[Federal Register Volume 69, Number 84 (Friday, April 30, 2004)]
[Rules and Regulations]
[Pages 23951-24000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9153]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 50, 51 and 81
[OAR 2003-0079, FRL-7651-7]
RIN 2060-AJ99
Final Rule To Implement the 8-Hour Ozone National Ambient Air
Quality Standard--Phase 1
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this document, EPA is taking final action on key elements
of the program to implement the 8-hour ozone national ambient air
quality standard (NAAQS or standard). This final rule addresses the
following topics: classifications for the 8-hour NAAQS; revocation of
the 1-hour NAAQS (i.e., when the 1-hour NAAQS will no longer apply);
how anti-backsliding principles will ensure continued progress toward
attainment of the 8-hour ozone NAAQS; attainment dates; and the timing
of emissions reductions needed for attainment. We are issuing this rule
so that States and Tribes will know how we plan to classify areas and
transition from implementation of the 1-hour NAAQS to implementation of
the 8-hour NAAQS. The intended effect of the rule is to provide
certainty to States and Tribes regarding classifications for the 8-hour
NAAQS and their continued obligations with respect to existing
requirements. This document is Phase 1 of the program to implement the
8-hour ozone NAAQS. We plan to issue a second rule, Phase 2, within the
next several months which will address the remaining 8-hour
implementation issues, e.g., requirements for reasonable further
progress (RFP), requirements for modeling and attainment
demonstrations, and requirements for reasonably available control
measures (RACM) and reasonably available control technology (RACT).
DATES: Effective Date: This rule is effective on June 15, 2004.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. OAR-2003-0079. All documents in the docket are listed in
the EDOCKET index at http://www.epa.gov/edocket. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically in EDOCKET or in hard copy at the EPA
Docket Center (Air Docket), EPA/DC, EPA West, Room B102, 1301
Constitution Ave., NW., Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the Office of Air and Radiation
Docket and Information Center is (202) 566-1742.
In addition, we have placed a variety of earlier materials
regarding implementation of the 8-hour ozone NAAQS on the Web site:
http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr.
FOR FURTHER INFORMATION CONTACT: Mr. John Silvasi, Office of Air
Quality
[[Page 23952]]
Planning and Standards, U.S. Environmental Protection Agency, Mail Code
C539-02, Research Triangle Park, NC 27711, phone number (919) 541-5666,
fax number (919) 541-0824 or by e-mail at [email protected] or Ms.
Denise Gerth, Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency, Mail Code C539-02, Research Triangle
Park, NC 27711, phone number (919) 541-5550, fax number (919) 54l-0824
or by e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
Outline
I. When Did EPA Propose this Rule?
II. What is EPA's Schedule for Taking Final Action on the Proposal?
III. What is Included in this Rule?
IV. In Short, what does this Final Rule Contain?
A. How will EPA reconcile the classification provisions of
subparts 1 and 2? How will EPA classify nonattainment areas for the
8-hour standard?
B. How will EPA treat attainment dates for the 8-Hour ozone
standard?
C. How will EPA implement the transition from the 1-hour to the
8-hour standard in a way to ensure continued momentum in States'
efforts toward cleaner air?
D. What is the required timeframe for obtaining emissions
reductions to ensure attainment by the attainment date?
V. EPA's Final Rule.
A. How will EPA reconcile the classification provisions of
subparts 1 and 2? How will EPA classify nonattainment areas for the
8-hour NAAQS?
1. Background.
a. Statutory framework and Supreme Court decision.
b. EPA's proposed rule and notice reopening the comment period.
2. Summary of final rule
a. Why did EPA select Option 2?
(i) Why will Option 2 best accomplish the policy goals of EPA?
(ii) How is Option 2 Consistent with the CAA as Interpreted by
the Supreme Court?
3. Comments and Responses.
4. Under the final classification approach, how will EPA
classify subpart 1 areas?
a. Background.
b. Summary of Final Rule.
c. Comments and Responses.
5. Will EPA adjust classifications?
a. Background.
b. Summary of Final Rule.
c. Comments and Responses.
6. Proposed Incentive Feature.
a. Background.
b. Summary of Final Rule.
c. Comments and Responses.
B. How will EPA treat attainment dates for the 8-hour ozone
NAAQS?
1. Background.
2. Summary of final rule.
3. Comments and Responses.
4. How Will EPA Address the Provision Regarding 1-Year
Extensions?
a. Background.
b. Summary of final rule.
c. Comments and Response
C. How will EPA implement the transition from the 1-hour to the
8-hour NAAQS in a way to ensure continued momentum in States'
efforts toward cleaner air?
1. When will EPA revoke the 1-hour NAAQS?
a. Background.
b. Summary of Final Rule.
c. Comments and Responses
2. What requirements that applied in an area for the 1-hour
NAAQS continue to apply after revocation of the 1-hour NAAQS for
that area?
a. Background.
b. Summary of Final Rule.
c. Section 51.905(a)(1): 8-Hour NAAQS Nonattainment/1-Hour NAAQS
Nonattainment
(i) Mandatory Control Measures.
(ii) Discretionary control measures.
(iii) Measures to address growth.
(iv) Planning SIPs.
d. Section 51.905(a)(2): 8-Hour NAAQS Nonattainment/1-Hour NAAQS
Maintenance
(i) Mandatory Control Measures.
(ii) Discretionary Control measures.
(iii) Measures to address growth.
(iv) Planning SIPs.
e. Section 51.905(a)(3): 8-Hour NAAQS Attainment /1-Hour NAAQS
Nonattainment
(i) Mandatory control obligations.
(ii) Discretionary control obligations.
(iii) Measures to address growth.
(iv) Planning SIPs.
(v) Maintenance Plans for the 8-hour NAAQS.
f. Section 51.905(a)(4): 8-Hour NAAQS Attainment/1-Hour NAAQS
Maintenance
(i) Obligations in an approved SIP.
(ii) Maintenance plan.
3. For how long do these obligations continue to apply?
a. Background.
b. Summary of Final Rule.
c. Comments and Responses.
4. Which portions of an area designated for the 8-hour NAAQS
remain subject to the 1-hour NAAQS obligations?
a. Background.
b. Summary of Final Rule.
c. Comments and Responses.
5. What obligations that applied for the 1-hour NAAQS will no
longer apply after revocation of the 1-hour NAAQS for an area?
a. Background.
b. Summary of Final Rule.
c. Comments and Responses.
(i) Comments on June 2, 2003 proposal:
(ii) Comments on draft regulatory text.
6. What is the continued applicability of the NOX SIP
Call after revocation of the 1-hour NAAQS?
a. Background.
b. Summary of Final Rule.
c. Comments and Responses.
(i) Comments on the June 2, 2003 proposal:
D. What is the required timeframe for obtaining emissions
reductions to ensure attainment by the attainment date?
1. Background.
2. Summary of final rule.
3. Comments and Responses
E. Conformity Under the 8-Hour Ozone Standard
F. Comments on Other Issues
1. Designations of nonattainment and attainment areas:
2. Early Action Compacts (EACs):
3. Health and environmental concerns:
4. Clarity and understandability of proposed rule:
5. Regulatory text:
6. Requests for Extension of Comment Periods:
G. Other Considerations
1. What happens if a source is in the process of PSD permitting
at the time that the area in which it is located is designated as
nonattainment for the 8-hour ozone NAAQS?
H. EPA's Final Action.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
L. Petitions for Judicial Review
M. Determination Under Section 307(d)
I. When Did EPA Propose This Rule?
On June 2, 2003 (68 FR 32805), we published a proposed rule to
implement the 8-hour ozone NAAQS. The proposal addressed a number of
implementation issues, including the two core implementation issues
addressed in this final rule, e.g., how the Clean Air Act (CAA or Act)
classification provisions will apply for the 8-hour ozone NAAQS and the
transition from the 1-hour NAAQS to the 8-hour NAAQS, including when
the 1-hour NAAQS will be revoked and anti-backsliding principles. We
proposed one or more options for each issue addressed in the proposal.
In addition, we included two possible frameworks to implement the 8-
hour ozone NAAQS. These frameworks were complete implementation
strategies comprised of one option for each implementation issue
addressed in the proposed rule. The following principles guided us in
the development of the underlying
[[Page 23953]]
options and the frameworks to implement the 8-hour ozone NAAQS in the
proposed rule: to protect public health, provide incentives for
expeditious attainment of the 8-hour ozone NAAQS and avoid incentives
for delay; to provide reasonable but expeditious attainment deadlines;
to establish a basic, straightforward structure that could be
communicated easily; to provide flexibility to States and EPA on
implementation approaches and control measures while ensuring that the
implementation strategy is supported by the CAA; to emphasize national
and regional measures to help areas come into attainment and, where
possible, reduce the need for those local controls that are more
expensive than national and regional measures; and to provide a smooth
transition from implementation of the 1-hour ozone NAAQS to
implementation of the 8-hour ozone NAAQS. An additional goal was to
clarify the role of Tribes in implementing the 8-hour ozone NAAQS.
Section 301(d) of the CAA recognizes that the American Indian Tribal
governments are generally the appropriate authority to implement the
CAA in Indian country. As discussed in the Tribal Authority Rule (TAR)
(63 FR 7262, February 12, 1998, and 59 FR 43960-43961, August 25,
1994), it is appropriate to treat Tribes in the same manner as States.
Therefore, when we discuss the role of the State in implementing this
rule we are also referring to the Tribes. Please refer to the proposed
rule (68 FR 32802, June 2, 2003) for a detailed discussion and
background information on the 8-hour ozone problem and EPA's strategy
for addressing it, the 8-hour ozone NAAQS and associated litigation,
and the stakeholder process for gathering input into this effort, among
other topics.
On August 6, 2002 (68 FR 46536), we published a notice of
availability of the draft regulatory text for the proposed rule to
implement the 8-hour ozone NAAQS. This notice started a 30-day public
comment period on the draft regulatory text. In addition, on October
21, 2003 (68 FR 60054), we reopened the public comment period for 15
days to solicit additional comment on alternative approaches for
classifying ozone nonattainment areas, based on comments received
during the comment period.
II. What Is EPA's Schedule for Taking Final Action on the Proposal?
In our June 2, 2003 proposal, we stated that we planned to issue
the final implementation rule in December of 2003. While there is not a
CAA deadline for promulgating a strategy to implement the 8-hour ozone
NAAQS, the CAA does establish a deadline for EPA to promulgate
designations of nonattainment areas under section 107 of the CAA.\1\ We
have entered into a consent decree that requires us to promulgate
designations by April 15, 2004.\2\ Our goal was to issue a final
implementation rule by the end of 2003 because the States and Tribes
indicated a strong interest in having an opportunity to understand the
impacts of being designated nonattainment prior to promulgation of
designations for the 8-hour NAAQS. Based on the large number of public
comments received on our proposal and our need to consider and respond
to those comments before taking final action, we were unable to issue a
final rule prior to April 15, 2004 that addresses all issues raised in
the proposal. This final rule addresses several key components of the
proposed rule: how the classification provisions of the CAA will apply
for purposes of the 8-hour ozone NAAQS and the transition from the 1-
hour NAAQS to the 8-hour NAAQS, including when the 1-hour NAAQS will be
revoked, how anti-backsliding principles will ensure continued progress
toward attainment of the 8-hour ozone NAAQS, attainment dates, and the
timing of emissions reductions needed for attainment.
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\1\ Section 107(d) of the CAA sets forth a schedule for
designations following the promulgation of a new or revised NAAQS.
The Transportation Equity Act for the Twenty-first Century (TEA-21)
revised the deadline to promulgate nonattainment designations to
provide an additional year (to July 2000) but HR3645 (EPA's
appropriation bill in 2000) restricted EPA's authority to spend
money to designate areas until June 2001 or the date of the Supreme
Court ruling in the litigation challenging the NAAQS, whichever came
first.
\2\ American Lung Association v. EPA (D.D.C. No. 1:02CV02239).
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Within the next several months, we plan to issue a second final
rule, Phase 2, which will address many of the planning and control
obligations under sections 172 and 182 of the CAA that will apply for
purposes of implementing the 8-hour ozone NAAQS. These include, among
other things, RFP, RACT, attainment demonstrations and maintenance
plans, and new source review (NSR). Neither Phase 1 nor Phase 2 will
address the appropriate tests under the 8-hour ozone NAAQS for
demonstrating conformity of Federal actions to State implementation
plans (SIPs). A proposed rule was published on November 5, 2003 (68 FR
62689) addressing transportation conformity requirements applicable in
8-hour ozone nonattainment areas. In addition, EPA is revising its
general conformity regulations and plans to issue a proposed rule in
the spring of 2004.
III. What Is Included in This Rule?
Today's action, Phase 1 of the implementation rule, focuses on two
key implementation issues: (1) Classifying areas for the 8-hour NAAQS
and (2) transitioning from the 1-hour to the 8-hour NAAQS, which
includes revocation of the 1-hour NAAQS and the anti-backsliding
principles that should apply upon revocation.\3\ In addition, it
addresses several additional, related issues. We believe that
classifications and anti-backsliding are key elements of the
implementation program that are of primary interest to the States and
Tribes prior to the final designations. In addition, because section
182(a) of the CAA provides that classifications will occur ``by
operation of law'' at the time of designation, EPA believes it is
critical that the public understands at the time of designations how
the classification provisions will apply.
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\3\ We use the term ``revocation'' as shorthand for a
determination under 40 CFR 50.9(b) that the 1-hour NAAQS no longer
applies to one or more areas.
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IV. In Short, What Does This Final Rule Contain?
This summary is intended to give only a convenient overview of our
final rule. It should not be relied on for the details of the actual
rule. The final rule (regulatory text) and the discussion of it in the
next section below should be consulted directly.
Both the preamble and the rule may use the following terms to
discuss four categories of areas for purposes of the anti-backsliding
provisions: (1) 8-hour NAAQS Nonattainment/1-hour NAAQS Nonattainment;
(2) 8-hour NAAQS Nonattainment/1-hour NAAQS Maintenance; (3) 8-hour
NAAQS Attainment/1-hour NAAQS Nonattainment; (4) 8-hour NAAQS
Attainment/1-hour NAAQS Maintenance. These categories are,
respectively: (1) Areas that remain designated nonattainment for the 1-
hour NAAQS at the time of designation as nonattainment for the 8-hour
NAAQS; (2) Areas that are maintenance areas for the 1-hour NAAQS at the
time of designation as nonattainment for the 8-hour NAAQS; (3) Areas
that remain designated nonattainment for the 1-hour NAAQS at the time
of designation as attainment for the 8-hour NAAQS; and (4) Areas that
are maintenance areas for the 1-hour NAAQS at the time of designation
as attainment for the 8-hour NAAQS.
[[Page 23954]]
A. How Will EPA Reconcile the Classification Provisions of Subparts 1
and 2? How Will EPA Classify Nonattainment Areas for the 8-Hour
Standard?
The final rule incorporates Option 2 of the proposal. Each area
with a current 1-hour design value at or above 0.121 ppm (the lowest 1-
hour design value in Table 1 of subpart 2) will be classified under
subpart 2 based on its 8-hour design value. All other areas will be
covered under subpart 1 using their 8-hour design values.
In brief, this approach works as follows:
First, we will determine which 8-hour areas will
be covered under subpart 2 and which under subpart 1. Any area with a
1-hour ozone design value (at the time of designation) that meets or
exceeds the statutory level of 0.121 ppm that Congress specified in
Table 1 of section 181 will be classified under subpart 2 and will be
subject to the control obligations associated with its
classification.\4\ Any area with a 1-hour design value (at the time of
designation) that is below the level of 0.121 ppm will be covered under
subpart 1 and subject to the control obligations in section 172.
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\4\ In the Phase 2 rule, we will address the control obligations
that apply to areas under both subpart 1 and subpart 2.
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Second, subpart 2 areas will be classified as
marginal, moderate, serious, severe or extreme based on the area's 8-
hour design value (at the time of designation). Since Table 1 is based
on 1-hour design values, and application of the Table as written would
produce absurd results, we are promulgating a regulation translating
the thresholds in Table 1 of section 181 from 1-hour values to 8-hour
values.
Under the Final Classification Approach, How Will EPA Classify Subpart
1 Areas?
We are adopting the second option but modified as a result of
comments. We are creating an overwhelming transport classification that
will be available to subpart 1 areas that demonstrate they are affected
by overwhelming transport of ozone and its precursors and demonstrate
they meet the definition of a rural transport area in section 182(h).
However, areas would not have to demonstrate that transport was due
solely to sources from outside the State (interstate transport) as was
implied by the June 2, 2003 proposal. All other areas that do not
qualify for the overwhelming transport classification would not be
classified.
Proposed Incentive Feature
We are not including the proposed incentive feature in the final
rule.
B. How Will EPA Treat Attainment Dates for the 8-Hour Ozone Standard?
We are adopting the time periods for attainment that we proposed
for areas under both subpart 1 and subpart 2 of the CAA. For areas
subject to subpart 2 of the CAA, the maximum period for attainment will
run from the effective date of designations and classifications for the
8-hour standard and will be the same periods as provided in Table 1 of
section 181(a):
Marginal--3 years
Moderate--6 years
Serious--9 years
Severe--15 or 17 years
Extreme--20 years
Consistent with section 172(a)(2)(A), for areas subject to subpart
1 of the CAA, the period for attainment will be no later than 5 years
after the effective date of the designation. However, EPA may grant an
area an attainment date no later than 10 years after designation, if
warranted based on the factors provided in section 172(a)(2)(A).
How Will EPA Address the Provision Regarding 1-Year Extensions?
We are adopting the interpretation that we proposed on June 2,
2003. Under both sections 172(a)(2)(C) and 181(a)(5), an area will be
eligible for the first of the 1-year extensions under the 8-hour
standard if, for the attainment year, the area's 4th highest daily 8-
hour average is 0.084 ppm or less. The area will be eligible for the
second extension if the area's 4th highest daily 8-hour value, averaged
over both the original attainment year and the first extension year, is
0.084 ppm or less.
C. How Will EPA Implement the Transition From the 1-Hour to the 8-Hour
Standard in a Way To Ensure Continued Momentum in States' Efforts
Toward Cleaner Air?
There are two key issues that EPA considered together regarding the
transition from the 1-hour standard to the 8-hour standard: (1) When
will the 1-hour standard no longer apply (i.e., be ``revoked''); and
(2) what protections are in place to ensure that, once the 1-hour
standard is revoked, air quality will not degrade and that progress
toward attainment will continue as areas transition from implementing
the 1-hour standard to implementing the 8-hour standard. As in the
proposed rule, the second key issue has three components: (1) What
requirements that applied based on an area's classification for the 1-
hour standard must continue to apply to that area; (2) for how long;
and (3) in what area. Below, we set forth our final transition approach
in four parts: (1) When will the 1-hour standard no longer apply (i.e.,
when will it be revoked); (2) what 1-hour obligations should continue
to apply once the 1-hour standard is revoked; (3) how long should those
requirements continue to apply; and (4) what is the geographic area
subject to the requirement.
1. When Will EPA Revoke the 1-Hour Standard?
We are adopting Option 1. We will revoke the 1-hour standard in
full, including the associated designations and classifications, 1 year
following the effective date of the designations for the 8-hour NAAQS.
2. What Requirements That Applied in an Area for the 1-Hour NAAQS
Continue To Apply After Revocation of the 1-Hour NAAQS for That Area?
The approach we are adopting in the final rule is summarized below
under the individual sections discussing each category of area and type
of control obligation.
a. Section 51.905(a)(1): 8-Hour NAAQS Nonattainment/1-Hour NAAQS
Nonattainment
(i) Mandatory control measures. We are adopting the approach we
proposed. All areas designated nonattainment for the 8-hour ozone NAAQS
and designated nonattainment for the 1-hour ozone NAAQS at the time of
designation for the 8-hour NAAQS remain subject to control measures
that applied by virtue of the area's classification for the 1-hour
standard.
(ii) Discretionary control measures. We are adopting the approach
we set forth in our proposed rule. A State may revise or remove
discretionary control measures (including enforceable commitments)
contained in its SIP for the 1-hour standard so long as the State
demonstrates consistent with section 110(l) that such removal or
modification will not interfere with attainment of or progress toward
the 8-hour ozone NAAQS (or any other applicable requirement of the
CAA).
(iii) Measures to address growth. We are not adopting the approach
set forth in our proposed rule. For areas designated nonattainment for
the 1-hour NAAQS at the time of designation for the 8-hour NAAQS and
that are designated nonattainment for the 8-hour NAAQS, the major
source applicability cut-offs and offset ratios for the area's 1-hour
classification would not continue to apply after revocation of the 1-
hour NAAQS.
[[Page 23955]]
(iv) Planning SIPs.
(A) Outstanding rate of progress (ROP) Obligation. We are adopting
the approach set forth in our proposed rule for this category of areas.
States remain obligated to meet the CAA-mandated ROP emission reduction
targets that applied for the 1-hour standard, but discretionary
measures adopted to meet those targets may be modified, if the State
makes the necessary showing under section 110(l).
(B) Unmet attainment demonstration obligations. In the final rule,
we are allowing the States to choose among three options that are
tailored after the approaches addressed in the proposed rule. Thus,
rather than establishing one mandatory approach, we are adopting a rule
that will allow States to choose any one of the following three
options:
Option 1. Submit a 1-hour attainment
demonstration.
Option 2. Submit, no later than 1 year after the
effective date of the 8-hour designations, an early five percent
increment of progress plan toward the 8-hour standard.
Option 3. Submit an early 8-hour ozone
attainment demonstration SIP that ensures that the first segment of RFP
is achieved early.
b. Section 51.905(a)(2): 8-Hour NAAQS Nonattainment/1-Hour NAAQS
Maintenance
(i) Mandatory control measures. We are adopting the approach we
took in the proposal and the draft regulatory text. This category of
areas must continue to implement mandatory control requirements (i.e.,
``applicable requirements'') that have been approved into the SIP.
However, since maintenance areas do not have any outstanding obligation
to adopt mandatory control obligations for the 1-hour standard, the
provision only addresses implementation, not adoption. In addition,
this section recognizes that maintenance areas had the flexibility to
move mandatory controls to the contingency measures portion of their
maintenance plan.
(ii) Discretionary control measures. As with discretionary control
measures for 8-hour NAAQS nonattainment/1-hour NAAQS nonattainment
areas, 1-hour NAAQS nonattainment/1-hour NAAQS maintenance areas will
retain the discretion to modify any discretionary control measures upon
a demonstration under section 110(l). We are not promulgating
regulatory text because sections 110(l) and 193 of the CAA govern such
SIP revisions.
(iii) Measures to address growth. We are adopting the approach we
proposed, but our rationale relies on the final rule's provision that
NSR under the 1-hour standard will no longer be a required
implementation plan element as of revocation of the 1-hour standard. If
an area has been redesignated to attainment for the 1-hour standard as
of the effective date of the 8-hour nonattainment designation and is no
longer required to implement a nonattainment NSR program, the area will
not be required to revert back to the program it had for purposes of
the 1-hour ozone standard.
As noted elsewhere, NSR offset ratios and major stationary source
applicability provisions under the 1-hour standard are not being
defined as ``applicable requirements'' after the 1-hour standard is
revoked.
(iv) Planning SIPs. We are adopting the approach taken in the draft
regulatory text. In redesignating an area to attainment, EPA must
conclude that the area has met all requirements applicable under
section 110 and part D. Thus, maintenance areas do not have continuing
progress and attainment demonstration requirements.
c. Section 51.905(a)(3): 8-Hour NAAQS Attainment/1-Hour NAAQS
Nonattainment
(i) Mandatory control obligations. We are adopting an approach
consistent with our proposed rule. We have determined that mandatory
control obligations will no longer apply once an area attains the 8-
hour standard. Thus, because these areas are attaining the 8-hour
standard, the State may request that obligations under applicable
requirements be shifted to contingency measures once the 1-hour
standard is revoked, consistent with sections 110(l) and 193 of the
CAA. However, the State cannot remove the obligations from the SIP.
(ii) Discretionary control obligations. 8-hour NAAQS attainment/1-
hour NAAQS nonattainment areas will retain the discretion to modify any
discretionary controls upon a demonstration under section 110(l).
However, such controls must remain in the SIP as contingency measures.
(iii) Measures to address growth. We are adopting the approach we
set forth in our proposed rule for this category of areas. After the 1-
hour standard is revoked, the CAA requires such areas to comply with
prevention of significant deterioration (PSD), not NSR.
(iv) Planning SIPs. We are adopting our proposal with some
modification. An area of this category will not be required to develop
and submit outstanding attainment demonstration and ROP plans for the
1-hour standard for so long as the area continues to maintain the 8-
hour NAAQS. However, if the area violates the 8-hour NAAQS prior to
having an approved 8-hour maintenance plan under section 110(a)(1), the
area will be required to submit a SIP revision to address outstanding
ROP and attainment demonstration plans.
(v) Maintenance plans for the 8-hour NAAQS. We are adopting the
approach we proposed. Areas that are either 8-hour NAAQS attainment/1-
hour NAAQS nonattainment or 8-hour NAAQS attainment /1-hour NAAQS
maintenance must adopt and submit a maintenance plan consistent with
section 110(a)(1) within 3 years of designation as attainment for the
8-hour NAAQS. The maintenance plan should provide for continued
maintenance of the 8-hour standard for 10 years following designation
for the 8-hour NAAQS and should include contingency measures.
d. Section 51.905(a)(4): 8-Hour NAAQS Attainment/1-Hour NAAQS
Maintenance
In the final rule, we created a section 51.905(a)(4) to apply to
this category of areas. It covers obligations in an approved SIP and
maintenance plans similar in manner to areas that are attainment for
the 8-hour standard and were attainment for the 1-hour standard and had
a maintenance plan.
3. For How Long Do These Obligations Continue To Apply?
We are adopting Option 2--control obligations an area is required
to retain in the approved SIP for an area's 1-hour classification must
continue to be implemented under the SIP until the area attains and is
redesignated to attainment for the 8-hour NAAQS. At that time, the
State may relegate such controls to the contingency measure portion of
the SIP if the State demonstrates in accordance with section 110(l)
that doing so will not interfere with maintenance of the 8-hour NAAQS
or any other applicable requirement of the CAA. If at the time the area
is redesignated to attainment for the 8-hour standard the State has an
outstanding obligation to adopt a control requirement under the 1-hour
standard, it remains obligated to do so, but may adopt it as a
contingency measure.
4. Which Portions of an Area Designated for the 8-Hour NAAQS Remain
Subject to the 1-Hour NAAQS Obligations?
The final rule incorporates most aspects of the approach as that
contained in the proposal and in the draft regulatory text. The final
rule provides that only the portion of the designated area for the 8-
hour NAAQS that was designated nonattainment for
[[Page 23956]]
the 1-hour NAAQS is required to comply with the planning obligations,
except in one circumstance: if the State elects to provide an early
increment of progress or an early 8-hour attainment demonstration in
lieu of an outstanding 1-hour attainment demonstration (for an 8-hour
NAAQS nonattainment/1-hour NAAQS nonattainment area under
51.905(a)(1)(ii)(B) and (C)), the increment of progress or early 8-hour
attainment plan must apply for purposes of the entire 8-hour
nonattainment area.
The final rule does not follow the approach in the proposal for the
maintenance plan requirement for 8-hour attainment areas. The
maintenance plans required for these areas must demonstrate maintenance
only for the area designated nonattainment for the 1-hour NAAQS at the
time of designation of the 8-hour standard.
5. What Obligations That Applied for the 1-hour NAAQS Will No Longer
Apply After Revocation of the 1-hour NAAQS for an Area?
We are revising the approach we set forth in our proposed rule. In
addition to the obligations noted in our proposal that would no longer
apply after the 1-hour NAAQS is revoked, we are also providing
clarification regarding the penalty obligations under sections
181(b)(4) and 185 of the CAA that apply in severe and extreme areas
that do not attain the 1-hour standard by the applicable attainment
date. The final rule also would not retain NSR under the 1-hour NAAQS.
The final rule provides that as of the effective date of revocation of
the 1-hour standard:
We will no longer make findings of failure to
attain the 1-hour standard and, therefore, (a) we will not reclassify
areas to a higher classification for the 1-hour standard based on such
a finding, and (b) areas that were classified as severe or extreme for
the 1-hour NAAQS are not obligated to impose fees as provided under
sections 181(b)(4) and 185 of the CAA under the 1-hour standard.
Areas will not be obligated to continue to
demonstrate conformity for the 1-hour NAAQS as of the effective date of
the revocation of the 1-hour NAAQS.
An area with an approved 1-hour maintenance plan
under section 175A of the CAA may modify the maintenance plan to remove
obligations related to developing a second 10-year maintenance plan for
the 1-hour NAAQS and the obligation to implement contingency measures
upon a violation of the 1-hour NAAQS.
NSR under the 1-hour NAAQS will no longer be a
required implementation plan element in areas that are 8-Hour NAAQS
nonattainment/1-Hour NAAQS nonattainment. Instead, NSR under the 8-hour
NAAQS will apply.
6. What Is the Continued Applicability of the NOX SIP Call
After Revocation of the 1-hour NAAQS?
We are adopting the approach we set forth in our proposed rule and
draft regulatory text. States must continue to adhere to the emission
budgets established by the NOX transport rules after the 1-
hour standard is revoked. States retain the authority to revise control
obligations they have established for specific sources or source
categories under the NOX SIP Call rule so long as the State
demonstrates consistent with section 110(l) that such modification will
not interfere with attainment of or progress toward meeting the 8-hour
NAAQS or any other applicable requirement of the CAA.
D. What Is the Required Timeframe for Obtaining Emissions Reductions to
Ensure Attainment by the Attainment Date?
We are adopting the approach we set forth in our proposed rule,
namely that emissions reductions needed for attainment must be
implemented by the beginning of the ozone season immediately preceding
the area's attainment date.
V. EPA's Final Rule
A. How Will EPA Reconcile the Classification Provisions of Subparts 1
and 2? How Will EPA Classify Nonattainment Areas for the 8-hour NAAQS?
(Section VI.A. of Proposal; See 68 FR 32811; Section 51.902 of Draft
and Final Rules)
1. Background
a. Statutory framework and Supreme Court decision. The CAA contains
two sets of requirements--subpart 1 and subpart 2--that establish
requirements for State plans implementing the ozone NAAQS in
nonattainment areas. (Both are found in title I, part D.) Subpart 1
contains general, less prescriptive, requirements for SIPs for
nonattainment areas for any pollutant--including ozone--governed by a
NAAQS. Subpart 2 provides more specific requirements for ozone
nonattainment SIPs.\5\
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\5\ State Implementation Plans; General Preamble for the
Implementation of Title of the CAA Amendments of 1990; Proposed
Rule.'' April 16, 1992 (57 FR 13498 at 13501 and 13510).
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When we promulgated the 8-hour ozone NAAQS on July 18, 1997, we
indicated that we anticipated that States would implement the 8-hour
NAAQS under the less prescriptive subpart 1 requirements. More
specifically, we concluded that the CAA required areas designated
nonattainment for the 1-hour ozone NAAQS to remain subject to the
subpart 2 requirements for purposes of the 1-hour NAAQS until such time
as they met that NAAQS (62 FR 38872). We also stated that those areas
and all other areas would be subject only to subpart 1 for purposes of
planning for the 8-hour ozone NAAQS. We determined not to immediately
revoke the 1-hour NAAQS for all areas but to promulgate a rule (40 CFR
50.9(b)) providing that the 1-hour NAAQS and the associated designation
would no longer apply to an area once EPA determined the area had
attained the 1-hour NAAQS. Thus, areas that had not yet attained the 1-
hour NAAQS retained their designation for that NAAQS and remained
subject to the control obligations associated with their classification
for the 1-hour NAAQS until they met it.
In February 2001, the Supreme Court ruled that the statute was
ambiguous as to the relationship of subparts 1 and 2 for purposes of
implementing the 8-hour NAAQS. Whitman v. American Trucking
Associations, 531 U.S. 457, 481-86 (2001). The Court concluded,
however, that the implementation approach set forth in the final NAAQS
rule, which provided no role for subpart 2 in implementing the 8-hour
NAAQS, was unreasonable. Id. Specifically, with respect to classifying
areas, the Supreme Court stated: [D]oes subpart 2 provide for
classifying nonattainment ozone areas under the revised standard? It
unquestionably does.'' Whitman, 531 U.S. at 482.
Despite recognizing that the classification provisions of subpart 2
(section 181(a)) apply for purposes of the 8-hour NAAQS, the Supreme
Court also recognized that the subpart 2 classification scheme does not
entirely fit with the revised 8-hour NAAQS and left it to EPA to
develop a reasonable resolution of the roles of subparts 1 and 2 in
classifying areas for and implementing a revised ozone NAAQS. Id. at
482-486.
In particular, the Court noted three portions of section 181--the
classification provision in subpart 2--that it indicated were ``ill-
fitted to implementation of the revised standard.'' Id. at 483.
First, the Court recognized that ``using the old
1-hour averages of ozone levels * * * as subpart 2 requires * * * would
produce at best an inexact estimate of the new 8-hour averages * * *''
Id.
[[Page 23957]]
Second, the Court recognized that the design
values in Table 1 is based on the level of the 1-hour NAAQS (0.12 ppm)
and noted that ``to the extent the new ozone standard is stricter than
the old one, * * * the classification system of Subpart 2 contains a
gap, because it fails to classify areas whose ozone levels are greater
than the new standard (and thus nonattaining) but less than the
approximation of the old standard codified by Table 1.'' Id.
Third, the Court recognized that ``Subpart 2's
method for calculating attainment dates--which is simply to count
forward a certain number of years from November 15, 1990 * * * seems to
make no sense for areas that are first classified under a new standard
after November 15, 1990.'' More specifically, the Court recognized that
attainment dates for marginal (1993), moderate (1996), and serious
(1999) areas had passed. Id. at 483-484.
b. EPA's proposed rule and notice reopening the comment period. In
light of the Supreme Court's ruling, we examined the statute to
determine the manner in which the subpart 2 classifications should
apply for purposes of the 8-hour ozone NAAQS. We paid particular
attention to the three portions of section 181 that the Supreme Court
noted were ill-fitted for implementation of the revised 8-hour NAAQS.
We examined those provisions in light of the legislative history and
the overall structure of the CAA to determine what Congress intended
for purposes of implementing a revised, more stringent ozone NAAQS.
On June 2, 2003 (68 FR 32802), we issued a proposed rule which
identified two options for classifying areas for the 8-hour ozone
NAAQS. Under Option 1 (68 FR 32812), we proposed to classify 8-hour
ozone nonattainment areas according to the severity of their ozone
pollution based on 8-hour design values.\6\ Because the subpart 2
classification table is based on 1-hour design values, we proposed to
translate the classification thresholds in Table 1 of section 181 to 8-
hour design values. Under this option, all 8-hour nonattainment areas
would be classified under subpart 2 as marginal, moderate, serious,
severe or extreme.
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\6\ The design value of an area is based on the monitor for the
area recording the highest ozone levels and indicates whether the
area is violating or meeting the ozone NAAQS. For the 1-hour ozone
NAAQS, the design value for an area is generally the 4th highest
monitored ozone level at the monitor over a 3-year period. See 40
CFR part 50, appendix H and Memorandum of June 18, 1990 from William
G. Laxton re ``Ozone and Carbon Monoxide Design Value
Calculations.'' Available at http://www.epa.gov/ttn/naaqs/ozone/ozonetech/laxton.htm. For the 8-hour ozone NAAQS, the design value
is the average of each yearly 4th highest reading at a monitor over
a 3-year period. See 40 CFR part 50, appendix I.
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Under Option 1, the threshold for the marginal classification would
be an 8-hour design value of 0.085 ppm. Each of the 8-hour
classification thresholds would be the same percentage above the 8-hour
NAAQS as the corresponding statutory 1-hour threshold is above the 1-
hour NAAQS. For example, since the statutory 1-hour ozone level for the
moderate classification is 15 percent above the 1-hour NAAQS, the 8-
hour ozone level for the moderate classification would be 15 percent
above the 8-hour NAAQS.
The EPA developed a second option designed to provide States with
greater flexibility on the measures included in their plans for meeting
the 8-hour NAAQS. Under Option 2 (68 FR 32812), which we indicated was
our preferred option, we proposed a two-step system for determining
classifications for areas. We proposed as a first step, to divide areas
into two groups based on each area's current 1-hour ozone design value.
In accordance with the portion of the Supreme Court decision which
indicated that there was no gap in the statute for those areas with a
1-hour design value above 0.121 ppm--the lowest level in Table 1 in
section 181(a)--we proposed that areas with a current (i.e., determined
at the time of designation) 1-hour ozone design value greater than or
equal to 0.121 ppm would be classified under subpart 2 for the 8-hour
NAAQS. For areas with a 1-hour design value less than 0.121 ppm, i.e.,
those areas the Court stated fell into the gap, we concluded that we
must make a reasonable determination whether they should be covered
under subpart 1 or subpart 2. We proposed that all of these areas would
be covered under subpart 1. For the areas that did not fall into the
gap and which must be classified under subpart 2, we proposed to
classify them based on our translation of Table 1 in section 181(a), as
described under Option 1.
