Tuesday, 

November 29, 2005 

Part II 


Environmental 

Protection Agency 

40 CFR Parts 51, 52, and 80 


Final Rule To Implement the 8-Hour 


Ozone National Ambient Air Quality 


Standard; Final Rule 


71612 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 51, 52, and 80 

[OAR 2003–0079; FRL–7996–8] 

RIN 2060–AJ99 

Final Rule To Implement the 8-Hour 

Ozone National Ambient Air Quality 

Standard—Phase 2; Final Rule To 

Implement Certain Aspects of the 1990 

Amendments Relating to New Source 

Review and Prevention of Significant 

Deterioration as They Apply in Carbon 

Monoxide, Particulate Matter and 

Ozone NAAQS; Final Rule for 

Reformulated Gasoline 

AGENCY: Environmental Protection 


Agency (EPA). 


ACTION: Final rule. 


SUMMARY: In this document, we are 

taking final action on most remaining 

elements of the program to implement 

the 8-hour ozone national ambient air 

quality standard (NAAQS or standard). 

This final rule addresses, among other 

things, the following control and 

planning obligations as they apply to 

areas designated nonattainment for the 

8-hour ozone NAAQS: reasonably 

available control technology and 

measures (RACT and RACM), 

reasonable further progress (RFP), 

modeling and attainment 

demonstrations, and new source review 

(NSR). We are issuing this rule so that 

States and Tribes will know how these 

statutory control and planning 

obligations apply and when State 

implementation plan (SIP) revisions are 

due for these obligations so that the 

States may develop timely submissions 

consistent with the statutory obligations 

and attain the NAAQS as expeditiously 

as practicable but no later than their 

maximum attainment dates. The 

intended effect of the rule is to provide 

certainty to States and Tribes regarding 

development of those plans. 

In this rule, we are also finalizing 

several revisions to the regulations 

governing the nonattainment NSR 

programs mandated by section 

110(a)(2)(C) and part D of title I of the 

Clean Air Act (CAA). 

Finally, this rule addresses what 

effect the transition to the 8-hour 

standard will have on certain aspects of 

the Reformulated Gasoline (RFG) 

program. The nine original mandatory 

RFG areas, as well as most other areas 

that have become mandatory RFG areas 

by being reclassified as severe areas 

under section 181(b) of the CAA, will 

continue to be required to use RFG at 

least until they are redesignated to 

attainment for the 8-hour NAAQS. The 

EPA reserves for future consideration 

what effect the transition to the 8-hour 

standard will have on areas reclassified 

as severe areas for the 1-hour NAAQS 

under section 181(b) of the CAA that 

were redesignated to attainment for the 

1-hour standard before revocation of 

that standard. 

EFFECTIVE DATE: This rule is effective on 

January 30, 2006. 

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: For 

general information: Mr. John Silvasi, 

Office of Air Quality Planning and 

Standards, U.S. Environmental 

Protection Agency, Mail Code C539–02, 

Research Triangle Park, NC 27711, 

phone number (919) 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. For information 

concerning new source review: Ms. 

Janet McDonald, Office of Air Quality 

Planning and Standards, U.S. 

Environmental Protection Agency, Mail 

Code C539–03, Research Triangle Park, 

NC 27711, phone number (919) 541– 

1450, fax number (919) 541–5509 or by 

e-mail at mcdonald.janet@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Outline 

I. What is the Background for this Rule? 

II. What is Included in this Rule? 

III. In Short, What Does this Final Rule 

Contain? 

IV. Final Rule for Phase 2 Elements Other 

than NSR and RFG 

A. Should prescribed requirements of 

subpart 2 apply in all 8-hour 

nonattainment areas classified under 

subpart 2, or is there flexibility in 

application in certain narrowly-defined 

circumstances? 

B. How will we address long-range 

transport of ground-level ozone and its 

precursors when implementing the 8-

hour ozone standard? 

C. How will we address transport of 

ground-level ozone and its precursors for 

rural nonattainment areas, areas affected 

by intrastate transport, and areas affected 

by international transport? 

D. How will EPA address requirements for 

modeling and attainment demonstration 

SIPs for areas implementing the 8-hour 

ozone standard? 

E. What requirements for RFP should apply 

under the 8-hour ozone standard? 

F. Are contingency measures required in 

the event of failure to meet a milestone 

or attain the 8-hour ozone NAAQS? 

G. What requirements should apply for 

RACM and RACT for 8-hour ozone 


nonattainment areas? 


H. How will the section 182(f) NOX 

provisions be handled under the 8-hour 

ozone standard? 

I. Should EPA promulgate a NSR provision 

to encourage development patterns that 

reduce overall emissions? 

J. How will EPA ensure that the 8-hour 

ozone standard will be implemented in 

a way which allows an optimal mix of 

controls for ozone, PM2.5, and regional 

haze? 

K. What emissions inventory requirements 

should apply under the 8-hour ozone 

NAAQS? 

L. What guidance should be provided that 

is specific to Tribes? 

M. What are the requirements for Ozone 

Transport Regions (OTRs) under the 8-

hour ozone standard? 

N. Are there any additional requirements 

related to enforcement and compliance? 

O. What requirements should apply to 

emergency episodes? 


P. What ambient monitoring requirements 

will apply under the 8-hour ozone 

NAAQS? 

Q. When will EPA require 8-hour 

attainment demonstration SIP 


submissions? 


R. How will the statutory time periods in 

the CAA be addressed when we 

redesignate areas to nonattainment 

following initial designations for the 8-

hour NAAQS? 

V. EPA’s Final Rule for New Source Review 

A. Background 

B. Summary of Final Rule and Legal Basis 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71613 

C. Comments and Responses 

D. NSR Implementation Under the 8-hour 

ozone NAAQS 

VI. Final Rule for RFG 

A. Introduction 

B. Background 

C. What Action is EPA Taking? 

D. Why is EPA Taking This Action? 

E. Future Proceedings 

F. Miscellaneous Administrative Changes 

to RFG Regulations 

G. Comments and Responses 

VII. Other Considerations 

A. How will EPA’s implementation of the 

8-hour ozone NAAQS affect funding 

under the Congestion Mitigation and Air 

Quality Improvement (CMAQ) Program? 

B. What is the relationship between 

implementation of the 8-hour standard 

and the CAA’s title V permits program? 

C. What action is EPA taking on the 

Overwhelming Transport Classification 

for Subpart 1 Areas? 

VIII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 


B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children from Environmental Health and 

Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 


J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Petitions for Judicial Review 

M. Determination Under Section 307(d) 

Appendix A to Preamble—Methods to 

Account for Non-Creditable Reductions 

when Calculating ROP Targets for the 

2008 and Later ROP Milestone Years 

Appendix B to Preamble—Glossary Of 


Terms and Acronyms 


I. What Is the Background for This 

Rule? 

On June 2, 2003 (68 FR 32805), we 

published a proposed rule to implement 

the 8-hour ozone NAAQS. The proposal 

addressed a number of implementation 

issues. We proposed one or more 

options for each issue addressed in the 

proposal. Please refer to the proposed 

rule (68 FR 32802) for a detailed 

discussion and background information 

on the 8-hour ozone NAAQS; the 

associated litigation; our proposed 

strategy for areas to achieve the NAAQS; 

and the stakeholder process for 

gathering input into this effort, among 

other topics. 

On August 6, 2003 (68 FR 46536), we 

published a notice of availability of the 

draft regulatory text for the proposed 

rule to implement the 8-hour ozone 

NAAQS. This notice started a 30-day 

public comment period on the draft 

regulatory text. 

On April 30, 2004 (69 FR 23951), we 

published a final rule that addressed the 

following key elements related to 

implementation of the 8-hour ozone 

NAAQS: classifications for the 8-hour 

NAAQS; revocation of the 1-hour 

NAAQS (i.e., when the 1-hour NAAQS 

will no longer apply); how antibacksliding principles will ensure 

continued progress toward attainment of 

the 8-hour ozone NAAQS; attainment 

dates; and the timing of emissions 

reductions needed for attainment. 

Following publication of the April 30, 

2004 final rule, the Administrator 

received three petitions, pursuant to 

section 307(b)(7)(B) of the CAA 

requesting reconsideration of a number 

of aspects of the final rule.1 On 

September 23, 2004, we granted 

reconsideration of three issues raised in 

the Earthjustice Petition. On February 3, 

2005 (70 FR 5593), we published a 

proposed rule to take comment on two 

of these issues: (1) The provision that 

section 185 fees would no longer be 

applicable once the 1-hour NAAQS is 

revoked and (2) the timing for 

determination of what is an ‘‘applicable 

requirement.’’ On May 20, 2005, the 

final rule on these two issues was 

signed by the Administrator of EPA. On 

April 4, 2005 (70 FR 17018), we 

published a proposed rule to take 

comment on the issue of whether we 

should interpret the Act to require areas 

to retain major NSR requirements that 

apply to certain 1-hour ozone 

nonattainment areas in implementing 

the 8-hour standard. We took final 

action on the NSR issues on June 30, 

2005 (70 FR 39413; July 8, 2005). 

On January 10, 2005, we granted 

reconsideration of the overwhelming 

transport classification issue raised by 

Earthjustice in their Petition. At the 

same time, we denied reconsideration of 

the issues they raised in their Petition 

dealing with the applicability of RFG 

when the 1-hour NAAQS is revoked and 

future 8-hour ozone redesignations to 

nonattainment. We intend to publish a 

proposed rule on the overwhelming 

1 Three petitions for reconsideration of the Phase 

1 Rule were filed by: (1) Earthjustice on behalf of 

the American Lung Association, Environmental 

Defense, Natural Resources Defense Council, Sierra 

Club, Clean Air Task Force, Conservation Law 

Foundation, and Southern Alliance for Clean 

Energy; (2) the National Petrochemical and Refiners 

Association and the National Association of 

Manufacturers; and (3) the American Petroleum 

Institute, American Chemistry Council, American 

Iron and Steel Institute, National Association of 

Manufacturers and the U.S. Chamber of Commerce. 

transport classification shortly. We are 

continuing to review the issues raised in 

the National Petrochemical and Refiners 

Association and American Petroleum 

Institute Petitions. Copies of the 

Petitions for Reconsideration and 

actions EPA has taken regarding the 

Petitions may be found at: 

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

o3imp8hr. 

In addition, in the April 30, 2004 rule, 

we established a subpart E in 40 CFR 

part 81 ‘‘Identification of Area 

Designations and Classifications for the 

1-Hour Ozone NAAQS as of June 15, 

2004 [Reserved].’’ We intend to publish 

that list shortly. 

Concerning the major NSR provisions, 

today’s final regulations were proposed 

as part of two different regulatory 

packages. On July 23, 1996 (61 FR 

38250), we proposed changes to the 

major NSR program, including 

codification of the requirements of part 

D of title I of the 1990 CAA 

Amendments for major stationary 

sources of volatile organic compounds 

(VOC), NOX, particulate matter having a 

nominal aerodynamic diameter less 

than or equal to 10 microns (PM10), and 

CO. On June 2, 2003 (68 FR 32802), we 

proposed a rule to implement the 8-hour 

ozone NAAQS. In the 2003 action, we 

proposed a rule to identify the statutory 

requirements that apply for purposes of 

developing SIPs under the CAA to 

implement the 8-hour ozone NAAQS 

(68 FR 32802). We did not propose 

specific regulatory language for 

implementation of NSR under the 8-

hour NAAQS. However, we indicated 

that we intended to revise the 

nonattainment NSR regulations to be 

consistent with the rule for 

implementing the 8-hour ozone NAAQS 

(68 FR 32844). On April 30, 2004 (69 FR 

23951), we published a final rule that 

addressed classifications for the 8-hour 

NAAQS. The April 2004 rule also 

included the NSR permitting 

requirements for the 8-hour ozone 

standard, which necessarily follow from 

the classification scheme chosen under 

the terms of subpart 1 and subpart 2. 

Also, in our 1996 action, and then 

again in our June 2, 2003 action, we 

proposed to amend our nonattainment 

NSR provisions to expressly include 

NOX as an ozone precursor in 

nonattainment major NSR programs (61 

FR 38297 and 68 FR 32847). We also 

proposed that, as provided under CAA 

section 182(f), a waiver from 

nonattainment NSR for NOX as an ozone 

precursor would be available for both 

subpart 1 and subpart 2 areas (68 FR 

32846). Moreover, we proposed to 

require States to modify their existing 

programs to include NOX as an ozone 

71614 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

precursor in attainment areas (68 FR 

32846). 

In 1996, we proposed to revise the 

regulations limiting offsets from 

emissions reductions due to shutting 

down an existing source or curtailing 

production or operating hours below 

baseline levels (‘‘shutdowns/ 

curtailments’’). We proposed 

substantive revisions in two alternatives 

that would ease, under certain 

circumstances, the existing restrictions 

on the use of emission reduction credits 

from source shutdowns and 

curtailments as offsets. 

On July 23, 1996, we proposed to 

revise § 52.24 to incorporate changes 

made by the 1990 CAA Amendments 

related to the applicability of 

construction bans (61 FR 38305). To 

clarify our intent, our proposed 8-hour 

ozone NAAQS implementation rule in 

June 2003 explained that § 52.24(k) 

remained in effect and would be 

retained. In that action, we also 

proposed that we would revise 

§ 52.24(k) to reflect the changes in the 

1990 CAA Amendments (68 FR 32846). 

On June 2, 2003 (68 FR 32802), we 

explained implementation of the major 

NSR program under the 8-hour ozone 

NAAQS during the SIP development 

period, and proposed flexible NSR 

requirements for areas that expected to 

attain the 8-hour NAAQS within 3 years 

after designation. 

In this rule, we are also finalizing 

several revisions to the regulations 

governing the nonattainment NSR 

programs mandated by section 

110(a)(2)(C) and part D of title I of the 

Clean Air Act (CAA). First, we are 

codifying requirements added to part D 

of title I of the CAA in the 1990 

Amendments related to permitting of 

major stationary sources in areas that 

are nonattainment for the ozone, 

particulate matter (PM), and carbon 

monoxide (CO) NAAQS. Second, we are 

revising the criteria for crediting 

emissions reductions credits from 

shutdowns and curtailments as offsets. 

Third, we are revising the regulations 

for permitting of major stationary 

sources in nonattainment areas in 

interim periods between designation of 

new nonattainment areas and EPA’s 

approval of a revised SIP. Fourth, we are 

changing the regulations that impose a 

moratorium (ban) prohibiting 

construction of new or modified major 

stationary sources in nonattainment 

areas where the State fails to have an 

implementation plan meeting all of the 

requirements of part D. In addition to 

the changes to the nonattainment NSR 

regulations, we also are making one 

change to the Prevention of Significant 

Deterioration (PSD) regulations under 

part C of title I of the CAA. We are 

codifying nitrogen oxides (NOX) as an 

ozone precursor in attainment and 

unclassifiable areas. 

Today’s changes regarding NSR are 

based on the proposed rule published 

on June 2, 2003 to Implement the 8-hour 

Ozone National Ambient Air Quality 

Standard (NAAQS), as well as the 

proposed rule published on July 23, 

1996 for ‘‘Prevention of Significant 

Deterioration (PSD) and Non-attainment 

New Source Review (NSR).’’ These 

changes provide a consistent national 

program for permitting major stationary 

sources under section 110(a)(2)(C) and 

parts C and D of title I, including major 

stationary sources of ozone precursors 

in ozone nonattainment areas. 

For the reader’s convenience, a 

glossary and list of acronyms appears in 

Appendix B of this preamble. 

II. What Is Included in This Rule? 

Today’s action, Phase 2 of the 

implementation rule, addresses 

numerous topics, but primarily focuses 

on the following key implementation 

obligations for areas designated 

nonattainment for the 8-hour NAAQS: 

RACT and RACM; RFP; modeling and 

attainment demonstrations; and NSR. It 

also addresses what effect the transition 

to the 8-hour standard will have on 

certain aspects of the RFG program. 

III. In Short, What Does This Final Rule 

Contain? 

This summary is intended to give 

only a convenient overview of our final 

rule. It should not be relied on for the 

details of the actual rule. The final rule 

(regulatory text) and the discussion of it 

in the sections below should be 

consulted directly. 

Summary of Section IV (Below): Final 

Rule for Phase 2 Elements Other Than 

NSR and RFG 

A. Should prescribed requirements of 

subpart 2 apply in all 8-hour 

nonattainment areas classified under 

subpart 2, or is there flexibility in 

application in certain narrowly defined 

circumstances? 

There may be a basis for waiving a 

prescribed requirement on a case-bycase basis where imposition of the 

requirement would create an absurd 

result. If a State submits a 

demonstration that application of a 

specific requirement in a specific 

nonattainment area would create an 

absurd result, we will consider 

application of the absurd results 

doctrine at that time. We believe that 

absurd results that might occur from 

application of mandatory control 

measures would happen only in rare 

instances, if at all. 

B. How will we address long-range 

transport of ground-level ozone and its 

precursors when implementing the 8-

hour ozone standard? 

The EPA has issued two major rules 

to address interstate transport of ozone 

pollution. The 1998 NOX SIP Call Rule 

already is achieving significant 

reductions in NOX emissions that 

contribute to interstate ozone pollution 

in the eastern United States. Nineteen 

States were required to achieve 

reductions by May 2004, and additional 

reductions are required by May 2007. 

On May 12, 2005, EPA published the 

Clean Air Interstate Rule (CAIR) in the 

Federal Register (70 FR 25162). It 

establishes statewide sulfur dioxide 

(SO2) and NOX emissions budgets for 

upwind States that significantly 

contribute to nonattainment or interfere 

with maintenance of the fine particle or 

8-hour ozone air quality standards in 

downwind States. For ozone, this action 

established summertime NOX budgets 

for the District of Columbia and 25 

States in the eastern half of the country, 

with reductions to be achieved by 2009 

and 2015. The CAIR goes beyond the 

SIP call by requiring reductions from 

additional States and by requiring 

further emissions reductions in SIP call 

States. 

C. How will we address transport of 

ground-level ozone and its precursors 

for rural nonattainment areas, areas 

affected by intrastate transport, and 

areas affected by international 

transport? 

1. Rural Transport Nonattainment Areas 

The final rule does not contain any 

revisions to current policy on rural 

transport areas under section 182(h). We 

do not believe there are any 8-hour 

nonattainment areas covered under 

subpart 2 that are ‘‘rural’’ and therefore 

eligible for consideration for coverage 

under section 182(h). 

2. Intrastate Transport 

The final rule does not contain any 

additional provisions for addressing 

intrastate transport for the reasons 

stated in the proposal. 

3. How will EPA address transport of 

ground-level ozone and its precursors 

for areas affected by international 

transport? 

We are not setting forth any regulatory 

provisions related to international 

transport in this rule. Section 179B of 

the CAA applies for these purposes. We 

continue to recommend that States 

confer with the appropriate EPA 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71615 

Regional Office to establish on a caseby-case basis the technical requirements 

for these analyses. These analyses will 

be subject to public comment during the 

State and Federal SIP processes. 

D. How will EPA address requirements 

for modeling and attainment 

demonstration SIPs for areas 

implementing the 8-hour ozone 

standard? 

The final rule retains the following 

three elements that each attainment 

demonstration SIP must include: (1) 

Technical analyses to locate and 

identify sources of emissions that are 

causing violations of the 8-hour NAAQS 

within nonattainment areas (i.e., 

analyses related to the emissions 

inventory required for the 

nonattainment area), (2) adopted 

measures with schedules for 

implementation and other means and 

techniques necessary and appropriate 

for attainment, and (3) contingency 

measures required under section 

172(c)(9) of the CAA that can be 

implemented without further action by 

the State or the Administrator to cover 

failures to meet RFP milestones and/or 

attainment. 

1. Attainment Demonstration Due Date 

Areas required to submit an 

attainment demonstration must do so no 

later than 3 years after the effective date 

of designation for the 8-hour ozone 

NAAQS. 

2. Multi-State Nonattainment Areas 

State partners involved in a multiState ozone nonattainment area must 

work together to perform the 

appropriate modeling analyses to 

identify control measures that will 

enable the area to achieve attainment as 

expeditiously as practicable. Each State 

will be responsible for its portion of the 

control program and will be held 

accountable for controls identified for 

implementation within its State 

boundaries. 

3. Role of Modeling Guidance in 

Attainment Demonstrations 

Attainment demonstrations must be 

consistent with 40 CFR 51.112. We will 

generally review the demonstrations for 

technical merit using EPA’s most recent 

modeling guidance at the time the 

modeled attainment demonstration is 

performed. 

4. Multi-pollutant Assessments (OneAtmosphere Modeling) 

There is no regulatory text on this 

issue, but the preamble makes several 

recommendations concerning multipollutant assessments. 

E. What requirements for RFP should 

apply under the 8-hour ozone standard? 

1. General Discussion 

We are adopting nearly all the 

approaches set forth in our proposed 

rule for the various 1-hour rate-ofprogress (ROP) and 8-hour RFP issues. 

2. What is the content and timing of the 

plan for addressing the RFP 

requirements under section 182(b)(1) for 

areas covered under subpart 2? 

Areas that are classified as moderate 

under the 8-hour standard that have 

already implemented their 15 percent 

plans under their 1-hour ozone SIPs 

would be considered to have met the 

statutory 15 percent requirement. 

Reasonable further progress for the first 

6 years from the baseline year would be 

covered under the more generic RFP 

requirements of subpart 1. Serious and 

above areas would have to meet 3 

percent reductions per year starting in 

the baseline year averaged over each 3-

year period out to the attainment year. 

An 8-hour nonattainment area that is 

identical, geographically, to its 

predecessor 1-hour nonattainment area 

(which has already done the 15 percent 

reduction) will not be required to do 

another 15 percent VOC-only reduction 

plan. For an 8-hour moderate or higher 

nonattainment area that contains a 1-

hour nonattainment area that has an 

approved 15 percent VOC ROP plan but 

also contains areas that do not have an 

approved 15 percent VOC ROP plan, the 

final rule allows States the choice 

between two options: 

Option 1. Develop a new baseline and 

new 15 percent VOC ROP emission 

reduction target for the entire newly 

expanded area. Determine that 

emissions reductions that occur after the 

2002 baseline emissions inventory year 

are creditable in the combined new area. 

The reductions must be of VOC only. 

Option 2. Treat the 8-hour 

nonattainment area as divided between 

the old 1-hour area(s) and the newly 

added 8-hour area. For the newly added 

portion (which had not previously 

implemented a 15 percent plan), States 

must establish a separate 15 percent 

VOC target under subpart 2. The 

previous nonattainment area that fell 

under the 1-hour standard will now be 

subject to the subpart 1 provisions of the 

CAA and will be able to credit both 

VOC and NOX toward meeting the RFP 

target for this portion of the 

nonattainment area. VOC reductions to 

meet the 15 percent requirement for the 

portion of the new 8-hour 

nonattainment area that has not yet met 

this requirement may come from across 

the entire 8-hour area. 

The subpart 1 RFP provisions 

addressed by the rule below that are 

applicable in the former 1-hour portion 

of the area depend on the subpart 2 

area’s attainment date as follows: 

• In moderate areas that have an 

attainment date within 5 years after 

their 8-hour designation, for which 

portions of the area have previously met 

their 15 percent requirements under the 

1-hour standard, the former 1-hour 

portion will only be subject to subpart 

1 RFP requirements, which will be 

satisfied with the measures that 

demonstrate attainment as expeditiously 

as practicable. These areas will not be 

developing RFP plans separate from 

their attainment plans. Thus, for these 

areas, the only motor vehicle emissions 

budgets that will be developed will be 

for the attainment year. 

• In moderate areas that have an 

attainment date beyond 5 years after 

their 8-hour designation, for which 

portions of the area have previously met 

their 15 percent requirements under the 

1-hour standard, the former 1-hour 

portion will only be subject to subpart 

1 RFP requirements, which will be 

satisfied with a plan to demonstrate 15 

percent emissions reductions (which 

may be either VOC or NOX or a 

combination of both) from 2002 to 2008, 

and any additional emissions reductions 

needed for attainment beyond 2008. 

Thus, these areas (the entire 8-hour 

nonattainment area) would establish a 

motor vehicle emission budget for 2008 

and for their attainment year. 

Serious and above areas will be 

developing both a 15 percent VOC plan 

for the new portion of the 8-hour 

nonattainment area and an 18 percent 

VOC/NOX plan for the portion of the 

area that previously met its 15 percent 

requirement. Thus, the RFP plan as a 

whole will establish total allowable 

emissions for 2008 for the entire 8-hour 

nonattainment area. Therefore, the plans 

for these areas, as well as moderate 

areas that choose option one, will 

establish motor vehicle emissions 

budgets for both 2008 and the 

attainment year. 

3. What baseline year should be 

required for the emissions inventory for 

the RFP requirement? 

We are using the 2002 inventory as 

the baseline inventory for the RFP 

requirement for areas designated 

nonattainment in 2004 primarily 

because of timing concerns related to 

attainment dates and when data is 

collected and compiled. However, in 

response to several comments, we are 

allowing States the option of justifying 

the use of an alternative baseline year 

inventory year for RFP. 

71616 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

4. Should moderate and higher 

classified areas be subject to prescribed 

additional RFP requirements prior to 

their attainment date? 

Moderate areas would have to provide 

additional emissions reductions (VOC/ 

NOX) needed to provide for attainment 

by the beginning of the ozone season 

prior to the area’s attainment date. 

Serious and higher classified areas 

would need to provide in their SIPs an 

additional average of three percent per 

year emission reduction over each 

subsequent 3-year period beyond the 

initial 6-year period through the 

attainment year. 

5. What is the timing of the submission 

of the RFP plan? 

For moderate and higher classified 

areas, the first RFP SIP must be 

submitted within 3 years after the area’s 

nonattainment designation. For areas 

with a June 15, 2004 effective date, for 

the 8-hour designations, the SIP would 

be due by June 15, 2007. This would 

provide up to 3 years for States to 

develop and submit RFP plans, and 1 

additional year (until the end of 2008) 

for control measures to be implemented. 

The RFP SIP for any remaining 3-year 

periods out to the attainment date 

beyond the first 6 years would be 

required to be submitted with the 

attainment demonstration, i.e., within 3 

years after designation. We recommend 

that States complete their RFP plans as 

soon as possible after designation to 

provide more time for sources to 

implement the emissions reductions. 

6. How should CAA restrictions on 

creditable measures be interpreted? 

Which national measures should count 

as generating emissions reductions 

credit toward RFP requirements? 

All emissions reductions that occur 

after the baseline emissions inventory 

year are creditable for purposes of the 

RFP requirements in this section except 

as specifically provided in section 

182(b)(1)(C) and (D) and section 

182(c)(2)(B) of the CAA which exclude 

four categories of emissions reductions 

requirements required to be adopted 

prior to 1990. 

7. For areas covered only by subpart 1, 

how should the RFP requirement be 

structured? 

We are finalizing rules for two rather 

than three categories of areas based on 

the CAA’s division of attainment dates 

for subpart 1 areas under section 

172(a)(2). The following are the two 

scenarios and the RFP requirements for 

each: 

Scenario A: Areas with attainment 

dates 5 years or less after designation 

(i.e., for most areas on or before June 15, 

2009). Reasonable further progress for 

these areas would be met by ensuring 

emissions reductions needed for 

attainment are implemented, as noted 

above, by the beginning of the ozone 

season prior to the attainment date. This 

would be similar to subpart 2 RFP for 

areas classified as marginal. 

Scenario B: Areas with attainment 

dates beyond 5 years after designation 

(i.e., beyond 2009). 

• The RFP plan must show 

increments of progress from the baseline 

emissions inventory year out to the 

attainment date. 

• The RFP SIP would first have to 

provide for a 15 percent emission 

reduction from the baseline year within 

6 years after the baseline year (i.e., out 

to 2008). 

• The 15 percent RFP SIP would have 

to be submitted within 3 years after 

designation (i.e., in 2007). 

• Either NOX or VOC emissions 

reductions (or both) could be used to 

achieve the 15 percent emission 

reduction requirement. 

• For each subsequent 3-year period 

(after 2008) out to the attainment date, 

the RFP SIP would have to provide for 

an additional increment of progress no 

less than the amount of emissions 

reductions that would be roughly 

proportional to the time between the 

end of the first increment (in 2008) and 

the attainment date. This second RFP 

SIP would also have to be submitted 

within 3 years after the effective date of 

designation (i.e., in 2007). 

8. Where part of an 8-hour 

nonattainment area was a 1-hour 

nonattainment area with a ROP 

obligation extending past 2002, can 

emissions reductions from the area’s 1-

hour ROP plan be used as credit toward 

meeting the area’s 8-hour RFP plan? 

Where an area has both 1-hour and 8-

hour RFP obligations for the post-2002 

period, the State may rely on emissions 

reductions from the 1-hour plan in 

achieving RFP for the 8-hour standard. 

The State could develop a new baseline 

and new RFP emission reduction targets 

for the entire 8-hour standard 

nonattainment area (i.e., the old 1-hour 

standard nonattainment area and any 

newly added portion of the 8-hour 

standard nonattainment area). 

Emissions reductions from measures in 

the 1-hour ozone SIP that are achieved 

after the 8-hour ozone NAAQS baseline 

year could count (subject to creditability 

restrictions as discussed above) toward 

meeting the RFP requirement for the 

entire 8-hour area. 

This approach would set an RFP 

target for the entire 8-hour ozone 

nonattainment area. Under this 

approach, the new RFP target for the 8-

hour standard would replace the 

previous 1-hour ROP target (while 

ensuring that, at a minimum, the 

emissions reductions required to meet 

the old target are met; see 40 CFR 

51.905(a)(1)(iii)). 

9. Will EPA’s ‘‘Clean Data Policy’’ apply 

for purposes of 8-hour RFP, attainment 

demonstrations and other related 

requirements? 

We intend to apply the Clean Data 

Policy, which we had applied under the 

1-hour standard, for purposes of the 8-

hour standard. In this action EPA is 

finalizing the statutory interpretation 

that is embodied in the policy. The text 

of the final rule encapsulates the 

statutory interpretation set forth in the 

policy. 

10. How will RFP be addressed in Tribal 

areas? 

We intend to follow the Tribal 

Authority Rule (TAR), which provides 

Tribes with the ability to develop Tribal 

implementation plans (TIPs) to address 

and implement the NAAQS in Indian 

country. It further provides the Tribes 

with flexibility to develop these plans in 

a modular way, as long as the elements 

of their TIPs are reasonably ‘‘severable.’’ 

11. How will RFP targets be calculated? 

Appendix A to the preamble to this 

final rule provides calculation 

procedures for determining the RFP 

targets. These have been revised from 

those in the proposal to account for NOX 

and for emissions models in addition to 

the MOBILE model. 

12. Should EPA continue the policy of 

allowing substitution of controls from 

outside the nonattainment area within 

100 kilometers for VOC and 200 

kilometers for NOX? 

We intend to continue to rely on this 

policy at the current time. The use of 

emissions reductions outside the 

nonattainment area must be shown to be 

beneficial toward reducing ozone in the 

nonattainment area and must ensure 

that the reductions meet the standard 

tests of creditability (permanent, 

enforceable, surplus, and quantifiable). 

13. When must RFP emissions 

reductions be achieved? 

The target level of emissions must be 

met by the attainment date of the 

attainment year. Section 182(c)(2)(B) 

requires that RFP be continued out to 

the attainment date. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71617 

14. Banked emission reduction credits 

(including shutdown credits): Can prebaseline emission reduction credits be 

used to satisfy the RFP requirement? 

• The baseline emissions should not 

include pre-enactment banked emission 

credits since they were not actual 

emissions during the calendar year of 

enactment of the CAA Amendments of 

1990. 

• Banked emissions reductions 

credits created prior to enactment of the 

CAA Amendments of 1990 are not 

creditable toward the 15 percent 

progress requirement. However, for 

purposes of equity, EPA encourages 

States to allow sources to use such 

banked emissions credits for offsets and 

netting as authorized. 

• When States use such banked 

credits for offsets and netting to the 

extent otherwise creditable under the 

part D NSR regulations, these preenactment emissions credits must be 

treated as growth. Prior guidance on this 

issue is still relevant for banked 

emission reduction credits in relation to 

the RFP requirement for the 8-hour 

ozone standard. However, because the 

rule for implementing the 8-hour ozone 

standard uses a 2002 baseline year, the 

prior guidance should be interpreted 

with that baseline in mind instead of 

enactment of the CAA Amendments of 

1990. 

F. Are contingency measures required in 

the event of failure to meet a milestone 

or attain the 8-hour ozone NAAQS? 

Contingency measures are required to 

be implemented in the event of failure 

to meet a milestone or attain the 8-hour 

ozone NAAQS and must accompany the 

attainment demonstration SIP. All 

subpart 1 and subpart 2 areas other than 

marginal areas need contingency 

measures. 

G. What requirements should apply for 

RACM and RACT for 8-hour ozone 

nonattainment areas? 

1. Reasonably Available Control 

Technology (RACT) 

For subpart 1 areas that submit a 

demonstration of attainment for 5 or less 

years after designation (i.e., do not 

request an attainment date extension 

beyond 5 years after designation), the 

CAA’s RACT requirement is met with 

the control requirements associated 

with a demonstration that the NAAQS 

is attained as expeditiously as 

practicable. 

For subpart 1 areas that submit an 

attainment demonstration that requests 

an attainment date extension (i.e., 

beyond 5 years after designation), 

subpart 2 moderate and above areas, and 

areas within an Ozone Transport Region 

(OTR), a RACT SIP is required covering 

CTG sources and major non-CTG 

sources. The RACT submittal date is 27 

months after designation, except a 

subpart 1 area shall submit the RACT 

SIP with its attainment date extension 

request.2 States must require sources to 

implement RACT no later than the first 

ozone season or portion thereof which 

occurs 30 months after the required 

submittal date. 

Where a RACT SIP is required, State 

SIPs implementing the 8-hour standard 

generally must assure that RACT is met, 

either through a certification that 

previously required RACT controls 

represent RACT for 8-hour 

implementation purposes or through a 

new RACT determination. States may 

use existing EPA guidance in making 

RACT determinations. The State need 

not perform a NOX RACT analysis for 

sources subject to the State’s emission 

cap-and-trade program where the capand-trade program has been adopted by 

the State and approved by EPA as 

meeting the NOX SIP Call requirements 

or, in States achieving CAIR reductions 

solely from electric generating units 

(EGUs), the CAIR NOX requirements.3 

States are free to conduct case-by-case 

RACT determinations, or RACT 

determinations or certifications for 

groups of sources, at their discretion. 

2. Reasonably Available Control 

Measures (RACM) 

For each nonattainment area required 

to submit an attainment demonstration, 

the State must submit with the 

attainment demonstration a SIP revision 

demonstrating that it has adopted all 

control measures necessary to 

demonstrate attainment as expeditiously 

as practicable and to meet any RFP 

requirements. 

H. How will the section 182(f) NOX 

provisions be handled under the 8-hour 

ozone standard? 

The final rule allows a person to 

petition the Administrator for an 

exemption from nonattainment major 

NSR and/or RACT requirements for 

major stationary sources of NOX in 8-

hour ozone nonattainment areas and for 

any area in a section 184 ozone 

transport region. The final rule includes 

an extension of the NOX waiver 

provisions to 8-hour ozone 

nonattainment areas covered under 

2 This is generally expected with the submission 

of the attainment demonstration. 

3 Alternatively, a State need not perform a NOX 

RACT analysis for sources subject to Federal 

implementation plan that implements the emission 

reductions required by the NOX SIP call or the 

CAIR. 

subpart 1 (as proposed) as well as 

subpart 2 nonattainment areas. In 

addition, the final rule states that a 

section 182(f) NOX exemption granted 

under the 1-hour ozone standard does 

not relieve the area from any 

requirements under the 8-hour ozone 

standard. A petition must contain 

adequate documentation that the 

exemption provisions in section 182(f) 

are met. We recently issued updated 

guidance on appropriate documentation 

regarding section 182(f) for application 

to the 8-hour ozone program.4 

I. Should EPA promulgate a NSR 

provision to encourage development 

patterns that reduce overall emissions? 

Section V of this preamble below 

addresses rules for NSR for the 8-hour 

ozone standard. We are not at this time 

issuing any rule related to Clean Air 

Development Communities (CADCs). 

J. How will EPA ensure that the 8-hour 

ozone standard will be implemented in 

a way which allows an optimal mix of 

controls for ozone, fine particulate 

matter PM2.5), and regional haze? 

We are continuing our policy of 

encouraging each State with an ozone 

nonattainment area which overlaps or is 

nearby a PM2.5 nonattainment area to 

take all reasonable steps to coordinate 

the required revisions for these 

nonattainment areas and meet 

reasonable progress goals for regional 

haze. 

K. What emissions inventory 

requirements should apply under the 8-

hour ozone NAAQS? 

Existing ozone-relevant emissions 

data element requirements under 40 

CFR 51 subpart A are sufficient to 

satisfy the emissions inventory data 

requirements under the 8-hour ozone 

NAAQS. 

L. What guidance should be provided 

that is specific to Tribes? 

Section 301(d) of the CAA recognizes 

that American Indian Tribal 

governments are generally the 

appropriate authority to implement the 

CAA in Indian country. As discussed in 

the TAR, it is appropriate to treat Tribes 

in the same manner as States for 

purposes of implementing all of the 

provisions of the CAA, except those 

provisions for which EPA has 

specifically determined that it is not 

appropriate to treat Tribes in the same 

4 Memorandum dated January 14, 2005, 

‘‘Guidance on Limiting Nitrogen Oxides (NOX) 

Requirements Related to 8-Hour Ozone 

Implementation’’ from Stephen D. Page, Director, 

Office of Air Quality Planning and Standards, to Air 

Directors, Regions I–X. 

71618 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

manner as States. (The CAA provisions 

for which EPA has determined it is not 

appropriate to treat Tribes in the same 

manner as States are listed in section 

IV.L. of this preamble.) Examples of 

CAA provisions for which EPA has 

determined it is not appropriate to treat 

Tribes in the same manner as States 

include specific plan submittal and 

implementation deadlines. 

In implementing this rule, it is 

important for both States and Tribes to 

work together to coordinate planning 

efforts. Other than in very limited 

circumstances, State regulations do not 

apply to Indian Country, but SIP control 

measures could impact downwind 

areas, including Indian communities. In 

addition, nonattainment area 

boundaries may include a portion of 

Indian Country. Coordinated planning 

will help ensure that the planning 

decisions made by the States and Tribes 

complement each other and achieve 

progress toward meeting the NAAQS. 

M. What are the requirements for Ozone 

Transport Regions (OTRs) under the 8-

hour ozone standard? 

Section 184 continues to apply for 

purposes of the 8-hour standard; 

therefore, the current OTR remains in 

place and the section 184 control 

requirements continue to apply for 

purposes of the 8-hour standard. If a 

new OTR is established for purposes of 

the 8-hour standard pursuant to section 

176A, that area would also be subject to 

the provisions and additional control 

requirements of section 184. 

N. Are there any additional 

requirements related to enforcement 

and compliance? 

We are not setting forth any 

additional rule related to compliance 

and enforcement. 

O. What requirements should apply to 

emergency episodes? 

We have not yet proposed any rule 

revision related to emergency episodes 

(at 40 CFR part 51, subpart H), and the 

final rule below does not contain any 

such rule revision. 

P. What ambient monitoring 

requirements will apply under the 8-

hour ozone NAAQS? 

No monitoring requirements are being 

promulgated as part of this rulemaking. 

The preamble discusses current relevant 

requirements (40 CFR part 58) and 

anticipated activities. 

Q. When will EPA require 8-hour 

attainment demonstration SIP 

submissions? 

Modeled attainment demonstrations— 

where required—must be submitted 

within 3 years after the effective date of 

the area’s nonattainment designation. 

R. How will the statutory time periods 

in the CAA be addressed when we 

redesignate areas to nonattainment 

following initial designations for the 8-

hour NAAQS? 

For any area that is initially 

designated attainment or unclassifiable 

for the 8-hour NAAQS and subsequently 

redesignated to nonattainment for the 8-

hour ozone NAAQS, the attainment date 

and dates for submittal of any 

applicable requirements under subpart 1 

or subpart 2 and these regulations 

would run from the date of 

redesignation to nonattainment for the 

8-hour NAAQS. 

Summary of Section V (Below): EPA’s 

Final Rule for New Source Review 

In today’s action, we are finalizing 

previously proposed changes to three 

regulations that govern major NSR 

permitting of major stationary sources in 

nonattainment areas—40 CFR 51.165, 

appendix S of 40 CFR part 51, and 40 

CFR 52.24. 

The regulations at 40 CFR 51.165 

contain the minimum elements that a 

State’s preconstruction permitting 

program for major stationary sources in 

nonattainment areas must contain in 

order for EPA to approve the State’s 

program into the SIP. In § 51.165, we are 

making revisions to incorporate the 

major stationary source thresholds, 

significant emission rates, and offset 

ratios pursuant to part D of title I of the 

CAA, as amended in 1990, for the 8-

hour ozone NAAQS, the CO NAAQS, 

and the PM10 NAAQS. We are also 

promulgating final changes to the 

requirements for emissions reductions 

achieved from shutdowns or 

curtailments at § 51.165(a)(3)(ii)(C). We 

are not currently acting on any other 

proposed changes to 40 CFR 51.165. 

Appendix S of 40 CFR part 51 

contains the preconstruction permitting 

program that applies to major stationary 

sources in nonattainment areas lacking 

an approved part D NSR program. It 

applies during the interim period after 

EPA designates an area as 

nonattainment, but before EPA approves 

a SIP to implement the nonattainment 

NSR requirements for that pollutant (SIP 

development period). We are making 

the same changes to appendix S that we 

are making to § 51.165 to implement the 

CAA as revised by the 1990 

Amendments. In addition, we are 

finalizing revisions to section VI of 

appendix S to qualify applicability of 

this section. This revision is an 

outgrowth of the proposed revisions to 

section VI in the 8-hour NAAQS 

implementation proposal (68 FR 32802). 

We also are removing an outdated 

exemption for sources increasing 

emissions less than 50 tons per year 

(tpy). 

The regulations at 40 CFR 52.24 

contain restrictions on the construction 

or modification of major stationary 

sources, including a construction ban 

applicable in circumstances enumerated 

by the 1977 CAA. These regulations also 

apply if the Administrator determines 

pursuant to CAA section 173(a)(4) that 

the State is not adequately 

implementing the SIP for meeting the 

part D requirements. today’s final rules 

codify requirements of the 1990 CAA 

Amendments related to the applicability 

of construction bans. The final rules at 

§ 52.24 also codify that § 51.165 applies 

in interpreting the terms in § 52.24. The 

regulations at 40 CFR 52.24(k) retain the 

requirement that appendix S governs 

permits to construct and operate applied 

for during the period between the date 

of designation as nonattainment and the 

date the part D plan for NSR is 

approved, but is updated to remove the 

reference to the construction ban. 

In addition to the changes to the 

nonattainment NSR regulations, we also 

are making one change to the PSD 

regulations under part C of title I of the 

CAA. We are codifying NOX as an ozone 

precursor in attainment and 

unclassifiable areas. 

Summary of Section VI (Below): Final 

Rule for RFG 

Today’s rule specifies that the nine 

original RFG mandatory areas must 

continue to use RFG at least until they 

are redesignated to attainment for the 8-

hour standard. Similarly, areas that have 

been reclassified as severe areas under 

section 181(b) of the CAA for the 1-hour 

NAAQS, and which were not 

redesignated to attainment for the 1-

hour NAAQS prior to its revocation, 

must continue to use RFG at least until 

they are redesignated to attainment for 

the 8-hour standard. The EPA is 

reserving for future consideration what 

RFG requirements apply to areas that 

were reclassified as severe under the 1-

hour standard, but were redesignated to 

attainment for that standard before its 

revocation. The only such area that was 

redesignated to attainment prior to 

revocation of the 1-hour standard is 

Atlanta, Georgia. The EPA is also 

reserving for future consideration 

whether areas must continue using RFG 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71619 

after they are redesignated to attainment 

for the 8-hour standard, for the original 

nine mandatory areas as well as the 

areas reclassified to severe. Finally, EPA 

clarifies that the current opt-in rules 

will remain in place after the 1-hour 

standard is revoked. Areas classified 

under subpart 2 as marginal or above are 

eligible to opt-in to the RFG program. 

Summary of Section VII (Below): Other 

Considerations 

A. How will EPA’s implementation of 

the 8-hour ozone NAAQS affect funding 

under the Congestion Mitigation and Air 

Quality Improvement (CMAQ) Program? 

This section describes the 

relationship between the CMAQ 

program and the 8-hour ozone NAAQS 

implementation program. 

B. What is the relationship between 

implementation of the 8-hour standard 

and the CAA’s title V permits program? 

The interrelationship between 

implementation of the 8-hour ozone 

standard and the title V permits 

program was not discussed in the 

proposed rule. However, various 

questions have been raised about the 

interface between the implementation of 

the 8-hour ozone standard and the title 

V operating permits program. The 

preamble presents several questions and 

answers, mainly dealing with how title 

V applicability is affected by the new 8-

hr ozone standard and the revocation of 

the 1-hour ozone standard. 

C. What action is EPA taking on the 

Overwhelming Transport Classification 

for subpart 1 areas? 

We are not completing rulemaking on 

the overwhelming transport 

classification in this rulemaking. This 

section discusses the status of the 

rulemaking. 

IV. Final Rule for Phase 2 Elements 

Other Than New Source Review and 

Reformulated Gasoline 

The discussion of many of the 

regulatory elements below address 

timing of required actions, such as 

submission dates for SIP revisions. The 

discussion is primarily directed toward 

8-hour ozone nonattainment areas for 

which the effective date of the 

designation was June 15, 2004. 

However, a number of areas may have 

later effective dates for their 

designations, such as early action 

compact areas and areas subsequently 

redesignated from attainment to 

nonattainment for the 8-hour ozone 

standard. For these situations, the 

timing will run from the effective date 

of those designations. In cases in this 

preamble where we have used June 15, 

2004 as a substitute for the ‘‘effective 

date,’’ we are using it only for purposes 

of those areas with an effective date of 

June 15, 2004. 

A. Should prescribed requirements of 

subpart 2 apply in all 8-hour 

nonattainment areas classified under 

subpart 2, or is there flexibility in 

application in certain narrowly-defined 

circumstances? 

[Section VI.D. of June 2, 2003 

proposed rule (68 FR 32825); no draft or 

final regulatory text.] 

1. Background 

The 1990 CAA Amendments 

overhauled the CAA’s requirements for 

ozone nonattainment areas and, in 

doing so, specified new mandatory 

measures for many areas. The approach 

embodied in subpart 2 was to classify 

areas according to the severity of their 

pollution. Areas with more serious 

ozone pollution were given a higher 

classification that did two things. First, 

the successively higher classifications 

provided a successively longer 

maximum timeframe for attaining the 

ozone NAAQS. Second, each higher 

classification mandated specific 

additional and/or more stringent 

obligations than the classification 

immediately below. Specifying 

mandatory measures in the statute was 

necessary because States and EPA, prior 

to 1990, had failed to ensure that SIPs 

achieved steady reasonable progress in 

reducing emissions or to require readily 

available measures that were cost 

effective and necessary to meet the 

standard. See generally H.R. Rep. No. 

101–490 at 144–48 (1990). 

For this rule, we examined the issue 

of mandatory measures from both a legal 

and policy standpoint. Our legal view is 

guided by the statutory language in part 

D of title I of the CAA. In addition, we 

were guided by the Supreme Court’s 

view of this language. Our policy view 

is guided by past precedents and also 

the principles we set forth in our 

proposed rule (June 3, 2003; 68 FR 

32802). 

We have consistently interpreted the 

CAA to mean that once an area is 

classified under subpart 2, the subpart 

2 requirements apply. While certain 

requirements allow for some flexibility 

in how they apply, the requirements do 

not allow for broad waivers. For 

example, all areas classified as serious 

or above must meet the requirement for 

an enhanced inspection and 

maintenance (I/M) program, however, 

there is some flexibility in determining 

what type of I/M program meets the 

requirement for an enhanced I/M 

program. The Supreme Court, in 

addressing whether the classification 

provisions in subpart 2 applied for 

purposes of the 8-hour ozone NAAQS 

found that they did and stated that 

EPA’s implementation scheme, which 

would have avoided classifications 

under subpart 2, was unreasonable 

because it would effectively nullify the 

subpart 2 provisions that Congress 

created with the intent to limit State and 

EPA discretion. Whitman v. American 

Trucking Assoc., 531 U.S. 484–85. 

In the proposed rule, we recognized 

that there is case law doctrine that 

might allow a case-by-case waiver from 

mandatory requirements when 

sufficient evidence is presented that 

application of a specific requirement in 

a particular area would cause absurd 

results. 

2. Final Rule 

We continue to interpret the CAA to 

mean that the prescribed requirements 

for each classification under subpart 2 

apply to areas with such classification 

for the 8-hour NAAQS. As we noted in 

the preamble to the proposed rule, there 

may be a basis for waiving a prescribed 

requirement on a case-by-case basis 

where imposition of the requirement 

would create an absurd result. However, 

as stated in the proposed rule, we 

believe that absurd results that might 

occur from application of mandatory 

control measures would happen only in 

rare instances. If a State submits a 

demonstration that application of a 

specific requirement in a specific 

nonattainment area would create an 

absurd result, we will consider 

application of the absurd results 

doctrine at that time. 

3. Comment and Responses 

Comment: A number of commenters 

supported the approach that we 

discussed in the proposed rule. Other 

commenters agreed with the overall 

concept that we proposed but felt that 

we should take additional factors into 

consideration if we make case-by-case 

waivers from subpart 2 requirements. 

Several commenters suggested that we 

take the cost of controls into 

consideration when determining if there 

were an absurd result while others 

suggested that we look at relative 

control strategy effectiveness, e.g., 

allowing a demonstration that NOX 

reductions are more effective and 

therefore may be substituted for 

mandatory VOC emissions reductions. 

Several other commenters stated that 

we should more broadly allow 

substitution of subpart 2 mandatory 

measures. One commenter felt that 

substitution of subpart 2 measures 

should be allowed as long as the 

71620 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

substituted measures are at least 

equivalent to the mandatory measures. 

Another commenter stated that we 

should allow areas to adopt substitute 

measures in lieu of subpart 2 measures 

where the subpart 2 measures would not 

be as effective as the substitute 

measures in reaching attainment. The 

commenter stated that we have been 

overly limited in our characterization of 

when subpart 2 measures might be 

waived to avoid an absurd result. The 

commenter believed that we should 

create a categorical exemption as an 

exercise of agency power to allow areas 

to substitute NOX for VOC measures or 

more effective control measures for less 

effective control measures when doing 

so would expedite attainment. Another 

commenter urged us to limit the strict 

application of subpart 2 measures 

because the imposition of such 

measures creates economic 

disincentives for companies to locate 

and expand in nonattainment areas. A 

number of commenters stated that they 

do not support the vehicle I/M or Stage 

II vapor recovery programs and 

recommended that we provide States 

with flexibility in meeting these 

requirements. 

Response: Many of the commenters’ 

suggestions go beyond the application of 

an absurd results doctrine and instead 

suggest broad waiver of subpart 2 

requirements based on a determination 

that an alternative or substitute is more 

effective. We do not believe that we 

have the authority to broadly waive 

measures mandated by Congress. As 

noted by the Supreme Court, Congress 

intended to cabin States’ discretion 

when it mandated the specific controls 

under subpart 2. See e.g., Whitman, 531 

U.S. 484–85. (‘‘Whereas subpart 1 gives 

EPA considerable discretion to shape 

nonattainment programs, subpart 2 

prescribes large parts of them by law’’ 

and ‘‘EPA may not construe the statute 

in a way that completely nullifies 

textually applicable provisions meant to 

limit discretion’’). 

However, as stated in our proposed 

rule, we believe that case law may 

provide EPA with limited flexibility to 

waive federally mandated requirements 

on a case-by-case basis where 

application of those requirements would 

produce an absurd result. We do not 

need to conclude here what precise 

circumstances would create an absurd 

result. Rather, that decision would need 

to be made on a case-by-case basis in the 

context of a specific request. In general, 

we note that to demonstrate an absurd 

result, a State would need to 

demonstrate that application of the 

requirement would result in more harm 

than benefit. For example, the programs 

mandated under subpart 2 are generally 

effective in reducing emissions of the 

two ozone precursors—NOX and VOC— 

and because reductions of those 

precursors generally lead to improved 

air quality, we believe that such a 

demonstration could be made, if at all, 

only in rare instances. 

With regard to the comment relating 

to Stage II vapor recovery, section 

202(a)(6) of the CAA does provide for 

revision or waiver of the Stage II vapor 

recovery requirement under certain 

conditions: ‘‘The requirements of 

section 182(b)(3) (relating to stage II 

gasoline vapor recovery) for areas 

classified under section 181 as moderate 

for ozone shall not apply after 

promulgation of such standards and the 

Administrator may, by rule, revise or 

waive the application of the 

requirements of such section 182(b)(3) 

for areas classified under section 181 as 

Serious, Severe, or Extreme for ozone, as 

appropriate, after such time as the 

Administrator determines that onboard 

emissions control systems required 

under this paragraph are in widespread 

use throughout the motor vehicle fleet.’’ 

Currently, EPA is formulating policy 

concerning how widespread use will be 

determined and has been seeking 

participation from affected parties. 

Further information is available at: 

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

ozonetech/stage2/. 

Comment: A few commenters 

disagreed with the approach in our 

proposed rule. One commenter stated 

that we do not have the statutory 

authority to create new waivers to 

subpart 2 requirements. Another 

commenter stated that the CAA does not 

allow case-by-case waivers to avoid 

‘‘absurd’’ results. The commenter 

further stated that doing so would in 

effect require us to rewrite the statute by 

regulation. 

Response: As stated above, we agree 

that we do not have broad authority to 

waive subpart 2 requirements and that 

the CAA itself does not expressly create 

authority to waive such requirements. 

However, the ‘‘absurd results’’ line of 

cases provides that where application of 

a statute as written would create a result 

counter to what Congress intended, an 

Agency has limited authority to 

construe that provision in a manner 

than would effectuate Congress’ intent.5 

5 See Holy Trinity Church v. United States, 143 

U.S. 457 (1892) (‘‘If literal construction of the words 

of a statute be absurd, the act must be so construed 

to avoid the absurdity.’’); Griffin v. Oceanic 

Contractors, Inc. 458 U.S. 564 (1982) (recognizing 

the absurdity exemption, but concluding that a 

harsh penalty provision did not produce results 

counter to Congress’ intent); Mova Pharm. Corp. v. 

Shalala, 140 F. 3d 1060 (D.C. Cir. 1998) (recognizing 

B. How will we address long-range 

transport of ground-level ozone and its 

precursors when implementing the 8-

hour ozone standard? 

[Section VI.F. of June 2, 2003 

proposed rule (68 FR 32827); no draft or 

final regulatory text.] 

1. Background 

Interstate transport can make it 

difficult or impossible for some States to 

meet attainment deadlines for areas 

within their boundaries solely by 

regulating sources within their own 

boundaries. Section 110(a)(2)(D) of the 

CAA provides an important tool for 

addressing the problem of interstate 

transport. It provides that a State must 

include adequate provisions in its SIP to 

prohibit sources within the State from 

emitting air pollutants in amounts that 

contribute significantly to 

nonattainment, or interfere with 

maintenance, in one or more downwind 

States. Section 110(k)(5) of the CAA 

authorizes EPA to find that a SIP is 

substantially inadequate to meet any 

CAA requirement, including the 

requirements of section 110(a)(2)(D) of 

the CAA. If we make such a finding, we 

must require the State to submit, within 

a specified period, a SIP revision to 

correct the inadequacy. The CAA 

further addresses interstate transport of 

pollution in section 126, which 

authorizes any State to petition EPA to 

regulate emissions from significant 

upwind sources of air pollutants in 

other States. 

In addition to requiring States to 

control interstate air pollution under 

section 110(a)(2)(D), the CAA requires 

States with nonattainment areas to 

develop State plans under part D that 

provide for meeting the NAAQS as 

expeditiously as practicable, and for 

maintaining healthy air quality in those 

areas over time. Together, the section 

110(a)(2)(D) and part D provisions 

provide for upwind State and in-State 

controls to ensure that national healthbased air quality standards are met and 

maintained. 

2. Current Approach 

In the NOX SIP Call Rule, EPA found 

the SIPs for certain States in the eastern 

U.S. to be substantially inadequate to 

address emissions transported to 

downwind States and required those 

States to select and adopt control 

measures to meet statewide ozoneseason NOX emissions budgets based on 

highly cost-effective NOX emissions 

the absurdity exemption, but finding that a 

‘‘successful defense’’ regulation went beyond the 

statute was not necessary to meet Congressional 

intent.) 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71621 

reductions (63 FR 57356, October 27, 

1998.) In that rule, we determined that 

the same level of emissions reductions 

was needed to address transport for both 

the 1-hour and 8-hour standards.6 

The NOX SIP Call Rule is achieving 

substantial emissions reductions and air 

quality improvement well in advance of 

the attainment dates of 8-hour 

nonattainment areas. In the eastern 

United States, monitoring data shows a 

10 percent improvement between 2002 

and 2004 in the seasonal (May– 

September) average of daily maximum 

8-hour ozone concentrations, after 

adjustment for meteorological 

differences. The EPA believes that the 

NOX reductions achieved as a result of 

the NOX SIP Call are an important factor 

in this improvement. The compliance 

date for achieving the required NOX 

reductions under phase I of the NOX SIP 

Call was May 31, 2004. All of the 19 

affected States and the District of 

Columbia submitted complete Phase I 

SIPs, which EPA approved, in response 

to the NOX SIP Call and are 

implementing their NOX control 

programs. State programs to implement 

the rule have focused on reducing 

emissions from electric power 

generators and large industrial emitters. 

The phase II NOX SIP Call Rule, which 

responds to court decisions on issues 

from the original SIP call rule involving 

certain types of sources and geographic 

coverage, requires additional emissions 

reductions by May 1, 2007. 

The EPA’s modeling for the CAIR 

indicates that ozone levels across the 

eastern half of the country will improve 

substantially by 2010 because of 

existing requirements—including the 

NOX SIP call, federal motor vehicle and 

nonroad engine regulations, and other 

existing State and federal rules. Last 

year, EPA designated more than 100 

areas in that region as having ozone 

levels not meeting the 8-hour ozone 

standard, based on 2001–2003 data. Air 

quality improvements due to existing 

requirements (i.e., without State 

measures required for areas designated 

nonattainment for the 8-hour standard) 

are projected to leave only 16 of these 

areas in nonattainment in 2010. This 

estimate is derived from base case CAIR 

modeling results shown in the final 

notice for the CAIR (70 FR 25254, Table 

VI–12). 

On May 12, 2005, EPA published the 

Clean Air Interstate Rule in the Federal 

Register (70 FR 25162). The EPA 

determined that 28 States and the 

District of Columbia contribute 

6 In light of various challenges to the 8-hour 

NAAQS, we stayed the 8-hour basis for the NOX SIP 

Call Rule (65 FR 56245; September 18, 2000). 

significantly to downwind 

nonattainment, or interfere with 

maintenance, of the PM2.5 and 8-hour 

ozone NAAQS in other States. The rule 

requires these States to submit SIP 

revisions to reduce SO2 and/or NOX 

emissions. 

To reduce interstate ozone transport, 

the rule established statewide ozoneseason NOX budgets for 25 States and 

the District of Columbia. The budgets 

are based on the level of emissions that 

can be achieved through highly costeffective controls that EPA determined 

are available from EGUs; however, 

States have flexibility to choose the 

measures they will use to achieve the 

necessary emissions reductions. Due to 

feasibility constraints, EPA is requiring 

the CAIR budgets to be achieved in two 

phases. For summertime NOX, the first 

phase starts in 2009 (covering 2009– 

2014); 7 the second phase of NOX 

reductions begins in 2015 (covering 

2015 and thereafter). 

The 25 States that are required to 

meet a summertime NOX cap for ozone 

purposes, along with the District of 

Columbia, are Alabama, Arkansas, 

Connecticut, Delaware, Florida, Illinois, 

Indiana, Iowa, Kentucky, Louisiana, 

Maryland, Massachusetts, Michigan, 

Mississippi, Missouri, New Jersey, New 

York, North Carolina, Ohio, 

Pennsylvania, South Carolina, 

Tennessee, Virginia, West Virginia, and 

Wisconsin. 

The CAIR is geographically broader 

and more stringent than EPA’s previous 

ozone interstate transport rule, the NOX 

SIP Call, adopted in 1998.8 The CAIR’s 

ozone requirements are based on 

updated analyses of the impacts of 

pollution transported across State 

borders, and of highly cost-effective 

control opportunities for NOX. 

As detailed in the final CAIR action, 

the CAIR rule will further reduce ozone 

transport to assist States in their efforts 

to bring ozone nonattainment areas into 

attainment or—in the case of downwind 

receptor areas that attain prior to some 

or all CAIR reductions—maintain air 

quality meeting the 8-hour ozone 

NAAQS. In the CAIR rulemaking, EPA 

projected that 39 counties (in the 16 

nonattainment areas referenced above) 

would have ozone levels exceeding the 

7 The CAIR first phase also provides an annual 

NOX budget, which also starts in 2009. 

8 The CAIR requires summertime NOX reductions 

in the following States not covered by the NOX SIP 

Call: Arkansas, Florida, Iowa, Louisiana, 

Mississippi, and Wisconsin. The NOX SIP Call has 

requirements for two States not covered by CAIR 

ozone requirements: Rhode Island and Georgia. The 

EPA has proposed a stay of applicability of the SIP 

Call to Georgia as an initial response to a petition 

for reconsideration on whether Georgia should be 

covered. 

standard in 2010 in the absence of 

further control requirements (i.e., the 

base case without CAIR). Most of these 

counties were projected to be within a 

few parts per billion (ppb) of the 

standard. For the 39 counties, the 

average reduction in ozone levels 

estimated from 2009 CAIR NOX controls 

is 0.4 ppb, and the maximum 

improvement is 1.4 ppb (70 FR 25254, 

Table VI–12.) The 2009 CAIR NOX 

requirements will achieve reductions 

prior to the maximum attainment date 

for downwind 8-hour ozone areas 

classified as moderate. 

We believe that States will be able to 

demonstrate timely attainment for most 

8-hour ozone nonattainment areas with 

the help of emissions reductions from 

Federal rules. However, we also believe 

that a limited number of downwind 

areas, while showing improvement, are 

likely to remain in nonattainment after 

2009. This is due to the severity of 

projected ozone levels in certain areas, 

uncertainties about the levels of 

emissions reductions that will actually 

occur, and persistence of historical 

difficulties with attaining the 1-hour 

ozone standard. The EPA determined in 

the CAIR that even if all downwind 

receptor areas attained on time, many 

areas will remain close enough to the 

standard to be at risk of falling back into 

nonattainment. The EPA concluded that 

the 2015 summertime NOX reductions 

will assist attainment and maintenance 

of the 8-hour standard.9 

In addition to controlling interstate air 

pollution under section 110(a)(2)(D), 

EPA national rules and State rules for 

controlling local sources of emissions 

are significantly reducing, and in the 

future will further reduce, the amount of 

pollution transported to 8-hour ozone 

nonattainment areas in downwind 

States. Downwind States, in devising 

their attainment and maintenance plans, 

will be able to take required upwind 

reductions into account. Depending on 

the particular area, the upwind 

reductions will help to hasten 

attainment of the NAAQS, make 

attainment and maintenance of the 

NAAQS less difficult and costly, or 

both. 

The EPA notes that interstate 

pollution transport will be further 

reduced through cost-effective measures 

that individual States adopt for 

purposes of bringing their ozone 

9 For the 22 counties projected to be in 

nonattainment in 2015 in the absence of further 

control requirements (i.e., the CAIR base case), the 

average ozone reduction in 2015 from CAIR is 1.1 

ppb, and the maximum improvement is 1.6 ppb. (70 

FR 25254, 25455, Table VI–13.) 

71622 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

nonattainment areas into attainment.10 

Given the potential for measures 

adopted by one State to improve air 

quality downwind, EPA is supportive of 

multi-State cooperation on strategies for 

attaining the 8-hour standard. 

3. Comments and Responses 

This section addresses the more 

significant comments received; the 

response to comment document 

addresses other comments also. 

Comment: Several commenters 

thought the June 2, 2003, 8-hour 

implementation proposal failed to 

adequately address transport and 

disagreed with our statement that 8-

hour transport has been addressed up 

front by the NOX SIP Call. Some added 

that this puts northeastern States 

located in the OTR in a situation where 

their citizens and businesses are bearing 

a disproportionate burden of health and 

economic impacts compared to upwind 

States that have fewer control 

requirements than OTR States. Some 

OTR State commenters said that the rule 

should address this inequity. One said 

we cannot assume that transport has 

been addressed until after the NOX SIP 

Call is implemented and has been 

evaluated. 

Response: The 8-hour ozone 

implementation rule is not intended as 

a rule to address interstate transport of 

pollution and to achieve emissions 

reductions from upwind sources as 

provided under CAA section 

110(a)(2)(D). Rather, its purpose is to 

interpret nonattainment requirements 

(in subparts 1 and 2 of part D of title I) 

for State plans to implement the 8-hour 

NAAQS. We have addressed the section 

110(a)(2)(D) obligation through the NOX 

SIP Call and CAIR, which provide 

substantial air quality benefit for 

downwind areas significantly affected 

by transport of pollution from other 

States. 

Comment: Two commenters 

recommended a regional approach 

among States to address transport. One 

commenter thought that Clear Skies is 

the best way to address transport, but 

absent that, would support a regional 

approach. Some commenters thought 

the 8-hour ozone implementation 

proposal ignored the issue that ozone is 

a regional problem that can only be 

solved through regional planning. These 

commenters added that instead of 

incentives for regional planning there 

were disincentives. Another commenter 

thought that EPA unrealistically expects 

10 Many types of sources contribute to ozone 

transport. The CAIR reduction requirements are 

based solely upon potential reductions from EGUs; 

EPA did not find other source types highly cost 

effective to control. 

States to be able to resolve all potential 

conflicts between the States by working 

together in a collaborative process to 

identify and adopt appropriate controls 

that provide for attainment. The 

commenter suggested that EPA 

oversight may be necessary in these 

situations. One commenter thought the 

development of multiple OTRs for 

regional planning and coordination may 

be highly desirable to bring States with 

a common problem together to 

coordinate efforts with the strength of 

several States rather than to go-it alone. 

Another suggested some criteria for EPA 

to use if we were to choose to establish 

OTRs. 

Response: We believe that addressing 

interstate transport requires regional 

approaches and regional cooperation. 

The EPA has ensured regional action to 

reduce interstate ozone transport 

through the NOX SIP Call Rule and 

CAIR. In addition, we note that groups 

of States have worked effectively 

together in the past to address regional 

ozone problems. For example, the Lake 

Michigan Air Directors Consortium 

(LADCO) was established in 1990 by the 

States of Illinois, Indiana, Michigan, and 

Wisconsin. The main purpose of 

LADCO is to provide technical 

assessments for and assistance to its 

member States on problems of ozone air 

quality and to provide a forum for its 

member States to discuss air quality 

issues. We will continue to encourage 

these multi-State efforts to assess and 

address ozone nonattainment and will 

work with these States as needed to 

provide support and ensure progress. 

We agree with other commenters that 

States should work together in the SIP 

development process to ensure localized 

transport is addressed. States that share 

an interstate nonattainment area are 

expected to work together in developing 

the nonattainment SIP for that area and 

in reducing emissions that contribute to 

local-scale interstate transport problems. 

We would also encourage collaborative 

efforts even in cases where there is not 

a multi-State nonattainment area but 

where significant emissions sources in 

one State might affect air quality in a 

nonattainment area in an adjacent State. 

In response to comments suggesting 

that EPA establish additional transport 

regions, at this time we do not 

anticipate formalizing any additional 

transport regions. We believe that the 

NOX SIP Call and CAIR rules go far to 

effectively address the kind of transport 

that establishment of a transport region 

would be intended to address, without 

the costs of setting up a commission to 

oversee the transport region. 

Comment: Some commenters stated 

that we should not rely on the proposed 

Clear Skies legislation to reduce 

emissions transport because there is no 

guarantee that the legislation will be 

enacted. Several State commenters 

added that Clear Skies would not 

provide adequate or timely emissions 

reductions. Another commenter 

suggested that we work with Congress to 

enact legislation to allow for the 

development and use of a transport 

argument in attainment demonstrations. 

Response: While we still hope that 

Congress will adopt the 

Administration’s Clear Skies multipollutant legislation, we acknowledge 

that the outcome of that process is 

uncertain. To ensure that regional 

transport is addressed in a timely 

manner, EPA finalized the CAIR in May 

2005 based on our existing regulatory 

authority. 

Comment: One commenter proposed 

that rather than addressing transport 

through national measures, we could 

include transport as one of the criteria 

for determining the adequacy of a SIP. 

This commenter supported the multiState collaborative effort mentioned in 

the proposed rule, so that areas work 

together to address transport as their 

SIPs are being developed. The 

commenter asserted that our proposed 

early, top-down approach could 

significantly hinder SIP planning for 

local areas considering the complex 

chemistry of ozone and PM2.5 formation. 

Response: We believe that the NOX 

SIP Call and CAIR help, rather than 

hinder, SIP planning for nonattainment 

areas. We agree that the CAA does allow 

the States to work together in a 

collaborative fashion to assess regional 

or sub-national transport. The EPA 

worked with a State-led effort in the 

mid-to late-1990’s [the Ozone Transport 

Assessment Group (OTAG) process] to 

perform such an assessment, which 

documented the magnitude and extent 

of long-range transport of ozone and its 

precursors. At that time, EPA concluded 

that without some certainty of what 

levels of emission controls would be 

required in the larger region, States 

faced great uncertainty regarding the 

amounts of ozone and precursor 

concentrations being transported into 

the modeling domain of the 

nonattainment area for which they were 

required to develop their attainment 

demonstrations. Therefore, EPA issued 

the NOX SIP Call—and more recently, 

CAIR—to establish the emission 

reduction responsibilities of upwind 

States under section 110(a)(2)(D). In this 

way, eastern States could then have a 

fair degree of certainty regarding 

required upwind reductions and the 

amount of transported emissions to be 

assumed in their 1-hour ozone 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71623 

attainment demonstrations for 

individual nonattainment areas. Based 

on the OTAG experience, we believed 

that there was high risk that States 

working together in a collaborative 

fashion would not agree on a regional 

control strategy within the time the 

CAA provides for States to develop 8-

hour attainment demonstrations. 

Therefore, we believe the commenter is 

incorrect that the ‘‘top-down’’ approach 

will significantly hinder SIP planning 

for the individual areas, and on the 

contrary, will provide the certainty 

needed to complete the attainment 

demonstrations in a timely manner. 

The commenter also proposed that 

rather than addressing transport through 

national measures, we could include 

transport as one of the criteria for 

determining the adequacy of a SIP. It is 

true that section 110(a)(2)(D)(i)(I) 

requires a SIP to ‘‘contain adequate 

provisions * * * prohibiting, consistent 

with the provisions of this title, any 

source or other type of emissions 

activity within the State from emitting 

any air pollutant in amounts which 

will—(I) contribute significantly to 

nonattainment in, or interfere with 

maintenance by, any other State with 

respect to any such national primary or 

secondary ambient air quality standard 

***’’ Furthermore, sections 110(a)(1) 

and (2) of the CAA require States to 

submit SIPs that implement, maintain, 

and enforce a new or revised NAAQS 

within 3 years of promulgation of the 

standard. Among other things, these SIP 

revisions must address a State’s 

significant contribution of pollution to 

nonattainment and maintenance 

problems in other States under section 

110(a)(2)(D). On March 10, 2005, EPA 

officially notified States that they have 

failed to submit SIPs to satisfy this 

requirement of the CAA with respect to 

the 8-hour ozone and PM2.5 NAAQS (70 

FR 21147; April 25, 2005). The finding 

starts a 2-year clock for EPA to issue a 

final Federal Implementation Plan (FIP) 

that will address the requirements of 

section 110(a)(2)(D) unless a SIP 

revision correcting the deficiency is 

approved by EPA before the FIP is 

promulgated. The EPA plans to issue 

guidance regarding how States could 

satisfy the section 110(a)(2)(D) 

requirement. For States affected by 

CAIR, an approved SIP responding to 

the CAIR would satisfy the requirement 

and turn off the FIP clock. 

C. How will we address transport of 

ground-level ozone and its precursors 

for rural nonattainment areas, areas 

affected by intrastate transport, and 

areas affected by international 

transport? 

[Section VI.G. of June 2, 2003 

proposed rule (68 FR 32828); no draft or 

final regulatory text.] 11 

1. Rural Transport Nonattainment Areas 

a. Background 

In the June 2, 2003 proposal, we noted 

that section 182(h) of the CAA (under 

subpart 2) recognizes that the ozone 

problem in a rural transport area is 

almost entirely attributable to emissions 

from upwind areas. This section 

provides that the only requirements 

applicable to an area classified under 

subpart 2 that we determine is a rural 

transport area are the minimal 

requirements specified for marginal 

areas, i.e., those areas expected to attain 

within 3 years after designation. The 

timing for attainment for these areas 

will depend on the schedule for 

adoption and implementation of control 

measures in the upwind areas. We did 

not propose any revision to current 

policy and practices related to the rural 

transport area provisions under section 

182(h). 

b. Summary of Final Rule 

The final rule does not contain any 

revisions to current policy on rural 

transport areas under section 182(h).12 

c. Comments and Responses 

Comment: Several commenters 

favored the proposed approach of not 

revising our current policies with regard 

to subpart 2 areas that meet the criteria 

for being a rural transport area under 

section 182(h). 

Response: We agree with these 

comments. 

Comment: Several commenters urged 

us to provide more flexibility such as 

extending the provision to other areas 

whose problems are caused by transport 

but that do not qualify as rural under 

section 182(h). 

Response: These commenters did not 

suggest any legal mechanism for 

11 This section of the proposal also addressed 

multi-State nonattainment areas. The discussion of 

multi-State nonattainment areas is now covered 

under the discussion below on attainment 

demonstrations and modeling. 

12 Based on current information, we do not 

believe there are any 8-hour nonattainment areas 

covered under subpart 2 that are ‘‘rural’’ and 

therefore eligible for consideration for coverage 

under section 182(h). Existing policy on rural 

transport areas includes the ‘‘General Preamble for 

the Implementation of Title I of the Clean Air Act 

Amendments of 1990; Proposed Rule,’’ April 16, 

1992 (57 FR 13505). 

granting the flexibility provided under 

section 182(h) to areas that do not 

qualify as rural under section 182(h). 

We have not found any such legal 

mechanism and, therefore, the final rule 

does not extend the flexibility provided 

under section 182(h) to additional areas. 

2. Intrastate Transport 

a. Background 

In the proposed rule, we noted that a 

number of State air agency 

representatives had voiced concern 

about intrastate transport of ozone and 

precursor emissions and asked EPA to 

address this concern. We indicated that 

the CAA requires individual States, as 

an initial matter, to deal with intrastate 

transport. We also pointed out that a 

State could recommend designation of 

nonattainment areas that are large 

enough to encompass upwind and 

downwind areas of the State and require 

that the individual jurisdictions work 

together on an attainment plan that 

accounts for transport and results in 

attainment by the attainment date for 

the entire nonattainment area. We also 

solicited comments on other ways of 

addressing intrastate transport within 

the context of the CAA provisions. 

b. Summary of Final Rule 

The final rule does not contain any 

additional provisions for addressing 

intrastate transport for the reasons 

stated in the proposal. However, as 

indicated in the Phase 1 Rule published 

on April 30, 2004, for subpart 1 areas, 

States and EPA could consider intrastate 

transport in determining the attainment 

date for an area.13 In identifying the 

appropriate attainment date for an area, 

the State should consider measures to 

address intrastate transport of pollution 

from sources within its jurisdiction. 

c. Comments and Responses 

Comment: Two commenters 

recommended that States have 

regulatory authority to require controls 

as necessary regarding the problem of 

intrastate transport. They asserted that 

nonattainment areas should work with 

upwind contributing areas within the 

State to address regional transport 

within the State. 

Response: As provided in the 

proposed rule (68 FR 32829), we agree 

with the commenters that States have 

the obligation and authority to address 

the transport of pollution from one area 

13 Intrastate transport also could be considered in 

determining the attainment date that is as 

expeditious as practicable for subpart 2 areas, but 

if the date were later than allowed for the area’s 

classification, the State would need to request 

bump-up of the area to a higher classification for 

that date to be approved. 

71624 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

of the State to a different area of the 

State. 

Comment: Several comments 

recommended an intrastate transport 

classification. 

Response: Our response to those 

comments is in the response to 

comment document for the Phase 1 Rule 

of April 30, 2004. (Docket document 

OAR–2003–0079–0717; p. 68.) 

3. How will EPA address transport of 

ground-level ozone and its precursors 

for areas affected by international 

transport? 

a. Background 

As discussed in the proposal, 

international transboundary transport of 

ozone and ozone precursors can 

contribute to exceedances of the 

NAAQS. It is possible that the 

international transport of air pollutants 

may affect the ability of some areas to 

attain and maintain the 8-hour ozone 

NAAQS. Section 179B of the CAA 

(International Border Areas), applies to 

nonattainment areas that are affected by 

emissions emanating from outside the 

United States. This provision requires 

EPA to approve a SIP for an ozone 

nonattainment area if it meets all of the 

requirements applicable under the CAA, 

other than a requirement that the area 

demonstrate attainment and 

maintenance of the ozone NAAQS by 

the applicable attainment date, and the 

State establishes to EPA’s satisfaction 

that the SIP would be adequate to attain 

and maintain the ozone NAAQS by the 

applicable attainment date but for 

emissions emanating from outside the 

United States. The preamble to the 

proposed rule recommended that States 

should confer with the appropriate EPA 

Regional Office to establish on a caseby-case basis the technical requirements 

for these analyses. 

b. Final Rule 

As in the proposal, we are not setting 

forth any regulatory provisions related 

to international transport. Section 179B 

of the CAA applies for these purposes. 

