OAR­
2003­
0090­
0278
RESPONSE
TO
PUBLIC
COMMENTS
EARLY
ACTION
COMPACTS
FOR
IMPLEMENTING
THE
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARD
Received
in
response
to
Proposed
Rule­­
Deferral
of
Effective
Date
of
Nonattainment
Designations
for
8­
Hour
Ozone
National
Ambient
Air
Quality
Standards
for
Early
Action
Compact
Areas
Docket
Number
OAR­
2003­
0090
and
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard
Docket
Number
OAR­
2003­
0079
April
15,
2004
Contract
No.
68­
D­
00­
283,
Work
Assignment
No.
3­
48
Prepared
for
:
David
G.
Cole
U.
S.
Environmental
Protection
Agency
Office
of
Air
Quality
Planning
and
Standards
Research
Triangle
Park,
NC
27711
Prepared
by:
Barbara
Bauer
E.
H.
Pechan
&
Associates,
Inc.
3622
Lyckan
parkway,
Suite
2002
Durham,
NC
27707
ii
Introduction
The
purpose
of
this
document
is
to
provide
EPA's
responses
to
public
comments
received
on
the
proposed
rule,
"
Deferral
of
Effective
Date
of
Nonattainment
Designations
for
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard
for
Early
Action
Compact
Areas"
(
Docket
Number
OAR­
2003­
0090).
A
summary
of
these
public
comments
and
EPA's
responses
are
located
in
Section
I
of
this
document.

In
addition,
this
document
provides
EPA's
responses
to
Early
Action
Compact­
related
public
comments
received
in
response
to
the
"
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard"
(
Docket
Number
OAR­
2003­
0079).
These
public
comments
and
EPA's
responses
are
located
in
Section
II
of
this
document.

A
related
document
titled
"
Responses
to
Comments
on
EPA's
Designation
and
Classification
of
Areas
for
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard"
(
Docket
Number
OAR­
2003­
0083­
1658),
April
15,
2004,
contains
EPA's
responses
to
Early
Action
Compact­
related
public
comments
regarding
the
designations
process.
iii
TABLE
OF
CONTENTS
Introduction
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ii
Section
I
Response
to
Comments
Received
on
EPA's
December
16,
2003
Proposal
to
Defer
the
Effective
Date
of
Nonattainment
Designations
for
8­
hour
Ozone
NAAQS
for
Early
Action
Compact
(
EAC)
Areas
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1
I.
1
IMPACT
OF
EAC
PROGRAM
AND
DEFERRED
NONATTAINMENT
DESIGNATION
EFFECTIVE
DATE
ON
MANDATORY
PROGRAMS
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1
Concerns
About
Maintenance
of
the
8­
hour
Ozone
NAAQS
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1
Maintenance
in
EAC
Areas
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1
EAC
Areas
That
Are
1­
Hour
Maintenance
Areas
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2
I.
2
FUELS
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3
Use
of
Fuel
as
a
Primary
Local
Control
Measure
Is
Contrary
to
Statutory
Intent
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4
Congress
Intended
Broad
Federal
Preemption
of
State
Fuel
Controls
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5
Opt­
in
to
the
Reformulated
Gasoline
Program
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7
Fuel
Controls
under
Section
211(
c)(
4)(
C)
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8
Supply
and
Distribution
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10
Timing
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11
General
Fuel­
Related
Comments
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11
I.
3
REDESIGNATION
TO
NONATTAINMENT
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15
I.
4
COMPACT
PROCESS
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15
Support
For
Early
Action
Compacts
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15
Opposition
to
Compacts
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16
Timing
of
Original
Compact
Agreements
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16
Other
EAC
Process
Comments
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19
I.
5
IMPACTS
OF
EAC
PROGRAM
AND
DEFERRED
NONATTAINMENT
DESIGNATION
EFFECTIVE
DATE
ON
AIR
QUALITY
PLANNING
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23
Need
for
Quantitative
Analysis
of
the
Impacts
of
EACs
on
Growth
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23
Need
for
Subpart
2
Analysis
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24
Transport­
Related
Comments
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24
Contingency
Measures
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24
I.
6
DESIGNATIONS
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25
General
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25
Comments
on
Designations
for
Specific
Areas
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27
I.
7
PROCESS
CONCERNS
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27
iv
Federal
Enforceability
of
Compact
Commitments
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27
Determination
of
Significance
of
Regulatory
Action
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28
I.
8
COMMENTS
ON
TRADING
PROGRAMS
FOR
EAC
AREAS
.
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28
I.
9
APPLICATION
OF
EAC
PROCESS
TO
OTHER
NAAQS
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29
Section
II
Response
to
Comments
Received
on
the
Early
Action
Compacts
Section
VIII.
A
of
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard
(
68
FR
32802,
June
2,
2003)
.
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.
30
II.
1
COMMENTS
RELATED
TO
THE
PROPOSED
8­
HOUR
OZONE
CLASSIFICATION
OPTIONS
.
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30
II.
2
CONCERNS
ABOUT
THE
REVOCATION
OF
THE
1­
HOUR
OZONE
STANDARD
.
32
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
1
Section
I
Response
to
Comments
Received
on
EPA's
December
16,
2003
Proposal
to
Defer
the
Effective
Date
of
Nonattainment
Designations
for
8­
hour
Ozone
NAAQS
for
Early
Action
Compact
(
EAC)
Areas
I.
1
IMPACT
OF
EAC
PROGRAM
AND
DEFERRED
NONATTAINMENT
DESIGNATION
EFFECTIVE
DATE
ON
MANDATORY
PROGRAMS
Commenters:
American
Lung
Association
(
ALA),
OAR
2003­
0090­
0106;
Southern
Environmental
Law
Center
(
SELC),
OAR
2003­
0090­
0085
and
OAR
2003­
0090­
0104
Comment:
A
number
of
commenters
expressed
concern
that
the
EAC
process
will
result
in
delays
in
mandatory
programs
such
as
new
source
review,
transportation
conformity,
and
maintenance
requirements.
One
commenter
stated
that
the
5­
year
time
frame
for
the
maintenance
for
growth
plan
specified
in
the
protocol
is
insufficient
especially
in
light
of
VMT
growth
projections,
and
that
the
CAA
required
areas
redesignated
from
nonattainment
to
attainment
have
an
EPA­
approved
maintenance
plan.
This
plan
should
be
sufficient
to
correct
any
violation
of
the
standard,
demonstrating
that
the
standard
can
be
maintained
into
the
future
for
up
to
20
years.
The
same
commenter
states
that
with
local
governments
taking
experimental
steps
that
have
not
been
proven
successful
 
unlike
those
contained
within
the
Act
itself
 
monitoring
for
the
long
run
becomes
even
more
important.

Response:
Comments
regarding
mandatory
programs
are
addressed
in
Section
IX­
F
of
the
preamble
to
the
final
rule,
which
was
signed
April
15,
2004.

Concerns
About
Maintenance
of
the
8­
hour
Ozone
NAAQS
Maintenance
in
EAC
Areas.
Unlike
some
subpart
1
and
subpart
2
marginal
nonattainment
areas,
which
will
not
be
required
to
submit
an
attainment
demonstration
(
see
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
NAAQS,
68
FR
32802),
all
EAC
areas
are
required
to
submit
an
attainment
demonstration
showing
that
the
area
will
attain
the
ozone
8­
hour
standard
by
December
31,
2007.
As
is
the
case
with
all
modeled
attainment
demonstrations,
growth
parameters,
including
VMT,
will
be
a
part
of
the
demonstration.
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
2
The
EPA
will
evaluate
those
demonstrations
to
determine
whether
Compact
areas
can
indeed,
attain
the
8­
hour
standard
by
December
31,
2007.
The
nonattainment
deferral
will
be
lifted
for
any
Compact
area
that
cannot
demonstrate
attainment
by
this
date.
All
measures
included
in
the
attainment
demonstration
must
be
contained
in
the
SIP
and
as
such,
will
be
federally
enforceable.
Subsequent
revisions
to
remove
any
measure
from
a
SIP
are
subject
to
the
protective
intent
of
section
110(
l).
Under
this
section,
an
area,
including
a
Compact
area,
cannot
relax
a
SIP
until
it
has
demonstrated
that
doing
so
will
not
interfere
with
attainment
or
maintenance
of
any
NAAQS.

Given
that
Compact
areas
must:
1)
complete
a
modeled
attainment
demonstration,
2)
the
Compact
measures
that
are
part
of
the
attainment
demonstration
must
be
contained
in
the
federally­
enforceable
SIP;
and
those
measures,
like
all
SIP
measures,
are
3)
subject
to
the
stringency
of
section
110(
l),
we
believe
that
requiring
Compact
areas
to
address
emissions
growth
for
at
least
5
years
beyond
December
31,
2007,
will
ensure
that
these
areas
do
not
fall
back
into
nonattainment.

EAC
Areas
That
Are
1­
Hour
Maintenance
Areas.
EAC
areas
that
are
maintenance
for
the
1­
hour
standard
will
still
be
subject
to
their
1­
hour
maintenance
plan,
including­­
wherever
applicable
 
the
requirement
to
submit
a
second
10­
year
maintenance
plan
until
the
time
that
the
1­
hour
ozone
standard
is
revoked
for
that
area
(
one
year
after
the
effective
date
of
designation
for
the
8­
hour
standard).

In
addition,
the
EPA
has
proposed
in
the
8­
hour
implementation
rule
(
June
2,
2004,
68
FR
32802)
that
all
areas,
including
EAC
areas,
that
were
redesignated
to
attainment
for
the
1­
hour
standard
and
that
had
maintenance
plans
under
§
175A
of
the
CAA,
be
required
to
submit
a
maintenance
plan
under
§
110(
a)(
1)
of
the
CAA
for
the
8­
hour
standard
within
3
years
after
the
effective
date
of
initial
designation
to
attainment
for
the
8­
hour
standard.
This
maintenance
plan
would
have
to
demonstrate
continued
maintenance
of
the
8­
hour
standard
for
10
years
following
the
effective
date
of
the
8­
hour
designation
to
attainment.

To
illustrate,
for
an
EAC
area
that
meets
all
of
its
milestones
and
whose
deferral
is
lifted
in
2008,
the
8­
hour
attainment
designation
would
become
effective
in
2008,
and
the
1­
hour
standard
would
be
revoked
one
year
later
or,
2009.
Until
that
time,
the
area
would
be
subject
to
the
maintenance
plan
under
§
175A
and
transportation
conformity
under
the
1­
hour
standard.
A
§
110(
a)(
1)
maintenance
plan
would
be
due
no
later
than
2011
or,
3
years
after
the
effective
date
of
initial
designation
to
attainment
for
the
8­
hour
standard.

Comment:
One
commenter
raised
concerns
specifically
about
the
EAC
areas
in
EPA
Region
IV
states
(
NC,
SC,
MS,
TN,
GA).
They
believe
that
these
EACs
do
not
provide
sufficient
measures
to
address
growth
in
transportation
emissions,
particularly
in
urban
areas
where
transportation
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
3
emissions
comprise
a
significant
portion
of
total
emissions
that
contribute
to
ozone
violations.
Further,
they
state
that
deferral
of
the
8­
hour
designation
to
nonattainment
hinders
adoption
of
additional
strategies
since
these
areas
will
not
be
eligible
for
CMAQ
funding.
This
commenter
was
also
concerned
that
EAC
areas
will
fail
to
ensure
maintenance
of
the
8­
hour
standard.
(
Southern
Environmental
Law
Center
(
SELC),
OAR
2003­
0090­
0085
and
OAR
2003­
0090­
0104)

Response:
The
EPA
addresses
comments
regarding
CMAQ
eligibility
in
Section
IX­
F
of
the
preamble
for
the
proposed
rule,
which
was
signed
April
15,
2004.
The
EPA's
response
to
comments
above
(
American
Lung
Association
(
ALA),
OAR
2003­
0090­
0106;
Southern
Environmental
Law
Center
(
SELC),
OAR
2003­
0090­
0085,
and
OAR
2003­
0090­
0104)
addresses
maintenance
in
EAC
areas.

The
EAC
incentive­
based
program
encourages
local
communities
to
develop
their
own
program
of
air
pollution
control
that
leads
to
early
reductions
of
VOC
and
NOx
emissions
sooner
than
would
otherwise
be
required
in
exchange
for
a
deferral
of
the
effective
date
of
nonattainment
designation
and
the
statutory
obligations
associated
with
that
designation.
Many
of
the
measures
contained
in
the
June
16,
2003
milestone
submittal
from
Region
IV
EAC
areas
targeted
mobile
source
emissions.
For
example,
several
of
the
Region
IV
EAC
areas
are
proposing
to
implement
truck
stop
electrification
along
I­
85.
Truck
stop
electrification
uses
state­
of­
the­
art
technology
to
not
only
reduce
NOx
emissions
at
truck
stops,
but
to
also
increase
energy
efficiency.
The
local
plan
for
the
Triad
EAC
area
(
Greensboro­
Winston­
Salem­
High
Point)
specifies
converting
all
on
and
off
road
city
vehicles
to
biodiesel,
and
diesel
retrofits
on
Guilford
County
school
buses,
as
well
as
a
no
idling
policy
for
school
buses
in
the
county.