We received a large number of comments on the classification
options that we proposed, including recommendations for other
approaches, most of which were variations on the options we proposed.
On October 21, 2003 (68 FR 60054), we reopened the comment period on
the proposed rule for 15 days to provide the public with an opportunity
for additional comment on alternative approaches for classifying areas
for the 8-hour ozone NAAQS that were suggested during the comment
period. We also included two alternative strategies (Alternatives A and
B) for classifying areas that EPA developed by combining ideas
suggested by different commenters during the initial comment period.\7\
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\7\ The notice also solicited comment on additional issues that
would arise if we selected one of the approaches identified in the
notice reopening the comment period: (1) Whether we should modify
the 5 percent reclassification feature of section 181(a)(4) of the
CAA if we change our classification scheme to have a narrower range
for each classification; (2) whether we should adopt the suggestion
by commenters on the June 2, 2003 proposal that we change the 1-hour
ozone threshold to 0.125 ppm rather than 0.121 ppm to determine if
an area falls into subpart 1 vs. subpart 2 under classification
Option 2; and (3) whether an adjustment other than 50 percent would
be more appropriate for narrowing the range of each classification.
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Alternatives A and B were designed to place more areas in higher
classifications, which would provide areas with more time to attain but
would impose additional mandatory control requirements. These
alternatives also were designed to avoid or reduce instances in which a
subpart 1 area could have higher 8-hour ozone levels than a subpart 2
area.
Alternative A would classify areas solely on the basis of 8-hour
design values. The key feature of this alternative was that EPA would
create a classification table of 8-hour values starting from an 8-hour
design value that, to the extent possible, would be approximately
equivalent to the 1-hour design value of 0.121 ppm in Table 1. Thus,
the lowest level in the regulatory table was the 8-hour approximation
of the 1-hour NAAQS as suggested by commenters, i.e., 0.091 ppm. Areas
with an 8-hour design value less than 0.091 ppm would be covered under
subpart 1. Areas with an 8-hour design value at or above this level
would be classified under subpart 2. To place areas in higher
classifications, we narrowed the range for each classification to use
50 percent (instead of 100 percent) of the percentages that the
classification thresholds were above the 1-hour NAAQS in our proposed
June 2003 translation of Table 1. In other words, since the moderate
threshold for the 1-hour NAAQS is 15 percent above the 1-hour NAAQS, we
would adjust the moderate threshold for purposes of the 8-hour NAAQS to
be 7.5 percent above 0.091 ppm (the lowest level in Table 1 for
Alternative A).
Alternative B, a modified version of Option 2, retained the first
step of Option 2, where we divide the areas based on their current 1-
hour design value. As in Option 2, areas with 1-hour design values
exceeding the statutory 0.121 ppm level would be regulated under
subpart 2. In addition, any ``gap'' area (i.e., those with a 1-hour
design value less than 0.121 ppm) with a moderate-level (or higher)
design value would be classified under subpart 2. All
[[Page 23958]]
other gap areas would be covered by subpart 1. As with Alternative A,
to place subpart 2 areas in higher classifications, we narrowed the
range for each classification to 50 percent of the range in Table 1 of
section 181. In other words, the moderate threshold would be 7.5
percent above the 8-hour NAAQS (0.085 ppm).
2. Summary of Final Rule
After considering all of the comments that were submitted, we are
adopting Option 2. Each area with a current 1-hour design value at or
above 0.121 ppm (the lowest 1-hour design value in Table 1 of subpart
2) will be classified under subpart 2 based on its 8-hour design value.
All other areas will be covered under subpart 1 using their 8-hour
design values.
In brief, this approach works as follows:
First, we will determine which 8-hour areas will
be covered under subpart 2 and which under subpart 1. Any area with a
1-hour ozone design value (at the time of designation) that meets or
exceeds the statutory level of 0.121 ppm that Congress specified in
Table 1 of section 181 will be classified under subpart 2 and will be
subject to the control obligations associated with its
classification.\8\ Any area with a 1-hour design value (at the time of
designation) that is below the level of 0.121 ppm will be covered under
subpart 1 and subject to the control obligations in section 172.
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\8\ In the Phase 2 rule, we will address the control and
planning obligations that apply to areas under both subpart 1 and
subpart 2.
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Second, subpart 2 areas will be classified as
marginal, moderate, serious, severe or extreme based on the area's 8-
hour design value (at the time of designation). Since Table 1 of
section 181 is based on 1-hour design values, and application of the
Table as written would produce absurd results, we are promulgating a
regulation translating the thresholds in Table 1 of section 181 from 1-
hour values to 8-hour values. (See Table 1 ``Classification for 8-Hour
NAAQS for Areas Subject to Section 51.902(a)'' in section 51.903.)
Third, in accordance with section 181(a)(4) and
181(b)(3), the State may request a lower or higher classification.
Finally, as described in more detail below,
section 172(a)(1) provides EPA with discretion whether to classify
areas under subpart 1 and we are creating one classification--for
qualifying areas affected by overwhelming transport. All other areas
covered under subpart 1 will not be classified.
a. Why did EPA select Option 2? The EPA carefully considered the
many comments we received on classification options and, in fact,
sought additional input on alternatives presented and developed
pursuant to comments received on the June 2003 proposal. The commenters
were deeply divided on the merits of the options. Even after the
conclusion of the October 2003 comment period, most commenters still
favored Option 2 or Option 1. Only a few favored either Alternative A
or Alternative B. Those commenters who suggested alternatives to Option
1 or Option 2 during the initial 60-day comment period did not support
Alternatives A and B (which blended several suggestions from the
initial comments) and they remained convinced that their suggested
approach was the best classification approach.
Because the commenters were strongly divided over the appropriate
classification approach, EPA re-examined the various alternatives in
light of their consistency with the CAA, as interpreted by the Supreme
Court, and their consistency with EPA's stated goals. While EPA
believes that Options 1 and 2 and Alternatives A and B are all legally
supportable under the CAA, we concluded that Option 2 best fits with
the policy goals enunciated by EPA in the proposal and re-affirmed
here. Thus, EPA has selected Option 2. We explain below why Option 2
will best accomplish the policy goals of EPA and why we believe it is
consistent with the CAA.
(i) Why will Option 2 best accomplish the policy goals of EPA? One
of EPA's stated goals at proposal was to provide flexibility to States
and Tribes on implementation approaches and control measures within the
structure of the CAA. As compared with the other alternatives
considered, Option 2 places more areas under the more flexible
provisions of the CAA (subpart 1), which will provide the States and
Tribes with greater discretion in determining the mix of controls
needed to expeditiously attain the 8-hour NAAQS. For example, Option 1
would place all areas under subpart 2, which mandates a number of
specific control measures, thus limiting the States and Tribes ability
to consider whether there are more effective and less costly ways to
achieve the same level of emission reductions.\9\ For example, an area
might be able to achieve greater air quality improvement at less cost
from local NOX reductions than from local volatile organic
compounds (VOC) reductions of 15 percent mandated for certain subpart 2
areas. This will enable some areas to meet the 8-hour NAAQS at less
cost than under the other classification options because the States and
Tribes will have greater flexibility in determining which control
requirements to adopt to meet the NAAQS. Because areas are required to
attain the NAAQS as expeditiously as practicable under both subpart 1
and subpart 2, Option 2 should not result in longer attainment periods
than Option 1, with the exception of areas significantly affected by
transported pollution (discussed below).
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\9\ Similarly, Alternatives A and B would result in fewer areas
being placed under subpart 1. (See 68 FR 60060, Table 2. October 21,
2003).
---------------------------------------------------------------------------
Additionally, placing some areas in subpart 1 provides States and
EPA with greater flexibility to determine appropriate controls for
areas that would have difficulty attaining the 8-hour NAAQS due to
interstate pollution transport. In the 13 years since the CAA
Amendments of 1990 were enacted (at which time, Congress created
subpart 2), we have learned much about the long-range transport of
ozone and the importance of employing regional controls in addition to
local controls. Subpart 2 does not allow EPA and the States to consider
transported pollution in determining the feasibility and benefits of
mandated controls or in determining the appropriate attainment date for
an area. Because of our increased understanding of transported
pollution since Congress enacted the more restrictive provisions of
subpart 2, we believe it makes sense to adopt an approach that does not
shift ``gap'' areas into subpart 2. In other words, where Congress has
not explicitly mandated that areas are subject to subpart 2, we don't
believe it makes sense to adopt an approach that would shift some or
all of those ``gap'' areas to subpart 2, which provides significantly
less flexibility for bringing areas affected by transported pollution
into attainment. (We discuss in more detail the flexibility provided by
subpart 1 and how it better allows consideration of the current
scientific knowledge regarding ozone formation and transport in the
section below discussing why we place all of the ``gap'' areas in
subpart 1.)
The EPA recognizes that the flexibility of Option 2 comes with some
added complexity. One of EPA's stated goals was to establish an
approach that is easy to understand. While Option 1 (classifying all
areas under subpart 2) is simpler, we believe our goals regarding
flexibility outweigh the simplicity of Option 1.
Another of EPA's stated aims at proposal was to ensure expeditious
but reasonable attainment dates for the 8-hour NAAQS. The EPA believes
that Option 2 is consistent with this
[[Page 23959]]
principle. Compared to Alternatives A and B, Option 2 will place more
areas in lower classifications with shorter maximum attainment dates,
encouraging expeditious attainment. While some commenters believed that
maximum attainment dates under Option 2 would not allow enough time for
some areas to meet the NAAQS, we believe that Option 2 provides
sufficient time for most areas and that to the extent some areas may
have difficulty, the CAA provides an avenue for relief, which is
discussed below.
Based on information concerning the hypothetical nonattainment
areas,\10\ \11\ we are confident that under Option 2 most areas
currently exceeding the 8-hour NAAQS will be able to meet the NAAQS
within the time limits provided for their classification, taking into
consideration projected improvements in air quality under current
programs and the potential for adoption of further national, regional
and local measures.
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\10\ Revised: Background Information Document, Hypothetical
Nonattainment Areas for Purposes of Understanding the EPA Proposed
Rule for Implementing the 8-Hour Ozone National Ambient Air Quality
Standard in Relation to Re-Opened Comment Period--Illustrative
Analysis Based on 2000-2002 Data. U.S. Environmental Protection
Agency, Office of Air and Radiation, Office of Air Quality Planning
and Standards. Draft. October 2003. Available at: http://www.epa.gov/ttn/naaqs/ozone,o3imp8hr/.
\11\ Qualitative Assessment of Alternative Coverage and
Classification Options. First Addendum to ``Cost, Emission
Reduction, Energy, and Economic Impact Assessment of the Proposed
Rule Establishing the Implementation Framework for the 8-hour,
0.08ppm Ozone National Ambient Air Quality Standard.'' Prepared by
Innovative Strategies and Economics Group, Air Quality Strategies
and Standards Division, Office of Air Quality Planning and
Standards, Office of Air and Radiation, U.S. Environmental
Protection Agency, Research Triangle Park, North Carolina. April 8,
2004.
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EPA notes that there are uncertainties at this time about the time
periods needed for attainment, especially for the limited number of
areas needing substantial emissions reductions to attain. For example,
it is difficult to determine in advance of State development of
attainment plans when such an area will be able to attain the NAAQS.
These plans are based on high-resolution local air quality modeling,
refined emissions inventories and detailed analyses of the impacts and
costs of potential local control measures.
Another factor is that new methods of achieving cost effective
emissions reductions are continuing to be developed. Our repeated
experience over the past three decades is that market forces stimulated
by the CAA have repeatedly led to technological advances and learning
through experience, making it possible over time to achieve greater
emissions reductions at lower costs than originally anticipated.\12\
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\12\ For instance, the cost of selective catalytic reduction
(SCR) catalyst (for control of NOX) has gone from
$11,000--$14,000/cubic meter in 1998 to $3,500--$5,500/cubic meter
currently. Advancements in low NOX burner (LNB)
technology and staged combustion have resulted in sharp
NOX reductions at much lower costs. New burner
technologies have lowered NOX emissions reductions by as
much as 50 percent from previous designs. Costs have decreased from
$25-38/kW in 1993 to about $15/kW in 2003. Memorandum of October 10,
2003 from Jim Staudt, Andover Technology Partners, Re: Prime
Contract 68-W-03-028; Subcontract Agreement 23BL00114; ATP Contract
:C-03-007.
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Other uncertainties reflect use of the most recent three years of
air quality data for the actual designations and classifications, and
use of more refined and area-specific modeling methodologies for
projecting future ozone concentrations.
Regarding the use of later air quality data, we have interpreted
the CAA's requirements under section 181 such that we must classify
nonattainment areas that are covered under subpart 2 based on the most
recent ozone design values, which are based on three years of data.
Because of year-to-year variations in meteorology, this ``snapshot in
time'' may not be representative of the normal magnitude of problems
that a number of areas face.
Regarding modeling methodologies, national/regional modeling may
indicate that a number of moderate areas may face difficulty attaining
the standard by the maximum attainment date required for an area's
classification. However, when a State using photochemical grid modeling
predicts concentrations that are above the NAAQS after application of
SIP controls, an optional weight of evidence determination which
incorporates, but is not limited to, other analyses, such as air
quality and emissions trends, may be used to address uncertainty
inherent in the application of photochemical grid models. (Issues
related to implementation of the standard--including issues on the
attainment demonstration and modeling--will be addressed in the second
phase of rulemaking.)
We are aware that some 8-hour nonattainment areas in the Eastern
U.S. that are classified moderate using 2001-2003 air quality data will
have difficulty attaining the NAAQS by the attainment date of 2010 (6
years after designation). We encourage States to request
reclassification upward where the State finds that an area may need
more time to attain than their classification would permit. In
addition, EPA will consider bumping up areas subject to the five
percent provision of section 181(a)(4) of the CAA on our own initiative
where there is evidence that an area is unlikely to attain within the
period allowed by their classification. The rulemaking that sets forth
designations and classifications for the 8-hour standard discusses
criteria we would use if we take this action.
If a State finds during the attainment planning process that
feasible controls are not available and an area may need more time to
attain the 8-hour NAAQS than their classification would permit, the
statute provides a remedy. A State can receive more time to attain by
voluntarily submitting a request to EPA for a higher classification.
Section 181(b)(3) of the CAA directs EPA to grant a State's request for
a higher classification and to publish notice of the request and EPA's
approval. Although the area would have to meet the additional
requirements for the higher classification, the same would be true if
the area had been initially classified higher, under a system that
placed more areas in higher classifications. Voluntary reclassification
may be an attractive option if the State is unable to develop a plan
that demonstrates an area will attain within the time period for its
assigned classification. Some commenters were concerned that it may be
difficult to develop support for a voluntary reclassification among
interested parties. However, we believe such dialogue will lead the
State to undertake a thorough analysis and balancing of how
expeditiously the area can attain the NAAQS and the cost of the
measures needed for attainment as these issues will be foremost in the
stakeholders' minds.
The EPA prefers Option 2 rather than the alternatives that place
more areas into higher classifications because in addition to providing
a longer maximum timeframe in which to attain, the higher
classifications impose additional statutorily-mandated requirements.
While the additional requirements might be appropriate for areas that
truly need the longer period to attain, it is likely that a number of
areas that do not need a longer period to attain would also be placed
in a higher classification under these alternatives. For example,
several areas that would be covered by subpart 1 under Option 2, and
which EPA projects are likely to attain the 8-hour levels NAAQS within
3 years based on existing programs, would be classified
[[Page 23960]]
as moderate areas under Alternative B.\13\ In those areas, the
additional moderate-area control requirements are unlikely to be needed
for expeditious attainment.
The EPA believes that under any of the classification approaches
that were considered there will be areas that are ``misclassified''--
i.e., the classification will not reflect the time the area needs to
attain and the level of controls needed. The statute does not allow EPA
to reclassify an area to a lower classification, except as provided in
section 181(a)(4) regarding an initial 5 percent adjustment. It does,
however, as described above, provide continuing authority for areas to
be reclassified to a higher classification. For that reason, EPA
believes the better approach is to use a scheme that may classify areas
too low and areas that need more time to attain can use the voluntary
reclassification provision of the CAA to obtain the appropriate
classification.
---------------------------------------------------------------------------
\13\ Revised: Background Information Document, Hypothetical
Nonattainment Areas for Purposes of Understanding the EPA Proposed
Rule for Implementing the 8-hour Ozone National Ambient Air Quality
Standard in Relation to Re-Opened Comment Period--Illustrative
Analysis Based on 2000-2002 Data. U.S. Environmental Protection
Agency, Office of Air and Radiation, Office of Air Quality Planning
and Standards. Draft. October 2003. Available at: http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/.
---------------------------------------------------------------------------
(ii) How is Option 2 consistent with the CAA as Interpreted by the
Supreme Court? The legal framework for Option 2 is described in detail
in the June 2, 2003 proposed rule (68 FR 32813). In short, EPA relies
on the Supreme Court's recognition that there is a gap in the statute
with respect to areas ``whose ozone levels are greater than the new
standard (and thus not attaining) but less than the approximation of
the old standard codified by Table 1.'' Thus, for areas with a 1-hour
design value above the level codified in Table 1, EPA interprets the
Supreme Court as determining that the CAA mandates that they be
classified under subpart 2. For all other areas, the Court indicates
there is a gap and EPA must determine a reasonable approach for
classifying these areas. Option 2 is consistent with the CAA as
interpreted by the Supreme Court because it places all areas with a 1-
hour design value of 0.121 ppm or greater in subpart 2 and, for the
reasons provided below, EPA's decision to classify all ``gap'' areas
under subpart 1 is reasonable.
As we noted in the June 2, 2003 proposal (68 FR 32814), when faced
with a similar issue following enactment of the CAA Amendments of 1990,
we determined that areas that Congress did not mandate fall into the
classification scheme of subpart 2 should be subject to only the
planning obligations of subpart 1.\14\ We believe it is appropriate to
continue that interpretation of the CAA for 8-hour ozone areas--despite
the fact that a significant number of areas designated nonattainment
for the 8-hour NAAQS will fall into this group. This decision is
reasonable because subpart 2 was developed by Congress 13 years ago and
our scientific understanding of the causes of ozone pollution and the
transport of ozone and its precursors has significantly advanced. In
addition, subpart 1 was developed at the time that the 1-hour NAAQS was
the NAAQS of concern. At that time, many areas had a long-term ozone
problem that they had been unable to solve under the more flexible pre-
1990 provisions of the CAA. The 8-hour NAAQS is different in many ways
from the 1-hour NAAQS. Moreover, the areas that will be subject to
subpart 1 are primarily areas that have not had the long-term pollution
problem that Congress was concerned about when it created subpart 2.
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\14\ These areas included: (a) The transitional areas under
section 185A (areas that were designated as an ozone nonattainment
area as of the date of enactment of the CAA Amendments of 1990 but
that did not violate the 1-hour ozone NAAQS between January 1, 1987,
and December 31, 1989); (b) nonattainment areas that had incomplete
(or no) recent attaining data and therefore could not be designated
attainment; and (c) areas that were violating the 1-hour ozone NAAQS
by virtue of their expected number of exceedances, but whose design
values were lower than the threshold for which an area can be
classified under Table 1 of subpart 2 (submarginal areas). See 57 FR
13498 at 13524 col. 3 et seq. (April 16, 1992).
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Congress enacted subpart 2 with the understanding that all areas
(except marginal areas, for which few, if any, controls for existing
sources were required) would have to employ additional local controls
to meet the 1-hour ozone NAAQS in a timely fashion. Since then, many
local, regional and national control measures have been implemented,
our understanding of the importance of interstate pollution transport
has improved, and we have promulgated interstate NOX
transport rules to address transported pollution (the NOX
SIP call, October 27, 1998, 63 FR 53756). Today, regional modeling by
EPA indicates that the majority of potential 8-hour nonattainment areas
that fall into the gap will attain the 8-hour NAAQS by 2007 based on
reductions from the NOX SIP Call, the Federal Motor Vehicle
Emissions Control Program, and other existing Federal and State control
measures, without further local controls.
Some gap areas would be classified as moderate areas if placed
under subpart 2. The EPA regional modeling shows that many of these are
projected to attain by 2007 through existing regional or national
measures. (The proposal provides estimates of the numbers of areas, see
68 FR 32814, col. 3).\15\ If these areas were to be classified as
moderate, they would be required to implement statutorily specified
controls for moderate areas. We believe it is reasonable to adopt an
approach that would not mandate new local controls in areas projected
to meet the NAAQS within 3 years through emissions reductions required
by existing programs.
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\15\ See also: Background Information Document, Hypothetical
Nonattainment Areas for Purposes of Understanding the EPA Proposed
Rule for Implementing the 8-hour Ozone National Ambient Air Quality
Standard. Illustrative Analysis Based on 1998-2000 Data. U.S.
Environmental Protection Agency, Office of Air and Radiation, Office
of Air Quality Planning and Standards, Draft, April 2003. Available
at: http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/.
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Some commenters contended that placing these areas in subpart 1
created an ``equity'' problem because other areas with a similar 8-hour
ozone design value would be placed under subpart 2. The EPA considered
this issue when it reopened the comment period and set forth
alternatives that would have placed areas with similar 8-hour design
values in the same classification. While in one light such a situation
may be perceived as inequitable, EPA believes that this is generally
not the case. As an initial matter, EPA notes that the areas that fall
under subpart 2 are areas with higher ozone 1-hour peak
concentrations--i.e., areas with levels above the 1-hour NAAQS.\16\
Thus, the areas classified under subpart 1 do not have the same type of
ozone problem as those classified under subpart 2 and the same control
programs may not be needed for both types of areas. We note that the
areas that will be classified under subpart 2 are the type of area that
Congress considered at the time that it developed subpart 2 and it is
more likely that subpart 2 will provide benefits for these areas. We
also note that in the proposed rule, we proposed several ways to make
the obligations under subpart 1 similar to those under subpart 2 for
areas with a similar ozone problem. Thus, there are other means to
address any inequities; EPA will
[[Page 23961]]
consider equity and other factors in deciding control requirements for
subpart 1 areas in Phase 2.
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\16\ For instance, the range of 1-hour ozone design values of
the hypothetical subpart 1 areas is from 0.101 ppm to 0.120 ppm,
with an average of 0.111 ppm. The range of 1-hour design values of
subpart 2 areas is from 0.122 ppm to 0.175 ppm with an average of
0.133 ppm. See docket document OAR-2003-0079-0573 (REVISED:
Background Information Document, Hypothetical Nonattainment Areas
for Purposes of Understanding the EPA Proposed Rule for Implementing
the 8-hour Ozone NAAQS in Relation to Re-Opened Comment Period) for
the data used for these statistics.
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Most of the gap areas would be classified as marginal if classified
under subpart 2 by 8-hour design value.\17\ Because control
requirements for marginal areas are similar to those for subpart 1
areas, and because most of these areas are projected to attain within 3
years, the distinction in regulatory category may make no practical
difference for many of these areas. However, placing these areas under
subpart 1 provides States and EPA with greater discretion to handle
implementation difficulties that might arise in some of these areas.
For example, a gap area might be unable to attain within the maximum
attainment date for marginal areas (3 years after designation) because
of pollution transport from an upwind nonattainment area with a later
attainment deadline. In that event, subpart 2 would call for the area
to be reclassified as moderate and for the area to implement additional
local controls specified for moderate areas. For areas under subpart 1,
however, we could provide additional time for the area to attain while
the upwind sources implemented required controls if this were
determined to be a more effective or more appropriate solution.
Although regional modeling projections indicate that the NOX
SIP Call will bring most gap areas into attainment by 2007, some States
have voiced concern that interstate or intrastate pollution transport
may make timely attainment difficult for some 8-hour areas with near-
term attainment deadlines (e.g., 2007). Subpart 1 would provide States
and EPA with more flexibility on the remedy in any such cases, while
still requiring that subpart 1 areas adopt all reasonably available
control measures to attain as expeditiously as practicable.\18\ Some
may perceive the placement of gap areas in subpart 1 (based on their 1-
hour design values) as inequitable compared to placing other areas that
have similar 8-hour design values in subpart 2 (based on their 1-hour
design values). We do not believe, however, that it makes sense to
limit our authority by placing gap areas in subpart 2 even though they
may have 8-hour design values similar to areas that will be classified
under subpart 2.
---------------------------------------------------------------------------
\17\ Background Information Document, Hypothetical Nonattainment
Areas for Purposes of Understanding the EPA Proposed Rule for
Implementing the 8-hour Ozone National Ambient Air Quality Standard.
Illustrative Analysis Based on 1998-2000 Data. U.S. Environmental
Protection Agency, Office of Air and Radiation, Office of Air
Quality Planning and Standards, Draft, April 2003. Available at:
http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/.
\18\ Concern about transport is supported by EPA's modeling for
the Interstate Air Quality Rule (69 FR 4566, January 30, 2004); EPA
has proposed to find that in the absence of further controls, 25
States would significantly contribute to downwind nonattainment in
other States in 2010, even after the NOX SIP Call has
been in full effect. As a result, EPA has proposed to require the 25
States to reduce their emissions of NOX to reduce
interstate transport, with the reductions to be achieved by 2010 and
2015.
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An advantage of Alternatives A and B was that they avoided or
reduced equity concerns raised by some commenters with Option 2.
Regardless, we believe that equity considerations should not override
other considerations in determining how to best help areas attain the
8-hour NAAQS. Congress mandated that areas with 1-hour ozone levels
above the level 0.121 ppm be classified under subpart 2. However,
Congress did not specifically address the areas that fall into the
``gap.'' Where Congress has left to EPA's discretion how to classify
areas, we believe that factors we have considered above \19\ outweigh
any desire for ``equity.''
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\19\ These include trying to meet the following objectives as
discussed above: (a) Providing flexibility in determining the most
effective control; (b) achieving attainment at costs lower than
those for strategies with prescribed measures; (c) providing
flexibility in addressing nonattainment areas that are have
difficulty attaining due to transport; and (d) ensuring expeditious
but reasonable attainment dates.
---------------------------------------------------------------------------
Additionally, we note that since 1990 we have learned that
NOX control is more important for many areas than was
recognized at the time of the 1990 CAA Amendments. Some mandatory
measures in subpart 2, such as the 15 percent VOC reduction required
for certain areas, focus on VOC reductions. In some areas it will be
more effective and less costly to reduce ozone through a strategy that
places more emphasis on NOX than VOC, and a 15 percent VOC
reduction may not be part of an optimal strategy. Subpart 1 would allow
such areas greater flexibility on choice of controls.
In summary, Option 2 meets the policy goals EPA specified in the
proposal--most importantly, providing flexibility, and encouraging
expeditious attainment of the NAAQS--and is consistent with the Supreme
Court's ruling. Commenters were divided on the merits of different
classification approaches and no single option appealed to a large
majority of stakeholders. On balance, EPA determined that Option 2 was
preferable to the other options identified. Thus, EPA is adopting
Option 2.
3. Comments and Responses
This preamble briefly summarizes major comments on each portion of
the Phase 1 rule and generally provides a brief response to those
comments. The response to comment (RTC) document presents a more
complete description of comments received and a more complete response
to those comments.
Comment: The commenters were split on whether they preferred Option
1, under which all areas are classified under subpart 2 of the CAA, or
Option 2, under which 8-hour nonattainment areas with 1-hour ozone
design values of 0.121 ppm or greater at the time of designation are
classified under subpart 2 and all other 8-hour nonattainment areas are
classified under subpart 1. Those who supported Option 2, indicated it
made better policy sense, was more flexible and more appropriate than
Option 1, cost less, was better integrated with other regulations,
provided more reasonable attainment dates, and was more consistent with
the Supreme Court decision. A number of commenters supported Option 2,
but recommended variations of that approach. These commenters raised
one (or both) of two concerns with the approach recommended by EPA: (1)
Since most of the areas fall into the lower classifications with short-
term attainment dates, it does not provide sufficient time for many
areas to attain; and (2) since some areas classified under subpart 1
will have a more severe 8-hour ozone problem than some areas classified
under subpart 2, Option 2 is or may be perceived as inequitable. In
addition, several commenters recommended options different than either
of the options proposed by EPA.
Those who favored Option 1 argued that it was more consistent with
the Supreme Court's decision and the CAA, that Subpart 2 was more
likely to produce progress and faster attainment, was more consistent
with Subpart 2 of the CAA, was more equitable and fair, and that
Subpart 1 had other problems that made it less desirable.
Some commenters claimed both Options 1 and 2 were flawed, based on
concerns about transport and concerns related to the Supreme Court
decision. We received comments on the translation of Section 181's
Table 1. These comments addressed the concerns such as: the proposed
translation could result in attainment deadlines which are unrealistic
and unachievable; it would be more logical and more consistent with the
nature of the standard being implemented--the 8-hour standard--for EPA
to translate the Table 1 thresholds into approximate 8-hour
equivalents; and the starting threshold should be different from what
EPA proposed. Some commenters
[[Page 23962]]
offered other alternatives for the translation and/or the starting
threshold.
There were several specific comments related to the draft
regulatory text.
Our rationale for adopting Option 2 as the final classification
approach is presented above. Below is a brief synopsis of the response
to major comments.
Response to Comments Supporting Option 2: We generally agree with
these comments and the final rule incorporates Option 2.
Response to Comments that Supported Option 2, But Recommending
Variations That Would Provide More Time for Attainment: Based on our
projections of future air quality based on regional modeling and
experience with ozone control in the past, we believe that States may
find during the attainment planning process that a limited number of
areas may need more time to attain the 8-hour NAAQS than their
classification would permit. However, the statute provides a remedy for
this situation. A State can receive more time to attain by voluntarily
submitting a request to EPA for a higher classification--including the
classification they had under the 1-hour NAAQS. The CAA (Section
181(b)(3)) directs EPA to grant a State's request, and to publish
notice of the request and EPA's approval. Although the area would have
to meet the additional requirements for the higher classification, the
same would be true if the area had been initially classified higher,
under a classification system that placed more areas in higher
classifications. The EPA recognizes that voluntary reclassification is
a legitimate option under the CAA, and may be an attractive option if
the State is unable to develop a plan that demonstrates an area will
attain within the time period for its assigned classification. As noted
in the October 21, 2003 notice reopening the comment period, we
considered other classification approaches, including those suggested
by commenters and EPA's Alternatives A and B, which would provide more
areas with later attainment dates by placing more areas in higher
classifications. However, EPA found that alternatives that provided
more time to the areas with the worst ozone problems also provided
higher classifications, accompanied by additional statutorily-mandated
requirements, for areas that EPA believes may attain by the 2007 ozone
season based on projected emissions reductions from existing programs.
Under these approaches, these areas would be subject to controls that
may not be necessary for attainment. The EPA believes it is more
appropriate to use the statutory mechanism for a voluntary bump up for
areas classified ``too low'' than to mandate controls for areas based
on a classification that is ``too high.''
Response to Comments that Noted that Option 2 May Be Perceived as
Inequitable: A number of other commenters dismissed the
characterization of Option 2 as being inequitable. The EPA's response
to the equity issue is discussed above.
Response to Comments that Recommended Options Different than the
Options Proposed by EPA: Certain commenters suggested that areas still
not meeting the 1-hour NAAQS should continue to implement the 1-hour
NAAQS under subpart 2, but once the NAAQS is attained (or all mandated
controls were implemented) the area would implement the 8-hour NAAQS
under subpart 1. All areas attaining the 1-hour NAAQS would begin
implementing the 8-hour NAAQS under subpart 1.
As explained more fully in the response to comments (RTC) document,
EPA does not believe this approach is consistent with the CAA or the
Supreme Court's decision on implementation of a revised ozone NAAQS.
The issue before the Court was whether the classification provisions of
subpart 2 apply for purposes of implementing the revised 8-hour ozone
NAAQS. The Court unequivocally stated that those provisions do apply
for purposes of implementing the 8-hour ozone NAAQS. 531 U.S. 482-84.
We believe that any option that does not provide a role for the subpart
2 classification structure in implementing the 8-hour NAAQS is not
consistent with the Court's interpretation of the CAA.
Commenters suggested several other options, some of which were
described in our notice reopening the public comment period. Under one
of these options, we would reduce the range for the subpart 2
classifications, which would have classified more subpart 2 areas in
higher classifications, thereby extending the maximum period for
attainment. We have addressed the problems associated with that kind of
classification structure above. Under another of these options, the
classification structure would have relied solely on 8-hour ozone
design values. This approach was a variant of Option 2 in which all
areas with 8-hour design value of less than a value that is equivalent
to the 1-hour value of 0.121 ppm would be covered by subpart 1. This
variant of Option 2 has the effect of moving source areas from Subpart
1 to Subpart 2 and at the same time placing more Subpart 2 areas in
lower classification categories. The Subpart 2 areas placed in these
lower classification categories would be subject to fewer mandatory
requirements. However, EPA believes that this approach would increase
the number of areas for which the initial classification would not
provide sufficient time to attain.
The EPA's assessment of these and other options is included in the
RTC document.
Response to Comments that Favored Option 1 and Argued that it was
More Consistent with the Court Decision and the CAA: We believe Option
2 is a reasonable method for addressing the gaps that the Supreme Court
recognized in the CAA. Option 2 provides more flexibility than Option 1
to States and Tribes to design strategies to meet the 8-hour ozone
NAAQS in the most effective and least costly way considering local
circumstances, while requiring and providing incentives for expeditious
attainment of the health-based NAAQS. Since Option 1 would require all
8-hour nonattainment areas to be covered under subpart 2 with its set
of prescriptive control measures, it would generally cost more but
would not require attainment any more expeditiously than Option 2. Both
subpart 1 and 2 require attainment dates ``as expeditious as
practicable'' regardless of the maximum attainment dates specified in
the CAA.
We believe that Option 2 is consistent both with the CAA and the
Supreme Court's decision in Whitman as described above and in the June
2, 2003 proposed rule (68 FR 32813). In short, EPA relies on the
Supreme Court's recognition that there is a gap in the statute with
respect to areas ``whose ozone levels are greater than the new standard
(and thus not attaining) but less than the approximation of the old
standard codified by Table 1.'' Thus, for areas with a 1-hour design
value above the level codified in Table 1, EPA interprets the Supreme
Court as determining that the CAA mandates that they be classified
under subpart 2. For all other areas, the Court indicates there is a
gap and EPA must determine a reasonable approach. For the policy
reasons specified above, in the RTC and in the preamble to the proposed
rule (68 FR 32814-15), EPA believes it is reasonable to address these
``gap'' areas under subpart 1.
Response to Comments Asserting that EPA does not have Authority to
Modify Table 1 to Reflect 8-Hour Ozone Values: We disagree with those
commenters who claim EPA does not have authority to modify Table 1 in
section 181(a) to
[[Page 23963]]
reflect 8-hour design values. We acknowledge that EPA is applying the
statute other than in the way it is written. We believe we have
authority to do so because to apply it as written would produce absurd
results. In enacting the classification structure in subpart 2,
Congress linked the severity of an area's air quality problem with the
time needed to attain and the stringency of the controls that an area
would be required to adopt. Thus, areas with a more significant air
quality problem were granted more time to attain the NAAQS, but were
also subject to more stringent controls. If we applied Table 1, as
written, for purposes of the 8-hour NAAQS, the classification scheme
would not be related to the severity of the area's 8-hour ozone
problem.
If 1-hour values were used to classify 8-hour nonattainment areas
based solely on Table 1 as presented in section 181 of the CAA, there
would be 2 serious areas, 9 moderate areas, and 26 marginal areas.\20\
Unlike other areas, marginal areas (as explained elsewhere) are not
subject to the requirement for attainment plans to ensure that they
identify and adopt the controls necessary for attainment by their
attainment date. Based on EPA's modeling projections of future ozone
levels and past experience working with states on ozone SIPs, EPA
believes it is clear that most of the areas that would be marginal if
classified by 1-hour design value would fail to attain the 8-hour
standard without additional local controls by the spring 2007
attainment date for marginal areas. These include major cities with
elevated 8-hour ozone levels such as Chicago and Dallas-Fort Worth. In
fact, over a quarter of these areas that would be marginal if
classified by 1-hour design values were not projected to attain the 8-
hour NAAQS without additional local controls even by 2010. The
projection that many of these areas would not attain by 2010 without
additional controls is further evidence they would not attain in 2007
without further controls. Thus, for many areas, classifying by 1-hour
design value would not reflect the severity of their 8-hour ozone
problem or the time needed to attain.
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\20\ Based on data from: Revised: Background Information
Document, Hypothetical Nonattainment Areas for Purposes of
Understanding the EPA Proposed Rule for Implementing the 8-hour
Ozone National Ambient Air Quality Standard in Relation to Re-Opened
Comment Period--Illustrative Analysis Based on 2000-2002 Data. U.S.
Environmental Protection Agency, Office of Air and Radiation, Office
of Air Quality Planning and Standards. Draft. October 2003.
Available at: http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/.
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An additional problem is that the practical effect of placing many
areas that cannot attain by 2007 into the marginal classification would
be to delay development of plans for improving air quality to meet the
8-hour standard. This would be inconsistent with Congress's intent,
reflected in the requirements of the Act, that areas attain air quality
standards as expeditiously as practicable. Rather, Congress intended
classifications to approximate the attainment needs of areas. In this
circumstance, it is appropriate for EPA to make, by way of regulation,
a limited modification to Table 1 to reflect Congressional intent.
