Federal Register/Vol. 69, No. 84/Friday, April 30, 2004/Rules and Regulations

PUERTO RICO-OZONE (8-HOUR STANDARD)-Continued

Designation Category/classification Designated area

Date 1 Type Date 1 Type

San Lorenzo Municipio

San Sebastian Municipio

Santa Isabel Municipio

Toa Alta Municipio

Toa Baja County

Trujillo Alto Municipio

Utuado Municipio

Vega Alta Municipio

Vega Baja Municipio

Vieques Municipio

Villalba Municipio

Yabucoa Municipio

Yauco Municipio

1 This date is June 15, 2004, unless otherwise noted.

m 57. In § 81.356, the table entitled §81.356 Virgin Islands.

"Virgin Islands-Ozone (8-Hour * * * * *

Standard)" is added to read as follows:

VIRGIN ISLANDS-OZONE (8-HOUR STANDARD)

Designation Category/classification

Designated area

Date 1 Type Date 1 Type

S tatew ide .............................................................................. .................... U nclassifiable/A ttainm e nt.

St. Croix

St. John

St. Thomas

This date is June 15, 2004, unless otherwise noted.

[ER Doc. 04 9152 Filed 4 29 04; 8:45 am]

BILLING CODE 6560-50-P

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.

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

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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 silvasi.john@epa.gov or Ms.

Denise Gerth, Office of Air Quality

Planning and Standards, U.S.

Environmental Protection Agency, Mail

Code C539-02, Research Triangle Park,

NC 27711, phone number (919) 541-

5550, fax number (919) 541-0824 or by

e-mail at gerth.denise@epa.gov.

SUPPLEMENTARY INFORMATION:

Outline

. When Did EPA Propose this Rule?

I. What is EPA's Schedule for Taking Final

Action on the Proposal?

I. 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 /i-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/i-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

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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 i-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.

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.

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).

Il. 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.

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 Non attainment/ -hour NAAQS

Nonattainment; (2) 8-hour NAAQS

Non attainment/ -hour NAAQS

Maintenance; (3) 8-hour NAAQS

Attainment/ -hour NAAQS

Nonattainment; (4) 8-hour NAAQS

Attainment/ -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.

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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A. How Will EPA Reconcile the

Classification Provisions of Subparts 1

and 2?How Will EPA Classify

Nonattainment A reas 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.

* 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.

4In the Phase 2 rule, we will address the control

obligations that apply to areas under both subpart

1 and subpart 2.

Proposed Incentive Feature

We are not including the proposed

incentive feature in the final rule.

B. How Will EPA TreatAttainment

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 Implem ent the

Transition From the I-Hour to the 8-

Hour Standard in a Way To Ensure

Continued Momentum in States'Efforts

Toward CleanerAir?

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/l -Hour NAA QS

Nonattainm ent

(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(1) 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.

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(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(1).

(B) Unm et 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 Nonattainm entl -Hour NAA QS

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(1). We are not

promulgating regulatory text because

sections 110(1) 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-HourNAAQS

Nonattainm ent

(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(1)

and 193 of the CAA. However, the State

cannot remove the obligations from the

SIP.

(ii) Discretionary control obligations.

8-hour NAAQS attainment/ -hour

NAAQS nonattainment areas will retain

the discretion to modify any

discretionary controls upon a

demonstration under section 110(1).

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

1 10(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/ -hour

NAAQS nonattainment or 8-hour

NAAQS attainment /1-hour NAAQS

maintenance must adopt and submit a

maintenance plan consistent with

section 1 10(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-HourNAAQS

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(1) 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

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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(1) 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

Nonattainm ent A reas for the 8-hour

NAA QS ?(Section VLA. 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

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

5State 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).

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.

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* 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

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.

under subpart 2 as marginal, moderate,

serious, severe or extreme.

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

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

7The 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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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.

* 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

SIn the Phase 2 rule, we will address the control

and planning obligations that apply to areas under

both subpart 1 and subpart 2.

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 reexamined 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

'Similarly, Alternatives A and B would result in

fewer areas being placed under subpart 1. (See 68

FR 60060, Table 2. October 21, 2003).

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).