We continue to recommend that States 

confer with the appropriate EPA 

Regional Office to establish on a caseby-case basis the technical requirements 

for analyses to support showings under 

section 179B. These analyses will be 

subject to public comment during the 

State and Federal SIP processes. 

c. Comments and Responses 

Comment: Several commenters 

addressed the discussion of 

international transport in the proposed 

rule. Two commenters suggested that 

EPA is placing too high a burden on 

States to make a demonstration that a 

nonattainment area would attain but for 

international transport (e.g., assessing 

emissions from foreign countries). These 

commenters stated that EPA has the 

appropriate resources and technical 

expertise to evaluate international 

transport and highlighted certain data 

EPA has gathered and modeling EPA 

has performed. The commenters 

suggested that EPA should re-evaluate 

relevant policies regarding section 179B 

of the CAA to ensure they are 

streamlined and not unnecessarily 

burdensome on States in making an 

international transport demonstration. 

Another commenter thought that the 

proposed rule does not adequately 

address ozone from international 

sources, especially in a situation where 

a State does not have jurisdiction over 

most of the significant sources of ozone 

or access to available data for modeling 

in that region. Another commenter 

encouraged EPA to expand its view of 

the applicability of section 179B and 

allow consideration of the impact on 

attainment of smoke from crop burning 

activities in Southern Mexico and 

Central America. 

Response: The CAA, not EPA’s 

proposed rule, places the burden on 

States to demonstrate that an area would 

be able to attain but for emissions from 

sources located outside the United 

States. However, EPA agrees with the 

commenters that EPA has been 

performing numerous activities that will 

provide data that States may be able to 

rely on as they develop these 

demonstrations. We recognize that 

adequate data for foreign sources may 

not be available to States. Therefore, 

modeling, according to the modeling 

guidance for attainment demonstrations, 

may not be possible in all cases. 

Because the availability of information 

and the causes of international pollution 

vary significantly from one area to 

another, EPA continues to believe that 

the best approach for addressing 

international transport is for States to 

work with EPA on an area-by-area basis 

to determine what is the best available 

information and the best method for 

analysis that fits the unique situation for 

each area. 

Regarding consideration under 

section 179B of the impact on 

attainment of smoke from crop burning 

activities in Southern Mexico and 

Central America, in many cases it may 

not be possible to confidently quantify 

the impacts to the total ozone loadings 

from individual foreign sources that are 

hundreds or even thousands of miles 

from the U.S. border. Particularly since 

1998, when spring fires in Mexico and 

Central America were very severe, EPA 

has received much information about 

the potential impacts from such 

occurrences on ozone and PM levels in 

the United States. A prime lesson 

learned from those experiences is that a 

well-designed, detailed analysis is 

required before one can estimate the 

degree of influence from such fires. In 

many cases, sufficient data will not exist 

to draw such a conclusion. Case-by-case 

consultation between EPA and the State 

will help determine how best to 

consider this information in attainment 

planning. 

With respect to the applicability of 

section 179B to areas affected by 

emissions from very distant, foreign 

sources, EPA currently has not taken a 

position. If and when there are any SIP 

submittals that request a section 179B 

dispensation on such a basis, EPA will 

examine those submittals on a case-bycase basis, including focusing on the 

sufficiency of the technical 

demonstration, in order to make a 

determination of section 179B 

applicability. 

The EPA considers international 

transport of pollution an important 

issue. The EPA is engaged in several 

international efforts that will allow us to 

better understand the linkages between 

air pollution sources in other countries 

and their impacts on public health and 

air quality in the United States. The 

EPA has cooperative agreements with 

both Canada and Mexico to investigate 

international border transport. The 

information generated by these 

partnerships will assist States in 

evaluating international transport 

affecting 8-hour nonattainment areas. 

D. How will EPA address 

requirements for modeling and 

attainment demonstration SIPs for areas 

implementing the 8-hour ozone 

standard? 

[Section VI.H. of June 2, 2003 

proposed rule (68 FR 32830); § 51.908 in 

draft and final regulatory text.] 

As noted in the proposal, an 

attainment demonstration SIP consists 

of (1) technical analyses to locate and 

identify sources of emissions that are 

causing violations of the 8-hour NAAQS 

within nonattainment areas (i.e., 

analyses related to the emissions 

inventory required for the 

nonattainment area), (2) adopted 

measures with schedules for 

implementation and other means and 

techniques necessary and appropriate 

for attainment, (3) commitments, in 

some cases, to perform a mid-course 

review (MCR), and (4) contingency 

measures required under section 

172(c)(9) of the CAA that can be 

implemented without further action by 

the State or the Administrator to cover 

failures to meet RFP milestones and/or 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71625 

attainment. The final rule retains three 

of these four elements, the exception 

being the requirement for a commitment 

to perform a MCR. As noted below, EPA 

will assess whether a MCR is needed on 

a case-by-case basis in reviewing 

individual attainment demonstrations. 

In the Phase 1 Rule, § 51.908 

contained only the requirement related 

to the timing of implementation of the 

emissions reductions needed for 

attainment. In today’s final rule, that 

provision is retained as paragraph (d) of 

§ 51.908, and other requirements related 

to modeling and attainment 

demonstrations appear in the remaining 

paragraphs of § 51.908. 

In the proposal, we also solicited 

public comment on the guidance related 

to multi-pollutant assessments (as 

discussed below), areas with earlier and 

later attainment dates, MCR, modeling 

guidance, and multi-State 

nonattainment areas. These topics are 

discussed below. Associated with the 

attainment demonstration also are the 

RFP/ROP plans and the SIP submission 

concerning RACM, both of which we 

discussed elsewhere in the preamble to 

the proposed rule and which are 

discussed in later sections of this 

preamble. 

1. Areas With Early Attainment Dates 

a. Background 

The proposal noted that under section 

182(a), marginal areas, which have a 

maximum attainment date of 3 years 

after designation, are not required to 

perform a complex modeling analysis 

using photochemical grid modeling. We 

noted that areas covered under either 

subpart 1 or 2 with ozone 

concentrations close to the level of the 

NAAQS [e.g., within 0.005 parts per 

million (ppm)] 14 will most likely come 

into attainment within 3 years after 

designation as nonattainment without 

any additional local planning as a result 

of national and/or regional emission 

control measures that are scheduled to 

occur. We noted that regional scale 

modeling for national rules, such as the 

NOX SIP Call and Tier II motor vehicle 

tailpipe standards, projects major ozone 

benefits for the 3-year period of 2004– 

2006. Attainment for many areas 

classified as marginal is further 

indicated by subsequent modeling used 

to support the CAIR. This 3-year period 

coincides with the period that would be 

used to determine whether an area 

attains the 8-hour standard within 3 

14 Even though the June 2, 2003 proposal 

contained the reference to the 0.005 ppm criterion, 

the draft regulatory text issued for public comment 

did not contain a reference to this criterion. 

years after designation for areas 

classified as marginal. 

If existing modeling for a marginal 

area does not indicate the area will 

attain with the current planned control 

measures, EPA encouraged the areas to 

request reclassification to moderate and 

encouraged the State or Tribe to develop 

an attainment demonstration using 

photochemical grid modeling. (See 68 

FR 32831; June 2, 2003.) Even though 

modeling is not required, it may be 

prudent. 

In the proposal, we noted that many 

subpart 1 areas are projected through 

regional modeling to come into 

attainment within 3 years after 

designation with current control 

programs. Therefore, we proposed that 

no additional modeled attainment 

demonstration would be required for 

areas with air quality observations close 

to the level of the standard and where 

regional or national modeling exists that 

is appropriate for use to demonstrate the 

area will attain the 8-hour standard 

within 3 years after designation (i.e., 

based on data from 2004–2006). 

We proposed that areas subject only 

to subpart 1 may request an attainment 

date no later than 3 years following 

designation for the 8-hour NAAQS by 

submitting within 1 year of the 

designation a SIP that demonstrates the 

area will attain within 3 years following 

designation. The demonstration must 

include modeling results and analyses 

that the State is relying on to support its 

claim. Such modeling must be 

consistent with EPA guidance and must 

be appropriate for the area. 

b. Summary of Final Rule 

Although we proposed that subpart 1 

areas requesting an attainment date 

within 3 years after designation should 

submit their attainment demonstration 

within 12 months, we have removed 

that provision from the final rule. A 

subpart 1 area is free to choose to 

submit its attainment demonstration at 

any time prior to the 3-year due date.15 

As is the case with all required 

attainment demonstrations, the 

demonstration must be submitted no 

later than 3 years following designation 

and must be appropriate for use in the 

area. We anticipate that most subpart 1 

areas will be included in the modeling 

analyses conducted by areas with later 

15 The EPA notes that 8-hour ozone 

nonattainment areas are also free to develop early 

SIPs with motor vehicle emissions budgets for 

transportation conformity purposes in advance of a 

complete SIP attainment demonstration. For more 

information on establishing an early 8-hour ozone 

SIP and how it could be used for conformity, please 

refer to EPA’s July 1, 2004, conformity final rule (69 

FR 40019). 

attainment dates. States are encouraged 

to use these available analyses, as well 

as future EPA national or regional 

modeling. The demonstration must 

include modeling results and analyses 

that the State or Tribe is relying on to 

support its claim. Such modeling 

should be consistent with EPA guidance 

and should be applicable and 

appropriate for the area.16 If acceptable 

available modeling does not 

demonstrate attainment, the area would 

need to submit a local modeled 

attainment demonstration. 

c. Comments and Responses 

Comment: Several commenters 

recommended that the requirement for 

attainment demonstrations from all 

subpart 1 areas be eliminated. 

Response: Section 172(c)(1) clearly 

requires that nonattainment areas 

‘‘* * * shall provide for attainment of 

the national primary ambient air quality 

standards.’’ To meet this requirement, a 

State must demonstrate that the area 

will attain by a specified date and 

identify and adopt the control measures 

that will bring the area into attainment. 

We see no authority for waiving this 

requirement for areas. 

Comment: What are the requirements 

for subpart 1 areas requesting 

attainment dates within 3 years of 

designation? 

Response: Subpart 1 areas must 

submit their attainment demonstrations 

within 3 years after designation. 

2. Areas With Later Attainment Dates 

a. Background 

For areas with attainment dates of 

more than 3 years after designation, 

regardless of whether they are covered 

under subpart 1 or subpart 2 (except 

marginal areas), we proposed to require 

them to submit an attainment 

demonstration SIP. This proposal was 

reflected in § 51.908(b) and (c) of the 

draft regulatory text. We stated that 

local, regional and national modeling 

developed to support Federal or local 

controls could be used provided the 

modeling is consistent with EPA’s 

modeling guidance. Several States have 

invested considerable time and 

resources in regional 8-hour ozone 

modeling projects following this 

guidance. Where exceedances of the 8-

hour ozone standard are more pervasive 

and widespread than they were for the 

1-hour ozone standard, we 

recommended that States work together 

in multi-State modeling efforts and 

16 If an assessment indicates that a regional 

modeling analysis is not applicable to a particular 

nonattainment area, additional local modeling 

would be required. 

71626 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

leverage off work under development 

and resources spent on these projects. 

b. Summary of Final Rule 

Subpart 1 areas with attainment dates 

later than 3 years after designation and 

areas classified as moderate or higher 

under § 51.903, are required to submit 

an attainment demonstration no later 

than 3 years after the effective date of 

designation for the 8-hour ozone 

NAAQS. Areas with an effective date of 

designation of June 15, 2004 are 

required to submit an attainment 

demonstration no later than June 15, 

2007. These demonstrations must be 

consistent with section 51.112, 

including appendix W. In addition, for 

the review of technical adequacy, we 

will generally rely on our most recent 

modeling guidance at the time the 

modeled attainment demonstration is 

performed. We will be making available 

a final version of the modeling guidance 

related to developing attainment 

demonstrations for the 8-hour ozone 

standard.17 

Areas required to submit an 

attainment demonstration are 

encouraged to follow the procedures 

described in this guidance. Local, 

regional and national modeling 

developed to support Federal or local 

controls generally may be used provided 

the modeling is consistent with EPA’s 

modeling guidance at the time the 

modeled attainment demonstration is 

performed.18 

c. Comments and Responses 

We received no comments on this 

topic per se; comments on the timing of 

submission of attainment 

demonstrations is discussed elsewhere. 

We noted in the proposal that comments 

on the modeling guidance were 

welcome at any time and that we would 

consider those comments in any future 

revision of that document. We noted 

that comments submitted on the 

modeling guidance document would not 

be docketed as part of this rulemaking, 

17 U.S. EPA, (November 4, 2005), Guidance on the 

Use of Models and Other Related Analyses in 

Attainment Demonstrations for the 8-Hour Ozone 

NAAQS, EPA–454/R–05–002, http://www.epa.gov/ 

ttn/scram, (Modeling Guidance, File name: ozonefinal.pdf). 

18 The guidance may not apply to a particular 

situation, depending upon the circumstances. The 

EPA and State decision makers retain the discretion 

to adopt approaches on a case-by-case basis that 

differ from this guidance where appropriate. Any 

decisions by EPA regarding a particular SIP 

demonstration will only be made based on the 

statute and regulations, and will only be made 

following notice and opportunity for public review 

and comment. Therefore, interested parties will be 

able to raise questions and objections about the 

contents of this guidance and the appropriateness 

of its application for any particular situation. 

nor would a comment/response 

summary of these comments be a part of 

the final 8-hour ozone implementation 

rule since they will not affect the rule 

itself. We will address those comments 

at the time we issue the final modeling 

guidance. 

3. Multi-State Nonattainment Areas 

a. Background 

As discussed in the June 2003 

proposal, section 182(j) of the CAA 

defines a multi-State ozone 

nonattainment area as an ozone 

nonattainment area, portions of which 

lie in two or more States. Section 

182(j)(1)(A) and (B) set forth certain 

requirements for such areas. First, each 

State in which a multi-State ozone 

nonattainment area lies must take all 

reasonable steps to coordinate the 

implementation of the required 

revisions to SIPs for the given 

nonattainment area [section 

182(j)(1)(A)]. Next, section 182(j)(1)(B) 

requires the States to use photochemical 

grid modeling or any other equally 

effective analytical method approved by 

us for demonstrating attainment. We are 

prevented by section 182(j) from 

approving any SIP revision submitted 

under that section if a State has failed 

to meet the above requirements. 

To address the provisions of section 

182(j)(1)(A), States that include portions 

of a multi-State ozone nonattainment 

area should develop a joint work plan 

as evidence of early cooperation and 

integration. The work plan should 

include a schedule for developing the 

emissions inventories, and the 

attainment demonstration for the entire 

multi-State area. Each State within a 

multi-State ozone nonattainment area is 

responsible for meeting all the 

requirements relevant to the given area. 

Care should be taken to coordinate 

strategies and assumptions in a modeled 

area with those in other, nearby 

modeled areas in order to ensure that 

consistent, plausible strategies are 

developed. 

Section 182(j)(2) for multi-State 

nonattainment areas recognizes that one 

State may not be able to demonstrate 

attainment for the nonattainment area if 

other States in which portions of the 

nonattainment area are located do not 

adopt and submit the necessary 

attainment plan for the area. In such 

cases, even though the area as a whole 

would not have an approvable 

attainment demonstration, the sanction 

provisions of section 179 will not apply 

in the portion of the nonattainment area 

located in a State that submitted an 

attainment plan. 

b. Summary of Final Rule 

As discussed in the proposal, State 

partners involved in a multi-State ozone 

nonattainment area must work together 

to perform the appropriate modeling 

analyses to identify control measures 

that will enable the area to achieve 

attainment as expeditiously as 

practicable. Each State will be 

responsible for its portion of the control 

program and therefore will be held 

accountable for controls identified for 

implementation within its State 

boundaries. The modeling analyses 

should encompass the entire multi-State 

nonattainment area as well as adjacent 

counties which may contribute to the 

nonattainment problem. State plans 

should address local transport within 

the region and its contribution to 

nonattainment in the multi-State area. 

Consideration of long-range transport 

and its contributions to nonattainment 

is discussed in section IV.B. of this 

preamble. Multi-State nonattainment 

areas are subject to the same modeling 

and attainment demonstration 

requirements of the final rule that apply 

to all other areas. Marginal multi-State 

nonattainment areas do not have to 

submit a modeled attainment 

demonstration because section 182(a) 

exempts marginal areas from the 

requirement to submit an attainment 

demonstration. 

c. Comments and Responses 

Comment: Several commenters 

encouraged us to clearly define in the 

rule how multi-State nonattainment 

areas will be treated if all or a portion 

of an area is subject only to subpart 1. 

One of these commenters requested a 

clarification that photochemical grid 

modeling will not be required for multiState areas classified under subpart 1 or 

areas that are classified as marginal. The 

commenter’s reasoning was that such 

modeling is unnecessary since they are 

close to achieving the 8-hour NAAQS 

and will be in attainment before the 

modeling can be completed. 

Response: We agree with these 

commenters that since section 182(a) 

exempts marginal areas from the 

requirement to submit an attainment 

demonstration, such areas need not 

develop an attainment demonstration. 

Section 182(j) of the CAA requires that 

multi-State areas use photochemical 

grid modeling as part of their attainment 

demonstrations while Section 172 

(Subpart 1 areas) of the CAA does not 

explicitly require photochemical grid 

modeling. For subpart 1 areas that do 

not seek an attainment date of 3 years 

or less after designation, we make no 

distinction between multi-State and 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71627 

single-State subpart 1 nonattainment 

areas. All subpart 1 nonattainment areas 

are required to submit an attainment 

demonstration that relies on 

photochemical grid modeling, either 

one that has already been performed 

that is appropriate for use in the area, 

or a new one. We do not believe that 

techniques other than those based on 

photochemical grid modeling will 

provide credible assurance that an area 

will achieve the 8-hour ozone standard 

by the area’s attainment date. 

Comment: One commenter requested 

that we perform the modeling for multiState areas. Two commenters stated that 

if any additional photochemical 

modeling is required for such areas 

pursuant to CAA 182(j)(1)( B), then EPA 

should refine previous modeling; 

perform new modeling; or approve a 

less resource-intensive, alternate 

method that fulfills the requirement. 

The commenters asserted that we 

should assist the States in coordinating 

the development of the attainment/ 

maintenance plans and ensure that areas 

involving multiple EPA Regions are not 

hampered by jurisdictional conflicts and 

inconsistencies. 

Response: The EPA has conducted, 

and will continue to conduct, regional 

and national scale modeling that covers 

most of the ozone nonattainment areas. 

Both single State and multi-State 

nonattainment areas will be able to 

make use of EPA modeling, where 

appropriate. The EPA will work with 

States to determine the steps necessary 

for the proper use of EPA modeling in 

a local attainment demonstration. States 

that plan to use EPA modeling in lieu 

of local modeling should be prepared to 

justify the local use of the regional 

projections as well as conduct 

additional analyses to monitor progress 

towards attainment. The EPA will 

continue to work with States to 

coordinate the development of 

consistent attainment/maintenance 

plans. 

4. Role of Modeling Guidance in 

Attainment Demonstrations 

a. Background 

The proposal noted that section 

182(b)(1)(A) requires ozone 

nonattainment areas to develop an 

attainment demonstration which 

provides for reductions in VOC and 

NOX emissions ‘‘as necessary to attain 

the national primary ambient air quality 

standard for ozone.’’ Section 172(c), 

requires areas covered under subpart 1 

to demonstrate attainment. For a subpart 

1 area that does not qualify for an 

attainment date within 3 years after 

designation, we proposed to require the 

State to develop and submit a modeled 

attainment demonstration.19 

We noted that section 182(c)(2)(A) 

provides that for serious and higherclassified areas the ‘‘attainment 

demonstration must be based on 

photochemical grid modeling or any 

other analytical method determined by 

the Administrator, in the 

Administrator’s discretion, to be at least 

as effective.’’ A photochemical grid 

model should meet several general 

criteria for it to be a candidate for 

consideration in an attainment 

demonstration. We noted that, unlike in 

previous guidance,20 we did not 

propose recommending a specific 

photochemical grid model for use in the 

attainment demonstration for the 8-hour 

NAAQS for ozone. At present, there is 

no single model which has been 

extensively tested and shown to be 

clearly superior or easier to use than 

other available models. Criteria for 

attainment demonstrations are 

contained in 40 CFR 51.112, including 

appendix W (i.e., ‘‘EPA’s Guideline on 

Air Quality Models,’’ 68 FR 18440, 

April 15, 2003). Appendix W refers to 

EPA’s ‘‘Use of Models and Other 

Analyses in Attainment Demonstrations 

for the 8-Hour Ozone NAAQS’’ and lists 

a set of general requirements that an air 

quality model should meet to qualify for 

use in an attainment demonstration for 

the 8-hour ozone NAAQS.21 The 

proposal described alternatives 

available to the States and the scope and 

coverage of the draft guideline. The 

draft regulatory text of 2003 addressed 

this requirement in § 51.908(d). 

We noted that we were planning to 

make substantial changes to the draft 

version of this document before 

finalizing the attainment demonstration 

aspects of the implementation rule. We 

said we welcomed public comments on 

the guidance at any time and would 

consider those comments in any future 

revision of the document. However, we 

said we would not consider comments 

19 As noted above in the discussion of subpart 1 

areas with early attainment dates, although the draft 

regulatory text in § 51.908(a) was structured such 

that no attainment demonstration was needed for 

subpart 1 areas that received an attainment date 

within 3 years after the effective date of the 

nonattainment designation, this was misleading, 

since the draft § 51.904(b)(2) provision that affected 

these areas required submission of a demonstration 

of attainment within 3 years after designation. The 

final regulatory text in § 51.908(b) clarifies this 

point. 

20 U.S. EPA, (1991), Guideline for Regulatory 

Application of the Urban Airshed Model, EPA–450/ 

4–91–013. Available at: http://www.epa.gov/ 

scram001/tt25.htm; see document DRAFT8HR. 

21 U.S. EPA, (May 1998), Draft Guidance on the 

Use of Models and Other Analyses in Attainment 

Demonstrations for the 8-Hour Ozone NAAQS, 

EPA–454/R–99–004, http://www.epa.gov/ttn/scram, 

(Modeling Guidance, File name: DRAFT8HR). 

on the technical merits of the modeling 

guidance in this present rulemaking. 

b. Summary of Final Rule 

The final rule [§ 51.908(c)] requires 

each attainment demonstration to be 

consistent with the provisions of 

§ 51.112, including appendix W to 40 

CFR part 51. In addition, we will 

generally review the demonstrations for 

technical merit using EPA’s most recent 

modeling guidance at the time the 

modeling relied on in the attainment 

demonstration is performed. This 

guidance will generally have the State 

provide (1) technical analyses to locate 

and identify sources of emissions that 

are causing violations of the 8-hour 

NAAQS within nonattainment areas, (2) 

adopted measures with schedules for 

implementation and other means and 

techniques necessary and appropriate 

for attainment that are needed for 

attainment, with implementation no 

later than the beginning of the 

attainment year ozone season 22 (e.g., 

prior to 2009 ozone season for areas 

with June 15, 2010 attainment dates), 

and (3) contingency measures required 

under section 172(c)(9) of the CAA that 

can be implemented without further 

action by the State or the Administrator 

to cover emissions shortfalls in RFP 

plans and failures to attain. 

c. Comments and Responses 

Comment: One commenter 

recommended that EPA must ensure 

that attainment demonstrations are 

based on scientifically valid regional 

airshed modeling rather than 

scientifically invalid linear proportional 

rollback and weight-of-evidence 

methods. 

Response: Criteria for attainment 

demonstrations are contained in 40 CFR 

51.112, including appendix W (i.e., 

‘‘EPA’s Guideline on Air Quality 

Models,’’ 68 FR 18440, April 15, 2003). 

Appendix W cites EPA’s ‘‘Use of Models 

and Other Analyses in Attainment 

Demonstrations for the 8-Hour Ozone 

NAAQS’’ and describes a set of general 

criteria that an air quality model and its 

application should meet to qualify for 

use in an attainment demonstration for 

the 8-hour ozone NAAQS.23 The draft 

guidance was developed through a 

collaborative process, which included 

review from the scientific community, 

and it has been revised to reflect recent 

review comments. The procedures 

described are considered a scientifically 

22 See 40 CFR 51.900(g) for definition. 

23 U.S. EPA, (1998), Draft Guidance on the Use of 

Models and Other Analyses in Attainment 

Demonstrations for the 8-Hour Ozone NAAQS, 

EPA–454/R–99–004, http://www.epa.gov/ttn/scram, 

(Modeling Guidance, File name: DRAFT8HR). 

71628 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

valid use of regional and urban airshed 

modeling. The modeled attainment test 

makes use of the model derived 

relationship between ozone and its 

precursors. It does not, as is the case 

with proportional rollback, assume 

equal proportions of the precursors will 

provide an equally proportional 

reduction in ozone. For example, it does 

not assume that 20 percent reduction in 

precursors will provide 20 percent 

improvement in ozone. 

The guidance also identifies 

additional data which, if available, 

should enhance the credibility of model 

results and results of other analyses 

used in a weight of evidence 

determination. The EPA believes use of 

weight of evidence is appropriate as do 

many in the scientific community. 

Weight of evidence is a credible 

approach for considering inherent 

uncertainties in a modeling application. 

As noted above, we will be making 

available a final version of the modeling 

and attainment demonstration guidance 

for the 8-hour ozone standard.24 

Comment: All attainment 

demonstrations should be subject to the 

same rigorous standards. 

Response: The EPA envisions that the 

final 8-hour ozone modeling guidance 

will be available for use by the majority 

of subpart 1 areas and subpart 2 areas 

classified as moderate and above. 

However, due to the unique nature of 

the ozone problem in many areas, EPA 

will accept various applications of the 

guidance. Although EPA anticipates all 

areas will follow the guidance closely, 

there will be variation based on 

availability of new and improved data 

methods and field study data. The EPA 

is always striving to make best use of 

available data and improvements in 

methodologies as the science and our 

understanding of ozone formation and 

transport in different parts of the 

country increases. Unique to many areas 

is the source receptor configuration, 

level of precursor data collected and the 

model’s ability to simulate unique 

factors influencing the formation and 

transport of ozone. As more information 

becomes available in particular areas, 

EPA expects more rigorous 

demonstrations will be provided. Areas 

close to attaining the standard for which 

there is a better understanding of the 

meteorology and the relationships 

between precursor emissions and ozone 

may not require as much rigor. These 

decisions will be made on a case-bycase basis and the public will be able to 

24 U.S. EPA, (2005), Guidance on the Use of 

Models and Other Related Analyses in Attainment 

Demonstrations for the 8-Hour Ozone NAAQS, 

EPA–454/R–05–002, http://www.epa.gov/ttn/scram, 

(Modeling Guidance, File name: ozone-final.pdf). 

express their views during the State SIP 

development and EPA review process. 

Comment: The EPA cannot adopt or 

change the Draft Guidance, use it for 

regulatory purposes, or require States to 

use it for regulatory purposes, without 

subjecting it to separate notice-andcomment rulemaking. 

Response: The final rule [§ 51.908(c)] 

requires each attainment demonstration 

to be consistent with the provisions of 

40 CFR 51.112, including appendix W. 

However, we are not adopting the 

Guidance as a rule. The EPA plans to 

use the current (2005) guidance and 

future updates as a benchmark for 

reviewing the technical analysis 

submitted in support of 8-hour ozone 

attainment demonstrations. The 

guidance document is not a regulation. 

Therefore, it does not impose binding, 

enforceable requirements on any party, 

and may not apply to a particular 

situation based upon the circumstances. 

The EPA and State decision makers 

have the discretion to adopt approaches 

on a case-by-case basis that differ from 

this guidance where appropriate. Any 

decisions by EPA regarding adequacy of 

a particular SIP to meet the 8-hour 

ozone NAAQS will be based on the 

CAA and our regulations. Therefore, 

interested parties are free to raise 

questions and objections about the 

appropriateness of the application of 

this guidance to a particular situation 

during the State SIP development and 

EPA review process. 

Comment: One commenter requested 

an opportunity to review and comment 

on the revised guidance prior to the 

‘‘final’’ release. 

Response: States, Tribes and others 

were given an opportunity to comment 

on the revised draft guidance prior to 

release. Also, EPA received additional 

comments on the draft guidance during 

the comment period on the 

implementation rule. The EPA has 

reviewed and considered the comments 

and will be releasing the final guidance. 

For more information and updates to the 

modeling guidance for ozone, visit 

EPA’s Technology Transfer Network 

Support Center for Regulatory Air 

Models (TTN/SCRAM) on the Internet, 

http://www.epa.gov/ttn/scram/. Even 

though the guidance will be issued in 

final form shortly, EPA is always open 

to suggestions for future improvements 

to the guidance, including the 

incorporation of methodologies and 

procedures that increase accuracy and 

credibility of results. Such suggestions 

may be made to EPA regional or 

headquarters modeling contacts listed at 

the above TTN/SCRAM web site. 

Comment: The EPA should carefully 

consider the resources that will be 

needed to perform the requisite 

modeling for multiple areas in many 

States. 

Response: States/Tribes are 

encouraged to share and leverage 

resources currently being used in 

regional model applications that affect 

multiple areas. There is much 

opportunity for common use of data and 

methodologies among the modeling 

requirements for the regional haze 

program, the PM2.5 attainment 

demonstrations and the ozone 

attainment demonstrations that should 

make the overall exercise less onerous. 

States and Tribes are encouraged to 

model multiple precursor strategies for 

multiple areas and review their efficacy 

for all three programs. 

Comment: Any photochemical grid 

model utilized must either be in the 

public domain or licensed for unlimited 

use by any person for purposes of 

modeling within the area. 

Response: The EPA modeling 

guidance supports this comment which 

is addressed in section 10 of the 

modeling guidance. ‘‘Applicable 

models’’ may be used, if they are nonproprietary. A ‘‘non-proprietary’’ model 

is one whose source code is available for 

free or for a reasonable cost. Further, the 

user must be free to revise the code to 

perform diagnostic analyses and/or to 

improve the model’s ability to describe 

observations in a credible manner. 

Comment: One commenter 

recommended that EPA update its 

guidance in 40 CFR 51, appendix W to 

include a discussion of the role of 

weight-of-evidence as part of a modeling 

demonstration, and to make any updates 

in appendix W subject to public review. 

Response: In regard to the role of 

weight of evidence, EPA does not plan 

to revise appendix W. Use of weight of 

evidence is dependent on local 

information only available when the 

technical analysis for a specific model 

application is under development. 

Therefore, use of weight of evidence is 

considered on a case-by-case basis as 

the appropriate Regional Office works 

with the State as it develops its SIP and 

during the State adoption process and 

during EPA’s SIP approval process. Any 

weight of evidence analysis is available 

for public review. 

5. Mid-Course Review (MCR) 

a. Background 

The proposal noted that a MCR 

provides an opportunity to assess 

whether a nonattainment area is or is 

not making sufficient progress toward 

attainment of the 8-hour ozone 

standard, as predicted in its attainment 

demonstration. We noted that a 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71629 

commitment to perform a MCR is a 

critical element of an attainment 

demonstration that employs a long-term 

projection period and relies on weight 

of evidence. Because of the uncertainty 

in long-term projections, we said we 

believed such attainment 

demonstrations need to contain 

provisions for periodic review of 

monitoring, emissions, and modeling 

data to assess the extent to which 

refinements to emission control 

measures are needed. 

A number of States participated in a 

consultative process with EPA, which 

resulted in the development of the 1-

hour MCR guidance.25 We noted that we 

would update the 1-hour MCR policy 

and technical guidance to include 8-

hour metrics and that we were soliciting 

comment on appropriate revisions. We 

proposed that the final MCR guidance 

incorporating 8-hour metrics would be 

available at the time we issue our final 

implementation rule. 

The proposal briefly described the 

procedure for performing a MCR. The 

proposal noted that States would not 

have to commit in advance to adopt new 

control measures as a result of the MCR 

process. Based on the MCR, if we 

determine sufficient progress has not 

been made, we would determine 

whether additional emissions 

reductions are necessary from the 

State(s) in which the nonattainment area 

is located or upwind States or both. We 

would then require the appropriate 

State(s) to adopt and submit new 

measures to bring about the necessary 

emissions reductions within a specified 

period. We anticipated that these 

findings would be made as calls for SIP 

revisions under section 110(k)(5) and, 

therefore, the period for submission of 

the measures would be no longer than 

18 months after the EPA finding. Thus, 

we proposed that States complete the 

MCR 3 or more years before the 

applicable attainment date to ensure 

that any additional controls that may be 

needed can be adopted in sufficient 

time to reduce emissions by the start of 

the ozone season in the attainment year. 

b. Summary of Final Rule 

The final regulatory text does not 

contain a requirement for the MCR. In 

reviewing attainment demonstrations 

from individual States, however EPA 

will assess the need for a MCR for areas 

with an attainment date beyond 6 years 

25 Memorandum of March 28, 2002, from Lydia N. 

Wegman and J. David Mobley, re: ‘‘Mid-Course 

Review Guidance for the 1-Hour Ozone 

Nonattainment Areas that Rely on Weight-ofEvidence for Attainment Demonstration.’’ Located 

at URL: http://www.epa.gov/scram001/guidance/ 

guide/policymem33d.pdf. 

after the effective date of the area’s 

designation in the context of whether 

the attainment demonstration and any 

weight of evidence analysis is 

supportable without a commitment by 

the State to perform a MCR. 

The 8-hour ozone modeling 

guidance 26 is expected to identify 

measurements and activities to support 

subsequent reviews of an attainment 

demonstration SIP (i.e., MCR), such as 

improvements in air quality monitoring, 

meteorology and emission 

measurements. Even though the 

proposal noted that we expected to 

revise the existing 1-hour MCR 

guidance, EPA now believes the 1-hour 

MCR guidance coupled with the 8-hour 

modeling guidance provides sufficient 

guidance. States should consult with 

EPA prior to using a methodology other 

than the one developed through the 

public consultative process. 

Guidance for performing a MCR for 

the 1-hour ozone NAAQS identifies 

several methods for reviewing whether 

the existing SIP is sufficient for the area 

to attain by its attainment date.27 These 

guidance documents should provide 

adequate information for developing 

protocols for performing MCRs for the 8-

hour ozone NAAQS. States/Tribes 

should prepare protocols which identify 

analyses and data bases to be used to 

support a MCR and discuss these with 

the appropriate EPA Regional Office 

prior to performing a MCR. If we 

determine that additional guidance is 

needed, we will issue updated guidance 

in a timeframe suitable to support the 

timely completion of MCRs. 

c. Comments and Responses 

Comment: Requiring the MCR 3 or 

more years prior to the attainment date 

is not reasonable or feasible for some 

areas. The EPA needs to recognize that 

for moderate and lower classifications 

the MCR would be due at the time of the 

SIP submittal. Mid-course review 

should be required only for areas with 

nonattainment classifications of serious 

or greater, as at least 3 years of 

monitored data are required for a MCR, 

after the implementation of controls. 

One commenter recommended that EPA 

make the MCR process part of the 

requirements for RFP and ROP. 

26 U.S. EPA, (2005), Guidance on the Use of 

Models and Other Related Analyses in Attainment 

Demonstrations for the 8-Hour Ozone NAAQS, 

EPA–454/R–05–002, http://www.epa.gov/ttn/scram, 

(Modeling Guidance, File name: ozone-final.pdf). 

27 Memorandum of March 28, 2002, from Lydia N. 

Wegman and J. David Mobley, re: ‘‘Mid-Course 

Review Guidance for the 1-Hour Ozone 

Nonattainment Areas that Rely on Weight-ofEvidence for Attainment Demonstration.’’ Located 

at URL: http://www.epa.gov/scram001/guidance/ 

guide/policymem33d.pdf. 

Response: The final regulatory text 

does not require a MCR; as noted above, 

EPA will assess on a case-by-case basis 

whether a MCR would be needed in the 

context of a particular attainment 

demonstration. 

Comment: The EPA should develop 

proper analysis techniques so that 

meteorological conditions do not affect 

a nonattainment area’s perceived 

progress towards attainment. A MCR 

should also include an evaluation of 

ozone transport into the nonattainment 

area and control implementation in 

upwind areas. 

Response: Assessments of transport 

are covered in the MCR guidance. The 

EPA is improving methods for 

determining the ozone trends and how 

they are affected by meteorology. The 

latest information will be made 

available. 

Comment: The EPA needs to release 

the revised MCR guidance before the 

final rule is issued in order for it to be 

reviewed and commented on during the 

public comment period. 

Response: The final rule does not 

incorporate any MCR guidance by 

reference. The 8-hour ozone modeling 

guidance 28 is expected to identify 

measurements and activities to support 

subsequent reviews of an attainment 

demonstration SIP (i.e., MCR), such as 

improvements in air quality monitoring, 

meteorology and emission 

measurements. Guidance for performing 

a MCR for the 1-hour ozone NAAQS 

identifies several methods for reviewing 

whether a SIP is on track to attain 

within prescribed time limits.29 These 

guidance documents should provide 

adequate information for developing 

protocols for performing MCRs for the 8-

hour ozone NAAQS. States/Tribes 

should prepare protocols which identify 

analyses and data bases to be used to 

support a MCR and discuss these with 

the appropriate EPA Regional Office 

prior to performing a MCR. If we 

determine that additional guidance is 

needed, we will issue updated guidance 

in a timeframe suitable to support 

completion of MCR’s within established 

deadlines. 

28 U.S. EPA, (2005), Guidance on the Use of 

Models and Other Related Analyses in Attainment 

Demonstrations for the 8-Hour Ozone NAAQS, 

EPA–454/R–05–002, http://www.epa.gov/ttn/scram, 

(Modeling Guidance, File name: ozone-final.pdf). 

29 Memorandum of March 28, 2002, from Lydia N. 

Wegman and J. David Mobley, re: ‘‘Mid-Course 

Review Guidance for the 1-Hour Ozone 

Nonattainment Areas that Rely on Weight-ofEvidence for Attainment Demonstration.’’ Located 

at URL: http://www.epa.gov/scram001/guidance/ 

guide/policymem33d.pdf. 

71630 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

6. Multi-Pollutant Assessments (OneAtmosphere Modeling) 30 

a. Background 

The proposal noted that many factors 

affecting formation and transport of 

secondary fine particles (i.e., PM2.5 

components) are the same as those 

affecting formation and transport of 

ozone. The proposal, therefore, noted 

that models and data analysis intended 

to address visibility impairment need to 

be capable of simulating transport and 

formation of both secondary fine 

particles and ozone. At a minimum, 

modeling should include previously 

implemented or planned measures to 

reduce ozone, secondary fine particles, 

and visibility impairment. An integrated 

assessment of the impact controls have 

on ozone, secondary fine particles, and 

regional haze provides safeguards to 

ensure ozone controls will not preclude 

optimal controls for secondary fine 

particles and visibility impairment. 

The concept of modeling control 

impacts on all three programs is further 

strengthened by the alignment of the 

implementation process for ozone and 

secondary fine particles. As the dates for 

attainment demonstration and planning 

SIPs for the three programs are 

anticipated to be fairly close, the 

practicality of using common data bases 

and analysis tools for all three programs 

is viable and encourages use of shared 

resources. 

The proposal noted that States that 

undertake multi-pollutant assessments 

as part of their attainment 

demonstration would assess the impact 

of their ozone attainment strategies on 

secondary fine particles and visibility or 

perform a consistent analysis for ozone, 

secondary fine particles, and visibility. 

To facilitate such an effort, we 

encouraged States to work closely with 

established regional haze Regional 

Planning Organizations (RPOs) and the 

jurisdictions responsible for developing 

PM2.5 implementation plans. We 

encouraged States to perform similar 

multi-pollutant assessments as part of 

their ozone attainment demonstrations, 

considering the control programs that 

are in place at the time of the 

assessment. Multi-pollutant assessments 

are discussed elsewhere in this 

proposed rulemaking. 

30 Use of models that are capable of simulating 

transport and formation of multiple pollutants 

simultaneously. For example, for ozone and fine 

particles, it is critical that the model simulate 

photochemistry, which includes interactions among 

the pollutants and their precursors. 

b. Summary of Final Rule 

There is no regulatory text on the 

issue of multi-pollutant assessments, 

but we recommend the following: 

• Attainment demonstration 

modeling should include previously 

implemented or planned measures to 

reduce ozone, secondary fine particles, 

and visibility impairment. 

• An integrated assessment of the 

impact controls have on ozone, 

secondary fine particles, and regional 

haze is encouraged to promote 

efficiencies in strategies for achieving 

all three goals. 

• States are also encouraged to use 

common data bases and analysis tools 

for all three programs and work closely 

with established regional haze RPOs 

and the jurisdictions responsible for 

developing PM2.5 implementation plans. 

• States are encouraged to follow 

EPA’s lead and perform similar multipollutant assessments as part of their 

ozone attainment demonstrations, 

considering the control programs that 

are in place at the time of the 

assessment. 

c. Comments and Responses 

Comments: The EPA received several 

comments on the recommendation that 

States perform multi-pollutant 

assessments as part of their ozone 

attainment demonstrations. Almost all 

of the comments agreed with the basic 

rationale behind encouraging an 

analysis of the expected ozone, PM2.5, 

and visibility impacts of a given set of 

air quality control measures associated 

with an 8-hour ozone attainment 

demonstration. The comments differed 

on whether multi-pollutant assessments 

should be required or only encouraged. 

The commenters who urged EPA to 

encourage rather than require a multipollutant assessment provided reasons 

for why they believe a multi-pollutant 

assessment is not possible at this time. 

One commenter indicated that the 

proposal was unclear as to whether the 

multi-pollutant assessments were 

required. 

One commenter recommended that 

EPA require, in certain unspecified 

cases, nonattainment areas to perform 

an integrated control strategy 

assessment to ensure that ozone controls 

will not preclude optimal controls for 

secondary fine particles and visibility 

impairment. Conversely, several other 

commenters expressed the opinion that 

the multi-pollutant assessment should 

not be a requirement of an ozone 

attainment demonstration. Several 

reasons were offered for why the 

assessment should remain optional: (1) 

That the state of the science for 

assessing PM2.5 and visibility is not yet 

sufficient for providing meaningful 

input to the regulatory process, (2) that 

the additional resources necessary to 

model the atmosphere as a single system 

would result in an undue burden on the 

States, and (3) that requiring a PM2.5 and 

visibility assessment would result in 

delayed attainment due to the 

additional time necessary to complete 

such an analysis. 

Response: The EPA continues to 

believe that encouraging, but not 

requiring, multi-pollutant assessments 

is the most sound approach for total air 

quality management given the schedule 

by which ozone attainment 

demonstrations are legally required. 

Much progress has been made on 

improving the available PM2.5 models 

and inputs to these models over the past 

3 years. As a result, EPA believes that 

the available tools are able to support air 

quality planning. Further improvements 

are likely over the next several years; 

much of which will be driven by the 

RPO’s. By working closely with the 

appropriate RPO’s, States can reduce the 

burden associated with one-atmosphere 

modeling analyses. However, EPA 

recognizes that many States have 

already invested resources in an ozoneonly modeling platform analysis which 

is typically conducted over a finite 

number of episode days and for 

geographic regions that are typically less 

than (in time) and smaller than (in 

space) what might be required in a 

multi-pollutant assessment. By 

encouraging States to consider such 

assessments, EPA hopes to speed the 

process of the transition to more 

integrated air quality planning tools 

while yielding sound multi-pollutant 

control strategies. It is prudent for areas 

to perform these multi-pollutant 

assessments earlier as it will lessen the 

planning burden in the long-term since 

later planning activities for PM2.5 and 

regional haze will need to consider the 

effects of emission control measures 

adopted for the ozone attainment plan. 

7. What baseline emission inventory 

should be used for the attainment 

demonstration? 

[Not addressed in the June 2, 2003 

proposal; § 51.909 of the draft regulatory 

text.] 

The June 2, 2003 proposal did not 

discuss baselines for purposes of the 

attainment demonstration. (It did, 

however, discuss baselines for RFP 

demonstrations.) Section 51.909 of the 

draft regulatory text provided that 2002 

should be used as the baseline emission 

inventory year for purposes of both RFP 

and the attainment demonstration for 

areas with an effective date of 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71631 

designation of June 15, 2004. We 

recognize, however, that some areas 

have already begun to perform modeling 

for their attainment demonstrations 

using baseline year inventories earlier 

than the 2002 inventory, and because 

the 2002 inventory may not be in a 

format to readily be used for 

photochemical grid modeling.31 

Therefore, the final rule does not specify 

a baseline for purposes of the attainment 

demonstration and modeling. As 

discussed more fully in the section of 

the preamble regarding RFP, the 

specification of 2002 as a baseline year 

for RFP purposes (for areas with an 

effective date of designation of June 15, 

2004) appears in the RFP provisions of 

40 CFR 51.910. Section 51.909 remains 

reserved. 

8. Voluntary Reclassifications (‘‘BumpUps’’) 

Although we believe most 8-hour 

nonattainment areas will attain the 

standard by their statutory attainment 

date, we recognize that some areas 

classified under subpart 2 may need 

additional time beyond the statutory 

attainment date for their area to attain 

as expeditiously as practicable. As 

discussed in the Phase 1 Rule (69 FR at 

23959, col. 3), in the event an area 

cannot practicably attain by the 

maximum date for its classification, the 

Clean Air Act provides the opportunity 

for more time. An area regulated under 

subpart 2 can receive a later maximum 

attainment date through a State request 

to bump-up to a higher classification 

(e.g. from moderate to serious). The Act 

requires EPA to grant a State request to 

reclassify an area to a higher 

classification; the State plan still must 

provide for attainment as expeditiously 

as practicable. Although bump-up 

means that certain additional specified 

requirements apply, an area may already 

be meeting most or all of these specified 

requirements due to controls previously 

adopted to implement the 1-hour ozone 

standard. This is because some areas 

had 1-hour classifications that were 

higher (and more restrictive) than the 

31 The EPA guidance on baseline years is found 

in the memorandum of November 18, 2002, from 

Lydia Wegman and Peter Tsirigotis, ‘‘2002 Base 

Year Emission Inventory SIP Planning: 8-hr Ozone, 

PM2.5 and Regional Haze Programs.’’ This document 

is available at the following Web site: http:// 

www.epa.gov/ttn/oarpg/meta.442.1.202baseinv.pdf. 

That document noted, ‘‘The EPA is aware that some 

areas have already begun on a voluntary basis to 

model for purposes of the 8-hour ozone standard. 

These areas may continue to use modeling from 

previous base years for each set of meteorological 

episode conditions for use in their SIP submittals 

if these studies are still applicable for an attainment 

demonstration.’’ 

areas’ 8-hour classification,32 and 

because the Phase 1 final 

implementation rule for the 8-hour O3 

NAAQS contains anti-backsliding 

provisions generally requiring areas to 

continue implementing measures 

required for the 1-hour classification. 

Although there may not be additional 

mandatory control measures required 

because the areas may already have 

such measures in place, an area that 

needs more time to attain may need 

additional emission reductions to reach 

attainment. 

E. What requirements for RFP should 

apply under the 8-hour ozone standard? 

[Section VI.I. of June 2, 2003 proposed 

rule (68 FR 32832); § 51.909 and 

§ 51.910 in draft; § 51.910(d) in final 

regulatory text.] 

1. General Discussion 

a. Background 

As noted in the June 2, 2003 proposal, 

section 172(c)(2), which is located in 

subpart 1, requires State plans for 

nonattainment areas to require RFP. 

Section 171(1) of the CAA defines RFP 

to mean ‘‘such annual incremental 

reductions in emissions of the relevant 

air pollutant as are required by this part 

[part D of title I] or may reasonably be 

required by the Administrator for the 

purpose of ensuring attainment of the 

applicable [NAAQS] by the applicable 

date.’’ 

Subpart 2 provides more specific RFP 

requirements for ozone areas classified 

under section 181.33 In particular, 

subpart 2 specifies the base year 

emissions inventory upon which RFP is 

to be planned for and implemented, the 

increments of emissions reductions 

required over specified time periods, 

and the process for determining whether 

the RFP milestones were achieved. 

Subpart 2 does not specify RFP 

requirements for marginal areas. Section 

182(b)(1)(A) mandates a 15 percent VOC 

emission reduction, accounting for 

growth, between 1990 and 1996 for 

moderate and above ozone 

nonattainment areas. Furthermore, 

32 Although some 8-hour ozone nonattainment 

areas have additional areas beyond the boundary of 

the former 1-hour nonattainment area and thus 

would be faced with new requirements for the 

higher classification. 

33 Note that § 51.900 provides the following 

definitions: 

(p) Reasonable further progress (RFP) means for 

the purposes of the 8-hour NAAQS, the progress 

reductions required under section 172(c)(2) and 

section 182(b)(1) and (c)(2)(B) and (c)(2)(C) of the 

CAA. 

(q) Rate of progress (ROP) means for purposes of 

the 1-hour NAAQS, the progress reductions 

required under section 172(c)(2) and section 

182(b)(1) and (c)(2)(B) and (c)(2)(C) of the CAA. 

section 182(c)(2)(B) of the CAA requires 

each serious and above ozone 

nonattainment area to submit a SIP 

revision providing for an actual VOC 

emission reduction of at least 3 percent 

per year averaged over each consecutive 

3-year period beginning in 1996 until 

the area’s attainment date (referred to as 

the post-1996 ROP plan for the 1-hour 

standard). Section 182(c)(2)(C) of the 

CAA allows for substitution of NOX for 

VOC emissions reductions for 

reductions required under section 

182(c)(2)(B). The EPA’s policy, NOX 

Substitution Guidance (December 15, 

1993; available at http://www.epa.gov/ 

ttn/oarpg/t1pgm.html), addresses the 

substitution of NOX emissions 

reductions for VOC emissions 

reductions. The baseline emissions 

inventory for determining the required 

ROP reductions for the 1-hour standard 

is specified in section 182 as 1990. 

The requirements for RFP under 

subparts 1 and 2, as described above, are 

the minimum required for an area. More 

reductions may be necessary for 

attainment within the nonattainment 

area. Moreover, an upwind area that 

contributes to nonattainment in a 

downwind area in the same State may 

need reductions in order for the 

downwind area to reach attainment by 

its required attainment date. As we 

noted above in section IV.D.8., we 

recognize that some areas classified 

under subpart 2 may need additional 

time beyond the statutory attainment 

date for their current classification to 

attain the 8-hour standard as 

expeditiously as practicable. In the 

event an area cannot practicably attain 

by the maximum date for its 

classification, the CAA provides the 

opportunity for more time. An area 

regulated under subpart 2 can receive a 

later maximum attainment date through 

a State request to bump-up to a higher 

classification (e.g. from moderate to 

serious). Although a higher 

classification would mandate additional 

control measures, in fact there may not 

be additional mandatory control 

measures required because the area may 

already have such measures because of 

its classification for the 1-hour standard 

and the anti-backsliding provisions. 

However, an area that needs more time 

to attain may also need additional 

emissions reductions to reach 

attainment. These reductions may be 

achieved through implementation of 

measures that are necessary to 

demonstrate RFP requirements or 

additional reductions beyond RFP may 

be needed. Preliminary analyses 

indicate that already required control 

measures (e.g., motor vehicle and 

71632 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

nonroad-engine rules, CAIR, etc.) may 

largely or fully fulfill RFP requirements 

for many areas and that they will 

provide substantial progress toward 

attainment for most areas. 

Many areas may have significant 

creditable reductions as a result of 

Federal motor vehicle and nonroad 

rules, the NOX SIP Call, and the CAIR. 

With the statutory exceptions 

enumerated above, assured emissions 

reductions that will occur in an area 

after the base year can be credited 

toward meeting an RFP emission 

reduction milestone. 

To reduce interstate ozone transport, 

the CAIR (described above in section 

IV.B.) established statewide ozoneseason NOX budgets for 25 States and 

the District of Columbia (i.e., the eastern 

part of the U.S. where all 8-hour 

nonattainment areas are classified as 

moderate or below). As noted above, the 

first phase of NOX reductions under 

CAIR starts in 2009 (covering 2009– 

2014); the second phase of NOX 

reductions begins in 2015 (covering 

2015 and thereafter). 

With respect to timing of reductions, 

the following table shows how 

summertime NOX reductions from local 

CAIR sources that will be achieved by 

May 1, 2009, or earlier can assist in 

demonstrating RFP. 

Type of 8-hour nonattainment area 

—Subpart 1 areas with attainment dates within 

5 years of designation; 

—Subpart 2 moderate areas for which of expeditious attainment is no later than 5 years 

after designation. 

Subpart 1 areas with attainment dates 6–10 

years from designation. 

Subpart 2 marginal areas ................................... 

Subpart 2 moderate areas with an attainment 

date later than 5 years after designation. 

Subpart 2 moderate-and-above areas that did 

not implement 15% VOC reductions for 1-

hour ozone standard. 

RFP requirement * 

Meet RFP through showing of expeditious attainment. 

Must demonstrate RFP through their attainment date. 

No subpart 2 RFP requirement for marginal 

areas. 

Subject to RFP similar to subpart 1 areas; 

must demonstrate RFP through their attainment date. 

15% VOC reduction required between 2002 

and 2008; continued progress required 

through attainment date. 

Relationship of CAIR and RFP 

CAIR reductions not required prior to ozone 

season preceding latest attainment date. 

CAIR reductions in 2009 can help fulfill RFP 

requirement. 

Not applicable. 

CAIR NOX reductions in 2009 can help fulfill 

RFP requirement. 

CAIR 2009 NOX reductions can help demonstrate continued progress after 2008 attainment date. 

* RFP requirement descriptions in table are abbreviated; RFP requirements are more precisely described elsewhere in preamble and rule text. 

The CAIR provisions do not require 

States to require emissions reductions 

prior to January 1, 2009. However, 

States may choose to require or some 

sources may elect to apply CAIR-level 

NOX controls earlier than that date. If 

such controls are made enforceable in 

the SIP (e.g., through a specific rule), the 

State may take RFP credit for such 

emissions reductions for the RFP period 

(i.e., an RFP period ending earlier than 

December 31, 2008) during which the 

reductions occur. 

The RFP provisions in the CAA for 

both subpart 1 and subpart 2 areas 

require that actual emissions be reduced 

from the baseline by the milestone year. 

Only emissions reductions required to 

be achieved during an RFP period may 

be credited toward the State’s RFP 

obligation for that period. In developing 

their RFP plans, States will have to 

provide their best estimate of the CAIRaffected sources that are expected to 

actually reduce emissions to meet the 

CAIR requirements and those that are 

expected to meet CAIR through holding 

allowances and not actually reducing 

emissions. 

Local CAIR NOX reductions that 

States must require by May 1, 2015, 

could assist in meeting RFP for an area 

that is bumped up to severe and 

demonstrates attainment cannot be 

achieved before the end of the 2015 

ozone season. 

b. Summary of Final RFP Features 

We are adopting nearly all the 

approaches set forth in our proposed 

rule for the various 8-hour RFP issues. 

We are making exceptions where 

convincing arguments were presented 

by commenters for a suitable alternative 

or where, through reassessment of the 

issue, EPA was able to develop a better 

option that still reflects the concepts in 

the original proposal. The issues for 

which we have adopted approaches that 

vary from the proposal are: (a) The 

timing of the submission of the RFP 

plan; (b) the structuring of RFP 

requirements in subpart 1 areas; (c) the 

implementation of RFP in areas 

designated for the 8-hour ozone 

standard that entirely or in part 

encompass an area that was designated 

nonattainment for the 1-hour ozone 

standard; and (d) the substitution of 

controls from outside the nonattainment 

area within 100 kilometers (km) for VOC 

and 200 km for NOX. These changes are 

discussed in the sections below. 

In developing an approach for 

addressing the RFP requirements for the 

8-hour ozone standard, we are adopting 

the following: 

• The same baseline year would be 

used both to address growth (in 

emissions, vehicle miles traveled (VMT) 

or otherwise) and to calculate the RFP 

target level. The baseline year of 2002 

applies for areas with an 8-hour ozone 

nonattainment designation effective in 

June 2004. 

• Emissions reductions from outside 

the nonattainment area up to 100 km for 

VOC and 200 km for NOX (and 

statewide for areas that are part of a 

regional strategy) would be allowed 

consistent with (a) the concepts in 

EPA’s existing December 1997 interim 

implementation policy for 1-hour ozone 

NAAQS 34, and (b) with the constraint 

that in all cases the distances in the 

policy provide only a general policy 

presumption that, if used, would need 

data in the record showing that 

reductions from sources in the specific 

locations outside the nonattainment 

area benefit the nonattainment area. 

This is discussed further below in 

section IV.E.12. of this preamble. 

• For all 8-hour nonattainment areas 

classified under subpart 2 as moderate 

34 Memorandum of December 29, 1997 from 

Richard D. Wilson to Regional Administrators, 

Regions I–X re ‘‘Guidance for Implementing the 1-

Hour Ozone and Pre-Existing PM10 NAAQS.’’ 

Located at URL: http://www.epa.gov/ttn/oarpg/t1/ 

memoranda/iig.pdf. This policy recognized that 

VOC emissions up to 100 km and NOX emissions 

up to 200 km from the nonattainment area could be 

relied on for RFP. Those distances resulted from 

Federal Advisory Committee Act discussions cited 

earlier and generally represent transport of 1 to 2 

days. We still believe it is appropriate to allow this 

credit. However, as noted below, because we 

received concerns about this policy outside the 

rulemaking process, we are in the process of 

subjecting this policy to a technical review and may 

revise it in light of that review. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71633 

and above that had not met the 15 

percent VOC emission reduction 

requirement for the 1-hour standard, the 

RFP requirements specified in subpart 2 

would apply, namely a 15 percent VOC 

emission reduction, accounting for 

growth, in the first 6 years after the 

baseline year for moderate and above 

ozone nonattainment areas. In addition, 

for all 8-hour nonattainment areas 

classified as serious and above, the RFP 

provisions in subpart 2 require a VOC 

or NOX emission reduction of at least 

three percent per year averaged over 

each consecutive 3-year period 

beginning 6 years after the baseline year. 

(See section 182(c)(2)(B)). 

• Areas classified under subpart 2 as 

moderate that had met the 15 percent 

VOC emission reduction requirement 

for the 1-hour standard are treated in the 

final rule like areas covered under 

subpart 1. 

• Areas classified under subpart 2 as 

serious and above that had met the 15 

percent VOC emission reduction 

requirement for the 1-hour standard 

would be subject to the RFP 

requirement in section 172(e) and the 

final rule would require them to obtain 

an average of 3 percent annual 

reductions of VOC and/or NOX 

emissions reductions for the first 6 years 

after the baseline year and every 

subsequent 3 years out to their 

attainment date. 

• The periods for RFP under subpart 

2 for the 8-hour ozone NAAQS run from 

the date of the baseline year, and would 

be equivalent to the periods Congress 

established in subpart 2, which applied 

for the 1-hour NAAQS. Thus, the first 

15 percent reduction would be required 

for the 6-year period starting after the 

end of the last day of the baseline year 

(e.g., January 1, 2003–December 31, 

2008). The first 3-year period for the 

subsequent (average of) three percent 

per year emission reduction 

requirement in serious and higher areas 

would begin 6 years after the end of the 

last day of the baseline year (e.g., 

January 1, 2009–December 31, 2011). 

However, the last period for any area 

would end on the attainment date for 

the area. 

• Subpart 1 areas with attainment 

dates 5 years or less after designation 

can meet the RFP requirement by 

achieving the emission reductions 

necessary to attain as expeditiously as 

practicable. These emissions reductions 

must be implemented by the beginning 

of the full ozone season prior to the 

attainment date (See 40 CFR § 1.908).35 

For subpart 1 areas with attainment 

35 With today’s rulemaking, this provision is now 

codified as 40 CFR 51.908(d). 

dates beyond 5 years after designation, 

the RFP SIP must provide for a 15 

percent emission reduction (either NOX 

and/or VOC) from the baseline year 

within 6 years after the baseline year. 

For each subsequent 3-year period out 

to the attainment date, the RFP SIP 

would have to provide for an additional 

increment of progress. The increment 

for each 3-year period would be a 

portion of the remaining emission 

reductions needed for attainment 

beyond those reductions achieved for 

the first increment of progress (e.g., 

beyond 2008 for areas designated 

nonattainment in June 2004). 

Specifically, the amount of reductions 

needed for attainment should be 

divided by the number of years needed 

for attainment after the first increment 

of progress in order to establish an 

‘‘annual increment.’’ For each 3-year 

period out to the attainment date, the 

area must achieve roughly the portion of 

reductions equivalent to three annual 

increments.36 

• Subpart 2 moderate or higher areas 

that had not met the 15 percent VOC 

reduction requirement under the 1-hour 

standard would be subject to section 

182(b)(1) for the 8-hour standard and 

would need to obtain the emissions 

reductions within 6 years after the 

baseline year (e.g., for areas designated 

in June 2004, the reductions would need 

to occur by the end of 2008, based on 

a baseline year 2002). 

• Reductions from any Federal and 

regional measures promulgated after 

1990 (except those measures that were 

not creditable under the CAAs 

creditability provisions (section 

182(b)(1)(D)) and achieved after the 

baseline year are creditable for the RFP 

requirement. 

• Allow use of the ‘‘Clean Data 

Policy.’’ 

c. Comments and Responses 

This set of comments and responses 

on our proposal on RFP are of a general 

nature. Comments and responses on 

specific topics appear with the sections 

below on those topics. 

Comment: One commenter stated that 

EPA’s proposed 8-hour ozone rule 

36 For example, if the area’s attainment date is 

2014, and a total of 30 percent reduction is needed 

between the end of 2008 and the attainment date 

(a 6-year period) to reach attainment, the ‘‘annual 

increment’’ would be 5 percent (i.e., 1⁄6 of 30 

percent). Thus, the area must achieve roughly the 

portion of reductions equivalent to three annual 

increments or 15 percent during the first 3 years 

(2009, 2010, 2011), and the remaining amount over 

the next 3 years (2012, 2013, 2014). Additional 

discussion of what is meant by ‘‘roughly 

proportional’’ appears in he full discussion of RFP 

for subpart 1 areas in section IV.E.7. of this 

preamble. 

would sharply slow momentum to 

implement health protective emission 

reduction strategies in areas with 

unhealthful air quality. It would curtail 

the effectiveness of transportation 

conformity in areas with inadequate air 

quality, including both old and new 

ozone nonattainment areas. It would do 

this by proposing to eliminate any 

further RFP requirements for pollution 

reduction in existing 1-hour ozone 

areas. 

Response: The EPA has developed 

anti-backsliding provisions to ensure 

continuing progress toward attainment 

of the ozone NAAQS. Under these 

provisions, areas that are nonattainment 

for the 8-hour standard must continue to 

meet most obligations for the 1-hour 

standard, including RFP requirements. 

Those provisions (adopted as part of the 

Phase 1 Rule published April 30, 2004) 

will ensure areas maintain progress in 

achieving emissions reductions in areas 

with unhealthful air quality. 

Additionally, 8-hour ozone 

nonattainment areas with attainment 

dates later than 5 years after designation 

must meet specified increments of 

reductions as provided in more detail 

below. 

Comment: Another commenter 

recommends that EPA not strictly 

interpret the CAA requirement of a 15 

percent reduction in VOC in the first 6 

years. If reductions in VOC would not 

assist the area in progress toward 

attainment and if an area can provide an 

analysis that it is at least as sensitive to 

NOX controls, then the area should be 

able to reduce NOX emissions for RFP 

requirements. 

Response: We addressed in general 

those comments that recommended 

alternatives to the mandatory measures 

of subpart 2 (which includes the RFP 

requirement) in the response to 

comments above under the topic, 

‘‘Should prescribed requirements of 

subpart 2 apply in all 8-hour 

nonattainment areas classified under 

subpart 2, or is there flexibility in 

application in certain narrowly-defined 

circumstances?’’ We conclude in that 

section that EPA has no discretion to 

broadly waive mandatory requirements. 

However, we noted that case law may 

provide support for case-by-case 

waivers where implementation of a 

measure would produce an absurd 

result. 

Comment: One commenter stated that 

EPA should consider highly reactive 

VOC reductions that achieve ozone 

reductions equivalent to an average of 3 

percent per year reduction of VOC and/ 

or NOX as meeting RFP requirements. 

Response: The CAA’s RFP provisions 

do not appear to provide for variations 

71634 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

in the required percent reduction in 

VOC based on differences of reactivity 

of the various VOC compounds. 

However, EPA is participating with a 

group called the Reactivity Research 

Working Group, along with 

representatives from States, industry 

and universities, to study the scientific 

aspects of reactivity and to try to 

determine if more cost-effective and 

greater ozone reductions can be 

achieved through use of the concept. 

The requirement to obtain the required 

percent reduction of total VOCs 

remains, and if EPA decides to propose 

a change, it would be undertaken in a 

separate rulemaking action. 

2. What is the content and timing of the 

plan for addressing the RFP 

requirements under section 182(b)(1) 

and 182(c)(2)(B) for areas covered under 

subpart 2? 

[Section VI.I.3 of June 2, 2003 

proposed rule (68 FR 32833); 

§ 51.910(a)(1)(ii) of the draft and final 

regulatory text.] 

a. Background 

Section 182(b)(1) requires areas 

classified as moderate and above to 

submit a plan to achieve a 15 percent 

reduction in VOC emissions over a 6-

year period following the baseline year. 

Section 182(c)(2)(B) requires serious and 

above areas to achieve an average of 

nine percent additional emissions 

reductions for each subsequent 3-year 

period. We proposed two options 

regarding how this requirement might 

apply for purposes of implementing the 

8-hour NAAQS. 

(i) Option 1. Require 15 percent VOC 

reductions within 6 years after the 

baseline year for all areas designated 

moderate and above for the 8-hour 

ozone NAAQS. After 6 years, all serious 

and above areas would be required to 

achieve a nine percent reduction in 

VOC and/or NOX emissions every 3 

years, i.e., an average of three percent 

per year, until attainment. 

(ii) Option 2. For those areas that have 

an approved 15 percent plan for their 1-

hour ozone SIPs, an additional 15 

percent VOC reduction is not necessary. 

Subpart 2 areas that have approved 15 

percent plans for the 1-hour ozone 

standard would be considered to have 

met the statutory 15 percent 

requirement. Instead, such an area that 

is classified as moderate for the 8-hour 

standard would be subject to the general 

RFP requirements of subpart 1 in the 

same manner as subpart 1 areas. Such 

an area that is classified as serious and 

above for the 8-hour standard would be 

subject to the RFP requirement in 

section 182(c)(2)(B) and would have to 

include in their SIPs an RFP plan that 

would achieve an average of three 

percent per year of VOC and/or NOX 

over each 3-year period starting at the 

end of the baseline year out to their 

attainment year. 

We recognized in the proposal that for 

serious and above areas it would be 

difficult to adopt and implement 

emission controls that would provide 

for the first nine percent emission 

reduction within 3 years after 

nonattainment designation. Therefore, 

consistent with what Congress did 

under section 182(b)(1), we proposed to 

allow the first RFP increment to be 

averaged over 6 years. We proposed that 

an area classified serious or above 

submit its RFP plan within 2 years after 

designation such that it provides for 18 

percent emissions reductions (VOC and/ 

or NOX) over the first 6 years from the 

baseline year (e.g., January 1, 2003 to 

December 31, 2008 using the proposed 

2002 baseline year). Then, within 3 

years after designation, submit a plan 

that provides 9 percent emissions 

reductions (VOC and/or NOX) over each 

of the next 3-year periods until the 

area’s attainment date (e.g., from 

January 1, 2009 to the attainment date). 

The proposal noted that this option 

recognizes previous efforts by areas that 

submitted 15 percent plans as required 

under the 1-hour ozone NAAQS and 

provides flexibility to States to use a 

mix of NOX and VOC reductions as 

appropriate to meet the additional ROP/ 

RFP requirements. For many areas of the 

country, particularly in the Eastern U.S. 

outside major metropolitan areas, there 

is a greater need for NOX reductions 

rather than VOC reductions to bring 

about reduced ambient ozone levels. 

Areas do not have the flexibility to 

control NOX under the 15 percent 

requirement—NOX substitution is only 

allowed under section 182 for the post1996 RFP requirement (three percent 

per year averaged over 3 years). We 

believe that the statute can be 

interpreted to require the mandatory 15 

percent VOC reduction only once for a 

given area. 

Once the 15 percent VOC reduction 

requirements have been met, an area 

would instead be subject to the other 

RFP requirements of the CAA. In some 

cases, such as for serious and above 

areas, this might result in an obligation 

to achieve greater emissions reductions, 

i.e., 18 percent rather than 15 percent 

for the 6-year period, but the area would 

have the flexibility to choose either VOC 

or NOX reductions as appropriate. We 

indicated in the proposal that we 

preferred this second option because it 

provides more flexibility for the RFP 

plan to be consistent with the area’s 

needs in attaining the standard. The 

draft regulatory text incorporated this 

option. 

The proposal did not specifically 

address an 8-hour area that is partially 

comprised of one or more 1-hour ozone 

nonattainment areas with approved 15 

percent plans and one or more areas that 

were not previously subject to the 15 

percent requirement. 

b. Summary of Final Rule 

We are adopting the second option 

described in the Background above, as 

adjusted in response to comment. 

1. Final rule for 8-hour areas 

comprised in total of one or more 1-hour 

nonattainment areas with approved 15 

percent plans for the 1-hour standard. 

Those 8-hour areas that are composed 

entirely of one or more 1-hour areas that 

have approved 15 percent plans for their 

1-hour ozone SIPs, will be considered to 

have met the 15 percent VOC 

requirement in section 182(b)(1). Such 

areas that are classified as moderate 

would instead be subject to the more 

general RFP requirements of subpart 1. 

As discussed below, the subpart 1 

requirement would depend on the 

moderate area’s attainment date as 

follows: 

• Moderate areas that have an 

attainment date of 5 years or less after 

their 8-hour designation, for which all 

portions of the area have previously met 

their 15 percent requirements under the 

1-hour standard, will be subject to 

subpart 1 RFP requirements, which will 

be satisfied with measures that 

demonstrate attainment as expeditiously 

as practicable. 

• Moderate areas that have an 

attainment date beyond 5 years after 

their 8-hour designation, for which all 

portions of the area have previously met 

their 15 percent requirements under the 

1-hour standard, will be subject to 

subpart 1 RFP requirements, which will 

be satisfied with a plan to demonstrate 

15 percent emissions reductions (which 

may be either VOC or NOX or a 

combination of both) from 2002 to 2008, 

and any additional emission reductions 

needed for attainment beyond 2008. 

Such areas that are classified as 

serious or above would be subject to the 

RFP requirements of section 182(c)(2)(B) 

and would need to submit a plan 

achieving an average of 3 percent 

reductions per year over the 6 years 

following the baseline year and then an 

average of 3 percent per year for each 

subsequent 3-year period out to the 

attainment year.37 

37 As discussed below in section 5 (the discussion 

of the timing of submission of the RFP plan) the 

RFP plan would have to be submitted within 3 

years after designation (not 2 years as proposed). 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71635 

2. Final rule for 8-hour areas 

comprised in part of one or more 1-hour 

attainment areas with an approved 15 

percent plan for the 1-hour standard and 

in part of one or more areas without 

approved 15 percent plans for the 1-

hour standard. 

For 8-hour moderate areas that 

include all or part of one or more 1-hour 

areas with an approved 1-hour 15 

percent plan, but also include areas that 

were not subject to the 1-hour 15 

percent plan, the final rule would allow 

the area to choose between two 

alternative approaches that are 

consistent with the proposed rule. 

• Approach 1. Develop a new 

baseline and new 8-hour 15 percent 

VOC ROP emission reduction target for 

the entire 8-hour area. Emissions 

reductions that occur after the 2002 

baseline emissions inventory year are 

creditable except as limited by section 

182, as described elsewhere in this final 

rule. The reductions must be of VOC 

only. 

• Approach 2. 

• Treat the 8-hour nonattainment area 

as divided between portions of the area 

that are subject to an approved 15 

percent VOC-only plan for the 1-hour 

standard and the portions of the area 

that are not subject to a 15 percent plan 

for the 1-hour standard. 

• For those areas not subject to an 

approved 15 percent plan for the 1-hour 

standard, States must establish a 

separate 15 percent VOC target under 

subpart 2. VOC emissions reductions to 

meet the 15 percent requirement may, 

however, come from across the entire 8-

hour nonattainment area. 

• For the portion of the area with an 

approved 15 percent plan for the 1-hour 

standard, the subpart 1 RFP 

requirements will apply if the area is 

classified as moderate for the 8-hour 

standard and the section 182(c)(2)(B) 

RFP requirement will apply if the area 

is classified as serious or above for the 

8-hour standard. These requirements 

would apply as described above for 

areas comprised entirely of areas with 

approved 15 percent plans for the 1-

hour standard. 

c. Comments and Responses 

Comment: One commenter expressed 

concern that for a number of subpart 2 

areas that were nonattainment for the 1-

hour standard, especially those 

dominated by mobile source emissions 

and/or those with existing stringent 

stationary source controls, it may be 

difficult to achieve another 18 percent 

precursor emission reduction within 6 

years from the baseline year and then an 

additional 3 percent per year precursor 

reduction after that until the area’s 

attainment date. Specific areas were 

mentioned such as the South Coast 

District of California and the HoustonGalveston Area, which the commenter 

indicated will be well beyond best 

available control technology (BACT) 

controls and in some cases at or near 

lowest achievable emission rate (LAER) 

NOX controls on stationary sources 

making them dependent on mobile 

source fleet turnover for SIP RFP 

emissions reductions. The commenter 

further suggested that EPA should have 

available approved policy options that 

allow areas in such predicaments to 

maintain approved SIPs if additional 

emissions reductions are not available 

to meet RFP requirements and/or if 

available emission reduction techniques 

might be counterproductive to other 

local and regional air quality goals. 

Response: We addressed in general 

those comments that recommended 

alternatives to the mandatory measures 

of subpart 2 (which includes the RFP 

requirement) in the response to 

comments above under the topic, 

‘‘Should prescribed requirements of 

subpart 2 apply in all 8-hour 

nonattainment areas classified under 

subpart 2, or is there flexibility in 

application in certain narrowly-defined 

circumstances?’’ We concluded in that 

section that EPA has no discretion to 

broadly waive mandatory requirements. 

However, we noted that case law may 

provide support for case-by-case 

waivers where implementation of a 

measure would produce an absurd 

result. Additionally, we note that 

section 182(b)(1)(A)(ii) specifically 

addresses the situation where an area 

demonstrates that it cannot achieve the 

required 15 percent reduction. It 

provides that an area may achieve less 

than the 15 percent VOC reduction 

required where the State demonstrates 

(1) NSR requirements apply as they 

would in an area classified as extreme 

except that the terms ‘‘major source’’ 

and ‘‘major stationary source’’ shall 

include any source with the potential to 

emit at least 5 tpy of VOCs; (2) RACT 

is required for all major sources (i.e., a 

source with the potential to emit at least 

5 tons per year of VOCs; and (3) the plan 

includes all measures that can feasibly 

be implemented in light of technological 

achievability.38 

Comment: Another commenter 

supported EPA in recognizing the 

previous efforts of areas to meet ROP 

requirements under the 1-hour standard. 

The commenter concurred with EPA’s 

38 Section 182(c)(2)(B)(ii) also contains a similar 

RFP provision for serious and higher classified 

areas that allows less than 3 percent of baseline 

emissions each year after the initial 15 percent 

reduction after designation and classification. 

preferred option, which allows States 

the flexibility to choose a combination 

of NOX and VOC strategies to meet ROP/ 

RFP requirements consistent with an 

area’s need to meet the standard. 

Response: We agree with the 

commenter that if an area has already 

met the 15 percent VOC emission 

reduction requirement for the 1-hour 

standard, the area should not be 

required to meet that requirement a 

second time for the 8-hour standard but 

instead will be subject to the other 

applicable RFP provisions of the CAA. 

Comment: One commenter preferred 

Option 1 as more protective of air 

quality and more consistent with the 

requirements of the CAA. Option 1 

would require States to develop RFP 

plans based on severity and local 

situation. Option 2 has some attractive 

features by recognizing progress that 

States have already made. This 

commenter believed that Option 2 is 

problematic, however, because it relies 

on plans developed based on 1990 to 

1996 emissions. This time period has 

passed. 

One commenter believed EPA to be 

completely without authority to waive 

the 15 percent RFP plan requirement, 

which is an explicit mandate of subpart 

2. A 15 percent ROP plan under the 1-

hour standard cannot possibly satisfy 

the 15 percent RFP plan obligation for 

the 8-hour standard, because the new 

RFP requirement is designed to 

implement a revised NAAQS and is 

measured from a different baseline year. 

They further believe that EPA offers no 

plausible legal rationale for waiving the 

15 percent ROP requirement, and, 

indeed, none exists. Moreover, although 

the agency proposed to require RFP 

demonstrations for the first 6 years for 

serious and severe areas, there is no 

lawful or rational basis for exempting 

moderate areas from this statutory 

requirement. Allowing States to rely on 

their 1-hour 15 percent ROP 

demonstrations is further unsupportable 

because those demonstrations are 

almost certainly no longer valid. 

Response: The EPA acknowledges 

that under subpart 2 we must require 15 

percent VOC reductions for all moderate 

and above areas, but we maintain that 

if an area has met this requirement 

while subject to section 182(b)(1)(A) for 

the 1-hour standard, they will not have 

to meet it again for the 8-hour standard. 