I.
2
FUELS
Commenter:
American
Petroleum
Institute
(
API)
OAR
2003­
0090­
0107,
OAR
2003­
0090­
0108,
OAR
2003­
0090­
0109,
and
OAR
2003­
0090­
0110
Comment:
Lack
of
State
authority
to
adopt
fuel
control
measures
in
EAC
areas.

The
commenter's
main
points
were:


Congress
intended
fuel
controls
be
used
as
a
last
resort.
EPA
must
require
EAC
areas
to
meet
section
211(
c)(
4)(
C)
of
the
CAA,
which
requires
a
full
and
robust
demonstration
of
necessity
to
implement
fuel
control
measures
such
as
RFG
and
cetane
programs.
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
4

EPA
must
clarify
that
all
areas
designated
under
Subpart
1,
and
compact
areas,
even
if
designated
nonattainment
and
classified
as
marginal
or
above
under
Subpart
2,
would
not
have
authority
to
opt
into
the
RFG
program.


Aside
from
the
legal
issues,
diesel
cetane
programs
are
difficult
to
implement,
costly,
and
could
lead
to
unintended
disruptions
of
the
refining
and
distribution
system.

The
commenter
expressed
support
of
EPA's
policy
of
encouraging
compact
areas
to
plan
and
act
early
to
improve
air
quality.
However,
the
commenter
expressed
concern
that
control
measures
allowed
in
compact
areas
must
comport
with
other
provisions
in
the
CAA.
The
commenter
believes
that
the
EAC
protocol
should
not
be
used
as
a
means
to
circumvent
the
intent
of
Congress.
Given
Congress's
intent
that
fuel
controls
be
used
as
a
last
resort,
the
commenter
remarked
that
EAC
areas
should
look
first
to
reasonable
and
practicable
non­
fuel
measures
for
reducing
ozone.
The
commenter
recommended
that
EPA
clarify
that
all
areas
designated
under
Subpart
1,
and
EAC
areas,
even
if
designated
nonattainment
and
classified
as
marginal
or
above
under
Subpart
2,
not
have
authority
to
opt­
in
to
the
RFG
program.

The
commenter
attached
three
previously
submitted
comments
for
the
rulemaking
record:

Docket
#
OAR
2003­
0090­
0108
­
Letter
from
Edward
H.
Murphy,
API,
dated
July
15,
2002,
to
David
Korotney,
US
EPA,
Ann
Arbor,
Michigan,
EPA
Draft
Technical
Report,
The
Effect
of
Cetane
Number
Increase
Due
to
Additives
on
NO
x
Emissions
from
Heavy­
Duty
Highway
Engines.

Docket
#
OAR
2003­
0090­
0109,
Letter
from
Edward
H.
Murphy,
API,
dated
September
26,
2000,
to
Leah
Weiss,
Ozone
Transport
Commission,
Washington,
DC,
API
Comments
on
OTC
Diesel
Cetane
Model
Rule.

Docket
#
OAR
2003­
0090­
0110,
API,
Advice
to
States
on
Selecting
Fuel
Controls
for
Addressing
Air
Quality
Concerns
(
no
date).

Use
of
Fuel
as
a
Primary
Local
Control
Measure
Is
Contrary
to
Statutory
Intent.

Comment:
The
commenter
is
concerned
with
EAC
areas'
plans
to
use
fuel
control
measures
as
a
first
step
in
reducing
ambient
ozone
concentrations.
This
is
contradictory
to
Congress's
intent
that
fuel
controls
be
used
as
a
last
resort.
The
EAC
protocol
must
comport
with
other
requirements
under
the
CAA.
It
appears
that
some
EAC
areas
are
considering
opting
into
the
reformulated
gasoline
(
RFG)
program
or
adopting
a
state
fuel
and
receiving
EPA
approval
of
that
fuel
into
a
SIP
under
section
211(
c)(
4)(
C)
of
the
CAA.
However,
under
EPA's
December
16,
2003,
proposal,
EAC
areas
would
not
have
authority
to
opt
into
RFG.
In
addition,
it
is
unlikely
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
1
See,
for
example,
Regulation
of
Fuels
and
Fuel
Additives:
Standards
for
Reformulated
and
Conventional
Gasoline,
59
FR
7714,
7809
(
February
16,
1994);
Control
of
Emissions
of
Hazardous
Air
Pollutants
From
Mobile
Source,
66
FR
17230,
17248
(
March
29,
2001
);
Tier
2
Motor
Vehicle
Emissions
Standards
and
Gasoline
Sulfur
Control
Requirements,
65
FR
6698,
6765
(
February
10,
2000).

5
that
a
compact
area
would
be
able
to
make
the
required
demonstration
for
EPA
approval
under
211(
c)(
4)(
C)
of
the
Act.

Response:
Section
211(
c)(
4)(
A)
of
the
Clean
Air
Act
prohibits
states
(
and
political
subdivisions
of
states)
from
prescribing
or
attempting
to
enforce,
for
purposes
of
motor
vehicle
emission
control,
"
any
control
or
prohibition
respecting
any
characteristic
or
component
of
a
fuel
or
fuel
additive
in
a
motor
vehicle
or
motor
vehicle
engine,"
if
EPA
has
prescribed,
"
a
control
or
prohibition
applicable
to
such
characteristic
or
component
of
the
fuel
or
fuel
additive1"
under
section
211(
c)(
1).
This
prohibition
applies
to
all
states
except
California.
Section
211(
c)(
4)(
B).
For
states
other
than
California,
the
Act
provides
two
mechanisms
for
avoiding
preemption.
First,
if
the
state
prohibitions
or
controls
are
identical
to
the
prohibition
or
control
adopted
by
EPA.
Section
211(
c)(
4)(
A)(
ii).
Second,
states
may
seek
EPA
approval
of
SIP
revisions
containing
fuel
control
measures,
as
described
in
section
211(
c)(
4)(
C).
EPA
may
approve
such
SIP
revisions,
and
thereby
"
waive"
preemption,
only
if
it
finds
the
state
control
or
prohibition
"
is
necessary
to
achieve
the
national
primary
or
secondary
ambient
air
quality
standard
which
the
plan
implements."
Additionally,
Congress
has
directed
EPA
to
consider
if
the
state
that
is
adopting
a
fuel
control
measure
has
other
reasonable
and
practicable
measures
available
to
achieve
the
NAAQS.

Thus,
where
a
state
control
or
prohibition
is
preempted,
a
state
may
only
adopt
non­
identical
fuel
control
measures
upon
a
showing
of
necessity
under
section
211(
c)(
4)(
C).

Congress
Intended
Broad
Federal
Preemption
of
State
Fuel
Controls
Comment:
According
to
the
commenter,
the
national
scope
of
fuel
production
and
distribution
suggests
that
federal
rules
should
preempt
state
action
to
avoid
an
inefficient
patchwork
of
potentially
conflicting
regulations,
which
would
impede
timely,
reliable
and
efficient
distribution
and
delivery
of
needed
fuels
to
the
consuming
public.
Congress
intended
that
state
fuel
controls
be
allowed
only
as
a
last
resort.
This
is
apparent
by
the
requirements
provided
in
Section
211
(
c)(
4)(
C)
of
the
Act.
For
RFG,
Congress
explicitly
stated
which
nonattainment
areas
could
opt
into
RFG.

Response:
Congress
has
provided
that
federal
fuels
regulations
preempt
certain
non­
identical
state
controls
subject
to
certain
express
exclusions
or
circumstances,
under
Section
211(
c)(
4).
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
6
Pertinent
legislative
history
on
the
1970
Clean
Air
Act
indicates
that
"
states
and
localities
are
preempted
from
presenting
or
enforcing
controls
or
prohibitions
not
identical
to
those
of
the
Federal
government,
unless
an
approved
State
implementation
plan
under
section
110
provides
for
fuel
or
additive
control
in
order
to
attain
the
national
ambient
air
quality
standards.
California,
however,
is
free
to
have
any
regulation
of
fuels
or
additive
it
finds
necessary."
[
1970
LH
at
135;
Summary
of
Conference
Agreement
Provisions
on
1970
CAA
Amendments].

In
the
1990
CAA
Amendments,
Congress
changed
the
language
of
section
211(
c)(
4)(
A)
from
"
any
control
or
prohibition
respecting
use
of
a
fuel
or
fuel
additive"
to
"
any
control
or
prohibition
respecting
any
characteristic
or
component
of
a
fuel
or
fuel
additive."
The
Chafee­
Baucus
Statement
of
the
Senate
Managers
explained
that
this
change
"
clarifies
that
section
211(
c)(
4)
of
the
Clean
Air
Act
applies
only
to
non­
identical
State
regulations
governing
the
same
characteristic
or
component
of
the
fuel
or
fuel
additive
already
regulated
by
EPA.
EPA
is
also
allowed
to
approve
non­
identical
State
regulations
that
are
necessary
to
achieve
an
ambient
standard."
[
1990
LH
at
892;
Chafee­
Baucus
Statement
of
Senate
Managers,
S.
1630,
The
Clean
Air
Act
Amendments
of
1990].

Thus,
under
section
211(
c)(
4)(
c),
states
are
allowed
to
adopt
and
EPA
can
approve
otherwise
preempted
fuel
controls
that
are
necessary
to
achieve
the
applicable
NAAQS.
Additionally,
EPA
believes
that
questions
regarding
preemption
of
specific
state
fuel
controls
and
determination
should
be
addressed
in
the
context
of
a
specific
SIP
rulemaking.

With
regard
to
the
concerns
expressed
on
the
proliferation
of
fuels
and
likelihood
of
fuel
supply
disruptions,
EPA
has
and
continues
to
recognize
these
concerns.
"
The
national
scope
of
gasoline
production
and
distribution
suggests
that
federal
rules
should
preempt
State
action
to
avoid
an
inefficient
patchwork
of
potentially
conflicting
regulations."
Regulation
of
Fuels
and
Fuel
Additives:
Standards
for
Reformulated
and
Conventional
Gasoline,
59
FR
7714,
7809
(
February
16,
1994).

Further,
in
the
Mobile
Sources
Air
Toxics
Rule,
EPA
recognized
the
concerns
expressed
by
the
petroleum
industry
that
a
patchwork
of
different
state
fuel
standards,
sometimes
referred
to
as
"
boutique"
fuels,
may
increase
the
likelihood
of
disruptions
in
the
fuel
supply.
In
most
situations,
EPA
believes
that
a
uniform
national
program
is
the
best
way
to
protect
public
health
and
minimize
disruption
to
the
efficiency
of
the
country's
fuel
distribution
network.
EPA's
general
expectation
is
that
States
will
consider
these
issues
in
evaluating
whether
adoption
of
a
state
fuel
program
would
be
warranted.
Control
of
Emissions
of
Hazardous
Air
Pollutants
From
Mobile
Source,
66
FR
17230,
17248
(
March
29,
2001
).
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
7
See
also
Approval
of
Low
Emission
Diesel
Fuel
for
Texas,
66
FR
57196,
57205
(
November
14,
2001).

Opt­
in
to
the
Reformulated
Gasoline
Program
Comment:
Citing
Section
211(
k)(
6)
of
the
Act,
API
stated
that
all
areas
designated
nonattainment
under
Subpart
1,
including
both
compact
areas
and
non­
compact
areas,
would
not
have
authority
to
opt
in
to
the
RFG
program.
API
asserts
that
only
areas
designated
under
subpart
2
have
such
authority.

Response:
In
today's
rule
all
areas
designated
nonattainment
for
the
8­
hour
standard
and
with
a
1­
hour
design
value
lower
than
0.121
ppm
(
the
lowest
value
specified
in
Table
1
in
subpart
2)
will
be
subject
to
the
planning
provisions
of
subpart
1.
Their
nonattainment
classification
will
be
"
areas
affected
by
overwhelming
transport."
Because
none
of
the
areas
designated
under
subpart
1
will
be
classified
as
a
marginal,
moderate,
serious,
or
severe
ozone
nonattainment
area,
EPA's
current
rules
will
not
allow
these
areas
to
opt
in
to
the
RFG
program.
See
40
C.
F.
R.
80.70.
For
the
same
reason,
areas
classified
under
subpart
2
as
other
than
marginal,
moderate,
serious
or
severe
also
may
not
opt
into
the
RFG
program
based
on
their
8­
hour
designation.
Regardless
of
8­
hour
classifications,
however,
until
the
1­
hour
classifications
are
withdrawn
all
areas
classified
under
subpart
2
for
the
1­
hour
standard
as
marginal,
moderate,
serious
or
severe
may
opt
into
the
RFG
program
based
on
their
1­
hour
classifications.

Comment:
API
states
that
for
areas
designated
nonattainment
under
subpart
2,
the
deferral
of
the
effective
date
of
such
designation
for
EACs
means
that
such
areas
would
not
be
eligible
to
opt
in
to
the
RFG
program.

