Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23951

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

Designated area 

Designation Category/classification 

Date 1 Type Date 1 Type 

San Lorenzo Municipio 

San Sebastia ́n Municipio 

Santa Isabel Municipio 

Toa Alta Municipio 

Toa Baja County 

Trujillo Alto Municipio 

Utuado Municipio 

Vega Alta Municipio 

Vega Baja Municipio 

Vieques Municipio 

Villalba Municipio 

Yabucoa Municipio 

Yauco Municipio 

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

■ 57. In § 81.356, the table entitled 

‘‘Virgin Islands—Ozone (8-Hour 

Standard)’’ is added to read as follows:

§ 81.356 Virgin Islands.

* * * * *

VIRGIN ISLANDS—OZONE (8-HOUR STANDARD) 

Designated area 

Designation Category/classification 

Date 1 Type Date 1 Type 

Statewide .............................................................................. .................... Unclassifiable/Attainment.

St. Croix 

St. John 

St. Thomas 

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

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

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 50, 51 and 81 

[OAR 2003–0079, FRL–7651–7] 

RIN 2060–AJ99 

Final Rule To Implement the 8-Hour 

Ozone National Ambient Air Quality 

Standard—Phase 1

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: In this document, EPA is 

taking final action on key elements of 

the program to implement the 8-hour 

ozone national ambient air quality 

standard (NAAQS or standard). This 

final rule addresses the following topics: 

classifications for the 8-hour NAAQS; 

revocation of the 1-hour NAAQS (i.e., 

when the 1-hour NAAQS will no longer 

apply); how anti-backsliding principles 

will ensure continued progress toward 

attainment of the 8-hour ozone NAAQS; 

attainment dates; and the timing of 

emissions reductions needed for 

attainment. We are issuing this rule so 

that States and Tribes will know how 

we plan to classify areas and transition 

from implementation of the 1-hour 

NAAQS to implementation of the 8-

hour NAAQS. The intended effect of the 

rule is to provide certainty to States and 

Tribes regarding classifications for the 

8-hour NAAQS and their continued 

obligations with respect to existing 

requirements. This document is Phase 1 

of the program to implement the 8-hour 

ozone NAAQS. We plan to issue a 

second rule, Phase 2, within the next 

several months which will address the 

remaining 8-hour implementation 

issues, e.g., requirements for reasonable 

further progress (RFP), requirements for 

modeling and attainment 

demonstrations, and requirements for 

reasonably available control measures 

(RACM) and reasonably available 

control technology (RACT).

DATES: Effective Date: This rule is 

effective on June 15, 2004.

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. OAR–2003–0079. All documents in 

the docket are listed in the EDOCKET 

index at http://www.epa.gov/edocket.

Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in EDOCKET or in hard 

copy at the EPA Docket Center (Air 

Docket), EPA/DC, EPA West, Room 

B102, 1301 Constitution Ave., NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Office of Air and Radiation Docket 

and Information Center is (202) 566–

1742. 

In addition, we have placed a variety 

of earlier materials regarding 

implementation of the 8-hour ozone 

NAAQS on the Web site: http://

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

o3imp8hr.

FOR FURTHER INFORMATION CONTACT: Mr. 

John Silvasi, Office of Air Quality 

23952 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

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) 54l-0824 or by 

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

SUPPLEMENTARY INFORMATION:

Outline 

I. When Did EPA Propose this Rule? 

II. What is EPA’s Schedule for Taking Final 

Action on the Proposal? 

III. What is Included in this Rule? 

IV. In Short, what does this Final Rule 

Contain? 

A. How will EPA reconcile the 

classification provisions of subparts 1 

and 2? How will EPA classify 

nonattainment areas for the 8-hour 

standard? 

B. How will EPA treat attainment dates for 

the 8-Hour ozone standard? 

C. How will EPA implement the transition 

from the 1-hour to the 8-hour standard 

in a way to ensure continued momentum 

in States’ efforts toward cleaner air? 

D. What is the required timeframe for 

obtaining emissions reductions to ensure 

attainment by the attainment date? 

V. EPA’s Final Rule. 

A. How will EPA reconcile the 

classification provisions of subparts 1 

and 2? How will EPA classify 

nonattainment areas for the 8-hour 

NAAQS? 

1. Background. 

a. Statutory framework and Supreme Court 

decision. 

b. EPA’s proposed rule and notice 

reopening the comment period. 

2. Summary of final rule 

a. Why did EPA select Option 2? 

(i) Why will Option 2 best accomplish the 

policy goals of EPA? 

(ii) How is Option 2 Consistent with the 

CAA as Interpreted by the Supreme 

Court? 

3. Comments and Responses. 

4. Under the final classification approach, 

how will EPA classify subpart 1 areas? 

a. Background. 

b. Summary of Final Rule. 

c. Comments and Responses. 

5. Will EPA adjust classifications? 

a. Background. 

b. Summary of Final Rule. 

c. Comments and Responses. 

6. Proposed Incentive Feature. 

a. Background. 

b. Summary of Final Rule. 

c. Comments and Responses. 

B. How will EPA treat attainment dates for 

the 8-hour ozone NAAQS? 

1. Background. 

2. Summary of final rule. 

3. Comments and Responses. 

4. How Will EPA Address the Provision 

Regarding 1-Year Extensions? 

a. Background.

b. Summary of final rule. 

c. Comments and Response 

C. How will EPA implement the transition 

from the 1-hour to the 8-hour NAAQS in 

a way to ensure continued momentum in 

States’ efforts toward cleaner air? 

1. When will EPA revoke the 1-hour 

NAAQS? 

a. Background. 

b. Summary of Final Rule. 

c. Comments and Responses 

2. What requirements that applied in an 

area for the 1-hour NAAQS continue to 

apply after revocation of the 1-hour 

NAAQS for that area? 

a. Background. 

b. Summary of Final Rule. 

c. Section 51.905(a)(1): 8-Hour NAAQS 

Nonattainment/1-Hour NAAQS 

Nonattainment 

(i) Mandatory Control Measures. 

(ii) Discretionary control measures. 

(iii) Measures to address growth. 

(iv) Planning SIPs. 

d. Section 51.905(a)(2): 8-Hour NAAQS 

Nonattainment/1-Hour NAAQS 

Maintenance 

(i) Mandatory Control Measures. 

(ii) Discretionary Control measures. 

(iii) Measures to address growth. 

(iv) Planning SIPs. 

e. Section 51.905(a)(3): 8-Hour NAAQS 

Attainment /1-Hour NAAQS 

Nonattainment 

(i) Mandatory control obligations. 

(ii) Discretionary control obligations. 

(iii) Measures to address growth. 

(iv) Planning SIPs. 

(v) Maintenance Plans for the 8-hour 

NAAQS. 

f. Section 51.905(a)(4): 8-Hour NAAQS 

Attainment/1-Hour NAAQS 

Maintenance 

(i) Obligations in an approved SIP. 

(ii) Maintenance plan. 

3. For how long do these obligations 

continue to apply? 

a. Background. 

b. Summary of Final Rule. 

c. Comments and Responses. 

4. Which portions of an area designated for 

the 8-hour NAAQS remain subject to the 

1-hour NAAQS obligations? 

a. Background. 

b. Summary of Final Rule. 

c. Comments and Responses. 

5. What obligations that applied for the 1-

hour NAAQS will no longer apply after 

revocation of the 1-hour NAAQS for an 

area? 

a. Background. 

b. Summary of Final Rule. 

c. Comments and Responses. 

(i) Comments on June 2, 2003 proposal: 

(ii) Comments on draft regulatory text. 

6. What is the continued applicability of 

the NOX SIP Call after revocation of the 

1-hour NAAQS? 

a. Background. 

b. Summary of Final Rule. 

c. Comments and Responses. 

(i) Comments on the June 2, 2003 proposal: 

D. What is the required timeframe for 

obtaining emissions reductions to ensure 

attainment by the attainment date? 

1. Background. 

2. Summary of final rule. 

3. Comments and Responses 

E. Conformity Under the 8-Hour Ozone 

Standard 

F. Comments on Other Issues 

1. Designations of nonattainment and 

attainment areas: 

2. Early Action Compacts (EACs): 

3. Health and environmental concerns: 

4. Clarity and understandability of 

proposed rule: 

5. Regulatory text: 

6. Requests for Extension of Comment 

Periods: 

G. Other Considerations 

1. What happens if a source is in the 

process of PSD permitting at the time 

that the area in which it is located is 

designated as nonattainment for the 8-

hour ozone NAAQS? 