The EPA believes that the CAA is quite 

clear that the SIP must provide for a 15 

percent reduction in baseline VOC 

emissions for some period after 1990 in 

an area subject to section 182(b)(1)(A), 

and, consequently, the SIP for any area 

newly subject to section 182(b)(1)(A) 

must provide for a 15 percent reduction 

71636 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

in VOC baseline emissions. But, EPA 

disagrees that the CAA plainly requires 

that the SIP for an area must require a 

second 15 percent reduction in VOC 

baseline emissions under a revised 

ozone standard. The EPA believes that 

section 182(b)(1)(A) limits our 

discretion only to the extent that we 

cannot let the SIP for any area classified 

as moderate or worse for the 8-hour 

standard avoid a demonstration that the 

SIP contains sufficient measures to 

achieve a 15 percent reduction in VOC 

baseline emissions and further limits 

our discretion to allow NOX substitution 

for the 15 percent RFP demonstration 

requirement under section 182(b)(1)(A). 

If serious and above areas have 

already met the 15 percent requirement 

under the 1-hour standard, they must 

meet the next RFP requirement, namely, 

the section 182(c)(2)(B) RFP 

requirement, which will actually 

achieve greater reductions, i.e., 3 

percent per year over 6 years for a total 

of 18 percent, but they can meet it with 

either VOC or NOX reductions. For 

moderate areas that have already met 

the 15 percent VOC emission reduction 

requirement for the 1-hour standard, 

EPA believes appropriate RFP under 

subpart 1 should be achieved. For 

purposes of RFP under subpart 1, there 

is nothing that limits such reductions to 

VOC. This provision simply requires 

reasonable annual incremental 

reductions towards attainment by the 

applicable attainment date, and this 

could be achieved by either VOC or 

NOX emissions reductions or a 

combination of both. 

Section 182(b)(1)(A) is the only 

statutory provision that limits State 

discretion to substitute NOX reductions 

for VOC reductions. This applies only 

for purposes of the initial 15 percent 

reduction requirement for the 6-year 

period after the baseline year. 

Comment: Another commenter 

believed the subpart 2 provisions of the 

CAA do not allow for NOX for VOC 

substitutions for the initial 15 percent 

RFP requirements. 

Response: We agree that the 15 

percent requirement in section 182(b)(1) 

does not allow the substitution of NOX 

for VOC. However, the RFP 

requirements in section 172(c)(2) and 

182(c)(2)(B) are not constrained by that 

limitation and either VOC or NOX 

emissions reductions may be counted 

toward meeting RFP under those two 

provisions. 

Comment: Some commenters believed 

an additional 15 percent VOC reduction 

should not be necessary for 8-hour areas 

that encompass in whole or in part a 1-

hour nonattainment area with an 

approved 15 percent plan. Such areas 

should simply be required to achieve 

whatever NOX or VOC emissions 

reductions are needed for attainment. 

One commenter noted that the 

proposed § 51.910(a)(ii) did not address 

all boundary change scenarios 

consistent with our proposed approach 

found in section VI.I.9. of the June 2, 

2003 proposed rule (68 FR 32835). 

Response: We agree with the 

commenter that an area with an 

approved 15 percent plan for the 1-hour 

standard is not required to adopt a 

second 15 percent plan under section 

182(b)(1) for purposes of the 8-hour 

standard. However, if a portion of the 8-

hour area was not subject to an 

approved 15 percent plan for the 1-hour 

standard, section 182(b)(1) applies to 

that portion of the 8-hour area and may 

be met by one of two approaches 

described above and in the regulatory 

text. We agree with the second 

commenter who noted that the proposed 

rule did not explicitly address all 

possible boundary scenarios; we believe 

we have fully addressed these different 

boundary scenarios in the final rule in 

a manner consistent with the proposal. 

Comment: A commenter indicated 

that they preferred to work with EPA in 

the development of an alternative that 

will eliminate or minimize the planning 

burdens associated with development of 

a 15 percent RFP plan for one town. One 

alternative might be the development of 

a ‘‘comparability demonstration,’’ 

showing that the town had implemented 

the same controls that had been 

previously responsible for achieving a 

15 percent reduction in VOCs in the lhour ozone nonattainment area 

associated with the 8-hour 

nonattainment area including this town. 

Response: We are willing to work 

with individual areas as they develop 

their 8-hour 15 percent plans and to 

help them avoid unnecessary planning 

burdens. We believe that the portion of 

an 8-hour area not subject to an 

approved 1-hour 15 percent plan may be 

able to meet the 15 percent obligation 

for the 8-hour standard if the area 

adopts the same VOC control measures 

(for example, VOC RACT at the same 

source thresholds, I/M, etc. * * *) as in 

the portion of the 8-hour nonattainment 

area subject to a 15 percent plan for the 

1-hour standard and if the area has the 

same mix of emissions sources as in the 

area subject to the 15 percent plan for 

the 1-hour standard. We anticipate we 

could propose approval of a SIP on this 

basis where supported by the record. 

Comments on Draft Regulatory Text 

Comment: Another commenter 

generally supported the RFP provisions 

but suggested that in section 

51.910(a)(1)(ii)(A) of the draft regulatory 

text, we insert the language shown in 

bold: 

‘‘An area classified as moderate or 

higher that has the same boundaries as 

an area for which EPA fully approved a 

15 percent plan for the 1-hour NAAQS 

is not subject to section 182(b)(1) of the 

CAA for the 8-hour NAAQS, but 

instead—(A) If classified as moderate, is 

subject to RFP under section 172(c)(2) of 

the CAA and shall meet that obligation 

by submitting 3 years after the effective 

date of its designation a SIP revision 

that provides for implementation of all 

emission reductions of VOCs and/or 

NOX needed for attainment by the 

beginning of the ozone season in the 

area’s attainment year.’’ The commenter 

claimed this language is consistent with 

the approach EPA has taken in other 

provisions of this draft. 

Response: The commenter’s concern 

is noted. Section 51.910 has been 

restructured for reasons noted elsewhere 

in this preamble and it addresses the 

commenter’s concern. 

Comment: One commenter suggested 

that § 51.910(a)(3) of the draft regulatory 

text be revised to allow (even if 

conditional) NOX reductions to be 

substituted for VOC reductions (for any 

ROP or RFP requirement) whenever 

such reductions would ‘‘result in a 

reduction in ozone concentrations at 

least equivalent to that which would 

result from the amount of VOC emission 

reductions required.’’ 

Response: As noted above we do not 

believe the CAA allows substitution of 

NOX for VOC to meet the 15 percent 

requirement of section 182(b)(1). 

Comment: One commenter stated that 

draft § 51.910(a)(1)(ii) eliminates the 15 

percent requirement for areas that have 

already achieved this requirement under 

the 8-hour standard and supported that 

change. However, they further state that 

the strict criteria of ‘‘same boundaries’’ 

should be revisited because there may 

be limited changes in the nonattainment 

areas ‘‘boundaries’’ when areas are 

designated for the 8-hour standard. 

Such changes should not negate this 

provision. A broader definition needs to 

apply to this section to allow for 

changes to boundaries in nonattainment 

areas between 1-hour and 8-hour 

designations where such changes do not 

substantially alter the geographical or 

population characteristics for the area. 

Another commenter supports an 

exemption for 8-hour nonattainment 

areas that have met the 15 percent ROP 

requirement for the 1-hour NAAQS. The 

commenter requests that EPA clarify the 

criteria that the area must have the same 

geographic boundaries to qualify for the 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71637 

exemption. This means that in the 

geographic areas for which a State has 

an approved 15 percent plan, the 15 

percent requirement will not apply, and 

the 15 percent requirement is only 

intended to apply to the new geographic 

areas of the 8-hour nonattainment area, 

and that the 15 percent reduction of 

emissions from the new areas could 

come from the entire nonattainment 

area to satisfy this requirement. 

Response: As we explain in our 

summary of the final rule, we have 

recognized that there are a variety of 

boundary scenarios for 8-hour 

nonattainment areas in relation to the 

boundaries of areas for the 1-hour 

standard. We have modified the draft 

regulatory text such that the final rule 

speaks in terms of 8-hour areas that 

include all or part of an area with an 

approved 15 percent plan for the 1-hour 

standard. For those portions of the 8-

hour area with an approved 1-hour 15 

percent plan, the 8-hour area is not 

required to develop a second 15 percent 

plan under section 182(b)(1) for 

purposes of the 8-hour standard, but 

instead will be subject to section 

172(c)(2) if it is an 8-hour moderate area 

or subject to section 182(c)(2)(B) if it is 

classified as serious or above for the 8-

hour standard. If the 8-hour area 

includes both areas that were subject to 

an approved 15 percent plan for the 1-

hour standard and areas that were not, 

then the 8-hour area can choose whether 

to develop a section 182(b)(1) 15 percent 

plan for the entire 8-hour area or to 

develop a 182(b)(1) plan only for the 

area not previously subject to such a 

plan and to treat the remaining portions 

of the area under section 172(c)(2) or 

182(c)(2)(B), as described above. 

As noted, EPA does not believe the 

statute allows it to relieve any area that 

has not already met the 15 percent 

requirement for the 1-hour standard 

from the obligation to meet that 

requirement except as provided in 

section 182(b)(1)(A)(ii). 

3. What baseline year should be 

required for the emissions inventory for 

the RFP requirement? 

[Section VI.I.4. of June 2, 2003 

proposed rule (68 FR 32833); § 51.909 of 

the draft regulatory text; § 51.910(d) of 

the final regulatory text.] 

a. Background 

The baseline inventory for RFP (under 

subpart 2) is used as the starting point 

for the determination of a target level of 

emissions for the future year RFP and as 

the baseline from which creditable 

reductions are determined. We 

designated ozone nonattainment areas 

in April 2004. Under the ‘‘Consolidated 

Emissions Reporting Rule’’ (67 FR 

39602; June 10, 2002) revised emissions 

inventories are required for the years 

2002 and 2005; therefore, we proposed 

to require use of the 2002 inventory as 

the baseline inventory for the RFP 

requirement. This would be the most 

recent inventory available at the time of 

designation. We issued a memorandum 

identifying 2002 as the anticipated 

emissions inventory base year for the 

SIP planning process to address the 8-

hour ozone and the PM2.5 standards.39 

b. Summary of Final Rule 

As set forth in our proposed rule, for 

areas designated nonattainment for the 

8-hour ozone NAAQS with an effective 

date of June 15, 2004, we are requiring 

States to use the 2002 inventory as the 

baseline inventory for the RFP 

requirement. As noted in the proposal, 

the inventory for the 2002 calendar year 

would be the most recently available 

inventory at the time of designation in 

2004. However, in response to several 

comments, we are allowing States the 

option of justifying the use of an 

alternative baseline inventory year for 

RFP. To justify an alternative, the State 

would have to demonstrate how the 

alternative year meets the CAA’s 

provisions for RFP and provide a 

rationale for why it is appropriate to use 

the alternative baseline year rather than 

2002 to comply with the CAA’s RFP 

provisions. We believe that for multiState nonattainment areas, several States 

must agree on a single baseline. Even if 

a State chooses an alternative baseline 

inventory year for RFP, 2002 remains 

the valid baseline year for transportation 

conformity purposes as described in 40 

CFR 93.119. The baseline year test is 

used only in conformity determinations 

prior to the submission of a SIP that 

establishes motor vehicle emissions 

budgets (e.g., an RFP SIP). Therefore, 

areas using the baseline year test would 

continue to use 2002 as the baseline 

year for conformity purposes because an 

area’s baseline year would not be 

changed until an RFP SIP is submitted. 

Once an RFP SIP is submitted and the 

motor vehicle emissions budgets in that 

SIP are found adequate or are approved 

the area would no longer use the 

baseline year test. Instead the area 

would use the adequate or approved 

budgets in the RFP SIP in conformity 

determinations. 

39 Memorandum of November 18, 2002, from 

Lydia Wegman and Peter Tsirigotis, ‘‘2002 Base 

Year Emission Inventory SIP Planning: 8-hr Ozone, 

PM2.5 and Regional Haze Programs.’’ This document 

is available at the following Web site: http:// 

www.epa.gov/ttn/oarpg/ 

meta.442.1.2002baseinv.pdf. 

The baseline emissions inventory is 

calculated as of the effective date of an 

area’s nonattainment designation using 

the most recent calendar year for which 

a complete inventory is required to be 

submitted to EPA under subpart A of 40 

CFR part 51, subpart A. Under 40 CFR 

part 51, subpart A, States are required 

to submit a comprehensive inventory on 

3-year cycles within 17 months after the 

close of the reporting period. Thus, the 

2002 inventory was due 17 months after 

the December 31, 2002 close of the 

reporting period, i.e., was due by June 

1, 2004. For those areas designated 

nonattainment for the 8-hour ozone 

NAAQS effective June 15, 2004 (69 FR 

23858; April 30, 2004), the baseline 

emissions inventory should be based on 

the calendar year 2002 because the 2002 

inventory was due under 40 CFR part 

51, subpart A, prior to the time of 

designation. For areas with an effective 

nonattainment designation in the future, 

the baseline inventory will be for the 

calendar year of the most recent 

triennial inventory as of the date of 

designation.40 As provided above, the 

State may use an alternative baseline 

only if it is demonstrated that it is 

consistent with the CAA and the State 

demonstrates why it is appropriate. 

c. Comments and Responses 

Comment: Some commenters agreed 

there is a reasonable basis to select 2002 

as the date of emissions inventories for 

the purpose of establishing creditable 

reductions from the inventory. States 

are not required by the CAA to adopt 

the year of the nonattainment 

designation for the 8-hour standard as 

the basis for their planning, even though 

that was the case under the 1990 CAA 

Amendments. The commenter claims 

there are a variety of measures that 

would be implemented after 2002 that 

local jurisdictions would like to be able 

to account for as new emissions 

reductions in their modeling 

demonstrations. The commenter thus 

believes that reductions between these 

years ‘‘should count.’’ In addition, this 

was the most recent quality assured/ 

quality controlled inventory used to 

support the States’ recommendations for 

proposed nonattainment designations 

on July 15, 2003. 

Several commenters recommended 

that the baseline year (starting the 6-year 

period for RFP) be set for the year in 

which designations were made (i.e., 

2004). 

40 For example, where the effective date of 

designation to nonattainment for an area for the 8-

hour ozone NAAQS is after June 1, 2007 but before 

June 1, 2010, the baseline inventory will be for 

calendar year 2005. 

71638 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

Response: The EPA has decided to 

establish 2002 as the baseline year for 

RFP SIPs in conformity with both the 

language of the CAA and the inventory 

year cycle. Of reasonable importance is 

the need to maintain consistency with 

the periodic inventory for use in various 

milestone considerations such as RFP, 

milestone compliance demonstration, 

attainment, and contingency plans. In 

addition, while there would be a 

difference in the RFP requirement based 

on the choice of the RFP baseline, there 

should be little if any difference in 

terms of emissions reductions needed to 

demonstrate timely attainment. If we 

use 2002, the baseline may be higher but 

areas can take credit for any 2002–2004 

emissions reductions from federally 

enforceable control measures. If we use 

2004, the baseline may be lower but 

areas can’t take credit for measures that 

produce emissions reductions between 

2002–2004. Depending on the area, the 

difference should be minimal in terms 

of the difference in the amount of 

reductions needed to reach attainment 

and what new measures are necessary to 

get there. We believe it is reasonable to 

select an inventory year for which States 

were already required to produce an 

inventory rather than requiring States to 

produce an additional inventory (e.g., 

for 2004) that is not otherwise required. 

Moreover, requiring the use of an 

inventory for the designation year 

would cause delay, as it would take the 

States 1–2 years after the end of 2004 to 

produce the inventory which would be 

the basis for selecting controls to 

achieve the necessary reductions for 

RFP and for modeling attainment. 

However, we are allowing States the 

option of justifying the use of an 

alternative baseline emission inventory, 

provided it meets the requirement of the 

CAA’s RFP provisions. As noted above, 

the use of an alternative year for the 

baseline inventory for RFP does not 

change the requirement to use 2002 as 

the baseline year for transportation 

conformity as described in 40 CFR 

93.119. 

Comment: Another commenter 

referred to EPA’s proposal language 

regarding the RFP SIP that would have 

required submission of the RFP plan 

within 2 years after designation. They 

stated that EPA is missing the point in 

that the attainment and RFP submission 

dates established in subpart 2 are to 

allow States a sufficient amount of time 

to achieve the mandated goals. 

That commenter referred to another 

alternative that would amend the 

proposal to require a 1990, rather than 

2002 baseline for those areas not having 

a previously-approved 15 percent RFP 

plan. They further commented that 

although a 1990 baseline would not 

eliminate the planning burden 

associated with this requirement, it 

would go far towards minimizing the 

necessary additional work. 

Response: We disagree with the 

commenters who urged use of the 1990 

inventories as the baseline for planning 

for the 8-hour NAAQS. Use of the 1990 

baseline would be unreasonable now 

since it would have to be substantially 

recalculated due to changes in emission 

calculating methodologies. Furthermore, 

a 1990 inventory was only required for 

nonattainment areas as of enactment of 

the 1990 CAA Amendments and 

therefore may not exist for a number of 

areas that are currently designated 

nonattainment for the 8-hour standard. 

Finally, we believe that reliance on 

emissions reductions that may have 

occurred well before 8-hour 

designations and classifications should 

not be counted as making progress 

toward attainment. 

Comment: Another commenter noted 

that the 18 percent reduction for serious 

areas would have to be achieved by 

2008. This is 6 years after the base year. 

The commenter noted that the 2 years 

that would remain after SIP submission 

(from the proposed SIP due date of 2006 

until 2008) would be totally inadequate 

to achieve either the 15 percent 

reduction in VOCs or the 18 percent 

reduction in VOCs and/or NOX. The 

commenter noted the CAA provides for 

submission of RFP plans within 3 years 

(from 1990) in section 182(b)(1)(A) and 

4 years in section 182(c)(2). 

Response: The final rule reflects a 

change from the proposal to allow 

submission of the RFP plan up to 3 

years from the date of designation. We 

do not believe the RFP provisions of 

subpart 2 of the Act provides relief from 

the requirement to obtain the specified 

percent reductions from the RFP 

baseline within the time constraints 

specified in those provisions. 

Comment: A comment on draft 

regulatory text § 51.909 noted that EPA 

specified various program milestone 

dates, which were derived from the 

relationship of these dates to the 

expected date of initial designation. The 

commenter recommends deleting all 

such specific date references from the 

regulation, to avoid the need for revising 

regulations if the initial designations are 

not concluded as expected. This should 

be replaced by a generic approach, for 

example by requiring the most recent 

year’s data to be used as the baseline in 

the second sentence of § 51.909. 

Deleting the calendar-specific dates 

would not change the result if the 

designations occur as planned, yet 

would allow for more recent data to be 

used if factors beyond the agency’s 

control create a delay in designations. 

This approach also will allow the 

regulation to apply to future area 

designation changes, such as areas that 

are redesignated nonattainment at some 

point in the future. Such specific dates 

are more appropriately included as 

examples in agency guidance or within 

the preamble of a final rule with a 

discussion of how they are derived. The 

regulation itself should retain only the 

generic relationship between the 

milestone and the effective date of 

designation, which is the approach 

taken elsewhere in the rule. 

Response: Because the designations 

have already taken effect at this point, 

we believe it is appropriate to specify 

2002 as the presumptive baseline year. 

The final version of the rule (now 

§ 51.910(d)) provides general language 

regarding the appropriate baseline year 

for areas that have an effective date of 

a nonattainment designation in the 

future.41 

4. Should moderate and higher 

classified areas be subject to prescribed 

additional RFP requirements prior to 

their attainment date? 

[Section VI.I.5 of June 2, 2003 

proposed rule (68 FR 32834); no draft 

regulatory text; section 51.910(a)(1)(i) of 

final regulatory text.] 

a. Background 

As noted in the proposal, for areas 

initially classified moderate and higher 

for the 1-hour ozone standard, the 

baseline inventory was defined as 1990 

in the CAA Amendments. Therefore, the 

6-year period for the initial 15 percent 

RFP requirement ended in the same year 

as the attainment date for moderate 

areas, viz., 1996. For areas classified 

moderate and higher under the 8-hour 

ozone standard, however, we proposed 

that the 15 percent RFP target level of 

emissions would be calculated for the 6-

year period after the 2002 baseline year, 

i.e., 2003–2008. Moderate areas would 

be required to meet an attainment date 

no later than 6 years after the area is 

designated nonattainment for the 8-hour 

standard. Since the effective date of 

designation of nonattainment areas is 

June 15, 2004, the outside statutory 

attainment date would be June 15, 2010. 

This leaves approximately a 11⁄2 year 

gap between the end of the 6-year 

period for the 15 percent RFP 

requirement (i.e., December 31, 2008) 

and the maximum statutory attainment 

41 We note that even though the draft regulatory 

text was structured to place the specification of the 

baseline year for RFP (as well as for attainment 

demonstrations) in § 51.909, the final rule places 

the RFP baseline year requirement in § 51.910. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71639 

date. If we were to also require moderate 

areas to obtain an additional three 

percent per year emission reduction 

beyond 2008 for the 11⁄2 additional years 

out to 2010, the RFP requirement could 

be more than what we believe Congress 

intended for moderate areas under 

subpart 2. Additional three percent per 

year reductions were only required for 

serious and higher classified ozone 

nonattainment areas. We proposed that 

the only specific RFP requirement 

applicable for moderate areas is the 15 

percent VOC requirement between the 

end of 2002 and the end of 2008. 

However, section 172(c)(2), which 

requires areas to meet RFP generally, 

would apply for any period for which 

RFP is not addressed in subpart 2. For 

purposes of section 172(c)(2), RFP 

means annual incremental reductions as 

may be required by the Administrator 

for purposes of ensuring attainment 

[CAA Section 171(1)]. Therefore, we 

proposed a moderate area would need to 

provide any additional emissions 

reductions—VOC and/or NOX—needed 

to provide for attainment by the area’s 

attainment date. In proposing this 

approach for this circumstance, we 

interpreted the subpart 1 RFP 

requirement to mean that the area must 

achieve whatever further reduction is 

needed for attainment in the remaining 

period prior to the attainment date 

(2009 through June 15, 2010). 

We proposed that serious and higher 

classified areas would need to provide 

in their SIPs an additional average of 

three percent per year emission 

reduction over each subsequent 3-year 

period beyond the initial 6-year period 

through the attainment year, consistent 

with what Congress specified in section 

182(c)(2)(B) of the CAA. 

b. Summary of Final Rule 

In the final rule, we are taking the 

approach we proposed. We are not 

prescribing additional increments of 

reductions for the 11⁄2 years before the 

maximum attainment date for moderate 

areas. Such areas must provide for any 

additional emissions reductions (VOC/ 

NOX) needed to provide for attainment 

by the beginning of the ozone season 

prior to the area’s attainment date.42 

Serious and higher classified areas 

would need to provide in their SIPs an 

additional average of three percent per 

year emission reduction over each 

subsequent 3-year period beyond the 

42 We note that areas must implement controls 

prior to the beginning of the last full ozone season 

preceding the attainment date. For moderate areas 

designated as of June 15, 2004, such reductions 

would be needed by the beginning of the 2009 

ozone season. 

initial 6-year period through the 

attainment year. 

c. Comments and Responses 

Comment: One commenter suggested 

that following the statutory timetable 

rather than the one proposed by EPA 

would eliminate the problem of how to 

handle the ‘‘11⁄2 year gap between the 

end of the 6-year period for the 15 

percent RFP requirement (i.e., December 

31, 2008, as proposed by EPA) and the 

attainment date.’’ The commenter 

continued by saying that no such gap is 

contemplated by subpart 2, which 

provides in section 18l(b)(l) that 

moderate area’s attainment dates and 

their 15-percent VOC RFP date are to be 

the same: 6 years after their designation 

and classification. 

Response: As provided in an earlier 

response, we do not believe the CAA 

requires the end of the 15 percent RFP 

period and the attainment date to be the 

same. 

Comment: Another commenter noted 

the proposal states that the only specific 

RFP requirement applicable for 

moderate areas is the 15 percent VOC 

requirement between the end of 2002 

and the end of 2008. However, section 

172(c)(2) also applies, requiring areas to 

meet RFP generally. Therefore, a 

moderate area would still also have to 

provide any additional emissions 

reductions—VOC and/or NOX, i.e., 

whatever is needed to provide for 

attainment by the beginning of the 

ozone season prior to the area’s 

attainment date. The commenter agrees 

that any additional emissions 

reductions needed to achieve attainment 

are the only reductions that should be 

required of moderate areas. 

Response: We agree with the 

commenter, and our rule requires that 

for purposes of meeting RFP beyond 

2008 until the area’s attainment date, 

moderate areas must reduce VOC and 

NOX emissions as necessary to attain by 

the area’s attainment date. 

5. What is the timing of the submission 

of the RFP plan? 

[Section VI.I.6 of June 2, 2003 

proposed rule (68 FR 32834); § 51.910 of 

the draft and final regulatory text 

(several locations).] 

a. Background 

As noted in the proposal, section 

182(b)(1) requires that moderate and 

higher classified areas submit their 15 

percent RFP plans within 3 years after 

1990. Obviously, applying the statute as 

written is absurd, since we are well past 

that date. The CAA uses identical 

language for identifying area’s 

attainment dates under subpart 2. In our 

Phase 1 Rule, for purposes of attainment 

dates for the 8-hour NAAQS, we 

interpreted the CAA’s language referring 

to the date of enactment of the 1990 

CAA Amendments to mean the date of 

designations for the 8-hour standard. 

We noted in the proposal that if we 

applied the same interpretation for RFP 

plans, i.e., that they should be 

submitted within 3 years after the area’s 

nonattainment designation date (i.e., in 

2007 if the area has an effective 

designation in 2004), the plans would 

have to be implemented within 1 year 

after submission to ensure the 15 

percent emissions reductions are 

achieved by the end of the relevant 6-

year period (i.e., December 2008). We 

indicated concern that this might not 

provide sources with sufficient time to 

achieve the reductions by the required 

deadline. Therefore, we proposed that 

the RFP SIP be submitted within 2 years 

after nonattainment designation— 

namely by 2006 for areas designated in 

2004. This would provide for 2 years for 

the State to develop and submit its RFP 

plan, and another 2 years for the control 

measures to be implemented. 

We also proposed that an area 

classified serious or above submit 

within 2 years after designation its RFP 

plan that provides for 18 percent 

emissions reductions (VOC and/or NOX) 

over the first 6 years from the baseline 

year and then submit within 3 years 

after designation a RFP plan that 

provides nine percent emissions 

reductions (VOC and/or NOX) over each 

of the next 3-year periods until the 

area’s attainment date. 

b. Summary of Final Rule 

In the final rule, we are taking a 

different approach than proposed in 

light of concerns raised by States in 

public comments. These commenters 

stated that they would need more than 

2 years for development, adoption and 

submission of RFP plans for the 

increment of progress over the first 6 

years after the baseline year. The EPA 

agrees with the several commenters who 

urged that 3 years was more consistent 

with the CAA. Additionally, 3 years is 

a more reasonable time period for 

submission because it allows States the 

necessary time to move regulatory 

actions through their legislative 

processes and allows States to consider 

RFP in conjunction with their 

attainment demonstrations. Therefore, 

for moderate and higher classified areas, 

the first RFP SIP must be submitted 

within 3 years after the area’s 

nonattainment designation. For areas 

with a June 15, 2004 effective date for 

the 8-hour designations, the SIP would 

be due by June 15, 2007. This would 

71640 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

provide up to 3 years for States to 

develop and submit RFP plans, and 1 

additional year (until the end of 2008) 

for control measures to be implemented. 

The RFP SIP for any remaining 3-year 

periods out to the attainment date 

beyond the first 6 years also would be 

submitted with the attainment 

demonstration, i.e., within 3 years after 

designation. However, since States 

maintain the flexibility to submit plans 

early to provide more time for 

implementation of their SIP control 

measures, we recommend that States 

complete their RFP plans as soon as 

possible after designation to provide as 

much time as possible for sources to 

implement the emissions reductions. 

Furthermore, States may also begin 

implementing their control measures 

before submission to EPA as part of 

their SIPs, which would provide 

additional time sources may need to 

comply. 

c. Comments and Responses 

Comment: Several commenters 

opposed EPA’s proposal to shorten to 2 

years the statutory 3-year period for 

development and submittal of 15-

percent VOC RFP plans. They claim this 

proposal violates the guarantee of 3 

years for plan development to the State 

in section 182(b)(l)(A) and is contrary to 

EPA’s basic proposed principle that 

[quoting from the proposal] ‘‘subpart 2 

SIP submittals will be due as a general 

matter by the same period of time after 

designation and classification under the 

8-hour standard as provided in subpart 

2 for areas designated and classified at 

the time of enactment of the 1990 

CAA.’’ The commenters contended that 

subpart 2 gives EPA no authority to 

shorten the statutory 3-year period. In 

contrast, Congress in subpart 1 

authorized EPA to set a schedule for 

nonattainment SIP submissions. 

Congress, therefore, knew how to give 

EPA discretion to shorten SIP 

submission deadlines according to the 

commenters; it did not do so in subpart 

2. 

Concerning the timing of submission 

of the RFP plan, another commenter was 

concerned that the States may not have 

sufficient photochemical modeling and 

ambient air analyses to indicate the best 

mix of RFP SIP controls. Additionally, 

in areas dominated by mobile source 

emissions, it may not be feasible to 

implement control measures to achieve 

the RFP target within the 2 years after 

the proposed required RFP SIP 

submission date as EPA has suggested. 

The commenter suggested that EPA 

develop policy options that allow areas 

in such predicaments to maintain 

approved SIPs if emissions reductions 

are not available to meet RFP 

requirements and/or if available 

emission reduction techniques might be 

counterproductive to other local and 

regional air quality goals. 

Another commenter stated revisions 

to State emission reduction measures 

cannot be adopted easily in a 2-year 

time period because they require 

administrative action and frequently 

State legislation to approve. This period 

can lengthen when proposed measures 

like enhanced vehicle I/M involve 

controversial actions affecting the 

public. Logistically, a State must 

establish a regulation by administrative 

action with public input before (though 

sometimes after) such a measure is 

approved by the state’s legislature. A 

number of jurisdictions’ legislatures are 

only in regular session to consider such 

measures several months or, in alternate 

years. Thus, it is unreasonable for States 

to have only 2 years from their 

nonattainment designations to adopt 

new measures. 

Another commenter referenced the 

case NRDC v. EPA, 22 F. 3d 1125, 1135 

(D.C. Cir., 1994), where the Court 

considered the propriety of EPA’s 

extension of the deadlines by which 

States had to submit elements of their 

SIPs. The Court upheld EPA’s decision 

to extend the deadline for submission of 

a SIP given EPA’s failure to meet its 

own deadline for providing certain 

necessary guidance to the States. The 

Court allowed EPA to use the 

extraordinary remedy of a deadline 

extension in this instance because 

Congress would have intended that the 

deadline be extended to provide a party 

the full statutory time for acting on the 

agency guidance. The commenter 

referenced CAA section 126(c) where 

EPA may set a compliance deadline ‘‘as 

expeditiously as possible, but in no case 

later than 3 years after the date of such 

finding.’’ 

One commenter noted that CAA 

section 182(b)(1)(A) as modified by 

section 181(b)(1) requires for moderate 

areas that the RFP SIP be submitted 3 

years after designation. The commenter 

disagreed with the RFP plan 

requirement to submit the plan 2 years 

after the effective date of the 

nonattainment designation as not being 

consistent with or supported by these 

CAA sections. The resources involved 

in developing, proposing and adopting 

any SIP revision are not insignificant. In 

order to ensure the most efficient use of 

resources, the commenter contended 

that EPA should not require this SIP 

revision sooner than the submission of 

the attainment demonstration, 3 years 

after the effective date of the 

designations. Allowing States 3 years to 

submit the RFP plan is consistent with 

existing CAA requirements. 

Response: After consideration of the 

comments, we have changed the final 

rule to be consistent with the approach 

advocated by a number of commenters. 

In consideration of the 2004 designation 

and the need to achieve the 2008 RFP 

reductions by December 2008, it seems 

reasonable to EPA that States first be 

given sufficient time after designation to 

formulate RFP plans. Therefore, the 

final rule allows States up to 3 years 

after designation to submit their RFP 

SIPs. However, to the extent States are 

relying on newly developed rules to 

meet all or part of the RFP requirement, 

we recommend that States adopt those 

rules as soon as possible after 

designation to provide as much time as 

possible for sources to achieve the 

emissions reductions. 

6. How should CAA restrictions on 

creditable measures be interpreted? 

Which national measures should count 

as generating emissions reductions 

credit toward RFP requirements? 

[Section VI.I.7 of June 2, 2003 

proposed rule (68 FR 32834); 

§ 51.910(a)(4) of the draft regulatory 

text; § 51.910(a)(3) of the final regulatory 

text.] 

a. Background 

Section 182(b)(1) contains provisions 

that limit creditability toward meeting 

RFP for certain limited emission 

reduction measures required prior to the 

enactment of the CAA Amendments of 

1990. We noted in the proposal that we 

believe these specific restrictions should 

continue to apply for purposes of the 8-

hour NAAQS. The proposal noted that 

Congress intended to prevent areas from 

taking credit for RFP only for those 

specific measures that were already 

adopted and in place (or required to be 

in place) prior to the date of enactment 

of the CAA Amendments of 1990 

(November 15, 1990). We said that this 

same holds true for the RFP requirement 

as it applies to the 8-hour ozone 

standard, namely preventing credit 

toward the mandatory RFP percent 

reductions for continuing reductions 

from those specific measures cited in 

the CAA that were already adopted and 

in place (or required to be adopted and 

in place) prior to the date of enactment 

of the CAA Amendments of 1990. There 

is no indication in the CAA that this 

exclusion should be changed. Congress 

mandated many emissions reductions in 

the 1990 CAA Amendments with no 

indication that they should not be 

credited to meeting RFP or attainment of 

any existing or revised NAAQS. 

Therefore, we proposed that all 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71641 

emissions reductions that occur from all 

Federal and any other measures not 

otherwise identified in section 

182(b)(1)(C) and (D) and that occur after 

the baseline emissions inventory year 

would be creditable for the RFP 

requirement. A number of examples 

demonstrating emissions reductions that 

would be creditable toward the RFP 

requirement were set forth in our 

proposal. 

b. Summary of Final Rule 

We are taking the approach we 

proposed, under which all emissions 

reductions that occur after the baseline 

emissions inventory year are creditable 

for purposes of the RFP requirements in 

this section except as specifically 

provided in section 182(b)(1)(C) and (D) 

and section 182(c)(2)(B) of the CAA. The 

restriction imposed by section 

182(b)(1)(D) limits crediting reductions 

from the following four categories: 

• Corrections to or additions of RACT 

rules as required by CAA section 

182(a)(2)(A). 

• Corrections to I/M programs for 

areas where the SIP included or was 

required to include a schedule for I/M 

implementation under the CAA in effect 

immediately before November 15, 1990. 

• Regulations concerning Reid Vapor 

Pressure (RVP) promulgated by EPA 

before November 15, 1990 or required to 

be promulgated under CAA section 

211(h). 

• Motor vehicle exhaust or 

evaporative emissions measures 

promulgated by EPA by January 1, 1990. 

c. Comments and Responses 

Comment: One commenter supported 

EPA’s proposal to allow credit towards 

RFP requirements of all emissions 

reductions, which occur after the 

baseline emissions inventory year 

(2002) from all Federal, and any other 

measures not otherwise identified under 

section 182(b)(1)(D). This would include 

reductions from cleaner fuels and 

engines, reductions from ongoing 1-hour 

SIP controls and VOC reductions from 

implementation of MACT standards 

after the baseline year. The commenter 

stated that this proposed approach 

would be critical in a number of areas 

that already have stringent stationary 

source controls and/or in areas 

dominated by mobile source emissions. 

Response: The EPA acknowledges this 

comment of support for our final action. 

Comment: Another commenter 

believed that early voluntary emissions 

reductions prior to 2003, and not 

required under the CAA, should also be 

creditable toward RFP requirements. 

The commenter recommended that 

EPA’s final rule clarify that States be 

allowed credit for RFP for early 

voluntary emissions reductions 

occurring prior to 2003. As a company 

that has proactively taken measures to 

reduce NOX emissions through 

innovative Combustion Initiative (an 

enhanced efficiency technology), the 

commenter believed that EPA’s 

regulations should take these efforts into 

account as they have resulted in real 

improvements to air quality. Another 

commenter stated that companies who 

made voluntary reductions prior to 2003 

would be penalized for having 

undertaken such voluntary measures 

and, thus disallowing credit for these 

reductions provides disincentives for 

voluntary reductions. 

Response: Voluntary reductions that 

occur prior to January 1, 2003 will be 

reflected in the area’s baseline 

inventory. This lower baseline means 

that fewer reductions will be needed to 

achieve RFP.43 Allowing an area to take 

credit for reducing emissions that are 

not included in the inventory would 

result in ‘‘double counting’’ of those 

emissions reductions. 

Comment: One commenter suggested 

that areas should be able to take credit 

for MACT standards that may reduce 

VOC for which compliance is required 

after the 2002 baseline year. The 

commenter said it would be helpful to 

States if EPA produced a document 

detailing the expected VOC reductions 

after implementation of MACT 

standards. States could claim these 

reductions toward any reductions 

required to meet their target. The 

commenter suggested that the most 

useful way to express the reduction 

would be as a percent of the 2002 

emissions. 

Response: The EPA agrees that areas 

can take credit in RFP plans for post2002 VOC reductions from MACT 

standards. We are considering whether 

to develop the recommended guidance. 

Comment: One commenter objected to 

EPA’s proposal to allow States to claim 

RFP credit from any reductions 

achieved through post-1990 adoption of 

the types of measures listed in section 

182(b)(1)(D). The commenter further 

stated that section 182(b)(1)(D) prohibits 

granting RFP credit for any measures 

contained on the list. Congress wanted 

the RFP reductions to be new reductions 

rather than emission cuts that would 

43 For example, if an area had VOC emissions in 

2001 of 100 tons per day, and a source reduces 

emissions by 10 tons per day in 2002, the baseline 

emissions will be 90 tons per day. Thus, the area 

will need to achieve 13.5 tons per day reduction to 

meet its 15 percent requirement, rather than 15 tons 

per day. However, the area cannot take credit in the 

15 percent plan for the 10 tons per day of emissions 

that are not part of the baseline inventory. 

have occurred anyway. In the case of 8-

hour nonattainment areas, the baseline 

year will be 2002. Therefore, according 

to the commenter, to be consistent with 

subpart 2, EPA must disallow RFP 

credit for measures listed in section 

182(b)(1)(D) adopted any time prior to 

2002. 

Another commenter urged EPA to 

consider a hybrid approach that gives 

States credit for approved RFP plans 

that go beyond 2002, provided that the 

Plan is evaluated on a 2002 baseline. 

This approach would give States credit 

for ongoing emissions reductions, 

recognize the need to address the 8-hour 

standard as the ozone standard (rather 

than rely on plans developed to meet 

the 1-hour standard), and potentially 

avoid some unneeded controls. 

Another commenter recommended 

that EPA not allow emissions reductions 

credit for all emissions reductions 

occurring after the baseline year. 

Emissions reductions to satisfy the RFP 

requirements of CAA section 182(b)(1) 

and 182(c)(2)(B) are required to be 

achieved by submitting ‘‘a revision to 

the applicable implementation plan to 

provide for * * * emissions 

reductions.’’ The commenter argued that 

emissions reductions already required 

by, or accounted for in, the applicable 

implementation plan may not be 

credited toward the new RFP 

requirements. For example, reductions 

that were required to be achieved by SIP 

or other requirements, but which were 

not achieved in practice prior to the 

baseline year, should not be credited 

toward meeting the new RFP reductions 

required after the baseline year. Only 

new measures submitted with the new 

SIP revision may be credited for this 

purpose. 

Response: The EPA believes that, with 

certain exceptions (see CAA section 

182(b)(1)(C) and (D)), any reductions 

that occur after 2002 are creditable 

towards RFP and attainment and that it 

should not matter when the State 

initially adopted or EPA promulgated 

the measures that produce those 

reductions. The CAA does not mandate 

the approaches advocated in the 

comments. While the comments cite 

phrases in the CAA that might be read 

to support the approach advocated in 

the comments, EPA believes such an 

interpretation is at odds with other 

provisions of the CAA. In addition to 

the restriction imposed by section 

182(b)(1)(D) on crediting certain 

measures, section 182(b)(1)(C) places 

only two restrictions on creditability of 

reductions towards RFP: first, 

reductions are creditable if they result 

from measures in the applicable 

implementation plan, i.e., the approved 

71642 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

SIP or from rules promulgated by EPA, 

or from the applicable requirements 44 

that are incorporated into a title V 

permit; and secondly, only those 

reductions that have actually occurred 

after the baseline year and before the 

milestone date may be credited towards 

a RFP milestone. The requirement that 

the reductions result from measures in 

the applicable implementation plan or 

EPA regulations, or applicable 

requirements contained in a title V 

operating permit imposes no restriction 

that such measures must be enacted 

after the date of designation or after the 

baseline year. This restriction only 

requires that the measure approved into 

the SIP be a rule promulgated by EPA 

or be an applicable requirement 

included in a title V permit issued 

before or concurrently with approval of 

the RFP SIP revisions, and that the 

reductions occur after the baseline year 

and before the milestone date. 

While this provision limits EPA’s 

discretion to allow credit towards the 

RFP requirement from any reduction 

that does not fit into any of the three 

aforementioned classes of measures, 

EPA does not see anything in the statute 

that mandates the adoption of the 

approach advocated in the comments. In 

fact, EPA believes the opposite is the 

case. 

The same argument (i.e., that 

creditable RFP measures must be 

measures adopted/promulgated after 

designation or after the baseline year) 

could have been made for the various 

programs mandated by the 1990 CAA 

Amendments. These mandated 

measures included RACT requirements 

under section 182(b)(2), Stage II vapor 

recovery under section 182(b)(3), motor 

vehicle I/M under sections 182(b)(4) and 

182(c)(3), RFG under section 211(k), and 

the Tier 1 motor vehicle standards 

under title II. The EPA believes the 

statute is plain that Congress envisioned 

that all of these would be adopted after 

1990 and in most cases implemented 

before 1996 because the statute contains 

enforceable deadlines for submission of 

the requisite SIP revisions or 

promulgation of the EPA rules. In many 

cases, they contain required 

implementation dates before 1996. 

Congress clearly did not limit credit for 

RFP for any of these measures. In our 

proposed rulemaking, EPA specifically 

proposed allowing use of reductions 

resulting from any measure as long as 

the reductions meet the creditability 

criteria of section 182(b)(1)(C) for the 

44 Applicable requirements are federallyenforceable requirements under the CAA that are 

created elsewhere but incorporated into a title V 

permit. See the definition of ‘‘Applicable 

requirement’’ in 40 CFR 70.2 and 71.2. 

very reason EPA concluded Congress 

did not intend to impose the sort of 

limit on creditability advocated in the 

comments for the 1-hour standard and 

for any revised standard. 

In summary, the statute says that only 

four specific categories of emissions 

reductions are restricted. It does not 

refer to or include any post-1990 rules’ 

emissions reductions as restricted and 

only speaks to creditability in terms of 

when the reductions occurred, not when 

the rules or measures were adopted. As 

explained in the proposal and the 

preceding paragraphs, Congress had 

reason to limit creditability of pre-1990 

rules, mandated many post-90 rules and 

allowed these rules to be credited 

towards post-90 RFP, and nothing in the 

statute leads us to believe that Congress 

would not have wanted them to also be 

creditable to post-2002 RFP. The EPA 

believes it is appropriate to allow credit 

toward RFP for emissions reductions 

other than reductions from the four 

categories specified in the CAA 

pursuant to section 182(b)(1)(D). 

Language that was once pertinent to the 

schedule of the 1990 CAA Amendments 

should be reinterpreted now to mean 

emissions reductions are creditable 

toward emissions reductions 

requirements to the extent they actually 

occur during the relevant ROP period 

and after the baseline year. 

7. For areas covered only by subpart 1, 

how should the RFP requirement be 

structured? 

[Section VI.I.8. of June 2, 2003 

proposed rule (68 FR 32834); § 51.910(b) 

of the draft and final regulatory text.] 

a. Background 

The proposal noted that the RFP 

requirement under subpart 1 is more 

general than that under subpart 2, and 

EPA thus has more flexibility in 

determining what RFP means under 

subpart 1. For instance, the State may 

rely on emissions reductions of VOC or 

NOX, or a combination of both to meet 

its RFP requirement whereas subpart 2 

limits the initial 15 percent to VOC 

emissions reductions. However, we 

acknowledged the concern about 

treating in a similar manner areas under 

subpart 1 that have an ozone problem 

similar to areas covered under subpart 

2. 

We proposed scenarios for three types 

of subpart 1 areas: (a) Areas with 

attainment dates 3 years or less after 

designation, (b) Areas with attainment 

dates between 3 to 6 years after 

designation, and (c) Areas with 

attainment dates beyond 6 years after 

attainment. 

• Areas with attainment dates 3 years 

or less after designation. 

We proposed these areas would be 

treated similar to areas under subpart 2 

that are classified as marginal, which do 

not have an RFP requirement. We 

proposed such an area would not be 

subject to a separate RFP requirement, 

but RFP would be met by demonstrating 

the area could attain the standard by its 

attainment date. 

• Areas with attainment dates 

between 3 to 6 years after designation. 

These areas would have attainment 

dates similar to subpart 2 areas 

classified as moderate. We proposed 

two options for these areas: 

• Option 1. This option would 

require the RFP plan to be submitted 

with the attainment demonstration 

within 3 years after designation of the 

nonattainment area and RFP would be 

met by a SIP that provides for 

attainment as expeditiously as 

practicable. Where areas have only 3 

years after SIP submission before 

attainment, this option recognizes that 

there may be only a short amount of 

time available to achieve any specified 

emissions reductions to meet RFP. The 

draft regulatory text incorporated this 

option. 

• Option 2. This option would 

require these areas to be treated in a 

manner similar to subpart 2 areas 

classified as moderate. The RFP SIP 

would have to provide for a 15 percent 

emission reduction from the baseline 

year within 6 years after the baseline 

year. The RFP SIP would have to be 

submitted within 2 years after 

designation. However, since the area is 

subject only to subpart 1, VOC or NOX 

emissions reductions could be relied on 

to meet the 15 percent reduction 

requirement, consistent with EPA’s NOX 

substitution policy.45 Also, we solicited 

comment on whether a percentage other 

than 15 percent should be required as 

the minimum. Additional measures that 

would provide the remaining portion of 

the emissions reductions needed for 

attainment would have to be submitted 

with the area’s attainment 

demonstration within 3 years after 

designation. 

• Areas with attainment dates beyond 

6 years after designation. 

These areas would have attainment 

dates similar to areas classified under 

subpart 2 as serious or higher. We 

proposed that the RFP plan show 

increments of progress from the baseline 

emissions inventory year out to the 

attainment date. The RFP SIP would 

45NOX Substitution Guidance. December 15, 

1993 (available at http://www.epa.gov/ttn/oarpg/ 

t1pgm.html). 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71643 

first have to provide for a 15 percent 

emission reduction from the baseline 

year within 6 years after the baseline 

year. The 15 percent RFP SIP would 

have to be submitted within 2 years 

after designation. However, since the 

area is subject only to subpart 1, NOX 

emissions reductions could be 

substituted for some or all of the 15 

percent reduction requirement, 

consistent with EPA’s NOX substitution 

policy. Also, we solicited comment on 

whether a percentage other than 15 

percent would be more appropriate. For 

each subsequent 3-year period out to the 

attainment date, another RFP SIP would 

have to provide for an additional 

increment of progress no less than the 

amount of emissions reductions that 

would be proportional to the time 

between the end of the first increment 

to the attainment date. This second RFP 

SIP would have to be submitted at the 

same time as the attainment 

demonstration, namely within 3 years 

after designation. 

b. Summary of Final Rule 

We are finalizing rules for two, rather 

than three, categories of areas based on 

the CAA’s division of attainment dates 

for subpart 1 areas under section 

172(a)(2). This provision requires that 

subpart 1 areas must attain as 

expeditiously as practicable but no later 

than 5 years after designation as a 

nonattainment area. It also allows the 

Administrator to extend the attainment 

date beyond that 5 year period ‘‘*** 

for a period no greater than 10 years 

from the date of designation as 

nonattainment, considering the severity 

of nonattainment and the availability 

and feasibility of pollution control 

measures.’’ The two scenarios for RFP 

for subpart 1 areas are based on whether 

the area does or does not receive an 

extended attainment date. The following 

are the two scenarios and the RFP 

requirements for each: 

Scenario A: Areas with attainment dates 

5 years or less after designation (i.e., on 

or before June 15, 2009 for areas 

designated June 15, 2004). 

As noted elsewhere in this preamble, 

for areas classified under subpart 1, 

emissions reductions needed for 

attainment must occur by the beginning 

of the ozone season preceding the 

attainment date. Thus, to enable a SIP 

to demonstrate attainment by June 15, 

2009, the area must achieve all 

necessary reductions by the beginning 

of the 2008 ozone season. The final rule 

provides that RFP for these areas would 

be met by ensuring emissions 

reductions needed for attainment are 

implemented as noted above by the 

beginning of the ozone season prior to 

the attainment date. 

Scenario B: Areas with attainment dates 

more than 5 years after designation (i.e., 

beyond June 15, 2009 for those areas 

designated June 15, 2004). For these 

areas: 

• The RFP plan must show 

increments of progress from the baseline 

emissions inventory year out to the 

attainment date. 

• The RFP SIP would first have to 

provide for a 15 percent emission 

reduction from the baseline year 

through the 6th year after the baseline 

year (e.g., from January 1, 2003 through 

December 31, 2008). 

• The 15 percent RFP SIP must be 

submitted within 3 years after 

designation (e.g., by June 15, 2007). 

• However, since the area is subject 

only to subpart 1, NOX or VOC 

emissions reductions (or both) could be 

used to achieve the 15 percent emission 

reduction requirement. 

• For each subsequent 3-year period 

out to the attainment date, the RFP SIP 

would have to provide for an additional 

increment of progress. The increment 

for each 3-year period would be a 

portion of the remaining emission 

reductions needed for attainment 

beyond those reductions achieved for 

the first increment of progress (e.g., 

beyond 2008 for areas designated 

nonattainment in June 2004). 

Specifically, the amount of reductions 

needed for attainment should be 

divided by the number of years needed 

for attainment after the first increment 

of progress in order to establish an 

‘‘annual increment.’’ For each 3-year 

period out to the attainment date, the 

area must achieve roughly the portion of 

reductions equivalent to three annual 

increments.46 This second RFP SIP must 

46 For example, if the area’s attainment date is 

2014, and a total of 30 percent reduction is needed 

between the end of 2008 and the attainment date 

(a 6-year period) to reach attainment, the ‘‘annual 

increment’’ would be 5 percent (i.e., 1⁄6 of 30 

percent). Thus, the area must achieve roughly the 

portion of reductions equivalent to 15 percent (3 × 

5 percent) during the first 3 years (2009, 2010, 

2011), and the remaining amount over the next 3 

years (2012, 2013, 2014). By using the word 

‘‘roughly’’ in the regulatory text, EPA does not 

intend that States would be able to delay substantial 

emission reductions from one 3-year period to the 

next. Rather, EPA intends this modifier to allow 

small deviations from the amount of emission 

reductions that would be needed to meet a 3-year 

RFP requirement. For example, assume that the 

‘‘annual increment’’ of reductions needed for an 

area to reach attainment (after the initial 6-year RFP 

obligation) is 5 tons per day and that the area has 

6 additional years until attainment. Thus, for each 

of the two 3-year periods until attainment, the area 

would need ‘‘roughly’’ 15 tons per day, so long as 

the total for both periods is equivalent to or greater 

than 30 tons per day (i.e., the total reductions 

needed for attainment). Assuming the area could 

also be submitted within 3 years after 

the effective date of designation (i.e., by 

June 15, 2007). 

While the adopted rule is not 

identical to any of the proposed options, 

we believe it is a logical outgrowth of 

our three proposed scenarios. The 

adopted approach is more stringent than 

certain of the proposed options and less 

stringent than others. Since this final 

decision incorporates elements of the 

three proposed scenarios, we believe it 

is similar in result to the three scenarios 

proposed. 

c. Comments and Responses 

Comment: One commenter stated that 

EPA has no authority to adopt ‘‘Option 

1’’ for areas with attainment dates 

between 3 and 6 years after designation, 

because that option would waive any 

showing of RFP. 

Response: The EPA acknowledges 

that Congress prescribed specific RFP 

requirements under subpart 2, but for 

subpart 1 provided more flexibility. 

Our rule does not eliminate RFP 

obligations for subpart 1 areas. We are 

not requiring any specific percent 

reduction for subpart 1 areas with nearterm attainment dates. The measures 

that bring about near-term attainment 

represent all the reductions that are 

reasonable to require as annual 

incremental progress towards 

attainment. The EPA is not compelled to 

require a 15 percent emission reduction 

for all subpart 1 areas, especially in 

those cases where a full 15 percent is 

not needed in order to reach attainment. 

However, we believe that it is generally 

appropriate to require the full 15 

percent for areas with long-term 

attainment dates to ensure interim 

progress towards attainment. 

Comment: Some commenters 

supported the proposal that ties the 

required RFP showing to the attainment 

date. Specifically, these commenters 

supported the proposal that areas with 

attainment dates of 3 years or less 

should have no separate RFP 

requirement, consistent with the 

requirement applicable to marginal 

areas under subpart 2. In addition, 

support was shown for Option 1 for 

subpart 1 areas with an attainment date 

between 3 and 6 years following 

designations. Under Option 1, areas 

achieve 14 tons per day during the first 3-year 

period, and achieve the remaining 16 tons per day 

during the second 3-year period, we believe this 

would be consistent with achieving ‘‘roughly the 

portion of reductions equivalent to three annual 

increments.’’ We do not believe, however, that use 

of the word roughly allows States to delay 

substantial emission reductions. Thus, in the 

example above, it would not be appropriate for the 

State to delay reductions of several tons per day 

until the second 3-year period. 

71644 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

would have to show an adequate rate of 

reduction in order to achieve attainment 

by the deadline, but there would be no 

specific percentage reduction required. 

Response: We acknowledge the 

support of these comments. 

Comment: Another commenter 

believed that a 15 percent emissions 

reductions requirement should only be 

required where such reductions would 

meaningfully advance the date of 

attainment. The RFP requirement in 

subpart 1 requires that the SIP provide 

for ‘‘reasonable further progress,’’ and 

where emissions reductions would not 

create ‘‘reasonable further progress’’ 

either in the area itself or in downwind 

areas, there is no basis under subpart 1 

to require such specific emissions 

reductions. They further said that 

requiring a potentially expensive 

reduction in emissions in those cases 

where that reduction would not 

improve air quality was not justified 

based on a notion of ‘‘equity’’ with 

similar areas classified under subpart 2 

and noted that such an interpretation 

was not required by the statute or 

sensible. That some subpart 2 areas 

might have to reduce emissions by a 

specified percentage even where such 

reductions would yield no positive 

environmental benefits is an 

unfortunate result of the Congress’ 

decision to limit EPA’s discretion under 

subpart 2—which in turn is a result of 

a far less sophisticated understanding of 

the dynamics of ozone creation in 1990 

than exists now—and where EPA has 

the discretion not to dictate an 

ineffective and inefficient result, it must 

exercise that discretion. 

Response: We addressed in general 

those comments that recommended 

alternatives to the mandatory measures 

of subpart 2 (which includes the RFP 

requirement) in the response to 

comments above under the topic, 

‘‘Should prescribed requirements of 

subpart 2 apply in all 8-hour 

nonattainment areas classified under 

subpart 2, or is there flexibility in 

application in certain narrowly-defined 

circumstances?’’ We conclude in that 

section that EPA has no discretion to 

broadly waive mandatory requirements. 

However, we noted that case law may 

provide support for case-by-case 

waivers where implementation of a 

measure would produce an absurd 

result. 

8. Where Part of an 8-hour 

Nonattainment Area Was a 1-hour 

Nonattainment Area With a ROP 

Obligation Extending Past 2002, Can 

Emissions Reductions From the Area’s 

1-hour ROP Plan Be Used as Credit 

Toward Meeting the Area’s 8-hour RFP 

Plan? 

[Section VI.I.9. of June 2, 2003 

proposed rule (68 FR 32835); no draft or 

final regulatory text.] 

a. Background 

We proposed the following approach 

to address this issue. Where an area has 

both 1-hour and 8-hour RFP obligations 

for the post-2002 period, the State may 

rely on emissions reductions from the 1-

hour plan in achieving RFP for the 8-

hour standard. The State could develop 

a new baseline and new RFP emission 

reduction targets for the entire 8-hour 

standard nonattainment area (i.e., the 

old 1-hour standard nonattainment area 

and any newly added portion of the 8-

hour standard nonattainment area). 

Emissions reductions from measures in 

the 1-hour ozone SIP that are achieved 

after the 8-hour ozone NAAQS baseline 

year could count (subject to creditability 

restrictions as discussed above) toward 

meeting the RFP requirement for the 

entire 8-hour area. 

This approach would set a RFP target 

for the entire 8-hour ozone 

nonattainment area. Under this 

approach, the new RFP target for the 8-

hour standard would replace the 

previous 1-hour ROP target (while 

ensuring that, at a minimum, the 

emissions reductions required to meet 

the old target are met; see 40 CFR 

51.905(a)(1)(iii)). 

b. Summary of Final Rule 

We are adopting the approach from 

the proposal. 

c. Comments and Responses 

Comment: One commenter agreed 

with the approach outlined in the 

proposal but cautioned that the States 

would have to ensure that the target is 

at least as stringent as the 1-hour ROP 

target, thus ensuring no backsliding on 

the 1-hour NAAQS requirements. Under 

this approach, the State would have to 

develop a new baseline and new RFP 

emission reduction targets for the entire 

8-hour standard nonattainment area. 

Emissions reductions from measures in 

the 1-hour ozone SIP that are achieved 

after the 8-hour ozone NAAQS baseline 

year could count (subject to credibility 

restrictions as discussed in the proposed 

rulemaking) toward meeting the RFP 

requirement for the entire 8-hour area. 

The new RFP target for the 8-hour 

standard would replace the previous 1-

hour ozone target (while ensuring that, 

at a minimum, the emissions reductions 

required to meet the old target are met). 

Response: We agree with the 

commenter that the emission reduction 

targets under the 8-hour standard must 

be at least as stringent as the 1-hour 

targets. Section IV.E.3. of this preamble 

discusses the requirements for RFP for 

several situations relative to the area’s 

former obligations under the 1-hour 

standard and the current obligations 

under the 8-hour standard. The 

obligations of an area under the antibacksliding provisions of 40 CFR 

51.905(a)(1)(iii) would still apply, 

meaning that emissions reductions 

under the 1-hour ROP requirements 

would still be required as if the 1-hour 

standard had never been revoked. 

Therefore, the new 8-hour emission 

target for the 8-hour area would be 

logically at least as stringent as under 

the 1-hour area for a given time period. 

9. Will EPA’s ‘‘Clean Data Policy’’ 

Apply for Purposes of 8-hour RFP, 

Attainment Demonstrations and Other 

Related Requirements? 

[Section VI.I.10 of June 2, 2003 

proposed rule (68 FR 32835); no draft 

regulatory text; section 51.918 of final 

rule.] 

a. Background 

As noted in the proposal, we issued 

a policy on May 10, 1995, which allows 

EPA to determine that an area has 

attained the standard and that certain 

planning requirements (e.g., RFP and 

attainment demonstrations) will not 

apply so long as the area remains in 

attainment.47 This is referred to as the 

‘‘Clean Data Policy.’’ We proposed that 

this policy would remain effective for 

purposes of areas that EPA determines 

have attained the 8-hour ozone NAAQS. 

b. Summary of Final Rule 

In the proposed rule, we indicated 

that the Clean Data Policy, which we 

had applied under the 1-hour standard, 

should apply for purposes of the 8-hour 

standard. We are adopting this 

approach. In this action EPA is 

finalizing the statutory interpretation 

that is embodied in the policy. The text 

of the final rule encapsulates the 

statutory interpretation set forth in the 

policy. Determinations as to whether 

individual areas have attained the 8-

47 Memorandum of May 10, 1995, ‘‘RFP, 

Attainment Demonstration, and Related 

Requirements for Ozone Nonattainment Areas 

Meeting the Ozone National Ambient Air Quality 

Standard,’’ from John S. Seitz, Director, Office of 

Air Quality Planning and Standards. Available at: 

http://www.epa.gov/ttn/oarpg/t1/memoranda/ 

clean15.pdf. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71645 

hour standard and thus qualify for 

application of the policy will be made 

in the context of rulemakings for those 

individual areas. 

The EPA has applied the Clean Data 

Policy in rulemakings under the 1-hour 

ozone standard to both subpart 1 areas, 

e.g., San Francisco Bay Area (69 FR 

21717; April 22, 2004) and subpart 2 

areas, e.g., St. Louis, Missouri (68 FR 

25418; May 12, 2003). The EPA will also 

apply the policy to both subpart 1 and 

subpart 2 areas under the 8-hour 

standard. 

c. Comments and Responses 

Comment: One commenter stated that 

EPA’s ‘‘Clean Data Policy’’ is unlawful 

with respect to both the 1-hour and 8-

hour NAAQS. A commenter argued that 

EPA also has no authority to waive the 

attainment demonstration and RFP 

plans mandated by subpart 2 on the 

pretext that an area has clean data. The 

CAA unambiguously requires these 

plans for any area designated 

nonattainment for the pollutant ozone, 

and gives EPA no power whatsoever to 

waive such plan requirements. 

Several other commenters supported 

the continued use of the ‘‘Clean Data 

Policy.’’ 

Response: The EPA believes that the 

Clean Data Policy comports with the 

provisions of the CAA in regard to 

attainment demonstrations, ROP plans, 

RACM, contingency measures and other 

related requirements. The Clean Data 

Policy, issued on May 10, 1995, sets 

forth EPA’s interpretation that where 

EPA has determined that an area has 

attained the standard, certain SIP 

requirements are suspended (e.g., RFP) 

for so long as the area remains in 

attainment. 

As set forth in its May 10, 1995 

policy, EPA believes it is reasonable to 

interpret the provisions regarding RFP 

and attainment demonstrations, along 

with certain other related provisions, as 

not requiring further submissions to 

achieve attainment for so long as the 

area is in fact attaining the standard. 

Under the policy, EPA is not granting an 

exemption from any applicable 

requirements under part D. Rather, EPA 

has interpreted these requirements of 

subparts 1 and 2 as not applying for so 

long as the area remains in attainment 

with the standard. This is not a waiver 

of requirements that by their terms 

apply; it is a determination that certain 

requirements are written so as to be 

operative only if the area is not attaining 

the standard. 

The EPA has explained in other 

rulemaking actions on the 1-hour ozone 

standard its rationale for the 

reasonableness of this interpretation of 

the CAA and incorporates these 

explanations by reference. See, for 

example, 67 FR 49600 (July 31, 2002); 

65 FR 37879 (June 19, 2000) (CincinnatiHamilton, Ohio-Kentucky); 61 FR 20458 

(May 7, 1996) (Cleveland-Akron-Lorain, 

Ohio); 66 FR 53094 (October 19, 2001) 

(Pittsburgh-Beaver Valley, 

Pennsylvania); 60 FR 37366 (July 20, 

1995); 61 FR 31832–33 (June 21, 1996) 

(Grand Rapids, MI); 60 FR 36723 (July 

18, 1995) (Salt Lake and Davis Counties, 

Utah); 68 FR 25418 (May 12, 2003) (St. 

Louis, Missouri); 69 FR 21717 (April 22, 

2004) (San Francisco Bay Area). The 

EPA has also set forth its legal rationale 

for the Clean Data Policy in briefs filed 

in the 10th, 7th, and 9th Circuits, and 

hereby incorporates those briefs insofar 

as relevant here. See Sierra Club v. EPA, 

No. 95–9541 (10th Cir.), Sierra Club v. 

EPA, No. 03–2839, 03–3329 (7th Cir.), 

Our Children’s Earth Foundation v. 

EPA, No. 04–73032 (9th Circuit). 

As stated in the policy, the attainment 

demonstration, RFP requirements and 

contingency measure requirement are 

designed to bring an area into 

attainment. Once this goal has been 

achieved, it is appropriate to suspend 

the obligation that States submit plans 

to meet these goals, so long as the area 

continues to attain the relevant 

standard. 

The Tenth, Seventh and Ninth 

Circuits have upheld EPA rulemakings 

applying the Clean Data Policy. See 

Sierra Club v. EPA, 99 F. 3d 1551 (10th 

Circuit, 1996), Sierra Club v. EPA, 375 

F. 3d 537 (7th Circuit, 2004) and Our 

Children’s Earth Foundation v. EPA, No. 

04–73032 (9th Circuit, June 28, 2005) 

memorandum opinion. 

Comment: A commenter said that 

although subpart 2 contains some 

narrowly crafted exceptions [e.g., CAA 

182(b)(1)(A)(ii)], there are no exceptions 

based on clean data. In the past, EPA 

has cited a Tenth Circuit decision, 

Sierra Club v. EPA, 99 F. 3d 1551 (10th 

Circuit, 1996), as supporting the Clean 

Data Policy. The commenter contended 

that case was wrongly decided and has 

been superseded by the Supreme Court 

decision in Whitman v. American 

Trucking Assoc., Inc., 531 U.S. 457 

(2001). There, the Court held that 

subpart 2 eliminates regulatory 

discretion previously allowed to EPA 

under subpart 1, and noted that subpart 

2 prescribes large parts of 

nonattainment programs, for example, 

section 182. The requirements for RFP 

and attainment demonstrations are 

among those subpart 2 nonattainment 

programs that Congress prescribed by 

law, thereby eliminating EPA discretion 

to accept something less. See also Sierra 

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

2002) (holding that EPA is without 

authority to infer exceptions to 

attainment deadlines and to explicit 

subpart 2 requirements for RFP plans). 

Response: The EPA believes that the 

Tenth Circuit correctly decided Sierra 

Club v. EPA and that the comments 

misconstrue both Whitman and Sierra 

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

2002) (Sierra Club 2002). The Sierra 

Club 2002 case addressed the statutory 

requirements applicable to an area not 

attaining the standard. The issue of the 

requirements of part D of title I of the 

CAA that must continue to be met by 

areas that EPA has determined are 

monitoring attainment of the standard 

was not before the court. As discussed 

below, the Sierra Club 2002 decision 

upheld EPA’s determination that the 

RACM provision under section 172(c)(1) 

requires only additional measures that 

could contribute to RFP or attainment, 

which is an element of EPA’s 

application of the Clean Data Policy. To 

this limited extent, Sierra Club 2002 is 

relevant to EPA’s interpretation that the 

policy will apply for the 8-hour ozone 

standard, and the decision supports 

EPA’s interpretation. However, the other 

issues addressed in the decision 

(extension of the statutory attainment 

date for areas affected by ozone 

transport, the content of a 

demonstration of RFP toward 

attainment, and whether contingency 

measures must be submitted as part of 

an attainment demonstration or plan for 

RFP) did not relate to the Clean Data 

Policy or how the subpart 2 

requirements apply to areas attaining 

the standard. 

The issue addressed by the Clean Data 

Policy is whether an area that has 

attained the standard (as evinced by air 

quality monitoring data) still needs to 

submit a demonstration of how the area 

will achieve enough reductions to 

demonstrate that it will ‘‘attain the 

NAAQS,’’ a plan to obtain reasonable 

periodic reductions towards the goal of 

attainment and other related 

requirements. 

The EPA continues to believe that the 

statutory requirement for an attainment 

demonstration—a SIP revision which 

identifies the level of future reductions 

needed to achieve the NAAQS and any 

additional adopted measures needed to 

achieve these future reductions—is 

written so as to be inapplicable once the 

NAAQS is attained. 

In addition, EPA believes that the 

RACM requirements are a ‘‘component’’ 

of an area’s attainment demonstration 

under section 172(c)(1). General 

Preamble 57 FR 13560; April 16, 1992. 

Thus, since for the same reason the 

attainment demonstration no longer 

71646 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

applies by its own terms, RACM also no 

longer applies. The EPA has 

consistently interpreted this provision 

to require only implementation of 

potential RACM measures that could 

contribute to reasonable further progress 

or to attainment. General Preamble 57 

FR 13498; April 16, 1992. Thus, where 

an area is already attaining the standard, 

no additional RACM measures are 

required.48 

Likewise, EPA concludes that the 

provision for RFP—a plan for annual 

incremental reductions leading to 

attainment—is also expressed in terms 

that show that RFP is unnecessary in 

areas attaining the standard. For areas in 

attainment, there is no longer a need to 

plan for measures to meet that goal. 

Similarly, EPA continues to believe that 

the contingency measure requirements 

of section 172(c)(9) no longer apply in 

an area that is attaining the standard 

since those ‘‘contingency measures are 

directed at ensuring RFP and attainment 

by the applicable date.’’ (See 57 FR 

13564; April 16, 1992). The section 

182(c)(9) contingency measure 

requirement also no longer applies once 

an area has attained the standard. 

Section 172(c)(2) of the CAA and the 

related provisions of subpart 2 provide 

that RFP is required only where an area 

continues to violate the standard. By 

definition, the ‘‘reasonable further 

progress’’ provision requires only such 

reductions in emissions as are necessary 

to attain the NAAQS by the attainment 

date. If an area has attained the 

standard, the stated purpose of the RFP 

provision has been fulfilled. Also, 

section 172(c)(1) and the related 

provisions of subpart 2 require SIPS to 

provide for attainment of the NAAQS. 

(See also section 182(b)(1)(A)(i) which 

requires that SIPS for moderate ozone 

nonattainment areas must ‘‘provide for 

such specific annual reductions in 

emissions of [VOCs] and [NOX] as 

necessary to attain the [ozone NAAQS]’’ 

by the applicable attainment date). 

When an area has attained the NAAQS, 

there is no need for a plan 

demonstrating how it will reach 

attainment, and thus the attainment 

demonstration provision no longer 

applies. Similarly section 172(c)(9) and 

the related provisions of subpart 2 

provide that SIPs in nonattainment 

48 [The EPA’s interpretation that the statute 

requires only implementation of RACM measures 

that would advance attainment was upheld by the 

United States Court of Appeals for the Fifth Circuit 

(Sierra Club v. EPA, 314 F. 3d 735, 743–745, 5th 

Cir. 2002) and by the United States Court of 

Appeals for the D.C. Circuit (Sierra Club v. EPA, 

294 F. 3d 155, 162–163, D.C. Cir. 2002). See also 

the final rulemakings for Pittsburgh-Beaver Valley, 

Pennsylvania, 66 FR 53096 (October 19, 2001) and 

St. Louis, 68 FR 25418 (May 12, 2003).] 

areas shall provide for contingency 

measures to be undertaken if the area 

fails to make RFP or to attain the 

NAAQS by the applicable attainment 

date. Since contingency measures are 

required only if RFP or attainment is not 

achieved, there is no need for them 

where the area has attained the 

standard. The language of these 

statutory provisions indicates that when 

an area has attained the standard these 

requirements no longer apply as the 

purpose of these provisions— 

attainment—has been accomplished. 

The EPA believes that Whitman does 

not provide a basis to reconsider our 

position on the Clean Data Policy. In 

Whitman, the Court was addressing 

EPA’s stated approach that subpart 2 

did not apply for purposes of 

implementing the 8-hour NAAQS. In 

the Phase 1 rule, EPA addressed the 

Court’s decision and concluded that 

subpart 2 does apply. The issue here is 

not whether it applies, but how those 

requirements apply under a specific 

situation where an area has attained the 

NAAQS. That issue was not addressed 

by the Court in Whitman. The decision 

in Whitman has no bearing on the 

question of whether an area that has 

demonstrated attainment must 

nonetheless submit an attainment 

demonstration plan and related 

requirements. Thus, Whitman does not 

undermine the Tenth Circuit’s reasoning 

in Sierra Club v. EPA, 99 F. 3d 1551 

(10th Circuit, 1996). See also the postWhitman decisions in Sierra Club v. 

EPA, 375 F. 3d 537 (7th Circuit, 2004), 

and Our Children’s Earth Foundation v. 

EPA, No. 04–73032, memorandum 

opinion (9th Circuit, June 28, 2005) 

rejecting challenges to the Clean Data 

Policy and upholding redesignation 

actions based on the policy. 

10. How will RFP be addressed in Tribal 

areas? 

[Section VI.I.11. of June 2, 2003 

proposed rule (68 FR 32835); no draft or 

final regulatory text.] 

a. Background 

The TAR provides flexibility for 

Tribes in the preparation of a TIP to 

address the NAAQS. As mentioned in 

the proposed rulemaking, the TAR 

provides the Tribes with the ability to 

develop TIPs to address and implement 

the NAAQS in Indian country. It further 

provides the Tribes with flexibility to 

develop these plans in a modular way, 

as long as the elements of their TIPs are 

reasonably ‘‘severable.’’ For example, 

each TIP submission must include a 

demonstration that the Tribe has 

authority to develop and run its 

program, the ability to enforce its rules, 

and the capacity and resources to 

implement the program it adopts. 

Therefore, it may include one or two 

source-specific requirements but may 

not include provisions for RFP and 

other SIP requirements. The proposal 

noted that these TIPs can be an 

important step in addressing an overall 

air quality plan to achieve health and 

environmental goals on Tribal lands. 

Where a Tribe chooses not to address a 

specific planning element, EPA may be 

obligated to step in. Such action would 

not preclude a Tribe from addressing 

those elements at a later time. 

b. Summary of Policy 

We intend to take the approach noted 

in the proposal. There is no regulatory 

text for this intention. 

c. Comments and Responses 

No comments were received on this 

portion of the proposal. 

11. How will RFP targets be calculated? 

[Section VI.I.12. of June 2, 2003 

proposed rule (68 FR 32836); § 51.910(c) 

of the draft and final regulatory text.] 

a. Background 

We proposed a methodology for the 

calculation of RFP target levels of 

emissions that is based on the method 

we developed for the 1-hour standard, 

while taking into account our 

interpretation of CAA restrictions on 

creditable emissions and our proposal to 

use the 2002 inventory as the baseline 

inventory for the RFP requirement. The 

CAA specifies four types of measures 

that were not creditable toward the 15 

percent RFP requirement. These are: 

(1) Any measure relating to motor 

vehicle exhaust or evaporative 

emissions promulgated by the 

Administrator by January 1, 1990. 

(2) Regulations concerning Reid 

Vapor Pressure (RVP) promulgated after 

1990 or required under section 211(h). 

(3) Measures required under section 

182(a)(2)(A) to correct deficiencies in 

SIPs regarding VOC RACT regulations 

required prior to enactment of the CAA 

Amendments of 1990. 

(4) State regulations submitted to 

correct deficiencies in I/M existing or 

required programs. 

These four types of measures were all 

expected to result in a decrease in 

emissions between 1990 and 1996. Of 

these four types of measures, RACT and 

I/M program corrections and the 1992 

RVP requirements were completely in 

place by 1996 and therefore are already 

accounted for in the 2002 baseline. As 

a result, they would produce no 

additional reductions between 2002 and 

2008 or later milestone years. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71647 

However, the pre-1990 Federal Motor 

Vehicle Control Program (FMVCP) will 

continue to provide additional benefits 

during the first two decades of the 21st 

century as remaining vehicles meeting 

pre-1990 standards are removed from 

the vehicle fleet. Because these benefits 

are not creditable for RFP purposes, in 

order to calculate the target level of 

emissions for future RFP milestone 

years (i.e., 2008, 2011, etc.), States must 

first calculate the reductions that would 

occur over these future years as a result 

of the pre-1990 FMVCP. We proposed 

three methods to properly account for 

the non-creditable reductions when 

calculating RFP targets for the 2008 and 

later RFP milestone years. 

b. Summary of Final Rule 

The calculation methods have been 

revised slightly from those in the 

proposal. The revisions now account for 

NOX reductions and take account of 

other mobile emissions models other 

than the MOBILE model. The methods 

appear as appendix A to this preamble. 

These methods are consistent with the 

requirements of sections 182(b)(1)(C) 

and (D) and 182(c)(2)(B) of the CAA. 

c. Comments and Responses 

Comment: One commenter agreed that 

the base emission level should be 

decreased by reductions that occur from 

the pre-1990 FMVCP standards (1990 

I/M program and fuel RVP of 9.0 or 7.8 

psi). However, the commenter further 

recommended that the reductions from 

pre-1990 FMVCP standards be 

calculated using the I/M program and 

fuel properties in effect during the new 

baseline year of 2002. 

The commenter claimed an advantage 

of the recommended change is that it 

removes from the non-creditable 

reductions from the pre-1990 FMVCP 

standards, creditable reductions from 

controls implemented prior to 2003 

(such as improvements to the I/M 

program or cleaner gasoline). 

The commenter claimed that the EPA 

proposal specifies using the MOBILE6 

command NO CAA in the calculation of 

the non-creditable emissions reductions. 

The commenter concurred that this 

command could be used, but recognized 

that some of the controls in effect during 

2002 cannot be modeled with this 

command. (Refer to technical specifics 

of this comment in the response to 

comment document). 

Response: The EPA does not agree 

with the commenter that the noncreditable pre-1990 FMVCP reductions 

should be calculated using the I/M 

program and fuel properties in effect 

during the new baseline year of 2002. 

Including the I/M program and fuel 

properties in effect in 2002 in the 

calculation of non-creditable reductions 

would not accurately account for 

reductions that are the result of pre1990 Federal motor vehicle control 

measures. The EPA believes that the 

methods provided in the final rule 

accurately identify the non-creditable 

reductions from pre-1990 motor vehicle 

standards and provide appropriate 

credit for all post-1990 control 

measures. 