Response:
Under
Section
211(
k)(
6),
certain
areas
that
are
designated
as
nonattainment
for
the
ozone
NAAQS
may
opt
in
to
the
RFG
program.
During
the
time
period
that
the
effective
date
of
an
EAC's
designation
as
nonattainment
based
on
the
8­
hour
standard
is
deferred,
it
may
not
opt
in
to
the
RFG
program
based
on
that
deferred
8­
hour
designation.
However,
since
the
1­
hour
nonattainment
designations
remain
in
effect
during
the
8­
hour
designation
deferral
period,
the
EAC
areas
may
opt
in
to
the
RFG
program
during
the
8­
hour
designation
deferral
period
based
on
their
1­
hour
designations,
providing
they
otherwise
meet
the
requirements
of
Section
211(
k)(
6).
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
8
Fuel
Controls
under
Section
211(
c)(
4)(
C)

Comment:
Congress
intended
that
there
be
broad
federal
preemption
of
state
fuel
controls
and
that
state
fuel
controls
be
allowed
only
as
a
last
resort.
The
commenter
believes
that
EPA
should
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
9
clarify
to
compact
areas
that
they
will
be
required
to
make
a
full
and
robust
demonstration
under
section
211(
c)(
4)(
C)
in
order
to
implement
a
fuel
control
measure.

Section
211(
c)(
4)(
C)
provides
the
requirements
and
process
for
state
adoption
of
fuel
control
measures.
In
order
to
obtain
EPA
approval
for
a
fuel
control
for
inclusion
in
a
state
implementation
plan
(
SIP),
states
must
demonstrate
to
EPA
that
the
control
is
necessary
to
achieve
a
NAAQS
and
that
there
are
no
reasonable
and
practicable
non­
fuel
measures
available
that,
if
implemented,
would
bring
the
area
into
timely
attainment.
The
commenter
cautions
EPA
to
be
aware
that
the
absence
of
reasonable
and
practicable,
non­
fuel
measures
does
not
mean
that
a
fuel
control
measure
necessarily
is
reasonable,
practicable
or
if
implemented,
would
bring
the
area
into
attainment.
The
commenter
notes
that
this
remains
the
responsibility
of
the
state
to
demonstrate.

The
commenter
recommends
that
EPA
should
require
compact
areas
to
meet
section
211
(
c)(
4)(
C)
requirements,
with
no
allowances
provided.
Compact
areas
should
be
aware
of
these
requirements
as
they
make
their
plans.
The
December
16,
2003,
proposal
says
that
states
must
provide
"
SIP­
quality"
modeling.
Therefore,
states
must
first
consider
the
air
quality
need
that
is
to
be
addressed.
In
order
to
do
this
properly,
the
commenter
believes
that
air
quality
modeling
should
be
conducted
to
identify
the
most
effective
precursors
to
reduce
ambient
ozone
concentrations,
and
then
determine
what
emissions
sources
should
be
controlled
to
most
costeffectively
address
those
precursors.

The
commenter
recommends
that
States
should
identify
a
complete
list
of
available
stationary,
area,
and
mobile
source
controls
that
would
reduce
the
emissions
of
concern.
A
state
must
show
that,
even
if
it
implemented
all
other
reasonable
and
practicable
non­
fuel
measures,
the
additional
benefit
provided
by
the
proposed
fuel
control
is
necessary
to
achieve
a
NAAQS.
A
showing
that
the
fuel
control
measure
is
reasonable
and
practicable
and
will
provide
the
necessary
emission
reductions
for
attainment
demonstrations
is
still
the
responsibility
of
the
state.
The
commenter
believes
that
compact
areas
are
not
likely
to
have
implemented
any
control
measures,
so
there
should
be
numerous
reasonable
and
practicable
measures
available,
including
elements
required
of
existing
1­
hour
serious,
severe,
and
extreme
nonattainment
areas
as
well
as
those
CAA­
required
measures
being
deferred
for
compact
areas.
The
commenter
expressed
the
concern
that
it
would
be
unacceptable
to
allow
this
deferral
to
be
used
as
a
rationale
that
a
measure
is
not
reasonable
or
practicable.
Thus,
given
that
compact
areas
will
have
a
number
of
reasonable
and
practicable
non­
fuel
measures
available
to
them,
the
commenter
believes
it
is
unlikely
that
a
compact
area
will
be
able
to
make
the
required
demonstration.
The
commenter
remarked
that
Congress
did
not
intend
that
fuel
control
measures
be
the
first
measures
used
by
an
area
to
attain
the
NAAQS.
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
10
If,
however,
a
compact
area
could
make
the
required
necessity
demonstration
under
Section
211(
c)(
4)(
C),
the
commenter
adds
that
it
would
need
to
consider
a
number
of
things
in
selecting
an
appropriate
fuel
control
measure.
The
commenter
discusses
two
factors
particularly
applicable
in
compact
area
situations.
The
commenter
provided
additional
discussion
of
criteria
to
consider
when
selecting
fuel
controls
in
a
document
it
recently
prepared.
See
"
Advice
to
States
On
Selecting
Fuel
Controls
For
Addressing
Air
Quality
Concerns"
(
Docket
#
OAR­
2003­
0090­
0110).

Response:
As
earlier
stated,
section
211(
c)(
4)(
A)
prohibits
states
from
prescribing
or
attempting
to
enforce
nonidentical
fuel
measures
if
EPA
has
prescribed,
"
a
control
or
prohibition
applicable
to
such
characteristic
or
component
of
the
fuel
or
fuel
additive"
under
section
211(
c)(
1).
As
also
earlier
explained,
section
211(
c)(
4)(
C)
allows
EPA
to
approve
non
identical
state
fuel
controls
in
a
SIP
if
EPA
determines
that
the
fuel
controls
are
necessary
to
achieve
the
NAAQS
the
SIP
implements.
EPA
may
approve
the
measure
as
necessary
if
it
finds
that
no
other
measures
that
would
bring
about
timely
attainment
exist
or
that
such
measures
exist
but
are
unreasonable
and
impracticable.

Additionally,
EPA
has
provided
guidance
on
the
necessity
showing
that
a
state
must
make
in
order
to
meet
these
requirements.
See,
EPA's"
Guidance
on
Use
of
Opt­
in
to
RFG
and
Low
RVP
Requirements
in
Ozone
SIPs,"
(
August
1997).
For
example,
under
the
Guidance,
EPA
requires
states
to
provide
reasons
as
to
why
other
measures
are
unreasonable
or
impracticable
for
a
particular
area.
Such
reasons
include
the
length
of
time
needed
to
implement
the
measure;
the
length
of
time
to
achieve
ozone
reduction
benefits
and
the
degree
of
disruption
entailed
by
implementation.
In
sum,
"
the
Agency
believes
that
the
Act
does
not
call
for
a
comparison
between
state
fuels
measures
to
determine
which
measures
are
unreasonable
or
impracticable,
but
rather
section
211(
c)(
4)
is
intended
to
ensure
that
a
state
resorts
to
a
fuel
measure
only
if
there
are
no
available
practicable
and
reasonable
non­
fuels
measures."
63
FR
6657
(
February
10,
1998).

Thus,
a
state
seeking
to
implement
a
preempted
fuel
requirement
in
an
EAC
area,
must
submit
a
SIP
revision
and
must
include
the
specific
information
that
demonstrates
the
measure
is
necessary
to
achieve
needed
emissions
reductions,
as
provided
under
section
211(
c)(
4)(
C).

Supply
and
Distribution
Comment:
The
commenter
suggested
that
States
and
EPA
should
consider
the
regional
supply
and
distribution
system
for
an
area
when
considering
and
before
approving
any
fuel
control.
The
commenter
stressed
the
importance
of
neighboring
states
and
local
areas
communicating
and
coordinating
SIPs
with
one
another
regarding
potential
fuel
controls
in
order
to
avoid
adopting
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
11
fuel
provisions
that
create
a
small
island
of
demand
for
a
specialty
product
produced
by
few
suppliers.

Response:
The
Clean
Air
Act
allows
states
to
adopt
fuel
controls
under
certain
conditions.
It
is
the
EPA's
responsibility
to
ensure
that
those
conditions
are
met,
and
that
any
credits
being
claimed
in
a
SIP
are
appropriate.
Impacts
of
a
state­
run
fuel
control
program
on
the
regional
supply
and
distribution
system
are
generally
not
directly
related
to
the
conditions
for
Agency
approval
that
must
be
met
per
the
Clean
Air
Act,
but
they
are
relevant
considerations
for
the
feasibility
and
cost
of
a
state­
run
fuel
control
program.
States
are
encouraged
to
explore
these
issues
in
the
context
of
their
decision­
making
process
for
which
emission
control
strategies
to
implement.

Comment:
The
commenter
states
that
potential
additional
capital
costs
could
be
involved
in
providing
the
terminal
storage
and
blending
equipment
required
to
add
cetane
improver
at
the
terminal
level.
According
to
the
commenter,
the
practicality
of
a
terminal
cetane
improver
addition
is
an
open
question.
The
commenter
asserts
that
cetane
improver
must
be
carefully
managed
and
controlled,
and
adequate
safety
systems
must
be
in
place
to
prevent/
mitigate
releases
or
accidents.
The
cost
of
such
safety
systems,
the
commenter
states,
could
well
outweigh
the
cost
of
conventional
storage
and
additive
blending
equipment
at
the
terminal
level.
The
commenter
estimates
the
cost
for
storage,
blending
and
safety
systems
at
$
150,000
­
$
200,000
per
terminal.
As
a
result
of
these
terminal
costs,
the
commenter
concludes
that
refinery
additization
may
be
preferred.
However,
the
commenter
adds
that
refiners
who
supply
the
compact
areas
by
pipeline
must
then
find
ways
to
ship
a
segregated
diesel
product
to
a
specific
EAC.
Given
the
volumes
involved
and
the
limitations
on
pipeline
and
terminal
tankage,
such
a
segregation
may
be
infeasible,
according
to
the
commenter.

Response:
SIP
guidance
documents
generally
do
not
promote
specific
emission
reduction
strategies,
nor
do
they
provide
all
of
the
types
of
information
a
state
may
need
to
decide
which
strategies
are
appropriate.
Instead,
such
guidance
documents
lay
out
acceptable,
though
not
exclusive,
approaches
for
claiming
credit
in
a
SIP
for
certain
emission
control
strategies.
While
issues
such
as
cost,
feasibility,
and
fuel
distribution
logistics
may
be
relevant
in
the
context
of
a
state's
decision­
making
process
for
which
strategies
to
implement,
these
issues
are
not
typically
addressed
in
detail
for
a
SIP
guidance
document.

Timing
Comment:
The
commenter
noted
that
the
December
16,
2003
proposed
rule
requires
that
compact
areas
implement
control
measures
no
later
than
December
31,
2005.
This
rigid
deadline,
the
commenter
remarked,
could
create
problems
with
fuel
control
measures.
The
commenter
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
12
recommended
that
States
and
local
areas
incorporating
needed
fuel
control
measures
beyond
federal
requirements
should
set
implementation
dates
for
fuel
controls
based
on
realistic
estimates
of
producibility.
For
refineries
supplying
particular
regions
of
the
country
to
make
volumes
of
a
new
formulation,
the
commenter
added
significant
refinery
infrastructure
capital
improvements
may
be
necessary,
and
noted
that
it
generally
takes
about
four
years
for
refiners
to
plan
for
and
construct
major
refinery
upgrades.
The
commenter
stated
that
EPA
recognizes
the
need
for
four
years
of
lead
time
by
providing
four
years
in
its
fuel
regulations.
For
example,
the
Tier
2/
Low
Sulfur
Gasoline
regulation
was
finalized
in
February
2000
with
compliance
beginning
January
2004.
The
Highway
Diesel
Rule
(
ultra­
low
sulfur
diesel)
was
finalized
in
January
2001
with
compliance
to
begin
June
2006.
According
to
the
commenter,
time
lines
for
state
fuel
controls
that
fail
to
leave
adequate
lead
time
for
upgrades
will
likely
result
in
inadequate
supplies
upon
implementation
and
the
need
to
make
enforcement
discretion
and
other
distasteful
decisions
to
keep
a
local
market
supplied.
The
lead
time
needed
for
a
particular
fuel
is
a
critical
factor
when
evaluating
fuel
controls,
stated
the
commenter.

Response:
We
agree
that
lead
time
is
an
important
consideration
when
a
state
considers
implementing
a
fuel
control
measure.
States
are
encouraged
to
investigate
lead
time
issues
before
proposing
to
adopt
a
fuel
control
measure.

General
Fuel­
Related
Comments
Commenter:
U.
S.
Department
of
Energy
(
DOE)

Comment:
Interrelationship
of
the
8­
Hour
Ozone
Implementation
Program
with
Other
EPA
Rules
 
Alignment
of
Deadlines
and
Requirements.
DOE
commented
that
EPA
should
review
the
timetables
and
requirements
of
other
air
quality
and
fuels'
rulemakings
already
promulgated,
noticed,
or
in
preparation,
especially
the
Interstate
Air
Quality
Transport
rule
(
subsequently
changed
to
the
Interstate
Air
Quality
Rule
(
IAQR)),
to
ensure
that
there
are
no
conflicts
between
this
rulemaking
and
the
other
rules.
The
commenter
is
especially
concerned
about
the
timing
for
the
introduction
of
the
fuel
quality
rules
and
the
recently
noticed
IAQR.
It
seems
likely
that
one
widely
used
local
measure
will
be
some
form
of
reformulated
gasoline.
The
commenter
is
uncertain
what
impact
this
increased
demand
for
these
highly
refined
fuels
will
be
and
asks
that
EPA
initiate
a
study
of
the
impact
of
this
rulemaking
on
the
availability
and
cost
of
these
expanded­
use
fuels.

