannot
practicably
attain
by
the
maximum
date
for
its
classification,
the
CAA
provides
the
opportunity
for
more
time.
An
area
regulated
under
subpart
2
can
receive
a
later
maximum
attainment
date
through
a
State
request
to
bump­
up
to
a
higher
classification
(
e.
g.
from
moderate
to
serious).

Although
a
higher
classification
would
mandate
additional
control
measures,
in
fact
there
may
not
be
additional
mandatory
control
measures
required
because
the
area
may
already
have
such
measures
because
of
its
classificaton
for
the
1­
hour
standard
and
the
anti­
backsliding
provisions.
PREDECISIONAL
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116
However,
an
area
that
needs
more
time
to
attain
may
also
need
additional
emissions
reductions
to
reach
attainment.

These
reductions
may
be
achieved
through
implementation
of
measures
that
are
necessary
to
demonstrate
RFP
requirements
or
additional
reductions
beyond
RFP
may
be
needed.

Preliminary
analyses
indicate
that
already
required
control
measures
(
e.
g.,
motor
vehicle
and
nonroad­
engine
rules,

CAIR,
etc.)
may
largely
or
fully
fulfill
RFP
requirements
for
many
areas
and
that
they
will
provide
substantial
progress
toward
attainment
for
most
areas.

Many
areas
may
have
significant
creditable
reductions
as
a
result
of
Federal
motor
vehicle
and
nonroad
rules,
the
NOx
SIP
Call,
and
the
CAIR.
With
the
statutory
exceptions
enumerated
above,
assured
emissions
reductions
that
will
occur
in
an
area
after
the
base
year
can
be
credited
toward
meeting
an
RFP
emission
reduction
milestone.

To
reduce
interstate
ozone
transport,
the
CAIR
(
described
above
in
section
IV.
B.)
established
statewide
ozone­
season
NOx
budgets
for
25
States
and
the
District
of
Columbia
(
i.
e.,
the
eastern
part
of
the
U.
S.
where
all
8­

hour
nonattainment
areas
are
classified
as
moderate
or
below).
As
noted
above,
the
first
phase
of
NOx
reductions
under
CAIR
starts
in
2009
(
covering
2009­
2014);
the
second
PREDECISIONAL
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05
117
phase
of
NOx
reductions
begins
in
2015
(
covering
2015
and
thereafter).

With
respect
to
timing
of
reductions,
the
following
table
shows
how
summertime
NOx
reductions
from
local
CAIR
sources
that
will
be
achieved
by
May
1,
2009,
or
earlier
can
assist
in
demonstrating
RFP.

Type
of
8­
hour
nonattainment
area
RFP
Requirement*
Relationship
of
CAIR
and
RFP
­­
Subpart
1
areas
with
attainment
dates
within
5
years
of
designation;
­­
Subpart
2
moderate
areas
for
which
expeditious
attainment
is
no
later
than
5
years
after
designation.
Meet
RFP
through
showing
of
expeditious
attainment
CAIR
reductions
not
required
prior
to
ozone
season
preceding
latest
attainment
date.

Subpart
1
areas
with
attainment
dates
6­
10
years
from
designation
Must
demonstrate
RFP
through
their
attainment
date
CAIR
reductions
in
2009
can
help
fulfill
RFP
requirement
Subpart
2
marginal
areas
No
subpart
2
RFP
requirement
for
marginal
areas
Not
applicable.

Subpart
2
moderate
areas
with
an
attainment
date
later
than
5
years
after
designation.
Subject
to
RFP
similar
to
subpart
1
areas;
must
demonstrate
RFP
through
their
attainment
date
CAIR
NOx
reductions
in
2009
can
help
fulfill
RFP
requirement
PREDECISIONAL
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Type
of
8­
hour
nonattainment
area
RFP
Requirement*
Relationship
of
CAIR
and
RFP
118
Subpart
2
moderate­
and­
above
areas
that
did
not
implement
15%
VOC
reductions
for
1­
hour
ozone
standard
15%
VOC
reduction
required
between
2002
and
2008;
continued
progress
required
through
attainment
date
CAIR
2009
NOx
reductions
can
help
demonstrate
continued
progress
after
2008
to
attainment
date
*
RFP
requirement
descriptions
in
table
are
abbreviated;
RFP
requirements
are
more
precisely
described
elsewhere
in
preamble
and
rule
text.

The
CAIR
provisions
do
not
require
States
to
require
emissions
reductions
prior
to
January
1,
2009.
However,

States
may
choose
to
require
or
some
sources
may
elect
to
apply
CAIR­
level
NOx
controls
earlier
than
that
date.
If
such
controls
are
made
enforceable
in
the
SIP
(
e.
g.,
through
a
specific
rule),
the
State
may
take
RFP
credit
for
such
emissions
reductions
for
the
RFP
period
(
i.
e.,
an
RFP
period
ending
earlier
than
December
31,
2008)
during
which
the
reductions
occur.

The
RFP
provisions
in
the
CAA
for
both
subpart
1
and
subpart
2
areas
require
that
actual
emissions
be
reduced
from
the
baseline
by
the
milestone
year.
Only
emissions
reductions
required
to
be
achieved
during
an
RFP
period
may
be
credited
toward
the
State's
RFP
obligation
for
that
period.
In
developing
their
RFP
plans,
States
will
have
to
provide
their
best
estimate
of
the
CAIR­
affected
sources
PREDECISIONAL
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draft
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05
119
that
are
expected
to
actually
reduce
emissions
to
meet
the
CAIR
requirements
and
those
that
are
expected
to
meet
CAIR
through
holding
allowances
and
not
actually
reducing
emissions.

Local
CAIR
NOx
reductions
that
States
must
require
by
May
1,
2015,
could
assist
in
meeting
RFP
for
an
area
that
is
bumped
up
to
severe
and
demonstrates
attainment
cannot
be
achieved
before
the
end
of
the
2015
ozone
season.

b.
Summary
of
final
RFP
features
We
are
adopting
nearly
all
the
approaches
set
forth
in
our
proposed
rule
for
the
various
8­
hour
RFP
issues.
We
are
making
exceptions
where
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
reflects
the
concepts
in
the
original
proposal.
The
issues
for
which
we
have
adopted
approaches
that
vary
from
the
proposal
are:
a)
the
timing
of
the
submission
of
the
RFP
plan;
b)
the
structuring
of
RFP
requirements
in
subpart
1
areas;
c)
the
implementation
of
RFP
in
areas
designated
for
the
8­
hour
ozone
standard
that
entirely
or
in
part
encompass
an
area
that
was
designated
nonattainment
for
the
1­
hour
ozone
standard;
and
d)
the
substitution
of
controls
from
outside
the
nonattainment
area
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34Memorandum
of
December
29,
1997
from
Richard
D.
Wilson
to
Regional
Administrators,
Regions
I­
X
re
"
Guidance
for
Implementing
the
1­
Hour
Ozone
and
Pre­
Existing
PM10
NAAQS."
Located
at
URL:
http://
www.
epa.
gov/
ttn/
oarpg/
t1/
memoranda/
iig.
pdf.
This
policy
recognized
that
VOC
emissions
up
to
100
km
and
NOx
emissions
up
to
200
km
from
the
nonattainment
area
could
be
relied
on
for
RFP.
Those
distances
resulted
from
Federal
Advisory
Committee
Act
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
120
within
100
kilometers
(
km)
for
VOC
and
200
km
for
NOx.
These
changes
are
discussed
in
the
sections
below.

In
developing
an
approach
for
addressing
the
RFP
requirements
for
the
8­
hour
ozone
standard,
we
are
adopting
the
following:

°
The
same
baseline
year
would
be
used
both
to
address
growth
(
in
emissions,
vehicle
miles
traveled
(
VMT)
or
otherwise)
and
to
calculate
the
RFP
target
level.
The
baseline
year
of
2002
applies
for
areas
with
an
8­
hour
ozone
nonattainment
designation
effective
in
June
2004.

°
Emissions
reductions
from
outside
the
nonattainment
area
up
to
100
km
for
VOC
and
200
km
for
NOx
(
and
statewide
for
areas
that
are
part
of
a
regional
strategy)
would
be
allowed
consistent
with
(
a)
the
concepts
in
EPA's
existing
December
1997
interim
implementation
policy
for
1­
hour
ozone
NAAQS34,
and
(
b)
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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.

121
with
the
constraint
that
in
all
cases
the
distances
in
the
policy
provide
only
a
general
policy
presumption
that,
if
used,
would
need
data
in
the
record
showing
that
reductions
from
sources
in
the
specific
locations
outside
the
nonattainment
area
benefit
the
nonattainment
area.
This
is
discussed
further
below
in
section
IV.
E.
12.
of
this
preamble.

°
For
all
8­
hour
nonattainment
areas
classified
under
subpart
2
as
moderate
and
above
that
had
not
met
the
15
percent
VOC
emission
reduction
requirement
for
the
1­

hour
standard,
the
RFP
requirements
specified
in
subpart
2
would
apply,
namely
a
15
percent
VOC
emission
reduction,
accounting
for
growth,
in
the
first
6
years
after
the
baseline
year
for
moderate
and
above
ozone
nonattainment
areas.
In
addition,
for
all
8­
hour
nonattainment
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
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122
182(
c)(
2)(
B)].

°
Areas
classified
under
subpart
2
as
moderate
that
had
met
the
15
percent
VOC
emission
reduction
requirement
for
the
1­
hour
standard
are
treated
in
the
final
rule
like
areas
covered
under
subpart
1.

°
Areas
classified
under
subpart
2
as
serious
and
above
that
had
met
the
15
percent
VOC
emission
reduction
requirement
for
the
1­
hour
standard
would
be
subject
to
the
RFP
requirement
in
section
172(
e)
and
the
final
rule
would
require
them
to
obtain
an
average
of
3
percent
annual
reductions
of
VOC
and/
or
NOx
emissions
reductions
for
the
first
6
years
after
the
baseline
year
and
every
subsequent
3
years
out
to
their
attainment
date.

°
The
periods
for
RFP
under
subpart
2
for
the
8­
hour
ozone
NAAQS
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
(
e.
g.,
January
1,
2003
­

December
31,
2008).
The
first
3­
year
period
for
the
subsequent
(
average
of)
three
percent
per
year
emission
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35With
today's
rulemaking,
this
provision
is
now
codified
as
40
CFR
§
51.908(
d).

123
reduction
requirement
in
serious
and
higher
areas
would
begin
6
years
after
the
end
of
the
last
day
of
the
baseline
year
(
e.
g.,
January
1,
2009
­
December
31,

2011).
However,
the
last
period
for
any
area
would
end
on
the
attainment
date
for
the
area.

°
Subpart
1
areas
with
attainment
dates
5
years
or
less
after
designation
can
meet
the
RFP
requirement
by
achieving
the
emission
reductions
necessary
to
attain
as
expeditiously
as
practicable.
These
emissions
reductions
must
be
implemented
by
the
beginning
of
the
full
ozone
season
prior
to
the
attainment
date
(
See
40
CFR
§
51.908).
35
For
subpart
1
areas
with
attainment
dates
beyond
5
years
after
designation,
the
RFP
SIP
must
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.
The
increment
for
each
3­
year
period
would
be
a
portion
of
the
remaining
emission
reductions
needed
for
attainment
beyond
those
reductions
achieved
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36For
example,
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,
the
"
annual
increment"
would
be
5
percent
(
i.
e.,
1/
6
of
30
percent).
Thus,
the
area
must
achieve
roughly
the
portion
of
reductions
equivalent
to
three
annual
increments
or
15
percent
during
the
first
3
years
(
2009,
2010,
2011),
and
the
remaining
amount
over
the
next
3
years
(
2012,
2013,
2014).
Additional
discussion
of
what
is
meant
by
"
roughly
proportional"
appears
in
the
full
discussion
of
RFP
for
subpart
1
areas
in
section
IV.
E.
7.
of
this
preamble.

124
for
the
first
increment
of
progress
(
e.
g.,
beyond
2008
for
areas
designated
nonattainment
in
June
2004).

Specifically,
the
amount
of
reductions
needed
for
attainment
should
be
divided
by
the
number
of
years
needed
for
attainment
after
the
first
increment
of
progress
in
order
to
establish
an
"
annual
increment."

For
each
3­
year
period
out
to
the
attainment
date,
the
area
must
achieve
roughly
the
portion
of
reductions
equivalent
to
three
annual
increments.
36
°
Subpart
2
moderate
or
higher
areas
that
had
not
met
the
15
percent
VOC
reduction
requirement
under
the
1­
hour
standard
would
be
subject
to
section
182(
b)(
1)
for
the
8­
hour
standard
and
would
need
to
obtain
the
emissions
reductions
within
6
years
after
the
baseline
year
(
e.
g.,
for
areas
designated
in
June
2004,
the
reductions
would
need
to
occur
by
the
end
of
2008,
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125
based
on
a
baseline
year
2002).

°
Reductions
from
any
Federal
and
regional
measures
promulgated
after
1990
(
except
those
measures
that
were
not
creditable
under
the
CAAs
creditability
provisions
(
section
182(
b)(
1)(
D))
and
achieved
after
the
baseline
year
are
creditable
for
the
RFP
requirement.

°
Allow
use
of
the
"
Clean
Data
Policy."

c.
Comments
and
responses
This
set
of
comments
and
responses
on
our
proposal
on
RFP
are
of
a
general
nature.
Comments
and
responses
on
specific
topics
appear
with
the
sections
below
on
those
topics.

Comment:
One
commenter
stated
that
EPA's
proposed
8­

hour
ozone
rule
would
sharply
slow
momentum
to
implement
health
protective
emission
reduction
strategies
in
areas
with
unhealthful
air
quality.
It
would
curtail
the
effectiveness
of
transportation
conformity
in
areas
with
inadequate
air
quality,
including
both
old
and
new
ozone
nonattainment
areas.
It
would
do
this
by
proposing
to
eliminate
any
further
RFP
requirements
for
pollution
reduction
in
existing
1­
hour
ozone
areas.

Response:
The
EPA
has
developed
anti­
backsliding
provisions
to
ensure
continuing
progress
toward
attainment
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126
of
the
ozone
NAAQS.
Under
these
provisions,
areas
that
are
nonattainment
for
the
8­
hour
standard
must
continue
to
meet
most
obligations
for
the
1­
hour
standard,
including
RFP
requirements.
Those
provisions
(
adopted
as
part
of
the
Phase
1
Rule
published
April
30,
2004)
will
ensure
areas
maintain
progress
in
achieving
emissions
reductions
in
areas
with
unhealthful
air
quality.
Additionally,
8­
hour
ozone
nonattainment
areas
with
attainment
dates
later
than
5
years
after
designation
must
meet
specified
increments
of
reductions
as
provided
in
more
detail
below.

Comment:
Another
commenter
recommends
that
EPA
not
strictly
interpret
the
CAA
requirement
of
a
15
percent
reduction
in
VOC
in
the
first
6
years.
If
reductions
in
VOC
would
not
assist
the
area
in
progress
toward
attainment
and
if
an
area
can
provide
an
analysis
that
it
is
at
least
as
sensitive
to
NOx
controls,
then
the
area
should
be
able
to
reduce
NOx
emissions
for
RFP
requirements.

Response:
We
addressed
in
general
those
comments
that
recommended
alternatives
to
the
mandatory
measures
of
subpart
2
(
which
includes
the
RFP
requirement)
in
the
response
to
comments
above
under
the
topic,
"
Should
prescribed
requirements
of
subpart
2
apply
in
all
8­
hour
nonattainment
areas
classified
under
subpart
2,
or
is
there
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127
flexibility
in
application
in
certain
narrowly­
defined
circumstances?"
We
conclude
in
that
section
that
EPA
has
no
discretion
to
broadly
waive
mandatory
requirements.

However,
we
noted
that
case
law
may
provide
support
for
case­
by­
case
waivers
where
implementation
of
a
measure
would
produce
an
absurd
result.

Comment:
One
commenter
stated
that
EPA
should
consider
highly
reactive
VOC
reductions
that
achieve
ozone
reductions
equivalent
to
an
average
of
3
percent
per
year
reduction
of
VOC
and/
or
NOx
as
meeting
RFP
requirements.

Response:
The
CAA's
RFP
provisions
do
not
appear
to
provide
for
variations
in
the
required
percent
reduction
in
VOC
based
on
differences
of
reactivity
of
the
various
VOC
compounds.
However,
EPA
is
participating
with
a
group
called
the
Reactivity
Research
Working
Group,
along
with
representatives
from
States,
industry
and
universities,
to
study
the
scientific
aspects
of
reactivity
and
to
try
to
determine
if
more
cost­
effective
and
greater
ozone
reductions
can
be
achieved
through
use
of
the
concept.
The
requirement
to
obtain
the
required
percent
reduction
of
total
VOCs
remains,
and
if
EPA
decides
to
propose
a
change,

it
would
be
undertaken
in
a
separate
rulemaking
action.

2.
What
is
the
content
and
timing
of
the
plan
for
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128
addressing
the
RFP
requirements
under
section
182(
b)(
1)
and
182(
c)(
2)(
B)
for
areas
covered
under
subpart
2?

[
Section
VI.
I.
3
of
June
2,
2003
proposed
rule
(
68
FR
32833);
§
51.910(
a)(
1)(
ii)
of
the
draft
and
final
regulatory
text.]

a.
Background
Section
182(
b)(
1)
requires
areas
classified
as
moderate
and
above
to
submit
a
plan
to
achieve
a
15
percent
reduction
in
VOC
emissions
over
a
6­
year
period
following
the
baseline
year.
Section
182(
c)(
2)(
B)
requires
serious
and
above
areas
to
achieve
an
average
of
nine
percent
additional
emissions
reductions
for
each
subsequent
3­
year
period.
We
proposed
two
options
regarding
how
this
requirement
might
apply
for
purposes
of
implementing
the
8­
hour
NAAQS.

(
i)
Option
1.
Require
15
percent
VOC
reductions
within
6
years
after
the
baseline
year
for
all
areas
designated
moderate
and
above
for
the
8­
hour
ozone
NAAQS.
After
6
years,
all
serious
and
above
areas
would
be
required
to
achieve
a
nine
percent
reduction
in
VOC
and/
or
NOx
emissions
every
3
years,
i.
e.,
an
average
of
three
percent
per
year,

until
attainment.

(
ii)
Option
2.
For
those
areas
that
have
an
approved
15
percent
plan
for
their
1­
hour
ozone
SIPs,
an
additional
15
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129
percent
VOC
reduction
is
not
necessary.
Subpart
2
areas
that
have
approved
15
percent
plans
for
the
1­
hour
ozone
standard
would
be
considered
to
have
met
the
statutory
15
percent
requirement.
Instead,
such
an
area
that
is
classified
as
moderate
for
the
8­
hour
standard
would
be
subject
to
the
general
RFP
requirements
of
subpart
1
in
the
same
manner
as
subpart
1
areas.
Such
an
area
that
is
classified
as
serious
and
above
for
the
8­
hour
standard
would
be
subject
to
the
RFP
requirement
in
section
182(
c)(
2)(
B)
and
would
have
to
include
in
their
SIPs
an
RFP
plan
that
would
achieve
an
average
of
three
percent
per
year
of
VOC
and/
or
NOx
over
each
3­
year
period
starting
at
the
end
of
the
baseline
year
out
to
their
attainment
year.

We
recognized
in
the
proposal
that
for
serious
and
above
areas
it
would
be
difficult
to
adopt
and
implement
emission
controls
that
would
provide
for
the
first
nine
percent
emission
reduction
within
3
years
after
nonattainment
designation.
Therefore,
consistent
with
what
Congress
did
under
section
182(
b)(
1),
we
proposed
to
allow
the
first
RFP
increment
to
be
averaged
over
6
years.
We
proposed
that
an
area
classified
serious
or
above
submit
its
RFP
plan
within
2
years
after
designation
such
that
it
provides
for
18
percent
emissions
reductions
(
VOC
and/
or
NOx)
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130
over
the
first
6
years
from
the
baseline
year
(
e.
g.,
January
1,
2003
to
December
31,
2008
using
the
proposed
2002
baseline
year).
Then,
within
3
years
after
designation,

submit
a
plan
that
provides
9
percent
emissions
reductions
(
VOC
and/
or
NOx)
over
each
of
the
next
3­
year
periods
until
the
area's
attainment
date
(
e.
g.,
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.
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
ambient
ozone
levels.
Areas
do
not
have
the
flexibility
to
control
NOx
under
the
15
percent
requirement
 
NOx
substitution
is
only
allowed
under
section
182
for
the
post­

1996
RFP
requirement
(
three
percent
per
year
averaged
over
3
years).
We
believe
that
the
statute
can
be
interpreted
to
require
the
mandatory
15
percent
VOC
reduction
only
once
for
a
given
area.

Once
the
15
percent
VOC
reduction
requirements
have
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
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OR
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draft
11/
03/
05
131
been
met,
an
area
would
instead
be
subject
to
the
other
RFP
requirements
of
the
CAA.
In
some
cases,
such
as
for
serious
and
above
areas,
this
might
result
in
an
obligation
to
achieve
greater
emissions
reductions,
i.
e.,
18
percent
rather
than
15
percent
for
the
6­
year
period,
but
the
area
would
have
the
flexibility
to
choose
either
VOC
or
NOx
reductions
as
appropriate.
We
indicated
in
the
proposal
that
we
preferred
this
second
option
because
it
provides
more
flexibility
for
the
RFP
plan
to
be
consistent
with
the
area's
needs
in
attaining
the
standard.
The
draft
regulatory
text
incorporated
this
option.

The
proposal
did
not
specifically
address
an
8­
hour
area
that
is
partially
comprised
of
one
or
more
1­
hour
ozone
nonattainment
areas
with
approved
15
percent
plans
and
one
or
more
areas
that
were
not
previously
subject
to
the
15
percent
requirement.

b.
Summary
of
final
rule
We
are
adopting
the
second
option
described
in
the
Background
above,
as
adjusted
in
response
to
comment.

1.
Final
rule
for
8­
hour
areas
comprised
in
total
of
one
or
more
1­
hour
nonattainment
areas
with
approved
15
percent
plans
for
the
1­
hour
standard.

Those
8­
hour
areas
that
are
composed
entirely
of
one
or
PREDECISIONAL
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NOT
QUOTE,
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OR
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05
132
more
1­
hour
areas
that
have
approved
15
percent
plans
for
their
1­
hour
ozone
SIPs,
will
be
considered
to
have
met
the
15
percent
VOC
requirement
in
section
182(
b)(
1).
Such
areas
that
are
classified
as
moderate
would
instead
be
subject
to
the
more
general
RFP
requirements
of
subpart
1.
As
discussed
below,
the
subpart
1
requirement
would
depend
on
the
moderate
area's
attainment
date
as
follows:

°
Moderate
areas
that
have
an
attainment
date
of
5
years
or
less
after
their
8­
hour
designation,
for
which
all
portions
of
the
area
have
previously
met
their
15
percent
requirements
under
the
1­
hour
standard,
will
be
subject
to
subpart
1
RFP
requirements,
which
will
be
satisfied
with
measures
that
demonstrate
attainment
as
expeditiously
as
practicable.

°
Moderate
areas
that
have
an
attainment
date
beyond
5
years
after
their
8­
hour
designation,
for
which
all
portions
of
the
area
have
previously
met
their
15
percent
requirements
under
the
1­
hour
standard,
will
be
subject
to
subpart
1
RFP
requirements,
which
will
be
satisfied
with
a
plan
to
demonstrate
15
percent
emissions
reductions
(
which
may
be
either
VOC
or
NOx
or
a
combination
of
both)
from
2002
to
2008,
and
any
additional
emission
reductions
needed
for
attainment
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
37As
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).

133
beyond
2008.

Such
areas
that
are
classified
as
serious
or
above
would
be
subject
to
the
RFP
requirements
of
section
182(
c)(
2)(
B)
and
would
need
to
submit
a
plan
achieving
an
average
of
3
percent
reductions
per
year
over
the
6
years
following
the
baseline
year
and
then
an
average
of
3
percent
per
year
for
each
subsequent
3­
year
period
out
to
the
attainment
year.
37
2.
Final
rule
for
8­
hour
areas
comprised
in
part
of
one
or
more
1­
hour
attainment
areas
with
an
approved
15
percent
plan
for
the
1­
hour
standard
and
in
part
of
one
or
more
areas
without
approved
15
percent
plans
for
the
1­
hour
standard.

For
8­
hour
moderate
areas
that
include
all
or
part
of
one
or
more
1­
hour
areas
with
an
approved
1­
hour
15
percent
plan,
but
also
include
areas
that
were
not
subject
to
the
1­

hour
15
percent
plan,
the
final
rule
would
allow
the
area
to
choose
between
two
alternative
approaches
that
are
consistent
with
the
proposed
rule.

°
Approach
1.
Develop
a
new
baseline
and
new
8­
hour
15
PREDECISIONAL
DRAFT
 
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NOT
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OR
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draft
11/
03/
05
134
percent
VOC
ROP
emission
reduction
target
for
the
entire
8­
hour
area.
Emissions
reductions
that
occur
after
the
2002
baseline
emissions
inventory
year
are
creditable
except
as
limited
by
section
182,
as
described
elsewhere
in
this
final
rule.
The
reductions
must
be
of
VOC
only.

°
Approach
2.


Treat
the
8­
hour
nonattainment
area
as
divided
between
portions
of
the
area
that
are
subject
to
an
approved
15
percent
VOC­
only
plan
for
the
1­
hour
standard
and
the
portions
of
the
area
that
are
not
subject
to
a
15
percent
plan
for
the
1­
hour
standard.


For
those
areas
not
subject
to
an
approved
15
percent
plan
for
the
1­
hour
standard,
States
must
establish
a
separate
15
percent
VOC
target
under
subpart
2.
VOC
emissions
reductions
to
meet
the
15
percent
requirement
may,
however,
come
from
across
the
entire
8­
hour
nonattainment
area.


For
the
portion
of
the
area
with
an
approved
15
percent
plan
for
the
1­
hour
standard,
the
subpart
1
RFP
requirements
will
apply
if
the
area
is
classified
as
moderate
for
the
8­
hour
standard
and
the
section
182(
c)(
2)(
B)
RFP
requirement
will
apply
if
the
area
is
PREDECISIONAL
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OR
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draft
11/
03/
05
135
classified
as
serious
or
above
for
the
8­
hour
standard.

These
requirements
would
apply
as
described
above
for
areas
comprised
entirely
of
areas
with
approved
15
percent
plans
for
the
1­
hour
standard.

c.
Comments
and
responses
Comment:
One
commenter
expressed
concern
that
for
a
number
of
subpart
2
areas
that
were
nonattainment
for
the
1­

hour
standard,
especially
those
dominated
by
mobile
source
emissions
and/
or
those
with
existing
stringent
stationary
source
controls,
it
may
be
difficult
to
achieve
another
18
percent
precursor
emission
reduction
within
6
years
from
the
baseline
year
and
then
an
additional
3
percent
per
year
precursor
reduction
after
that
until
the
area's
attainment
date.
Specific
areas
were
mentioned
such
as
the
South
Coast
District
of
California
and
the
Houston­
Galveston
Area,
which
the
commenter
indicated
will
be
well
beyond
best
available
control
technology
(
BACT)
controls
and
in
some
cases
at
or
near
lowest
achievable
emission
rate
(
LAER)
NOx
controls
on
stationary
sources
making
them
dependent
on
mobile
source
fleet
turnover
for
SIP
RFP
emissions
reductions.
The
commenter
further
suggested
that
EPA
should
have
available
approved
policy
options
that
allow
areas
in
such
predicaments
to
maintain
approved
SIPs
if
additional
PREDECISIONAL
DRAFT
 
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draft
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03/
05
136
emissions
reductions
are
not
available
to
meet
RFP
requirements
and/
or
if
available
emission
reduction
techniques
might
be
counterproductive
to
other
local
and
regional
air
quality
goals.

Response:
We
addressed
in
general
those
comments
that
recommended
alternatives
to
the
mandatory
measures
of
subpart
2
(
which
includes
the
RFP
requirement)
in
the
response
to
comments
above
under
the
topic,
"
Should
prescribed
requirements
of
subpart
2
apply
in
all
8­
hour
nonattainment
areas
classified
under
subpart
2,
or
is
there
flexibility
in
application
in
certain
narrowly­
defined
circumstances?"
We
concluded
in
that
section
that
EPA
has
no
discretion
to
broadly
waive
mandatory
requirements.

However,
we
noted
that
case
law
may
provide
support
for
case­
by­
case
waivers
where
implementation
of
a
measure
would
produce
an
absurd
result.
Additionally,
we
note
that
section
182(
b)(
1)(
A)(
ii)
specifically
addresses
the
situation
where
an
area
demonstrates
that
it
cannot
achieve
the
required
15
percent
reduction.
It
provides
that
an
area
may
achieve
less
than
the
15
percent
VOC
reduction
required
where
the
State
demonstrates
(
1)
NSR
requirements
apply
as
they
would
in
an
area
classified
as
extreme
except
that
the
terms
"
major
source"
and
"
major
stationary
source"
shall
PREDECISIONAL
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DO
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draft
11/
03/
05
38Section
182(
c)(
2)(
B)(
ii)
also
contains
a
similar
RFP
provision
for
serious
and
higher
classified
areas
that
allows
less
than
3
percent
of
baseline
emissions
each
year
after
the
initial
15
percent
reduction
after
designation
and
classification.

137
include
any
source
with
the
potential
to
emit
at
least
5
tpy
of
VOCs;
(
2)
RACT
is
required
for
all
major
sources
(
i.
e.,
a
source
with
the
potential
to
emit
at
least
5
tons
per
year
of
VOCs;
and
(
3)
the
plan
includes
all
measures
that
can
feasibly
be
implemented
in
light
of
technological
achievability.
38
Comment:
Another
commenter
supported
EPA
in
recognizing
the
previous
efforts
of
areas
to
meet
ROP
requirements
under
the
1­
hour
standard.
The
commenter
concurred
with
EPA's
preferred
option,
which
allows
States
the
flexibility
to
choose
a
combination
of
NOx
and
VOC
strategies
to
meet
ROP/
RFP
requirements
consistent
with
an
area's
need
to
meet
the
standard.

Response:
We
agree
with
the
commenter
that
if
an
area
has
already
met
the
15
percent
VOC
emission
reduction
requirement
for
the
1­
hour
standard,
the
area
should
not
be
required
to
meet
that
requirement
a
second
time
for
the
8­

hour
standard
but
instead
will
be
subject
to
the
other
applicable
RFP
provisions
of
the
CAA.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
138
Comment:
One
commenter
preferred
Option
1
as
more
protective
of
air
quality
and
more
consistent
with
the
requirements
of
the
CAA.
Option
1
would
require
States
to
develop
RFP
plans
based
on
severity
and
local
situation.

Option
2
has
some
attractive
features
by
recognizing
progress
that
States
have
already
made.
This
commenter
believed
that
Option
2
is
problematic,
however,
because
it
relies
on
plans
developed
based
on
1990
to
1996
emissions.

This
time
period
has
passed.

One
commenter
believed
EPA
to
be
completely
without
authority
to
waive
the
15
percent
RFP
plan
requirement,

which
is
an
explicit
mandate
of
subpart
2.
A
15
percent
ROP
plan
under
the
1­
hour
standard
cannot
possibly
satisfy
the
15
percent
RFP
plan
obligation
for
the
8­
hour
standard,

because
the
new
RFP
requirement
is
designed
to
implement
a
revised
NAAQS
and
is
measured
from
a
different
baseline
year.
They
further
believe
that
EPA
offers
no
plausible
legal
rationale
for
waiving
the
15
percent
ROP
requirement,

and,
indeed,
none
exists.
Moreover,
although
the
agency
proposed
to
require
RFP
demonstrations
for
the
first
6
years
for
serious
and
severe
areas,
there
is
no
lawful
or
rational
basis
for
exempting
moderate
areas
from
this
statutory
requirement.
Allowing
States
to
rely
on
their
1­
hour
15
PREDECISIONAL
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DO
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OR
DISTRIBUTE
draft
11/
03/
05
139
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)
for
the
1­

hour
standard,
they
will
not
have
to
meet
it
again
for
the
8­
hour
standard.
The
EPA
believes
that
the
CAA
is
quite
clear
that
the
SIP
must
provide
for
a
15
percent
reduction
in
baseline
VOC
emissions
for
some
period
after
1990
in
an
area
subject
to
section
182(
b)(
1)(
A),
and,
consequently,
the
SIP
for
any
area
newly
subject
to
section
182(
b)(
1)(
A)
must
provide
for
a
15
percent
reduction
in
VOC
baseline
emissions.
But,
EPA
disagrees
that
the
CAA
plainly
requires
that
the
SIP
for
an
area
must
require
a
second
15
percent
reduction
in
VOC
baseline
emissions
under
a
revised
ozone
standard.
The
EPA
believes
that
section
182(
b)(
1)(
A)
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
and
further
limits
our
discretion
to
allow
NOx
substitution
for
the
15
percent
RFP
demonstration
PREDECISIONAL
DRAFT
 
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OR
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draft
11/
03/
05
140
requirement
under
section
182(
b)(
1)(
A).

If
serious
and
above
areas
have
already
met
the
15
percent
requirement
under
the
1­
hour
standard,
they
must
meet
the
next
RFP
requirement,
namely,
the
section
182(
c)(
2)(
B)
RFP
requirement,
which
will
actually
achieve
greater
reductions,
i.
e.,
3
percent
per
year
over
6
years
for
a
total
of
18
percent,
but
they
can
meet
it
with
either
VOC
or
NOx
reductions.
For
moderate
areas
that
have
already
met
the
15
percent
VOC
emission
reduction
requirement
for
the
1­
hour
standard,
EPA
believes
appropriate
RFP
under
subpart
1
should
be
achieved.
For
purposes
of
RFP
under
subpart
1,
there
is
nothing
that
limits
such
reductions
to
VOC.
This
provision
simply
requires
reasonable
annual
incremental
reductions
towards
attainment
by
the
applicable
attainment
date,
and
this
could
be
achieved
by
either
VOC
or
NOx
emissions
reductions
or
a
combination
of
both.

Section
182(
b)(
1)(
A)
is
the
only
statutory
provision
that
limits
State
discretion
to
substitute
NOx
reductions
for
VOC
reductions.
This
applies
only
for
purposes
of
the
initial
15
percent
reduction
requirement
for
the
6­
year
period
after
the
baseline
year.

Comment:
Another
commenter
believed
the
subpart
2
provisions
of
the
CAA
do
not
allow
for
NOx
for
VOC
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
141
substitutions
for
the
initial
15
percent
RFP
requirements.

Response:
We
agree
that
the
15
percent
requirement
in
section
182(
b)(
1)
does
not
allow
the
substitution
of
NOx
for
VOC.
However,
the
RFP
requirements
in
section
172(
c)(
2)
and
182(
c)(
2)(
B)
are
not
constrained
by
that
limitation
and
either
VOC
or
NOx
emissions
reductions
may
be
counted
toward
meeting
RFP
under
those
two
provisions.

Comment:
Some
commenters
believed
an
additional
15
percent
VOC
reduction
should
not
be
necessary
for
8­
hour
areas
that
encompass
in
whole
or
in
part
a
1­
hour
nonattainment
area
with
an
approved
15
percent
plan.
Such
areas
should
simply
be
required
to
achieve
whatever
NOx
or
VOC
emissions
reductions
are
needed
for
attainment.

One
commenter
noted
that
the
proposed
§
51.910(
a)(
ii)

did
not
address
all
boundary
change
scenarios
consistent
with
our
proposed
approach
found
in
section
VI.
I.
9.
of
the
June
2,
2003
proposed
rule
(
68
FR
32835).

Response:
We
agree
with
the
commenter
that
an
area
with
an
approved
15
percent
plan
for
the
1­
hour
standard
is
not
required
to
adopt
a
second
15
percent
plan
under
section
182(
b)(
1)
for
purposes
of
the
8­
hour
standard.
However,
if
a
portion
of
the
8­
hour
area
was
not
subject
to
an
approved
15
percent
plan
for
the
1­
hour
standard,
section
182(
b)(
1)
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
142
applies
to
that
portion
of
the
8­
hour
area
and
may
be
met
by
one
of
two
approaches
described
above
and
in
the
regulatory
text.
We
agree
with
the
second
commenter
who
noted
that
the
proposed
rule
did
not
explicitly
address
all
possible
boundary
scenarios;
we
believe
we
have
fully
addressed
these
different
boundary
scenarios
in
the
final
rule
in
a
manner
consistent
with
the
proposal.

Comment:
A
commenter
indicated
that
they
preferred
to
work
with
EPA
in
the
development
of
an
alternative
that
will
eliminate
or
minimize
the
planning
burdens
associated
with
development
of
a
15
percent
RFP
plan
for
one
town.
One
alternative
might
be
the
development
of
a
"
comparability
demonstration,"
showing
that
the
town
had
implemented
the
same
controls
that
had
been
previously
responsible
for
achieving
a
15
percent
reduction
in
VOCs
in
the
l­
hour
ozone
nonattainment
area
associated
with
the
8­
hour
nonattainment
area
including
this
town.

Response:
We
are
willing
to
work
with
individual
areas
as
they
develop
their
8­
hour
15
percent
plans
and
to
help
them
avoid
unnecessary
planning
burdens.
We
believe
that
the
portion
of
an
8­
hour
area
not
subject
to
an
approved
1­

hour
15
percent
plan
may
be
able
to
meet
the
15
percent
obligation
for
the
8­
hour
standard
if
the
area
adopts
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
143
same
VOC
control
measures
(
for
example,
VOC
RACT
at
the
same
source
thresholds,
I/
M,
etc...)
as
in
the
portion
of
the
8­

hour
nonattainment
area
subject
to
a
15
percent
plan
for
the
1­
hour
standard
and
if
the
area
has
the
same
mix
of
emissions
sources
as
in
the
area
subject
to
the
15
percent
plan
for
the
1­
hour
standard.
We
anticipate
we
could
propose
approval
of
a
SIP
on
this
basis
where
supported
by
the
record.

Comments
on
draft
regulatory
text
Comment:
Another
commenter
generally
supported
the
RFP
provisions
but
suggested
that
in
section
51.910(
a)(
1)(
ii)(
A)

of
the
draft
regulatory
text,
we
insert
the
language
shown
in
bold:

"
An
area
classified
as
moderate
or
higher
that
has
the
same
boundaries
as
an
area
for
which
EPA
fully
approved
a
15
percent
plan
for
the
1­
hour
NAAQS
is
not
subject
to
section
182(
b)(
1)
of
the
CAA
for
the
8­
hour
NAAQS,
but
instead
 
(
A)
If
classified
as
moderate,
is
subject
to
RFP
under
section
172(
c)(
2)
of
the
CAA
and
shall
meet
that
obligation
by
submitting
3
years
after
the
effective
date
of
its
designation
a
SIP
revision
that
provides
for
implementation
of
all
emission
reductions
of
VOCs
and/
or
NOx
needed
for
attainment
by
the
beginning
of
the
ozone
season
in
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
144
area's
attainment
year."
The
commenter
claimed
this
language
is
consistent
with
the
approach
EPA
has
taken
in
other
provisions
of
this
draft.

Response:
The
commenter's
concern
is
noted.
Section
51.910
has
been
restructured
for
reasons
noted
elsewhere
in
this
preamble
and
it
addresses
the
commenter's
concern.

Comment:
One
commenter
suggested
that
§
51.910(
a)(
3)
of
the
draft
regulatory
text
be
revised
to
allow
(
even
if
conditional)
NOx
reductions
to
be
substituted
for
VOC
reductions
(
for
any
ROP
or
RFP
requirement)
whenever
such
reductions
would
"
result
in
a
reduction
in
ozone
concentrations
at
least
equivalent
to
that
which
would
result
from
the
amount
of
VOC
emission
reductions
required."

Response:
As
noted
above,
we
do
not
believe
the
CAA
allows
substitution
of
NOx
for
VOC
to
meet
the
15
percent
requirement
of
section
182(
b)(
1).

Comment:
One
commenter
stated
that
draft
§
51.910(
a)(
1)(
ii)
eliminates
the
15
percent
requirement
for
areas
that
have
already
achieved
this
requirement
under
the
8­
hour
standard
and
supported
that
change.
However,
they
further
state
that
the
strict
criteria
of
"
same
boundaries"

should
be
revisited
because
there
may
be
limited
changes
in
the
nonattainment
areas
"
boundaries"
when
areas
are
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
145
designated
for
the
8­
hour
standard.
Such
changes
should
not
negate
this
provision.
A
broader
definition
needs
to
apply
to
this
section
to
allow
for
changes
to
boundaries
in
nonattainment
areas
between
1­
hour
and
8­
hour
designations
where
such
changes
do
not
substantially
alter
the
geographical
or
population
characteristics
for
the
area.

Another
commenter
supports
an
exemption
for
8­
hour
nonattainment
areas
that
have
met
the
15
percent
ROP
requirement
for
the
1­
hour
NAAQS.
The
commenter
requests
that
EPA
clarify
the
criteria
that
the
area
must
have
the
same
geographic
boundaries
to
qualify
for
the
exemption.

This
means
that
in
the
geographic
areas
for
which
a
State
has
an
approved
15
percent
plan,
the
15
percent
requirement
will
not
apply,
and
the
15
percent
requirement
is
only
intended
to
apply
to
the
new
geographic
areas
of
the
8­
hour
nonattainment
area,
and
that
the
15
percent
reduction
of
emissions
from
the
new
areas
could
come
from
the
entire
nonattainment
area
to
satisfy
this
requirement.

Response:
As
we
explain
in
our
summary
of
the
final
rule,
we
have
recognized
that
there
are
a
variety
of
boundary
scenarios
for
8­
hour
nonattainment
areas
in
relation
to
the
boundaries
of
areas
for
the
1­
hour
standard.

We
have
modified
the
draft
regulatory
text
such
that
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
146
final
rule
speaks
in
terms
of
8­
hour
areas
that
include
all
or
part
of
an
area
with
an
approved
15
percent
plan
for
the
1­
hour
standard.
For
those
portions
of
the
8­
hour
area
with
an
approved
1­
hour
15
percent
plan,
the
8­
hour
area
is
not
required
to
develop
a
second
15
percent
plan
under
section
182(
b)(
1)
for
purposes
of
the
8­
hour
standard,
but
instead
will
be
subject
to
section
172(
c)(
2)
if
it
is
an
8­
hour
moderate
area
or
subject
to
section
182(
c)(
2)(
B)
if
it
is
classified
as
serious
or
above
for
the
8­
hour
standard.
If
the
8­
hour
area
includes
both
areas
that
were
subject
to
an
approved
15
percent
plan
for
the
1­
hour
standard
and
areas
that
were
not,
then
the
8­
hour
area
can
choose
whether
to
develop
a
section
182(
b)(
1)
15
percent
plan
for
the
entire
8­
hour
area
or
to
develop
a
182(
b)(
1)
plan
only
for
the
area
not
previously
subject
to
such
a
plan
and
to
treat
the
remaining
portions
of
the
area
under
section
172(
c)(
2)
or
182(
c)(
2)(
B),
as
described
above.

As
noted,
EPA
does
not
believe
the
statute
allows
it
to
relieve
any
area
that
has
not
already
met
the
15
percent
requirement
for
the
1­
hour
standard
from
the
obligation
to
meet
that
requirement
except
as
provided
in
section
182(
b)(
1)(
A)(
ii).

3.
What
baseline
year
should
be
required
for
the
emissions
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
39Memorandum
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.

147
inventory
for
the
RFP
requirement?

[
Section
VI.
I.
4.
of
June
2,
2003
proposed
rule
(
68
FR
32833);
§
51.909
of
the
draft
regulatory
text;
§
51.910(
d)
of
the
final
regulatory
text.]

a.
Background
The
baseline
inventory
for
RFP
(
under
subpart
2)
is
used
as
the
starting
point
for
the
determination
of
a
target
level
of
emissions
for
the
future
year
RFP
and
as
the
baseline
from
which
creditable
reductions
are
determined.