12. Should EPA continue the policy of 

allowing substitution of controls from 

outside the nonattainment area within 

100 kilometers for VOC and 200 

kilometers for NOX? 

[Section VI.I.2. of June 2, 2003 

proposed rule (68 FR 32833); no draft or 

final regulatory text.] 

a. Background 

The proposal noted [68 FR 32833] that 

EPA currently has a policy that allows 

States to take credit for RFP for NOX and 

VOC controls that occur outside the 

nonattainment areas [‘‘Guidance for 

Implementing the 1-Hour Ozone and 

Pre-Existing PM10 NAAQS, December 

29, 1997’’]. Specifically, the guidance 

allows credit for VOC reductions 

occurring up to 100 km outside the area 

and for NOX reductions occurring up to 

200 km outside the area (statewide 

where a regional NOX control strategy is 

being implemented). The policy 

indicates that credit may be taken only 

for emissions reductions from measures 

not otherwise mandated by the CAA. As 

explained in the policy, EPA believes 

that this additional flexibility for 

crediting reductions outside 

nonattainment areas is consistent with 

the CAA. We noted in the proposed 

policy that reductions from outside a 

nonattainment area within the 

geographic limits contribute to progress 

toward attainment within the area (61 

FR 65758). 

Under this approach, the geographic 

area for substitution of VOC emissions 

reductions is 100 km from the 

nonattainment area and the geographic 

area for substitution of NOX reductions 

is 200 km from the nonattainment area 

with the possibility for additional 

expansion of the NOX substitution area 

as follows. Nitrogen oxides emissions 

reductions from anywhere within the 

State may be credited for those States 

that participate in a regional NOX 

control strategy such as the NOX SIP 

Call. All other States implementing a 

NOX substitution strategy for RFP would 

be restricted to a distance of 200 km 

from the nonattainment area, unless a 

substitution for a greater distance is 

accompanied by adequate technical 

justification. Substitutions are restricted 

to intrastate areas unless two or more 

States involved reach mutual agreement. 

The EPA notes that in all cases the 

distances in the policy provide only a 

general policy presumption that, if used, 

would need data resources in the record 

showing that reductions from sources in 

the specific locations in attainment 

areas benefit the nonattainment area. 

See LEAN v. EPA, 382 F. 3d 575 5th 

Circuit, 2004. 

b. Summary of Final Rule 

States may continue to rely on 

emissions reductions from outside the 

nonattainment area for credit toward 

their RFP obligations.49 In doing so, 

States should ensure that the reductions 

meet the standard tests of creditability 

(permanent, enforceable, surplus, and 

quantifiable) and are shown to be 

beneficial toward reducing ozone in the 

nonattainment area. 

c. Comments and Responses 

Comment: Several commenters 

supported this feature of EPA’s proposal 

regarding RFP because it allows the 

States flexibility to tailor control 

strategies to address the issues specific 

to a particular nonattainment area. 

The commenters supported 

codification (68 FR 32833, column 1) in 

the final rule of the December 29, 1997 

guidance memo (‘‘Guidance for 

Implementing the 1-Hour Ozone and 

Pre-Existing PM10 NAAQS’’) that allows 

emissions reductions from outside the 

nonattainment area to be creditable 

toward RFP. One commenter agreed that 

States ought to be able to account for 

regional emissions in their attainment 

demonstrations. On the other hand, the 

commenter was concerned that the 

Agency might allow jurisdictions to 

‘‘credit’’ emissions reductions from 

sources up to 100 km for VOC and 200 

km for NOX toward 15 percent RFP 

plans, and this in turn could encourage 

jurisdictions in need of these tonnage 

49 Last September, the EPA Office of Inspector 

General submitted a report (outside the rulemaking 

process) outlining concerns and recommendations 

with respect to the potential for double counting of 

emissions reductions and problematic equity issues. 

U.S. EPA Office of the Inspector General. In 

responding to that report, we indicated that we 

would consider the various recommendations as we 

assess existing policies and guidance in parallel to 

the rulemaking for implementing the 8-hour ozone 

standard. [Evaluation Report: EPA and States Not 

Making Sufficient Progress in Reducing Ozone 

Precursor Emissions In Some Major Metropolitan 

Areas. Report No. 2004–P–00033. September 29, 

2004.] [Memorandum from Jeffrey R. Holmstead to 

J. Rick Beusse, ‘‘Response to the Office of the 

Inspector General (OIG) Evaluation Report, EPA 

and States Not Making Sufficient Progress in 

Reducing Ozone Precursor Emissions in Some 

Major Metropolitan Areas,’’ Report No. 2004–P– 

00033. December 29, 2004. March 25, 2005.] 

71648 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

reductions to regulate without a sound 

basis. The commenter contended that 

while ozone is known to be a ‘‘regional 

pollutant,’’ EPA has failed to establish 

in this rulemaking any technical basis 

for allowing States to impose 

regulations on sources outside the 

nonattainment area boundaries without 

independent justification of the impact 

of such sources on an area’s failure to 

attain the standard. 

Response: We developed our 1997 

policy as a result of the modeling results 

relating to the NOX SIP Call (see, for 

example, 63 FR 57355, October 27, 

1998, and 69 FR 21604, April 21, 2004). 

These modeling analyses demonstrate 

that significant contribution to 

nonattainment resulted not only from 

source emissions within a 

nonattainment area but also from source 

emissions over a much broader area. Not 

only can these emissions from outside 

the nonattainment area affect air quality 

within the nonattainment area, in some 

cases it might be necessary to include 

and control emission sources located in 

the nearby areas in order to attain the 

standard. We believe it is appropriate to 

allow States to take credit for reductions 

from sources outside their 

nonattainment areas where data indicate 

that those emissions affect air quality in 

the nonattainment areas. 

We note that section 182(c)(2)(C), 

which provides for the substitution of 

NOX controls for VOC, speaks in terms 

of reductions of ozone concentrations 

rather than strictly reductions in 

emissions. This provision led us to 

conclude that Congress’ intent for the 

ROP requirement is to lower ozone 

concentrations within the 

nonattainment area. It is consistent with 

that intent that emissions reductions 

from outside the nonattainment area 

that will reduce ozone concentrations in 

the nonattainment area should be 

creditable in RFP demonstrations. We 

also believe that the CAA is clear that 

both the 15 percent plan requirement of 

section 182(b)(1) and the 3 percent per 

year requirement of section 182(c)(2) are 

specific varieties of RFP requirements.50 

Section 171(1) of the CAA states that, 

for purposes of part D of title I, RFP 

‘‘means such annual incremental 

reductions in emissions of the relevant 

air pollutant as are required by this part 

or may reasonably be required by the 

50 The EPA notes that paragraph (1) of subsection 

182(b) is entitled ‘‘Plan Provisions for Reasonable 

Further Progress’’ and that subparagraph (B) of 

paragraph 182(c)(2) is entitled ‘‘Reasonable Further 

Progress Demonstration,’’ thereby making it clear 

that both the 15 percent plan requirement of section 

182(b)(1) and the 3 percent per year requirement of 

section 182(c)(2) are specific varieties of RFP 

requirements. 

Administrator for the purpose of 

ensuring attainment of the applicable 

NAAQS by the applicable date.’’ Thus, 

whether dealing with the general RFP 

requirement of section 172(c)(2), or the 

more specific RFP requirements of 

subpart 2 for classified ozone 

nonattainment areas (i.e., the 15 percent 

plan requirement of section 182(b)(1) 

and the 3 percent per year requirement 

of section 182(c)(2)), the purpose of RFP 

is to ensure attainment by the applicable 

attainment date. Emissions reductions 

strategies applied to sources outside the 

nonattainment area may help decrease 

ambient ozone levels within the 

designated area. Since RFP/ROP is 

progress towards attainment, specific, 

annual emissions reductions from 

geographic areas outside the 

nonattainment area boundaries that 

contribute to lower ambient ozone 

levels in the nonattainment area would 

fall within the scope of ‘‘such annual 

incremental reductions in emissions of 

the relevant air pollutant as are required 

* * * for the purpose of ensuring 

attainment of the applicable NAAQS by 

the applicable date.’’ 

Comment: One commenter requested 

clarification that if the 100 km/200 km 

area extends into adjacent States that 

reductions in those States should also 

be creditable, especially with regard to 

the implementation of Federal 

measures. 

Response: We intend to look into this 

issue further in the future as part of the 

overall reassessment of the 100 km/200 

km credit issue. 

Comment: Another commenter 

expressed confusion by the provision to 

allow creditable reductions be made 

outside nonattainment areas. They 

asked if reductions made outside a 

nonattainment area actually bring that 

nonattainment area into compliance 

with the standard, then shouldn’t those 

outside areas be designated 

nonattainment by definition? The 

commenter contended that this 

contradiction is unacceptable, and a 

fatal flaw of current designation efforts 

and this implementation proposal. 

Response: The commenter appears to 

be commenting on the designation 

process as well as the implementation 

rule. To the extent that the commenter 

has concerns about the process EPA 

used for designating areas as 

nonattainment, those issues should have 

been raised prior to the time EPA 

promulgated designations in April 2004. 

The EPA is not taking any action in this 

rulemaking to establish the procedures 

for designating areas or to designate 

areas. In the designation process that 

was completed in April 2004, EPA 

provided guidance to areas regarding 

how to determine the boundaries of 

nonattainment areas in light of the 

statutory definition of ‘‘nonattainment,’’ 

which provides that an area will be 

designated nonattainment if it is either 

violating the NAAQS or is a ‘‘nearby’’ 

area that ‘‘contributes to ambient air 

quality’’ in an area that is violating the 

standard.51 The CAA does not establish 

a hard-and-fast set of rules for 

determining ‘‘nearby’’ or ‘‘contributes 

to,’’—i.e., it does not specify a distance 

that is nearby or a specific level of 

emissions that is deemed to ‘‘contribute 

to’’ nonattainment. Nor did EPA 

establish a hard-and-fast set of rules; 

rather the guidance provided a broad set 

of factors for States and EPA to consider 

in determining the boundaries of each 

nonattainment area. Thus, it is not 

inconsistent with the statute that there 

are areas that were not designated 

nonattainment, but that have emissions 

that affect air quality in a nonattainment 

area. 

Comments on Draft Regulatory Text 

Comment: One commenter 

recommended that EPA state, either in 

the preamble to this rule or in the rule 

itself, that any VOC emissions 

reductions within 100 km and any NOX 

emissions reductions within 200 km of 

the nonattainment boundary, including 

reductions in adjacent States, are 

creditable for RFP plan purposes. They 

also suggested that EPA provide that 

reductions from voluntary measures 

should be incorporated into the baseline 

emissions inventory calculation. 

Another commenter stated that EPA 

does not specify in § 51.910(a)(4) that in 

areas where the 3 percent annual 

reduction is required, those reductions 

must be achieved within the statutorily 

defined baseline ‘‘area.’’ [CAA section 

182(b)(1)(B)]. The commenter stated that 

we issued initial NOX substitution 

guidance in 1993 that required RFP 

reductions to be achieved from sources 

within the designated nonattainment 

area. The commenter noted that 

subsequently, we attempted to 

unlawfully allow RFP reductions to be 

obtained from sources within the 

modeling domain. The commenter 

advocated that we clarify that the CAA 

requires creditable reductions to be 

obtained only from sources within the 

designated nonattainment areas. 

Response: We believe that the policy 

does not need to be incorporated into a 

rule. Since areas must include record 

51 Memorandum from John Seitz, ‘‘Boundary 

Guidance on Air Quality Designations for the 8-

Hour Ozone National Ambient Air Quality 

Standards (NAAQS or Standard).’’ March 28, 2000. 

Found at: http://www.epa.gov/ozonedesignations/ 

guidance.htm. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71649 

support for application of the policy in 

an area demonstrating that emissions 

from regulated sources affect ambient 

air quality in the specific nonattainment 

area, individual rulemaking in the 

context of an area’s SIP must be 

conducted in any event to implement 

the policy. The EPA believes that any 

reductions that in fact result in 

improved air quality within the 

nonattainment area can be credited to 

RFP demonstrations. Voluntary 

emissions reductions that are used to 

satisfy RFP requirements—or any 

requirements under the CAA—must 

meet EPA’s criteria for creditability of 

such reductions, particularly the 

inclusion in the baseline of the 

emissions from the sources that would 

be producing the voluntary reductions. 

As explained elsewhere in response to 

another comment on the policy of 

allowing substitution of controls from 

outside the nonattainment area within 

100 km for VOC and 200 km for NOX, 

EPA disagrees with the comment that 

the CAA limits the scope of creditable 

emissions reductions to only those 

reductions in emissions emanating from 

within the nonattainment area 

boundaries. We also address elsewhere 

the comment relating to allowance of 

RFP credit from emissions reductions 

outside the State in which the 

nonattainment area is located. 

13. When must RFP emissions 

reductions be achieved? 

[Section VI.I. of June 2, 2003 proposed 

rule (several locations starting at 68 FR 

32832); several locations including 

§ 51.910(a)(1) of the draft and final 

regulatory text.] 

a. Background 

Section 51.910(a)(1) of the draft 

regulatory text provided that for areas 

initially designated nonattainment for 

the 8-hour NAAQS, the initial 6-year 

period for RFP shall run from January 1, 

2003 to December 31, 2008. Section 

182(c)(2)(B), applicable to serious and 

above areas, requires that RFP be 

continued out to the attainment date. 

Therefore, § 51.910(a)(2) of the draft 

regulatory text provided, ‘‘For each area 

classified as serious or higher under 

§ 51.903, the State must submit no later 

than 3 years after the effective date of 

the area’s nonattainment designation a 

SIP revision consistent with section 

182(c)(2)(B) of the CAA for each 3 year 

period following the initial 6-year 

period addressed under paragraph 

(a)(1)(ii)(B) of this section until the 

area’s attainment date. For areas 

initially designated nonattainment for 

the 8-hour NAAQS the 3-year periods 

referenced in section 182(c)(2)(B) of the 

Act shall begin January 1, 2009.’’ 

In applying the requirement of section 

182(c)(2)(B), it is necessary to know the 

attainment date for the area. The 

attainment date is not necessarily the 

maximum allowed under part D of the 

CAA, but must be ‘‘as expeditious as 

practicable’’ but no later than the 

maximum statutory date (e.g., 9 years 

after designation for a serious area). 

Thus, for purposes of determining the 

period for which RFP is needed, the 

State must have completed an 

attainment demonstration and RACM 

analysis (discussed elsewhere in this 

preamble) to demonstrate that the 

attainment date selected is as 

expeditious as practicable. 

There are several other provisions that 

bear on the issue of when emissions 

reductions must be achieved for 

purposes of the RFP requirements. The 

Phase 1 Rule, § 51.900(g) sets forth the 

following definition: ‘‘Attainment year 

ozone season shall mean the ozone 

season immediately preceding a 

nonattainment area’s attainment date.’’ 

Also, § 51.908 52 (What is the required 

time frame for obtaining emission 

reductions to ensure attainment by the 

attainment date?) provides: ‘‘For each 

nonattainment area, the State must 

provide for implementation of all 

control measures needed for attainment 

no later than the beginning of the 

attainment year ozone season.’’ Thus, if 

the latest attainment date allowed by the 

CAA for a serious area designated in 

2004 is June 15, 2013, the (complete) 

ozone season preceding that date would 

occur in 2012. However, if all of the 

reductions necessary to achieve 

attainment are in place prior to that 

ozone season, then the most expeditious 

attainment date would in fact be just 

after the end of that ozone season in 

2012 (assuming the RACM analysis did 

not compel a more expeditious 

attainment year). Thus, in light of the 

Phase 1 rule, the latest possible 

attainment date for all areas will be just 

after the end of the ozone season in the 

year prior to the outside attainment date 

identified in the statute for the area’s 

classification.53 

Consistent with the manner in which 

ROP plans under the 1-hour ozone 

standard were developed, the RFP 

baseline for 2002 will have a typical 

summer day tons/day basis. As such, 

the attainment year target will also be a 

typical summer day target. Thus, the 

52 With this rulemaking, this provision is codified 

as 40 CFR 51.908(d). 

53 With the exception of areas with year-round 

ozone seasons, in which case the latest attainment 

date may be earlier in the year of the outside 

attainment date identified in the statute. 

target level of emissions must be met by 

the attainment date of the attainment 

year.54 

As noted above, section 182(c)(2)(B) 

requires that RFP be continued out to 

the attainment date. Thus, to some 

extent, the RFP requirement may help 

determine the attainment date. In the 

example discussed above of a serious 

area, the first milestone year after 2008 

by which an annual average of 3 percent 

emissions reductions would have to be 

achieved over each 3-year period (i.e., 9 

percent over 3 years) would be 2011, 

with an additional annual average of 3 

percent per year between the end of 

2011 and the attainment year (if the 

attainment year is beyond 2011). The 

maximum statutory attainment year 

under the discussion above would be 

2013, but, for the reasons explained 

above concerning the date by which 

emissions reductions must be achieved, 

the actual maximum attainment year 

would generally be the year prior, viz., 

2012. If for example this area needs an 

additional 7 percent emission reduction 

for attainment purposes beyond 2008, 

however, RFP would require 

implementation of the entire 7 percent 

no later than the end of 2011. Since that 

is the amount needed for attainment, the 

area would actually achieve attainment 

by 2011, and the attainment date would 

then have to be no later than 2011. If the 

area did not achieve this 7 percent 

reduction until the end of 2011, the RFP 

requirement in this case could not 

require the full 9 percent reduction. 

Thus, since RFP is only needed up to 

the attainment date, should the area 

achieve the 7 percent earlier in the year 

it would have achieved attainment and 

no further ROP would be required. 

Therefore, in this example, RFP would 

not require more reductions than 

needed for attainment. Furthermore, the 

RFP requirement by itself would not 

force an attainment year earlier than 

2011 for this case (e.g., 2010—2 years 

after 2008), since the 7 percent 

reduction over 2 years is greater than an 

annual average of 3 percent, which is 

beyond that required by the RFP 

requirement. In summary, RFP 

reductions end at the attainment date, 

and as shown the RFP requirement 

would not result in emissions 

reductions greater than needed for 

attainment. 

b. Summary of Final Rule 

For each area classified as moderate 

or higher, the State’s 15 percent VOC 

54 Note that 40 CFR 51.900(g) defines ‘‘Attainment 

year ozone season’’ as the ozone season 

immediately preceding a nonattainment area’s 

attainment date. 

71650 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

emission reduction plan must provide 

for the emissions reductions to be 

achieved by the end of the 6-year period 

after the baseline year. The 6-year 

period referenced in section 182(b)(1) of 

the CAA shall begin January 1 of the 

year following the year used for the 

baseline emissions inventory. For areas 

initially designated nonattainment for 

the 8-hour NAAQS, the 6-year period 

runs from January 1, 2003 to December 

31, 2008. 

For each area classified as serious or 

higher, the State’s RFP plan must 

provide a 3 percent annual emission 

reduction requirement averaged over 

every 3-year period after the initial 6-

year period. For areas initially 

designated nonattainment for the 8-hour 

NAAQS, the first 3-year period would 

run from January 1, 2009 to December 

31, 2011. The final increment of 

progress must be achieved no later than 

the attainment date for the area. 

To summarize, for areas designated 

nonattainment for the 8-hour NAAQS 

with an effective date of June 15, 2004, 

the rule would establish the following: 

• The 6-year period in section 

51.910(a)(1)(i)(A) and (ii)(C)(1) would 

run from January 1, 2003 to December 

31, 2008. 

• The first 3-year period in section 

51.910(a)(1)(i)(B) would run from 

January 1, 2009 to December 31, 2011. 

• The baseline emissions inventory in 

section 51.910(d) would be for calendar 

year 2002. 

c. Comments and Responses 

No comments were received on the 

proposal concerning the timing of 

emissions reductions needed for RFP. 

14. Banked Emission Reduction Credits 

(Including Shutdown Credits) 

Can pre-baseline emission reduction 

credits be used to satisfy the RFP 

requirement? [No discussion in June 2, 

2003 proposal; no draft or final 

regulatory text.] 

a. Background 

This topic was not discussed in the 

proposed rulemaking, but we believe 

that questions that have arisen on this 

topic bear some discussion here. 

The CAA provides the following 

definition in section 182(b)(1)(D) 

regarding the 15 percent VOC RFP 

requirement: 

Baseline emissions. For purposes of 

subparagraph (A), the term ‘‘baseline 

emissions’’ means the total amount of actual 

VOC or NOX emissions from all 

anthropogenic sources in the area during the 

calendar year of the enactment of the Clean 

Air Act Amendments of 1990, excluding 

* * * [emphasis added.] 

The April 1992 General Preamble 

provides: 

The adjusted base year inventory (i.e., 

baseline emissions) must contain only actual 

emissions occurring in the base year, 1990, 

within the designated nonattainment area 

boundaries. The baseline emissions should 

not include pre-enactment banked emission 

credits since they were not actual emissions 

during the calendar year of enactment [57 FR 

13507; April 16, 1992; emphasis added]. 

and 

Pre-enactment banked emissions reductions 

credits are not creditable toward the 15 

percent progress requirement. However, for 

purposes of equity, EPA encourages States to 

allow sources to use such banked emissions 

credits for offsets and netting. When States 

use such banked credits for offsets and 

netting to the extent otherwise creditable 

under the Part D NSR regulations, these preenactment emissions credits must be treated 

as growth. Consequently, this ‘‘growth’’ must 

be accounted for, as is the case with all other 

anticipated growth, in order to ensure that it 

does not interfere with the 15 percent rate of 

progress requirement (which is ‘‘net’’ of 

growth). In addition, when such growth 

emissions are used as offsets, they must be 

applied in accordance with the offset ratio 

prescribed for the area of concern (e.g., 1.3 

to 1 for severe areas, etc.). All pre-enactment 

banked credits must be included in the 

nonattainment area’s attainment 

demonstration for ozone to the extent that the 

State expects that such credits will be used 

for offsets or netting prior to attainment of 

the ambient standards. Credits used after that 

date will need to be consistent with the area’s 

plan for maintenance of the ambient standard 

[57 FR 13508]. 

The EPA’s 1992 guidance on 

calculating the 15 percent emission 

target 55 contained the following: 

4.3 Pre-enactment Banked Emissions 

Reduction Credits. If the State has an 

emissions credit bank that meets the EPA’s 

requirements under an earlier policy 

statement [56], the State is allowed to use its 

pre-enactment banked emissions reduction 

credits to facilitate the location of new 

sources in nonattainment areas during the 

1990–1996 period. However, because these 

reduction credits represent emissions that are 

not included in the 1990 base year inventory, 

any additional emissions that result from the 

use of banked credits must be treated as 

growth in order to ensure that the 15 percent 

55 Guidance on the Adjusted Base Year Emissions 

Inventory and the 1996 Target for the 15 Percent 

Rate-of-Progress Plans. Ozone/Carbon Monoxide 

Programs Branch, U.S. Environmental Protection 

Agency, Office of Air Quality Planning and 

Standards, Research Triangle Park, NC 27711. EPA– 

452/R–92–005. October 1992. 

56 51 FR 233 ‘‘Emissions Trading Policy 

Statement; General Principles for Creation, Banking 

and Use of Emission Reduction Credits; Final 

Policy Statement and Technical Issues Document.’’ 

December 4, 1986. This document has been 

replaced by Improving Air Quality with Economic 

Incentive Programs, January 2001, available at 

http://www.epa.gov/region07/programs/artd/air/ 

policy/search.htm. 

VOC emissions reduction requirement is 

achieved. Also, it is important to note that 

the use of pre-enactment banked emissions 

credits must be in accordance with the offset 

ratios prescribed in the CAA Amendments 

(e.g., 1.3 to 1 in severe areas.) 

The 1992 guidance document 

provides an example calculation of the 

above guidance. 

b. Interpretation for 8-Hour Ozone 

NAAQS 

The guidance provided above is still 

relevant for banked emission reduction 

credits in relation to the RFP 

requirement for the 8-hour ozone 

standard. However, because the rule for 

implementing the 8-hour ozone 

standard uses a 2002 baseline year, the 

above guidance should be read—for 

purposes of implementing the 8-hour 

ozone RFP requirement—by substituting 

‘‘pre-enactment banked emission 

credits’’ with ‘‘pre-2002 banked 

emission credits.’’ A pre-2002 banked 

emission credit is one that was 

generated before January 1, 2002 and 

that is certified in a bank that EPA has 

approved for such purposes. For a 

discussion of the use of shutdown/ 

curtailment credits for offsets and 

netting, see section V.B.1.a of this 

preamble. For a discussion of the use of 

emission reduction credits for offsets 

and netting, see section V.D.5 of this 

preamble. 

F. Are contingency measures required in 

the event of failure to meet a milestone 

or attain the 8-hour ozone NAAQS? 

[Section VI.J. of June 2, 2003 proposed 

rule (68 FR 32837); no draft or final 

regulatory text.] 

1. Background 

Under the CAA, 8-hour ozone 

nonattainment areas subject only to 

subpart 1, as well as those classified 

under subpart 2 as moderate, serious, 

severe, and extreme must include in 

their SIPs contingency measures 

consistent with sections 172(c)(9) and 

182(c)(9), as applicable. Contingency 

measures are additional controls to be 

implemented in the event the area fails 

to meet a RFP milestone or fails to attain 

by its attainment date. These 

contingency measures must be fully 

adopted rules or measures which are 

ready for implementation quickly upon 

failure to meet milestones or attainment. 

For additional background 

information, see the Proposal (68 FR 

32802, June 2, 2003). Other related 

information can be found in the 

following applicable guidance 

documents: 

• ‘‘Contingency Measures for Ozone 

and Carbon Monoxide (CO) 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71651 

Redesignations,’’ Memorandum from 

G.T. Helms, Chief, Ozone/Carbon 

Monoxide Programs Branch, June 1, 

1992, 

• ‘‘Procedures for Processing 

Requests to Redesignate Areas to 

Attainment,’’ Memorandum from John 

Calcagni, Director, Air Quality 

Management Division, September 4, 

1992, 

• ‘‘Guidance for Growth Factor, 

Projections, and Control Strategies for 

the 15 percent Rate-of-Progress Plans,’’ 

(EPA–452/R–93–002), March 1993, 

• ‘‘Early Implementation of 

Contingency Measures for Ozone and 

Carbon Monoxide (CO) Nonattainment 

Areas,’’ Memorandum from G.T. Helms, 

Chief, Ozone/Carbon Monoxide 

Programs Branch, August 13, 1993, 

• ‘‘Guidance on Issues Related to the 

15 Percent Rate-of-Progress Plans,’’ 

Memorandum from Michael H. Shapiro, 

Acting Assistant Administrator for Air 

and Radiation to the Regional Division 

Directors, August 23, 1993, 

• ‘‘Clarification of Issues Regarding 

the Contingency Measures that are due 

on November 15, 1993 for Moderate and 

Above Ozone Nonattainment Areas,’’ 

Memorandum from D. Kent Berry, 

Acting Director, Air Quality 

Management Division, November 8, 

1993, and 

• ‘‘Guidance on the Post 1996 Rate-ofProgress Plan (ROP) and Attainment 

Demonstration,’’ (EPA–452/R–93–015), 

January 1994. 

2. Summary of Final Rule 

We are adopting the approach taken 

in our proposal. All subpart 1 and 

subpart 2 areas other than marginal 

areas are required to adopt contingency 

measures to be implemented in the 

event of failure to meet a RFP milestone 

or to attain the 8-hour ozone NAAQS. 

The contingency measures SIP should 

accompany the attainment 

demonstration SIP required for 

submission by June 15, 2007. 

It should be noted that the CAA 

requires States to identify contingency 

measures that will go into effect without 

further action on the part of the State or 

EPA. We believe this language means 

that contingency measures should be 

adopted regulations but also recognize 

that some additional State or local 

action may be necessary (such as 

notification of sources) before 

implementation. 

Under subpart 2, areas that are 

nonattainment for the 8-hour ozone 

NAAQS that have unused adopted 

contingency measures for the 1-hour 

ozone NAAQS may use those measures 

as appropriate as contingency measures 

for the 8-hour NAAQS. 

For subpart 1 areas, States should 

follow EPA’s existing guidance for 

subpart 2 areas. We intend to provide 

additional guidance only if needed. 

3. Comments and Responses 

Comment: Two commenters raised 

concerns about the difficulty some areas 

may have in identifying what they 

referred to as ‘‘reserve’’ or ‘‘unused’’ 

measures for the 1-hour standard that 

could be used as contingency measures 

for the 8-hour standard for subpart 2 

areas. These commenters requested 

protection for areas that have no 

‘‘leftover’’ measures to be used in the 

event of failure to meet the milestone. 

The commenters contended that EPA 

needs to have policies that do not 

penalize areas that have implemented 

all feasible measures to attain the 

standard and may not have any 

identified contingency measures left. 

Response: The commenters appear to 

be asking EPA to drop the requirement 

for a nonattainment area SIP to contain 

contingency measures. The commenters 

have not provided a legal rationale why 

they believe it is possible to do this. The 

purpose of contingency measures is to 

have a quickly implementable backup 

plan of action should primary measures 

fail to bring a nonattaining area to the 

requisite level (be it attainment of the 

NAAQS or meeting a RFP milestone). It 

is up to each State to determine what 

measures the State will commit to 

implement should failure occur. We 

note that States may rely on regional 

and national control measures as well as 

local control measures to meet the 

contingency measure obligation. 

A list of example contingency 

measures has been provided. See 

section 9.5 of ‘‘Guidance for Growth 

Factor, Projections, and Control 

Strategies for the 15 percent Rate-ofProgress Plans,’’ (EPA–452/R–93–002), 

March 1993. The States have the 

responsibility of determining what 

contingency measures are most 

appropriate for their area(s). To allow 

nonattaining areas with seemingly few 

potential contingency measures to opt 

out of the contingency measure 

requirement is counter to the 

contingency measure provision in the 

CAA. The EPA does not see any way to 

interpret the clear language of the 

statute other than as requiring 

contingency measures in all 

nonattainment areas other than marginal 

subpart 2 areas. It should also be noted 

that the CAA’s requirement for an area’s 

SIP to demonstrate attainment by the 

attainment date is not limited to the 

adoption only of those measures that are 

‘‘feasible.’’ 

Comment: One commenter alleged 

EPA’s proposal to allow Federal 

measures that result in additional 

emissions reductions beyond RFP or 

attainment to qualify as contingency 

measures is legally invalid. The 

commenter further stated that 

contingency measures must consist of 

control requirements that will be taken 

off the shelf and undertaken if and 

when a RFP or attainment failure 

occurs. In other words, contingency 

measures must be new measures not 

Federal or local measures that already 

exist. 

Response: The CAA states that 

contingency measures are to be 

‘‘specific measures to be undertaken if 

the area fails to make reasonable further 

progress, or to attain * * * by the 

attainment date.’’ The April 16, 1992 

General Preamble provided the 

following guidance: ‘‘States must show 

that their contingency measures can be 

implemented with minimal further 

action on their part and with no 

additional rulemaking actions such as 

public hearings or legislative review. In 

general, EPA will expect all actions 

needed to affect full implementation of 

the measures to occur within 60 days 

after EPA notifies the State of its 

failure.’’ (57 FR 13512). This could 

include Federal measures and local 

measures already scheduled for 

implementation. 

The EPA has approved numerous SIPs 

under this interpretation—i.e., that use 

as contingency measures one or more 

Federal or local measures that are in 

place and provide reductions that are in 

excess to the attainment demonstration 

or RFP plan. (62 FR 15844, April 3, 

1997; 62 FR 66279, December 18, 1997; 

66 FR 30811, June 8, 2001; 66 FR 586 

and 66 FR 634, January 3, 2001.) The 

key is that the statute requires extra 

reductions that are not relied on for RFP 

or attainment and that are in the 

demonstration to provide a cushion 

while the plan is revised to meet the 

missed milestone. In other words, 

contingency measures are intended to 

achieve reductions over and beyond 

those relied on in the attainment and 

RFP demonstrations. Nothing in the 

statute precludes a State from 

implementing such measures before 

they are triggered. In fact, a recent court 

ruling upheld contingency measures 

that were previously required and 

implemented where they were in excess 

of the attainment demonstration and 

RFP SIP. See LEAN v. EPA, 382 F. 3d 

575 5th Circuit, 2004. 

Comment: One commenter supported 

EPA’s proposal to continue to observe 

existing policies regarding contingency 

measures for areas covered under 

71652 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

subpart 2 for the 8-hour standard. 

Additionally, the commenter 

anticipated that EPA’s additional 

guidance on the contingency measure 

requirement for subpart 1 will be 

patterned after the subpart 2 

requirement. 

Response: The EPA acknowledges the 

commenter’s support of our proposal 

that subpart 2 8-hour ozone 

nonattainment areas may rely on our 

existing contingency measure guidance. 

As provided above, both subpart 1 and 

subpart 2 areas should rely on that 

guidance for purposes of adopting 

contingency measures. 

G. What requirements should apply for 

RACM and RACT for 8-hour ozone 

nonattainment areas? 

[Section VI.K. of June 2, 2003 

proposed rule (68 FR 32837); § 51.912 in 

draft and final regulatory text.] 

The first subsection of this section 

covers RACT and the second subsection 

covers RACM. 

1. Reasonably Available Control 

Technology (RACT) 

a. Background 

As described in more detail in the 

June 2 proposal, subpart 1 of part D 

includes a requirement that an 

attainment plan provide for the 

implementation of all RACM as 

expeditiously as practicable, including 

such reductions that may be obtained 

through RACT. Under subpart 2, 

marginal areas are required to correct 

pre-1990 RACT requirements and new 

RACT requirements are specified for 

moderate and above ozone 

nonattainment areas. Additionally, 

States must adopt RACT for all areas in 

an OTR. The RACT requirement applies 

to both ozone precursors—NOX and 

VOC. Since 1990, we have issued 

guidance documents on the RACT 

requirements in subpart 2. Prior to 

enactment of the CAA Amendments of 

1990, EPA also issued detailed guidance 

documents on RACT for ozone 

nonattainment area SIPs.57 

Section 183(c) of the CAA requires 

EPA to ‘‘revise and update such 

documents [i.e., Control Techniques 

Guidelines and Alternative Control 

Techniques] as the Administrator 

determines necessary.’’ As new or 

updated information becomes available 

States should consider the new 

information in their RACT 

determinations. States should consider 

57 The EPA defined RACT as the lowest emission 

limitation that a particular source is capable of 

meeting by the application of control technology 

that is reasonably available considering 

technological and economic feasibility (44 FR 

53762; September 17, 1979). 

the new information in any RACT 

determinations or certifications that 

have not been issued by the State as of 

the time such an update becomes 

available.58 

The June 2, 2003 proposal addressed 

several aspects of the RACT 

requirement. For subpart 1 areas, we 

proposed several options. We proposed 

in one option to interpret the CAA in a 

manner similar to that under subpart 2 

by requiring areas covered under 

subpart 1 to face different RACT 

requirements based on the magnitude of 

the ozone problem in the area (i.e., the 

area’s design value). In another option, 

we proposed that RACT would be met 

if the area were able to demonstrate 

attainment of the standard as 

expeditiously as practicable with 

emission control measures in the SIP. 

We also proposed as an early attainment 

incentive that RACT would be met in an 

area which demonstrates attainment 

within 3 years and submits the 

demonstration within 1 year. We 

proposed the RACT submittal dates for 

subpart 1 areas would be within 2 years 

after designation. 

For subpart 2 areas, we proposed to 

apply RACT as specified in subpart 2. 

We proposed (in the draft regulatory 

text) to require that States submit their 

subpart 2 RACT SIPs within 2 years 

after the nonattainment designation. In 

addition, we proposed the date for 

affected sources to implement RACT in 

subpart 2 areas would be 30 months 

after the required submittal date. We 

also proposed that States may use 

current EPA guidance in making RACT 

determinations; consequently, in some 

cases, sources previously evaluated 

under the 1-hour ozone RACT 

requirement and sources subject to the 

NOX SIP Call cap-and-trade program 

could be determined to meet the 8-hour 

ozone RACT requirement. 

58 In addition, EPA is considering related 

recommendations from the Air Quality 

Management Work Group to the Clean Air Act 

Advisory Committee (CAAAC) dated January 2005 

[available at: http://www.epa.gov/air/caaac/ 

aqm.html#library] in response to the recent 

National Research Council report on Air Quality 

Management in the United States (January 2004) 

[available for sale; individual pages available for 

viewing at http://www.nap.edu/books/0309089328/ 

html]. One of the recommendations to the CAAAC 

is that ‘‘for the SIPs States are required to submit 

over the next several years, EPA and States, locals, 

and Tribes should promote the consideration of 

multipollutant impacts, including the impacts of air 

toxics, and where there is discretion, select 

regulatory approaches that maximize benefits from 

controlling key air toxics, as well as ozone, PM2.5 

and regional haze.’’ As part of this effort, EPA 

intends in the future to develop updated technology 

guidance with respect to source categories emitting 

multiple pollutants in large amounts. At this time, 

however, we think it is unlikely that updated 

technology guidance will be available in time for 

the RACT SIPs due in 2006. 

b. Summary of Final Rule 

For subpart 1 areas that do not request 

an attainment date extension (i.e., an 

attainment date beyond 5 years after 

designation), RACT will be met with 

control requirements sufficient to 

demonstrate that the NAAQS is attained 

as expeditiously as practicable. The 

RACT submittal date for these areas is 

the same as the submittal date for the 

attainment plan. This submission date is 

no later than 3 years after designation. 

For subpart 1 areas that request an 

attainment date extension (i.e., an 

attainment date beyond 5 years after 

designation), the State shall submit the 

RACT SIP with its attainment date 

extension request.59 For subpart 2 

moderate and above areas, and areas 

within an OTR, RACT is required with 

the RACT submittal and is due 27 

months after designation. States must 

require sources to implement RACT no 

later than the first ozone season or 

portion thereof which occurs 30 months 

after the required submittal date. 

Where a RACT SIP submission 

(separate from the attainment 

demonstration) is required (except 

certain subpart 1 areas, as described two 

paragraphs prior to this, and except 

certain sources subject to the NOX SIP 

Call or CAIR, as described below), State 

SIPs implementing the 8-hour standard 

must assure that RACT is met, either 

through a certification that previously 

required RACT controls represent RACT 

for 8-hour implementation purposes or 

through a new RACT determination. 

States may use existing EPA guidance in 

making RACT determinations. Where a 

State has adopted and EPA has 

approved a control measure as RACT for 

a specific major stationary source or 

source category for the 1-hour ozone 

NAAQS, and absent data indicating that 

the previous RACT determination is no 

longer appropriate, the State may 

submit a certification that the source is 

subject to a SIP-approved RACT 

requirement. Such certification shall be 

accompanied by appropriate supporting 

information, such as consideration of 

information received from public 

commenters. 

For purposes of meeting the NOX 

RACT requirement, the State need not 

perform (or submit) a NOX RACT 

analysis for sources subject to the state’s 

emission cap-and-trade program where 

the cap-and-trade program has been 

adopted by the State that meets the NOX 

SIP Call requirements or, in States 

achieving CAIR reductions solely from 

EGUs, the CAIR NOX requirements. The 

EPA believes that the SIP provisions for 

59 This is generally expected with the submission 

of the attainment demonstration. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71653 

those sources meet the ozone NOX 

RACT requirement. A State that is 

relying on this conclusion for the 

affected sources should document this 

reliance in its RACT SIP. 

Additionally, RACT is considered met 

for cement kilns and stationary internal 

combustion engines that are subject to a 

SIP approved as meeting the NOX SIP 

Call obligation to install and operate 

controls that are expected to achieve at 

least a 30 percent and 82 percent 

reduction, respectively, from 

uncontrolled levels. A State that is 

relying on this conclusion for the 

affected sources should document this 

reliance in its RACT SIP. 

A State may meet the NOX RACT 

requirement by showing that the 

weighted average emission rate from a 

broad range of sources in the 

nonattainment area subject to RACT 

meet RACT requirements. 

At their discretion, States are free to 

conduct a case-by-case RACT 

determination for any source—or RACT 

determinations or certifications for 

groups of sources. 

As discussed below in greater detail, 

States may use information gathered 

from prior BACT or LAER analyses, to 

the extent it remains valid, to help 

complete a RACT determination. 

Similarly, emissions standards 

developed under 111(d) and NSR/PSD 

settlement agreements may be 

considered. This will allow States, in a 

number of cases, to rely on these prior 

determinations for purposes of showing 

that a source is meeting RACT 

requirements. 

For VOC sources subject to MACT 

standards, States may streamline their 

RACT analysis by including a 

discussion of the MACT controls and 

considerations relevant to VOC RACT. 

We believe that this will allow States, in 

many cases, to rely on the MACT 

standards for purposes of showing that 

a source has met VOC RACT. 

Consistent with the proposed 

regulatory text for this rule [section 

51.912(b)(1)], the final rule provides 

that, for purposes of meeting the RACT 

obligations under section 182(b)(2)(C) of 

the CAA for major stationary sources of 

VOCs and under section 182(f) of the 

CAA for major stationary sources of 

NOX, the definition of major stationary 

source in section 302 of the CAA, as 

modified by the major source definition 

in either section 182(b), (c), (d) or (e) of 

the CAA as applicable to the area’s 

classification, applies. 

Although we drafted more extensive 

regulatory language for several aspects 

of the RACT program in the proposal, 

we believe it is sufficient to describe 

EPA’s views on the details of the RACT 

program in today’s preamble and in 

other guidance [e.g., the NOX 

Supplement to the General Preamble, 

November 25, 1992 (57 FR 55620)]. 

Thus, some detailed portions of the 

proposed regulatory text regarding 

RACT were not retained in the final rule 

(in particular paragraph (b)(2) ‘‘Prior 

RACT Determinations’’). 

c. Comments and Responses 

Comments: For subpart 2 ozone 

nonattainment areas, several States 

expressed agreement with the proposed 

approach for implementing RACT 

consistent with section 182 of the CAA. 

Response: The EPA agrees with these 

comments. 

Comments: For subpart 1 ozone 

nonattainment areas, EPA received 

several comments for and against the 

options proposed for addressing RACT. 

Several State and industry 

commenters supported EPA’s proposed 

approach that RACT would be met if the 

area is able to demonstrate attainment of 

the standard as expeditiously as 

practicable with emission control 

measures in the SIP. The reasons 

provided by these commenters were 

generally as follows: States should be 

able to use their discretion in 

determining which control strategies are 

the most effective in addressing a 

particular area’s air quality problem; 

flexibility is needed as areas differ in 

sensitivity to NOX and VOC reductions; 

EPA’s regional modeling shows these 

requirements are unnecessary in many 

areas; and many of these areas violate 

the ozone standard primarily or entirely 

due to transport. 

The EPA also received comments, 

primarily from several States and 

environmental groups, opposing the 

approach that RACT would be met by 

control measures that are part of a SIP 

demonstrating attainment of the 

standard as expeditiously as practicable. 

These commenters made the following 

points: since section 172(c)(1) of the 

CAA explicitly mandates RACT ‘‘at a 

minimum’’ in all nonattainment areas, 

Congress plainly intended to require 

RACT as a floor level of control 

technology in addition to any measures 

needed to demonstrate timely 

attainment; even where RACT does not 

advance attainment, it is needed in 

order to reduce the severity and number 

of violations; under this approach, the 

statutory RACT provisions add nothing 

to the statutory attainment mandate— 

which violates basic canons of statutory 

interpretation; RACT in nonattainment 

areas will substantially reduce transport 

of ozone and ozone precursors; for 

equity reasons, sources in similar areas 

should be subject to the same control; 

and RACT is a useful tool that should 

not be abandoned through flexibility 

mechanisms. 

Response: The general RACT 

provision under subpart 1 in the statute, 

is found in section 172(c)(1). It is a 

portion of the RACM provision found in 

that same section. Our long-standing 

interpretation of the RACM provision is 

that areas need only submit such RACM 

as will contribute to timely attainment 

and meet RFP, and that measures which 

might be available but would not 

advance attainment or contribute to RFP 

need not be considered RACM. This 

interpretation has been upheld in 

several recent court cases. See Sierra 

Club v. EPA, 294 F.39 155, 162 (D.C. 

Circuit, 2002) (concerning the 

Metropolitan Washington, D.C., 

attainment demonstration) and Sierra 

Club v. EPA, No. 01–60537 (5th Circuit, 

2002) (concerning the Beaumont 

attainment demonstration). Since 

subpart 1 RACT is a portion of RACM, 

these cases also support a conclusion 

that, where we are dealing only with 

section 172 RACT, it is reasonable to 

require only such RACT as will meet 

RFP and advance attainment. In view of 

these court cases, EPA disagrees with 

the comments listed above opposing the 

approach that, in subpart 1 areas, RACT 

would be met by control measures in a 

SIP demonstrating attainment of the 

standard as expeditiously as practicable 

and meeting RFP. 

The EPA generally agrees with 

comments that States should have 

flexibility to determine which control 

strategies are the most effective in 

reaching attainment as expeditiously as 

practicable and providing for RFP, and 

the CAA gives primary authority to 

States and local governments to select 

the mix of controls necessary to meet 

the NAAQS. In addition, EPA believes 

that section 172(c) is not the appropriate 

section of the CAA to address the 

transport of ozone and ozone 

precursors; EPA has conducted and is 

conducting rulemaking pursuant to 

sections 110 and 126 for that purpose. 

Finally, some commenters suggested, 

for equity reasons, that sources in 

similar areas should be subject to the 

same control. In the proposal, EPA 

suggested subpart 1 and 2 areas with the 

8-hour ozone design values above 91 

ppb should be subject to VOC and NOX 

RACT requirements. The EPA also 

proposed that RACT would be met in an 

area which demonstrates attainment 

within 3 years and submits the 

demonstration within 1 year. In the final 

rule, EPA has addressed equity concerns 

by taking portions of these two 

proposals, such that subpart 1 and 

subpart 2 areas with attainment 

71654 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

deadlines longer than 5 years after 

designation must meet the same RACT 

requirements. We believe longer than 5 

years is more appropriate than the 3 

years proposed for this requirement 

since this approximates the maximum 

attainment date for subpart 2 (moderate) 

areas subject to RACT and since this 

approach is consistent with the manner 

in which ROP/RFP requirements are 

treated in the final rule. 

Therefore, in subpart 1 areas that do 

not request an extension beyond the 

initial 5 years after designation, the final 

rule indicates that RACT would be met 

by the emission control measures in a 

SIP that demonstrates attainment of the 

standard as expeditiously as practicable 

and meets RFP. In addition, the final 

rule requires subpart 1 areas with 

maximum attainment deadlines longer 

than 5 years after designation to meet 

the same RACT requirements as subpart 

2 areas. This approach minimizes the 

RACT inequity with subpart 2 areas and 

provides flexibility for subpart 1 areas 

demonstrating attainment within 5 

years. 

Comment: One commenter believes 

that new marginal nonattainment areas 

should be subject to RACT under the 8-

hour standard just as they would have 

been subject to RACT immediately prior 

to the CAA Amendments of 1990. 

Response: Section 182(a) provides 

that marginal and higher classified areas 

for the 1-hour standard with pre-1990 

RACT obligations had to submit 

corrections to their RACT rules within 

6 months after classification under the 

1990 CAA Amendments. To the extent 

that any 8-hour ozone nonattainment 

areas did have this obligation, they 

already met it. See footnote 60 in the 

June 2, 2003 proposal. The CAA does 

not require RACT for marginal areas 

other than the obligation to ‘‘correct’’ 

pre-1990 RACT requirements. 

Comment: The EPA received several 

comments for and against the proposal 

that States may use a prior RACT 

determination with respect to the 1-hour 

ozone standard for purposes of meeting 

the RACT requirements for the 8-hour 

ozone standard. Further, EPA received 

comments on the proposal that a new 

RACT determination is required in cases 

where the initial RACT analysis under 

the 1-hour standard for a specific source 

or source category concluded that no 

additional controls were necessary. 

Several State and industry 

commenters supported EPA’s proposed 

approach that a prior RACT analysis 

under the 1-hour ozone standard should 

meet RACT requirements under the 8-

hour standard where major sources or 

source categories were previously 

reviewed and controls applied to meet 

RACT. These commenters stated that 

RACT is not specific to any particular 

ozone standard, such that once a source 

has met RACT, it has met RACT, 

whether or not the ozone standard is 

revised to become more (or less) 

stringent; just as with the 15 percent 

VOC requirement, the statute provides 

no basis for duplicative imposition of 

RACT; and there is no basis in the 

statute to read in a new requirement for 

RACT. In addition, some industry 

commenters stated that EGUs which 

meet title IV NOX control requirements 

would also meet the NOX RACT 

requirement. 

The EPA also received comments 

from several States opposing EPA’s 

proposed approach. These commenters 

believe the NOX and VOC guidance is 

too old, needs updating and, in the case 

of NOX controls, the improvement over 

the last 3 years has been dramatic with 

controls previously considered to be 

BACT (and therefore generally 

considered at the time to be more 

stringent than RACT) are now 

considered to be merely RACT. In 

addition, one State suggested the 

presumptive RACT level should be 

revised to at least 85 percent control or 

that NOX RACT should be defined as up 

to $10,000/ton of pollutant removed. 

Two States disagreed with EPA’s 

proposal that a new RACT 

determination should be required in 

cases where the initial RACT analysis 

under the 1-hour NAAQS found that no 

additional controls were necessary for a 

specific source or source category. They 

indicated such re-analysis would be an 

unwise use of resources because it 

would not yield significant benefits. 

Further, they do not agree that a RACT 

determination is warranted for major 

VOC or NOX sources not in existence 

during the previous RACT 

determination, because new sources in 

1-hour nonattainment areas have been 

permitted pursuant to the requirements 

for NSR and, where applicable, have 

already been subject to more stringent 

control requirements. 

Several State and industry 

commenters recommended that RACT 

requirements apply for major sources in 

any portion of the 8-hour nonattainment 

area not subject to a RACT program for 

the 1-hour standard. 

Response: In 1992, EPA set 

presumptive NOX RACT for boilers as 

combustion modification, consistent 

with title IV acid rain requirements. For 

all other NOX stationary source 

categories, EPA guidance in 1994 

indicated States should consider in their 

RACT determinations technologies that 

achieve 30–50 percent reduction within 

a cost range of $160–1300 per ton of 

NOX removed. In the NOX SIP Call Rule, 

we reviewed all major NOX source 

categories and stated in the final rule 

that the NOX SIP Call controls, at less 

than $2,000/ton, represent reductions 

beyond those required by RACT. The 

suggestion of one State that EPA’s RACT 

guidance should be revised to reflect 85 

percent control and $10,000/ton of 

pollutant removed is inconsistent with 

EPA’s previous conclusions regarding 

what level of control represents RACT 

and because the comment lacked 

supporting documentation that the 

suggested values represent feasible 

control levels for the many source 

categories affected by the RACT 

program. 

Many areas subject to the major 

source RACT requirement under the 8-

hour ozone standard have previously 

addressed the RACT requirement with 

respect to the 1-hour ozone standard. 

For example, major sources located in 

States of the Ozone Transport 

Commission were subject to the NOX 

RACT requirement in the mid-1990s. 

We believe that, in many cases, a new 

RACT determination under the 8-hour 

standard would result in the same or 

similar control technology as the initial 

RACT determination under the 1-hour 

standard because the fundamental 

control techniques, as described in the 

CTGs and ACTs, are still applicable. In 

cases where controls were applied due 

to the 1-hour ozone RACT requirement, 

we expect the incremental emissions 

reductions from application of a second 

round of controls would be small and, 

therefore, the cost for advancing that 

small additional increment of reduction 

would not be reasonable. In such cases, 

EPA believes the cost per ton of NOX 

removed associated with installing a 

second round of RACT controls (and 

perhaps the removal of initial RACT 

controls) is likely to be beyond the costs 

assumed in our current guidance noted 

above ($160–$1300/ton). In contrast, a 

RACT analysis for uncontrolled sources 

would be much more likely to find that 

RACT level controls are economically 

and technically feasible. 

The CTGs and ACTs for VOC were 

completed over a period from the late 

1970s to mid-1990s and have not been 

updated. The CTGs are still used to 

presumptively define VOC RACT. The 

EPA issued NOX ACT documents 

between 1992 and 1995. In September 

2000, updates to the NOX ACT 

documents were completed for 

stationary internal combustion engines 

and cement kilns. The NOX and VOC 

ACTs describe available control 

techniques and their cost effectiveness, 

but do not define presumptive RACT 

levels as the CTGs do. Updating the 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71655 

ACTs would not, by itself, change EPA’s 

NOX or VOC RACT guidance, but it 

could provide information that would 

lead to a new conclusion as to which 

control measures constitute RACT for a 

specific source or source category. Since 

RACT can change over time as new 

technology becomes available or the 

cost of existing technology decreases, 

EPA does not agree with comments that 

once a source has met RACT, it has met 

RACT whether or not the ozone 

standard is revised. 

We agree that progress has been made 

in improving the cost effectiveness of 

some NOX and VOC controls. States and 

other interested parties should consider 

available information that may 

supplement the CTG and ACT 

documents. In cases where additional 

information is presented, for example, 

as part of notice-and-comment 

rulemaking on a RACT SIP submittal, 

States (and EPA) would necessarily 

consider the additional data in 

reviewing what control obligation is 

consistent with RACT. Similarly, we 

encourage States to use the latest 

information available in making RACT 

determinations, whether that 

information is in CTGs, ACTs, or 

elsewhere. 

The EPA agrees that it is more 

efficient for EPA to broadly assess what 

is RACT for a specific source category 

than for States to conduct source-bysource RACT determinations, especially 

considering that States need to initiate 

RACT programs in the near future (as 

discussed in a separate comment/ 

response). The EPA’s current RACT 

guidance may be used for purposes of 

the 8-hour standard. At the same time, 

we agree with comments that many of 

the CTGs/ACTs have not been revised 

since issued and thus may not provide 

the most accurate picture of current 

control options. Therefore, we believe 

States must consider new information 

that has become available and certify 

that a 1-hour ozone RACT 

determination, even where controls 

were required, still represents an 

appropriate RACT level of control for 

the 8-hour ozone program. In the 

alternative, the State should revise the 

SIP to reflect a modified RACT 

requirement for specific sources or 

source categories. 

In summary, we believe the current 

NOX and VOC RACT guidance, 

including CTGs and ACTs, may 

continue to be used by States in making 

RACT determinations with respect to 

the 8-hour ozone standard. States 

should ensure that their SIPs accurately 

reflect RACT based on the current 

availability of technically and 

economically feasible controls. 

Therefore, in portions of 8-hour ozone 

nonattainment areas where major 

sources or source categories were 

previously reviewed and controls 

applied to meet the RACT requirement 

under the 1-hour standard, States 

should review and, if appropriate, 

accept the initial RACT analysis as 

meeting the RACT requirements for the 

8-hour standard. Absent data indicating 

that the previous RACT determination is 

no longer appropriate, the State need 

not submit in its SIP a new RACT 

requirement for these sources. In such 

cases, the State should submit a 

certification as part of its SIP revision, 

with appropriate supporting 

information, such as consideration of 

new data, that these sources are already 

subject to SIP-approved requirements 

that still meet the RACT obligation. 

There are cases where the initial RACT 

analysis under the 1-hour standard for 

a specific source or source category 

concluded that no additional controls 

were necessary. In such cases, a new 

RACT determination is needed to 

consider whether more cost-effective 

control measures have become available 

for sources that were not previously 

regulated. A re-analysis may determine 

that controls are now economically and 

technically feasible and should be 

required to meet RACT. Furthermore, in 

this situation, we expect the 

incremental emissions reductions to be 

significant, compared to the 

uncontrolled emissions levels. Thus, the 

cost per ton of emissions controlled is 

more likely to make controls 

‘‘reasonably available’’ than where a 

source had already installed controls to 

meet RACT for the 1-hour standard. In 

all cases where additional information 

is presented as part of notice-andcomment rulemaking, including a RACT 

SIP submittal for sources previously 

controlled, States (and EPA) must 

consider the additional information as 

part of that rulemaking. 

We agree with several State and 

industry comments that RACT 

requirements apply for major sources in 

any portion of the 8-hour nonattainment 

area not subject to a RACT program for 

the 1-hour standard. 

Some commenters objected to EPA’s 

proposal that any major VOC or NOX 

source that did not exist during a 

previous RACT determination must be 

subject to a RACT determination as part 

of the SIP for the 8-hour ozone standard. 

These commenters stated that the BACT 

or LAER provisions would assure at 

least RACT level controls on such 

sources. We agree this should be true in 

many cases, but not all. The BACT/ 

LAER analyses do not automatically 

ensure compliance with RACT since the 

regulated pollutant or source 

applicability may differ and the 

analyses may be conducted many years 

apart. States may, however, rely on 

information gathered from prior BACT 

or LAER analyses for the purposes of 

showing that a source has met RACT to 

the extent the information remains 

valid. We believe that the same logic 

holds true for emissions standards for 

municipal waste incinerators under 

CAA section 111(d) and NSR/PSD 

settlement agreements. Where the State 

is relying on these standards to 

represent a RACT level of control, the 

State should present their analysis with 

their determination during the SIP 

adoption process. 

For VOC sources subject to MACT 

standards, States may streamline their 

RACT analysis by including a 

discussion of the MACT controls and 

relevant factors such as whether VOCs 

are well controlled under the relevant 

MACT air toxics standard, which units 

at the facility have MACT controls, and 

whether any major new developments 

in technologies or costs have occurred 

subsequent to the MACT standards. We 

believe that there are many VOC sources 

that are well controlled (e.g., through 

add-on controls or through substitution 

of non-VOC non-HAP materials for VOC 

HAP materials) because they are 

regulated by the MACT standards, 

which EPA developed under CAA 

section 112. Any source subject to 

MACT standards must meet a level that 

is as stringent as the best-controlled 12 

percent of sources in the industry. 

Examples of these HAP sources that 

may effectively control VOC emissions 

include organic chemical plants subject 

to the hazardous organic NESHAP 

(HON), pharmaceutical production 

facilities, and petroleum refineries.60 

We believe that, in many cases, it will 

be unlikely that States will identify 

emission controls more stringent than 

the MACT standards that are not 

prohibitively expensive and are thus 

unreasonable. We believe this will allow 

States, in many cases, to rely on the 

MACT standards for purposes of 

showing that a source has met VOC 

RACT. 

Comments: Some commenters 

pointed out that many companies have 

employed averaging programs for NOX 

SIP Call compliance and want this 

option preserved under the 8-hour 

ozone standard since requiring sources 

60 However, there are some MACT categories for 

which it may not be possible to determine the 

degree of VOC reductions from the MACT standard 

without additional analysis; for example, the 

miscellaneous metal parts and products (40 CFR 

part 60, subpart MMMM) due to the uncertainty of 

the compliance method that will be selected. 

71656 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

to individually meet NOX RACT 

requirements would greatly increase the 

costs of compliance at sources already 

subject to the NOX cap-and-trade 

program without achieving greater 

emissions reductions. 

Response: In some cases, a facility or 

a group of sources in a nonattainment 

area might choose to meet NOX RACT 

by adopting an emissions averaging 

concept within the area; e.g., overcontrolling one or more large units and 

not controlling other units. We agree 

with comments that emission averaging 

and cap-and-trade programs such as the 

NOX SIP Call Rule achieve emissions 

reductions at lower costs. The EPA’s 

NOX RACT guidance, published on 

November 25, 1992 (57 FR 55625), was, 

in part, for the purpose of ‘‘enhancing 

the ability of States to adopt marketbased trading systems for NOX ’’ and to 

encourage States to ‘‘structure their 

RACT requirements to inherently 

incorporate an emissions averaging 

concept (i.e., installing more stringent 

controls on some units in exchange for 

lesser control on others).’’ EPA believes 

that such cap-and-trade programs are 

beneficial ways to achieve the greatest 

overall reductions in the most costeffective manner. Consistent with 

previous guidance,61 EPA continues to 

believe that RACT can be met on 

average by a group of sources within a 

nonattainment area rather than at each 

individual source. Therefore, states can 

show that SIP provisions for these 

sources meet the ozone RACT 

requirement using the averaging 

approach. 

Finally, EPA believes that sources 

complying with the NOX SIP call 

trading system meet their RACT 

obligation, for reasons explained later in 

this section. 

Comments: Several State and industry 

commenters supported EPA’s proposed 

approach concerning RACT and the 

NOX SIP Call. These commenters stated 

that the level of emissions reductions 

required by the NOX SIP Call is far 

greater than the level of reductions 

achieved by controls that have been 

determined to be NOX RACT. One State 

encouraged EPA to provide this 

approach to other areas subject to 

approved cap-and-trade programs in 

addition to those areas affected by the 

NOX SIP Call. 

61 The EPA’s NOX RACT guidance (NOX General 

Preamble at 57 FR 55625) encourages States to 

develop RACT programs that are based on 

‘‘areawide average emission rates.’’ Thus, EPA’s 

existing policy provides for States to submit a 

demonstration as part of their RACT submittal 

showing that the weighted average emission rate 

from sources in the nonattainment area subject to 

RACT meet RACT requirements. 

The EPA also received comments, 

primarily from several States and 

environmental groups, opposing the 

approach. These commenters stated that 

there are no exceptions to the RACT 

mandates in either subpart 1 or subpart 

2 for sources subject to NOX SIP Call 

cap-and-trade programs, and EPA is 

without authority to invent such an 

exception. Because the NOX SIP Call’s 

cap-and-trade program does not require 

emission control technologies to be 

installed at a particular source, some 

commenters conclude that RACT 

requirements are necessary and 

appropriate to ensure that all sources 

implement at least a minimum level of 

control. One State indicated there have 

been numerous cases where sources 

subject to the NOX SIP Call have not had 

to install controls comparable to RACT. 

Commenters also suggested that RACT 

is intended to be a benchmark for 

control technology at individual 

stationary sources, not a level of 

regional reductions. In addition, some 

commenters noted that the NOX SIP Call 

requirements are specific to the ozone 

season, where RACT requirements are 

year-round. Consequently, these 

commenters recommended that EPA 

should also consider non-ozone related 

nitrogen issues, including fine particles, 

visibility, nitrification and acidification 

of watersheds and eutrophication of 

coastal waters all of which would be 

reduced with year-round controls. 

Response: In 2009, when sources in 

areas designated nonattainment for the 

8-hour standard in June 2004 must 

comply with RACT, the NOX SIP call 

trading program is subsumed by the 

CAIR trading program. As described 

below, EPA believes that sources meet 

ozone NOX RACT requirements if they 

comply with the NOX SIP Call trading 

program or, in States where all CAIR 

reductions are achieved by EGUs, rules 

implementing CAIR. Accordingly, a 

State need not perform a NOX RACT 

analysis for non-EGU sources that after 

2008 continue to be subject to a SIP that 

regulates those non-EGU sources 

equally or more stringently than the 

State’s current rules meeting the NOX 

SIP call. In a NOX SIP Call State that 

ensures such reductions from nonEGUs, the State need not perform a NOX 

RACT analysis for EGU sources if the 

State retains a summer season EGU 

budget under CAIR that is at least as 

restrictive as the EGU budget that was 

approved in the State’s NOX SIP call 

SIP. In addition, the State need not 

perform a NOX RACT analysis for EGUs 

subject to a State cap-and-trade program 

that meets CAIR and achieves CAIR 

NOX reductions solely from EGUs. As 

noted above, the SIP should document 

that the State is relying on EPA’s 

conclusion in this preamble that these 

levels of control meet RACT for the 

covered sources. 

The EPA believes the RACT mandate 

in subpart 1 and subpart 2 applies in 

specific geographic areas but does not 

necessarily require every major source 

to install controls. For example, as 

discussed in a separate comment/ 

response, where we are dealing only 

with subpart 1 RACT, we only require 

such RACT as will advance attainment 

or meet RFP. Thus, EPA does not agree 

with commenters who conclude that 

RACT requirements are necessary and 

appropriate to ensure that all sources 

implement at least a minimum level of 

control or that RACT is intended to be 

a benchmark for control technology at 

all individual stationary sources. 

Some commenters pointed out that 

the NOX SIP Call requirements are 

specific to the ozone season, yet RACT 

requirements are year-round. Although 

there are some exceptions, EPA agrees 

that RACT usually is an application of 

controls year-round; thus, there would 

be non-ozone-related nitrogen benefits, 

including fine particles, visibility, 

nitrification and acidification of 

watersheds and eutrophication of 

coastal waters due to year-round 

controls. While the commenters are 

correct that the NOX SIP call reductions 

must be achieved during the 5 months 

of the ozone season critical for high 

ozone concentrations for affected States, 

we believe that the RACT requirement 

will be satisfied for sources covered by 

the NOX SIP Call. In addition to 

operating advanced controls at least in 

the ozone season, many sources have 

installed combustion controls that 

function all the time; emissions 

reductions from these controls will 

occur year round. 

(i) NOX SIP Call: All States submitting 

SIP revisions to meet the NOX SIP Call 

(October 27, 1998; 63 FR 57356) elected 

to require large boilers and turbines to 

comply with an emissions cap-and-trade 

program consistent with EPA’s model 

cap-and-trade rule. As a result, the 

covered sources are already subject to a 

stringent control program.62 As 

described in the June 2, 2003 proposal, 

these sources collectively achieve more 

emissions reductions within the SIP 

62 The cost of purchasing allowances will often be 

higher than the cost for achieving a RACT level of 

control. In the 1998 NOX SIP Call Rule, average 

costs of compliance were estimated at about $1500/ 

ton and average RACT level costs are less than 

$1300/ton. Recent estimates of the projected cost of 

allowances are about $2000–4000/ton (NOX Budget 

Trading Program, 2003 Progress and Compliance 

Report, August 2004, EPA–430-R–04–010). 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71657 

Call area than would be required by 

application of RACT requirements to 

each source in that area. At the time that 

EPA promulgated the NOX SIP Call rule, 

EPA estimated that in the NOX SIP Call 

control case, EGUs would achieve a 64 

percent reduction beyond the base case 

requirements,63 and that the non-EGUs 

subject to the States’ cap-and-trade 

program would achieve a 60 percent 

reduction from uncontrolled levels.64 

These EGU and non-EGU reductions 

were clearly beyond the 30–50 percent 

expected from a RACT program.65 We 

stated in the final NOX SIP Call rule that 

the reductions achieved by that program 

‘‘. . . represent reductions beyond those 

required by Title IV or Title I RACT.’’ 

In addition, because the cap-and-trade 

program covers units serving a 25 

megawatt generator, it may achieve 

emission reductions from many units 

that are below the general NOX RACT 

threshold of 100 tpy for sources in the 

East. 

EPA generally has the discretion to 

determine whether a State submitted 

rule is consistent with the RACT 

requirements for a particular source in 

the context of approving individual 

RACT SIPs. The NOX SIP Call is 

estimated to achieve a beyond-RACT 

degree of control regionally, and sources 

were required to install any controls 

needed for compliance no later than 

May 2004. Under these circumstances, 

EPA believes that the NOX SIP call 

constitutes RACT for those sources 

covered by the NOX SIP Call, regardless 

of the manner of compliance of 

individual sources (e.g., control 

equipment installation or purchase of 

allowances from other sources). EPA is 

making this finding now for all areas in 

the NOX SIP call region, such that States 

need not submit RACT analyses for 

sources subject to the NOX SIP call that 

are in compliance with a SIP approved 

as meeting the NOX SIP call. A State 

that is relying on this conclusion for 

affected sources should document this 

reliance in its RACT SIP. 

Whether our judgment that non-EGU 

sources subject to the NOX SIP Call 

trading system meet RACT will 

continue to apply in the future depends 

upon how the State chooses to make the 

63 The EPA’s 1992 NOX RACT guidance provides 

that the controls required under title IV of the CAA 

are RACT controls and specifies emission rates 

three times larger than the rates later used for coalfired units in the NOX SIP Call (0.45–0.50 lb/ 

mmBtu versus 0.15). Base case refers to the 

situation absent NOX SIP call controls. 

64 63 FR 57434–5. 

65 Memorandum of March 16, 1994, from D. Kent 

Berry re: ‘‘Cost-Effective Nitrogen Oxides (NOX) 

Reasonably Available Control Technology (RACT).’’ 

U.S. Environmental Protection Agency, Research 

Triangle Park, North Carolina. 

transition from the NOX SIP Call trading 

system to the CAIR trading system. After 

2008, EPA will no longer administer the 

NOX SIP Call trading system and will 

only administer the CAIR trading 

system. A State subject to the NOX SIP 

Call has three choices for the transition. 

One, a State can bring its non-EGU 

sources that are subject to the NOX SIP 

Call trading program into the CAIR 

trading program with the same 

emissions budget allowed by the State’s 

current NOX SIP Call rules. Two, a State 

can adopt a SIP that regulates those nonEGU sources at least as stringently as 

the State’s current NOX SIP Call rules, 

but does not move those sources into 

the CAIR trading program. Three, a State 

can adopt a new SIP that meets its NOX 

SIP Call responsibilities, in whole or in 

part, by regulating sources other than 

the non-EGU sources regulated by the 

State’s current NOX SIP Call trading 

program rules. We believe it is unlikely 

that States will choose the third option, 

given that its non-EGU sources already 

would have complied with the NOX SIP 

Call requirements. Under the first two 

options, we believe that these non-EGU 

sources would continue to satisfy 

RACT. Under the third option, the State 

would need to determine whether nonEGU sources that had participated in the 

NOX SIP Call trading program continue 

to meet RACT (either individually, or 

through averaging among sources within 

the nonattainment area). 

Finally, as proposed, in cases where 

States have adopted controls for cement 

kilns consistent with the NOX SIP Call 

(i.e., 30 percent reduction), the State 

may choose to accept the NOX SIP Call 

requirements as meeting the NOX RACT 

requirements for the 8-hour standard 

and need not perform a new NOX RACT 

analysis for those sources. In its RACT 

SIP submission, the State should 

identify the cement plants that are 

subject to NOX SIP Call controls and 

that, therefore, are already subject to a 

SIP-approved requirement consistent 

with RACT. The EPA received 

comments from States supporting the 

proposal. Similarly, EPA believes a 

State may choose to accept the Phase II 

NOX SIP Call control level for stationary 

internal combustion engines 66 as 

meeting the NOX RACT requirements 

and identify these obligations as RACT 

level controls in its RACT SIP. 

(ii) CAIR: The EPA has determined 

that EGU sources complying with CAIR 

requirements meet ozone NOX RACT 

requirements in States where CAIR 

reductions are achieved from EGUs 

only. 

66 As described in the April 21, 2004 rule (69 FR 

21608). 

As discussed more fully in the CAIR 

final rulemaking, EPA has set the 2009 

CAIR NOX cap at a level that, assuming 

the reductions are achieved from EGUs, 

would result in EGUs installing 

emission controls on the maximum total 

capacity on which it is feasible to install 

emission controls by those dates. The 

2015 NOX cap is specifically designed to 

eliminate all NOX emissions from EGUs 

that are highly cost effective to control 

(the first cap represents an interim step 

toward that end).67 In general, we 

expect that the largest-emitting sources 

will be the first to install NOX control 

technology and that such control 

technology will gradually be installed 

on progressively smaller-emitting 

sources until the ultimate cap is 

reached. 

We do not believe that requiring 

source-specific RACT controls on EGUs 

in nonattainment areas will reduce total 

NOX emissions from sources covered by 

CAIR below the levels that would be 

achieved under CAIR alone. 

Furthermore, we believe that sourcespecific RACT could result in more 

costly emission reductions on a per ton 

basis. If States chose to require smalleremitting sources in nonattainment areas 

to meet source-specific RACT 

requirements by 2009 (the required 

compliance timing for RACT), they 

would likely use labor and other 

resources that would otherwise be used 

for emission controls on larger sources. 

Because of economies of scale, more 

boiler-makers and other resources may 

be required per megawatt of power 

generation for smaller units than larger 

units. Thus, the cost of achieving such 

reductions would be greater on a per ton 

basis. In any event, the imposition of 

source-specific control requirements on 

a limited number of sources also 

covered by a cap-and-trade program 

would not reduce the total emissions 

from sources subject to the program. 

Under a cap-and-trade program such as 

CAIR, there is a given number of 

allowances that equals a given emission 

level. Source-specific control 

requirements may affect the temporal 

distribution of emissions (by reducing 

banking and thus delaying early 

reductions) or the spatial distribution of 

emissions (by moving them around from 

one place to another), but it does not 

affect total emissions. If source-specific 

requirements were targeted at the units 

that can be controlled most cost 

effectively, then the imposition of 

source-specific controls would achieve 

the same result as the projected CAIR 

cap-and-trade program. If not, however, 

67 CAIR achieves about 80% of its NOX emission 

reductions in 2009 (remainder in 2015). 

71658 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

the imposition of source-specific 

requirements would make any given 

level of emission reduction more costly 

than it would be under the cap-andtrade program alone. Thus, the 

combination of source-specific RACT 

and CAIR would not reduce the 

collective total emissions from EGUs 

covered by CAIR, but would likely 

achieve the same total emissions 

reductions as CAIR alone, in a more 

costly way. As a result, we believe that 

EGUs subject to the CAIR NOX controls 

meet the definition of RACT for NOX (in 

States that require all CAIR NOX 

reductions from EGUs). EPA is making 

this finding now for all areas in the 

CAIR region, such that States need not 

submit RACT analyses for sources 

subject to CAIR that are in compliance 

with a SIP approved as meeting CAIR. 

Under CAIR, a State may elect to meet 

its State budget for NOX emissions 

solely through requiring reductions 

from EGUs or through requiring 

reductions from a combination of 

sources, including non-EGUs. If the 

State requires reductions from sources 

other than EGUs, it is not eligible to 

participate in the EPA-administered 

CAIR trading program. Additionally, 

separate provisions of the CAIR rule 

allow States to choose to allow large 

NOX sources that are not EGUs to optin to the program. If only part of the 

CAIR reductions are required from 

EGUs, and the balance of the reductions 

obtained from non-EGU sources, then 

the stringency of CAIR EGU control 

would be diminished to some extent (an 

amount that cannot be determined until 

a State submits a SIP indicating which 

sources are participating in the 

program). Therefore, in these cases, the 

above rationales for our judgment that 

CAIR satisfies RACT would not apply. 

However, even where a State allows optins from other source categories to meet 

CAIR emission levels, if a State 

transitions from the NOX SIP call level 

of control to CAIR by the first two 

transition options for non-EGUs 

discussed above, the NOX RACT 

requirement would be met for EGUs 

(and the State would not need to 

conduct RACT analyses for these EGUs) 

if the State retains a summer season 

EGU budget under CAIR that is at least 

as restrictive as the EGU budget that was 

set in the state’s NOX SIP call SIP. 

Otherwise, the State would need to 

conduct RACT analyses for EGUs (either 

on an individual basis, or using the 

averaging approach within the 

nonattainment area). 

For clarity, we would note that a State 

has discretion to require beyond-RACT 

NOX reductions from any source 

(including CAIR or NOX SIP Call 

sources), and has an obligation to 

demonstrate attainment as expeditiously 

as practicable. In certain areas, States 

may require NOX controls based on 

more advanced control technologies to 

provide for attainment of the ozone 

standards. 

Comments: Several States expressed 

support for the proposed RACT 

submittal date of 2 years after 

designation for subpart 1 and subpart 2 

areas. Other commenters suggested the 

RACT submittal date for subpart 1 areas 

should be 3 years after designation in 

order to coincide with the attainment 

demonstration submittal deadline and 

to allow a more efficient use of 

resources. In addition, comments from 

industry suggested a 48–60 month 

period is needed for installation of 

controls, rather than the 30 month 

period proposed. 

Response: As described in an earlier 

comment/response, in subpart 1 areas 

that do not request an extension of their 

attainment date, RACT is met with the 

control requirements associated with a 

demonstration that the NAAQS is 

attained as expeditiously as practicable. 

The EPA agrees with commenters that it 

would be more efficient, in these areas, 

if the date for submittal of the RACT 

rules were to coincide with submittal of 

the attainment demonstration since 

RACT is closely tied to the attainment 

demonstration. Therefore, in the final 

rule, the RACT submittal date for these 

areas is the same as the submittal date 

for the attainment plan, which is 3 years 

after designation (June 2007). Although 

EPA is not setting a specific RACT rule 

implementation deadline for these 

areas, as provided in the Phase 1 rule, 

all controls necessary for attainment 

must be implemented by the beginning 

of the attainment year ozone season. For 

example, States would need to require 

implementation no later than May 1, 

2008 where the area has a June 15, 2009 

attainment date.68 In some cases, the 

time from State rule adoption to 

installation of controls by sources may 

be relatively short; in other cases, 

sources may need more time. Therefore, 

EPA encourages States to adopt rules 

expeditiously (prior to the June 2007 

deadline, where possible) so that 

sources have more than sufficient time 

to install the controls prior to the start 

of the attainment year ozone season. 

For subpart 2 moderate and above 

areas and areas within an OTR, the final 

rule is similar to provisions in section 

182 of the CAA which require States to 

submit RACT rules for these areas 

within 24 months after the designation. 

68 This assumes the ozone season in this example 

begins May 1. 

Several commenters supported this 

approach. Since some States may rely 

on submittal of SIP revisions meeting 

CAIR to also satisfy RACT for some 

sources, the final rule extends the 

proposed RACT submittal date of 24 

months to 27 months after designation 

(September 15, 2006), to be consistent 

with the date for submittal of the CAIR 

SIP (September 10, 2006). 