H. EPA’s Final Action. 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children from Environmental Health and 

Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Petitions for Judicial Review 

M. Determination Under Section 307(d)

I. When Did EPA Propose This Rule? 

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

published a proposed rule to implement 

the 8-hour ozone NAAQS. The proposal 

addressed a number of implementation 

issues, including the two core 

implementation issues addressed in this 

final rule, e.g., how the Clean Air Act 

(CAA or Act) classification provisions 

will apply for the 8-hour ozone NAAQS 

and the transition from the 1-hour 

NAAQS to the 8-hour NAAQS, 

including when the 1-hour NAAQS will 

be revoked and anti-backsliding 

principles. We proposed one or more 

options for each issue addressed in the 

proposal. In addition, we included two 

possible frameworks to implement the 

8-hour ozone NAAQS. These 

frameworks were complete 

implementation strategies comprised of 

one option for each implementation 

issue addressed in the proposed rule. 

The following principles guided us in 

the development of the underlying 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23953

1Section 107(d) of the CAA sets forth a schedule 

for designations following the promulgation of a 

new or revised NAAQS. The Transportation Equity 

Act for the Twenty-first Century (TEA–21) revised 

the deadline to promulgate nonattainment 

designations to provide an additional year (to July 

2000) but HR3645 (EPA’s appropriation bill in 

2000) restricted EPA’s authority to spend money to 

designate areas until June 2001 or the date of the 

Supreme Court ruling in the litigation challenging 

the NAAQS, whichever came first.

2American Lung Association v. EPA (D.D.C. No. 

1:02CV02239).

3We use the term ‘‘revocation’’ as shorthand for 

a determination under 40 CFR 50.9(b) that the 1-

hour NAAQS no longer applies to one or more 

areas.

options and the frameworks to 

implement the 8-hour ozone NAAQS in 

the proposed rule: to protect public 

health, provide incentives for 

expeditious attainment of the 8-hour 

ozone NAAQS and avoid incentives for 

delay; to provide reasonable but 

expeditious attainment deadlines; to 

establish a basic, straightforward 

structure that could be communicated 

easily; to provide flexibility to States 

and EPA on implementation approaches 

and control measures while ensuring 

that the implementation strategy is 

supported by the CAA; to emphasize 

national and regional measures to help 

areas come into attainment and, where 

possible, reduce the need for those local 

controls that are more expensive than 

national and regional measures; and to 

provide a smooth transition from 

implementation of the 1-hour ozone 

NAAQS to implementation of the 8-

hour ozone NAAQS. An additional goal 

was to clarify the role of Tribes in 

implementing the 8-hour ozone 

NAAQS. Section 301(d) of the CAA 

recognizes that the American Indian 

Tribal governments are generally the 

appropriate authority to implement the 

CAA in Indian country. As discussed in 

the Tribal Authority Rule (TAR) (63 FR 

7262, February 12, 1998, and 59 FR 

43960–43961, August 25, 1994), it is 

appropriate to treat Tribes in the same 

manner as States. Therefore, when we 

discuss the role of the State in 

implementing this rule we are also 

referring to the Tribes. Please refer to 

the proposed rule (68 FR 32802, June 2, 

2003) for a detailed discussion and 

background information on the 8-hour 

ozone problem and EPA’s strategy for 

addressing it, the 8-hour ozone NAAQS 

and associated litigation, and the 

stakeholder process for gathering input 

into this effort, among other topics.

On August 6, 2002 (68 FR 46536), we 

published a notice of availability of the 

draft regulatory text for the proposed 

rule to implement the 8-hour ozone 

NAAQS. This notice started a 30-day 

public comment period on the draft 

regulatory text. In addition, on October 

21, 2003 (68 FR 60054), we reopened 

the public comment period for 15 days 

to solicit additional comment on 

alternative approaches for classifying 

ozone nonattainment areas, based on 

comments received during the comment 

period. 

II. What Is EPA’s Schedule for Taking 

Final Action on the Proposal? 

In our June 2, 2003 proposal, we 

stated that we planned to issue the final 

implementation rule in December of 

2003. While there is not a CAA deadline 

for promulgating a strategy to 

implement the 8-hour ozone NAAQS, 

the CAA does establish a deadline for 

EPA to promulgate designations of 

nonattainment areas under section 107 

of the CAA.1 We have entered into a 

consent decree that requires us to 

promulgate designations by April 15, 

2004.2 Our goal was to issue a final 

implementation rule by the end of 2003 

because the States and Tribes indicated 

a strong interest in having an 

opportunity to understand the impacts 

of being designated nonattainment prior 

to promulgation of designations for the 

8-hour NAAQS. Based on the large 

number of public comments received on 

our proposal and our need to consider 

and respond to those comments before 

taking final action, we were unable to 

issue a final rule prior to April 15, 2004 

that addresses all issues raised in the 

proposal. This final rule addresses 

several key components of the proposed 

rule: how the classification provisions 

of the CAA will apply for purposes of 

the 8-hour ozone NAAQS and the 

transition from the 1-hour NAAQS to 

the 8-hour NAAQS, including when the 

1-hour NAAQS will be revoked, how 

anti-backsliding principles will ensure 

continued progress toward attainment of 

the 8-hour ozone NAAQS, attainment 

dates, and the timing of emissions 

reductions needed for attainment.

Within the next several months, we 

plan to issue a second final rule, Phase 

2, which will address many of the 

planning and control obligations under 

sections 172 and 182 of the CAA that 

will apply for purposes of implementing 

the 8-hour ozone NAAQS. These 

include, among other things, RFP, 

RACT, attainment demonstrations and 

maintenance plans, and new source 

review (NSR). Neither Phase 1 nor Phase 

2 will address the appropriate tests 

under the 8-hour ozone NAAQS for 

demonstrating conformity of Federal 

actions to State implementation plans 

(SIPs). A proposed rule was published 

on November 5, 2003 (68 FR 62689) 

addressing transportation conformity 

requirements applicable in 8-hour ozone 

nonattainment areas. In addition, EPA is 

revising its general conformity 

regulations and plans to issue a 

proposed rule in the spring of 2004. 

III. What Is Included in This Rule? 

Today’s action, Phase 1 of the 

implementation rule, focuses on two 

key implementation issues: (1) 

Classifying areas for the 8-hour NAAQS 

and (2) transitioning from the 1-hour to 

the 8-hour NAAQS, which includes 

revocation of the 1-hour NAAQS and 

the anti-backsliding principles that 

should apply upon revocation.3 In 

addition, it addresses several additional, 

related issues. We believe that 

classifications and anti-backsliding are 

key elements of the implementation 

program that are of primary interest to 

the States and Tribes prior to the final 

designations. In addition, because 

section 182(a) of the CAA provides that 

classifications will occur ‘‘by operation 

of law’’ at the time of designation, EPA 

believes it is critical that the public 

understands at the time of designations 

how the classification provisions will 

apply.

IV. In Short, What Does This Final Rule 

Contain? 

This summary is intended to give 

only a convenient overview of our final 

rule. It should not be relied on for the 

details of the actual rule. The final rule 

(regulatory text) and the discussion of it 

in the next section below should be 

consulted directly. 

Both the preamble and the rule may 

use the following terms to discuss four 

categories of areas for purposes of the 

anti-backsliding provisions: (1) 8-hour 

NAAQS Nonattainment/1-hour NAAQS 

Nonattainment; (2) 8-hour NAAQS 

Nonattainment/1-hour NAAQS 

Maintenance; (3) 8-hour NAAQS 

Attainment/1-hour NAAQS 

Nonattainment; (4) 8-hour NAAQS 

Attainment/1-hour NAAQS 

Maintenance. These categories are, 

respectively: (1) Areas that remain 

designated nonattainment for the 1-hour 

NAAQS at the time of designation as 

nonattainment for the 8-hour NAAQS; 

(2) Areas that are maintenance areas for 

the 1-hour NAAQS at the time of 

designation as nonattainment for the 8-

hour NAAQS; (3) Areas that remain 

designated nonattainment for the 1-hour 

NAAQS at the time of designation as 

attainment for the 8-hour NAAQS; and 

(4) Areas that are maintenance areas for 

the 1-hour NAAQS at the time of 

designation as attainment for the 8-hour 

NAAQS. 