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 longrange 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

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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.

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 highresolution 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

1 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.

experience, making it possible over time

to achieve greater emissions reductions

at lower costs than originally

anticipated.12

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 standardincluding 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

1 2

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 23BL001 14; ATP

Contract #:C 03 007.

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

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as moderate areas under Alternative B. 13

In those areas, the additional moderatearea 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.

(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

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/.

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.

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

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).

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.

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

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/

oimp8hr. 1 6

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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consider equity and other factors in

deciding control requirements for

subpart 1 areas in Phase 2.

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 I 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-

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/ttnlnaaqs/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.

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.

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."

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

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.

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

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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 forAttainment:

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-inclu ding 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 A rgued 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 healthbased 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

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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-

2 0

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/.

hour ozone problem or the time needed

to attain.

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 I 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. 2 1

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

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/.

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. 2 3 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

2 2

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.

23The 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.

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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).

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 nonattainmentEPA 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

24See 68 FR 32814.

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 offinal 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

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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 offinal 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

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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 offinal 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.

c. Comments and Responses

Corn ment: 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

2 5

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/oarpgltl/memoranda/

clean] 5.p df.

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 TreatAttainment

Dates for the 8-Hour Ozone NAA QS?

(Section VLB. 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

2 6

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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Federal Register/Vol. 69, No. 84/Friday, April 30, 2004/Rules and Regulations

to 3 years from designation to meet that

NAAQS and a moderate area would

have up to 6 years from designation to

attain.

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 rewrite 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

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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 exceedancebased and does not reflect the 8-hour

ozone NAAQS, which is concentrationbased. 2 7 We proposed that since section

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

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.

b. Summary offinal 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

ozone NAAQS, or an average of 3.33 exceedances

per year.

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 I-Hour to the 8-

HourNAAQS in a Way To Ensure

Continued Momentum in States'Efforts

Toward CleanerAir? (Section VLC. 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

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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

i-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 i-hour

NAAQS no longer apply (i.e., when will

it be revoked); (2) what i-hour

obligations should continue to apply

once the i-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 i-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 indepth 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 i-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 i-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 i-hour

NAAQS (62 FR 38863), we determined

to delay revocation of the i-hour

NAAQS for areas not yet meeting that

NAAQS in order to facilitate continued

implementation of the i-hour

obligations (62 FR 38873). Thus, we

promulgated a rule providing for the

phase-out of the i-hour ozone NAAQS

on an area-by-area basis based upon a

determination by EPA for each area that

it had met the i-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. 2 8 (65 FR

45182, July 20, 2000).

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-byarea 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

2 8 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).

obligate areas to continue to meet the

control obligations associated with the

area's i-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 i-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

i-hour classification. Rather, Option 2

was based on a somewhat different legal

rationale than Option 1.

b. Summary offinal 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

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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 i-hour NAAQS.

About half of the commenters favored

revocation of the i-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 i-hour NAAQS

(proposed Option 2). Almost a third of

the commenters who addressed this

issue opposed revocation of the i-hour

NAAQS. Many of the commenters in

this group insisted that EPA should

retain the i-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 i-hour NAAQS, including a

recommendation to revoke the i-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 (I 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/nobuild" 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 1I-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

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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 i-hour

NAAQS on or after November 15, 1990:

(1) Areas that remain designated

nonattainment for the i-hour NAAQS at

the time of revocation of the i-hour

NAAQS; and (2) areas that were

designated nonattainment for the i-hour

NAAQS but that have been redesignated

to attainment for the i-hour NAAQS

(i.e., "maintenance areas") at the time of

revocation of the i-hour NAAQS. 29 In

response to comments on the proposed

rule and draft regulatory text, the final

regulation creates the same subcategorization 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 i-hour NAAQS at

the time of designation as

nonattainment for the 8-hour NAAQS;

(2) areas that are maintenance areas for

the i-hour NAAQS at the time of

designation as nonattainment for the 8-

hour NAAQS; (3) areas that remain

designated nonattainment for the i-hour

NAAQS at the time of designation as

attainment for the 8-hour NAAQS; and

(4) areas that are maintenance areas for

the i-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

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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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/ -hour NAAQS

nonattainment (4) 8-hour NAAQS

attainment/ -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.

b. Summary offinal 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 nonattainmentl1-HourNAAQS

nonattainm ent.