We recognize that even under the approach adopted by EPA, some of
the same anomalies will be created. For example, some areas may need
more time to attain than provided by the area's initial classification.
However, these anomalies are more limited because the classifications
more appropriately recognize an area's 8-hour ozone problem. As noted
above in our discussion on the basis for selecting Option 2, we believe
the statutory mechanisms such as voluntary bump ups can address these
inequities in the limited situations in which they arise. In
comparison, if 1-hour values were used to classify 8-hour nonattainment
areas based solely on Table 1 as presented in section 181 of the CAA,
there would only be 2 serious areas, 9 moderate areas, and 26 marginal
areas. This is a much different distribution than using Option 2, in
which there would be more areas in the higher classifications (1
severe-17, 4 serious, 21 moderate) and far fewer (11) marginal areas.
And, under the adopted approach, the distribution under subpart 2 is
based on the area's 8-hour design value not its 1-hour design
value.\21\
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\21\ Based on data from: Revised: Background Information
Document, Hypothetical Nonattainment Areas for Purposes of
Understanding the EPA Proposed Rule for Implementing the 8-hour
Ozone National Ambient Air Quality Standard in Relation to Re-Opened
Comment Period--Illustrative Analysis Based on 2000-2002 Data. U.S.
Environmental Protection Agency, Office of Air and Radiation, Office
of Air Quality Planning and Standards. Draft. October 2003.
Available at: http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/.
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Response to Comments Favoring Option 1 Arguing that Subpart 2 was
more Likely to Produce Progress and Faster Attainment: Other commenters
raised concerns that because subpart 1 is less prescriptive than
subpart 2 and potentially allows later attainment dates for the less
polluted areas, areas will not in fact attain the 8-hour NAAQS as
quickly under subpart 1 as they would be required to do under subpart
2. As evidence, these commenters point to the past failure of areas to
attain the ozone NAAQS prior to the enactment of subpart 2 in 1990. We
disagree.
Subpart 1 and subpart 2 both require areas to attain the 8-hour
ozone NAAQS as expeditiously as practicable. Thus, the intention of the
CAA is that regardless of whether an area is covered under subpart 1 or
subpart 2, it must achieve clean air on the same schedule-- i.e., as
expeditiously as practicable. In addition, CAA section 172(c)(1)
requires that a SIP for a nonattainment area ``* * * shall provide for
implementation of all reasonably available control measures [``RACM'']
as expeditiously as practicable * * * and shall provide for attainment
of the [NAAQS].'' In reviewing SIPs for approvability under subpart 1,
we will evaluate whether the emission control measures in the SIP and
the timing of implementation comports with the RACM and attainment
provisions to ensure all RACM are adopted and implemented as
expeditiously as practicable and that the attainment date is as
expeditious as practicable. Subpart 1 sets an initial outside
attainment date of 5 years following designation for the 8-hour NAAQS.
Subpart 2 sets the earliest outside attainment date as 3 years
following designation \22\ for marginal areas. Under subpart 2,
marginal areas are not required to submit attainment demonstrations
and, for all practical purposes, are not required to adopt additional
local controls for existing sources.\23\ Thus, in general, Congress
anticipated that these areas would come into attainment within 3 years
without significant additional local controls. We believe that most
areas covered under subpart 1 with air quality problems similar to
marginal areas will in fact come into attainment with the 8-hour
[[Page 23964]]
NAAQS on a similar timeframe as areas classified as marginal (i.e., 3
years following designation).\24\ In fact, we believe the prospects for
near-term attainment based on existing programs are more favorable now
than they were in 1990 because national and regional control programs
already in place will achieve substantial reductions in NOX
and VOC emissions prior to May 2007. These include the regional
NOX SIP Call, which mandates interstate transport controls
for certain States by May 31, 2004 (63 FR 53756, October 27, 1998);
progressively more stringent emissions standards for new cars and
light-duty trucks issued since 1990, most recently the Tier 2 motor
vehicle emission standards, and associated sulfur-in-gasoline
requirements (65 FR 6698, February 10, 2000); and the heavy duty diesel
rule (66 FR 5002, January 18, 2001).
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\22\ As provided below, in the section regarding attainment
dates for the 8-hour ozone NAAQS, subpart 2 actually specifies that
the attainment period runs from the date of the 1990 CAA Amendments
rather than the date of designation. However, as we explain in the
attainment date section, for purposes of 8-hour NAAQS, we believe
Congress intended those dates to run from the date of designation.
\23\ The only control obligations mandated for marginal areas
are that they fix flaws in their RACT rules and their I/M programs
that existed at the time of the 1990 CAA Amendments. Areas
designated nonattainment for the 1-hour NAAQS, which were the areas
with the pre-90 RACT and I/M obligations, have already made these
corrections. It is unlikely that any areas designated nonattainment
for the 8-hour NAAQS will not have already made these corrections if
they have such programs in place.
\24\ See 68 FR 32814.
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For areas covered under subpart 1 with an air quality problem
similar to subpart 2 moderate areas, the presumptive maximum attainment
date will be 1 year earlier--i.e., 5 years following designation rather
than 6 years. To receive a later attainment date, section 172(a)(2)(A)
requires such areas to demonstrate more time is needed based on the
severity of nonattainment and the availability and feasibility of
pollution control measures. As to the first factor--severity of
nonattainment--EPA believes that it would be difficult to justify
providing a period longer than 6 years since similar areas classified
under subpart 2 would not have a longer time to attain. Thus, such an
area would need to demonstrate that the availability and feasibility of
control measures (including those mandated under subpart 2) would
justify an extension longer than 6 years. A similar analysis would
apply if an area with an even more significant air quality problem were
covered under subpart 1. For this reason, we do not believe that public
health concerns support classifying all areas with similar air quality
under subpart 2.
4. Under the Final Classification Approach, How Will EPA Classify
Subpart 1 Areas? (Section VI.A.4. of Proposal; 68 FR 32813; Section
51.904 of Draft and Final Rules)
a. Background. Section 172(a)(1) provides that EPA has the
discretion to classify areas subject to subpart 1. We proposed two
options with respect to classifications for areas subject only to
subpart 1 (68 FR 32813). First, we proposed to create no
classifications. Second, we proposed to create one classification--an
interstate overwhelming transport classification for areas that submit
a modeled attainment demonstration showing the area's nonattainment
problem is due to overwhelming transport and that meet the definition
of a rural transport area under section 182(h) of the CAA. As we noted
in the June 2, 2003 proposal, the area would receive an attainment date
that is consistent with section 172(a)(2)(A), but that takes into
consideration the following:
The attainment date of upwind nonattainment
areas that contribute to the downwind area's problem; and
The implementation schedule for upwind area
controls, regardless of their geographic scope (e.g., national,
regional, statewide, local).
This option would partially address Tribal concerns about
designations where a Tribal area designated nonattainment does not
contribute significantly to its own problem. This is one of the key
issues for the Tribes who seek to have economic growth from new sources
within their jurisdiction but that have difficulty obtaining emission
reduction offsets from sources located either inside or outside Tribal
areas.
b. Summary of final rule. We are adopting the second option but
modified as a result of comments. We are creating an overwhelming
transport classification that will be available to subpart 1 areas that
demonstrate they are affected by overwhelming transport of ozone and
its precursors and demonstrate they meet the definition of a rural
transport area in section 182(h). However, areas would not have to
demonstrate that transport was due solely to sources from outside the
State (interstate transport) as was implied by the June 2, 2003
proposal. All other areas that do not qualify for the overwhelming
transport classification would not be classified. In addition, an area
may consider the effects of international transport of ozone and
precursors in determining if the area is affected by overwhelming
transport.
An overwhelming transport classification will accomplish several
purposes. One purpose is to communicate to the public the need for an
attainment date to account for the control timetable for upwind areas
whose emissions are overwhelmingly contributing to the area's
nonattainment problem. An area will be classified as an ``Overwhelming
Transport Area'' upon full approval of an attainment demonstration SIP
that demonstrates, using EPA-approved modeling, that the nonattainment
problem in the area is due to ``overwhelming transport,'' as set forth
in guidance. The area must also meet that part of the definition of a
rural transport area in section 182(h) that requires that an area not
be in or adjacent to a Consolidated Metropolitan Statistical Area
(CMSA).
In approving an attainment date for the area, EPA will consider:
(1) The attainment date of the upwind nonattainment area or areas that
contribute to the downwind area's problem; and (2) the implementation
schedule for upwind area controls, regardless of their geographic scope
(e.g., national, regional, statewide, local).
In the June 2003 proposal, we proposed that such areas would be
subject to requirements similar to those that apply to areas classified
as marginal under subpart 2. We are considering the comments we
received on the issue of applicable requirements for these subpart 1
areas and will address this issue after we issue guidance on assessment
of overwhelming transport.
In addition, the proposed rule also indicated that we could
consider more flexibility for conformity for such areas. In our
proposed transportation conformity rule published on November 5, 2003
(68 FR 62690), we did not propose any specific conformity flexibility
for areas affected by ozone transport. However, many of the proposed
options, including the types of emissions tests used in conformity,
would be available to areas affected by transport, as well as other
types of 8-hour ozone areas. In addition, the existing transportation
conformity rule already provides flexibility in such things as
transportation modeling requirements for smaller areas with less severe
local air quality problems. Also, EPA intends to propose in a few
months more flexible NSR provisions that would apply in such areas.
We believe the overwhelming transport classification for areas
covered under subpart 1 is consistent with the CAA and is reasonable.
We believe that the classification should be restricted to rural areas
because these areas will generally not have significant sources of
emissions to control and therefore are not likely to contribute much to
their own nonattainment problem. There are exceptions, of course, such
as rural areas with large sources such as power plants, but such areas
would also need to meet the other criteria for the classification, such
as not contributing significantly to nonattainment in other areas.
In determining an attainment date for areas classified as
``transport,'' we would apply the criteria in section 172(a)(2)(A). The
second criterion in section 172(a)(2)(A)--the availability
[[Page 23965]]
and feasibility of control measures--will allow EPA to consider the
effects of transported pollution in setting an appropriate attainment
date for these areas of no later than 10 years following designation.
We recognize that there may be areas affected by transport that
don't meet the definition of rural transport. However, in determining
attainment dates for areas under section 172(a)(2)(A), we can consider
the availability and feasibility of control measures; thus, areas that
do not meet the definition of a rural transport area should be able to
adopt an attainment date that reflects the time period for reductions
in upwind areas that are contributing to nonattainment.
The EPA decided not to exercise its discretion to create additional
classifications for subpart 1 areas. We do not believe another
classification is necessary for expeditious attainment of the 8-hour
NAAQS for these other subpart 1 areas.
The final rule (section 51.904(a)) provides for a subpart 1 area to
be classified as an overwhelming transport area if it meets the
criteria as specified for rural transport areas under section 182(h) of
the CAA and overwhelming transport guidance that we will issue in the
future. Although EPA's June 2, 2003 notice referenced an EPA guidance
document as the criteria for determining the contribution of sources in
one or more other areas are an overwhelming cause of an area being
designated nonattainment, we believe that guidance needs to be updated.
Thus, we are retracting our previous guidance and will issue revised
guidance. We plan to address control requirements applicable to these
areas in Phase 2.
c. Comments and Responses
Comment: Most of the commenters who commented on classifications
for subpart 1 areas objected to the requirement that to receive an
overwhelming transport area classification an area must demonstrate
that it is a rural transport area. Many of these commenters pointed out
that there are a number of areas that do not meet that definition and
that do not generate a significant portion of emissions that contribute
to the area's nonattainment problem. Some also stated that the CAA does
not mandate this as a criterion and thus the test was unduly
restrictive. These commenters asked that the availability of the
overwhelming transport classification be based only on whether an area
is a victim of overwhelming transport.
Response: The CAA does not mandate that an area be considered rural
in order to receive an overwhelming transport classification under
subpart 1. However, we believe that areas that are not rural, even if
they are affected to a significant degree by transport, in general
contribute at least some degree to their own and likely to other areas'
nonattainment problems. The final rule, therefore, is as proposed--the
overwhelming transport classification is only available to areas that
meet the criteria for rural transport areas under section 182(h) of the
CAA.
Comment: One commenter suggested EPA provide increased flexibility
for areas that would be classified as nonattainment, primarily for
reasons related to transport. A special category for transport areas,
should be created for areas that are in attainment of the 1-hour
standard but, if not for the impact of transport, would not be in
violation of the new 8-hour standard. The regulatory requirements for
transport area should be minimal and required compliance dates should
extend out at least as long as the upwind states.
Response: We note that 8-hour ozone nonattainment areas covered
under subpart 1 generally will be close to attaining the 1-hour
standard. We believe the criteria used to determine overwhelming
transport will invariably result in a situation where an area subject
to overwhelming transport would be in attainment of the standard but
for transport. Subpart 1 provides a maximum of 10 years from the
effective date of nonattainment designation for attainment. We note,
however, that if such an area believes that it would need an attainment
date longer than 10 years, it could request to be reclassified under
subpart 2 to a classification with a longer attainment date. The area
would, of course, have to meet the requirements of its subpart 2
classification (either its requested classification or the rural
transport classification if it so qualifies).
5. Will EPA Adjust Classifications? (Section VI.A.9. of Proposal; 68 FR
32816; Section 51.903(b) and (c) of Final Rule)
a. Background. Under sections 181(a)(4) and 181(b)(3), an ozone
nonattainment area may be reclassified to the next higher or lower
classification. Section 181(a)(4) of the CAA states:
If an area would have been classified in another category if the
design value in the area were 5 percent greater or 5 percent less
than the level on which such classification was based, the
Administrator may, in the Administrator's discretion, within 90 days
after the initial classification, adjust the classification to place
the area in such other category. In making such adjustment, the
Administrator may consider the number of exceedances of the national
primary ambient air quality standard for ozone in the area, the
level of pollution transport between the area and other affected
areas, including both intrastate and interstate transport, and the
mix of sources and air pollutants in the area.
Section 181(b)(3) requires the Administrator to grant the request
of any State to reclassify a nonattainment area in the State to a
higher classification.
b. Summary of final rule. We are adopting the approach we included
in the proposal. For areas subject to subpart 2, section 181(a)(4) of
the CAA provides that classifications may be adjusted upward or
downward for an area if the area's design value is within 5 percent of
another classification. If, for example, an area is subject to a
subpart 2 classification and there is evidence that the area will not
benefit significantly from local controls mandated by subpart 2 for the
area's classification and can attain within the time period specified
for the next lower classification, the area may obtain some relief
based on the 5 percent rule in the CAA if applicable. In addition,
section 181(b)(3) requires the Administrator to grant the request of
any State to reclassify a nonattainment area in the State to a higher
classification.
Section 51.903 was revised from the initial draft regulatory text
language to add the reclassification provisions in section 181(a)(4)
and 181(b)(3).
c. Comments and Responses
Comment: Several commenters supported the use of provisions in
section 181(a)(4) to allow adjustment of a classification. Comments
indicated that this approach could result in cost savings in cases
where the increased controls of the higher classification would not be
needed for attainment. One commenter noted that the Administrator
should consider several factors in making the adjustment under section
181(a)(4), including the number of exceedances of the NAAQS and
complexity of the problem. The commenter requested that EPA explain how
the Administrator would make this decision and the process that will be
used. Another commenter recommended that the actual test of compliance
with the provisions of section 181(a)(4) should include allowance for
meteorological fluctuation in order to avoid States having to meet an
average design value well below the NAAQS before deemed in compliance.
Response: The EPA's guidance on the 5 percent bump down provision
in section 181(a)(4) is contained in the November 6, 1991 Federal
Register (56 FR 56698) which established the initial
[[Page 23966]]
designations and classifications. In a separate Federal Register
notice, EPA will invite States to submit bump down requests. The EPA
will describe the criteria (including any changes from the 1991
criteria) for approval of 5 percent bump downs in that notice and will
provide at least a 30-day period for States to submit their requests.
Section 181(a)(4) authorizes the Administrator to adjust a
classification within 90 days after the initial classification. The EPA
continues to believe, as provided in the June 2, 2003 proposal, that
section 181(a)(4) does not provide a basis for an area to move from
subpart 2 to subpart 1.
6. Proposed Incentive Feature (Section VI.A.6. of Proposal; See 68 FR
32815; 51.903(b) of Draft Rule)
a. Background. In the proposed rule (68 FR 32815), we sought
comment on a classification feature that would allow areas classified
under subpart 2 to qualify for a lower classification upon a
demonstration the area would attain the 8-hour NAAQS by the earlier
attainment date of a lower classification. For example, an area that
would be classified ``moderate'' based on its 8-hour design value would
qualify for a ``marginal'' classification by demonstrating it would
attain the 8-hour NAAQS within 3 years of designation.
b. Summary of final rule. We are not including the proposed
incentive feature in the final rule. We received numerous adverse
comments on the idea, raising both legal and policy issues. Because we
agree as a policy matter that we should not adopt the incentive
feature, we do not reach the legal issue of whether the statute grants
such authority. Our basis for this decision is provided more fully in
the RTC document, portions of which are excerpted below. In short, we
believe that only a few areas would have benefitted from this proposal
considering the flexibility already available under classification
Option 2, and we believe that the difficulties in developing and
implementing such an approach outweigh any benefits. In particular,
commenters on the June 2, 2003 proposal were concerned that we did not
identify the type of modeling that areas could rely on to take
advantage of this option. While we had not identified in the June 2,
2003 proposal the type of modeling that could be used, we had
referenced our current modeling guidance in the draft regulatory text
which was published on August 6, 2003. Additionally, we believe it
would be very difficult for an area to have completed the necessary
modeling and for us to approve such a SIP submission much in advance of
the attainment date for a marginal area. Further, if the area did not
meet that attainment date, it would need to begin the modeling process
over again almost immediately. We now believe that it makes more sense
for the area to prepare the modeling required for its higher
classification and, if the area attains the NAAQS earlier than the
attainment date for its classification, our Clean Data Policy \25\ will
provide relief from RFP requirements.
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\25\ Memorandum of May 10, 1995, ``RFP, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment
Areas Meeting the Ozone National Ambient Air Quality Standard,''
from John S. Seitz, Director, Office of Air Quality Planning and
Standards. Available at: http://www.epa.gov/ttn/oarpg/t1/memoranda/clean15.pdf.
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c. Comments and Responses
Comment: About half the commenters that addressed this issue
opposed the incentive feature. These comments originated mainly from
environmental organizations and some State and local air pollution
control agencies and organizations. Many of these commenters questioned
the legal basis for such a feature and also believed modeling is too
inaccurate or unreliable to be used for classification purposes. They
believed that monitoring data should be the sole basis for
classifications. The other comments received on this issue supported
the incentive feature. These comments originated mainly from industrial
representatives and organizations, as well as several State and local
air agencies and transportation agencies and organizations.
Response: Our analysis indicates that the incentive feature would
not have helped very many areas. Of 21 hypothetical nonattainment areas
classified as moderate (based on 2000-2002 air quality data), our
modeling projects that only 3 would have qualified without first
adopting further controls. No serious or higher classified area would
have qualified without further controls. Very few areas would even
receive a classification higher than moderate. In addition, even if we
adopted this approach, we do not believe there would have been enough
time for areas seeking a marginal classification to submit a plan with
local controls that demonstrate attainment by a Spring attainment date
in 2007 and implement the controls by the Spring of 2006. In addition,
we would have to develop guidance for the demonstration. Furthermore,
although many commenters supported having the feature, many other
commenters objected to the feature on a number of grounds. Because of
the difficulties involved in administering such a program, the
unfavorable timing, and the anticipated low number of areas that could
benefit from the feature, we are not incorporating the feature in the
final rule.
A number of commenters who opposed the feature contended that the
approach was not supported by the CAA. Since we are not adopting the
feature in the final rule on policy grounds, we do not address the
legal issues here.
B. How Will EPA Treat Attainment Dates for the 8-Hour Ozone NAAQS?
(Section VI.B. of Proposal; See 68 FR 32816; 51.903 and 51.904 Draft
and Final Rules)
1. Background
Under Subpart 2 of the CAA, maximum attainment dates are fixed as a
function of a nonattainment area's classification under Table 1. The
CAA provides that an area's attainment date must be ``as expeditious as
practicable but no later than'' the date provided in Table 1 for that
area's classification. The statutory dates are specified as a set
number of years from the date of enactment of the CAA Amendments of
1990. Since a strict application of Table 1 would produce absurd
results for most areas (i.e., areas classified as marginal would have a
November 15, 1993 attainment date, moderate areas would have a November
15, 1996 attainment date, etc.), we are promulgating a targeted
revision of Table 1 to reflect attainment dates consistent with
Congressional intent.
While the attainment dates in Table 1 are expressly linked to the
date of enactment of the CAA Amendments of 1990, this is also the date
on which most areas were designated and classified as a matter of law.
In addition, as explained in the preamble to the proposed rule (68 FR
32817), other provisions of the CAA specify that the date for
attainment shall run from the date of designation and/or classification
as a matter of law for an area. Consistent with this, we proposed that
the starting point for the set timeframes for attainment would be the
date an area is designated and classified for purposes of the 8-hour
NAAQS.\26\ Thus, for example, an area classified as marginal for the 8-
hour NAAQS would have up
[[Page 23967]]
to 3 years from designation to meet that NAAQS and a moderate area
would have up to 6 years from designation to attain.
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\26\ As explained in our proposed rule, areas will be classified
as a matter of law at the same time they are designated; thus, we
simply refer to ``designation'' rather than designation and
classification.
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For areas covered under subpart 1, attainment dates are set under
section 172(a)(2)(A), which provides that the SIP must demonstrate
attainment as expeditiously as practicable but no later than 5 years
after designation, with up to 10 years after designation permitted if
the severity of the area's air pollution and the availability and
feasibility of pollution control measures indicate more time is needed.
In the draft regulatory text, we provided that EPA would establish the
attainment date for an area at the time we approve the area's
attainment demonstration.
2. Summary of Final Rule
We are adopting the time periods for attainment that we proposed
for areas under both subpart 1 and subpart 2 of the CAA. For areas
subject to subpart 2 of the CAA, the maximum period for attainment will
run from the effective date of designations and classifications for the
8-hour NAAQS and will be the same periods as provided in Table 1 of
section 181(a):
Marginal--3 years,
Moderate--6 years,
Serious--9 years,
Severe--15 or 17 years, and
Extreme--20 years.
We are adopting this approach because applying the table, as
written, would produce absurd results. For the reasons above and
discussed in the preamble to the proposed rule, we believe it is
consistent with Congressional intent to begin the time periods for
attainment specified in Table 1 in section 181(a) at the time of
designation and classification.
Consistent with section 172(a)(2)(A), for areas subject to subpart
1 of the CAA, the period for attainment will be no later than 5 years
after the effective date of the designation. However, EPA may grant an
area an attainment date no later than 10 years after designation, if
warranted based on the factors provided in section 172(a)(2)(A). The
EPA will establish an attainment date for each subpart 1 area at the
time we approve an attainment demonstration for the area.
3. Comments and Response
Comment: Several commenters reiterated the CAA's requirement that
areas attain the NAAQS as ``expeditiously as practicable.'' They felt
that the attainment deadlines in the proposed rule would impede the
progress that areas have made and would subject the general public to
years of unhealthy air quality. One commenter suggested that EPA create
enforceable short-term compliance dates to assure citizens of downwind
States that upwind States are meeting their longer-term compliance
deadlines. Other commenters felt that the attainment dates under both
subpart 1 and 2 that were proposed did not provide enough time for
areas to attain for a number of reasons, such as: areas would not be
able to take credit for emissions reductions from Federal measures, the
slow turnover of mobile source fleets would not achieve the needed
mobile source reductions in the timeframes proposed, EPA's Clear Skies
modeling shows that a number of areas in the mid-Atlantic and northeast
will not come into attainment before the middle of the next decade, it
would not be feasible to have stationary and mobile source controls in
place 3 years before the attainment dates for purposes of monitoring,
etc. However, a number of commenters agreed with EPA's proposal to
establish attainment dates that correspond to the timeframes
established under subpart 2 of the CAA from the date of 8-hour
nonattainment designations. In addition, one commenter stated that the
proposal did not clearly address how attainment dates for subpart 1
areas would be set. Finally, several commenters recommended that EPA
change the attainment dates to November or December of the attainment
year rather than in April so areas can use the ozone season air quality
data from the attainment year to demonstrate attainment.
Response: As stated in our June 2, 2003 proposal, under subpart 2
of the CAA, maximum attainment dates are fixed as a function of a
nonattainment area's classification under Table 1. The CAA provides
that an area's attainment date must be ``as expeditious as practicable
but no later than'' the date prescribed in Table 1 for that area's
classification. The dates were specified as the number of years from
the date of enactment of the CAA Amendments, which was November 15,
1990, which was also the date of designation and classification by
operation of law for most subpart 2 areas. We believe that applying the
attainment dates as expressly provided under Table 1 would produce
absurd results, since a strict application of Table 1 would result in
an attainment date of November 15, 1993 for marginal areas and an
attainment date of November 15, 1996 for moderate areas. Although we
believe a strict application of the statute would produce absurd
results, we do not believe that allows broad authority to re-write the
statute. Rather, we look to the legislative history and other
provisions of the CAA to discern Congressional intent. Consequently,
for the reasons provided above and in the preamble to the proposed
rule, we have determined that attainment dates will run from the
effective date of designations and classifications for the 8-hour ozone
NAAQS. Since we are designating and classifying areas for the 8-hour
ozone NAAQS with an effective date of June 15, 2004, the corresponding
attainment periods would run from June 15, 2004.
We do not believe we have authority to change the attainment dates
to November or December of the attainment year as several commenters
requested. We believe that Congress would have intended for areas
designated nonattainment and classified under subpart 2 for the 8-hour
NAAQS to have attainment periods consistent with those in Table 1
(e.g., 3 years for marginal areas, 6 years for moderate areas, etc.)
This would result in the 8-hour marginal attainment date being 3 years
from the effective date of designations for the 8-hour NAAQS (i.e.,
June 15, 2007), the moderate attainment being 6 years from the
effective date of designations for the 8-hour NAAQS (i.e., June 15,
2010), etc.
Additionally, EPA does not have the authority to shorten attainment
dates or lengthen attainment dates to allow areas to take credit for
emissions reductions from future Federal or regional measures as
several commenters suggested. The statute provides for all areas to
attain as expeditiously as practicable. As part of its attainment
demonstration, a State must demonstrate that there are no reasonably
available controls that can expedite attainment. Therefore, States must
address why they cannot attain earlier than the maximum attainment
date. As to longer attainment dates, States may request a voluntary
bump up if they believe an area cannot attain by its maximum statutory
attainment date through the adoption of RACM.
For areas classified under subpart 1, attainment dates will be set
under section 172(a)(2)(A), which provides that the SIP must
demonstrate attainment as expeditiously as practicable but no later
than 5 years after designation or 10 years after designation if the
severity of the area's air pollution and the availability and
feasibility of pollution control measures indicate more time is needed.
Under subpart 1, we will establish an attainment date for an area at
the time we approve an attainment demonstration for the area. The State
[[Page 23968]]
must support that the attainment date is expeditiously as practicable
and must justify any attainment date later than 5 years using the
factors in section 172(a)(2)(A). The attainment date will be the date
in the approved SIP. Thus, if an area submits an approvable attainment
demonstration showing that they can attain the 8-hour NAAQS in, e.g., 4
years, the area's attainment date will be 4 years from the effective
date of designations for the 8-hour NAAQS.
4. How Will EPA Address the Provision Regarding 1-Year Extensions?
(Section VI.B.2 of Proposed Rule; 68 FR 32817; Sections 51.907 of Draft
and Final Rules)
a. Background. In limited circumstances, both subpart 1 and subpart
2 of the CAA provide for two brief attainment date extensions for areas
that do not attain by their attainment date. Section 172(a)(2)(C) of
subpart 1 (which applies for all NAAQS) provides for EPA to extend the
attainment date for an area by 1 year if the State has complied with
all requirements and commitments pertaining to the area in the
applicable implementation plan and no more than a minimal number of
exceedances of the NAAQS has occurred in the area in the attainment
year. Up to two 1-year extensions may be issued for a single
nonattainment area.
Section 181(a)(5) of subpart 2 contains a similar provision for the
ozone NAAQS, but instead of providing for an extension where there has
been a ``minimal'' number of exceedances, it allows an extension only
if there is no more than one exceedance of the NAAQS in the year
preceding the extension year. The language in section 181(a)(5)
reflects the form of the 1-hour ozone NAAQS, which is exceedance-based
and does not reflect the 8-hour ozone NAAQS, which is concentration-
based.\27\ We proposed that since section 181(a)(5) does not reflect
the form of the 8-hour NAAQS and application would produce an absurd
result, it was reasonable to interpret this provision in a manner
consistent with Congressional intent, but reflecting the form of the 8-
hour NAAQS. In addition, we proposed to apply the test in section
172(a)(2)(C), which applies to areas subject to subpart 1, in the same
manner as we apply the test under section 181(a)(5) for areas subject
to subpart 2. Specifically, we proposed that an area would be eligible
for the first 1-year extension under section 172(a)(2)(C) and under
181(a)(5) if, for the attainment year, the area's 4th highest daily 8-
hour average is 0.084 ppm or less. The area will be eligible for the
second extension if the area's 4th highest daily 8-hour value, averaged
over both the original attainment year and the first extension year, is
0.084 ppm or less.
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\27\ The 1-hour NAAQS, an exceedance-based NAAQS, is basically
allowed to be exceeded an average of only once a year over a 3-year
period. (This is a generalization of how attainment is determined;
the actual method considers other factors such as completeness of
the data.) See 40 CFR, appendix H. In contrast, the level of the 8-
hour NAAQS (0.08 ppm, 8-hour average) can be ``exceeded'' more than
once a year on average because the form (concentration-based) of
that NAAQS is determined by averaging the 4th high reading for each
year over a 3-year period. Section 50.10(b) provides that the 8-hour
NAAQS is met at an ambient air quality monitor when the average of
the annual fourth-highest daily maximum 8-hour average ozone
concentration is less than or equal to 0.08 ppm. 40 CFR part 50,
appendix I. Example 1 in appendix I provides an example of an
ambient monitoring site attaining the 8-hour ozone NAAQS. The
example shows that over a 3-year period, there were 10 exceedances
of the level of the 8-hour ozone NAAQS, or an average of 3.33
exceedances per year.
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b. Summary of final rule. We are adopting the interpretation that
we proposed on June 2, 2003. Under both sections 172(a)(2)(C) and
181(a)(5), an area will be eligible for the first of the 1-year
extensions under the 8-hour NAAQS if, for the attainment year, the
area's 4th highest daily 8-hour average is 0.084 ppm or less. The area
will be eligible for the second extension if the area's 4th highest
daily 8-hour value, averaged over both the original attainment year and
the first extension year, is 0.084 ppm or less.
We believe that it would be absurd to apply section 181(a)(5) as
written for purposes of the 8-hour ozone NAAQS. This section was
written with the form of the 1-hour NAAQS in mind. For purposes of the
1-hour NAAQS, an area is violating the NAAQS if it has more than three
exceedances of the NAAQS at a monitor over a 3-year period. Thus, if an
area is averaging more than one exceedance per year at a monitor, it is
violating the NAAQS. For the 1-hour NAAQS, it makes sense to consider
whether there has been more than one exceedance in the attainment year
for purposes of granting an extension because two or more exceedances
indicate a significant likelihood the area will not be able to attain
the NAAQS with a 1-year extension of the attainment date since four
exceedances over a 3-year period mean the area is violating the NAAQS.
For the 8-hour NAAQS, violations are determined based on the
concentration as determined by averaging the 4th highest reading at a
monitor over a 3-year period. Thus, for each monitor (with complete
data), the fourth highest readings for each of 3 consecutive years are
averaged to determine whether an area is violating the NAAQS. If the
average of those readings is at or above 0.085, then the area is
violating the 8-hour ozone NAAQS. Unlike the 1-hour NAAQS, an area
could have several exceedances of the 8-hour NAAQS in the attainment
year and still be on track to attain the NAAQS the following year since
attainment is based on an average of the fourth highest reading. For
this reason, and as we proposed, we believe it makes sense to allow for
the two 1-year attainment date extensions under section 181(a)(5),
based on the 4th highest reading at a monitor rather than based on the
number of exceedances. We are interpreting the phrase ``minimal number
of exceedances'' in section 172(a)(2)(C) to apply in the same manner.
c. Comments and Response
Comment: The commenters generally supported EPA's proposed
interpretation for granting up to two 1-year attainment date
extensions. One commenter requested clarification that the 4th highest
daily average 8-hour ozone concentration would be used to grant the
first extension and the 4th highest daily average 8-hour ozone
concentration of the attainment year and first extension year would be
used to determine eligibility for the second 1-year attainment date
extension. The commenter further expressed support for this approach
since it is consistent with how EPA determines whether an area is
violating the 8-hour NAAQS.
Response: No commenters opposed this aspect of EPA's proposal.
However, we are re-stating that the 4th highest daily average 8-hour
ozone concentration would be used to grant the first 1-year extension
and the 4th highest daily average 8-hour ozone concentration of the
attainment year and first extension year would be used to determine
eligibility for the second 1-year attainment date extension.
C. How Will EPA Implement the Transition From the 1-Hour to the 8-Hour
NAAQS in a Way To Ensure Continued Momentum in States' Efforts Toward
Cleaner Air? (Section VI.C. of the Proposal; See 68 FR 32818; 51.905 of
Draft Rule)
There are two key issues that EPA considered together regarding the
transition from the 1-hour NAAQS to the 8-hour NAAQS: (1) When will the
1-hour NAAQS no longer apply (i.e., be ``revoked''); and (2) what
protections are in place to ensure that, once the 1-hour NAAQS is
revoked, air quality will not degrade and that progress toward
[[Page 23969]]
attainment will continue as areas transition from implementing the 1-
hour NAAQS to implementing the 8-hour NAAQS. As in the proposed rule,
the second key issue has three components: (1) What requirements that
applied based on an area's classification for the 1-hour NAAQS must
continue to apply to that area; (2) for how long; and (3) in what
geographic area. Below, we set forth our final transition approach in
four parts: (1) When will the 1-hour NAAQS no longer apply (i.e., when
will it be revoked); (2) what 1-hour obligations should continue to
apply once the 1-hour NAAQS is revoked; (3) how long should those
requirements continue to apply; and (4) what is the geographic area
subject to the requirement?
1. When Will EPA Revoke the 1-Hour NAAQS? (Section VI.C.2. of Proposal;
See 68 FR 32819; Section 50.9.b. of Proposed and Final Rules)
a. Background. In the proposed rule (68 FR 32819), EPA provided an
in-depth discussion of the background of the transition rule (40 CFR
50.9(b)) and policy as established in July 1997 and as subsequently
revised in response to the ongoing litigation over the 8-hour ozone
NAAQS and court decisions (68 FR 32818-19). In short, at the time the
8-hour NAAQS was promulgated in 1997, EPA anticipated that areas would
implement the 8-hour ozone NAAQS under subpart 1. Areas that were not
meeting the 1-hour NAAQS were obligated to continue to meet that NAAQS
and would remain subject to most of the requirements that applied due
to the area's 1-hour classification, including obligations under
subpart 2 (62 FR 38873). Although EPA concluded in the NAAQS rulemaking
that the 1-hour NAAQS was not necessary to protect public health and
that the 8-hour NAAQS would replace the 1-hour NAAQS (62 FR 38863), we
determined to delay revocation of the 1-hour NAAQS for areas not yet
meeting that NAAQS in order to facilitate continued implementation of
the 1-hour obligations (62 FR 38873). Thus, we promulgated a rule
providing for the phase-out of the 1-hour ozone NAAQS on an area-by-
area basis based upon a determination by EPA for each area that it had
met the 1-hour NAAQS (40 CFR 50.9(b), as promulgated at 62 FR 38894)
(``revocation rule'').
Subsequently, because the pending litigation over the 8-hour NAAQS
created uncertainty regarding the 8-hour NAAQS and our implementation
strategy, we placed two limitations on our authority to apply the
revocation rule: (1) the 8-hour NAAQS must no longer be subject to
legal challenge, and (2) it must be fully enforceable.\28\ (65 FR
45182, July 20, 2000).
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\28\ In addition, in June 2003, we stayed our authority to apply
the revocation rule pending our reconsideration in this rulemaking
of the basis for revocation. (68 FR 38160, June 26, 2003).
---------------------------------------------------------------------------
Ultimately, the Supreme Court struck down the implementation
strategy provided for in the preamble to the final NAAQS rule. Although
the Court agreed with EPA's conclusion that the statute was ambiguous
as to how a revised, more stringent ozone NAAQS should be implemented,
the Court found unreasonable the implementation strategy EPA
anticipated at the time the 8-hour NAAQS was promulgated. Because EPA
believes the time at which the 1-hour NAAQS should no longer apply is
inextricably linked to the overall implementation strategy, EPA
determined that it should reconsider 40 CFR 50.9(b) in the context of
this rulemaking. (68 FR 32818-19).