For areas subject to the 27-month 

RACT submittal date, EPA believes the 

proposed 30-month period for 

installation of controls is reasonable, 

given that this is the statutorilyprescribed period 69 (for the areas 

covered under subpart 2) and based on 

our prior experience with States 

adopting and implementing RACT 

requirements. For instance, subsequent 

to submission of the NOX RACT SIP 

revisions for the 1-hour standard subject 

to the 30-month CAA period, EPA 

approved NOX RACT SIP submittals in 

some areas which had been exempt 

from the requirements, including the 

Dallas and Houston areas, which 

required implementation within 2 years 

from the State adoption date. Also, the 

EPA recently determined that a 24-

month period is adequate for stationary 

internal combustion engines to install 

low emission combustion controls 

(April 21, 2004; 69 FR 21633). 

The 48 to 60-month period (June 15, 

2011) for installation of controls 

suggested by some commenters was not 

adequately supported with a 

justification that more time is necessary. 

In addition, as described in an earlier 

comment/response, EPA anticipates that 

many sources which applied controls 

due to RACT requirements with the 1-

hour ozone standard will not need to 

install new controls for the 8-hour 

standard. Thus, because fewer sources 

will be subject to new requirements to 

meet RACT for the 8-hour standard than 

were subject to the 1-hour standard, 

there will be less demand for control 

equipment. States and many sources 

face a reduced burden compared to the 

same CAA requirement in the 1990s. 

Since the ozone season (40 CFR part 

58, appendix D) does not begin for many 

areas until May 1, however, for areas 

with an effective date of designation of 

June 15, 2004, the final rule allows 

sources until the beginning of the area’s 

2009 ozone season (generally May 1, 

69 In the 1990 CAA Amendments, Congress 

specifically added RACT requirements for major 

sources in section 182. Section 182 required the 

RACT rules to be implemented ‘‘as expeditiously as 

practicable’’ but no later than 30 months after the 

submittal deadline. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71659 

2009) rather than March 15, 200970 to 

install controls. Installation of controls 

before the 2009 ozone season is 

sufficient to provide the benefits for 

timely attainment of the ozone standard 

in areas with a 2010 or later attainment 

date.71 And the short delay (generally 

between March 15, 2009 and May 1, 

2009) will cause no harm since it is 

prior to the ozone season, which is 

when ozone levels are most likely to be 

at harmful levels. Sources meeting NOX 

RACT through compliance with CAIR 

would be subject to the CAIR NOX caps 

beginning January 1, 2009. Additionally, 

some areas have ozone seasons that 

begin earlier than March 15, 2009 and 

would need to ensure sources are 

complying by that earlier date. 

For subpart 1 areas that request an 

attainment date extension (i.e., an 

attainment date beyond 5 years after 

designation), the final rule sets the 

RACT submittal and implementation 

dates the same as required for subpart 

2 moderate and above areas, except 

subpart 1 areas are required to submit 

the RACT SIP with its attainment date 

extension request. 

2. Reasonably Available Control 

Measures (RACM) 

a. Background 

As noted in the June 2, 2003 proposed 

rule, subpart 1 of part D includes 

general requirements for all designated 

nonattainment areas, including a 

requirement that a nonattainment plan 

provide for the implementation of all 

RACM as expeditiously as practicable, 

including such reductions that may be 

obtained through RACT. We have also 

issued guidance for implementing the 

RACM provisions of the CAA that 

interprets that provision to require a 

demonstration that the State has 

adopted all reasonable measures to meet 

RFP requirements and to demonstrate 

attainment as expeditiously as 

practicable and thus that no additional 

measures that are reasonably available 

will advance the attainment date or 

contribute to RFP for the area.72 The 

70 57 months from June 15, 2004 effective date of 

designation (27 months to submission plus 30 

months to implementation). 

71 Note, since the CAA requires attainment as 

expeditiously as practicable, some moderate 

nonattainment areas may have an attainment date 

earlier than June 15, 2010. 

72 ‘‘State Implementation Plans; General Preamble 

for Proposed Rulemaking on Approval of Plan 

Revisions for Nonattainment Areas’’ 44 FR 20372 at 

20375. ‘‘Provide for implementation of all 

reasonably available control measures (RACM) as 

expeditiously as practicable, insofar as necessary to 

assure reasonable further progress and attainment 

by the required date * * *’’ 

‘‘State Implementation Plans; General Preamble 

for the Implementation of Title I of the Clean Air 

RACM requirement, which is set forth 

in section 172(c)(1) of the CAA, applies 

to all nonattainment areas that are 

required to submit an attainment 

demonstration, whether covered under 

only subpart 1 or also subpart 2. The 

June 2, 2003 proposal noted that EPA 

had issued policies and procedures 

related to RACM. The draft regulatory 

text (section 51.912(d)) provided that for 

each nonattainment area required to 

submit an attainment demonstration 

under § 51.908, the State would have to 

submit with the attainment 

demonstration a SIP revision 

demonstrating that it has adopted all 

control measures necessary to 

demonstrate attainment as expeditiously 

as practicable and to meet any RFP 

requirements. 

b. Summary of final rule 

Section 51.912(d) of the final rule 

reflects our proposal and draft 

regulatory text. For each nonattainment 

area required to submit an attainment 

demonstration under § 51.908, the State 

must submit with the attainment 

demonstration a SIP revision 

demonstrating that it has adopted all 

control measures necessary to 

demonstrate attainment as expeditiously 

as practicable and to meet any RFP 

requirements. 

In the CAIR rulemaking (May 12, 

2005, 70 FR 25221 et seq.), EPA found 

that the control installations projected 

to result from the CAIR NOX and SO2 

caps in 2009 and 2010 would be as 

much as feasible from EGUs across the 

Act Amendments of 1990; Proposed Rule.’’ 57 FR 

13498 at 13560 (April 16, 1992). In part this 

guidance said, ‘‘The EPA * * * indicated that 

where measures that might in fact be available for 

implementation in the nonattainment area could 

not be implemented on a schedule that would 

advance the date for attainment in the area, EPA 

would not consider it reasonable to require 

implementation of such measures. The EPA 

continues to take this interpretation of the RACM 

requirement.’’ As an example, with regard to one 

possible list of measures (TCMs under section 

108(f) of the Act) that guidance said, ‘‘* * * based 

on experience with implementing TCM’s over the 

years, EPA now believes that local circumstances 

vary to such a degree from city-to-city that it is 

inappropriate to presume that all section 108(f) 

measures are reasonably available in all areas. It is 

more appropriate for States to consider TCM’s on 

an area-specific, not national, basis and to consider 

groups of interacting measures, rather than 

individual measures.’’ 

‘‘Guidance on the Reasonably Available Control 

Measures (RACM) Requirement and Attainment 

Demonstration Submissions for Ozone 

Nonattainment Areas.’’ John S. Seitz, Director, 

Office of Air Quality Planning and Standards. 

November 30, 1999. Web site: www.epa.gov/ttn/ 

oarpg/t1pgm.html. 

Memorandum of December 14, 2000, from John 

S. Seitz, Director, Office of Air Quality Planning 

and Standards, re: ‘‘Additional Submission on 

RACM from States with Severe One-Hour Ozone 

Nonattainment Area SIPs.’’ 

CAIR region by those dates. EPA 

concluded that the CAIR compliance 

dates represent an aggressive schedule 

that reflects the limitations of the labor 

pool, and equipment/vendor 

availability, and need for electrical 

generation reliability for installation of 

NOX emission controls. We believe that 

the CAIR rule appropriately reflects the 

constraints the EGU sector faces in 

achieving NOX reductions (and the 

CAIR SO2 reductions) in a way that is 

as expeditious as practicable. States 

should recognize these constraints in 

developing their own compliance 

schedules for NOX emission controls in 

meeting their CAIR and RACM 

responsibilities. However, the CAIR rule 

did not specify which sources should 

install emissions control equipment or 

reduce emission rates to a specific level 

in order to meet the SO2 and NOX caps 

under CAIR. 

Based on our experience developing 

the NOX SIP Call, CAIR, and the 

proposed Clear Skies Legislation, we 

believe that many power companies will 

develop their strategies for complying 

with CAIR based, in part, on 

consultations with air quality officials 

in the areas in which their plants are 

located. Because power plants are 

generally major emission sources, the 

operators of those plants typically have 

ongoing relationships with State and 

local officials that will be involved in 

developing air quality plans. We are 

aware that, in the past, companies have 

worked with air quality officials to meet 

their emission control obligations under 

a cap-and-trade approach such as the 

NOX SIP Call while also addressing the 

concerns of air quality officials about 

the air quality impacts of specific 

plants. This has led to controlling 

emissions from power plants located in 

or near specific ozone nonattainment 

areas. A number of companies have 

indicated that such collaboration will be 

even more important as the States in 

which they are located address multiple 

air quality goals (e.g., visibility, 

interstate air pollution, local attainment 

of standards for multiple pollutants). 

The EPA expects similar 

consultations between States and power 

sector companies on which plants will 

be controlled under CAIR, considering 

local attainment needs in planning for 

CAIR compliance. This consultation 

might promote opportunities to provide 

improved air quality earlier for large 

numbers of people. Power companies 

may identify economic advantages in 

situating CAIR controls to help the local 

area attain; for example, it might need 

to control fewer facilities for the area to 

reach attainment. These benefits may 

outweigh any additional marginal costs 

71660 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

the company might incur by forgoing 

less costly controls on another more 

distant plant. In any event, the intent of 

these consultations would not be to 

upset market behavior or incentives. 

With respect to ozone, we anticipate 

that these consultations will affect 

individual control decisions for a few 

areas. 

In this regard, EPA notes that CAIR 

SIPs will be due in 2006, while local 8-

hour ozone attainment plans will be due 

in 2007. The EPA suggests that 

consultations on location of CAIR 

controls would be timely during State 

development of the CAIR SIP. 

As States implement the RACM 

provisions in conjunction with their 

attainment demonstration, we recognize 

that for some moderate areas and some 

subpart 1 areas it may be difficult to 

demonstrate attainment in less than 5 

years due to the time needed to adopt 

and implement controls, and the need to 

achieve significant emissions reductions 

to advance the attainment date. 

However, the State will need to assess 

RACM to determine whether the 

attainment date could be sooner than 5 

years from designation for each 

nonattainment area. 

EPA believes that while areas 

projected to attain within 5 years of 

designation as a result of existing 

national measures should still be 

required to conduct a RACM analysis, 

such areas may be able to conduct a 

limited RACM analysis that does not 

involve additional air quality modeling 

beyond that used for the attainment 

demonstration. A limited analysis of 

this type could involve the review of 

available reasonable measures, the 

estimation of potential emissions 

reductions, the evaluation of the time 

needed to implement these measures, 

and anticipated levels of regional 

controls affecting ozone in the 

nonattainment area. In lieu of 

conducting air quality modeling to 

assess the impact of potential RACM 

measures, existing modeling 

information could be considered in 

determining the magnitude of emissions 

reductions that could significantly affect 

air quality and potentially result in 

earlier attainment. If the State, in 

consultation with EPA, determines from 

this initial, more limited RACM analysis 

that the area may be able to advance its 

attainment date through implementation 

of reasonable measures, then the State 

must conduct a more detailed RACM 

analysis, involving air quality modeling 

analyses, to assess whether it can 

advance the attainment date. 

c. Comments and Responses 

Comment: One commenter asked that 

we clarify whether old SIP measures 

become RACM. 

Response: Under EPA’s policy 

concerning RACM, there are no 

measures that are automatically deemed 

RACM. The determination of whether a 

SIP contains all RACM requires an areaspecific analysis that there are no 

additional economically and 

technologically feasible control 

measures (alone or in conjunction with 

others) that will advance the attainment 

date.73 The April 16, 1992, ‘‘General 

Preamble’’ provides some guidance on 

measures that the State should consider 

in making its RACM determination, 

including ‘‘any measure that a 

commenter indicates during a public 

comment period is reasonably available 

should be closely reviewed by the 

planning agency to determine if it is in 

fact reasonably available for 

implementation in the area in light of 

local circumstances.’’ Such measures 

can be rejected as not being RACM if 

they will not advance attainment or 

provide for RFP or if they are not 

economically or technologically 

feasible. 

Comment: One commenter 

recommended that EPA revise its policy 

permitting SIPs to exclude otherwise 

feasible and potentially RACM that 

achieve emissions reductions in 

increments less than the amount 

necessary to advance the attainment 

date by a full year. The commenter 

believed this was an onerous standard 

that has stymied development of new 

control measures, particularly 

transportation control measures. The 

commenter believed EPA’s RACM 

standard is especially harmful to the 

ability to provide SIP credit for Smart 

Growth land use, due to the long 

timeframe over which land is developed 

and redeveloped. The commenter 

believes that ever-increasing 

suburbanization of our nation inflates 

the growth rate in VMT, thereby 

neutralizing improvements in vehicle 

emissions. The commenter claimed that 

a significant air quality improvement 

strategy for the 21st Century is compact 

mixed use pedestrian-friendly 

development near frequent transit and 

believed that changing land use plans in 

this direction will benefit air quality by 

reducing the rate of growth in VMT and 

emissions. The commenter 

recommended that EPA be aware of this 

and revise its RACM standard to 

encourage local governments to alter 

their land use plans by providing a 

73 Ibid. 

mechanism to give credit for air quality 

beneficial land use changes. 

Response: We do not believe our 

RACM policy has ‘‘stymied’’ 

development of new control 

technologies. New emission reduction 

technologies have surfaced and 

continue to surface to meet market 

demands resulting in part from CAA 

requirements, which include the 

requirements to demonstrate attainment 

as expeditiously as practicable and to 

make RFP toward attainment. In 

addition, control measures that produce 

emissions reductions can be approved 

into SIPs whether or not such measures 

meet the definition of RACM. Our 

RACM policy merely interprets the CAA 

as not mandating measures that do not 

contribute to expeditious attainment 

and timely RFP. The policy does not 

limit the potential for States to develop 

any control measures they wish, 

including land use measures. In fact, we 

have prepared a separate guidance 

document on how areas can develop 

and receive SIP credit for land use 

control measures.74 We conclude, 

however, that to require areas to adopt 

and implement as RACM every control 

technology or measure that obtains a 

small amount of emissions reductions— 

even if such measure would not 

advance the attainment date or is not 

required to meet RFP requirements—is 

not justified. Such a policy would be 

extremely burdensome to planning 

agencies, would detract from the effort 

to develop more reasonable and 

effective controls to meet the NAAQS, 

and would not be necessary to meet the 

statutory goal of expediting attainment. 

For these reasons, and because such a 

requirement is not mandated by the 

statute, we are not adopting such a 

policy. 

Comment: One commenter believed 

that the RACM requirements for subpart 

1 areas should be designed so as to not 

require extensive and unneeded control 

due to the fact that in most or all cases 

these controls will not be needed for the 

area to attain. 

Response: We believe the current 

RACM guidance, which applies to both 

subpart 1 and subpart 2 areas, works to 

avoid extensive and unneeded controls, 

while ensuring that areas meet the 

health-based NAAQS as expeditiously 

as practicable. 

Comment: One commenter believed 

our RACM guidance provides only 

minimum requirements to ensure 

attainment as expeditiously as 

74 Improving Air Quality Through Land Use 

Activities; Transportation and Regional Programs 

Division, Office of Transportation and Air Quality, 

U.S. Environmental Protection Agency. EPA420–R– 

01–001. January 2001. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71661 

practicable and believes that every 

nonattainment area must be required to 

consider adoption of measures that have 

been implemented in other areas, 

including the South Coast of California, 

so as to achieve progress and attainment 

as expeditiously as practicable. An area 

should be allowed to reject such 

measures only upon a showing that they 

are not practicable due to specified 

unique circumstances. The commenter 

urged that given the importance of this 

issue to fair, expeditious and lawful 

implementation of the 8-hour standard, 

EPA’s final 8-hour standard 

implementation rule must explicitly 

require compliance with this guidance. 

Response: To meet the RACM 

provision of the CAA, the State must 

determine as part of its attainment 

demonstration whether there are 

additional measures that are feasible 

that would expedite attainment. In 

addition, EPA’s RACM policy indicates 

that areas should consider all candidate 

measures that are potentially available, 

including any that have been suggested 

for the particular nonattainment area.75 

Although areas should consider all 

available measures, including those 

being implemented in other areas such 

as California, areas need adopt measures 

only if they are both economically and 

technologically feasible and will 

advance the attainment date or are 

necessary for RFP. This interpretation of 

the section 172 requirements has 

recently been upheld by several courts. 

See, e.g., Sierra Club v. EPA, et al., 294 

F. 3d 155 (D.C. Circuit, 2002). 

Comment: Several commenters agreed 

with our proposal to require that the 

RACM analysis and measures be 

submitted within 3 years after the 

effective date of designation for the 8-

hour NAAQS. 

Response: We acknowledge the 

support of the comments on the 

submission timing of the RACM 

requirements. 

H. How will the section 182(f) NOX 

provisions be handled under the 8-hour 

ozone standard? 

[Section VI.L. of June 2, 2003 

proposed rule (68 FR 32840); § 51.913 in 

draft and final regulatory text.] 

75 In ‘‘AState Implementation Plans; General 

Preamble for the Implementation of Title I of the 

Clean Air Act Amendments of 1990; Proposed 

Rule,’’ we noted in the discussion of the RACM 

requirement that ‘‘In addition, any measure that a 

commenter indicates during the public commenter 

period is reasonably available for a given area 

should be closely reviewed by the planning agency 

to determine if it is in fact reasonably available for 

implementation in the area in light of local 

circumstances.’’ The discussion of RACM in that 

document contains other relevant history 

concerning the RACM requirement. 

1. Background 

While NOX emissions are necessary 

for the formation of ozone in the lower 

atmosphere, a local decrease in NOX 

emissions can, in some cases, increase 

local ozone concentrations. This 

potential ‘‘NOX disbenefit’’ resulted in 

Congress including the NOX exemption 

provisions in section 182(f) of the CAA 

for areas classified under subpart 2. 

Section 182(f) requires States to apply 

the same requirements to major 

stationary sources of NOX as are applied 

to major stationary sources of VOC 

under subpart 2. The relevant 

requirements are RACT and 

nonattainment major NSR for major 

stationary sources of NOX in certain 

ozone nonattainment areas and 

throughout States in the OTR.76 In 

addition, section 182(f) specifies 

circumstances under which these NOX 

requirements would be limited or would 

not apply (‘‘NOX exemption’’). Further, 

areas granted a NOX exemption under 

section 182(f) may be exempt from 

certain requirements of EPA’s motor 

vehicle I/M regulations and from certain 

Federal requirements of general and 

transportation conformity.77 

In the June 2, 2003 action, we 

indicated the NOX requirements and 

exemption provisions in section 182(f) 

would apply for subpart 2 

nonattainment areas and in OTRs.78 In 

addition, we proposed to allow subpart 

1 nonattainment areas to seek a NOX 

exemption, where appropriate. Further, 

we proposed that areas previously 

granted a NOX exemption under the 1-

hour ozone standard would need to 

request an exemption for purposes of 

the 8-hour standard in order to account 

for any new information that may point 

to a different conclusion with respect to 

the 8-hour standard. Recently, we 

invited comment 79 on draft guidance 

intended to update the existing 1-hour 

ozone guidance 80 regarding section 

182(f) for application to the 8-hour 

ozone program. We issued the updated 

76 See 57 FR 55622 (‘‘Nitrogen Oxides 

Supplement to the General Preamble,’’ published 

November 25, 1992). 

77 As stated in EPA’s I/M (November 5, 1992; 57 

FR 52950) and conformity rules (60 FR 57179 for 

transportation rules and 58 FR 63214 for general 

rules), certain NOX requirements in those rules do 

not apply where EPA grants an areawide exemption 

under section 182(f). 

78 68 FR 32840. 

79 September 1, 2004 at 69 FR 53378. 

80 The EPA’s primary guidance regarding section 

182(f) is contained in the ‘‘Guideline for 

Determining the Applicability of Nitrogen Oxide 

Requirements under Section 182(f),’’ issued by John 

S. Seitz, Director, Office of Air Quality Planning 

and Standards, to the Regional Division Directors, 

December 16, 1993. 

final guidance regarding section 182(f) 

on January 14, 2005.81 

2. Summary of Final Rule 

As proposed, the final rule allows a 

person to petition the Administrator for 

a NOX exemption under section 182(f) 

for an area classified under subpart 2 or 

located in an OTR or under our 

regulations for any other area designated 

nonattainment for the 8-hour ozone 

NAAQS. As with the 1-hour ozone 

standard, the NOX exemption provision 

in section 182(f) applies to subpart 2 

ozone nonattainment areas and in a 

section 184 OTR. In addition, the final 

rule extends to subpart 1 ozone 

nonattainment areas the opportunity to 

petition the Administrator for an 

exemption from nonattainment major 

NSR and/or RACT requirements in a 

manner consistent with section 182(f) 

provisions. The petition must contain 

adequate documentation that the 

provisions of section 182(f) and/or our 

regulations are met. We recently 

issued 82 updated guidance on 

appropriate documentation regarding 

section 182(f) for application to the 8-

hour ozone program. In addition, the 

final rule states that a section 182(f) 

NOX exemption granted under the 1-

hour ozone standard does not relieve 

the area from any requirements under 

the 8-hour ozone standard. That is, a 

new petition with respect to 8-hour 

ozone must be submitted to EPA and 

must be approved by EPA before an area 

is exempt from any 8-hour ozone 

standard NOX requirements. 

3. Comments and Responses 

Comments: Several commenters 

supported EPA’s proposal to make NOX 

waivers available to 8-hour 

nonattainment areas and all areas in an 

OTR under either subpart 1 or subpart 

2, pursuant to the provisions of section 

182(f) of the CAA. Some commenters 

stated that requiring a new NOX waiver 

for the 8-hour standard amounts to 

rescinding the existing waivers. Another 

commenter asked what is needed to 

maintain an exemption. One commenter 

stated that EPA should make it clear 

that there is no presumption that a NOX 

waiver granted under section 182(f) of 

the CAA for the 1-hour ozone standard 

81 Memorandum dated January 14, 2005, 

‘‘Guidance on Limiting Nitrogen Oxides (NOX) 

Requirements Related to 8-Hour Ozone 

Implementation’’ from Stephen D. Page, Director, 

Office of Air Quality Planning and Standards, to Air 

Directors, Regions I–X. 

82 Memorandum dated January 14, 2005, 

‘‘Guidance on Limiting Nitrogen Oxides (NOX) 

Requirements Related to 8-Hour Ozone 

Implementation’’ from Stephen D. Page, Director, 

Office of Air Quality Planning and Standards, to Air 

Directors, Regions I–X. 

71662 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

is continued for the 8-hour standard. 

Other commenters recommended that 

the NOX waiver should automatically 

apply for the 8-hour ozone standard in 

areas where EPA previously granted a 

NOX waiver under the 1-hour ozone 

standard. One commenter stated that the 

technical basis for granting waivers 

under the l-hour NAAQS remains valid. 

Response: We agree with comments 

supporting the proposal to apply the 

section 182(f) exemption provisions to 

subpart 2 nonattainment areas and 

OTRs and to extend these protections to 

subpart 1 areas through regulation. 

Since a NOX exemption granted for 

the 1-hour ozone standard was 

completed through notice-and-comment 

rulemaking, the exemption remains 

effective for the 1-hour standard unless 

and until EPA completes rulemaking to 

remove or revise the waiver for a 

specific area. This rulemaking on the 8-

hour ozone implementation program 

does not rescind any existing 1-hour 

NOX waiver provision. 

However, for areas previously granted 

a NOX waiver under the 1-hour ozone 

standard, a petitioner would need to 

seek a new waiver for purposes of the 

8-hour ozone standard. The EPA does 

not believe NOX waivers—including 

those granted under the 1-hour ozone 

standard—should always be permanent. 

As sources are regulated and the mix of 

pollutants is altered, circumstances 

could show that NOX reductions will 

begin to provide a benefit. In several 

cases, the 1-hour NOX waiver has been 

removed in subsequent rulemaking 

actions.83 Indeed, when EPA issued 

waivers under the 1-hour ozone 

standard, we stated that the NOX 

waivers would be removed where new 

information became available and the 

rationale for the initial NOX waiver no 

longer was supported. For example, the 

waiver may be removed through 

rulemaking if subsequent modeling data 

demonstrated an ozone attainment 

benefit from NOX emission controls. 

Given that many NOX waiver actions 

were based on air quality and dispersion 

modeling analyses made in the mid1990s for purposes of the 1-hour 

standard, EPA believes that newer data 

and analyses should be used to 

determine if a NOX waiver under the 8-

hour ozone standard is warranted. Many 

NOX waivers were simply based on 

whether an area had ambient air quality 

showing attainment of the 1-hour ozone 

standard; this is not an appropriate basis 

for a waiver under the 8-hour ozone 

83 E.g: Recision of NOX waiver for the Dallas-Fort 

Worth area on April 20, 1999 (64 FR 19283). Also, 

the temporary waiver for Houston and Beaumont 

(originally granted April 19, 1995, expired 

December 31, 1997). (60 FR 19515). 

standard since areas may be attaining 

the 1-hour standard but exceeding the 8-

hour standard. Some NOX waivers were 

based on dispersion modeling. In some 

cases, the modeling later proved 

inadequate as attainment was not met in 

the forecast year. In other cases, those 

modeling analyses have been replaced 

with more recent analyses. The EPA 

believes that NOX waivers under the 8-

hour ozone standard should be 

supported by analyses specific to the 8-

hour ozone standard and should 

consider relevant information 

developed after the 1-hour waivers were 

granted. 

The EPA believes the NOX waivers 

may not be granted except through 

notice-and-comment rulemaking action. 

That is, since EPA approval of a waiver 

request would change SIP requirements, 

EPA must conduct notice-and-comment 

rulemaking on that request. The EPA 

believes this requirement precludes 

automatic approval of 8-hour NOX 

waiver requests based on previously 

issued 1-hour NOX waivers. 

Comment: Some commenters urged 

EPA to expand the section 182(f) waiver 

to VOC RACT as well as NOX RACT. 

One commenter states that EPA has 

substantially more discretion under 

subpart 1 than it does under subpart 2, 

and to fail to exercise that discretion to 

avoid ineffective and inefficient 

requirements (through NOX and VOC 

waivers) would be irresponsible, and an 

abuse of its discretion. 

Response: The EPA disagrees with 

these comments. We do not see any 

provision in the CAA that would give us 

the authority to create such an 

exemption. While Congress could have 

created a VOC waiver at the same time 

the section 182(f) NOX waiver 

provisions were enacted, Congress 

chose not to do so. The Congress further 

provided for additional review and 

study under section 185B ‘‘to serve as 

the basis for the various findings 

contemplated in the NOX provisions’’ 

(H.R. Rep. 490 at 257). Under section 

185B, EPA, in conjunction with the 

National Academy of Sciences (NAS), 

conducted a study on the role of ozone 

precursors in tropospheric ozone 

formation. The final section 185B report 

incorporates this NAS report along with 

an EPA report addressing the 

availability and extent of NOX controls. 

With respect to VOC, the NAS report 

states that ‘‘control of VOCs never leads 84 to a significant increase in ozone.’’ 

Thus, the section 185B report does not 

support a waiver provision for VOC. 

84 December 1991 NAS report, Rethinking the 

Ozone Problem in Urban and Regional Air 

Pollution, page 377. 

While dispersion modeling analyses 

show that NOX emissions reductions 

can be counterproductive under certain 

circumstances (the reason for the NOX 

waiver provision), we do not see a 

similar case for VOC. 

Comment: One commenter stated that 

the draft guidance does not contain a 

discussion of the linkages between 

182(f) NOX exemptions and certain 

other regional NOX reduction 

requirements such as the NOX SIP Call 

and the proposed ‘‘Clean Air Interstate 

Rule.’’ The commenter believed EPA 

has an obligation to assess the impact of 

any section 182(f) exemption request 

under the provisions of section 

110(a)(2)(D), including the potential for 

emissions exempted from controls to 

contribute to downwind nonattainment 

or to interfere with the maintenance of 

any NAAQS. 

Response: As discussed in section 4.2 

of the draft 8-hour exemption guidance, 

EPA encourages States/petitioners to 

include consideration of air quality 

effects that may extend beyond the 

designated nonattainment area. States 

should consider such impacts since they 

are ultimately responsible for achieving 

attainment in all portions of their State 

and for ensuring that emissions 

originating in their State do not 

contribute significantly to 

nonattainment in, or interfere with 

maintenance by, any other State. 

However, EPA believes NOX exemptions 

under section 182(f) of the CAA and 

interstate transport of emissions under 

section 110(a)(2)(D) of the CAA can be 

considered independently. Section 

110(a)(2)(D) requires States to reduce 

emissions from stationary and/or mobile 

sources where there is evidence 

showing that such emissions would 

contribute significantly to 

nonattainment or interfere with 

maintenance in other States. In some 

cases, then, EPA may grant an 

exemption from certain NOX 

requirements and, in a separate action, 

require NOX emission decreases under 

section 110(a)(2)(D). Thus, a NOX 

exemption doesn’t affect an obligation 

of a State to meet a NOX budget 

established under a NOX SIP Call or 

other transport rule. 

I. Should EPA promulgate a NSR 

provision to encourage development 

patterns that reduce overall emissions? 

[Section 0.9. of the June 2, 2003 

proposed rule (68 FR 32849). No draft 

or final regulatory text.] 

Note: Section V of this preamble below 

addresses rules for NSR for the 8-hour ozone 

standard. This section addresses only the 

June 2, 2003 proposal related to Clean Air 

Development Communities (CADC). 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71663 

1. Background 

In the June 2, 2003 proposal, we 

considered two options designed to 

recognize the air quality benefits which 

can accrue when areas site new sources 

and plan development in a manner that 

results in overall reduced emissions. We 

proposed to define a community that 

changes its development patterns in 

such a way that air emissions within the 

nonattainment area are demonstrably 

reduced as a CADC. As a result of 

becoming a CADC, an area would obtain 

a certain amount of flexibility in its NSR 

program. 

In the first option, we proposed that 

a CADC would have a more flexible 

NSR program by: (1) Being subject to 

subpart 1 NSR as opposed to subpart 2 

NSR; (2) lowering NSR major source 

thresholds for these areas to make them 

similar to the thresholds for PSD areas; 

and (3) allowing areas that meet certain 

development criteria (development 

zones) to receive NSR offsets from State 

offset pools. In the second option, we 

proposed that a CADC would be able to 

receive a pool of NSR offset credits 

equal to the reduced emissions from 

new development patterns. Credits from 

the pool could be provided to any new 

or modified source in a ‘‘development 

zone’’ as offsets. 

We also requested comments on the 

options and encouraged comments 

suggesting other ways of encouraging 

development patterns that would result 

in lower emissions. 

2. Summary of Final Rule 

The EPA is not at this time issuing 

any rule related to CADCs. 

3. Comments and Responses 

Comments: The EPA received 

numerous comments on the proposal, 

some supporting and others opposing 

the CADC provision. A number of the 

commenters noted that the proposal did 

not appear to have enough detail. A 

summary of the comments appears in 

the response to comment document. 

Response: The EPA appreciates the 

many comments it has received on this 

section. The EPA agrees with a number 

of commenters that while the ideas in 

this section are interesting and designed 

to achieve useful goals, much more 

work is needed in a separate effort to 

work through the many issues involved. 

Therefore, EPA will not move forward 

with this particular effort at this time. 

However, EPA does not plan to ignore 

the issue. The EPA will be looking to 

bring a group of stakeholders together to 

see if the group can come up with and 

support one or more ways that we can 

use existing programs and authorities to 

create positive incentives and tools for 

communities to reduce sprawl. The 

process will not be designed to work 

only through the specific issues in 

establishing a program to encourage 

CADCs as outlined in the proposal, but 

will be open to all ideas. 

Issues related to community 

development, land use and ‘‘sprawl’’ 

will have transportation and air quality 

implications. Therefore, EPA will work 

closely with DOT in addressing these 

issues. 

J. How will EPA ensure that the 8-hour 

ozone standard will be implemented in 

a way which allows an optimal mix of 

controls for ozone, PM2.5, and regional 

haze? 

[Section VI.P. of June 2, 2003 

proposed rule (68 FR 32852); no draft or 

final regulatory text.] 

1. Background 

As noted in the proposal, in many 

cases, States will be developing 

strategies to attain both the 8-hour 

ozone and PM2.5 NAAQS in the same 

nonattainment area or in nonattainment 

areas that have some area or areas in 

common. Additionally, requirements for 

regional haze apply to all areas. Certain 

ozone control measures may also be 

helpful as part of a PM2.5 control 

strategy or a regional haze plan. 

Similarly, controls for PM2.5 may lead to 

reductions in ozone or regional haze. 

Because the precursors for ozone and 

PM2.5 may be transported hundreds of 

kilometers, regional scale impacts may 

also be relevant to consider. While EPA 

expects that strategies to decrease ozone 

concentrations will not adversely affect 

strategies to attain the PM2.5 NAAQS, 

we also believe integration of ozone, 

PM2.5, and regional haze planning will 

reduce overall costs of meeting multiple 

air quality goals. 

2. Summary of final rule 

We are encouraging each State with 

an ozone nonattainment area that 

overlaps or is nearby a PM2.5 

nonattainment area to take all 

reasonable steps to coordinate the SIP 

development processes for these 

nonattainment areas and to coordinate 

the development of these SIPs with the 

state’s SIP to address the reasonable 

progress goals for regional haze. 

Specifically, EPA encourages States 

conducting modeling analyses for ozone 

to separately estimate effects of a 

strategy on the following: mass 

associated with sulfates, nitrates, 

organic carbon, elemental carbon, and 

all other species. However, while we 

believe such coordination may reduce 

the overall costs to States for 

implementing these programs, this final 

rule does not require the State to 

coordinate these three planning efforts. 

3. Comments and Responses 

Comments: Several commenters 

supported EPA’s recommendation for 

States to integrate planning for 8-hour 

ozone, PM2.5, and regional haze. These 

commenters agreed that the integration 

of ozone, PM2.5 and regional haze 

controls will reduce the overall costs of 

meeting multiple air quality goals and 

that EPA should continue to 

synchronize the SIP planning 

requirements for these pollutants to aid 

in this integration. One commenter 

asked EPA to clarify that this analysis is 

not an approvability issue associated 

with an 8-hour attainment 

demonstration. Other commenters 

recommended that EPA require 

nonattainment areas to perform an 

integrated control strategy assessment to 

ensure ozone controls will not preclude 

optimal controls for secondary fine 

particles and visibility impairment. 

Response: We recognize the 

importance of integrating planning for 

8-hour ozone, PM2.5, and regional haze 

as much as possible, given the overlap 

in technical work and likely control 

strategies. None of the commenters, 

however, has identified legal authority 

that allows EPA to require 

nonattainment areas to perform an 

integrated control strategy assessment to 

ensure ozone controls will not preclude 

optimal controls for secondary fine 

particles and visibility impairment. 

Therefore, we will continue to 

encourage States to coordinate their 

work, but it is not a requirement and, 

thus, not an approvability issue. 

Comments: Other commenters 

encouraged EPA to identify flexibility so 

that areas may be provided more time if 

they are developing a multi-pollutant 

strategy. Commenters stated that it is 

imperative that SIP obligations and 

attainment dates with respect to these 

regulated air pollutants be harmonized 

and that regulatory requirements and 

deadlines be closely coordinated. One 

commenter stated this may require 

certain deadlines be extended and that 

they believe Congress would not be 

opposed to extending deadlines in the 

name of efficiency. 

Response: To the extent our legal 

authority allows, we are working to 

harmonize SIP timelines for ozone, 

PM2.5, and regional haze. This 8-hour 

ozone implementation rule is 

necessarily based on the existing CAA 

and does not assume any changes to the 

CAA that may occur in the future. Thus, 

we cannot extend the submission dates 

for 8-hour ozone SIPs so that they match 

71664 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

the later submission dates for PM2.5 and 

regional haze SIPs. However, there is a 

substantial overlap in planning periods 

that will allow States to coordinate 

planning efforts among programs, 

without postponing implementation. 

K. What emissions inventory 

requirements should apply under the 8-

hour ozone NAAQS? 

[Section VI.Q. of June 2, 2003 

proposed rule (68 FR 32853); § 51.915 in 

draft and final regulatory text.] 

1. Background 

Section 182(a)(1) requires that 

marginal and above ozone 

nonattainment areas submit an emission 

inventory 2 years after designation as 

nonattainment in 1990. For 

nonattainment areas classified under 

subpart 2 for the 8-hour ozone standard, 

we proposed to interpret this to mean 

that an emission inventory would be 

required 2 years after designation (i.e., 

in 2006 if EPA designates areas in 2004). 

The Consolidated Emission Reporting 

Rule (CERR) in 40 CFR part 51, subpart 

A, requires States to submit 

comprehensive statewide triennial 

emission inventories, beginning with 

the 2002 inventory year, regardless of an 

area’s attainment status. Because these 

emission inventories will be available, 

we proposed that the data elements 

required for emission inventories by the 

CERR could be used to prepare the 

emissions inventories under the 8-hour 

NAAQS. The draft regulatory text, 

however, did not contain a specific 

requirement that the emission inventory 

be submitted as a SIP revision within 2 

years after designation. 

For subpart 1 areas, section 172, 

paragraphs (b) and (c)(3) require 

submission of the nonattainment area 

emission inventory as part of the SIP by 

a date established by EPA, which cannot 

be later than 3 years after designation as 

a nonattainment area. However, the June 

2, 2003 proposal did not specify a 

deadline for submission of the emission 

inventory for subpart 1 areas. 

The proposal also noted that we 

would be updating the April 1999 

‘‘Emissions Inventory Guidance for 

Implementation of Ozone and 

Particulate Matter National Ambient Air 

Quality Standards (NAAQS) and 

Regional Haze Regulations,’’ EPA–454/ 

R–99–006. This guidance has been 

updated and now is available as: 

‘‘Emission Inventory Guidance for 

Implementation of Ozone and 

Particulate Matter National Ambient Air 

Quality Standards (NAAQS) and 

Regional Haze Regulations’’, EPA–454/ 

R–05–001.85 This guidance 

complements the CERR by providing 

guidance on how to prepare data for 

emissions inventory SIP submissions. 

2. Summary of Final Rule 

Section 51.915 of the final rule 

reflects our June 2, 2003 proposal but is 

different from the draft regulatory text. 

To ensure comprehensive treatment of 

emission inventory requirements, the 

final rule contains language addressing 

the deadlines for submission of 

emission inventories for both subpart 1 

and subpart 2 areas. The deadlines 

reflect the statutory requirements of no 

later than 3 years after designation for 

a subpart 1 area, and no later than 2 

years after designation for subpart 2 

areas. Existing emissions reporting 

requirements in 40 CFR part 51, subpart 

A are sufficient to satisfy the emissions 

inventory data requirements under the 

8-hour ozone NAAQS. Consistent with 

the statutory schedule in section 

182(a)(1) of the CAA, the final 

regulatory text in section 51.915 

requires submission of an emission 

inventory no later than 2 years after 

designation as part of a subpart 2 SIP. 

Consistent with the statutory schedule 

in paragraphs (b) and (c)(3) of section 

172 of the CAA, the final regulatory text 

in section 51.915 requires submission of 

an emission inventory no later than 3 

years after designation as part of a 

subpart 1 SIP. 

In its guidance titled, ‘‘Public Hearing 

Requirements for 1990 Base-Year 

Emissions Inventories for Ozone and 

Carbon Monoxide Nonattainment 

Areas,’’ September 29, 1992, EPA set 

forth its interpretation of a ‘‘de 

minimis’’ deferral of the public hearing 

requirement and the requirement for 

EPA to approve or disapprove emissions 

inventories under section 110(k). The 

EPA intends to follow this guidance in 

implementation of the emissions 

inventory requirements under the 8-

hour ozone standard, under which areas 

could defer holding public hearings on 

their inventories and EPA could defer 

approving such inventories until the 

time the areas adopt and submit their 

attainment demonstrations and/or RFP 

plans. 

Existing emissions reporting 

requirements in 40 CFR part 51, subpart 

A can be applied to determine the data 

elements required for emissions 

inventories under the 8-hour ozone 

NAAQS (see, e.g. Tables 2A, 2B, 2C, and 

2D). Where appropriate, the State may 

use the data elements developed under 

part 51, subpart A in preparing its 

85 (available at: http://www.epa.gov/ttn/chief/ 

eidocs/eiguid/index.html) 

emissions inventory under the 8-hour 

ozone NAAQS. Also, EPA expects the 

States to consult the guidance document 

‘‘Emission Inventory Guidance for 

Implementation of Ozone and 

Particulate Matter National Ambient Air 

Quality Standards (NAAQS) and 

Regional Haze Regulations’’, EPA–454/ 

R–05–001, and to submit inventories 

that are appropriate for the geographic 

area at issue and consistent with this 

guidance.86 We expect the State to 

include in its SIP submission 

documentation explaining how the 

emissions data were calculated. 

3. Comments and Responses 

Comment: Several commenters said 

that the proposal does not discuss 

specific requirements above and beyond 

those in the CERR. However, the 

proposal does mention one EPA 

guidance document, ‘‘Emissions 

Inventory Guidance for Implementation 

of Ozone and Particulate Matter 

National Ambient Air Quality Standards 

(NAAQS) and Regional Haze 

Regulations’’. This document states that 

‘‘The EPA developed this guidance 

document to complement the CERR and 

to provide specific guidance to State 

and local agencies and Tribes on how to 

develop emissions inventories for 8-

hour ozone, PM2.5, and regional haze 

SIPs.’’ Since the 8-hour emissions 

inventory requirements are the same for 

the CERR, there should be no 

additional, special requirements needed 

in emissions inventory development for 

the proposed 8-hour rule. 

Response: In its proposal, when EPA 

referred to the CERR emissions 

inventory requirements as satisfying 

requirements for emissions inventories 

under the 8-hour standard, EPA was 

referring to the requirements for data 

elements. The EPA did not mean to 

imply that the emissions inventories 

developed under the CERR, which are 

statewide, would satisfy all aspects of 

SIP inventories developed for SIP 

submissions under the 8-hour standard. 

While the CERR sets forth requirements 

for data elements, EPA guidance 

complements these requirements and 

indicates how the data should be 

prepared for SIP submissions. The 2002 

emission inventory submitted as a SIP 

element under the 8-hour ozone SIP 

process is not necessarily the same as 

the 2002 emission inventory submitted 

under the CERR. The two inventories 

differ in some important ways. For 

example, the CERR inventory was due 

June 1, 2004, while the SIP inventory 

due dates are later. Because of this time 

86 The CERR requires emissions inventory data on 

a statewide basis. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71665 

lapse, the State may choose to revise 

some of the data from the CERR when 

it prepares its SIP inventory because of 

improvements in emission estimates. 

The SIP inventory also must be 

approved by EPA as a SIP element and 

is subject to public hearing 

requirements where the CERR is not. 

Because of the regulatory significance of 

the SIP inventory, EPA will need more 

documentation on how the SIP 

inventory was developed by the State as 

opposed to the documentation required 

for the CERR inventory. In addition, the 

geographic area encompassed by some 

aspects of the SIP submission inventory 

will be different from the statewide area 

covered by the CERR emissions 

inventory. The guidance document 

‘‘Emissions Inventory Guidance for 

Implementation of Ozone and 

Particulate Matter National Ambient Air 

Quality Standards (NAAQS) and 

Regional Haze Regulations’’ 87 provides 

details on how States should prepare 

their emission inventory SIP submittals 

and discusses these and other relevant 

topics. If a State’s 2005 emission 

inventory (or a later one) becomes 

available in time to use for an area 

subsequently redesignated 

nonattainment, then that inventory 

should be used. We also encourage the 

cooperation of the Tribes and the State 

and local agencies in preparing their 

emissions inventories. 

Comment: One commenter was 

concerned with the timing of the release 

of the final version of the NONROAD 

model (used to estimate mobile source 

emissions from nonroad sources). The 

commenter agreed that the draft version 

out for comment during the comment 

period was superior to previous 

calculation methodology and should be 

used for planning purposes. However, 

EPA needs to be cognizant of how 

disruptive to the planning process it is 

for new versions of emissions models to 

be released and incorporated in the 

middle of the development of a SIP. The 

commenter strongly encourages EPA to 

expedite the review and approval of any 

new models that will ultimately be used 

by States. 

Response: We acknowledge that the 

timing of the release of new models can 

sometimes complicate the SIP planning 

process. In this case, the timing of the 

final release of the NONROAD is 

dependent on the timing of the new 

nonroad standards final rule. We will do 

what we can to expedite the release of 

a new version of NONROAD that 

reflects the emissions benefits of the 

87 EPA–454/R–05–001, August 2005 (available at: 

http://www.epa.gov/ttn/chief/eidocs/eiguid/ 

index.html). 

nonroad rule as soon as possible. In 

addition, we intend to provide guidance 

on the use of NONROAD that allows for 

completion of ongoing work with the 

current version of NONROAD if 

switching to the new version would 

cause significant delay. The EPA has 

included similar language in previous 

SIP policy guidance for the MOBILE 

model. 

Comment: One commenter urged EPA 

to improve the quality of PM2.5 rates in 

MOBILE6.2 so that areas will have a 

more reliable tool for creating a 2002 

base-year inventory and for developing 

SIP revisions. The commenter was 

concerned about developing PM2.5 

emissions inventories because PM2.5 

emissions factors in MOBILE6.2 are 

based largely on the old Part #5 

emission model and are not as 

sophisticated as the rates for CO, NOX, 

and VOC. The commenter also 

expressed concern about the lack of 

knowledge and techniques available for 

performing on-road mobile source fine 

particulate emissions inventories. 

Metropolitan Planning Organizations 

(MPOs) and air quality agency staff need 

to have a more reliable tool and 

acceptable methods for creating base 

year PM2.5 inventories and for SIP 

planning. 

Response: This comment is not 

directly relevant to the 8-hour ozone 

implementation rule. However in the 

interest of providing clarification on the 

issues raised by the commenter, we 

provide the following background 

information. Particulate emission factors 

in MOBILE6.2 are based on the best 

technical information available at the 

time the model was developed and we 

believe that it is the best available tool 

for estimating on-road emission factors 

for PM2.5. We are currently collecting 

additional PM data which will be 

incorporated in future versions of the 

EPA mobile source emission factor 

model. We continue to work to improve 

models and inventory methods for all 

pollutants. We have released technical 

guidance on the use of MOBILE6.2 and 

on methods for developing annual 

inventories in SIPs and conformity 

analyses to help MPOs and air quality 

agency staff perform on-road mobile 

source fine particulate analyses. 

Comment: One commenter stated that 

since the CERR requires inventories 

every 3 years, that the CERR should 

replace the Emission Statement 

Reporting Program (ESRP) requirement, 

which was required before the CERR 

was adopted. 

Response: The ESRP is statutorily 

prescribed in section 182 (a)(3)(B) of the 

CAA. The emission statement 

requirement satisfies a different need 

from the periodic emissions inventory 

requirement, namely that affected 

sources themselves have to report to the 

State their updated emissions 

information, whereas the emissions 

inventory requirement is a requirement 

on States to compile and make available 

to EPA an emissions inventory. We 

believe that the ESRP is a 

complementary program to the CERR 

and makes it easier for States to satisfy 

their CERR reporting requirements by 

providing data to the States from the 

sources. 

Comment: One commenter said that 

persistent inaccuracies in official 

emissions inventories have hindered 

regulatory acknowledgment and 

mitigation of the automobile VOC and 

CO gross polluter problem. The EPA 

should develop realistic emissions 

inventories and require States to do the 

same. Known errors in these inventories 

continue to misdirect emission 

reduction efforts. In particular, too little 

focus has been placed on the potential 

for rapid, substantial VOC and CO 

reductions from the in-use automobile 

fleet. 

Response: We agree that realistic 

emissions inventories are important to 

properly direct emission reduction 

efforts. Current emission factor models 

and inventory methods are far superior 

to previous models and methods and we 

are working to continually improve 

models and methods for developing 

emissions inventories for on-road and 

nonroad vehicles and equipment. 

Comment: One commenter stated that 

the official emissions inventories 

generated and used by EPA and State 

regulatory agencies for SIP planning and 

implementation have been shown 

repeatedly to suffer from serious 

inaccuracies and biases. Problems with 

inventories include errors in the total 

amount of emissions, as well as errors 

in the apportionment of emissions 

among various source categories. The 

most serious inventory problems center 

on VOC and CO, while problems with 

NOX inventories appear to be more 

modest. Since emissions inventories are 

a fundamental input to the process of 

choosing pollution reduction measures 

and to the modeling used to 

demonstrate future attainment of 

NAAQS, an inaccurate inventory is 

likely to lead to poor policy choices in 

terms of cost, effectiveness, or both. 

Response: We agree that emissions 

inventories are fundamental inputs to 

the air quality management process. We 

continue to strive to work with State 

and local agency partners to develop 

emissions inventories that best reflect 

the real world and will thus assist in 

identifying control strategies to make 

71666 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

RFP and attain the NAAQS. One should 

be aware, however, that it is impossible 

to develop an emissions inventory for 

an area that is 100 percent accurate. Part 

of the problem is that most sources— 

including mobile sources—don’t 

monitor and report emissions 

continuously, and therefore we and the 

States must use other methods to 

estimate emissions from them. Thus, 

emission inventories are by nature 

estimates of actual releases to the 

atmosphere. The EPA believes that 

current emission inventories are 

sufficiently accurate to support the air 

quality management decisions that are 

derived from the application of 

emission inventories and air quality 

models. The emissions data generated 

and used by EPA and State regulatory 

agencies for SIP planning and 

implementation is the best available. 

Although inventories are often criticized 

as lacking accuracy, seldom do critics 

supply better information. 

Comment: One commenter stated that 

the Agency proposes that the latest 

approved version of the MOBILE model 

should be used to estimate emissions 

from on-road transportation systems. 

The commenter recommended that if 

there are other models that meet EPA 

performance criteria and are 

scientifically peer reviewed, they 

should also be acceptable [e.g., the 

California mobile model, ‘‘EMission 

FACtor’’ (EMFAC)]. 

Response: We believe that MOBILE is 

the best available tool for estimating 

emissions from on-road transportation 

systems outside of California. We are 

working to continually improve 

emission factor models and inventory 

methods for on-road vehicles. The 

EMFAC is not designed to be able to 

estimate fleet, activity, fuel, and 

environmental characteristics outside of 

California and is not a reasonable 

substitute for MOBILE in States other 

than California. 

Comment: One commenter supported 

the use of MOBILE6 in the 8-hour 

emissions inventory analyses and 

believed that EPA should change the 

guidance with respect to the use of 

MOBILE6 from ‘‘should be used’’ to 

‘‘must be used.’’ The commenter 

cautioned that MOBILE6 still 

significantly over-predicts emissions 

from passenger cars and light duty 

trucks for many reasons including the 

following: (1) The model does not 

adequately account for the benefits of 

onboard diagnostic regulation in non-I/ 

M areas; and (2) the model does not 

reflect the decline in trips per day 

versus vehicle age. 

Response: The EPA’s January 18, 2002 

SIP and conformity policy guidance 

document (‘‘Policy Guidance on the Use 

of MOBILE6 for SIP Development and 

Transportation Conformity,’’ memo 

from John Seitz and Margo Oge to EPA 

Regional Air Division Directors) states, 

‘‘In general, EPA believes that MOBILE6 

should be used as expeditiously as 

possible. The Clean Air Act requires 

that SIP inventories and control 

measures be based on the most current 

information and applicable models that 

are available when a SIP is developed.’’ 

The EPA’s February 14, 2004 SIP and 

conformity policy guidance document 

(‘‘Policy Guidance on the Use of 

MOBILE6.2 and the December 2003 AP– 

42 Method for Re-Entrained Road Dust 

for SIP Development and Transportation 

Conformity’’, memo from Margo Oge 

and Steve Page to EPA Regional Air 

Division Directors) updates this by 

stating that ‘‘All states other than 

California should use MOBILE6.2 for 

future VOC, NOX, and CO SIP and 

conformity analyses in order to take full 

advantage of the improvements 

incorporated in this version.’’ 

MOBILE6.2 is the most current 

applicable model and is based on the 

best information available at the time of 

its development and release. Therefore, 

EPA has indicated that it should be 

used. 

We do not believe that more on-board 

diagnostic benefits in non-I/M areas was 

justified based on available data at the 

time of the release of MOBILE6.2. 

Likewise, we did not have sufficient 

data to develop alternative assumptions 

about the relationship between trips per 

day and vehicle age. We are working to 

continually improve emission factor 

models and inventory methods for onroad vehicles and will review these 

issues during the development of the 

next emission factor model. 

L. What guidance should be provided 

that is specific to Tribes? 

[Section VI.R. of June 2, 2003 

proposed rule (68 FR 32854); no draft or 

final regulatory text.] 

1. Background 

As noted in the preamble to the 

proposal, the TAR (40 CFR, part 49), 

which implements section 301(d) of the 

CAA, gives Tribes the option of 

developing TIPs which can then be 

submitted to EPA for approval. Unlike 

States, Tribes are not required to 

develop implementation plans. Under 

the TAR, eligible Tribes are treated in 

the same manner as a State when 

implementing the CAA; however, EPA 

has determined that Tribes are not 

required to meet plan submittal and 

implementation deadlines in the CAA, 

e.g., 110(a)(1), 172(a)(2), 182, 187, and 

191.88 

The TAR provides flexibility for 

Tribes in the preparation of a TIP to 

address the NAAQS. The ‘‘modular 

approach’’ was described in the June 2, 

2003 proposal of this rule. The TAR 

indicates that EPA ultimately has the 

responsibility for implementing CAA 

programs in Indian country, as 

necessary or appropriate, if Tribes 

choose not to implement those 

provisions. The EPA may find it 

necessary to develop a FIP to reduce 

emissions from sources in Indian 

country where the Tribe has not 

developed a TIP to address an air 

quality problem. 

Finally, as discussed in the June 2, 

2003 proposal, it is important for both 

States and Tribes to work together to 

coordinate planning efforts since many 

nonattainment areas may include both 

Tribal land and non-Tribal land. 

Coordinated planning will help ensure 

that the planning decisions made by the 

States and Tribes complement each 

other and that the nonattainment area 

makes reasonable progress toward 

attainment and ultimately attains the 

NAAQS. In reviewing and approving 

the individual TIPs and SIPs, we will 

make certain they do not conflict with 

the overall air quality plan for an area. 

Section 301(d) of the CAA recognizes 

that eligible Indian Tribes are generally 

the appropriate non-Federal authority to 

implement the CAA in Indian country. 

As stated in the TAR, it is appropriate 

to treat eligible Tribes in the same 

manner as States, except for certain 

identified provisions, including 

provisions relating to plan submittal 

and implementation deadlines, 40 CFR 

section 49.3, 49.4. Therefore, when we 

discuss the role of the State in 

implementing this rule, we are also 

generally referring to eligible Tribes, 

with the above exception. 

As we noted in the June 2, 2003 

proposal, States have an obligation to 

notify Tribes as well as other States in 

advance of any public hearing(s) on 

their State plans that will significantly 

impact such jurisdictions. Under 40 

CFR 51.102(d)(5), States must notify the 

88 See 40 CFR part 49.4(a). In addition, EPA 

determined it was not appropriate to treat Tribes 

similarly to States with respect to provisions of the 

CAA requiring as a condition of program approval 

the demonstration of criminal enforcement 

authority or providing for the delegation of such 

criminal enforcement authority. See 40 CFR part 

49.4(g). To the extent a Tribe is precluded from 

asserting criminal enforcement authority, the 

Federal government will exercise primary criminal 

enforcement responsibility. See 40 CFR part 49.8. 

In such circumstances, Tribes seeking approval for 

CAA programs provide potential investigative leads 

to an appropriate Federal enforcement agency. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71667 

affected States of hearings on their SIPs; 

this requirement extends to Tribes 

under 301(d) of the CAA and the TAR. 

(40 CFR part 49). Therefore, affected 

Tribes that have achieved ‘‘treatment in 

the same manner as States’’ status must 

be informed of the contents of such 

plans and the extent of documentation 

to support the plans. In addition to this 

mandated process, we encourage States 

to extend the same notice to all Tribes 

for the reasons noted in the comment 

and response below. As a matter of 

policy, EPA intends to consult with and 

assist all Tribes, regardless of whether a 

Tribe has received Treatment in the 

same manner as a State (TAS) approval 

for the purpose of implementing its own 

TIP, and we encourage States to do the 

same. 

Understanding the content of a SIP 

will be important to Tribes located next 

to areas that are required to adopt SIPs, 

particularly to Tribes who do not choose 

or have the capacity to develop a TIP. 

Therefore, EPA intends to offer Tribes 

the opportunity for consultation on 

activities potentially affecting the 

achievement and maintenance of the 

NAAQS in Indian country. In addition, 

we expect States to work with Tribes 

with land that is part of the same air 

quality area during the SIP development 

process and to coordinate with Tribes as 

they develop the SIPs. In the case where 

the State models projected emissions 

and air quality under the SIP, the Tribes 

should be made aware of these 

modeling analyses. Tribes may wish to 

determine if the Tribal area has been 

affected by upwind pollution and 

whether projected emissions from the 

Tribal area have been considered in the 

modeling analysis. 

Generally, Tribal lands have few 

major sources, but in many cases, air 

quality in Indian country is affected by 

the transport—both long range and 

shorter distance transport—of 

pollutants. In many cases, Tribal 

nonattainment problems caused by 

upwind sources will not be solved by 

long-range transport policies, as the 

Tribes’ geographic areas are small. 

Tribes are sovereign entities, and not 

political subdivisions of States. 

Strategies used for intrastate transport 

are not always available. Most of the 

strategies and policies used by States in 

dealing with short-range transport are 

not available to Tribes, e.g., requiring 

local governments to work together and 

expanding the area to include the 

upwind sources. Unlike Tribes, States 

can generally require local governments 

to work together, or make the 

nonattainment area big enough to cover 

contributing and affected areas. We 

believe that it is also unfair to Tribes to 

require disproportionate local regulatory 

efforts to compensate for upwind 

emissions. In many cases, attainment 

could not be reached even if emissions 

from the Tribe were zero. 

To address these concerns, in the June 

2, 2003 proposal, we took comment on 

the following: EPA will review SIPs for 

their effectiveness in preventing 

significant contributions to 

nonattainment in downwind Tribal 

areas with the same scrutiny it applies 

to reviewing SIPs with respect to 

impacts on downwind States. Where a 

Tribe has ‘‘treatment in the same 

manner as States,’’ EPA will support the 

Tribes in reviewing upwind area SIPS 

during the State public comment period. 

2. Summary of Policy 

We intend to take the approach noted 

in the proposal. 

3. Comments and Responses 

Comment: One commenter was 

concerned about the transport of 

pollutants, including ozone precursors 

from urbanized areas into areas of 

Indian country. The commenter 

expressed strong support for the 

proposed 8-hour implementation rule 

statement that ‘‘EPA will review SIPS 

for their effectiveness in preventing 

significant contributions to 

nonattainment in downwind Tribal 

areas with the same scrutiny it applies 

to impacts on downwind States. Where 

a Tribe has ‘treatment in the same 

manner as States,’ EPA will support the 

Tribe in reviewing upwind area SIPs 

during the State public comment 

period.’’ This commenter asked for 

clarification on the nature of EPA’s 

support for Tribes without TAS status. 

The commenter also asked if EPA would 

support Tribes without TAS approval in 

reviewing upwind area SIPs and 

provide technical assistance in 

interpreting SIP documentation. 

Response: In the TAR, we stated that 

the CAA protections against interstate 

pollutant transport apply with equal 

force to States and eligible Tribes. We 

stated that the prohibitions and 

authority contained in sections 

110(a)(2)(D) and 126 of the CAA apply 

to eligible Tribes in the same manner as 

States. (See 63 FR 7254, 7260; February 

12, 1998). Section 110(a)(2)(D) requires, 

among other things, that States include 

provisions in their SIPs that prohibit 

any emissions activity within the State 

from significantly contributing to 

nonattainment, interfering with 

maintenance of the NAAQS or PSD or 

visibility protection programs in another 

State. In addition, section 126 

authorizes any State or eligible Tribe to 

petition EPA to enforce these 

prohibitions against a State containing 

an allegedly offending source or group 

of sources. 

We intend to consult with and assist 

Tribes during the TIP and SIP 

development process, regardless of 

whether a Tribe has received TAS 

approval for the purpose of 

implementing its own TIP. Executive 

Orders and EPA Indian policy generally 

call for EPA to be proactive with the 

Tribes. Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ requires 

EPA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by Tribal officials in the development of 

regulatory policies that have Tribal 

implications.’’ As part of EPA’s ongoing 

efforts to actively involve Tribal officials 

in the development of programs which 

have Tribal implications, EPA in the 

July 18, 2000 ‘‘Guidance on 8-hour 

Ozone Designations for Indian Tribes’’ 

established a consultation process with 

each Tribe that EPA used throughout 

the designations process regardless of 

whether a particular Tribe has received 

an eligibility determination to 

implement section 107 of the CAA. In 

summary, EPA intends, as a matter of 

policy, to consult with and assist 

interested Tribal governments, 

regardless of their TAS status, in 

ensuring that the NAAQS are achieved 

in Indian country, including working 

with those Tribes located downwind 

from a polluting area. 

Comment: One commenter also asked 

us to explain how we envision our role 

in maintaining continued consultation 

with Tribes throughout the SIP 

development process. 

Response: We intend to continue to 

offer Tribes the opportunity for 

consultation on activities potentially 

affecting attainment and maintenance of 

the NAAQS in Indian country. In 

addition, we expect States to work with 

Tribes with land that is part of a 

nonattainment area in the SIP 

development process and to inform 

Tribes of the content of these SIPs as 

they develop them. States should 

coordinate with Tribes when projecting 

emissions from counties or other areas 

which include areas of Indian country 

to ensure that assumptions regarding 

demographics, economic activity, 

commuting patterns, etc. are accurate 

for the Tribal portions. Where the State 

models project future emissions under 

the SIP and their effect on air quality, 

then Tribes should be made aware of 

these modeling analyses in order to 

determine if their Indian country is 

being affected by upwind pollution and 

whether this impact has been 

considered in the modeling analyses. 

71668 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

States have an obligation under 40 

CFR 51.102(d)(5) to notify other States 

in advance of any public hearing(s) on 

their State plans which will 

significantly impact those other entities. 

This CAA requirement for States to 

notify other parties extends to Tribes 

under section 301(d) and the TAR. 

Historically, States have not always 

understood their responsibility to 

coordinate with other affected entities, 

including, where appropriate, Tribes. 

States may not know how to contact 

Tribes, particularly when Tribal air 

programs are not well developed. It may 

be difficult for a State to obtain a copy 

of the control requirements for Indian 

country. We can assist States in 

identifying and contacting Tribes. When 

developing control strategies and 

making policy decisions, States, should 

as appropriate, coordinate with Tribes at 

the earliest opportunity. Where States 

utilize stakeholder-based consensus 

processes to develop SIP strategies, we 

recommend that Tribes be provided the 

opportunity to participate in the 

process. 

We have begun providing training to 

Tribes about how to participate in SIP 

development and implementation. 

Many Tribes may not possess the 

resources to develop a TIP or may 

decide not to develop a TIP. Some will 

develop robust air quality programs, 

which may or may not include a TIP. 

We intend to work with Tribes with all 

levels of air management programs. In 

general, where areas of Indian country 

have poor air quality, it is most likely 

as a result of transported pollution 

sources. We recognize that the manner 

in which States construct the SIP and 

what sources the SIP controls may 

impact Indian country located in 

downwind areas. 

Comment: One commenter raised 

concerns about the practical impacts of 

the NSR program on Indian Tribes. The 

commenter noted that Tribes have long 

traditions of environmental stewardship 

and recognize their responsibility to 

protect the health of their citizens. 

However, the commenter noted that 

Tribes have the right to pursue 

industrial and economic development. 

While that development must comply 

with all current environmental 

standards, the Tribes should not be 

burdened with requirements that in 

effect subsidize non-Tribal sources of 

pollution. 

Under the nonattainment NSR 

program, new major sources locating in 

a nonattainment area are required to 

obtain emissions reductions, referred to 

as offsets. The commenter stated that 

this requirement poses a hardship on an 

Indian reservation located in a larger 

nonattainment area. The new source 

wishing to locate on the reservation 

must obtain offsets from elsewhere in 

the nonattainment area; there are not 

usually enough sources on the 

reservation to supply the needed 

emissions reductions. When a Tribe is 

located in such a nonattainment area, 

efforts to increase economic 

development may be stalled by an 

inability of new sources to obtain 

offsets. The commenter concluded that 

this requirement is unfair to Tribes 

because of past barriers to economic 

development in Indian country. The 

commenter also stated that in many 

cases air pollution is transported onto 

the reservation. 

Response: The EPA acknowledges 

that offsets are a concern for Tribes. We 

are currently evaluating potential 

options for addressing this concern. 

M. What are the requirements for OTRs 

under the 8-hour ozone standard? 

[Section VI.S. of June 2, 2003 

proposed rule (68 FR 32855); § 51.916 in 

draft and final regulatory text.] 

1. Background 

Section 176A of the CAA provides 

EPA with authority to establish 

interstate transport regions where 

transport of air pollutants from one or 

more States contributes significantly to 

a violation of a NAAQS in one or more 

other States. 

Section 184 of the CAA establishes 

additional provisions for OTRs. Section 

184(a) specifically established an OTR 

comprising 12 Northeast and MidAtlantic States and the District of 

Columbia in order to address the 

longstanding problem of interstate 

ozone pollution in that region. To date, 

the existing OTR is the only transport 

region for any pollutant that has been 

established. The general provisions of 

section 176A apply to any OTR 

established under section 184. 

Section 184(b) sets forth specific VOC 

and NOX regulatory requirements to be 

applied throughout the entire OTR, in 

both attainment and nonattainment 

areas, to reduce interstate pollution. 

These additional regional regulatory 

requirements are NSR (for VOC and 

NOX), RACT (for VOC and NOX), 

enhanced vehicle I/M, and Stage II 

vapor recovery (for vehicle refueling) or 

a comparable measure. In general, these 

requirements duplicate requirements for 

certain ozone nonattainment areas that 

are classified under subpart 2. In the 

proposal, we indicated that we believed 

that under section 184 the current OTR 

will remain in place and remain subject 

to the section 184 control requirements 

for purposes of the 8-hour standard. 

2. Summary of Final Rule 

Section 184 continues to apply for 

purposes of the 8-hour standard. The 

current OTR remains in place and the 

section 184 control requirements 

continue to apply for purposes of the 8-

hour standard. 

Today’s rule describes RACT 

requirements for portions of an OTR 

that are not classified moderate or 

above. Consistent with the RACT 

requirement for areas classified as 

moderate and above for the 8-hour 

standard, the State must submit a SIP 

revision that meets the RACT 

requirements of section 184 of the CAA 

for each area in the OTR that is 

designated as attainment or 

unclassifiable or that may be classified 

marginal, or that is under § 51.904 of 

this subpart. A major stationary source 

for these areas is defined as a source 

which directly emits, or has the 

potential to emit, 100 tpy or more of 

NOX or 50 tpy or more of VOC. For any 

areas in the OTR, the State is required 

to submit the RACT revision no later 

than September 16, 2006 (27 months 

after designation for the 8-hour NAAQS) 

and must provide for implementation of 

RACT as expeditiously as practicable 

but no later than May 1, 2009 (first day 

of the first ozone season that is 30 

months after the RACT SIP is due). 

We believe that this does not result in 

any new regulatory requirements for any 

area in the OTR because these 

regulatory requirements are not 

associated with an area’s designation or 

classification and already apply 

regionwide under the 1-hour ozone 

standard. If a new OTR is established for 

purposes of the 8-hour standard 

pursuant to section 176A, that area 

would also be subject to the provisions 

and control requirements of section 184. 

3. Comments and Responses 

Comments: The EPA received two 

comments supporting our interpretation 

of section 184 with regard to the 8-hour 

standard. One commenter further 

asserted that for any areas that might be 

added to the OTR, or for any new OTR, 

if modeling shows that the control 

requirements from section 184 are not 

appropriate and should not be required, 

then EPA has the discretion to exempt 

such areas from those requirements. The 

commenter pointed to a portion of the 

decision in Alabama Power v. Costle, 

636 F. 2d. 323 (D.C. Circuit, 1979). 

Response: Regarding the comment 

about modeling, we are not prepared to 

determine whether the de minimis 

doctrine established by the court in 

Alabama Power would be available in 

the situation the commenter describes. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71669 

As the court in that case explained, such 

a determination would first require EPA 

to assess whether Congress, in enacting 

section 184 of the CAA, was so 

prescriptive as to foreclose granting 

such waivers. Since that issue of 

statutory interpretation for the described 

situation is not presently before the 

Agency, EPA is not addressing whether 

de minimis authority exists under 

section 184. 

N. Are there any additional 

requirements related to enforcement 

and compliance? 

[Section VI.T. of June 2, 2003 

proposed rule (68 FR 32855); no draft or 

final regulatory text.] 

1. Background 

In the proposal, we noted that section 

172(c)(6) requires nonattainment SIPs to 

‘‘include enforceable emission 

limitations, and such other control 

measures, means or techniques * * * as 

well as schedules and timetables for 

compliance, as may be necessary or 

appropriate to provide for attainment 

***’’ We also noted that the current 

guidance, ‘‘Guidance on Preparing 

Enforceable Regulations and 

Compliance Programs for the 15 Percent 

Rate-of-Progress Plans (EPA–452/R–93– 

005, June 1993)’’ is relevant to rules 

adopted for SIPs under the 8-hour ozone 

NAAQS and should be consulted for 

purposes of developing appropriate 

nonattainment plan provisions under 

section 172(c)(6). We proposed no 

specific regulatory provisions related to 

compliance and enforcement. 

2. Summary of Final Rule 

As in the proposal, we are not setting 

forth any additional regulatory text 

related to compliance and enforcement. 

3. Comments and Responses 

We received no comments on the 

proposed approach of handling 

enforcement and compliance provisions 

related to SIPs for the 8-hour ozone 

standard. 

O. What requirements should apply to 

emergency episodes? 

[Section VI.U. of June 2, 2003 

proposed rule (68 FR 32856); no draft or 

final regulatory text.] 

1. Background 

In the June 2, 2003 proposal, we noted 

that subpart H of 40 CFR part 51 

specifies requirements for SIPs to 

address emergency air pollution 

episodes and for preventing air 

pollutant levels from reaching levels 

determined to cause significant harm to 

the health of persons. We noted that we 

anticipate proposing a separate 

rulemaking in the future to update 

portions of that rule. 

2. Summary of Final Rule 

We have not yet proposed any rule 

revision related to emergency episodes, 

and the final rule below does not 

contain any such rule revision. 

3. Comments and Responses 

We received no comments on this 

aspect of the proposal. 

P. What ambient monitoring 

requirements will apply under the 8-

hour ozone NAAQS? 

[Section VI.V. of June 2, 2003 

proposed rule (68 FR 32856); no draft or 

final regulatory text.] 

1. Background 

Ozone monitoring data play an 

important role in designations, control 

strategy development, and related 

implementation activities. We did not 

propose any revisions to current 

ambient monitoring requirements listed 

in 40 CFR part 58. 

We indicated in the proposal that we 

do plan to modify the existing ozone 

monitoring requirements in a separate 

rulemaking as part of implementation of 

the National Ambient Air Monitoring 

Strategy (NAAMS), including adoption 

of a national strategy introducing 

national core monitoring sites (NCore) 

as a replacement for traditional national 

air monitoring stations/State and local 

air monitoring stations (NAMS/SLAMS) 

monitoring currently codified at 40 CFR 

part 58. Part of the NCore network 

would include the existing ozone 

monitoring sites that currently support 

the NAAQS-related activities. The 

regulatory modifications are expected to 

include ozone monitoring requirements 

based upon the population of an area 

and its historical/forecasted ozone air 

quality values. 

We indicated in the proposal that as 

part of ongoing air quality monitoring 

network assessments (outside the scope 

of this present rulemaking), each State, 

local, and Tribal air monitoring agency 

is being asked to assess the adequacy of 

its air pollution monitoring networks, 

including those sites that measure 

ozone. We said we would work with 

these agencies to develop network plans 

to ensure approval of all network 

designs. It is expected that the number 

and location of the original sites will be 

very similar to the current network. 

However, on a local basis, there will be 

some relocation, addition, and removal 

of ozone sites as a result of regional 

network assessments. 

In addition, we stated that we 

anticipate that we will include a 

requirement for measuring multiple air 

pollutants, including ozone precursors 

at select locations. The NCore sites are 

expected to include high-sensitivity 

nitrogen oxide (NO) and total reactive 

oxides of nitrogen (NOy) measurements 

at locations across the nation to support 

the tracking of emission reduction 

strategy efforts such as the NOX SIP 

Call, the CAIR and, if created, a statute 

codifying the Administration’s Clear 

Skies Act, which addresses NOX 

reductions across the nation. 

Section 182(c)(1) of the CAA requires 

that enhanced ozone (e.g., precursor) 

monitoring be conducted in any ozone 

nonattainment area classified as serious, 

severe, or extreme. Our regulations 

reflecting the statutory requirements are 

found at 40 CFR part 58. This is known 

as the Photochemical Assessment 

Monitoring Stations (PAMS) program. 

The proposal noted that the PAMS 

monitoring requirements (referred to as 

‘‘enhanced monitoring’’ under section 

182(c)(1) of the CAA) are retained in 

areas designated as 1-hour ozone 

serious, severe, and extreme 

nonattainment areas. Areas that are 

designated serious or above under the 8-

hour ozone NAAQS are not currently 

addressed in 40 CFR part 58 for ozone 

precursor monitoring, although such 

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

provision. We anticipated that the 

revisions to the monitoring regulations 

would also cover all areas that are 

classified as serious or above for the 8-

hour NAAQS, including any area that is 

bumped up to serious or above for the 

8-hour NAAQS. 

2. Summary of Final Rule 

There is no change from the proposal. 

No monitoring requirements are being 

promulgated as part of this rulemaking. 

EPA still expects to separately propose 

a number of amendments to the 

monitoring requirements, along the 

lines described above, in December 

2005. 

3. Comments and Responses 

Comment: One commenter noted that 

the NAAMS, which will likely influence 

the future of the ozone monitoring 

network, is based on the presumption 

that less criteria pollutant monitoring is 

needed and that resources must be 

shifted into measures that support other 

analyses. The commenter pointed out 

that many States have already curtailed 

their criteria pollutant monitoring 

networks in order to meet program 

requirements. The commenter argued 

that we should support and maintain 

the ozone monitoring network since the 

71670 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

data is used as the basis of attainment 

determinations and the tracking of 

progress. 

Response: While we did discuss some 

aspects of the NAAMS in the proposed 

rule, this rulemaking effort does not 

affect the ambient monitoring 

requirements listed in 40 CFR part 58. 

As such, comments on the NAAMS are 

not germane to this action. As noted 

above, we are working on a separate 

rulemaking effort to amend the ambient 

monitoring requirements. Commenters 

should raise any concerns they have 

regarding the NAAMS during the 

comment period on that action. 

We recognize that ozone continues to 

pose a significant environmental threat. 

The NAAMS does not recommend 

curtailing ozone monitoring, but rather 

recommends that State and local 

agencies perform assessments of their 

ozone networks to assure that the 

available resources are used to 

maximum benefit. We do not foresee 

significant changes to the existing ozone 

network as a result of these assessments. 

The NAAMS does recommend that 

resources be shifted from criteria 

pollutant monitoring to other 

monitoring initiatives (e.g., air toxics) 

for those criteria pollutants whose 

ambient concentrations are well below 

their respective NAAQS. Specifically, 

the strategy recommends significant 

reductions in total suspended 

particulate (TSP), PM10, SO2, CO and 

NO2 monitoring. 

Comment: Two commenters 

questioned the appropriateness of 

making high sensitivity NOX and CO 

measurements at NCore Level 2 sites 

which may be in urban areas. 

Response: This rulemaking effort does 

not affect the ambient monitoring 

requirements listed in 40 CFR part 58. 

As such, comments on the 

appropriateness of making high 

sensitivity NOX and CO measurements 

in urban areas are not germane to this 

action. 

Comment: One commenter urged the 

continued support of the PAMS 

program. The commenter points out that 

the PAMS’ data has been used to 

evaluate (and improve) emissions 

inventories, apply observation-based 

models, evaluate photochemical gridbased models, and assess effectiveness 

of control programs. The commenter 

argues that while fine-tuning the PAMS 

requirements may be appropriate, the 

program should be maintained. 

Response: As part of the antibacksliding provisions of the Phase 1 

rule, the PAMS monitoring 

requirements are retained in areas 

designated as 1-hour ozone serious, 

severe, and extreme nonattainment 

areas at the time of a designation of 

nonattainment for the 8-hour standard. 

[See 40 CFR 51.900(f)(9)]. In addition, 

areas that are designated serious or 

above under the 8-hour ozone NAAQS 

will also be required to comply with the 

PAMS monitoring requirements. Also, if 

an area is bumped up to serious or 

above for the 8-hour NAAQS, it would 

be required to conduct the appropriate 

PAMS monitoring. 

Currently, 40 CFR part 58 does not 

specifically apply to areas for purposes 

of the 8-hour standard. As discussed 

above, we are working on a separate 

rulemaking effort to amend the ambient 

monitoring requirements. We expect 

these revisions to ensure that all areas 

that are classified as serious or above for 

the 8-hour NAAQS are covered by the 

PAMS regulations. However, even in the 

absence of the applicability of these 

regulations, the enhanced monitoring 

requirement of section 182(c)(1) applies. 

Q. When will EPA require 8-hour 

attainment demonstration SIP 

submissions? 

[Section VI.W. of June 2, 2003 

proposed rule (68 FR 32856); § 51.908(e) 

in draft regulatory text and § 51.908(d) 

of final regulatory text.] 

1. Background 

In the June 2, 2003 action, we 

proposed that required attainment 

demonstrations, which will be based on 

photochemical grid modeling for all 

areas must be submitted within 3 years 

after designation. However, we 

proposed that a subpart 1 area that 

desires an attainment date within 3 

years after designation would have to 

provide a demonstration within 1 year 

after designation. 