Response:
The
EPA
is
aware
that,
as
a
result
of
designations
under
the
8­
hour
ozone
standard,
more
areas
may
consider
fuels­
related
control
measures,
placing
a
higher
demand
on
fuel
suppliers.
While
today's
action
and
the
proposed
IAQR
rule
may
give
states
an
incentive
to
consider
local
fuel
control
measures,
certain
local
control
measures
are
preempted
by
the
Federal
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
2
See,
for
example,
Regulation
of
Fuels
and
Fuel
Additives:
Standards
for
Reformulated
and
Conventional
Gasoline,
59
FR
7714,
7809
(
February
16,
1994);
Control
of
Emissions
of
Hazardous
Air
Pollutants
From
Mobile
Source,
66
FR
17230,
17248
(
March
29,
2001
);
Tier
2
Motor
Vehicle
Emissions
Standards
and
Gasoline
Sulfur
Control
Requirements,
65
FR
6698,
6765
(
February
10,
2000).

13
fuels
programs
except
under
certain
circumstances
in
which
we
may
grant
a
waiver.
State
opt­
in
to
the
RFG
program
is
not
preempted
because
EPA
establishes
and
enforces
the
RFG
requirements
at
the
federal
level
and
the
Clean
Air
Act
provides
explicit
authority
for
states
to
opt­
in
to
the
federal
requirements
under
section
211(
k).
We
will
discuss
the
Federal
RFG
program
separately
below.

The
proposed
IAQR
of
December
17,
2003
would
indirectly
give
states
an
incentive
to
consider
local
fuel
control
measures.
The
IAQR
would
reduce
and
permanently
cap
emissions
of
sulfur
dioxide
(
SO2),
and
nitrogen
oxides
(
NOx)
from
electric
utilities
in
29
states
and
the
District
of
Columbia,
whose
power
plant
emissions
are
significantly
contributing
to
fine
particle
and
ozone
pollution
in
other
downwind
states
in
the
Eastern
U.
S.
Under
that
proposal,
states
could
meet
the
proposed
emissions
reductions
using
one
of
two
options
for
compliance:
1)
requiring
utilities
to
participate
in
an
interstate
cap
and
trade
system
that
caps
emissions,
or
2)
meeting
an
individual
state
emissions
budget
through
measures
of
the
state's
choosing.
We
recognize
that
this
second
option
could
give
states
an
incentive
to
consider
a
local
fuel
control
measure
­
either
federal
RFG
or
a
state
fuels
program
under
section
211(
c)
of
the
Clean
Air
Act
­
as
an
alternative
to
reducing
SO2
and
NOx
emissions
from
electric
utilities.

However,
section
211(
c)(
4)(
A)
of
the
Clean
Air
Act
prohibits
states
(
and
political
subdivisions
of
states)
from
prescribing
or
attempting
to
enforce,
for
purposes
of
motor
vehicle
emission
control,
"
any
control
or
prohibition
respecting
any
characteristic
or
component
of
a
fuel
or
fuel
additive
in
a
motor
vehicle
or
motor
vehicle
engine,"
if
EPA
has
prescribed,
"
a
control
or
prohibition
applicable
to
such
characteristic
or
component
of
the
fuel
or
fuel
additive2"
under
section
211(
c)(
1).
This
prohibition
applies
to
all
states
except
California.
Section
211(
c)(
4)(
B).
For
states
other
than
California,
the
Clean
Air
Act
provides
two
mechanisms
for
avoiding
preemption.
First,
if
the
state
prohibitions
or
controls
are
identical
to
the
prohibition
or
control
adopted
by
EPA.
Section
211(
c)(
4)(
A)(
ii).
Second,
states
may
seek
EPA
approval
of
SIP
revisions
containing
fuel
control
measures,
as
described
in
section
211(
c)(
4)(
C).
EPA
may
approve
such
SIP
revisions,
and
thereby
"
waive"
preemption,
only
if
it
finds
the
state
control
or
prohibition
"
is
necessary
to
achieve
the
national
primary
or
secondary
ambient
air
quality
standard
which
the
plan
implements."
Additionally,
Congress
has
directed
EPA
to
consider
if
the
state
that
is
adopting
a
fuel
control
measure
has
other
reasonable
and
practicable
measures
available
to
achieve
the
NAAQS.
Where
a
state
control
or
prohibition
is
preempted,
a
state
may
adopt
nonidentical
fuel
control
measures
only
upon
a
showing
of
necessity
under
section
211(
c)(
4)(
C).
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
3
Guidance
on
Use
of
Opt­
Into
RFG
and
Low
RVP
Requirements
in
Ozone
SIPs,
August
1997,
located
on
EPA
internet
site
at
http://
www.
epa.
gov/
otaq/
regs/
fuels/
rvpguide.
pdf
14
With
regard
to
the
concerns
about
the
proliferation
of
fuels
and
possibility
of
fuel
supply
disruptions,
EPA
has
and
continues
to
recognize
these
concerns.
"
The
national
scope
of
gasoline
production
and
distribution
suggests
that
federal
rules
should
preempt
State
action
to
avoid
an
inefficient
patchwork
of
potentially
conflicting
regulations."
Regulation
of
Fuels
and
Fuel
Additives:
Standards
for
Reformulated
and
Conventional
Gasoline,
59
FR
7714,
7809
(
February
16,
1994).
Further,
in
the
Mobile
Sources
Air
Toxics
Rule,

EPA
recognize[
d]
the
concerns
expressed
by
the
petroleum
industry
that
a
patchwork
of
different
state
fuel
standards,
sometimes
referred
to
as
"
boutique"
fuels,
may
increase
the
likelihood
of
disruptions
in
the
fuel
supply.
In
most
situations,
EPA
believes
that
a
uniform
national
program
is
the
best
way
to
protect
public
health
and
minimize
disruption
to
the
efficiency
of
the
country's
fuel
distribution
network.
EPA's
general
expectation
is
that
States
will
consider
these
issues
in
evaluating
whether
adoption
of
a
state
fuel
program
would
be
warranted.
Control
of
Emissions
of
Hazardous
Air
Pollutants
From
Mobile
Source,
66
FR
17230,
17248
(
March
29,
2001
).
See
also
Approval
of
Low
Emission
Diesel
Fuel
for
Texas,
66
FR
57196,
57205
(
November
14,
2001).

In
determining
the
need
of
the
local
area
for
the
fuel
measure,
including
the
availability
of
other
reasonable
and
practicable
measures
in
that
area
to
achieve
the
NAAQS,
we
attempt
to
balance
a
number
of
factors,
some
of
which
are
localized.
We
have
issued
guidance
explaining
what
states
need
to
consider
in
determining
whether
other
ozone
control
measures
are
unreasonable
or
impracticable3.
For
example,
the
guidance
explains
that
reasons
why
a
measure
might
be
unreasonable
or
impracticable
for
a
particular
area
include
"
length
of
time
to
implement
the
measure;
length
of
time
to
achieve
ozone
reduction
benefits;
degree
of
disruption
entailed
by
implementation;
other
implementation
concerns,
such
as
supply
issues;
costs
to
industry,
consumers
and/
or
the
state;
cost­
effectiveness;
or
reliance
on
commercially
unavailable
technology."
Guidance
at
p.
6.
Thus,
EPA
will
consider
cost
impacts
for
non­
fuel
measures
in
making
a
"
necessity"
finding
under
section
211(
c)(
4)(
C).
However,
section
110(
a)(
3)(
A)
places
an
additional
obligation
on
EPA
to
approve
SIP
revisions
that
meet
the
requirements
of
section
110(
a)(
2).
See,
Train
v.
Natural
Resources
Defense
Council,
Inc.,
421
U.
S.
60,
98
(
1975).
Therefore,
EPA
may
not
consider
the
economic
impact
of
a
necessary
SIP
revision
under
section
110(
a)(
2),
rather
under
that
provision,
it
is
for
the
state
to
determine
what
economic
costs
are
appropriate
to
achieve
the
NAAQS.
See,
Union
Electric
Co.,
v.
EPA,
427
U.
S.
246,
256­
258
(
1976).
Thus,
once
EPA
makes
the
finding
that
state
fuel
controls
are
necessary
to
achieve
the
standard,
EPA
may
not
reject
a
state's
SIP
proposal
simply
for
economic
reasons.
For
more
on
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
15
EPA's
economic
considerations
in
SIP
approvals
see,
54
FR
25572,
25576
(
Approval
of
the
state
of
New
Jersey
Ozone
SIP
revision).

Because
of
these
very
important
considerations,
EPA
considers
state
requests
on
a
case­
by­
case
basis,
rather
than
in
the
context
of
a
national
rule,
such
as
today's
action.
EPA
actions
on
state
requests
for
local
fuel
control
measures
are
proposed
in
the
Federal
Register
for
public
notice
and
comment.
Thus,
the
public
and
stakeholders
in
the
local
areas
and
nationwide
have
opportunities
to
comment
on
the
"
necessity"
finding
for
the
proposed
local
fuel
control
measure
prior
to
a
final
decision
by
EPA.
We
also
note
that
industry
and
the
public
are
provided
with
notice
and
opportunity
to
comment
when
individual
states
engage
in
rulemaking
actions
and
thus,
are
not
precluded
from
raising
fuel
costs
and
supply
concerns.

In
summary,
Congress
specifically
provided
an
exception
to
preemption
for
state
fuel
measures
that
are
necessary
for
achievement
of
a
NAAQS.
Where
a
state
control
or
prohibition
is
preempted,
a
state
may
adopt
nonidentical
fuel
control
measures
only
upon
a
showing
of
necessity
under
section
211(
c)(
4)(
C).
Therefore,
any
expansion
of
local
fuel
requirements
under
today's
action
or
the
proposed
IAQR
will
be
limited
to
those
areas
that
need
the
local
fuel
control
measure
to
meet
a
NAAQS
and
can
make
the
prerequisite
showing
of
necessity.
The
Agency
will
make
decisions
in
any
particular
case
by
applying
the
law
and
applicable
regulations
and
guidelines
to
the
specific
facts
at
issue.

Unlike
local
fuel
control
measures
that
must
be
incorporated
into
SIPs
under
section
211(
c)(
4)(
c),
reformulated
gasoline
(
RFG)
is
mandated
under
211(
k)(
10)(
D)
for
the
nine
worst
ozone
areas
with
population
over
250,000
(
at
the
time
of
the
1990
Clean
Air
Act
amendments).
In
addition,
areas
subsequently
reclassified
as
severe
ozone
nonattainment
are,
by
operation
of
law,
RFG
covered
areas
one
year
after
the
effective
date
of
the
reclassification.
Under
today's
action
for
the
8­
hour
ozone
standard,
no
area
will
fall
under
the
severe
ozone
nonattainment
classification
that
is
not
already
an
RFG
covered
area
under
the
1­
hour
standard.
Thus,
today's
action
will
not
create
any
additional
mandatory
RFG
covered
areas.

There
may
be
an
incentive
for
other
areas
to
consider
opting
into
the
RFG
program
to
achieve
additional
emission
reductions.
States
requesting
RFG
opt­
in
under
section
211(
k)(
6)
do
not
have
to
make
a
showing
of
necessity
under
211(
c)(
4)(
C),
but
EPA's
rules
limit
opt­
in
to
only
those
areas
classified
as
marginal,
moderate,
serious
or
severe.
Under
today's
rule,
areas
designated
nonattainment
for
the
8­
hour
standard
and
with
a
1­
hour
design
value
lower
than
0.121
ppm
(
the
lowest
value
specified
in
Table
1
in
subpart
2)
will
be
subject
to
the
planning
provisions
of
subpart
1.
Their
nonattainment
classification
will
be
"
areas
affected
by
overwhelming
transport."
Because
none
of
the
areas
designated
under
subpart
1
will
be
classified
as
a
marginal,
moderate,
serious,
or
severe
ozone
nonattainment
area,
these
areas
may
not
opt
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
16
into
the
RFG
program
based
on
their
8­
hour
designation.
For
the
same
reason,
areas
classified
under
subpart
2
as
other
than
marginal,
moderate,
serious
or
severe
also
may
not
opt
into
the
RFG
program
based
on
their
8­
hour
designation.
Further,
during
the
time
period
that
the
effective
date
of
an
EAC's
designation
as
nonattainment
based
on
the
8­
hour
standard
is
deferred,
it
may
not
opt
into
the
RFG
program
based
on
that
deferred
8­
hour
designation.
However,
until
the
1­
hour
classifications
are
withdrawn
and
regardless
of
the
8­
hour
classifications,
all
areas
classified
under
subpart
2
for
the
1­
hour
standard
as
marginal,
moderate,
serious
or
severe
may
opt
into
the
RFG
program
based
on
their
1­
hour
classifications.

For
the
areas
that
qualify
for
RFG
opt­
in
under
today's
action
based
on
their
1­
hour
or
8­
hour
designations,
section
211(
k)(
6)
does
not
grant
EPA
authority
to
deny
a
State's
request
for
RFG
opt­
in,
as
long
as
it
meets
the
criteria
of
section
211(
k)(
6).
Consequently,
an
EPA
study
of
the
impact
of
today's
rule
on
the
availability
and
cost
of
the
additional
use
of
RFG
under
the
8­
hour
standard,
as
DOE
has
suggested,
would
have
no
bearing
on
today's
action.
RFG
covered
area
opt­
in
is
determined
by
section
211(
k)(
6)
­
not
EPA
regulations.