Consistent with the decision of the Supreme Court, our proposed
June 2003 implementation rule anticipated that some, if not all, 8-hour
ozone nonattainment areas would implement that NAAQS under subpart 2 of
the CAA. There was no longer the clear cut dichotomy that we
anticipated in 1997--i.e., that 8-hour implementation would occur under
subpart 1 and 1-hour implementation would continue to occur under
subpart 2. Thus, the approach from 1997--where we retained the 1-hour
NAAQS for areas that had not met it in order to make clear that such
areas retained subpart 2 obligations--merited reconsideration. In
addition, we indicated that the area-by-area approach to revocation of
the NAAQS was needlessly burdensome and that it made more sense to
promulgate one rule establishing the date of revocation of the 1-hour
NAAQS for all areas.
With respect to the time at which the 1-hour NAAQS should no longer
apply to areas, we sought comment on two options. Under Option 1, we
would revoke the 1-hour NAAQS in full 1 year after the effective date
of designations for the 8-hour NAAQS. The key consideration for when
the NAAQS would be revoked was the time at which areas designated
nonattainment for the 8-hour NAAQS would be subject to conformity
requirements for the 8-hour ozone NAAQS and our concern that areas not
be subject to conformity for both the 8-hour and the 1-hour NAAQS at
the same time. We believed that since our proposed anti-backsliding
provisions would ensure that progress toward clean air continued and
would obligate areas to continue to meet the control obligations
associated with the area's 1-hour classification, there was no need to
retain the NAAQS and the associated designations and classifications.
Under Option 2, we proposed to retain the NAAQS itself (and the
associated designations and classifications) for limited purposes
(viz., those identified and discussed in section VI.C.3. of the
proposed rule, which are the same obligations that would continue to
apply under Option 1). For all remaining purposes, we would revoke the
1-hour NAAQS and the associated designations and classifications 1 year
after the effective date of designations for the 8-hour NAAQS. This
approach would not create a different substantive result than Option 1;
under both Options, areas would remain subject to the same obligations
that applied based on their 1-hour classification. Rather, Option 2 was
based on a somewhat different legal rationale than Option 1.
b. Summary of final rule. We are adopting Option 1. We will revoke
the 1-hour NAAQS in full, including the associated designations and
classifications, 1 year following the effective date of the
designations for the 8-hour NAAQS. However, we are adopting strong
anti-backsliding provisions which preserve control obligations mandated
by subpart 2 for an area's classification for the 1-hour NAAQS. In
light of the anti-backsliding provisions, the deciding factor
supporting the schedule for revocation is the conformity obligation for
areas. We believe it is unnecessary to require areas to meet conformity
for both the 1-hour and 8-hour NAAQS at the same time; equally
important, however, is the need to ensure that there is no time when
conformity stops applying for areas that are subject to it under the 1-
hour NAAQS and designated nonattainment for the 8-hour NAAQS. Thus, we
are adopting a regulation that provides for revocation of the 1-hour
NAAQS 1 year following the effective date of the designation of the
area for the 8-hour NAAQS since that is the time an area designated as
nonattainment for the 8-hour NAAQS will be subject to conformity
requirements for the 8-hour NAAQS.
Our final anti-backsliding provisions will ensure that mandatory
subpart 2 control measures that applied due to an area's classification
under the 1-hour NAAQS will continue to apply after the 1-hour NAAQS is
revoked in full.
Many commenters believed, and we agree, that Option 1 is a clearer
approach than Option 2. Since both
[[Page 23970]]
options would lead to the same substantive result, we are adopting the
clearer approach. Many commenters recommended alternatives other than
those proposed by EPA. Our basis for rejecting these approaches is
provided below and in the RTC document.
c. Comments and responses.
Comment: Most of the comments we received addressed the issue of
when we should revoke the 1-hour NAAQS. About half of the commenters
favored revocation of the 1-hour NAAQS in full 1 year after the
effective date of the 8-hour designations (proposed Option 1). Only a
handful of commenters favored partial revocation of the 1-hour NAAQS
(proposed Option 2). Almost a third of the commenters who addressed
this issue opposed revocation of the 1-hour NAAQS. Many of the
commenters in this group insisted that EPA should retain the 1-hour
NAAQS because it is necessary to protect public health and some noted
that it may be more protective of public health than the 8-hour NAAQS
in several areas such as the South Coast and Houston. A number of these
commenters also suggested that revocation would be contrary to the CAA
and Congressional intent. Several commenters recommended alternative
means or timing for the revocation of the 1-hour NAAQS, including a
recommendation to revoke the 1-hour NAAQS immediately upon designations
for the 8-hour NAAQS.
Response to Major Comments: Several commenters opposed revocation
at all because they believe the 1-hour NAAQS is necessary to protect
public health. The issue of whether the 1-hour NAAQS is necessary to
protect public health is a standard-setting issue that was resolved in
1997. At that time, EPA determined that it was not necessary to retain
the 1-hour NAAQS as a NAAQS in order to protect public health. In
setting the 8-hour NAAQS in 1997, we concluded that replacing the
current 1-hour NAAQS with an 8-hour NAAQS is appropriate to provide
adequate and more uniform protection of public health from both short-
term (1 to 3 hours) and prolonged (6 to 8 hours) exposures to ozone in
the ambient air (62 FR 38863). The sole issue here is how and when the
transition from implementation of the 1-hour NAAQS to implementation of
the 8-hour NAAQS should occur.
We believe the strong anti-backsliding provisions in section 51.905
will ensure that not only will controls already adopted under the 1-
hour NAAQS continue to be implemented until an area attains the 8-hour
ozone NAAQS, but also that there will be no or minimal delay in
obtaining additional emissions reductions comparable to those that
would have been required had the 1-hour NAAQS remained in place.
Although attainment of the 1-hour NAAQS would no longer be a goal, the
provisions of section 51.905 would retain the ROP obligations that
would have been required under the 1-hour NAAQS. Furthermore, the
provisions of section 51.905 also would retain an area's obligation to
either expeditiously complete the 1-hour attainment demonstration or
obtain emissions reductions toward meeting the 8-hour NAAQS that
substitute for those that would have been required had an area
completed its attainment demonstration on a schedule more expeditious
than that required solely for the 8-hour NAAQS. Thus, retaining the 1-
hour NAAQS itself would become largely superfluous from the standpoint
of obtaining timely emissions reductions.
We disagree with comments that recommended that EPA revoke the 1-
hour NAAQS immediately upon a nonattainment designation for the 8-hour
NAAQS. We believe that such timing would create a gap when conformity
would not apply in the year following designation under the 8-hour
NAAQS (since conformity does not apply for the 8-hour NAAQS until 1-
year after designation).
Comment: A major concern raised by commenters was that if the NAAQS
were revoked, areas would no longer have to meet the SIP budgets
established for the 1-hour NAAQS for conformity purposes. These
commenters were concerned that 8-hour ozone nonattainment areas that
were nonattainment or maintenance for the 1-hour NAAQS would be able to
determine conformity using another less protective test, such as the
``build/no-build'' test. One commenter said that if conformity is
weakened, billions of dollars will be spent on transportation without
accountability for public health impacts. To avoid these results,
commenters suggested that conformity requirements for the 1-hour NAAQS
continue to apply until some other point, such as when budgets for the
8-hour NAAQS are available, when areas have an approved maintenance
plan for the 8-hour NAAQS, or the end of areas' 1-hour maintenance
planning periods (assuming these periods would remain as they are, and
would not be affected by revocation of the 1-hour NAAQS).
Response: The EPA proposed conformity regulations for the new 8-
hour ozone NAAQS and new fine particulate matter NAAQS on November 5,
2003 (68 FR 62690). We proposed that new 8-hour ozone nonattainment
areas that have 1-hour ozone SIPs would meet one of several tests, and
the menu of options we offered differed depending on how the 8-hour
area boundary relates to the 1-hour area boundary. We will consider the
issues raised by commenters and provide a full response in the context
of that rulemaking.
However, at this point EPA can respond to the suggestions to revoke
the 1-hour NAAQS at a later point such as when 8-hour budgets are
available, or the end of the 1-hour maintenance planning period. Under
these scenarios, there would be a period of years where conformity
would have to be determined for both NAAQS at the same time: a result
that EPA believes could lead to confusion and additional burden for
transportation and air quality planners. The EPA believes it is
sufficient that conformity be determined for one ozone NAAQS at a time.
Since the 8-hour NAAQS is the health-based standard and it is more
stringent than the 1-hour NAAQS, we believe conforming to the 8-hour
NAAQS will be sufficient.
Comment: One commenter recommended that we provide an option that
allows States to submit an 8-hour conformity budget early and suspend
the 1-hour conformity requirements at the time the 8-hour budget is
determined to be adequate. A second commenter suggested something
similar, that EPA require States to expedite budgets for the 8-hour
standard in areas where the 8-hour boundary is larger.
Response: The EPA did not propose to revoke the 1-hour NAAQS
earlier than 1 year after designations, in part because we did not
believe that areas would be able to submit an 8-hour SIP earlier than
1-year following designation. Furthermore, EPA's proposal was intended
to align the revocation of the 1-hour NAAQS with the application of
conformity requirements for the 8-hour NAAQS 1 year after the effective
date of 8-hour nonattainment designations. The EPA continues to believe
it is unlikely that areas will have adequate budgets that address the
8-hour NAAQS before EPA revokes the 1-hour NAAQS. Such budgets cannot
stand alone but have to be associated with adopted control measures and
demonstrations of either attainment or RFP, and we believe developing
these SIPs will take States some time. Once the SIPs are submitted, EPA
must find them adequate, a process which EPA intends to complete within
90 days of receiving a SIP. It is unlikely that States will be able to
complete the work to submit 8-hour ozone SIPs 1 year from the effective
date of 8-hour ozone area designations, and less likely that States
will have submitted them
[[Page 23971]]
sufficiently in time for EPA to find them adequate before the 1-hour
NAAQS is revoked.
Given these facts and the fact that EPA did not propose an option
for revoking the standard earlier than 1 year after 8-hour designations
are effective, EPA does not intend to provide for early revocation of
the 1-hour NAAQS, nor will EPA require 8-hour areas to expedite
development of their 8-hour SIP for this purpose. All areas must submit
SIPs as soon as practicable, and EPA wants States to develop quality
SIPs to support attainment demonstrations and conformity
determinations. Prior to the revocation of the 1-hour NAAQS, new
transportation plan and transportation improvement plan must conform to
the applicable SIP budgets for the 1-hour NAAQS.
Comment: Some commenters rebutted EPA's assertion that revoking the
1-hour NAAQS is necessary so that agencies can focus on planning for
the 8-hour NAAQS. These commenters stated that neither the revocation
of the 1-hour NAAQS (or the budgets) is justified on this basis with
respect to transportation and emissions modeling, because under either
NAAQS, similar work in establishing base year inventories, and future
forecasts of travel and emissions must be done. Once the resources are
in place to make future forecasts, commenters thought that the level of
effort in both time and money to produce analyses to different regional
boundaries is relatively small, and ample resources are available to
pay for the additional analyses needed to determine conformity to both
NAAQS.
The EPA also received comments of the opposite opinion. A number of
commenters supported EPA's proposal that conformity apply for one NAAQS
at a time. One commenter stated that determining conformity for two
separate ozone NAAQS would result in undue administrative burden,
create confusion about requirements in the public process and make
synchronization of the air quality and transportation planning
processes more difficult. A couple of commenters argued that having to
determine conformity for both ozone NAAQS would drain limited resources
in transportation and environmental agencies. One of these commenters
contended that demonstrating conformity for two ozone NAAQS could in
fact delay progress, due to the high administrative burdens.
Response: While these comments focus solely on the resources
necessary to determine conformity for both NAAQS, EPA believes a
discussion of resources should include all aspects of attainment
planning. Under EPA's proposal, with revocation of the 1-hour NAAQS,
conformity will no longer apply for that NAAQS as a matter of law.
Therefore, in order for conformity to apply for both NAAQS as one
commenter requests, both NAAQS have to be implemented at the same time,
i.e., the 1-hour NAAQS would have to be implemented in addition to the
8-hour NAAQS. This would mean continuation of the requirements to
demonstrate attainment and maintenance of the 1-hour as well as the 8-
hour NAAQS. The EPA believes that it would be a substantial increase in
burden for States to plan for attainment of both NAAQS, which includes
conformity but also includes creating inventories for each source
sector, determining feasible control measures, writing rules to
implement control measures, permitting stationary sources, establishing
ROP plans, running iterations of air shed modeling, and demonstrating
attainment.
In 1997, EPA determined that the 1-hour NAAQS is not necessary to
protect public health. Where they are not required by anti-backsliding
provisions, EPA does not believe that the additional burden States
would undertake in planning to achieve both the 1-hour and the 8-hour
NAAQS is necessary to protect public health.
2. What Requirements That Applied in an Area for the 1-Hour NAAQS
Continue To Apply After Revocation of the 1-Hour NAAQS for That Area?
(Section VI.C.3. of Proposal; 68 FR 32820; Section 51.905(a) of the
Draft and Final Rules)
a. Background. In this section of the June 2, 2003 proposed rule
(68 FR 32820), we considered what obligations from subpart 2 that
applied to an area based on its classification for the 1-hour ozone
NAAQS should continue to apply to such area after it has been
designated for the 8-hour NAAQS and the 1-hour NAAQS has been revoked.
We proposed that the continuity of particular obligations may vary
depending on the attainment status of an area for the 8-hour NAAQS. The
proposed rule addressed two categories of areas: (1) areas that are
designated nonattainment for the 8-hour NAAQS and that were designated
nonattainment for the 1-hour NAAQS on or after November 15, 1990; and
(2) areas that are designated attainment for the 8-hour NAAQS and that
were designated nonattainment for the 1-hour NAAQS on or after November
15, 1990. Furthermore, we divided the types of obligations into four
categories for purpose of our analysis: (1) Mandatory control measures
(e.g., NOX RACT, I/M, and fuel programs); (2) discretionary
control measures (e.g., control measures or other obligations the State
selected and adopted into the SIP for purposes of attainment, ROP or
any other goal to benefit air quality, but which are not specifically
mandated by subpart 2); (3) growth management (NSR); and (4) planning
activities (attainment and maintenance demonstrations and RFP plans).
We addressed conformity separately because it is a subpart 1
requirement. In addition, we addressed the NOX SIP Call
separately since this obligation applies statewide and without respect
to the designation status of areas within the State.
In the draft regulatory text released in August 2003, for areas
designated nonattainment for the 8-hour NAAQS, we broke into two groups
the areas designated nonattainment for the 1-hour NAAQS on or after
November 15, 1990: (1) Areas that remain designated nonattainment for
the 1-hour NAAQS at the time of revocation of the 1-hour NAAQS; and (2)
areas that were designated nonattainment for the 1-hour NAAQS but that
have been redesignated to attainment for the 1-hour NAAQS (i.e.,
``maintenance areas'') at the time of revocation of the 1-hour
NAAQS.\29\ In response to comments on the proposed rule and draft
regulatory text, the final regulation creates the same sub-
categorization for areas designated attainment for the 8-hour NAAQS. In
the final rule and in the preamble discussion below, we also break into
the same two groups the areas designated attainment for the 8-hour
NAAQS. Thus, in the preamble and rule we consider the obligations that
continue to apply for four categories of areas: (1) Areas that remain
designated nonattainment for the 1-hour NAAQS at the time of
designation as nonattainment for the 8-hour NAAQS; (2) areas that are
maintenance areas for the 1-hour NAAQS at the time of designation as
nonattainment for the 8-hour NAAQS; (3) areas that remain designated
nonattainment for the 1-hour NAAQS at the time of designation as
attainment for the 8-hour NAAQS; and (4) areas that are maintenance
areas for the 1-hour NAAQS at the time of designation as attainment for
the 8-hour NAAQS. Both the preamble and the rule may use the following
terms to discuss
[[Page 23972]]
these four categories: (1) 8-hour NAAQS nonattainment/1-hour NAAQS
nonattainment (2) 8-hour NAAQS nonattainment/1-hour NAAQS maintenance;
(3) 8-hour NAAQS attainment/1-hour NAAQS nonattainment (4) 8-hour NAAQS
attainment/1-hour NAAQS maintenance. Under each of these sections in
the preamble, we address how the final rule treats the four types of
obligations identified in the proposed rule: (1) Mandatory control
measures; (2) discretionary control measures; (3) growth; and (4)
planning obligations.
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\29\ The draft regulatory text did not accurately reflect the
preamble discussion which distinguished maintenance areas at the
time of designation for the 8-hour NAAQS from those that remained
designated nonattainment at the time of 8-hour designation. For the
final rule, we use the time of 8-hour designations rather than the
time the 1-hour NAAQS is revoked.
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b. Summary of final rule. The approach we are adopting in the final
rule is summarized below under the individual sections discussing each
category of area and type of control obligation.
c. Section 51.905(a)(1): 8-hour NAAQS nonattainment/1-Hour NAAQS
nonattainment.
(i) Mandatory control measures. (Section VI.C.3.a.i. of proposed
rule; see 68 FR 32820; sections 51.900(f) and 51.905(a)(1) of the draft
and final rules.)
(A) Background. For areas designated nonattainment for the 1-hour
NAAQS at the time they are designated nonattainment for the 8-hour
NAAQS, we proposed that, to the extent the area has met a mandatory SIP
obligation under the CAA that is included as part of the approved SIP,
the State may not modify or remove that measure except to the extent
that it may have modified or removed that measure for purposes of the
1-hour NAAQS (68 FR 32820). For example, if an area was classified as
serious for the 1-hour ozone NAAQS and required to have an enhanced I/M
program as part of its SIP, the State cannot remove the enhanced I/M
program for that area even though it may be classified as marginal or
moderate for the 8-hour ozone NAAQS. However, under the proposal, the
State may modify the enhanced I/M program consistent with EPA's
enhanced I/M regulations, just as it may have done for purposes of the
1-hour NAAQS. (We address below when the obligation to retain such
control measures as active control programs no longer applies, the
geographic area in which the obligation applies, and the demonstration
a State must make at that point to modify the SIP.)
For control measures that the State has not yet adopted, we
proposed that the State remains obligated to adopt and submit such
control measures. And, once adopted into the approved SIP, the State
may not modify or remove such measures except to the same extent that
it could have modified or removed them for purposes of the 1-hour
NAAQS.
Our draft regulatory text referred to these obligations as
``applicable requirements'' and we identified the subpart 2 mandatory
control measures in the definitions section under ``applicable
requirements.''
(B) Summary of final rule. We are adopting the approach we
proposed. (See sections 51.905(a)(1)(i)and 51.900(f) of the final
rule.) All areas designated nonattainment for the 8-hour ozone NAAQS
and designated nonattainment for the 1-hour ozone NAAQS at the time of
designation for the 8-hour NAAQS remain subject to control measures
that applied by virtue of the area's classification for the 1-hour
NAAQS.
As we stated in the preamble to the proposed rule (68 FR 32819),
there are a number of provisions in the CAA that we believe are
evidence of Congress' intent that these obligations continue to apply
despite EPA's determination that the 1-hour NAAQS is no longer
necessary to protect public health. For example, at the time of the
1990 Amendments to the CAA, Congress designated and classified existing
ozone nonattainment areas (and classified all other ozone nonattainment
areas) as a matter of law. Congress also provided that areas could not
remove from the SIP controls mandated by subpart 2 even after the area
attains the NAAQS and is redesignated to attainment. At most, the State
could move such controls to the contingency plan provisions of the SIP.
See CAA section 175A(d). Also significant is that in 1990, Congress
enacted a provision specifying States' obligations with respect to
control measures for a NAAQS after EPA revised that NAAQS to be less
stringent. In section 172(e), Congress specified that if EPA revises a
NAAQS and makes it less stringent, EPA must promulgate regulations
applicable to areas that have not yet attained the original NAAQS to
require controls that are no less stringent than the controls that
applied to areas designated nonattainment prior to such relaxation. We
believe that, if Congress intended areas to remain subject to the same
level of control where a NAAQS was relaxed, they also intended that
such controls not be weakened where the NAAQS is made more stringent.
Finally, we noted that the Supreme Court cautioned against making
subpart 2 ``abruptly obsolete.'' For areas designated nonattainment in
1990, Congress intended the mandatory requirements of subpart 2 to
apply (as implemented controls or contingency measures) for a
significant period of time. We believe if we allowed areas to remove
those mandated controls from their SIPs it would render those
provisions prematurely obsolete, contrary to Congressional intent. We
adopt in full the analysis provided at 68 FR 32819, 1st and 2nd
columns.
The final rule also reflects, with several exceptions, the table in
appendix B of the June proposal which identified the applicable
requirements. The definition of ``applicable requirements'' in section
51.900(f) of the draft regulatory text erroneously excluded some of the
requirements included in appendix B. The requirements that weren't
included in the proposed regulatory text definition of applicable
requirement but are included in the definition in the final rule are:
Enhanced (ambient) monitoring under section
182(c)(1) of the CAA.
Transportation controls under section 182(c)(5)
of the CAA.
Vehicle miles traveled provisions of section
182(d)(1) of the CAA.
NOX requirements under section 182(f)
of the CAA.
One exception in which the final rule does not reflect appendix B
of the proposal concerns the requirement for reformulated gasoline
(RFG). Appendix B erroneously included RFG as an applicable requirement
under subpart 2. As discussed below under ``Comments and responses,''
it is not an applicable requirement under subpart 2 and is not included
as such in section 51.900(f) of the final rule. In addition, Appendix B
listed NSR (major source applicability and offsets) as ``applicable
requirements'' under subpart 2. Although these would be applicable
requirements under subpart 2 for the 8-hour standard, they would not be
applicable requirements under subpart 2 for the 1-hour standard after
the 1-hour standard is revoked.\30\
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\30\ In addition, Appendix E of the June 2, 2003 proposal treats
1-hour NSR as an applicable requirement after the 1-hour standard is
revoked. Under the final rule, 1-hour NSR would not be a required
implementation plan element after the 1-hour standard is revoked.
Instead, NSR under the 8-hour NAAQS will apply.
---------------------------------------------------------------------------
(C) Comments and responses
Comment: Concerning the June 2, 2003 proposal, several commenters
believed that not all control requirements required by an area's 1-hour
classification would necessarily help achieve the 8-hour NAAQS and
therefore opposed the proposed anti-backsliding provisions. Other
commenters supported the proposal.
Concerning the draft regulatory text, commenters generally
reiterated their comments from the June 2, 2003 notice
[[Page 23973]]
in commenting on the draft regulatory text.
Response: As we noted above and in the preamble to the proposed
rule, we examined the CAA as a whole to discern Congressional intent
since Congress did not specifically address anti-backsliding where EPA
promulgated a more stringent NAAQS. After considering the ``as a matter
of law'' designation and classification for the 1-hour NAAQS, section
172(e), and the CAA's redesignation provisions, we believe that
Congress intended these areas to continue to implement requirements
that applied in the area for the 1-hour NAAQS.
Comments: The EPA's June 2 proposal listed RFG in appendix B as an
``applicable requirement'' for severe and above ozone nonattainment
areas; it was also listed as an ``applicable requirement'' in the draft
regulatory text under section 51.900(f). The EPA received a number of
comments addressing RFG requirements. Some commenters argued that the
program was of no environmental benefit in certain locations, and
should not be required. One commenter suggested that where it is
estimated that the costs per ton of VOC removal would be around $36
million per daily ton removed or around $100,000 per annual ton
removed, with no measurable benefit to ozone levels, that requiring use
of RFG would be an ``absurd result'' justifying a waiver of the RFG
requirement. One commenter argued that the rules providing for ozone
nonattainment areas to opt-in to the RFG program should be liberalized,
to allow additional areas to avail themselves of the benefits of RFG.
Other commenters argued against such liberalization, on the basis that
the fuels industry is already burdened with implementation of far-
reaching fuels regulations and does not need the additional
difficulties that would be associated with the proliferation of RFG
opt-ins.
Response: The EPA has decided that it is not appropriate to list
RFG as an ``applicable requirement'' in the final rule in section
51.900(f). The RFG program is not adopted as a State program in SIPs,
as are the other ``applicable requirements'' listed in today's final
rule. Rather, RFG is required under a Federal program. It is prescribed
in some instances by statute, and in other instances States are allowed
to opt-in and opt-out of the program in accordance with Federal
statutory prescriptions and EPA rules. The EPA recognizes that the
scope and applicability of the RFG program during and after
implementation of the new 8-hour ozone standard raises various issues
that need further clarification. However, such clarification is more
appropriately provided in a separate undertaking. Since Federal RFG
does not appear on the final rule's list of ``applicable requirements''
in subpart 2, there is no need to respond in this rulemaking to the
comments regarding implementation of the RFG program. Therefore, while
not an ``applicable requirement'' under today's rules, the RFG
requirement is nonetheless applicable under the CAA for certain areas,
and EPA will determine in the future whether this requirement would
change for these areas when they attain the ozone NAAQS.
Comment: One commenter noted that the language in the draft
regulatory text is based upon the date of revocation of the 1-hour
ozone NAAQS, which is at least one year later than that specified in
the proposed rule. The date of revocation is also highly uncertain
compared to the date of designation, which is driven by the Consent
Decree. The Draft Regulatory Text therefore conflicts with the proposed
rule language. The commenter prefers use of the date of designation for
these and other applicable requirements.
Response: The regulatory text has been revised to key the
requirement from the effective date of designation for the 8-hour
NAAQS.
Comment: One commenter believed there was a conflict between the
June 2, 2003 notice and the draft regulatory text concerning the timing
of the 1-hour NSR obligation. The draft section 51.905(a)(1) provision
would apply for areas designated nonattainment for the 1-hour NAAQS at
the time of revocation of the 1-hour NAAQS, but the June 2, 2003 notice
provision would apply to areas designated nonattainment for the 1-hour
NAAQS at the time of designation of the 8-hour NAAQS. The commenter
recommended that the rule be based on the date of designation for the
8-hour NAAQS.
Response: We agree there was a conflict in the draft regulatory
text on this matter. However, as discussed below, the final differs
from the proposal in that after the 1-hour NAAQS is revoked, NSR under
the 1-hour NAAQS will no longer be a required implementation plan
element in areas that are 8-Hour NAAQS nonattainment/1-Hour NAAQS
nonattainment. Instead, NSR under the 8-hour NAAQS will apply.
(ii) Discretionary control measures. This discussion of
discretionary measures includes how we plan to treat enforceable
commitments approved into the SIP. (section VI.C.3.a.ii. of proposed
rule, see 68 FR 32821, and section VI.C.3.a.v. of proposed rule; see 68
FR 32822; section 51.905(d) of draft and final rules; there is no
parallel provision in the final rule.)
(A) Background. Many approved SIPs contain control measures that
are not specified under subpart 2 for the area, but that the State
chose to adopt as part of the demonstration of attainment or part of
the ROP requirement for the 1-hour NAAQS. For these kinds of measures,
we proposed that States retain the discretion they now have to modify
these requirements in their SIPs. For purposes of the 1-hour NAAQS,
States may currently revise or remove those requirements so long as
they make a demonstration consistent with section 110(l) that such
removal or modification would not interfere with attainment of or
progress toward the 1-hour ozone NAAQS (or any other applicable
requirement of the CAA).\31\ Once the 1-hour standard is revoked, for
purposes of the 8-hour NAAQS, the same discretion to modify a SIP would
apply except the State would need to make the demonstration required by
section 110(l) with respect to the 8-hour NAAQS, not the 1-hour NAAQS.
See 68 FR 32821 for an example of how this would work.
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\31\ For purposes of the preamble to this rulemaking, whenever
we state that a State must make the demonstration required under
section 110(l) to modify its SIP, we also mean that the State must
make the required demonstration under section 193 to the extent the
affected area is designated nonattainment and the SIP requirement
the State is modifying was a control requirement in effect or
required to be in effect prior to November 15, 1990.
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We also proposed that States remain obligated to meet enforceable
commitments approved into a SIP to the same extent as if they were
adopted measures (68 FR 32822). This includes enforceable commitments
to perform a mid-course review. The only way a State may modify or
remove such a commitment is through a SIP revision making the required
demonstration under section 110(l).
(B) Summary of final rule. We are adopting the approach we set
forth in our proposed rule. A State may revise or remove discretionary
control measures (including enforceable commitments) contained in its
SIP for the 1-hour NAAQS so long as the State demonstrates consistent
with section 110(l) that such removal or modification will not
interfere with attainment of or progress toward the 8-hour ozone NAAQS
(or any other applicable requirement of the CAA). Under the rule,
States remain obligated to meet any SIP-approved commitment to perform
a mid-course review. These SIP commitments generally do not bind the
[[Page 23974]]
States to take any specific action in response to the results of the
mid-course review. The EPA anticipates that rather than using these
reviews to ensure areas meet the 1-hour NAAQS (which will have been
revoked), States and EPA can use these reviews to ensure progress is
being made consistent with needs for the 8-hour NAAQS.
Note, however, that since general provisions for modifying or
removing control measures in a SIP are already provided in the statute
(sections 110(l) and 193), we do not believe there is a need to have a
duplicative provision in this final rule. Therefore, even though the
draft regulatory text contained such a provision (section 51.905(d)),
the final rule does not contain that provision.
(C) Comments and Responses
Comment: Several commenters supported the proposal regarding
discretionary control measures. Other commenters believed that States
should not be held to commitments to submit the mid-course review
required under their 1-hour SIP. Some commenters objected to the
provision in draft regulatory text for allowing ``relaxations'' of the
SIP under sections 110(l) and 193 of the CAA.
Response: Sections 110(l) and 193 allow States to modify the
discretionary controls in their SIPs if the provisions of those
sections are met. While we believe it is important to prevent
backsliding consistent with the statutory provisions, we do not believe
it is appropriate to further restrain the discretion Congress granted
to States in determining the appropriate mix of controls in the SIP. We
believe that a State may revise discretionary controls approved in its
SIP as long as it meets the criteria specified in sections 110(l) and
193. We believe the tests provided in sections 110(l) and 193 will
prevent the adverse effects envisioned by the commenter.
(iii) Measures to address growth. (section VI.C.3.a.iii of proposed
rule; see 68 FR 32821; sections 51.900(f) and 51.905(a)(1) of the draft
and final rule.)
(A) Background. In general, the SIP provisions in the CAA include
one provision to address growth--nonattainment NSR. We discuss
conformity for all areas in a later section.
For areas that are 8-hour NAAQS nonattainment/1-hour NAAQS
nonattainment, we proposed in the June 2, 2003 notice that the major
source applicability cut-offs and offset ratios for nonattainment NSR
that applied for an area's 1-hour classification continue to apply.
(B) Summary of final rule. The final rule treats 1-hour NSR as a
requirement that will no longer apply once the 1-hour NAAQS is revoked.
We provide a more thorough discussion of the approach in our final rule
and the rationale in the section below discussing 1-hour NAAQS
obligations that no longer apply as of revocation of the 1-hour NAAQS.
(C) Comments and responses. Comments and responses are included in
the section below discussing 1-hour NAAQS obligations that no longer
apply as of revocation of the 1-hour NAAQS.
(iv) Planning SIPs.
(A) Outstanding ROP obligation. (section VI.C.3.a.iv of proposal;
68 FR 32822; section 51.905(a)(1) of the draft and final rules).
(1) Background. In the June 2, 2003 proposal, we proposed that
States remain obligated to address separately 1-hour ROP requirements
that do not overlap with RFP obligations for the 8-hour NAAQS.\32\
Where outstanding ROP and RFP obligations overlap, the area need not
submit a separate ROP plan for the 1-hour NAAQS but must show that the
8-hour ROP plan is no less stringent than the 1-hour ROP requirement.
For ROP provisions already adopted into the SIP, we proposed that the
State may remove or revise control measures needed to meet the ROP
milestone if such control measures were discretionary (i.e., not
mandated by subpart 2 for the area's 1-hour classification), as
discussed above, and the State makes a demonstration under section
110(l) including a demonstration that the revision will not interfere
with meeting the 1-hour ROP and 8-hour RFP goals.
---------------------------------------------------------------------------
\32\ In this rulemaking, we use ``ROP'' to refer to the rate of
progress requirement for the 1-hour NAAQS and ``RFP'' to refer to
both the rate of progress requirement under subpart 2 and the
reasonable further progress requirement under subpart 1 for the 8-
hour ozone NAAQS.
---------------------------------------------------------------------------
(2) Summary of final rule. We are adopting the approach set forth
in our proposed rule for areas that are 8-hour NAAQS nonattainment/1-
hour NAAQS nonattainment. States remain obligated to meet the CAA-
mandated ROP emission reduction targets that applied for the 1-hour
NAAQS, but discretionary measures adopted to meet those targets may be
modified, if the State makes the necessary showing under section
110(l).
In addition, we are providing further clarification regarding how
this obligation applies. Areas that have an outstanding obligation for
an approved 1-hour ROP SIP for one or more of the ROP periods (e.g.,
1999-2002, 2002-2005, 2005-2007) must still develop and submit to EPA
(if they have not already done so) all outstanding 1-hour ROP plans.
Where a 1-hour ROP obligation overlaps with an 8-hour RFP requirement,
the State's 8-hour RFP measures can be used to satisfy the 1-hour ROP
obligation.
The State may choose to show that both the 8-hour and 1-hour ROP
obligations are met through a single 8-hour plan submittal. To prevent
backsliding, the State must ensure that the 8-hour RFP emission plan is
at least as stringent as the 1-hour ROP emission target, for the year
in which 1-hour ROP must be met. The State may do this by first
establishing an RFP emission target for the entire 8-hour ozone
nonattainment area, for the 1-hour ROP target year. If the 8-hour RFP
emission target for the 8-hour area for the same period is more
stringent than the 1-hour ROP emission target for the 1-hour area
(assuming the 8-hour area includes the entire 1-hour area), the State
is not obligated to submit a separate 1-hour ROP plan, but can rely
solely on the 8-hour RFP plan and emission target to demonstrate that
the 1-hour target will be met. However, the State must ensure that the
emission target will be met for the same period as for 1-hour ROP
(e.g., 2003-2005). The State may rely on any control measure to meet
both ROP for the 1-hour NAAQS and RFP for the 8-hour NAAQS. Appendix A
below provides an example of how this might work.
In the June 2, 2003 proposal (68 FR 32835), we proposed that the
Agency's Clean Data Policy \33\ would remain effective under the 8-hour
ozone NAAQS, and we therefore intend to apply this policy in
implementing this final rule for areas that achieve the 8-hour NAAQS.
Thus, if an area attains the 8-hour ozone NAAQS, under the Agency's
``Clean Data Policy,'' EPA may waive the 1-hour RFP obligation for the
area based on a determination that the area has attained the 8-hour
NAAQS. Under that policy, the State will not be subject to the 1-hour
RFP requirement for so long as the area remains in attainment with the
8-hour NAAQS. (The EPA will address the applicability of the Clean Data
Policy for 8-hour ozone nonattainment areas in Phase 2 of the
implementation rule.)
---------------------------------------------------------------------------
\33\ Op cit.
---------------------------------------------------------------------------
We believe that there is ambiguity in the statute regarding whether
areas should remain subject to the requirement to submit planning SIPs,
such as the 1-hour ROP plans. Unlike control obligations, we do not
believe there is as strong an argument that Congress intended areas to
continue to
[[Page 23975]]
submit planning SIPs for a NAAQS that EPA has determined is no longer
necessary to protect public health. Section 172(e), which applies when
EPA relaxes a NAAQS, only requires EPA to ensure that control measures
are no less stringent than they were for the more stringent NAAQS that
has been replaced. It does not indicate a Congressional intent that
areas remain obligated to plan for and meet a NAAQS as it existed
before it was revised. However, both attainment demonstrations and ROP
plans result in the adoption of control obligations. And, if EPA
determined that these planning requirements did not apply at all, areas
currently designated nonattainment for the 1-hour NAAQS that have not
met these obligations might be subject to less stringent controls than
would have otherwise applied. Thus, in considering how to treat this
obligation, we balanced the need to ensure the same level of control
with the difficulties associated with meeting this obligation.
For purposes of ROP, the exercise of calculating the reductions
necessary to meet ROP is relatively simple. Moreover, as provided
above, even if the State must calculate ROP separately for the 1-hour
and 8-hour NAAQS, it may still rely on one or more of the same control
measures to meet both those obligations. Additionally, we believe that
most of the areas with an outstanding 1-hour ROP obligation will be
able to demonstrate that the 8-hour RFP targets for the same time
period will be more stringent and thus will not be required to prepare
a separate 1-hour ROP plan. Finally, we note that States have already
submitted and, EPA has already approved 1-hour ROP plans for most 1-
hour nonattainment areas. Thus, the anti-backsliding provisions
regarding the continued obligation to adopt and submit 1-hour ROP plans
will affect only a handful of areas. For these reasons, we are adopting
a regulation that requires areas that are 8-hour NAAQS nonattainment/1-
hour NAAQS nonattainment to continue to adopt and achieve the level of
ROP reductions mandated by Congress under the CAA for that NAAQS.
(3) Comments and responses
Comments on June 2, 2003 Proposal: Few commenters submitted
comments on the portion of the proposed rule discussing the anti-
backsliding requirements applicable to 1-hour ROP. Several commenters
generally opposed any continued planning obligations under the 1-hour
NAAQS, but did not raise specific concerns with respect to ROP.