We noted that the proposed time of 

submission is expected to result in as 

close as possible a synchronization of 

the 8-hour ozone and PM2.5 attainment 

demonstration SIP submittal dates. 

2. Summary of Final Rule 

The final rule provides that 

attainment demonstrations—where 

required—must be submitted within 3 

years after the effective date of the area’s 

nonattainment designation. As noted in 

section IV.D.1. above, the final rule does 

have a separate provision addressing 

submission of an early attainment 

demonstration. 

On June 18, 2004 (69 FR 34076), EPA 

announced it was reconsidering the 

boundaries of the Las Vegas, NV, 8-hour 

ozone nonattainment area. The EPA 

deferred the effective date of the 

designation until September 13, 2004, 

and that this reconsideration would not 

affect the time SIPs would be due for the 

Clark County nonattainment area. 

3. Comments and Responses 

Comment: Several commenters 

believed some areas would need longer 

than 3 years to submit their attainment 

demonstration. At least one of these 

commenters noted that section 182(c)(2) 

allows up to 4 years (rather than 3 years) 

for submission of a modeled attainment 

demonstration for serious and above 

areas. One commenter recommended 

that EPA should consider extending 

attainment-modeling deadlines for 

nonattainment areas that are not 

currently contained within the 1-hour 

boundary, but will now be included in 

the 8-hour boundary. At least one 

commenter agreed with the timing we 

proposed. 

Response: For the reasons stated in 

the proposal, we believe it is 

appropriate to require that the modeled 

attainment demonstrations be submitted 

within 3 years after designation. In 

addition, we note the following: 

• In general, the CAA requires these 

submissions no later than 3 years 

following designation. See sections 

172(b) and 182(b) of the CAA. At the 

time of enactment of the CAA 

Amendments of 1990, Congress allowed 

areas that used the recently developed 

and complex photochemical grid model 

an extra year (4 years rather than 3 

years) to submit their attainment 

demonstration. Photochemical grid 

modeling is now a process more familiar 

to users for purposes of developing 

attainment demonstrations, and all areas 

will be using these models for purposes 

of their attainment demonstrations and 

can be completed with the time frame 

established in this rule. There is no 

distinction between the tools used for 

attainment modeling that would justify 

additional time for these areas to submit 

attainment demonstrations. Further, 

where appropriate, existing modeling 

exercises (e.g., regional analyses, RPO 

analyses, older 1-hour analyses) may be 

leveraged for use in certain cases. In 

most cases, it will not be necessary to 

conduct a modeling exercise ‘‘from 

scratch.’’ 

• We do not believe it is appropriate 

or desirable to require States to submit 

attainment demonstrations for areas 

designated nonattainment under the 8-

hour standard at different times for 

different areas. We recognize that 

photochemical grid modeling—required 

by the CAA for interstate moderate 

nonattainment areas, as well as serious 

and higher—classified areas—will be 

performed on large enough scales to 

address transport and will in most cases 

encompass a number of nonattainment 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71671 

areas. These numerous nonattainment 

areas may differ by classification (some 

areas may be intrastate moderate areas, 

some interstate moderate areas, and 

others serious and above nonattainment 

areas). Some areas that may require 

attainment demonstrations may be 

subject to subpart 1 while others may be 

subject to subpart 2. 

• The control strategies that may be 

modeled for all the areas in the 

modeling domain will likely be 

modeled simultaneously, especially if 

all the areas are located in a single State. 

• We also note that an area’s RFP 

plan and the RACM demonstration 

under section 172(c)(1) are due within 

3 years after designation. For the 

reasons stated in sections describing 

those requirements, it is appropriate 

that the attainment demonstration, the 

RFP plan, and the RACM demonstration 

be submitted at the same time. 

In light of these reasons, we do not 

believe it is consistent with the CAA 

and reasonable to require submission of 

attainment demonstrations no later than 

3 years following designation. 

Although we proposed that subpart 1 

areas requesting an attainment date 

within 3 years after designation should 

submit their attainment demonstration 

within 12 months, the final rule does 

not include such a provision (see 

section IV.D.1 above for a further 

discussion of this). 

R. How will the statutory time periods 

in the CAA be addressed when we 

redesignate areas to nonattainment 

following initial designations for the 8-

hour NAAQS? 

[Section VI.B. of June 2, 2003 

proposed rule (68 FR 32816); § 51.906 in 

draft and final regulatory text.] 

1. Background 

We noted in the proposal that section 

181(b) of the CAA provides that for 

areas designated attainment or 

unclassifiable for ozone immediately 

following enactment of the 1990 CAA 

Amendments and subsequently 

redesignated to nonattainment, the 

period to the maximum statutory 

attainment date would run from the date 

the area is classified under subpart 2.89 

Thus, if an area designated as 

attainment for the 1-hour ozone 

standard in 1990 was redesignated to 

nonattainment for the 1-hour ozone 

89 Section 181(b) provides that ‘‘any absolute, 

fixed date applicable in connection with any such 

requirement is extended by operation of law by a 

period equal to the length of time between the date 

of enactment of the CAAA of 1990 and the date the 

area is classified under this paragraph.’’ Under 

section 181(b), the date of classification is the same 

as the date of redesignation to nonattainment. 

standard in January 2002 and classified 

as moderate, the area’s 1-hour 

attainment date would be no later than 

6 years following January 2002, i.e., 

January 2008. Section 172(a)(2) of the 

CAA provides for attainment dates to be 

calculated from the time the area is 

designated nonattainment. 

We also noted in the proposal that 

most of the SIP submittal dates in 

subpart 2 are set as a fixed period from 

the date of enactment of the 1990 CAA 

Amendments, which was also the date 

of designation and classification by 

operation of law for most subpart 2 

areas. Section 181(b)(1) of the CAA 

provides that any fixed dates applicable 

in connection with any such 

requirements under section 110, subpart 

1 and subpart 2 will be extended by 

operation of law to a period equal to the 

length of time between the date of 

enactment of the 1990 CAA 

Amendments and the date that an area 

is subsequently designated and 

classified. 

2. Final Rule 

We are adopting the approach set 

forth in the proposed rule. For any area 

that is initially designated attainment or 

unclassifiable for the 8-hour NAAQS 

and subsequently redesignated to 

nonattainment for the 8-hour ozone 

NAAQS, the periods for the attainment 

date and dates for submittal of any 

applicable requirements under subpart 1 

or subpart 2 would run from the date of 

redesignation to nonattainment of the 8-

hour NAAQS. This is consistent with 

section 181(b), which gives areas 

redesignated to nonattainment the same 

amount of time to submit plans and to 

attain the standard as areas initially 

designated nonattainment. 

3. Comments and Responses 

Comment: One commenter asked 

what the reasoning was behind the time 

period extension and if this is an 

attempt to provide equity, based on the 

wording of the draft regulatory text. 

Response: As stated above, section 

181(b)(1) of the CAA provides for 

extending by operation of law any 

absolute, fixed date applicable in 

connection with a nonattainment 

requirement by a period equal to the 

length of time between the date of 

enactment of the CAA Amendments of 

1990 and the date the area is classified 

and redesignated as nonattainment. 

Thus, an area redesignated to 

nonattainment for the 1-hour standard 

and classified as moderate would have 

been given 3 years to submit an 

attainment demonstration and up to 6 

years to attain, which are the same time 

periods given to an area designated 

nonattainment and classified by 

operation of law at the time of the 1990 

CAA Amendments. Since it does not 

make sense to run deadlines from the 

date of the CAA Amendments of 1990, 

we have adopted an approach consistent 

with the intent of that section—that the 

statutory time periods run from the date 

of redesignation to nonattainment. 

V. EPA’s Final Rule for New Source 

Review 

A. Background 

1. The Major NSR Program 

The major NSR program contained in 

parts C and D of title I of the CAA is 

a preconstruction review and permitting 

program applicable to new and 

modified major stationary sources of air 

pollutants regulated under the CAA. In 

areas not meeting health-based NAAQS 

and in OTRs, the program is 

implemented under the requirements of 

section 110(a)(2)(C) and part D of title I 

of the CAA. We call this program the 

‘‘nonattainment’’ major NSR program. 

Subpart 1 of part D of title I contains 

general requirements for nonattainment 

areas for any criteria pollutant and 

subpart 2 contains provisions 

specifically for ozone nonattainment 

areas. Subparts 3 and 4 contain 

provisions specifically for CO monoxide 

and PM10, respectively. In Whitman v. 

American Trucking Associations, [531 

U.S. 457, 482–86 (2001)], the Supreme 

Court reviewed EPA’s implementation 

strategy for the revised 8-hour ozone 

NAAQS, and remanded it to EPA to 

develop a reasonable resolution of the 

roles of subparts 1 and 2 in classifying 

areas for and implementing the revised 

ozone standard.90 

In areas meeting the NAAQS 

(‘‘attainment’’ areas) or for which there 

is insufficient information to determine 

whether they meet the NAAQS 

(‘‘unclassifiable’’ areas), the NSR 

requirements under part C of title I of 

the CAA apply. We call this program the 

PSD program. Collectively, we also 

commonly refer to the attainment and 

nonattainment programs as the major 

NSR program. These regulations are 

contained in 40 CFR 51.165, 51.166, 

52.21, 52.24, and part 51, appendix S. 

Of these, the nonattainment area 

regulations are contained in 40 CFR 

51.165, 52.24, and part 51, appendix S. 

The major NSR provisions of the CAA 

are implemented primarily through SIPapproved State preconstruction 

permitting programs. As provided in 

section 172(c)(5) of the CAA, the SIP 

90 For a more complete discussion of this decision 

and its implications, see 69 FR 23956; April 30, 

2004. 

71672 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

must require permits for the 

construction and operation of new or 

modified major stationary sources in 

accordance with section 173 of the 

CAA. Subpart 2 of title I of the CAA sets 

forth additional SIP requirements for 

ozone nonattainment areas, including 

preconstruction permitting 

requirements.91 

The minimum permitting 

requirements States must meet before 

EPA can approve a State’s 

nonattainment major NSR program into 

a SIP are found in part D of title I and 

40 CFR 51.165. However, some States 

are lacking a SIP-approved major NSR 

program for the 8-hour ozone NAAQS. 

This may be because the State has never 

had a nonattainment area in which it 

needed to apply a nonattainment NSR 

program or because the approved 

program does not apply to an 8-hour 

ozone nonattainment area. As discussed 

in section V.D of this preamble, EPA is 

providing States 3 years to develop and 

submit an approvable nonattainment 

major NSR program for the 8-hour 

NAAQS. The regulations at 40 CFR 

52.24(k) specify that appendix S governs 

permits to construct and operate in a 

nonattainment area or in any area 

designated under section 107(d) of the 

CAA as attainment or unclassifiable for 

ozone that is located in an OTR that a 

source applies for during this SIP 

development period (the interim period 

between the effective date of 

designations and the date that EPA 

approves a nonattainment major NSR 

program). 

Appendix S is an interpretation of 40 

CFR subpart I (including § 51.165), and 

has historically reflected substantially 

the same requirements as those in 

§ 51.165, subject to a limited exemption 

in section VI. This includes the 

requirement that a source comply with 

LAER and obtain offsetting emissions 

reductions. Pursuant to section 52.24(k), 

where necessary, appendix S governs 

nonattainment major NSR permitting of 

ozone precursors in 8-hour ozone 

nonattainment areas and all areas 

within the OTR, including areas 

designated attainment/unclassifiable, 

during the SIP development period. 

Thus, consistent with section 

110(a)(2)(C), permitting of new and 

modified stationary sources in the area 

will be regulated as necessary to ensure 

that the NAAQS are achieved. 

As we describe further in section 

V.A.2 of this preamble, today’s final 

regulations were proposed as part of two 

91 In some cases, subpart 1 and subpart 2 

requirements are inconsistent or overlap. To the 

extent that subpart 2 addresses a specific obligation, 

the provisions in subpart 2 control (68 FR 32811; 

June 2, 2003). 

different regulatory packages. On July 

23, 1996 (61 FR 38250), we proposed 

changes to the major NSR program, 

including codification of the 

requirements of part D of title I of the 

1990 CAA Amendments.92 On June 2, 

2003 (68 FR 32802), we proposed a rule 

to implement the 8-hour ozone NAAQS. 

On April 30, 2004, we promulgated the 

Phase 1 final rule and you will find a 

summary of the regulatory development 

process and stakeholder development 

for that rulemaking at 69 FR 23951. 

2. What We Proposed 

a. Proposed Changes to Incorporate the 

1990 CAA Amendments 

On July 23, 1996 (61 FR 38250), we 

proposed changes to § 51.165 and 

appendix S to incorporate requirements 

in part D of title I of the 1990 CAA 

Amendments for ozone, CO, and PM10 

nonattainment areas. Concerning ozone, 

we proposed (among other things) to 

codify the following provisions from 

section 182 of the CAA: 

• Major stationary source thresholds 

(ranging from 10 to 100 tpy, depending 

on classification), 

• Significant emission rates (ranging 

from 0 to 25 tpy), 

• Offset ratios (ranging from 1.1:1 to 

1.5:1), and 

• Special modification provisions 

implementing CAA sections 182(c), (d), 

and (e) for serious, severe, and extreme 

ozone nonattainment areas. 

In the 1996 proposal, we proposed 

that the major stationary source 

thresholds and offset ratios of CAA 

section 182 (subpart 2 of part D) would 

apply to all major stationary sources of 

VOC and NOX to implement major NSR 

under the 1-hour ozone NAAQS. This 

proposal is consistent with the 1991 and 

1992 Transition Policy Memos 

explaining major NSR requirements 

under the 1990 CAA Amendments.93 

These memos also explained that 

permits must comply with the new 

statutory requirements for major NSR 

under the 1-hour NAAQS after the 

deadlines set by Congress, regardless of 

92 On December 31, 2002, we finalized five 

actions from that proposal related to the 

applicability of the NSR regulations. For a summary 

of the regulatory development process and 

stakeholder development for that rulemaking, see 

67 FR 80188. 

93 John S. Seitz, ‘‘New Source Review (NSR) 

Program Transitional Guidance,’’ March 11, 1991. 

We provided additional transitional guidance for 

nonattainment areas in our September 3, 1992 

memorandum, New Source Review (NSR) Program 

Supplemental Transitional Guidance on 

Applicability of New Part D NSR Permit 

Requirements, from John S. Seitz, Director, Office 

of Air Quality Planning and Standards. 

the delay in incorporating them into 

SIPs. 

Our 1996 proposal predated 

promulgation of the 8-hour ozone 

NAAQS and thus did not explain the 

details of implementation of these 

standards under § 51.165 or appendix S. 

For a discussion of implementation of 

the 1-hour and 8-hour ozone NAAQS 

under § 51.165 and appendix S, see 

section V.D. of this preamble. 

Also, in our 1996 action, and then 

again in our June 2, 2003 action, we 

proposed to amend our nonattainment 

NSR provisions to expressly include 

NOX as an ozone precursor in 

nonattainment major NSR programs (61 

FR 38297, 68 FR 32847). We also 

proposed that, as provided under CAA 

section 182(f), a waiver from 

nonattainment NSR for NOX as an ozone 

precursor would be available for both 

subpart 1 and subpart 2 areas (68 FR 

32846). 

On June 2, 2003, we proposed a rule 

to identify the statutory requirements 

that apply for purposes of developing 

SIPs under the CAA to implement the 

8-hour ozone NAAQS (68 FR 32802). 

Specifically, we proposed two optionsone in which all nonattainment areas 

would be classified and regulated under 

subpart 2 of part D of title I, and one in 

which some nonattainment areas would 

be regulated under the less restrictive 

requirements of subpart 1 and some 

would be classified and regulated under 

subpart 2. For areas classified under 

subpart 2—those with a 1-hour ozone 

design value at or above 0.121 ppm—the 

classifications set forth in subpart 2 

(marginal, moderate, etc.) would govern 

part D SIPs for the 8-hour ozone 

standard, with each area’s classification 

determined by a modified version of the 

subpart 2 classification table containing 

1-hour design values and translated 8-

hour design values for each 

classification. The NSR permitting 

requirements for the 8-hour ozone 

standard necessarily follow from the 

classification scheme chosen under the 

terms of subpart 1 and subpart 2. We 

did not propose specific regulatory 

language for implementation of NSR 

under the 8-hour NAAQS. However, we 

indicated that we intended to revise the 

nonattainment NSR regulations to be 

consistent with the rule for 

implementing the 8-hour ozone NAAQS 

(68 FR 32844). 

Concerning CO, in 1996 we proposed 

the following: 

• Major stationary source threshold of 

50 tpy for serious nonattainment areas 

in which the Administrator has 

determined that stationary sources are 

significant contributors to CO levels, 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71673 

• Significant emission rate of 50 tpy 

for serious nonattainment areas in 

which the Administrator has 

determined that stationary sources are 

significant contributors to CO levels. 

Concerning PM10, in 1996, we 

proposed to amend our nonattainment 

NSR regulations to incorporate 

requirements of the 1990 CAA 

Amendments and establish significant 

emission rates. Specifically, we 

proposed the following: 

• Major stationary source threshold of 

100 tpy PM10 or any specific PM10 

precursor in moderate PM10 

nonattainment areas, 

• Major stationary source threshold of 

70 tpy PM10 or any specific PM10 

precursor in serious PM10 

nonattainment areas, and 

• Significant emission rate of 15 tpy 

PM10 and 40 tpy PM10 precursors. 

b. Proposed Changes To Criteria for 

Emission Reduction Credits From 

Shutdowns and Curtailments 

In 1996 we proposed to revise the 

regulations limiting offsets from 

emissions reductions due to shutting 

down an existing source or curtailing 

production or operating hours below 

baseline levels (‘‘shutdowns/ 

curtailments’’). The prior regulations at 

§ 51.165(a)(3)(ii)(C) provided that such 

emissions reductions could be used as 

offsets if the State lacked an approved 

attainment demonstration, unless the 

shutdown/curtailment occurred after 

the date the new source permit 

application was filed or the applicant 

could establish that the proposed new 

source is a replacement for the 

shutdown/curtailed source. We 

proposed to revise the existing 

provisions for crediting emissions 

reductions by restructuring existing 

§ 51.165(a)(3)(ii)(C)(1) and (2) for clarity 

without changing the current 

requirements therein. [See proposed 

§ 51.165 (a)(3)(ii)(C)(1) through (4)]. We 

also proposed substantive revisions in 

two alternatives that would ease, under 

certain circumstances, the existing 

restrictions on the use of emission 

reduction credits from source 

shutdowns and curtailments as offsets. 

We explained that easing the 

restrictions may be warranted by the 

1990 CAA Amendments, in which 

Congress significantly reworked the 

attainment planning requirements of 

part D of title I of the CAA such that an 

approved attainment demonstration is 

unnecessary. 

The revised CAA emphasizes the 

emission inventory as the first 

requirement in planning, includes new 

provisions keyed to the inventory 

requirements, and mandates several 

adverse consequences for States that fail 

to meet the planning or emissions 

reductions requirements related to 

inventories.94 In 1993, we issued a 

policy memorandum addressing the use 

of shutdown credits for offsets in ozone 

nonattainment areas and areas in the 

OTR in light of the new statutory 

requirements.95 According to our 

longstanding policy, we emphasized 

that sources may use emission reduction 

credits generated from shutdowns and 

curtailments as offsets if the State 

continues to include the emissions in 

the emissions inventory for attainment 

demonstration and RFP milestone 

purposes. We proposed two alternatives 

to revise the regulations that limit a 

source’s use of emissions reductions as 

offsets if the reductions were achieved 

by shutting down an existing emissions 

unit or curtailing production or 

operating hours of a unit (shutdowns/ 

curtailments). 

Under Alternative 1, we proposed to 

allow emissions reductions from 

shutdowns and curtailments from 

sources located in ozone nonattainment 

areas that lack an EPA-approved 

attainment demonstration to be used as 

offsets or netting credits, if the 

emissions reductions occur after 

November 15, 1990 and the area is 

current with part D ozone 

nonattainment planning requirements. 

See proposed § 51.165(a)(3)(ii)(C)(5) and 

(6) [Alternative 1]. Proposed Alternative 

2 generally would have allowed 

emissions reductions from source 

shutdowns and source curtailments in 

all nonattainment areas and for all 

pollutants to be used as offsets or 

netting credits when such reductions 

occur after the base year of the 

emissions inventory for that pollutant. 

See proposed § 51.165(a)(3)(ii)(C)(5) 

[Alternative 2]. The 1996 proposal 

retained the provision that the 

permitting authority may consider the 

shutdown or curtailment to have 

occurred after the date of its most recent 

emissions inventory if the inventory 

explicitly includes as current existing 

emissions the emissions from such 

previously shutdown or curtailed 

sources. 

c. Proposed Changes to Revise the 

Construction Ban Provisions 

On July 23, 1996, we proposed to 

revise § 52.24(a) to incorporate changes 

made by the 1990 CAA Amendments 

94 For a complete discussion of how the 1990 

CAA Amendments attainment planning 

requirements relate to shutdown/curtailment 

credits (61 FR 38311; July 23, 1996). 

95 Use of Shutdoen Credits for Offsets, July 21, 

1993, John S. Seitz, Director, Office of Air Quality 

Planning and Standards. 

related to the applicability of 

construction bans. Under the 1977 

Amendments, section 110(a)(2)(I) of the 

CAA required EPA to place certain areas 

under a federally imposed construction 

moratorium (ban) that prohibited the 

construction of new or modified major 

stationary sources in nonattainment 

areas where the State failed to have an 

implementation plan meeting all of the 

requirements of part D. The 1990 CAA 

Amendments removed these provisions 

from the CAA. However, in section 

110(n)(3) of the CAA (Savings Clause), 

the 1990 CAA Amendments retained the 

prohibition in cases where it was 

applied prior to the 1990 CAA 

Amendments based upon a finding by 

the Administrator that the area: (1) 

Lacked an adequate NSR permitting 

program (as required by section 

172(b)(6) of the 1977 CAA); or (2) the 

State plan failed to achieve the timely 

attainment of the NAAQS for SO2 by 

December 31, 1982. All other 

construction bans pursuant to section 

110(a)(2)(I) are lifted as a result of the 

new statutory provision. This includes 

previously imposed construction bans 

based upon a finding that the plan for 

the area did not demonstrate timely 

attainment and maintenance of the 

ozone or CO NAAQS. In accordance 

with the amended section 110(n)(3) of 

the CAA, any remaining construction 

ban continues in effect until the 

Administrator determines that the SIP 

meets either the amended part D permit 

requirements, or the requirements under 

subpart 5 of part D for attainment of the 

NAAQS for SO2, as applicable. 

We note that § 52.24(k) was not 

retained in our proposed rule text. 

However, the preamble did not in any 

manner indicate that EPA believed that 

NSR permits complying with appendix 

S were not required during the SIP 

development period where necessary. 

To clarify our intent, our proposed 8-

hour ozone NAAQS implementation 

rule explained that § 52.24(k) remained 

in effect and would be retained. In that 

action, we also proposed that we would 

revise § 52.24(k) to reflect the changes in 

the 1990 CAA Amendments (68 FR 

32846). The prior language at section 

52.24(k) allowed States to issue permits 

under appendix S for a maximum 

period of 18 months after designation. 

After this time, if the nonattainment 

area did not have an approved part D 

NSR permit program, the construction 

ban would apply. However, the 1990 

CAA Amendments to the construction 

ban provisions altered the provisions of 

the construction ban such that it would 

not apply when a State lacked an 

approved part D NSR program in the 

71674 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

future. Thus, the 1990 CAA 

Amendments supersede that portion of 

prior § 52.24 dealing with the 

construction ban but leave unaltered the 

requirement that appendix S continues 

to apply through § 52.24(k). We 

explained that we have interpreted this 

language to allow States or EPA to issue 

permits under appendix S from 

designation to approval even if the time 

period between designation and 

approval exceeds 18 months, and 

proposed to revise § 52.24(k) to properly 

reflect this interpretation. 

We also proposed regulatory text to 

reflect the revisions to CAA section 

173(a)(4). Before the State can issue a 

nonattainment major NSR permit, the 

reviewing authority must first find 

pursuant to section 173(a)(4) that the 

‘‘Administrator has not determined that 

the applicable implementation plan is 

not being adequately implemented for 

the nonattainment area’’ in accordance 

with the requirements of part D. We 

stated our intent to make this 

determination by sending a letter to the 

permitting authority, and publishing a 

subsequent action in the Federal 

Register, but we solicited comment on 

the need to undertake notice-andcomment procedures before taking final 

action. 

Section 113(a)(5) of the CAA provides 

that EPA may issue an order prohibiting 

the construction or modification of any 

major stationary source in any area, 

including an attainment area, where the 

Administrator finds that the State is not 

in compliance with the NSR 

requirements. Specifically, EPA may 

issue an order under section 113(a)(5) 

banning construction in an area 

whenever the Administrator finds that a 

State is not acting in compliance with 

any requirement or prohibition of the 

CAA relating to construction of new 

sources or the modification of existing 

sources. To codify the requirements of 

section 113(a)(5), we proposed new 

language in § 52.24(c). 

We proposed to remove the transition 

provisions under existing § 52.24(c) and 

(g). These paragraphs were proposed to 

be removed because they were 

originally designed to clarify the 

applicable requirements for permits 

issued prior to the initial SIP revisions 

required by the 1977 CAA 

Amendments. 

In addition to the significant changes 

already discussed, we proposed several 

minor changes to § 52.24. These minor 

changes included: (1) The addition of 

requirements applicable to transport 

regions; (2) the inclusion of 

requirements applicable to criteria 

pollutant precursors; (3) incorporation 

of the definitions proposed in 

§ 51.165(a); (4) revisions to the language 

at § 52.24(h)(2); and (5) revisions to 

§ 52.24(j). 

d. Proposed Changes on Applicability of 

Appendix S and the Transitional NSR 

Program 

On June 2, 2003 (68 FR 32802), we 

explained implementation of the major 

NSR program under the 8-hour ozone 

NAAQS during the SIP development 

period, and proposed flexible NSR 

requirements for areas that expected to 

attain the 8-hour NAAQS within 3 years 

after designation. We stated that the 

existing regulation codified at 40 CFR 

§ 52.24(k) requires that permits be 

issued in compliance with appendix S 

during this time, and that a State would 

have to continue implementing part D 

nonattainment requirements under 

appendix S unless the source was 

eligible for flexibility under section VI 

of the appendix (68 FR 32846–48). 

Our June 2, 2003 proposal would 

limit the circumstances under which 

section VI of appendix S applies (68 FR 

32844). Under the existing regulatory 

structure of section VI, major new 

sources and major modifications located 

in nonattainment areas for which the 

attainment date has not yet passed may 

avoid the requirement to comply with 

LAER and obtain source-specific offsets 

if the new emissions will not interfere 

with an area’s ability to reach 

attainment by its attainment date. 

Because we believed that most new 

emissions in 8-hour nonattainment 

areas would generally not meet this 

criteria of non-interference, we 

proposed to apply section VI only in 

areas that qualify for a ‘‘transitional 

classification’’ (68 FR 32846). 

Accordingly, we called this revised 

section VI the Transitional NSR 

Program. We proposed that the program 

would apply only in nonattainment 

areas that: (1) Are attaining the 1-hour 

NAAQS; (2) are subject to subpart 1 

(rather than subpart 2) of part D of title 

I; (3) for which the State submitted an 

attainment plan by April 15, 2004 that 

demonstrates attainment within 3 years 

after designation; (4) and for which the 

State submitted an attainment plan 

containing any additional local control 

measures needed for attainment of the 

8-hour standard (68 FR 32847). We also 

proposed that the sources using section 

VI would be required to comply with 

BACT. 

On August 6, 2003 (68 FR 46536), we 

solicited comment on additional options 

for implementing major NSR under the 

8-hour NAAQS, including a major 

rewrite of appendix S that would 

include the proposed changes to section 

VI. We also solicited comment on two 

alternatives to appendix S for 

implementing NSR in newly designated 

nonattainment areas during the 

transitional SIP development period. 

One alternative was a Federal part D 

NSR regulatory program for major new 

and modified sources, to be codified at 

40 CFR 52.10, under which EPA would 

be responsible for permitting unless a 

State took delegation of the program. 

The other alternative was application of 

the Federal PSD program at 40 CFR 

52.21 in such newly designated 

nonattainment areas. Commenters stated 

that neither of those alternatives was 

sufficiently developed for public 

comment, and we have not pursued 

them further. 

One other proposal affects appendix S 

applicability. In 1978 (43 FR 26408; 

June 19, 1978) and 1979 (44 FR 3276; 

January 16, 1979), we proposed that 

applicability under PSD and appendix S 

respectively be based on uncontrolled 

emissions, but sources would be exempt 

from control requirements unless the 

increase in allowable emissions was at 

least 50 tpy, 1,000 pounds per day, or 

100 pounds per hour. The U.S. Court of 

Appeals for the District of Columbia 

Circuit, however, ruled that major 

source applicability should be based on 

potential to emit, rather than 

uncontrolled emissions. Alabama Power 

Co. v. Costle, 606 F.2d 1068 (D.C. 

Circuit, 1979), amended 636 F. 3d 323, 

356–57 (D.C. Circuit, 1980). The court 

also ruled that EPA had exceeded its 

authority in establishing the 50 tpy 

exemption and remanded the exemption 

for reconsideration. In response, we 

proposed removing the 50 tpy 

exemption from the PSD rules and 

appendix S in the 1979 Notice of 

Proposed Rulemaking (NPRM) (44 FR 

51930). We finalized these changes in 

1980, but we inadvertently did not 

remove the change in all the places in 

appendix S where it was located, 

specifically footnotes 5 and 8 to IV.D. 

e. Proposed Changes To Identify NOX as 

an Ozone Precursor in Attainment and 

Unclassifiable Areas 

Currently, only VOCs are expressly 

regulated as ozone precursors under the 

PSD regulations. Recognizing the role of 

NOX in ozone formation and transport, 

we proposed to amend our PSD 

regulations to expressly include NOX as 

an ozone precursor in attainment and 

unclassifiable areas. Moreover, we 

proposed to require States to modify 

their existing programs to include NOX 

as an ozone precursor in these areas (68 

FR 32846). 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71675 

B. Summary of Final Rule and Legal 

Basis 

1. Final Action and Legal Basis for 

Changes to Incorporate the 1990 CAA 

Amendments 

a. Final Changes to Incorporate the 1990 

CAA Amendments 

In today’s final action, we revised 

§ 51.165 and appendix S to incorporate 

the major stationary source thresholds, 

significant emission rates, and offset 

ratios for sources of ozone precursors 

pursuant to part D, subpart 1 and 

subpart 2 of title I of the 1990 CAA 

Amendments. [See § 51.165(a)(1)(iv), 

(a)(1)(v), (a)(1)(x), (a)(8), (a)(9) and 

section II. A. 4, 5, and 10 and section 

IV.G and H of appendix S.] Accordingly, 

consistent with statutory requirements 

and the final rules in 40 CFR part 51, 

subpart X (Provisions for 

Implementation of 8-hour Ozone 

NAAQS), today’s final rules in § 51.165 

require States’ part D NSR SIPs 

implementing the 8-hour ozone 

standard to include provisions meeting 

subpart 1 of part D of the CAA, and 

subpart 2 as applicable, based on the 

area’s classification. (We note 40 CFR 

part 51, subpart X includes the specific 

provisions for determining whether an 

area is designated and classified under 

subpart 1 or subpart 2 and these rules 

are explained in the preamble to those 

final rules at 69 FR 23954.) Also, 

appendix S requires States or EPA to 

issue permits during the SIP 

development period consistent with 

these requirements. Specifically, under 

subpart 1, the major stationary source 

threshold is 100 tpy, and an offset ratio 

of at least 1:1 applies. Under subpart 2, 

the major stationary source threshold 

ranges from 10 to 100 tpy, depending on 

the classification of the nonattainment 

area in which the source is located. The 

applicable offset ratios range from 1:1 to 

1:5, also depending on the classification 

of the nonattainment area in which the 

source is located. 

We also finalized as proposed in 1996 

and 2003 that the NSR requirements 

applicable to major stationary sources of 

VOC (including provisions regarding 

major modifications, significant 

emission rates, and offsets) apply to 

NOX emissions. These requirements 

apply in all 8-hour ozone nonattainment 

areas, including subpart 1 and subpart 

2 areas. These requirements apply 

except where the Administrator 

determines, according to the standards 

set forth in section 182(f), that NOX 

requirements for major stationary 

sources, including nonattainment major 

NSR requirements, would not apply or 

would be limited (‘‘NOX waiver’’). [See 

§ 51.165(a)(8) and appendix S.] 

According to § 51.913(c), a section 

182(f) NOX exemption granted under the 

1-hour ozone standard does not relieve 

the area from any requirements under 

the 8-hour ozone standard, including 

nonattainment major NSR for major 

stationary sources of NOX. We discuss 

whether a NOX waiver under section 

182(f) applies in a particular area and 

the effects of NOX waivers on RACT in 

section IV.H. of this preamble. 

We are not taking final action to 

implement the special modification 

provisions at CAA sections 182(c), (d), 

and (e) for serious, severe, and extreme 

ozone nonattainment areas at this time. 

We are evaluating additional issues 

related to implementation of these 

requirements and anticipate taking final 

action in the future. 

As proposed on July 23, 1996 (61 FR 

38250), we have incorporated 

requirements in part D of title I of the 

1990 CAA Amendments for CO. [See 

§ 51.165(a)(1)(iv)(A)(1)(v) and 

(a)(1)(x)(D) and appendix S.] 

We have also made final changes to 

incorporate the requirements of the 

1990 CAA Amendments concerning 

PM10 nonattainment areas. Specifically, 

we have promulgated as proposed in 

1996 the major stationary source 

thresholds and significant emission 

rates for PM10 in PM10 nonattainment 

areas. [See § 51.165(a)(1)(iv)(A)(1)(vi) 

and (a)(1)(x). See also appendix S at 

II.A.4.(i)(a)(6) and II.A.4.(i).] We have 

not taken final action on our 1996 

proposed rules for PM10 precursors. 

Instead, we plan to propose regulations 

concerning PM precursors as part of the 

PM2.5 NAAQS implementation rule. We 

also plan to address requirements for 

stationary sources of PM in that action. 

b. Legal Basis for Changes To 

Incorporate the 1990 CAA Amendments 

In areas not meeting health-based 

NAAQS and in the OTR, the major NSR 

program is implemented under the 

requirements of section 110(a)(2)(C) and 

part D of title I of the CAA. Subpart 1 

of part D of title I contains general 

requirements for nonattainment areas 

for any criteria pollutant. Subpart 2 

contains provisions specifically for 

ozone nonattainment areas. Subpart 3 

contains provisions specifically for CO 

nonattainment areas. Subpart 4 contains 

provisions specifically for PM10 

nonattainment areas. On July 23, 1996 

(61 FR 38250), we proposed changes to 

§ 51.165 and appendix S to incorporate 

requirements in part D of title I of the 

1990 CAA Amendments for ozone, CO, 

and PM10 nonattainment areas. 

We promulgated a new 8-hour ozone 

NAAQS on July 18, 1997. We indicated 

that we anticipated that States would 

implement the 8-hour ozone NAAQS 

under the less prescriptive subpart 1 

requirements. In February 2001, the 

Supreme Court ruled that the statute 

was ambiguous as to the relationship of 

subparts 1 and 2 for purposes of 

implementing the 8-hour ozone 

NAAQS. In Whitman v. American 

Trucking Associations, [531 U.S. 457, 

482–86 (2001)], the Supreme Court 

reviewed EPA’s implementation strategy 

for the revised 8-hour ozone NAAQS, 

and remanded it to EPA to develop a 

reasonable resolution of the roles of 

subparts 1 and 2 in classifying areas for 

and implementing the revised ozone 

standard. On April 30, 2004, we 

promulgated a final rule to implement 

the 8-hour ozone NAAQS (69 FR 

23951), in which some nonattainment 

areas would be regulated under the less 

restrictive requirements of subpart 1 and 

some would be classified and regulated 

under subpart 2. All ozone 

nonattainment areas have now been 

categorized subpart 1 or subpart 2 areas 

in 40 CFR part 81. Now that we have 

designated and classified nonattainment 

areas, the NSR program requirements 

(including the specific major stationary 

source thresholds, significant emission 

rates, and offset ratios associated with 

each classification) are determined by 

reference to subpart 1 and subpart 2, as 

codified in § 51.165 and appendix S 

through this rulemaking. Thus, as 

described in further detail in section 

V.A.2 of this preamble, we have 

incorporated the requirements of the 

1990 CAA Amendments for major 

stationary sources of ozone precursors 

in ozone nonattainment areas as 

proposed in 1996, and codified those 

requirements for the 8-hour standard 

consistent with the designation and 

classification scheme finalized in the 8-

hour ozone implementation rule (69 FR 

23951) promulgated in response to 

Whitman v. American Trucking 

Associations, 531 U.S. 457 (2001). 

Concerning CO, section 187(c) of the 

CAA unambiguously establishes the 

major stationary source threshold of 50 

tpy codified today for serious 

nonattainment areas where the 

Administrator has determined that 

stationary sources contribute 

significantly. It is also reasonable to set 

the significant emission rate at 50 tpy in 

those serious nonattainment areas 

where 50 tpy is the major stationary 

source threshold. The regulations at 

§ 51.165(a)(1)(iv)(A)(2) require that if a 

modification itself would constitute a 

major stationary source, the 

modification is subject to major NSR. 

Concerning PM10, section 189 of the 

CAA unambiguously establishes the 

71676 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

major stationary source threshold as 70 

tpy in serious nonattainment areas. 

Also, EPA has the authority to exempt 

de minimis emissions from the reach of 

a rule. See Alabama Power, 636 F.2d at 

360–61. Previously, EPA has defined the 

PM10 significant emission rate (that is, 

de minimis cut-off level) as at or above 

15 tpy for purposes of determining 

which modifications are insignificant 

and thus exempt from PSD review (52 

FR 24672, 24694–96; July 1, 1987). We 

believe it is reasonable to use the same 

significant emission rate in the 

nonattainment NSR program. This is 

consistent with our past practice of 

applying the same significant emissions 

rates for each pollutant in the PSD and 

nonattainment NSR programs. 

We also revised appendix S to 

incorporate the requirements of the 

1990 CAA Amendments to part D of 

title I of the CAA. These changes are 

necessary to make appendix S 

consistent with part D. As we discuss in 

section V.B.3.b of this preamble, we 

have determined that Congress intended 

for permitting equivalent to the part D 

NSR provisions to apply during the SIP 

development period through the use of 

appendix S (subject to the limited 

section VI exemption). In light of this 

determination, there is no reasonable 

basis for declining to implement the 

NSR requirements in the 1990 CAA 

Amendments during that period.96 

Additionally, appendix S provides on 

its face that it is an interpretation of the 

NSR permitting rules in 40 CFR subpart 

I, including § 51.165. Therefore, it is 

necessary to have appendix S reflect 

substantially the same requirements as 

are in § 51.165.97 Thus, we proposed to 

amend appendix S in this manner in the 

1996 NSR proposal. We also are mindful 

of the Supreme Court’s decision in 

American Trucking Associations. 

Although the decision did not directly 

96 The 1991 NSR transitional guidance issued to 

address implementation of the 1990 CAA 

Amendments acknowledged that appendix S did 

not contain at that time the newly enacted part D 

provisions, and further provided that the new 

requirements of part D to title I did not apply until 

November 15, 1992 for the ozone nonattainment 

areas; June 30, 1992, for the PM10 nonattainment 

areas; and 3 years from designation for most CO 

nonattainment areas. NSR Program Transitional 

Guidance, at A5 (March 11, 1991). We later clarified 

that the 1990 CAA Amendments did apply to all 

permits after those deadlines passed. NSR 

Supplemental Program Transitional Guidance on 

Applicability of New Part D NSR Requirements at 

3 (September 3, 1992). 

97 Thus, EPA has typically conformed appendix S 

to the part D nonattainment NSR permitting 

provisions governing SIPs at 40 CFR § 51.165 

(originally codified at § 51.18) whenever those 

regulations were revised. See, for example, 45 FR 

52676 (August 7, 1980); 47 FR 27554 (June 25, 

1982); 49 FR 43210 (October 26, 1984); 54 FR 27274 

(June 28, 1989); 57 FR 3941 (February 3, 1992). 

address NSR implementation during the 

SIP development period, the Court 

emphasized the importance of creating 

a role for subpart 2 in implementation 

of the 8-hour ozone NAAQS. We believe 

this suggests the need to create a role for 

subpart 2 in appendix S, in contrast to 

the exclusive subpart 1 scheme 

currently embodied in appendix S. 

2. Final Action and Legal Basis for 

Changes to Criteria for Emission 

Reduction Credits From Shutdowns and 

Curtailments 

a. Final Changes to Criteria for Emission 

Reduction Credits From Shutdowns and 

Curtailments 

The final revisions lift the 

requirement to have an approved 

attainment plan before using 

preapplication credits from shutdowns 

or curtailments as offsets. They also 

facilitate the availability of creditable 

offsets, consistent with the requirements 

of section 173 of the CAA. We revised 

the provisions at § 51.165(a)(3)(ii)(C) 

and appendix S concerning emission 

reduction credits generated from 

shutdowns and curtailments as 

proposed in Alternative 2 of the 1996 

proposal, with one exception. We agree 

with the commenter who found the 

regulatory term ‘‘most recent emissions 

inventory’’ confusing. We have revised 

§ 51.165(a)(3)(C)(1) accordingly, 

specifying that the shutdown or 

curtailment must have occurred after 

‘‘the last day of the base year for the SIP 

planning process.’’ For the 8-hour ozone 

NAAQS, the base year is 2002.98 

Additionally, today’s final provisions 

allow a reviewing authority to consider 

a prior shutdown or curtailment to have 

occurred ‘‘after the last day of the base 

year if the projected emission inventory 

used to develop the attainment 

demonstration explicitly includes the 

emissions from such previously 

shutdown or curtailed emissions unit.’’ 

This provision is consistent with the 

previous regulation which also allowed 

the reviewing authority to treat prior 

shutdowns or curtailments as occurring 

after the date of the most recent 

emissions inventory, but we have 

modified the regulatory language to 

clarify the appropriate emissions 

inventory. This regulatory language is 

consistent with our previous guidance 

on how emission reduction credits from 

shutdowns and curtailments are used in 

attainment planning.99 The base year 

98 68 FR 32833. See also ‘‘2002 Base Year 

Emission Inventory SIP Planning: 8-hr Ozone, 

PM2.5 and Regional Haze Programs,’’ U.S. EPA, pg. 

1 (November 18, 2002). 

99 See 57 FR 13553. After the 1990 CAA 

Amendments were enacted, 1990 was the base year 

inventory includes actual emissions 

from existing sources and would not 

reflect emissions from units that were 

shutdown or curtailed before the base 

year, as these emissions are not ‘‘in the 

air.’’ To the extent that these emission 

reduction credits are considered 

available for use as offsets and are thus 

‘‘in the air’’ for purposes of 

demonstrating attainment, they must be 

included in the projected emissions 

inventory used in the attainment 

demonstration along with other growth 

in emissions over the base year 

inventory. This step assures that 

emissions from shutdown and curtailed 

units are accounted for in attainment 

planning.100 As with the prior rules, 

reviewing authorities thus retain the 

ability to consider a prior shutdown or 

curtailment to have occurred after the 

last day of the base year if emissions 

from the shutdown or curtailment are 

accounted for in the attainment 

demonstration. However, in no event 

may credit be given for shutdowns that 

occurred before August 7, 1977, a 

provision carried over from the previous 

regulation. 

The other changes to the proposed 

rule text also are nonsubstantive and 

instead clarify the restrictions on credits 

from shutdowns or curtailments. 

Specifically, the proposed rule retained 

the requirement for an approved 

attainment demonstration, but made 

that requirement inapplicable where the 

credits occurred after the last day of the 

base year for the SIP planning process 

or where they were included in the most 

recent emissions inventory. The final 

rule recognizes there is no requirement 

for an approved attainment 

demonstration in those circumstances, 

and thus deletes the reference to that 

former requirement. 

We note that the requirements for 

emissions reductions used as offsets and 

for netting differ from those for emission 

reduction credits used for RFP and ROP. 

for 1-hour ozone NAAQS attainment planning 

purposes. See 57 FR 13502. The EPA encouraged 

States to allow sources to use pre-enactment banked 

emissions reductions credits for offsetting purposes. 

States have been allowed to do so if the restored 

credits meet all other offset creditability criteria, 

and States consider such credits as part of the 

attainment emissions inventory when developing 

their post-enactment attainment demonstration. 

100 For a discussion of emission inventories for 

the 8-hour ozone standard, see our emission 

inventory guidance, ‘‘Emissions Inventory 

Guidance for Implementation of Ozone and 

Particulate Matter National Ambient Air Quality 

Standards (NAAQS) and Regional Haze 

Regulations—Final,’’ at http://www.epa.gov/ttn/ 

chief/eidocs/eiguid/index.html. For a discussion of 

emission projections used in attainment 

demonstrations, see Emission Inventory 

Improvement Program, Volume X, Emission 

Projections, December 1999, available at http:// 

www.epa.gov/ttn/chief/eiip/techreport/. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71677 

Section IV.E.14. of this preamble 

discusses requirements for emission 

reduction credits used for RFP and ROP. 

For a more detailed discussion of 

emission reduction credits for offsets 

and netting under the 8-hour ozone 

NAAQS, see section V.D.5. of this 

preamble. 

b. Legal Basis for Changes to Criteria for 

Emission Reduction Credits From 

Shutdowns and Curtailments 

The revisions to the rules governing 

use of emissions reductions from 

shutdowns/curtailments as offsets are 

warranted by the more detailed 

attainment planning and sanction 

provisions of the 1990 CAA 

Amendments. These provisions 

specifically address air quality concerns 

in nonattainment areas lacking EPAapproved attainment demonstrations. 

As a threshold matter, we note that CAA 

section 173 does not mandate the prior 

restrictions on shutdown credits, 

specifically, the requirement to have an 

approved attainment demonstration. 

(See 48 FR 38742, 38751; August 25, 

1983). Rather, in promulgating these 

restrictions in 1989, EPA recognized 

that it had a large degree of discretion 

under the CAA to shape implementing 

regulations, as well as the need to 

exercise that discretion such that offsets 

are consistent with RFP as required in 

CAA section 173. (See 54 FR 27286, 

27292; June 28, 1989). Originally, EPA 

believed that areas without approved 

attainment demonstrations lacked 

adequate safeguards to ensure that 

shutdown/curtailment credits would be 

consistent with RFP. We thus subjected 

those areas to more restrictive 

requirements to ensure a link between 

the new source and the source being 

shutdown/curtailed (that is, shutdown/ 

curtailment must occur after application 

for a new or modified major source is 

filed). 

The 1990 CAA Amendments changed 

the considerations involved. As 

discussed above, for areas subject to 

subpart 2, Congress emphasized the 

emission inventory requirement in 

section 172(c)(3) as a fundamental tool 

in air quality planning. Congress also 

added new provisions keyed to the 

inventory requirement, including 

specific reduction strategies and 

Amilestones@ that measure progress 

toward attainment from the base year 

emissions inventory or subsequent 

revised inventories. Where the emission 

reduction credits pre-date the base year, 

State and local agencies must include 

the credits from the shutdown/ 

curtailment in the projected emissions 

inventory used to develop the 

attainment demonstration. Subpart 4 

PM

sets forth specific reduction strategies 

and milestones for attainment of the 10 standards. Additionally, there are 

now several adverse consequences 

where States fail to meet the planning 

or emissions reductions requirements of 

the CAA. For example, the CAA 

contains mandatory increased new 

source offset sanctions at a 2:1 ratio 

where the Administrator finds that a 

State failed to submit a required 

attainment demonstration. In areas that 

are subject to subpart 2 and subpart 4, 

failure to attain the air quality standard 

by the attainment deadline results in the 

area being bumped up to a higher 

classification. Additional regulatory 

requirements are imposed as a result of 

the higher classification. These statutory 

changes justify shifting the focus of the 

current regulations from individual 

offset transactions between a specific 

new source and shutdown source and 

towards a systemic approach. 

Considering the changes to the 1990 

CAA Amendments, we now believe that 

continuing the prohibition on the use of 

shutdown/curtailment credits generated 

where there is no approved attainment 

demonstration is not warranted. We 

believe that use of emission reduction 

credits from shutdowns/curtailments 

will be consistent with RFP towards 

attainment under CAA section 173, even 

in the absence of an approved 

attainment demonstration, if they occur 

after the last day of the base year for the 

SIP planning process or are included in 

the projected emissions inventory used 

to develop the attainment 

demonstration. From an air quality 

planning perspective, emissions from 

the shutdown source actually impacted 

the measurements of air quality used in 

determining the nonattainment status of 

an area. Subsequently, emissions 

reductions from such source 

shutdowns/curtailments are actual 

emissions reductions, and their use as 

emission offsets at a ratio of 1:1 or 

greater is consistent with RFP towards 

improved air quality as set forth in CAA 

section 173(a)(1)(A). 

3. Final Action and Legal Basis for 

Changes to the Construction Ban 

Provisions 

a. Final Action for Changes to the 

Construction Ban Provisions 

We are promulgating final changes to 

§ 52.24 to implement the construction 

ban provisions and other changes, as 

proposed in 1996 and 2003.101 We 

101 We note that we are changing the crossreference in § 52.24(f) to ‘‘§ 51.165’’ instead of the 

definitions section at § 51.165(a), to ensure that all 

of the provisions of ‘‘51.165 apply in interpreting 

the terms of § 52.24. 

believe these changes are beneficial to 

conform the regulatory text with the 

requirements that apply under the 1990 

CAA Amendments. 

As noted in our June 2003 proposal, 

we are retaining the provision in 

§ 52.24(k) that specifies that appendix S 

governs permits to construct and 

operate applied for during the SIP 

development period. Although the 

regulatory text proposed in 1996 

omitted § 52.24(k), the 1996 preamble 

also explained that the changes to 

§ 52.24 were intended only to update 

and clarify the regulation with regard to 

the changes to the construction ban 

made by the 1990 CAA Amendments. 

(61 FR 38250, 38305). The preamble did 

not in any manner indicate that EPA 

believed that NSR permits complying 

with appendix S were not required 

during the SIP development period 

where necessary. Additionally, it did 

not contemplate nonattainment major 

NSR permitting in light of the situation 

that today’s final action addresses, 

which is the need to permit 

nonattainment area sources during a 

transition period in which a substantial 

number of new nonattainment areas are 

being created. Therefore, we are 

retaining § 52.24(k). 

As we proposed in the 8-hour ozone 

NAAQS implementation rule (68 FR 

32846), we made one change to the 

regulatory language in § 52.24(k). The 

previous language at § 52.24(k) only 

allowed States to issue permits under 

appendix S for a maximum period of 18 

months after designation. This language 

was consistent with the previous SIP 

development period and construction 

ban under the 1977 CAA, which no 

longer apply under the 1990 CAA 

Amendments. We have revised 

§ 52.24(k) to allow States to issue 

permits under appendix S from 

designation until the SIP is approved, 

even if this exceeds 18 months. As we 

noted in our proposal, this change 

implements the removal of the 

construction ban from the 1990 CAA 

Amendments and is consistent with our 

1991 policy memo, ‘‘New Source 

Review (NSR) Program Transitional 

Guidance,’’ John S. Seitz, March 11, 

1991. 

b. Legal Basis for Changes to the 

Construction Ban Provisions 

Section 110(a)(2)(c) of the CAA 

establishes a general duty on States to 

include a program in their SIP that 

regulates the modification and 

construction of any stationary source as 

necessary to assure that the NAAQS are 

achieved. This general duty, often 

referred to as ‘‘minor NSR,’’ exists 

during all periods, including before a 

71678 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

State has an approved part D NSR 

permit program. 

Section 110(a)(2)(c) of the CAA does 

not define specific requirements States 

must follow for issuing major source 

permits during the interim period 

between nonattainment designation and 

EPA approval of a part D nonattainment 

NSR SIP (‘‘interim period’’). However, 

EPA’s regulations at § 52.24(k) require 

States to follow EPA’s Emission Offset 

Interpretative Ruling, 40 CFR part 51, 

appendix S, during this time. 

This approach is consistent with 

Congressional intent, as indicated in the 

1977 CAA Amendments providing for 

major NSR permitting during the SIP 

development period in accordance with 

appendix S. [See Public Law No. 95–95, 

section 129(a), 91 Statute 685 (1977)]. 

Specifically, Congress enacted a 

moratorium on construction in any area 

lacking an approved part D NSR SIP, 

with a delayed effective date of July 1, 

1979. Congress also provided that 

appendix S, as modified by rule of the 

Administrator, govern permitting of 

sources constructing in such areas 

before that date, subject to a limited 

waiver by the Administrator. Id. 108(b), 

129(a). We subsequently codified the 

use of appendix S as the interim major 

NSR program in 40 CFR § 52.24(k), 

reasoning (in the context of 

implementing a delay in the 

construction ban for then-recently 

designated nonattainment areas) that 

Congress had provided that appendix S 

should remain in effect to protect air 

quality while State plans were being 

designed (45 FR 65209). When Congress 

removed the construction ban [(except 

as provided in section 110(n)(3)), it left 

in place 40 CFR § 52.24(k)], 

implementing the interim major NSR 

program under appendix S. 

Accordingly, we have historically 

recognized that the SIP development 

period provided for in section 172(b) 

leaves a gap in part D major NSR 

permitting and have determined that 

this gap is to be filled with an interim 

major NSR program that is substantially 

similar to the requirements of part D. 

This includes the LAER and offset 

requirements from part D (57 FR 18070, 

18076). Appendix S has been used by 

EPA and the States as this interim major 

NSR program.102 

102 Appendix S was originally promulgated in 

1976 to address whether, and to what extent, new 

and modified sources would be allowed to 

construct in nonattainment areas whose attainment 

deadlines had already passed, in light of the 

regulatory requirement that new or modified 

sources be disapproved where the source would 

interfere with attainment of the NAAQS (41 FR 

55524; December 21, 1976). It required, inter alia, 

compliance with the LAER and offsetting emissions 

Our regulations at 40 CFR 52.24(k) 

require permits issued during this 

period to be consistent with the 

requirements in appendix S. The 

continued application of appendix S 

through § 52.24(k) is also supported by 

the purpose of the CAA, specifically, 

section 101(b)(1), ‘‘to protect and 

enhance the quality of the Nation’s air 

resources so as to promote the public 

health and welfare and the productive 

capacity of its population.’’ This 

provision was the basis for the original 

judicial finding that the CAA imposed 

an obligation to prevent significant 

deterioration in areas that meet the 

NAAQS, prior to Congress’ enactment of 

the PSD program at part C of the 

CAA.103 This policy of non-degradation 

applies with even greater force in areas 

that fail to meet the NAAQS. Thus, we 

believe that an interim major NSR 

program for the SIP development 

period—as codified at appendix S and 

updated to reflect CAA amendments—is 

supported by section 110(a)(2)(C), 

section 101(b)(1), Congressional intent, 

and our gapfilling authority under 

section 301(a). 

4. Final Action and Legal Basis for 

Changes on Applicability of Appendix S 

and the Transitional NSR Program 

a. Final Changes on Applicability of 

Appendix S and the Transitional NSR 

Program 

We are not finalizing the transitional 

NSR program under section VI of 

appendix S as proposed, which would 

have established limited criteria for 

determining in which nonattainment 

areas section VI could apply. Upon 

consideration of public comments, we 

decided to retain the original eligibility 

conditions, but added a procedural 

requirement that the Administrator 

determine whether section VI applies 

for a specific situation. 

As we noted at 68 FR 32848, on its 

surface section VI could apply in any 

reductions in excess of the new source’s emissions. 

At that time, part D NSR was not part of the CAA. 

When the part D NSR provisions were added in 

the 1977 CAA Amendments, Congress added the 

requirement that SIPs contain nonattainment NSR 

provisions as set forth in CAA section 173, 

including LAER and the requirement to either offset 

the increase in new source emissions or ensure that 

emissions fell within a growth allowance. (The 

growth allowance provision was repealed in 1990). 

Additionally, Congress provided that appendix S, 

as modified by rule of the Administrator, would 

govern preconstruction permitting in areas lacking 

approved part D SIPs before a construction ban 

went into effect, as discussed in more detail above. 

103 See Alabama Power Co. v. Costle, 636 F. 3d 

323, 346–047 (D.C. Circuit, 1980) (discussing Sierra 

Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C. 

1972), aff’d per curiam 4 ERC 1815 (D.C. Circuit, 

1972), aff’d by an equally divided court, sub nom 

Fri v. Sierra Club, 412 U.S. 541 (1973). 

nonattainment area where the dates for 

attainment have not passed if the source 

meets all applicable SIP emission 

limitations and would not interfere with 

the area’s ability to meet its attainment 

date, without providing any specific 

safeguards for such noninterference. We 

noted at proposal, however, that States 

generally would not be able to show that 

a nonattainment area would continue to 

meet its attainment date if it does not 

apply LAER or offsets to major new 

sources and major modifications in the 

absence of safeguards (68 FR 32848). 

We continue to believe, as stated in 

the proposal, that States should not 

interpret section VI as allowing a 

blanket exemption from LAER and 

offsets for all major new sources and 

major modifications in a given area 

before attainment dates have passed for 

that area. However, based on public 

comment, we now believe that the 

program as proposed at 69 FR 32846 is 

not implementable. As many 

commenters noted, the April 15, 2004 

deadline for submission of attainment 

plans and December 31, 2004 deadline 

for implementation of all necessary 

attainment controls were impracticable. 

We agree with the many commenters 

who supported flexible NSR 

requirements under section VI for some 

areas and maintained that attainment 

would not be in jeopardy due to such 

programs. While we do not identify any 

such particular instances in today’s final 

rule, we believe that participation in 

programs such as the NOX SIP Call and 

the CAIR (70 FR 25162, May 12, 2005) 

will achieve significant emissions 

reductions across broad geographical 

areas. Certainly, we want to encourage 

development of programs that address 

transported air pollution. We recognize 

that these and other programs may 

prove to be more effective and practical 

in assuring that there is no interference 

with an area’s ability to meet its 

attainment deadline than relying on 

offsets from a single source. 

For these reasons, we have retained 

the original eligibility conditions for 

determining when section VI applies, 

but added a procedural requirement that 

the Administrator provide public notice 

that section VI applies for a specific 

situation. This requirement will achieve 

the proposal’s purpose of assuring that 

States do not interpret section VI to 

provide a broad exemption to all major 

new sources and major modifications in 

any nonattainment area for which the 

attainment date has not passed. 

We also are taking final action to 

remove the 50 tpy exemption from 

appendix S. As discussed in section 

V.A.2.f of this preamble, we proposed 

this change in 1979 and finalized it in 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71679 

most respects in 1980. However, we 

inadvertently did not remove the 

exemption in all the places in appendix 

S where it was located, specifically 

footnotes 5 and 8 to IV.D. We are now 

finalizing the 1979 proposal to the 

extent it remained incomplete, by 

removing these last two references to 

the 50 tpy exemption in appendix S. 

b. Legal Basis for Changes to 

Applicability of Appendix S and the 

Transitional NSR Program 

The legal basis for appendix S itself, 

including section VI, is discussed in 

detail in section V.B.3.b. of this 

preamble. We have historically 

recognized that the SIP development 

period provided for in section 172(b) 

leaves a gap in part D major NSR 

permitting and have determined that 

this gap is to be filled with an interim 

major NSR program that is substantially 

similar to the requirements of part D, 

including the LAER and offset 

requirements from part D, subject to a 

limited exemption where the attainment 

deadline will be met (57 FR 18070, 

18076). This interim NSR program has 

been implemented to date through 

appendix S. 

We also believe that, contrary to 

objections made by some commenters, 

appendix S—and in particular, section 

VI—has not been superseded by the 

1990 CAA Amendments to title I of the 

CAA. In short, appendix S only applies 

where a NSR permitting program for the 

new or revised NAAQS is not otherwise 

in effect, and thus does not replace any 

part D NSR SIP provisions, as many 

commenters erroneously believed. That 

is, it applies only in newly designated 

or redesignated nonattainment areas 

lacking approved part D programs for a 

new or revised NAAQS, such as the 8-

hour ozone NAAQS. Thus, the evasion 

of subpart 2 requirements posited by 

commenters and the anti-backsliding 

concerns they raise are not triggered, as 

nothing in the SIP is replaced. Our 

detailed response to those comments is 

set forth in section V.C.4. of this 

preamble. 

The section VI exemption, as limited 

by this final rule, is consistent with the 

section 110(a)(2)(C) requirement that the 

preconstruction permitting is 

implemented ‘‘as necessary to assure 

that the [NAAQS] are achieved.’’ We are 

not adopting the eligibility criteria that 

were proposed to ensure satisfaction of 

the original section VI conditions. 

However, we have added a requirement 

that the Administrator determine that 

sources exempted from LAER and 

offsets under section VI will meet those 

conditions, in particular, 

noninterference with the attainment 

deadline. Section VI also is consistent 

with the exercise of our gapfilling 

authority under section 301, as 

informed by the legislative history. That 

is, appendix S reflects Congressional 

intent that standards equivalent to part 

D govern the issuance of NSR permits, 

subject to a limited degree of flexibility 

under conditions where attainment of 

the NAAQS by the attainment deadline 

is assured. 

The removal of the 50 tpy exemption 

from appendix S is based on Alabama 

Power Co. v. Costle, 636 F. 3d 323, 356– 

57 (D.C. Circuit, 1980), in which the 

court held that EPA had exceeded its 

authority to establish the exemption, as 

discussed in more detail in section 

V.A.2.f. above. 

5. Final Action and Legal Basis for 

Changes to Identify NOX as an Ozone 

Precursor in Attainment and 

Unclassifiable Areas 

a. Final Changes to Identify NOX as an 

Ozone Precursor in Attainment and 

Unclassifiable Areas 

Our existing PSD regulations in 

§ 51.166 and § 52.21 define regulated 

NSR pollutants, which includes any 

pollutant for which we promulgate a 

NAAQS and any constituents or 

precursors for such pollutants as 

identified by the Administrator. [See 

§ 51.166(b)(49)(i) and § 52.21(b)(50)(i)]. 

Today, the Administrator is identifying 

NOX as an ozone precursor in 

attainment and unclassifiable areas. 

Accordingly, as proposed, we amended 

our PSD regulations in § 51.166 and 

§ 52.21 to expressly include NOX as an 

ozone precursor. Specifically, we have 

amended the definitions of major 

stationary source, major modification, 

significant, and regulated NSR pollutant 

to include NOX as an ozone precursor. 

[See § 51.166(b)(1)(ii), (b)(2)(ii), (b)(23), 

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

(b)(2)(ii), (b)(23), and (b)(50)]. We have 

also amended the footnote to 

§ 51.166(i)(5)(i)(e) and § 52.21(i)(5)(i) to 

require sources with a net increase of 

100 tpy or more of NOX to perform an 

ambient impact analysis. 

b. Legal Basis To Identify NOX as an 

Ozone Precursor in Attainment and 

Unclassifiable Areas 

The nonattainment provisions of the 

CAA, as amended in 1990, recognize 

NOX as an ozone precursor; section 

182(f) of the CAA established 

nonattainment requirements for NOX. 

The definition of air pollutant under 

section 302(g) of the CAA includes, 

‘‘* * * any precursors to the formation 

of any air pollutant * * *’’ Also, the 

definition of regulated NSR pollutant in 

§ 51.166 and § 52.21 specifically 

recognizes that a regulated NSR 

pollutant is ‘‘any pollutant for which a 

national ambient air quality standard 

has been promulgated and any 

constituents or precursors for such 

pollutant identified by the 

Administrator (e.g., volatile organic 

compounds are precursors for ozone).’’ 

The EPA has recognized NOX as an 

ozone precursor in several national 

rules because of its contribution to 

ozone transport and the ozone 

nonattainment problem. The EPA’s 

recognition of NOX as an ozone 

precursor is supported by scientific 

studies, which have long recognized the 

role of NOX in ozone formation and 

transport.104 Such formation and 

transport is not limited to 

nonattainment areas. Therefore, we 

believe NOX should be treated 

consistently as an ozone precursor in 

both our PSD and nonattainment NSR 

regulations. For these reasons we have 

promulgated final regulations providing 

that NOX is an ozone precursor in 

attainment areas. 

6. Final Changes and Legal Basis for 

Changes to Emission Offset Provisions 

of Appendix S 

a. Final Changes to Emission Offset 

Provisions of Appendix S 

We are revising certain provisions in 

appendix S to reflect requirements of 

the 1990 CAA Amendments concerning 

offsets and RFP. Specifically, we have 

conformed appendix S at IV.D. to the 

1990 CAA Amendments by replacing 

the interim policy on offsetting 

emissions with the statutory language at 

section 173(c)(1). We also have removed 

the language concerning reasonable 

progress in section IV.E. of appendix S 

and replaced it with the statutory 

requirements at 173(a)(1)(A). 

Also, we note that the definition of 

net emissions increase at 

§ 51.165(a)(1)(vi)(E) requires that a 

decrease in actual emissions is 

creditable only to the extent that the 

State has not relied on it in 

demonstrating attainment or RFP. This 

requirement has never been codified in 

appendix S. However, the 1990 CAA 

Amendments at sections 172(b)(1) and 

182 codifies the requirements 

concerning RFP. State and local 

agencies should consider the effect of 

creditable decreases from permitting 

under appendix S in their planning for 

demonstrating attainment and RFP. 

We are also restating our policy on 

offsets from resource recovery facilities 

104 See 68 FR 32805–06, 32840, footnote 58 

(discussing national rules for controlling VOC and 

NOX emissions); and 68 FR 32840 footnote 57. 

71680 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

under appendix S. Appendix S at 

IV.B.(i) exempts resource recovery 

facilities from permitting under certain 

circumstances. Our 1988 policy memo 

indicates that as a matter of policy, EPA 

no longer adheres to the offset 

exemption for resource recovery 

facilities in appendix S.105 As we did 

not propose to change this provision, we 

are not revising the final rules today 

regarding resource recovery facilities. 

However, we plan to remove this 

exemption in a future rulemaking. 

b. Legal Basis for Changes to Emission 

Offset Provisions of Appendix S 

Because we have not revised the 

regulatory text in appendix S since the 

latest revision to the statute, the 1990 

CAA Amendments provisions limiting 

the use of offsets are not explicitly 

included in appendix S. Nonetheless, 

these requirements apply to sources 

permitted using appendix S because 

appendix S is intended to reflect the 

same offset requirements contained in 

part D of the CAA. These provisions 

relate to offsets and RFP. 

We are revising appendix S to incorporate 

the statutory restrictions on offsets and 

remove the existing regulatory text that is 

outdated. The 1977 CAA is silent concerning 

the location of offsetting emissions. As we 

noted in footnote 9 to section IV.D. of 

appendix S, in the absence of specific 

statutory language, we developed an interim 

policy on offset locations. The 1990 CAA 

Amendments at section 173(c)(1), however, 

placed specific limits on the location of 

offsets and therefore superceded the interim 

policy in appendix S. Accordingly, we 

conformed appendix S at IV.D. to the 1990 

CAA Amendments by replacing the interim 

policy on offsetting emissions with the 

statutory language at section 173(c)(1). 

Appendix S at section IV.E. contains 

provisions regarding the relationship 

between offsets, reasonable progress 

towards attainment, and RFP. Under the 

1990 CAA Amendments, section 

173(a)(1)(A) was revised to set forth the 

extent to which offsets must represent 

RFP, as defined in section 171. 

Therefore, we removed the language 

concerning reasonable progress in 

section IV.E. of appendix S and replaced 

it with the statutory requirements at 

173(a)(1)(A). 

C. Comments and Responses 

1. Comments on Proposed Changes to 

Incorporate the 1990 CAA Amendments 

In today’s final action, we have 

revised § 51.165 and appendix S to 

incorporate the major stationary source 

105See Emission Offset Exemptions for Resource 

Recovery Facilities from Gerald A. Emison, Director, 

Office of Air Quality Planning and Standards, 

December 28, 1988. 

thresholds, significant emission rates, 

and offset ratios pursuant to part D of 

title I of the 1990 CAA Amendments for 

major stationary sources of ozone 

precursors. As we noted in section 

V.A.2.a. of this preamble, now that the 

designations and classifications have 

been made, the provisions of subpart 1 

and subpart 2 determine the NSR 

program requirements. Those 

requirements are codified in this 

rulemaking. For a summary of 

comments and responses related to 

when subpart 1 or subpart 2 applies, 

please see the preamble to those final 

rules at 69 FR 23961. 

Commenters on both the 1996 and 

2003 proposals generally supported 

applying the nonattainment major NSR 

requirements applicable to major 

stationary sources of VOC (including 

provisions regarding major 

modifications, significant emission 

rates, and offsets) to NOX emissions, 

except where the Administrator 

determines pursuant to section 182(f) 

that NOX requirements for major 

stationary sources, including NSR 

requirements, would not apply or would 

be limited (‘‘NOX waiver’’). A few 

commenters opposed waivers under 

section 182(f) for exemptions from NOX 

requirements, due to their effect on NOX 

emissions in downwind States. 

We agree with the commenters 

supporting NOX as an ozone precursor 

for nonattainment major NSR 

applicability, and have retained it in the 

final rule. We note that whether a NOX 

waiver applies in a particular area and 

the effects of NOX waivers on RACT are 

discussed in section IV.H. of this 

preamble. 

2. Comments on Proposed Revisions to 

Criteria for Emission Reduction Credits 

From Shutdown and Curtailments 

Many commenters generally 

supported EPA’s conclusion that 

emission reduction credits from 

shutdowns and curtailments can be 

used for NSR offsets. These commenters 

believed the safeguards in the 1990 CAA 

Amendments justified removing the 

previous requirement for an approved 

attainment plan before such credits can 

be used as offsets. One commenter 

opposed lifting the restrictions, 

believing that the cited 1990 CAA 

Amendment provisions, including 

submittal of SIP attainment 

demonstrations, have not been 

implemented. 

While no commenters supported the 

adoption of Alternative 1 exclusively, a 

few commenters supported both 

proposed Alternatives. However, many 

commenters strongly supported 

Alternative 2. These commenters 

asserted that the safeguards in the 1990 

CAA Amendments address progress in 

nonattainment areas and that an 

approved attainment demonstration is 

no longer necessary to ensure 

shutdown/curtailment credits are 

accounted for in the attainment 

demonstration. These commenters also 

believed Alternative 2 was more flexible 

and would encourage stable banking 

programs. Many commenters believed 

that State agencies would be unable to 

meet the deadlines in Alternative 1. 

They also believed that Alternative 1 

was unnecessarily restrictive, and 

would cause confusion. 

We agree with the commenters who 

supported Alternative 2. We have 

promulgated final regulations that allow 

emission reduction credits to be used as 

offsets in the absence of an approved 

attainment demonstration, provided that 

these emission reduction credits were 

generated from shutdowns or 

curtailments that are included in the 

base year emission inventory as current 

actual emissions. 

One commenter stated that the 

regulatory language concerning the 

‘‘most recent emissions inventory’’ is 

confusing. The commenter believed this 

language could be mistaken to mean 

that the base year would continue to 

shift. The commenter noted that it 

would be more accurate to state that the 

base year emissions inventory is the 

starting point and all creditable 

emissions reductions must have been 

reported in the base year inventory or a 

subsequent emissions inventory. We 

agree with the commenter that the 

terminology ‘‘most recent emissions 

inventory’’ is confusing and have 

revised § 51.165(a)(3)(C)(1) accordingly, 

specifying the cutoff date as ‘‘the last 

day of the base year if the projected 

emissions inventory used to develop the 

attainment demonstration explicitly 

includes the emissions from such 

previously shutdown or curtailed 

emission units.’’ As we discussed in 

section V.B.2.a. of this preamble, this 

regulatory language is consistent with 

our previous guidance on how emission 

reduction credits from shutdowns and 

curtailments are used in attainment 

planning. Most importantly, it assures 

that emissions from shutdown and 

curtailed units are accounted for in 

attainment planning. 

We disagree with the commenter who 

opposed the revisions. Since the 

submission of this comment in 1997, 

States have made substantial progress in 

implementing the 1990 CAA 

Amendments. This progress includes 

submitting the required inventories to 

which attainment planning is keyed, 

along with the required attainment 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71681 

demonstrations.106 We believe that 

implementation of the 1990 CAA 

Amendments to date supports the 

conclusion that emission inventories 

have been effective in attainment 

planning, and will continue to be 

effective in implementing the 8-hour 

standard. Therefore, we disagree with 

the commenter that the 1990 CAA 

Amendments do not justify the 

revisions due to inadequate 

implementation. 

3. Comments on Construction Ban 

Provisions 

We received comments on the 

following procedural issue. In the 

proposal, we stated our intent to issue 

determinations of inadequate SIP 

implementation under section 173(a)(4) 

by letter, followed by publication in the 

Federal Register, and explained that 

such determinations would result in a 

prohibition on construction in the area 

pursuant to that provision (61 FR 

38305). We also solicited comment on 

whether an opportunity for public 

notice and comment should be 

provided. A few State commenters 

believed that EPA should provide such 

notice and comment, but did not state 

a basis for their position. 

The text of § 52.24(b) as proposed 

tracked the language of section 173(a)(4) 

and did not include a provision on the 

process to be used for issuing a 

determination of inadequate SIP 

implementation. We have finalized 

§ 52.24(b) in substantially the same form 

as we proposed. The Agency is still 

considering the appropriate process to 

use in issuing a determination under 

CAA section 173(a)(4). 

4. Comments on Applicability of 

Appendix S and the Transitional 

Program 

Many commenters opposed our 

proposed Transitional NSR Program, 

stating that it would not be protective of 

air quality. Many other commenters 

supported the proposed program, 

believing that it would provide needed 

flexibility and would not interfere with 

achieving attainment. Many 

commenters, including some who 

supported the Transitional Program, 

believed the schedule for submitting 

attainment plans and control 

requirements was impracticable. Some 

commenters opposed the Transitional 

106 Of the 135 areas designated as nonattainment 

for the 1-hour ozone NAAQS in 1991, 69 have been 

redesignated as attainment. See hhtp:// 

www.epa.gov/oar/oaqps/greenbk/onsum2.html. Of 

the 55 nonattainment areas with classifications of 

moderate and higher that were required to submit 

SIPs and attainment demonstrations, all but 4 have 

an approved SIP or have requested redesignation to 

attainment. 

NSR Program on legal grounds, arguing 

that section VI does not authorize any 

NSR flexibility or that appendix S has 

been superseded in its entirety by 

various sections of the CAA. 

We agree with commenters that the 

schedule in the proposed rule for 

submitting attainment plans to be 

eligible for Transitional NSR was 

impracticable. On the other hand, 

however, we do agree with the many 

commenters who urged us to provide 

flexible NSR requirements for some 

areas. While we have not promulgated 

specific criteria for when such 

flexibility would apply, we have 

promulgated final regulations specifying 

that section VI applies where the 

original conditions are met (that is, the 

attainment deadline has not passed, the 

source would not interfere with 

attainment by the deadline, and the 

source meets all applicable SIP 

emissions limitations) and the 

Administrator has determined and 

provided public notice that section VI 

applies. 

Regarding the objections to our legal 

authority to implement flexible NSR 

under appendix S, some commenters 

argued that the section VI exemption is 

potentially applicable only where an 

attainment date for the secondary 

standards has not yet passed. However, 

this comment ignores the plain language 

of section VI, which references primary 

standards. It states: ‘‘In some cases, the 

dates for attainment of primary 

standards have not yet passed due to the 

delay in the promulgation of a plan 

under this section of the Act.’’ It then 

goes on to note that the attainment 

deadlines for the secondary standards 

may also not yet have passed. It then 

states: ‘‘In such cases [a reference to 

attainment dates that have not passed 

for both primary and second standards], 

a new source locating in an area 

designated in 40 CFR 81.3000 et seq. as 

nonattainment may be exempt from the 

conditions of Section IV.A’’ 107 where 

certain requirements are met. Thus, the 

section VI exemption is applicable 

where the attainment date for the 

primary standard has not passed. 

Other commenters argued that 

appendix S and 40 CFR 52.24(k) have 

been superseded by or prohibited by 

various sections of the CAA. (The EPA 

will use the term ‘‘appendix S’’ in this 

section of the preamble to refer to these 

collectively). Although commenters 

made this argument in the context of 

opposing the proposed revisions to 

section VI of appendix S, this comment 

applies to any use of appendix S for 

107 Designations are in 40 CFR 81.300. This 

citation has been corrected in today’s final rule. 

permitting, including the LAER and 

offset requirements of section IV, and 

the existing version of section VI. First, 

the commenter contended that appendix 

S has been superseded by section 

181(b)(1) within subpart 2 of the CAA, 

under which it believes a newly 

designated nonattainment area receives 

its nonattainment classification by 

operation of law and immediately 

becomes subject to all of the 

requirements—including section 110, 

subpart 1, and subpart 2—that apply to 

that classification. The EPA disagrees 

with the commenter. As a threshold 

matter, even if the commenter were 

correct that both subpart 1 and subpart 

2 applied upon an area’s nonattainment 

classification, the statute provides that 

the area may have a period of time to 

develop and submit a SIP or SIP 

revision meeting the preconstruction 

permitting requirements of section 173. 

See CAA sections 172(b)(5) and 

182(a)(2)(C). For the SIP development 

period, part D leaves a gap as to the NSR 

requirements applicable to the newly 

designated nonattainment area (if the 

state’s part D NSR SIP does not 

automatically cover the area). This gap 

exists even if EPA were to accept the 

commenter’s contention that subpart 2 

applies. Pursuant to 40 CFR 52.24(k), 

this gap is filled by appendix S, which 

requires NSR permitting that mirrors 

part D, subject to the section VI 

exemption. 