I.
3
REDESIGNATION
TO
NONATTAINMENT
Commenters:
Texas
Commission
on
Environmental
Quality
(
TCEQ),
OAR­
2003­
0090­
0099;
New
York
State
Dept
of
Environmental
Conservation
(
DEC),
OAR­
2003­
0090­
0092;
Northeast
States
for
Coordinated
Air
Use
Management
(
NESCAUM),
OAR­
2003­
0090­
0097;
American
Lung
Association
(
ALA),
Clean
Air
Task
Force,
Environmental
Defense,
Natural
Resources
Defense
Council,
Sierra
Club,
and
U.
S.
Public
Interest
Research
Group,
OAR­
2003­
0090­
0106.

EPA
Response:
This
comment
is
addressed
in
Section
IX­
F
of
the
preamble
to
the
final
rule,
which
was
signed
April
15,
2004.

I.
4
COMPACT
PROCESS
Support
For
Early
Action
Compacts
Commenters:
Richland
County
Government,
OAR­
2003­
0090­
0081;
Virginia
Dept.
of
Transportation
(
VA
DOT),
OAR­
2003­
0090­
0083;
International
Paper,
OAR­
2003­
0090­
0084;
Greater
Winston­
Salem
Chamber
of
Commerce,
OAR­
2003­
0090­
0086
and
OAR­
2003­
0090­
0100;
RJ
Reynolds
Tobacco
Co.,
OAR­
2003­
0090­
0087;
Triad
Early
Action
Compact,
OAR­
2003­
0090­
0095;
South
Carolina
Chamber
of
Commerce,
OAR­
2003­
0090­
0088
and
OAR­
2003­
0090­
0103;
Virginia
Dept.
of
Environmental
Quality,
OAR­
2003­
0090­
0089;
Georgia
Dept.
of
Natural
Resources,
OAR­
2003­
0090­
0091;
Northern
Shenandoah
Valley
EAC,
OAR­
2003­
0090­
0093;
Upstate
Air
Quality
Steering
Committee,
OAR­
2003­
0090­
0094;
Mitsubishi
Polyester
Film,
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
17
OAR­
2003­
0090­
0096;
BMW
Manufacturing
Co.,
OAR­
2003­
0090;
Michelin
North
America,
OAR­
2003­
0083­
1389;
Chemical
Lime,
OAR­
2003­
0090­
0098;
TXI
Hunter
Cement,
OAR­
2003­
0090­
0115;
Roanoake
Valley
Area
MPO,
OAR­
2003­
0090­
0101;
State
of
Missouri
Dept.
of
Natural
Resources,
OAR­
2003­
0090­
0102;
South
Carolina
Dept.
of
Health
and
Environmental
Control,
OAR­
2003­
0090­
0105;
American
Petroleum
Institute
(
API),
OAR­
2003­
0090­
0107;
North
Carolina
Dept.
of
Environmental
and
Natural
Resources,
OAR­
2003­
0090­
0112.

Comment:
Many
commenters
expressed
support
for
the
compact
process,
the
goal
of
clean
air
sooner,
the
incentives
and
flexibility
the
program
provides
for
encouraging
early
reductions
of
ozone­
forming
pollution,
and
the
deferred
effective
date
of
nonattainment
designation.

Response:
We
continue
to
believe
that
the
compact
program
gives
local
areas
the
flexibility
to
develop
their
own
approach
to
meeting
the
8­
hour
ozone
standard,
provided
the
participating
communities
control
emissions
from
local
sources
earlier
than
the
CAA
would
otherwise
require.
By
involving
diverse
stakeholders,
including
representatives
from
industry,
local
and
State
governments,
and
local
environmental
and
citizens
groups,
a
number
of
communities
are
discussing
the
need
for
regional
cooperation
in
solving
environmental
problems
that
affect
the
health
and
welfare
of
its
citizens.
People
living
in
these
areas
that
realize
reductions
in
pollution
levels
sooner
will
enjoy
the
health
benefits
of
cleaner
air
sooner
than
might
otherwise
occur.

Opposition
to
Compacts
These
comments
are
addressed
in
the
preamble
to
the
April
15,
2004
final
rule.

Timing
of
Original
Compact
Agreements
Commenters:
New
York
State
Department
of
Environmental
Conservation
(
DEC),
OAR­
2003­
0090­
0092;
State
of
Missouri
Department
of
Natural
Resources,
OAR­
2003­
0090­
0102;
Kentucky
Transportation
Cabinet,
OAR­
2003­
0079­
0331;
State
of
New
York
Department
of
Transportation,
OAR­
2003­
0079­
0227;
Georgia
Department
of
Transportation,
OAR­
2003­
0079­
0298;
City
of
Kansas
City,
OAR­
2003­
0079­
0359
Comment:
A
number
of
commenters
expressed
concern
that
EPA
did
not
provide
sufficient
time
for
States
and
local
areas
to
prepare
their
initial
submission
due
December
31,
2002,
for
participating
in
the
compact
program
(
New
York
State
Department
of
Environmental
Conservation
(
DEC),
OAR­
2003­
0090­
0092;
State
of
Missouri
Department
of
Natural
Resources,
OAR­
2003­
0090­
0102;
Kentucky
Transportation
Cabinet,
OAR­
2003­
0079­
0331;
State
of
New
York
Department
of
Transportation,
OAR­
2003­
0079­
0227;
Georgia
Department
of
Transportation,
OAR­
2003­
0079­
0298;
City
of
Kansas
City,
OAR­
2003­
0079­
0359).
The
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
18
commenters
recommended
that
the
deadline
for
compact
submittal
should
have
been
extended
beyond
this
deadline;
other
commenters
believe
that
EPA
should
provide
an
additional
opportunity
for
other
areas
of
the
country
to
establish
compacts.
One
of
the
commenters
remarked
that
"...
While
some
states
were
able
to
meet
this
time
frame,
it
should
be
noted
that
most
EAC
(
compact)
participants
were
involved
in
an
ad
hoc
EPA/
STAPPA­
ALAPCO
`
Group
of
Eight'
which
met
to
discuss
EPA
SIP
implementation
issues
related
to
the
ozone
and
PM
NAAQS."
(
New
York
State
Department
of
Environmental
Conservation
(
DEC),
OAR­
2003­
0090­
0092)
According
to
the
commenter,
these
compact
participants
were
"...
well
along
in
the
process
to
secure
Early
Action
Compacts
prior
to
the
issuance
of
the
guidance
memorandum."

Another
commenter
recommended
that,
if
EPA
does
not
extend
the
compact
program
to
other
areas
who
did
not
have
sufficient
time
to
submit
a
request,
EPA
may
allow
that
certain
provisions
be
removed
from
Subpart
1
requirements
instead
of
completely
deferring
designations.
As
an
example,
the
commenter
noted
that
offsets
for
new
source
review
or
other
components
of
the
program
(
e.
g.,
major
source
cutoffs)
could
be
deferred
for
areas
with
compacts
(
State
of
Missouri
Department
of
Natural
Resources,
OAR­
2003­
0090­
0102).

Response:
The
deadline
for
submitting
a
compact
request
was
based
on
the
tight
time
frame
for
completing
the
planning
process
necessary
for
attainment
of
the
8­
hour
ozone
NAAQS
by
2007.
This
compliance
time
frame
is
similar
to
the
original
attainment
dates
for
traditional
8­
hour
nonattainment
areas
(
subpart
1
or
subpart
2­
marginal
classification)
.
Therefore,
EPA
believes
it
was
necessary
to
establish
a
cutoff
for
original
compact
submittal
that
would
enable
local
areas
to
identify
local
measures
and
to
implement
those
measures
in
a
time
frame
that
would
result
in
emissions
reductions
and
air
quality
improvement
needed
for
attainment
in
2007.
This
time
frame
also
provides
a
narrow
window
of
time
for
States
to
submit
a
revised
SIP
(
due
December
2004)
that
demonstrates
attainment
by
December
2007,
and
that
ensures
federal
enforceability
of
control
strategies
for
these
compact
areas.

Even
though
EPA
has
not
allowed
other
areas
to
participate
in
EACs
after
the
December
31,
2002
deadline
for
compact
signature
by
EPA,
State
and
local
representatives,
we
did
allow
two
counties
in
the
Denver
area
to
join
that
existing
compact.
The
original
Denver
EAC
comprised
a
seven­
county
metropolitan
area
(
one
county
less
than
the
full
CMSA).
After
reviewing
monitoring
data,
emission
inventories,
population
and
commuting
patterns,
and
EAC
dispersion
modeling
information,
it
was
apparent
to
EPA
Region
8
and
the
State
that
the
ozone
planning
process
for
Denver
should
include
a
much
larger
area
than
seven
counties.
In
its
"
120­
day"
Governor's
letter,
Region
8
recommended
to
Colorado
that
for
the
8­
hour
ozone
standard,
the
seven
EAC
counties
be
designated
nonattainment
along
with
four
other
counties
that
are
adjacent
to
the
EAC
area.
The
recommendation
by
the
Colorado
agency
and
the
EPA
Regional
Office
to
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
4
Protocol
for
Early
Action
Compacts
Designed
to
Achieve
and
Maintain
the
8­
hour
Ozone
Standard,
draft
submitted
by
Texas
Commission
on
Environmental
Quality
(
TCEQ),
March
2002.
Endorsed
by
EPA
in
a
letter
dated
June
19,
2002,
from
Gregg
Cooke,
(
then)
Administrator,
EPA
Region
6,
to
Robert
Huston,
Chairman,
TCEQ.
Protocol
revised
December
11,
2002
based
on
comments
from
EPA.

5
Memorandum
from
Lydia
N.
Wegman,
Director,
Air
Quality
Strategies
and
Standards
Division,
"
Early
Action
Compacts:
The
June
16,
2003
Submission
and
Other
Clarifications,"
April
4,
2003.
Docket
No.
OAR­
2003­
0090­
0002.

6
Memorandum
from
Jeffrey
R.
Holmstead,
Assistant
Administrator,
to
EPA
Regional
Administrators,
"
Schedule
for
8­
Hour
Ozone
Designations
and
Its
Effect
on
Early
Action
Compacts,"
November
14,
2002.
Docket
No.
OAR­
2003­
0090­
0003.

7
Frequently
Asked
Questions
on
 
1.
Early
Action
Compacts
for
8­
hour
Ozone
Standard.
a.
Volume
1,
May
15,
2003,
located
at
the
following
URL
site:
http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
eac/
20030515_
eac_
faq_
vol­
1.
pdf
b.
Volume
2,
February
19,
2004,
located
at
the
following
URL
site:
http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
eac/
20040219_
eac_
faq_
vol­
2.
pdf
2.
Implementing
the
DRAFT
8­
Hour
Ozone
Modeling
Guidance
to
Support
Attainment
Demonstrations
for
Early
Action
Compact,
January
15,
2004,
located
at
the
following
URL
site:
http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
eac/
20040115_
eac_
faq_
modeldemo.
pdf
19
add
counties
to
the
existing
Denver
compact
was
based
on
their
potential
to
"
cause
or
contribute"
to
the
Denver
ozone
nonattainment
problem.

The
EPA
recommended
to
the
State
that
the
8­
hour
ozone
nonattainment
boundary
encompass
all
eleven
counties
(
the
full
Denver
CMSA,
plus
three
other
counties).
With
this
in
mind,
EPA
Region
8
offered
to
the
State
that
four
new
adjacent
counties
be
allowed
to
join
the
Denver
EAC
and
to
also
receive
a
nonattainment
designation
deferred
effective
date.
We
believe
that
this
a
reasonable
approach
which
would
result
in
greater
reductions
of
NO
x
and
VOC
emissions
over
a
larger
area.
All
four
counties
(
Elbert,
Morgan,
Weld
and
Larimer
Counties)
agreed
to
join
the
Denver
compact.
The
original
signatories
of
the
EAC
unanimously
approved
the
addition
of
these
counties.
We
note
that
significant
emissions
from
oil
and
gas
fields
located
in
Weld
and
Larimer
Counties
had
not
been
previously
controlled.

While
it
is
true
that
a
subcommittee
("
Group
of
Eight")
of
the
STAPPA­
ALAPCO
was
engaged
in
discussions
of
early
reductions
prior
to
EPA's
release
of
guidance
for
compact
areas,
4
5
6
7
these
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
8
Draft
Issue
Paper
on
Incentives
for
Early
Reductions,
located
at
the
following
URL:
http://
www.
epa.
gov/
ttn/
naaqs/
ozone/
o3imp8hr/
documents/
issue
papers/
beforemeetings/
earl_
red_
022702.
pdf
20
meetings
were
conducted
with
the
full
knowledge
and
consent
of
the
member
States.
The
subcommittee
prepared
issue
papers
that
identified
various
options
for
achieving
early
reductions.
8
In
addition,
EPA
conducted
a
series
of
three
public
meetings
in
Tempe,
Arizona;
Atlanta,
Georgia;
and
Alexandria,
Virginia,
prior
to
EPA's
proposal
of
the
8­
hour
ozone
implementation
rulemaking,
to
discuss
various
issues
regarding
implementation
of
the
standard,
including
incentives
for
early
reductions.
The
public
was
given
an
opportunity
to
provide
comments
during
these
meetings,
as
well
as
an
opportunity
for
written
comments
outside
the
public
meeting.
The
EPA
also
discussed
the
Early
Action
Compact
approach
with
the
STAPPA­
ALAPCO
organization
in
June
2002,
following
the
Texas
Commission
on
Environmental
Quality's
submittal
of
its
draft
compact
protocol
in
March
2002
to
EPA
for
review.
We
believe
that
the
member
States
and
local
agencies
had
sufficient
notification
of
the
compact
approach
prior
to
issuance
of
EPA's
November
14,
2002
guidance,
including
the
draft
compact
protocol,
and
the
April
4,
2003
guidance.