Similarly, a number of other commenters opposed revocation of the 1-
hour NAAQS and urged retention of all 1-hour planning and control
obligations; but again, these commenters did not raise concerns
specific to the proposed anti-backsliding approach for ROP.
One commenter, addressing section 51.905(a)(1)(iii) of the draft
regulatory text, argued that States should have the ability to modify
ROP measures if it can be demonstrated that they are not needed for
purposes of meeting requirements under the 8-hour NAAQS or if measures
are no longer appropriate due to updated technical information
regarding emissions inventory and control strategy effectiveness.
Another commenter objected to retaining the 1-hour ROP requirement,
primarily because areas recently reclassified to a higher
classification would have a continuing obligation for ROP even if they
were not required to develop an RFP plan under the 8-hour NAAQS.
Another commenter believed the 1-hour ROP requirement should only be
required where it is demonstrated to be needed for attainment of the 8-
hour NAAQS.
Response: As provided above, we believe Congress intended areas to
continue to have control measures no less stringent than those that
applied for the 1-hour NAAQS. Because the ROP obligation results in
control obligations, we believe areas should remain obligated to adopt
outstanding ROP obligations to ensure that the ROP milestones are met.
If a State believes adopted controls are not the best fit for the 8-
hour NAAQS, the State retains full discretion to revise those controls
so long as the revision doesn't interfere with the ROP milestones.
Without this provision, an area with an unmet obligation to submit
and implement a ROP plan under the 1-hour NAAQS could experience
backsliding by being released from the obligation to have controls in
place that achieve a specified level of emissions reductions during the
interim period prior to implementation of the SIP required for the 8-
hour NAAQS. In other words, if the 1-hour NAAQS were not revoked, the
area would have been required to continue to ensure emissions would be
reduced by specified levels in specific timeframes. If the final rule
contained no provision comparable to section 51.905(a)(1)(i),
achievement of those emissions reductions would almost certainly be
delayed. Because we are transitioning to a more stringent and
protective air quality NAAQS. We see no reason why there should be
provisions that would provide less protection to public health.
(B) Unmet attainment demonstration obligations (section VI.C.3.a.iv
of proposal; see 68 FR 32822; section 51.905(a)(1)(ii) of the draft and
final rules)
(1) Background. Most areas designated nonattainment for the 1-hour
ozone NAAQS have fully approved attainment demonstrations for the 1-
hour NAAQS. Because there are so few areas without approved attainment
demonstrations, in the proposed rule we identified the two types of
situations of which we were aware and solicited comment on how to
handle those situations. First, there are a few areas that do not have
a fully approved attainment demonstration because the area has not
acted in accordance with the timelines provided under the CAA. The
second situation is an area which has a future obligation to submit an
attainment demonstration. In general, these are areas that, over the
past several years, have been reclassified (i.e., ``bumped up'') to a
higher classification. In the preamble to the proposal, we discussed
the policy reasons that would support retention of the obligation to
submit an attainment demonstration and the policy reasons that would
counsel against retention of that obligation (68 FR 32822). For both
these groups of areas, we solicited comment on whether to retain the
obligation to develop a 1-hour attainment demonstration. In addition,
we solicited comment on two alternatives that would address many of the
policy concerns we noted.
Alternative 1 would require that areas with a current or past due
obligation to submit a new or revised attainment demonstration instead
be required to submit a SIP revision that would obtain an advance
increment of local emissions reductions toward attainment of the 8-hour
ozone NAAQS within a specified, short-term timeframe; 5 percent and 10
percent were suggested possibilities for the increment. Under
Alternative 2, areas with a current or past due obligation to submit a
1-hour attainment demonstration would be required to submit their 8-
hour ozone attainment demonstration early in lieu of being required to
submit a 1-hour attainment demonstration. The draft regulatory text was
developed using the first alternative, and used a 10 percent increment.
(2) Summary of final rule. In the final rule, we are allowing the
States to choose among three options that are tailored after the
approaches addressed in the proposed rule. Thus, rather than
establishing one mandatory approach, we are adopting a rule that will
allow
[[Page 23976]]
States to choose any one of the following three options:
Option 1. Submit a 1-hour attainment
demonstration.
Option 2. Submit, no later than 1 year after the
effective date of the 8-hour designations, an early increment of
progress plan toward the 8-hour NAAQS which provides:
A 5 percent increment of reduction from the 2002
emissions baseline (NOX and/or VOC). The control measures
for achieving this increment must be in addition to measures (or
enforceable commitments to measures) in the SIP as of the effective
date of designation and in addition to national or regional measures.
(The State can take credit for this increment of reduction toward its
RFP requirement under the 8-hour NAAQS.)
For achievement of the emissions reductions
within 2 years after submittal (i.e., 3 years after designation).
Option 3. Submit an early 8-hour ozone
attainment demonstration SIP 1 year after the effective date of
designation for the 8-hour NAAQS that:
Demonstrates attainment of the 8-hour NAAQS by
the area's attainment date,
Provides for 8-hour RFP consistent with the
area's classification out to the area's attainment date, and
Ensures that the first segment of RFP \34\
between the end of 2002 and the end of 2008 is achieved early--by the
end of 2007.
---------------------------------------------------------------------------
\34\ The amount of which will depend on the ROP option in the
final rule and the classification of the area.
---------------------------------------------------------------------------
With respect to Option 2, the final rule specifies a 2002 baseline
year for calculating the early increment of progress whereas the draft
regulatory text did not provide a specific baseline year.
As noted above in the ROP section, we believe the statute is
ambiguous regarding the need for States to address planning for a NAAQS
no longer needed to protect public health. However, since these
planning SIPs result in the adoption of control measures, which we
believe Congress intended be no less stringent, we examined what
approaches would ensure controls are adopted and implemented without
unnecessarily obligating States to plan for a NAAQS not needed to
protect public health.
Unlike planning for ROP, preparing an attainment demonstration
involves complex modeling and analyses that can be resource intensive
both in terms of workload and cost. We don't believe it is appropriate
or necessary to mandate that States perform the attainment
demonstration for a NAAQS that is not needed to protect public health.
But we also do not believe it is appropriate to waive in total this
obligation in light of the need to ensure there is no delay in
achieving emissions reductions to protect public health. We are
adopting an approach that provides States with options because it
provides maximum flexibility to States that have outstanding attainment
demonstration obligations while continuing to obtain in a timely
fashion many or all of the emissions reductions that should occur under
those obligations, effecting an orderly transition to planning under
the 8-hour NAAQS. In addition, we do not believe it is equitable to
relieve these areas of this obligation where other areas have already
adopted controls to meet these obligations and will not be able to
modify or remove such controls unless the State can demonstrate that
such action is consistent with section 110(l).
Thus, in balancing Congressional intent to ensure no backsliding,
equitable treatment of all areas, the need for areas to begin planning
for the 8-hour NAAQS and the limited planning resources that States
have available, we believe the best approach is to provide States with
several alternatives, each of which will achieve emissions reductions
on a timeframe similar to when they would have been achieved for the 1-
hour NAAQS through a 1-hour attainment demonstration SIP. The State may
choose the option that is least burdensome in light of activities
already performed. For example, States with a 1-hour attainment
demonstration that is past due or is due in the next several months may
have already made significant progress in developing a 1-hour
attainment demonstration SIP. Thus, these States may choose the first
option. We are aware that one or more States have already begun the
process of developing 8-hour attainment demonstrations for some 1-hour
nonattainment areas. These States may choose to submit an early 8-hour
attainment demonstration SIP. Other areas, which have not yet made
significant progress on 1-hour or 8-hour attainment planning, may wish
to reserve more time for the attainment demonstration process, which
can involve complex modeling, and thus choose the third option--to
achieve an early increment of progress.
For the second option available to States, we chose 5--rather than
10--percent as the amount of reduction. Under this option, States must
achieve the 5 percent emission reduction from local controls (not
currently required by the SIP) and within 3 years of designation for
the 8-hour NAAQS. In light of the quick timeframe in which to achieve
the reductions following designations and the limitation that such
reductions cannot be from regional or national controls or from
measures already in the SIP, we concluded that 10 percent was unduly
burdensome. The States that choose this option will need to identify
and adopt appropriate controls within a 1-year timeframe and require
sources to implement the controls within a short time thereafter. These
limitations will restrict the control choices available to States. In
addition, because of the limited timeframe for adoption and submission
of the controls to EPA, we do not believe it is reasonable to require
the State to obtain a level of reduction that would force the States to
concentrate its resources on the early ROP reduction rather than on an
8-hour attainment plan. However, because the State will not be able to
rely on national or regional controls, we are confident that the 5
percent requirement will achieve the anti-backsliding goal.
Finally, as with the 1-hour ROP requirement, we note that EPA may
waive the 1-hour attainment demonstration requirement for areas based
on a determination that the area has attained the 8-hour NAAQS. The
EPA's Clean Data Policy \35\ provides that if EPA has determined that
an area has attained the 1-hour NAAQS, it will not be obligated to
submit a 1-hour attainment demonstration for so long as it maintains
the 1-hour NAAQS. Thus, extending this policy to the 8-hour NAAQS, if
EPA determines that an area has attained the 8-hour ozone NAAQS before
the time the area is obligated to make a submission under this portion
of EPA's 8-hour implementation regulations, EPA would waive this
requirement for so long as the area remains in attainment with the 8-
hour NAAQS. (The EPA will address the applicability of the Clean Data
Policy for 8-hour ozone nonattainment areas in Phase 2 of the
implementation rule.)
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\35\ Memorandum of May 10, 1995, ``RFP, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment
Areas Meeting the Ozone National Ambient Air Quality Standard,''
from John S. Seitz, Director, Office of Air Quality Planning and
Standards. Available at: http://www.epa.gov/ttn/oarpg/t1/memoranda/clean15.pdf.
---------------------------------------------------------------------------
(3) Comments and responses.
Comment: Several commenters advocated retaining the planning
obligations under the 1-hour NAAQS, expressing the belief that momentum
will be lost in implementing controls if these obligations are not
retained. In general, most of these commenters also
[[Page 23977]]
opposed revocation of the 1-hour NAAQS and believed Congress intended
the 1-hour NAAQS to be planned for and met. Some commenters opposed
retaining the attainment demonstration requirements under the 1-hour
NAAQS after the NAAQS is revoked on the basis that State resources are
limited and should be focused on developing plans for implementing the
8-hour rather than the 1-hour NAAQS. A few commenters favored the
alternative of requiring an early plan with an advance increment of
emissions reductions toward progress of the 8-hour NAAQS in lieu of the
attainment demonstration SIP revision. A few other commenters favored
the alternative of requiring States to submit an early attainment
demonstration SIP for the 8-hour NAAQS.
Only one commenter believed that 10 percent was the appropriate
amount under Alternative 1 for an advance increment of progress;
several others opposed 10 percent, claiming that it appeared to be
punitive, that there was no technical support for that amount, and that
it may be more than what was needed for attainment of the 8-hour NAAQS.
Some commenters recommended that exceptions be made for any area
that made good faith efforts to develop and submit its plan, such as
those with a submitted and approved plan that may have been challenged
and overturned by a court.
Response: We have designed the final rule such that an area without
an approved attainment demonstration or ROP plan would still be
required to submit and implement a ROP plan and an attainment
demonstration or substitute plan as required for the 1-hour NAAQS. We
believe this approach will ensure there are no delays in achieving
emissions reductions as we transition to the more stringent 8-hour
ozone NAAQS.
We believe that areas that have not met their planning obligations
under the 1-hour NAAQS--if relieved of that obligation after the 1-hour
NAAQS is revoked--would provide emissions reductions on a more
protracted time schedule than areas that had met their 1-hour NAAQS
planning obligations. For example, an area that is classified severe-15
for the 1-hour NAAQS would have to obtain RFP reductions and any
additional reductions needed for attainment by the end of 2005, whereas
if that same area is moderate under the 8-hour NAAQS, it would not be
required to obtain reductions under the RFP provisions until 2008 and
additional reductions for attainment by some time in 2009. We believe
that the provisions of the final rule--by offering three alternative
means of meeting the 1-hour attainment demonstration obligation--allow
sufficient flexibility for a State in these circumstances to choose the
most appropriate means to achieve these reductions in the time intended
by Congress.
d. Section 51.905(a)(2): 8-hour NAAQS Nonattainment/1-hour NAAQS
Maintenance
In the June 2003 proposal, we discussed the requirements for areas
designated as attainment for the 1-hour NAAQS with a maintenance plan
at the time of designation for the 8-hour NAAQS in the same sections
discussing the requirements for areas designated nonattainment for the
1-hour NAAQS at the time of 8-hour designations. However, in the draft
regulatory provisions, we created a separate subparagraph addressing
these areas. Below, we indicate briefly where the obligations for these
areas, i.e., maintenance areas at the time of designation, are the same
as for areas designated nonattainment for the 1-hour NAAQS at the time
of 8-hour designations. We discuss in more detail where the obligations
differ.
(i) Mandatory Control Measures. (section VI.C.3.a.i. of proposed
rule; see 68 FR 32821; sections 51.900(f) and 51.905(a)(2) of draft and
final rules).
(A) Background. In the June 2003 proposal, we proposed that all
areas designated nonattainment for the 8-hour NAAQS and that were
nonattainment or maintenance for the 1-hour NAAQS at the time of 8-hour
designations would be required to continue to implement mandatory
measures adopted into the approved SIP. We did not distinguish between
areas designated nonattainment for the 1-hour NAAQS at the time of
designation for the 8-hour NAAQS and areas that are maintenance for the
1-hour NAAQS at the time of designation for the 8-hour NAAQS. However,
in the draft regulatory text, we created a separate provision for
maintenance areas because these areas do not have an outstanding
obligation to adopt mandatory control obligations for the 1-hour
NAAQS.\36\ Thus, the draft regulatory provision for maintenance areas
did not address the future adoption of controls; it simply provided
that these areas would be required to continue to implement the
applicable requirements (as defined in the regulatory text) in the
approved SIP.
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\36\ In order to redesignate these areas to attainment, EPA had
to determine these areas had met all obligations under part D. See
CAA section 107(d)(3)(E).
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We also provided in the June 2003 proposal and the draft regulatory
text that if a maintenance area had previously shifted a mandatory
control measure to the contingency provisions, the area would not be
required to begin implementation of that measure based on the 8-hour
nonattainment designation. However, the measure would need to remain as
a contingency measure for the area and could not be removed from the
SIP.
(B) Final Rule. We are adopting the approach we took in the
proposal and the draft regulatory text. Areas that are maintenance for
the 1-hour NAAQS at the time of 8-hour designations and are designated
nonattainment for the 8-hour NAAQS, must continue to implement
mandatory control requirements (i.e., ``applicable requirements'') that
have been approved into the SIP. However, since maintenance areas do
not have any outstanding obligation to adopt mandatory control measures
for the 1-hour NAAQS, the provision only addresses implementation, not
adoption. In addition, this section recognizes that maintenance areas
had the flexibility to move mandatory controls to the contingency
measures portion of their maintenance plan. The area would not be
required to implement these measures unless it is required to do so for
the area's classification for the 8-hour NAAQS. However, the measures
would need to remain as contingency measures and could not be removed
from the SIP.
We are adopting the requirement that 1-hour maintenance areas are
required to continue to implement mandatory controls for the same
reasons we provided with respect to 8-hour NAAQS nonattainment/1-hour
NAAQS nonattainment areas above. With respect to mandatory measures
that the State has moved to the contingency portion of the maintenance
plan, we do not believe that Congress intended to require areas to
begin implementing such measures again based on the promulgation of a
revised NAAQS unless required based on the area's classification for
the revised NAAQS. These areas have fully complied with the process
that Congress established--attainment of the (then-existing) NAAQS and
redesignation to attainment for that NAAQS based on a plan
demonstrating that the area will maintain the NAAQS. While we believe
these areas should not ``backslide'' from existing control levels, we
do not believe that for purposes of the 8-hour NAAQS they should be
required to begin implementing once more measures that the State has
chosen to place in the contingency measures portion of the SIP.
(ii) Discretionary Control Measures. (Section VI.C.3.a.ii. of
proposed rule,
[[Page 23978]]
see 68 FR 32821, Section 51.905(a)(2) of draft regulatory text; there
is no parallel provision in the final rule.)
(A) Background. The June 2, 2003 proposal did not discuss the
requirements for these areas independent of all areas that were
designated nonattainment for the 1-hour NAAQS on or after November 15,
1990. The draft regulatory text (section 51.905(a)(2)), however, did
provide for this situation separately but did not directly address
discretionary measures.
(B) Summary of Final Rule. As with discretionary control measures
for 8-hour NAAQS nonattainment/1-hour NAAQS nonattainment areas, 1-hour
NAAQS maintenance/8-hour NAAQS nonattainment areas will retain the
discretion to modify any discretionary control measures upon a
demonstration under section 110(l). We are not promulgating regulatory
text because, as described above, sections 110(l) and 193 of the CAA
govern such SIP revisions.
(iii) Measures to address growth. (Section VI.C.3.a.iii of proposed
rule; see 68 FR 32821; sections 51.900(f) and 51.905(a)(1) of the draft
and final rules)
(A) Background. In the proposal, we recognized that 1-hour
maintenance areas generally are subject to the prevention of
significant deterioration (PSD) program and are no longer implementing
the nonattainment NSR program for their previous 1-hour ozone
designation and classification.\37\ For areas where the NSR program no
longer applies under the SIP, we proposed that the areas would not need
to revert back to the NSR program they had for purposes of the 1-hour
NAAQS. The proposal provided examples of how this would work (68 FR
32821).
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\37\ If an area located in the Ozone Transport Region was
redesignated to attainment, section 184(b)(2) of the CAA required it
to retain a nonattainment NSR program. In addition, it is possible
that one or more areas still has a nonattainment NSR program in
place because of the way the State wrote the SIP.
---------------------------------------------------------------------------
(B) Summary of final rule. We are adopting the approach we proposed
but our rationale relies on the final rule's provision that NSR under
the 1-hour standard will no longer apply as of revocation of the 1-hour
standard. If an area has been redesignated to attainment for the 1-hour
NAAQS as of the effective date of the 8-hour nonattainment designation
and is no longer required to implement a nonattainment NSR program, the
area will not be required to revert back to the program it had for
purposes of the 1-hour ozone NAAQS. As noted elsewhere, NSR offset
ratios and source applicability provisions under the 1-hour standard
are not being defined as ``applicable requirements'' after the 1-hour
standard is revoked.
As provided in more detail below for 8-hour NAAQS nonattainment/1-
hour NAAQS nonattainment areas, we have determined that 1-hour NAAQS
NSR should not continue to apply once the 1-hour NAAQS is revoked for
those areas. It would not be reasonable to require these areas to begin
those 1-hour programs again for the 1-year between designation for the
8-hour NAAQS and revocation of the 1-hour standard. Moreover, Congress
did not intend the nonattainment NSR program to continue to apply to
most areas once they are redesignated to attainment. Rather, such areas
are subject to the PSD program. For an area that has met the clean air
goals for the 1-hour NAAQS, we see no reason to require such area to
revert back to its 1-hour NSR program. These areas will be required to
implement the nonattainment NSR program that applies based on their
classification for the 8-hour ozone NAAQS.
(iv) Planning SIPs. (Section VI.C.3.a.iV. of proposed rule, see 68
FR 32822; no specific provision in draft regulatory text or final
rule.)
(A) Background. In the June 2003 proposal, we did not discuss
maintenance areas separate from 8-hour NAAQS nonattainment/1-hour NAAQS
nonattainment areas. However, the preamble discussion focused on areas
with an outstanding obligation to submit a 1-hour ROP or attainment
plan and the obligation to ensure that the ROP percentage reduction
obligations in the approved SIP are achieved. Maintenance areas for the
1-hour NAAQS do not have an outstanding obligation to submit ROP or
attainment plans for the 1-hour NAAQS. Thus, the draft regulatory text
did not include language similar to that in 51.905(a)(ii) and (iii) for
maintenance areas. The draft regulatory text did reflect ROP as an
applicable requirement for maintenance areas, indicating that these
areas must ensure that any SIP revision does not interfere with an
approved ROP milestone.
(B) Summary of final rule. We are adopting the approach taken in
the draft regulatory text. In redesignating an area to attainment, EPA
must conclude that the area has met all requirements applicable under
section 110 and part D. Thus, maintenance areas do not have continuing
progress and attainment demonstration requirements, and the final rule
does not establish requirements for maintenance areas related to
outstanding attainment demonstration and ROP plans. The final rule does
identify the ROP percent reduction requirement as an applicable
requirement. However, we note that the ROP periods for areas
redesignated to attainment for the 1-hour NAAQS have already passed and
thus any revision to the SIP should not affect ROP reductions for the
periods required for the 1-hour NAAQS.
(C) Comments and responses.
Comment: One commenter believed that 1-hour maintenance areas
designated nonattainment under the 8-hour NAAQS should not have to
submit updates to the 1-hour maintenance plan, since they will be
developing 8-hour attainment plans that will subsume the requirements
of the maintenance plan previously in effect.
Response: The rule provides that after the 1-hour ozone NAAQS is
revoked, areas are relieved of responsibilities to submit updates to
their 1-hour maintenance plans. The State may submit a revision to the
SIP to remove the provisions that require the update to the maintenance
plan.
Comment: One commenter noted that draft Section 51.905(a)(2) would
limit shifting of an applicable requirement to the contingency measure
portion of an area's maintenance plan. Under the proposal, a State may
only make such a shift prior to the revocation of the 1-hour NAAQS;
States may only make subsequent shifts by satisfying the requirements
of section 110(l) of the CAA. The commenter believes that this
criterion for shifting measures to the maintenance plan is more
stringent and burdensome than the requirements in section 175A of the
CAA for maintenance plans. In the alternative, the commenter recommends
that in lieu of the showing required by Section 110(l), that States,
instead, be allowed to substitute a control measure with equivalent
emissions reductions for the measures they propose to remove from their
plan.
Response: We agree with the commenter that section 51.905(a)(2)
will limit the authority of an area that was maintenance for the 1-hour
standard at the time of designation as nonattainment for the 8-hour
standard. However, we disagree with the commenter regarding the
statutory provisions that apply for purposes of SIP revisions. The
commenter is incorrect that section 110(l) does not apply to revisions
to maintenance plans. Prior to being designated nonattainment for the
8-hour NAAQS, such an area could move adopted measures to the
contingency measures portion of the maintenance plan based on a
demonstration under section 110(l) that such a revision would not
interfere with attainment, maintenance or any other applicable
requirement of the CAA. Our
[[Page 23979]]
rule provides that upon designation as nonattainment for the 8-hour
NAAQS, a 1-hour maintenance area will not be able to shift adopted
mandatory controls (i.e., those identified as ``applicable
requirements'' in the regulation) to contingency measures as those
obligations are now defined as ``applicable requirements.'' Once the
area is redesignated to attainment for the 8-hour NAAQS, such
obligations will no longer be defined as ``applicable requirements''
and the State can move them to contingency measures based on a
demonstration that to do so would not interfere with attainment or
maintenance of the 8-hour NAAQS or any other applicable requirement of
the CAA. For adopted control measures that are not identified as
``applicable requirements'' in the regulation, the State will continue
to have the same authority it currently has for shifting adopted
controls to contingency measures, based on a demonstration under
section 110(l).
Comment: One commenter noted that in section 51.905(a)(2), the
clause ``* * * except to the extent required under its 8-hour
obligations * * *'' could be interpreted to imply that contingency
measures in the 1-hour maintenance plan become 8-hour measures by
default. The commenter suggested language to avoid an incorrect
interpretation.
Response: The final rule reflects this recommended language change
with some slight modifications.
e. Section 51.905(a)(3): 8-Hour NAAQS Attainment/1-Hour NAAQS
Nonattainment
(i) Mandatory control obligations. (Section VI.C.3.b. of proposal,
see 68 FR 32823; section 51.905(a)(3)(i) of the draft and final rule)
(A) Background. The proposal noted that the issue of what
obligation remains with respect to mandatory control measures approved
into the SIP or required under the CAA is based on the CAA's
requirements for maintenance plans. We proposed that if EPA determined
that these areas were required to develop maintenance plans pursuant to
section 175A, then they would need to keep (or to adopt and then keep)
those control measures in the SIP, though they could shift them to
contingency measures.
For an area that was never redesignated to attainment for the 1-
hour standard and never had a section 175A maintenance plan, we
proposed that if the area wants to revise any part of its current 1-
hour SIP, the area must first adopt and submit a maintenance plan
consistent with section 110(a)(1) (discussed below). We proposed that
these obligations would remain in place but in a later section of the
preamble proposed options as to when this obligation would no longer
apply.\38\
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\38\ These two options were: (1) When the area attains the 1-
hour NAAQS, or (2) when the area attains the 8-hour NAAQS.
---------------------------------------------------------------------------
(B) Summary of final rule.
We are adopting an approach consistent with our proposed rule. As
we discuss later in this preamble, we have determined that mandatory
control obligations will no longer apply once an area attains the 8-
hour NAAQS. Thus, because these areas are attaining the 8-hour NAAQS,
the State may request that obligations under the applicable
requirements of section 51.900(f) be shifted to contingency measures
once the 1-hour NAAQS is revoked, consistent with sections 110(l) and
193 of the CAA. However, the State cannot remove the obligations from
the SIP.
Because these areas are in attainment with the health-based NAAQS,
we believe that Congress--as with areas redesignated from nonattainment
to attainment--did not intend the areas to retain these controls as
implemented measures if the area can demonstrate maintenance without
the controls. As with areas redesignated to attainment, the rule
provides that the State cannot remove the measures from the SIP, but
rather may move them to the contingency measures portion of the SIP. We
did not receive comments directly addressing mandatory control
obligations for this category of areas outside the context of
maintenance plans for these areas discussed below.
(ii) Discretionary control obligations. (Section VI.C.3.b.iii. of
proposal; 68 FR 32823; section 51.905(d) of draft regulatory text; no
parallel provision in final rule.)
Areas designated nonattainment for the 1-hour NAAQS that are
designated attainment for the 8-hour ozone NAAQS will retain the
ability to modify any discretionary controls upon a demonstration under
section 110(l). However, such controls must remain in the SIP as
contingency measures. We are not promulgating regulatory text because,
as described above, sections 110(l) and 193 of the CAA govern such SIP
revisions. As with mandatory measures, we look to the maintenance plan
provision of section 175A to see what Congress' intent may have been
for these areas. Because these areas were nonattainment for the 1-hour
NAAQS, we believe Congress intended them to retain the measures in the
SIP, but could shift them to contingency measures if the area
demonstrates it will maintain the 8-hour NAAQS if the measure is no
longer implemented. We did receive comments directly addressing
discretionary control obligations for this category of areas outside
the context of maintenance plans for these areas discussed below.
(iii) Measures to address growth. (Section VI.C.3.b.i. of proposal;
68 FR 32823; no provision in draft or final rule.)
(A) Background. The proposal explained that NSR applies only in
nonattainment areas.\39\ Since these areas would be designated
attainment for the 8-hour NAAQS--the only ozone NAAQS that exists for
the area once the 1-hour NAAQS is revoked--they would be subject to
PSD, not NSR, once the 1-hour NAAQS is revoked.
---------------------------------------------------------------------------
\39\ If an area located in the Ozone Transport Region was
redesignated to attainment, section 184(b)(2) of the CAA required it
to retain a nonattainment NSR program. In addition, it is possible
that one or more areas still has a nonattainment NSR program in
place because of the way the State wrote the SIP.
---------------------------------------------------------------------------
(B) Summary of final rule. We are adopting the approach we set
forth in our proposed rule for areas designated attainment for the 8-
hour NAAQS and designated nonattainment for the 1-hour NAAQS at the
time of designation for the 8-hour NAAQS. After the 1-hour NAAQS is
revoked, the CAA requires such areas to comply with PSD, not NSR. (The
States may need to modify their SIPs so that it provides for PSD rather
than NSR in such areas.) We do not see a basis for mandating that such
areas retain a nonattainment NSR program and do not believe that
Congress intended such a result. As an initial matter, once the 1-hour
NAAQS is revoked, these areas are meeting the only ozone NAAQS that is
in place. Congress specified that PSD shall apply in areas not
designated nonattainment (section 161 of the CAA). In addition, as
provided in more detail below for 8-hour NAAQS nonattainment/1-hour
NAAQS nonattainment areas, we have determined that 1-hour NAAQS NSR
should not continue to apply once the 1-hour NAAQS is revoked for those
areas.
Note that for these areas, the NSR provisions may be removed from
the SIP and need not be shifted to contingency measures.\40\ We have
never interpreted section 175A of the CAA to mandate that nonattainment
NSR be retained as a contingency measure in the SIP after an area is
redesignated from nonattainment to attainment because we do not
interpret NSR to be a control
[[Page 23980]]
measure. (See, e.g., May 12, 2003; 68 FR 25436.)
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\40\ Memorandum from Mary Nichols to Regional Air Division
Directors dated October 14, 1994, entitled ``Part D New Source
Review (part D NSR) Requirements for Areas Requesting Redesignation
to Attainment.''
---------------------------------------------------------------------------
(C) Comments and responses.
Comment: Some commenters believed that the 1-hour NAAQS should
remain in effect, and therefore NSR would continue to apply until the
area attains the 1-hour NAAQS and is redesignated to attainment for
that NAAQS regardless of the area's status for the 8-hour NAAQS. Other
commenters generally agreed with the proposal.
Response: We address the broader legal and policy issues regarding
revocation of the 1-hour NAAQS in the revocation section of this rule.
(iv) Planning SIPs. (Section VI.C.3.b(ii) of proposed rule; see 68
FR 32823; section 51.905(a)(3)(ii) of draft and final rule.)
(A) Background. In the June 2, 2003 proposed rule, we proposed that
any outstanding SIP planning requirements (ROP plans and attainment
demonstrations) that applied for purposes of the 1-hour NAAQS would not
continue to apply to areas designated attainment for the 8-hour NAAQS
for as long as they continue to maintain the 8-hour NAAQS. If such an
area violates the 8-hour NAAQS prior to having an approved maintenance
plan meeting the requirements of section 110(a)(1) the obligation to
have a 1-hour attainment demonstration and ROP plan would once again
apply in the same manner that they apply for 8-hour NAAQS
nonattainment/1-hour NAAQS nonattainment areas.
The draft regulatory text (section 51.905(a)(3)) contained specific
provisions addressing the obligation for an area designated attainment
for the 8-hour NAAQS that subsequently violates the 8-hour NAAQS prior
to having an approved maintenance plan under section 110(a)(1). If the
area was required to and does not have an approved attainment
demonstration or ROP plan for the 1-hour NAAQS, the State would be
required to submit a plan providing for a 10 percent emission reduction
as a substitute for the attainment demonstration and to adopt and
submit any outstanding ROP emission reductions.
(B) Summary of final rule. We are adopting our proposal with some
modification. As an initial matter, section 51.905(a)(3) now only
addresses 8-hour NAAQS attainment/1-hour NAAQS nonattainment areas. We
have created a new section 51.905(a)(4) that addresses 8-hour NAAQS
attainment/1-hour NAAQS maintenance areas. The section addressing that
second category of areas is discussed below. An area that is 8-hour
NAAQS attainment/1-hour NAAQS nonattainment will not be required to
develop and submit outstanding attainment demonstration and ROP plans
for the 1-hour NAAQS for so long as the area continues to maintain the
8-hour NAAQS. However, if the area violates the 8-hour NAAQS prior to
having an approved 8-hour maintenance plan under section 110(a)(1), the
area will be required to submit a SIP revision to address outstanding
ROP and attainment demonstration plans as follows.\41\
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\41\ We discuss the obligation for these areas to adopt a
section 110(a)(1) maintenance plan below.
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(1) ROP Plans. For an outstanding 1-hour ROP plan, the State must
submit a SIP providing for any outstanding ROP and the 3-year periods
for achieving those reductions will begin January 1 of the year
following the 3-year period on which EPA bases its determination. For
example, if an area was required to and does not have an approved SIP
providing for a 9% reduction in emissions from 1996-1999, the
obligation to have such a SIP is deferred unless the area violates the
8-hour NAAQS prior to having an approved maintenance plan for the 8-
hour NAAQS. If EPA determines in August 2007 that the area violated the
8-hour NAAQS based on ambient air quality data from 2004-2006 and at
that time the area does not have an approved maintenance plan for the
8-hour NAAQS, the area will be required to submit a SIP providing for a
9 percent reduction in emissions for the 3-year period of January
2007--December 2009. The State may rely on national and regional
controls for purposes of meeting this increment of reduction and the 9
percent should be calculated using the 1990 baseline. (The 1-hour ROP
requirement is calculated from a 1990 baseline, not a 2002 baseline, as
is the 8-hour RFP requirement.) We have clarified the language in the
final regulation to make clear that the requirement to submit the plan
for additional emission reductions applies only to the extent that an
area had not met its prior planning obligations. For example, if an
area was classified as serious for the 1-hour NAAQS and had an approved
15 percent ROP plan and an approved 9 percent ROP plan for 1996-1999,
then the area does not have any outstanding ROP obligation that must be
met under this provision. However, if the same area only had an
approved 15 percent ROP plan, but not an approved 9 percent ROP plan
for 1996-1999, then the area has an outstanding 9 percent ROP plan for
the 1996-1999 period. If the State had submitted the ROP plan to EPA,
but EPA had not yet acted on the submission, the State may notify EPA
that it wishes to rely on the previously submitted SIP or it may elect
to submit a new or revised SIP.
We believe this approach makes sense as it ensures that the level
of emission reduction that the area was required to achieve, but was
not yet enforceable under the SIP, will be achieved expeditiously after
a violation of the 8-hour NAAQS occurs.
(2) Attainment Demonstration. For an outstanding 1-hour attainment
demonstration, the final rule requires the State to either: (1) submit
an 8-hour maintenance plan that addresses the violation and
demonstrates maintenance through EPA-approved modeling; or (2) submit a
plan to achieve a 3 percent increment of progress within 3 years after
EPA determines the area has violated the NAAQS. The 3 percent increment
of progress must be in addition to measures (or enforceable commitments
to measures) in the SIP at the time of the effective date of
designation and in addition to national or regional measures.
This approach differs from both the June 2003 proposal and the
draft regulatory text in that we do not establish precisely the same
requirement for these areas that we establish for areas that are 8-hour
NAAQS nonattainment/1-hour NAAQS nonattainment. For areas that are 8-
hour NAAQS nonattainment/1-hour NAAQS nonattainment, section
51.905(a)(1)(ii) provides three options for the State. The first option
available is that States may choose to submit their 1-hour SIP. We do
not believe this option makes good policy sense for an area designated
attainment for the 8-hour NAAQS to spend resources to develop a plan to
achieve the 1-hour NAAQS (which is likely to have been revoked by that
time), when the area will already be in the process of developing the
section 110(a)(1) maintenance plan for the area discussed elsewhere in
this preamble.
The second and third options under section 51.905(a)(1)(ii)
available to areas that are 8-hour NAAQS nonattainment/1-hour NAAQS
nonattainment are analogous but not identical to the two options we
provide for areas designated attainment for the 8-hour NAAQS. Both
types of areas are provided with the option of achieving a specified
increment of progress. For areas that are 8-hour NAAQS nonattainment/1-
hour NAAQS nonattainment, we established an increment of 5 percent and
for those designated attainment for the 8-hour NAAQS, we established a
3 percent increment. In general, we believe that those areas initially
designated attainment for the 8-hour NAAQS will
[[Page 23981]]
have a less significant 8-hour problem--these areas tend to record
values within a few parts per billion of the NAAQS. Thus, since the
increment of progress is limited to controls not already adopted into
the SIP or required by federal or regional controls, the 5 percent
reduction requirement would likely be excessive for purposes of
addressing that small deviation from the NAAQS.
The third option available to areas that are 8-hour NAAQS
nonattainment/1-hour NAAQS nonattainment is to submit an early 8-hour
attainment demonstration. Since areas designated attainment for the 8-
hour NAAQS are not required to develop attainment demonstrations, it
did not make sense to carry this option over. Rather, we determined it
made more sense to allow the area to address the violation in the
context of the obligation that it does have, i.e., to develop a
maintenance plan for the 8-hour NAAQS. Thus, for these areas, we
created the option of performing a more rigorous maintenance
demonstration--a demonstration based on EPA-approved modeling.
(C) Comments and responses.
Comment: Some commenters on draft regulatory text objected to
continuing the obligation for areas to submit ROP plans and/or
attainment demonstrations for the 1-hour NAAQS after the 1-hour NAAQS
is revoked. Some of the comments reflected the fact that the regulatory
text may have been unclear regarding what the requirement entailed and
which areas were affected.
Response: We have designed the final rule such that an area with an
unmet planning obligation would still be required to submit and
implement a rate of progress plan and an attainment demonstration (or
substitute plan) under the 1-hour NAAQS if the area violates the 8-hour
NAAQS before it has an approved maintenance plan. These are areas that
have historically had an ozone problem and, in general, have 8-hour
design values within a few parts per billion of the 8-hour NAAQS. Once
these areas have an approved 110(a)(1) maintenance plan with
contingency measures, that plan will address future violations of the
8-hour NAAQS and the 1-hour obligations will no longer apply. However,
until that plan is in place, we believe that Congress would have
intended these requirements to still have significance if the area
violates the health-based NAAQS.