(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

non attainment 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 offinal 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

(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 antibacksliding provisions. Other

commenters supported the proposal.

Concerning the draft regulatory text,

commenters generally reiterated their

comments from the June 2, 2003 notice

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.

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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,

NSRunder 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(1) 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). 3 1 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(1) with respect to the 8-hour

NAAQS, not the 1-hour NAAQS. See 68

FR 32821 for an example of how this

would work.

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(1).

(B) Summary offinal 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(1) 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

31 For purposes of the preamble to this

rulemaking, whenever we state that a State must

make the demonstration required under section

110(1) 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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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(1)

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(1) and 193 of the CAA.

Response: Sections 110(1) 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(1)

and 193. We believe the tests provided

in sections 110(1) 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 growthnonattainment 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 offinal 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. 3 2 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(1) including a demonstration

that the revision will not interfere with

meeting the 1-hour ROP and 8-hour RFP

goals.

(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(1).

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

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.

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 3 3 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.)

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

3 3

0p cit.

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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

non attainment for the I-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 i-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 i-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 i-hour

ROP plan. Finally, we note that States

have already submitted and, EPA has

already approved i-hour ROP plans for

most i-hour nonattainment areas. Thus,

the anti-backsliding provisions

regarding the continued obligation to

adopt and submit i-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 offinal 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

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States to choose any one of the

following three options:

* Option 1. Submit a i-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.

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

3 4 The amount of which will depend on the ROP

option in the final rule and the classification of the

area.

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(1).

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.)

(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

3 5

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/oarpgtl/memoranda/

clean] 5.p df.

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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

NAA QS Nonattainm entl -hour NAA QS

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. 3 6 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.

We also provided in the June 2003

proposal and the draft regulatory text

3 6 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).

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

non attainment/ -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 (thenexisting) 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,

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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(1). We are not

promulgating regulatory text because, as

described above, sections 110(1) 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. 3 7 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).

(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

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.

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 offinal 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(1) 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(1), 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(1) 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(1) that

such a revision would not interfere with

attainment, maintenance or any other

applicable requirement of the CAA. Our

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rule provides that upon designation as

nonattainment for the 8-hour NAAQS, a

i-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(1).

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 i-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

NAA QS A ttainm ent/1 -Hour NAA QS

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 1 10(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.3 8

(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 i-hour NAAQS is revoked,

consistent with sections 110(1) 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 i-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(1).

However, such controls must remain in

the SIP as contingency measures. We are

not promulgating regulatory text

because, as described above, sections

110(1) 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 i-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

38These two options were: (1) When the area

attains the 1-hour NAAQS, or (2) when the area

attains the 8-hour NAAQS.

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.3 9 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.

(B) Summary offinal 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

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. 4 0

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."

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measure. (See, e.g., May 12, 2003; 68 FR

25436.)

(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 1 10(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/i -hour

NAAQS nonattainment areas. We have

created a new section 51.905(a)(4) that

addresses 8-hour NAAQS attainment/ihour NAAQS maintenance areas. The

section addressing that second category

of areas is discussed below. An area that

is 8-hour NAAQS attainment/i -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

1 10(a)(1), the area will be required to

submit a SIP revision to address

outstanding ROP and attainment

demonstration plans as follows. 4 1

(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

41 We discuss the obligation for these areas to

adopt a section 1 10(a)(1) maintenance plan below.

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) A ttainm ent Dem onstration. 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

1 10(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

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have a less significant 8-hour problemthese 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 1 10(a)(1). The regulatory

text also clarifies the obligation that will

apply.