Additionally, EPA disagrees with the 

commenter’s contention that subpart 2 

must apply to all newly designated 

nonattainment areas. As discussed in 

more detail in the preamble to the Phase 

1 8-hour ozone implementation rule (69 

FR 23951), EPA has determined that it 

has discretion in determining whether 

subpart 2 applies to these areas because 

subpart 2 does not dictate whether it 

applies where the 1-hour design value 

falls below the lowest value in the 

subpart 2 classification table. The EPA 

has described in that rule the 

circumstances in which subpart 2 

applies. 

The commenter also contends that 

section 193 has superseded appendix S. 

The EPA disagrees. The commenter 

relies on the following language in 

section 193: ‘‘No control requirement in 

effect, or required to be adopted by a[] 

* * * [implementation] plan in effect 

before November 15, 1990, in any area 

which is a nonattainment area for any 

air pollutant may be modified after 

November 15, 1990, in any manner 

unless the modification insures 

equivalent or greater emission 

reductions of such air pollutant.’’ 

However, this part of section 193 is of 

no relevance to appendix S because 

71682 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

appendix S does not replace any 

existing SIP requirements. An area is 

only required to apply appendix S 

where it does not have a part D NSR SIP 

covering permitting for the 8-hour 

standard. In other words, it covers only 

the gap in the SIP caused by the lack of 

a part D NSR program for the relevant 

NAAQS, and is supplemental to any 

existing SIP requirements.108 

The commenter also believes that use 

of appendix S for permitting would 

violate section 110(l), which provides, 

in relevant part, that: ‘‘The 

Administrator shall not approve a 

revision of a plan if the revision would 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress * * *’’ The 

commenter states that nonattainment 

preconstruction permitting 

requirements ‘‘concern[] attainment and 

reasonable further progress,’’ so if a SIP 

is already written such that 

nonattainment NSR will apply in an 

area as soon as it is designated 

nonattainment under the 8-hour 

standard, then any revision that would 

thwart the automatic effectiveness of 

those requirements would violate 

section 110(l). Again, appendix S is not 

an amendment to a SIP, and does not 

replace any existing SIP requirements. 

Rather, it covers the gap caused by the 

lack of a part D NSR SIP for the newly 

designated nonattainment area. If a SIP 

applies the nonattainment NSR program 

to a newly designated nonattainment 

area, appendix S does not apply to that 

area. [See 40 CFR 52.24(k) and appendix 

S, section I.] For these same reasons, the 

commenter is incorrect that NSR 

permitting under appendix S violates 

Congressional intent not to relax 

pollution control requirements when 

the NAAQS are revised, as expressed in 

section 172(e). One commenter stated 

that any major revisions to appendix S 

should be subject to additional noticeand-comment because such revisions 

could not be a logical outgrowth of the 

June 2, 2003 proposal. We disagree that 

the public lacked adequate notice and 

opportunity to comment. The changes to 

incorporate the 1990 CAA Amendments 

to part D of title I of the CAA (for 

example, major stationary source 

108 Although EPA did state in the proposal that 

States with already applicable part D NSR SIPs may 

choose to amend their SIPs to allow them to take 

advantage of the proposed revisions to section VI 

(68 FR 32844 n.67), the decision not to go forward 

with the section VI revisions as proposed makes 

that issue moot. New source review under section 

VI, as finalized, will involve notification by the 

Administrator that it applies for new sources 

meeting the section VI criteria in areas lacking 

approved part D NSR programs, rather than 

replacement of a NSR program in the SIP with an 

alternative NSR program. 

thresholds, significant emission rates, 

and offset ratios) and the revisions to 

the rule governing creditable emissions 

reductions from shutdowns and 

curtailments were proposed in 1996 for 

the major NSR program, including 

appendix S (61 FR 38252). The method 

for making designations and 

classifications specific to the 8-hour 

standard under subparts 1 and 2 was 

proposed on June 2, 2003 (68 FR 32802). 

Although rule language was not 

proposed specifically for appendix S, 

the rule language could be discerned 

from the rule language proposed for 

§ 51.165, as appendix S states it is an 

interpretation of 40 CFR subpart I, 

which includes § 51.165. Additionally, 

the CAA does not require that the 

Agency provide notice of the exact rule 

language that will be finalized, but 

rather that the Agency provide a 

statement of basis, including, among 

other things, the major legal 

interpretations and policy 

considerations underlying the proposal. 

These were provided by the 1996 and 

2003 proposals and, in the case of the 

removal of the 50 tpy exemption, in the 

1979 proposal. 

With regard to the changes to section 

VI of appendix S, the Agency notes that 

because it declined to adopt the 

extensive revisions proposed, the 

changes are minimal. The additional 

condition regarding approval by the 

Administrator is a logical outgrowth of 

the proposed revisions to section VI, 

which explained that the Agency’s goal 

was to limit the applicability of section 

VI to situations where the new source 

would comply with all of the conditions 

in section VI, most notably, not 

interfering with an area’s ability to meet 

its attainment deadline. 

5. Comments on Changes To Identify 

NOX as an Ozone Precursor in 

Attainment and Unclassifiable Areas 

Commenters supported our proposal 

to amend our PSD regulations to 

expressly include NOX as an ozone 

precursor. We agree with these 

commenters. 

6. Comments on Removing the 50-Ton 

Exemption 

For comments on removing the 50-ton 

exemption, see the discussion in the 

1980 final rules at 45 FR 52689–90. 

D. NSR Implementation Under the 8-

Hour Ozone NAAQS 

As promulgated at 69 FR 23858, the 

designation and classifications for the 8-

hour NAAQS became effective June 15, 

2004. The transition to NSR under the 

8-hour NAAQS raises multiple 

implementation questions, which are 

discussed below. We intend to address 

additional issues in the future. 

1. Areas That Have Never Been 

Nonattainment for Ozone 

If an area has never been 

nonattainment for ozone and is 

nonattainment for the 8-hour ozone 

NAAQS, it became subject to 

nonattainment major NSR under the 8-

hour standard on June 15, 2004. Permits 

for new or modified major stationary 

sources in such areas issued on or after 

June 15, 2004 must reflect NSR 

requirements under the 8-hour ozone 

NAAQS. Some States may already have 

in place a part D major source 

permitting program applicable to newly 

designated 8-hour ozone nonattainment 

areas. For nonattainment areas in States 

whose SIPs contain a generic 

requirement to issue part D major source 

NSR permits in areas designated as 

nonattainment, the State can continue to 

issue nonattainment NSR permits for 

new and modified major stationary 

sources under the part D NSR SIP on or 

after June 15, 2004. For a nonattainment 

area in a State with a SIP that 

specifically lists the areas in which part 

D NSR applies, or in an area that 

currently has no nonattainment plan or 

otherwise lacks authority to implement 

NSR for the 8-hour ozone NAAQS 

through a SIP-approved permitting 

program, there will be an interim period 

between June 15, 2004 and the date that 

the State amends its SIP either to list 

any new nonattainment area(s) or to 

include a part D plan. During this 

interim period, pursuant to § 52.24(k), 

permits for new and modified major 

stationary sources in such areas must be 

consistent with the requirements in 

appendix S. Where a State or local 

agency lacks authority to issue permits 

consistent with appendix S, EPA is the 

reviewing authority. 

States may not issue PSD permits to 

address major NSR obligations arising 

from nonattainment classifications. As 

we stated at 69 FR 23992, PSD permits 

may not be issued after June 14, 2004, 

to satisfy permitting obligations under 

the 8-hour nonattainment designation. 

We clarify here that States are not 

precluded from issuing PSD permits 

based on the 1-hour attainment 

classifications, but such actions do not 

relieve States or sources from 

addressing nonattainment NSR 

obligations based on the 8-hour 

classification. 

2. Areas That Are Nonattainment for the 

1-Hour NAAQS and the 8-Hour NAAQS 

New source review under the 8-hour 

NAAQS became effective in 8-hour 

nonattainment areas on June 15, 2004. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71683 

Currently, the 1-hour NAAQS remains 

in effect. Thus, there is a period of time 

when major NSR requirements for both 

the 1-hour and 8-hour NAAQS applies 

in an area or parts of an area. During 

this period, different major stationary 

source thresholds and offset ratios may 

apply in a given nonattainment area 

under the 1-hour and 8-hour ozone 

NAAQS, due to a change in its 

classification. Permits issued during this 

transition period will assure compliance 

with both programs if the permit 

requirements are based on the highest 

classification that applies to the area. If 

the area’s 1-hour classification is higher 

than its 8-hour classification, the NSR 

SIP program under the 1-hour NAAQS 

will satisfy the requirements of both 

programs. If the 8-hour classification is 

higher, then the NSR program under the 

8-hour classification will determine the 

NSR requirements. For example, 

suppose a source is locating in an area 

that is now classified as moderate 

nonattainment under the 8-hour ozone 

NAAQS but was previously classified as 

a serious ozone nonattainment area 

under the 1-hour NAAQS. Any permit 

the State issues during the transition 

would be based on the 50 tpy major 

stationary source threshold and at least 

1.2:1 offset ratio that apply to serious 

ozone nonattainment areas under the 1-

hour ozone NAAQS. 

Pursuant to 40 CFR 50.9(b), EPA 

revoked the 1-hour NAAQS effective 

June 15, 2005 for areas designated for 

the 8-hour ozone standard effective June 

15, 2004. We anticipate that, upon 

revocation of the 1-hour ozone NAAQS, 

States will submit requests for approval 

of SIP revisions removing NSR 

requirements based on the 1-hour 

classifications, where such SIP revisions 

are necessary to achieve this result. At 

69 FR 23985, we stated that upon 

revocation of the 1-hour ozone NAAQS, 

for any area that was designated 

nonattainment for the 1-hour ozone 

NAAQS, the area’s implementation plan 

provisions satisfying sections 172(c)(5) 

and 173 (including provisions satisfying 

section 182) based on the area’s 

previous 1-hour ozone NAAQS 

classification are no longer required 

elements of an approvable 

implementation plan. We also indicated 

that a State may request approval of a 

SIP revision to remove its 1-hour 

nonattainment NSR program from its 

SIP. We further stated that we will 

approve such changes to a state’s SIP 

because we have determined based on 

110(l) of the CAA that such changes will 

not interfere with any state’s ability to 

reach attainment of the 8-hour standard 

and will be consistent with RFP. 

On June 29, 2004, we received a 

Petition for Reconsideration from 

Earthjustice concerning these statements 

on removing the 1-hour NSR SIP and on 

the 110(l) determination related to 

removing the 1-hour NSR SIP. You can 

find a copy of this Petition for 

Reconsideration at http://www.epa.gov/ 

ttn/naaqs/ozone/o3imp8hr/ 

materials.html. We have granted 

reconsideration on these two narrow 

NSR issues in the Phase 1 Ozone 

Implementation Rule. We published a 

proposed rule on these issues on April 

4, 2005 (70 FR 17018). We published a 

final rule on these two issues on July 8, 

2005 (70 FR 39413). 

As we stated at 69 FR 23986 (Column 

1), emission limitations and other 

requirements in major NSR permits 

issued under 1-hour NSR programs will 

continue to be in force when the 1-hour 

NAAQS is revoked. For example, 

suppose an existing source is located in 

an area classified as serious 

nonattainment under the 1-hour ozone 

NAAQS and has a nonattainment major 

NSR permit based on its potential to 

emit 75 tpy VOC. That major NSR 

permit (including emission limitations 

and other requirements) remains in 

force on and after June 15, 2005 even if 

the area that the source is located in is 

now classified moderate nonattainment 

(with a major stationary source 

threshold of 100 tpy) under the 8-hour 

ozone NAAQS. 

3. Part D NSR SIP Submittals 

Today’s final action on the regulations 

at § 51.165 establishes the minimum 

requirements for part D SIPs 

implementing major NSR under the 8-

hour NAAQS. Some States may find it 

unnecessary to revise their SIPs to 

implement NSR under the 8-hour 

NAAQS. This can happen when the 

approved part D NSR and ozone 

classification scheme SIP applies to any 

areas designated as nonattainment 

under section 107 of the CAA or listed 

in 40 CFR 81.300 et seq. In States that 

do not have authority to implement a 

part D program for the 8-hour NAAQS, 

a SIP revision for major NSR under the 

8-hour NAAQS must be submitted.109 

The revised implementation plan must 

include requirements to implement the 

provisions of sections 172(c)(5) and 173 

of the CAA based on the area’s 8-hour 

ozone NAAQS classification under 40 

CFR part 81, and the provisions of 

§ 51.165 as amended in today’s final 

action. 

109 As noted in section V.D.2 of this preamble, we 

will complete our reconsideration on issues related 

to NSR SIP submittals and announce our final 

action by May 20, 2005. 

States must submit SIP provisions 

incorporating today’s final rules at 

§ 51.165 no later than June 15, 2007, 

which is 3 years after designation. This 

schedule is consistent with the schedule 

set forth in CAA sections 172(b) and 

110(a)(1).110 This date facilitates 

coordination of NSR program changes 

with the submission of the attainment 

plan, which is also due within 3 years. 

Part D NSR SIPs to implement the 8-

hour NAAQS should reflect the 

requirements of today’s final action, as 

well as the requirements in subpart X of 

part 51 promulgated on April 30, 2004 

at 69 FR 23951. Before EPA can approve 

a program into the SIP to implement a 

nonattainment major NSR program for 

the 8-hour ozone NAAQS, State and 

local agency programs implementing 

part D (nonattainment NSR permit 

program in § 51.165) must include 

today’s changes as minimum program 

elements. States must also submit SIP 

provisions incorporating today’s final 

rules at § 51.166 no later than June 15, 

2007. 

4. Effective Date for Today’s 

Requirements 

All of these changes will take effect in 

the NSR permitting programs for 

nonattainment areas codified at 

appendix S of part 51 and § 52.24 on 

January 30, 2006. This means that 

appendix S as amended in today’s final 

action will apply on January 30, 2006 in 

any nonattainment area without an 

approved part D NSR SIP that applies to 

major sources in the nonattainment area 

for the nonattainment pollutant. These 

changes will take effect in the Federal 

PSD program (codified at 40 CFR 52.21) 

on January 30, 2006 in any area without 

an approved PSD program, for which we 

are the reviewing authority, or for which 

we have delegated our authority to issue 

permits to a State or local reviewing 

authority. The provisions of § 51.165 

and § 52.24, as amended in today’s final 

action, also apply on January 30, 2006. 

State and local agency programs 

implementing part C (PSD permit 

program in § 51.166) and part D 

(nonattainment NSR permit program in 

§ 51.165) are effective when they are 

approved by us. 

5. Requirements for Offsets 

Offsets under CAA section 173 are 

typically based on emissions reductions 

110 CAA Section 182(a)(2)(C)(i) requires NSR SIPs 

to meet the 1-hour ozone NAAQS to be submitted 

within 2 years after the date of the enactment of the 

1990 CAA Amendments. This requirement has been 

met by the submission of NSR SIPs due on 

November 15, 1992, which EPA requested on April 

16, 1992 at 57 FR 13499. We have interpreted the 

2-year schedule not to apply for the NSR SIPs 

implementing the 8-hour ozone NAAQS. 

71684 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

achieved through installation of control 

technology, shutdown of a source, or 

curtailment of production or operating 

hours below baseline levels. Offsets 

must meet several requirements set forth 

in section 173 of the CAA, including the 

following: 

• Offsets must be obtained by the 

time the source is to commence 

operation [CAA section 173(a)(1)(A)]. 

• Offsets must be consistent with RFP 

[CAA section 173(a)(1)(A)]. 

• Offsets must be federally 

enforceable before permit issuance 

[CAA section 173(a)]. 

• Offsets must be in effect and 

enforceable by the time a new or 

modified source commences operation 

[CAA section 173(c)(1)(B)]. 

• Emissions reductions that are 

otherwise required under the CAA 

cannot be creditable as offsets [CAA 

section 173(c)(2)]. 

• Offsets must come from a source in 

the same nonattainment area, unless it 

comes from an area that has an equal or 

higher nonattainment classification and 

the emissions from such other area 

contribute to a violation of the national 

in the nonattainment area in which the 

source is located [CAA section 

173(c)(1)]. 

If an emission reduction credit 

(including an emission reduction credit 

generated from a shutdown or 

curtailment) has been used to meet ROP 

or RFP milestones, it is not available for 

use as an offset or in netting. This is 

because section 173(c)(2) of the CAA 

prohibits use of emissions reductions as 

offsets where the reductions are 

‘‘otherwise required by the Act.’’ Thus, 

reductions that are used to meet Federal 

requirements, including SIP-approved 

ROP and RFP obligations under CAA 

section 182, are not creditable. Where 

emissions reductions pre-dating 2002 

have not been used to meet ROP and 

RFP obligations, or other Federal 

requirements, CAA section 173(c)(2) 

does not prohibit their use. Thus, EPA 

believes that such credits may be used 

as offsets consistent with the CAA. The 

EPA encourages States to allow sources 

to use pre-2002 banked emissions 

reductions credits (that is, those that 

were generated before January 1, 2002, 

which is the first day of the emissions 

inventory base year for the base year 

inventory used to develop the 

attainment demonstration) for offsetting 

purposes. States may do so as long as 

the banked credits meet all other offset 

creditability criteria and such credits are 

included by States as growth in 

developing the attainment 

demonstration as discussed elsewhere 

in this preamble. See also 57 FR 13508– 

09. The credits must be certified and 

approved for such purposes. 

Additional requirements apply to 

credits generated from shutdowns or 

curtailments. Pursuant to today’s final 

rule, States may revise their SIPs to 

remove the requirement for an approved 

attainment demonstration as a condition 

of using shutdown/curtailment credits 

pre-dating the new source application. 

Under the revised rule, emissions from 

the shutdown/curtailed source can be 

creditable if they are included in the 

projected emissions inventory used to 

develop the attainment demonstration. 

For emissions reductions from 

shutdowns or curtailments to be 

creditable for offset purposes, the State 

must also certify that emissions from the 

shutdown or curtailed source have not 

been used and are not necessary to meet 

any other requirement under the CAA, 

including RFP or ROP. 

Use of emission reduction credits 

banked before the base year (that is, 

those generated before January 1, 2002) 

for netting continues to be available to 

the extent allowed under State rules. 

However, because these emission 

reduction credits represent emissions 

that are not included in the 2002 base 

year inventory, States should consider 

net emission increases occurring on or 

after January 1, 2002 as growth even 

though, for applicability purposes, the 

source does not have a significant net 

emissions increase. 

VI. Final Rule for RFG 

A. Introduction 

This portion of the rule addresses 

what effect the transition to the 8-hour 

NAAQS will have on certain aspects of 

the federal RFG program. Under the 

CAA, the RFG requirements apply in 

certain areas of the country. First, there 

are nine areas that Congress identified 

pursuant to section 211(k)(10)(D) of the 

CAA as mandatory RFG areas. Second, 

there are five RFG areas that are 

mandatory areas based on their 

reclassification to a severe ozone 

classification. These areas are typically 

called ‘‘bump-up’’ areas. See CAA 

section 211(k)(10)(D), 211(k)(6), and 

211(k)(5). Finally, there are a number of 

areas that have voluntarily opted in to 

the RFG program. The purpose of the 

RFG program is to improve air quality 

through the use in certain areas of 

gasoline that is reformulated to reduce 

motor vehicle emissions of tropospheric 

ozone-forming compounds and toxics, 

as set forth in section 211(k)(1) of the 

CAA. 

B. Background 

In the Phase 1 Rule, EPA addressed 

two key issues regarding the transition 

from the 1-hour NAAQS to the 8-hour 

NAAQS. First, when will the 1-hour 

NAAQS no longer apply (i.e., be 

‘‘revoked’’)? Second, what protections 

are in place to ensure that, once the 1-

hour NAAQS is revoked, air quality will 

not degrade and that progress toward 

attainment will continue as areas 

transition from implementing the 1-hour 

NAAQS to implementing the 8-hour 

NAAQS? 

On the first issue, EPA decided that 

the 1-hour NAAQS will be revoked in 

full, including the associated 

designations and classifications, 1 year 

following the effective date of the 

designations for the 8-hour NAAQS. 

Most areas were designated effective 

June 15, 2004, and for those areas the 1-

hour NAAQS and the related 

designation and classification will no 

longer apply as of June 15, 2005. 

On the second issue, the antibacksliding portion of the Phase 1 rule 

established that all areas designated 

nonattainment for the 8-hour ozone 

NAAQS, that were designated 

nonattainment for the 1-hour NAAQS at 

the time of designation for the 8-hour 

NAAQS, remain subject to mandatory 

control measures that applied by virtue 

of the area’s classification for the 1-hour 

NAAQS. These control measures are 

called ‘‘applicable requirements.’’ 

Also, EPA decided that areas designated 

nonattainment for the 8-hour NAAQS, 

that were designated attainment subject 

to a section 175A maintenance for the 

1-hour NAAQS at the time of 

designation for the 8-hour NAAQS, 

must continue to implement all 

applicable requirements that have been 

approved into the SIP.112 

In the June 2003 proposal, EPA 

identified Federal RFG as an applicable 

requirement (68 FR 32867). In the final 

rule, however, EPA did not include RFG 

in the list of applicable requirements. 

The EPA instead clarified that RFG is 

required under a Federal program, and 

thus differs significantly from the other 

programs on the list of applicable 

requirements, which are developed and 

adopted by States for inclusion in the 

111 In the Phase 1 Rule, EPA defined applicable 

requirements as those control measures in place as 

of the date of signature of the Phase 1 Rule, (i.e., 

April 15, 2004). The EPA recently reconsidered this 

issue and changed this date to the effective date of 

the 8-hour designations—for most areas this would 

be June 15, 2004 (70 FR 30596). 

112 While the Phase 1 Rule also addressed the 

transition to the 8-hour NAAQS for areas recently 

designated as attainment for the 8-hour NAAQS, all 

relevant RFG areas are designated as 8-hour 

nonattainment areas (69 FR 23858). 

111 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71685 

SIP. The EPA recognized that various 

issues exist regarding the scope and 

applicability of the RFG program during 

and after implementation of the 8-hour 

NAAQS that need further clarification. 

The EPA stated that we were still 

considering how to treat RFG and that 

we would address these issues in an 

action separate from the Phase 1 Rule 

(69 FR 23973). Thus, EPA did not 

include RFG in the list of applicable 

requirements in the Phase 1 Rule, and 

EPA made no decision at that time 

concerning RFG treatment in the 

transition to the 8-hour NAAQS. 

C. What action is EPA taking? 

As discussed in more detail below, 

EPA is clarifying today that the nine 

original mandatory RFG areas, as well as 

most other areas that have become 

mandatory RFG areas by being ‘‘bumped 

up’’ to a severe classification, will 

continue to be required to use RFG at 

least until they are redesignated to 

attainment for the 8-hour NAAQS. The 

EPA is not deciding at this time what 

will happen when the original nine 

areas and the bump-up areas covered by 

this rule are redesignated to attainment 

for the 8-hour NAAQS. The EPA is also 

not deciding at this time what RFG 

requirements apply for any bump-up 

areas that are redesignated to attainment 

for the 1-hour NAAQS before the 1-hour 

NAAQS is revoked. The only such area 

that was redesignated to attainment 

prior to revocation of the 1-hour 

NAAQS is Atlanta, Georgia. That issue 

will be addressed in an action separate 

from this final rule. 

The RFG areas that opted into the program 

will continue to be RFG areas unless they 

opt-out pursuant to EPA’s opt-out 

regulations. The transition to the 8-hour 

NAAQS does not change the terms and 

conditions that apply to opting-out of the 

RFG program. Likewise, EPA’s current rules 

on opting-in to RFG will apply in the same 

manner under the 8-hour NAAQS as under 

the 1-hour NAAQS—i.e., 8-hour 

nonattainment areas that are classified as 

marginal or above under subpart 2 will be 

able to opt-in to the RFG program. 

D. Why is EPA taking this action? 

1. RFG Mandatory Areas 

Under section 211(k)(5), RFG is 

required in any ‘‘’’covered area.’’ The 

term ‘‘covered area’’ is defined in 

section 211(k)(10)(D) as: 

[t]he 9 ozone nonattainment areas having a 

1980 population in excess of 250,000 and 

having the highest ozone design value during 

the period 1987 through 1989 shall be 

‘‘covered areas’’ for purposes of this 

subsection. Effective one year after the 

reclassification of any ozone nonattainment 

area as a severe ozone nonattainment area 

under section 181(b) of this title, such severe 

area shall also be a ‘‘covered area’’ for 

purposes of this subsection. 

In the June 2003 proposed Phase 1 

Rule, EPA proposed that RFG be 

considered an applicable requirement 

and treated like the various mandatory 

control obligations that States remained 

obligated to adopt and implement after 

revocation of the 1-hour NAAQS. Under 

that proposal, the nine original 

mandatory areas and all bump-up areas 

would have continued to be covered 

areas after revocation of the 1-hour 

NAAQS. For the reasons discussed 

below, EPA is adopting this basic 

approach for the nine original 

mandatory areas as well as those bumpup areas covered by this final rule. 

a. Nine Original Mandatory Areas 

The first sentence of section 

211(k)(10)(D) identifies certain covered 

areas by reference to their 1980 

population and their 1987–1989 ozone 

design value. The nine areas that meet 

these criteria are Los Angeles, San 

Diego, Hartford, New York, 

Philadelphia, Chicago, Baltimore, 

Houston, and Milwaukee. It is clear that 

transition to the 8-hour NAAQS does 

not change the historical facts that 

define these areas. In addition, all of 

these areas are designated as 

nonattainment areas under the 8-hour 

NAAQS. Thus, they will continue to be 

‘‘ozone nonattainment areas’’ until they 

are redesignated to attainment for the 8-

hour NAAQS. Revocation of the 1-hour 

NAAQS and transition to the 8-hour 

NAAQS does not change the fact that 

each of these nine mandatory areas will 

continue to meet the definition of 

covered area at least until it is 

redesignated to attainment for the 8-

hour NAAQS. As discussed below, EPA 

is not deciding at this time whether 

these areas will continue to be covered 

areas upon redesignation to attainment 

for the 8-hour NAAQS. The EPA 

reserves any determination on that issue 

for a future action. 

The EPA believes that this is a 

straightforward and clear application of 

the plain language of the statute. 

However, even if the statutory terms 

were considered ambiguous on this 

issue, EPA believes that the same 

statutory interpretation and policy 

considerations described below for the 

‘‘bump-up’’ areas covered by this final 

rule apply to the nine mandatory areas 

and would lead EPA to require 

continued use of RFG in the nine areas 

at least until they are redesignated to 

attainment for the 8-hour NAAQS. 

Since EPA regulations at 40 CFR 

80.70 currently define the term 

‘‘covered area’’ to include the original 

nine mandated areas, no change in EPA 

regulations is needed at this time. The 

EPA will address in a future action what 

RFG requirements, if any, apply to the 

original nine RFG covered areas when 

they are redesignated to attainment for 

the 8-hour NAAQS. 

b. Bump-Up Areas 

The second sentence of section 

211(k)(10)(D) identifies areas that 

become covered areas because they have 

been reclassified as a severe area under 

CAA section 181(b). These are called 

‘‘bump-up’’ areas. To date, five areas 

have been reclassified to severe for the 

1-hour NAAQS. They became RFG 

covered areas 1 year after their 

reclassification—Baton Rouge, Atlanta, 

Sacramento, San Joaquin Valley, and 

Washington, DC—which was already an 

opt-in area. 

The areas that are RFG covered areas 

based on the bump-up provision were 

designated as ozone nonattainment 

areas and classified by operation of law 

at the time of the 1990 CAA 

Amendments, and their bump-up to 

severe occurred by operation of law 

based on EPA’s determination under 

section 181(b) that the areas failed to 

attain the 1-hour NAAQS by the 

applicable attainment date. Thus, their 

reclassification to severe was not based 

on a determination that their air quality 

met the severe area design value. 

Instead, reclassification was based on 

their failure to meet the applicable 

attainment date. The bump-up to severe 

has two effects—a later attainment date 

is set for the area, and a variety of 

additional control measures become 

mandatory for the area. The Federal 

RFG program becomes a mandatory 

control measure in an area 1 year after 

it is bumped up to a severe 

classification. 

There are two ways that a bump-up 

area classified as severe could lose its 

severe classification. First, it could do 

so through redesignation to attainment 

for the 1-hour NAAQS. (This is no 

longer an option for areas where the 1-

hour NAAQS was revoked on June 15, 

2005.) Second, since the 1-hour NAAQS 

is revoked, a bump-up area will no 

longer be classified as severe under the 

1-hour NAAQS and may have a lower 

classification (i.e., subpart 1, marginal, 

moderate or serious) for the 8-hour 

NAAQS. This rule only addresses the 

second situation. 

The bump-up areas in this second 

situation are all designated as 8-hour 

ozone nonattainment areas, with 

classifications under the 8-hour NAAQS 

that are a lower classification than 

severe. This raises the issue of whether 

the bump-up areas that lose their severe 

classification through revocation of the 

71686 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

1-hour NAAQS should continue to be 

covered areas once the 1-hour NAAQS 

and the areas’ related severe 

classifications are revoked. 

The EPA believes that section 

211(k)(10)(D) is ambiguous on the issue 

of whether a bump-up area continues to 

be a covered area when it is no longer 

classified as severe. The text of the 

provision could be read to set the 

defining criteria as the occurrence of 

reclassification to severe, a historical 

fact that does not change based on 

subsequent changes in classification. It 

could also be read as identifying areas 

that are reclassified to severe, but as 

leaving unresolved what happens when 

they are no longer so classified. Given 

this ambiguity, EPA has discretion to 

determine whether section 211(k)(10)(D) 

authorizes removal of a bump-up area 

from the RFG program when it is no 

longer classified as severe, and to set 

appropriate criteria for such removal.113 

For a bump-up area covered by this 

rule, it is instructive to consider what 

would happen if EPA had never revised 

the 1-hour NAAQS. In that case, the 

area would continue to be a covered 

area at least until it was redesignated to 

attainment for the 1-hour NAAQS. 

While section 211(k)(10)(D) does not 

directly address whether a bump-up 

area would continue to be a covered 

area after redesignation, it is clear that 

if EPA had never revised the 1-hour 

NAAQS, the area would continue to be 

a covered area at least as long as it was 

a severe area, and it would be a severe 

area as long as it was still designated as 

an ozone nonattainment area. 

The EPA does not believe that 

Congress would have intended that 

removal of the severe classification 

based solely on revocation of the less 

protective 1-hour NAAQS should result 

in backsliding of the RFG requirement. 

For example, as noted above, if EPA had 

not adopted a more protective 8-hour 

NAAQS, with the related revocation of 

the 1-hour NAAQS and removal of the 

severe classification, then the bump-up 

areas covered by this rule would remain 

covered areas at least until they were 

redesignated to 1-hour attainment, at 

which point they would no longer be 

designated as ozone nonattainment 

areas. Here, the removal of the severe 

classification is through revocation of 

the 1-hour NAAQS, not through 

113 While this final rule only addresses bump-up 

areas that lose their severe classification based upon 

revocation of the 1-hour NAAQS, the ambiguity in 

section 211(k)(10)(D) extends to all bump-up areas, 

including those not covered by this final rule. As 

noted above, EPA intends to address and resolve 

this ambiguity for any bump-up areas not covered 

by this rule in an action separate from this final 

rule. 

redesignation to 1-hour attainment. 

These bump-up areas are still 

designated as ozone nonattainment 

areas. The EPA believes the removal of 

the severe classification for these areas 

as a result of revocation of the 1-hour 

standard should not lead to removal of 

the RFG requirement. The EPA believes 

the RFG requirement should continue 

beyond revocation of the 1-hour 

NAAQS, and it should continue at least 

until the areas are redesignated to 

attainment for the 8-hour NAAQS. This 

does not change or affect any discretion 

EPA may otherwise have under the RFG 

provisions to modify or remove RFG 

requirements. 

This is consistent with the approach 

taken in the Phase 1 Rule for the 

mandatory obligations that EPA 

identified there as ‘‘applicable 

requirements.’’ In that rule, EPA 

determined that a number of provisions 

of the CAA evidence Congress’ intent 

that certain obligations that applied to 

an area by virtue of the area’s 

classification for the 1-hour NAAQS 

should continue to apply despite EPA’s 

determination the 1-hour NAAQS is no 

longer necessary to protect public 

health. While some of these various 

statutory provisions do not have direct 

bearing on Federal RFG and section 

211(k), the issues are closely analogous. 

For example, the inclusion of a bumpup area in the RFG program is integrally 

tied to the subpart 2 provisions that 

establish the original classification and 

attainment date for an area and its later 

reclassification as severe under section 

181(b). The Supreme Court cautioned in 

Whitman v. American Trucking Assn., 

531 U.S. 457 (2001), against EPA 

making subpart 2 ‘‘abruptly obsolete.’’ 

Although the RFG requirement itself is 

not set forth in subpart 2, the 

requirement to use it in severe bump-up 

areas is tied directly to the 

classifications that arise by operation of 

subpart 2. Thus, it would appear that 

the Supreme Court’s caution should be 

as relevant for RFG bump-up areas as it 

is for the subpart 2 control obligations. 

For further discussion of the reasoning 

behind anti-backsliding provisions in 

the Phase 1 Rule, see 69 FR 23951, 

23972. The reasoning presented there 

also supports EPA’s interpretation of 

section 211(k)(10)(D) regarding RFG 

requirements for bump-up areas covered 

by today’s rule. 

One issue addressed in the Phase 1 

Rule involved setting the trigger date for 

determining what 1-hour SIP-related 

requirements would continue as 

mandatory ‘‘applicable requirements’’ 

after revocation of the 1-hour NAAQS. 

The EPA considered three possible 

trigger dates for the Phase 1 Rule—the 

date of signature of the Phase 1 Rule, the 

effective date of the 8-hour 

nonattainment designation, and the date 

of revocation of the 1-hour NAAQS.114 

For purposes of this final rule, it is not 

necessary to decide on a similar date for 

determining the continued applicability 

of RFG for these bump-up areas. Under 

all potential trigger date options, RFG 

would be a requirement on the trigger 

date for the bump-up areas covered by 

this rule, as they would all be classified 

as severe areas on any of the trigger 

dates that were considered. 

Based on the above, EPA has 

determined that bump-up areas that lose 

their severe classification based solely 

on revocation of the 1-hour NAAQS 

should remain RFG covered areas at 

least until they are redesignated to 

attainment for the 8-hour NAAQS. As 

indicated above, this does not change or 

affect any discretion EPA may otherwise 

have under the RFG provisions to 

modify or remove RFG requirements. 

2. RFG Opt-In Areas 

Under section 211(k)(6) of the CAA, 

certain ozone nonattainment areas may 

opt-in to the RFG program. That 

provision limits opt-ins to areas 

‘‘classified under subpart 2 of part D of 

title I as a marginal, moderate, serious, 

or severe Area.’’ The EPA’s regulation 

implementing this provision is at 40 

CFR 80.70(j), which states that ‘‘[a]ny 

* * * area classified under 40 CFR part 

81, subpart C as a marginal, moderate, 

serious, or severe ozone nonattainment 

area may be included as a covered area 

on petition of the Governor of the State 

in which the area is located.’’ 

Some areas designated nonattainment 

for the 8-hour NAAQS are subject only 

to the planning requirements of subpart 

1, while others are also subject to the 

planning requirements of subpart 2 of 

part D of title I. The 8-hour 

nonattainment areas subject to the 

planning requirements of subpart 2 were 

all classified as marginal, moderate, 

serious, or severe (69 FR 23951, 23954; 

April 30, 2004). The 8-hour 

nonattainment areas subject only to 

subpart 1 are not subject to those 

classifications. Thus the only 8-hour 

nonattainment areas that would be able 

to opt-in under the terms of section 

80.70(j) are areas classified under 

subpart 2 as marginal, moderate, 

serious, or severe, consistent with the 

terms of section 211(k)(6). 

In a prior rulemaking, EPA initially 

expanded the scope of this opt-in 

provision, interpreting section 211(k)(6) 

as authorizing opt-in for any current or 

prior 1-hour ozone nonattainment area, 

114 May 26, 2005 (70 FR 30596). 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71687 

including areas that were not classified 

marginal or above. In that rulemaking, 

EPA reserved judgment on whether it 

would apply the same expanded 

interpretation to areas designated as 

nonattainment for the then recently 

adopted 8-hour NAAQS (63 FR 52094, 

52101; September 29, 1998). The EPA’s 

expanded view of the scope of section 

211(k)(6) was subject to judicial review 

and was rejected as inconsistent with 

the terms of section 211(k)(6), as 

‘‘Congress provided for opt-in only for 

areas classified as marginal, moderate, 

serious, or severe.’’ API and NPRA v. 

EPA, 198 F. 3d 275, 281 (D.C. Cir. 2000). 

The text of EPA’s current opt-in 

regulation is limited as a result, is 

consistent with the limitation in section 

211(k)(6), and only allows opt-in for 

areas classified under subpart 2 as 

marginal or above. The EPA interprets 

the current opt-in regulation as allowing 

opt-in for those 8-hour nonattainment 

areas that are classified as marginal or 

above under subpart 2. The EPA 

believes this is consistent with section 

211(k)(6) and with the API and NPRA 

case, and therefore sees no need to 

revise the current regulation. 

E. Future Proceedings 

Today, EPA is reserving for future 

consideration what RFG requirements, if 

any, should apply to the nine 

mandatory areas and the bump-up areas 

covered by this final rule when they are 

redesignated to attainment for the 8-

hour NAAQS. The Phase 1 Rule 

provides that upon redesignation to 

attainment for the 8-hour NAAQS, SIP 

measures may be moved to the 

contingency measure portion of the SIP 

if the State demonstrates in accordance 

with section 110(l) that doing so will 

not interfere with maintenance of the 8-

hour NAAQS or any other applicable 

requirement of the CAA (69 FR 23951, 

23998; April 30, 1994)(40 CFR 

51.905(b)). This SIP process does not 

apply to RFG, since it is not a SIP 

measure. However, EPA will need in the 

future to consider whether it should 

develop a similar scheme for RFG. 

Specifically, EPA will consider the 

following issues. Should a State be 

allowed to drop the RFG requirement 

when a covered area is redesignated to 

attainment for the ozone NAAQS, or 

should the requirement remain in place? 

If it can be dropped, under what 

conditions? Once dropped, would the 

requirement to use it spring back if a 

State backslides into nonattainment? If 

it springs back, what lead time should 

be provided? If it does not spring back 

automatically, should EPA nevertheless 

reserve the discretion to require a 

former covered area to use RFG if it 

slips back into nonattainment? The EPA 

anticipates considering these and 

related issues in a future notice-andcomment proceeding. The EPA is not 

soliciting comment on these issues at 

this time. 

As noted above, EPA is not deciding 

at this time what RFG requirements 

apply for any bump-up areas that are 

redesignated to attainment for the 1-

hour NAAQS before the 1-hour NAAQS 

is revoked. The only such area that was 

redesignated to attainment prior to 

revocation of the 1-hour NAAQS is 

Atlanta, Georgia. That issue will be 

addressed in an action separate from 

this final rule. 

F. Miscellaneous Administrative 

Changes to the RFG Regulations 

Today, EPA is making a nonsubstantive formatting change to its RFG 

regulations. The regulations are 

currently structured to envision a 

complete list of all bump-up areas 

required to use RFG. However, EPA has 

not made timely amendments to these 

regulations to keep the list of bump-up 

areas up to date, so the regulations may 

appear to be misleading. Although EPA 

could take the opportunity to revise the 

list at this time to include all current 

bump-up areas, EPA believes that it 

would be best to amend the regulations 

to omit the list. The EPA will maintain 

a list of bump-up areas on its RFG Web 

site: http://www.epa.gov/otaq/rfg/ 

whereyoulive.htm. This list can more 

quickly and easily be amended in the 

future to be kept up-to-date. 

G. Comments and Responses 

Comment: One commenter noted EPA 

has proposed that all areas designated 8-

hour nonattainment remain subject to 

control measures that apply by virtue of 

the area’s classification for the 1-hour 

standard. For control measures that the 

State has not adopted, the State remains 

obligated to adopt and submit such 

controls. The commenter believes that 

such a policy may have unintended 

negative consequences for the few areas 

that recently bumped-up as the result of 

EPA’s failed transport policy. 

Specifically, most of these areas will 

bump-up to either the serious or severe 

subpart 2 classification triggering higher 

classification controls. Some of these 

controls, and in particular VOC controls 

and RFG, may not benefit and/or may 

even be counterproductive to attaining 

the 8-hour standard. The commenter 

believes that for these few areas that 

recently bumped-up as the result of the 

failed transport policy, EPA should 

allow those States to evaluate the 

relative ozone reduction benefits of the 

higher classification controls and, where 

appropriate, substitute for more 

effective ozone controls. The commenter 

believes this is important to ensure 

continued progress towards attainment 

in the most cost-effective manner. 

Response: Congress specified use of 

RFG for areas bumped up to severe 

nonattainment status without providing 

an opportunity for such areas to 

substitute other controls that may be 

more effective. Specifying mandated 

controls for areas that have failed to 

achieve timely attainment is one of the 

specific provisions added by Congress 

in the 1990 CAA Amendments. The 

EPA does not believe that the transition 

to a more protective 8-hour standard 

should result in less restrictive 

requirements for RFG, such as allowing 

substitution of other control measures 

for RFG, than would apply if EPA had 

never revised the 1-hour standard. 

Substitution was not allowed under the 

1-hour standard. 

However, EPA notes that Congress 

established a mechanism to address 

adverse impacts of the RFG program on 

attainment of the NAAQS by 

authorizing EPA to waive the RFG 

oxygen content requirement where it is 

clearly demonstrated that the oxygen 

content requirement prevents or 

interferes with NAAQS attainment 

[section 211(k)(2)(B)]. This provides 

additional support for the view that the 

transition to the 8-hour standard should 

not establish a right to substitute other 

measures for RFG as the statute provides 

a different way to address potential 

concerns over the effectiveness of RFG 

in addressing ozone attainment. 

Comment: The local experts have 

estimated that RFG will cost consumers 

in the 5-parish nonattainment area an 

additional $48 to $72 million annually. 

The Department of Environmental 

Quality, using MOBILE6 modeling has 

projected that RFG will provide no 

measurable benefits for NOX and less 

than 2 tons per day of VOC reductions. 

Recent UAM–V modeling for the Baton 

Rouge area shows an ozone benefit for 

RFG of around 0.26 ppb. Earlier UAM– 

V sensitivity modeling showed only a 1 

ppb reduction in ozone with a 30 

percent reduction in local 

anthropogenic VOC emissions from all 

sources. Thus, for an expenditure of up 

to $72 million annually, we can expect 

a negligible ozone benefit. Employing 

the usual cost-benefit analysis for cost 

per ton of pollutant removed, we arrive 

at a cost of around $36 million per daily 

ton removed or around $100,000 per 

annual ton removed. Since the 

reduction would be expected to produce 

no measurable ozone benefit anyway, 

wouldn’t this qualify as an ‘‘absurd 

result’’ and be subject to consideration 

71688 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

for waiver as discussed in the proposed 

8-hour implementation rules? (p.3–4). 

Response: Baton Rouge has submitted 

requests for an RFG waiver and for a 

waiver of the RFG oxygen content 

requirement, which are currently before 

the Agency. With respect to EPA’s 

authority to grant a waiver of the entire 

RFG requirement for bump-up areas on 

the basis of claims of ‘‘absurd results’’ 

allegedly caused by the oxygen content 

requirement of RFG, please see EPA’s 

September 30, 2004, response to 

Georgia’s request for an RFG waiver, 

which is available at: www.epa.gov/ 

otaq/regs/fuels/rfg/420s04006.pdf. As 

noted above, EPA does not believe that 

the transition to the more protective 8-

hour standard should result in less 

restrictive requirements for RFG than 

would apply if EPA had never revised 

the 1-hour standard. The appropriate 

mechanism to address Baton Rouge’s 

concerns is therefore in the context of 

Baton Rouge’s petitions for relief under 

the RFG program, and not by 

establishing different, less restrictive 

RFG requirements as part of the 

transition to the 8-hour standard. 

Comment: Several commenters 

oppose any attempts to liberalize 

procedures allowing for voluntary optins to the Federal RFG program. Simply 

stated, further fuels restrictions are not 

an appropriate local control strategy. 

There is little justification for automatic 

proliferation of RFG. The industry is 

currently working hard to implement 

far-reaching fuels regulations that will 

result in significant environmental 

improvement. It does not need 

additional fuel reformulation 

requirements while this implementation 

work is going forward. 

The commenter notes under section 

211(k)(6)(A) of the CAA, only areas 

classified under subpart 2 of Part D of 

Title I as a marginal, moderate, serious 

or severe area (without regard to 

whether or not the 1980 population of 

the area exceeds 250,000) can opt-in to 

RFG. Therefore, ‘‘Gap’’ Areas—those 

attaining the 1-hour, but not the 8-hour 

standard—would be subject to 

implementation under subpart 1 of the 

CAA. Those areas not attaining the 1-

hour standard and reclassified as 8-hour 

nonattainment areas would be subject to 

implementation procedures under 

subpart 2. 

Response: Section 211(k)(6)(A) 

specifies which ozone nonattainment 

areas may opt-in to the RFG program. 

The EPA’s implementation plan for the 

8-hour standard does not change or 

liberalize this statutory provision or 

EPA’s regulations implementing it, but 

rather provides for continued 

availability of opt-ins consistent with 

the statutory scheme. After revocation of 

the 1-hour standard, opt-ins will be 

possible for areas classified under 

subpart 2 as marginal, moderate, serious 

or severe ozone nonattainment areas 

under the 8-hour standard. The EPA 

will continue after transition to the 8-

hour standard to use its existing 

regulations at 40 CFR 80.70(j) and 80.72 

regarding procedures for opt-ins and 

opt-outs. 

Comment: The American Road and 

Transportation Builders Association 

(ARTBA) believes States should be able 

to choose their own devices for 

improving air quality. As a result, 

ARTBA would like EPA to liberalize its 

procedures for allowing a voluntary optin for the Federal RFG program. While 

ARTBA understands new national fuel 

standards are in the developmental 

process, the transportation conformity 

requirement often mandates short-term 

solutions with a limited number of 

options. We believe the RFG opt-in 

should be one of the tools available for 

States. 

Response: Section 211(k)(6) of the 

CAA specifies which ozone 

nonattainment areas are eligible to optin to the RFG program and the 

procedures (petition by governor of the 

State) for opting in. Opt-in is limited to 

areas classified under subpart 2 as 

marginal, moderate, serious or severe 

ozone nonattainment areas. The EPA 

does not have the authority to 

‘‘liberalize’’ these provisions in a 

manner inconsistent with the statute. 

See American Petroleum Institute v. 

EPA, 198 F. 3d 275 (D.C. Cir. 2000)(RFG 

opt-ins limited to areas classified under 

subpart 2 as marginal, moderate, serious 

or severe nonattainment areas). 

Comment: One commenter believes 

EPA’s proposed incentive feature 

undercuts controls aimed at reducing 

ozone precursor emissions from mobile 

sources. For example, areas that are 

bumped down from severe to serious 

will no longer need to sell less-polluting 

reformulated gas. 

Response: The EPA’s final rule does 

not provide for areas to be ‘‘bumped 

down’’ after final designation and 

thereby drop the requirement to use 

RFG. On the contrary, the original nine 

mandated RFG covered areas, and any 

other nonattainment area bumped up to 

a severe classification, will be required 

to use RFG at least until redesignated to 

attainment of the 8-hour ozone NAAQS. 

Comment: One commenter notes that, 

in the proposed rule, EPA includes the 

requirement for RFG in severe areas in 

its list of applicable requirements that 

will remain in effect after full revocation 

of the 1-hour standard (68 FR 32802 

appendix B). This commenter requests 

that EPA remove the RFG requirement 

from appendix B before promulgation of 

the final implementation plan. 

The commenter notes that within 1 

year of reclassification as a ‘‘severe’’ 

nonattainment area under the 1-hour 

standard, gasoline distributors in the 13-

county Metro Atlanta nonattainment 

area will be required to distribute 

reformulated gasoline. [42 U.S.C. 

7545(k)(10)(D)]. Reformulated gasoline, 

however, will not be as beneficial to the 

air quality in Atlanta as other types of 

fuel. After significant study, the Georgia 

Environmental Protection Division 

(EPD) has implemented a fuel program 

tailored to the atmospheric conditions 

and air quality problems in the metro 

area that are primarily related to NOX 

emissions and not VOC emissions. 

House Hearing (July 22, 2003). 

Reformulated gasoline, however, is 

designed to reduce VOC emissions 

rather than NOX emissions. Therefore, 

EPD’s fuel program that requires the 

distribution of fuel that is specifically 

designed to reduce NOX will do more to 

clean the air in Atlanta than RFG. If 

Atlanta is ‘‘bumped up’’ to a ‘‘severe’’ 

nonattainment area, it will lose the 

benefits of its beneficial fuel program in 

place of the less effective RFG. 

The commenter requests EPA to 

remove RFG as an applicable 

requirement that will remain in effect 

after implementation of the 8-hour 

standard. The requirement for RFG 

under the 1-hour standard is flawed in 

that it does not address the specific 

ozone nonattainment issues of areas 

such as Atlanta in which NOX rather 

than VOCs is the pollutant of concern. 

Therefore, the commenter urges EPA to 

allow the revocation of the RFG 

requirement associated with areas 

classified as severe and higher under the 

1-hour standard to allow areas that will 

be classified as a lower designation 

under the new, more stringent 8-hour 

standard the flexibility to utilize a 

gasoline formulated specifically to 

address the air quality issues in those 

particular areas. 

Response: The final rule adopted 

today specifies that areas bumped up to 

a severe classification under the 1-hour 

standard that are designated 

nonattainment for the 8-hour standard 

must continue to use RFG at least until 

redesignated as attainment for the 8-

hour standard. The reasons for this 

approach are described in the preamble 

and do not change or affect any 

discretion EPA may otherwise have 

under the RFG provisions to modify or 

remove RFG requirements. The EPA did 

remove RFG from the list of applicable 

requirements identified in the Phase 1 

Rule, because the applicable 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71689 

requirements provision in the Phase 1 

Rule addresses State controls and SIP 

requirements. The final rule adopted 

today treats RFG, a Federal control, in 

basically the same manner as applicable 

requirements are treated in the Phase 1 

Rule. 

With respect to the specific comments 

regarding the impact of using RFG in the 

Atlanta area, please see EPA’s analysis 

of these issues in its September 30, 

2004, response to Georgia’s request for 

an RFG waiver for Atlanta. 

VII. Other Considerations 

A. How will EPA’s implementation of 

the 8-hour ozone NAAQS affect funding 

under the congestion mitigation and air 

quality improvement (CMAQ) program? 

1. Background 

In the proposal, we noted that the 

Transportation Equity Act for the 21st 

Century (TEA–21) established eligibility 

for the use of CMAQ program funds in 

certain nonattainment and maintenance 

areas, designated under section 107(d) 

of the CAA (42 U.S.C. 7407(d)), 

provided the area is, or was, also 

classified in accordance with CAA 

subpart 2, sections 181, 186, and 188. 

All areas designated nonattainment after 

December 31, 1997 were also eligible, 

but without regard to classification. 

2. Current Position 

Since the proposal, new 

transportation legislation was passed by 

Congress and signed into law. The 

amount of CMAQ funds available to 

States is now set at levels authorized by 

the Safe, Accountable, Flexible, 

Efficient Transportation Equity Act: A 

Legacy for Users (SAFETEA–LU). The 

funds are still apportioned to States 

through the statutory formula contained 

in section 104(b) of title 23. The formula 

is still based on the designations and 

classifications of ozone and CO 

nonattainment and maintenance areas, 

and the population in such areas. 

The formula for determining the 

amount of funds apportioned to the 

States takes into account the areas that 

are designated under both subpart 1 and 

subpart 2 of part D of title I, of the CAA. 

How funding is affected for any specific 

area is determined by the U.S. DOT in 

accordance with SAFETEA–LU. 

3. Comments and Responses 

Comments: The EPA received several 

comments expressing concern that 

implementation of the 8-hour ozone 

standard may negatively impact an 

area’s eligibility for CMAQ Program 

funds and/or the amount of CMAQ 

funding the State would receive. The 

comments indicated that projects and 

programs to reduce air pollution in their 

area was supported through CMAQ 

funding. Some stated that their area was 

attaining the 8-hour ozone standard, and 

thus would become ineligible for CMAQ 

funding when the 1-hour ozone 

standard is revoked. Others expressed 

concern that any increases to the 

number of nonattainment areas or 

changes to classifications of 

nonattainment areas could reduce the 

amount of CMAQ funds available to the 

area. 

Response: The impact of the 

implementation of the 8-hour standard 

and enactment of SAFETEA–LU result 

in the geographic eligibility and 

apportionment of funds for the CMAQ 

programs as follows: 

CMAQ Eligible Areas 

• Designated 8-hour nonattainment 

and maintenance areas. 

• Former 1-hour ozone nonattainment 

and maintenance areas, that are 

attaining the 8-hour standard, but must 

submit a section 110(a)(1) maintenance 

plan in compliance with EPA’s antibacksliding provisions. 

• CO, PM10 and PM¥2.5 

nonattainment and maintenance areas. 

Additionally, Nashville, TN; 

Greensboro, NC; and Denver, CO are 

Early Action Compact areas under the 8-

hour ozone standard that were excepted 

from the revocation of the 1-hour 

standard. As a result, their CMAQ 

eligibility and apportionment are based 

on their status as maintenance areas 

under the 1-hour ozone standard. 

• If the State does not have, and has 

never had, a nonattainment area 

designated under the CAA (42 U.S.C. 

7401 et seq.), the State may use the 

funds for any project in the State that 

would otherwise be eligible under the 

CMAQ program as if the project were 

carried out in a nonattainment or 

maintenance area, or is eligible under 

section 133 of the surface transportation 

program. This flexibility is in reference 

to the CMAQ Program’s minimum 

apportionment provision. 

Apportionment (ozone-based) 

• Nonattainment areas designated 

under subpart 1 receive a weighting 

factor of 1.0 

• Nonattainment areas designated 

and classified under subpart 2 retain the 

same apportionment weighting factors 

as under TEA–21 

• Maintenance areas receive a 

weighting factor of 1.0. 

Apportionment of CMAQ funds is 

carried out yearly and varies according 

to the severity of air pollution and 

changes in nonattainment and 

maintenance area population as 

estimated by the U.S. Census for each 

affected county. The program is 

administered by the U.S. DOT with EPA 

in a consultative role. The EPA is only 

taking action to implement the 8-hour 

ozone standard and has no authority to 

make changes to the eligibility criteria 

or apportionment formula contained in 

SAFETEA–LU. We understand the 

importance of CMAQ funding to States 

and nonattainment areas and are 

prepared to work with the U.S. DOT to 

minimize any unintended impact of the 

8-hour ozone NAAQS on transportation 

programs in those areas. 

B. What is the relationship between 

implementation of the 8-hour standard 

and the CAA’s title V permits program? 

1. Background 

The interrelationship between 

implementation of the 8-hour ozone 

standard and the title V permits 

program was not discussed in the 

proposed rule. However, various 

questions have been raised about the 

interface between the implementation of 

the 8-hour ozone standard and the title 

V operating permits program. The 

following questions and answers 

address these questions. 

Question 1: How is title V 

applicability affected by the new 8-hour 

ozone standard and the revocation of 

the 1-hour ozone standard? 115 

Response: Section 502(a) of the CAA 

and 40 CFR 70.3 and 71.3 establish 

specific criteria for determining whether 

a source is subject to the title V 

operating permits program. A source 

that meets one or more of these criteria 

is subject to title V: title IV affected 

sources, major sources, sources subject 

to standards or regulations under 

115 The 1-hour standard was revoked for most 

areas, including the associated area designations 

and classifications, on June 15, 2005, 1 year 

following June 15, 2004, the effective date of 

designations for the 8-hour standard. The 1-hour 

standard was revoked for most areas, including the 

associated area designations and classifications, on 

June 15, 2005, 1 year following June 15, 2004, the 

effective date of designations for the 8-hour 

standard. However, for early action compact areas 

that were not designated attainment for the 8-hour 

standard, the effective date of 8-hour designations 

and classifications was deferred, and the 1-hour 

standard remains applicable and will not be 

revoked until 1 year after the effective date of the 

8-hour designations for these areas. As a result, 

although this section of the preamble continually 

refers to the June 15, 2004, and June 15, 2005, dates, 

the title V major source thresholds are currently 

determined only by the 1-hour standard in areas 

where the 8-hour designations and classifications 

are not effective and the 1-hour standard has not 

been revoked. The scenarios described in this 

preamble section will not begin to be applicable to 

these areas until the effective date of the 8-hour 

designations in these areas. 

71690 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

section 111 or 112,116 sources required 

to have a permit under part C or D of 

title I, or any other stationary source in 

a category designated by the 

Administrator. Although a source is 

required to obtain a title V permit if it 

meets one or more of these criteria, only 

sources which are brought into title V as 

a result of their major source status and/ 

or the requirement to obtain a part C or 

D permit may be directly affected by the 

transition from the 1-hour ozone 

standard to the 8-hour ozone standard. 

For example, a source subject to title 

V solely because it was major for VOCs 

under a 1-hour ozone classification is no 

longer subject to title V after the 

revocation of the 1-hour ozone standard 

(on June 15, 2005) if its actual and 

potential emissions of VOCs under an 8-

hour ozone designation or classification 

are minor. However, if the same source 

was also subject to title V for other 

reasons, the source would remain 

subject to title V. See question 4 for 

further information. In addition, the 

source’s title V applicability could also 

be affected by future changes, such as 

becoming subject to PSD or major 

nonattainment NSR. 

Question 2: When do the 8-hour major 

source thresholds apply for determining 

major source status under title V? 

Response: For purposes of title V, 

section 501(2) of the CAA defines 

‘‘major source’’ in part as ‘‘a major 

stationary source as defined in section 

302 or part D of title I.’’ The part 70 and 

part 71 regulations incorporate this 

definition and the part D major source 

thresholds. ‘‘Major source’’ for ozone 

nonattainment areas include sources 

which emit or which have the potential 

to emit 100 tpy or more of VOCs or 

oxides of nitrogen in areas classified as 

‘‘marginal’’ or ‘‘moderate,’’ 50 tpy or 

more of these ozone precursors in areas 

classified as ‘‘serious,’’ 25 tpy or more 

of these ozone precursors in areas 

classified as ‘‘severe,’’ and 10 tpy or 

more of these ozone precursors in areas 

classified as ‘‘extreme.’’ 

On or after June 15, 2004, until June 

15, 2005, the major source thresholds 

for the 1-hour ozone designations and 

classifications and the 8-hour ozone 

designations and classifications were in 

effect under part D of title I, and 

therefore under title V as well. Since 

revocation of the 1-hour ozone standard 

and the corresponding area designations 

and classifications on June 15, 2005, 

only the major source thresholds for the 

8-hour ozone designations and 

classifications continue to determine 

116 40 CFR 70.3(b) and 71.3(b) provide for certain 

area source deferrals and exemptions, which are not 

detailed here. 

whether a source is major for ozone 

precursors under title V. Our review of 

the 1-hour and 8-hour designations and 

nonattainment classifications indicates 

that no additional sources became 

subject to title V on June 15, 2004 (the 

effective date of the 8-hour ozone 

NAAQS designations and classifications 

(40 CFR part 81, subpart C)) based solely 

on the 8-hour designations and 

classifications and corresponding major 

source thresholds. This is because the 8-

hour designations and classifications 

effective on June 15, 2004 did not result 

in a lowering of the title V major source 

threshold for any area compared to the 

1-hour designations and classifications. 

Rather, the title V major source 

thresholds either stayed the same or 

were raised to a higher threshold in all 

cases, e.g., 50 tpy to 100 tpy. 

Question 3: Are title V permits 

required for sources that trigger the 

major source applicability cut-offs for 

RACT in 40 CFR 51.900(f)(3) due to the 

8-hour ozone anti-backsliding 

provisions in 40 CFR part 51, subpart X? 

Example: An area is classified as 

extreme under the 1-hour ozone 

standard. In an extreme area, the major 

source threshold for ozone precursors is 

10 tpy. Under the 8-hour standard in 

this example, this same area is classified 

as a severe-17 area. In a severe-17 area, 

the major source threshold for ozone 

precursors is 25 tpy. Under the antibacksliding provisions, this area would 

be required to continue its application 

of RACT to sources with potential 

emissions of 10 or more tpy of ozone 

precursors. However, is the title V major 

source threshold for ozone precursors in 

this area 10 tpy or 25 tpy since June 15, 

2005? 

Response: Since revocation of the 1-

hour ozone standard on June 15, 2005, 

the title V major source thresholds for 

ozone are now based solely on the 8-

hour designations and classifications 

and thus in the above example will be 

25 tpy for ozone precursors. As 

discussed in Question 1 above, section 

502(a) and 40 CFR §§ 70.3 and 71.3 

include criteria for determining title V 

applicability. These criteria do not 

specifically include sources subject to 

RACT, but do include major sources. As 

discussed in Question 2 above, section 

501(2) defines a title V ‘‘major source’’ 

in part as ‘‘a major stationary source as 

defined in section 302 or part D of title 

I’’ and 40 CFR 70.2 and 71.2 incorporate 

this definition. 

In terms of the language in 40 CFR 

51.900(f)(3) regarding ‘‘major source 

applicability cut-offs for purposes of 

RACT,’’ this provision does not apply 

for purposes of defining a ‘‘major 

source’’ under title V (nor could it, since 

major source is statutorily defined and 

cannot be revised by regulation). Rather, 

the cut-offs referenced in this antibacksliding provision apply in 

determining which 1-hour 

nonattainment requirements are 

‘‘applicable requirements’’ for an area— 

requirements which will be continued 

in implementing the 8-hour standard. 

Additionally, 40 CFR 51.900 specifies 

that the definition of ‘‘applicable 

requirements’’ and other definitions in 

this section only ‘‘apply for purposes of 

this subpart [subpart X].’’ Thus, in short, 

the major source applicability cut-offs 

for purposes of RACT referenced in 40 

CFR 51.900(f)(3) are not relevant in 

determining whether a source is a major 

source under title V. 

Question 4: In many nonattainment 

areas, the major stationary source 

threshold under the 8-hour ozone 

standard is currently higher than the 

major stationary source threshold for the 

same area under the 1-hour ozone 

standard. 

Example: Under the 1-hour ozone 

standard, an area is classified as serious 

with a 50 tpy major stationary source 

threshold for ozone precursors. Under 

the 8-hour standard, this same area is 

classified as moderate with a 100 tpy 

major stationary source threshold for 

ozone precursors. If a source in this area 

has a potential to emit VOCs at 75 tpy, 

but also has a part D permit obtained 

under the 1-hour standard, is this source 

subject to title V since revocation of the 

1-hour ozone standard on June 15, 

2005? 117 

Response: Yes. Under the 1-hour 

standard, this source was subject to title 

V both because it was a major source 

and also because it was required to have 

a part D permit. Under the 8-hour 

standard, this source remains subject to 

title V because it was required to have 

a part D permit under the 1-hour 

standard even though it is no longer 

subject to title V due to its major source 

status. 

Sources that are, at any time, required 

to have a permit under part C or D of 

title I must obtain a title V permit. This 

interpretation is consistent with the 

CAA and EPA’s implementation policy 

history. See the Vastar letter discussed 

below. Section 502(a) states in part that 

‘‘any other source required to have a 

permit under part C or D of title I’’ is 

required to have a title V permit. We 

interpret the phrase ‘‘required to have a 

permit under part C or D of title I’’ to 

include any source required to obtain a 

117 A source with a part D permit obtained under 

the 1-hour standard must retain its part D permit 

under the 8-hour standard even though it is now in 

an area with a higher major stationary source 

threshold. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71691 

permit under part C or D of title I 

regardless of whether the permit was 

actually obtained by the source. This 

interpretation is consistent with the 

legislative history which indicates 

Congress intended that sources ‘‘subject 

to * * * requirements’’ from PSD and 

NSR be required to have a title V permit. 

H.R. Rep. No. 101–490, 101st Congress, 

2nd Session, at 344 (May 17, 1990); see 

also S. Rep. 101–228, 101st Congress, 

1st Session, at 349 (December 20, 1989). 

Note that the exemption in 40 CFR 

70.3(b)(1) and 71.3(b)(1) for nonmajor 

sources does not apply to sources 

required to have a part C or D permit. 

As EPA has previously stated: ‘‘*** 

section 70.3(b)(1) cannot be 

appropriately interpreted as allowing 

title V permitting authorities to exempt 

nonmajor part C or D sources from title 

V, especially in light of the explicit 

requirement in sections 71.5(a)(1)(ii) 

and 70.5(a)(1)(ii) that these sources 

obtain title V permits.’’ See letter from 

R. Long, EPA Region 8, to M. Tarrillion, 

Vastar Resources, Inc., September 10, 

1999. See also 66 FR 59161, 59163; 

November 27, 2001 (‘‘A source required 

to have a part C or D permit but 

considered nonmajor for part 70 would 

be subject to part 70 * * *’’) 

Title V permit content may be affected 

for sources in the above-noted situation 

because, pursuant to 40 CFR 70.3(c)(2) 

and 71.3(c)(2), for any nonmajor source 

subject to title V, the permit is required 

at a minimum to include the applicable 

requirements for the emissions units 

that cause the source to be subject to the 

part 70 or part 71 programs. If an 

emissions unit at the nonmajor source 

did not trigger the requirement to apply 

for a title V permit, then none of that 

unit’s applicable requirements are 

required to be included in the source’s 

title V permit. See 66 FR 59163 and 

footnote 2. However, nothing in 40 CFR 

70.3(c)(2) or 71.3(c)(2) precludes States 

from including Federal applicable 

requirements for other emissions units 

at a nonmajor source in the source’s title 

V permit if States require it. 

2. Summary of Final Rule 

There has been no change in the final 

rule as a result of the above 

clarifications regarding the interface 

between the 8-hour ozone standard and 

the title V operating permits program. 

3. Comments and Responses 

Comment: One commenter stated 

support of the anti-backsliding 

regulations to maintain the 

requirements established under the 1-

hour standard nonattainment area 

classifications when 8-hour 

classification requirements would be 

less stringent. However, the commenter 

requested that EPA consider using the 

major source thresholds as defined by 

the 8-hour standard classifications for 

title V permitting purposes. The 

commenter further suggested that EPA 

evaluate whether a lower title V major 

source threshold provides sufficient 

protections to justify the added costs 

involved, especially in areas such as 

that of the commenter’s where 75 

percent of the reactive organic gases 

(ROG) and NOX emissions are from 

mobile sources, which are not subject to 

control under title V. 

Response: We agree that, since 

revocation of the 1-hour ozone standard, 

the title V major stationary source 

thresholds are only determined by the 8-

hour designations and classifications. 

Additionally, as stated in response to 

question 3 in the above questions and 

answers, the language in 40 CFR 

51.900(f)(3) regarding ‘‘major source 

applicability cut-offs for purposes of 

RACT’’ does not apply for purposes of 

defining a ‘‘major source’’ under title V 

(nor could it, since major source is 

statutorily defined and cannot be 

revised by regulation). Rather, the cutoffs referenced in this anti-backsliding 

provision apply in determining which 

1-hour nonattainment requirements are 

‘‘applicable requirements’’ for an area— 

requirements which will be continued 

in implementing the 8-hour standard. 

Additionally, 40 CFR 51.900 specifies 

that the definition of ‘‘applicable 

requirements’’ and other definitions in 

this section only ‘‘apply for purposes of 

this subpart [subpart X].’’ Thus, in short, 

the major source applicability cut-offs 

for purposes of RACT referenced in 40 

CFR 51.900(f)(3) are not relevant in 

determining whether a source is a major 

source under title V. 

C. What Action Is EPA Taking on the 

Overwhelming Transport Classification 

for Subpart 1 Areas? 

The Phase 1 Rule created an 

overwhelming transport classification 

that would be available to subpart 1 

areas that demonstrate they are affected 

by overwhelming transport of ozone and 

its precursors and demonstrate they 

meet the definition of a rural transport 

area in section 182(h) of the CAA [40 

CFR 51.904(a)]. We received a petition 

for reconsideration of the overwhelming 

transport classification from 

Earthjustice,118 who claimed that our 

final rule of April 30, 2004, relied on 

118 Filed June 29, 2004 by Earthjustice on behalf 

of American Lung Association, Environmental 

Defense, Natural Resources Defense Council, Sierra 

Club, Clean Air Task Force, Conservation Law 

Foundation, and Southern Alliance for Clean 

Energy. 

guidance that was not publicly available 

during the comment period and was 

still unavailable at the time of final 

rulemaking. In addition, we noted in the 

Phase 1 Rule that we were considering 

the comments we received on the issue 

of applicable requirements for these 

subpart 1 areas and that we would 

address this issue after we issue 

guidance on how areas should assess 

whether they are subject to 

overwhelming transport. We granted the 

Earthjustice petition concerning the 

overwhelming transport classification 

on January 10, 2005. In a separate 

rulemaking action, we are inviting 

comment on the overwhelming 

transport classification, the draft 

overwhelming transport guidance, and 

the requirements that would apply to 

such areas. 

We will address any comments on the 

applicable control requirements for an 

area that receives an overwhelming 

transport classification in the context of 

the reconsideration action. 

VIII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and, therefore, 

subject to the 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 

71692 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

recommendations are documented in 

the public record. 

B. Paperwork Reduction Act 

The information collection 

requirements in this rule will be 

submitted for approval to OMB under 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. The information collection 

requirements are not enforceable until 

OMB approves them other than to the 

extent required by statute. 

This rule provides the framework for 

the States to develop SIPs to achieve a 

new or revised NAAQS. This framework 

reflects the requirements prescribed in 

CAA sections 110 and part D, subparts 

1 and 2 of title I. In that sense, the 

present final rule does not establish any 

new information collection burden on 

States. Had this rule not been 

developed, States would still have the 

legal obligation under law to submit 

nonattainment area SIPs under part D of 

title I of the CAA within specified 

periods after their nonattainment 

designation for the 8-hour ozone 

standard, and the SIPs would have to 

meet the requirements of part D. 

A SIP contains rules and other 

requirements designed to achieve the 

NAAQS by the deadlines established 

under the CAA, and also contains a 

demonstration that the State’s 

requirements will in fact result in 

attainment. The SIP must meet the CAA 

requirements in subparts 1 or 2 to adopt 

RACM, RACT, and provide for RFP 

toward attainment for the period prior 

to the area’s attainment date. After a 

State submits a SIP, the CAA requires 

EPA to approve or disapprove the SIP. 

If EPA approves the SIP, the rules in the 

SIP become federally enforceable. If 

EPA disapproves the SIP (or if EPA 

finds that a State fails to submit a SIP), 

the CAA requires EPA to impose 

sanctions (2:1 offsets for major new or 

modified sources and restrictions on 

Federal highway funding) within 

specified timeframes; additionally, EPA 

must prepare and publish a FIP within 

2 years after a disapproval or finding of 

failure to submit. The SIP must be 

publicly available. States must maintain 

confidentiality of confidential business 

information, however, if used to support 

SIP analyses. The SIP is a one-time 

submission, although the CAA requires 

States to revise their SIPs if EPA 

requests a revision upon a finding that 

the SIP is inadequate to attain or 

maintain the NAAQS. The State may 

revise its SIP voluntarily as needed, but 

in doing so must demonstrate that any 

revision will not interfere with 

attainment or RFP or any other 

applicable requirement under the CAA 

(see section 110(l)). 

This rule does not establish 

requirements that directly affect the 

general public and the public and 

private sectors, but, rather, interprets 

the statutory requirements that apply to 

States in preparing their SIPs. The SIPs 

themselves will likely establish 

requirements that directly affect the 

general public, and the public and 

private sectors. 

The EPA has not yet projected cost 

and hour burden for the statutory SIP 

development obligation but has started 

that effort and will shortly prepare an 

Information Collection Request (ICR) 

request. However, EPA did estimate 

administrative costs at the time of 

promulgation of the 8-hour ozone 

standard in 1997. See Chapter 10 of U.S. 

EPA 1997, Regulatory Impact Analyses 

for the Particulate Matter and Ozone 

National Ambient Air Quality 

Standards, Innovative Strategies and 

Economics Group, Office of Air Quality 

Planning and Standards, Research 

Triangle Park, N.C., July 16, 1997. 

Assessments of some of the 

administrative cost categories identified 

as a part of the SIP for an 8-hour 

standard are already conducted as a 

result of other provisions of the CAA 

and associated ICRs (e.g. emission 

inventory preparation, air quality 

monitoring program, conformity 

assessments, NSR, I/M program). 

The burden estimates in the ICR for 

this rule are incremental to what is 

required under other provisions of the 

CAA and what would be required under 

a 1-hour standard. Burden means the 

total time, effort, or financial resources 

expended by persons to generate, 

maintain, retain, or disclose or provide 

information to or for a Federal agency. 

This includes the time needed to review 

instructions; develop, acquire, install, 

and utilize technology and systems for 

the purposes of collecting, validating, 

and verifying information, processing 

and maintaining information, and 

disclosing and providing information; 

adjust the existing ways to comply with 

any previously applicable instructions 

and requirements; train personnel to be 

able to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

this ICR is approved by OMB, the 

Agency will publish a technical 

amendment to 40 CFR part 9 in the 

Federal Register to display the OMB 

control number for the approved 

information collection requirements 

contained in this final rule. However, 

the failure to have an approved ICR for 

this rule does not affect the statutory 

obligation for the States to submit SIPs 

as required under part D of the CAA. 

The information collection 

requirements associated with NSR 

permitting for ozone are covered by 

EPA’s request to renew the approval of 

the ICR for the NSR program, ICR 

1230.17, which was approved by OMB 

on January 25, 2005. The information 

collection requirements associated with 

NSR permitting were previously 

covered by ICR 1230.10 and 1230.11. 

The OMB previously approved the 

information collection requirements 

contained in the existing NSR 

regulations at 40 CFR parts 51 and 52 

under the provisions of the Paperwork 

Reduction Act, and assigned OMB 

control number 2060–0003. A copy of 

the approved ICR may be obtained from 

Susan Auby, Collection Strategies 

Division; U.S. Environmental Protection 

Agency (2822T); 1200 Pennsylvania 

Ave., NW., Washington, DC 20460 or by 

calling (202) 566–1672. 

For the portion of this rulemaking on 

RFG, this action does not add any new 

requirements under the provisions of 

the Paperwork Reduction Act. The OMB 

has approved the information collection 

requirements contained in the final 

RFG/anti-dumping rulemaking (see 59 

FR 7716, February 16, 1994) and has 

assigned OMB control number 2060– 

0277 (EPA ICR No. 1951.08). 

C. Regulatory Flexibility Act 

The EPA has determined that it is not 

necessary to prepare a regulatory 

flexibility analysis in connection with 

this final rule. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administrations’ regulations at 13 CFR 

121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final Phase 2 Rule for 

implementation of the 8-hour ozone 

standard on small entities, EPA has 

concluded that this action will not have 

a significant economic impact on a 

substantial number of small entities. 

This final rule will not impose any new 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71693 

or additional requirements on small 

entities. 

Concerning the NSR portion of this 

rule, a Regulatory Flexibility Act 

Screening Analysis (RFASA) was 

developed as part of a 1994 draft 

Regulatory Impact Analysis (RIA) and 

incorporated into the September 1995 

ICR renewal. This analysis showed that 

the changes to the NSR program due to 

the 1990 CAA Amendments would not 

have an adverse impact on small 

entities. This analysis encompassed the 

entire universe of applicable major 

sources that were likely to also be small 

businesses (approximately 50 ‘‘small 

business’’ major sources). Because the 

administrative burden of the NSR 

program is the primary source of the 

NSR program’s regulatory costs, the 

analysis estimated a negligible ‘‘cost to 

sales’’ (regulatory cost divided by the 

business category mean revenue) ratio 

for this source group. The incorporation 

of the major source thresholds and offset 

ratios from the 1990 CAA Amendments 

in § 51.165 and appendix S for the 

purpose of implementing NSR for the 8-

hour standard does not change this 

conclusion. Under section 110(a)(2)(C), 

all States must implement a 

preconstruction permitting program ‘‘as 

necessary to assure that the [NAAQS] 

are achieved,’’ regardless of changes to 

today’s regulations. Thus, small 

businesses continue to be subject to 

regulations for construction and 

modification of stationary sources, 

whether under State and local agency 

minor NSR programs, SIPs to implement 

§ 51.165, or appendix S, to ensure that 

the 8-hour standard is achieved. 

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 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

The RFG-related portions of this rule 

contain no new Federal mandates 

(under the regulatory provisions of title 

II of the UMRA) for State, local or Tribal 

governments or the private sector. The 

rule imposes no new enforceable duty, 

since it merely clarifies that in the 

transition to the 8-hour ozone standard 

the pre-existing opt-in rules remain in 

place, as does the pre-existing 

requirement that RFG be used in 

mandatory RFG-covered areas within 

the scope of this rule until such areas 

are redesignated to attainment for the 

ozone standard. Although EPA does not 

believe that UMRA imposes 

requirements regarding the RFG-related 

portions of this rulemaking, EPA notes 

that the environmental and economic 

impacts of the RFG program were 

assessed in EPA’s RIA for the 1994 RFG 

rules. 