The final regulatory text was modified to clarify that the
provision applies to areas that do not have approved ROP plans and/or
attainment demonstrations under the 1-hour NAAQS and that violate the
8-hour NAAQS before having an approved 8-hour maintenance plan under
section 110(a)(1). The regulatory text also clarifies the obligation
that will apply.
(v) Maintenance Plans for the 8-hour NAAQS. (Section VI.C.3.b(iii)
of proposed rule; see 68 FR 32823; Section 51.905(a)(3)(iii)of draft
and final rules).
(A) Background.
In the June 2003 proposal, we proposed that areas designated
attainment for the 8-hour NAAQS and designated nonattainment for the 1-
hour NAAQS on or after November 15, 1990, must adopt and submit a
maintenance plan consistent with section 110(a)(1) within 3 years of
designation as attainment for the 8-hour NAAQS. The maintenance plan
should provide for continued maintenance of the 8-hour NAAQS for 10
years following designation for the 8-hour NAAQS and must include
contingency measures. Areas with approved 1-hour maintenance plans
under section 175A would be able to modify those maintenance plans
consistent with their obligation to have a maintenance plan for the 8-
hour NAAQS under section 110(a)(1). Such areas could remove from their
maintenance SIPs (a) the obligation to submit a maintenance plan for
the 1-hour NAAQS 8 years after approval of their initial 1-hour
maintenance plan; and (b) the requirement to implement contingency
measures upon a violation of the 1-hour ozone NAAQS.
The draft regulatory text reflected the description in the June
2003 proposal.
(B) Summary of final rule.
We are adopting the approach we proposed. However, as noted above,
we have now created separate subsections in the rule addressing areas
that were designated nonattainment for the 1-hour NAAQS at the time of
designation for the 1-hour NAAQS and areas that were maintenance areas
for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS.
Section 51.905(a)(3)(iii) applies only to areas designated
nonattainment for the 1-hour NAAQS at the time of designation for the
8-hour NAAQS. Section 51.905(a)(4)(ii) establishes the same requirement
for areas that are maintenance for the 1-hour NAAQS at the time of
designation for the 8-hour NAAQS. These two provisions provide that 1-
hour NAAQS nonattainment/8-hour NAAQS attainment (section
51.905(a)(3)(iii)) and 8-hour NAAQS attainment/1-hour NAAQS maintenance
(section 51.905(a)(4)(ii)) areas must adopt and submit a maintenance
plan consistent with section 110(a)(1) within 3 years of designation as
attainment for the 8-hour NAAQS. The maintenance plan should provide
for continued maintenance of the 8-hour NAAQS for 10 years following
designation for the 8-hour NAAQS and should include contingency
measures. We provide additional detail below regarding maintenance
areas for the 1-hour NAAQS.
Section 110(a)(1) requires all areas to demonstrate that they will
attain and maintain the relevant NAAQS. Most of the areas addressed by
this provision of the regulation have historically had problems meeting
and/or remaining in attainment of the ozone NAAQS. We think it is
important for States to ensure that these areas will continue to have
clean air so that the health of citizens will be protected.
(C) Comments and responses.
Comment: A number of commenters who addressed this issue in
comments on the June 2, 2003 proposal did not support the section
110(a)(1) maintenance plan requirement. Some commenters believed the 1-
hour NAAQS should remain in effect and with it any existing 1-hour SIP
requirements, including section 175A maintenance plan requirements
(which would require conformity determinations). One commenter objected
to the proposed requirement, alleging the requirement was unnecessary
and not required. Two commenters agreed with the requirement.
In commenting on the draft regulatory text one commenter supported
this provision. One commenter recommended that we provide more specific
guidance on preparation of section 110(a)(1) maintenance plans and also
not require modeling for them. Two commenters objected to maintenance
plans under section 110(a)(1) because they would not require conformity
(as would maintenance plans under section 175A) for areas that
currently have maintenance plans under the 1-hour NAAQS. The commenters
believed the maintenance planning should be done under section 175A.
Another commenter believed that section 110(a)(1) of the CAA requires
neither contingency measures nor a 10-year plan; the commenter
suggested that the section 110(a)(1) maintenance plan merely be a
continuation of the provisions of the existing maintenance plan.
Response: Because the 1-hour NAAQS would be revoked, the
requirements of section 175A would not apply to these areas (areas
initially designated attainment for the 8-hour NAAQS but that were
designated nonattainment for the 1-hour NAAQS at the time of enactment
of the 1990 CAA Amendments.) Section 175A applies to
[[Page 23982]]
redesignations, not to initial designations. After the 1-hour NAAQS is
revoked, we believe that an area that was previously designated
nonattainment for the 1-hour NAAQS or was designated attainment with a
maintenance plan and that initially is designated attainment for the 8-
hour ozone NAAQS, should be required to demonstrate maintenance only
for the 8-hour NAAQS at that point. The area was not ``redesignated''
attainment for the 8-hour NAAQS, and therefore the section 175A
maintenance plan requirement does not apply. We believe that the
section 110(a)(1) maintenance provisions--as required in section
51.905--will provide adequate assurance of maintenance of the 8-hour
NAAQS. The EPA always retains the authority to require a State that
fails to maintain the NAAQS to revise its SIP to provide additional
maintenance measures or to redesignate the area nonattainment and
require an attainment demonstration.
We do not agree with commenters that opposed a provision requiring
a maintenance plan under section 110(a)(1) for these areas. We believe
that the CAA requires that SIPs continue to provide for maintenance of
the applicable NAAQS under section 110(a)(1). Because these areas have
historically experienced ozone problems and generally are close to
violating the 8-hour NAAQS, we believe it is prudent to require a
demonstration of how they will maintain the 8-hour NAAQS. We think this
requirement will benefit citizens by providing better assurance that
the air will remain clean and will benefit industry by minimizing the
likelihood the area will violate the standard and be redesignated to
nonattainment.
f. Section 51.905(a)(4): 8-Hour NAAQS Attainment/1-Hour NAAQS
Maintenance.
As noted above, in the preamble to the proposed rule, EPA addressed
in the same section 1-hour nonattainment areas and 1-hour maintenance
areas that are designated nonattainment for the 8-hour NAAQS. Comments
on the proposed regulatory text noted that section 51.905(a)(3) only
addressed 8-hour attainment areas that were designated nonattainment
for the 1-hour ozone NAAQS and not areas that were maintenance for that
NAAQS. Thus, the draft rule did not address all aspects of the proposal
since it did not include provisions for areas that are maintenance for
the 1-hour NAAQS at the time of designations.
We considered revising paragraph 51.905(a)(3) to include 1-hour
maintenance areas. However, that subsection included certain
requirements not relevant for 1-hour maintenance areas, such as
requirements concerning outstanding attainment demonstration and ROP
plans. Thus, in the final rule, we created section 51.905(a)(4) to
apply to areas designated attainment for the 8-hour NAAQS and that were
maintenance areas for the 1-hour NAAQS at the time of designation for
the 8-hour NAAQS.
(i) Obligations in an approved SIP. (51.905(a)(4)(i)).
This subsection is identical in structure to section
51.905(a)(3)(i). Our reasons are explained in our discussion of section
51.905(a)(3)(i), above.
(ii) Maintenance plan. (51.905(a)(4)(ii). As provided above in the
discussion of section 51.905(a)(3)(iii), we are adopting in our final
rule our proposed interpretation regarding maintenance plans for areas
designated nonattainment for the 1-hour NAAQS on or after November 15,
1990 (i.e., areas that remain designated nonattainment for the 1-hour
NAAQS as well as maintenance areas for the 1-hour NAAQS at the time of
designation for the 8-hour NAAQS). Specifically, these areas must adopt
a maintenance plan under section 110(a)(1) within 3 years of
designation for the 8-hour NAAQS. The provision for maintenance areas
is the same as for areas designated nonattainment for the 1-hour NAAQS.
However, for maintenance areas, section 51.905(e), discussed below,
cross-references this provision and addresses the relationship between
the existing 1-hour maintenance plan and the 8-hour maintenance plan.
Our reasons for adopting this provision are discussed above.
Although these areas already have maintenance plans, those plans only
address maintenance of the 1-hour NAAQS. It is important for these
areas to ensure that they have a plan addressing maintenance of the 8-
hour NAAQS. These areas may evaluate their existing plan and
demonstrate how it will ensure maintenance of the 8-hour NAAQS, or may
modify their existing plan, or may adopt a new plan, as appropriate.
Comment: One commenter argued that it makes little sense to require
the State to continue to expend the effort and resources to update and
extend these maintenance plans. The commenter questioned why a newly
designated marginal area under the 8-hour NAAQS should be exempt from
implementation plan requirements, while an area previously
nonattainment for the 1-hour NAAQS, but now in attainment for both
NAAQS, should be required to continue with 8 additional years of
maintenance plan requirements.
Response: The final rule (section 51.905(a)(4)) clarifies that
these areas (areas that are initially designated attainment for the 8-
hour NAAQS but were attainment areas under the 1-hour NAAQS with
approved maintenance plans) are relieved of the requirement to update
their maintenance plan under section 175(A), but must submit a
maintenance plan under section 110(a)(1) that provides for maintenance
for 10 years. It should be noted that marginal areas under the 8-hour
NAAQS are not ``exempt'' from implementation plan requirements; they
are still subject to nonattainment new source review and conformity
requirements, for instance. Furthermore, if a marginal area does not
attain the NAAQS by its attainment date, the CAA requires that the area
be bumped up in classification, which would require the area to submit
a revised SIP with an attainment demonstration and control measures
required under subpart 2 for the area's new classification. In
addition, once the area attains the 8-hour NAAQS, it will be subject to
the more stringent maintenance plan provision in section 175A, which
requires the areas to demonstrate maintenance for 20 years.
3. For How Long Do These Obligations Continue To Apply? (Section VI.C.4
of Proposed rule; See 68 FR 32824; Section 51.905(b) of Draft and Final
Rules)
a. Background. In the June 2, 2003 proposed rule, we proposed two
options for when the State would no longer be required to continue
implementing SIP-approved control obligations required for an area's 1-
hour classification. At that time, these requirements could be
relegated to the contingency measures portion of the SIP if the State
demonstrated that implementation of the controls was not necessary to
attain or maintain the 8-hour NAAQS (consistent with section 110(l)).
For simplification, we refer to this as the time control obligations
may be shifted to the contingency measures. We clarified that the term
``control obligations'' was intended to refer to the obligations which
we determined would continue to apply under the preceding sections of
the proposal, including the NOX transport rules. Under
Option 1, control obligations could be shifted to contingency measures
when the area achieves the level of the 1-hour ozone NAAQS (even if the
area has not yet attained the 8-hour NAAQS). Under Option 2, control
obligations could be shifted to contingency measures once the area
attains and is redesignated to attainment for the 8-hour NAAQS
(regardless of when, if ever, the area
[[Page 23983]]
attains the 1-hour NAAQS). The draft regulatory text was developed
using Option 1 (when the area achieves the level of the 1-hour ozone
NAAQS).
b. Summary of final rule. We are adopting Option 2--control
obligations an area is required to retain in the approved SIP for an
area's 1-hour classification must continue to be implemented under the
SIP until the area attains and is redesignated to attainment for the 8-
hour NAAQS. At that time, the State may relegate such controls to the
contingency measure portion of the SIP if the State demonstrates in
accordance with section 110(l) that doing so will not interfere with
maintenance of the 8-hour NAAQS or any other applicable requirement of
the CAA. If at the time the area is redesignated to attainment for the
8-hour NAAQS the State has an outstanding obligation to adopt a control
requirement under the 1-hour NAAQS, it remains obligated to do so, but
may adopt it as a contingency measure. As discussed above, under EPA's
Clean Data Policy, certain obligations such as the requirement to
submit ROP plans and attainment demonstrations may be suspended based
on a determination that the area has attained the 8-hour NAAQS and will
no longer apply if the area is redesignated to attainment. However, if
an area experiences a violation of the 8-hour NAAQS prior to being
redesignated to attainment the requirements would once again apply.
We are adopting this option because, as noted in the June 2, 2003
proposal, the 8-hour NAAQS is the NAAQS that we have determined will
protect public health and the environment. Only once an area
demonstrates it has met and can maintain the health protective NAAQS do
we believe it will be appropriate to shift these obligations to the
contingency measures portion of the SIP. This scheme is consistent with
what Congress intended. The CAA contemplates under subpart 2 that
States must implement certain mandated requirements. Under the
maintenance plan provision of the CAA (section 175A), such requirements
may be shifted to the contingency measure portion of the SIP upon or
after redesignation to attainment. Since the relevant NAAQS is now the
8-hour NAAQS, we believe it is appropriate to require these mandated
controls to remain as part of the implemented SIP until an area attains
the 8-hour NAAQS and is redesignated to attainment. On or after that
date, a State may move such obligation to the contingency measures
portion of the SIP consistent with sections 175A and 110(l). Moreover,
we believe it is appropriate to use attainment of the 8-hour NAAQS
rather than attainment of the 1-hour NAAQS because, as provided
elsewhere in this rulemaking, EPA will no longer be making
determinations of whether an area has attained the 1-hour NAAQS and
areas will not be required to demonstrate attainment or maintenance of
the 1-hour NAAQS. Some areas may never attain the 1-hour NAAQS, as
there will be no obligation to do so once it is revoked.
The final rule covers the continued applicability of the
NOX transport rules under section 51.905(f), rather than as
an ``applicable requirement'' for purposes of section 110(l) because
the NOX rules apply regardless of an area's attainment or
nonattainment status for the 8-hour (or the 1-hour) NAAQS.
c. Comments and responses
Comment: Of the few commenters who addressed this issue in response
to the June 2, 2003 proposal, several favored Option 1, and several
favored Option 2. Of those who commented on the draft regulatory text,
one commenter opposed the provision, and one comment was unclear as to
the commenter's concerns. One other commenter supported the provision.
Several commenters had clarifying questions.
Response: Our rationale for the choice of Option 2 is presented
above. A more detailed response to these and other comments appears in
the RTC document.
4. Which Portions of an Area Designated for the 8-Hour NAAQS Remain
Subject to the 1-Hour NAAQS Obligations? (Section VI.C.2 and 3 of
Proposal; See 68 FR 32820-32821; 51.905(c) of the Draft and Final
Rules)
a. Background. In the June 2, 2003 notice, we proposed that the
obligation to retain or to adopt and retain a mandatory control
obligation applies only to the part of the 8-hour ozone nonattainment
area that was designated nonattainment for the 1-hour ozone NAAQS. The
proposal also provided an example of how this would work.
The draft regulatory text provided additional specificity
concerning geographic applicability of the anti-backsliding provisions.
The draft text provided that with two exceptions only the portion of
the designated area for the 8-hour NAAQS that was required to adopt the
applicable requirements in 51.900(f) for purposes of the 1-hour NAAQS
is subject to the obligations identified in paragraph (a) of this
section with several exceptions. The first exception is an area that is
designated nonattainment for the 8-hour NAAQS but that was
nonattainment for the 1-hour NAAQS with an unmet obligation to submit
an attainment demonstration; for these areas, the draft regulatory text
provided that the entire area designated nonattainment for the 8-hour
ozone NAAQS would be subject to the 10 percent advance increment of
reduction. The second exception is an area that is attainment for the
8-hour NAAQS but that was nonattainment under the 1-hour NAAQS with an
unmet obligation to submit an attainment demonstration; for these
areas, the 110(l) maintenance plan would have to demonstrate
maintenance for the entire 8-hour ozone attainment area.
b. Summary of final rule. The final rule incorporates most aspects
of the approach as that contained in the proposal and in the draft
regulatory text. The final rule provides that only the portion of the
designated area for the 8-hour NAAQS that was designated nonattainment
for the 1-hour NAAQS is required to comply with the obligations in
subparagraph 51.905(a), except if the State elects to provide an early
increment of progress or an early 8-hour attainment demonstration in
lieu of an outstanding 1-hour attainment demonstration (for an 8-hour
NAAQS nonattainment area/1-hour NAAQS nonattainment area under
51.905(a)(1)(ii)(B) and (C)), the increment of progress or early 8-hour
attainment plan must apply for purposes of the entire 8-hour
nonattainment area.
The final rule does not follow the approach in the proposal for the
maintenance plan requirement for 8-hour attainment areas. The
maintenance plans required under section 51.905(a)(3)(iii) and (4)(ii)
must demonstrate maintenance only for the area designated nonattainment
for the 1-hour NAAQS at the time of designation of the 8-hour NAAQS. We
received comment that recommended this obligation apply only to the
area that was originally designated nonattainment for the 1-hour NAAQS.
After considering this comment and our discussion in the preamble to
the proposed rule, we agree with the commenter. In many States,
attainment areas are identified county by county rather than
identifying a group of counties as an attainment area. Thus, a State
may have one or more groups of counties listed as a nonattainment area
and then the remaining counties in the State are each identified
individually as ``attainment.'' See e.g., 40 CFR 81.311 (Georgia);
81.329 (Nevada). Because the area that historically had a problem
attaining the ozone NAAQS is the area
[[Page 23984]]
that was previously designated nonattainment for the 1-hour NAAQS, we
believe it makes the most sense to require the maintenance plan for the
area previously designated nonattainment for the 1-hour NAAQS. We will
set forth in 40 CFR Part 81, Subpart E, an identification of the
boundaries of areas and the area designations and classifications for
the 1-hour NAAQS at the time of the 8-hour designations.
c. Comments and responses.
Comments on June 2, 2003 Proposal: With regard to limiting the
applicability of 1-hour obligations to that portion of the 8-hour
nonattainment area that was also part of the 1-hour nonattainment area,
one commenter supports this policy, especially for the enhanced I/M
program. The commenter believes that the environmental benefit of
requiring an extension of the enhanced I/M program to areas recently
added to the CMSA and designated nonattainment for the 8-hour NAAQS to
be minimal, costly, and disruptive of the continued implementation of
the enhanced I/M program in the current 1-hour nonattainment area.
One commenter objected to requiring the substitute planning
requirement (10 percent advance increment of emission reductions) that
applies to areas with an outstanding attainment demonstration for the
entire 8-hour ozone nonattainment area. Instead, the commenter
recommended it should only apply to the 1-hour nonattainment area.
Response: The final rule provides for retaining applicable emission
control requirements for an area's 1-hour classification in only the
original 1-hour nonattainment area.
As noted in the final rulemaking notice, we are now allowing the
State to meet its unmet 1-hour attainment demonstration obligation by
submitting the outstanding attainment demonstration or by taking one of
two early actions for 8-hour planning: achieve a 5 percent advance
increment of emission reductions or submit an early 8-hour attainment
demonstration. The advance increment of emission reductions is applied
throughout the entire 8-hour nonattainment area because, although it is
being submitted in lieu of the 1-hour requirement, it is intended to
address the 8-hour nonattainment problem. Similarly, the 8-hour
attainment demonstration is intended to address attainment for the full
8-hour area. Because these alternatives to the 1-hour attainment
demonstration are intended to address attainment and progress toward
the 8-hour NAAQS, the State would need to apply these requirements, if
selected, to the entire 8-hour nonattainment area. We developed these
alternatives in response to concerns that areas focus on the 8-hour
NAAQS rather than on the 1-hour NAAQS and that continued planning
obligations for the 1-hour NAAQS would burden State resources. States
still have the flexibility to choose to develop the 1-hour attainment
demonstrations for the 1-hour area if they would like to restrict the
unmet planning obligation to the old area.
5. What Obligations That Applied for the 1-Hour NAAQS Will No Longer
Apply After Revocation of the 1-Hour NAAQS for an Area? (Section
VI.C.3.d. of Proposal; See 68 FR 32824; Section 51.905(e) of Proposed
and Final Rules)
a. Background. In the June 2, 2003 proposed rule (68 FR 328224), we
proposed that once the 1-hour NAAQS is revoked, EPA would no longer
make findings of failure to attain that NAAQS and, therefore, we would
not reclassify areas based upon a finding that the area failed to
attain the 1-hour NAAQS. We indicated areas should focus their
resources on attainment of the 8-hour NAAQS and stated that we believed
it would be counterproductive to establish new obligations for States
with respect to the 1-hour NAAQS after they have begun planning for the
8-hour NAAQS. In addition, we noted that the attainment dates for areas
classified as marginal, moderate and serious had passed and that the
CAA does not provide for reclassification of severe areas. We also
noted other mechanisms that are available to make sure that States
continue to make progress toward attaining the 8-hour NAAQS.
In addition, we indicated that conformity requirements would no
longer apply for the 1-hour NAAQS once the NAAQS is revoked. The June
2, 2003 proposal explains that, under section 176(c) of the CAA,
conformity applies to areas designated nonattainment or subject to the
requirement to develop a maintenance plan pursuant to section 175A.
Once the 1-hour NAAQS is revoked, areas would no longer be designated
nonattainment for the 1-hour NAAQS or subject to the obligation to
develop a maintenance plan under section 175A for the 1-hour NAAQS and
thus would no longer be subject to the obligation to demonstrate
conformity (either transportation conformity or general conformity) for
that NAAQS.
The draft regulatory text incorporated these concepts and also
provided that, at the time of revocation of the 1-hour NAAQS, any
provisions of applicable SIPs that require conformity determinations in
such areas for the 1-hour NAAQS will no longer be enforceable as a
matter of law pursuant to section 176(c)(5) of the CAA.
Additionally, the draft regulatory text reflected the discussion in
the preamble to the proposed rule regarding what portions of a 1-hour
maintenance plan could be revised or removed once the 1-hour NAAQS was
revoked (68 FR 32823). The draft regulatory text provided that areas
with approved 1-hour maintenance plans could modify those plans to
remove the obligation to submit a maintenance plan for the 1-hour NAAQS
eight years after approval of the initial 1-hour maintenance plan and
to remove the obligation to implement contingency measures upon a
violation of the 1-hour NAAQS. The draft regulatory text provided,
however, that these requirements would remain enforceable until EPA
approved a SIP removing or revising them and also provided that EPA
would not approve such revisions until EPA approves an 8-hour
attainment demonstration for an area designated nonattainment for the
8-hour NAAQS or an 8-hour maintenance plan for an area designated
attainment for the 8-hour NAAQS. Finally, EPA noted that such a SIP
revision must also be consistent with sections 110(l) and 193 of the
CAA.
b. Summary of final rule.
We are adopting the approach we set forth in our proposed rule and
providing clarification regarding the penalty obligations under
sections 181(b)(4) and 185 of the CAA that apply in severe areas that
do not attain the 1-hour NAAQS by the applicable attainment date. The
final rule provides that as of the effective date of revocation of the
1-hour NAAQS:
We will no longer make findings of failure to
attain the 1-hour NAAQS and, therefore, (a) we will not reclassify
areas to a higher classification for the 1-hour NAAQS based on such a
finding, and (b) areas that were classified as severe for the 1-hour
NAAQS are not obligated to impose fees as provided under sections
181(b)(4) and 185 of the CAA.
Areas will not be obligated to continue to
demonstrate conformity for the 1-hour NAAQS as of the effective date of
the revocation of the 1-hour NAAQS.
An area with an approved 1-hour maintenance plan
under section 175A of the CAA may modify its maintenance plan to: (1)
Remove the planning obligation to develop the second 10-year
maintenance plan for the 1-hour NAAQS; and, (2) replace the existing 1-
hour contingency measure trigger with an 8-hour value. However, before
the EPA can consider approving such a
[[Page 23985]]
revision, certain conditions must be met. If the area is designated
nonattainment for the 8-hour ozone NAAQS, it must first have an
approved 8-hour attainment demonstration in place. If the area has been
designated as attainment for the 8-hour ozone NAAQS, it must first have
an approved section 110(a)(1) maintenance plan in place for the 8-hour
NAAQS.
NSR under the 1-hour NAAQS will no longer apply
in areas that are 8-Hour NAAQS nonattainment/1-Hour NAAQS
nonattainment.
Each of these provisions is discussed further below.
(i) Findings of Failure to Attain the 1-hour NAAQS. We continue to
believe, as stated in the preamble to the proposed rule, that areas
should focus their resources on attainment of the 8-hour NAAQS and that
it would be counterproductive to establish new obligations for States
with respect to the 1-hour NAAQS after they have begun planning for the
8-hour NAAQS. Moreover, we do not believe there is a basis to determine
whether an area has met the 1-hour NAAQS once that NAAQS no longer
applies; once the 1-hour NAAQS is revoked, there will not be an
applicable attainment date with which to make a determination as to
whether an area has met its attainment date or not. Since the
obligations to reclassify areas and impose fees are based on a
determination that an area has failed to meet the NAAQS by the
appropriate attainment date, those obligations also would no longer
apply for the 1-hour NAAQS once the 1-hour NAAQS has been revoked.
While we did not specifically state in our proposal that severe
areas would no longer be obligated to impose fees under sections
181(b)(4) and 185 based on a failure to attain the 1-hour NAAQS after
the effective date of the revocation of the 1-hour NAAQS, it is a
logical extension of our proposal as that obligation is triggered by a
finding of failure to attain. In addition, this is consistent with
Appendix B of the June 2, 2003 proposal, which did not identify the
section 185 fee provision as an applicable requirement.
(ii) Conformity under the 1-hour NAAQS. Regarding conformity, we
are adopting the approach we set forth in our proposed rule (68 FR
32823). The final rule provides that, upon revocation of the 1-hour
NAAQS for an area, conformity determinations will no longer be required
for the 1-hour NAAQS. At that time, any provisions of applicable SIPs
that require conformity determinations for the 1-hour NAAQS in such
areas will no longer be enforceable pursuant to section 176(c)(5) of
the CAA.
Under section 176(c) of the CAA, conformity applies to areas
designated nonattainment or subject to the requirement to develop a
maintenance plan pursuant to section 175A for a specific NAAQS. Once
the 1-hour NAAQS is revoked, areas designated attainment for the 8-hour
NAAQS would no longer be subject to the obligation to demonstrate
conformity for the 1-hour NAAQS and would have no conformity obligation
for the 8-hour NAAQS. Likewise, even areas designated nonattainment for
the 8-hour NAAQS would no longer have an obligation to demonstrate
conformity under the 1-hour NAAQS. The reason for this is that these
areas would no longer be designated nonattainment for the 1-hour NAAQS
and would no longer be required to develop a maintenance plan under
section 175A for purposes of the 1-hour NAAQS.
(iii) 1-hour maintenance plans. Regarding the revisions to 1-hour
maintenance plans, as noted above, upon revocation of the 1-hour NAAQS,
an area with an approved 1-hour maintenance plan under section 175A of
the CAA may modify the maintenance plan to remove both the obligation
to submit a second maintenance plan for the 1-hour NAAQS 8 years after
approval of the initial 1-hour maintenance plan and the obligation to
implement contingency measures upon a violation of the 1-hour NAAQS.
The maintenance plan requirements will remain enforceable as part of
the approved SIP until such time as EPA approves a SIP revision
removing such obligations. We will not approve a SIP revision
requesting these modifications until the State submits and EPA approves
an attainment demonstration for the 8-hour NAAQS for an area designated
nonattainment for the 8-hour ozone NAAQS or a maintenance SIP for the
8-hour NAAQS for an area designated attainment for the 8-hour NAAQS.
Any revision to such SIP must meet the requirements of section 110(l)
and 193 of the CAA.
(iv) New Source Review under the 1-hour NAAQS. As noted above
concerning anti-backsliding provisions related to growth measures, our
June 2, 2003 proposal indicated that 1-hour NSR requirements would
continue to apply in a nonattainment area if that area's classification
under the 1-hour ozone standard (at the time of designation for the 8-
hour standard) is higher than its classification under the 8-hour
standard (68 FR 32821). We indicated at proposal that Congress intended
each area that was classified for the 1-hour ozone NAAQS under subpart
2 to adopt the specified control obligations in subpart 2 for the
area's 1-hour classification. Accordingly, we proposed that the 1-hour
NSR obligations continue to apply after revocation.
We have now determined that it is inappropriate to mandate that a
State continue to apply 1-hour nonattainment NSR requirements to such
areas. Therefore, today's final rule specifies that, at the time that
the 1-hour NAAQS is revoked, a state is no longer required to retain a
nonattainment NSR program in its SIP based on the requirements that
applied by virtue of the area's previous classification under the 1-
hour standard. Instead, State implementation plans will be required to
include an NSR program based on the area's designation and
classification under the 8-hour standard.
Accordingly, a State may request approval of a SIP revision to
remove its 1-hour nonattainment NSR program from its SIP. We will
approve such changes to a State's SIP because we have determined based
on section 110(l) of the Act that such changes will not interfere with
any State's ability to reach attainment of the 8-hour standard and will
be consistent with reasonable further progress.
For example, upon approval of a SIP revision for a nonattainment
area that we classify as marginal for the 8-hour standard, the major
source threshold would be 100 tpy and the offset ratio would be at
least 1.1:1. Any lower major stationary source threshold and higher
offset ratio that applied by virtue of the area's previous 1-hour
classification would no longer apply. For areas that must comply with
nonattainment NSR requirements solely based on the area's location
within the Ozone Transport Region under Section 184 of the Act, there
will be no change in the major stationary source threshold or offset
ratio as these requirements remain the same for the 8-hour standard.
Although the proposal identified nonattainment NSR as a measure to
address growth and not a control obligation, we proposed to treat NSR
in the same manner as control obligations. We stated that such
requirements should continue to apply based on Congressional intent to
prohibit States from altering or removing provisions from SIPs if the
SIP revision would jeopardize the air quality protection provided in
the approved plan. 68 FR at 32819. We further concluded that Congress
intended the specified control obligations in subpart 2 to continue to
apply after revocation by virtue of the 1-hour classifications.
[[Page 23986]]
Upon further reflection, and consideration of public comments, we
have revised our approach concerning NSR in areas that were non-
attainment for the 1-hour NAAQS and continue to be nonattainment under
the 8-hour NAAQS. While some commenters believed that NSR requirements
that are part of SIPs submitted to meet 1-hour NAAQS requirements
should be retained, several preferred that the 1-hour NSR program be
replaced by an NSR program under the 8-hour standard when the 1-hour
standard is revoked. Other commenters supported removing the 1-hour NSR
requirements based on a showing that removing the requirements would
not interfere with attainment or maintenance of the 8-hour standard. We
agree with these commenters that there is no need to retain 1-hour NSR
programs upon a finding under section 110(l) that 8-hour NSR will not
interfere with the State's ability to reach attainment of the 8-hour
standard. Moreover, we note major NSR only applies to new sources and
to existing sources that have a physical change or change in the method
of operation. Therefore, emission limitations and other requirements in
NSR permits issued under 1-hour NSR programs will continue to be in
force when the 1-hour NAAQS is revoked.
Also, our revised approach is more consistent with our longstanding
treatment of NSR as a growth measure. We have historically treated
control measures differently from measures to control growth. We
provided no rationale in our proposal for treating control measures and
growth measures in the same manner for purposes of the 8-hour standard,
in contrast with our historical approach.
Unlike control requirements such as RACT and I/M, the NSR program
is a growth measure and is not specifically designed to produce
emissions reductions. Instead, its purpose is to allow new source
growth to occur without interfering with an area's ability to attain.
The statute and regulatory history identify nonattainment NSR as a
growth measure. Thus, we have previously concluded that NSR is not a
``control'' measure in the context of Section 175A maintenance plans.
See 68 FR 25418, 25436 (May 12, 2003). Specifically, we explained that
the requirement that contingency provisions include ``control''
measures does not include nonattainment NSR. We reasoned that the LAER
and offset requirements included in existing NSR permits would remain
in effect for those sources. Thus, the LAER and offset measures that
were relied upon to attain the NAAQS would remain in effect after the
nonattainment NSR program was replaced. We also noted that another
preconstruction review program (in that context, PSD) would be
triggered to limit growth consistent with attainment in the future.
Those considerations apply with equal force here, as discussed in more
detail below.
The role of the NSR permitting program as a growth measure, rather
than a control measure, is evident in the structure of the Act, which
delineates nonattainment NSR and control measures as separate SIP
requirements. In the general requirements for nonattainment plan
provisions, NSR permits are listed in CAA 172(c)(5), while control
measures are listed in CAA 172(c)(6). Similarly, in defining
implementation plan requirements, CAA 110(a)(2)(C) sets forth the
requirement for permit programs and CAA 110(a)(2)(A) the control
measures. As we explained in our 1994 policy memo,\42\ if the term
``measures,'' as used in sections 110(a)(2)(A) and 110(a)(2)(C), had
been intended to include PSD and part D NSR, there would have been no
point to requiring that SIPs include both measures and preconstruction
review. Section 172(e), which applies when EPA relaxes a NAAQS, only
requires EPA to ensure that ``controls'' are no less stringent than
they were for the more stringent NAAQS that has been replaced. It
contains no specific requirements concerning growth measures.
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\42\ Part D New Source Review (part D NSR) Requirements for
Areas Requesting Redesignation to Attainment, October 14, 1994, from
Mary D. Nichols.
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Moreover, the statute is clear regarding the roles of the NSR
program and control measures in nonattainment areas. CAA 172(a)(2)
requires attainment as expeditiously as practicable considering control
measures and CAA 172(c)(1) and (c)(6) require implementation of all
control measures as expeditiously as practical to provide for
attainment of the NAAQS by the area's attainment date. Conversely, CAA
173(a)(1)(A) requires only that growth due to proposed sources, when
considered together with the other plan provisions required under
section 172, be sufficient to ensure RFP. Thus, unlike the control
measures required by section 172(c)(1) and (c)(6), NSR is not a measure
in and of itself to assure attainment of the NAAQS. Rather, NSR should
be considered in conjunction with a State's control measures to assure,
consistent with the requirements in Section 172(c)(4), that the
emissions from new sources will be consistent with RFP and not
interfere with attainment of the applicable NAAQS.
In light of these different statutory goals, we believe the
appropriate review of NSR SIP revisions under the 8-hour standard is
whether: (1) The SIP revision is consistent with reasonable further
progress; and whether (2) the SIP revision will not interfere with the
ability to attain.
With regard to the specific requirements of 110(l), we do not
believe that States need to make any case-specific demonstration that
replacing the 1-hour NSR program with an NSR program based on the
area's 8-hour classification satisfies the Section 110(l) requirements.
As one commenter noted, NSR is a prospective permitting program that
only applies to future emissions from new and modified sources. Any
source that is subject to the 1-hour NSR requirements is required to
continue to comply with those requirements. In this respect, there will
be no degradation of air quality by virtue of this SIP change.
Moreover, unlike control measures, States do not rely on the NSR
program to generate emissions reductions to move an area further toward
attainment. The essential question is whether the NSR program changes
will hinder future air quality improvements based on future growth
projections. Such a question inherently involves a look at the present
day air quality, which is best reflected by the current 8-hour
classifications. As long as the State plans to manage growth within the
emissions inventory and include growth in their attainment plans, new
source growth will be consistent with RFP and not interfere with the
State's ability to attain. Therefore, we believe that the 8-hour NSR
program requirements, based on an area's present air quality needs,
will assure that progress continues toward attainment despite future
economic growth.
c. Comments and responses.
(i) Comments on June 2, 2003 proposal:
Comment: Several commenters addressed this issue. Most agreed with
the proposal, but recommended that we clarify that the section 185
penalty fees would not be imposed after the 1-hour NAAQS is revoked. A
few of the commenters disagreed on the basis that EPA should not revoke
the 1-hour NAAQS and that all requirements that apply for purposes of
the 1-hour NAAQS remain applicable.
Regarding conformity, the majority of commenters that addressed
this issue objected to EPA's proposal. Most of these commenters
believed the 1-hour NAAQS and any 1-hour SIP budgets
[[Page 23987]]
should remain in effect, such that for an area that was designated
nonattainment under the 1-hour NAAQS, or was redesignated to attainment
and had an approved maintenance plan under the 1-hour NAAQS, conformity
requirements would still apply. Given the variety of comments we
received about how conformity will be implemented, in this section we
provide a response following each type of comment.
Several commenters indicated that revoking the 1-hour NAAQS for
conformity is backsliding, and offered several arguments for why the 1-
hour budgets should be retained in 1-hour nonattainment and maintenance
areas.
Some commenters indicated that once approved, the motor vehicle
emissions budget is part of the applicable implementation plan, and EPA
may not render them nugatory for conformity purposes. Commenters also
asserted that EPA may not unilaterally revise a state's SIP or suspend
it, and in order to require states to revoke the budgets in their SIPs,
EPA would have to find the budgets inadequate. Further, commenters
argued that EPA may not lawfully allow states to discontinue
implementation of the budgets in their current SIPs, and if states were
to decide on their own that budgets no longer apply for conformity
purposes, commenters said that EPA would be obligated to impose
sanctions pursuant to section 179(a)(3). Commenters asserted that
states may not revise their SIPs to remove budgets without complying
with section 110(l), which states that EPA cannot approve revisions
``if the revision would interfere with any applicable requirement
concerning attainment and reasonable further progress (as defined in
section 171), or any other applicable requirement of this Act.''
Response: The CAA specifically states that conformity applies only
in ``a nonattainment area* * *'' and ``an area that was designated as a
nonattainment area but that was later redesignated by the Administrator
as an attainment area and that is required to develop a maintenance
plan under section 7505a of this title* * *'' (42 U.S.C. 7506(5)).