We
designated
ozone
nonattainment
areas
in
April
2004.

Under
the
"
Consolidated
Emissions
Reporting
Rule"
(
67
FR
39602;
June
10,
2002)
revised
emissions
inventories
are
required
for
the
years
2002
and
2005;
therefore,
we
proposed
to
require
use
of
the
2002
inventory
as
the
baseline
inventory
for
the
RFP
requirement.
This
would
be
the
most
recent
inventory
available
at
the
time
of
designation.
We
issued
a
memorandum
identifying
2002
as
the
anticipated
emissions
inventory
base
year
for
the
SIP
planning
process
to
address
the
8­
hour
ozone
and
the
PM2.5
standards.
39
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
148
b.
Summary
of
final
rule
As
set
forth
in
our
proposed
rule,
for
areas
designated
nonattainment
for
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.
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.
However,
in
response
to
several
comments,
we
are
allowing
States
the
option
of
justifying
the
use
of
an
alternative
baseline
inventory
year
for
RFP.
To
justify
an
alternative,
the
State
would
have
to
demonstrate
how
the
alternative
year
meets
the
CAA's
provisions
for
RFP
and
provide
a
rationale
for
why
it
is
appropriate
to
use
the
alternative
baseline
year
rather
than
2002
to
comply
with
the
CAA's
RFP
provisions.
We
believe
that
for
multi­
State
nonattainment
areas,
several
States
must
agree
on
a
single
baseline.
Even
if
a
State
chooses
an
alternative
baseline
inventory
year
for
RFP,
2002
remains
the
valid
baseline
year
for
transportation
conformity
purposes
as
described
in
40
CFR
93.119.
The
baseline
year
test
is
used
only
in
conformity
determinations
prior
to
the
submission
of
a
SIP
that
establishes
motor
vehicle
emissions
budgets
(
e.
g.,
an
RFP
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
149
SIP).
Therefore,
areas
using
the
baseline
year
test
would
continue
to
use
2002
as
the
baseline
year
for
conformity
purposes
because
an
area's
baseline
year
would
not
be
changed
until
an
RFP
SIP
is
submitted.
Once
an
RFP
SIP
is
submitted
and
the
motor
vehicle
emissions
budgets
in
that
SIP
are
found
adequate
or
are
approved
the
area
would
no
longer
use
the
baseline
year
test.
Instead
the
area
would
use
the
adequate
or
approved
budgets
in
the
RFP
SIP
in
conformity
determinations.

The
baseline
emissions
inventory
is
calculated
as
of
the
effective
date
of
an
area's
nonattainment
designation
using
the
most
recent
calendar
year
for
which
a
complete
inventory
is
required
to
be
submitted
to
EPA
under
subpart
A
of
40
CFR
part
51,
subpart
A.
Under
40
CFR
part
51,
subpart
A,
States
are
required
to
submit
a
comprehensive
inventory
on
3­
year
cycles
within
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
reporting
period,
i.
e.,
was
due
by
June
1,
2004.
For
those
areas
designated
nonattainment
for
the
8­
hour
ozone
NAAQS
effective
June
15,
2004
(
69
FR
23858;
April
30,
2004),
the
baseline
emissions
inventory
should
be
based
on
the
calendar
year
2002
because
the
2002
inventory
was
due
under
40
CFR
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
40For
example,
where
the
effective
date
of
designation
to
nonattainment
for
an
area
for
the
8­
hour
ozone
NAAQS
is
after
June
1,
2007
but
before
June
1,
2010,
the
baseline
inventory
will
be
for
calendar
year
2005.

150
part
51,
subpart
A,
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.
40
As
provided
above,
the
State
may
use
an
alternative
baseline
only
if
it
is
demonstrated
that
it
is
consistent
with
the
CAA
and
the
State
demonstrates
why
it
is
necessary.

c.
Comments
and
responses
Comment:
Some
commenters
agreed
there
is
a
reasonable
basis
to
select
2002
as
the
date
of
emissions
inventories
for
the
purpose
of
establishing
creditable
reductions
from
the
inventory.
States
are
not
required
by
the
CAA
to
adopt
the
year
of
the
nonattainment
designation
for
the
8­
hour
standard
as
the
basis
for
their
planning,
even
though
that
was
the
case
under
the
1990
CAA
Amendments.
The
commenter
claims
there
are
a
variety
of
measures
that
would
be
implemented
after
2002
that
local
jurisdictions
would
like
to
be
able
to
account
for
as
new
emissions
reductions
in
their
modeling
demonstrations.
The
commenter
thus
believes
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
151
that
reductions
between
these
years
"
should
count."
In
addition,
this
was
the
most
recent
quality
assured/
quality
controlled
inventory
used
to
support
the
States'

recommendations
for
proposed
nonattainment
designations
on
July
15,
2003.

Several
commenters
recommended
that
the
baseline
year
(
starting
the
6­
year
period
for
RFP)
be
set
for
the
year
in
which
designations
were
made
(
i.
e.,
2004).

Response:
The
EPA
has
decided
to
establish
2002
as
the
baseline
year
for
RFP
SIPs
in
conformity
with
both
the
language
of
the
CAA
and
the
inventory
year
cycle.
Of
reasonable
importance
is
the
need
to
maintain
consistency
with
the
periodic
inventory
for
use
in
various
milestone
considerations
such
as
RFP,
milestone
compliance
demonstration,
attainment,
and
contingency
plans.
In
addition,
while
there
would
be
a
difference
in
the
RFP
requirement
based
on
the
choice
of
the
RFP
baseline,
there
should
be
little
if
any
difference
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
emissions
reductions
from
federally
enforceable
control
measures.
If
we
use
2004,
the
baseline
may
be
lower
but
areas
can't
take
credit
for
measures
that
PREDECISIONAL
DRAFT
 
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NOT
QUOTE,
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draft
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03/
05
152
produce
emissions
reductions
between
2002­
2004.
Depending
on
the
area,
the
difference
should
be
minimal
in
terms
of
the
difference
in
the
amount
of
reductions
needed
to
reach
attainment
and
what
new
measures
are
necessary
to
get
there.

We
believe
it
is
reasonable
to
select
an
inventory
year
for
which
States
were
already
required
to
produce
an
inventory
rather
than
requiring
States
to
produce
an
additional
inventory
(
e.
g.,
for
2004)
that
is
not
otherwise
required.
Moreover,
requiring
the
use
of
an
inventory
for
the
designation
year
would
cause
delay,
as
it
would
take
the
States
1­
2
years
after
the
end
of
2004
to
produce
the
inventory
which
would
be
the
basis
for
selecting
controls
to
achieve
the
necessary
reductions
for
RFP
and
for
modeling
attainment.
However,
we
are
allowing
States
the
option
of
justifying
the
use
of
an
alternative
baseline
emission
inventory,
provided
it
meets
the
requirement
of
the
CAA's
RFP
provisions.
As
noted
above,
the
use
of
an
alternative
year
for
the
baseline
inventory
for
RFP
does
not
change
the
requirement
to
use
2002
as
the
baseline
year
for
transportation
conformity
as
described
in
40
CFR
93.119.

Comment:
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.
PREDECISIONAL
DRAFT
 
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OR
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draft
11/
03/
05
153
They
stated
that
EPA
is
missing
the
point
in
that
the
attainment
and
RFP
submission
dates
established
in
subpart
2
are
to
allow
States
a
sufficient
amount
of
time
to
achieve
the
mandated
goals.

That
commenter
referred
to
another
alternative
that
would
amend
the
proposal
to
require
a
1990,
rather
than
2002
baseline
for
those
areas
not
having
a
previously­
approved
15
percent
RFP
plan.
They
further
commented
that
although
a
1990
baseline
would
not
eliminate
the
planning
burden
associated
with
this
requirement,
it
would
go
far
towards
minimizing
the
necessary
additional
work.

Response:
We
disagree
with
the
commenters
who
urged
use
of
the
1990
inventories
as
the
baseline
for
planning
for
the
8­
hour
NAAQS.
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
CAA
Amendments
and
therefore
may
not
exist
for
a
number
of
areas
that
are
currently
designated
nonattainment
for
the
8­

hour
standard.
Finally,
we
believe
that
reliance
on
emissions
reductions
that
may
have
occurred
well
before
8­

hour
designations
and
classifications
should
not
be
counted
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
154
as
making
progress
toward
attainment.

Comment:
Another
commenter
noted
that
the
18
percent
reduction
for
serious
areas
would
have
to
be
achieved
by
2008.
This
is
6
years
after
the
base
year.
The
commenter
noted
that
the
2
years
that
would
remain
after
SIP
submission
(
from
the
proposed
SIP
due
date
of
2006
until
2008)
would
be
totally
inadequate
to
achieve
either
the
15
percent
reduction
in
VOCs
or
the
18
percent
reduction
in
VOCs
and/
or
NOx.
The
commenter
noted
the
CAA
provides
for
submission
of
RFP
plans
within
3
years
(
from
1990)
in
section
182(
b)(
1)(
A)
and
4
years
in
section
182(
c)(
2).

Response:
The
final
rule
reflects
a
change
from
the
proposal
to
allow
submission
of
the
RFP
plan
up
to
3
years
from
the
date
of
designation.
We
do
not
believe
the
RFP
provisions
of
subpart
2
of
the
Act
provides
relief
from
the
requirement
to
obtain
the
specified
percent
reductions
from
the
RFP
baseline
within
the
time
constraints
specified
in
those
provisions.

Comment:
A
comment
on
draft
regulatory
text
§
51.909
noted
that
EPA
specified
various
program
milestone
dates,

which
were
derived
from
the
relationship
of
these
dates
to
the
expected
date
of
initial
designation.
The
commenter
recommends
deleting
all
such
specific
date
references
from
PREDECISIONAL
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DO
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QUOTE,
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OR
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draft
11/
03/
05
155
the
regulation,
to
avoid
the
need
for
revising
regulations
if
the
initial
designations
are
not
concluded
as
expected.

This
should
be
replaced
by
a
generic
approach,
for
example
by
requiring
the
most
recent
year's
data
to
be
used
as
the
baseline
in
the
second
sentence
of
§
51.909.
Deleting
the
calendar­
specific
dates
would
not
change
the
result
if
the
designations
occur
as
planned,
yet
would
allow
for
more
recent
data
to
be
used
if
factors
beyond
the
agency's
control
create
a
delay
in
designations.
This
approach
also
will
allow
the
regulation
to
apply
to
future
area
designation
changes,
such
as
areas
that
are
redesignated
nonattainment
at
some
point
in
the
future.
Such
specific
dates
are
more
appropriately
included
as
examples
in
agency
guidance
or
within
the
preamble
of
a
final
rule
with
a
discussion
of
how
they
are
derived.
The
regulation
itself
should
retain
only
the
generic
relationship
between
the
milestone
and
the
effective
date
of
designation,
which
is
the
approach
taken
elsewhere
in
the
rule.

Response:
Because
the
designations
have
already
taken
effect
at
this
point,
we
believe
it
is
appropriate
to
specify
2002
as
the
presumptive
baseline
year.
The
final
version
of
the
rule
(
now
§
51.910(
d))
provides
general
language
regarding
the
appropriate
baseline
year
for
areas
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
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OR
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draft
11/
03/
05
41We
note
that
even
though
the
draft
regulatory
text
was
structured
to
place
the
specification
of
the
baseline
year
for
RFP
(
as
well
as
for
attainment
demonstrations)
in
§
51.909,
the
final
rule
places
the
RFP
baseline
year
requirement
in
§
51.910.

156
that
have
an
effective
date
of
a
nonattainment
designation
in
the
future.
41
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
regulatory
text;
section
51.910(
a)(
1)(
i)
of
final
regulatory
text.]

a.
Background
As
noted
in
the
proposal,
for
areas
initially
classified
moderate
and
higher
for
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
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draft
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03/
05
157
Moderate
areas
would
be
required
to
meet
an
attainment
date
no
later
than
6
years
after
the
area
is
designated
nonattainment
for
the
8­
hour
standard.
Since
the
effective
date
of
designation
of
nonattainment
areas
is
June
15,
2004,

the
outside
statutory
attainment
date
would
be
June
15,

2010.
This
leaves
approximately
a
1­
1/
2
year
gap
between
the
end
of
the
6­
year
period
for
the
15
percent
RFP
requirement
(
i.
e.,
December
31,
2008)
and
the
maximum
statutory
attainment
date.
If
we
were
to
also
require
moderate
areas
to
obtain
an
additional
three
percent
per
year
emission
reduction
beyond
2008
for
the
1­
1/
2
additional
years
out
to
2010,
the
RFP
requirement
could
be
more
than
what
we
believe
Congress
intended
for
moderate
areas
under
subpart
2.
Additional
three
percent
per
year
reductions
were
only
required
for
serious
and
higher
classified
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),
which
requires
areas
to
meet
RFP
generally,
would
apply
for
any
period
for
which
RFP
is
not
addressed
in
subpart
2.
For
purposes
of
section
172(
c)(
2),

RFP
means
annual
incremental
reductions
as
may
be
required
by
the
Administrator
for
purposes
of
ensuring
attainment
PREDECISIONAL
DRAFT
 
DO
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CITE
OR
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draft
11/
03/
05
158
[
CAA
Section
171(
1)].
Therefore,
we
proposed
a
moderate
area
would
need
to
provide
any
additional
emissions
reductions
 
VOC
and/
or
NOx
 
needed
to
provide
for
attainment
by
the
area's
attainment
date.
In
proposing
this
approach
for
this
circumstance,
we
interpreted
the
subpart
1
RFP
requirement
to
mean
that
the
area
must
achieve
whatever
further
reduction
is
needed
for
attainment
in
the
remaining
period
prior
to
the
attainment
date
(
2009
through
June
15,

2010).

We
proposed
that
serious
and
higher
classified
areas
would
need
to
provide
in
their
SIPs
an
additional
average
of
three
percent
per
year
emission
reduction
over
each
subsequent
3­
year
period
beyond
the
initial
6­
year
period
through
the
attainment
year,
consistent
with
what
Congress
specified
in
section
182(
c)(
2)(
B)
of
the
CAA.

b.
Summary
of
final
rule
In
the
final
rule,
we
are
taking
the
approach
we
proposed.
We
are
not
prescribing
additional
increments
of
reductions
for
the
1­
1/
2
years
before
the
maximum
attainment
date
for
moderate
areas.
Such
areas
must
provide
for
any
additional
emissions
reductions
(
VOC/
NOx)
needed
to
provide
for
attainment
by
the
beginning
of
the
ozone
season
prior
to
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
42We
note
that
areas
must
implement
controls
prior
to
the
beginning
of
the
last
full
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.

159
the
area's
attainment
date.
42
Serious
and
higher
classified
areas
would
need
to
provide
in
their
SIPs
an
additional
average
of
three
percent
per
year
emission
reduction
over
each
subsequent
3­
year
period
beyond
the
initial
6­
year
period
through
the
attainment
year.

c.
Comments
and
responses
Comment:
One
commenter
suggested
that
following
the
statutory
timetable
rather
than
the
one
proposed
by
EPA
would
eliminate
the
problem
of
how
to
handle
the
"
1
½
year
gap
between
the
end
of
the
6­
year
period
for
the
15
percent
RFP
requirement
(
i.
e.,
December
31,
2008,
as
proposed
by
EPA)
and
the
attainment
date."
The
commenter
continued
by
saying
that
no
such
gap
is
contemplated
by
subpart
2,
which
provides
in
section
18l(
b)(
l)
that
moderate
areas'

attainment
dates
and
their
15­
percent
VOC
RFP
date
are
to
be
the
same:
6
years
after
their
designation
and
classification.

Response:
As
provided
in
an
earlier
response,
we
do
not
believe
the
CAA
requires
the
end
of
the
15
percent
RFP
PREDECISIONAL
DRAFT
 
DO
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CITE
OR
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draft
11/
03/
05
160
period
and
the
attainment
date
to
be
the
same.

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
reduce
VOC
and
NOx
emissions
as
necessary
to
attain
by
the
area's
attainment
date.

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

[
Section
VI.
I.
6
of
June
2,
2003
proposed
rule
(
68
FR
32834);
§
51.910
of
the
draft
and
final
regulatory
text
(
several
locations)].

a.
Background
PREDECISIONAL
DRAFT
 
DO
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draft
11/
03/
05
161
As
noted
in
the
proposal,
section
182(
b)(
1)
requires
that
moderate
and
higher
classified
areas
submit
their
15
percent
RFP
plans
within
3
years
after
1990.
Obviously,

applying
the
statute
as
written
is
absurd,
since
we
are
well
past
that
date.
The
CAA
uses
identical
language
for
identifying
areas'
attainment
dates
under
subpart
2.
In
our
Phase
1
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
the
area
has
an
effective
designation
in
2004),

the
plans
would
have
to
be
implemented
within
1
year
after
submission
to
ensure
the
15
percent
emissions
reductions
are
achieved
by
the
end
of
the
relevant
6­
year
period
(
i.
e.,

December
2008).
We
indicated
concern
that
this
might
not
provide
sources
with
sufficient
time
to
achieve
the
reductions
by
the
required
deadline.
Therefore,
we
proposed
that
the
RFP
SIP
be
submitted
within
2
years
after
nonattainment
designation
 
namely
by
2006
for
areas
designated
in
2004.
This
would
provide
for
2
years
for
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
11/
03/
05
162
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
within
2
years
after
designation
its
RFP
plan
that
provides
for
18
percent
emissions
reductions
(
VOC
and/
or
NOx)
over
the
first
6
years
from
the
baseline
year
and
then
submit
within
3
years
after
designation
a
RFP
plan
that
provides
nine
percent
emissions
reductions
(
VOC
and/
or
NOx)

over
each
of
the
next
3­
year
periods
until
the
area's
attainment
date.

b.
Summary
of
final
rule
In
the
final
rule,
we
are
taking
a
different
approach
than
proposed
in
light
of
concerns
raised
by
States
in
public
comments.
These
commenters
stated
that
they
would
need
more
than
2
years
for
development,
adoption
and
submission
of
RFP
plans
for
the
increment
of
progress
over
the
first
6
years
after
the
baseline
year.
The
EPA
agrees
with
the
several
commenters
who
urged
that
3
years
was
more
consistent
with
the
CAA.
Additionally,
3
years
is
a
more
reasonable
time
period
for
submission
because
it
allows
States
the
necessary
time
to
move
regulatory
actions
through
their
legislative
processes
and
allows
States
to
consider
RFP
in
conjunction
with
their
attainment
demonstrations.
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Therefore,
for
moderate
and
higher
classified
areas,
the
first
RFP
SIP
must
be
submitted
within
3
years
after
the
area's
nonattainment
designation.
For
areas
with
a
June
15,

2004
effective
date
for
the
8­
hour
designations,
the
SIP
would
be
due
by
June
15,
2007.
This
would
provide
up
to
3
years
for
States
to
develop
and
submit
RFP
plans,
and
1
additional
year
(
until
the
end
of
2008)
for
control
measures
to
be
implemented.
The
RFP
SIP
for
any
remaining
3­
year
periods
out
to
the
attainment
date
beyond
the
first
6
years
also
would
be
submitted
with
the
attainment
demonstration,

i.
e.,
within
3
years
after
designation.
However,
since
States
maintain
the
flexibility
to
submit
plans
early
to
provide
more
time
for
implementation
of
their
SIP
control
measures,
we
recommend
that
States
complete
their
RFP
plans
as
soon
as
possible
after
designation
to
provide
as
much
time
as
possible
for
sources
to
implement
the
emissions
reductions.
Furthermore,
States
may
also
begin
implementing
their
control
measures
before
submission
to
EPA
as
part
of
their
SIPs,
which
would
provide
additional
time
sources
may
need
to
comply.

c.
Comments
and
responses
Comment:
Several
commenters
opposed
EPA's
proposal
to
shorten
to
2
years
the
statutory
3­
year
period
for
PREDECISIONAL
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development
and
submittal
of
15­
percent
VOC
RFP
plans.
They
claim
this
proposal
violates
the
guarantee
of
3
years
for
plan
development
to
the
State
in
section
182(
b)(
l)(
A)
and
is
contrary
to
EPA's
basic
proposed
principle
that
[
quoting
from
the
proposal]
"
subpart
2
SIP
submittals
will
be
due
as
a
general
matter
by
the
same
period
of
time
after
designation
and
classification
under
the
8­
hour
standard
as
provided
in
subpart
2
for
areas
designated
and
classified
at
the
time
of
enactment
of
the
1990
CAA."
The
commenters
contended
that
subpart
2
gives
EPA
no
authority
to
shorten
the
statutory
3­
year
period.
In
contrast,
Congress
in
subpart
1
authorized
EPA
to
set
a
schedule
for
nonattainment
SIP
submissions.
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
2
years
after
the
proposed
required
RFP
SIP
submission
date
as
EPA
has
suggested.
The
commenter
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165
suggested
that
EPA
develop
policy
options
that
allow
areas
in
such
predicaments
to
maintain
approved
SIPs
if
emissions
reductions
are
not
available
to
meet
RFP
requirements
and/
or
if
available
emission
reduction
techniques
might
be
counterproductive
to
other
local
and
regional
air
quality
goals.

Another
commenter
stated
revisions
to
State
emission
reduction
measures
cannot
be
adopted
easily
in
a
2­
year
time
period
because
they
require
administrative
action
and
frequently
State
legislation
to
approve.
This
period
can
lengthen
when
proposed
measures
like
enhanced
vehicle
I/
M
involve
controversial
actions
affecting
the
public.

Logistically,
a
State
must
establish
a
regulation
by
administrative
action
with
public
input
before
(
though
sometimes
after)
such
a
measure
is
approved
by
the
State's
legislature.
A
number
of
jurisdictions'
legislatures
are
only
in
regular
session
to
consider
such
measures
several
months
or,
in
alternate
years.
Thus,
it
is
unreasonable
for
States
to
have
only
2
years
from
their
nonattainment
designations
to
adopt
new
measures.

Another
commenter
referenced
the
case
NRDC
v.
EPA,
22
F.
3d
1125,
1135
(
D.
C.
Cir.,
1994),
where
the
Court
considered
the
propriety
of
EPA's
extension
of
the
deadlines
PREDECISIONAL
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by
which
States
had
to
submit
elements
of
their
SIPs.
The
Court
upheld
EPA's
decision
to
extend
the
deadline
for
submission
of
a
SIP
given
EPA's
failure
to
meet
its
own
deadline
for
providing
certain
necessary
guidance
to
the
States.
The
Court
allowed
EPA
to
use
the
extraordinary
remedy
of
a
deadline
extension
in
this
instance
because
Congress
would
have
intended
that
the
deadline
be
extended
to
provide
a
party
the
full
statutory
time
for
acting
on
the
agency
guidance.
The
commenter
referenced
CAA
section
126(
c)
where
EPA
may
set
a
compliance
deadline
"
as
expeditiously
as
possible,
but
in
no
case
later
than
3
years
after
the
date
of
such
finding."

One
commenter
noted
that
CAA
section
182(
b)(
1)(
A)
as
modified
by
section
181(
b)(
1)
requires
for
moderate
areas
that
the
RFP
SIP
be
submitted
3
years
after
designation.

The
commenter
disagreed
with
the
RFP
plan
requirement
to
submit
the
plan
2
years
after
the
effective
date
of
the
nonattainment
designation
as
not
being
consistent
with
or
supported
by
these
CAA
sections.
The
resources
involved
in
developing,
proposing
and
adopting
any
SIP
revision
are
not
insignificant.
In
order
to
ensure
the
most
efficient
use
of
resources,
the
commenter
contended
that
EPA
should
not
require
this
SIP
revision
sooner
than
the
submission
of
the
PREDECISIONAL
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CITE
OR
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draft
11/
03/
05
167
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
by
a
number
of
commenters.
In
consideration
of
the
2004
designation
and
the
need
to
achieve
the
2008
RFP
reductions
by
December
2008,
it
seems
reasonable
to
EPA
that
States
first
be
given
sufficient
time
after
designation
to
formulate
RFP
plans.
Therefore,
the
final
rule
allows
States
up
to
3
years
after
designation
to
submit
their
RFP
SIPs.
However,
to
the
extent
States
are
relying
on
newly
developed
rules
to
meet
all
or
part
of
the
RFP
requirement,

we
recommend
that
States
adopt
those
rules
as
soon
as
possible
after
designation
to
provide
as
much
time
as
possible
for
sources
to
achieve
the
emissions
reductions.

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

[
Section
VI.
I.
7
of
June
2,
2003
proposed
rule
(
68
FR
32834);
§
51.910(
a)(
4)
of
the
draft
regulatory
text;

§
51.910(
a)(
3)
of
the
final
regulatory
text.]
PREDECISIONAL
DRAFT
 
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168
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
holds
true
for
the
RFP
requirement
as
it
applies
to
the
8­
hour
ozone
standard,
namely
preventing
credit
toward
the
mandatory
RFP
percent
reductions
for
continuing
reductions
from
those
specific
measures
cited
in
the
CAA
that
were
already
adopted
and
in
place
(
or
required
to
be
adopted
and
in
place)
prior
to
the
date
of
enactment
of
the
CAA
Amendments
of
1990.

There
is
no
indication
in
the
CAA
that
this
exclusion
should
be
changed.
Congress
mandated
many
emissions
reductions
in
the
1990
CAA
Amendments
with
no
indication
that
they
should
not
be
credited
to
meeting
RFP
or
attainment
of
any
existing
or
revised
NAAQS.
Therefore,
we
proposed
that
all
emissions
PREDECISIONAL
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169
reductions
that
occur
from
all
Federal
and
any
other
measures
not
otherwise
identified
in
section
182(
b)(
1)(
C)

and
(
D)
and
that
occur
after
the
baseline
emissions
inventory
year
would
be
creditable
for
the
RFP
requirement.

A
number
of
examples
demonstrating
emissions
reductions
that
would
be
creditable
toward
the
RFP
requirement
were
set
forth
in
our
proposal.

b.
Summary
of
final
rule
We
are
taking
the
approach
we
proposed,
under
which
all
emissions
reductions
that
occur
after
the
baseline
emissions
inventory
year
are
creditable
for
purposes
of
the
RFP
requirements
in
this
section
except
as
specifically
provided
in
section
182(
b)(
1)(
C)
and
(
D)
and
section
182(
c)(
2)(
B)
of
the
CAA.
The
restriction
imposed
by
section
182(
b)(
1)(
D)

limits
crediting
reductions
from
the
following
four
categories:

°
Corrections
to
or
additions
of
RACT
rules
as
required
by
CAA
section
182(
a)(
2)(
A).

°
Corrections
to
I/
M
programs
for
areas
where
the
SIP
included
or
was
required
to
include
a
schedule
for
I/
M
implementation
under
the
CAA
in
effect
immediately
before
November
15,
1990.

°
Regulations
concerning
Reid
Vapor
Pressure
(
RVP)
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03/
05
170
promulgated
by
EPA
before
November
15,
1990
or
required
to
be
promulgated
under
CAA
section
211(
h).

°
Motor
vehicle
exhaust
or
evaporative
emissions
measures
promulgated
by
EPA
by
January
1,
1990.

c.
Comments
and
responses
Comment:
One
commenter
supported
EPA's
proposal
to
allow
credit
towards
RFP
requirements
of
all
emissions
reductions,
which
occur
after
the
baseline
emissions
inventory
year
(
2002)
from
all
Federal,
and
any
other
measures
not
otherwise
identified
under
section
182(
b)(
1)(
D).
This
would
include
reductions
from
cleaner
fuels
and
engines,
reductions
from
ongoing
1­
hour
SIP
controls
and
VOC
reductions
from
implementation
of
MACT
standards
after
the
baseline
year.
The
commenter
stated
that
this
proposed
approach
would
be
critical
in
a
number
of
areas
that
already
have
stringent
stationary
source
controls
and/
or
in
areas
dominated
by
mobile
source
emissions.

Response:
The
EPA
acknowledges
this
comment
of
support
for
our
final
action.

Comment:
Another
commenter
believed
that
early
voluntary
emissions
reductions
prior
to
2003,
and
not
required
under
the
CAA,
should
also
be
creditable
toward
RFP
requirements.
The
commenter
recommended
that
EPA's
final
PREDECISIONAL
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11/
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05
43For
example,
if
an
area
had
VOC
emissions
in
2001
of
100
tons
per
day,
and
a
source
reduces
emissions
by
10
tons
per
day
in
2002,
the
baseline
emissions
will
be
90
tons
per
day.
Thus,
the
area
will
need
to
achieve
13.5
tons
per
day
reduction
to
meet
its
15
percent
requirement,
rather
than
15
tons
per
day.
However,
the
area
cannot
take
credit
in
the
15
percent
plan
for
the
10
tons
per
day
of
emissions
that
are
not
part
of
the
baseline
inventory.

171
rule
clarify
that
States
be
allowed
credit
for
RFP
for
early
voluntary
emissions
reductions
occurring
prior
to
2003.
As
a
company
that
has
proactively
taken
measures
to
reduce
NOx
emissions
through
innovative
Combustion
Initiative
(
an
enhanced
efficiency
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.
43
Allowing
an
area
to
take
credit
for
reducing
emissions
that
are
not
included
in
the
inventory
would
result
in
"
double
counting"
of
those
PREDECISIONAL
DRAFT
 
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OR
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draft
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03/
05
172
emissions
reductions.

Comment:
One
commenter
suggested
that
areas
should
be
able
to
take
credit
for
MACT
standards
that
may
reduce
VOC
for
which
compliance
is
required
after
the
2002
baseline
year.
The
commenter
said
it
would
be
helpful
to
States
if
EPA
produced
a
document
detailing
the
expected
VOC
reductions
after
implementation
of
MACT
standards.
States
could
claim
these
reductions
toward
any
reductions
required
to
meet
their
target.
The
commenter
suggested
that
the
most
useful
way
to
express
the
reduction
would
be
as
a
percent
of
the
2002
emissions.

Response:
The
EPA
agrees
that
areas
can
take
credit
in
RFP
plans
for
post­
2002
VOC
reductions
from
MACT
standards.

We
are
considering
whether
to
develop
the
recommended
guidance.

Comment:
One
commenter
objected
to
EPA's
proposal
to
allow
States
to
claim
RFP
credit
from
any
reductions
achieved
through
post­
1990
adoption
of
the
types
of
measures
listed
in
section
182(
b)(
1)(
D).
The
commenter
further
stated
that
section
182(
b)(
1)(
D)
prohibits
granting
RFP
credit
for
any
measures
contained
on
the
list.
Congress
wanted
the
RFP
reductions
to
be
new
reductions
rather
than
emission
cuts
that
would
have
occurred
anyway.
In
the
case
PREDECISIONAL
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173
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
emissions
reductions,
recognize
the
need
to
address
the
8­
hour
standard
as
the
ozone
standard
(
rather
than
rely
on
plans
developed
to
meet
the
1­
hour
standard),
and
potentially
avoid
some
unneeded
controls.

Another
commenter
recommended
that
EPA
not
allow
emissions
reductions
credit
for
all
emissions
reductions
occurring
after
the
baseline
year.
Emissions
reductions
to
satisfy
the
RFP
requirements
of
CAA
section
182(
b)(
1)
and
182(
c)(
2)(
B)
are
required
to
be
achieved
by
submitting
"
a
revision
to
the
applicable
implementation
plan
to
provide
for
.
.
.
emissions
reductions."
The
commenter
argued
that
emissions
reductions
already
required
by,
or
accounted
for
in,
the
applicable
implementation
plan
may
not
be
credited
toward
the
new
RFP
requirements.
For
example,
reductions
PREDECISIONAL
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174
that
were
required
to
be
achieved
by
SIP
or
other
requirements,
but
which
were
not
achieved
in
practice
prior
to
the
baseline
year,
should
not
be
credited
toward
meeting
the
new
RFP
reductions
required
after
the
baseline
year.

Only
new
measures
submitted
with
the
new
SIP
revision
may
be
credited
for
this
purpose.

Response:
The
EPA
believes
that,
with
certain
exceptions
(
see
CAA
section
182(
b)(
1)(
C)
and
(
D)),
any
reductions
that
occur
after
2002
are
creditable
towards
RFP
and
attainment
and
that
it
should
not
matter
when
the
State
initially
adopted
or
EPA
promulgated
the
measures
that
produce
those
reductions.
The
CAA
does
not
mandate
the
approaches
advocated
in
the
comments.
While
the
comments
cite
phrases
in
the
CAA
that
might
be
read
to
support
the
approach
advocated
in
the
comments,
EPA
believes
such
an
interpretation
is
at
odds
with
other
provisions
of
the
CAA.

In
addition
to
the
restriction
imposed
by
section
182(
b)(
1)(
D)
on
crediting
certain
measures,
section
182(
b)(
1)(
C)
places
only
two
restrictions
on
creditability
of
reductions
towards
RFP:
first,
reductions
are
creditable
if
they
result
from
measures
in
the
applicable
implementation
plan,
i.
e.,
the
approved
SIP
or
from
rules
PREDECISIONAL
DRAFT
 
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draft
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05
44Applicable
requirements
are
federally­
enforceable
requirements
under
the
CAA
that
are
created
elsewhere
but
incorporated
into
a
title
V
permit.
See
the
definition
of
"
Applicable
requirement"
in
40
CFR
70.2
and
71.2
175
promulgated
by
EPA,
or
from
the
applicable
requirements44
that
are
incorporated
into
a
title
V
permit;
and
secondly,

only
those
reductions
that
have
actually
occurred
after
the
baseline
year
and
before
the
milestone
date
may
be
credited
towards
a
RFP
milestone.
The
requirement
that
the
reductions
result
from
measures
in
the
applicable
implementation
plan
or
EPA
regulations,
or
applicable
requirements
contained
in
a
title
V
operating
permit
imposes
no
restriction
that
such
measures
must
be
enacted
after
the
date
of
designation
or
after
the
baseline
year.
This
restriction
only
requires
that
the
measure
approved
into
the
SIP
be
a
rule
promulgated
by
EPA
or
be
an
applicable
requirement
included
in
a
title
V
permit
issued
before
or
concurrently
with
approval
of
the
RFP
SIP
revisions,
and
that
the
reductions
occur
after
the
baseline
year
and
before
the
milestone
date.

While
this
provision
limits
EPA's
discretion
to
allow
credit
towards
the
RFP
requirement
from
any
reduction
that
does
not
fit
into
any
of
the
three
aforementioned
classes
of
measures,
EPA
does
not
see
anything
in
the
statute
that
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176
mandates
the
adoption
of
the
approach
advocated
in
the
comments.
In
fact,
EPA
believes
the
opposite
is
the
case.

The
same
argument
(
i.
e.,
that
creditable
RFP
measures
must
be
measures
adopted/
promulgated
after
designation
or
after
the
baseline
year)
could
have
been
made
for
the
various
programs
mandated
by
the
1990
CAA
Amendments.
These
mandated
measures
included
RACT
requirements
under
section
182(
b)(
2),
Stage
II
vapor
recovery
under
section
182(
b)(
3),

motor
vehicle
I/
M
under
sections
182(
b)(
4)
and
182(
c)(
3),

RFG
under
section
211(
k),
and
the
Tier
1
motor
vehicle
standards
under
title
II.
The
EPA
believes
the
statute
is
plain
that
Congress
envisioned
that
all
of
these
would
be
adopted
after
1990
and
in
most
cases
implemented
before
1996
because
the
statute
contains
enforceable
deadlines
for
submission
of
the
requisite
SIP
revisions
or
promulgation
of
the
EPA
rules.
In
many
cases,
they
contain
required
implementation
dates
before
1996.
Congress
clearly
did
not
limit
credit
for
RFP
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
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177
advocated
in
the
comments
for
the
1­
hour
standard
and
for
any
revised
standard.

In
summary,
the
statute
says
that
only
four
specific
categories
of
emissions
reductions
are
restricted.
It
does
not
refer
to
or
include
any
post­
1990
rules'
emissions
reductions
as
restricted
and
only
speaks
to
creditability
in
terms
of
when
the
reductions
occurred,
not
when
the
rules
or
measures
were
adopted.
As
explained
in
the
proposal
and
the
preceding
paragraphs,
Congress
had
reason
to
limit
creditability
of
pre­
1990
rules,
mandated
many
post­
90
rules
and
allowed
these
rules
to
be
credited
towards
post­
90
RFP,

and
nothing
in
the
statute
leads
us
to
believe
that
Congress
would
not
have
wanted
them
to
also
be
creditable
to
post­

2002
RFP.
The
EPA
believes
it
is
appropriate
to
allow
credit
toward
RFP
for
emissions
reductions
other
than
reductions
from
the
four
categories
specified
in
the
CAA
pursuant
to
section
182(
b)(
1)(
D).
Language
that
was
once
pertinent
to
the
schedule
of
the
1990
CAA
Amendments
should
be
reinterpreted
now
to
mean
emissions
reductions
are
creditable
toward
emissions
reductions
requirements
to
the
extent
they
actually
occur
during
the
relevant
ROP
period
and
after
the
baseline
year.

7.
For
areas
covered
only
by
subpart
1,
how
should
the
RFP
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178
requirement
be
structured?

[
Section
VI.
I.
8.
of
June
2,
2003
proposed
rule
(
68
FR
32834);
§
51.910(
b)
of
the
draft
and
final
regulatory
text.]

a.
Background
The
proposal
noted
that
the
RFP
requirement
under
subpart
1
is
more
general
than
that
under
subpart
2,
and
EPA
thus
has
more
flexibility
in
determining
what
RFP
means
under
subpart
1.
For
instance,
the
State
may
rely
on
emissions
reductions
of
VOC
or
NOx,
or
a
combination
of
both
to
meet
its
RFP
requirement
whereas
subpart
2
limits
the
initial
15
percent
to
VOC
emissions
reductions.
However,
we
acknowledged
the
concern
about
treating
in
a
similar
manner
areas
under
subpart
1
that
have
an
ozone
problem
similar
to
areas
covered
under
subpart
2.

We
proposed
scenarios
for
three
types
of
subpart
1
areas:
(
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
these
areas
would
be
treated
similar
to
areas
under
subpart
2
that
are
classified
as
marginal,
which
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179
do
ot
have
an
RFP
requirement.
We
proposed
such
an
area
would
not
be
subject
to
a
separate
RFP
requirement,
but
RFP
would
be
met
by
demonstrating
the
area
could
attain
the
standard
by
its
attainment
date.

°
Areas
with
attainment
dates
between
3
to
6
years
after
designation.

These
areas
would
have
attainment
dates
similar
to
subpart
2
areas
classified
as
moderate.
We
proposed
two
options
for
these
areas:

°
Option
1.
This
option
would
require
the
RFP
plan
to
be
submitted
with
the
attainment
demonstration
within
3
years
after
designation
of
the
nonattainment
area
and
RFP
would
be
met
by
a
SIP
that
provides
for
attainment
as
expeditiously
as
practicable.
Where
areas
have
only
3
years
after
SIP
submission
before
attainment,
this
option
recognizes
that
there
may
be
only
a
short
amount
of
time
available
to
achieve
any
specified
emissions
reductions
to
meet
RFP.
The
draft
regulatory
text
incorporated
this
option.

°
Option
2.
This
option
would
require
these
areas
to
be
treated
in
a
manner
similar
to
subpart
2
areas
classified
as
moderate.
The
RFP
SIP
would
have
to
provide
for
a
15
percent
emission
reduction
from
the
PREDECISIONAL
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45NOx
Substitution
Guidance.
December
15,
1993
(
available
at
http://
www.
epa.
gov/
ttn/
oarpg/
t1pgm.
html).

180
baseline
year
within
6
years
after
the
baseline
year.

The
RFP
SIP
would
have
to
be
submitted
within
2
years
after
designation.
However,
since
the
area
is
subject
only
to
subpart
1,
VOC
or
NOx
emissions
reductions
could
be
relied
on
to
meet
the
15
percent
reduction
requirement,
consistent
with
EPA's
NOx
substitution
policy.
45
Also,
we
solicited
comment
on
whether
a
percentage
other
than
15
percent
should
be
required
as
the
minimum.
Additional
measures
that
would
provide
the
remaining
portion
of
the
emissions
reductions
needed
for
attainment
would
have
to
be
submitted
with
the
area's
attainment
demonstration
within
3
years
after
designation.

°
Areas
with
attainment
dates
beyond
6
years
after
designation.

These
areas
would
have
attainment
dates
similar
to
areas
classified
under
subpart
2
as
serious
or
higher.
We
proposed
that
the
RFP
plan
show
increments
of
progress
from
the
baseline
emissions
inventory
year
out
to
the
attainment
date.
The
RFP
SIP
would
first
have
to
provide
for
a
15
percent
emission
reduction
from
the
baseline
year
within
6
PREDECISIONAL
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draft
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181
years
after
the
baseline
year.
The
15
percent
RFP
SIP
would
have
to
be
submitted
within
2
years
after
designation.

However,
since
the
area
is
subject
only
to
subpart
1,
NOx
emissions
reductions
could
be
substituted
for
some
or
all
of
the
15
percent
reduction
requirement,
consistent
with
EPA's
NOx
substitution
policy.
Also,
we
solicited
comment
on
whether
a
percentage
other
than
15
percent
would
be
more
appropriate.
For
each
subsequent
3­
year
period
out
to
the
attainment
date,
another
RFP
SIP
would
have
to
provide
for
an
additional
increment
of
progress
no
less
than
the
amount
of
emissions
reductions
that
would
be
proportional
to
the
time
between
the
end
of
the
first
increment
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
CAA's
division
of
attainment
dates
for
subpart
1
areas
under
section
172(
a)(
2).
This
provision
requires
that
subpart
1
areas
must
attain
as
expeditiously
as
practicable
but
no
later
than
5
years
after
designation
as
a
nonattainment
area.
It
also
allows
the
Administrator
to
extend
the
attainment
date
PREDECISIONAL
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draft
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03/
05
182
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
an
extended
attainment
date.
The
following
are
the
two
scenarios
and
the
RFP
requirements
for
each:

Scenario
A:
Areas
with
attainment
dates
5
years
or
less
after
designation
(
i.
e.,
on
or
before
June
15,
2009
for
areas
designated
June
15,
2004).

As
noted
elsewhere
in
this
preamble,
for
areas
classified
under
subpart
1,
emissions
reductions
needed
for
attainment
must
occur
by
the
beginning
of
the
ozone
season
preceding
the
attainment
date.
Thus,
to
enable
a
SIP
to
demonstrate
attainment
by
June
15,
2009,
the
area
must
achieve
all
necessary
reductions
by
the
beginning
of
the
2008
ozone
season.
The
final
rule
provides
that
RFP
for
these
areas
would
be
met
by
ensuring
emissions
reductions
needed
for
attainment
are
implemented
as
noted
above
by
the
beginning
of
the
ozone
season
prior
to
the
attainment
date.

Scenario
B:
Areas
with
attainment
dates
more
than
5
years
after
designation
(
i.
e.,
beyond
June
15,
2009
for
those
PREDECISIONAL
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draft
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183
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
(
e.
g.,

from
January
1,
2003
through
December
31,
2008).

°
The
15
percent
RFP
SIP
must
be
submitted
within
3
years
after
designation
(
e.
g.,
by
June
15,
2007).

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

NOx
or
VOC
emissions
reductions
(
or
both)
could
be
used
to
achieve
the
15
percent
emission
reduction
requirement.