23954 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

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

obligations that apply to areas under both subpart 

1 and subpart 2.

A. How Will EPA Reconcile the 

Classification Provisions of Subparts 1 

and 2? How Will EPA Classify 

Nonattainment Areas for the 8-Hour 

Standard? 

The final rule incorporates Option 2 

of the proposal. Each area with a current 

1-hour design value at or above 0.121 

ppm (the lowest 1-hour design value in 

Table 1 of subpart 2) will be classified 

under subpart 2 based on its 8-hour 

design value. All other areas will be 

covered under subpart 1 using their 8-

hour design values. 

In brief, this approach works as 

follows: 

• First, we will determine which 8-

hour areas will be covered under 

subpart 2 and which under subpart 1. 

Any area with a 1-hour ozone design 

value (at the time of designation) that 

meets or exceeds the statutory level of 

0.121 ppm that Congress specified in 

Table 1 of section 181 will be classified 

under subpart 2 and will be subject to 

the control obligations associated with 

its classification.4 Any area with a 1-

hour design value (at the time of 

designation) that is below the level of 

0.121 ppm will be covered under 

subpart 1 and subject to the control 

obligations in section 172.

• Second, subpart 2 areas will be 

classified as marginal, moderate, 

serious, severe or extreme based on the 

area’s 8-hour design value (at the time 

of designation). Since Table 1 is based 

on 1-hour design values, and 

application of the Table as written 

would produce absurd results, we are 

promulgating a regulation translating 

the thresholds in Table 1 of section 181 

from 1-hour values to 8-hour values. 

Under the Final Classification 

Approach, How Will EPA Classify 

Subpart 1 Areas? 

We are adopting the second option 

but modified as a result of comments. 

We are creating an overwhelming 

transport classification that will be 

available to subpart 1 areas that 

demonstrate they are affected by 

overwhelming transport of ozone and its 

precursors and demonstrate they meet 

the definition of a rural transport area in 

section 182(h). However, areas would 

not have to demonstrate that transport 

was due solely to sources from outside 

the State (interstate transport) as was 

implied by the June 2, 2003 proposal. 

All other areas that do not qualify for 

the overwhelming transport 

classification would not be classified. 

Proposed Incentive Feature 

We are not including the proposed 

incentive feature in the final rule. 

B. How Will EPA Treat Attainment 

Dates for the 8-Hour Ozone Standard? 

We are adopting the time periods for 

attainment that we proposed for areas 

under both subpart 1 and subpart 2 of 

the CAA. For areas subject to subpart 2 

of the CAA, the maximum period for 

attainment will run from the effective 

date of designations and classifications 

for the 8-hour standard and will be the 

same periods as provided in Table 1 of 

section 181(a):

• Marginal—3 years 

• Moderate—6 years 

• Serious—9 years 

• Severe—15 or 17 years 

• Extreme—20 years 

Consistent with section 172(a)(2)(A), 

for areas subject to subpart 1 of the 

CAA, the period for attainment will be 

no later than 5 years after the effective 

date of the designation. However, EPA 

may grant an area an attainment date no 

later than 10 years after designation, if 

warranted based on the factors provided 

in section 172(a)(2)(A).

How Will EPA Address the Provision 

Regarding 1-Year Extensions? 

We are adopting the interpretation 

that we proposed on June 2, 2003. 

Under both sections 172(a)(2)(C) and 

181(a)(5), an area will be eligible for the 

first of the 1-year extensions under the 

8-hour standard if, for the attainment 

year, the area’s 4th highest daily 8-hour 

average is 0.084 ppm or less. The area 

will be eligible for the second extension 

if the area’s 4th highest daily 8-hour 

value, averaged over both the original 

attainment year and the first extension 

year, is 0.084 ppm or less. 

C. How Will EPA Implement the 

Transition From the 1-Hour to the 8-

Hour Standard in a Way To Ensure 

Continued Momentum in States’ Efforts 

Toward Cleaner Air? 

There are two key issues that EPA 

considered together regarding the 

transition from the 1-hour standard to 

the 8-hour standard: (1) When will the 

1-hour standard no longer apply (i.e., be 

‘‘revoked’’); and (2) what protections are 

in place to ensure that, once the 1-hour 

standard is revoked, air quality will not 

degrade and that progress toward 

attainment will continue as areas 

transition from implementing the 1-hour 

standard to implementing the 8-hour 

standard. As in the proposed rule, the 

second key issue has three components: 

(1) What requirements that applied 

based on an area’s classification for the 

1-hour standard must continue to apply 

to that area; (2) for how long; and (3) in 

what area. Below, we set forth our final 

transition approach in four parts: (1) 

When will the 1-hour standard no 

longer apply (i.e., when will it be 

revoked); (2) what 1-hour obligations 

should continue to apply once the 1-

hour standard is revoked; (3) how long 

should those requirements continue to 

apply; and (4) what is the geographic 

area subject to the requirement. 

1. When Will EPA Revoke the 1-Hour 

Standard? 

We are adopting Option 1. We will 

revoke the 1-hour standard in full, 

including the associated designations 

and classifications, 1 year following the 

effective date of the designations for the 

8-hour NAAQS. 

2. What Requirements That Applied in 

an Area for the 1-Hour NAAQS 

Continue To Apply After Revocation of 

the 1-Hour NAAQS for That Area? 

The approach we are adopting in the 

final rule is summarized below under 

the individual sections discussing each 

category of area and type of control 

obligation. 

a. Section 51.905(a)(1): 8-Hour 

NAAQS Nonattainment/1-Hour NAAQS 

Nonattainment

(i) Mandatory control measures. We 

are adopting the approach we proposed. 

All areas designated nonattainment for 

the 8-hour ozone NAAQS and 

designated nonattainment for the 1-hour 

ozone NAAQS at the time of designation 

for the 8-hour NAAQS remain subject to 

control measures that applied by virtue 

of the area’s classification for the 1-hour 

standard. 

(ii) Discretionary control measures.

We are adopting the approach we set 

forth in our proposed rule. A State may 

revise or remove discretionary control 

measures (including enforceable 

commitments) contained in its SIP for 

the 1-hour standard so long as the State 

demonstrates consistent with section 

110(l) that such removal or modification 

will not interfere with attainment of or 

progress toward the 8-hour ozone 

NAAQS (or any other applicable 

requirement of the CAA). 

(iii) Measures to address growth. We 

are not adopting the approach set forth 

in our proposed rule. For areas 

designated nonattainment for the 1-hour 

NAAQS at the time of designation for 

the 8-hour NAAQS and that are 

designated nonattainment for the 8-hour 

NAAQS, the major source applicability 

cut-offs and offset ratios for the area’s 1-

hour classification would not continue 

to apply after revocation of the 1-hour 

NAAQS. 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23955

(iv) Planning SIPs.

(A) Outstanding rate of progress 

(ROP) Obligation. We are adopting the 

approach set forth in our proposed rule 

for this category of areas. States remain 

obligated to meet the CAA-mandated 

ROP emission reduction targets that 

applied for the 1-hour standard, but 

discretionary measures adopted to meet 

those targets may be modified, if the 

State makes the necessary showing 

under section 110(l). 

(B) Unmet attainment demonstration 

obligations. In the final rule, we are 

allowing the States to choose among 

three options that are tailored after the 

approaches addressed in the proposed 

rule. Thus, rather than establishing one 

mandatory approach, we are adopting a 

rule that will allow States to choose any 

one of the following three options: 

• Option 1. Submit a 1-hour 

attainment demonstration. 

• Option 2. Submit, no later than 1 

year after the effective date of the 8-hour 

designations, an early five percent 

increment of progress plan toward the 8-

hour standard. 

• Option 3. Submit an early 8-hour 

ozone attainment demonstration SIP 

that ensures that the first segment of 

RFP is achieved early. 

b. Section 51.905(a)(2): 8-Hour 

NAAQS Nonattainment/1-Hour NAAQS 

Maintenance

(i) Mandatory control measures. We 

are adopting the approach we took in 

the proposal and the draft regulatory 

text. This category of areas must 

continue to implement mandatory 

control requirements (i.e., ‘‘applicable 

requirements’’) that have been approved 

into the SIP. However, since 

maintenance areas do not have any 

outstanding obligation to adopt 

mandatory control obligations for the 1-

hour standard, the provision only 

addresses implementation, not 

adoption. In addition, this section 

recognizes that maintenance areas had 

the flexibility to move mandatory 

controls to the contingency measures 

portion of their maintenance plan. 