Therefore, CAA section 176(c)(5) restricts conformity to nonattainment
areas and areas that are required to submit maintenance plans under
section 175A; in these areas, the Federal government's sovereign
immunity is waived so that states can require conformity to be
determined by the U.S. Department of Transportation. However, after
revocation of the 1-hour NAAQS, the areas previously nonattainment for
the 1-hour NAAQS are no longer nonattainment for that NAAQS. Similarly,
after revocation of the 1-hour NAAQS, the areas previously required to
submit section 175A maintenance plans under the statute for the 1-hour
NAAQS will no longer be required to do so. Therefore, after revocation
the statute will no longer waive sovereign immunity to allow States to
require the U.S. Department of Transportation to perform conformity
determinations.
States are not taking any action to remove the budgets for the 1-
hour ozone NAAQS in their SIPs, nor are they required to do so. In
fact, EPA has proposed that 8-hour nonattainment areas would be able to
use the 1-hour budgets for conformity for the 8-hour NAAQS, if they
exist in an area (November 5, 2003, proposed rule, 68 FR 62690). Thus,
although the 1-hour budgets would remain in the SIP, areas previously
designated nonattainment or maintenance for the 1-hour NAAQS would no
longer be required or even authorized to show conformity under CAA
section 176(c)(5) for that NAAQS. Similarly, EPA would have no grounds
for imposing sanctions where conformity is not conducted in these areas
because there would be no SIP planning or implementation failure, since
any SIP provisions requiring conformity would become unenforceable
under section 176(c)(5) after revocation. EPA also disagrees that
States cannot revise their SIPs to remove budgets without a
demonstration that 110(l) is met, because states will not be revising
their SIPs to remove budgets.
As we acknowledged in our June 2, 2003, proposal, EPA's conclusion
that conformity cannot apply in 1-hour maintenance areas once the 1-
hour NAAQS is revoked differs from the approach we planned to take in
1997. In 1997, we interpreted revoking the 1-hour ozone NAAQS to mean
that conformity would not apply for the 1-hour ozone NAAQS in areas
that were nonattainment for the 1-hour ozone NAAQS, but that conformity
would continue to apply for the 1-hour ozone NAAQS in areas with a
maintenance plan. However, the 1997 interpretation would lead to an
unfair and counter-intuitive result: areas that had attained the NAAQS
and had made the effort to establish a maintenance plan would have to
continue a required program, but areas that had not attained would not.
We reconsidered this result and found it to be unfair and
inappropriate. Further, upon reanalyzing CAA section 176(c)(5), we
concluded that this interpretation did not fit with the text of the
statute.
Although section 110(l) would normally require areas to demonstrate
that removing prior SIP requirements would not interfere with any
applicable requirements of the CAA, where the CAA itself now forbids
application of a prior requirement such a demonstration would be
unnecessary. Further, it would interfere with the statutory limitation
on the applicability of conformity to require conformity determinations
in areas that are no longer required by the CAA to submit section 175A
maintenance plans.
Comment: Commenters remarked that revoking the 1-hour ozone NAAQS
is of particular concern in areas that are currently nonattainment or
maintenance for the 1-hour ozone NAAQS that will be designated
attainment for the 8-hour ozone NAAQS, because once the NAAQS is
revoked, these areas will no longer be subject to conformity. A couple
of commenters made the point that revoking the 1-hour NAAQS would have
economic implications for their area because without transportation
conformity, the emissions from the transportation sector could grow
without restraint and therefore, emissions from the industrial sector
would have to be limited further. Commenters were also concerned that
their region would lose the ability to forecast whether a violation
could occur.
Response: We promulgated the 8-hour ozone NAAQS in response to the
latest data and science regarding ozone; we believe the 8-hour ozone
NAAQS is more protective of public health. In 1997, EPA made the
decision to replace the 1-hour ozone NAAQS with the 8-hour ozone NAAQS,
because EPA concluded that the 1-hour NAAQS is not needed to protect
health and welfare.
It is our conclusion that areas that are in attainment for the 8-
hour NAAQS would not be subject to conformity because the statute
explicitly limits the applicability of conformity to designated
nonattainment and maintenance areas. These areas still have an
incentive to monitor the growth of emissions from the transportation
sector; if these areas violate the 8-hour NAAQS, EPA could redesignate
them as nonattainment for the 8-hour NAAQS and conformity would then
apply.
The EPA notes that although States could not implement conformity
for attainment areas as a matter of federal law, they could still work
with their MPOs to estimate regional emissions that would be generated
by the planned transportation system to see whether a violation could
occur and to address motor vehicle emissions growth. These type of
State activities may be done
[[Page 23988]]
under State law, when possible, or on a voluntary basis.
Comment: One commenter supports, in part, our proposal to allow
amendment of maintenance plans, but takes issue with the fact that
States would face a continuing obligation to implement contingency
measures after revocation of the 1-hour NAAQS and the criteria for
approval of such amendments. After the 1-hour NAAQS is revoked, a
State's obligation to implement contingency measures should
automatically be lifted. The Illinois EPA recommends that amendments to
the maintenance plans for these areas be approved after the 1-hour
NAAQS has been revoked.
Response: Once we revoke the 1-hour NAAQS, the requirement for
submission or subsequent revision of a section 175A maintenance plan
under the 1-hour NAAQS no longer apply. The State still has an
obligation to ensure that air quality remains clean and to invoke
contingency measures in accordance with the terms of the approved SIP.
The final rule provides that, upon revocation of the 1-hour NAAQS, an
area with an approved 1-hour maintenance plan under section 175A of the
CAA may modify the maintenance plan to remove the obligation to submit
a maintenance plan for the 1-hour NAAQS 8 years after approval of the
initial 1-hour maintenance plan and to remove the obligation to
implement contingency measures upon a violation of the 1-hour NAAQS.
The final rule provides that EPA would not approve a SIP revision
requesting these modifications until the State submits and EPA approves
an attainment demonstration for the 8-hour NAAQS for an area initially
designated nonattainment for the 8-hour ozone NAAQS or a maintenance
SIP for the 8-hour NAAQS for an area initially designated attainment
for the 8-hour NAAQS. Any revision to such SIP must meet the
requirements of section 110(l) and 193 of the CAA. For areas that are
not required to submit attainment demonstrations (e.g., marginal
areas), the SIP revisions that affect prior maintenance plans under the
1-hour NAAQS may be made when other portions of the 8-hour SIP are due
(e.g, the NSR provisions). The EPA disagrees with the comments that
certain obligations in the maintenance plan should no longer apply upon
revocation of the 1-hour NAAQS. The EPA believes that in order to
ensure that these revisions will not interfere with attainment or
maintenance of the 8-hour NAAQS, these areas should first have an
approved 8-hour attainment or maintenance SIP in place.
Comment: A commenter recommended that, in general, the rule should
make it clear that any SIP revisions must comply with Sections 110(l)
and 193.
Response: The proposed rule--as well as the final rule--provides
that EPA will not approve revisions to the maintenance plan until EPA
approves the area's 8-hour SIP for either attainment or maintenance,
which will ensure non-interference with the 8-hour NAAQS. However, the
final rule also includes a requirement that the changes must be in
accordance with sections 110(l) and 193. Several commenters supported
the proposed rule. Other commenters believed the 1-hour NAAQS should
not be revoked at all, and therefore there would not be a need for the
anti-backsliding provision regarding NSR.
Response: We address the issue of the revocation of the 1-hour
NAAQS elsewhere in this notice and do not repeat it here.
(ii) Comments on draft regulatory text (sect. 51.905(e) of the
draft):
Comment: One commenter believes that proposed 40 CFR 51.905(e)(1)
contains an apparent misstatement that EPA should correct. That
provision states that upon revocation of the 1-hour NAAQS, an area with
an approved maintenance plan for that NAAQS may modify that plan to
remove the obligation under CAA Sec. 175A(b) to submit a ``second
round'' maintenance plan eight years after redesignation to attainment
and to remove the obligation to implement contingency measures upon a
1-hour NAAQS violation. The provision goes on to say that EPA will not
approve a SIP revision making these modifications until the state
submits and EPA approves: (1) An 8-hour attainment demonstration, if
the area is designated nonattainment for the 8-hour NAAQS; or (2) an 8-
hour maintenance SIP under proposed 40 CFR 51.905(a)(3)(iii), if the
area is designated attainment for the 8-hour NAAQS. Option (2) does not
make sense, however. Proposed 40 CFR 51.905(e) by its terms applies to
areas with approved 1-hour maintenance plans. Thus, these areas by
definition have been redesignated to attainment--i.e., are no longer
nonattainment--for the 1-hour NAAQS. Yet proposed 40 CFR
51.905(a)(3)(iii) applies only to areas that are ``designated
nonattainment for the 1-hour NAAQS at the time of revocation of the 1-
hour NAAQS.'' Thus, contrary to the last clause of Sec. 51.905(e)(l),
areas that are maintenance for the 1-hour NAAQS and attainment for the
8-hour NAAQS cannot be subject to Sec. 51.905(a)(3)(iii).
Response: The commenter has pointed out a flaw in the proposal. The
final rule has been modified from the proposal to account for this
situation. A separate parallel provision has been established in
section 51.905(a)(4) requiring 1-hour maintenance plan areas to submit
a maintenance plan under section 110(a)(1). As provided earlier, EPA
has also changed the proposed regulatory text--consistent with the June
proposal--to indicate that 51.905(a)(3) and (4) apply, respectively to
areas that are nonattainment or maintenance of the 1-hour NAAQS at the
time of designation for the 8-hour NAAQS. Section 51.905(e)(1) has been
modified to provide that the State would not be able to modify an
existing 1-hour maintenance plan until EPA approves the new 8-hour
maintenance plan.
Comment: One commenter provided suggested language changes to
section 51.905(e) that would retain the section 175A maintenance plan
and the conformity requirement.
Response: As noted above, once EPA revokes the 1-hour NAAQS, and
the area is an 8-hour attainment area, section 175A maintenance
provisions do not apply and conformity for the 1-hour NAAQS no longer
applies.
6. What Is the Continued Applicability of the NOX SIP Call
After Revocation of the 1-Hour NAAQS? (Section VI.C.3.c. of Proposal;
See 68 FR 32824; Section 51.905(f) of the Proposed and Final Rules)
a. Background. In the June 2, 2003 proposal (68 FR 32824), we noted
that it is important to ensure that the transition to the 8-hour NAAQS
does not jeopardize the controls required to be in place under the
NOX SIP Call rule and the section 126 rule (i.e., the rules
for addressing the long-range transport of ozone and its precursor,
NOX). We jointly referred to these rules in the proposal as
the NOX transport rules. We indicated that we plan to lift
the stay of the 8-hour basis for the NOX transport
rules.\43\ Regardless of whether we lift
[[Page 23989]]
that stay, the controls required have substantial benefits for
reductions of both 1-hour and 8-hour ozone levels. We indicated that we
believe that relaxing such controls would be contrary to the principles
we identified in the proposal for an effective transition. Thus, we
proposed that States must continue to adhere to the emission budgets
established by the NOX transport rules after the 1-hour NAAQS is
revoked in whole or in part.
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\43\ When EPA promulgated the NOX SIP Call, we
required the same level of reductions for both the 1-hour and 8-hour
ozone NAAQS (63 FR 57356, October 27, 1998). In response to the
Court of Appeals remand of the 8-hour NAAQS, EPA stayed the 8-hour
basis of the NOX SIP Call (65 FR 2674, January 18, 2000).
However, since the same level of reductions was required for both
the 8-hour and 1-hour NAAQS, the stay had no practical effect on
States' compliance with the rule. Because EPA also stayed the 8-hour
portion of the Section 126 Rule, we did not move forward to make the
section 126 findings under the 8-hour NAAQS which would trigger the
8-hour control requirements (65 FR 2674, January 18, 2000). We plan
to complete rulemaking action on the 8-hour petitions at the time we
lift the 8-hour stay. All of the States affected by the 1-hour and/
or 8-hour Section 126 Rule are also covered by the NOX
SIP Call. The Section 126 Rule contains a provision under which the
Section 126 findings and control requirements would be withdrawn if
States have approved SIPs meeting the NOX SIP Call. The
EPA has already withdrawn the 1-hour Section 126 Rule in three
States and the District of Columbia and proposed to withdraw the 1-
hour rule in all other affected States except one. (We expect to
propose action with respect to the rule in the remaining State
shortly.)
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The draft regulatory text reflected the discussion in the June
proposal.
b. Summary of final rule. We are adopting the approach we set forth
in our proposed rule and draft regulatory text. States must continue to
adhere to the emission budgets established by the NOX
transport rules after the 1-hour NAAQS is revoked. States retain the
authority to revise control obligations they have established for
specific sources or source categories under the NOX SIP Call
rule so long as the State demonstrates consistent with section 110(l)
that such modification will not interfere with attainment of or
progress toward meeting the 8-hour NAAQS or any other applicable
requirement of the CAA. We continue to believe that the reductions
required by the NOX transport rules are necessary to address
transported emissions for the 8-hour ozone NAAQS as well as the 1-hour
ozone NAAQS.
c. Comments and responses.
(i) Comments on the June 2, 2003 proposal:
Only a handful of commenters addressed this issue, all of whom
supported the proposal. Several of these commenters recommended that we
lift the stay of the NOX transport rules with respect to the
8-hour NAAQS.
D. What Is the Required Timeframe for Obtaining Emissions Reductions To
Ensure Attainment by the Attainment Date (Section VI.E of the Proposed
Rule (68 FR 32826); Section 51.908 of the Draft and Final Rules)
1. Background
In the June 2003 proposal, we proposed that emissions reductions
needed for attainment must be implemented by an area's attainment date.
We noted this meant that emissions reductions must be implemented by
the beginning of the final ozone season prior to the attainment date.
For example, for areas with an attainment date in May 2010, the
emissions reductions need to be implemented by the beginning of the
2009 ozone season because a determination of attainment will be based
on air quality monitoring data from 2007, 2008 and 2009. The proposal
cautioned that States should be aware of the consequences of failing to
implement the control measures necessary for attainment sufficiently
far in advance of their attainment date. As noted above, areas covered
under subpart 2 can receive up to two 1-year attainment date extensions
if certain criteria are met. However, if an area does not meet the
eligibility requirements for the 1-year extension, it would be subject
to a reclassification to a higher classification (bump up). While areas
covered under subpart 1 are able to obtain up to two 1-year attainment
date extensions, there is no provision for a bump up in subpart 1. If
an area covered under subpart 1 fails to attain, section 179 of the CAA
provides that EPA publish a finding of failure to attain which starts a
1-year time frame for States to submit a SIP revision that provides for
attainment within a specified time frame.
2. Summary of Final Rule
In section 51.908, we are adopting the approach we set forth in our
proposed rule, namely that emissions reductions needed for attainment
must be implemented by the beginning of the ozone season immediately
preceding the area's attainment date. We believe that Congress
contemplated that control measures would continue to be implemented up
to the attainment year. For example, section 182(c)(2)(B) requires
areas classified as serious or higher to achieve an average of 3
percent reduction in emissions per year over each 3-year period until
the area's attainment date. If Congress intended areas to achieve all
reductions needed for attainment 3 years prior to attainment, then the
last 9 percent reductions required for serious and above areas would be
reductions beyond those needed for attainment. We do not believe that
Congress mandated these reductions in addition to the reductions needed
to attain the NAAQS. In fact, this requirement is included in the
statute as a part of the subparagraph addressing attainment and
reasonable further progress, which indicates that Congress intended it
to address progress toward attainment. This is further supported by the
definition of reasonable further progress in section 171(1) as ``annual
incremental reductions in emissions * * * for the purpose of ensuring
attainment * * *.''
Other provisions in the CAA also support the concept that areas do
not need to achieve 3 years in advance of the attainment date the full
complement of reductions needed for attainment. For example, Congress
only provided marginal areas with 3 years to attain the NAAQS and did
require at least minimal additional controls be implemented in such
areas. In addition, the fact that Congress provided for two 1-year
extensions of the attainment date also indicated that Congress believed
that some areas might not be fully implementing all measures needed for
attainment 3 years in advance of the attainment date. Rather, Congress
contemplated that areas would have air quality healthy enough to make
it substantially likely the area would attain within the next 1 or 2
years.\44\
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\44\ As discussed in the section regarding the two 1-year
attainment date extensions, section 172(a)(2)(C), which applies to
all pollutants, allows for a 1-year attainment date extension if the
area has had ``minimal exceedances'' in the attainment year and
section 181(a)(5), which applies to ozone nonattainment areas
classified under subpart 2, allows for a 1-year extension if the
area has had no more than 1 exceedance in the attainment year.
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Finally, we note that the NAAQS itself does not contemplate that
air quality must be at ``attainment levels'' for each of the 3 years on
which attainment is based. Rather, attainment is determined based on an
average of the 4th high reading at a monitor over a 3 year period.
Thus, the 4th high reading for an area could be above the NAAQS for one
or both of the years preceding the attainment year, but so long as the
4th high level for the other year(s) was low enough to produce an
average at or below 0.084 ppm, the area would be attaining the NAAQS.
As noted in the June 2003 preamble, despite the fact that we
believe an area need not have all controls implemented until the
beginning of the final attainment season, the State needs to consider
that attainment is based on a 3-year average. Thus, the State will need
to ensure that implementation of controls is not unduly delayed. A
State that plans to achieve reductions by the beginning of the ozone
season prior to the attainment date may still experience meteorology
conducive to very high ozone formation in that last ozone season that
may result in the area having a 4th highest daily ozone concentration
above the level of the 8-hour NAAQS, making it ineligible for the first
of the 1-year extensions. Such an area--if classified under subpart 2--
[[Page 23990]]
would then be reclassified (bumped up) to a higher classification and
be subject to additional planning requirements and mandatory control
measures. Thus, a State should be aware of the consequences of delaying
too long to implement control measures needed for attainment.
Additionally, in reviewing implementation timeframes in SIPs, EPA will
consider whether those timeframes are as expeditious as practicable. A
guidance memorandum from John Seitz of November 30, 1999 \45\
reiterates the need to implement measures as expeditiously as
practicable:
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\45\ Memorandum, ``Guidance on the Reasonably Available Control
Measures (RACM) Requirement and Attainment Demonstration Submissions
for Ozone Nonattainment Areas.'' John S. Seitz, Director, Office of
Air Quality Planning and Standards. November 30, 1999. Web site:
http://www.epa.gov/ttn/oarpg/t1pgm.html.
In order for EPA to determine whether an area has provided for
implementation as expeditiously as practicable, the State must
explain why the selected implementation schedule is the earliest
schedule based on the specific circumstances of that area. Such
claims cannot be general claims that more time is needed but rather
should be specifically grounded in evidence of economic or
technologic infeasibility. While it may be appropriate for some
control measures to be implemented shortly after adoption, the EPA
recognizes that other measures may need a longer period. The EPA
will review the State's submission to ensure that sufficient
information is provided for the EPA to determine whether the State
has adopted all RACM necessary for attainment as expeditiously as
practicable and provided for implementation of those measures as
expeditiously as practicable. The EPA will make those determinations
based on the information provided by the State and any other
information available to the EPA at the time the Agency approves or
disapproves the attainment demonstration.
3. Comments and Responses
Comment: Some commenters agreed with our proposal as written, i.e.,
to require that emission reductions needed for attainment be
implemented by the beginning of the ozone season prior to the
attainment year.
However, several commenters disagreed with the timeframe that was
included in our proposal because it precludes areas from realizing the
benefit of Federal measures prior to developing additional local
controls.
Another commenter stated that the attainment deadlines place an
extraordinary burden on metropolitan areas to achieve the level of
emissions reductions necessary to demonstrate attainment. The commenter
felt that requiring emissions reductions to be implemented at the
beginning of the ozone season prior to the attainment date is 1 year
earlier than is required. The commenter stated that so long as there
are no exceedances in the attainment year, i.e., having controls in
place by the beginning of the ozone season of the attainment year, the
area has met the statutory requirement and could qualify for the first
of two 1-year attainment date extensions allowed under the CAA. The
commenter further stated that controls for moderate areas would need to
be in place by about the same time the area's SIP must be submitted to
EPA in order to provide 3 years of clean data for the demonstration of
attainment.
Other commenters stated that all emissions reductions needed for
attainment must be implemented in sufficient time to ensure attainment
by the attainment date without relying on the CAA provisions for the 1-
year extensions.
Response: Section 172(c)(2) of the CAA requires that emissions
reductions needed for attainment be phased in such that RFP toward
attainment is achieved. For areas classified as moderate under subpart
2, their attainment date would be as expeditiously as practicable but
no later than 6 years after the date of classification. Their ROP
requirement would be at least a 15 percent VOC emissions reduction from
the base year to be achieved no later than 6 years after the base year.
However, if the area needed more than 15 percent VOC reductions in
order to demonstrate attainment, then any additional reductions would
also have to be achieved by the beginning of the ozone season prior to
the area's attainment date.
The CAA requires each area to demonstrate attainment as
expeditiously as practicable but no later than the maximum timeframe
specified in the CAA for the area. In addition, each area is required
to adopt RACM. In determining whether measures are reasonably
available, we consider cost, technical feasibility and whether
implementation will advance the attainment date. An area cannot reject
local control measures that are technically and economically feasible
in favor of awaiting the implementation of national or regional
controls, if to do so would delay attainment of the NAAQS. The
consequences of failing to implement the control measures necessary for
attainment sufficiently far in advance of the attainment date are
discussed above and in the proposed rule.
Areas covered under subpart 1 are also able to obtain up to two 1-
year extensions of the attainment date (see section 172(a)(2)(C)).
There is no provision for bump-up in classification similar to that
under subpart 2. However, if an area fails to attain, section 179 of
the CAA provides that EPA publish a finding that the area failed to
attain. The State then must submit within 1 year after that publication
a revision to the SIP that provides for attainment within the time
provided under section 179. Section 179 also provides that the SIP
revision must also include any additional measures that EPA may
prescribe.
Comment: Several commenters suggested that nonattainment areas
should be afforded the opportunity to install controls in time to
monitor for attainment before the attainment deadline. The commenters
believes that for many industrialized and metropolitan areas classified
under Subpart 2 as marginal, moderate or serious, it will not be
feasible to have stationary and mobile source controls in place 3 years
before the attainment deadlines for the purposes of attainment
monitoring. Pragmatically, state SIPS will not be finalized until mid-
2007, at which time industrial facilities can begin the 18-24 month
period for detailed engineering, permitting and procurement of
NOX control equipment. The installation of controls would
occur over a 5-year average facility turnaround period. Furthermore,
Tier II fuels and engines will just be entering the market as will
cleaner diesel fuel and engines. It is virtually certain that many of
these areas will not have the necessary emission reductions in place 3
years before the attainment deadline and will be required to rely on
the case-by-case extensions to the designated attainment deadlines. The
commenters believe that Congress did not intend for EPA to establish
attainment deadlines that would in a large number of cases
automatically require areas to use deadline extensions; such areas have
probably been misclassified. All nonattainment areas should be afforded
the opportunity to install controls in time to monitor for attainment
by the attainment deadline, but not three years prior to the attainment
year. This would also eliminate the need for case-by-case extensions.
Response: The final rule does not require emission reductions to be
in place three ozone seasons prior to the attainment date. However, the
after-the-fact determination of whether an area actually attains the
NAAQS by its attainment date must be done by looking back at the
previous 3 years of ambient air quality data. As noted elsewhere in
this preamble, the CAA
[[Page 23991]]
provides for up to two 1-year extensions of the attainment date.
Comment: Marginal areas may not be able to demonstrate compliance
in 3 years and the final rule should provide for automatic extensions
for such areas. Additional time to implement all of these reductions
may be required in order for marginal areas to comply. By creating an
automatic extension, EPA will avoid the inevitable cost of SIP
nonattainment planning problems that communities will face if these
measures are fully implemented.
Response: The general assumption for marginal areas is that they
will be able to attain without significant additional emissions
controls. As such, section 182(a) specifies very little in terms of
mandatory obligations for marginal areas. If an area needs additional
controls and time to implement such controls, it may need to be
reclassified to a higher classification. The CAA does not allow EPA to
extend attainment dates for a classification.
Comment: One commenter noted that EPA's proposal provides: ``For
each nonattainment area, the State must provide for implementation of
all control measures needed for attainment no later than the beginning
of the attainment year ozone season.'' CAA Sec. 51.908(e). Attainment
of the 8-hour NAAQS is based on analysis of 3 years of data. Part 51,
App. I ] 2.3(a) (``The primary and secondary ozone ambient air quality
standards are met at an ambient air quality monitoring site when the 3-
year average of the annual fourth highest daily maximum 8-hour average
ozone concentration is less than or equal to 0.08 ppm.''). Thus, to
meet the statutory requirement that SIPs provide for attainment, the
rule must require SIPs to provide for implementation of all control
measures needed for attainment no later than 3 years before the
attainment date.
Response: We disagree with the comment. In section 51.908, we are
adopting the approach we set forth in our proposed rule, namely that
emissions reductions needed for attainment must be implemented by the
beginning of the ozone season immediately preceding the area's
attainment date. Our rationale is presented above.
Comment: In addition, a commenter stated that this timing was
inconsistent with the draft modeling guidance which essentially
requires areas with an attainment date of 2013 to have their controls
in place by 2011 to perform an attainment demonstration. The 2011 date
is inconsistent with the proposal which would require that the
emissions reductions be in place in 2012. The commenter further stated
that it seems inappropriate that the draft modeling guidance would be
driving the schedule for implementation of control measures as opposed
to the 8-hour implementation rule.
Response: Comments on the modeling requirements will be addressed
in Phase 2 of this rulemaking. The approach on when emission reductions
needed for attainment must be in place was not based on the modeling
requirements, but on the rationale stated in the preamble to the final
rule. The modeling guidance will be revised for consistency with the
final rule.
E. Conformity Under the 8-Hour Ozone Standard
The June 2, 2003 proposal provided background discussion on issues
related to transportation conformity and general conformity under the
8-hour ozone standard. See sections VI.M (68 FR 32841) and VI.N. (68 FR
32842). However, we did not propose any rules related to either. We did
receive a number of comments on this topic, however. Responses to those
comments are included in the response to comments document.
F. Comments on Other Issues
We received comments on other issues associated with elements of
this final rulemaking. We address those comments here. Comments on any
other issues not discussed in this preamble or the RTC accompanying
this final rule will be addressed in the second phase of this final
rulemaking.
1. Designation of Nonattainment and Attainment Areas
We received a number of comments on the designation process.
Response: As we noted in the June 2, 2003 proposal, we did not
propose to establish attainment/nonattainment designations nor did we
address the principles that will be considered in the designation
process; we issued guidance on the principles that States should
consider in making designation recommendations in March 2000.\46\ The
designation process is being conducted separately.
---------------------------------------------------------------------------
\46\ EPA issued the memorandum ``Boundary Guidance on Air
Quality Designations for the 8-Hour Ozone National Ambient Air
Quality Standard (NAAQS or Standard)'' on March 28, 2000, from John
S. Seitz, Director, Office of Air Quality Planning and Standards, to
the Air Directors, Regions I-X, to provide guidance to State and
local agencies and Tribes on designating areas and EPA's views on
boundaries for nonattainment areas for the 8-hour NAAQS.
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2. Early Action Compacts (EACs). (Section VIII.A.2. and 3 of the
Proposal; See 68 FR 32859)
We received a number of comments that addressed EACs. The June 2,
2003 proposal included a description and background information
concerning EACs, but the proposal made clear that we were not proposing
any rulemaking on EACs in that notice.
Response: The comments we received will be addressed in the rule
that takes final action on the proposed rule to defer the effective
date for EAC areas and therefore those comments are not addressed in
this current rulemaking. We note that existing 1-hour maintenance areas
will remain subject to all the requirements of that maintenance plan
and transportation conformity, until the 1-hour standard is revoked 1
year following the effective date of the area's 8-hour designation. If
EPA takes final action deferring the effective date of the 8-hour
designation for an EAC area, revocation of the 1-hour standard will
also be effectively deferred for such area. Therefore, for such an EAC
area that is a 1-hour maintenance area, the 1-hour maintenance plan,
and 1-hour conformity, will continue to apply until 1 year after the 8-
hour designation takes effect.
3. Health and Environmental Concerns
We received a number of general comments related to health and
environmental concerns. Some of these cited national health statistics
or provided information concerning the levels of ozone in their
communities or information concerning the adverse health symptoms of
themselves or friends, relatives, or patients. These commenters
generally cited this information as a way of encouraging EPA to ensure
expeditious attainment of the 8-hour ozone NAAQS and in some cases to
support leaving the 1-hour NAAQS and its implementation process in
place.
Response: We have addressed these latter concerns above in
discussion of the classification system, revocation of the 1-hour NAAQS
and the anti-backsliding provisions that serve to ensure that the 8-
hour NAAQS is attained as expeditiously as practicable with little or
no delay in emission reductions as a result of revoking the 1-hour
NAAQS.
4. Clarity and Understandability of Proposed Rule
A number of commenters expressed concern about the complexity of
the proposed rule, and the lack of apparent
[[Page 23992]]
clarity and transparency. A number of these commenters complained that
due to the large number of combinations of options that were possible
from the proposal, it was difficult or impossible to determine exactly
what the effect of the rule would be.
Response: One of our principles in drafting the proposal was to
make the rule as understandable as possible. However, the Supreme
Court's ruling on our previous implementation approach left it to EPA
to develop an implementation scheme with only general guidance as to
how to proceed. Because the consequences of implementation under a
particular approach might be fairly large, we felt obligated to place
as many practicable options in our proposal as possible to assess
public reaction by providing an opportunity for comment. This approach
obviously added complexity to the proposal. We tried to minimize the
complexity by setting forth two example frameworks for how some options
could work in conjunction with each other. We also attempted in the
draft regulatory text to focus on one set of options to illustrate how
one set of options would work together. We attempted to simplify where
we could and to provide other materials in the docket and on our web
site for this rulemaking (e.g., the ``roadmap'' and the crosswalks
between the June 2, 2003 proposal and the draft regulatory text) to
enable the reader to more easily see relations between various sections
of the proposal and to provide a synopsis of the options being
proposed. Although the very nature of the proposal was complex, we
believe that the public had sufficient opportunity to comment on the
rule.
5. Regulatory Text
A number of commenters chastised us for not providing regulatory
text with the proposal.
Response: As noted above, we did provide for public comment draft
regulatory text, which reflected one set of proposed options. On August
6, 2002 (68 FR 46536), we published a notice of availability of the
draft regulatory text for the proposed rule to implement the 8-hour
ozone NAAQS. This notice started a 30-day public comment period on the
draft regulatory text.
6. Requests for Extension of Comment Periods
We received a number of requests for extension of the comment
periods on the three notices related to our proposal (the June 2, 2003
proposal,\47\ the notice of availability of the draft regulatory
text,\48\ and the notice reopening the comment period on the
classification approach.\49\) We did not grant any of these
requests.\50\ We provided a 60-day comment period on our full
implementation proposal, which was published on June 2, 2003. We also
provided a separate 30-day comment period on draft regulatory text
(notice of availability was published on August 6, 2003). The October
21, 2003 notice was very narrow, supplementing just one aspect of the
June 2, 2003 proposal. We believe that a 15-day comment period was
sufficient to address this limited issue. That notice was based on
several comments which were submitted during the public comment period.
Those comments have been available to the public since early August.
---------------------------------------------------------------------------
\47\ OAR-2003-0079-0081, 0085 American Petroleum Institute (API)
requests for extension to the August 1st, 2003 comment deadline.
\48\ OAR-2003-0079-0405 Request for Extension of Time for Filing
Comments on Draft Regulatory Text for Proposed Rule to Implement the
8-Hour Ozone National Ambient Air Quality Standard (NAAQS) submitted
by Howard J. Feldman, Director, American Petroleum Institute.
\49\ OAR-2003-0079-0542, 0589, 0590 Request for Extension of
time for 15-day comment period on approaches to implement the 8-hour
ozone NAAQS, submitted by Gregory Dana, Vice President Environmental
Affairs, Alliance of Automobile Manufacturers.
OAR-2003-0079-0555 Request for extension of time for 15-day
comment period on alternative approaches to implement the 8-hour
ozone NAAQS submitted by Howard Feldman, Director Regulatory
Analysis and Scientific Affairs, American Petroleum Institute (API).
OAR-2003-0079-0572 Request for Extension of Public Comment
Period submitted by Leslie S. Ritts, Counsel to The National
Environmental Development Associations Clean Air Regulatory Project
(NEDA/CARP).
\50\ See, for instance, OAR-2003-0079-0165 Letter from S. Page,
Director, OAQPS to H.J. Feldman, Director, API, denying extension of
comment period.
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We are committed by a consent decree to designate areas for the 8-
hour ozone NAAQS by April 15, 2004. We believe it was essential to move
forward to provide the public health protection that implementation of
the 8-hour NAAQS will yield. We have recognized the strong interest
from many stakeholders in our issuance of a final implementation rule
prior to the April 2004 designation deadline. These interests, in
conjunction with the reasons set forth above, support our denial of
requests for an extension of the comment period. However, as is
normally the case, we considered comments received after the close of
the comment period to the extent we were able to do so without impeding
the process for issuing the final rule.
G. Other Considerations
Although Phase 2 of the final rule will address aspects of
implementation of the 8-hour ozone NAAQS that are not addressed in this
rulemaking, additional information is provided below regarding new
source review for the 8-hour ozone NAAQS.
1. What Happens If a Source Is in the Process of PSD Permitting at the
Time That the Area in Which It Is Located Is Designated as
Nonattainment for the 8-Hour Ozone NAAQS?
An area's designation at the time the final permit is issued
determines which major New Source Review (NSR) requirements apply to
the construction activity.
Accordingly, if a source has received its PSD permit before the
area is designated nonattainment, it may construct under the terms of
that permit if it commences an ongoing program of construction within
the required time period and completes the project within a reasonable
time. However, if the area is designated nonattainment before the
permit is issued (even if the reviewing authority deemed the PSD
application complete), the PSD permit may not be issued. The source
would be required to submit a new application to comply with the
requirements of the applicable nonattainment major NSR program before
receiving a final permit and beginning construction. 40 CFR 52.24(k)
and 40 CFR part 51, appendix S. We have consistently applied this
approach in past designation and redesignation situations.
This approach is consistent with CAA section 165, which states that
PSD permitting requirements apply only in attainment and unclassifiable
areas. The DC District Court of Appeals affirmed this plain reading of
the statute in the Alabama Power decision (636 F.2d 323). In response
to EPA's attempt to apply PSD permitting requirements in some
nonattainment areas, the court stated, ``After careful consideration of
the statute and the legislative history, we must accept the contention
of the industry petitioners that the phrase `constructed in any area to
which this part applies' limits the application of section 165 to major
emitting facilities to be constructed in [attainment and unclassifiable
areas].'' The court went on to say, ``The plain meaning of the
inclusion in section 165 of the words `any area to which this part
applies' is that Congress intended location to be the key determinant
of the applicability of the PSD review requirements.''
This approach is also consistent with the regulatory text in the
Federal PSD
[[Page 23993]]
regulations. These regulations limit the applicability of PSD
requirements to ``an area designated as attainment or unclassifiable.''
40 CFR 51.166(a)(7)(i); 52.21(a)(2)(i).
H. EPA's Final Action
We are taking final action on key elements of the program to
implement the 8-hour ozone NAAQS. This final rule addresses the
following topics: Classifications for the 8-hour NAAQS; revocation of
the 1-hour NAAQS (i.e., when the 1-hour NAAQS will no longer apply);
how anti-backsliding principles will ensure continued progress toward
attainment of the 8-hour ozone NAAQS; attainment dates; and the timing
of emission reductions needed for attainment. A summary of the rule
appears in section IV of this preamble.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and, therefore, subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action''
because it raises novel legal or policy issues arising out of legal
mandates. As such, this action was submitted to OMB for review. Changes
made in response to OMB suggestions or recommendations will be
documented in the public record.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
This rule merely interprets the requirement to develop State
implementation plans to achieve a new or revised NAAQS. This
requirement is prescribed in the CAA sections 110 and part D, subparts
1 and 2 of Title 1. The present final rule does not establish any new
information collection burden apart from any that required by law. A
SIP contains rules and other requirements designed to achieve the NAAQS
by the deadlines established under the CAA, and also contains a
demonstration that the State's requirements will in fact result in
attainment. Such a document is not considered information collection.
Burden means the total time, effort, or financial resources expended by
persons to generate, maintain, retain, or disclose or provide
information to or for a Federal agency. This includes the time needed
to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information. An agency may not
conduct or sponsor, and a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number. The OMB control numbers for EPA's regulations in 40 CFR
are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an Agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedures
Act or any other statute unless the Agency certifies the rule will not
have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business that is a
small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards (See 13 CFR 121.); (2) a
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This rule
will not impose any requirements on small entities. Rather, this rule
interprets the obligations established in the CAA for States to submit
implementation plans in order to attain the 8-hour ozone NAAQS. We are
issuing this rule so that States and Tribes will know how we plan to
classify areas and transition from implementation of the 1-hour NAAQS
to implementation of the 8-hour NAAQS.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
1 year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory
[[Page 23994]]
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
The EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in any 1 year. The estimated administrative burden hour and
costs associated with implementing the 8-hour, 0.08 ppm NAAQS were
developed upon promulgation of the NAAQS and presented in Chapter 10 of
U.S. EPA 1997, Regulatory Impact Analyses for the Particulate Matter
and Ozone National Ambient Air Quality Standards, Innovative Strategies
and Economics Group, Office of Air Quality Planning and Standards,
Research Triangle Park, NC, July 16, 1997. The estimated costs
presented there for States in 1990 dollars totaled $0.9 million. The
corresponding estimate in 1997 dollars is $1.1 million. Should the more
traditional classification option be adopted as the implementation
framework, these costs may increase modestly, but would not reach $100
million. Thus, today's rule is not subject to the requirements of
section 202 and 205 of the UMRA.