°
For
each
subsequent
3­
year
period
out
to
the
attainment
date,
the
RFP
SIP
would
have
to
provide
for
an
additional
increment
of
progress.
The
increment
for
each
3­
year
period
would
be
a
portion
of
the
remaining
emission
reductions
needed
for
attainment
beyond
those
reductions
achieved
for
the
first
increment
of
progress
(
e.
g.,
beyond
2008
for
areas
designated
nonattainment
in
June
2004).
Specifically,
the
amount
of
reductions
needed
for
attainment
should
be
divided
by
the
number
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
11/
03/
05
46For
example,
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,
the
"
annual
increment"
would
be
5
percent
(
i.
e.,
1/
6
of
30
percent).
Thus,
the
area
must
achieve
roughly
the
portion
of
reducitons
equivalent
to
15
percnet
(
3
X
5
percent)
during
the
first
3
years
(
2009,
2010,
2011),
and
the
remaining
amount
over
the
next
3
years
(
2012,
2013,
2014).
By
using
the
word
"
roughly"
in
the
regulatory
text,
EPA
does
not
intend
that
States
would
be
able
to
delay
substantial
emission
reductions
from
one
3­
year
period
to
the
next.
Rather,
EPA
intends
this
modifier
to
allow
small
deviations
from
the
amount
of
emission
reductions
that
would
be
needed
to
meet
a
3­
year
RFP
requirement.
For
example,
assume
that
the
"
annual
increment"
of
reductions
needed
for
an
area
to
reach
attainment
(
after
the
initial
6­
year
RFP
obligation)
is
5
tons
per
day
and
that
the
area
has
6
additional
years
until
attainment.
Thus,
for
each
of
the
two
3­
year
periods
until
attainment,
the
area
would
need
"
roughly"
15
tons
per
day,
so
long
as
the
total
for
both
periods
is
equivalent
to
or
greater
than
30
tons
per
day
(
i.
e.,
the
total
reductions
needed
for
attainment).
Assuming
the
area
could
achieve
14
tons
per
day
during
the
first
3­
year
period,
and
achieve
the
remaining
16
tons
per
day
during
the
second
3­
year
period,
we
believe
this
would
be
consistent
with
achieving
"
roughly
the
portion
of
reductions
equivalent
to
three
annual
increments."
We
do
not
believe,
however,
that
use
of
the
word
roughly
allows
States
to
delay
substantial
emission
reductions.
Thus,
in
the
example
above,
it
would
not
be
appropriate
for
the
State
to
delay
reductions
of
several
tons
per
day
until
the
second
3­
year
period.

184
of
years
needed
for
attainment
after
the
first
increment
of
progress
in
order
to
establish
an
"
annual
increment."
For
each
3­
year
period
out
to
the
attainment
date,
the
area
must
achieve
roughly
the
portion
of
reductions
equivalent
to
three
annual
increments.
46
This
second
RFP
SIP
must
also
be
PREDECISIONAL
DRAFT
 
DO
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OR
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draft
11/
03/
05
185
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.

Response:
The
EPA
acknowledges
that
Congress
prescribed
specific
RFP
requirements
under
subpart
2,
but
for
subpart
1
provided
more
flexibility.

Our
rule
does
not
eliminate
RFP
obligations
for
subpart
1
areas.
We
are
not
requiring
any
specific
percent
reduction
for
subpart
1
areas
with
near­
term
attainment
dates.
The
measures
that
bring
about
near­
term
attainment
represent
all
the
reductions
that
are
reasonable
to
require
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
186
as
annual
incremental
progress
towards
attainment.
The
EPA
is
not
compelled
to
require
a
15
percent
emission
reduction
for
all
subpart
1
areas,
especially
in
those
cases
where
a
full
15
percent
is
not
needed
in
order
to
reach
attainment.

However,
we
believe
that
it
is
generally
appropriate
to
require
the
full
15
percent
for
areas
with
long­
term
attainment
dates
to
ensure
interim
progress
towards
attainment.

Comment:
Some
commenters
supported
the
proposal
that
ties
the
required
RFP
showing
to
the
attainment
date.

Specifically,
these
commenters
supported
the
proposal
that
areas
with
attainment
dates
of
3
years
or
less
should
have
no
separate
RFP
requirement,
consistent
with
the
requirement
applicable
to
marginal
areas
under
subpart
2.
In
addition,

support
was
shown
for
Option
1
for
subpart
1
areas
with
an
attainment
date
between
3
and
6
years
following
designations.
Under
Option
1,
areas
would
have
to
show
an
adequate
rate
of
reduction
in
order
to
achieve
attainment
by
the
deadline,
but
there
would
be
no
specific
percentage
reduction
required.

Response:
We
acknowledge
the
support
of
these
comments.

Comment:
Another
commenter
believed
that
a
15
percent
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
187
emissions
reductions
requirement
should
only
be
required
where
such
reductions
would
meaningfully
advance
the
date
of
attainment.
The
RFP
requirement
in
subpart
1
requires
that
the
SIP
provide
for
"
reasonable
further
progress,"
and
where
emissions
reductions
would
not
create
"
reasonable
further
progress"
either
in
the
area
itself
or
in
downwind
areas,

there
is
no
basis
under
subpart
1
to
require
such
specific
emissions
reductions.
They
further
said
that
requiring
a
potentially
expensive
reduction
in
emissions
in
those
cases
where
that
reduction
would
not
improve
air
quality
was
not
justified
based
on
a
notion
of
"
equity"
with
similar
areas
classified
under
subpart
2
and
noted
that
such
an
interpretation
was
not
required
by
the
statute
or
sensible.

That
some
subpart
2
areas
might
have
to
reduce
emissions
by
a
specified
percentage
even
where
such
reductions
would
yield
no
positive
environmental
benefits
is
an
unfortunate
result
of
the
Congress'
decision
to
limit
EPA's
discretion
under
subpart
2
 
which
in
turn
is
a
result
of
a
far
less
sophisticated
understanding
of
the
dynamics
of
ozone
creation
in
1990
than
exists
now
 
and
where
EPA
has
the
discretion
not
to
dictate
an
ineffective
and
inefficient
result,
it
must
exercise
that
discretion.

Response:
We
addressed
in
general
those
comments
that
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
11/
03/
05
188
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.

8.
Where
part
of
an
8­
hour
nonattainment
area
was
a
1­
hour
nonattainment
area
with
a
ROP
obligation
extending
past
2002,
can
emissions
reductions
from
the
area's
1­
hour
ROP
plan
be
used
as
credit
toward
meeting
the
area's
8­
hour
RFP
plan?

[
Section
VI.
I.
9.
of
June
2,
2003
proposed
rule
(
68
FR
32835);
no
draft
or
final
regulatory
text.

a.
Background
We
proposed
the
following
approach
to
address
this
issue.
Where
an
area
has
both
1­
hour
and
8­
hour
RFP
obligations
for
the
post­
2002
period,
the
State
may
rely
on
emissions
reductions
from
the
1­
hour
plan
in
achieving
RFP
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
189
for
the
8­
hour
standard.
The
State
could
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
any
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)
toward
meeting
the
RFP
requirement
for
the
entire
8­

hour
area.

This
approach
would
set
a
RFP
target
for
the
entire
8­

hour
ozone
nonattainment
area.
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;
see
40
CFR
51.905(
a)(
1)(
iii)).

b.
Summary
of
final
rule
We
are
adopting
the
approach
from
the
proposal.

c.
Comments
and
responses
Comment:
One
commenter
agreed
with
the
approach
outlined
in
the
proposal
but
cautioned
that
the
States
would
have
to
ensure
that
the
target
is
at
least
as
stringent
as
the
1­
hour
ROP
target,
thus
ensuring
no
backsliding
on
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
190
1­
hour
NAAQS
requirements.
Under
this
approach,
the
State
would
have
to
develop
a
new
baseline
and
new
RFP
emission
reduction
targets
for
the
entire
8­
hour
standard
nonattainment
area.
Emissions
reductions
from
measures
in
the
1­
hour
ozone
SIP
that
are
achieved
after
the
8­
hour
ozone
NAAQS
baseline
year
could
count
(
subject
to
credibility
restrictions
as
discussed
in
the
proposed
rulemaking)
toward
meeting
the
RFP
requirement
for
the
entire
8­
hour
area.
The
new
RFP
target
for
the
8­
hour
standard
would
replace
the
previous
1­
hour
ozone
target
(
while
ensuring
that,
at
a
minimum,
the
emissions
reductions
required
to
meet
the
old
target
are
met).

Response:
We
agree
with
the
commenter
that
the
emission
reduction
targets
under
the
8­
hour
standard
must
be
at
least
as
stringent
as
the
1­
hour
targets.
Section
IV.
E.
3.
of
this
preamble
discusses
the
requirements
for
RFP
for
several
situations
relative
to
the
area's
former
obligations
under
the
1­
hour
standard
and
the
current
obligations
under
the
8­
hour
standard.
The
obligations
of
an
area
under
the
anti­
backsliding
provisions
of
40
CFR
51.905(
a)(
1)(
iii)
would
still
apply,
meaning
that
emissions
reductions
under
the
1­
hour
ROP
requirements
would
still
be
required
as
if
the
1­
hour
standard
had
never
been
revoked.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
47Memorandum
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.

191
Therefore,
the
new
8­
hour
emission
target
for
the
8­
hour
area
would
be
logically
at
least
as
stringent
as
under
the
1­
hour
area
for
a
given
time
period.

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

hour
RFP,
attainment
demonstrations
and
other
related
requirements?

[
Section
VI.
I.
10
of
June
2,
2003
proposed
rule
(
68
FR
32835);
no
draft
regulatory
text;
section
51.918
of
final
rule.]

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.
47
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
192
In
the
proposed
rule,
we
indicated
that
the
Clean
Data
Policy,
which
we
had
applied
under
the
1­
hour
standard,

should
apply
for
purposes
of
the
8­
hour
standard.
We
are
adopting
this
approach.
In
this
action
EPA
is
finalizing
the
statutory
interpretation
that
is
embodied
in
the
policy.

The
text
of
the
final
rule
encapsulates
the
statutory
interpretation
set
forth
in
the
policy.
Determinations
as
to
whether
individual
areas
have
attained
the
8­
hour
standard
and
thus
qualify
for
application
of
the
policy
will
be
made
in
the
context
of
rulemakings
for
those
individual
areas.

The
EPA
has
applied
the
Clean
Data
Policy
in
rulemakings
under
the
1­
hour
ozone
standard
to
both
subpart
1
areas,
e.
g.,
San
Francisco
Bay
Area
(
69
FR
21717;
April
22,
2004)
and
subpart
2
areas,
e.
g.,
St.
Louis,
Missouri
(
68
FR
25418;
May
12,
2003).
The
EPA
will
also
apply
the
policy
to
both
subpart
1
and
subpart
2
areas
under
the
8­
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.
A
commenter
argued
that
EPA
also
has
no
authority
to
waive
the
attainment
demonstration
and
RFP
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
193
plans
mandated
by
subpart
2
on
the
pretext
that
an
area
has
clean
data.
The
CAA
unambiguously
requires
these
plans
for
any
area
designated
nonattainment
for
the
pollutant
ozone,

and
gives
EPA
no
power
whatsoever
to
waive
such
plan
requirements.

Several
other
commenters
supported
the
continued
use
of
the
"
Clean
Data
Policy."

Response:
The
EPA
believes
that
the
Clean
Data
Policy
comports
with
the
provisions
of
the
CAA
in
regard
to
attainment
demonstrations,
ROP
plans,
RACM,
contingency
measures
and
other
related
requirements.
The
Clean
Data
Policy,
issued
on
May
10,
1995,
sets
forth
EPA's
interpretation
that
where
EPA
has
determined
that
an
area
has
attained
the
standard,
certain
SIP
requirements
are
suspended
(
e.
g.,
RFP)
for
so
long
as
the
area
remains
in
attainment.

As
set
forth
in
its
May
10,
1995
policy,
EPA
believes
it
is
reasonable
to
interpret
the
provisions
regarding
RFP
and
attainment
demonstrations,
along
with
certain
other
related
provisions,
as
not
requiring
further
submissions
to
achieve
attainment
for
so
long
as
the
area
is
in
fact
attaining
the
standard.
Under
the
policy,
EPA
is
not
granting
an
exemption
from
any
applicable
requirements
under
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
194
part
D.
Rather,
EPA
has
interpreted
these
requirements
of
subparts
1
and
2
as
not
applying
for
so
long
as
the
area
remains
in
attainment
with
the
standard.
This
is
not
a
waiver
of
requirements
that
by
their
terms
apply;
it
is
a
determination
that
certain
requirements
are
written
so
as
to
be
operative
only
if
the
area
is
not
attaining
the
standard.

The
EPA
has
explained
in
other
rulemaking
actions
on
the
1­
hour
ozone
standard
its
rationale
for
the
reasonableness
of
this
interpretation
of
the
CAA
and
incorporates
these
explanations
by
reference.
See,
for
example,
67
FR
49600
(
July
31,
2002);
65
FR
37879
(
June
19,

2000)
(
Cincinnati­
Hamilton,
Ohio­
Kentucky);
61
FR
20458
(
May
7,
1996)
(
Cleveland­
Akron­
Lorain,
Ohio);
66
FR
53094
(
October
19,
2001)
(
Pittsburgh­
Beaver
Valley,
Pennsylvania);

60
FR
37366
(
July
20,
1995);
61
FR
31832­
33
(
June
21,
1996)

(
Grand
Rapids,
MI);
60
FR
36723
(
July
18,
1995)
(
Salt
Lake
and
Davis
Counties,
Utah);
68
FR
25418
(
May
12,
2003)
(
St.

Louis,
Missouri);
69
FR
21717
(
April
22,
2004)(
San
Francisco
Bay
Area).
The
EPA
has
also
set
forth
its
legal
rationale
for
the
Clean
Data
Policy
in
briefs
filed
in
the
10th,
7th,

and
9th
Circuits,
and
hereby
incorporates
those
briefs
insofar
as
relevant
here.
See
Sierra
Club
v.
EPA,
No.
95­

9541
(
10th
Cir.),
Sierra
Club
v.
EPA,
No.
03­
2839,
03­
3329
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
195
(
7th
Cir.),
Our
Children's
Earth
Foundation
v.
EPA,
No.
04­

73032
(
9th
Circuit).

As
stated
in
the
policy,
the
attainment
demonstration,

RFP
requirements
and
contingency
measure
requirement
are
designed
to
bring
an
area
into
attainment.
Once
this
goal
has
been
achieved,
it
is
appropriate
to
suspend
the
obligation
that
States
submit
plans
to
meet
these
goals,
so
long
as
the
area
continues
to
attain
the
relevant
standard.

The
Tenth,
Seventh
and
Ninth
Circuits
have
upheld
EPA
rulemakings
applying
the
Clean
Data
Policy.
See
Sierra
Club
v.
EPA,
99
F.
3d
1551
(
10th
Circuit,
1996),
Sierra
Club
v.

EPA,
375
F.
3d
537
(
7th
Circuit,
2004)
and
Our
Children's
Earth
Foundation
v.
EPA,
No.
04­
73032
(
9th
Circuit,
June
28,

2005)
memorandum
opinion.

Comment:
A
commenter
said
that
although
subpart
2
contains
some
narrowly
crafted
exceptions
[
e.
g.,
CAA
182(
b)(
1)(
A)(
ii)],
there
are
no
exceptions
based
on
clean
data.
In
the
past,
EPA
has
cited
a
Tenth
Circuit
decision,

Sierra
Club
v.
EPA,
99
F.
3d
1551
(
10th
Circuit,
1996),
as
supporting
the
Clean
Data
Policy.
The
commenter
contended
that
case
was
wrongly
decided
and
has
been
superseded
by
the
Supreme
Court
decision
in
Whitman
v.
American
Trucking
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
196
Assoc.,
Inc.,
531
U.
S.
457
(
2001).
There,
the
Court
held
that
subpart
2
eliminates
regulatory
discretion
previously
allowed
to
EPA
under
subpart
1,
and
noted
that
subpart
2
prescribes
large
parts
of
nonattainment
programs,
for
example,
section
182.
The
requirements
for
RFP
and
attainment
demonstrations
are
among
those
subpart
2
nonattainment
programs
that
Congress
prescribed
by
law,

thereby
eliminating
EPA
discretion
to
accept
something
less.

See
also
Sierra
Club
v.
EPA,
293
F.
3d
155
(
D.
C.
Circuit,

2002)
(
holding
that
EPA
is
without
authority
to
infer
exceptions
to
attainment
deadlines
and
to
explicit
subpart
2
requirements
for
RFP
plans).

Response:
The
EPA
believes
that
the
Tenth
Circuit
correctly
decided
Sierra
Club
v.
EPA
and
that
the
comments
misconstrue
both
Whitman
and
Sierra
Club
v.
EPA,
293
F.
3d
155
(
D.
C.
Circuit,
2002)
(
Sierra
Club
2002).
The
Sierra
Club
2002
case
addressed
the
statutory
requirements
applicable
to
an
area
not
attaining
the
standard.
The
issue
of
the
requirements
of
part
D
of
title
I
of
the
CAA
that
must
continue
to
be
met
by
areas
that
EPA
has
determined
are
monitoring
attainment
of
the
standard
was
not
before
the
court.
As
discussed
below,
the
Sierra
Club
2002
decision
upheld
EPA's
determination
that
the
RACM
provision
under
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
197
section
172(
c)(
1)
requires
only
additional
measures
that
could
contribute
to
RFP
or
attainment,
which
is
an
element
of
EPA's
application
of
the
Clean
Data
Policy.
To
this
limited
extent,
Sierra
Club
2002
is
relevant
to
EPA's
interpretation
that
the
policy
will
apply
for
the
8­
hour
ozone
standard,
and
the
decision
supports
EPA's
interpretation.
However,
the
other
issues
addressed
in
the
decision
(
extension
of
the
statutory
attainment
date
for
areas
affected
by
ozone
transport,
the
content
of
a
demonstration
of
RFP
toward
attainment,
and
whether
contingency
measures
must
be
submitted
as
part
of
an
attainment
demonstration
or
plan
for
RFP)
did
not
relate
to
the
Clean
Data
Policy
or
how
the
subpart
2
requirements
apply
to
areas
attaining
the
standard.

The
issue
addressed
by
the
Clean
Data
Policy
is
whether
an
area
that
has
attained
the
standard
(
as
evinced
by
air
quality
monitoring
data)
still
needs
to
submit
a
demonstration
of
how
the
area
will
achieve
enough
reductions
to
demonstrate
that
it
will
"
attain
the
NAAQS,"
a
plan
to
obtain
reasonable
periodic
reductions
towards
the
goal
of
attainment
and
other
related
requirements.

The
EPA
continues
to
believe
that
the
statutory
requirement
for
an
attainment
demonstration
 
a
SIP
revision
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
48[
The
EPA's
interpretation
that
the
statute
requires
only
implementation
of
RACM
measures
that
would
advance
attainment
was
upheld
by
the
United
States
Court
of
Appeals
for
the
Fifth
Circuit
(
Sierra
Club
v.
EPA,
314
F.
3d
735,
743­
745,
5th
Cir.
2002)
and
by
the
United
States
Court
of
Appeals
for
the
D.
C.
Circuit
(
Sierra
Club
v.
EPA,
294
F.
3d
155,
162­
163,
D.
C.
Cir.
2002).
See
also
the
final
rulemakings
for
Pittsburgh­
Beaver
Valley,
Pennsylvania,
66
FR
53096
(
October
19,
2001)
and
St.
Louis,
68
FR
25418
(
May
12,
2003).]

198
which
identifies
the
level
of
future
reductions
needed
to
achieve
the
NAAQS
and
any
additional
adopted
measures
needed
to
achieve
these
future
reductions
 
is
written
so
as
to
be
inapplicable
once
the
NAAQS
is
attained.

In
addition,
EPA
believes
that
the
RACM
requirements
are
a
"
component"
of
an
area's
attainment
demonstration
under
section
172(
c)(
1).
General
Preamble
57
FR
13560;

April
16,
1992.
Thus,
since
for
the
same
reason
the
attainment
demonstration
no
longer
applies
by
its
own
terms,

RACM
also
no
longer
applies.
The
EPA
has
consistently
interpreted
this
provision
to
require
only
implementation
of
potential
RACM
measures
that
could
contribute
to
reasonable
further
progress
or
to
attainment.
General
Preamble
57
FR
13498;
April
16,
1992.
Thus,
where
an
area
is
already
attaining
the
standard,
no
additional
RACM
measures
are
required.
48
Likewise,
EPA
concludes
that
the
provision
for
RFP
 
a
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
199
plan
for
annual
incremental
reductions
leading
to
attainment
 
is
also
expressed
in
terms
that
show
that
RFP
is
unnecessary
in
areas
attaining
the
standard.
For
areas
in
attainment,
there
is
no
longer
a
need
to
plan
for
measures
to
meet
that
goal.
Similarly,
EPA
continues
to
believe
that
the
contingency
measure
requirements
of
section
172(
c)(
9)
no
longer
apply
in
an
area
that
is
attaining
the
standard
since
those
"
contingency
measures
are
directed
at
ensuring
RFP
and
attainment
by
the
applicable
date."
(
See
57
FR
13564;
April
16,
1992).
The
section
182(
c)(
9)
contingency
measure
requirement
also
no
longer
applies
once
an
area
has
attained
the
standard.

Section
172(
c)(
2)
of
the
CAA
and
the
related
provisions
of
subpart
2
provide
that
RFP
is
required
only
where
an
area
continues
to
violate
the
standard.
By
definition,
the
"
reasonable
further
progress"
provision
requires
only
such
reductions
in
emissions
as
are
necessary
to
attain
the
NAAQS
by
the
attainment
date.
If
an
area
has
attained
the
standard,
the
stated
purpose
of
the
RFP
provision
has
been
fulfilled.
Also,
section
172(
c)(
1)
and
the
related
provisions
of
subpart
2
require
SIPS
to
provide
for
attainment
of
the
NAAQS.
(
See
also
section
182(
b)(
1)(
A)(
i)

which
requires
that
SIPS
for
moderate
ozone
nonattainment
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
200
areas
must
"
provide
for
such
specific
annual
reductions
in
emissions
of
[
VOCs]
and
[
NOx]
as
necessary
to
attain
the
[
ozone
NAAQS]"
by
the
applicable
attainment
date).
When
an
area
has
attained
the
NAAQS,
there
is
no
need
for
a
plan
demonstrating
how
it
will
reach
attainment,
and
thus
the
attainment
demonstration
provision
no
longer
applies.

Similarly
section
172(
c)(
9)
and
the
related
provisions
of
subpart
2
provide
that
SIPs
in
nonattainment
areas
shall
provide
for
contingency
measures
to
be
undertaken
if
the
area
fails
to
make
RFP
or
to
attain
the
NAAQS
by
the
applicable
attainment
date.
Since
contingency
measures
are
required
only
if
RFP
or
attainment
is
not
achieved,
there
is
no
need
for
them
where
the
area
has
attained
the
standard.

The
language
of
these
statutory
provisions
indicates
that
Congress
intended
that
when
an
area
has
attained
the
standard
these
requirements
no
longer
apply
as
the
purpose
of
these
provisions
 
attainment
 
has
been
accomplished.

The
EPA
believes
that
Whitman
does
not
provide
a
basis
to
reconsider
our
position
on
the
Clean
Data
Policy.
In
Whitman,
the
Court
was
addressing
EPA's
stated
approach
that
subpart
2
did
not
apply
for
purposes
of
implementing
the
8­

hour
NAAQS.
In
the
Phase
1
rule,
EPA
addressed
the
Court's
decision
and
concluded
that
subpart
2
does
apply.
The
issue
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
201
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.
The
decision
in
Whitman
has
no
bearing
on
the
question
of
whether
an
area
that
has
demonstrated
attainment
must
nonetheless
submit
an
attainment
demonstration
plan
and
related
requirements.
Thus,
Whitman
does
not
undermine
the
Tenth
Circuit's
reasoning
in
Sierra
Club
v.
EPA,
99
F.
3d
1551
(
10th
Circuit,
1996).
See
also
the
post­
Whitman
decisions
in
Sierra
Club
v.
EPA,
375
F.
3d
637
(
7th
Circuit,

2004),
and
Our
Children's
Earth
Foundation
v.
EPA,
No.
04­

73032,
memorandum
opinion
(
9th
Circuit,
June
28,
2005)

rejecting
challenges
to
the
Clean
Data
Policy
and
upholding
redesignation
actions
based
on
the
policy.

10.
How
will
RFP
be
addressed
in
Tribal
areas?

[
Section
VI.
I.
11.
of
June
2,
2003
proposed
rule
(
68
FR
32835);
no
draft
or
final
regulatory
text.]

a.
Background
The
TAR
provides
flexibility
for
Tribes
in
the
preparation
of
a
TIP
to
address
the
NAAQS.
As
mentioned
in
the
proposed
rulemaking,
the
TAR
provides
the
Tribes
with
the
ability
to
develop
TIPs
to
address
and
implement
the
NAAQS
in
Indian
country.
It
further
provides
the
Tribes
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
202
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
No
comments
were
received
on
this
portion
of
the
proposal.

11.
How
will
RFP
targets
be
calculated?

[
Section
VI.
I.
12.
of
June
2,
2003
proposed
rule
(
68
FR
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
203
32836);
§
51.910(
c)
of
the
draft
and
final
regulatory
text.]

a.
Background
We
proposed
a
methodology
for
the
calculation
of
RFP
target
levels
of
emissions
that
is
based
on
the
method
we
developed
for
the
1­
hour
standard,
while
taking
into
account
our
interpretation
of
CAA
restrictions
on
creditable
emissions
and
our
proposal
to
use
the
2002
inventory
as
the
baseline
inventory
for
the
RFP
requirement.
The
CAA
specifies
four
types
of
measures
that
were
not
creditable
toward
the
15
percent
RFP
requirement.
These
are:

(
1)
Any
measure
relating
to
motor
vehicle
exhaust
or
evaporative
emissions
promulgated
by
the
Administrator
by
January
1,
1990.

(
2)
Regulations
concerning
Reid
Vapor
Pressure
(
RVP)

promulgated
after
1990
or
required
under
section
211(
h).

(
3)
Measures
required
under
section
182(
a)(
2)(
A)
to
correct
deficiencies
in
SIPs
regarding
VOC
RACT
regulations
required
prior
to
enactment
of
the
CAA
Amendments
of
1990.

(
4)
State
regulations
submitted
to
correct
deficiencies
in
I/
M
existing
or
required
programs.

These
four
types
of
measures
were
all
expected
to
result
in
a
decrease
in
emissions
between
1990
and
1996.
Of
these
four
types
of
measures,
RACT
and
I/
M
program
corrections
and
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
204
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
slightly
from
those
in
the
proposal.
The
revisions
now
account
for
NOx
reductions
and
take
account
of
other
mobile
emissions
models
other
than
the
MOBILE
model.
The
methods
appear
as
appendix
A
to
this
preamble.
These
methods
are
consistent
with
the
requirements
of
sections
182(
b)(
1)(
C)
and
(
D)
and
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
205
182(
c)(
2)(
B)
of
the
CAA.

c.
Comments
and
responses
Comment:
One
commenter
agreed
that
the
base
emission
level
should
be
decreased
by
reductions
that
occur
from
the
pre­
1990
FMVCP
standards
(
1990
I/
M
program
and
fuel
RVP
of
9.0
or
7.8
psi).
However,
the
commenter
further
recommended
that
the
reductions
from
pre­
1990
FMVCP
standards
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
reductions
from
the
pre­
1990
FMVCP
standards,
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
emissions
reductions.
The
commenter
concurred
that
this
command
could
be
used,
but
recognized
that
some
of
the
controls
in
effect
during
2002
cannot
be
modeled
with
this
command.
(
Refer
to
technical
specifics
of
this
comment
in
the
response
to
comment
document).

Response:
The
EPA
does
not
agree
with
the
commenter
that
the
non­
creditable
pre­
1990
FMVCP
reductions
should
be
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
206
calculated
using
the
I/
M
program
and
fuel
properties
in
effect
during
the
new
baseline
year
of
2002.
Including
the
I/
M
program
and
fuel
properties
in
effect
in
2002
in
the
calculation
of
non­
creditable
reductions
would
not
accurately
account
for
reductions
that
are
the
result
of
pre­
1990
Federal
motor
vehicle
control
measures.
The
EPA
believes
that
the
methods
provided
in
the
final
rule
accurately
identify
the
non­
creditable
reductions
from
pre­

1990
motor
vehicle
standards
and
provide
appropriate
credit
for
all
post­
1990
control
measures.

12.
Should
EPA
continue
the
policy
of
allowing
substitution
of
controls
from
outside
the
nonattainment
area
within
100
kilometers
for
VOC
and
200
kilometers
for
NOx?

[
Section
VI.
I.
2.
of
June
2,
2003
proposed
rule
(
68
FR
32833);
no
draft
or
final
regulatory
text.]

a.
Background
The
proposal
noted
[
68
FR
32833]
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"].
Specifically,
the
guidance
allows
credit
for
VOC
reductions
occurring
up
to
100
km
outside
the
area
and
for
NOx
reductions
occurring
up
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
207
to
200
km
outside
the
area
(
statewide
where
a
regional
NOx
control
strategy
is
being
implemented).
The
policy
indicates
that
credit
may
be
taken
only
for
emissions
reductions
from
measures
not
otherwise
mandated
by
the
CAA.

As
explained
in
the
policy,
EPA
believes
that
this
additional
flexibility
for
crediting
reductions
outside
nonattainment
areas
is
consistent
with
the
CAA.
We
noted
in
the
proposed
policy
that
reductions
from
outside
a
nonattainment
area
within
the
geographic
limits
contribute
to
progress
toward
attainment
within
the
area
(
61
FR
65758).

Under
this
approach,
the
geographic
area
for
substitution
of
VOC
emissions
reductions
is
100
km
from
the
nonattainment
area
and
the
geographic
area
for
substitution
of
NOx
reductions
is
200
km
from
the
nonattainment
area
with
the
possibility
for
additional
expansion
of
the
NOx
substitution
area
as
follows.
Nitrogen
oxides
emissions
reductions
from
anywhere
within
the
State
may
be
credited
for
those
States
that
participate
in
a
regional
NOx
control
strategy
such
as
the
NOx
SIP
Call.
All
other
States
implementing
a
NOx
substitution
strategy
for
RFP
would
be
restricted
to
a
distance
of
200
km
from
the
nonattainment
area,
unless
a
substitution
for
a
greater
distance
is
accompanied
by
adequate
technical
justification.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
49
Last
September,
the
EPA
Office
of
Inspector
General
submitted
a
report
(
outside
the
rulemaking
process)
outlining
concerns
and
recommendations
with
respect
to
the
potential
for
double
counting
of
emissions
reductions
and
problematic
equity
issues.
U.
S.
EPA
Office
of
the
Inspector
General.
In
responding
to
that
report,
we
indicated
that
we
would
consider
the
various
recommendations
as
we
assess
existing
policies
and
guidance
in
parallel
to
the
rulemaking
for
implementing
the
8­
hour
ozone
standard.
[
Evaluation
Report:
EPA
and
States
Not
Making
Sufficient
Progress
in
Reducing
Ozone
Precursor
Emissions
In
Some
Major
Metropolitan
Areas.
Report
No.
2004­
P­
00033.
September
29,
2004.]
[
Memorandum
from
Jeffrey
R.
Holmstead
to
J.
Rick
Beusse,
"
Response
to
the
Office
of
the
Inspector
General
(
OIG)
Evaluation
Report,
EPA
and
States
Not
Making
Sufficient
Progress
in
Reducing
Ozone
Precursor
Emissions
in
Some
Major
Metropolitan
Areas,"
Report
No.
2004­
P­
00033.
December
29,
2004.
March
25,
2005.]

208
Substitutions
are
restricted
to
intrastate
areas
unless
two
or
more
States
involved
reach
mutual
agreement.
The
EPA
notes
that
in
all
cases
the
distances
in
the
policy
provide
only
a
general
policy
presumption
that,
if
used,
would
need
data
resources
in
the
record
showing
that
reductions
from
sources
in
the
specific
locations
in
attainment
areas
benefit
the
nonattainment
area.
See
LEAN
v.
EPA,
382
F.
3d
575
5th
Circuit,
2004.

b.
Summary
of
final
rule
States
may
continue
to
rely
on
emissions
reductions
from
outside
the
nonattainment
area
for
credit
toward
their
RFP
obligations.
49
In
doing
so,
States
should
ensure
that
the
reductions
meet
the
standard
tests
of
creditability
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
209
(
permanent,
enforceable,
surplus,
and
quantifiable)
and
are
shown
to
be
beneficial
toward
reducing
ozone
in
the
nonattainment
area.

c.
Comments
and
responses
Comment:
Several
commenters
supported
this
feature
of
EPA's
proposal
regarding
RFP
because
it
allows
the
States
flexibility
to
tailor
control
strategies
to
address
the
issues
specific
to
a
particular
nonattainment
area.

The
commenters
supported
codification
(
68
FR
32833,

column
1)
in
the
final
rule
of
the
December
29,
1997
guidance
memo
("
Guidance
for
Implementing
the
1­
Hour
Ozone
and
Pre­
Existing
PM10
NAAQS")
that
allows
emissions
reductions
from
outside
the
nonattainment
area
to
be
creditable
toward
RFP.
One
commenter
agreed
that
States
ought
to
be
able
to
account
for
regional
emissions
in
their
attainment
demonstrations.
On
the
other
hand,
the
commenter
was
concerned
that
the
Agency
might
allow
jurisdictions
to
"
credit"
emissions
reductions
from
sources
up
to
100
km
for
VOC
and
200
km
for
NOx
toward
15
percent
RFP
plans,
and
this
in
turn
could
encourage
jurisdictions
in
need
of
these
tonnage
reductions
to
regulate
without
a
sound
basis.
The
commenter
contended
that
while
ozone
is
known
to
be
a
"
regional
pollutant,"
EPA
has
failed
to
establish
in
this
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
210
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
can
these
emissions
from
outside
the
nonattainment
area
affect
air
quality
within
the
nonattainment
area,
in
some
cases
it
might
be
necessary
to
include
and
control
emission
sources
located
in
the
nearby
areas
in
order
to
attain
the
standard.
We
believe
it
is
appropriate
to
allow
States
to
take
credit
for
reductions
from
sources
outside
their
nonattainment
areas
where
data
indicate
that
those
emissions
affect
air
quality
in
the
nonattainment
areas.

We
note
that
section
182(
c)(
2)(
C),
which
provides
for
the
substitution
of
NOx
controls
for
VOC,
speaks
in
terms
of
reductions
of
ozone
concentrations
rather
than
strictly
reductions
in
emissions.
This
provision
led
us
to
conclude
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
50The
EPA
notes
that
paragraph
(
1)
of
subsection
182(
b)
is
entitled
"
Plan
Provisions
for
Reasonable
Further
Progress"
and
that
subparagraph
(
B)
of
paragraph
182(
c)(
2)
is
entitled
"
Reasonable
Further
Progress
Demonstration,"
thereby
making
it
clear
that
both
the
15
percent
plan
requirement
of
section
182(
b)(
1)
and
the
3
percent
per
year
requirement
of
section
182(
c)(
2)
are
specific
varieties
of
RFP
requirements.

211
that
Congress'
intent
for
the
ROP
requirement
is
to
lower
ozone
concentrations
within
the
nonattainment
area.
It
is
consistent
with
that
intent
that
emissions
reductions
from
outside
the
nonattainment
area
that
will
reduce
ozone
concentrations
in
the
nonattainment
area
should
be
creditable
in
RFP
demonstrations.
We
also
believe
that
the
CAA
is
clear
that
both
the
15
percent
plan
requirement
of
section
182(
b)(
1)
and
the
3
percent
per
year
requirement
of
section
182(
c)(
2)
are
specific
varieties
of
RFP
requirements.
50
Section
171(
1)
of
the
CAA
states
that,
for
purposes
of
part
D
of
title
I,
RFP
"
means
such
annual
incremental
reductions
in
emissions
of
the
relevant
air
pollutant
as
are
required
by
this
part
or
may
reasonably
be
required
by
the
Administrator
for
the
purpose
of
ensuring
attainment
of
the
applicable
NAAQS
by
the
applicable
date."

Thus,
whether
dealing
with
the
general
RFP
requirement
of
section
172(
c)(
2),
or
the
more
specific
RFP
requirements
of
subpart
2
for
classified
ozone
nonattainment
areas
(
i.
e.,
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
212
the
15
percent
plan
requirement
of
section
182(
b)(
1)
and
the
3
percent
per
year
requirement
of
section
182(
c)(
2)),
the
purpose
of
RFP
is
to
ensure
attainment
by
the
applicable
attainment
date.
Emissions
reductions
strategies
applied
to
sources
outside
the
nonattainment
area
may
help
decrease
ambient
ozone
levels
within
the
designated
area.
Since
RFP/
ROP
is
progress
towards
attainment,
specific,
annual
emissions
reductions
from
geographic
areas
outside
the
nonattainment
area
boundaries
that
contribute
to
lower
ambient
ozone
levels
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."

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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
213
provision
to
allow
creditable
reductions
be
made
outside
nonattainment
areas.
They
asked
if
reductions
made
outside
a
nonattainment
area
actually
bring
that
nonattainment
area
into
compliance
with
the
standard,
then
shouldn't
those
outside
areas
be
designated
nonattainment
by
definition?

The
commenter
contended
that
this
contradiction
is
unacceptable,
and
a
fatal
flaw
of
current
designation
efforts
and
this
implementation
proposal.

Response:
The
commenter
appears
to
be
commenting
on
the
designation
process
as
well
as
the
implementation
rule.

To
the
extent
that
the
commenter
has
concerns
about
the
process
EPA
used
for
designating
areas
as
nonattainment,

those
issues
should
have
been
raised
prior
to
the
time
EPA
promulgated
designations
in
April
2004.
The
EPA
is
not
taking
any
action
in
this
rulemaking
to
establish
the
procedures
for
designating
areas
or
to
designate
areas.
In
the
designation
process
that
was
completed
in
April
2004,

EPA
provided
guidance
to
areas
regarding
how
to
determine
the
boundaries
of
nonattainment
areas
in
light
of
the
statutory
definition
of
"
nonattainment,"
which
provides
that
an
area
will
be
designated
nonattainment
if
it
is
either
violating
the
NAAQS
or
is
a
"
nearby"
area
that
"
contributes
to
ambient
air
quality"
in
an
area
that
is
violating
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
51Memorandum
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.

214
standard.
51
The
CAA
does
not
establish
a
hard­
and­
fast
set
of
rules
for
determining
"
nearby"
or
"
contributes
to,"
 
i.
e.,
it
does
not
specify
a
distance
that
is
nearby
or
a
specific
level
of
emissions
that
is
deemed
to
"
contribute
to"
nonattainment.
Nor
did
EPA
establish
a
hard­
and­
fast
set
of
rules;
rather
the
guidance
provided
a
broad
set
of
factors
for
States
and
EPA
to
consider
in
determining
the
boundaries
of
each
nonattainment
area.
Thus,
it
is
not
inconsistent
with
the
statute
that
there
are
areas
that
were
not
designated
nonattainment,
but
that
have
emissions
that
affect
air
quality
in
a
nonattainment
area.

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
emissions
reductions
within
100
km
and
any
NOx
emissions
reductions
within
200
km
of
the
nonattainment
boundary,
including
reductions
in
adjacent
States,
are
creditable
for
RFP
plan
purposes.
They
also
suggested
that
EPA
provide
that
reductions
from
voluntary
measures
should
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
215
be
incorporated
into
the
baseline
emissions
inventory
calculation.

Another
commenter
stated
that
EPA
does
not
specify
in
§
51.910(
a)(
4)
that
in
areas
where
the
3
percent
annual
reduction
is
required,
those
reductions
must
be
achieved
within
the
statutorily
defined
baseline
"
area."
[
CAA
section
182(
b)(
1)(
B)].
The
commenter
stated
that
we
issued
initial
NOx
substitution
guidance
in
1993
that
required
RFP
reductions
to
be
achieved
from
sources
within
the
designated
nonattainment
area.
The
commenter
noted
that
subsequently,

we
attempted
to
unlawfully
allow
RFP
reductions
to
be
obtained
from
sources
within
the
modeling
domain.
The
commenter
advocated
that
we
clarify
that
the
CAA
requires
creditable
reductions
to
be
obtained
only
from
sources
within
the
designated
nonattainment
areas.

Response:
We
believe
that
the
policy
does
not
need
to
be
incorporated
into
a
rule.
Since
areas
must
include
record
support
for
application
of
the
policy
in
an
area
demonstrating
that
emissions
from
regulated
sources
affect
ambient
air
quality
in
the
specific
nonattainment
area,

individual
rulemaking
in
the
context
of
an
area's
SIP
must
be
conducted
in
any
event
to
implement
the
policy.
The
EPA
believes
that
any
reductions
that
in
fact
result
in
improved
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
216
air
quality
within
the
nonattainment
area
can
be
credited
to
RFP
demonstrations.
Voluntary
emissions
reductions
that
are
used
to
satisfy
RFP
requirements
 
or
any
requirements
under
the
CAA
 
must
meet
EPA's
criteria
for
creditability
of
such
reductions,
particularly
the
inclusion
in
the
baseline
of
the
emissions
from
the
sources
that
would
be
producing
the
voluntary
reductions.
As
explained
elsewhere
in
response
to
another
comment
on
the
policy
of
allowing
substitution
of
controls
from
outside
the
nonattainment
area
within
100
km
for
VOC
and
200
km
for
NOx,
EPA
disagrees
with
the
comment
that
the
CAA
limits
the
scope
of
creditable
emissions
reductions
to
only
those
reductions
in
emissions
emanating
from
within
the
nonattainment
area
boundaries.
We
also
address
elsewhere
the
comment
relating
to
allowance
of
RFP
credit
from
emissions
reductions
outside
the
State
in
which
the
nonattainment
area
is
located.

13.
When
must
RFP
emissions
reductions
be
achieved?

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

a.
Background
Section
51.910(
a)(
1)
of
the
draft
regulatory
text
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
217
provided
that
for
areas
initially
designated
nonattainment
for
the
8­
hour
NAAQS,
the
initial
6­
year
period
for
RFP
shall
run
from
January
1,
2003
to
December
31,
2008.

Section
182(
c)(
2)(
B),
applicable
to
serious
and
above
areas,

requires
that
RFP
be
continued
out
to
the
attainment
date.

Therefore,
§
51.910(
a)(
2)
of
the
draft
regulatory
text
provided,
"
For
each
area
classified
as
serious
or
higher
under
§
51.903,
the
State
must
submit
no
later
than
3
years
after
the
effective
date
of
the
area's
nonattainment
designation
a
SIP
revision
consistent
with
section
182(
c)(
2)(
B)
of
the
CAA
for
each
3
year
period
following
the
initial
6­
year
period
addressed
under
paragraph
(
a)(
1)(
ii)(
B)
of
this
section
until
the
area's
attainment
date.
For
areas
initially
designated
nonattainment
for
the
8­
hour
NAAQS
the
3­
year
periods
referenced
in
section
182(
c)(
2)(
B)
of
the
Act
shall
begin
January
1,
2009."

In
applying
the
requirement
of
section
182(
c)(
2)(
B),
it
is
necessary
to
know
the
attainment
date
for
the
area.
The
attainment
date
is
not
necessarily
the
maximum
allowed
under
part
D
of
the
CAA,
but
must
be
"
as
expeditious
as
practicable"
but
no
later
than
the
maximum
statutory
date
(
e.
g.,
9
years
after
designation
for
a
serious
area).
Thus,

for
purposes
of
determining
the
period
for
which
RFP
is
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
52With
this
rulemaking,
this
provision
is
codified
as
40
CFR
51.908(
d).

218
needed,
the
State
must
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.

There
are
several
other
provisions
that
bear
on
the
issue
of
when
emissions
reductions
must
be
achieved
for
purposes
of
the
RFP
requirements.
The
Phase
1
Rule,

§
51.900(
g)
sets
forth
the
following
definition:
"
Attainment
year
ozone
season
shall
mean
the
ozone
season
immediately
preceding
a
nonattainment
area's
attainment
date."
Also,

§
51.90852
(
What
is
the
required
time
frame
for
obtaining
emission
reductions
to
ensure
attainment
by
the
attainment
date?)
provides:
"
For
each
nonattainment
area,
the
State
must
provide
for
implementation
of
all
control
measures
needed
for
attainment
no
later
than
the
beginning
of
the
attainment
year
ozone
season."
Thus,
if
the
latest
attainment
date
allowed
by
the
CAA
for
a
serious
area
designated
in
2004
is
June
15,
2013,
the
(
complete)
ozone
season
preceding
that
date
would
occur
in
2012.
However,
if
all
of
the
reductions
necessary
to
achieve
attainment
are
in
place
prior
to
that
ozone
season,
then
the
most
expeditious
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
53With
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.