Regarding
the
comment
that
EPA
could
remove
subpart
1
requirements
for
areas
not
participating
in
a
compact
rather
than
deferring
the
designations,
the
commenter
is
incorrect
in
stating
that
EPA
is
deferring
the
designation
of
nonattainment
for
compact
areas.
Instead,
EPA
is
deferring
the
effective
date
of
the
nonattainment
designation,
which
essentially
delays
imposition
of
mandatory
requirements
for
compact
areas
that
continue
to
meet
all
milestones
and
requirements.
EPA
can
not
remove
a
statutory
requirement
unilaterally;
a
change
in
the
statute
requires
an
amendment
to
the
CAA
which
requires
legislative
approval.

Other
EAC
Process
Comments
Commenter:
ESTEC
Enterprises,
Inc.,
OAR­
2003­
0090­
0149,
OAR­
2003­
0090­
0151,
and
OAR­
2003­
0079­
0106
Comment:
One
commenter
expressed
concern
and
his
belief
that
Early
Action
Compact
in
the
Greenville/
Spartanburg/
Anderson,
South
Carolina
area
has
poor
participation
by
voting
members,
unequal
representation,
no
Roberts
Rules
of
Order
to
address
issues,
inaccurate
minutes,
and
short
or
no
advanced
notice
of
meetings.
In
another
letter
on
the
proposed
EAC
rule,
the
commenter
asserts
his
opinion
regarding
the
following
procedural
deficiencies
for
South
Carolina's
Appalachian­
A
EAC:
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
21
1.
The
process
is
wrought
with
misleading
statements
in
reporting.
The
minutes
of
meeting
are
biased
and
do
not
reflect
actual
happenings
and
points
of
view
in
meetings.
During
meetings
attempts
were
made
to
limit
free
speech
violating
civil
rights
to
free
speech,
2.
Public
presentation
has
been
censured
both
in
presentation
to
the
public
and
in
the
record,
3.
Where
the
few
occasions
that
an
inconsistent
process
was
used
to
decide
upon
ozone
reduction
strategies
for
submissions
to
the
USEPA.
Subsequently,
these
submissions
were
altered,
producing
a
potential
fraudulent
representation
of
these
strategies
and
process
to
the
USEPA,
4.
Lack
of
participation
by
Steering
Committee
members,
5.
Lack
of
representation
and
lack
of
fair
representation
of
public
interests
groups
for
the
populous
of
the
participated
Counties
in
the
Steering
Committee
that
a)
has
no
rules,
procedures
&
guidelines
written
or
otherwise,
b)
acts
with
impunity
under
the
USEPA
EAC
guidelines
and
local
rules
and
c)
acts
with
a
whimsical
nature
in
committees'
procedure,
6.
State
officials
at
EAC
committee
meetings
provided
misleading
statements
along
with
other
Steering
Committee
members
about
the
legal
process
in
the
EAC
and
the
process
for
the
State
Implemented
Plan
(
SIP),
7.
South
Carolina's
Department
of
Health
and
Environmental
Control
(
DHEC)
voted
to
allow
more
emissions
from
industry
in
areas
that
are
in
"
non­
attainment"
for
the
8­
hr
ozone
standard
than
would
be
allow
under
the
current
provisions
of
the
Clean
Air
Act,
8.
State
officials
discouraged
voluntary
programs
a)
that
would
reduce
emissions
at
low­
cost
and
b)
that
follow
the
current
trend
of
the
USEPA
promoting
free
market
incentive
to
reduce
emissions
over
command­
and­
control
regulation,
and
9.
State
official,
local
officials,
elected
representatives
and
EAC
committees
voted
against
Environmental
Justice
considerations
for
reducing
local
air
pollution
while
a)
a
disproportionate
number
of
low
income
and
minority
residents
in
Greenville,
Spartanburg
and
Anderson
Counties
are
subject
to
hazardous
air
pollution,
b)
have
no
representation
on
the
Steering
Committee
for
the
Counties
and
c)
the
State
of
South
Carolina
Department
of
Health
and
Environment
Control
(
DHEC)
voted
for
plans
to
implement
regulations
that
would
potentially
produce
more
pollution
in
these
same
low
income
and
minority
residential
communities
regions.

According
to
the
commenter,
censorship
has
occurred
in
the
EAC
process
in
South
Carolina's
Appalachian
I
Region.
The
commenter
firmly
believes
that
censorship
occurred
to
hide
information
that
would
afect
the
cost/
benefit
analysis
for
South
Carolina's
air
quality
regulations.

On
August
21,
2003,
the
key
information
on
a
model
that
showed
an
emissions
credits
trading
model
that
would
produce
low­
cost
and
possibly
free
pollution
control
equipment
for
industries
that
emit
ozone
precursors
that
are
volatile
organic
compounds
in
my
presentation
to
the
Staff
Advisory
committee
meeting
was
removed
by
John
Owings
prior
to
a
critical
vote
on
competing
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
22
views.
Subsequently,
the
information
re­
appeared
in
the
minutes
of
the
meeting
and
was
located
in
an
appendix
that
contained
the
presentation.

After
voting
on
strategies
for
the
EAC
for
the
Appalachian
I
Region,
subsequent
information
was
removed
from
Strategy
1
without
any
further
voting,
either
by
the
steering
committee
or
the
staff
advisory
committee.
This
information
also
included
modeling
that
would
effect
the
cost/
benefit
analysis
for
South
Carolina's
air
quality
regulations.
Attachment
3
of
the
minutes
for
the
August
21,
2003
Staff
Advisory
Committee
Meeting,
a
key
measure
under
consideration
for
reducing
ozone
for
Strategy
1
that
was
agreed
upon
by
both
the
Staff
Advisory
committee
and
Steering
Committee,
was
subsequently
removed
without
the
normal
vote
and
notification
to
the
both
staff
members.
The
key
measure
that
was
subsequently
removed
is
located
under
the
column
entitled
"
Description
of
Measure"
in
Strategy
1.
The
key
measure
is:
"
Arrange
for
modeling
of
NOx
and
VOC
affects
on
non­
attainment
in
EAC
compact
areas
from
NOx
control
and
BACT
control"

Furthermore,
according
to
the
commenter,
Steering
Committee
Members
and
a
member
of
South
Carolina's
Department
Health
and
Environment
Control
(
DHEC)
apparently
made
misleading
statements
regarding
EAC
Procedures,
SIP
and
the
VOC­
BACT
regulation
development
process
during
the
August
Steering
Committee
Meeting.
A
Steering
Committee
meeting
member
and
a
DHEC
official
that
has
a
key
role
in
South
Carolina's
EAC
made
misleading
statements
that
said
that
there
was
no
reasonable
time
for
a
voluntary
emission
credits
to
be
discussed
for
BACT
regulation
or
enacted.
Subsequent
review
of
this
regulatory
process
suggests
otherwise.
The
steering
and
staff
committee
meetings
were
in
August
2003
while
the
VOC
BACT
regulatory
development
process
was
ongoing
and
did
not
finalize
the
recommendations
until
November
2003.
Therefore,
90
days
were
still
left
to
address
issues
which
would
affect
the
cost
/
benefit
analysis
of
regulations.
The
USEPA
and
the
public
should
note
that
SC's
NOx
SIP
Call
regulations
have
both
a
regulatory
approach
and
voluntary
emission
credits
(
allowance)
trading
program
that
was
developed
concurrently.

The
USEPA
and
the
USEPA
EAC
division
should
make
keynote
of
the
abuse
that
has
occurred
in
the
Cost/
Benefit
analysis
by
South
Carolina
and
Appalachian
Region
1.

The
commenter
provided
remarks
on
Environmental
Justice
Issues
in
the
South
Carolina
EAC
for
Appalachian
Region:

On
August
21,
2003,
the
Appalachian
Region
1
Staff
advisory
committee,
the
Steering
committee
and
subsequently
all
three
County
Councils
rejected
addressing
environmental
justice
issues
in
the
Communities
of
Greenville,
Anderson
and
Spartanburg
Counties
and
in
the
State
of
South
Carolina.
the
official
representative
of
South
Carolina's
Department
of
Health
and
Environmental
Control
also
voted
against
environmental
justice
issues
during
the
meetings.
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
23
In
August
of
2003,
the
Greenville
News
reported
that
the
Greenville
County
had
environmental
justice
irregularities;
Minorities
and
low­
income
families
are
2.5
to
3
times
more
likely
to
be
exposed
to
hazardous
air
pollutants.

In
January
of
2004,
the
State
of
South
Carolina's
Department
of
Health
and
Environmental
Control
(
SCDHEC)
elected
control
measures
for
industrial
smokestacks
that
reduce
ozone
precursor
emissions
(
notably
volatile
organic
compounds)
that
are
less
stringent
than
guidelines
for
non­
attainment
status.
Additionally,
SC
DHEC
voted
to
not
require
emissions
controls
on
new
industries
that
could
be
located
in
these
same
unhealthy
regions.
These
same
regions
would
be
in
non­
attainment
under
the
Clean
Air
Act
which
could
provide
better
protection
to
lowincome
and
minority
areas,
but
under
the
USEPA
Early
Action
Compact
would
be
exempt
from
better
protection
against
emissions
and
have
stronger
regulations
for
improving
air
quality.

Additionally,
the
Appalachian
Region
1
has
failed
to
adequately
address
programs
that
would
provide
school
buses
with
clean­
air
technologies
that
could
be
acquired
through
the
USEPA
clean
school
bus
program.
The
Staff
and
Steering
Committees
leaders
refused
to
address
the
possibility
of
using
new
hybrid­
electric
diesel
engines
that
are
manufactured
in
South
Carolina
for
school
buses.

Therefore,
a
reasonable
person
must
question
the
actual
effectiveness
of
the
entire
EAC
program
for
improving
air
quality
and
protecting
the
health
of
low­
income
and
minority
neighborhoods
compared
to
non­
attainment
status
under
the
Clean
Air
Act,
especially
in
the
EAC
program
in
South
Carolina
and
most
especially
the
EAC
programs
in
Appalachian
Region
1;
Greenville,
Anderson
and
Spartanburg
Counties.
The
facts
against
the
Early
Action
Compact
are
plain
and
simple:
The
current
Administration
in
the
State
of
South
Carolina
and
the
Appalachian
Region
1
Counties
voted
against
addressing
an
unequal
distribution
of
air
quality
to
the
detriment
of
lowincome
and
minority
neighborhoods,
then
subsequently
chose
not
to
protect
these
same
neighborhoods
from
potentially
having
more
ozone
precursors
and
hazardous
air
pollutants
from
being
emitted
in
or
to
these
same
low­
income
and
minority
areas.

In
the
EAC
Appalachian
Region
1,
the
voting
record
and
method
of
vote
were
arbitrary,
when
voting
occurred,
if
it
occurred
at
all.
Sometimes
quorums
were
not
present
and
voting
continued,
as
the
rules
for
voting
changed
with
the
current
situation.
Attendance
by
the
Steering
Committee
members
on
the
only
two
(
2)
voting­
occasions
did
not
have
enough
appointed
members
for
a
quorum
to
vote.
And,
the
only
January
Staff
Advisory
Committee
Meeting
was
canceled
due
to
lack
of
interest.
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
24
Response:
The
EPA's
expectation
is
that
the
EAC
program
is
a
broad­
based
stakeholder
process
with
public
involvement
conducted
in
all
stages
of
the
planning
and
implementation
process.
The
Appalachian
EAC
agreement
was
signed
by
all
local
counties
and
by
South
Carolina
DHEC
and
EPA
by
December
30,
2002.
We
have
examined
the
local
documents
for
the
Anderson
area,
and
they
appear
to
be
in
order
with
appropriate
stakeholder
participation,
as
documented
by
their
stakeholders'
signatures.

I.
5
IMPACTS
OF
EAC
PROGRAM
AND
DEFERRED
NONATTAINMENT
DESIGNATION
EFFECTIVE
DATE
ON
AIR
QUALITY
PLANNING
Need
for
Quantitative
Analysis
of
the
Impacts
of
EACs
on
Growth
Commenters:
New
York
State
Department
of
Environmental
Conservation
(
DEC),
OAR
2003­
0090­
0092;
Northeast
States
for
Coordinated
Air
Use
Management
(
NESCAUM),
OAR
2003­
0090­
0097
Comment:
The
commenters
state
that
EPA
has
not
adequately
addressed
the
impacts
of
Early
Action
Compacts
in
Section
VII
of
the
NPR
(
see
68
FR
70116,
December
16,
2003).
New
York
State
DEC
believes
EPA's
analysis
must
be
quantitative,
with
emphasis
on
those
programs
that
are
designed
to
control
growth
in
emissions.