(ii) Discretionary control measures. As 

with discretionary control measures for 

8-hour NAAQS nonattainment/1-hour 

NAAQS nonattainment areas, 1-hour 

NAAQS nonattainment/1-hour NAAQS 

maintenance areas will retain the 

discretion to modify any discretionary 

control measures upon a demonstration 

under section 110(l). We are not 

promulgating regulatory text because 

sections 110(l) and 193 of the CAA 

govern such SIP revisions. 

(iii) Measures to address growth. We 

are adopting the approach we proposed, 

but our rationale relies on the final 

rule’s provision that NSR under the 1-

hour standard will no longer be a 

required implementation plan element 

as of revocation of the 1-hour standard. 

If an area has been redesignated to 

attainment for the 1-hour standard as of 

the effective date of the 8-hour 

nonattainment designation and is no 

longer required to implement a 

nonattainment NSR program, the area 

will not be required to revert back to the 

program it had for purposes of the 1-

hour ozone standard. 

As noted elsewhere, NSR offset ratios 

and major stationary source 

applicability provisions under the 1-

hour standard are not being defined as 

‘‘applicable requirements’’ after the 1-

hour standard is revoked. 

(iv) Planning SIPs. We are adopting 

the approach taken in the draft 

regulatory text. In redesignating an area 

to attainment, EPA must conclude that 

the area has met all requirements 

applicable under section 110 and part D. 

Thus, maintenance areas do not have 

continuing progress and attainment 

demonstration requirements. 

c. Section 51.905(a)(3): 8-Hour 

NAAQS Attainment/1-Hour NAAQS 

Nonattainment

(i) Mandatory control obligations. We 

are adopting an approach consistent 

with our proposed rule. We have 

determined that mandatory control 

obligations will no longer apply once an 

area attains the 8-hour standard. Thus, 

because these areas are attaining the 8-

hour standard, the State may request 

that obligations under applicable 

requirements be shifted to contingency 

measures once the 1-hour standard is 

revoked, consistent with sections 110(l) 

and 193 of the CAA. However, the State 

cannot remove the obligations from the 

SIP. 

(ii) Discretionary control obligations.

8-hour NAAQS attainment/1-hour 

NAAQS nonattainment areas will retain 

the discretion to modify any 

discretionary controls upon a 

demonstration under section 110(l). 

However, such controls must remain in 

the SIP as contingency measures.

(iii) Measures to address growth. We 

are adopting the approach we set forth 

in our proposed rule for this category of 

areas. After the 1-hour standard is 

revoked, the CAA requires such areas to 

comply with prevention of significant 

deterioration (PSD), not NSR. 

(iv) Planning SIPs. We are adopting 

our proposal with some modification. 

An area of this category will not be 

required to develop and submit 

outstanding attainment demonstration 

and ROP plans for the 1-hour standard 

for so long as the area continues to 

maintain the 8-hour NAAQS. However, 

if the area violates the 8-hour NAAQS 

prior to having an approved 8-hour 

maintenance plan under section 

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

submit a SIP revision to address 

outstanding ROP and attainment 

demonstration plans. 

(v) Maintenance plans for the 8-hour 

NAAQS. We are adopting the approach 

we proposed. Areas that are either 8-

hour NAAQS attainment/1-hour 

NAAQS nonattainment or 8-hour 

NAAQS attainment /1-hour NAAQS 

maintenance must adopt and submit a 

maintenance plan consistent with 

section 110(a)(1) within 3 years of 

designation as attainment for the 8-hour 

NAAQS. The maintenance plan should 

provide for continued maintenance of 

the 8-hour standard for 10 years 

following designation for the 8-hour 

NAAQS and should include 

contingency measures. 

d. Section 51.905(a)(4): 8-Hour 

NAAQS Attainment/1-Hour NAAQS 

Maintenance

In the final rule, we created a section 

51.905(a)(4) to apply to this category of 

areas. It covers obligations in an 

approved SIP and maintenance plans 

similar in manner to areas that are 

attainment for the 8-hour standard and 

were attainment for the 1-hour standard 

and had a maintenance plan. 

3. For How Long Do These Obligations 

Continue To Apply? 

We are adopting Option 2—control 

obligations an area is required to retain 

in the approved SIP for an area’s 1-hour 

classification must continue to be 

implemented under the SIP until the 

area attains and is redesignated to 

attainment for the 8-hour NAAQS. At 

that time, the State may relegate such 

controls to the contingency measure 

portion of the SIP if the State 

demonstrates in accordance with 

section 110(l) that doing so will not 

interfere with maintenance of the 8-hour 

NAAQS or any other applicable 

requirement of the CAA. If at the time 

the area is redesignated to attainment 

for the 8-hour standard the State has an 

outstanding obligation to adopt a 

control requirement under the 1-hour 

standard, it remains obligated to do so, 

but may adopt it as a contingency 

measure. 

4. Which Portions of an Area Designated 

for the 8-Hour NAAQS Remain Subject 

to the 1-Hour NAAQS Obligations? 

The final rule incorporates most 

aspects of the approach as that 

contained in the proposal and in the 

draft regulatory text. The final rule 

provides that only the portion of the 

designated area for the 8-hour NAAQS 

that was designated nonattainment for 

23956 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

5State Implementation Plans; General Preamble 

for the Implementation of Title of the CAA 

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

1992 (57 FR 13498 at 13501 and 13510).

the 1-hour NAAQS is required to 

comply with the planning obligations, 

except in one circumstance: if the State 

elects to provide an early increment of 

progress or an early 8-hour attainment 

demonstration in lieu of an outstanding 

1-hour attainment demonstration (for an 

8-hour NAAQS nonattainment/1-hour 

NAAQS nonattainment area under 

51.905(a)(1)(ii)(B) and (C)), the 

increment of progress or early 8-hour 

attainment plan must apply for 

purposes of the entire 8-hour 

nonattainment area.

The final rule does not follow the 

approach in the proposal for the 

maintenance plan requirement for 8-

hour attainment areas. The maintenance 

plans required for these areas must 

demonstrate maintenance only for the 

area designated nonattainment for the 1-

hour NAAQS at the time of designation 

of the 8-hour standard. 

5. What Obligations That Applied for 

the 1-hour NAAQS Will No Longer 

Apply After Revocation of the 1-hour 

NAAQS for an Area? 

We are revising the approach we set 

forth in our proposed rule. In addition 

to the obligations noted in our proposal 

that would no longer apply after the 1-

hour NAAQS is revoked, we are also 

providing clarification regarding the 

penalty obligations under sections 

181(b)(4) and 185 of the CAA that apply 

in severe and extreme areas that do not 

attain the 1-hour standard by the 

applicable attainment date. The final 

rule also would not retain NSR under 

the 1-hour NAAQS. The final rule 

provides that as of the effective date of 

revocation of the 1-hour standard: 

• We will no longer make findings of 

failure to attain the 1-hour standard and, 

therefore, (a) we will not reclassify areas 

to a higher classification for the 1-hour 

standard based on such a finding, and 

(b) areas that were classified as severe 

or extreme for the 1-hour NAAQS are 

not obligated to impose fees as provided 

under sections 181(b)(4) and 185 of the 

CAA under the 1-hour standard. 

• Areas will not be obligated to 

continue to demonstrate conformity for 

the 1-hour NAAQS as of the effective 

date of the revocation of the 1-hour 

NAAQS. 

• An area with an approved 1-hour 

maintenance plan under section 175A of 

the CAA may modify the maintenance 

plan to remove obligations related to 

developing a second 10-year 

maintenance plan for the 1-hour 

NAAQS and the obligation to 

implement contingency measures upon 

a violation of the 1-hour NAAQS. 

• NSR under the 1-hour NAAQS will 

no longer be a required implementation 

plan element in areas that are 8-Hour 

NAAQS nonattainment/1-Hour NAAQS 

nonattainment. Instead, NSR under the 

8-hour NAAQS will apply. 

6. What Is the Continued Applicability 

of the NOX SIP Call After Revocation of 

the 1-hour NAAQS? 