54Note
that
40
CFR
51.900(
g)
defines
"
Attainment
year
ozone
season"
as
the
ozone
season
immediately
preceding
a
nonattainment
area's
attainment
date.

219
attainment
date
would
in
fact
be
just
after
the
end
of
that
ozone
season
in
2012
(
assuming
the
RACM
analysis
did
not
compel
a
more
expeditious
attainment
year).
Thus,
in
light
of
the
Phase
1
rule,
the
latest
possible
attainment
date
for
all
areas
will
be
just
after
the
end
of
the
ozone
season
in
the
year
prior
to
the
outside
attainment
date
identified
in
the
statute
for
the
area's
classification.
53
Consistent
with
the
manner
in
which
ROP
plans
under
the
1­
hour
ozone
standard
were
developed,
the
RFP
baseline
for
2002
will
have
a
typical
summer
day
tons/
day
basis.
As
such,
the
attainment
year
target
will
also
be
a
typical
summer
day
target.
Thus,
the
target
level
of
emissions
must
be
met
by
the
attainment
date
of
the
attainment
year.
54
As
noted
above,
section
182(
c)(
2)(
B)
requires
that
RFP
be
continued
out
to
the
attainment
date.
Thus,
to
some
extent,
the
RFP
requirement
may
help
determine
the
attainment
date.
In
the
example
discussed
above
of
a
serious
area,
the
first
milestone
year
after
2008
by
which
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
220
an
annual
average
of
3
percent
emissions
reductions
would
have
to
be
achieved
over
each
3­
year
period
(
i.
e.,
9
percent
over
3
years)
would
be
2011,
with
an
additional
annual
average
of
3
percent
per
year
between
the
end
of
2011
and
the
attainment
year
(
if
the
attainment
year
is
beyond
2011).

The
maximum
statutory
attainment
year
under
the
discussion
above
would
be
2013,
but,
for
the
reasons
explained
above
concerning
the
date
by
which
emissions
reductions
must
be
achieved,
the
actual
maximum
attainment
year
would
generally
be
the
year
prior,
viz.,
2012.
If
for
example
this
area
needs
an
additional
7
percent
emission
reduction
for
attainment
purposes
beyond
2008,
however,
RFP
would
require
implementation
of
the
entire
7
percent
no
later
than
the
end
of
2011.
Since
that
is
the
amount
needed
for
attainment,

the
area
would
actually
achieve
attainment
by
2011,
and
the
attainment
date
would
then
have
to
be
no
later
than
2011.

If
the
area
did
not
achieve
this
7
percent
reduction
until
the
end
of
2011,
the
RFP
requirement
in
this
case
could
not
require
the
full
9
percent
reduction.
Thus,
since
RFP
is
only
needed
up
to
the
attainment
date,
should
the
area
achieve
the
7
percent
earlier
in
the
year
it
would
have
achieved
attainment
and
no
further
ROP
would
be
required.

Therefore,
in
this
example,
RFP
would
not
require
more
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
221
reductions
than
needed
for
attainment.
Furthermore,
the
RFP
requirement
by
itself
would
not
force
an
attainment
year
earlier
than
2011
for
this
case
(
e.
g.,
2010
 
2
years
after
2008),
since
the
7
percent
reduction
over
2
years
is
greater
than
an
annual
average
of
3
percent,
which
is
beyond
that
required
by
the
RFP
requirement.
In
summary,
RFP
reductions
end
at
the
attainment
date,
and
as
shown
the
RFP
requirement
would
not
result
in
emissions
reductions
greater
than
needed
for
attainment.

b.
Summary
of
final
rule
For
each
area
classified
as
moderate
or
higher,
the
State's
15
percent
VOC
emission
reduction
plan
must
provide
for
the
emissions
reductions
to
be
achieved
by
the
end
of
the
6­
year
period
after
the
baseline
year.
The
6­
year
period
referenced
in
section
182(
b)(
1)
of
the
CAA
shall
begin
January
1
of
the
year
following
the
year
used
for
the
baseline
emissions
inventory.
For
areas
initially
designated
nonattainment
for
the
8­
hour
NAAQS,
the
6­
year
period
runs
from
January
1,
2003
to
December
31,
2008.

For
each
area
classified
as
serious
or
higher,
the
State's
RFP
plan
must
provide
a
3
percent
annual
emission
reduction
requirement
averaged
over
every
3­
year
period
after
the
initial
6­
year
period.
For
areas
initially
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
222
designated
nonattainment
for
the
8­
hour
NAAQS,
the
first
3­

year
period
would
run
from
January
1,
2009
to
December
31,

2011.
The
final
increment
of
progress
must
be
achieved
no
later
than
the
attainment
date
for
the
area.

To
summarize,
for
areas
designated
nonattainment
for
the
8­
hour
NAAQS
with
an
effective
date
of
June
15,
2004,

the
rule
would
establish
the
following:

°
The
6­
year
period
in
section
51.910(
a)(
1)(
i)(
A)
and
(
ii)(
C)(
1)
would
run
from
January
1,
2003
to
December
31,
2008.

°
The
first
3­
year
period
in
section
51.910(
a)(
1)(
i)(
B)

would
run
from
January
1,
2009
to
December
31,
2011.

°
The
baseline
emissions
inventory
in
section
51.910(
d)

would
be
for
calendar
year
2002.

c.
Comments
and
responses
No
comments
were
received
on
the
proposal
concerning
the
timing
of
emissions
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
223
This
topic
was
not
discussed
in
the
proposed
rulemaking,
but
we
believe
that
questions
that
have
arisen
on
this
topic
bear
some
discussion
here.

The
CAA
provides
the
following
definition
in
section
182(
b)(
1)(
D)
regarding
the
15
percent
VOC
RFP
requirement:

Baseline
emissions.
For
purposes
of
subparagraph
(
A),
the
term
"
baseline
emissions"
means
the
total
amount
of
actual
VOC
or
NOx
emissions
from
all
anthropogenic
sources
in
the
area
during
the
calendar
year
of
the
enactment
of
the
Clean
Air
Act
Amendments
of
1990,
excluding
.
.
.
[
emphasis
added.]

The
April
1992
General
Preamble
provides:

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

and
Pre­
enactment
banked
emissions
reductions
credits
are
not
creditable
toward
the
15
percent
progress
requirement.
However,
for
purposes
of
equity,
EPA
encourages
States
to
allow
sources
to
use
such
banked
emissions
credits
for
offsets
and
netting.
When
States
use
such
banked
credits
for
offsets
and
netting
to
the
extent
otherwise
creditable
under
the
Part
D
NSR
regulations,
these
pre­
enactment
emissions
credits
must
be
treated
as
growth.
Consequently,
this
"
growth"
must
be
accounted
for,
as
is
the
case
with
all
other
anticipated
growth,
in
order
to
ensure
that
it
does
not
interfere
with
the
15
percent
rate
of
progress
requirement
(
which
is
"
net"
of
growth).
In
addition,
when
such
growth
emissions
are
used
as
offsets,
they
must
be
applied
in
accordance
with
the
offset
ratio
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
55Guidance
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.

5651
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.

224
prescribed
for
the
area
of
concern
(
e.
g.,
1.3
to
1
for
severe
areas,
etc.).
All
pre­
enactment
banked
credits
must
be
included
in
the
nonattainment
area's
attainment
demonstration
for
ozone
to
the
extent
that
the
State
expects
that
such
credits
will
be
used
for
offsets
or
netting
prior
to
attainment
of
the
ambient
standards.
Credits
used
after
that
date
will
need
to
be
consistent
with
the
area's
plan
for
maintenance
of
the
ambient
standard
[
57
FR
13508].

The
EPA's
1992
guidance
on
calculating
the
15
percent
emission
target55
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[
56],
the
State
is
allowed
to
use
its
preenactment
banked
emissions
reduction
credits
to
facilitate
the
location
of
new
sources
in
nonattainment
areas
during
the
1990­
1996
period.
However,
because
these
reduction
credits
represent
emissions
that
are
not
included
in
the
1990
base
year
inventory,
any
additional
emissions
that
result
from
the
use
of
banked
credits
must
be
treated
as
growth
in
order
to
ensure
that
the
15
percent
VOC
emissions
reduction
requirement
is
achieved.
Also,
it
is
important
to
note
that
the
use
of
pre­
enactment
banked
emissions
credits
must
be
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
225
in
accordance
with
the
offset
ratios
prescribed
in
the
CAA
Amendments
(
e.
g.,
1.3
to
1
in
severe
areas.)

The
1992
guidance
document
provides
an
example
calculation
of
the
above
guidance.

b.
Interpretation
for
8­
hour
ozone
NAAQS
The
guidance
provided
above
is
still
relevant
for
banked
emission
reduction
credits
in
relation
to
the
RFP
requirement
for
the
8­
hour
ozone
standard.
However,
because
the
rule
for
implementing
the
8­
hour
ozone
standard
uses
a
2002
baseline
year,
the
above
guidance
should
be
read
 
for
purposes
of
implementing
the
8­
hour
ozone
RFP
requirement
 
by
substituting
"
pre­
enactment
banked
emission
credits"
with
"
pre­
2002
banked
emission
credits."
A
pre­
2002
banked
emission
credit
is
one
that
was
generated
before
January
1,

2002
and
that
is
certified
in
a
bank
that
EPA
has
approved
for
such
purposes.
For
a
discussion
of
the
use
of
shutdown/
curtailment
credits
for
offsets
and
netting,
see
section
V.
B.
1.
a
of
this
preamble.
For
a
discussion
of
the
use
of
emission
reduction
credits
for
offsets
and
netting,

see
section
V.
D.
5
of
this
preamble.

F.
Are
contingency
measures
required
in
the
event
of
failure
to
meet
a
milestone
or
attain
the
8­
hour
ozone
NAAQS?
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
226
[
Section
VI.
J.
of
June
2,
2003
proposed
rule
(
68
FR
32837);
no
draft
or
final
regulatory
text.]

1.
Background
Under
the
CAA,
8­
hour
ozone
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
32802,
June
2,
2003).
Other
related
information
can
be
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,
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
227
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
(
CO)
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
D.
Kent
Berry,
Acting
Director,
Air
Quality
Management
Division,
November
8,
1993,
and
°
"
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
We
are
adopting
the
approach
taken
in
our
proposal.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
228
All
subpart
1
and
subpart
2
areas
other
than
marginal
areas
are
required
to
adopt
contingency
measures
to
be
implemented
in
the
event
of
failure
to
meet
a
RFP
milestone
or
to
attain
the
8­
hour
ozone
NAAQS.
The
contingency
measures
SIP
should
accompany
the
attainment
demonstration
SIP
required
for
submission
by
June
15,
2007.

It
should
be
noted
that
the
CAA
requires
States
to
identify
contingency
measures
that
will
go
into
effect
without
further
action
on
the
part
of
the
State
or
EPA.
We
believe
this
language
means
that
contingency
measures
should
be
adopted
regulations
but
also
recognize
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.

For
subpart
1
areas,
States
should
follow
EPA's
existing
guidance
for
subpart
2
areas.
We
intend
to
provide
additional
guidance
only
if
needed.

3.
Comments
and
responses
Comment:
Two
commenters
raised
concerns
about
the
difficulty
some
areas
may
have
in
identifying
what
they
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
229
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
230
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.
The
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
CAA's
requirement
for
an
area's
SIP
to
demonstrate
attainment
by
the
attainment
date
is
not
limited
to
the
adoption
only
of
those
measures
that
are
"
feasible."

Comment:
One
commenter
alleged
EPA's
proposal
to
allow
Federal
measures
that
result
in
additional
emissions
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
a
RFP
or
attainment
failure
occurs.

In
other
words,
contingency
measures
must
be
new
measures
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
231
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."
The
April
16,
1992
General
Preamble
provided
the
following
guidance:
"
States
must
show
that
their
contingency
measures
can
be
implemented
with
minimal
further
action
on
their
part
and
with
no
additional
rulemaking
actions
such
as
public
hearings
or
legislative
review.
In
general,
EPA
will
expect
all
actions
needed
to
affect
full
implementation
of
the
measures
to
occur
within
60
days
after
EPA
notifies
the
State
of
its
failure."
(
57
FR
13512).
This
could
include
Federal
measures
and
local
measures
already
scheduled
for
implementation.

The
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
statute
requires
extra
reductions
that
are
not
relied
on
for
RFP
or
attainment
and
that
are
in
the
demonstration
to
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
232
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
Circuit,
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:
The
EPA
acknowledges
the
commenter's
support
of
our
proposal
that
subpart
2
8­
hour
ozone
nonattainment
areas
may
rely
on
our
existing
contingency
measure
guidance.

As
provided
above,
both
subpart
1
and
subpart
2
areas
should
rely
on
that
guidance
for
purposes
of
adopting
contingency
measures.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
233
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);
§
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
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
issued
detailed
guidance
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
57The
EPA
defined
RACT
as
the
lowest
emission
limitation
that
a
particular
source
is
capable
of
meeting
by
the
application
of
control
technology
that
is
reasonably
available
considering
technological
and
economic
feasibility
(
44
FR
53762;
September
17,
1979).

58In
addition,
EPA
is
considering
related
recommendations
from
the
Air
Quality
Management
Work
Group
to
the
Clean
Air
Act
Advisory
Committee
(
CAAAC)
dated
January
2005
[
available
at:
http://
www.
epa.
gov/
air/
caaac/
aqm.
html#
library
]
in
response
to
the
recent
National
Research
Council
report
on
Air
Quality
Management
in
the
United
States
(
January
2004)
[
available
for
sale;
individual
pages
available
for
viewing
at
http://
www.
nap.
edu/
books/
0309089328/
html].
One
of
the
recommendations
to
the
CAAAQ
is
that
"
for
the
SIPs
States
are
required
to
submit
over
the
next
several
years,
EPA
and
States,
locals,
and
Tribes
should
promote
the
consideration
of
multipollutant
impacts,
including
the
impacts
of
air
toxics,
and
where
there
is
discretion,
select
regulatory
approaches
that
maximize
benefits
from
controlling
key
air
toxics,
as
well
as
ozone,
PM2.5
and
regional
haze."
As
part
of
this
effort,
EPA
intends
in
the
future
to
develop
updated
technology
guidance
with
respect
to
source
categories
234
documents
on
RACT
for
ozone
nonattainment
area
SIPs.
57
Section
183(
c)
of
the
CAA
requires
EPA
to
"
revise
and
update
such
documents
[
i.
e.,
Control
Techniques
Guidelines
and
Alternative
Control
Techniques]
as
the
Administrator
determines
necessary."
As
new
or
updated
information
becomes
available
States
should
consider
the
new
information
in
their
RACT
determinations.
States
should
consider
the
new
information
in
any
RACT
determinations
or
certifications
that
have
not
been
issued
by
the
State
as
of
the
time
such
an
update
becomes
available.
58
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emitting
multiple
pollutants
in
large
amounts.
At
this
time,
however,
we
think
it
is
unlikely
that
updated
technology
guidance
will
be
available
in
time
for
the
RACT
SIPs
due
in
2006.

235
The
June
2,
2003
proposal
addressed
several
aspects
of
the
RACT
requirement.
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.
We
proposed
the
RACT
submittal
dates
for
subpart
1
areas
would
be
within
2
years
after
designation.

For
subpart
2
areas,
we
proposed
to
apply
RACT
as
specified
in
subpart
2.
We
proposed
(
in
the
draft
regulatory
text)
to
require
that
States
submit
their
subpart
2
RACT
SIPs
within
2
years
after
the
nonattainment
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designation.
In
addition,
we
proposed
the
date
for
affected
sources
to
implement
RACT
in
subpart
2
areas
would
be
30
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
(
i.
e.,
an
attainment
date
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
3
years
after
designation.

For
subpart
1
areas
that
request
an
attainment
date
extension
(
i.
e.,
an
attainment
date
beyond
5
years
after
designation),
the
State
shall
submit
the
RACT
SIP
with
its
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is
generally
expected
with
the
submission
of
the
attainment
demonstration.

237
attainment
date
extension
request.
59
For
subpart
2
moderate
and
above
areas,
and
areas
within
an
OTR,
RACT
is
required
with
the
RACT
submittal
and
is
due
27
months
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
a
RACT
SIP
submission
(
separate
from
the
attainment
demonstration)
is
required
(
except
certain
subpart
1
areas,
as
described
two
paragraphs
prior
to
this,

and
except
certain
sources
subject
to
the
NOx
SIP
Call
or
CAIR,
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,
the
State
may
submit
a
certification
that
the
source
is
subject
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to
a
SIP­
approved
RACT
requirement.
Such
certification
shall
be
accompanied
by
appropriate
supporting
information,

such
as
consideration
of
information
received
from
public
commenters.

For
purposes
of
meeting
the
NOx
RACT
requirement,
the
State
need
not
perform
(
or
submit)
a
NOx
RACT
analysis
for
sources
subject
to
the
State's
emission
cap­
and­
trade
program
where
the
cap­
and­
trade
program
has
been
adopted
by
the
State
that
meets
the
NOx
SIP
Call
requirements
or,
in
States
achieving
CAIR
reductions
solely
from
EGUs,
the
CAIR
NOx
requirements.
The
EPA
believes
that
the
SIP
provisions
for
those
sources
meet
the
ozone
NOx
RACT
requirement.
A
State
that
is
relying
on
this
conclusion
for
the
affected
sources
should
document
this
reliance
in
its
RACT
SIP.

Additionally,
RACT
is
considered
met
for
cement
kilns
and
stationary
internal
combustion
engines
that
are
subject
to
a
SIP
approved
as
meeting
the
NOx
SIP
Call
obligation
to
install
and
operate
controls
that
are
expected
to
achieve
at
least
a
30
percent
and
82
percent
reduction,
respectively,

from
uncontrolled
levels.
A
State
that
is
relying
on
this
conclusion
for
the
affected
sources
should
document
this
reliance
in
its
RACT
SIP.

A
State
may
meet
the
NOx
RACT
requirement
by
showing
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that
the
weighted
average
emission
rate
from
a
broad
range
of
sources
in
the
nonattainment
area
subject
to
RACT
 
 
meet
RACT
requirements.

At
their
discretion,
States
are
free
to
conduct
a
case­
by­
case
RACT
determination
for
any
source
 
or
RACT
determinations
or
certifications
for
groups
of
sources.

As
discussed
below
in
greater
detail,
States
may
use
information
gathered
from
prior
BACT
or
LAER
analyses,
to
the
extent
it
remains
valid,
to
help
complete
a
RACT
determination.
Similarly,
emissions
standards
developed
under
111(
d)
and
NSR/
PSD
settlement
agreements
may
be
considered.
This
will
allow
States,
in
a
number
of
cases,

to
rely
on
these
prior
determinations
for
purposes
of
showing
that
a
source
is
meeting
RACT
requirements.

For
VOC
sources
subject
to
MACT
standards,
States
may
streamline
their
RACT
analysis
by
including
a
discussion
of
the
MACT
controls
and
considerations
relevant
to
VOC
RACT.

We
believe
that
this
will
allow
States,
in
many
cases,
to
rely
on
the
MACT
standards
for
purposes
of
showing
that
a
source
has
met
VOC
RACT.

Consistent
with
the
proposed
regulatory
text
for
this
rule
[
section
51.912(
b)(
1)],
the
final
rule
provides
that,

for
purposes
of
meeting
the
RACT
obligations
under
section
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182(
b)(
2)(
C)
of
the
CAA
for
major
stationary
sources
of
VOCs
and
under
section
182(
f)
of
the
CAA
for
major
stationary
sources
of
NOx,
the
definition
of
major
stationary
source
in
section
302
of
the
CAA,
as
modified
by
the
major
source
definition
in
either
section
182(
b),
(
c),
(
d)
or
(
e)
of
the
CAA
as
applicable
to
the
area's
classification,
applies.

Although
we
drafted
more
extensive
regulatory
language
for
several
aspects
of
the
RACT
program
in
the
proposal,
we
believe
it
is
sufficient
to
describe
EPA's
views
on
the
details
of
the
RACT
program
in
today's
preamble
and
in
other
guidance
[
e.
g.,
the
NOx
Supplement
to
the
General
Preamble,

November
25,
1992
(
57
FR
55620)].
Thus,
some
detailed
portions
of
the
proposed
regulatory
text
regarding
RACT
were
not
retained
in
the
final
rule
(
in
particular
paragraph
(
b)(
2)
"
Prior
RACT
Determinations").

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
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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
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
CAA
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
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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
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
long­
standing
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
(
D.
C.

Circuit,
2002)
(
concerning
the
Metropolitan
Washington,

D.
C.,
attainment
demonstration)
and
Sierra
Club
v.
EPA,
No.
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243
01­
60537
(
5th
Circuit,
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
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,
some
commenters
suggested,
for
equity
reasons,

that
sources
in
similar
areas
should
be
subject
to
the
same
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control.
In
the
proposal,
EPA
suggested
subpart
1
and
2
areas
with
the
8­
hour
ozone
design
values
above
91
ppb
should
be
subject
to
VOC
and
NOx
RACT
requirements.
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
subpart
2
areas
with
attainment
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
in
which
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
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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
CAA
Amendments
of
1990.

Response:
Section
182(
a)
provides
that
marginal
and
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
CAA
Amendments.
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.

Comment:
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
246
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
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
EGUs
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
3
years
has
been
dramatic
with
controls
previously
considered
to
be
BACT
(
and
therefore
generally
considered
at
the
time
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
247
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
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.

Several
State
and
industry
commenters
recommended
that
RACT
requirements
apply
for
major
sources
in
any
portion
of
the
8­
hour
nonattainment
area
not
subject
to
a
RACT
program
for
the
1­
hour
standard.

Response:
In
1992,
EPA
set
presumptive
NOx
RACT
for
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
248
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.
The
suggestion
of
one
State
that
EPA's
RACT
guidance
should
be
revised
to
reflect
85
percent
control
and
$
10,000/
ton
of
pollutant
removed
is
inconsistent
with
EPA's
previous
conclusions
regarding
what
level
of
control
represents
RACT
and
because
the
comment
lacked
supporting
documentation
that
the
suggested
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
were
subject
to
the
NOx
RACT
requirement
in
the
mid­
1990s.
We
believe
that,
in
many
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
249
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
emissions
reductions
from
application
of
a
second
round
of
controls
would
be
small
and,
therefore,
the
cost
for
advancing
that
small
additional
increment
of
reduction
would
not
be
reasonable.

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
costs
assumed
in
our
current
guidance
noted
above
($
160­$
1300/
ton).
In
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
250
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
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.
Similarly,
we
encourage
States
to
use
the
latest
information
available
in
making
RACT
determinations,
whether
that
information
is
in
CTGs,
ACTs,
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
251
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
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.

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.
States
should
ensure
that
their
SIPs
accurately
reflect
RACT
based
on
the
current
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
252
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
applied
to
meet
the
RACT
requirement
under
the
1­
hour
standard,
States
should
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
in
its
SIP
a
new
RACT
requirement
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
new
data,
that
these
sources
are
already
subject
to
SIP­
approved
requirements
that
still
meet
the
RACT
obligation.
There
are
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.
In
such
cases,
a
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
253
should
be
required
to
meet
RACT.
Furthermore,
in
this
situation,
we
expect
the
incremental
emissions
reductions
to
be
significant,
compared
to
the
uncontrolled
emissions
levels.
Thus,
the
cost
per
ton
of
emissions
controlled
is
more
likely
to
make
controls
"
reasonably
available"
than
where
a
source
had
already
installed
controls
to
meet
RACT
for
the
1­
hour
standard.
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
RACT
requirements
apply
for
major
sources
in
any
portion
of
the
8­
hour
nonattainment
area
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
254
with
RACT
since
the
regulated
pollutant
or
source
applicability
may
differ
and
the
analyses
may
be
conducted
many
years
apart.
States
may,
however,
rely
on
information
gathered
from
prior
BACT
or
LAER
analyses
for
the
purposes
of
showing
that
a
source
has
met
RACT
to
the
extent
the
information
remains
valid.
We
believe
that
the
same
logic
holds
true
for
emissions
standards
for
municipal
waste
incinerators
under
CAA
section
111(
d)
and
NSR/
PSD
settlement
agreements.
Where
the
State
is
relying
on
these
standards
to
represent
a
RACT
level
of
control,
the
State
should
present
their
analysis
with
their
determination
during
the
SIP
adoption
process.

For
VOC
sources
subject
to
MACT
standards,
States
may
streamline
their
RACT
analysis
by
including
a
discussion
of
the
MACT
controls
and
relevant
factors
such
as
whether
VOCs
are
well
controlled
under
the
relevant
MACT
air
toxics
standard,
which
units
at
the
facility
have
MACT
controls,

and
whether
any
major
new
developments
in
technologies
or
costs
have
occurred
subsequent
to
the
MACT
standards.
We
believe
that
there
are
many
VOC
sources
that
are
well
controlled
(
e.
g.,
through
add­
on
controls
or
through
substitution
of
non­
VOC
non­
HAP
materials
for
VOC
HAP
materials)
because
they
are
regulated
by
the
MACT
standards,
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
60However,
there
are
some
MACT
categories
for
which
it
may
not
be
possible
to
determine
the
degree
of
VOC
reductions
from
the
MACT
standard
without
additional
analysis;
for
example,
the
miscellaneous
metal
parts
and
products
(
40
CFR
part
60,
subpart
MMMM)
due
to
the
uncertainty
of
the
compliance
method
that
will
be
selected.

255
which
EPA
developed
under
CAA
section
112.
Any
source
subject
to
MACT
standards
must
meet
a
level
that
is
as
stringent
as
the
best­
controlled
12
percent
of
sources
in
the
industry.
Examples
of
these
HAP
sources
that
may
effectively
control
VOC
emissions
include
organic
chemical
plants
subject
to
the
hazardous
organic
NESHAP
(
HON),

pharmaceutical
production
facilities,
and
petroleum
refineries.
60
We
believe
that,
in
many
cases,
it
will
be
unlikely
that
States
will
identify
emission
controls
more
stringent
than
the
MACT
standards
that
are
not
prohibitively
expensive
and
are
thus
unreasonable.
We
believe
this
will
allow
States,
in
many
cases,
to
rely
on
the
MACT
standards
for
purposes
of
showing
that
a
source
has
met
VOC
RACT.

Comments:
Some
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
PREDECISIONAL
DRAFT
 
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OR
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05
61
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,
EPA's
existing
policy
provides
for
States
to
submit
a
demonstration
as
part
of
their
RACT
submittal
showing
that
the
weighted
average
emission
rate
from
sources
in
the
256
trade
program
without
achieving
greater
emissions
reductions.

Response:
In
some
cases,
a
facility
or
a
group
of
sources
in
a
nonattainment
area
might
choose
to
meet
NOx
RACT
by
adopting
an
emissions
averaging
concept
within
the
area;

e.
g.,
over­
controlling
one
or
more
large
units
and
not
controlling
other
units.
We
agree
with
comments
that
emission
averaging
and
cap­
and­
trade
programs
such
as
the
NOx
SIP
Call
Rule
achieve
emissions
reductions
at
lower
costs.

The
EPA's
NOx
RACT
guidance,
published
on
November
25,
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.,
installing
more
stringent
controls
on
some
units
in
exchange
for
lesser
control
on
others)."

EPA
believes
that
such
cap­
and­
trade
programs
are
beneficial
ways
to
achieve
the
greatest
overall
reductions
in
the
most
cost­
effective
manner.
Consistent
with
previous
guidance,
61
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
nonattainment
area
subject
to
RACT
meet
RACT
requirements.

257
EPA
continues
to
believe
that
RACT
can
be
met
on
average
by
a
group
of
sources
within
a
nonattainment
area
rather
than
at
each
individual
source.
In
addition,
EPA
believes
that
sources
complying
with
the
NOx
SIP
call
trading
system
meet
their
RACT
obligation,
for
reasons
explained
later
in
this
section.

Comments:
Several
State
and
industry
commenters
supported
EPA's
proposed
approach
concerning
RACT
and
the
NOx
SIP
Call.
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.
One
State
encouraged
EPA
to
provide
this
approach
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
NOx
SIP
Call
cap­
and­
trade
programs,
and
EPA
is
without
authority
to
invent
such
an
exception.
Because
the
PREDECISIONAL
DRAFT
 
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NOT
QUOTE,
CITE
OR
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draft
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03/
05
258
NOx
SIP
Call's
cap­
and­
trade
program
does
not
require
emission
control
technologies
to
be
installed
at
a
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:
In
2009,
when
sources
in
areas
designated
nonattainment
for
the
8­
hour
standard
in
June
2004
must
comply
with
RACT,
the
NOx
SIP
call
trading
program
is
subsumed
by
the
CAIR
trading
program.
As
described
below,

EPA
believes
that
sources
meet
ozone
NOx
RACT
requirements
if
PREDECISIONAL
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NOT
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CITE
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05
259
they
comply
with
the
NOx
SIP
Call
trading
program
or,
in
States
where
all
CAIR
reductions
are
achieved
by
EGUs,
rules
implementing
CAIR.
Accordingly,
a
State
need
not
perform
a
NOx
RACT
analysis
for
non­
EGU
sources
that
after
2008
continue
to
be
subject
to
a
SIP
that
regulates
those
non­
EGU
sources
equally
or
more
stringently
than
the
State's
current
rules
meeting
the
NOx
SIP
call.
In
a
NOx
SIP
Call
State
that
ensures
such
reductions
from
non­
EGUs,
the
State
need
not
perform
a
NOx
RACT
analysis
for
EGU
sources
if
the
State
retains
a
summer
season
EGU
budget
under
CAIR
that
is
at
least
as
restrictive
as
the
EGU
budget
that
was
approved
in
the
State's
NOx
SIP
call
SIP.
In
addition,
the
State
need
not
perform
a
NOx
RACT
analysis
for
EGUs
subject
to
a
State
cap­
and­
trade
program
that
meets
CAIR
and
achieves
CAIR
NOx
reductions
solely
from
EGUs.
As
noted
above,
the
SIP
should
document
that
the
State
is
relying
on
EPA's
conclusion
in
this
preamble
that
these
levels
of
control
meet
RACT
for
the
covered
sources.

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
PREDECISIONAL
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05
260
require
such
RACT
as
will
advance
attainment
or
meet
RFP.

Thus,
EPA
does
not
agree
with
commenters
who
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;
thus,
there
would
be
non­

ozonerelated
nitrogen
benefits,
including
fine
particles,

visibility,
nitrification
and
acidification
of
watersheds
and
eutrophication
of
coastal
waters
due
to
year­
round
controls.
However,
since
the
NOx
SIP
call
reductions
must
be
achieved
during
the
5
months
of
the
ozone
season
critical
for
high
ozone
concentrations
for
affected
States,
we
believe
that
the
RACT
requirement
will
be
satisfied
for
sources
covered
by
the
NOx
SIP
Call.
In
addition,
because
many
sources
have
installed
combustion
controls
that
function
all
the
time,
emissions
reductions
from
these
controls
will
occur
year
round.

(
i)
NOx
SIP
Call:
All
States
submitting
SIP
revisions
PREDECISIONAL
DRAFT
 
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NOT
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draft
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05
62The
cost
of
purchasing
allowances
will
often
be
higher
than
the
cost
for
achieving
a
RACT
level
of
control.
In
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).

63The
EPA's
1992
NOx
RACT
guidance
provides
that
the
controls
required
under
title
IV
of
the
CAA
are
RACT
controls
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).
Base
case
refers
to
the
situation
absent
NOx
SIP
call
controls.

261
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,
the
covered
sources
are
already
subject
to
a
stringent
control
program.
62
As
described
in
the
June
2,
2003
proposal,
these
sources
collectively
achieve
more
emissions
reductions
within
the
SIP
Call
area
than
would
be
required
by
application
of
RACT
requirements
to
each
source
in
that
area.
At
the
time
that
EPA
promulgated
the
NOx
SIP
Call
rule,
EPA
estimated
that
in
the
NOx
SIP
Call
control
case,
EGUs
would
achieve
a
64
percent
reduction
beyond
the
base
case
requirements,
63
and
that
the
non­
EGUs
subject
to
the
States'
cap­
and­
trade
program
would
achieve
a
60
percent
reduction
from
PREDECISIONAL
DRAFT
 
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NOT
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CITE
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draft
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03/
05
64
63
FR
57434­
5
65
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.

262
uncontrolled
levels.
64
These
EGU
and
non­
EGU
reductions
were
clearly
beyond
the
30­
50
percent
expected
from
a
RACT
program.
65
We
stated
in
the
final
NOx
SIP
Call
rule
that
the
reductions
achieved
by
that
program
".
.
.
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
may
achieve
emission
reductions
from
many
units
that
are
below
the
general
NOx
RACT
threshold
of
100
tpy
for
sources
in
the
East.

EPA
generally
has
the
discretion
to
determine
whether
a
State
submitted
rule
is
consistent
with
the
RACT
requirements
for
a
particular
source
in
the
context
of
approving
individual
RACT
SIPs.
The
NOx
SIP
Call
is
estimated
to
achieve
a
beyond­
RACT
degree
of
control
regionally,
and
sources
were
required
to
install
any
controls
needed
for
compliance
no
later
than
May
2004.

Under
these
circumstances,
EPA
believes
that
the
NOx
SIP
call
constitutes
RACT
for
those
sources
covered
by
the
Nox
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
11/
03/
05
263
SIP
Call,
regardless
of
the
manner
of
compliance
of
individual
sources
(
e.
g.,
control
equipment
installation
or
purchase
of
allowances
from
other
sources).
EPA
is
making
this
finding
now
for
all
areas
in
the
NOx
SIP
Call
region,

such
that
States
need
not
submit
RACT
analyses
for
sources
subject
to
the
NOx
SIP
call
that
are
in
compliance
with
a
SIP
approved
as
meeting
the
NOx
SIP
Call.
A
State
that
is
relying
on
this
conclusion
for
affected
sources
should
document
this
reliance
in
its
RACT
SIP.

Whether
our
judgment
that
non­
EGU
sources
subject
to
the
NOx
SIP
Call
trading
system
meet
RACT
will
continue
to
apply
in
the
future
depends
upon
how
the
State
chooses
to
make
the
transition
from
the
NOx
SIP
Call
trading
system
to
the
CAIR
trading
system.
After
2008,
EPA
will
no
longer
administer
the
NOx
SIP
Call
trading
system
and
will
only
administer
the
CAIR
trading
system.
A
State
subject
to
the
NOx
SIP
Call
has
three
choices
for
the
transition.
One,
a
State
can
bring
its
non­
EGU
sources
that
are
subject
to
the
NOx
SIP
Call
trading
program
into
the
CAIR
trading
program
with
the
same
emissions
budget
allowed
by
the
State's
current
NOx
SIP
Call
rules.
Two,
a
State
can
adopt
a
SIP
that
regulates
those
non­
EGU
sources
at
least
as
stringently
as
the
State's
current
NOx
SIP
Call
rules,
but
does
not
move
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
11/
03/
05
264
those
sources
into
the
CAIR
trading
program.
Three,
a
State
can
adopt
a
new
SIP
that
meets
its
NOx
SIP
Call
responsibilities,
in
whole
or
in
part,
by
regulating
sources
other
than
the
non­
EGU
sources
regulated
by
the
State's
current
NOx
SIP
Call
trading
program
rules.
We
believe
it
is
unlikely
that
States
will
choose
the
third
option,
given
that
its
non­
EGU
sources
already
would
have
complied
with
the
NOx
SIP
Call
requirements.
Under
the
first
two
options,

we
believe
that
these
non­
EGU
sources
would
continue
to
satisfy
RACT.
Under
the
third
option,
the
State
would
need
to
determine
whether
non­
EGU
sources
that
had
participated
in
the
NOx
SIP
Call
trading
program
continue
to
meet
RACT
(
either
individually,
or
through
averaging
among
sources
within
the
nonattainment
area).

Finally,
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
perform
a
new
NOx
RACT
analysis
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,
are
already
subject
to
a
SIP­
approved
requirement
consistent
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
66As
described
in
the
April
21,
2004
rule
(
69
FR
21608).

67
CAIR
achieves
about
85%
of
its
NOx
emission
reductions
in
2009
(
remainder
in
2015).

265
with
RACT.
The
EPA
received
comments
from
States
supporting
the
proposal.
Similarly,
EPA
believes
a
State
may
choose
to
accept
the
Phase
II
NOx
SIP
Call
control
level
for
stationary
internal
combustion
engines66
as
meeting
the
NOx
RACT
requirements
and
identify
these
obligations
as
RACT
level
controls
in
its
RACT
SIP.

(
ii)
CAIR:
The
EPA
has
determined
that
EGU
sources
complying
with
CAIR
requirements
meet
ozone
NOX
RACT
requirements
in
States
where
CAIR
reductions
are
achieved
from
EGUs
only.

First,
as
discussed
more
fully
in
the
CAIR
final
rulemaking,
EPA
has
set
the
2009
CAIR
NOx
cap
at
a
level
that,
assuming
the
reductions
are
achieved
from
EGUs,
would
result
in
EGUs
installing
emission
controls
on
the
maximum
total
capacity
on
which
it
is
feasible
to
install
emission
controls
by
those
dates.
The
2015
NOx
cap
is
specifically
designed
to
eliminate
all
NOx
emissions
from
EGUs
that
are
highly
cost
effective
to
control
(
the
first
cap
represents
an
interim
step
toward
that
end).
67
In
general,
we
expect
PREDECISIONAL
DRAFT
 
DO
NOT
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OR
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draft
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03/
05
266
that
the
largest­
emitting
sources
will
be
the
first
to
install
NOx
control
technology
and
that
such
control
technology
will
gradually
be
installed
on
progressively
smaller­
emitting
sources
until
the
ultimate
cap
is
reached.

We
do
not
believe
that
requiring
source­
specific
RACT
controls
on
EGUs
in
nonattainment
areas
will
reduce
total
NOx
emissions
from
sources
covered
by
CAIR
below
the
levels
that
would
be
achieved
under
CAIR
alone.
Furthermore,
we
believe
that
source­
specific
RACT
could
result
in
more
costly
emission
reductions
on
a
per
ton
basis.
If
States
chose
to
require
smaller­
emitting
sources
in
nonattainment
areas
to
meet
source­
specific
RACT
requirements
by
2009
(
the
required
compliance
timing
for
RACT),
they
would
likely
use
labor
and
other
resources
that
would
otherwise
be
used
for
emission
controls
on
larger
sources.
Because
of
economies
of
scale,

more
boiler­
makers
and
other
resources
may
be
required
per
megawatt
of
power
generation
for
smaller
units
than
larger
units.
Thus,
the
cost
of
achieving
such
reductions
would
be
greater
on
a
per
ton
basis.
In
any
event,
the
imposition
of
source­
specific
control
requirements
on
a
limited
number
of
sources
also
covered
by
a
cap­
and­
trade
program
would
not
reduce
the
total
emissions
from
sources
subject
to
the
program.
Under
a
cap­
and­
trade
program
such
as
CAIR,
there
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
11/
03/
05
267
is
a
given
number
of
allowances
that
equals
a
given
emission
level.
Source­
specific
control
requirements
may
affect
the
temporal
distribution
of
emissions
(
by
reducing
banking
and
thus
delaying
early
reductions)
or
the
spatial
distribution
of
emissions
(
by
moving
them
around
from
one
place
to
another),
but
it
does
not
affect
total
emissions.
If
source­
specific
requirements
were
targeted
at
the
units
that
can
be
controlled
most
cost
effectively,
then
the
imposition
of
source­
specific
controls
would
achieve
the
same
result
as
the
projected
CAIR
cap­
and­
trade
program.
If
not,
however,

the
imposition
of
source­
specific
requirements
would
make
any
given
level
of
emission
reduction
more
costly
than
it
would
be
under
the
cap­
and­
trade
program
alone.
Thus,
the
combination
of
source­
specific
RACT
and
CAIR
would
not
reduce
the
collective
total
emissions
from
EGUs
covered
by
CAIR,
but
would
likely
achieve
the
same
total
emissions
reductions
as
CAIR
alone,
in
a
more
costly
way.
As
a
result,
we
believe
that
EGUs
subject
to
the
CAIR
NOx
controls
meet
the
definition
of
RACT
for
NOx
(
in
States
that
require
all
CAIR
NOx
reductions
from
EGUs).
EPA
is
making
this
finding
now
for
all
areas
in
the
NOx
SIP
Call
region,
such
that
States
need
not
submit
RACT
analyses
for
sources
subject
to
the
NOx
SIP
Call
that
are
in
compliance
with
a
PREDECISIONAL
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03/
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268
SIP
approved
as
meeting
the
NOx
SIP
Call.

Under
CAIR,
a
State
may
elect
to
meet
its
State
budget
for
NOx
emissions
solely
through
requiring
reductions
from
EGUs
or
through
requiring
reductions
from
a
combination
of
sources,
including
non­
EGUs.
If
the
State
requires
reductions
from
sources
other
than
EGUs,
it
is
not
eligible
to
participate
in
the
EPA­
administered
CAIR
trading
program.

Additionally,
separate
provisions
of
the
CAIR
rule
allow
States
to
choose
to
allow
large
NOx
sources
that
are
not
EGUs
to
opt­
in
to
the
program.
If
only
part
of
the
CAIR
reductions
are
required
from
EGUs,
and
the
balance
of
the
reductions
obtained
from
non­
EGU
sources,
then
the
stringency
of
CAIR
EGU
control
would
be
diminished
to
some
extent
(
an
amount
that
cannot
be
determined
until
a
State
submits
a
SIP
indicating
which
sources
are
participating
in
the
program).
Therefore,
in
these
cases,
the
above
rationales
for
our
judgment
that
CAIR
satisfies
RACT
would
not
apply.
However,
even
where
a
State
allows
opt­
ins
from
other
source
categories
to
meet
CAIR
emission
levels,
if
a
State
transitions
from
the
NOx
SIP
call
level
of
control
to
CAIR
by
the
first
two
transition
options
for
non­
EGUs
discussed
above,
the
NOx
RACT
requirement
would
be
met
for
EGUs
(
and
the
State
would
not
need
to
conduct
RACT
analyses
PREDECISIONAL
DRAFT
 
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NOT
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03/
05
269
for
these
EGUs)
if
the
State
retains
a
summer
season
EGU
budget
under
CAIR
that
is
at
least
as
restrictive
as
the
EGU
budget
that
was
set
in
the
State's
NOx
SIP
call
SIP.

Otherwise,
the
State
would
need
to
conduct
RACT
analyses
for
EGUs
(
either
on
an
individual
basis,
or
using
the
averaging
approach
within
the
nonattainment
area).

Also,
EGU
controls
adopted
to
comply
with
CAIR
will
be
in
addition
to
the
numerous
controls
already
adopted
to
meet
state
rules
implementing
the
NOx
SIP
call
or
other
existing
requirements.

For
clarity,
we
would
note
that
a
State
has
discretion
to
require
beyond­
RACT
NOx
reductions
from
any
source
(
including
CAIR
or
NOx
SIP
Call
sources),
and
has
an
obligation
to
demonstrate
attainment
as
expeditiously
as
practicable.
In
certain
areas,
States
may
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
subpart
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
270
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
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
3
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,

all
controls
necessary
for
attainment
must
be
implemented
by
the
beginning
of
the
attainment
year
ozone
season.
For
example,
States
would
need
to
require
implementation
no
later
than
May
1,
2008
where
the
area
has
a
June
15,
2009
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
68This
assumes
the
ozone
season
in
this
example
begins
May
1.

271
attainment
date.
68
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
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.