(v) Maintenance Plansfor the 8-hour

NAA QS. (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 1 10(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/ -hour NAAQS maintenance

(section 51.905(a)(4)(ii)) areas must

adopt and submit a maintenance plan

consistent with section 1 10(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 1 10(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 1 10(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

1 10(a)(1) of the CAA requires neither

contingency measures nor a 10-year

plan; the commenter suggested that the

section 1 10(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

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redesignations, not to initial

designations. After the 1-hour NAAQS

is revoked, we believe that an area that

was previously designated

non attainment for the I-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 1 10(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

1 10(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

NAA QS A ttainm ent/1 -Hour NAA QS

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, crossreferences 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

1 10(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 SIPapproved 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(1)). 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

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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 offinal 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(1) 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(1). 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(1) 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

Corn ment: 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 antibacksliding 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(1) maintenance plan

would have to demonstrate maintenance

for the entire 8-hour ozone attainment

area.

b. Summary offinal 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/i-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

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that was previously designated

non attainment for the 1 -hour NAAQS,

we believe it makes the most sense to

require the maintenance plan for the

area previously designated

non attainment 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(1) and

193 of the CAA.

b. Summary offinal 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

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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 1 10(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 non attainment/ 1 -Hour NAAQS

nonattainment.

Each of these provisions is discussed

further below.

(i) Findings of Failure to Attain the 1-

hourNAAQS. 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 ]-hour

NAA QS. 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(1)

and 193 of the CAA.

(iv) New Source Review under the 1-

hourNAAQS. 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(1) 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.

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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(1) 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 1 10(a)(2)(A) the control measures.

As we explained in our 1994 policy

memo, 4 2 if the term "measures," as used

in sections 1 10(a)(2)(A) and 1 10(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.

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

4 2

Part D New Source Review (part D NSR)

Requirements for Areas Requesting Redesignation

to Attainment, October 14, 1994, from Mary D.

Nichols.

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(1), 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(1) 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 i-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

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should remain in effect, such that for an

area that was designated nonattainment

under the i-hour NAAQS, or was

redesignated to attainment and had an

approved maintenance plan under the

i-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 i-hour NAAQS for

conformity is backsliding, and offered

several arguments for why the i-hour

budgets should be retained in i-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(1), 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 i-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 i-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 i-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 i-hour

budgets would remain in the SIP, areas

previously designated nonattainment or

maintenance for the i-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(1) 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 i-hour

maintenance areas once the i-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 i-hour ozone

NAAQS, but that conformity would

continue to apply for the i-hour ozone

NAAQS in areas with a maintenance

plan. However, the 1997 interpretation

would lead to an unfair and counterintuitive 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(1) 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

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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(1)

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(1) 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(1) 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 § 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

§ 51.905(e)(1), areas that are

maintenance for the 1-hour NAAQS and

attainment for the 8-hour NAAQS

cannot be subject to § 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. 4 3 Regardless of whether we lift

4 3

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

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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.

The draft regulatory text reflected the

discussion in the June proposal.

b. Summary offinal 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(1) 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

p rop osal:

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 VLE 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

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.)

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. 4 4

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-

4 4 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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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 4 5

reiterates the need to implement

measures as expeditiously as

practicable:

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

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.go v/ttn/oarpgltlpgm hn I.

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-thefact 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

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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

§ 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 8Hour 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/non attainment

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.

4 6

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.

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 antibacksliding 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

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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, 4 7 the notice

of availability of the draft regulatory

text, 4 8 and the notice reopening the

comment period on the classification

approach. 4 9 ) 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.

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.

47OAR 2003 0079 0081,0085 American

Petroleum Institute (API) requests for extension to

the August 1st, 2003 comment deadline.

48OAR 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. 4 9

0AR 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). 5 0

See, for instance, OAR 2003 0079 0165

Letter from S. Page, Director, OAQPS to H.J.

Feldman, Director, API, denying extension of

comment period.

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

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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

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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 Am bient 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

Governm ents

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

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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 Assessm ent of the

Proposed Rule Establishing the

Implementation Framework for the 8-

Hour, 0.08 ppm Ozone National

Am bient 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. Petitionsfor 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).

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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 Tonsperday

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 0. Leavitt,

Administrator.

* 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

* 1. The authority citation for Part 50

continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

* 2. Section 50.9 is amended by revising

the second sentence of paragraph (b) to

read as follows:

§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

* 3. The authority citation for Part 51

continues to read as follows:

Authority: 23 U.S.C. 101; 42 U.S.C. 7401

7671q.

* 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 § 51.902(a)?