We are adopting the approach we set 

forth in our proposed rule and draft 

regulatory text. States must continue to 

adhere to the emission budgets 

established by the NOX transport rules 

after the 1-hour standard is revoked. 

States retain the authority to revise 

control obligations they have 

established for specific sources or 

source categories under the NOX SIP 

Call rule so long as the State 

demonstrates consistent with section 

110(l) that such modification will not 

interfere with attainment of or progress 

toward meeting the 8-hour NAAQS or 

any other applicable requirement of the 

CAA. 

D. What Is the Required Timeframe for 

Obtaining Emissions Reductions to 

Ensure Attainment by the Attainment 

Date? 

We are adopting the approach we set 

forth in our proposed rule, namely that 

emissions reductions needed for 

attainment must be implemented by the 

beginning of the ozone season 

immediately preceding the area’s 

attainment date. 

V. EPA’s Final Rule 

A. How Will EPA Reconcile the 

Classification Provisions of Subparts 1 

and 2? How Will EPA Classify 

Nonattainment Areas for the 8-hour 

NAAQS? (Section VI.A. of Proposal; See 

68 FR 32811; Section 51.902 of Draft 

and Final Rules) 

1. Background 

a. Statutory framework and Supreme 

Court decision. The CAA contains two 

sets of requirements—subpart 1 and 

subpart 2—that establish requirements 

for State plans implementing the ozone 

NAAQS in nonattainment areas. (Both 

are found in title I, part D.) Subpart 1 

contains general, less prescriptive, 

requirements for SIPs for nonattainment 

areas for any pollutant—including 

ozone—governed by a NAAQS. Subpart 

2 provides more specific requirements 

for ozone nonattainment SIPs.5

When we promulgated the 8-hour 

ozone NAAQS on July 18, 1997, we 

indicated that we anticipated that States 

would implement the 8-hour NAAQS 

under the less prescriptive subpart 1 

requirements. More specifically, we 

concluded that the CAA required areas 

designated nonattainment for the 1-hour 

ozone NAAQS to remain subject to the 

subpart 2 requirements for purposes of 

the 1-hour NAAQS until such time as 

they met that NAAQS (62 FR 38872). 

We also stated that those areas and all 

other areas would be subject only to 

subpart 1 for purposes of planning for 

the 8-hour ozone NAAQS. We 

determined not to immediately revoke 

the 1-hour NAAQS for all areas but to 

promulgate a rule (40 CFR 50.9(b)) 

providing that the 1-hour NAAQS and 

the associated designation would no 

longer apply to an area once EPA 

determined the area had attained the 1-

hour NAAQS. Thus, areas that had not 

yet attained the 1-hour NAAQS retained 

their designation for that NAAQS and 

remained subject to the control 

obligations associated with their 

classification for the 1-hour NAAQS 

until they met it. 

In February 2001, the Supreme Court 

ruled that the statute was ambiguous as 

to the relationship of subparts 1 and 2 

for purposes of implementing the 8-hour 

NAAQS. Whitman v. American 

Trucking Associations, 531 U.S. 457, 

481–86 (2001). The Court concluded, 

however, that the implementation 

approach set forth in the final NAAQS 

rule, which provided no role for subpart 

2 in implementing the 8-hour NAAQS, 

was unreasonable. Id. Specifically, with 

respect to classifying areas, the Supreme 

Court stated: [D]oes subpart 2 provide 

for classifying nonattainment ozone 

areas under the revised standard? It 

unquestionably does.’’ Whitman, 531 

U.S. at 482. 

Despite recognizing that the 

classification provisions of subpart 2 

(section 181(a)) apply for purposes of 

the 8-hour NAAQS, the Supreme Court 

also recognized that the subpart 2 

classification scheme does not entirely 

fit with the revised 8-hour NAAQS and 

left it to EPA to develop a reasonable 

resolution of the roles of subparts 1 and 

2 in classifying areas for and 

implementing a revised ozone NAAQS. 

Id. at 482–486. 

In particular, the Court noted three 

portions of section 181—the 

classification provision in subpart 2—

that it indicated were ‘‘ill-fitted to 

implementation of the revised 

standard.’’ Id. at 483.

• First, the Court recognized that 

‘‘using the old 1-hour averages of ozone 

levels * * * as subpart 2 requires * * * 

would produce at best an inexact 

estimate of the new 8-hour averages 

***’’ Id.

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23957

6The design value of an area is based on the 

monitor for the area recording the highest ozone 

levels and indicates whether the area is violating or 

meeting the ozone NAAQS. For the 1-hour ozone 

NAAQS, the design value for an area is generally 

the 4th highest monitored ozone level at the 

monitor over a 3-year period. See 40 CFR part 50, 

appendix H and Memorandum of June 18, 1990 

from William G. Laxton re ‘‘Ozone and Carbon 

Monoxide Design Value Calculations.’’ Available at 

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

laxton.htm. For the 8-hour ozone NAAQS, the 

design value is the average of each yearly 4th 

highest reading at a monitor over a 3-year period. 

See 40 CFR part 50, appendix I.

7The notice also solicited comment on additional 

issues that would arise if we selected one of the 

approaches identified in the notice reopening the 

comment period: (1) Whether we should modify the 

5 percent reclassification feature of section 181(a)(4) 

of the CAA if we change our classification scheme 

to have a narrower range for each classification; (2) 

whether we should adopt the suggestion by 

commenters on the June 2, 2003 proposal that we 

change the 1-hour ozone threshold to 0.125 ppm 

rather than 0.121 ppm to determine if an area falls 

into subpart 1 vs. subpart 2 under classification 

Option 2; and (3) whether an adjustment other than 

50 percent would be more appropriate for 

narrowing the range of each classification.

• Second, the Court recognized that 

the design values in Table 1 is based on 

the level of the 1-hour NAAQS (0.12 

ppm) and noted that ‘‘to the extent the 

new ozone standard is stricter than the 

old one, * * * the classification system 

of Subpart 2 contains a gap, because it 

fails to classify areas whose ozone levels 

are greater than the new standard (and 

thus nonattaining) but less than the 

approximation of the old standard 

codified by Table 1.’’ Id.

• Third, the Court recognized that 

‘‘Subpart 2’s method for calculating 

attainment dates—which is simply to 

count forward a certain number of years 

from November 15, 1990 * * * seems to 

make no sense for areas that are first 

classified under a new standard after 

November 15, 1990.’’ More specifically, 

the Court recognized that attainment 

dates for marginal (1993), moderate 

(1996), and serious (1999) areas had 

passed. Id. at 483–484. 

b. EPA’s proposed rule and notice 

reopening the comment period. In light 

of the Supreme Court’s ruling, we 

examined the statute to determine the 

manner in which the subpart 2 

classifications should apply for 

purposes of the 8-hour ozone NAAQS. 

We paid particular attention to the three 

portions of section 181 that the Supreme 

Court noted were ill-fitted for 

implementation of the revised 8-hour 

NAAQS. We examined those provisions 

in light of the legislative history and the 

overall structure of the CAA to 

determine what Congress intended for 

purposes of implementing a revised, 

more stringent ozone NAAQS. 

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

issued a proposed rule which identified 

two options for classifying areas for the 

8-hour ozone NAAQS. Under Option 1 

(68 FR 32812), we proposed to classify 

8-hour ozone nonattainment areas 

according to the severity of their ozone 

pollution based on 8-hour design 

values.6 Because the subpart 2 

classification table is based on 1-hour 

design values, we proposed to translate 

the classification thresholds in Table 1 

of section 181 to 8-hour design values. 

Under this option, all 8-hour 

nonattainment areas would be classified 

under subpart 2 as marginal, moderate, 

serious, severe or extreme.

Under Option 1, the threshold for the 

marginal classification would be an 8-

hour design value of 0.085 ppm. Each of 

the 8-hour classification thresholds 

would be the same percentage above the 

8-hour NAAQS as the corresponding 

statutory 1-hour threshold is above the 

1-hour NAAQS. For example, since the 

statutory 1-hour ozone level for the 

moderate classification is 15 percent 

above the 1-hour NAAQS, the 8-hour 

ozone level for the moderate 

classification would be 15 percent above 

the 8-hour NAAQS. 