For
subpart
2
moderate
and
above
areas
and
areas
within
an
OTR,
the
final
rule
is
similar
to
provisions
in
section
182
of
the
CAA
which
require
States
to
submit
RACT
rules
for
these
areas
within
24
months
after
the
designation.
Several
commenters
supported
this
approach.
Since
some
States
may
rely
on
submittal
of
SIP
revisions
meeting
CAIR
to
also
satisfy
RACT
for
some
sources,
the
final
rule
extends
the
proposed
RACT
submittal
date
of
24
months
to
27
months
after
designation
(
September
15,
2006),
to
be
consistent
with
the
date
for
submittal
of
the
CAIR
SIP
(
September
10,
2006).

For
areas
subject
to
the
27­
month
RACT
submittal
date,

EPA
believes
the
proposed
30­
month
period
for
installation
of
controls
is
reasonable,
given
that
this
is
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
69In
the
1990
CAA
Amendments,
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.

272
statutorily­
prescribed
period69
(
for
the
areas
covered
under
subpart
2)
and
based
on
our
prior
experience
with
States
adopting
and
implementing
RACT
requirements.
For
instance,

subsequent
to
submission
of
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
implementation
within
2
years
from
the
State
adoption
date.
Also,
the
EPA
recently
determined
that
a
24­
month
period
is
adequate
for
stationary
internal
combustion
engines
to
install
low
emission
combustion
controls
(
April
21,
2004;
69
FR
21633).

The
48
to
60­
month
period
(
June
15,
2011)
for
installation
of
controls
suggested
by
some
commenters
was
not
adequately
supported
with
a
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
7057
months
from
June
15,
2004
effective
date
of
designation
(
27
months
to
submission
plus
30
months
to
implementation).

71Note,
since
the
CAA
requires
attainment
as
expeditiously
as
practicable,
some
moderate
nonattainment
areas
may
have
an
attainment
date
earlier
than
June
15,
2010.

273
8­
hour
standard.
Thus,
because
fewer
sources
will
be
subject
to
new
requirements
to
meet
RACT
for
the
8­
hour
standard
than
were
subject
to
the
1­
hour
standard,
there
will
be
less
demand
for
control
equipment.
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)

does
not
begin
for
many
areas
until
May
1,
however,
for
areas
with
an
effective
date
of
designation
of
June
15,

2004,
the
final
rule
allows
sources
until
the
beginning
of
the
area's
2009
ozone
season
(
generally
May
1,
2009)
rather
than
March
15,
200970
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.
71
And
the
short
delay
(
generally
between
March
15,
2009
and
May
1,
2009)
will
cause
no
harm
since
it
is
prior
to
the
ozone
season,
which
is
when
ozone
levels
are
most
likely
to
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
274
be
at
harmful
levels.
Sources
meeting
NOx
RACT
through
compliance
with
CAIR
would
be
subject
to
the
CAIR
NOx
caps
beginning
January
1,
2009.
Additionally,
some
areas
have
ozone
seasons
that
begin
earlier
than
March
15,
2009
and
would
need
to
ensure
sources
are
complying
by
that
earlier
date.

For
subpart
1
areas
that
request
an
attainment
date
extension
(
i.
e.,
an
attainment
date
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
are
required
to
submit
the
RACT
SIP
with
its
attainment
date
extension
request.

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
that
provision
to
require
a
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
72"
State
Implementation
Plans;
General
Preamble
for
Proposed
Rulemaking
on
Approval
of
Plan
Revisions
for
Nonattainment
Areas"
44
FR
20372
at
20375.
"
Provide
for
implementation
of
all
reasonably
available
control
measures
(
RACM)
as
expeditiously
as
practicable,
insofar
as
necessary
to
assure
reasonable
further
progress
and
attainment
by
the
required
date.
.
."

"
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).
In
part
this
guidance
said,
"
The
EPA
.
.
.
indicated
that
where
measures
that
might
in
fact
be
available
for
implementation
in
the
nonattainment
area
could
not
be
implemented
on
a
schedule
that
would
advance
the
date
for
attainment
in
the
area,
EPA
would
not
consider
it
reasonable
to
require
implementation
of
such
measures.
The
EPA
continues
to
take
this
interpretation
of
the
RACM
requirement."
As
an
example,
with
regard
to
one
possible
list
of
measures
(
TCMs
under
section
108(
f)
of
the
Act)
that
guidance
said,
".
.
.
based
on
experience
with
implementing
TCM's
over
the
years,
EPA
now
believes
that
local
circumstances
vary
to
such
a
degree
from
city­
to­
city
that
it
is
inappropriate
to
presume
that
all
section
108(
f)
measures
are
reasonably
available
in
all
areas.
It
is
more
appropriate
for
States
to
consider
TCM's
on
an
areaspecific
not
national,
basis
and
to
consider
groups
of
interacting
measures,
rather
than
individual
measures."
"
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,

275
demonstration
that
the
State
has
adopted
all
reasonable
measures
to
meet
RFP
requirements
and
to
demonstrate
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.
72
The
RACM
requirement,
which
is
set
forth
in
section
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
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."

276
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
noted
that
EPA
had
issued
policies
and
procedures
related
to
RACM.
The
draft
regulatory
text
(
section
51.912(
d))
provided
that
for
each
nonattainment
area
required
to
submit
an
attainment
demonstration
under
§
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
§
51.908,
the
State
must
submit
with
the
attainment
demonstration
a
SIP
revision
demonstrating
that
it
has
adopted
all
control
measures
necessary
to
demonstrate
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attainment
as
expeditiously
as
practicable
and
to
meet
any
RFP
requirements.

In
the
CAIR
rulemaking
(
May
12,
2005,
70
FR
25221
et
seq.),
EPA
found
that
the
control
installations
projected
to
result
from
the
CAIR
NOx
and
SO2
caps
in
2009
and
2010
would
be
as
much
as
feasible
from
EGUs
across
the
CAIR
region
by
those
dates.
EPA
concluded
that
the
CAIR
compliance
dates
represent
an
aggressive
schedule
that
reflects
the
limitations
of
the
labor
pool,
and
equipment/
vendor
availability,
and
need
for
electrical
generation
reliability
for
installation
of
NOx
emission
controls.
We
believe
that
the
CAIR
rule
appropriately
reflects
the
constraints
the
EGU
sector
faces
in
achieving
NOx
reductions
in
a
way
that
is
as
expeditious
as
practicable.
States
should
recognize
these
constraints
in
developing
their
own
compliance
schedules
for
NOx
emission
controls
in
meeting
their
CAIR
and
RACM
responsibilities.
However,
the
CAIR
rule
did
not
specify
which
sources
should
install
emissions
control
equipment
or
reduce
emission
rates
to
a
specific
level
in
order
to
meet
the
SO2
and
NOx
caps
under
CAIR.

Based
on
our
experience
developing
the
NOx
SIP
Call,

CAIR,
and
the
proposed
Clear
Skies
Legislation,
we
believe
that
many
power
companies
will
develop
their
strategies
for
PREDECISIONAL
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278
complying
with
CAIR
based,
in
part,
on
consultations
with
air
quality
officials
in
the
areas
in
which
their
plants
are
located.
Because
power
plants
are
generally
major
emission
sources,
the
operators
of
those
plants
typically
have
ongoing
relationships
with
State
and
local
officials
that
will
be
involved
in
developing
air
quality
plans.
We
are
aware
that,
in
the
past,
companies
have
worked
with
air
quality
officials
to
meet
their
emission
control
obligations
under
a
cap­
and­
trade
approach
such
as
the
NOx
SIP
Call
while
also
addressing
the
concerns
of
air
quality
officials
about
the
air
quality
impacts
of
specific
plants.
This
has
led
to
controlling
emissions
from
power
plants
located
in
or
near
specific
ozone
nonattainment
areas.
A
number
of
companies
have
indicated
that
such
collaboration
will
be
even
more
important
as
the
States
in
which
they
are
located
address
multiple
air
quality
goals
(
e.
g.,
visibility,

interstate
air
pollution,
local
attainment
of
standards
for
multiple
pollutants).

The
EPA
expects
similar
consultations
between
States
and
power
sector
companies
on
which
plants
will
be
controlled
under
CAIR,
considering
local
attainment
needs
in
planning
for
CAIR
compliance.
This
consultation
might
promote
opportunities
to
provide
improved
air
quality
PREDECISIONAL
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earlier
for
large
numbers
of
people.
Power
companies
may
identify
economic
advantages
in
situating
CAIR
controls
to
help
the
local
area
attain;
for
example,
it
might
need
to
control
fewer
facilities
for
the
area
to
reach
attainment.

These
benefits
may
outweigh
any
additional
marginal
costs
the
company
might
incur
by
forgoing
less
costly
controls
on
another
more
distant
plant.
In
any
event,
the
intent
of
these
consultations
would
not
be
to
upset
market
behavior
or
incentives.
With
respect
to
ozone,
we
anticipate
that
these
consultations
will
affect
individual
control
decisions
for
a
few
areas.

In
this
regard,
EPA
notes
that
CAIR
SIPs
will
be
due
in
2006,
while
local
8­
hour
ozone
attainment
plans
will
be
due
in
2007.
The
EPA
suggests
that
consultations
on
location
of
CAIR
controls
would
be
timely
during
State
development
of
the
CAIR
SIP.

As
States
implement
the
RACM
provisions
in
conjunction
with
their
attainment
demonstration,
we
recognize
that
for
some
moderate
areas
and
some
subpart
1
areas
it
may
be
difficult
to
demonstrate
attainment
in
less
than
5
years
due
to
the
time
needed
to
adopt
and
implement
controls,
and
the
need
to
achieve
significant
emissions
reductions
to
advance
the
attainment
date.
However,
the
State
will
need
to
assess
PREDECISIONAL
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NOT
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OR
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draft
11/
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280
RACM
to
determine
whether
the
attainment
date
could
be
sooner
than
5
years
from
designation
for
each
nonattainment
area.

EPA
believes
that
while
areas
projected
to
attain
within
5
years
of
designation
as
a
result
of
existing
national
measures
should
still
be
required
to
conduct
a
RACM
analysis,
such
areas
may
be
able
to
conduct
a
limited
RACM
analysis
that
does
not
involve
additional
air
quality
modeling
beyond
that
used
for
the
attainment
demonstration.

A
limited
analysis
of
this
type
could
involve
the
review
of
available
reasonable
measures,
the
estimation
of
potential
emissions
reductions,
the
evaluation
of
the
time
needed
to
implement
these
measures,
and
anticipated
levels
of
regional
controls
affecting
ozone
in
the
nonattainment
area.
If
the
State
could
not
achieve
significant
emissions
reductions
by
the
beginning
of
2008
due
to
time
needed
to
implement
reasonable
measures
or
other
factors
(
including
regional
transport
considerations),
then
it
could
be
concluded
that
reasonably
available
local
measures
would
not
advance
the
attainment
date.
In
lieu
of
conducting
air
quality
modeling
to
assess
the
impact
of
potential
RACM
measures,
existing
modeling
information
could
be
considered
in
determining
the
magnitude
of
emissions
reductions
that
could
significantly
PREDECISIONAL
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73Ibid.

281
affect
air
quality
and
potentially
result
in
earlier
attainment.
If
the
State,
in
consultation
with
EPA,

determines
from
this
initial,
more
limited
RACM
analysis
that
the
area
may
be
able
to
advance
its
attainment
date
through
implementation
of
reasonable
measures,
then
the
State
must
conduct
a
more
detailed
RACM
analysis,
involving
air
quality
modeling
analyses,
to
assess
whether
it
can
advance
the
attainment
date.

c.
Comments
and
responses
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.
73
The
April
16,
1992,
"
General
Preamble"

provides
some
guidance
on
measures
that
the
State
should
consider
in
making
its
RACM
determination,
including
"
any
measure
that
a
commenter
indicates
during
a
public
comment
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282
period
is
reasonably
available
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."
Such
measures
can
be
rejected
as
not
being
RACM
if
they
will
not
advance
attainment
or
provide
for
RFP
or
if
they
are
not
economically
or
technologically
feasible.

Comment:
One
commenter
recommended
that
EPA
revise
its
policy
permitting
SIPs
to
exclude
otherwise
feasible
and
potentially
RACM
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
timeframe
over
which
land
is
developed
and
redeveloped.
The
commenter
believes
that
ever­
increasing
suburbanization
of
our
nation
inflates
the
growth
rate
in
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
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283
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
CAA
requirements,
which
include
the
requirements
to
demonstrate
attainment
as
expeditiously
as
practicable
and
to
make
RFP
toward
attainment.
In
addition,
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
CAA
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
PREDECISIONAL
DRAFT
 
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NOT
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CITE
OR
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draft
11/
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05
74Improving
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.

284
credit
for
land
use
control
measures.
74
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
is
not
required
to
meet
RFP
requirements
 
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
a
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
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
subpart
2
areas,
works
to
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285
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
CAA,
the
State
must
determine
as
part
of
its
attainment
demonstration
whether
there
are
additional
measures
that
are
feasible
that
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
PREDECISIONAL
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75In
"
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.

286
suggested
for
the
particular
nonattainment
area.
75
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
or
are
necessary
for
RFP.
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.
Circuit,
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
on
the
submission
timing
of
the
RACM
requirements.

H.
How
will
the
section
182(
f)
NOx
provisions
be
handled
PREDECISIONAL
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76See
57
FR
55622
("
Nitrogen
Oxides
Supplement
to
the
General
Preamble,"
published
November
25,
1992).

287
under
the
8­
hour
ozone
standard?

[
Section
VI.
L.
of
June
2,
2003
proposed
rule
(
68
FR
32840);
§
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
relevant
requirements
are
RACT
and
nonattainment
major
NSR
for
major
stationary
sources
of
NOx
in
certain
ozone
nonattainment
areas
and
throughout
States
in
the
OTR.
76
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
under
section
182(
f)
may
be
exempt
from
certain
requirements
of
EPA's
motor
vehicle
I/
M
regulations
and
from
certain
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
77As
stated
in
EPA's
I/
M
(
November
5,
1992;
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
grants
an
areawide
exemption
under
section
182(
f).

7868
FR
32840.

79September
1,
2004
at
69
FR
53378.

80The
EPA's
primary
guidance
regarding
section
182(
f)
is
contained
in
the
"
Guideline
for
Determining
the
Applicability
of
Nitrogen
Oxide
Requirements
under
Section
182(
f),"
issued
by
John
S.
Seitz,
Director,
Office
of
Air
Quality
Planning
and
Standards,
to
the
Regional
Division
Directors,
December
16,
1993.

288
Federal
requirements
of
general
and
transportation
conformity.
77
In
the
June
2,
2003
action,
we
indicated
the
NOx
requirements
and
exemption
provisions
in
section
182(
f)

would
apply
for
subpart
2
nonattainment
areas
and
in
OTRs.
78
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
comment79
on
draft
guidance
intended
to
update
the
existing
1­
hour
ozone
guidance80
regarding
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
81Memorandum
dated
January
14,
2005,
"
Guidance
on
Limiting
Nitrogen
Oxides
(
NOx)
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.

289
section
182(
f)
for
application
to
the
8­
hour
ozone
program.

We
issued
the
updated
final
guidance
regarding
section
182(
f)
on
January
14,
2005.81
2.
Summary
of
final
rule
As
proposed,
the
final
rule
allows
a
person
to
petition
the
Administrator
for
a
NOx
exemption
under
section
182(
f)

for
an
area
classified
under
subpart
2
or
located
in
an
OTR
or
under
our
regulations
for
any
other
area
designated
nonattainment
for
the
8­
hour
ozone
NAAQS.
As
with
the
1­
hour
ozone
standard,
the
NOx
exemption
provision
in
section
182(
f)
applies
to
subpart
2
ozone
nonattainment
areas
and
in
a
section
184
OTR.
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.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
82Memorandum
dated
January
14,
2005,
"
Guidance
on
Limiting
Nitrogen
Oxides
(
NOx)
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.

290
We
recently
issued82
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
all
areas
in
an
OTR
under
either
subpart
1
or
subpart
2,

pursuant
to
the
provisions
of
section
182(
f)
of
the
CAA.

Some
commenters
stated
that
requiring
a
new
NOx
waiver
for
the
8­
hour
standard
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
granted
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
291
under
section
182(
f)
of
the
CAA
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
hour
ozone
standard
in
areas
where
EPA
previously
granted
a
NOx
waiver
under
the
1­
hour
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
hour
ozone
standard
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
 
including
those
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
83E.
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,
expired
December
31,
1997).
(
60
FR
19515)

292
granted
under
the
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.
83
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
for
purposes
of
the
1­
hour
standard,
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
hour
ozone
standard;

this
is
not
an
appropriate
basis
for
a
waiver
under
the
8­
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
293
hour
ozone
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
hour
NOx
waiver
requests
based
on
previously
issued
1­
hour
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
11/
03/
05
84December
1991
NAS
report,
Rethinking
the
Ozone
Problem
in
Urban
and
Regional
Air
Pollution,
page
377.

294
be
irresponsible,
and
an
abuse
of
its
discretion.

Response:
The
EPA
disagrees
with
these
comments.
We
do
not
see
any
provision
in
the
CAA
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
chose
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."
84
Thus,
the
section
185B
report
does
not
support
a
waiver
provision
for
VOC.
While
dispersion
modeling
analyses
show
that
NOx
emissions
reductions
can
be
counterproductive
under
certain
circumstances
(
the
reason
for
the
NOx
waiver
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
295
provision),
we
do
not
see
a
similar
case
for
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
NAAQS.

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.

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
CAA
can
be
considered
independently.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
296
Section
110(
a)(
2)(
D)
requires
States
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
established
under
a
NOx
SIP
Call
or
other
transport
rule.

I.
Should
EPA
promulgate
a
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
297
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
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
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.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
298
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
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
designed
to
work
only
through
the
specific
issues
in
establishing
a
program
to
encourage
CADCs
as
outlined
in
the
proposal,
but
will
be
open
to
all
ideas.

Issues
related
to
community
development,
land
use
and
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
299
"
sprawl"
will
have
transportation
and
air
quality
implications.
Therefore,
EPA
will
work
closely
with
DOT
in
addressing
these
issues.

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.

Additionally,
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.
While
EPA
expects
that
strategies
to
decrease
ozone
concentrations
will
not
adversely
affect
strategies
to
attain
the
PM2.5
NAAQS,
we
also
believe
integration
of
ozone,
PM2.5,
and
regional
haze
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
300
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
that
overlaps
or
is
nearby
a
PM2.5
nonattainment
area
to
take
all
reasonable
steps
to
coordinate
the
SIP
development
processes
for
these
nonattainment
areas
and
to
coordinate
the
development
of
these
SIPs
with
the
State's
SIP
to
address
the
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,
while
we
believe
such
coordination
may
reduce
the
overall
costs
to
States
for
implementing
these
programs,
this
final
rule
does
not
require
the
State
to
coordinate
these
three
planning
efforts.

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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
301
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
302
are
developing
a
multi­
pollutant
strategy.
Commenters
stated
that
it
is
imperative
that
SIP
obligations
and
attainment
dates
with
respect
to
these
regulated
air
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
timelines
for
ozone,
PM2.5,
and
regional
haze.
This
8­
hour
ozone
implementation
rule
is
necessarily
based
on
the
existing
CAA
and
does
not
assume
any
changes
to
the
CAA
that
may
occur
in
the
future.
Thus,

we
cannot
extend
the
submission
dates
for
8­
hour
ozone
SIPs
so
that
they
match
the
later
submission
dates
for
PM2.5
and
regional
haze
SIPs.
However,
there
is
a
substantial
overlap
in
planning
periods
that
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);
§
51.915
in
draft
and
final
regulatory
text.]
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
303
1.
Background
Section
182(
a)(
1)
requires
that
marginal
and
above
ozone
nonattainment
areas
submit
an
emission
inventory
2
years
after
designation
as
nonattainment
in
1990.
For
nonattainment
areas
classified
under
subpart
2
for
the
8­

hour
ozone
standard,
we
proposed
to
interpret
this
to
mean
that
an
emission
inventory
would
be
required
2
years
after
designation
(
i.
e.,
in
2006
if
EPA
designates
areas
in
2004).

The
Consolidated
Emission
Reporting
Rule
(
CERR)
in
40
CFR
part
51,
subpart
A,
requires
States
to
submit
comprehensive
statewide
triennial
emission
inventories,

beginning
with
the
2002
inventory
year,
regardless
of
an
area's
attainment
status.
Because
these
emission
inventories
will
be
available,
we
proposed
that
the
data
elements
required
for
emission
inventories
by
the
CERR
could
be
used
to
prepare
the
emissions
inventories
under
the
8­

hour
NAAQS.
The
draft
regulatory
text,
however,
did
not
contain
a
specific
requirement
that
the
emission
inventory
be
submitted
as
a
SIP
revision
within
2
years
after
designation.

For
subpart
1
areas,
section
172,
paragraphs
(
b)
and
(
c)(
3)
require
submission
of
the
nonattainment
area
emission
inventory
as
part
of
the
SIP
by
a
date
established
by
EPA,
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
85(
available
at:
http://
www.
epa.
gov/
ttn/
chief/
eidocs/
eiguid/
index.
html)

304
which
cannot
be
later
than
3
years
after
designation
as
a
nonattainment
area.
However,
the
June
2,
2003
proposal
did
not
specify
a
deadline
for
submission
of
the
emission
inventory
for
subpart
1
areas.

The
proposal
also
noted
that
we
would
be
updating
the
April
1999
"
Emissions
Inventory
Guidance
for
Implementation
of
Ozone
and
Particulate
Matter
National
Ambient
Air
Quality
Standards
(
NAAQS)
and
Regional
Haze
Regulations,"
EPA­
454/
R­

99­
006.
This
guidance
has
been
updated
and
now
is
available
as:
"
Emission
Inventory
Guidance
for
Implementation
of
Ozone
and
Particulate
Matter
National
Ambient
Air
Quality
Standards
(
NAAQS)
and
Regional
Haze
Regulations",
EPA­
454/
R­

05­
001.85
This
guidance
complements
the
CERR
by
providing
guidance
on
how
to
prepare
data
for
emissions
inventory
SIP
submissions.

2.
Summary
of
final
rule
Section
51.915
of
the
final
rule
reflects
our
June
2,

2003
proposal
but
is
different
from
the
draft
regulatory
text.
To
ensure
comprehensive
treatment
of
emission
inventory
requirements,
the
final
rule
contains
language
addressing
the
deadlines
for
submission
of
emission
PREDECISIONAL
DRAFT
 
DO
NOT
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CITE
OR
DISTRIBUTE
draft
11/
03/
05
305
inventories
for
both
subpart
1
and
subpart
2
areas.
The
deadlines
reflect
the
statutory
requirements
of
no
later
than
3
years
after
designation
for
a
subpart
1
area,
and
no
later
than
2
years
after
designation
for
subpart
2
areas.

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.
Consistent
with
the
statutory
schedule
in
section
182(
a)(
1)
of
the
CAA,

the
final
regulatory
text
in
section
51.915
requires
submission
of
an
emission
inventory
no
later
than
2
years
after
designation
as
part
of
a
subpart
2
SIP.
Consistent
with
the
statutory
schedule
in
paragraphs
(
b)
and
(
c)(
3)
of
section
172
of
the
CAA,
the
final
regulatory
text
in
section
51.915
requires
submission
of
an
emission
inventory
no
later
than
3
years
after
designation
as
part
of
a
subpart
1
SIP.

In
its
guidance
titled,
"
Public
Hearing
Requirements
for
1990
Base­
Year
Emissions
Inventories
for
Ozone
and
Carbon
Monoxide
Nonattainment
Areas,"
September
29,
1992,

EPA
set
forth
its
interpretation
of
a
"
de
minimis"
deferral
of
the
public
hearing
requirement
and
the
requirement
for
EPA
to
approve
or
disapprove
emissions
inventories
under
section
110(
k).
The
EPA
intends
to
follow
this
guidance
in
implementation
of
the
emissions
inventory
requirements
under
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
86The
CERR
requires
emissions
inventory
data
on
a
statewide
basis.

306
the
8­
hour
ozone
standard,
under
which
areas
could
defer
holding
public
hearings
on
their
inventories
and
EPA
could
defer
approving
such
inventories
until
the
time
the
areas
adopt
and
submit
their
attainment
demonstrations
and/
or
RFP
plans.

Existing
emissions
reporting
requirements
in
40
CFR
part
51,
subpart
A
can
be
applied
to
determine
the
data
elements
required
for
emissions
inventories
under
the
8­
hour
ozone
NAAQS
(
see,
e.
g.
Tables
2A,
2B,
2C,
and
2D).
Where
appropriate,
the
State
may
use
the
data
elements
developed
under
part
51,
subpart
A
in
preparing
its
emissions
inventory
under
the
8­
hour
ozone
NAAQS.
Also,
EPA
expects
the
States
to
consult
the
guidance
document
"
Emission
Inventory
Guidance
for
Implementation
of
Ozone
and
Particulate
Matter
National
Ambient
Air
Quality
Standards
(
NAAQS)
and
Regional
Haze
Regulations",
EPA­
454/
R­
05­
001,

and
to
submit
inventories
that
are
appropriate
for
the
geographic
area
at
issue
and
consistent
with
this
guidance.
86
We
expect
the
State
to
include
in
its
SIP
submission
documentation
explaining
how
the
emissions
data
were
calculated.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
11/
03/
05
307
3.
Comments
and
responses
Comment:
Several
commenters
said
that
the
proposal
does
not
discuss
specific
requirements
above
and
beyond
those
in
the
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:
In
its
proposal,
when
EPA
referred
to
the
CERR
emissions
inventory
requirements
as
satisfying
requirements
for
emissions
inventories
under
the
8­
hour
standard,
EPA
was
referring
to
the
requirements
for
data
elements.
The
EPA
did
not
mean
to
imply
that
the
emissions
inventories
developed
under
the
CERR,
which
are
statewide,

would
satisfy
all
aspects
of
SIP
inventories
developed
for
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
308
SIP
submissions
under
the
8­
hour
standard.
While
the
CERR
sets
forth
requirements
for
data
elements,
EPA
guidance
complements
these
requirements
and
indicates
how
the
data
should
be
prepared
for
SIP
submissions.
The
2002
emission
inventory
submitted
as
a
SIP
element
under
the
8­
hour
ozone
SIP
process
is
not
necessarily
the
same
as
the
2002
emission
inventory
submitted
under
the
CERR.
The
two
inventories
differ
in
some
important
ways.
For
example,
the
CERR
inventory
was
due
June
1,
2004,
while
the
SIP
inventory
due
dates
are
later.
Because
of
this
time
lapse,
the
State
may
choose
to
revise
some
of
the
data
from
the
CERR
when
it
prepares
its
SIP
inventory
because
of
improvements
in
emission
estimates.
The
SIP
inventory
also
must
be
approved
by
EPA
as
a
SIP
element
and
is
subject
to
public
hearing
requirements
where
the
CERR
is
not.
Because
of
the
regulatory
significance
of
the
SIP
inventory,
EPA
will
need
more
documentation
on
how
the
SIP
inventory
was
developed
by
the
State
as
opposed
to
the
documentation
required
for
the
CERR
inventory.
In
addition,
the
geographic
area
encompassed
by
some
aspects
of
the
SIP
submission
inventory
will
be
different
from
the
statewide
area
covered
by
the
CERR
emissions
inventory.
The
guidance
document
"
Emissions
Inventory
Guidance
for
Implementation
of
Ozone
and
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
87EPA­
454/
R­
05­
001,
August
2005
(
available
at:
http://
www.
epa.
gov/
ttn/
chief/
eidocs/
eiguid/
index.
html).

309
Particulate
Matter
National
Ambient
Air
Quality
Standards
(
NAAQS)
and
Regional
Haze
Regulations"
87
provides
details
on
how
States
should
prepare
their
emission
inventory
SIP
submittals
and
discusses
these
and
other
relevant
topics.

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
nonroad
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
310
of
any
new
models
that
will
ultimately
be
used
by
States.

Response:
We
acknowledge
that
the
timing
of
the
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.
The
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
for
developing
SIP
revisions.
The
commenter
was
concerned
about
developing
PM2.5
emissions
inventories
because
PM2.5
emissions
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
311
and
techniques
available
for
performing
on­
road
mobile
source
fine
particulate
emissions
inventories.
Metropolitan
Planning
Organizations
(
MPOs)
and
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:
This
comment
is
not
directly
relevant
to
the
8­
hour
ozone
implementation
rule.
However
in
the
interest
of
providing
clarification
on
the
issues
raised
by
the
commenter,
we
provide
the
following
background
information.

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
collecting
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
have
released
technical
guidance
on
the
use
of
MOBILE6.2
and
on
methods
for
developing
annual
inventories
in
SIPs
and
conformity
analyses
to
help
MPOs
and
air
quality
agency
staff
perform
on­
road
mobile
source
fine
particulate
analyses.

Comment:
One
commenter
stated
that
since
the
CERR
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
312
requires
inventories
every
3
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
CAA.
The
emission
statement
requirement
satisfies
a
different
need
from
the
periodic
emissions
inventory
requirement,
namely
that
affected
sources
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.
The
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,
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
313
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
and
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.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
314
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
RFP
and
attain
the
NAAQS.
One
should
be
aware,
however,
that
it
is
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.
The
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
315
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
that
meet
EPA
performance
criteria
and
are
scientifically
peer
reviewed,
they
should
also
be
acceptable
[
e.
g.,
the
California
mobile
model,
"
EMission
FACtor"

(
EMFAC)].

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.
The
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
emissions
from
passenger
cars
and
light
duty
trucks
for
many
reasons
including
the
following:
1)
the
model
does
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
316
not
adequately
account
for
the
benefits
of
onboard
diagnostic
regulation
in
non­
I/
M
areas;
and
2)
the
model
does
not
reflect
the
decline
in
trips
per
day
versus
vehicle
age.

Response:
The
EPA's
January
18,
2002
SIP
and
conformity
policy
guidance
document
("
Policy
Guidance
on
the
Use
of
MOBILE6
for
SIP
Development
and
Transportation
Conformity,"
memo
from
John
Seitz
and
Margo
Oge
to
EPA
Regional
Air
Division
Directors)
states,
"
In
general,
EPA
believes
that
MOBILE6
should
be
used
as
expeditiously
as
possible.
The
Clean
Air
Act
requires
that
SIP
inventories
and
control
measures
be
based
on
the
most
current
information
and
applicable
models
that
are
available
when
a
SIP
is
developed."
The
EPA's
February
14,
2004
SIP
and
conformity
policy
guidance
document
("
Policy
Guidance
on
the
Use
of
MOBILE6.2
and
the
December
2003
AP­
42
Method
for
Re­

Entrained
Road
Dust
for
SIP
Development
and
Transportation
Conformity",
memo
from
Margo
Oge
and
Steve
Page
to
EPA
Regional
Air
Division
Directors)
updates
this
by
stating
that
"
All
states
other
than
California
should
use
MOBILE6.2
for
future
VOC,
NOx,
and
CO
SIP
and
conformity
analyses
in
order
to
take
full
advantage
of
the
improvements
incorporated
in
this
version."
MOBILE6.2
is
the
most
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
317
current
applicable
model
and
is
based
on
the
best
information
available
at
the
time
of
its
development
and
release.
Therefore,
EPA
has
indicated
that
it
should
be
used.

We
do
not
believe
that
more
on­
board
diagnostic
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
TAR
(
40
CFR,
part
49),
which
implements
section
301(
d)
of
the
CAA,

gives
Tribes
the
option
of
developing
TIPs
which
can
then
be
submitted
to
EPA
for
approval.
Unlike
States,
Tribes
are
not
required
to
develop
implementation
plans.
Under
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
88See
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.

318
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
191.88
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.
The
EPA
may
find
it
necessary
to
develop
a
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
319
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.

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

Therefore,
affected
Tribes
that
have
achieved
"
treatment
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.
As
a
matter
of
policy,
EPA
intends
to
consult
with
and
assist
all
Tribes,
regardless
of
whether
a
Tribe
has
received
Treatment
in
the
same
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
that
are
required
to
adopt
SIPs,
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
Indian
country.
In
addition,
we
expect
States
to
work
with
Tribes
with
land
that
is
part
of
the
same
air
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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
generally
require
local
governments
to
work
together,
or
make
the
nonattainment
area
big
enough
to
cover
contributing
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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.

2.
Summary
of
policy
We
intend
to
take
the
approach
noted
in
the
proposal.

3.
Comments
and
responses
Comment:
One
commenter
was
concerned
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
statement
that
"
EPA
will
review
SIPS
for
their
effectiveness
in
preventing
significant
contributions
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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
FR
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
NAAQS
or
PSD
or
visibility
protection
programs
in
another
State.
In
addition,
section
126
authorizes
any
State
or
eligible
Tribe
to
petition
EPA
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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
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
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
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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
SIP
development
process.

Response:
We
intend
to
continue
to
offer
Tribes
the
opportunity
for
consultation
on
activities
potentially
affecting
attainment
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,
then
Tribes
should
be
made
aware
of
these
modeling
analyses
in
order
to
determine
if
their
Indian
country
is
being
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
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notify
other
States
in
advance
of
any
public
hearing(
s)
on
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.
When
developing
control
strategies
and
making
policy
decisions,
States,
should
as
appropriate,
coordinate
with
Tribes
at
the
earliest
opportunity.
Where
States
utilize
stakeholder­
based
consensus
processes
to
develop
SIP
strategies,
we
recommend
that
Tribes
be
provided
the
opportunity
to
participate
in
the
process.

We
have
begun
providing
training
to
Tribes
about
how
to
participate
in
SIP
development
and
implementation.
Many
Tribes
may
not
possess
the
resources
to
develop
a
TIP
or
may
decide
not
to
develop
a
TIP.
Some
will
develop
robust
air
quality
programs,
which
may
or
may
not
include
a
TIP.
We
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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.

Comment:
One
commenter
raised
concerns
about
the
practical
impacts
of
the
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,
the
commenter
noted
that
Tribes
have
the
right
to
pursue
industrial
and
economic
development.
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
nonattainment
NSR
program,
new
major
sources
locating
in
a
nonattainment
area
are
required
to
obtain
emissions
reductions,
referred
to
as
offsets.
The
commenter
stated
that
this
requirement
poses
a
hardship
on
an
Indian
reservation
located
in
a
larger
nonattainment
area.
The
new
source
wishing
to
locate
on
the
reservation
must
obtain
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offsets
from
elsewhere
in
the
nonattainment
area;
there
are
not
usually
enough
sources
on
the
reservation
to
supply
the
needed
emissions
reductions.
When
a
Tribe
is
located
in
such
a
nonattainment
area,
efforts
to
increase
economic
development
may
be
stalled
by
an
inability
of
new
sources
to
obtain
offsets.
The
commenter
concluded
that
this
requirement
is
unfair
to
Tribes
because
of
past
barriers
to
economic
development
in
Indian
country.
The
commenter
also
stated
that
in
many
cases
air
pollution
is
transported
onto
the
reservation.

Response:
The
EPA
acknowledges
that
offsets
are
a
concern
for
Tribes.
We
are
currently
evaluating
potential
options
for
addressing
this
concern.

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);
§
51.916
in
draft
and
final
regulatory
text.]

1.
Background
Section
176A
of
the
CAA
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.
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Section
184
of
the
CAA
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
regulatory
requirements
to
be
applied
throughout
the
entire
OTR,
in
both
attainment
and
nonattainment
areas,
to
reduce
interstate
pollution.
These
additional
regional
regulatory
requirements
are
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
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Section
184
continues
to
apply
for
purposes
of
the
8­

hour
standard.
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
describes
RACT
requirements
for
portions
of
an
OTR
that
are
not
classified
moderate
or
above.

Consistent
with
the
RACT
requirement
for
areas
classified
as
moderate
and
above
for
the
8­
hour
standard,
the
State
must
submit
a
SIP
revision
that
meets
the
RACT
requirements
of
section
184
of
the
CAA
for
each
area
in
the
OTR
that
is
designated
as
attainment
or
unclassifiable
or
that
may
be
classified
marginal,
or
that
is
under
§
51.904
of
this
subpart.
A
major
stationary
source
for
these
areas
is
defined
as
a
source
which
directly
emits,
or
has
the
potential
to
emit,
100
tpy
or
more
of
NOx
or
50
tpy
or
more
of
VOC.
For
any
areas
in
the
OTR,
the
State
is
required
to
submit
the
RACT
revision
no
later
than
September
16,
2006
(
27
months
after
designation
for
the
8­
hour
NAAQS)
and
must
provide
for
implementation
of
RACT
as
expeditiously
as
practicable
but
no
later
than
May
1,
2009
(
first
day
of
the
first
ozone
season
that
is
30
months
after
the
RACT
SIP
is
due).

We
believe
that
this
does
not
result
in
any
new
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
331
regulatory
requirements
for
any
area
in
the
OTR
because
these
regulatory
requirements
are
not
associated
with
an
area's
designation
or
classification
and
already
apply
regionwide
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
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
(
D.
C.

Circuit,
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
PREDECISIONAL
DRAFT
 
DO
NOT
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OR
DISTRIBUTE
draft
11/
03/
05
332
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
333
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
regulatory
text
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
334
emergency
episodes,
and
the
final
rule
below
does
not
contain
any
such
rule
revision.

3.
Comments
and
responses
We
received
no
comments
on
this
aspect
of
the
proposal.

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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
335
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
said
we
would
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
336
tracking
of
emission
reduction
strategy
efforts
such
as
the
NOx
SIP
Call,
the
CAIR
and,
if
created,
a
statute
codifying
the
Administration's
Clear
Skies
Act,
which
addresses
NOx
reductions
across
the
nation.

Section
182(
c)(
1)
of
the
CAA
requires
that
enhanced
ozone
(
e.
g.,
precursor)
monitoring
be
conducted
in
any
ozone
nonattainment
area
classified
as
serious,
severe,
or
extreme.
Our
regulations
reflecting
the
statutory
requirements
are
found
at
40
CFR
part
58.
This
is
known
as
the
Photochemical
Assessment
Monitoring
Stations
(
PAMS)

program.

The
proposal
noted
that
the
PAMS
monitoring
requirements
(
referred
to
as
"
enhanced
monitoring"
under
section
182(
c)(
1)
of
the
CAA)
are
retained
in
areas
designated
as
1­
hour
ozone
serious,
severe,
and
extreme
nonattainment
areas.
Areas
that
are
designated
serious
or
above
under
the
8­
hour
ozone
NAAQS
are
not
currently
addressed
in
40
CFR
part
58
for
ozone
precursor
monitoring,

although
such
areas
are
subject
to
the
section
182(
c)(
1)

provision.
We
anticipated
that
the
revisions
to
the
monitoring
regulations
would
also
cover
all
areas
that
are
classified
as
serious
or
above
for
the
8­
hour
NAAQS,

including
any
area
that
is
bumped
up
to
serious
or
above
for
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
337
the
8­
hour
NAAQS.

2.
Summary
of
final
rule
There
is
no
change
from
the
proposal.
No
monitoring
requirements
are
being
promulgated
as
part
of
this
rulemaking.
EPA
still
expects
to
separately
propose
a
number
of
amendments
to
the
monitoring
requirements,
along
the
lines
described
above,
in
December
2005.

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.

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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
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03/
05
338
this
action.
As
noted
above,
we
are
working
on
a
separate
rulemaking
effort
to
amend
the
ambient
monitoring
requirements.
Commenters
should
raise
any
concerns
they
have
regarding
the
NAAMS
during
the
comment
period
on
that
action.

We
recognize
that
ozone
continues
to
pose
a
significant
environmental
threat.
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.

Comment:
Two
commenters
questioned
the
appropriateness
of
making
high
sensitivity
NOx
and
CO
measurements
at
NCore
Level
2
sites
which
may
be
in
urban
areas.

Response:
This
rulemaking
effort
does
not
affect
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
339
ambient
monitoring
requirements
listed
in
40
CFR
part
58.

As
such,
comments
on
the
appropriateness
of
making
high
sensitivity
NOx
and
CO
measurements
in
urban
areas
are
not
germane
to
this
action.

Comment:
One
commenter
urged
the
continued
support
of
the
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
designated
as
1­
hour
ozone
serious,

severe,
and
extreme
nonattainment
areas
at
the
time
of
a
designation
of
nonattainment
for
the
8­
hour
standard.
[
See
40
CFR
51.900(
f)(
9)].
In
addition,
areas
that
are
designated
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
required
to
conduct
the
appropriate
PAMS
monitoring.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
340
Currently,
40
CFR
part
58
does
not
specifically
apply
to
areas
for
purposes
of
the
8­
hour
standard.
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
regulations.
However,
even
in
the
absence
of
the
applicability
of
these
regulations,
the
enhanced
monitoring
requirement
of
section
182(
c)(
1)
applies.

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

[
Section
VI.
W.
of
June
2,
2003
proposed
rule
(
68
FR
32856);
§
51.908(
e)
in
draft
regulatory
text
and
§
51.908(
d)

of
final
regulatory
text.]

1.
Background
In
the
June
2,
2003
action,
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
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.

We
noted
that
the
proposed
time
of
submission
is
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
11/
03/
05
341
expected
to
result
in
as
close
as
possible
a
synchronization
of
the
8­
hour
ozone
and
PM2.5
attainment
demonstration
SIP
submittal
dates.

2.
Summary
of
final
rule
The
final
rule
provides
that
attainment
demonstrations
 
where
required
 
must
be
submitted
within
3
years
after
the
effective
date
of
the
area's
nonattainment
designation.

As
noted
in
section
IV.
D.
1.
above,
the
final
rule
does
have
a
separate
provision
addressing
submission
of
an
early
attainment
demonstration.

On
June
18,
2004
(
69
FR
34076),
EPA
announced
it
was
reconsidering
the
boundaries
of
the
Las
Vegas,
NV,
8­
hour
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
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
EPA
PREDECISIONAL
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342
should
consider
extending
attainment­
modeling
deadlines
for
nonattainment
areas
that
are
not
currently
contained
within
the
1­
hour
boundary,
but
will
now
be
included
in
the
8­
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
addition,
we
note
the
following:

°
In
general,
the
CAA
requires
these
submissions
no
later
than
3
years
following
designation.
See
sections
172(
b)
and
182(
b)
of
the
CAA.
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
years
rather
than
3
years)
to
submit
their
attainment
demonstration.

Photochemical
grid
modeling
is
now
a
process
more
familiar
to
users
for
purposes
of
developing
attainment
demonstrations,
and
all
areas
will
be
using
these
models
for
purposes
of
their
attainment
demonstrations
and
can
be
completed
with
the
time
frame
established
in
this
rule.
There
is
no
distinction
between
the
tools
used
for
attainment
modeling
that
would
justify
PREDECISIONAL
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OR
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draft
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03/
05
343
additional
time
for
these
areas
to
submit
attainment
demonstrations.
Further,
where
appropriate,
existing
modeling
exercises
(
e.
g.,
regional
analyses,
RPO
analyses,
older
1­
hour
analyses)
may
be
leveraged
for
use
in
certain
cases.
In
most
cases,
it
will
not
be
necessary
to
conduct
a
modeling
exercise
"
from
scratch."

°
We
do
not
believe
it
is
appropriate
or
desirable
to
require
States
to
submit
attainment
demonstrations
for
areas
designated
nonattainment
under
the
8­
hour
standard
at
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
higher­
classified
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.
PREDECISIONAL
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03/
05
344
°
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.

°
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.

In
light
of
these
reasons,
we
do
not
believe
it
is
consistent
with
the
CAA
and
reasonable
to
require
submission
of
attainment
demonstrations
no
later
than
3
years
following
designation.

Although
we
proposed
that
subpart
1
areas
requesting
an
attainment
date
within
3
years
after
designation
should
submit
their
attainment
demonstration
within
12
months,
the
final
rule
does
not
include
such
a
provision
(
see
section
IV.
D.
1
above
for
a
further
discussion
of
this).