51.904 How do the classification and

attainment date provisions in section

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172(a) of subpart 1 of the CAA apply to

areas subject to § 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

§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-hourNAAQS means the 1-hour

ozone national ambient air quality

standards codified at 40 CFR 50.9.

(b) 8-hourNAAQS 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) A ttainm ent year ozone season

shall mean the ozone season

immediately preceding a nonattainment

area's attainment date.

(h) Designation for the 8-hour NAA QS

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 ]-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.

(1) 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-hourNAAQS

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/u nclassifiable.

§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.

§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 § 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 ] (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.

§ 51.903 How do the classification and

attainment date provisions in section 181 of

subpart 2 of the CAA apply to areas subject

to §51.902(a)?

(a) In accordance with section

181(a)(1) of the CAA, each area subject

to § 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.

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TABLE 1 .- CLASSIFICATION FOR 8-HOUR OZONE NAAQS FOR AREAS SUBJECT TO § 51.902(A)

Maximum period for at8-hour tainment dates in state plans (years after effecArea class design value tive date of nonattain-

(ppm ozone) ment designation for 8-

hour NAAQS)

M a rg in a l ................................................................ fro m ... . . ....................................... 0 .0 8 5 3

u p to 1 ........................ . .... ..... ..... .... .... ..... .... ..... .... .. 0 .0 9 2

M od e rate ............................................................... fro m ... . . ....................................... 0 .0 92 6

u p to 1 ........................ . .... ..... ..... .... .... ..... .... ..... .... .. 0 .1 0 7

S e rio u s .................................................................. fro m ...................................................................... 0 .1 0 7 9

u p to1 ........................ . .... ..... ..... ... ..... ..... .... ..... ... ... 0 .1 2 0

S e ve re -15 ............................................................. fro m ... . . ....................................... 0 .120 15

u p to1 ......................... .... ......... . ... ..... ..... .... ..... ... ... 0 .1 2 7

S e ve re -17 ............................................................. fro m ... . . ....................................... 0 .12 7 17

u p to1 ......................... .... ......... . ... ..... ..... .... ..... ... ... 0 .1 8 7

E xtre m e ................................................................ e q ua l to ......... . . .................................. 0 .18 7 20

o r a b o v e ...............................................................

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.

§ 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 § 51.902(b)?

(a) Classification. The Administrator

may classify an area subject to

§ 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 § 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.

§ 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 areaforthe 1-hourNAAQS continue

to apply after revocation of the 1-hour

NAA QSfor that area? (1) 8-Hour

NAA QS Nonattainm entl-Hour NAA QS

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

§ 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-HourNAAQS Nonattainment/lHour NAA QS 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 § 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-HourNAAQS Attainment/lHourNAA QS 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 § 51.900(f) be

shifted to contingency measures,

consistent with sections 110(1) and 193
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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) A ttainm ent dem onstration and

ROPplans. (A) To the extent an 8-hour

NAAQS attainment/ -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

NAA QS. 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 1 10(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-HourNAA QS Attainment/lHourNAA QS Maintenance-(i)

Obligations in an approved SIP. For an

8-hour NAAQS attainment/i -hour

NAAQS maintenance area, the State

may request that obligations under the

applicable requirements of § 51.900(f) be

shifted to contingency measures,

consistent with sections 110(1) 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

NAA QS. 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 1 10(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

NAA QS 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(1) and 193 of the CAA;

however, the State cannot remove the

obligations from the SIP.

(c) Which portions of an area

designatedfor the 8-hour NAA QS

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

§ 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-hourNAAQS will no longer apply

after revocation of the 1-hourNAAQS

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(1)

and 193 of the CAA.

(2) Findings offailure to attain the 1-

hourNAAQS. (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

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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-hourNAAQS. 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-hourNAAQS. (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

§ 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 § 51.166 of this part,

unless the provisions of § 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 §§ 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(1) of the CAA.

§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?

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.

§ 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.

§§ 51.909-51.916 [Reserved]

PART 81-DESIGNATION OF AREAS

FOR AIR QUALITY PLANNING

PURPOSES

* 5. The authority citation for Part 81

continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

* 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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