Response:
The
concept
of
an
Early
Action
Compact
was
to
create
an
incentive
for
areas
to
explore
innovative
measures
to
reduce
air
pollution
 
incentives
not
currently
contained
in
the
Clean
Air
Act­­
that
local
areas
could
voluntarily
take
in
advance
of
a
SIP
requirement.
Such
early
actions
could
realize
emissions
reductions,
thus
improve
air
quality,
sooner
than
they
would
otherwise
under
a
traditional
system
of
designation
to
nonattainment
that
includes
prescribed
SIP
elements.

EAC
areas
are
required
to
submit
an
attainment
demonstration
by
December
31,
2004.
The
EPA
will
evaluate
these
demonstrations
at
that
time
to
determine
whether
Compact
areas
can
indeed
attain
the
8­
hour
standard
by
December
31,
2007.
As
is
the
case
with
all
modeled
attainment
demonstrations,
growth
parameters
will
be
a
part
of
the
demonstration.

Need
for
Subpart
2
Analysis
Commenter:
New
York
State
Department
of
Environmental
Conservation
(
DEC),
OAR
2003­
0090­
0092
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
25
Comment:
The
commenter
states
that
EPA
must
provide
analyses
with
respect
to
Subpart
2
requirements,
as
those
are
the
appropriate
requirements
that
would
apply
to
those
areas
under
the
Clean
Air
Act.

Response:
For
Compact
areas,
the
effective
date
of
nonattainment
designation
will
be
deferred
unless
the
area
misses
one
of
the
milestones.
Therefore,
the
nonattainment
requirements
of
Part
D
apply
only
if
and
unless
that
happens.

Transport­
Related
Comments
Commenters:
Ozone
Transport
Commission,
OAR­
2003­
0090­
0090;
Northeast
States
for
Coordinated
Air
Use
Management
(
NESCAUM),
OAR­
2003­
0090­
0097;
New
York
State
Dept
of
Environmental
Conservation,
OAR­
2003­
0090­
0092
Comment:
In
implementing
any
early
reduction
strategy,
several
commenters
encourage
EPA
to
address
the
impact
of
transported
ozone
or
ozone
precursor
emissions
on
downwind
areas.
The
compact
process
should
ensure
that
control
measures
ensure
an
adequate
margin
of
safety
to
allow
for
growth
and
continued
maintenance
of
the
standard
in
both
upwind
and
downwind
areas.
One
of
the
commenters
added
that
such
measures
should
be
in
addition
to
the
requirements
of
any
regional
transport
rule.

Response:
Although
a
local
area
may
be
implementing
measures
under
an
Early
Action
Compact,
these
agreements
do
not
relieve
the
State
of
its
obligation
to
consider
the
impacts
of
transported
ozone
on
downwind
areas
in
developing
attainment
demonstrations
for
the
8­
hour
ozone
NAAQS.
Therefore,
States
should
address
impacts
of
transport
as
they
adopt
EAC
controls
and
incorporate
them
as
revisions
to
the
State
implementation
plans
due
December
31,
2004.

Contingency
Measures
Commenters:
Northeast
States
for
Coordinated
Air
Use
Management
(
NESCAUM),
OAR­
2003­
0090­
0097;
New
York
State
Dept
of
Environmental
Conservation,
OAR­
2003­
0090­
0092
Comment:
The
commenters
are
concerned
that
appropriate
and
timely
backstop
mechanisms
are
not
in
place
in
the
event
that
an
Early
Action
Compact
area
either
fails
to
meet
its
milestones
or
achieve
the
ozone
standard
by
2007.

Response:
Voluntary
measures
that
are
included
in
EAC
plans
may
need
contingency
measures
in
the
event
they
do
not
achieve
the
expected
reductions.
Contingency
measures
under
section
172
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
26
of
the
CAA
are
not
required
for
EAC
areas
because
the
nonattainment
designation
will
not
be
effective
until
the
period
of
deferral
ends.
Consequently,
EPA
can
not
require
contingency
measures
in
these
areas.
Some
EAC
areas
have
specified
contingency
measures
as
part
of
their
local
plans,
while
others
have
not.
We
have
encouraged
compact
areas
to
include
contingency
measures
in
their
plans
for
their
SIP­
strengthening
effect
or
to
fill
any
shortfall
in
emissions
that
may
be
needed
for
attainment.

I.
6
DESIGNATIONS
General
Commenters:
American
Lung
Association
(
ALA);
Clean
Air
Task
Force;
Environmental
Defense;
Natural
Resources
Defense
Council;
Sierra
Club;
and
U.
S.
Public
Interest
Research
Group,
OAR­
2003­
0090­
0106
Comment:
The
commenters
asserted
that
the
nonattainment
status
of
compact
areas
be
transparent,
and
that
a
nonattainment
designation
provides
the
public
with
crucial
information
concerning
the
quality
of
the
air
the
citizens
breathe.
The
commenters
believe
that
failure
to
make
nonattainment
designations
under
the
8­
hour
ozone
standard
deprives
the
public
of
its
right
to
know
whether
it
is
breathing
healthy
or
unhealthy
air.

Response:
By
designating
compact
areas
that
are
violating
the
8­
hour
ozone
standard
as
nonattainment,
but
deferring
the
effective
date,
we
are
notifying
the
public
that
the
air
they
are
breathing
is
exceeding
the
level
of
the
standard.
Prior
to
the
establishment
of
the
early
action
compact
program,
some
State
and
local
agencies,
as
well
as
representatives
from
industry,
suggested
a
special
designation
of
transitional
for
areas
that
were
marginally
above
the
level
of
the
standard;
however,
we
agree
with
the
commenters
that
the
designation
needs
to
clearly
send
a
signal
to
the
public
that
air
quality
improvement
is
needed.
Indeed,
the
stakeholder
groups
in
these
compact
communities,
including
local
citizens
and
environmental
groups,
local
businesses,
local
and
county
governments
and
the
State
agencies
are
working
together
to
determine
the
best
mix
of
control
strategies
that
will
lead
to
reductions
of
emissions
sooner
that
would
otherwise
be
required
and
will
result
in
earlier
implementation
and
ultimately
attainment
of
the
standard
by
December
31,
2007.

Commenters:
Commonwealth
of
Virginia,
Department
of
Transportation
(
VA
DOT),
OAR
2003­
0090­
0083;
Mitsubishi
Polyester
Film,
OAR
2003­
0090­
0096;
BMW
Manufacturing
Co.,
LLC
OAR
2003­
0090;
and
Michelin
N.
A.,
OAR­
2003­
0083­
1389
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
27
Comment:
Several
commenters
recommended
separate
designations
exclusively
for
compact
areas
because
they
do
not
like
the
stigma
associated
with
the
nonattainment
label.
One
commenter
disagreed
with
the
label
for
compact
areas
called
"
nonattainment"
with
a
deferred
effective
date
of
the
designation,
instead
the
commenter
suggested
these
areas
be
called
"
compact"
or
"
EAC"
area.
That
way,
the
commenter
explained,
if
the
compact
failed,
the
area
would
be
designated
to
a
nonattainment
area.
(
VA
DOT,
OAR
2003­
0090­
0083)

Other
commenters
(
Mitsubishi
Polyester
Film,
OAR
2003­
0090­
0096;
BMW
Manufacturing
Co.,
LLC,
OAR
2003­
0090;
and
Michelin
N.
A.,
OAR­
2003­
0083­
1389)
recommended
two
possible
ways
to
address
the
nonattainment
situation
for
these
areas.
The
preferred
remedy
is
for
EPA
to
issue
three
deferrals
of
the
nonattainment
designation
for
areas
with
approved
early
action
compacts,
rather
than
three
deferrals
of
the
effective
date
of
the
nonattainment
designation.
This
would
allow
the
strategies
within
the
approved
early
action
compact
time
to
bring
the
area
back
into
compliance
with
the
8­
hour
ozone
standard
3
years
early,
without
the
negative
stigma
associated
with
a
nonattainment
designation.

The
second
potential
option,
according
to
these
commenters,
is
to
create
a
separate
category
for
areas
with
approved
early
action
compacts.
This
category
would
acknowledge
that
the
area
is
nonattainment,
and
the
area
has
taken
EPA­
approved
actions
to
regain
compliance
with
the
8­
hour
ozone
standard
3
years
earlier
than
required.
The
commenters
suggested
that
the
category
could
be
called
"
Early
Action
Compact
Area."

Response:
We
believe
that
a
separate
category
for
designations
is
unnecessary
and
would
only
confuse
the
public.
The
Clean
Air
Act
specifies
three
categories
of
designations:
attainment,
nonattainment
and
unclassifiable.
By
April
15,
2004,
we
will
designate
areas
either
attainment/
unclassifiable
or
nonattainment
for
the
8­
hour
ozone
standard.
For
those
areas
that
have
entered
into
a
compact
with
us
and
have
met
all
milestones
up
to
and
including
the
March
31,
2004
local
plan,
we
will
defer
the
effective
date
of
the
nonattainment
designation
until
September
30,
2005.

Commenter:
North
Carolina
Department
of
Environmental
and
Natural
Resources,
OAR
2003­
0090­
0112
Comment:
One
commenter
requested
that
the
actual
nonattainment
boundaries
be
listed
in
the
final
notice
of
this
deferral
action
after
EPA
and
the
State
have
completed
the
boundary
discussions.
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
28
Response:
We
have
identified
the
specific
nonattainment
boundaries
in
Part
81
which
is
issued
with
the
designations
notice
along
with
the
final
action
to
defer
the
effective
date
of
nonattainment
designation.

Comments
on
Designations
for
Specific
Areas
Commenter:
Chemical
Lime,
OAR
2003­
0090­
0098
Comment:
One
commenter
located
in
the
San
Antonio
area
supported
the
continued
participation
of
Comal
County
in
the
compact;
however,
the
commenter
believes
that
participation
in
the
compact
should
be
a
separate
issue
from
the
issue
of
whether
Comal
County
should
be
designated
as
a
nonattainment
county
and
included
within
the
San
Antonio
nonattainment
area.
According
to
the
commenter,
to
designate
Comal
County
nonattainment
even
though
its
monitors
indicate
"
attainment"
would
greatly
discourage
voluntary
and
early
reduction
efforts.
The
commenter
presented
information
which
the
commenter
believes
would
justify
an
attainment
designation
for
Comal
County.

Response:
The
EPA's
response
to
this
comment
is
located
in
"
Responses
to
Comments
on
EPA's
Designation
and
Classification
of
Areas
for
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard"
(
Docket
Number
OAR­
2003­
0083),
April
15,
2004.

I.
7
PROCESS
CONCERNS
Federal
Enforceability
of
Compact
Commitments
Commenter:
Ozone
Transport
Commission
(
OTC),
OAR
2003­
0090­
0090
Comment:
One
commenter
expressed
concern
that
all
commitments
by
compact
areas
must
be
federally
enforceable
to
reduce
emissions
early
for
attainment
of
the
8­
hour
ozone
standard.

Response:
States
are
required
to
submit
revisions
to
their
SIPs
to
EPA
by
December
31,
2004,
that
must
include
the
adopted
control
measures
and
a
demonstration
of
attainment.
Those
measures
that
areas
included
in
the
attainment
demonstration
are
federally
enforceable.

Determination
of
Significance
of
Regulatory
Action
Commenters:
New
York
State
Dept
of
Environmental
Conservation
(
DEC),
OAR
2003­
0090­
0092;
Northeast
States
for
Coordinated
Air
Use
Management
(
NESCAUM),
OAR
2003­
0090­
0097
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
29
Comment:
Two
commenters
disagreed
with
EPA's
assessment
that
the
proposed
rule
does
not
constitute
a
"
significant
regulatory
action"
because
the
compact
program
is
a
novel
approach.

Response:
Historically,
designation
actions
are
not
considered
"
significant"
for
OMB
review
purposes.
In
the
same
notice
where
we
designate
areas
for
the
8­
hour
ozone
standard,
we
are
taking
final
action
to
defer
the
first
effective
date
of
nonattainment
designation
for
EAC
areas
that
are
violating
the
standard,
but
have
met
compact
milestones
through
March
31,
2004.
The
OMB
has
determined
that
the
entire
rule
is
not
a
significant
regulatory
action,
and
therefore,
not
subject
to
OMB
review.

I.
8
COMMENTS
ON
TRADING
PROGRAMS
FOR
EAC
AREAS
Commenter:
ESTEC
Enterprises,
Inc.,
OAR­
2003­
0090­
0150
Comment:
One
commenter
encourages
EPA
to
continue
to
use
and
develop
more
free
market
approaches
to
reduce
ozone
precursor
emissions.
The
commenter
believes
that
cap
and
trade
systems
should
be
replaced
with
"
cap
and
earn"
systems
that
(
a)
have
strong
declining
caps
to
force
the
market
place
to
purchase
emissions
credits;
(
b)
that
promotes
trading;
and
(
c)
that
is
driven
by
industrial
and
residential
consumer
demand.
The
commenter
included
a
description
of
a
cap
and
earn
trading
program.