R.
How
will
the
statutory
time
periods
in
the
CAA
be
addressed
when
we
redesignate
areas
to
nonattainment
following
initial
designations
for
the
8­
hour
NAAQS?
PREDECISIONAL
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draft
11/
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89Section
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.

345
[
Section
VI.
B.
of
June
2,
2003
proposed
rule
(
68
FR
32816);
§
51.906
in
draft
and
final
regulatory
text.]

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
2.89
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.
PREDECISIONAL
DRAFT
 
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draft
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03/
05
346
We
also
noted
in
the
proposal
that
most
of
the
SIP
submittal
dates
in
subpart
2
are
set
as
a
fixed
period
from
the
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
1990
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.
PREDECISIONAL
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347
3.
Comments
and
responses
Comment:
One
commenter
asked
what
the
reasoning
was
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,
section
181(
b)(
1)
of
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
CAA
Amendments
of
1990
and
the
date
the
area
is
classified
and
redesignated
as
nonattainment.
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
redesignation
to
nonattainment.

V.
EPA's
Final
Rule
for
New
Source
Review
PREDECISIONAL
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OR
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draft
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05
90
For
a
more
complete
discussion
of
this
decision
and
its
implications,
see
69
FR
23956;
April
30,
2004.

348
A.
Background
1.
The
Major
NSR
Program
The
major
NSR
program
contained
in
parts
C
and
D
of
title
I
of
the
CAA
is
a
preconstruction
review
and
permitting
program
applicable
to
new
and
modified
major
stationary
sources
of
air
pollutants
regulated
under
the
CAA.
In
areas
not
meeting
health­
based
NAAQS
and
in
OTRs,

the
program
is
implemented
under
the
requirements
of
section
110(
a)(
2)(
C)
and
part
D
of
title
I
of
the
CAA.
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
CO
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.
90
PREDECISIONAL
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OR
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draft
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05
91
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;
June
2,
2003).

349
In
areas
meeting
the
NAAQS
("
attainment"
areas)
or
for
which
there
is
insufficient
information
to
determine
whether
they
meet
the
NAAQS
("
unclassifiable"
areas),
the
NSR
requirements
under
part
C
of
title
I
of
the
CAA
apply.
We
call
this
program
the
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
CAA
are
implemented
primarily
through
SIP­
approved
State
preconstruction
permitting
programs.
As
provided
in
section
172(
c)(
5)
of
the
CAA,
the
SIP
must
require
permits
for
the
construction
and
operation
of
new
or
modified
major
stationary
sources
in
accordance
with
section
173
of
the
CAA.
Subpart
2
of
title
I
of
the
CAA
sets
forth
additional
SIP
requirements
for
ozone
nonattainment
areas,
including
preconstruction
permitting
requirements.
91
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DRAFT
 
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03/
05
350
The
minimum
permitting
requirements
States
must
meet
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
in
a
nonattainment
area
or
in
any
area
designated
under
section
107(
d)
of
the
CAA
as
attainment
or
unclassifiable
for
ozone
that
is
located
in
an
OTR
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
§
51.165),
and
has
historically
reflected
substantially
the
same
requirements
as
those
in
§
51.165,
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05
92
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.

351
subject
to
a
limited
exemption
in
section
VI.
This
includes
the
requirement
that
a
source
comply
with
LAER
and
obtain
offsetting
emissions
reductions.
Pursuant
to
section
52.24(
k),
where
necessary,
appendix
S
governs
nonattainment
major
NSR
permitting
of
ozone
precursors
in
8­
hour
ozone
nonattainment
areas
and
all
areas
within
the
OTR,
including
areas
designated
attainment/
unclassifiable,
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
CAA
Amendments.
92
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
Phase
1
final
PREDECISIONAL
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OR
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draft
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03/
05
352
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
CAA
Amendments
On
July
23,
1996
(
61
FR
38250),
we
proposed
changes
to
§
51.165
and
appendix
S
to
incorporate
requirements
in
part
D
of
title
I
of
the
1990
CAA
Amendments
for
ozone,
CO,
and
PM10
nonattainment
areas.
Concerning
ozone,
we
proposed
(
among
other
things)
to
codify
the
following
provisions
from
section
182
of
the
CAA:

°
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),
and
°
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
93
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
S.
Seitz,
Director,
Office
of
Air
Quality
Planning
and
Standards.

353
with
the
1991
and
1992
Transition
Policy
Memos
explaining
major
NSR
requirements
under
the
1990
CAA
Amendments.
93
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
§
51.165
or
appendix
S.
For
a
discussion
of
implementation
of
the
1­
hour
and
8­

hour
ozone
NAAQS
under
§
51.165
and
appendix
S,
see
section
V.
D.
of
this
preamble.

Also,
in
our
1996
action,
and
then
again
in
our
June
2,

2003
action,
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
354
precursor
would
be
available
for
both
subpart
1
and
subpart
2
areas
(
68
FR
32846).

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.
PREDECISIONAL
DRAFT
 
DO
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CITE
OR
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draft
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03/
05
355
However,
we
indicated
that
we
intended
to
revise
the
nonattainment
NSR
regulations
to
be
consistent
with
the
rule
for
implementing
the
8­
hour
ozone
NAAQS
(
68
FR
32844).

Concerning
CO,
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
CO
levels,

°
Significant
emission
rate
of
50
tpy
for
serious
nonattainment
areas
in
which
the
Administrator
has
determined
that
stationary
sources
are
significant
contributors
to
CO
levels.

Concerning
PM10,
in
1996,
we
proposed
to
amend
our
nonattainment
NSR
regulations
to
incorporate
requirements
of
the
1990
CAA
Amendments
and
establish
significant
emission
rates.
Specifically,
we
proposed
the
following:

56.
Major
stationary
source
threshold
of
100
tpy
PM10
or
any
specific
PM10
precursor
in
moderate
PM10
nonattainment
areas,

57.
Major
stationary
source
threshold
of
70
tpy
PM10
or
any
specific
PM10
precursor
in
serious
PM10
nonattainment
areas,
and
58.
Significant
emission
rate
of
15
tpy
PM10
and
40
tpy
PM10
PREDECISIONAL
DRAFT
 
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draft
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03/
05
356
precursors.

b.
Proposed
changes
to
criteria
for
emission
reduction
credits
from
shutdowns
and
curtailments
In
1996
we
proposed
to
revise
the
regulations
limiting
offsets
from
emissions
reductions
due
to
shutting
down
an
existing
source
or
curtailing
production
or
operating
hours
below
baseline
levels
("
shutdowns/
curtailments").
The
prior
regulations
at
§
51.165(
a)(
3)(
ii)(
C)
provided
that
such
emissions
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
emissions
reductions
by
restructuring
existing
§
51.165(
a)(
3)(
ii)(
C)(
1)
and
(
2)
for
clarity
without
changing
the
current
requirements
therein.

[
See
proposed
§
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
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03/
05
94
For
a
complete
discussion
of
how
the
1990
CAA
Amendments
attainment
planning
requirements
relate
to
shutdown/
curtailment
credits
(
61
FR
38311;
July
23,
1996).

95
Use
of
Shutdown
Credits
for
Offsets,
July
21,
1993,
John
S.
Seitz,
Director,
Office
of
Air
Quality
Planning
and
Standards.

357
CAA
Amendments,
in
which
Congress
significantly
reworked
the
attainment
planning
requirements
of
part
D
of
title
I
of
the
CAA
such
that
an
approved
attainment
demonstration
is
unnecessary.

The
revised
CAA
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
emissions
reductions
requirements
related
to
inventories.
94
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.
95
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
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358
revise
the
regulations
that
limit
a
source's
use
of
emissions
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
emissions
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
emissions
reductions
occur
after
November
15,
1990
and
the
area
is
current
with
part
D
ozone
nonattainment
planning
requirements.
See
proposed
§
51.165(
a)(
3)(
ii)(
C)(
5)
and
(
6)
[
Alternative
1].
Proposed
Alternative
2
generally
would
have
allowed
emissions
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
§
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
DRAFT
 
DO
NOT
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CITE
OR
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draft
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359
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
§
52.24(
a)
to
incorporate
changes
made
by
the
1990
CAA
Amendments
related
to
the
applicability
of
construction
bans.
Under
the
1977
Amendments,
section
110(
a)(
2)(
I)
of
the
CAA
required
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
CAA
Amendments
removed
these
provisions
from
the
CAA.
However,

in
section
110(
n)(
3)
of
the
CAA
(
Savings
Clause),
the
1990
CAA
Amendments
retained
the
prohibition
in
cases
where
it
was
applied
prior
to
the
1990
CAA
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
CAA);
or
(
2)
the
State
plan
failed
to
achieve
the
timely
attainment
of
the
NAAQS
for
SO2
by
December
31,
1982.
All
other
construction
bans
pursuant
to
section
110(
a)(
2)(
I)
are
lifted
as
a
result
of
the
new
PREDECISIONAL
DRAFT
 
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360
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
CAA,
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
SO2,
as
applicable.

We
note
that
§
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
§
52.24(
k)
remained
in
effect
and
would
be
retained.
In
that
action,
we
also
proposed
that
we
would
revise
§
52.24(
k)
to
reflect
the
changes
in
the
1990
CAA
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
approved
part
D
NSR
permit
program,
the
construction
ban
would
apply.
However,
PREDECISIONAL
DRAFT
 
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the
1990
CAA
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
CAA
Amendments
supersede
that
portion
of
prior
§
52.24
dealing
with
the
construction
ban
but
leave
unaltered
the
requirement
that
appendix
S
continues
to
apply
through
§
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
§
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
publishing
a
subsequent
action
in
the
Federal
Register,
but
we
solicited
comment
on
the
need
to
undertake
notice­
and­
PREDECISIONAL
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comment
procedures
before
taking
final
action.

Section
113(
a)(
5)
of
the
CAA
provides
that
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,
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
CAA
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
§
52.24(
c).

We
proposed
to
remove
the
transition
provisions
under
existing
§
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
CAA
Amendments.

In
addition
to
the
significant
changes
already
discussed,
we
proposed
several
minor
changes
to
§
52.24.

These
minor
changes
included:
(
1)
the
addition
of
requirements
applicable
to
transport
regions;
(
2)
the
PREDECISIONAL
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inclusion
of
requirements
applicable
to
criteria
pollutant
precursors;
(
3)
incorporation
of
the
definitions
proposed
in
§
51.165(
a);
(
4)
revisions
to
the
language
at
§
52.24(
h)(
2);

and
(
5)
revisions
to
§
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
3
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
new
sources
and
major
modifications
located
in
nonattainment
areas
for
which
the
attainment
date
has
not
yet
passed
may
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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
8­
hour
NAAQS,
including
a
major
rewrite
of
appendix
S
that
would
include
the
proposed
changes
to
section
VI.
We
also
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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
§
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
§
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;
June
19,
1978)
and
1979
(
44
FR
3276;

January
16,
1979),
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
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
major
source
applicability
should
be
based
on
potential
to
emit,
rather
than
uncontrolled
emissions.
Alabama
Power
Co.
v.
Costle,
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606
F.
2d
1068
(
D.
C.
Circuit,
1979),
amended
636
F.
3d
323,

356­
57
(
D.
C.
Circuit,
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
1.
Final
action
and
legal
basis
for
changes
to
incorporate
the
1990
CAA
Amendments
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a.
Final
changes
to
incorporate
the
1990
CAA
Amendments
In
today's
final
action,
we
revised
§
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
CAA
Amendments.
[
See
§
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
§
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
CAA,
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
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
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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
§
51.165(
a)(
8)
and
appendix
S.]
According
to
§
51.913(
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,
including
nonattainment
major
NSR
for
major
stationary
sources
of
NOx.

We
discuss
whether
a
NOx
waiver
under
section
182(
f)
applies
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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
CAA
Amendments
for
CO.
[
See
§
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
CAA
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
§
51.165(
a)(
1)(
iv)(
A)(
1)(
vi)
and
(
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
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for
stationary
sources
of
PM
in
that
action.

b.
Legal
basis
for
changes
to
incorporate
the
1990
CAA
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
CAA.

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
CO
nonattainment
areas.
Subpart
4
contains
provisions
specifically
for
PM10
nonattainment
areas.
On
July
23,
1996
(
61
FR
38250),
we
proposed
changes
to
§
51.165
and
appendix
S
to
incorporate
requirements
in
part
D
of
title
I
of
the
1990
CAA
Amendments
for
ozone,
CO,
and
PM10
nonattainment
areas.

We
promulgated
a
new
8­
hour
ozone
NAAQS
on
July
18,

1997.
We
indicated
that
we
anticipated
that
States
would
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
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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
§
51.165
and
appendix
S
through
this
rulemaking.

Thus,
as
described
in
further
detail
in
section
V.
A.
2
of
this
preamble,
we
have
incorporated
the
requirements
of
the
1990
CAA
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
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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
CO,
section
187(
c)
of
the
CAA
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
§
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
CAA
unambiguously
establishes
the
major
stationary
source
threshold
as
70
tpy
in
serious
nonattainment
areas.
Also,
EPA
has
the
authority
to
exempt
de
minimis
emissions
from
the
reach
of
a
rule.

See
Alabama
Power,
636
F.
2d
at
360­
61.
Previously,
EPA
has
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,
PREDECISIONAL
DRAFT
 
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OR
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draft
11/
03/
05
96The
1991
NSR
transitional
guidance
issued
to
address
implementation
of
the
1990
CAA
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
3
years
from
designation
for
most
CO
nonattainment
areas.
NSR
Program
Transitional
Guidance,
at
A5
(
March
11,
1991).
We
later
clarified
that
the
1990
CAA
Amendments
did
apply
to
all
permits
after
those
deadlines
passed.
NSR
Supplemental
Program
Transitional
Guidance
on
Applicability
of
New
Part
D
373
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
CAA
Amendments
to
part
D
of
title
I
of
the
CAA.
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
CAA
Amendments
during
that
period.
96
Additionally,
appendix
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
NSR
Requirements
at
3
(
September
3,
1992).

97Thus,
EPA
has
typically
conformed
appendix
S
to
the
part
D
nonattainment
NSR
permitting
provisions
governing
SIPs
at
40
CFR
§
51.165
(
originally
codified
at
§
51.18)
whenever
those
regulations
were
revised.
See,
for
example,
45
FR
52676
(
August
7,
1980);
47
FR
27554
(
June
25,
1982);
49
FR
43210
(
October
26,
1984);
54
FR
27274
(
June
28,
1989);
57
FR
3941
(
February
3,
1992).

374
S
provides
on
its
face
that
it
is
an
interpretation
of
the
NSR
permitting
rules
in
40
CFR
subpart
I,
including
§
51.165.

Therefore,
it
is
necessary
to
have
appendix
S
reflect
substantially
the
same
requirements
as
are
in
§
51.165.97
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
98
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).

375
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
CAA.

We
revised
the
provisions
at
§
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
§
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
ozone
NAAQS,
the
base
year
is
2002.98
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
99
See
57
FR
13553.
After
the
1990
CAA
Amendments
were
enacted,
1990
was
the
base
year
for
1­
hour
ozone
NAAQS
attainment
planning
purposes.
See
57
FR
13502.
The
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.

376
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.
99
The
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
100
For
a
discussion
of
emission
inventories
for
the
8­
hour
ozone
standard,
see
our
emission
inventory
guidance,
"
Emissions
Inventory
Guidance
for
Implementation
of
Ozone
and
Particulate
Matter
National
Ambient
Air
Quality
Standards
(
NAAQS)
and
Regional
Haze
Regulations
­
Final,"
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/.

377
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.
100
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
378
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
emissions
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
The
revisions
to
the
rules
governing
use
of
emissions
reductions
from
shutdowns/
curtailments
as
offsets
are
warranted
by
the
more
detailed
attainment
planning
and
sanction
provisions
of
the
1990
CAA
Amendments.
These
provisions
specifically
address
air
quality
concerns
in
nonattainment
areas
lacking
EPA­
approved
attainment
demonstrations.
As
a
threshold
matter,
we
note
that
CAA
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
379
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;

August
25,
1983).
Rather,
in
promulgating
these
restrictions
in
1989,
EPA
recognized
that
it
had
a
large
degree
of
discretion
under
the
CAA
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).

Originally,
EPA
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
shutdown/
curtailed
(
that
is,
shutdown/

curtailment
must
occur
after
application
for
a
new
or
modified
major
source
is
filed).

The
1990
CAA
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
380
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
emissions
reductions
requirements
of
the
CAA.
For
example,
the
CAA
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
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.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
381
Considering
the
changes
to
the
1990
CAA
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,
emissions
reductions
from
such
source
shutdowns/
curtailments
are
actual
emissions
reductions,
and
their
use
as
emission
offsets
at
a
ratio
of
1:
1
or
greater
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
101
We
note
that
we
are
changing
the
cross­
reference
in
§
52.24(
f)
to
"
§
51.165"
instead
of
the
definitions
section
at
§
51.165(
a),
to
ensure
that
all
of
the
provisions
of
§
51.165
apply
in
interpreting
the
terms
of
§
52.24.

382
We
are
promulgating
final
changes
to
§
52.24
to
implement
the
construction
ban
provisions
and
other
changes,

as
proposed
in
1996
and
2003.101
We
believe
these
changes
are
beneficial
to
conform
the
regulatory
text
with
the
requirements
that
apply
under
the
1990
CAA
Amendments.

As
noted
in
our
June
2003
proposal,
we
are
retaining
the
provision
in
§
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
§
52.24(
k),
the
1996
preamble
also
explained
that
the
changes
to
§
52.24
were
intended
only
to
update
and
clarify
the
regulation
with
regard
to
the
changes
to
the
construction
ban
made
by
the
1990
CAA
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
383
transition
period
in
which
a
substantial
number
of
new
nonattainment
areas
are
being
created.
Therefore,
we
are
retaining
§
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
§
52.24(
k).
The
previous
language
at
§
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
CAA,
which
no
longer
apply
under
the
1990
CAA
Amendments.
We
have
revised
§
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
construction
ban
from
the
1990
CAA
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
384
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.

Section
110(
a)(
2)(
c)
of
the
CAA
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
§
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
CAA
Amendments
providing
for
major
NSR
permitting
during
the
SIP
development
period
in
accordance
with
appendix
S.
[
See
Public
Law
No.
95­
95,

section
129(
a),
91
Statute
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.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
102Appendix
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;
December
21,
1976).
It
required,
inter
alia,
compliance
with
the
LAER
and
offsetting
385
108(
b),
129(
a).
We
subsequently
codified
the
use
of
appendix
S
as
the
interim
major
NSR
program
in
40
CFR
§
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
§
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
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.
102
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
emissions
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
CAA
Amendments,
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.

103
See
Alabama
Power
Co.
v.
Costle,
636
F.
3d
323,
346­
047
(
D.
C.
Circuit,
1980)
(
discussing
Sierra
Club
v.
Ruckelshaus,
344
F.
Supp.
253
(
D.
D.
C.
1972),
aff'd
per
curiam
4
ERC
1815
(
D.
C.
Circuit,
1972),
aff'd
by
an
equally
divided
court,
sub
nom
Fri
v.
Sierra
Club,
412
U.
S.
541
386
Our
regulations
at
40
CFR
§
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
§
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
the
productive
capacity
of
its
population."
This
provision
was
the
basis
for
the
original
judicial
finding
that
the
CAA
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
CAA.
103
This
policy
of
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
(
1973).

387
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
388
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,

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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
389
instances
in
today's
final
rule,
we
believe
that
participation
in
programs
such
as
the
NOx
SIP
Call
and
the
CAIR
(
70
FR
25162,
May
12,
2005)
will
achieve
significant
emissions
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
attainment
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
390
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,

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
CAA
Amendments
to
title
I
of
the
CAA.
In
short,
appendix
S
only
applies
where
a
NSR
permitting
program
for
the
new
or
revised
NAAQS
is
not
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
391
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
392
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.
Circuit,
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
§
51.166
and
§
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
§
51.166(
b)(
49)(
i)
and
§
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
§
51.166
and
§
52.21
to
expressly
include
NOx
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
393
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
§
51.166(
b)(
1)(
ii),
(
b)(
2)(
ii),

(
b)(
23),
and
(
b)(
49).
See
also
§
52.21(
b)(
1)(
ii),

(
b)(
2)(
ii),(
b)(
23),
and
(
b)(
50)].
We
have
also
amended
the
footnote
to
§
51.166(
i)(
5)(
i)(
e)
and
§
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
CAA,
as
amended
in
1990,
recognize
NOx
as
an
ozone
precursor;
section
182(
f)
of
the
CAA
established
nonattainment
requirements
for
NOx.
The
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
§
51.166
and
§
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)."
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104
See
68
FR
32805­
06,
32840,
footnote
58
(
discussing
national
rules
for
controlling
VOC
and
NOx
emissions);
and
68
FR
32840
footnote
57.

394
The
EPA
has
recognized
NOx
as
an
ozone
precursor
in
several
national
rules
because
of
its
contribution
to
ozone
transport
and
the
ozone
nonattainment
problem.
The
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.
104
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
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
CAA
Amendments
concerning
offsets
and
RFP.
Specifically,
we
have
conformed
appendix
S
at
IV.
D.
to
the
1990
CAA
Amendments
by
replacing
the
interim
policy
on
offsetting
emissions
with
the
statutory
language
PREDECISIONAL
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105
See
Emission
Offset
Exemptions
for
Resource
Recovery
Facilities
from
Gerald
A.
Emison,
Director,
Office
395
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
§
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
Amendments
at
sections
172(
b)(
1)

and
182
codifies
the
requirements
concerning
RFP.
State
and
local
agencies
should
consider
the
effect
of
creditable
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.
105
As
we
did
not
propose
to
change
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of
Air
Quality
Planning
and
Standards,
December
28,
1988.

396
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
CAA
Amendments
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
requirements
contained
in
part
D
of
the
CAA.
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
CAA
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
CAA
Amendments
at
section
173(
c)(
1),
however,
placed
specific
limits
on
the
location
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397
of
offsets
and
therefore
superceded
the
interim
policy
in
appendix
S.
Accordingly,
we
conformed
appendix
S
at
IV.
D.

to
the
1990
CAA
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
Amendments,
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).

C.
Comments
and
responses
1.
Comments
on
proposed
changes
to
incorporate
the
1990
CAA
Amendments
In
today's
final
action,
we
have
revised
§
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
CAA
Amendments
for
major
stationary
sources
of
ozone
precursors.
As
we
noted
in
section
V.
A.
2.
a.
of
this
preamble,
now
that
the
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398
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
section
182(
f)
that
NOx
requirements
for
major
stationary
sources,
including
NSR
requirements,
would
not
apply
or
would
be
limited
("
NOx
waiver").
A
few
commenters
opposed
waivers
under
section
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
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399
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
CAA
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
CAA
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
supported
Alternative
2.
These
commenters
asserted
that
the
safeguards
in
the
1990
CAA
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
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400
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
that
the
base
year
emissions
inventory
is
the
starting
point
and
all
creditable
emissions
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
§
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
PREDECISIONAL
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106
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.

401
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
CAA
Amendments.
This
progress
includes
submitting
the
required
inventories
to
which
attainment
planning
is
keyed,

along
with
the
required
attainment
demonstrations.
106
We
believe
that
implementation
of
the
1990
CAA
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.
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Therefore,
we
disagree
with
the
commenter
that
the
1990
CAA
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
state
a
basis
for
their
position.

The
text
of
§
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
§
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
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403
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
CAA.

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
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107
Designations
are
in
40
CFR
81.300.
This
citation
has
been
corrected
in
today's
final
rule.

404
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
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"
107
where
certain
requirements
are
met.
Thus,
the
section
VI
exemption
is
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
405
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
CAA.
(
The
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
CAA,

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.
The
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
406
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
preamble
to
the
Phase
1
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.
The
EPA
has
described
in
that
rule
the
circumstances
in
which
subpart
2
applies.

The
commenter
also
contends
that
section
193
has
superseded
appendix
S.
The
EPA
disagrees.
The
commenter
relies
on
the
following
language
in
section
193:
"
No
control
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
108
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.
New
source
review
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
a
NSR
program
in
the
SIP
with
an
alternative
NSR
program.

407
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
requirements.
108
The
commenter
also
believes
that
use
of
appendix
S
for
permitting
would
violate
section
110(
l),
which
provides,
in
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
408
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
409
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
CAA
Amendments
to
part
D
of
title
I
of
the
CAA
(
for
example,
major
stationary
source
thresholds,
significant
emission
rates,

and
offset
ratios)
and
the
revisions
to
the
rule
governing
creditable
emissions
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
specifically
for
appendix
S,
the
rule
language
could
be
discerned
from
the
rule
language
proposed
for
§
51.165,
as
appendix
S
states
it
is
an
interpretation
of
40
CFR
subpart
I,
which
includes
§
51.165.
Additionally,
the
CAA
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
410
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
411
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
412
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
§
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.

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
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
New
source
review
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
413
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
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
revoked
the
1­
hour
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
414
NAAQS
effective
June
15,
2005
for
areas
designated
for
the
8­
hour
ozone
standard
effective
June
15,
2004.
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
the
CAA
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
415
statements
on
removing
the
1­
hour
NSR
SIP
and
on
the
110(
l)

determination
related
to
removing
the
1­
hour
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
1
Ozone
Implementation
Rule.
We
published
a
proposed
rule
on
these
issues
on
April
4,
2005
(
70
FR
17018).
We
published
a
final
rule
on
these
two
issues
on
July
8,
2005
(
70
FR
39413).

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
potential
to
emit
75
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
109
As
noted
in
section
V.
D.
2
of
this
preamble,
we
will
complete
our
reconsideration
on
issues
related
to
NSR
SIP
submittals
and
announce
our
final
action
by
May
20,
2005.

416
Today's
final
action
on
the
regulations
at
§
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
CAA
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.
109
The
revised
implementation
plan
must
include
requirements
to
implement
the
provisions
of
sections
172(
c)(
5)
and
173
of
the
CAA
based
on
the
area's
8­
hour
ozone
NAAQS
classification
under
40
CFR
part
81,
and
the
provisions
of
§
51.165
as
amended
in
today's
final
action.

States
must
submit
SIP
provisions
incorporating
today's
final
rules
at
§
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
110
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
CAA
Amendments.
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
2­
year
schedule
not
to
apply
for
the
NSR
SIPs
implementing
the
8­
hour
ozone
NAAQS.

417
110(
a)(
1).
110
This
date
facilitates
coordination
of
NSR
program
changes
with
the
submission
of
the
attainment
plan,

which
is
also
due
within
3
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
§
51.165)
must
include
today's
changes
as
minimum
program
elements.
States
must
also
submit
SIP
provisions
incorporating
today's
final
rules
at
§
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
§
52.24
on
[
INSERT
DATE
60
DAYS
AFTER
DATE
OF
PUBLICATION
IN
THE
FEDERAL
REGISTER].
This
PREDECISIONAL
DRAFT
 
DO
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QUOTE,
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OR
DISTRIBUTE
draft
11/
03/
05
418
means
that
appendix
S
as
amended
in
today's
final
action
will
apply
on
[
INSERT
DATE
60
DAYS
AFTER
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.

These
changes
will
take
effect
in
the
Federal
PSD
program
(
codified
at
40
CFR
52.21)
on
[
insert
date
60
days
after
date
of
publication
in
the
Federal
Register]
in
any
area
without
an
approved
PSD
program,
for
which
we
are
the
reviewing
authority,
or
for
which
we
have
delegated
our
authority
to
issue
permits
to
a
State
or
local
reviewing
authority.
The
provisions
of
§
51.165
and
§
52.24,
as
amended
in
today's
final
action,
also
apply
on
[
INSERT
DATE
60
DAYS
AFTER
DATE
OF
PUBLICATION
IN
THE
FEDERAL
REGISTER].
State
and
local
agency
programs
implementing
part
C
(
PSD
permit
program
in
§
51.166)
and
part
D
(
nonattainment
NSR
permit
program
in
§
51.165)
are
effective
when
they
are
approved
by
us.

5.
Requirements
for
offsets
Offsets
under
CAA
section
173
are
typically
based
on
emissions
reductions
achieved
through
installation
of
control
technology,
shutdown
of
a
source,
or
curtailment
of
production
or
operating
hours
below
baseline
levels.
PREDECISIONAL
DRAFT
 
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draft
11/
03/
05
419
Offsets
must
meet
several
requirements
set
forth
in
section
173
of
the
CAA,
including
the
following:

°
Offsets
must
be
obtained
by
the
time
the
source
is
to
commence
operation
[
CAA
section
173(
a)(
1)(
A)].

°
Offsets
must
be
consistent
with
RFP
[
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)].

°
Emissions
reductions
that
are
otherwise
required
under
the
CAA
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
PREDECISIONAL
DRAFT
 
DO
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QUOTE,
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OR
DISTRIBUTE
draft
11/
03/
05
420
available
for
use
as
an
offset
or
in
netting.
This
is
because
section
173(
c)(
2)
of
the
CAA
prohibits
use
of
emissions
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
emissions
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
CAA.
The
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
421
shutdowns
or
curtailments.
Pursuant
to
today's
final
rule,

States
may
revise
their
SIPs
to
remove
the
requirement
for
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
emissions
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
CAA,
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.
Final
Rule
for
RFG
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
422
A.
Introduction
This
portion
of
the
rule
addresses
what
effect
the
transition
to
the
8­
hour
NAAQS
will
have
on
certain
aspects
of
the
federal
RFG
program.
Under
the
CAA,
the
RFG
requirements
apply
in
certain
areas
of
the
country.
First,

there
are
nine
areas
that
Congress
identified
pursuant
to
section
211(
k)(
10)(
D)
of
the
CAA
as
mandatory
RFG
areas.

Second,
there
are
five
RFG
areas
that
are
mandatory
areas
based
on
their
reclassification
to
a
severe
ozone
classification.
These
areas
are
typically
called
"
bump­
up"

areas.
See
CAA
section
211(
k)(
10)(
D),
211(
k)(
6),
and
211(
k)(
5).
Finally,
there
are
a
number
of
areas
that
have
voluntarily
opted
in
to
the
RFG
program.
The
purpose
of
the
RFG
program
is
to
improve
air
quality
through
the
use
in
certain
areas
of
gasoline
that
is
reformulated
to
reduce
motor
vehicle
emissions
of
tropospheric
ozone­
forming
compounds
and
toxics,
as
set
forth
in
section
211(
k)(
1)
of
the
CAA.

B.
Background
In
the
Phase
1
Rule,
EPA
addressed
two
key
issues
regarding
the
transition
from
the
1­
hour
NAAQS
to
the
8­
hour
NAAQS.
First,
when
will
the
1­
hour
NAAQS
no
longer
apply
(
i.
e.,
be
"
revoked")?
Second,
what
protections
are
in
place
PREDECISIONAL
DRAFT
 
DO
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QUOTE,
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OR
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draft
11/
03/
05
111
In
the
Phase
1
Rule,
EPA
defined
applicable
requirements
as
those
control
measures
in
place
as
of
the
date
of
signature
of
the
Phase
1
Rule,
(
i.
e.,
April
15,
2004).
The
EPA
recently
reconsidered
this
issue
and
changed
this
date
to
the
effective
date
of
the
8­
hour
designations
­
for
most
areas
this
would
be
June
15,
2004
(
70
FR
30596).

423
to
ensure
that,
once
the
1­
hour
NAAQS
is
revoked,
air
quality
will
not
degrade
and
that
progress
toward
attainment
will
continue
as
areas
transition
from
implementing
the
1­
hour
NAAQS
to
implementing
the
8­
hour
NAAQS?

On
the
first
issue,
EPA
decided
that
the
1­
hour
NAAQS
will
be
revoked
in
full,
including
the
associated
designations
and
classifications,
1
year
following
the
effective
date
of
the
designations
for
the
8­
hour
NAAQS.

Most
areas
were
designated
effective
June
15,
2004,
and
for
those
areas
the
1­
hour
NAAQS
and
the
related
designation
and
classification
will
no
longer
apply
as
of
June
15,
2005.

On
the
second
issue,
the
anti­
backsliding
portion
of
the
Phase
1
rule
established
that
all
areas
designated
nonattainment
for
the
8­
hour
ozone
NAAQS,
that
were
designated
nonattainment
for
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
8­
hour
NAAQS,
remain
subject
to
mandatory
control
measures
that
applied
by
virtue
of
the
area's
classification
for
the
1­
hour
NAAQS.
These
control
measures
are
called
"
applicable
requirements."
111
Also,
EPA
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
112
While
the
Phase
1
Rule
also
addressed
the
transition
to
the
8­
hour
NAAQS
for
areas
recently
designated
as
attainment
for
the
8­
hour
NAAQS,
all
relevant
RFG
areas
are
designated
as
8­
hour
nonattainment
areas
(
69
FR
23858).

424
decided
that
areas
designated
nonattainment
for
the
8­
hour
NAAQS,
that
were
designated
attainment
subject
to
a
section
175A
maintenance
for
the
1­
hour
NAAQS
at
the
time
of
designation
for
the
8­
hour
NAAQS,
must
continue
to
implement
all
applicable
requirements
that
have
been
approved
into
the
SIP.
112
In
the
June
2003
proposal,
EPA
identified
Federal
RFG
as
an
applicable
requirement
(
68
FR
32867).
In
the
final
rule,
however,
EPA
did
not
include
RFG
in
the
list
of
applicable
requirements.
The
EPA
instead
clarified
that
RFG
is
required
under
a
Federal
program,
and
thus
differs
significantly
from
the
other
programs
on
the
list
of
applicable
requirements,
which
are
developed
and
adopted
by
States
for
inclusion
in
the
SIP.
The
EPA
recognized
that
various
issues
exist
regarding
the
scope
and
applicability
of
the
RFG
program
during
and
after
implementation
of
the
8­

hour
NAAQS
that
need
further
clarification.
The
EPA
stated
that
we
were
still
considering
how
to
treat
RFG
and
that
we
would
address
these
issues
in
an
action
separate
from
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
425
Phase
1
Rule
(
69
FR
23973).
Thus,
EPA
did
not
include
RFG
in
the
list
of
applicable
requirements
in
the
Phase
1
Rule,

and
EPA
made
no
decision
at
that
time
concerning
RFG
treatment
in
the
transition
to
the
8­
hour
NAAQS.

C.
What
action
is
EPA
taking?

As
discussed
in
more
detail
below,
EPA
is
clarifying
today
that
the
nine
original
mandatory
RFG
areas,
as
well
as
most
other
areas
that
have
become
mandatory
RFG
areas
by
being
"
bumped
up"
to
a
severe
classification,
will
continue
to
be
required
to
use
RFG
at
least
until
they
are
redesignated
to
attainment
for
the
8­
hour
NAAQS.
The
EPA
is
not
deciding
at
this
time
what
will
happen
when
the
original
nine
areas
and
the
bump­
up
areas
covered
by
this
rule
are
redesignated
to
attainment
for
the
8­
hour
NAAQS.
The
EPA
is
also
not
deciding
at
this
time
what
RFG
requirements
apply
for
any
bump­
up
areas
that
are
redesignated
to
attainment
for
the
1­
hour
NAAQS
before
the
1­
hour
NAAQS
is
revoked.

The
only
such
area
that
was
redesignated
to
attainment
prior
to
revocation
of
the
1­
hour
NAAQS
is
Atlanta,
Georgia.
That
issue
will
be
addressed
in
an
action
separate
from
this
final
rule.

The
RFG
areas
that
opted
into
the
program
will
continue
to
be
RFG
areas
unless
they
opt­
out
pursuant
to
EPA's
opt­
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
426
out
regulations.
The
transition
to
the
8­
hour
NAAQS
does
not
change
the
terms
and
conditions
that
apply
to
opting­
out
of
the
RFG
program.
Likewise,
EPA's
current
rules
on
opting­
in
to
RFG
will
apply
in
the
same
manner
under
the
8­

hour
NAAQS
as
under
the
1­
hour
NAAQS
­
i.
e.,
8­
hour
nonattainment
areas
that
are
classified
as
marginal
or
above
under
subpart
2
will
be
able
to
opt­
in
to
the
RFG
program.

D.
Why
is
EPA
taking
this
action?

1.
RFG
mandatory
areas
Under
section
211(
k)(
5),
RFG
is
required
in
any
"
covered
area."
The
term
"
covered
area"
is
defined
in
section
211(
k)(
10)(
D)
as:

[
t]
he
9
ozone
nonattainment
areas
having
a
1980
population
in
excess
of
250,000
and
having
the
highest
ozone
design
value
during
the
period
1987
through
1989
shall
be
"
covered
areas"
for
purposes
of
this
subsection.
Effective
one
year
after
the
reclassification
of
any
ozone
nonattainment
area
as
a
severe
ozone
nonattainment
area
under
section
181(
b)
of
this
title,
such
severe
area
shall
also
be
a
"
covered
area"
for
purposes
of
this
subsection.

In
the
June
2003
proposed
Phase
1
Rule,
EPA
proposed
that
RFG
be
considered
an
applicable
requirement
and
treated
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
427
like
the
various
mandatory
control
obligations
that
States
remained
obligated
to
adopt
and
implement
after
revocation
of
the
1­
hour
NAAQS.
Under
that
proposal,
the
nine
original
mandatory
areas
and
all
bump­
up
areas
would
have
continued
to
be
covered
areas
after
revocation
of
the
1­
hour
NAAQS.

For
the
reasons
discussed
below,
EPA
is
adopting
this
basic
approach
for
the
nine
original
mandatory
areas
as
well
as
those
bump­
up
areas
covered
by
this
final
rule.

a.
Nine
original
mandatory
areas
The
first
sentence
of
section
211(
k)(
10)(
D)
identifies
certain
covered
areas
by
reference
to
their
1980
population
and
their
1987­
1989
ozone
design
value.
The
nine
areas
that
meet
these
criteria
are
Los
Angeles,
San
Diego,
Hartford,

New
York,
Philadelphia,
Chicago,
Baltimore,
Houston,
and
Milwaukee.
It
is
clear
that
transition
to
the
8­
hour
NAAQS
does
not
change
the
historical
facts
that
define
these
areas.
In
addition,
all
of
these
areas
are
designated
as
nonattainment
areas
under
the
8­
hour
NAAQS.
Thus,
they
will
continue
to
be
"
ozone
nonattainment
areas"
until
they
are
redesignated
to
attainment
for
the
8­
hour
NAAQS.
Revocation
of
the
1­
hour
NAAQS
and
transition
to
the
8­
hour
NAAQS
does
not
change
the
fact
that
each
of
these
nine
mandatory
areas
will
continue
to
meet
the
definition
of
covered
area
at
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
428
least
until
it
is
redesignated
to
attainment
for
the
8­
hour
NAAQS.
As
discussed
below,
EPA
is
not
deciding
at
this
time
whether
these
areas
will
continue
to
be
covered
areas
upon
redesignation
to
attainment
for
the
8­
hour
NAAQS.
The
EPA
reserves
any
determination
on
that
issue
for
a
future
action.

The
EPA
believes
that
this
is
a
straightforward
and
clear
application
of
the
plain
language
of
the
statute.

However,
even
if
the
statutory
terms
were
considered
ambiguous
on
this
issue,
EPA
believes
that
the
same
statutory
interpretation
and
policy
considerations
described
below
for
the
"
bump­
up"
areas
covered
by
this
final
rule
apply
to
the
nine
mandatory
areas
and
would
lead
EPA
to
require
continued
use
of
RFG
in
the
nine
areas
at
least
until
they
are
redesignated
to
attainment
for
the
8­
hour
NAAQS.

Since
EPA
regulations
at
40
CFR
§
80.70
currently
define
the
term
"
covered
area"
to
include
the
original
nine
mandated
areas,
no
change
in
EPA
regulations
is
needed
at
this
time.
The
EPA
will
address
in
a
future
action
what
RFG
requirements,
if
any,
apply
to
the
original
nine
RFG
covered
areas
when
they
are
redesignated
to
attainment
for
the
8­

hour
NAAQS.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
429
b.
Bump­
up
areas
The
second
sentence
of
section
211(
k)(
10)(
D)
identifies
areas
that
become
covered
areas
because
they
have
been
reclassified
as
a
severe
area
under
CAA
section
181(
b).

These
are
called
"
bump­
up"
areas.
To
date,
five
areas
have
been
reclassified
to
severe
for
the
1­
hour
NAAQS.
They
became
RFG
covered
areas
1
year
after
their
reclassification
­
Baton
Rouge,
Atlanta,
Sacramento,
San
Joaquin
Valley,
and
Washington,
D.
C.
­
which
was
already
an
opt­
in
area.

The
areas
that
are
RFG
covered
areas
based
on
the
bumpup
provision
were
designated
as
ozone
nonattainment
areas
and
classified
by
operation
of
law
at
the
time
of
the
1990
CAA
Amendments,
and
their
bump­
up
to
severe
occurred
by
operation
of
law
based
on
EPA's
determination
under
section
181(
b)
that
the
areas
failed
to
attain
the
1­
hour
NAAQS
by
the
applicable
attainment
date.
Thus,
their
reclassification
to
severe
was
not
based
on
a
determination
that
their
air
quality
met
the
severe
area
design
value.

Instead,
reclassification
was
based
on
their
failure
to
meet
the
applicable
attainment
date.
The
bump­
up
to
severe
has
two
effects
­
a
later
attainment
date
is
set
for
the
area,

and
a
variety
of
additional
control
measures
become
mandatory
for
the
area.
The
Federal
RFG
program
becomes
a
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
430
mandatory
control
measure
in
an
area
1
year
after
it
is
bumped
up
to
a
severe
classification.

There
are
two
ways
that
a
bump­
up
area
classified
as
severe
could
lose
its
severe
classification.
First,
it
could
do
so
through
redesignation
to
attainment
for
the
1­

hour
NAAQS.
(
This
is
no
longer
an
option
for
areas
where
the
1­
hour
NAAQS
was
revoked
on
June
15,
2005.)
Second,

since
the
1­
hour
NAAQS
is
revoked,
a
bump­
up
area
will
no
longer
be
classified
as
severe
under
the
1­
hour
NAAQS
and
may
have
a
lower
classification
(
i.
e.,
subpart
1,
marginal,

moderate
or
serious)
for
the
8­
hour
NAAQS.
This
rule
only
addresses
the
second
situation.

The
bump­
up
areas
in
this
second
situation
are
all
designated
as
8­
hour
ozone
nonattainment
areas,
with
classifications
under
the
8­
hour
NAAQS
that
are
a
lower
classification
than
severe.
This
raises
the
issue
of
whether
the
bump­
up
areas
that
lose
their
severe
classification
through
revocation
of
the
1­
hour
NAAQS
should
continue
to
be
covered
areas
once
the
1­
hour
NAAQS
and
the
areas'
related
severe
classifications
are
revoked.

The
EPA
believes
that
section
211(
k)(
10)(
D)
is
ambiguous
on
the
issue
of
whether
a
bump­
up
area
continues
to
be
a
covered
area
when
it
is
no
longer
classified
as
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
113
While
this
final
rule
only
addresses
bump­
up
areas
that
lose
their
severe
classification
based
upon
revocation
of
the
1­
hour
NAAQS,
the
ambiguity
in
section
211(
k)(
10)(
D)
extends
to
all
bump­
up
areas,
including
those
not
covered
by
this
final
rule.
As
noted
above,
EPA
intends
to
address
and
resolve
this
ambiguity
for
any
bump­
up
areas
not
covered
by
this
rule
in
an
action
separate
from
this
final
rule.