The CAA imposes the obligation for States to submit SIPs to
implement the 8-hour ozone NAAQS; in this rule, EPA is merely fleshing
out those requirements. However, even if this rule did establish a
requirement for States to submit SIPs, it is questionable whether a
requirement to submit a SIP revision would constitute a Federal mandate
in any case. The obligation for a State to submit a SIP that arises out
of section 110 and part D of the CAA is not legally enforceable by a
court of law, and at most is a condition for continued receipt of
highway funds. Therefore, it is possible to view an action requiring
such a submittal as not creating any enforceable duty within the
meaning of section 421(5)(9a)(I) of UMRA (2 U.S.C. 658(a)(I)). Even if
it did, the duty could be viewed as falling within the exception for a
condition of Federal assistance under section 421(5)(a)(i)(I) of UMRA
(2 U.S.C. 658(5)(a)(i)(I)).
In this rule, EPA has determined that this rule contains no
regulatory requirements that may significantly or uniquely affect small
governments, including Tribal governments. Nonetheless, EPA carried out
consultations with governmental entities affected by this rule.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. As described in section D, above
(on UMRA), EPA previously determined the costs to States to implement
the 8-hour ozone NAAQS to be approximately $1 million. While this rule
considers options not addressed at the time the NAAQS were promulgated,
the costs for implementation under these options would may rise
modestly. This rule fleshes out the statutory obligations of States in
implementing the 8-hour ozone NAAQS. Finally, the CAA establishes the
scheme whereby States take the lead in developing plans to meet the
NAAQS. This rule would not modify the relationship of the States and
EPA for purposes of developing programs to implement the NAAQS. Thus,
Executive Order 13132 does not apply to this rule.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA actively engaged the States in the development of this rule.
EPA held regular calls with representatives of State and local air
pollution control agencies. EPA also held three public meetings at
which it described the approaches it was considering and provided an
opportunity for States and various other governmental officials to
comment on the options being considered. Finally, EPA held three public
hearings after the proposed rule was published to obtain public
comments.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This determination is stated
below.
This rule concerns the implementation of the 8-hour ozone NAAQS in
areas designated nonattainment for that NAAQS. The CAA provides for
States and Tribes to develop plans to regulate emissions of air
pollutants within their jurisdictions. The regulations flesh out the
statutory obligations of States and Tribes that develop plans to
implement the 8-hour ozone NAAQS. The TAR gives Tribes the opportunity
to develop and implement CAA programs such as the 8-hour ozone NAAQS,
but it leaves to the discretion of the Tribe whether to develop these
programs and which programs, or appropriate elements of a program, they
will adopt.
This rule does not have Tribal implications as defined by Executive
Order 13175. It does not have a substantial direct effect on one or
more Indian Tribes, since no Tribe has implemented a CAA program to
attain the 8-hour ozone NAAQS at this time. Furthermore, this rule does
not affect the relationship or distribution of power and
responsibilities between the Federal government and Indian Tribes. The
CAA and the TAR establish the relationship of the Federal government
and Tribes in developing plans to attain the NAAQS, and this rule does
nothing to modify that relationship. Because this rule does not have
Tribal implications, Executive Order 13175 does not apply.
The EPA also notes that even if Tribes choose to develop plans to
implement the 8-hour ozone NAAQS in the future, these regulations would
not impose substantial direct compliance costs on such Tribes, nor
would they preempt Tribal law. As provided above, EPA has determined
that the total costs for implementing the 8-hour ozone NAAQS by State,
local, and Tribal governments is approximately $1 million in all areas
designated nonattainment for the NAAQS. The percentage of Indian
country that will be designated nonattainment for the 8-hour ozone
NAAQS is very small. For Tribes that choose to regulate sources under
their jurisdiction, the costs would be attributed to inspecting
regulated facilities and enforcing adopted regulations.
Although Executive Order 13175 does not apply to this rule, EPA did
consult with Tribal officials in developing this rule and encouraged
Tribal input at an
[[Page 23995]]
early stage. The EPA supports a national ``Tribal Designations and
Implementation Work Group'' which provided an open forum for all Tribes
to voice concerns to EPA about the designation and implementation
process for the 8-hour ozone NAAQS. These discussions have given EPA
valuable information about Tribal concerns regarding implementation of
the 8-hour ozone NAAQS. The work group sent issue summaries and
suggestions for addressing them to the newly formed National Tribal Air
Association (NTAA), who in turn sent them to Tribal leaders. EPA
encouraged Tribes to participate in the national public meetings held
to take comment on early approaches to the rule. Several Tribes made
public comments at the April 2002 public meeting in Tempe, Arizona.
Furthermore, EPA sent individualized letters to all federally
recognized Tribes about the proposal and gave Tribal leaders the
opportunity for consultation. EPA received comment from the NTAA
raising several questions: (1) NTAA asked for clarification on the
nature of EPA's support for Tribes without Treatment in the same manner
as a State (TAS) status and asked if EPA would provide technical
assistance in interpreting SIP documentation to a Tribe without TAS
approval; (2) NTAA asked EPA to explain how it envisions its role in
continuing consultation with Tribes throughout the execution of SIPs.
These comments will be addressed in the technical support document. The
NTAA's final comment cited concerns with the impact of NSR requirements
on the Tribes. The EPA intends to address these NSR comments in the
Tribal NSR Rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children From Environmental
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any
rule that (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
The rule is not subject to Executive Order 13045 because it
implements a previously promulgated health based Federal standard (this
rule implements the 8-hour ozone NAAQS). Nonetheless, we have evaluated
the environmental health or safety effects of the 8-hour ozone NAAQS on
children. The results of this evaluation are contained in 40 CFR part
50, National Ambient Air Quality Standards for Ozone, Final Rule (62 FR
38855-38896; specifically, 62 FR 38855, 62 FR 38860 and 62 FR 38865).
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions That Significantly Affect Energy
Supply, Distribution, or Use,'' (66 FR 28355, May 22, 2001) because it
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
Information on the methodology and data regarding the assessment of
potential energy impacts is found in Chapter 6 of U.S. EPA 2003, Cost,
Emission Reduction, Energy, and Economic Impact Assessment of the
Proposed Rule Establishing the Implementation Framework for the 8-Hour,
0.08 ppm Ozone National Ambient Air Quality Standard, prepared by the
Innovative Strategies and Economics Group, Office of Air Quality
Planning and Standards, Research Triangle Park, N.C. April 24, 2003.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards (VCS) in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by VCS bodies. The NTTAA directs EPA to provide Congress,
through OMB, explanations when the Agency decides not to use available
and applicable VCS.
This rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any VCS.
The EPA will encourage the States and Tribes to consider the use of
such standards, where appropriate, in the development of the
implementation plans.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 requires that each Federal agency make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionate high and adverse human
health or environmental effects of its programs, policies, and
activities on minorities and low-income populations.
The EPA believes that this rule should not raise any environmental
justice issues. The health and environmental risks associated with
ozone were considered in the establishment of the 8-hour, 0.08 ppm
ozone NAAQS. The level is designed to be protective with an adequate
margin of safety. The rule provides a framework for improving
environmental quality and reducing health risks for areas that may be
designated nonattainment.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective June 15, 2004.
L. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by June 29, 2004. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. See CAA section 307(b)(2).
[[Page 23996]]
M. Determination Under Section 307(d)
Pursuant to section 307(d)(1)(V) of the CAA, the Administrator
determines that this action is subject to the provisions of section
307(d). Section 307(d)(1)(V) provides that the provisions of section
307(d) apply to ``such other actions as the Administrator may
determine.'' While the Administrator did not make this determination
earlier, the Administrator believes that all of the procedural
requirements, e.g., docketing, hearing and comment periods, of section
307(d) have been complied with during the course of this rulemaking.
Appendix A to Preamble--Example for 8-Hr Ozone Preamble Portion Dealing
with Anti-Backsliding and Outstanding 1-Hr ROP Obligation
Consider a 1-hour nonattainment area classified as Severe-15.
For simplicity, only one precursor is assumed here, and this example
does not account for issues of creditability established by the CAA.
The 1-hour Severe-15 areas are required to reach attainment no later
than 15 years after the 1990 base year, i.e., in year 2005. The ROP
requirement over this 15-year period would be accomplished by an
initial 15 percent reduction in emissions in the first six years,
followed by additional 3 percent per year reductions (9 percent
averaged over three years) until attainment is reached but no later
than the attainment date (with any additional reductions needed for
attainment). Suppose an area started with a base year emissions
inventory of 1000 tons/day (t/d); after an initial 15 percent
reduction, the area's emissions in 1996 would be 850 t/d. Subsequent
additive linear 9 percent reductions would net 24 percent, 33
percent, and 42 percent reductions, leaving emissions of 760 t/d in
1999, 670 t/d in 2002, and 580 t/d in 2005. (Since each subsequent 9
year incremental reduction toward attainment would have to account
for adjustments in the base year inventory because of noncreditable
reductions, actual reductions would vary somewhat from those shown
here.)
Assume that the same area is classified Serious for the 8-hour
NAAQS. Under one of our proposed options for such an area, the area
would be required to submit an RFP plan in 2006 that shows (for the
6-year period from the end of 2002 to the end of 2008) an 18 percent
reduction from a 2002 base year. The 1-hour NAAQS ROP schedule thus
overlaps the 8-hour one, which begins in base year 2002 and
continues to year 2013. As the same 1-hour Severe-15 area
transitions to an 8-hour serious nonattainment area, overlap occurs
during years 2002 through 2005. During this interval, the area will
complete its last 9 percent incremental reduction in year 2005 for
its 1-hour obligation while at the same time beginning to meet the
8-hour obligation of 18 percent by 2008. Therefore, between 2002-
2005, the area will need to get (670 t/d-580 t/d =) 90 t/d
reductions to meet its 1-hour obligation. The area would also be
required to get between 2002--2008 an 18 percent reduction from the
2002 base inventory of 670 t/d which equals a 121 t/d in reductions.
However, since the 90 t/d is already obtained for the 2002-2005
period, the area need only get an additional (121 t/d-90 t/d =) 31
t/d reductions to meet the 8-hour obligation from 2005 out to 2008.
Therefore, if this area had not actually submitted a 1-hour ROP plan
that covered the 2002-2005 period, and it submitted its 8-hour RFP
plan that achieves the 121 t/d reduction, it would be deemed to have
met its 1-hour ROP obligation, provided that the RFP plan insured
that 90 t/d would be achieved by 2005.
Appendix B to Preamble--Glossary of Terms and Acronyms
bump-up Reclassify to higher classification
CAA Clean Air Act
CAAA 1990 Clean Air Act Amendments
CFR Code of Federal Regulations
CMSA Consolidated Metropolitan Statistical Area
EAC Early Action Compacts
EPA Environmental Protection Agency
I/M Inspection and Maintenance Area
LAER Lowest achievable emission rate
LNB Low NOX Burner
MCR Mid-course review
MPO Metropolitan Planning Organization
NAAQS National Ambient Air Quality Standards
NOX Nitrogen oxides
NSR New source review
NTAA National Tribal Air Association
NTTAA National Technology Transfer Advancement Act of 1995
OMB Office of Management and Budget
OTR Ozone Transport Region
PAMS Photochemical Assessment Monitoring Stations
ppm Parts per million
PSD Prevention of significant deterioration
RACM Reasonably available control measures
RACT Reasonably available control technology
RFG Reformulated gasoline
RFP Reasonable further progress
ROP Rate of progress
SBA Small Business Administration
SCR Selective Catalytic Reduction
SIPs State implementation plans
TAR Tribal Authority Rule
TAS Treatment in the same manner as a State
t/d Tons per day
TEA-21 Transportation Equity Act for the Twenty-first Century
UMRA Unfunded Mandates Reform Act of 1995
VCS Voluntary consensus standards
VOC Volatile organic compound
List of Subjects
40 CFR Part 50
Environmental protection, Air pollution control, Carbon monoxide,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
40 CFR Part 51
Air pollution control, Intergovernmental relations, Ozone,
Particulate matter, Transportation, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Authority: 42 U.S.C. 7408; 42 U.S.C. 7410; 42 U.S.C. 7501-7511f;
42 U.S.C. 7601(a)(1); 42 U.S.C. 7401.
Dated: April 15, 2004.
Michael O. Leavitt,
Administrator.
0
For the reasons stated in the preamble, Title 40, Chapter I of the Code
of Federal Regulations is amended as follows:
PART 50--NATIONAL PRIMARY AND SECONDARY AMBIENT AIR QUALITY
STANDARDS
0
1. The authority citation for Part 50 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
2. Section 50.9 is amended by revising the second sentence of paragraph
(b) to read as follows:
Sec. 50.9 National 1-hour primary and secondary ambient air quality
standards for ozone.
* * * * *
(b) * * * The 1-hour NAAQS set forth in paragraph (a) of this
section will no longer apply to an area one year after the effective
date of the designation of that area for the 8-hour ozone NAAQS
pursuant to section 107 of the Clean Air Act. * * *
* * * * *
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
0
3. The authority citation for Part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
0
4. Part 51 is amended by adding a new subpart X to read as follows:
Subpart X--Provisions for Implementation of 8-hour Ozone National
Ambient Air Quality Standard
Sec.
51.900 Definitions.
51.901 Applicability of part 51.
51.902 Which classification and area planning provisions of the CAA
shall apply to areas designated nonattainment for the 8-hour NAAQS?
51.903 How do the classification and attainment date provisions in
section 181 of subpart 2 of the CAA apply to areas subject to Sec.
51.902(a)?
51.904 How do the classification and attainment date provisions in
section
[[Page 23997]]
172(a) of subpart 1 of the CAA apply to areas subject to Sec.
51.902(b)?
51.905 How do areas transition from the 1-hour NAAQS to the 8-hour
NAAQS and what are the anti-backsliding provisions?
51.906 [Reserved]
51.907 For an area that fails to attain the 8-hour NAAQS by its
attainment date, how does EPA interpret sections 172(a)(2)(C)(ii)
and 181(a)(5)(B) of the CAA?
51.908 What is the required timeframe for obtaining emission
reductions to ensure attainment by the attainment date?
51.909--51.916 [Reserved]
Subpart X--Provisions for Implementation of 8-hour Ozone National
Ambient Air Quality Standard
Sec. 51.900 Definitions.
The following definitions apply for purposes of this subpart. Any
term not defined herein shall have the meaning as defined in 40 CFR
51.100.
(a) 1-hour NAAQS means the 1-hour ozone national ambient air
quality standards codified at 40 CFR 50.9.
(b) 8-hour NAAQS means the 8-hour ozone national ambient air
quality standards codified at 40 CFR 50.10.
(c) 1-hour ozone design value is the 1-hour ozone concentration
calculated according to 40 CFR part 50, Appendix H and the
interpretation methodology issued by the Administrator most recently
before the date of the enactment of the CAA Amendments of 1990.
(d) 8-Hour ozone design value is the 8-hour ozone concentration
calculated according to 40 CFR part 50, appendix I.
(e) CAA means the Clean Air Act as codified at 42 U.S.C. 7401--
7671q (2003).
(f) Applicable requirements means for an area the following
requirements to the extent such requirements apply or applied to the
area for the area's classification under section 181(a)(1) of the CAA
for the 1-hour NAAQS at the time the Administrator signs a final rule
designating the area for the 8-hour standard as nonattainment,
attainment or unclassifiable:
(1) Reasonably available control technology (RACT).
(2) Inspection and maintenance programs (I/M).
(3) Major source applicability cut-offs for purposes of RACT.
(4) Rate of Progress (ROP) reductions.
(5) Stage II vapor recovery.
(6) Clean fuels fleet program under section 183(c)(4) of the CAA.
(7) Clean fuels for boilers under section 182(e)(3) of the CAA.
(8) Transportation Control Measures (TCMs) during heavy traffic
hours as provided under section 182(e)(4) of the CAA.
(9) Enhanced (ambient) monitoring under section 182(c)(1) of the
CAA.
(10) Transportation controls under section 182(c)(5) of the CAA.
(11) Vehicle miles traveled provisions of section 182(d)(1) of the
CAA.
(12) NOX requirements under section 182(f) of the CAA.
(g) Attainment year ozone season shall mean the ozone season
immediately preceding a nonattainment area's attainment date.
(h) Designation for the 8-hour NAAQS shall mean the effective date
of the 8-hour designation for an area.
(i) Higher classification/lower classification. For purposes of
determining whether a classification is higher or lower,
classifications are ranked from lowest to highest as follows:
classification under subpart 1 of the CAA; marginal; moderate; serious;
severe-15; severe-17; and extreme.
(j) Initially designated means the first designation that becomes
effective for an area for the 8-hour NAAQS and does not include a
redesignation to attainment or nonattainment for that standard.
(k) Maintenance area for the 1-hour NAAQS means an area that was
designated nonattainment for the 1-hour NAAQS on or after November 15,
1990 and was redesignated to attainment for the 1-hour NAAQS subject to
a maintenance plan as required by section 175A of the CAA.
(l) Nitrogen Oxides (NOX) means the sum of nitric oxide
and nitrogen dioxide in the flue gas or emission point, collectively
expressed as nitrogen dioxide.
(m) NOX SIP Call means the rules codified at 40 CFR
51.121 and 51.122.
(n) Ozone season means for each State, the ozone monitoring season
as defined in 40 CFR Part 58, Appendix D, section 2.5 for that State.
(o) Ozone transport region means the area established by section
184(a) of the CAA or any other area established by the Administrator
pursuant to section 176A of the CAA for purposes of ozone.
(p) Reasonable further progress (RFP) means for the purposes of the
8-hour NAAQS, the progress reductions required under section 172(c)(2)
and section 182(b)(1) and (c)(2)(B) and (c)(2)(C) of the CAA.
(q) Rate of progress (ROP) means for purposes of the 1-hour NAAQS,
the progress reductions required under section 172(c)(2) and section
182(b)(1) and (c)(2)(B) and (c)(2)(C) of the CAA.
(r) Revocation of the 1-hour NAAQS means the time at which the 1-
hour NAAQS no longer apply to an area pursuant to 40 CFR 50.9(b).
(s) Subpart 1 (CAA) means subpart 1 of part D of title I of the
CAA.
(t) Subpart 2 (CAA) means subpart 2 of part D of title I of the
CAA.
(u) Attainment Area means, unless otherwise indicated, an area
designated as either attainment, unclassifiable, or attainment/
unclassifiable.
Sec. 51.901 Applicability of part 51.
The provisions in subparts A through W of part 51 apply to areas
for purposes of the 8-hour NAAQS to the extent they are not
inconsistent with the provisions of this subpart.
Sec. 51.902 Which classification and nonattainment area planning
provisions of the CAA shall apply to areas designated nonattainment for
the 8-hour NAAQS?
(a) Classification under subpart 2 (CAA). An area designated
nonattainment for the 8-hour NAAQS with a 1-hour ozone design value
equal to or greater than 0.121 ppm at the time the Administrator signs
a final rule designating or redesignating the area as nonattainment for
the 8-hour NAAQS will be classified in accordance with section 181 of
the CAA, as interpreted in Sec. 51.903(a), for purposes of the 8-hour
NAAQS, and will be subject to the requirements of subpart 2 that apply
for that classification.
(b) Covered under subpart 1 (CAA). An area designated nonattainment
for the 8-hour ozone NAAQS with a 1-hour design value less than 0.121
ppm at the time the Administrator signs a final rule designating or
redesignating the area as nonattainment for the 8-hour NAAQS will be
covered under section 172(a)(1) of the CAA and will be subject to the
requirements of subpart 1.
Sec. 51.903 How do the classification and attainment date provisions
in section 181 of subpart 2 of the CAA apply to areas subject to
Sec. 51.902(a)?
(a) In accordance with section 181(a)(1) of the CAA, each area
subject to Sec. 51.902(a) shall be classified by operation of law at
the time of designation. However, the classification shall be based on
the 8-hour design value for the area, in accordance with Table 1 below,
or such higher or lower classification as the State may request as
provided in paragraphs (b) and (c) of this section. The 8-hour design
value for the area shall be calculated using the three most recent
years of air quality data. For each area classified under this section,
the primary NAAQS attainment date for the 8-hour NAAQS shall be as
expeditious as practicable but not later than the date provided in the
following Table 1.
[[Page 23998]]
Table 1.--Classification for 8-Hour Ozone NAAQS for Areas Subject to Sec. 51.902(a)
----------------------------------------------------------------------------------------------------------------
Maximum period for
attainment dates in
8-hour design state plans (years
Area class value (ppm after effective date of
ozone) nonattainment
designation for 8-hour
NAAQS)
----------------------------------------------------------------------------------------------------------------
Marginal................................. from........................ 0.085 3
up to \1\................... 0.092
Moderate................................. from........................ 0.092 6
up to \1\................... 0.107
Serious.................................. from........................ 0.107 9
up to \1\................... 0.120
Severe-15................................ from........................ 0.120 15
up to \1\................... 0.127
Severe-17................................ from........................ 0.127 17
up to \1\................... 0.187
Extreme.................................. equal to.................... 0.187 20
or above....................
----------------------------------------------------------------------------------------------------------------
\1\ but not including.
(b) A State may request a higher classification for any reason in
accordance with section 181(b)(3) of the CAA.
(c) A State may request a lower classification in accordance with
section 181(a)(4) of the CAA.
Sec. 51.904 How do the classification and attainment date provisions
in section 172(a) of subpart 1 of the CAA apply to areas subject to
Sec. 51.902(b)?
(a) Classification. The Administrator may classify an area subject
to Sec. 51.902(b) as an overwhelming transport area if:
(1) The area meets the criteria as specified for rural transport
areas under section 182(h) of the CAA;
(2) Transport of ozone and/or precursors into the area is so
overwhelming that the contribution of local emissions to observed 8-
hour ozone concentration above the level of the NAAQS is relatively
minor; and
(3) The Administrator finds that sources of VOC (and, where the
Administrator determines relevant, NOX) emissions within the
area do not make a significant contribution to the ozone concentrations
measured in other areas.
(b) Attainment dates. For an area subject to Sec. 51.902(b), the
Administrator will approve an attainment date consistent with the
attainment date timing provision of section 172(a)(2)(A) of the CAA at
the time the Administrator approves an attainment demonstration for the
area.
Sec. 51.905 How do areas transition from the 1-hour NAAQS to the 8-
hour NAAQS and what are the anti-backsliding provisions?
(a) What requirements that applied in an area for the 1-hour NAAQS
continue to apply after revocation of the 1-hour NAAQS for that area?
(1) 8-Hour NAAQS Nonattainment/1-Hour NAAQS Nonattainment. The
following requirements apply to an area designated nonattainment for
the 8-hour NAAQS and designated nonattainment for the 1-hour NAAQS at
the time of designation for the 8-hour NAAQS for that area.
(i) The area remains subject to the obligation to adopt and
implement the applicable requirements as defined in Sec. 51.900(f),
except as provided in paragraph (a)(1)(iii) of this section, and except
as provided in paragraph (b) of this section.
(ii) If the area has not met its obligation to have a fully-
approved attainment demonstration SIP for the 1-hour NAAQS, the State
must comply with one of the following:
(A) Submit a 1-hour attainment demonstration no later than 1 year
after designation;
(B) Submit a RFP plan for the 8-hour NAAQS no later than 1-year
following designations for the 8-hour NAAQS providing a 5 percent
increment of emissions reduction from the area's 2002 emissions
baseline, which must be in addition to measures (or enforceable
commitments to measures) in the SIP at the time of the effective date
of designation and in addition to national or regional measures and
must be achieved no later than 2 years after the required date for
submission (3 years after designation).
(C) Submit an 8-hour ozone attainment demonstration no later than 1
year following designations that demonstrates attainment of the 8-hour
NAAQS by the area's attainment date; provides for 8-hour RFP for the
area out to the attainment date; and for the initial period of RFP for
the area (between 2003-2008), achieve the emission reductions by
December 31, 2007.
(iii) If the area has an outstanding obligation for an approved 1-
hour ROP SIP, it must develop and submit to EPA all outstanding 1-hour
ROP plans; where a 1-hour obligation overlaps with an 8-hour RFP
requirement, the State's 8-hour RFP plan can be used to satisfy the 1-
hour ROP obligation if the 8-hour RFP plan has an emission target at
least as stringent as the 1-hour ROP emission target in each of the 1-
hour ROP target years for which the 1-hour ROP obligation exists.
(2) 8-Hour NAAQS Nonattainment/1-Hour NAAQS Maintenance. An area
designated nonattainment for the 8-hour NAAQS that is a maintenance
area for the 1-hour NAAQS at the time of designation for the 8-hour
NAAQS for that area remains subject to the obligation to implement the
applicable requirements as defined in Sec. 51.900 (f) to the extent
such obligations are required by the approved SIP, except as provided
in paragraph (b) of this section. Applicable measures in the SIP must
continue to be implemented; however, if these measures were shifted to
contingency measures prior to designation for the 8-hour NAAQS for the
area, they may remain as contingency measures, unless the measures are
required to be implemented by the CAA by virtue of the area's
requirements under the 8-hour NAAQS. The State may not remove such
measures from the SIP.
(3) 8-Hour NAAQS Attainment/1-Hour NAAQS Nonattainment--(i)
Obligations in an approved SIP. For an area that is 8-hour NAAQS
attainment/1-hour NAAQS nonattainment, the State may request that
obligations under the applicable requirements of Sec. 51.900(f) be
shifted to contingency measures, consistent with sections 110(l) and
193
[[Page 23999]]
of the CAA, after revocation of the 1-hour NAAQS; however, the State
cannot remove the obligations from the SIP. For such areas, the State
may request that the nonattainment NSR provisions be removed from the
SIP on or after the date of revocation of the 1-hour NAAQS and need not
be shifted to contingency measures subject to paragraph (e)(4) of this
section.
(ii) Attainment demonstration and ROP plans. (A) To the extent an
8-hour NAAQS attainment/1-hour NAAQS nonattainment area does not have
an approved attainment demonstration or ROP plan that was required for
the 1-hour NAAQS under the CAA, the obligation to submit such an
attainment demonstration or ROP plan
(1) Is deferred for so long as the area continues to maintain the
8-hour NAAQS; and
(2) No longer applies once the area has an approved maintenance
plan pursuant to paragraph (a)(3)(iii) of this section.
(B) For an 8-hour NAAQS attainment/1-hour NAAQS nonattainment area
that violates the 8-hour NAAQS, prior to having an approved maintenance
plan for the 8-hour NAAQS as provided under paragraph (a)(3)(iii) of
this section, paragraphs (a)(3)(ii)(B)(1), (2), and (3) of this section
shall apply.
(1) In lieu of any outstanding obligation to submit an attainment
demonstration, within 1 year after the date on which EPA publishes a
determination that a violation of the 8-hour NAAQS has occurred, the
State must submit (or revise a submitted) maintenance plan for the 8-
hour NAAQS, as provided under paragraph (a)(3)(iii) of this section,
to--
(i) Address the violation by relying on modeling that meets EPA
guidance for purposes of demonstrating maintenance of the NAAQS; or
(ii) Submit a SIP providing for a 3 percent increment of emissions
reductions from the area's 2002 emissions baseline; these reductions
must be in addition to measures (or enforceable commitments to
measures) in the SIP at the time of the effective date of designation
and in addition to national or regional measures.
(2) The plan required under paragraph (a)(3)(ii)(B)(1) of this
section must provide for the emission reductions required within 3
years after the date on which EPA publishes a determination that a
violation of the 8-hour NAAQS has occurred.
(3) The State shall submit an ROP plan to achieve any outstanding
ROP reductions that were required for the area for the 1-hour NAAQS,
and the 3-year period or periods for achieving the ROP reductions will
begin January 1 of the year following the 3-year period on which EPA
bases its determination that a violation of the 8-hour NAAQS occurred.
(iii) Maintenance plans for the 8-hour NAAQS. For areas initially
designated attainment for the 8-hour NAAQS, and designated
nonattainment for the 1-hour NAAQS at the time of designation for the
8-hour NAAQS, the State shall submit no later than 3 years after the
area's designation for the 8-hour NAAQS, a maintenance plan for the 8-
hour NAAQS in accordance with section 110(a)(1) of the CAA. The
maintenance plan must provide for continued maintenance of the 8-hour
NAAQS for 10 years following designation and must include contingency
measures. This provision does not apply to areas redesignated from
nonattainment to attainment for the 8-hour NAAQS pursuant to CAA
section 107(d)(3); such areas are subject to the maintenance plan
requirement in section 175A of the CAA.
(4) 8-Hour NAAQS Attainment/1-Hour NAAQS Maintenance--(i)
Obligations in an approved SIP. For an 8-hour NAAQS attainment/1-hour
NAAQS maintenance area, the State may request that obligations under
the applicable requirements of Sec. 51.900(f) be shifted to
contingency measures, consistent with sections 110(l) and 193 of the
CAA, after revocation of the 1-hour NAAQS; however, the State cannot
remove the obligations from the SIP.
(ii) Maintenance Plans for the 8-hour NAAQS. For areas initially
designated attainment for the 8-hour NAAQS and subject to the
maintenance plan for the 1-hour NAAQS at the time of designation for
the 8-hour NAAQS, the State shall submit no later than 3 years after
the area's designation for the 8-hour NAAQS, a maintenance plan for the
8-hour NAAQS in accordance with section 110(a)(1) of the CAA. The
maintenance plan must provide for continued maintenance of the 8-hour
NAAQS for 10 years following designation and must include contingency
measures. This provision does not apply to areas redesignated from
nonattainment to attainment for the 8-hour NAAQS pursuant to section
107(d)(3); such areas are subject to the maintenance plan requirement
in section 175A of the CAA.
(b) Does attainment of the ozone NAAQS affect the obligations under
paragraph (a) of this section? A State remains subject to the
obligations under paragraphs (a)(1)(i) and (a)(2) of this section until
the area attains the 8-hour NAAQS. After the area attains the 8-hour
NAAQS, the State may request such obligations be shifted to contingency
measures, consistent with sections 110(l) and 193 of the CAA; however,
the State cannot remove the obligations from the SIP.
(c) Which portions of an area designated for the 8-hour NAAQS
remain subject to the obligations identified in paragraph (a) of this
section? (1) Except as provided in paragraph (c)(2) of this section,
only the portion of the designated area for the 8-hour NAAQS that was
required to adopt the applicable requirements in Sec. 51.900(f) for
purposes of the 1-hour NAAQS is subject to the obligations identified
in paragraph (a) of this section, including the requirement to submit a
maintenance plan for purposes of paragraph (a)(3)(iii) of this section.
40 CFR Part 81, Subpart E identifies the boundaries of areas and the
area designations and classifications for the 1-hour NAAQS at the time
the 1-hour NAAQS no longer applied to each area.
(2) For purposes of paragraph (a)(1)(ii)(B) and (C) of this
section, the requirement to achieve emission reductions applies to the
entire area designated nonattainment for the 8-hour ozone NAAQS.
(d) [Reserved]
(e) What obligations that applied for the 1-hour NAAQS will no
longer apply after revocation of the 1-hour NAAQS for an area?--(1)
Maintenance plans. Upon revocation of the 1-hour NAAQS, an area with an
approved 1-hour maintenance plan under section 175A of the CAA may
modify the maintenance plan: To remove the obligation to submit a
maintenance plan for the 1-hour NAAQS 8 years after approval of the
initial 1-hour maintenance plan; and to remove the obligation to
implement contingency measures upon a violation of the 1-hour NAAQS.
However, such requirements will remain enforceable as part of the
approved SIP until such time as EPA approves a SIP revision removing
such obligations. The EPA shall not approve a SIP revision requesting
these modifications until the State submits and EPA approves an
attainment demonstration for the 8-hour NAAQS for an area initially
designated nonattainment for the 8-hour ozone NAAQS or a maintenance
SIP for the 8-hour NAAQS for an area initially designated attainment
for the 8-hour NAAQS. Any revision to such SIP must meet the
requirements of section 110(l) and 193 of the CAA.
(2) Findings of failure to attain the 1-hour NAAQS. (i) Upon
revocation of the 1-hour NAAQS for an area, EPA is no longer
obligated--
(A) To determine pursuant to section 181(b)(2) or section 179(c) of
the CAA
[[Page 24000]]
whether an area attained the 1-hour NAAQS by that area's attainment
date for the 1-hour NAAQS; or
(B) To reclassify an area to a higher classification for the 1-hour
NAAQS based upon a determination that the area failed to attain the 1-
hour NAAQS by the area's attainment date for the 1-hour NAAQS.
(ii) In addition, the State is no longer required to impose under
CAA sections 181(b)(4) and 185 fees on emissions sources in areas
classified as severe or extreme for failure to meet the 1-hour
attainment date.
(3) Conformity determinations for the 1-hour NAAQS. Upon revocation
of the 1-hour NAAQS for an area, conformity determinations pursuant to
section 176(c) of the CAA are no longer required for the 1-hour NAAQS.
At that time, any provisions of applicable SIPs that require conformity
determinations in such areas for the 1-hour NAAQS will no longer be
enforceable pursuant to section 176(c)(5) of the CAA.
(4) Nonattainment area new source review under the 1-hour NAAQS.
(i) Upon revocation of the 1-hour ozone NAAQS, for any area that was
designated nonattainment for the 1-hour ozone NAAQS, the area's
implementation plan provisions satisfying sections 172(c)(5) and 173 of
the CAA (including provisions satisfying section 182) based on the
area's previous 1-hour ozone NAAQS classification are no longer
required elements of an approvable implementation plan. Instead, the
area's implementation plan must meet the requirements contained in
paragraphs (e)(4)(ii) through (e)(4)(iv) of this section.
(ii) If the area is designated nonattainment for the 8-hour ozone
NAAQS, the implementation plan must include requirements to implement
the provisions of sections 172(c)(5) and 173 of the CAA based on the
area's 8-hour ozone NAAQS classification under part 81 of this chapter,
and the provisions of Sec. 51.165.
(iii) If the area is designated attainment or unclassifiable for
the 8-hour ozone NAAQS, the area's implementation plan must include
provisions to implement the provisions of section 165 of the CAA, and
the provisions of Sec. 51.166 of this part, unless the provisions of
Sec. 52.21 of this chapter apply in such area.
(iv) If the area is designated attainment or unclassifiable but is
located in an Ozone Transport Region, the area's implementation plan
must include provisions to implement, consistent with the requirements
in section 184 of the CAA, the requirements of sections 172(c) and 173
of the CAA as if the area is classified as moderate nonattainment for
the 8-hour ozone NAAQS.
(f) What is the continued applicability of the NOX SIP
Call after revocation of the 1-hour NAAQS? The NOX SIP Call
shall continue to apply after revocation of the 1-hour NAAQS. Control
obligations approved into the SIP pursuant to 40 CFR 51.121 and 51.122
may be modified by the State only if the requirements of Sec. Sec.
51.121 and 51.122, including the statewide NOX emission
budgets, continue to be met and the State makes a showing consistent
with section 110(l) of the CAA.
Sec. 51.906 [Reserved]
Sec. 51.907 For an area that fails to attain the 8-hour NAAQS by its
attainment date, how does EPA interpret sections 172(a)(2)(C)(ii) and
181(a)(5)(B) of the CAA?
For purposes of applying sections 172(a)(2)(C) and 181(a)(5) of the
CAA, an area will meet the requirement of section 172(a)(2)(C)(ii) or
181(a)(5)(B) of the CAA pertaining to 1-year extensions of the
attainment date if:
(a) For the first 1-year extension, the area's 4th highest daily 8-
hour average in the attainment year is 0.084 ppm or less.
(b) For the second 1-year extension, the area's 4th highest daily
8-hour value, averaged over both the original attainment year and the
first extension year, is 0.084 ppm or less.
(c) For purposes of paragraphs (a) and (b) of this section, the
area's 4th highest daily 8-hour average shall be from the monitor with
the highest 4th highest daily 8-hour average of all the monitors that
represent that area.
Sec. 51.908 What is the required timeframe for obtaining emission
reductions to ensure attainment by the attainment date?
For each nonattainment area, the State must provide for
implementation of all control measures needed for attainment no later
than the beginning of the attainment year ozone season.
Sec. Sec. 51.909-51.916 [Reserved]
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
0
5. The authority citation for Part 81 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
6. Part 81 is amended by adding and reserving a new subpart E to read
as follows:
Subpart E--Identification of Area Designations and Classifications
for the 1-Hour Ozone NAAQS as of June 15, 2004 [Reserved]
[FR Doc. 04-9153 Filed 4-29-04; 8:45 am]
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