Response:
The
EPA
encourages
and
supports
market
approaches
to
reduce
ozone
precursor
emissions.
The
January
2001
document
"
Improving
Air
Quality
with
Economic
Incentive
Programs
(
EPA­
452/
R­
01­
001)
provides
EPA's
policy
on
discretionary
economic
incentive
programs
(
EIPs).
EIPs
use
market­
based
strategies
to
encourage
people
to
reduce
emissions
of
air
pollutants
in
the
most
efficient
manner.
This
guidance
provides
the
information
needed
to
develop
a
discretionary
EIP,
submit
it
to
the
EPA,
and
receive
approval
from
the
EPA.
This
guidance
pertains
to
discretionary
EIPs
that
are
or
will
be
measures
in
State
implementation
plans
(
SIPs)
and
Tribal
implementation
plans
(
TIPs).
This
guidance
applies
to
you
if
your
State
or
Tribe
wants
to
establish
a
discretionary
EIP
for
attaining
or
maintaining
the
national
ambient
air
quality
standards
(
NAAQS)
for
criteria
pollutants.
However,
EPA
cannot
mandate
states
to
adopt
such
programs.
A
discretionary
EIP
is
a
program
that
a
State
or
Tribe
elects
to
adopt.
Any
government
agency
with
the
authority
to
administer
a
SIP
or
TIP
may
adopt
a
discretionary
EIP.

With
regard
to
interpollutant
trading
requirements,
EPA
guidance
is
contained
in
the
EIP
at
section
16.9,
"
Provisions
for
ozone
interprecursor
trading."
In
general,
dispersion
modeling
is
needed
to
show
that
such
trading
will
reduce
or
maintain
ozone
levels,
include
the
necessary
geographic
restrictions,
establish
the
appropriate
interprecursor
trading
ratio,
and
address
the
applicable
new
source
review
requirements.
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
30
I.
9
APPLICATION
OF
EAC
PROCESS
TO
OTHER
NAAQS
Commenters:
Virginia
Department
of
Environmental
Quality
(
VA
DEQ),
OAR
2003­
0090­
0089;
Georgia
Department
of
Natural
Resources
(
GA
DNR),
OAR
2003­
0090­
0091;
Northern
Shenandoah
Valley,
OAR
2003­
0090­
0093;
Roanoke
Valley
Area
Metropolitan
Planning
Organization
(
MPO),
OAR
2003­
0090­
0101
Comment:
Several
commenters
urged
EPA
to
extend
the
EAC
program
and
the
deferred
effective
date
of
nonattainment
designation
to
other
NAAQS,
such
as
the
fine
particulate
matter
(
PM2.5)
standard.

Response:
The
EPA
has
no
plans
for
an
EAC
program
with
deferred
nonattainment
designation
for
PM­
2.5
areas.
There
is
little
time
for
early
SIPs
because
designations
are
expected
in
December,
and
the
conventional
SIP
process
begins
at
that
point.
When
we
considered
this
issue
some
time
ago,
EPA
decided
that
certain
inputs
needed
for
adequate
local
attainment
modeling
for
PM2.5
would
not
be
available
early
enough
to
support
the
EAC
approach.
(
i.
e.,
meteorological
and
emissions
data
at
the
fine­
grid
level).

The
EPA
does,
however,
encourage
efforts
by
States,
communities
and
the
private
sector
to
make
early
reductions
in
PM2.5
to
protect
public
health.
The
EPA
regulatory
analyses
have
estimated
that
even
small
reductions
in
PM2.5
levels
can
reduce
the
number
of
incidences
of
premature
mortality.
Also,
these
analyses
have
shown
that
monetized
benefits
of
reductions
in
direct
PM,
SO
2
and
NO
x
clearly
exceed
their
costs.

Early
reduction
efforts
can
include
diesel
retrofit
programs,
school
bus
retrofits,
and
a
long
list
of
other
measures
for
direct
PM
and
precursors.
To
encourage
early
reductions,
EPA
already
has
issued
guidance
stating
that
any
emissions
reductions
achieved
since
2002
will
be
credited
towards
meeting
reasonable
further
progress
requirements.
The
EPA's
proposed
rule
will
describe
further
incentives
available
under
the
Clean
Air
Act
for
areas
that
meet
the
PM2.5
standard
early,
including
suspension
of
certain
requirements
once
an
area
has
clean
data.
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
31
Section
II
Response
to
Comments
Received
on
the
Early
Action
Compacts
Section
VIII.
A
of
Proposed
Rule
to
Implement
the
8­
Hour
Ozone
National
Ambient
Air
Quality
Standard
(
68
FR
32802,
June
2,
2003)

The
EPA
received
a
number
of
comments
on
Section
VIII.
A
of
the
8­
hour
ozone
implementation
proposal
that
addressed
Early
Action
Compacts
(
EAC).
The
June
2,
2003
proposal
included
a
description
and
background
information
concerning
EACs,
but
made
it
clear
that
we
were
not
proposing
any
rulemaking
on
EACs
in
that
notice.
Those
comments
are
addressed
in
this
section
of
this
document
or
in
the
preamble
to
the
EAC
final
rule.

II.
1
COMMENTS
RELATED
TO
THE
PROPOSED
8­
HOUR
OZONE
CLASSIFICATION
OPTIONS
In
the
proposed
implementation
plan
for
the
8­
hour
ozone
NAAQS,
EPA
outlined
two
options
for
classifying
8­
hour
ozone
nonattainment
areas.
Under
Option
1,
EPA
would
classify
all
8­
hour
ozone
nonattainment
areas
under
subpart
2
based
on
the
areas
8­
hour
ozone
design
values.
Under
Option
2,
EPA
would
implement
the
8­
hour
ozone
standard
under
subpart
1
for
some
areas
and
under
subpart
2
for
other
areas
depending
on
the
areas
1­
hour
ozone
design
value.
(
See
proposed
rule
at
68
FR
32812,
June
2,
2003,
for
detailed
information
on
the
classification
options.)

Commenters:
Travis
County
Transportation
and
Natural
Resources,
OAR­
2003­
0079­
0182;
Capital
Area
Metropolitan
Planning
Organization,
OAR­
2003­
0079­
0301;
City
of
Austin,
OAR­
2003­
0079­
0341;
City
of
San
Antonio,
OAR­
2003­
0079­
0195;
Virginia
Dept
of
Environmental
Quality
(
VDEQ),
OAR­
2003­
0079­
0231;
Oklahoma
Dept
of
Environmental
Quality,
OAR­
2003­
0079­
0253
Comment:
Commenters
stated
that
under
Option
1
an
EAC
area
classified
as
Marginal
because
the
8­
hour
readings
fall
between
0.085
and
0.092
would
under
Subpart
2
have
3
years
after
designations
become
final
to
attain
the
standard,
which
would
be
sooner
than
under
an
EAC.
The
commenters
believed
it
would
be
impossible
to
justify
requiring
areas
under
traditional
nonattainment
to
come
into
attainment
quicker
than
areas
that
have
committed
to
an
EAC.
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
32
Response:
Marginal
areas
under
both
Options
1
and
2
would
have
3
years
to
attain
the
8­
hour
standard.
Thus,
to
the
extent
the
commenters
see
an
issue
with
Option
1,
it
applies
equally
to
option
2.
We
believe
Congress
intended
areas
that
are
violating
based
on
a
design
value
just
above
the
standard
to
attain
the
standard
within
3
years.
The
Agency
did
not
consider
the
EAC
concept
in
the
proposed
implementation
rule
or
in
developing
the
final
implementation
rule.
The
commenter
is
correct
that
a
traditional
nonattainment
area
designated
on
April
15,
2004
and
classified
as
marginal,
at
the
same
time
EAC
areas
are
designated,
would
be
required
to
attain
sooner
than
an
EAC
area,
unless
the
traditional
nonattainment
area
qualifies
for
a
1­
or
2­
year
extension
of
the
original
attainment
date.
Any
EAC
area
with
a
deferred
effective
date
will
be
required
to
attain
no
later
than
December
31,
2007,
in
accordance
with
the
early
action
protocol
and
EPA
guidance.
An
EAC
(
deferred)
area
is
not
eligible
for
an
extension
of
the
attainment
date.
Traditional
nonattainment
areas
classified
as
marginal
would
be
required
to
attain
3
years
after
the
effective
date
of
designation,
or
June
15,
2007,
unless
the
area
qualifies
for
an
extension
of
the
attainment
date,
in
which
case
the
attainment
date
would
be
no
later
than
June
15,
2009.

Commenters:
Ozone
Transport
Commission
(
OTC),
OAR­
2003­
0079­
0112,
OAR­
2003­
0079­
0289;
Pennsylvania
Department
of
Environmental
Protection
(
PADEP),
OAR­
2003­
0079­
0294
Comment:
Two
commenters
urged
EPA
to
implement
the
8­
hour
ozone
standard
under
Option
1
(
subpart
2).
One
of
these
commenters
questioned
whether
the
potentially
significant
delays
under
the
EAC
program
provided
for
under
subpart
1
had
been
analyzed
and
if
an
analysis
would
show
that
the
subpart
1
option
could
meet
the
rule's
objectives.
(
OAR­
2003­
0079­
0112,
OAR­
2003­
0079­
0289,
OTC)
The
other
commenter
stated
that
EAC
areas
classified
under
Subpart
1
that
fail
to
demonstrate
attainment
by
the
end
of
2007
could
have
as
long
as
10
more
years
to
attain
the
8­
hour
standard.
The
commenter
believes
this
could
adversely
affect
areas
downwind
of
the
EAC
areas.
(
OAR­
2003­
0079­
0294,
PADEP)

Response:
As
we
have
stated
previously,
the
EAC
concept
has
not
formed
the
basis
for
any
part
of
the
implementation
rule.
However,
we
note
that
section
172(
a)(
2)(
A)
(
in
subpart
1)
requires
areas
to
attain
as
expeditiously
as
practicable,
but
within
5
years
of
designations,
unless
the
area
can
demonstrate
that
attainment
is
infeasible
based
on
the
severity
of
pollution
and
the
availability
and
feasibility
of
controls.
The
areas
that
have
taken
steps
to
participate
as
EACs
all
have
ozone
levels
that
are
close
to
the
level
of
the
8­
hour
standard
and,
in
addition,
these
local
areas
and
their
States
have
been
able
to
identify
a
variety
of
controls
that
they
are
adopting
or
considering
for
adoption.
These
EAC
measures
will
be
implemented
no
later
than
December
2007.
Based
on
the
information
currently
before
us,
we
do
not
believe
any
such
area
would
need
the
full
initial
5­
year
period
to
attain,
much
less
would
be
able
to
demonstrate
that
it
needs
the
5­
year
extension
provided
under
section
172(
a)(
2)(
A)
of
the
CAA.
DEFERRAL
OF
EFFECTIVE
DATE
OF
NONATTAINMENT
DESIGNATIONS
FOR
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARDS
FOR
EARLY
ACTION
COMPACT
AREAS
RESPONSE
TO
COMMENTS
April
15,
2004
33
II.
2
CONCERNS
ABOUT
THE
REVOCATION
OF
THE
1­
HOUR
OZONE
STANDARD
Commenters:
Texas
Commission
on
Environmental
Quality
(
TCEQ),
OAR­
2003­
0079­
0149,
OAR­
2003­
0079­
0259,
OAR­
2003­
0079­
0260,
and
OAR­
2003­
0079­
0472;
Travis
County
Transportation
and
Natural
Resources,
OAR­
2003­
0079­
0182;
Capital
Area
Metropolitan
Planning
Organization,
OAR­
2003­
0079­
0301;
City
of
Austin,
OAR­
2003­
0079­
0341;
State
of
Louisiana
Dept
of
Environmental
Quality,
OAR­
2003­
0079­
0230;
Vanderburgh
County
(
Indiana)
Health
Dept
and
City
of
Evansville
(
Indiana),
OAR­
2003­
0079­
0295;
South
Carolina
Bureau
of
Air
Quality,
OAR­
2003­
0079­
0314
Comment:
A
number
of
comments
addressed
the
issue
of
revocation
of
the
1­
hour
ozone
standard
for
EAC
areas.
Although
many
commenters
supported
complete
revocation
of
the
1­
hour
ozone
standard,
they
expressed
concern
about
the
proposed
timing
(
one
year
after
the
effective
date
of
the
designation
of
the
area
for
the
8­
hour
ozone
NAAQS).
These
commenters
were
concerned
that
an
EAC
area
would
be
subject
to
both
the
1­
hour
and
8­
hour
standards
at
the
same
time
for
a
period
of
several
years
more
than
other
areas
that
did
not
voluntary
take
proactive
measures.
Several
commenters
believe
this
may
act
as
a
disincentive
to
EAC
participation,
add
a
layer
of
differing
requirements,
and
present
planning
and
management
difficulties.

These
commenters
urged
EPA
to
consider
other
options
regarding
the
timing
of
the
1­
hour
ozone
standard.
Some
commenters
suggested
that
the
1­
hour
standard
be
revoked
for
the
EAC
areas
on
the
same
time
frame
as
for
the
rest
of
the
areas
in
the
country.
One
commenter
suggested
that
EAC
areas
should
be
designated
attainment
for
the
8­
hour
standard
whenever
designations
are
made
for
the
rest
of
the
county,
have
the
1­
hour
standard
revoked
one
year
later,
and
if
those
areas
do
not
attain
the
8­
hour
standard
(
and
other
possible
agreed
upon
milestones),
they
then
be
redesignated
to
nonattainment.

Response:
For
EAC
areas,
the
1­
hour
ozone
standard
will
be
revoked
one
year
after
the
effective
date
of
designation.
Tying
revocation
of
the
1­
hour
standard
to
the
effective
date
of
designation
is
consistent
with
how
the
EPA
is
treating
all
other
areas
of
the
country
with
respect
to
timing
of
the
revocation.