The EPA has determined that all other 

portions of this rule do not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and Tribal governments, 

in the aggregate, or the private sector in 

any 1 year. The estimated 

administrative burden hour and costs 

associated with implementing the 8-

hour, 0.08 ppm NAAQS were developed 

upon promulgation of the NAAQS and 

presented in Chapter 10 of U.S. EPA 

1997, Regulatory Impact Analyses for 

the Particulate Matter and Ozone 

National Ambient Air Quality 

Standards, Innovative Strategies and 

Economics Group, Office of Air Quality 

Planning and Standards, Research 

Triangle Park, 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. Thus, 

today’s rule is not subject to the 

requirements of sections 202 and 205 of 

the UMRA. At the time EPA proposed 

its Implementation Rule, EPA noted that 

if it chose a classification option that 

classified all areas under subpart 2 of 

part D, these costs may increase 

modestly, but would not reach $100 

million. However, in promulgating the 

Phase 1 Rule, EPA adopted a 

classification scheme that resulted in 

approximately half of the areas 

designated nonattainment being subject 

only to the subpart 1 requirements. 

The CAA imposes the obligation for 

States to submit SIPs to implement the 

8-hour ozone NAAQS; in this rule, EPA 

is merely fleshing out those 

requirements. However, even if this rule 

did establish a requirement for States to 

submit SIPs, it is questionable whether 

a requirement to submit a SIP revision 

would constitute a Federal mandate in 

any case. The obligation for a State to 

submit a SIP that arises out of section 

110 and part D of the CAA is not legally 

enforceable by a court of law, and at 

most is a condition for continued 

receipt of highway funds. Therefore, it 

is possible to view an action requiring 

such a submittal as not creating any 

enforceable duty within the meaning of 

section 421(5)(9a)(I) of UMRA [2 U.S.C. 

658(a)(I)]. Even if it did, the duty could 

be viewed as falling within the 

exception for a condition of Federal 

assistance under section 421(5)(a)(i)(I) of 

UMRA [2 U.S.C. 658(5)(a)(i)(I)]. As 

noted below under ‘‘L. Petitions for 

Judicial Review,’’ this rule is covered 

under section 307(d) of the CAA. 

The EPA has determined that this rule 

contains no regulatory requirements that 

may significantly or uniquely affect 

small governments, including Tribal 

governments. 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 

71694 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. The RFG-related 

portions of the rule impose 

requirements on certain refiners and 

other entities in the gasoline 

distribution system, and not on States. 

In addition, as described in section D, 

above (on UMRA), EPA previously 

determined the costs to States to 

implement the 8-hour ozone NAAQS to 

be approximately $1 million. The CAA 

establishes the scheme whereby States 

take the lead in developing plans to 

meet the NAAQS. This rule would not 

modify the relationship of the States 

and EPA for purposes of developing 

programs to implement the NAAQS. In 

the non-RFG portions of this rule, EPA 

is interpreting the statutory SIP 

submission requirements that apply to 

areas designated. As described above, 

EPA has generally adopted the more 

flexible options proposed in the June 

2003 proposal. Thus, Executive Order 

13132 does not apply to this rule. 

Although section 6 of Executive Order 

13132 does not apply to this rule, EPA 

actively engaged the States in the 

development of this rule. The EPA held 

regular calls with representatives of 

State and local air pollution control 

agencies. Also, EPA held three public 

meetings at which it described the 

approaches it was considering and 

provided an opportunity for States and 

various other governmental officials to 

comment on the options being 

considered. Finally, EPA held three 

public hearings after the proposed rule 

was published to obtain public 

comments. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ 

The portions of this rulemaking that 

relate to RFG do not create a mandate 

for any Tribal government. The rule 

does not impose any enforceable duties 

on these entities. Rather, the rule will 

affect only those refiners, importers or 

blenders of gasoline that choose to 

produce or import RFG for sale in the 

nonattainment areas addressed in the 

rule, and the gasoline distributors and 

retail stations in those areas. The 

following discussion relates to the nonRFG portions of the rule. 

This rule concerns the 

implementation of the 8-hour ozone 

NAAQS in areas designated 

nonattainment for that NAAQS. The 

CAA provides for States and Tribes to 

develop plans to regulate emissions of 

air pollutants within their jurisdictions. 

The non-RFG portions of this rule flesh 

out the statutory obligations of States 

and Tribes that develop plans to 

implement the 8-hour ozone NAAQS. 

The TAR and the CAA give Tribes the 

opportunity to develop and implement 

CAA programs such as the 8-hour ozone 

NAAQS, but it leaves to the discretion 

of the Tribe whether to develop these 

programs and which programs, or 

appropriate elements of a program, they 

will adopt. 

This rule does not have Tribal 

implications as defined by Executive 

Order 13175. There are 126 designated 

nonattainment areas. Although there are 

61 Tribes estimated to be in one or more 

of those nonattainment areas, this rule 

does not have a substantial direct effect 

on one or more Indian Tribes, since no 

Tribe is required to implement a CAA 

program to attain the 8-hour ozone 

NAAQS. See: http://www.epa.gov/oar/ 

oaqps/glo/designations/tribaldesig.htm 

for the list of Tribes included as part of 

a designated nonattainment area. 

Furthermore, this rule does not affect 

the relationship or distribution of power 

and responsibilities between the Federal 

government and Indian Tribes. The 

CAA and the TAR establish the 

relationship of the Federal government 

and Tribes in developing plans to attain 

the NAAQS, and this rule does nothing 

to modify that relationship. Because this 

rule does not have Tribal implications, 

Executive Order 13175 does not apply. 

Although Executive Order 13175 does 

not apply to this rule, EPA did consult 

with Tribal leaders and environmental 

staff in developing this rule and 

encouraged Tribal input at an early 

stage. The EPA supports the national 

‘‘Tribal Designations and 

Implementation Work Group’’ which 

provided an open forum for all Tribes to 

voice concerns to EPA about the 

designation and implementation process 

for the 8-hour ozone NAAQS. These 

discussions have given EPA valuable 

information about Tribal concerns 

regarding implementation of the 8-hour 

ozone NAAQS. The work group sent 

issue summaries and suggestions for 

addressing them to the newly formed 

National Tribal Air Association (NTAA), 

which in turn sent them to Tribal 

leaders. The project lead for this rule 

informed interested Tribal leaders about 

progress on the rule and invited input. 

The EPA encouraged Tribes to 

participate in the national public 

meetings held to take comment on early 

approaches to the rule. Several Tribes 

made public comments at the April 

2002 public meeting in Tempe, Arizona. 

Furthermore, EPA sent individualized 

letters to all federally-recognized Tribes 

inviting Tribal leaders to consult with 

EPA on the proposed implementation 

rule. The EPA received comment from 

the NTAA on several questions: (1) the 

NTAA asked for clarification on the 

nature of EPA’s support for Tribes 

without TAS status and asked if EPA 

would provide technical assistance in 

interpreting SIP documentation to a 

Tribe without TAS approval; (2) the 

NTAA asked EPA to explain how it 

envisions its role in continuing 

consultation with Tribes throughout the 

execution of SIPs. We respond to these 

comments in the technical support 

document. The NTAA’s final comment 

cited concerns with the impact of NSR 

requirements on the Tribes. The EPA 

acknowledges that offsets are a concern 

for Tribes. We are currently evaluating 

potential options for addressing this 

concern. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children From Environmental Health 

and Safety Risks’’ (62 FR 19885, April 

23, 1997) applies to any rule that (1) Is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This rule is not subject to Executive 

Order 13045 because it implements a 

previously promulgated health-based 

Federal standard—the 8-hour ozone 

NAAQS—and contains a non- healthbased determination of the extent to 

which the existing RFG program 

remains in place under the 8-hour 

standard. We have evaluated the 

environmental health and safety effects 

of the 8-hour ozone NAAQS on children 

as part of this previously promulgated 

Federal standard. The results of this 

evaluation are contained in 40 CFR part 

50, National Ambient Air Quality 

Standards for Ozone, Final Rule (62 FR 

38855–38896, July 18, 1997; 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71695 

specifically, 62 FR 38855, 62 FR 38860 

and 62 FR 38865). 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions That Significantly 

Affect Energy Supply, Distribution, or 

Use,’’ (66 FR 28355, May 22, 2001) 

because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. 

At the time of proposal, information 

on the methodology and data regarding 

the assessment of potential energy 

impacts regarding implementation of 

the 8-hour standard was addressed in 

Chapter 6 of U.S. EPA 2003, Cost, 

Emission Reduction, Energy, and 

Economic Impact Assessment of the 

Proposed Rule Establishing the 

Implementation Framework for the 8-

Hour, 0.08 ppm Ozone National 

Ambient Air Quality Standard, prepared 

by the Innovative Strategies and 

Economics Group, Office of Air Quality 

Planning and Standards, Research 

Triangle Park, NC, April 24, 2003. 

Subsequently, EPA issued an 

Addendum 1 to that analysis for the 

Phase 1 final rule and designated 

nonattainment areas. For purposes of 

this final rule, EPA has issued 

Addendum 2. By adopting the more 

flexible approaches while providing for 

attainment and maintenance of the 8-

hour NAAQS as required by the CAA, 

additional energy cost associated with 

more extensive use of less flexible 

approaches would be averted. The 

portions of this rule that relate to RFG 

merely clarify that the existing program 

continues under the 8-hour standard in 

the areas addressed by the rule, so the 

rule does not have a significant affect on 

energy supply, distribution or use. The 

EPA evaluated energy impacts of the 

RFG program in the RIA for the 1994 

rulemaking establishing the RFG 

program. 

I. National Technology Transfer 

Advancement Act 

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, disproportionately high 

and adverse human health or 

environmental effects of its programs, 

policies, and activities on minorities 

and low-income populations. 

The EPA believes that this rule does 

not raise any environmental justice 

concerns. Today’s rule helps establish a 

framework for bringing all areas of the 

country into attainment with the 8-hour 

ozone standards, an important 

environmental justice goal. The health 

and environmental risks associated with 

ozone were considered in the 

establishment of the 8-hour, 0.08 ppm 

ozone NAAQS, and the standard was set 

at a level requisite to protect public 

health with an adequate margin of 

safety. In setting this standard, EPA 

considered the effects on sensitive 

subpopulations, such as those with 

respiratory problems. 

The EPA has designated as 

nonattainment these areas of the 

country that are not meeting the 8-hour 

ozone standard. This rule will assist 

States as they develop plans to bring 

these nonattainment areas into 

attainment in accordance with the CAA 

schedule. By establishing guidelines for 

bringing these areas into attainment 

with the 8-hour ozone standard, the 

Phase 2 Rule advances an important 

environmental justice goal and will help 

make significant progress in providing 

for the fair treatment of all people with 

respect to air pollution. 

In the preamble to the proposed rule, 

EPA took comment on the Clean Air 

Development Communities (CADC) 

concept (regarding possible State 

adoption of land use planning as a 

pollution reduction strategy) and noted 

that it might raise environmental justice 

concerns. Public comments were 

submitted that raised environmental 

justice concerns with this concept. As 

noted earlier in the preamble to this 

Phase 2 Rule, EPA is not finalizing the 

CADC concept and has therefore not 

responded to these (or any other) 

comments on the CADC concept. 

The RFG program is designed to 

reduce vehicle emissions of toxic and 

ozone-forming substances. This rule 

will not alter the air quality benefits 

associated with the RFG program. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this rule 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 

January 30, 2006. 

L. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the District of 

Columbia Circuit by January 30, 2006. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See CAA 

section 307(b)(2). 

M. Determination Under Section 307(d) 

Pursuant to sections 307(d)(1)(E) and 

307(d)(1)(V) of 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. 

71696 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

Appendix A to Preamble—Methods to 

Account for Non-Creditable Reductions 

When Calculating ROP Targets for the 

2008 and Later ROP Milestone Years 

The following methods properly 

account for the non-creditable emissions 

reductions when calculating ROP targets 

for the 2008 and later ROP milestone 

years.119 They are consistent with 

requirements of sections 182(b)(1)(C) 

and (D) and 182(c)(2)(B) of the CAA. 

(1) Method 1: For areas that must 

meet a 15 percent VOC reduction 

requirement by 2008: 

(A) Estimate the actual anthropogenic 

base year VOC inventory in 2002 with 

all 2002 control programs in place for 

all sources. 

(B) Using the same highway vehicle 

activity inputs used to calculate the 

actual 2002 inventory, run the 

appropriate motor vehicle emissions 

model for 2002 and for 2008 with all 

post-1990 CAA measures turned off. 

Any other local inputs for vehicle 

inspection and maintenance (I/M) 

programs should be set according to the 

program that was required to be in place 

in 1990. Fuel Reid Vapor Pressure (RVP) 

should be set at 9.0 or 7.8 depending on 

the RVP required in the local area as a 

result of fuel RVP regulations 

promulgated in June, 1990. 

(C) Calculate the difference between 

the 2002 and 2008 VOC emission factors 

calculated in Step B and multiply by 

2002 vehicle miles traveled (VMT). The 

result is the VOC emissions reductions 

that will occur between 2002 and 2008 

without the benefits of any post-1990 

CAA measures. These are the noncreditable reductions that occur over 

this period. 

(D) Subtract the non-creditable 

reductions calculated in Step C from the 

actual anthropogenic 2002 inventory 

estimated in Step A. This adjusted VOC 

inventory is the basis for calculating the 

target level of emissions in 2008. 

(E) Reduce the adjusted VOC 

inventory calculated in Step D by 15 

percent. The result is the target level of 

119 These methods assume the use of EPA’s onroad motor vehicle emissions model in all States 

other than California. All of the methods given here 

require the user to turn off all post-1990 CAA 

measures as part of the calculation. In EPA’s current 

motor vehicle emissions model, MOBILE6.2, this is 

accomplished using the NO CLEAN AIR ACT 

command as described in the MOBILE6.2 User’s 

Guide (found at http://www.epa.gov/otaq/m6.htm). 

Users of future versions of EPA’s motor vehicle 

emissions model should consult the appropriate 

User’s Guide for the version of the model they are 

using for instructions on what model command to 

use. For California nonattainment areas, the current 

motor vehicle emissions model is EMFAC2002. 

Users modeling California nonattainment areas 

should consult with the EPA Regional Office for 

information on doing equivalent calculations in that 

model and in future versions. 

VOC emissions in 2008 in order to meet 

the 2008 ROP requirement. The actual 

projected 2008 inventory for all sources 

with all control measures in place and 

including projected 2008 growth in 

activity must be at or lower than this 

target level of emissions. 

(2) Method 2: For areas covered under 

40 CFR 51.910(a)(1)(ii)(C) and that meet 

an 18 percent VOC emission reduction 

requirement by 2008 with NOX 

substitution allowed, following EPA’s 

NOX Substitution Guidance: 

(A) Estimate the actual anthropogenic 

base year inventory for both VOC and 

NOX in 2002 with all 2002 control 

programs in place. 

(B) Using the same highway vehicle 

activity inputs used to calculate the 

actual 2002 inventory, run the 

appropriate motor vehicle emissions 

model for 2002 and for 2008 with all 

post-1990 CAA measures turned off. 

Any other local inputs for I/M programs 

should be set according to the program 

that was required to be in place in 1990. 

Fuel RVP should be set at 9.0 or 7.8 

depending on the RVP required in the 

local area as a result of fuel RVP 

regulations promulgated in June, 1990. 

(C) Calculate the difference between 

2002 and 2008 VOC emissions factors 

calculated in Step B and multiply by 

2002 VMT. The result is the VOC 

emissions reductions that will occur 

between 2002 and 2008 without the 

benefits of any post-1990 CAA 

measures. These are the non-creditable 

VOC reductions that occur over this 

period. Calculate the difference between 

2002 and 2008 NOX emissions factors 

calculated in Step B and multiply by 

2002 VMT. This result is the NOX 

emissions reductions that will occur 

between 2002 and 2008 without the 

benefits of any post-1990 CAA 

measures. These are the non-creditable 

NOX reductions that occur over this 

period. 

(D) Subtract the non-creditable VOC 

reductions calculated in Step C from the 

actual anthropogenic 2002 VOC 

inventory estimated in Step A. Subtract 

the non-creditable NOX reductions 

calculated in Step C from the actual 

anthropogenic 2002 NOX inventory 

estimated in Step A. These adjusted 

VOC and NOX inventories are the basis 

for calculating the target level of 

emissions in 2008. 

(E) The target level of VOC and NOX 

emissions in 2008 needed to meet the 

2008 ROP requirement is any 

combination of VOC and NOX 

reductions from the adjusted inventories 

calculated in Step D that total 18 

percent. For example, the target level of 

VOC emissions in 2008 could be a 10 

percent reduction from the adjusted 

VOC inventory in Step D and an 8 

percent reduction from the adjusted 

NOX inventory in Step D. The actual 

projected 2008 VOC and NOX 

inventories for all sources with all 

control measures in place and including 

projected 2008 growth in activity must 

be at or lower than the target levels of 

VOC and NOX emissions. 

(3) Method 3: For all areas that have 

used Method 1 above (and therefore do 

not have a NOX target level of emissions 

for 2008) and must meet an additional 

reduction VOC requirement of 9 percent 

every 3 years after 2008 with NOX 

substitution allowed, following EPA’s 

NOX Substitution Guidance. Each 

subsequent target level of emissions 

should be calculated as an emission 

reduction from the previous target. 

(A) Estimate the actual anthropogenic 

base year NOX inventory in 2002 with 

all 2002 control programs in place for 

all sources. 

(B) Using the same highway vehicle 

activity inputs used to calculate the 

actual 2002 inventory, run the 

appropriate emissions model for VOC 

and NOX in 2002 and 2008 (previously 

done in Step B in Method 1 for VOC but 

not necessarily for NOX) and 2011 with 

all post-1990 CAA measures turned off. 

Any other local inputs for I/M programs 

should be set according to the program 

that was required to be in place in 1990. 

Fuel RVP should be set at 9.0 or 7.8 

depending on the RVP required in the 

local area as a result of fuel RVP 

regulations promulgated in June, 1990. 

(C) Calculate the difference between 

2008 and 2011 VOC emission factors 

calculated in Step B and multiply by 

2002 VMT. The result is the VOC 

emissions reductions that will occur 

between 2008 and 2011 without the 

benefits of any post-1990 CAA 

measures. These are the non-creditable 

VOC reductions that occur over this 

period. Calculate the difference between 

2002 and 2011 NOX emission factors 

calculated in Step B and multiply by 

2002 VMT. The result is the NOX 

emissions reductions that will occur 

between 2002 and 2011 without the 

benefits of any post-1990 CAA 

measures. These are the non-creditable 

NOX reductions that occur over this 

period. 

(D) Subtract the non-creditable VOC 

reductions calculated in Step C from the 

2008 VOC target level of emissions 

calculated previously. Subtract the noncreditable NOX reductions calculated in 

Step C from the actual 2002 NOX 

inventory of emissions calculated in 

Step A. These adjusted VOC and NOX 

inventories are the basis for calculating 

the target level of emissions in 2011. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71697 

(E) The target level of VOC and NOX 

emissions in 2011 needed to meet the 

2011 ROP requirement is any 

combination of VOC and NOX 

reductions from the adjusted inventories 

calculated in Step E that total 9 percent. 

For example, the target level of VOC 

emissions in 2011 could be a 4 percent 

reduction from the adjusted VOC 

inventory in Step C and a 5 percent 

reduction from the adjusted NOX 

inventory in Step C. The actual 

projected 2011 VOC and NOX 

inventories for all sources with all 

control measures in place and including 

projected 2011 growth in activity must 

be at or lower than the target levels of 

VOC and NOX emissions. 

(F) For subsequent 3-year periods 

until the attainment date, repeat the 

process for VOC. For subsequent 3-year 

periods, the adjusted NOX inventory 

should be based on the difference in 

NOX emissions during that 3-year 

period when all post-1990 CAA 

measures are turned off, subtracted from 

the previous NOX target level of 

emissions. For example, for 2014, take 

the difference in NOX emissions 

reductions that will occur between 2011 

and 2014 without the benefits of any 

post-1990 CAA measures. This value is 

subtracted from the 2011 target level of 

NOX emissions calculated in Step D to 

get the adjusted NOX inventory to be 

used as the basis for calculating the 

target level of NOX emissions in 2014. 

(4) Method 4: For all areas that have 

used Method 2 above (and therefore do 

have a NOX target level of emissions for 

2008) and must meet an additional 

reduction VOC requirement of 9 percent 

every 3 years after 2008 with NOX 

substitution allowed, following EPA’s 

NOX Substitution Guidance. Each 

subsequent target level of emissions 

should be calculated as an emissions 

reductions from the previous target. 

(A) Using the same highway vehicle 

activity inputs used to calculate the 

actual 2002 inventory, run the 

appropriate emissions model for VOC 

and NOX in 2008 (previously done in 

Step B in Method 2) and 2011 with all 

post-1990 CAA measures turned off. 

Any other local inputs for I/M programs 

should be set according to the program 

that was required to be in place in 1990. 

Fuel RVP should be set at 9.0 or 7.8 

depending on the RVP required in the 

local area as a result of fuel RVP 

regulations promulgated in June 1990. 

(B) Calculate the difference between 

2008 and 2011 VOC emission factors 

calculated in Step A and multiply by 

2002 VMT. The result is the VOC 

emissions reductions that will occur 

between 2008 and 2011 without the 

benefits of any post-1990 CAA 

measures. These are the non-creditable 

VOC reductions that occur over this 

period. Calculate the difference between 

2008 and 2011 NOX emission factors 

calculated in Step A and multiply by 

2002 VMT. The result is the NOX 

emissions reductions that will occur 

between 2008 and 2011 without the 

benefits of any post-1990 CAA 

measures. These are the non-creditable 

NOX reductions that occur over this 

period. 

(C) Subtract the non-creditable VOC 

reductions calculated in Step B from the 

2008 VOC target level of emissions 

calculated previously. Subtract the noncreditable NOX reductions calculated in 

Step B from the 2008 NOX target level 

of emissions calculated previously. 

These adjusted VOC and NOX 

inventories are the basis for calculating 

the target level of emissions in 2011. 

(D) The target level of VOC and NOX 

emissions in 2011 needed to meet the 

2011 ROP requirement is any 

combination of VOC and NOX 

reductions from the adjusted inventories 

calculated in Step E that total 9 percent. 

For example, the target level of VOC 

emissions in 2011 could be a 4 percent 

reduction from the adjusted VOC 

inventory in Step C and a 5 percent 

reduction from the adjusted NOX 

inventory in Step C. The actual 

projected 2011 VOC and NOX 

inventories for all sources with all 

control measures in place and including 

projected 2011 growth in activity must 

be at or lower than the target levels of 

VOC and NOX emissions. 

(E) Repeat entire process for 

subsequent 3-year periods until the 

attainment date. 

Appendix B to Preamble—Glossary of Terms 

and Acronyms 

ACT—Alternative Control Techniques 

ARTBA—American Road and Transportation 

Builders Association 

BACT—Best Available Control Technology 

BART—Best Available Retrofit Technology 

CAA—Clean Air Act 

CAAAC—Clean Air Act Advisory Committee 

CADCs—Clean Air Development 

Communities 

CAIR—Clean Air Interstate Rule 

CERR—Consolidated Emissions Reporting 

Rule 

CFR—Code of Federal Regulations 

CMAQ—Congestion Mitigation and Air 

Quality 

CMSA—Consolidated Metropolitan 

Statistical Area 

CO—Carbon Monoxide 

CTG—Control Technique Guideline 

DOT—Department of Transportation 

EMFAC—EMissions FACtors (a mobile 

emissions model) 

ESRP—Emissions Statement Reporting 

Program 

CTG—Control Technique Guidelines 

EGUs—Electricity Generating Units 

EPA—Environmental Protection Agency 

FIP—Federal Implementation Plan 

FMVCP—Federal Motor Vehicle Control 

Program 

HON—Hazardous Organic NESHAP 

ICR—Information Collection Requirement 

I/M—Inspection and Maintenance Area 

km—Kilometers 

LADCO—Lake Michigan Air Directors 

Consortium 

LAER—Lowest Achievable Emission Rate 

MACT—Maximum Achievable Control 

Technology 

MCR—Mid-course Review 

MPO—Metropolitan Planning Organization 

MSA—Metropolitan Statistical Area 

NAA—Nonattainment Area 

NAAMS—National Ambient Air Modeling 

Strategy 

NAAQS—National Ambient Air Quality 

Standards 

NAMS/SLAMS—National Air Monitoring 

Stations/State and Local Air Monitoring 

Stations 

NAS—National Academy of Sciences 

NCore—National Core Monitoring Stations 

NESHAP—National Emission Standards for 

Hazardous Air Pollutants 

NOX —Nitrogen Oxides 

NOy —Reactive Oxides of Nitrogen 

NPRM—Notice of Proposed Rulemaking 

NSR—New Source Review 

NTAA—National Tribal Air Association 

NTTAA—National Technology Transfer 

Advancement Act of 1995 

OMB—Office of Management and Budget 

OTAG—Ozone Transport Assessment Group 

OTR—Ozone Transport Region 

PAMS—Photochemical Assessment 

Monitoring Stations 

PM—Particulate Matter 

PM2.5 —Fine Particulate Matter 

PM10 —Particulate Matter Having a Nominal 

Aerodynamic Diameter Less than or 

Equal to 10 Microns 

ppb—Parts per Billion 

ppm—Parts per Million 

PSD—Prevention of Significant Deterioration 

psi—Pounds Per Square Inch 

RACM—Reasonably Available Control 

Measures 

RACT—Reasonably Available Control 

Technology 

RFASA—Regulatory Flexibility Act 

Screening Analysis 

RFP—Reasonable Further Progress 

RIA—Regulatory Impact Analysis 

ROG—Reactive Organic Gases 

ROP—Rate of Progress 

RPOs—Regional Planning Organizations 

RVP—Reid Vapor Pressure 

SBA—Small Business Administration 

SCR—Selective Catalytic Reduction 

SIPs—State Implementation Plans 

SO2 —Sulfur Dioxide 

TAR—Tribal Authority Rule 

TAS—(Treatment in the Same Manner as a 

State ‘‘Treatment as State’’) 

TEA–21—Transportation Equity Act for the 

Twenty-first Century 

TIPs—Tribal Implementation Plans 

tpy—Tons Per Year 

TSP—Total Suspended Particulates 

TTN/SCRAM—Technical Transfer Network/ 

Support Center for Regulatory Air 

Models 

1995 

71698 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

UMRA—Unfunded Mandates Reform Act of 

U.S. DOT—United States Department of 

Transportation 

VCS—Voluntary Consensus Standards 

VMT—Vehicle Miles Traveled 

VOC—Volatile Organic Compound 

List of Subjects 

40 CFR Part 51 

Air pollution control, Carbon 

monoxide, Intergovernmental relations, 

Ozone, Particulate matter, 

Transportation, Volatile organic 

compounds. 

40 CFR Part 52 

Air pollution control, Carbon 

monoxide, Intergovernmental relations, 

Ozone, Particulate matter. 

40 CFR Part 80 

Fuel additives, Gasoline, Motor 

vehicle pollution, Ozone. 

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: November 9, 2005. 

Stephen L. Johnson, 

Administrator. 

■ For the reasons stated in the preamble, 

title 40, chapter I of the Code of Federal 

Regulations is amended as follows: 

PART 51—REQUIREMENTS FOR 

PREPARATION, ADOPTION, AND 

SUBMITTAL OF IMPLEMENTATION 

PLANS 

■ 1. The authority citation for part 51 

continues to read as follows: 

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

7671q. 

Subpart I—[Amended] 

■ 2. Section 51.165 is amended as 

follows: 

■ a. By revising paragraphs 

(a)(1)(iv)(A)(1) and (2). 

■ b. By adding paragraph 

(a)(1)(iv)(A)(3). 

■ c. By adding paragraphs (a)(1)(v)(E) 

and (F). 

■ d. By revising paragraph (a)(1)(x). 

■ e. By revising paragraph (a)(3)(ii)(C). 

■ f. By adding paragraphs (a)(8), (a)(9), 

and (a)(10). 

§ 51.165 Permit requirements. 

(a) * * * 

(1) * * * 

(iv) * * * 

(A) * * * 

(1) Any stationary source of air 

pollutants that emits, or has the 

potential to emit, 100 tons per year or 

more of any regulated NSR pollutant, 

except that lower emissions thresholds 

shall apply in areas subject to subpart 2, 

subpart 3, or subpart 4 of part D, title 

I of the Act, according to paragraphs 

(a)(1)(iv)(A)(1)(i) through (vi) of this 

section. 

(i) 50 tons per year of volatile organic 

compounds in any serious ozone 

nonattainment area. 

(ii) 50 tons per year of volatile organic 

compounds in an area within an ozone 

transport region, except for any severe 

or extreme ozone nonattainment area. 

(iii) 25 tons per year of volatile 

organic compounds in any severe ozone 

nonattainment area. 

(iv) 10 tons per year of volatile organic 

compounds in any extreme ozone 

nonattainment area. 

(v) 50 tons per year of carbon 

monoxide in any serious nonattainment 

area for carbon monoxide, where 

stationary sources contribute 

significantly to carbon monoxide levels 

in the area (as determined under rules 

issued by the Administrator). 

(vi) 70 tons per year of PM–10 in any 

serious nonattainment area for PM–10; 

(2) For the purposes of applying the 

requirements of paragraph (a)(8) of this 

section to stationary sources of nitrogen 

oxides located in an ozone 

nonattainment area or in an ozone 

transport region, any stationary source 

which emits, or has the potential to 

emit, 100 tons per year or more of 

nitrogen oxides emissions, except that 

the emission thresholds in paragraphs 

(a)(1)(iv)(A)(2)(i) through (vi) of this 

section shall apply in areas subject to 

subpart 2 of part D, title I of the Act. 

(i) 100 tons per year or more of 

nitrogen oxides in any ozone 

nonattainment area classified as 

marginal or moderate. 

(ii) 100 tons per year or more of 

nitrogen oxides in any ozone 

nonattainment area classified as a 

transitional, submarginal, or incomplete 

or no data area, when such area is 

located in an ozone transport region. 

(iii) 100 tons per year or more of 

nitrogen oxides in any area designated 

under section 107(d) of the Act as 

attainment or unclassifiable for ozone 

that is located in an ozone transport 

region. 

(iv) 50 tons per year or more of 

nitrogen oxides in any serious 

nonattainment area for ozone. 

(v) 25 tons per year or more of 

nitrogen oxides in any severe 

nonattainment area for ozone. 

(vi) 10 tons per year or more of 

nitrogen oxides in any extreme 

nonattainment area for ozone; or 

(3) Any physical change that would 

occur at a stationary source not 

qualifying under paragraphs 

(a)(1)(iv)(A)(1) or (2) of this section as a 

major stationary source, if the change 

would constitute a major stationary 

source by itself. 

* * * * * 

(v) * * * 

(E) For the purpose of applying the 

requirements of (a)(8) of this section to 

modifications at major stationary 

sources of nitrogen oxides located in 

ozone nonattainment areas or in ozone 

transport regions, whether or not subject 

to subpart 2, part D, title I of the Act, 

any significant net emissions increase of 

nitrogen oxides is considered significant 

for ozone. 

(F) Any physical change in, or change 

in the method of operation of, a major 

stationary source of volatile organic 

compounds that results in any increase 

in emissions of volatile organic 

compounds from any discrete operation, 

emissions unit, or other pollutant 

emitting activity at the source shall be 

considered a significant net emissions 

increase and a major modification for 

ozone, if the major stationary source is 

located in an extreme ozone 

nonattainment area that is subject to 

subpart 2, part D, title I of the Act. 

* * * * * 

(x)(A) Significant means, in reference 

to a net emissions increase or the 

potential of a source to emit any of the 

following pollutants, a rate of emissions 

that would equal or exceed any of the 

following rates: 

Pollutant Emission Rate 

Carbon monoxide: 100 tons per year (tpy) 

Nitrogen oxides: 40 tpy 

Sulfur dioxide: 40 tpy 

Ozone: 40 tpy of volatile organic compounds 

or NOX 

Lead: 0.6 tpy 

PM–10: 15 tpy PM–10 

(B) Notwithstanding the significant 

emissions rate for ozone in paragraph 

(a)(1)(x)(A) of this section, significant 

means, in reference to an emissions 

increase or a net emissions increase, any 

increase in actual emissions of volatile 

organic compounds that would result 

from any physical change in, or change 

in the method of operation of, a major 

stationary source locating in a serious or 

severe ozone nonattainment area that is 

subject to subpart 2, part D, title I of the 

Act, if such emissions increase of 

volatile organic compounds exceeds 25 

tons per year. 

(C) For the purposes of applying the 

requirements of paragraph (a)(8) of this 

section to modifications at major 

stationary sources of nitrogen oxides 

located in an ozone nonattainment area 

or in an ozone transport region, the 

significant emission rates and other 

requirements for volatile organic 

compounds in paragraphs (a)(1)(x)(A), 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71699 

(B), and (E) of this section shall apply 

to nitrogen oxides emissions. 

(D) Notwithstanding the significant 

emissions rate for carbon monoxide 

under paragraph (a)(1)(x)(A) of this 

section, significant means, in reference 

to an emissions increase or a net 

emissions increase, any increase in 

actual emissions of carbon monoxide 

that would result from any physical 

change in, or change in the method of 

operation of, a major stationary source 

in a serious nonattainment area for 

carbon monoxide if such increase equals 

or exceeds 50 tons per year, provided 

the Administrator has determined that 

stationary sources contribute 

significantly to carbon monoxide levels 

in that area. 

(E) Notwithstanding the significant 

emissions rates for ozone under 

paragraphs (a)(1)(x)(A) and (B) of this 

section, any increase in actual emissions 

of volatile organic compounds from any 

emissions unit at a major stationary 

source of volatile organic compounds 

located in an extreme ozone 

nonattainment area that is subject to 

subpart 2, part D, title I of the Act shall 

be considered a significant net 

emissions increase. 

* * * * * 

(3) * * * 

(i) * * * 

(ii) * * * 

(C)(1) Emissions reductions achieved 

by shutting down an existing emission 

unit or curtailing production or 

operating hours may be generally 

credited for offsets if they meet the 

requirements in paragraphs 

(a)(3)(ii)(C)(1)(i) through (ii) of this 

section. 

(i) Such reductions are surplus, 

permanent, quantifiable, and federally 

enforceable. 

(ii) The shutdown or curtailment 

occurred after the last day of the base 

year for the SIP planning process. For 

purposes of this paragraph, a reviewing 

authority may choose to consider a prior 

shutdown or curtailment to have 

occurred after the last day of the base 

year if the projected emissions 

inventory used to develop the 

attainment demonstration explicitly 

includes the emissions from such 

previously shutdown or curtailed 

emission units. However, in no event 

may credit be given for shutdowns that 

occurred before August 7, 1977. 

(2) Emissions reductions achieved by 

shutting down an existing emissions 

unit or curtailing production or 

operating hours and that do not meet 

the requirements in paragraph 

(a)(3)(ii)(C)(1)(ii) of this section may be 

generally credited only if: 

(i) The shutdown or curtailment 

occurred on or after the date the 

construction permit application is filed; 

or 

(ii) The applicant can establish that 

the proposed new emissions unit is a 

replacement for the shutdown or 

curtailed emissions unit, and the 

emissions reductions achieved by the 

shutdown or curtailment met the 

requirements of paragraph 

(a)(3)(ii)(C)(1)(i) of this section. 

* * * * * 

(8) The plan shall provide that the 

requirements of this section applicable 

to major stationary sources and major 

modifications of volatile organic 

compounds shall apply to nitrogen 

oxides emissions from major stationary 

sources and major modifications of 

nitrogen oxides in an ozone transport 

region or in any ozone nonattainment 

area, except in ozone nonattainment 

areas or in portions of an ozone 

transport region where the 

Administrator has granted a NOX waiver 

applying the standards set forth under 

section 182(f) of the Act and the waiver 

continues to apply. 

(9)(i) The plan shall require that in 

meeting the emissions offset 

requirements of paragraph (a)(3) of this 

section for ozone nonattainment areas 

that are subject to subpart 2, part D, title 

I of the Act, the ratio of total actual 

emissions reductions of VOC to the 

emissions increase of VOC shall be as 

follows: 

(A) In any marginal nonattainment 

area for ozone—at least 1.1:1; 

(B) In any moderate nonattainment 

area for ozone—at least 1.15:1; 

(C) In any serious nonattainment area 

for ozone—at least 1.2:1; 

(D) In any severe nonattainment area 

for ozone—at least 1.3:1 (except that the 

ratio may be at least 1.2:1 if the 

approved plan also requires all existing 

major sources in such nonattainment 

area to use BACT for the control of 

VOC); and 

(E) In any extreme nonattainment area 

for ozone—at least 1.5:1 (except that the 

ratio may be at least 1.2:1 if the 

approved plan also requires all existing 

major sources in such nonattainment 

area to use BACT for the control of 

VOC); and 

(ii) Notwithstanding the requirements 

of paragraph (a)(9)(i) of this section for 

meeting the requirements of paragraph 

(a)(3) of this section, the ratio of total 

actual emissions reductions of VOC to 

the emissions increase of VOC shall be 

at least 1.15:1 for all areas within an 

ozone transport region that is subject to 

subpart 2, part D, title I of the Act, 

except for serious, severe, and extreme 

ozone nonattainment areas that are 

subject to subpart 2, part D, title I of the 

Act. 

(iii) The plan shall require that in 

meeting the emissions offset 

requirements of paragraph (a)(3) of this 

section for ozone nonattainment areas 

that are subject to subpart 1, part D, title 

I of the Act (but are not subject to 

subpart 2, part D, title I of the Act, 

including 8-hour ozone nonattainment 

areas subject to 40 CFR 51.902(b)), the 

ratio of total actual emissions reductions 

of VOC to the emissions increase of 

VOC shall be at least 1:1. 

(10) The plan shall require that the 

requirements of this section applicable 

to major stationary sources and major 

modifications of PM–10 shall also apply 

to major stationary sources and major 

modifications of PM–10 precursors, 

except where the Administrator 

determines that such sources do not 

contribute significantly to PM–10 levels 

that exceed the PM–10 ambient 

standards in the area. 

* * * * * 

■ 3. Section 51.166 is amended as 

follows: 

■ a. By revising paragraph (b)(1)(ii). 

■ b. By revising paragraph (b)(2)(ii). 

■ c. By revising the entry for ‘‘ozone’’ in 

the list in paragraph (b)(23)(i). 

■ d. By revising paragraph (b)(49)(i). 

■ e. By revising footnote 1 to paragraph 

(i)(5)(i)(e). 

§ 51.166 Prevention of significant 

deterioration of air quality. 

* * * * * 

(b) * * * 

(1) * * * 

(ii) A major source that is major for 

volatile organic compounds or NOX 

shall be considered major for ozone. 

* * * * * 

(2) * * * 

(ii) Any significant emissions increase 

(as defined at paragraph (b)(39) of this 

section) from any emissions units or net 

emissions increase (as defined in 

paragraph (b)(3) of this section) at a 

major stationary source that is 

significant for volatile organic 

compounds or NOX shall be considered 

significant for ozone. 

* * * * * 

(23)(i) * * * 

* * * * * 

Ozone: 40 tpy of volatile organic 

compounds or NOX 

* * * * * 

(49) * * * 

(i) Any pollutant for which a national 

ambient air quality standard has been 

promulgated and any constituents or 

precursors for such pollutants identified 

by the Administrator (e.g., volatile 

71700 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

organic compounds and NOX are 

precursors for ozone); 

* * * * * 

(i) * * * 

(5) * * * 

(i) * * * 

(e) * * * 

1 No de minimis air quality level is 

provided for ozone. However, any net 

emissions increase of 100 tons per year or 

more of volatile organic compounds or 

nitrogen oxides subject to PSD would be 

required to perform an ambient impact 

analysis, including the gathering of air 

quality data. 

Subpart X [Amended] 

■ 4. Section 51.906 is added to read as 

follows: 

§ 51.906 Redesignation to nonattainment 

following initial designations for the 8-hour 

NAAQS. 

For any area that is initially 

designated attainment or unclassifiable 

for the 8-hour NAAQS and that is 

subsequently redesignated to 

nonattainment for the 8-hour ozone 

NAAQS, any absolute, fixed date 

applicable in connection with the 

requirements of this part is extended by 

a period of time equal to the length of 

time between the effective date of the 

initial designation for the 8-hour 

NAAQS and the effective date of 

redesignation, except as otherwise 

provided in this subpart. 

■ 5. Section 51.908 is amended as 

follows: 

■ a. By revising the section heading. 

■ b. By designating the existing text as 

paragraph (d). 

■ c. By adding paragraphs (a), (b), and 

(c). 

§ 51.908 What modeling and attainment 

demonstration requirements apply for 

purposes of the 8-hour ozone NAAQS? 

(a) What is the attainment 

demonstration requirement for an area 

classified as moderate or higher under 

subpart 2 pursuant to § 51.903? An area 

classified as moderate or higher under 

§ 51.903 shall be subject to the 

attainment demonstration requirement 

applicable for that classification under 

section 182 of the Act, except such 

demonstration is due no later than 3 

years after the area’s designation for the 

8-hour NAAQS. 

(b) What is the attainment 

demonstration requirement for an area 

subject only to subpart 1 in accordance 

with § 51.902(b)? An area subject to 

§ 51.902(b) shall be subject to the 

attainment demonstration under section 

172(c)(1) of the Act and shall submit an 

attainment demonstration no later than 

3 years after the area’s designation for 

the 8-hour NAAQS. 

(c) What criteria must the attainment 

demonstration meet? An attainment 

demonstration due pursuant to 

paragraph (a) or (b) of this section must 

meet the requirements of § 51.112; the 

adequacy of an attainment 

demonstration shall be demonstrated by 

means of a photochemical grid model or 

any other analytical method determined 

by the Administrator, in the 

Administrator’s discretion, to be at least 

as effective. 

* * * * * 

■ 6. Section 51.910 is added to read as 

follows: 

§ 51.910 What requirements for reasonable 

further progress (RFP) under sections 

172(c)(2) and 182 apply for areas 

designated nonattainment for the 8-hour 

ozone NAAQS? 

(a) What are the general requirements 

for RFP for an area classified under 

subpart 2 pursuant to § 51.903? For an 

area classified under subpart 2 pursuant 

to § 51.903, the RFP requirements 

specified in section 182 of the Act for 

that area’s classification shall apply. 

(1) What is the content and timing of 

the RFP plan required under sections 

182(b)(1) and 182(c)(2)(B) of the Act for 

an area classified as moderate or higher 

pursuant to § 51.903 (subpart 2 

coverage)? 

(i) Moderate or Above Area. (A) 

Except as provided in paragraph 

(a)(1)(ii) of this section, for each area 

classified as moderate or higher, the 

State shall submit a SIP revision 

consistent with section 182(b)(1) of the 

Act no later than 3 years after 

designation for the 8-hour NAAQS for 

the area. The 6-year period referenced in 

section 182(b)(1) of the Act shall begin 

January 1 of the year following the year 

used for the baseline emissions 

inventory. 

(B) For each area classified as serious 

or higher, the State shall submit a SIP 

revision consistent with section 

182(c)(2)(B) of the Act no later than 3 

years after designation for the 8-hour 

NAAQS. The final increment of progress 

must be achieved no later than the 

attainment date for the area. 

(ii) Area with Approved 1-hour Ozone 

15 Percent VOC ROP Plan. An area 

classified as moderate or higher that has 

the same boundaries as an area, or is 

entirely composed of several areas or 

portions of areas, for which EPA fully 

approved a 15 percent plan for the 1-

hour NAAQS is considered to have met 

section 182(b)(1) of the Act for the 8-

hour NAAQS and instead: 

(A) If classified as moderate, the area 

is subject to RFP under section 172(c)(2) 

of the Act and shall submit no later than 

3 years after designation for the 8-hour 

NAAQS a SIP revision that meets the 

requirements of paragraph (b)(2) of this 

section, consistent with the attainment 

date established in the attainment 

demonstration SIP. 

(B) If classified as serious or higher, 

the area is subject to RFP under section 

182(c)(2)(B) of the Act and shall submit 

no later than 3 years after designation 

for the 8-hour NAAQS an RFP SIP 

providing for an average of 3 percent per 

year of VOC and/or NOX emissions 

reductions for 

(1) the 6-year period beginning 

January 1 of the year following the year 

used for the baseline emissions 

inventory; and 

(2) all remaining 3-year periods after 

the first 6-year period out to the area’s 

attainment date. 

(iii) Moderate and Above Area for 

Which Only a Portion Has an Approved 

1-hour Ozone 15 Percent VOC ROP 

Plan. An area classified as moderate or 

higher that contains one or more areas, 

or portions of areas, for which EPA fully 

approved a 15 percent plan for the 1-

hour NAAQS as well as areas for which 

EPA has not fully approved a 15 percent 

plan for the 1-hour NAAQS shall meet 

the requirements of either paragraph 

(a)(1)(iii)(A) or (B) below. 

(A) The State shall not distinguish 

between the portion of the area that 

previously met the 15 percent VOC 

reduction requirement and the portion 

of the area that did not, and 

(1) The State shall submit a SIP 

revision consistent with section 

182(b)(1) of the Act no later than 3 years 

after designation for the 8-hour NAAQS 

for the entire area. The 6-year period 

referenced in section 182(b)(1) of the 

Act shall begin January 1 of the year 

following the year used for the baseline 

emissions inventory. 

(2) For each area classified as serious 

or higher, the State shall submit a SIP 

revision consistent with section 

182(c)(2)(B) of the Act no later than 3 

years after designation for the 8-hour 

NAAQS. The final increment of progress 

must be achieved no later than the 

attainment date for the area. 

(B) The State shall treat the area as 

two parts, each with a separate RFP 

target as follows: 

(1) For the portion of the area without 

an approved 15 percent VOC RFP plan 

for the 1-hour standard, the State shall 

submit a SIP revision consistent with 

section 182(b)(1) of the Act no later than 

3 years after designation for the 8-hour 

NAAQS for the area. The 6-year period 

referenced in section 182(b)(1) of the 

Act shall begin January 1 of the year 

following the year used for the baseline 

emissions inventory. Emissions 

reductions to meet this requirement may 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71701 

come from anywhere within the 8-hour 

nonattainment area. 

(2) For the portion of the area with an 

approved 15 percent VOC plan for the 

1-hour NAAQS, the State shall submit a 

SIP as required under paragraph (b)(2)of 

this section. 

(2) What restrictions apply on the 

creditability of emission control 

measures for the RFP plans required 

under this section? Except as 

specifically provided in section 

182(b)(1)(C) and (D) and section 

182(c)(2)(B) of the Act, all SIP-approved 

or federally promulgated emissions 

reductions that occur after the baseline 

emissions inventory year are creditable 

for purposes of the RFP requirements in 

this section, provided the reductions 

meet the requirements for creditability, 

including the need to be enforceable, 

permanent, quantifiable and surplus, as 

described for purposes of State 

economic incentive programs in the 

requirements of § 51.493 of this part. 

(b) How does the RFP requirement of 

section 172(c)(2) of the Act apply to 

areas subject to that requirement? (1) 

An area subject to the RFP requirement 

of subpart 1 pursuant to § 51.902(b) or 

a moderate area subject to subpart 2 as 

covered in paragraphs (a)(1)(ii)(A) of 

this section shall meet the RFP 

requirements of section 172(c)(2) of the 

Act as provided in paragraph (b)(2) of 

this section. 

(2) The State shall submit no later 

than 3 years following designation for 

the 8-hour NAAQS a SIP providing for 

RFP consistent with the following: 

(i) For each area with an attainment 

demonstration requesting an attainment 

date of 5 years or less after designation 

for the 8-hour NAAQS, the attainment 

demonstration SIP shall require that all 

emissions reductions needed for 

attainment be implemented by the 

beginning of the attainment year ozone 

season. 

(ii) For each area with an attainment 

demonstration requesting an attainment 

date more than 5 years after designation 

for the 8-hour NAAQS, the attainment 

demonstration SIP— 

(A) Shall provide for a 15 percent 

emission reduction from the baseline 

year within 6 years after the baseline 

year. 

(B) May use either NOX or VOC 

emissions reductions (or both) to 

achieve the 15 percent emission 

reduction requirement. Use of NOX 

emissions reductions must meet the 

criteria in section 182(c)(2)(C) of the 

Act. 

(C) For each subsequent 3-year period 

out to the attainment date, the RFP SIP 

must provide for an additional 

increment of progress. The increment 

for each 3-year period must be a portion 

of the remaining emission reductions 

needed for attainment beyond those 

reductions achieved for the first 

increment of progress (e.g., beyond 2008 

for areas designated nonattainment in 

June 2004). Specifically, the amount of 

reductions needed for attainment is 

divided by the number of years needed 

for attainment after the first increment 

of progress in order to establish an 

‘‘annual increment.’’ For each 3-year 

period out to the attainment date, the 

area must achieve roughly the portion of 

reductions equivalent to three annual 

increments. 

(c) What method should a State use to 

calculate RFP targets? In calculating 

RFP targets for the initial 6-year period 

and the subsequent 3-year periods 

pursuant to this section, the State shall 

use the methods consistent with the 

requirements of sections 182(b)(1)(C) 

and (D) and 182(c)(2)(B) to properly 

account for non-creditable reductions. 

(d) What is the baseline emissions 

inventory for RFP plans? For the RFP 

plans required under this section, the 

baseline emissions inventory shall be 

determined at the time of designation of 

the area for the 8-hour NAAQS and 

shall be the emissions inventory for the 

most recent calendar year for which a 

complete inventory is required to be 

submitted to EPA under the provisions 

of subpart A of this part or a more recent 

alternative baseline emissions inventory 

provided the State demonstrates that the 

baseline inventory meets the CAA 

provisions for RFP and provides a 

rationale for why it is appropriate to use 

the alternative baseline year rather than 

2002 to comply with the CAA’s RFP 

provisions. 

■ 7. Section 51.912 is added to read as 

follows: 

§ 51.912 What requirements apply for 

reasonably available control technology 

(RACT) and reasonably available control 

measures (RACM) under the 8-hour 

NAAQS? 

(a) What is the RACT requirement for 

areas subject to subpart 2 in accordance 

with § 51.903? (1) For each area subject 

to subpart 2 in accordance with § 51.903 

of this part and classified moderate or 

higher, the State shall submit a SIP 

revision that meets the NOX and VOC 

RACT requirements in sections 

182(b)(2) and 182(f) of the Act. 

(2) The State shall submit the RACT 

SIP for each area no later than 27 

months after designation for the 8-hour 

ozone NAAQS. 

(3) The State shall provide for 

implementation of RACT as 

expeditiously as practicable but no later 

than the first ozone season or portion 

thereof which occurs 30 months after 

the RACT SIP is due. 

(b) How do the RACT provisions 

apply to a major stationary source? 

Volatile organic compounds and NOX 

are to be considered separately for 

purposes of determining whether a 

source is a major stationary source as 

defined in section 302 of the Act. 

(c) What is the RACT requirement for 

areas subject only to subpart 1 pursuant 

to § 51.902(b)? Areas subject only to 

subpart 1 pursuant to § 51.902(b) are 

subject to the RACT requirement 

specified in section 172(c)(1) of the Act. 

(1) For an area that submits an 

attainment demonstration that requests 

an attainment date 5 years or less after 

designation for the 8-hour NAAQS, the 

State shall meet the RACT requirement 

by submitting an attainment 

demonstration SIP demonstrating that 

the area has adopted all control 

measures necessary to demonstrate 

attainment as expeditiously as 

practicable. 

(2) For an area that submits an 

attainment demonstration that requests 

an attainment date more than 5 years 

after designation for the 8-hour NAAQS, 

the State shall submit a SIP consistent 

with the requirements of § 51.912(a) and 

(b) except the State shall submit the 

RACT SIP for each area with its request 

pursuant to Clean Air Act section 

172(a)(2)(A) to extend the attainment 

date. 

(d) What is the Reasonably Available 

Control Measures (RACM) requirement 

for areas designated nonattainment for 

the 8-hour NAAQS? For each 

nonattainment area required to submit 

an attainment demonstration under 

§ 51.908, the State shall submit with the 

attainment demonstration a SIP revision 

demonstrating that it has adopted all 

RACM necessary to demonstrate 

attainment as expeditiously as 

practicable and to meet any RFP 

requirements. 

■ 8. Section 51.913 is added to read as 

follows: 

§ 51.913 How do the section 182(f) NOX 

exemption provisions apply for the 8-hour 

NAAQS? 

(a) A person may petition the 

Administrator for an exemption from 

NOX obligations under section 182(f) for 

any area designated nonattainment for 

the 8-hour ozone NAAQS and for any 

area in a section 184 ozone transport 

region. 

(b) The petition must contain 

adequate documentation that the criteria 

in section 182(f) are met. 

(c) A section 182(f) NOX exemption 

granted for the 1-hour ozone standard 

does not relieve the area from any NOX 

71702 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

obligations under section 182(f) for the 

8-hour ozone standard. 

■ 9. Section 51.914 is added to read as 

follows: 

§ 51.914 What new source review 

requirements apply for 8-hour ozone 

nonattainment areas? 

The requirements for new source 

review for the 8-hour ozone standard are 

located in § 51.165 of this part. 

■ 10. Section 51.915 is added to read as 

follows: 

§ 51.915 What emissions inventory 

requirements apply under the 8-hour 

NAAQS? 

For each nonattainment area subject 

to subpart 2 in accordance with 

§ 51.903, the emissions inventory 

requirements in sections 182(a)(1) and 

182(a)(3) of the Act shall apply, and 

such SIP shall be due no later 2 years 

after designation. For each 

nonattainment area subject only to title 

I, part D, subpart 1 of the Act in 

accordance with § 51.902(b), the 

emissions inventory requirement in 

section 172(c)(3) of the Act shall apply, 

and an emission inventory SIP shall be 

due no later 3 years after designation. 

For purposes of defining the data 

elements for the emissions inventories 

for these areas, the ozone-relevant data 

element requirements under 40 CFR 

part 51 subpart A apply. 

■ 11. Section 51.916 is added to read as 

follows: 

§ 51.916 What are the requirements for an 

Ozone Transport Region under the 8-hour 

NAAQS? 

(a) In General. Sections 176A and 184 

of the Act apply for purposes of the 8-

hour NAAQS. 

(b) RACT Requirements for Certain 

Portions of an Ozone Transport Region. 

(1) The State shall submit a SIP 

revision that meets the RACT 

requirements of section 184 of the Act 

for each area that is located in an ozone 

transport region and that is— 

(i) Designated as attainment or 

unclassifiable for the 8-hour standard; 

(ii) Designated nonattainment and 

classified as marginal for the 8-hour 

standard; or 

(iii) Designated nonattainment and 

covered solely under subpart 1 of part 

D, title I of the CAA for the 8-hour 

standard. 

(2) The State is required to submit the 

RACT revision no later than September 

16, 2006 and shall provide for 

implementation of RACT as 

expeditiously as practicable but no later 

than May 1, 2009. 

■ 12. Section 51.917 is added to read as 

follows: 

§ 51.917 What is the effective date of 

designation for the Las Vegas, NV, 8-hour 

ozone nonattainment area? 

The Las Vegas, NV, 8-hour ozone 

nonattainment area (designated on 

September 17, 2004 (69 FR 55956)) shall 

be treated as having an effective date of 

designation of June 15, 2004, for 

purposes of calculating SIP submission 

deadlines, attainment dates, or any 

other deadline under this subpart. 

■ 13. Section 51.918 is added to read as 

follows: 

§ 51.918 Can any SIP planning 

requirements be suspended in 8-hour 

ozone nonattainment areas that have air 

quality data that meets the NAAQS? 

Upon a determination by EPA that an 

area designated nonattainment for the 8-

hour ozone NAAQS has attained the 

standard, the requirements for such area 

to submit attainment demonstrations 

and associated reasonably available 

control measures, reasonable further 

progress plans, contingency measures, 

and other planning SIPs related to 

attainment of the 8-hour ozone NAAQS 

shall be suspended until such time as: 

the area is redesignated to attainment, at 

which time the requirements no longer 

apply; or EPA determines that the area 

has violated the 8-hour ozone NAAQS. 

Appendix S to Part 51—[Amended] 

■ Appendix S to part 51 is amended as 

follows: 

■ 1. By revising the second sentence of 

paragraph I and the the fourth sentence 

of paragraph. 

■ 2. By revising paragraph II.A.4(i)(a) 

and (b). 

■ 3. By adding paragraph II.A.4(i)(c). 

■ 4. By revising paragraph II.A.4(ii). 

■ 5. By revising paragraph II.A.5 (ii). 

■ 6. By adding paragraphs II.A.5(iv) 

through (v). 

■ 7. By revising paragraph II.A.6(v)(c). 

■ 8. By revising the table in paragraph 

II.A.10(i). 

■ 9. By adding paragraphs II.A.10(ii) 

through (v). 

■ 10. By amending paragraph IV.A 

Condition 1 by removing footnote 5. 

■ 11. By amending paragraph IV.A 

Condition 3 by redesignating footnote 6 

as footnote 5 and by redesignating 

footnote 7 as footnote 6. 

■ 12. By amending paragraph IV.A 

Condition 4 by removing footnote 8. 

■ 13. By revising paragraph IV.C.3. 

■ 14. By revising paragraph IV.D. 

■ 15. By revising paragraph IV.E. 

■ 16. By adding paragraphs IV.G 

through H. 

■ 17. By amending paragraph V.A by 

redesignating footnote 10 as footnote 7. 

■ 18. By revising the last sentence of 

paragraph VI and adding paragraphs 

VI.A, VI.B and VI.C. 

The revisions and additions read as 

follows: 

Appendix S to Part 51—Emission Offset 

Interpretative Ruling 

I. 

* * * A major new source or major 

modification which would locate in any area 

designated under section 107(d) of the Act as 

attainment or unclassifiable for ozone that is 

located in an ozone transport region or which 

would locate in an area designated in 40 CFR 

part 81, subpart C, as nonattainment for a 

pollutant for which the source or 

modification would be major may be allowed 

to construct only if the stringent conditions 

set forth below are met. * * * 

For each area designated as exceeding a 

NAAQS (nonattainment area) under 40 CFR 

part 81, subpart C, or for any area designated 

under section 107(d) of the Act as attainment 

or unclassifiable for ozone that is located in 

an ozone transport region, this Interpretative 

Ruling will be superseded after June 30, 1979 

(a) by preconstruction review provisions of 

the revised SIP, if the SIP meets the 

requirements of Part D, Title 1, of the Act; or 

(b) by a prohibition on construction under 

the applicable SIP and section 110(a)(2)(I) of 

the Act, if the SIP does not meet the 

requirements of Part D. * * * 

* * * * * 

II. * * * 

A. * * *


4.(i) * * *


(a) Any stationary source of air pollutants 

which emits, or has the potential to emit, 100 

tons per year or more of any pollutant subject 

to regulation under the Act, except that lower 

emissions thresholds shall apply in areas 

subject to subpart 2, subpart 3, or subpart 4 

of part D, title I of the Act, according to 

paragraphs II.A.4(i)(a)(1) through (6) of this 

Ruling. 

(1) 50 tons per year of volatile organic 

compounds in any serious ozone 

nonattainment area. 

(2) 50 tons per year of volatile organic 

compounds in an area within an ozone 

transport region, except for any severe or 

extreme ozone nonattainment area. 

(3) 25 tons per year of volatile organic 

compounds in any severe ozone 

nonattainment area. 

(4) 10 tons per year of volatile organic 

compounds in any extreme ozone 

nonattainment area. 

(5) 50 tons per year of carbon monoxide in 

any serious nonattainment area for carbon 

monoxide, where stationary sources 

contribute significantly to carbon monoxide 

levels in the area (as determined under rules 

issued by the Administrator) 

(6) 70 tons per year of PM–10 in any 

serious nonattainment area for PM–10; 

(b) For the purposes of applying the 

requirements of paragraph IV.H of this Ruling 

to stationary sources of nitrogen oxides 

located in an ozone nonattainment area or in 

an ozone transport region, any stationary 

source which emits, or has the potential to 

emit, 100 tons per year or more of nitrogen 

oxides emissions, except that the emission 

thresholds in paragraphs II.A.4(i)(b)(1) 

through (6) of this Ruling apply in areas 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71703 

subject to subpart 2 of part D, title I of the 

Act. 

(1) 100 tons per year or more of nitrogen 

oxides in any ozone nonattainment area 

classified as marginal or moderate. 

(2) 100 tons per year or more of nitrogen 

oxides in any ozone nonattainment area 

classified as a transitional, submarginal, or 

incomplete or no data area, when such area 

is located in an ozone transport region. 

(3) 100 tons per year or more of nitrogen 

oxides in any area designated under section 

107(d) of the Act as attainment or 

unclassifiable for ozone that is located in an 

ozone transport region. 

(4) 50 tons per year or more of nitrogen 

oxides in any serious nonattainment area for 

ozone. 

(5) 25 tons per year or more of nitrogen 

oxides in any severe nonattainment area for 

ozone. 

(6) 10 tons per year or more of nitrogen 

oxides in any extreme nonattainment area for 

ozone; or 

(c) Any physical change that would occur 

at a stationary source not qualifying under 

paragraph II.A.4(i)(a) or (b) of this Ruling as 

a major stationary source, if the change 

would constitute a major stationary source by 

itself. 

(ii) A major stationary source that is major 

for volatile organic compounds or nitrogen 

oxides is major for ozone. 

* * * * * 

5. * * * 

(ii) Any net emission increase that is 

considered significant for volatile organic 

compounds shall be considered significant 

for ozone. 

* * * * * 

(iv) For the purpose of applying the 

requirements of paragraph IV.H of this Ruling 

to modifications at major stationary sources 

of nitrogen oxides located in ozone 

nonattainment areas or in ozone transport 

regions, whether or not subject with respect 

to ozone to subpart 2, part D, title I of the 

Act, any significant net emissions increase of 

nitrogen oxides is considered significant for 

ozone. 

(v) Any physical change in, or change in 

the method of operation of, a major stationary 

source of volatile organic compounds that 

results in any increase in emissions of 

volatile organic compounds from any 

discrete operation, emissions unit, or other 

pollutant emitting activity at the source shall 

be considered a significant net emissions 

increase and a major modification for ozone, 

if the major stationary source is located in an 

extreme ozone nonattainment area that is 

subject to subpart 2, part D, title I of the Act. 

6. * * * 

(v) * * * 

(c) The reviewing authority has not relied 

on it in issuing any permit under regulations 

approved pursuant to 40 CFR 51.165; 

* * * * * 

10. (i) * * * 

Pollutant and Emissions Rate 

Carbon monoxide: 100 tons per year (tpy) 

Nitrogen oxides: 40 tpy 

Sulfur dioxide: 40 tpy 

Ozone: 40 tpy of volatile organic compounds 

or NOX 

Lead: 0.6 tpy 

Particulate matter: 25 tpy of particulate 

matter emissions 

PM–10: 15 tpy PM–10 

(ii) Notwithstanding the significant 

emissions rate for ozone in paragraph 

II.A.10(i) of this Ruling, significant means, in 

reference to an emissions increase or a net 

emissions increase, any increase in actual 

emissions of volatile organic compounds that 

would result from any physical change in, or 

change in the method of operation of, a major 

stationary source locating in a serious or 

severe ozone nonattainment area that is 

subject to subpart 2, part D, title I of the Act, 

if such emissions increase of volatile organic 

compounds exceeds 25 tons per year. 

(iii) For the purposes of applying the 

requirements of paragraph IV.H of this Ruling 

to modifications at major stationary sources 

of nitrogen oxides located in an ozone 

nonattainment area or in an ozone transport 

region, the significant emission rates and 

other requirements for volatile organic 

compounds in paragraphs II.A.10(i), (ii), and 

(v) of this Ruling shall apply to nitrogen 

oxides emissions. 

(iv) Notwithstanding the significant 

emissions rate for carbon monoxide under 

paragraph II.A.10(i) of this Ruling, significant 

means, in reference to an emissions increase 

or a net emissions increase, any increase in 

actual emissions of carbon monoxide that 

would result from any physical change in, or 

change in the method of operation of, a major 

stationary source in a serious nonattainment 

area for carbon monoxide if such increase 

equals or exceeds 50 tons per year, provided 

the Administrator has determined that 

stationary sources contribute significantly to 

carbon monoxide levels in that area. 

(v) Notwithstanding the significant 

emissions rates for ozone under paragraphs 

II.A.10(i) and (ii) of this Ruling, any increase 

in actual emissions of volatile organic 

compounds from any emissions unit at a 

major stationary source of volatile organic 

compounds located in an extreme ozone 

nonattainment area that is subject to subpart 

2, part D, title I of the Act shall be considered 

a significant net emissions increase. 

* * * * * 

IV. * * * 

C. * * * 

3. Emission Reduction Credits from 

Shutdowns and Curtailments. 

(i) Emissions reductions achieved by 

shutting down an existing source or 

curtailing production or operating hours may 

be generally credited for offsets if they meet 

the requirements in paragraphs IV.C.3.i.1. 

through 2 of this section. 

(1) Such reductions are surplus, 

permanent, quantifiable, and federally 

enforceable. 

(2) The shutdown or curtailment occurred 

after the last day of the base year for the SIP 

planning process. For purposes of this 

paragraph, a reviewing authority may choose 

to consider a prior shutdown or curtailment 

to have occurred after the last day of the base 

year if the projected emissions inventory 

used to develop the attainment 

demonstration explicitly includes the 

emissions from such previously shutdown or 

curtailed emission units. However, in no 

event may credit be given for shutdowns that 

occurred before August 7, 1977. 

(ii) Emissions reductions achieved by 

shutting down an existing source or 

curtailing production or operating hours and 

that do not meet the requirements in 

paragraphs IV.C.3.i.1. through 2 of this 

section may be generally credited only if: 

(1) The shutdown or curtailment occurred 

on or after the date the new source permit 

application is filed; or 

(2) The applicant can establish that the 

proposed new source is a replacement for the 

shutdown or curtailed source, and the 

emissions reductions achieved by the 

shutdown or curtailment met the 

requirements of paragraphs IV.C.3.i.1. 

through 2 of this section. 

D. Location of offsetting emissions. The 

owner or operator of a new or modified major 

stationary source may comply with any offset 

requirement in effect under this Ruling for 

increased emissions of any air pollutant only 

by obtaining emissions reductions of such air 

pollutant from the same source or other 

sources in the same nonattainment area, 

except that the reviewing authority may 

allow the owner or operator of a source to 

obtain such emissions reductions in another 

nonattainment area if the conditions in 

IV.D.1 and 2 are met. 

1. The other area has an equal or higher 

nonattainment classification than the area in 

which the source is located. 

2. Emissions from such other area 

contribute to a violation of the national 

ambient air quality standard in the 

nonattainment area in which the source is 

located. 

E. Reasonable further progress. Permits to 

construct and operate may be issued if the 

reviewing authority determines that, by the 

time the source is to commence operation, 

sufficient offsetting emissions reductions 

have been obtained, such that total allowable 

emissions from existing sources in the region, 

from new or modified sources which are not 

major emitting facilities, and from the 

proposed source will be sufficiently less than 

total emissions from existing sources prior to 

the application for such permit to construct 

or modify so as to represent (when 

considered together with the plan provisions 

required under CAA section 172) reasonable 

further progress (as defined in CAA section 

171). 

* * * * * 

G. Offset Ratios. 1. In meeting the 

emissions offset requirements of paragraph 

IV.A, Condition 3 of this Ruling for ozone 

nonattainment areas that are subject to 

subpart 2, part D, title I of the Act, the ratio 

of total actual emissions reductions of VOC 

to the emissions increase of VOC shall be as 

follows: 

(i) In any marginal nonattainment area for 

ozone—at least 1.1:1; 

(ii) In any moderate nonattainment area for 

ozone—at least 1.15:1; 

(iii) In any serious nonattainment area for 

ozone—at least 1.2:1; 

(iv) In any severe nonattainment area for 

ozone—at least 1.3:1 (except that the ratio 

may be at least 1.2:1 if the State also requires 

all existing major sources in such 

nonattainment area to use BACT for the 

control of VOC); and 

71704 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

(v) In any extreme nonattainment area for 

ozone—at least 1.5:1 (except that the ratio 

may be at least 1.2:1 if the State also requires 

all existing major sources in such 

nonattainment area to use BACT for the 

control of VOC); and 

2. Notwithstanding the requirements of 

paragraph IV.G.1 of this Ruling for meeting 

the requirements of paragraph IV.A, 

Condition 3 of this Ruling, the ratio of total 

actual emissions reductions of VOC to the 

emissions increase of VOC shall be at least 

1.15:1 for all areas within an ozone transport 

region that is subject to subpart 2, part D, title 

I of the Act, except for serious, severe, and 

extreme ozone nonattainment areas that are 

subject to subpart 2, part D, title I of the Act. 

3. In meeting the emissions offset 

requirements of paragraph IV.A, Condition 3 

of this Ruling for ozone nonattainment areas 

that are subject to subpart 1, part D, title I of 

the Act (but are not subject to subpart 2, part 

D, title I of the Act, including 8-hour ozone 

nonattainment areas subject to 40 CFR 

51.902(b)), the ratio of total actual emissions 

reductions of VOC to the emissions increase 

of VOC shall be at least 1:1. 

H. Additional provisions for emissions of 

nitrogen oxides in ozone transport regions 

and nonattainment areas. The requirements 

of this Ruling applicable to major stationary 

sources and major modifications of volatile 

organic compounds shall apply to nitrogen 

oxides emissions from major stationary 

sources and major modifications of nitrogen 

oxides in an ozone transport region or in any 

ozone nonattainment area, except in ozone 

nonattainment areas where the Administrator 

has granted a NOX waiver applying the 

standards set forth under 182(f) and the 

waiver continues to apply. 

* * * * * 

VI. Policy Where Attainment Dates Have Not 

Passed 

* * * In such cases, a new source locating 

in an area designated in 40 CFR 81.300 et 

seq. as nonattainment (or, where section III 

of this Ruling is applicable, a new source that 

would cause or contribute to a NAAQS 

violation) may be exempt from the 

Conditions of section IV.A if the conditions 

in paragraphs VI.A through C are met. 

A. The new source meets the applicable 

SIP emission limitations. 

B. The new source will not interfere with 

the attainment date specified in the SIP 

under section 110 of the Act. 

C. The Administrator has determined that 

conditions A and B of this section are 

satisfied and such determination is published 

in the Federal Register. 

PART 52—[Amended] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart A—[Amended] 

■ 2. Section 52.21 is amended as 

follows: 

■ a. By revising paragraph (b)(1)(ii). 

■ b. By revising paragraph (b)(2)(ii). 

■ c. By revising the entry for ‘‘ozone’’ in 

list to paragraph (b)(23)(i). 

■ d. By revising paragraph (b)(50)(i). 

■ e. By revising the second sentence of 

footnote 1 to paragraph (i)(5)(i). 

§ 52.21 Prevention of significant 

deterioration of air quality. 

* * * * * 

(b) * * * 

(1) * * * 

(ii) A major source that is major for 

volatile organic compounds or NOX 

shall be considered major for ozone. 

* * * * * 

(2) * * * 

(ii) Any significant emissions increase 

(as defined at paragraph (b)(40) of this 

section) from any emissions units or net 

emissions increase (as defined in 

paragraph (b)(3) of this section) at a 

major stationary source that is 

significant for volatile organic 

compounds or NOX shall be considered 

significant for ozone. 

* * * * * 

(23)(i) * * * 

* * * * * 

Ozone: 40 tpy of volatile organic 

compounds or NOX 

* * * * * 

(50) * * * 

(i) Any pollutant for which a national 

ambient air quality standard has been 

promulgated and any constituents or 

precursors for such pollutants identified 

by the Administrator (e.g., volatile 

organic compounds and NOX are 

precursors for ozone); 

* * * * * 

(i) * * * 

(5) * * * 

(i) * * * 

1 No de minimis air quality level is 

provided for ozone. However, any net 

emissions increase of 100 tons per year or 

more of volatile organic compounds or 

nitrogen oxides subject to PSD would be 

required to perform an ambient impact 

analysis, including the gathering of ambient 

air quality data. 

* * * * * 

■ 3. Section 52.24 is revised to read as 

follows: 

§ 52.24 Statutory restriction on new 

sources. 

(a) Any area designated 

nonattainment pursuant to section 

107(d) of the Act to which, immediately 

prior to the enactment of the 

Amendments to the Act of 1990 

(November 15, 1990), a prohibition of 

construction or modification of major 

stationary sources was applied, shall 

retain that prohibition if such 

prohibition was applied by virtue of a 

finding of the Administrator that the 

State containing such an area: 

(1) Failed to submit an 

implementation plan meeting the 

requirements of an approvable new 

source review permitting program; or 

(2) Failed to submit an 

implementation plan that provided for 

timely attainment of the national 

ambient air quality standard for sulfur 

dioxide by December 31, 1982. This 

prohibition shall apply until the 

Administrator approves a plan for such 

area as meeting the applicable 

requirements of part D of title I of the 

Act as amended (NSR permitting 

requirements) or subpart 5 of part D of 

title I of the Act as amended (relating to 

attainment of the national ambient air 

quality standards for sulfur dioxide), as 

applicable. 

(b) Permits to construct and operate as 

required by permit programs under 

section 172(c)(5) of the Act may not be 

issued for new or modified major 

stationary sources proposing to locate in 

nonattainment areas or areas in a 

transport region where the 

Administrator has determined that the 

applicable implementation plan is not 

being adequately implemented for the 

nonattainment area or transport region 

in which the proposed source is to be 

constructed or modified in accordance 

with the requirements of part D of title 

I of the Act. 

(c) Whenever, on the basis of any 

information, the Administrator finds 

that a State is not in compliance with 

any requirement or prohibition of the 

Act relating to the construction of new 

sources or the modification of existing 

sources, the Administrator may issue an 

order under section 113(a)(5) of the Act 

prohibiting the construction or 

modification of any major stationary 

source in any area to which such 

requirement applies. 

(d) The restrictions in paragraphs (a) 

and (b) of this section apply only to 

major stationary sources of emissions 

that cause or contribute to 

concentrations of the pollutant (or 

precursors, as applicable) for which the 

transport region or nonattainment area 

was designated such, and for which the 

applicable implementation plan is not 

being carried out in accordance with, or 

does not meet, the requirements of part 

D of title I of the Act. 

(e) For any transport region or any 

area designated as nonattainment for 

any national ambient air quality 

standard, the restrictions in paragraphs 

(a) and (b) of this section shall apply to 

any major stationary source or major 

modification that would be major for the 

pollutant (or precursors, where 

applicable) for which the area is 

designated nonattainment or a transport 

region, if the stationary source or major 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71705 

modification would be constructed 

anywhere in the designated 

nonattainment area or transport region. 

(f) The provisions in § 51.165 of this 

chapter shall apply in interpreting the 

terms under this section. 

(g) At such time that a particular 

source or modification becomes a major 

stationary source or major modification 

solely by virtue of a relaxation in any 

enforceable limitation which was 

established after August 7, 1980, on the 

capacity of the source or modification 

otherwise to emit a pollutant, such as a 

restriction on hours of operation, then: 

(1) If the construction moratorium 

imposed pursuant to this section is still 

in effect for the nonattainment area or 

transport region in which the source or 

modification is located, then the permit 

may not be so revised; or 

(2) If the construction moratorium is 

no longer in effect in that area, then the 

requirements of § 51.165 of this chapter 

shall apply to the source or modification 

as though construction had not yet 

commenced on the source or 

modification. 

(h) This section does not apply to 

major stationary sources or major 

modifications locating in a clearly 

defined part of a nonattainment area or 

transport region (such as a political 

subdivision of a State), where EPA finds 

that a plan which meets the 

requirements of part D of title I of the 

Act is in effect and is being 

implemented in that part. 

(i) [Reserved] 

(j) [Reserved] 

(k) For an area designated as 

nonattainment after July 1, 1979, the 

Emission Offset Interpretative Ruling, 

40 CFR part 51, appendix S shall govern 

permits to construct and operate applied 

for during the period between the date 

of designation as nonattainment and the 

date the NSR permit program meeting 

the requirements of part D is approved. 

The Emission Offset Interpretative 

Ruling, 40 CFR part 51, appendix S, 

shall also govern permits to construct 

and operate applied for in any area 

designated under section 107(d) of the 

CAA as attainment or unclassifiable for 

ozone that is located in an ozone 

transport region prior to the date the 

NSR permitting program meeting the 

requirements of part D is approved. 

PART 80—[AMENDED] 

■ 1. The authority citation for part 80 

continues to read as follows: 

Authority: 42 U.S.C. 7414, 7545, and 

7601(a). 

Subpart D—[Amended] 

■ 2. Section 80.70 is amended as 

follows: 

■ a. In the second sentence of paragraph 

(m) introductory text remove the words 

‘‘included in’’ and add in their place the 

words ‘‘identified pursuant to’’. 

■ b. In the third sentence of paragraph 

(m) introductory text remove the words 

‘‘listed in’’ and add in their place the 

words ‘‘identified pursuant to’’. 

■ c. By revising paragraphs (m)(1) and 

(2). 

§ 80.70 Covered areas. 

* * * * * 

(m) * * * 

(1) An area identified as a covered 

area pursuant to this paragraph (m), 

whose classification as a severe 

nonattainment area under the 1-hour 

ozone NAAQS is removed as a result of 

removal of the 1-hour ozone NAAQS, 

remains a covered area as follows: 

(i) Prior to redesignation as attainment 

for the 8-hour ozone NAAQS the area 

remains a covered area; 

(ii) After redesignation as attainment 

for the 8-hour ozone NAAQS— 

[RESERVED]. 

(2) An area identified as a covered 

area pursuant to this paragraph (m), 

whose classification as a severe 

nonattainment area under the 1-hour 

ozone NAAQS is removed as a result of 

redesignation to attainment for the 1-

hour ozone NAAQS, remains a covered 

area as follows: [RESERVED] 

[FR Doc. 05–22698 Filed 11–28–05; 8:45 am] 

BILLING CODE 6560–50–P