The EPA developed a second option 

designed to provide States with greater 

flexibility on the measures included in 

their plans for meeting the 8-hour 

NAAQS. Under Option 2 (68 FR 32812), 

which we indicated was our preferred 

option, we proposed a two-step system 

for determining classifications for areas. 

We proposed as a first step, to divide 

areas into two groups based on each 

area’s current 1-hour ozone design 

value. In accordance with the portion of 

the Supreme Court decision which 

indicated that there was no gap in the 

statute for those areas with a 1-hour 

design value above 0.121 ppm—the 

lowest level in Table 1 in section 

181(a)—we proposed that areas with a 

current (i.e., determined at the time of 

designation) 1-hour ozone design value 

greater than or equal to 0.121 ppm 

would be classified under subpart 2 for 

the 8-hour NAAQS. For areas with a 1-

hour design value less than 0.121 ppm, 

i.e., those areas the Court stated fell into 

the gap, we concluded that we must 

make a reasonable determination 

whether they should be covered under 

subpart 1 or subpart 2. We proposed 

that all of these areas would be covered 

under subpart 1. For the areas that did 

not fall into the gap and which must be 

classified under subpart 2, we proposed 

to classify them based on our translation 

of Table 1 in section 181(a), as described 

under Option 1. 

We received a large number of 

comments on the classification options 

that we proposed, including 

recommendations for other approaches, 

most of which were variations on the 

options we proposed. On October 21, 

2003 (68 FR 60054), we reopened the 

comment period on the proposed rule 

for 15 days to provide the public with 

an opportunity for additional comment 

on alternative approaches for classifying 

areas for the 8-hour ozone NAAQS that 

were suggested during the comment 

period. We also included two 

alternative strategies (Alternatives A 

and B) for classifying areas that EPA 

developed by combining ideas 

suggested by different commenters 

during the initial comment period.7

Alternatives A and B were designed to 

place more areas in higher 

classifications, which would provide 

areas with more time to attain but 

would impose additional mandatory 

control requirements. These alternatives 

also were designed to avoid or reduce 

instances in which a subpart 1 area 

could have higher 8-hour ozone levels 

than a subpart 2 area. 

Alternative A would classify areas 

solely on the basis of 8-hour design 

values. The key feature of this 

alternative was that EPA would create a 

classification table of 8-hour values 

starting from an 8-hour design value 

that, to the extent possible, would be 

approximately equivalent to the 1-hour 

design value of 0.121 ppm in Table 1. 

Thus, the lowest level in the regulatory 

table was the 8-hour approximation of 

the 1-hour NAAQS as suggested by 

commenters, i.e., 0.091 ppm. Areas with 

an 8-hour design value less than 0.091 

ppm would be covered under subpart 1. 

Areas with an 8-hour design value at or 

above this level would be classified 

under subpart 2. To place areas in 

higher classifications, we narrowed the 

range for each classification to use 50 

percent (instead of 100 percent) of the 

percentages that the classification 

thresholds were above the 1-hour 

NAAQS in our proposed June 2003 

translation of Table 1. In other words, 

since the moderate threshold for the 1-

hour NAAQS is 15 percent above the 1-

hour NAAQS, we would adjust the 

moderate threshold for purposes of the 

8-hour NAAQS to be 7.5 percent above 

0.091 ppm (the lowest level in Table 1 

for Alternative A).

Alternative B, a modified version of 

Option 2, retained the first step of 

Option 2, where we divide the areas 

based on their current 1-hour design 

value. As in Option 2, areas with 1-hour 

design values exceeding the statutory 

0.121 ppm level would be regulated 

under subpart 2. In addition, any ‘‘gap’’

area (i.e., those with a 1-hour design 

value less than 0.121 ppm) with a 

moderate-level (or higher) design value 

would be classified under subpart 2. All 

23958 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

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

and planning obligations that apply to areas under 

both subpart 1 and subpart 2.

9Similarly, Alternatives A and B would result in 

fewer areas being placed under subpart 1. (See 68 

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

other gap areas would be covered by 

subpart 1. As with Alternative A, to 

place subpart 2 areas in higher 

classifications, we narrowed the range 

for each classification to 50 percent of 

the range in Table 1 of section 181. In 

other words, the moderate threshold 

would be 7.5 percent above the 8-hour 

NAAQS (0.085 ppm). 

2. Summary of Final Rule 

After considering all of the comments 

that were submitted, we are adopting 

Option 2. Each area with a current 1-

hour design value at or above 0.121 ppm 

(the lowest 1-hour design value in Table 

1 of subpart 2) will be classified under 

subpart 2 based on its 8-hour design 

value. All other areas will be covered 

under subpart 1 using their 8-hour 

design values. 

In brief, this approach works as 

follows: 

• First, we will determine which 8-

hour areas will be covered under 

subpart 2 and which under subpart 1. 

Any area with a 1-hour ozone design 

value (at the time of designation) that 

meets or exceeds the statutory level of 

0.121 ppm that Congress specified in 

Table 1 of section 181 will be classified 

under subpart 2 and will be subject to 

the control obligations associated with 

its classification.8 Any area with a 1-

hour design value (at the time of 

designation) that is below the level of 

0.121 ppm will be covered under 

subpart 1 and subject to the control 

obligations in section 172.

• Second, subpart 2 areas will be 

classified as marginal, moderate, 

serious, severe or extreme based on the 

area’s 8-hour design value (at the time 

of designation). Since Table 1 of section 

181 is based on 1-hour design values, 

and application of the Table as written 

would produce absurd results, we are 

promulgating a regulation translating 

the thresholds in Table 1 of section 181 

from 1-hour values to 8-hour values. 

(See Table 1 ‘‘Classification for 8-Hour 

NAAQS for Areas Subject to Section 

51.902(a)’’ in section 51.903.) 

• Third, in accordance with section 

181(a)(4) and 181(b)(3), the State may 

request a lower or higher classification. 

• Finally, as described in more detail 

below, section 172(a)(1) provides EPA 

with discretion whether to classify areas 

under subpart 1 and we are creating one 

classification—for qualifying areas 

affected by overwhelming transport. All 

other areas covered under subpart 1 will 

not be classified. 

a. Why did EPA select Option 2? The 

EPA carefully considered the many 

comments we received on classification 

options and, in fact, sought additional 

input on alternatives presented and 

developed pursuant to comments 

received on the June 2003 proposal. The 

commenters were deeply divided on the 

merits of the options. Even after the 

conclusion of the October 2003 

comment period, most commenters still 

favored Option 2 or Option 1. Only a 

few favored either Alternative A or 

Alternative B. Those commenters who 

suggested alternatives to Option 1 or 

Option 2 during the initial 60-day 

comment period did not support 

Alternatives A and B (which blended 

several suggestions from the initial 

comments) and they remained 

convinced that their suggested approach 

was the best classification approach. 

Because the commenters were 

strongly divided over the appropriate 

classification approach, EPA reexamined the various alternatives in 

light of their consistency with the CAA, 

as interpreted by the Supreme Court, 

and their consistency with EPA’s stated 

goals. While EPA believes that Options 

1 and 2 and Alternatives A and B are all 

legally supportable under the CAA, we 

concluded that Option 2 best fits with 

the policy goals enunciated by EPA in 

the proposal and re-affirmed here. Thus, 

EPA has selected Option 2. We explain 

below why Option 2 will best 

accomplish the policy goals of EPA and 

why we believe it is consistent with the 

CAA. 

(i) Why will Option 2 best accomplish 

the policy goals of EPA? One of EPA’s 

stated goals at proposal was to provide 

flexibility to States and Tribes on 

implementation approaches and control 

measures within the structure of the 

CAA. As compared with the other 

alternatives considered, Option 2 places 

more areas under the more flexible 

provisions of the CAA (subpart 1), 

which will provide the States and 

Tribes with greater discretion in 

determining the mix of controls needed 

to expeditiously attain the 8-hour 

NAAQS. For example, Option 1 would 

place all areas under subpart 2, which 

mandates a number of specific control 

measures, thus limiting the States and 

Tribes ability to consider whether there 

are more effective and less costly ways 

to achieve the same level of emission 

reductions.9 For example, an area might 

be able to achieve greater air quality 

improvement at less cost from local 

NOX reductions than from local volatile 

organic compounds (VOC) reductions of 

15 percent mandated for certain subpart 

2 areas. This will enable some areas to 

meet the 8-hour NAAQS at less cost 

than under the other classification 

options because the States and Tribes 

will have greater flexibility in 

determining which control requirements 

to adopt to meet the NAAQS. Because 

areas are required to attain the NAAQS 

as expeditiously as practicable under 

both subpart 1 and subpart 2, Option 2 

should not result in longer attainment 

periods than Option 1, with the 

exception of areas significantly affected 

by transported pollution (discussed 

below).