431
severe.
The
text
of
the
provision
could
be
read
to
set
the
defining
criteria
as
the
occurrence
of
reclassification
to
severe,
a
historical
fact
that
does
not
change
based
on
subsequent
changes
in
classification.
It
could
also
be
read
as
identifying
areas
that
are
reclassified
to
severe,
but
as
leaving
unresolved
what
happens
when
they
are
no
longer
so
classified.
Given
this
ambiguity,
EPA
has
discretion
to
determine
whether
section
211(
k)(
10)(
D)
authorizes
removal
of
a
bump­
up
area
from
the
RFG
program
when
it
is
no
longer
classified
as
severe,
and
to
set
appropriate
criteria
for
such
removal.
113
For
a
bump­
up
area
covered
by
this
rule,
it
is
instructive
to
consider
what
would
happen
if
EPA
had
never
revised
the
1­
hour
NAAQS.
In
that
case,
the
area
would
continue
to
be
a
covered
area
at
least
until
it
was
redesignated
to
attainment
for
the
1­
hour
NAAQS.
While
section
211(
k)(
10)(
D)
does
not
directly
address
whether
a
bump­
up
area
would
continue
to
be
a
covered
area
after
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
432
redesignation,
it
is
clear
that
if
EPA
had
never
revised
the
1­
hour
NAAQS,
the
area
would
continue
to
be
a
covered
area
at
least
as
long
as
it
was
a
severe
area,
and
it
would
be
a
severe
area
as
long
as
it
was
still
designated
as
an
ozone
nonattainment
area.

The
EPA
does
not
believe
that
Congress
would
have
intended
that
removal
of
the
severe
classification
based
solely
on
revocation
of
the
less
protective
1­
hour
NAAQS
should
result
in
backsliding
of
the
RFG
requirement.
For
example,
as
noted
above,
if
EPA
had
not
adopted
a
more
protective
8­
hour
NAAQS,
with
the
related
revocation
of
the
1­
hour
NAAQS
and
removal
of
the
severe
classification,
then
the
bump­
up
areas
covered
by
this
rule
would
remain
covered
areas
at
least
until
they
were
redesignated
to
1­
hour
attainment,
at
which
point
they
would
no
longer
be
designated
as
ozone
nonattainment
areas.
Here,
the
removal
of
the
severe
classification
is
through
revocation
of
the
1­

hour
NAAQS,
not
through
redesignation
to
1­
hour
attainment.

These
bump­
up
areas
are
still
designated
as
ozone
nonattainment
areas.
The
EPA
believes
the
removal
of
the
severe
classification
for
these
areas
as
a
result
of
revocation
of
the
1­
hour
standard
should
not
lead
to
removal
of
the
RFG
requirement.
The
EPA
believes
the
RFG
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
433
requirement
should
continue
beyond
revocation
of
the
1­
hour
NAAQS,
and
it
should
continue
at
least
until
the
areas
are
redesignated
to
attainment
for
the
8­
hour
NAAQS.
This
does
not
change
or
affect
any
discretion
EPA
may
otherwise
have
under
the
RFG
provisions
to
modify
or
remove
RFG
requirements.

This
is
consistent
with
the
approach
taken
in
the
Phase
1
Rule
for
the
mandatory
obligations
that
EPA
identified
there
as
"
applicable
requirements."
In
that
rule,
EPA
determined
that
a
number
of
provisions
of
the
CAA
evidence
Congress'
intent
that
certain
obligations
that
applied
to
an
area
by
virtue
of
the
area's
classification
for
the
1­
hour
NAAQS
should
continue
to
apply
despite
EPA's
determination
the
1­
hour
NAAQS
is
no
longer
necessary
to
protect
public
health.
While
some
of
these
various
statutory
provisions
do
not
have
direct
bearing
on
Federal
RFG
and
section
211(
k),

the
issues
are
closely
analogous.
For
example,
the
inclusion
of
a
bump­
up
area
in
the
RFG
program
is
integrally
tied
to
the
subpart
2
provisions
that
establish
the
original
classification
and
attainment
date
for
an
area
and
its
later
reclassification
as
severe
under
section
181(
b).
The
Supreme
Court
cautioned
in
Whitman
v.
American
Trucking
Assn.,
531
U.
S.
457
(
2001),
against
EPA
making
subpart
2
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
114May
26,
2005
(
70
FR
30596).

434
"
abruptly
obsolete."
Although
the
RFG
requirement
itself
is
not
set
forth
in
subpart
2,
the
requirement
to
use
it
in
severe
bump­
up
areas
is
tied
directly
to
the
classifications
that
arise
by
operation
of
subpart
2.
Thus,
it
would
appear
that
the
Supreme
Court's
caution
should
be
as
relevant
for
RFG
bump­
up
areas
as
it
is
for
the
subpart
2
control
obligations.
For
further
discussion
of
the
reasoning
behind
anti­
backsliding
provisions
in
the
Phase
1
Rule,
see
69
FR
23951,
23972.
The
reasoning
presented
there
also
supports
EPA's
interpretation
of
section
211(
k)(
10)(
D)
regarding
RFG
requirements
for
bump­
up
areas
covered
by
today's
rule.

One
issue
addressed
in
the
Phase
1
Rule
involved
setting
the
trigger
date
for
determining
what
1­
hour
SIPrelated
requirements
would
continue
as
mandatory
"
applicable
requirements"
after
revocation
of
the
1­
hour
NAAQS.
The
EPA
considered
three
possible
trigger
dates
for
the
Phase
1
Rule
­
the
date
of
signature
of
the
Phase
1
Rule,
the
effective
date
of
the
8­
hour
nonattainment
designation,
and
the
date
of
revocation
of
the
1­
hour
NAAQS.
114
For
purposes
of
this
final
rule,
it
is
not
necessary
to
decide
on
a
similar
date
for
determining
the
continued
applicability
of
RFG
for
these
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
435
bump­
up
areas.
Under
all
potential
trigger
date
options,

RFG
would
be
a
requirement
on
the
trigger
date
for
the
bumpup
areas
covered
by
this
rule,
as
they
would
all
be
classified
as
severe
areas
on
any
of
the
trigger
dates
that
were
considered.

Based
on
the
above,
EPA
has
determined
that
bump­
up
areas
that
lose
their
severe
classification
based
solely
on
revocation
of
the
1­
hour
NAAQS
should
remain
RFG
covered
areas
at
least
until
they
are
redesignated
to
attainment
for
the
8­
hour
NAAQS.
As
indicated
above,
this
does
not
change
or
affect
any
discretion
EPA
may
otherwise
have
under
the
RFG
provisions
to
modify
or
remove
RFG
requirements.

2.
RFG
opt­
in
areas
Under
section
211(
k)(
6)
of
the
CAA,
certain
ozone
nonattainment
areas
may
opt­
in
to
the
RFG
program.
That
provision
limits
opt­
ins
to
areas
"
classified
under
subpart
2
of
part
D
of
title
I
as
a
marginal,
moderate,
serious,
or
severe
Area."
The
EPA's
regulation
implementing
this
provision
is
at
40
CFR
80.70(
j),
which
states
that
"[
a]
ny
...
area
classified
under
40
CFR
part
81,
subpart
C
as
a
marginal,
moderate,
serious,
or
severe
ozone
nonattainment
area
may
be
included
as
a
covered
area
on
petition
of
the
Governor
of
the
State
in
which
the
area
is
located."
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
436
Some
areas
designated
nonattainment
for
the
8­
hour
NAAQS
are
subject
only
to
the
planning
requirements
of
subpart
1,
while
others
are
also
subject
to
the
planning
requirements
of
subpart
2
of
part
D
of
title
I.
The
8­
hour
nonattainment
areas
subject
to
the
planning
requirements
of
subpart
2
were
all
classified
as
marginal,
moderate,

serious,
or
severe
(
69
FR
23951,
23954;
April
30,
2004).

The
8­
hour
nonattainment
areas
subject
only
to
subpart
1
are
not
subject
to
those
classifications.
Thus
the
only
8­
hour
nonattainment
areas
that
would
be
able
to
opt­
in
under
the
terms
of
section
80.70(
j)
are
areas
classified
under
subpart
2
as
marginal,
moderate,
serious,
or
severe,
consistent
with
the
terms
of
section
211(
k)(
6).

In
a
prior
rulemaking,
EPA
initially
expanded
the
scope
of
this
opt­
in
provision,
interpreting
section
211(
k)(
6)
as
authorizing
opt­
in
for
any
current
or
prior
1­
hour
ozone
nonattainment
area,
including
areas
that
were
not
classified
marginal
or
above.
In
that
rulemaking,
EPA
reserved
judgment
on
whether
it
would
apply
the
same
expanded
interpretation
to
areas
designated
as
nonattainment
for
the
then
recently
adopted
8­
hour
NAAQS
(
63
FR
52094,
52101;

September
29,
1998).
The
EPA's
expanded
view
of
the
scope
of
section
211(
k)(
6)
was
subject
to
judicial
review
and
was
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
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draft
11/
03/
05
437
rejected
as
inconsistent
with
the
terms
of
section
211(
k)(
6),
as
"
Congress
provided
for
opt­
in
only
for
areas
classified
as
marginal,
moderate,
serious,
or
severe."
API
and
NPRA
v.
EPA,
198
F.
3d
275,
281
(
D.
C.
Cir.
2000).

The
text
of
EPA's
current
opt­
in
regulation
is
limited
as
a
result,
is
consistent
with
the
limitation
in
section
211(
k)(
6),
and
only
allows
opt­
in
for
areas
classified
under
subpart
2
as
marginal
or
above.
The
EPA
interprets
the
current
opt­
in
regulation
as
allowing
opt­
in
for
those
8­

hour
nonattainment
areas
that
are
classified
as
marginal
or
above
under
subpart
2.
The
EPA
believes
this
is
consistent
with
section
211(
k)(
6)
and
with
the
API
and
NPRA
case,
and
therefore
sees
no
need
to
revise
the
current
regulation.

E.
Future
proceedings
Today,
EPA
is
reserving
for
future
consideration
what
RFG
requirements,
if
any,
should
apply
to
the
nine
mandatory
areas
and
the
bump­
up
areas
covered
by
this
final
rule
when
they
are
redesignated
to
attainment
for
the
8­
hour
NAAQS.

The
Phase
1
Rule
provides
that
upon
redesignation
to
attainment
for
the
8­
hour
NAAQS,
SIP
measures
may
be
moved
to
the
contingency
measure
portion
of
the
SIP
if
the
State
demonstrates
in
accordance
with
section
110(
l)
that
doing
so
will
not
interfere
with
maintenance
of
the
8­
hour
NAAQS
or
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
438
any
other
applicable
requirement
of
the
CAA
(
69
FR
23951,

23998;
April
30,
1994)(
40
CFR
§
51.905(
b)).
This
SIP
process
does
not
apply
to
RFG,
since
it
is
not
a
SIP
measure.

However,
EPA
will
need
in
the
future
to
consider
whether
it
should
develop
a
similar
scheme
for
RFG.
Specifically,
EPA
will
consider
the
following
issues.
Should
a
State
be
allowed
to
drop
the
RFG
requirement
when
a
covered
area
is
redesignated
to
attainment
for
the
ozone
NAAQS,
or
should
the
requirement
remain
in
place?
If
it
can
be
dropped,

under
what
conditions?
Once
dropped,
would
the
requirement
to
use
it
spring
back
if
a
State
backslides
into
nonattainment?
If
it
springs
back,
what
lead
time
should
be
provided?
If
it
does
not
spring
back
automatically,
should
EPA
nevertheless
reserve
the
discretion
to
require
a
former
covered
area
to
use
RFG
if
it
slips
back
into
nonattainment?

The
EPA
anticipates
considering
these
and
related
issues
in
a
future
notice­
and­
comment
proceeding.
The
EPA
is
not
soliciting
comment
on
these
issues
at
this
time.

As
noted
above,
EPA
is
not
deciding
at
this
time
what
RFG
requirements
apply
for
any
bump­
up
areas
that
are
redesignated
to
attainment
for
the
1­
hour
NAAQS
before
the
1­
hour
NAAQS
is
revoked.
The
only
such
area
that
was
redesignated
to
attainment
prior
to
revocation
of
the
1­
hour
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
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OR
DISTRIBUTE
draft
11/
03/
05
439
NAAQS
is
Atlanta,
Georgia.
That
issue
will
be
addressed
in
an
action
separate
from
this
final
rule.

F.
Miscellaneous
administrative
changes
to
the
RFG
regulations
Today,
EPA
is
making
a
non­
substantive
formatting
change
to
its
RFG
regulations.
The
regulations
are
currently
structured
to
envision
a
complete
list
of
all
bump­
up
areas
required
to
use
RFG.
However,
EPA
has
not
made
timely
amendments
to
these
regulations
to
keep
the
list
of
bump­
up
areas
up
to
date,
so
the
regulations
may
appear
to
be
misleading.
Although
EPA
could
take
the
opportunity
to
revise
the
list
at
this
time
to
include
all
current
bumpup
areas,
EPA
believes
that
it
would
be
best
to
amend
the
regulations
to
omit
the
list.
The
EPA
will
maintain
a
list
of
bump­
up
areas
on
its
RFG
web
site:

http://
www.
epa.
gov/
otaq/
rfg/
whereyoulive.
htm.
This
list
can
more
quickly
and
easily
be
amended
in
the
future
to
be
kept
up­
to­
date.

G.
Comments
and
responses
Comment:
One
commenter
noted
EPA
has
proposed
that
all
areas
designated
8­
hour
nonattainment
remain
subject
to
control
measures
that
apply
by
virtue
of
the
area's
classification
for
the
1­
hour
standard.
For
control
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
440
measures
that
the
State
has
not
adopted,
the
State
remains
obligated
to
adopt
and
submit
such
controls.
The
commenter
believes
that
such
a
policy
may
have
unintended
negative
consequences
for
the
few
areas
that
recently
bumped­
up
as
the
result
of
EPA's
failed
transport
policy.
Specifically,

most
of
these
areas
will
bump­
up
to
either
the
serious
or
severe
subpart
2
classification
triggering
higher
classification
controls.
Some
of
these
controls,
and
in
particular
VOC
controls
and
RFG,
may
not
benefit
and/
or
may
even
be
counterproductive
to
attaining
the
8­
hour
standard.

The
commenter
believes
that
for
these
few
areas
that
recently
bumped­
up
as
the
result
of
the
failed
transport
policy,
EPA
should
allow
those
States
to
evaluate
the
relative
ozone
reduction
benefits
of
the
higher
classification
controls
and,
where
appropriate,
substitute
for
more
effective
ozone
controls.
The
commenter
believes
this
is
important
to
ensure
continued
progress
towards
attainment
in
the
most
cost­
effective
manner.

Response:
Congress
specified
use
of
RFG
for
areas
bumped
up
to
severe
nonattainment
status
without
providing
an
opportunity
for
such
areas
to
substitute
other
controls
that
may
be
more
effective.
Specifying
mandated
controls
for
areas
that
have
failed
to
achieve
timely
attainment
is
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
441
one
of
the
specific
provisions
added
by
Congress
in
the
1990
CAA
Amendments.
The
EPA
does
not
believe
that
the
transition
to
a
more
protective
8­
hour
standard
should
result
in
less
restrictive
requirements
for
RFG,
such
as
allowing
substitution
of
other
control
measures
for
RFG,

than
would
apply
if
EPA
had
never
revised
the
1­
hour
standard.
Substitution
was
not
allowed
under
the
1­
hour
standard.

However,
EPA
notes
that
Congress
established
a
mechanism
to
address
adverse
impacts
of
the
RFG
program
on
attainment
of
the
NAAQS
by
authorizing
EPA
to
waive
the
RFG
oxygen
content
requirement
where
it
is
clearly
demonstrated
that
the
oxygen
content
requirement
prevents
or
interferes
with
NAAQS
attainment
[
section
211(
k)(
2)(
B)].
This
provides
additional
support
for
the
view
that
the
transition
to
the
8­
hour
standard
should
not
establish
a
right
to
substitute
other
measures
for
RFG
as
the
statute
provides
a
different
way
to
address
potential
concerns
over
the
effectiveness
of
RFG
in
addressing
ozone
attainment.

Comment:
The
local
experts
have
estimated
that
RFG
will
cost
consumers
in
the
5­
parish
nonattainment
area
an
additional
$
48
to
$
72
million
annually.
The
Department
of
Environmental
Quality,
using
MOBILE6
modeling
has
projected
PREDECISIONAL
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draft
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03/
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442
that
RFG
will
provide
no
measurable
benefits
for
NOx
and
less
than
2
tons
per
day
of
VOC
reductions.
Recent
UAM­
V
modeling
for
the
Baton
Rouge
area
shows
an
ozone
benefit
for
RFG
of
around
0.26
ppb.
Earlier
UAM­
V
sensitivity
modeling
showed
only
a
1
ppb
reduction
in
ozone
with
a
30
percent
reduction
in
local
anthropogenic
VOC
emissions
from
all
sources.
Thus,
for
an
expenditure
of
up
to
$
72
million
annually,
we
can
expect
a
negligible
ozone
benefit.

Employing
the
usual
cost­
benefit
analysis
for
cost
per
ton
of
pollutant
removed,
we
arrive
at
a
cost
of
around
$
36
million
per
daily
ton
removed
or
around
$
100,000
per
annual
ton
removed.
Since
the
reduction
would
be
expected
to
produce
no
measurable
ozone
benefit
anyway,
wouldn't
this
qualify
as
an
"
absurd
result"
and
be
subject
to
consideration
for
waiver
as
discussed
in
the
proposed
8­
hour
implementation
rules?
(
p.
3­
4).

Response:
Baton
Rouge
has
submitted
requests
for
a
RFG
waiver
and
for
a
waiver
of
the
RFG
oxygen
content
requirement,
which
are
currently
before
the
Agency.
With
respect
to
EPA's
authority
to
grant
a
waiver
of
the
entire
RFG
requirement
for
bump­
up
areas
on
the
basis
of
claims
of
"
absurd
results"
allegedly
caused
by
the
oxygen
content
requirement
of
RFG,
please
see
EPA's
September
30,
2004,
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
443
response
to
Georgia's
request
for
a
RFG
waiver,
which
is
available
at:
www.
epa.
gov/
otaq/
regs/
fuels/
rfg/
420s04006.
pdf.

As
noted
above,
EPA
does
not
believe
that
the
transition
to
the
more
protective
8­
hour
standard
should
result
in
less
restrictive
requirements
for
RFG
than
would
apply
if
EPA
had
never
revised
the
1­
hour
standard.
The
appropriate
mechanism
to
address
Baton
Rouge's
concerns
is
therefore
in
the
context
of
Baton
Rouge's
petitions
for
relief
under
the
RFG
program,
and
not
by
establishing
different,
less
restrictive
RFG
requirements
as
part
of
the
transition
to
the
8­
hour
standard.

Comment:
Several
commenters
oppose
any
attempts
to
liberalize
procedures
allowing
for
voluntary
opt­
ins
to
the
Federal
RFG
program.
Simply
stated,
further
fuels
restrictions
are
not
an
appropriate
local
control
strategy.

There
is
little
justification
for
automatic
proliferation
of
RFG.
The
industry
is
currently
working
hard
to
implement
far­
reaching
fuels
regulations
that
will
result
in
significant
environmental
improvement.
It
does
not
need
additional
fuel
reformulation
requirements
while
this
implementation
work
is
going
forward.

The
commenter
notes
under
section
211(
k)(
6)(
A)
of
the
CAA,
only
areas
classified
under
subpart
2
of
Part
D
of
PREDECISIONAL
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draft
11/
03/
05
444
Title
I
as
a
marginal,
moderate,
serious
or
severe
area
(
without
regard
to
whether
or
not
the
1980
population
of
the
area
exceeds
250,000)
can
opt­
in
to
RFG.
Therefore,
"
Gap"

Areas
 
those
attaining
the
1­
hour,
but
not
the
8­
hour
standard­
would
be
subject
to
implementation
under
subpart
1
of
the
CAA.
Those
areas
not
attaining
the
1­
hour
standard
and
reclassified
as
8­
hour
nonattainment
areas
would
be
subject
to
implementation
procedures
under
subpart
2.

Response:
Section
211(
k)(
6)(
A)
specifies
which
ozone
nonattainment
areas
may
opt­
in
to
the
RFG
program.
The
EPA's
implementation
plan
for
the
8­
hour
standard
does
not
change
or
liberalize
this
statutory
provision
or
EPA's
regulations
implementing
it,
but
rather
provides
for
continued
availability
of
opt­
ins
consistent
with
the
statutory
scheme.
After
revocation
of
the
1­
hour
standard,

opt­
ins
will
be
possible
for
areas
classified
under
subpart
2
as
marginal,
moderate,
serious
or
severe
ozone
nonattainment
areas
under
the
8­
hour
standard.
The
EPA
will
continue
after
transition
to
the
8­
hour
standard
to
use
its
existing
regulations
at
40
CFR
80.70(
j)
and
80.72
regarding
procedures
for
opt­
ins
and
opt­
outs.

Comment:
The
American
Road
and
Transportation
Builders
Association
(
ARTBA)
believes
States
should
be
able
to
choose
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445
their
own
devices
for
improving
air
quality.
As
a
result,

ARTBA
would
like
EPA
to
liberalize
its
procedures
for
allowing
a
voluntary
opt­
in
for
the
Federal
RFG
program.

While
ARTBA
understands
new
national
fuel
standards
are
in
the
developmental
process,
the
transportation
conformity
requirement
often
mandates
short­
term
solutions
with
a
limited
number
of
options.
We
believe
the
RFG
opt­
in
should
be
one
of
the
tools
available
for
States.

Response:
Section
211(
k)(
6)
of
the
CAA
specifies
which
ozone
nonattainment
areas
are
eligible
to
opt­
in
to
the
RFG
program
and
the
procedures
(
petition
by
governor
of
the
State)
for
opting
in.
Opt­
in
is
limited
to
areas
classified
under
subpart
2
as
marginal,
moderate,
serious
or
severe
ozone
nonattainment
areas.
The
EPA
does
not
have
the
authority
to
"
liberalize"
these
provisions
in
a
manner
inconsistent
with
the
statute.
See
American
Petroleum
Institute
v.
EPA,
198
F.
3d
275
(
D.
C.
Cir.
2000)(
RFG
opt­
ins
limited
to
areas
classified
under
subpart
2
as
marginal,

moderate,
serious
or
severe
nonattainment
areas).

Comment:
One
commenter
believes
EPA's
proposed
incentive
feature
undercuts
controls
aimed
at
reducing
ozone
precursor
emissions
from
mobile
sources.
For
example,
areas
that
are
bumped
down
from
severe
to
serious
will
no
longer
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need
to
sell
less­
polluting
reformulated
gas.

Response:
The
EPA's
final
rule
does
not
provide
for
areas
to
be
"
bumped
down"
after
final
designation
and
thereby
drop
the
requirement
to
use
RFG.
On
the
contrary,

the
original
nine
mandated
RFG
covered
areas,
and
any
other
nonattainment
area
bumped
up
to
a
severe
classification,

will
be
required
to
use
RFG
at
least
until
redesignated
to
attainment
of
the
8­
hour
ozone
NAAQS.

Comment:
One
commenter
notes
that,
in
the
proposed
rule,
EPA
includes
the
requirement
for
RFG
in
severe
areas
in
its
list
of
applicable
requirements
that
will
remain
in
effect
after
full
revocation
of
the
1­
hour
standard
(
68
FR
32802,
appendix
B).
This
commenter
requests
that
EPA
remove
the
RFG
requirement
from
appendix
B
before
promulgation
of
the
final
implementation
plan.

The
commenter
notes
that
within
1
year
of
reclassification
as
a
"
severe"
nonattainment
area
under
the
1­
hour
standard,
gasoline
distributors
in
the
13­
county
Metro
Atlanta
nonattainment
area
will
be
required
to
distribute
reformulated
gasoline.
[
42
U.
S.
C.

§
7545(
k)(
10)(
D)].
Reformulated
gasoline,
however,
will
not
be
as
beneficial
to
the
air
quality
in
Atlanta
as
other
types
of
fuel.
After
significant
study,
the
Georgia
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Environmental
Protection
Division
(
EPD)
has
implemented
a
fuel
program
tailored
to
the
atmospheric
conditions
and
air
quality
problems
in
the
metro
area
that
are
primarily
related
to
NOx
emissions
and
not
VOC
emissions.
House
Hearing
(
July
22,
2003).
Reformulated
gasoline,
however,
is
designed
to
reduce
VOC
emissions
rather
than
NOx
emissions.

Therefore,
EPD's
fuel
program
that
requires
the
distribution
of
fuel
that
is
specifically
designed
to
reduce
NOx
will
do
more
to
clean
the
air
in
Atlanta
than
RFG.
If
Atlanta
is
"
bumped­
up"
to
a
"
severe"
nonattainment
area,
it
will
lose
the
benefits
of
its
beneficial
fuel
program
in
place
of
the
less
effective
RFG.

The
commenter
requests
EPA
to
remove
RFG
as
an
applicable
requirement
that
will
remain
in
effect
after
implementation
of
the
8­
hour
standard.
The
requirement
for
RFG
under
the
1­
hour
standard
is
flawed
in
that
it
does
not
address
the
specific
ozone
nonattainment
issues
of
areas
such
as
Atlanta
in
which
NOx
rather
than
VOCs
is
the
pollutant
of
concern.
Therefore,
the
commenter
urges
EPA
to
allow
the
revocation
of
the
RFG
requirement
associated
with
areas
classified
as
severe
and
higher
under
the
1­
hour
standard
to
allow
areas
that
will
be
classified
as
a
lower
designation
under
the
new,
more
stringent
8­
hour
standard
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the
flexibility
to
utilize
a
gasoline
formulated
specifically
to
address
the
air
quality
issues
in
those
particular
areas.

Response:
The
final
rule
adopted
today
specifies
that
areas
bumped
up
to
a
severe
classification
under
the
1­
hour
standard
that
are
designated
nonattainment
for
the
8­
hour
standard
must
continue
to
use
RFG
at
least
until
redesignated
as
attainment
for
the
8­
hour
standard.
The
reasons
for
this
approach
are
described
in
the
preamble
and
do
not
change
or
affect
any
discretion
EPA
may
otherwise
have
under
the
RFG
provisions
to
modify
or
remove
RFG
requirements.
The
EPA
did
remove
RFG
from
the
list
of
applicable
requirements
identified
in
the
Phase
1
Rule,

because
the
applicable
requirements
provision
in
the
Phase
1
Rule
addresses
State
controls
and
SIP
requirements.
The
final
rule
adopted
today
treats
RFG,
a
Federal
control,
in
basically
the
same
manner
as
applicable
requirements
are
treated
in
the
Phase
1
Rule.

With
respect
to
the
specific
comments
regarding
the
impact
of
using
RFG
in
the
Atlanta
area,
please
see
EPA's
analysis
of
these
issues
in
its
September
30,
2004,
response
to
Georgia's
request
for
a
RFG
waiver
for
Atlanta.

VII.
Other
Considerations
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A.
How
will
EPA's
implementation
of
the
8­
hour
ozone
NAAQS
affect
funding
under
the
Congestion
Mitigation
and
Air
Quality
Improvement
(
CMAQ)
Program?

1.
Background
In
the
proposal,
we
noted
that
the
Transportation
Equity
Act
for
the
21st
Century
(
TEA­
21)
established
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
subpart
2,
sections
181,
186,
and
188.
All
areas
designated
nonattainment
after
December
31,
1997
were
also
eligible,

but
without
regard
to
classification.

2.
Current
position
Since
the
proposal,
new
transportation
legislation
was
passed
by
Congress
and
signed
into
law.
The
amount
of
CMAQ
funds
available
to
States
is
now
set
at
levels
authorized
by
the
Safe,
Accountable,
Flexible,
Efficient
Transportation
Equity
Act:
A
Legacy
for
Users
(
SAFETEA­
LU).
The
funds
are
still
apportioned
to
States
through
the
statutory
formula
contained
in
section
104(
b)
of
title
23.
The
formula
is
still
based
on
the
designations
and
classifications
of
ozone
and
CO
nonattainment
and
maintenance
areas,
and
the
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450
population
in
such
areas.

The
formula
for
determining
the
amount
of
funds
apportioned
to
the
States
takes
into
account
the
areas
that
are
designated
under
both
subpart
1
and
subpart
2
of
part
D
of
title
I,
of
the
CAA.
How
funding
is
affected
for
any
specific
area
is
determined
by
the
U.
S.
DOT
in
accordance
with
SAFETEA­
LU.

3.
Comments
and
responses
Comments:
The
EPA
received
several
comments
expressing
concern
that
implementation
of
the
8­
hour
ozone
standard
may
negatively
impact
an
area's
eligibility
for
CMAQ
Program
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
through
CMAQ
funding.
Some
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.

Others
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:
The
impact
of
the
implementation
of
the
8­

hour
standard
and
enactment
of
SAFETEA­
LU
result
in
the
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451
geographic
eligibility
and
apportionment
of
funds
for
the
CMAQ
programs
as
follows:

CMAQ
eligible
areas
1.
Designated
8­
hour
nonattainment
and
maintenance
areas.

2.
Former
1­
hour
ozone
nonattainment
and
maintenance
areas,
that
are
attaining
the
8­
hour
standard,
but
must
submit
a
section
110(
a)(
1)
maintenance
plan
in
compliance
with
EPA's
anti­
backsliding
provisions.

3.
CO,
PM10
and
PM­
2.5
nonattainment
and
maintenance
areas.
Additionally,
Nashville,
TN;
Greensboro,
NC;

and
Denver,
CO
are
Early
Action
Compact
areas
under
the
8­
hour
ozone
standard
that
were
excepted
from
the
revocation
of
the
1­
hour
standard.
As
a
result,
their
CMAQ
eligibility
and
apportionment
are
based
on
their
status
as
maintenance
areas
under
the
1­
hour
ozone
standard.

4.
If
the
State
does
not
have,
and
has
never
had,
a
nonattainment
area
designated
under
the
CAA
(
42
U.
S.
C.

7401
et
seq.),
the
State
may
use
the
funds
for
any
project
in
the
State
that
would
otherwise
be
eligible
under
the
CMAQ
program
as
if
the
project
were
carried
out
in
a
nonattainment
or
maintenance
area,
or
is
eligible
under
section
133
of
the
surface
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452
transportation
program.
This
flexibility
is
in
reference
to
the
CMAQ
Program's
minimum
apportionment
provision.

Apportionment
(
ozone­
based)


Nonattainment
areas
designated
under
subpart
1
receive
a
weighting
factor
of
1.0

Nonattainment
areas
designated
and
classified
under
subpart
2
retain
the
same
apportionment
weighting
factors
as
under
TEA­
21

Maintenance
areas
receive
a
weighting
factor
of
1.0.

Apportionment
of
CMAQ
funds
is
carried
out
yearly
and
varies
according
to
the
severity
of
air
pollution
and
changes
in
nonattainment
and
maintenance
area
population
as
estimated
by
the
U.
S.
Census
for
each
affected
county.
The
program
is
administered
by
the
U.
S.
DOT
with
EPA
in
a
consultative
role.
The
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
SAFETEA­
LU.
We
understand
the
importance
of
CMAQ
funding
to
States
and
nonattainment
areas
and
are
prepared
to
work
with
the
U.
S.
DOT
to
minimize
any
unintended
impact
of
the
8­
hour
ozone
NAAQS
on
transportation
programs
in
those
areas.
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115The
1­
hour
standard
was
revoked
for
most
areas,
including
the
associated
area
designations
and
classifications,
on
June
15,
2005,
1
year
following
June
15,
2004,
the
effective
date
of
designations
for
the
8­
hour
standard.

453
B.
What
is
the
relationship
between
implementation
of
the
8­
hour
standard
and
the
CAA's
title
V
permits
program?

1.
Background
The
interrelationship
between
implementation
of
the
8­

hour
ozone
standard
and
the
title
V
permits
program
was
not
discussed
in
the
proposed
rule.
However,
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
hour
ozone
standard
and
the
revocation
of
the
1­

hour
ozone
standard?
115
Response:
Section
502(
a)
of
the
CAA
and
40
CFR
70.3
and
71.3
establish
specific
criteria
for
determining
whether
a
source
is
subject
to
the
title
V
operating
permits
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
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11640
CFR
70.3(
b)
and
71.3(
b)
provide
for
certain
area
source
deferrals
and
exemptions,
which
are
not
detailed
here.

454
section
111
or
112,116
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
subject
to
title
V
solely
because
it
was
major
for
VOCs
under
a
1­
hour
ozone
classification
is
no
longer
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
designation
or
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
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.
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455
Question
2:
When
do
the
8­
hour
major
source
thresholds
apply
for
determining
major
source
status
under
title
V?

Response:
For
purposes
of
title
V,
section
501(
2)
of
the
CAA
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
tpy
or
more
of
VOCs
or
oxides
of
nitrogen
in
areas
classified
as
"
marginal"
or
"
moderate,"
50
tpy
or
more
of
these
ozone
precursors
in
areas
classified
as
"
serious,"
25
tpy
or
more
of
these
ozone
precursors
in
areas
classified
as
"
severe,"

and
10
tpy
or
more
of
these
ozone
precursors
in
areas
classified
as
"
extreme."

On
or
after
June
15,
2004,
until
June
15,
2005,
the
major
source
thresholds
for
the
1­
hour
ozone
designations
and
classifications
and
the
8­
hour
ozone
designations
and
classifications
were
in
effect
under
part
D
of
title
I,
and
therefore
under
title
V
as
well.
Since
revocation
of
the
1­

hour
ozone
standard
and
the
corresponding
area
designations
and
classifications
on
June
15,
2005,
only
the
major
source
thresholds
for
the
8­
hour
ozone
designations
and
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
456
classifications
continue
to
determine
whether
a
source
is
major
for
ozone
precursors
under
title
V.
Our
review
of
the
1­
hour
and
8­
hour
designations
and
nonattainment
classifications
indicates
that
no
additional
sources
became
subject
to
title
V
on
June
15,
2004
(
the
effective
date
of
the
8­
hour
ozone
NAAQS
designations
and
classifications
(
40
CFR
part
81,
subpart
C))
based
solely
on
the
8­
hour
designations
and
classifications
and
corresponding
major
source
thresholds.
This
is
because
the
8­
hour
designations
and
classifications
effective
on
June
15,
2004
did
not
result
in
a
lowering
of
the
title
V
major
source
threshold
for
any
area
compared
to
the
1­
hour
designations
and
classifications.
Rather,
the
title
V
major
source
thresholds
either
stayed
the
same
or
were
raised
to
a
higher
threshold
in
all
cases,
e.
g.,
50
tpy
to
100
tpy.

Question
3:
Are
title
V
permits
required
for
sources
that
trigger
the
major
source
applicability
cut­
offs
for
RACT
in
40
CFR
51.900(
f)(
3)
due
to
the
8­
hour
ozone
antibacksliding
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
tpy.
Under
the
8­
hour
standard
in
this
example,
this
same
area
is
classified
as
a
PREDECISIONAL
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NOT
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OR
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03/
05
457
severe­
17
area.
In
a
severe­
17
area,
the
major
source
threshold
for
ozone
precursors
is
25
tpy.
Under
the
antibacksliding
provisions,
this
area
would
be
required
to
continue
its
application
of
RACT
to
sources
with
potential
emissions
of
10
or
more
tpy
of
ozone
precursors.
However,

is
the
title
V
major
source
threshold
for
ozone
precursors
in
this
area
10
tpy
or
25
tpy
since
June
15,
2005?

Response:
Since
revocation
of
the
1­
hour
ozone
standard
on
June
15,
2005,
the
title
V
major
source
thresholds
for
ozone
are
now
based
solely
on
the
8­
hour
designations
and
classifications
and
thus
in
the
above
example
will
be
25
tpy
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.
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
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OR
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draft
11/
03/
05
458
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
major
stationary
source
threshold
for
ozone
precursors.
If
PREDECISIONAL
DRAFT
 
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117
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.

459
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
since
revocation
of
the
1­
hour
ozone
standard
on
June
15,
2005?
117
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
CAA
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
title
I"
to
include
any
source
required
to
obtain
a
permit
PREDECISIONAL
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460
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,
2nd
Session,
at
344
(
May
17,
1990);
see
also
S.
Rep.
101­
228,

101st
Congress,
1st
Session,
at
349
(
December
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;
November
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
.
.
.")

Title
V
permit
content
may
be
affected
for
sources
in
PREDECISIONAL
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461
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
programs.
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
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
require
it.

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
established
under
the
1­
hour
standard
nonattainment
area
PREDECISIONAL
DRAFT
 
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draft
11/
03/
05
462
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
percent
of
the
reactive
organic
gases
(
ROG)
and
NOx
emissions
are
from
mobile
sources,
which
are
not
subject
to
control
under
title
V.

Response:
We
agree
that,
since
revocation
of
the
1­

hour
ozone
standard,
the
title
V
major
stationary
source
thresholds
are
only
determined
by
the
8­
hour
designations
and
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
provision
apply
in
determining
which
1­
hour
nonattainment
requirements
are
"
applicable
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
118Filed
June
29,
2004
by
Earthjustice
on
behalf
of
American
Lung
Association,
Environmental
Defense,
Natural
Resources
Defense
Council,
Sierra
Club,
Clean
Air
Task
Force,
Conservation
Law
Foundation,
and
Southern
Alliance
for
Clean
Energy.

463
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
cutoffs
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
CAA
[
40
CFR
51.904(
a)].
We
received
a
petition
for
reconsideration
of
the
overwhelming
transport
classification
from
Earthjustice,
118
who
claimed
that
our
final
rule
of
PREDECISIONAL
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draft
11/
03/
05
464
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
how
areas
should
assess
whether
they
are
subject
to
overwhelming
transport.
We
granted
the
Earthjustice
petition
concerning
the
overwhelming
transport
classification
on
January
10,
2005.

In
a
separate
rulemaking
action,
we
are
inviting
comment
on
the
overwhelming
transport
classification,
the
draft
overwhelming
transport
guidance,
and
the
requirements
that
would
apply
to
such
areas.

We
will
address
any
comments
on
the
applicable
control
requirements
for
an
area
that
receives
an
overwhelming
transport
classification
in
the
context
of
the
reconsideration
action.

VIII.
Statutory
and
Executive
Order
Reviews
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
the
PREDECISIONAL
DRAFT
 
DO
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draft
11/
03/
05
465
Office
of
Management
and
Budget
(
OMB)
review
and
the
requirements
of
the
Executive
Order.
The
Order
defines
"
significant
regulatory
action"
as
one
that
is
likely
to
result
in
a
rule
that
may:

(
1)
have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,
competition,

jobs,
the
environment,
public
health
or
safety,
or
State,

local,
or
Tribal
governments
or
communities;

(
2)
create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
another
agency;

(
3)
materially
alter
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
loan
programs
or
the
rights
and
obligations
of
recipients
thereof;
or
(
4)
raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President's
priorities,
or
the
principles
set
forth
in
the
Executive
Order.

Pursuant
to
the
terms
of
Executive
Order
12866,
it
has
been
determined
that
this
rule
is
a
"
significant
regulatory
action"
because
it
raises
novel
legal
or
policy
issues
arising
out
of
legal
mandates.
As
such,
this
action
was
submitted
to
OMB
for
review.
Changes
made
in
response
to
OMB
suggestions
or
recommendations
are
documented
in
the
PREDECISIONAL
DRAFT
 
DO
NOT
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OR
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draft
11/
03/
05
466
public
record.

B.
Paperwork
Reduction
Act
The
information
collection
requirements
in
this
rule
will
be
submitted
for
approval
to
OMB
under
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.
The
information
collection
requirements
are
not
enforceable
until
OMB
approves
them
other
than
to
the
extent
required
by
statute.

This
rule
provides
the
framework
for
the
States
to
develop
SIPs
to
achieve
a
new
or
revised
NAAQS.
This
framework
reflects
the
requirements
prescribed
in
CAA
sections
110
and
part
D,
subparts
1
and
2
of
title
I.
In
that
sense,
the
present
final
rule
does
not
establish
any
new
information
collection
burden
on
States.
Had
this
rule
not
been
developed,
States
would
still
have
the
legal
obligation
under
law
to
submit
nonattainment
area
SIPs
under
part
D
of
title
I
of
the
CAA
within
specified
periods
after
their
nonattainment
designation
for
the
8­
hour
ozone
standard,
and
the
SIPs
would
have
to
meet
the
requirements
of
part
D.

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.
The
SIP
PREDECISIONAL
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467
must
meet
the
CAA
requirements
in
subparts
1
or
2
to
adopt
RACM,
RACT,
and
provide
for
RFP
toward
attainment
for
the
period
prior
to
the
area's
attainment
date.
After
a
State
submits
a
SIP,
the
CAA
requires
EPA
to
approve
or
disapprove
the
SIP.
If
EPA
approves
the
SIP,
the
rules
in
the
SIP
become
federally
enforceable.
If
EPA
disapproves
the
SIP
(
or
if
EPA
finds
that
a
State
fails
to
submit
a
SIP),
the
CAA
requires
EPA
to
impose
sanctions
(
2:
1
offsets
for
major
new
or
modified
sources
and
restrictions
on
Federal
highway
funding)
within
specified
timeframes;
additionally,
EPA
must
prepare
and
publish
a
FIP
within
2
years
after
a
disapproval
or
finding
of
failure
to
submit.
The
SIP
must
be
publicly
available.
States
must
maintain
confidentiality
of
confidential
business
information,
however,
if
used
to
support
SIP
analyses.
The
SIP
is
a
one­
time
submission,

although
the
CAA
requires
States
to
revise
their
SIPs
if
EPA
requests
a
revision
upon
a
finding
that
the
SIP
is
inadequate
to
attain
or
maintain
the
NAAQS.
The
State
may
revise
its
SIP
voluntarily
as
needed,
but
in
doing
so
must
demonstrate
that
any
revision
will
not
interfere
with
attainment
or
RFP
or
any
other
applicable
requirement
under
the
CAA
(
see
section
110(
l)).

This
rule
does
not
establish
requirements
that
directly
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
468
affect
the
general
public
and
the
public
and
private
sectors,
but,
rather,
interprets
the
statutory
requirements
that
apply
to
States
in
preparing
their
SIPs.
The
SIPs
themselves
will
likely
establish
requirements
that
directly
affect
the
general
public,
and
the
public
and
private
sectors.

The
EPA
has
not
yet
projected
cost
and
hour
burden
for
the
statutory
SIP
development
obligation
but
has
started
that
effort
and
will
shortly
prepare
an
Information
Collection
Request
(
ICR)
request.
However,
EPA
did
estimate
administrative
costs
at
the
time
of
promulgation
of
the
8­

hour
ozone
standard
in
1997.
See
Chapter
10
of
U.
S.
EPA
1997,
Regulatory
Impact
Analyses
for
the
Particulate
Matter
and
Ozone
National
Ambient
Air
Quality
Standards,
Innovative
Strategies
and
Economics
Group,
Office
of
Air
Quality
Planning
and
Standards,
Research
Triangle
Park,
N.
C.,
July
16,
1997.
Assessments
of
some
of
the
administrative
cost
categories
identified
as
a
part
of
the
SIP
for
an
8­
hour
standard
are
already
conducted
as
a
result
of
other
provisions
of
the
CAA
and
associated
ICRs
(
e.
g.
emission
inventory
preparation,
air
quality
monitoring
program,

conformity
assessments,
NSR,
I/
M
program).

The
burden
estimates
in
the
ICR
for
this
rule
are
PREDECISIONAL
DRAFT
 
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draft
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03/
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469
incremental
to
what
is
required
under
other
provisions
of
the
CAA
and
what
would
be
required
under
a
1­
hour
standard.

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.
When
this
ICR
is
approved
by
OMB,

the
Agency
will
publish
a
technical
amendment
to
40
CFR
part
9
in
the
Federal
Register
to
display
the
OMB
control
number
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
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OR
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draft
11/
03/
05
470
for
the
approved
information
collection
requirements
contained
in
this
final
rule.
However,
the
failure
to
have
an
approved
ICR
for
this
rule
does
not
affect
the
statutory
obligation
for
the
States
to
submit
SIPs
as
required
under
part
D
of
the
CAA.

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
approved
by
OMB
on
January
25,
2005.
The
information
collection
requirements
associated
with
NSR
permitting
were
previously
covered
by
ICR
1230.10
and
1230.11.
The
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.
A
copy
of
the
approved
ICR
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.