Additionally, placing some areas in 

subpart 1 provides States and EPA with 

greater flexibility to determine 

appropriate controls for areas that 

would have difficulty attaining the 8-

hour NAAQS due to interstate pollution 

transport. In the 13 years since the CAA 

Amendments of 1990 were enacted (at 

which time, Congress created subpart 2), 

we have learned much about the longrange transport of ozone and the 

importance of employing regional 

controls in addition to local controls. 

Subpart 2 does not allow EPA and the 

States to consider transported pollution 

in determining the feasibility and 

benefits of mandated controls or in 

determining the appropriate attainment 

date for an area. Because of our 

increased understanding of transported 

pollution since Congress enacted the 

more restrictive provisions of subpart 2, 

we believe it makes sense to adopt an 

approach that does not shift ‘‘gap’’ areas 

into subpart 2. In other words, where 

Congress has not explicitly mandated 

that areas are subject to subpart 2, we 

don’t believe it makes sense to adopt an 

approach that would shift some or all of 

those ‘‘gap’’ areas to subpart 2, which 

provides significantly less flexibility for 

bringing areas affected by transported 

pollution into attainment. (We discuss 

in more detail the flexibility provided 

by subpart 1 and how it better allows 

consideration of the current scientific 

knowledge regarding ozone formation 

and transport in the section below 

discussing why we place all of the 

‘‘gap’’ areas in subpart 1.) 

The EPA recognizes that the 

flexibility of Option 2 comes with some 

added complexity. One of EPA’s stated 

goals was to establish an approach that 

is easy to understand. While Option 1 

(classifying all areas under subpart 2) is 

simpler, we believe our goals regarding 

flexibility outweigh the simplicity of 

Option 1. 

Another of EPA’s stated aims at 

proposal was to ensure expeditious but 

reasonable attainment dates for the 8-

hour NAAQS. The EPA believes that 

Option 2 is consistent with this 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23959

10Revised: Background Information Document, 

Hypothetical Nonattainment Areas for Purposes of 

Understanding the EPA Proposed Rule for 

Implementing the 8-Hour Ozone National Ambient 

Air Quality Standard in Relation to Re-Opened 

Comment Period—Illustrative Analysis Based on 

2000–2002 Data. U.S. Environmental Protection 

Agency, Office of Air and Radiation, Office of Air 

Quality Planning and Standards. Draft. October 

2003. Available at: http://www.epa.gov/ttn/naaqs/

ozone,o3imp8hr/.

11Qualitative Assessment of Alternative Coverage 

and Classification Options. First Addendum to 

‘‘Cost, Emission Reduction, Energy, and Economic 

Impact Assessment of the Proposed Rule 

Establishing the Implementation Framework for the 

8-hour, 0.08ppm Ozone National Ambient Air 

Quality Standard.’’ Prepared by Innovative 

Strategies and Economics Group, Air Quality 

Strategies and Standards Division, Office of Air 

Quality Planning and Standards, Office of Air and 

Radiation, U.S. Environmental Protection Agency, 

Research Triangle Park, North Carolina. April 8, 

2004.

12For instance, the cost of selective catalytic 

reduction (SCR) catalyst (for control of NOX) has 

gone from $11,000—$14,000/cubic meter in 1998 to 

$3,500—$5,500/cubic meter currently. 

Advancements in low NOX burner (LNB) 

technology and staged combustion have resulted in 

sharp NOX reductions at much lower costs. New 

burner technologies have lowered NOX emissions 

reductions by as much as 50 percent from previous 

designs. Costs have decreased from $25–38/kW in 

1993 to about $15/kW in 2003. Memorandum of 

October 10, 2003 from Jim Staudt, Andover 

Technology Partners, Re: Prime Contract 68–W–03–

028; Subcontract Agreement 23BL00114; ATP 

Contract #:C–03–007.

principle. Compared to Alternatives A 

and B, Option 2 will place more areas 

in lower classifications with shorter 

maximum attainment dates, 

encouraging expeditious attainment. 

While some commenters believed that 

maximum attainment dates under 

Option 2 would not allow enough time 

for some areas to meet the NAAQS, we 

believe that Option 2 provides sufficient 

time for most areas and that to the 

extent some areas may have difficulty, 

the CAA provides an avenue for relief, 

which is discussed below.

Based on information concerning the 

hypothetical nonattainment areas,10 11

we are confident that under Option 2 

most areas currently exceeding the 8-

hour NAAQS will be able to meet the 

NAAQS within the time limits provided 

for their classification, taking into 

consideration projected improvements 

in air quality under current programs 

and the potential for adoption of further 

national, regional and local measures.

EPA notes that there are uncertainties 

at this time about the time periods 

needed for attainment, especially for the 

limited number of areas needing 

substantial emissions reductions to 

attain. For example, it is difficult to 

determine in advance of State 

development of attainment plans when 

such an area will be able to attain the 

NAAQS. These plans are based on highresolution local air quality modeling, 

refined emissions inventories and 

detailed analyses of the impacts and 

costs of potential local control 

measures. 

Another factor is that new methods of 

achieving cost effective emissions 

reductions are continuing to be 

developed. Our repeated experience 

over the past three decades is that 

market forces stimulated by the CAA 

have repeatedly led to technological 

advances and learning through 

experience, making it possible over time 

to achieve greater emissions reductions 

at lower costs than originally 

anticipated.12

Other uncertainties reflect use of the 

most recent three years of air quality 

data for the actual designations and 

classifications, and use of more refined 

and area-specific modeling 

methodologies for projecting future 

ozone concentrations. 

Regarding the use of later air quality 

data, we have interpreted the CAA’s 

requirements under section 181 such 

that we must classify nonattainment 

areas that are covered under subpart 2 

based on the most recent ozone design 

values, which are based on three years 

of data. Because of year-to-year 

variations in meteorology, this 

‘‘snapshot in time’’ may not be 

representative of the normal magnitude 

of problems that a number of areas face. 

Regarding modeling methodologies, 

national/regional modeling may 

indicate that a number of moderate 

areas may face difficulty attaining the 

standard by the maximum attainment 

date required for an area’s classification. 

However, when a State using 

photochemical grid modeling predicts 

concentrations that are above the 

NAAQS after application of SIP 

controls, an optional weight of evidence 

determination which incorporates, but 

is not limited to, other analyses, such as 

air quality and emissions trends, may be 

used to address uncertainty inherent in 

the application of photochemical grid 

models. (Issues related to 

implementation of the standard—

including issues on the attainment 

demonstration and modeling—will be 

addressed in the second phase of 

rulemaking.) 

We are aware that some 8-hour 

nonattainment areas in the Eastern U.S. 

that are classified moderate using 2001–

2003 air quality data will have difficulty 

attaining the NAAQS by the attainment 

date of 2010 (6 years after designation). 

We encourage States to request 

reclassification upward where the State 

finds that an area may need more time 

to attain than their classification would 

permit. In addition, EPA will consider 

bumping up areas subject to the five 

percent provision of section 181(a)(4) of 

the CAA on our own initiative where 

there is evidence that an area is unlikely 

to attain within the period allowed by 

their classification. The rulemaking that 

sets forth designations and 

classifications for the 8-hour standard 

discusses criteria we would use if we 

take this action. 

If a State finds during the attainment 

planning process that feasible controls 

are not available and an area may need 

more time to attain the 8-hour NAAQS 

than their classification would permit, 

the statute provides a remedy. A State 

can receive more time to attain by 

voluntarily submitting a request to EPA 

for a higher classification. Section 

181(b)(3) of the CAA directs EPA to 

grant a State’s request for a higher 

classification and to publish notice of 

the request and EPA’s approval. 