For
the
portion
of
this
rulemaking
on
RFG,
this
action
does
not
add
any
new
requirements
under
the
provisions
of
the
Paperwork
Reduction
Act.
The
OMB
has
approved
the
PREDECISIONAL
DRAFT
 
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NOT
QUOTE,
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OR
DISTRIBUTE
draft
11/
03/
05
471
information
collection
requirements
contained
in
the
final
RFG/
anti­
dumping
rulemaking
(
see
59
FR
7716,
February
16,

1994)
and
has
assigned
OMB
control
number
2060­
0277
(
EPA
ICR
No.
1951.08).

C.
Regulatory
Flexibility
Act
The
EPA
has
determined
that
it
is
not
necessary
to
prepare
a
regulatory
flexibility
analysis
in
connection
with
this
final
rule.

For
purposes
of
assessing
the
impacts
of
today's
rule
on
small
entities,
small
entity
is
defined
as:
(
1)
a
small
business
as
defined
by
the
Small
Business
Administrations'

regulations
at
13
CFR
121.201;
(
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
final
Phase
2
Rule
for
implementation
of
the
8­
hour
ozone
standard
on
small
entities,
EPA
has
concluded
that
this
action
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
This
final
rule
will
not
impose
any
requirements
on
small
entities.
Rather,
this
rule
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
472
interprets
the
obligations
established
in
the
CAA
for
States
to
submit
implementation
plans
in
order
to
attain
the
8­
hour
ozone
NAAQS.
The
Phase
1
Rule
(
published
April
30,
2004)

set
forth
(
a)
whether
8­
hour
ozone
nonattainment
areas
were
covered
by
subpart
1
or
subpart
2
(
and
if
under
subpart
2,

how
they
would
be
classified);
(
b)
provisions
to
revoke
the
1­
hour
standard
and
provisions
for
anti­
backsliding
from
the
requirements
under
the
1­
hour
standard;
(
c)
provisions
related
to
attainment
dates
and
attainment
date
extensions;

and
(
d)
timing
for
implementation
of
emissions
reductions
needed
for
attainment.
This
final
rulemaking
action,
Phase
2,
is
issued
so
the
States
and
Tribes
will
know
how
EPA
interprets
the
statutory
requirements
for
8­
hour
nonattainment
areas,
including
the
RACT,
RFP,
attainment
demonstrations,
and
NSR.
By
adopting
a
more
flexible
interpretation
of
the
mandatory
requirements,
reduced
cost
and
economic
impacts
are
anticipated
while
still
assuring
that
areas
attain
and
maintain
the
standard
as
prescribed
in
the
CAA.

I
certify
that
a
Regulatory
Flexibility
Act
Screening
Analysis
(
RFASA),
without
the
NSR
portion
of
this
rule,
was
developed
as
part
of
a
1994
draft
Regulatory
Impact
Analysis
(
RIA)
and
incorporated
into
the
September
1995
ICR
renewal.
PREDECISIONAL
DRAFT
 
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draft
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05
473
This
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
1990
CAA
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
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.

Regarding
the
portion
of
this
rulemaking
on
RFG:
In
PREDECISIONAL
DRAFT
 
DO
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draft
11/
03/
05
119Final
Regulatory
Impact
Analysis
for
Reformulated
Gasoline.
Office
of
Mobile
Sources.
U.
S.
Environmental
Protection
Agency.
EPA420­
R­
93­
017.
December
1993.

474
promulgating
the
RFG
and
related
anti­
dumping
regulations,

the
Agency
analyzed
the
impact
of
the
regulations
on
small
businesses.
The
Agency
concluded
that
the
regulations
could
have
some
economic
effect
on
a
substantial
number
of
small
refiners,
but
that
the
regulations
would
not
significantly
affect
other
small
entities,
such
as
gasoline
blenders,

terminal
operators,
service
stations
and
ethanol
blenders.

(
See
59
FR
7810­
7811;
February
16,
1994).
A
complete
analysis
of
the
effect
of
the
RFG/
anti­
dumping
regulations
on
small
businesses
is
contained
in
the
Regulatory
Flexibility
Analysis
which
was
prepared
for
the
RFG
and
anti­
dumping
rulemaking,
and
can
be
found
in
the
docket
for
this
rulemaking.
119
The
RFG
portions
of
this
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities
for
the
following
reasons.
First,
there
is
no
impact
associated
with
opt­
in
areas,
as
EPA
is
merely
retaining
its
existing
opt­
in
rules.
Second,
EPA
estimates
that
no
more
than
three
small
refiners
could
potentially
be
impacted
by
these
regulations,
since
no
more
than
that
PREDECISIONAL
DRAFT
 
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draft
11/
03/
05
475
number
produce
gasoline
for
sale
in
RFG­
covered
areas.
This
is
not
a
substantial
number
of
small
entities.
In
estimating
this
number,
EPA
used
the
Small
Business
Administration's
definition
of
small
refiner
as
one
that
employs
fewer
than
1,500
individuals.
As
noted
above,
EPA
has
determined
that
there
will
be
no
significant
economic
impacts
from
RFG
requirements
for
terminals,
retailers,

distributors
and
other
entities
involved
in
the
sale
and
distribution
of
gasoline.
Third,
as
to
the
mandatory
areas
covered
by
this
rule,
the
rule
merely
keeps
in
place
the
pre­
existing
requirement
that
RFG
be
used
until
the
areas
are
redesignated
to
attainment
for
the
ozone
standard,
and
clarifies
that
a
change
in
ozone
standard
does
not
modify
this
requirement.
Therefore,
any
impact
of
the
RFG
program
on
small
entities
relates
to
the
earlier
EPA
rulemaking
establishing
the
RFG
program,
and
not
to
this
rule.

Although
EPA
does
not
believe
that
a
regulatory
flexibility
analysis
is
needed
for
the
RFG
portions
of
this
rulemaking,

EPA
nevertheless
incorporates
by
reference
the
analysis
it
conducted
in
the
RIA
for
the
1994
RFG
rules.

For
the
reasons
provided
above,
EPA
concludes
that
this
rulemaking
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
PREDECISIONAL
DRAFT
 
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OR
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draft
11/
03/
05
476
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
477
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
RFG­
related
portions
of
this
rule
contain
no
new
Federal
mandates
(
under
the
regulatory
provisions
of
title
II
of
the
UMRA)
for
State,
local
or
Tribal
governments
or
the
private
sector.
The
rule
imposes
no
new
enforceable
duty,
since
it
merely
clarifies
that
in
the
transition
to
the
8­
hour
ozone
standard
the
pre­
existing
opt­
in
rules
remain
in
place,
as
does
the
pre­
existing
requirement
that
RFG
be
used
in
mandatory
RFG­
covered
areas
within
the
scope
of
this
rule
until
such
areas
are
redesignated
to
attainment
for
the
ozone
standard.
Although
EPA
does
not
believe
that
UMRA
imposes
requirements
regarding
the
RFG­
related
portions
of
this
rulemaking,
EPA
notes
that
the
environmental
and
economic
impacts
of
the
RFG
program
were
assessed
in
EPA's
PREDECISIONAL
DRAFT
 
DO
NOT
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OR
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draft
11/
03/
05
478
RIA
for
the
1994
RFG
rules.

The
EPA
has
determined
that
all
other
portions
of
this
rule
do
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
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.
Thus,
today's
rule
is
not
subject
to
the
requirements
of
sections
202
and
205
of
the
UMRA.
At
the
time
EPA
proposed
its
Implementation
Rule,
EPA
noted
that
if
it
chose
a
classification
option
that
classified
all
areas
under
subpart
2
of
part
D,
these
costs
may
increase
modestly,
but
would
not
reach
$
100
million.
However,
in
promulgating
the
Phase
1
Rule,
EPA
adopted
a
classification
scheme
that
resulted
in
approximately
half
of
the
areas
PREDECISIONAL
DRAFT
 
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05
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designated
nonattainment
being
subject
only
to
the
subpart
1
requirements.

The
CAA
imposes
the
obligation
for
States
to
submit
SIPs
to
implement
the
8­
hour
ozone
NAAQS;
in
this
rule,
EPA
is
merely
fleshing
out
those
requirements.
However,
even
if
this
rule
did
establish
a
requirement
for
States
to
submit
SIPs,
it
is
questionable
whether
a
requirement
to
submit
a
SIP
revision
would
constitute
a
Federal
mandate
in
any
case.

The
obligation
for
a
State
to
submit
a
SIP
that
arises
out
of
section
110
and
part
D
of
the
CAA
is
not
legally
enforceable
by
a
court
of
law,
and
at
most
is
a
condition
for
continued
receipt
of
highway
funds.
Therefore,
it
is
possible
to
view
an
action
requiring
such
a
submittal
as
not
creating
any
enforceable
duty
within
the
meaning
of
section
421(
5)(
9a)(
I)
of
UMRA
[
2
U.
S.
C.
658(
a)(
I)].
Even
if
it
did,

the
duty
could
be
viewed
as
falling
within
the
exception
for
a
condition
of
Federal
assistance
under
section
421(
5)(
a)(
i)(
I)
of
UMRA
[
2
U.
S.
C.
658(
5)(
a)(
i)(
I)].
As
noted
below
under
"
L.
Petitions
for
Judicial
Review,"
this
rule
is
covered
under
section
307(
d)
of
the
CAA.

The
EPA
has
determined
that
this
rule
contains
no
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
Tribal
governments.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
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OR
DISTRIBUTE
draft
11/
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480
Nonetheless,
EPA
carried
out
consultations
with
governmental
entities
affected
by
this
rule.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
"
Federalism"
(
64
FR
43255,
August
10,
1999),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications."

"
Policies
that
have
federalism
implications"
is
defined
in
the
Executive
Order
to
include
regulations
that
have
"
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,

or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government."

This
rule
does
not
have
federalism
implications.
It
will
not
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.
The
RFG­
related
portions
of
the
rule
impose
requirements
on
certain
refiners
and
other
entities
in
the
gasoline
distribution
system,
and
not
on
States.
In
addition,
as
described
in
section
D,
above
(
on
UMRA),
EPA
PREDECISIONAL
DRAFT
 
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draft
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05
481
previously
determined
the
costs
to
States
to
implement
the
8­
hour
ozone
NAAQS
to
be
approximately
$
1
million.
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.
In
the
non­

RFG
portions
of
this
rule,
EPA
is
interpreting
the
statutory
SIP
submission
requirements
that
apply
to
areas
designated.

As
described
above,
EPA
has
generally
adopted
the
more
flexible
options
proposed
in
the
June
2003
proposal.
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.
The
EPA
held
regular
calls
with
representatives
of
State
and
local
air
pollution
control
agencies.
Also,
EPA
held
three
public
meetings
at
which
it
described
the
approaches
it
was
considering
and
provided
an
opportunity
for
States
and
various
other
governmental
officials
to
comment
on
the
options
being
considered.

Finally,
EPA
held
three
public
hearings
after
the
proposed
rule
was
published
to
obtain
public
comments.

F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
PREDECISIONAL
DRAFT
 
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draft
11/
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482
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."

The
portions
of
this
rulemaking
that
relate
to
RFG
do
not
create
a
mandate
for
any
Tribal
government.
The
rule
does
not
impose
any
enforceable
duties
on
these
entities.

Rather,
the
rule
will
affect
only
those
refiners,
importers
or
blenders
of
gasoline
that
choose
to
produce
or
import
RFG
for
sale
in
the
nonattainment
areas
addressed
in
the
rule,

and
the
gasoline
distributors
and
retail
stations
in
those
areas.
The
following
discussion
relates
to
the
non­
RFG
portions
of
the
rule.

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
non­
RFG
portions
of
this
rule
flesh
out
the
statutory
obligations
of
States
and
Tribes
that
develop
plans
to
implement
the
8­
hour
ozone
NAAQS.
The
TAR
and
the
CAA
give
Tribes
the
opportunity
to
develop
and
implement
CAA
PREDECISIONAL
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draft
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483
programs
such
as
the
8­
hour
ozone
NAAQS,
but
it
leaves
to
the
discretion
of
the
Tribe
whether
to
develop
these
programs
and
which
programs,
or
appropriate
elements
of
a
program,
they
will
adopt.

This
rule
does
not
have
Tribal
implications
as
defined
by
Executive
Order
13175.
There
are
126
designated
nonattainment
areas.
Although
there
are
61
Tribes
estimated
to
be
in
one
or
more
of
those
nonattainment
areas,
this
rule
does
not
have
a
substantial
direct
effect
on
one
or
more
Indian
Tribes,
since
no
Tribe
is
required
to
implement
a
CAA
program
to
attain
the
8­
hour
ozone
NAAQS.
See:

http://
www.
epa.
gov/
oar/
oaqps/
glo/
designations/
tribaldesig.
ht
m
for
the
list
of
Tribes
included
as
part
of
a
designated
nonattainment
area.
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.

Although
Executive
Order
13175
does
not
apply
to
this
rule,
EPA
did
consult
with
Tribal
leaders
and
environmental
PREDECISIONAL
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OR
DISTRIBUTE
draft
11/
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05
484
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.
The
EPA
encouraged
Tribes
to
participate
in
the
national
public
meetings
held
to
take
comment
on
early
approaches
to
the
rule.
Several
Tribes
made
public
comments
at
the
April
2002
public
meeting
in
Tempe,
Arizona.

Furthermore,
EPA
sent
individualized
letters
to
all
federally­
recognized
Tribes
inviting
Tribal
leaders
to
consult
with
EPA
on
the
proposed
implementation
rule.
The
EPA
received
comment
from
the
NTAA
on
several
questions:
(
1)

the
NTAA
asked
for
clarification
on
the
nature
of
EPA's
support
for
Tribes
without
TAS
status
and
asked
if
EPA
would
PREDECISIONAL
DRAFT
 
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QUOTE,
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OR
DISTRIBUTE
draft
11/
03/
05
485
provide
technical
assistance
in
interpreting
SIP
documentation
to
a
Tribe
without
TAS
approval;
(
2)
the
NTAA
asked
EPA
to
explain
how
it
envisions
its
role
in
continuing
consultation
with
Tribes
throughout
the
execution
of
SIPs.

We
respond
to
these
comments
in
the
technical
support
document.
The
NTAA's
final
comment
cited
concerns
with
the
impact
of
NSR
requirements
on
the
Tribes.
The
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
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
PREDECISIONAL
DRAFT
 
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05
486
feasible
alternatives
considered
by
the
Agency.

This
rule
is
not
subject
to
Executive
Order
13045
because
it
implements
a
previously
promulgated
health­
based
Federal
standard
 
the
8­
hour
ozone
NAAQS
 
and
contains
a
non­
health­
based
determination
of
the
extent
to
which
the
existing
RFG
program
remains
in
place
under
the
8­
hour
standard.
We
have
evaluated
the
environmental
health
and
safety
effects
of
the
8­
hour
ozone
NAAQS
on
children
as
part
of
this
previously
promulgated
Federal
standard.
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,
July
18,
1997;
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.

At
the
time
of
proposal,
information
on
the
methodology
and
data
regarding
the
assessment
of
potential
energy
PREDECISIONAL
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05
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impacts
regarding
implementation
of
the
8­
hour
standard
was
addressed
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,
NC,
April
24,
2003.

Subsequently,
EPA
issued
an
Addendum
1
to
that
analysis
for
the
Phase
1
final
rule
and
designated
nonattainment
areas.

For
purposes
of
this
final
rule,
EPA
has
issued
Addendum
2.

By
adopting
the
more
flexible
approaches
while
providing
for
attainment
and
maintenance
of
the
8­
hour
NAAQS
as
required
by
the
CAA,
additional
energy
cost
associated
with
more
extensive
use
of
less
flexible
approaches
would
be
averted.

The
portions
of
this
rule
that
relate
to
RFG
merely
clarify
that
the
existing
program
continues
under
the
8­
hour
standard
in
the
areas
addressed
by
the
rule,
so
the
rule
does
not
have
a
significant
affect
on
energy
supply,

distribution
or
use.
The
EPA
evaluated
energy
impacts
of
the
RFG
program
in
the
RIA
for
the
1994
rulemaking
establishing
the
RFG
program.

I.
National
Technology
Transfer
Advancement
Act
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
488
Section
12(
d)
of
the
National
Technology
Transfer
Advancement
Act
of
1995
(
NTTAA),
Public
Law
No.
104­
113,

section
12(
d)
(
15
U.
S.
C.
272
note)
directs
EPA
to
use
voluntary
consensus
standards
(
VCS)
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Voluntary
consensus
standards
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,
and
business
practices)
that
are
developed
or
adopted
by
VCS
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
VCS.

This
rulemaking
does
not
involve
technical
standards.

Therefore,
EPA
is
not
considering
the
use
of
any
VCS.

The
EPA
will
encourage
the
States
and
Tribes
to
consider
the
use
of
such
standards,
where
appropriate,
in
the
development
of
the
implementation
plans.

J.
Executive
Order
12898:
Federal
Actions
to
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
Populations
Executive
Order
12898
requires
that
each
Federal
agency
make
achieving
environmental
justice
part
of
its
mission
by
identifying
and
addressing,
as
appropriate,
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
489
disproportionately
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
does
not
raise
any
environmental
justice
concerns.
Today's
rule
helps
establish
a
framework
for
bringing
all
areas
of
the
country
into
attainment
with
the
8­
hour
ozone
standards,
an
important
environmental
justice
goal.
The
health
and
environmental
risks
associated
with
ozone
were
considered
in
the
establishment
of
the
8­
hour,
0.08
ppm
ozone
NAAQS,
and
the
standard
was
set
at
a
level
requisite
to
protect
public
health
with
an
adequate
margin
of
safety.
In
setting
this
standard,
EPA
considered
the
effects
on
sensitive
subpopulations,
such
as
those
with
respiratory
problems.

The
EPA
has
designated
as
nonattainment
these
areas
of
the
country
that
are
not
meeting
the
8­
hour
ozone
standard.

This
rule
will
assist
States
as
they
develop
plans
to
bring
these
nonattainment
areas
into
attainment
in
accordance
with
the
CAA
schedule.
By
establishing
guidelines
for
bringing
these
areas
into
attainment
with
the
8­
hour
ozone
standard,

the
Phase
2
Rule
advances
an
important
environmental
justice
goal
and
will
help
make
significant
progress
in
providing
for
the
fair
treatment
of
all
people
with
respect
to
air
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
490
pollution.

In
the
preamble
to
the
proposed
rule,
EPA
took
comment
on
the
Clean
Air
Development
Communities
(
CADC)
concept
(
regarding
possible
State
adoption
of
land
use
planning
as
a
pollution
reduction
strategy)
and
noted
that
it
might
raise
environmental
justice
concerns.
Public
comments
were
submitted
that
raised
environmental
justice
concerns
with
this
concept.
As
noted
earlier
in
the
preamble
to
this
Phase
2
Rule,
EPA
is
not
finalizing
the
CADC
concept
and
has
therefore
not
responded
to
these
(
or
any
other)
comments
on
the
CADC
concept.

The
RFG
program
is
designed
to
reduce
vehicle
emissions
of
toxic
and
ozone­
forming
substances.
This
rule
will
not
alter
the
air
quality
benefits
associated
with
the
RFG
program.

K.
Congressional
Review
Act
The
Congressional
Review
Act,
5
U.
S.
C.
801
et
seq.,
as
added
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996,
generally
provides
that
before
a
rule
may
take
effect,
the
agency
promulgating
the
rule
must
submit
a
rule
report,
which
includes
a
copy
of
the
rule,
to
each
House
of
the
Congress
and
to
the
Comptroller
General
of
the
United
States.
The
EPA
will
submit
a
report
containing
this
rule
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
491
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
[
INSERT
DATE
60
DAYS
AFTER
PUBLICATION].

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
[
insert
date
60
days
after
publication].
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
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
sections
307(
d)(
1)(
E)
and
307(
d)(
1)(
V)
of
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
draft
11/
03/
05
492
the
CAA,
the
Administrator
determines
that
this
action
is
subject
to
the
provisions
of
section
307(
d).
Section
307(
d)(
1)(
V)
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
___

493
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:

________________________________

Stephen
L.
Johnson,
Administrator
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
120These
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
CAA
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.

494
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
emissions
reductions
when
calculating
ROP
targets
for
the
2008
and
later
ROP
milestone
years.
120
They
are
consistent
with
requirements
of
sections
182(
b)(
1)(
C)
and
(
D)
and
182(
c)(
2)(
B)
of
the
CAA.

(
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.
PREDECISIONAL
DRAFT
 
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OR
DISTRIBUTE
10/
20/
05
495
(
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
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.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
496
(
E)
Reduce
the
adjusted
VOC
inventory
calculated
in
Step
D
by
15
percent.
The
result
is
the
target
level
of
VOC
emissions
in
2008
in
order
to
meet
the
2008
ROP
requirement.
The
actual
projected
2008
inventory
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
that
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,
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
497
1990.

(
C)
Calculate
the
difference
between
2002
and
2008
VOC
emissions
factors
calculated
in
Step
B
and
multiply
by
2002
VMT.
The
result
is
the
VOC
emissions
reductions
that
will
occur
between
2002
and
2008
without
the
benefits
of
any
post­
1990
CAA
measures.
These
are
the
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
498
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
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
emission
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
499
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
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.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
500
(
D)
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
the
basis
for
calculating
the
target
level
of
emissions
in
2011.

(
E)
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
a
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.

(
F)
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
501
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
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.

(
4)
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
reductions
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
502
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
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
503
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
inventory
in
Step
C
and
a
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
10/
20/
05
504
APPENDIX
B
TO
PREAMBLE
GLOSSARY
OF
TERMS
AND
ACRONYMS
ACT
Alternative
Control
Techniques
ARTBA
American
Road
and
Transportation
Builders
Association
BACT
Best
Available
Control
Technology
BART
Best
Available
Retrofit
Technology
CAA
Clean
Air
Act
CAAAC
Clean
Air
Act
Advisory
Committee
CADCs
Clean
Air
Development
Communities
CAIR
Clean
Air
Interstate
Rule
CERR
Consolidated
Emissions
Reporting
Rule
CFR
Code
of
Federal
Regulations
CMAQ
Congestion
Mitigation
and
Air
Quality
CMSA
Consolidated
Metropolitan
Statistical
Area
CO
Carbon
Monoxide
CTG
Control
Technique
Guideline
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
505
FIP
Federal
Implementation
Plan
FMVCP
Federal
Motor
Vehicle
Control
Program
HON
Hazardous
Organic
NESHAP
ICR
Information
Collection
Requirement
I/
M
Inspection
and
Maintenance
Area
km
Kilometers
LADCO
Lake
Michigan
Air
Directors
Consortium
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
NAS
National
Academy
of
Sciences
NCore
National
Core
Monitoring
Stations
NESHAP
National
Emission
Standards
for
Hazardous
Air
Pollutants
NOx
Nitrogen
Oxides
NOy
Reactive
Oxides
of
Nitrogen
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
506
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
OTAG
Ozone
Transport
Assessment
Group
OTR
Ozone
Transport
Region
PAMS
Photochemical
Assessment
Monitoring
Stations
PM
Particulate
Matter
PM2.5
Fine
Particulate
Matter
PM10
Particulate
Matter
Having
a
Nominal
Aerodynamic
Diameter
Less
than
or
Equal
to
10
Microns
ppb
Parts
per
Billion
ppm
Parts
per
Million
PSD
Prevention
of
Significant
Deterioration
psi
Pounds
Per
Square
Inch
RACM
Reasonably
Available
Control
Measures
RACT
Reasonably
Available
Control
Technology
RFASA
Regulatory
Flexibility
Act
Screening
Analysis
RFP
Reasonable
Further
Progress
RIA
Regulatory
Impact
Analysis
ROG
Reactive
Organic
Gases
ROP
Rate
of
Progress
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
507
RPOs
Regional
Planning
Organizations
RVP
Reid
Vapor
Pressure
SBA
Small
Business
Administration
SCR
Selective
Catalytic
Reduction
SIPs
State
Implementation
Plans
SO2
Sulfur
Dioxide
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
U.
S.
DOT
United
States
Department
of
Transportation
VCS
Voluntary
Consensus
Standards
VMT
Vehicle
Miles
Traveled
VOC
Volatile
Organic
Compound
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
508
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.
§
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
10/
20/
05
509
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
(
vi)
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
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
nitrogen
oxides
located
in
an
ozone
nonattainment
area
or
in
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
510
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
stationary
source
not
qualifying
under
paragraphs
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
511
(
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.

*
*
*
*
*

(
x)(
A)
Significant
means,
in
reference
to
a
net
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
512
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
(
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
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
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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
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.

*
*
*
*
*
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514
(
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
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
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515
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
emissions
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
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
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516
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
(
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
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517
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
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.

*
*
*
*
*

3.
§
51.166
is
amended:

a.
By
revising
paragraph
(
b)(
1)(
ii).

b.
By
revising
paragraph
(
b)(
2)(
ii).

c.
By
revising
paragraph
(
b)(
23).
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518
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
paragraph
(
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)
*
*
*

POLLUTANT
AND
EMISSIONS
RATE
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519
*
*
*

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
the
second
sentence
of
paragraph
I
and
the
beginning
of
the
fourth
sentence
of
paragraph
I
up
to
the
words
"
this
Interpretive
Ruling".

b.
By
revising
paragraph
II.
A.
4(
i)(
a)
and
(
b).

c.
By
adding
paragraph
II.
A.
4(
i)(
c).

d.
By
revising
paragraph
II.
A.
4(
ii).

e.
By
revising
paragraph
II.
A.
5
(
ii).

f.
By
adding
paragraphs
II.
A.
5(
iv)
through
(
v).

g.
By
revising
paragraph
II.
A.
6(
v)(
c).

h.
By
adding
paragraphs
II.
A.
10(
ii)
through
(
v).

i.
By
amending
paragraph
IV.
A
Condition
1
by
removing
footnote
5.

j.
By
amending
paragraph
IV.
A
Condition
3
by
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redesignating
footnote
6
as
footnote
5
and
by
redesignating
footnote
7
as
footnote
6.

k.
By
amending
paragraph
IV.
A
Condition
4
by
removing
footnote
8.

l.
By
revising
paragraph
IV.
C.
3.

m.
By
revising
paragraph
IV.
D.

n.
By
revising
paragraph
IV.
E.

o.
By
adding
paragraphs
IV.
G
through
H.

p.
By
amending
paragraph
V.
A
by
redesignating
footnote
10
as
footnote
7.

q.
By
revising
paragraph
VI.

The
revisions
and
additions
read
as
follows:

Appendix
S
to
part
51
 
Emission
Offset
Interpretative
Ruling
I.

*
*
*
A
major
new
source
or
major
modification
which
would
locate
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
or
which
would
locate
in
an
area
designated
in
40
CFR
part
81,
subpart
C,
as
nonattainment
for
a
pollutant
for
which
the
source
or
modification
would
be
major
may
be
allowed
to
construct
only
if
the
stringent
conditions
set
forth
below
are
met.
*
*
*

For
each
area
designated
as
exceeding
a
NAAQS
(
nonattainment
area)
under
40
CFR
part
81,
subpart
C,
or
for
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521
any
area
designated
under
section
107(
d)
of
the
Act
as
attainment
or
unclassifiable
for
ozone
that
is
located
in
an
ozone
transport
region,*
*
*

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,

title
I
of
the
Act,
according
to
paragraphs
II.
A.
4(
i)(
a)(
1)

through
(
6)
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
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522
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
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
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.
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(
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
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
increase
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
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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
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
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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
(
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
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
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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
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
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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
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
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source,
and
the
emissions
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
obtaining
emissions
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
emissions
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
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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).

*
*
*
*
*

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
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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
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.
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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
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
a
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
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is
published
in
the
Federal
Register.

5.
Subpart
X
of
Part
51
is
amended
as
follows:

(
a)
By
redesignating
§
51.908
as
§
51.908(
d),
and
by
revising
the
section
heading
and
adding
paragraphs
(
a),
(
b),
and
(
c)

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
§
51.903?
An
area
classified
as
moderate
or
higher
under
§
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
the
area's
designation
for
the
8­
hour
NAAQS.

(
b)
What
is
the
attainment
demonstration
requirement
for
an
area
subject
only
to
subpart
1
in
accordance
with
§
51.902(
b)?
An
area
subject
to
§
51.902(
b)
shall
be
subject
to
the
attainment
demonstration
under
section
172(
c)(
1)
of
the
Act
and
shall
submit
an
attainment
demonstration
no
later
than
3
years
after
the
area's
designation
for
the
8­
hour
NAAQS.

(
c)
What
criteria
must
the
attainment
demonstration
meet?

An
attainment
demonstration
due
pursuant
to
paragraph
(
a)
or
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(
b)
of
this
section
must
meet
the
requirements
of
§
51.112;

the
adequacy
of
an
attainment
demonstration
shall
be
demonstrated
by
means
of
a
photochemical
grid
model
or
any
other
analytical
method
determined
by
the
Administrator,
in
the
Administrator's
discretion,
to
be
at
least
as
effective.

*
*
*

(
b)
By
revising
§
51.906,
§
51.910,
§
51.912,
§
51.914,
§
51.915,

and
§
51.916,
and
by
adding
§
51.917
and
§
51.918
to
read
as
follows:

Subpart
X
 
Provisions
for
Implementation
of
8­
hour
Ozone
National
Ambient
Air
Quality
Standard.

*
*
*
*
*

§
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.

*
*
*
*
*
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§
51.910
What
requirements
for
reasonable
further
progress
(
RFP)
under
sections
172(
c)(
2)
and
182
apply
for
areas
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
§
51.903?
For
an
area
classified
under
subpart
2
pursuant
to
§
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
sections
182(
b)(
1)
and
182(
c)(
2)(
B)
of
the
Act
for
an
area
classified
as
moderate
or
higher
pursuant
to
§
51.903
(
subpart
2
coverage)?

(
i)
Moderate
or
Above
Area.
(
A)
Except
as
provided
in
paragraph
(
a)(
1)(
ii)
of
this
section,
for
each
area
classified
as
moderate
or
higher,
the
State
shall
submit
a
SIP
revision
consistent
with
section
182(
b)(
1)
of
the
Act
no
later
than
3
years
after
designation
for
the
8­

hour
NAAQS
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.

(
B)
For
each
area
classified
as
serious
or
higher,
the
State
shall
submit
a
SIP
revision
consistent
with
section
182(
c)(
2)(
B)
of
the
Act
no
later
than
3
years
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
535
after
designation
for
the
8­
hour
NAAQS.
The
final
increment
of
progress
must
be
achieved
no
later
than
the
attainment
date
for
the
area.

(
ii)
Area
with
Approved
1­
hour
Ozone
15
Percent
VOC
ROP
Plan.
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
instead:

(
A)
If
classified
as
moderate,
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)
of
this
section,
consistent
with
the
attainment
date
established
in
the
attainment
demonstration
SIP.

(
B)
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
reductions
for
(
1)
the
6­
year
period
beginning
January
1
of
the
year
following
the
year
used
for
the
baseline
PREDECISIONAL
DRAFT
 
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NOT
QUOTE,
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OR
DISTRIBUTE
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536
emissions
inventory;
and
(
2)
all
remaining
3­
year
periods
after
the
first
6­
year
period
out
to
the
area's
attainment
date.

(
iii
)
Moderate
and
Above
Area
for
Which
Only
a
Portion
Has
an
Approved
1­
hour
Ozone
15
Percent
VOC
ROP
Plan.
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
shall
meet
the
requirements
of
either
paragraph
(
a)(
1)(
iii)(
A)
or
(
B)

below.

(
A)
The
State
shall
not
distinguish
between
the
portion
of
the
area
that
previously
met
the
15
percent
VOC
reduction
requirement
and
the
portion
of
the
area
that
did
not,
and
(
1)
The
State
shall
submit
a
SIP
revision
consistent
with
section
182(
b)(
1)
of
the
Act
no
later
than
3
years
after
designation
for
the
8­
hour
NAAQS
for
the
entire
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.

(
2)
For
each
area
classified
as
serious
or
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
537
higher,
the
State
shall
submit
a
SIP
revision
consistent
with
section
182(
c)(
2)(
B)
of
the
Act
no
later
than
3
years
after
designation
for
the
8­
hour
NAAQS.
The
final
increment
of
progress
must
be
achieved
no
later
than
the
attainment
date
for
the
area.

(
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
submit
a
SIP
revision
consistent
with
section
182(
b)(
1)
of
the
Act
no
later
than
3
years
after
designation
for
the
8­
hour
NAAQS
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.
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
(
b)(
2)
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
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
538
182(
b)(
1)(
C)
and
(
D)
and
section
182(
c)(
2)(
B)
of
the
Act,

all
SIP­
approved
or
federally
promulgated
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
§
51.493
of
this
part.

(
b)
How
does
the
RFP
requirement
of
section
172(
c)(
2)
of
the
Act
apply
to
areas
subject
to
that
requirement?

(
1)
An
area
subject
to
the
RFP
requirement
of
subpart
1
pursuant
to
§
51.902(
b)
or
a
moderate
area
subject
to
subpart
2
as
covered
in
paragraphs
(
a)(
1)(
ii)(
A)
of
this
section
shall
meet
the
RFP
requirements
of
section
172(
c)(
2)
of
the
Act
as
provided
in
paragraph
(
b)(
2)
of
this
section.

(
2)
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:

(
i)
For
each
area
with
an
attainment
demonstration
requesting
an
attainment
date
of
5
years
or
less
after
designation
for
the
8­
hour
NAAQS,
the
attainment
demonstration
SIP
shall
require
that
all
emissions
reductions
needed
for
attainment
be
implemented
by
the
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
539
beginning
of
the
attainment
year
ozone
season.

(
ii)
For
each
area
with
an
attainment
demonstration
requesting
an
attainment
date
more
than
5
years
after
designation
for
the
8­
hour
NAAQS,
the
attainment
demonstration
SIP
 
(
A)
Shall
provide
for
a
15
percent
emission
reduction
from
the
baseline
year
within
6
years
after
the
baseline
year.

(
B)
May
use
either
NOx
or
VOC
emissions
reductions
(
or
both)
to
achieve
the
15
percent
emission
reduction
requirement.
Use
of
NOx
emissions
reductions
must
meet
the
criteria
in
section
182(
c)(
2)(
C)
of
the
Act.

(
C)
For
each
subsequent
3­
year
period
out
to
the
attainment
date,
the
RFP
SIP
must
provide
for
an
additional
increment
of
progress.
The
increment
for
each
3­
year
period
must
be
a
portion
of
the
remaining
emission
reductions
needed
for
attainment
beyond
those
reductions
achieved
for
the
first
increment
of
progress
(
e.
g.,
beyond
2008
for
areas
designated
nonattainment
in
June
2004).

Specifically,
the
amount
of
reductions
needed
for
attainment
is
divided
by
the
number
of
years
needed
for
attainment
after
the
first
increment
of
progress
in
order
to
establish
an
"
annual
increment."
For
each
3­
year
period
out
to
the
attainment
date,
the
area
must
achieve
roughly
the
portion
PREDECISIONAL
DRAFT
 
DO
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QUOTE,
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OR
DISTRIBUTE
10/
20/
05
540
of
reductions
equivalent
to
three
annual
increments.

(
c)
What
method
should
a
State
use
to
calculate
RFP
targets?

In
calculating
RFP
targets
for
the
initial
6­
year
period
and
the
subsequent
3­
year
periods
pursuant
to
this
section,
the
State
shall
use
the
methods
consistent
with
the
requirements
of
sections
182(
b)(
1)(
C)
and
(
D)
and
182(
c)(
2)(
B)
to
properly
account
for
non­
creditable
reductions.

(
d)
What
is
the
baseline
emissions
inventory
for
RFP
plans?

For
the
RFP
plans
required
under
this
section,
the
baseline
emissions
inventory
shall
be
determined
at
the
time
of
designation
of
the
area
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
or
a
more
recent
alternative
baseline
emissions
inventory
provided
the
State
demonstrates
that
the
baseline
inventory
meets
the
CAA
provisions
for
RFP
and
provides
a
rationale
for
why
it
is
appropriate
to
use
the
alternative
baseline
year
rather
than
2002
to
comply
with
the
CAA's
RFP
provisions.

*
*
*
*
*

§
51.912
What
requirements
apply
for
reasonably
available
control
technology
(
RACT)
and
reasonably
available
control
PREDECISIONAL
DRAFT
 
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05
541
measures
(
RACM)
under
the
8­
hour
NAAQS?

(
a)
What
is
the
RACT
requirement
for
areas
subject
to
subpart
2
in
accordance
with
§
51.903?

(
1)
For
each
area
subject
to
subpart
2
in
accordance
with
§
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
27
months
after
designation
for
the
8­
hour
ozone
NAAQS.

(
3)
The
State
shall
provide
for
implementation
of
RACT
as
expeditiously
as
practicable
but
no
later
than
the
first
ozone
season
or
portion
thereof
which
occurs
30
months
after
the
RACT
SIP
is
due.

(
b)
How
do
the
RACT
provisions
apply
to
a
major
stationary
source?
Volatile
organic
compounds
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.

(
c)
What
is
the
RACT
requirement
for
areas
subject
only
to
subpart
1
pursuant
to
§
51.902(
b)?
Areas
subject
only
to
subpart
1
pursuant
to
§
51.902(
b)
are
subject
to
the
RACT
requirement
specified
in
section
172(
c)(
1)
of
the
Act.
PREDECISIONAL
DRAFT
 
DO
NOT
QUOTE,
CITE
OR
DISTRIBUTE
10/
20/
05
542
(
1)
For
an
area
that
submits
an
attainment
demonstration
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
submits
an
attainment
demonstration
that
requests
an
attainment
date
more
than
5
years
after
designation
for
the
8­
hour
NAAQS,
the
State
shall
submit
a
SIP
consistent
with
the
requirements
of
§
51.912(
a)
and
(
b)
except
the
State
shall
submit
the
RACT
SIP
for
each
area
with
its
request
pursuant
to
Clean
Air
Act
section
172(
a)(
2)(
A)
to
extend
the
attainment
date.

(
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
§
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.

§
51.913
How
do
the
section
182(
f)
NOx
exemption
provisions
apply
for
the
8­
hour
NAAQS?
PREDECISIONAL
DRAFT
 
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543
(
a)
A
person
may
petition
the
Administrator
for
an
exemption
from
NOx
obligations
under
section
182(
f)
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
for
the
1­
hour
ozone
standard
does
not
relieve
the
area
from
any
NOx
obligations
under
section
182(
f)
for
the
8­
hour
ozone
standard.

§
51.914
What
new
source
review
requirements
apply
for
8­

hour
ozone
nonattainment
areas?

The
requirements
for
new
source
review
for
the
8­
hour
ozone
standard
are
located
in
§
51.165
of
this
part.

§
51.915
What
emissions
inventory
requirements
apply
under
the
8­
hour
NAAQS?

For
each
nonattainment
area
subject
to
subpart
2
in
accordance
with
§
51.903,
the
emissions
inventory
requirements
in
sections
182(
a)(
1)
and
182(
a)(
3)
of
the
Act
shall
apply,
and
such
SIP
shall
be
due
no
later
2
years
after
designation.
For
each
nonattainment
area
subject
only
to
subpart
1
in
accordance
with
§
51.902(
b),
the
emissions
inventory
requirement
in
section
172(
c)(
3)
of
the
Act
shall
apply,
and
an
emission
inventory
SIP
shall
be
due
no
later
3
PREDECISIONAL
DRAFT
 
DO
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10/
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05
544
years
after
designation.
For
purposes
of
defining
the
data
elements
for
the
emissions
inventories
for
these
areas,
the
ozone­
relevant
data
element
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.

(
1)
The
State
shall
submit
a
SIP
revision
that
meets
the
RACT
requirements
of
section
184
of
the
Act
for
each
area
that
is
located
in
an
ozone
transport
region
and
that
is
 
(
i)
designated
as
attainment
or
unclassifiable
for
the
8­
hour
standard;

(
ii)
designated
nonattainment
and
classified
as
marginal
for
the
8­
hour
standard;
or
(
iii)
designated
nonattainment
and
covered
solely
under
subpart
1
of
part
D,
title
I
of
the
CAA
for
the
8­
hour
standard.

(
2)
The
State
is
required
to
submit
the
RACT
revision
no
later
than
September
16,
2006
and
shall
provide
for
implementation
of
RACT
as
expeditiously
as
practicable
but
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545
no
later
than
May
1,
2009.

§
51.917
What
is
the
effective
date
of
designation
for
the
Las
Vegas,
NV,
8­
hour
ozone
nonattainment
area?

The
Las
Vegas,
NV,
8­
hour
ozone
nonattainment
area
(
designated
on
September
17,
2004
(
69
FR
55956))
shall
be
treated
as
having
an
effective
date
of
designation
of
June
15,
2004,
for
purposes
of
calculating
SIP
submission
deadlines,
attainment
dates,
or
any
other
deadline
under
this
subpart.

§
51.918
Can
any
SIP
planning
requirements
be
suspended
in
8­
hour
ozone
nonattainment
areas
that
have
air
quality
data
that
meets
the
NAAQS?

Upon
a
determination
by
EPA
that
an
area
designated
nonattainment
for
the
8­
hour
ozone
NAAQS
has
attained
the
standard,
the
requirements
for
such
area
to
submit
attainment
demonstrations
and
associated
reasonably
available
control
measures,
reasonable
further
progress
plans,
contingency
measures,
and
other
planning
SIPs
related
to
attainment
of
the
8­
hour
ozone
NAAQS
shall
be
suspended
until
such
time
as
(
1)
the
area
is
redesignated
to
attainment,
at
which
time
the
requirements
no
longer
apply,

or
(
2)
EPA
determines
that
the
area
has
violated
the
8­
hour
ozone
NAAQS.

PART
52
­
[
Amended]
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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
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
PREDECISIONAL
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or
net
emissions
increase
(
as
defined
in
paragraph
(
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
*
*
*
*
*

(
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
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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
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
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549
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
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
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550
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
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
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551
political
subdivision
of
a
State),
where
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
NSR
permit
program
meeting
the
requirements
of
part
D
is
approved.
The
Emission
Offset
Interpretative
Ruling,
40
CFR
part
51,

appendix
S,
shall
also
govern
permits
to
construct
and
operate
applied
for
in
any
area
designated
under
section
107(
d)
of
the
CAA
as
attainment
or
unclassifiable
for
ozone
that
is
located
in
an
ozone
transport
region
prior
to
the
date
the
NSR
permitting
program
meeting
the
requirements
of
part
D
is
approved.

PART
80
­
[
Amended]

1.
The
authority
citation
for
part
80
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
7414,
7545,
and
7601(
a).

Subpart
D
­
[
Amended]

2.
Section
80.70(
m)
is
amended
by:
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a.
In
the
second
sentence,
striking
"
included
in"
and
replacing
it
with
"
identified
pursuant
to".

b.
In
the
third
sentence,
striking
"
listed
in"
and
replacing
it
with
"
identified
pursuant
to".

c.
Striking
all
text
after
the
third
sentence,
and
replacing
it
with
the
following:

(
1)
An
area
identified
as
a
covered
area
pursuant
to
this
paragraph
(
m),
whose
classification
as
a
severe
nonattainment
area
under
the
1­
hour
ozone
NAAQS
is
removed
as
a
result
of
removal
of
the
1­
hour
ozone
NAAQS,
remains
a
covered
area
as
follows:

(
I)
prior
to
redesignation
as
attainment
for
the
8­
hour
ozone
NAAQS
the
area
remains
a
covered
area;

(
ii)
after
redesignation
as
attainment
for
the
8­
hour
ozone
NAAQS
­
[
RESERVED].

(
2)
An
area
identified
as
a
covered
area
pursuant
to
this
paragraph
(
m),
whose
classification
as
a
severe
nonattainment
area
under
the
1­
hour
ozone
NAAQS
is
removed
as
a
result
of
redesignation
to
attainment
for
the
1­
hour
ozone
NAAQS,
remains
a
covered
area
as
follows:

[
RESERVED]