Although the area would have to meet 

the additional requirements for the 

higher classification, the same would be 

true if the area had been initially 

classified higher, under a system that 

placed more areas in higher 

classifications. Voluntary 

reclassification may be an attractive 

option if the State is unable to develop 

a plan that demonstrates an area will 

attain within the time period for its 

assigned classification. Some 

commenters were concerned that it may 

be difficult to develop support for a 

voluntary reclassification among 

interested parties. However, we believe 

such dialogue will lead the State to 

undertake a thorough analysis and 

balancing of how expeditiously the area 

can attain the NAAQS and the cost of 

the measures needed for attainment as 

these issues will be foremost in the 

stakeholders’ minds. 

The EPA prefers Option 2 rather than 

the alternatives that place more areas 

into higher classifications because in 

addition to providing a longer 

maximum timeframe in which to attain, 

the higher classifications impose 

additional statutorily-mandated 

requirements. While the additional 

requirements might be appropriate for 

areas that truly need the longer period 

to attain, it is likely that a number of 

areas that do not need a longer period 

to attain would also be placed in a 

higher classification under these 

alternatives. For example, several areas 

that would be covered by subpart 1 

under Option 2, and which EPA projects 

are likely to attain the 8-hour levels 

NAAQS within 3 years based on 

existing programs, would be classified 

23960 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

13Revised: Background Information Document, 

Hypothetical Nonattainment Areas for Purposes of 

Understanding the EPA Proposed Rule for 

Implementing the 8-hour Ozone National Ambient 

Air Quality Standard in Relation to Re-Opened 

Comment Period—Illustrative Analysis Based on 

2000–2002 Data. U.S. Environmental Protection 

Agency, Office of Air and Radiation, Office of Air 

Quality Planning and Standards. Draft. October 

2003. Available at: http://www.epa.gov/ttn/naaqs/

ozone/o3imp8hr/.

14These areas included: (a) The transitional areas 

under section 185A (areas that were designated as 

an ozone nonattainment area as of the date of 

enactment of the CAA Amendments of 1990 but 

that did not violate the 1-hour ozone NAAQS 

between January 1, 1987, and December 31, 1989); 

(b) nonattainment areas that had incomplete (or no) 

recent attaining data and therefore could not be 

designated attainment; and (c) areas that were 

violating the 1-hour ozone NAAQS by virtue of 

their expected number of exceedances, but whose 

design values were lower than the threshold for 

which an area can be classified under Table 1 of 

subpart 2 (submarginal areas). See 57 FR 13498 at 

13524 col. 3 et seq. (April 16, 1992).

15See also: Background Information Document, 

Hypothetical Nonattainment Areas for Purposes of 

Understanding the EPA Proposed Rule for 

Implementing the 8-hour Ozone National Ambient 

Air Quality Standard. Illustrative Analysis Based on 

1998–2000 Data. U.S. Environmental Protection 

Agency, Office of Air and Radiation, Office of Air 

Quality Planning and Standards, Draft, April 2003. 

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

o3imp8hr/.

16For instance, the range of 1-hour ozone design 

values of the hypothetical subpart 1 areas is from 

0.101 ppm to 0.120 ppm, with an average of 0.111 

ppm. The range of 1-hour design values of subpart 

2 areas is from 0.122 ppm to 0.175 ppm with an 

average of 0.133 ppm. See docket document OAR–

2003–0079–0573 (REVISED: Background 

Information Document, Hypothetical 

Nonattainment Areas for Purposes of 

Understanding the EPA Proposed Rule for 

Implementing the 8-hour Ozone NAAQS in 

Relation to Re-Opened Comment Period) for the 

data used for these statistics.

as moderate areas under Alternative B.13

In those areas, the additional moderatearea control requirements are unlikely 

to be needed for expeditious attainment. 

The EPA believes that under any of 

the classification approaches that were 

considered there will be areas that are 

‘‘misclassified’’—i.e., the classification 

will not reflect the time the area needs 

to attain and the level of controls 

needed. The statute does not allow EPA 

to reclassify an area to a lower 

classification, except as provided in 

section 181(a)(4) regarding an initial 5 

percent adjustment. It does, however, as 

described above, provide continuing 

authority for areas to be reclassified to 

a higher classification. For that reason, 

EPA believes the better approach is to 

use a scheme that may classify areas too 

low and areas that need more time to 

attain can use the voluntary 

reclassification provision of the CAA to 

obtain the appropriate classification.

(ii) How is Option 2 consistent with 

the CAA as Interpreted by the Supreme 

Court? The legal framework for Option 

2 is described in detail in the June 2, 

2003 proposed rule (68 FR 32813). In 

short, EPA relies on the Supreme 

Court’s recognition that there is a gap in 

the statute with respect to areas ‘‘whose 

ozone levels are greater than the new 

standard (and thus not attaining) but 

less than the approximation of the old 

standard codified by Table 1.’’ Thus, for 

areas with a 1-hour design value above 

the level codified in Table 1, EPA 

interprets the Supreme Court as 

determining that the CAA mandates that 

they be classified under subpart 2. For 

all other areas, the Court indicates there 

is a gap and EPA must determine a 

reasonable approach for classifying 

these areas. Option 2 is consistent with 

the CAA as interpreted by the Supreme 

Court because it places all areas with a 

1-hour design value of 0.121 ppm or 

greater in subpart 2 and, for the reasons 

provided below, EPA’s decision to 

classify all ‘‘gap’’ areas under subpart 1 

is reasonable. 

As we noted in the June 2, 2003 

proposal (68 FR 32814), when faced 

with a similar issue following 

enactment of the CAA Amendments of 

1990, we determined that areas that 

Congress did not mandate fall into the 

classification scheme of subpart 2 

should be subject to only the planning 

obligations of subpart 1.14 We believe it 

is appropriate to continue that 

interpretation of the CAA for 8-hour 

ozone areas—despite the fact that a 

significant number of areas designated 

nonattainment for the 8-hour NAAQS 

will fall into this group. This decision 

is reasonable because subpart 2 was 

developed by Congress 13 years ago and 

our scientific understanding of the 

causes of ozone pollution and the 

transport of ozone and its precursors has 

significantly advanced. In addition, 

subpart 1 was developed at the time that 

the 1-hour NAAQS was the NAAQS of 

concern. At that time, many areas had 

a long-term ozone problem that they had 

been unable to solve under the more 

flexible pre-1990 provisions of the CAA. 

The 8-hour NAAQS is different in many 

ways from the 1-hour NAAQS. 

Moreover, the areas that will be subject 

to subpart 1 are primarily areas that 

have not had the long-term pollution 

problem that Congress was concerned 

about when it created subpart 2.

Congress enacted subpart 2 with the 

understanding that all areas (except 

marginal areas, for which few, if any, 

controls for existing sources were 

required) would have to employ 

additional local controls to meet the 1-

hour ozone NAAQS in a timely fashion. 

Since then, many local, regional and 

national control measures have been 

implemented, our understanding of the 

importance of interstate pollution 

transport has improved, and we have 

promulgated interstate NOX transport 

rules to address transported pollution 

(the NOX SIP call, October 27, 1998, 63 

FR 53756). Today, regional modeling by 

EPA indicates that the majority of 

potential 8-hour nonattainment areas 

that fall into the gap will attain the 8-

hour NAAQS by 2007 based on 

reductions from the NOX SIP Call, the 

Federal Motor Vehicle Emissions 

Control Program, and other existing 

Federal and State control measures, 

without further local controls. 

Some gap areas would be classified as 

moderate areas if placed under subpart 

2. The EPA regional modeling shows 

that many of these are projected to 

attain by 2007 through existing regional 

or national measures. (The proposal 

provides estimates of the numbers of 

areas, see 68 FR 32814, col. 3).15 If these 

areas were to be classified as moderate, 

they would be required to implement 

statutorily specified controls for 

moderate areas. We believe it is 

reasonable to adopt an approach that 

would not mandate new local controls 

in areas projected to meet the NAAQS 

within 3 years through emissions 

reductions required by existing 

programs.

Some commenters contended that 

placing these areas in subpart 1 created 

an ‘‘equity’’ problem because other areas 

with a similar 8-hour ozone design 

value would be placed under subpart 2. 

The EPA considered this issue when it 

reopened the comment period and set 

forth alternatives that would have 

placed areas with similar 8-hour design 

values in the same classification. While 

in one light such a situation may be 

perceived as inequitable, EPA believes 

that this is generally not the case. As an 

initial matter, EPA notes that the areas 

that fall under subpart 2 are areas with 

higher ozone 1-hour peak 

concentrations—i.e., areas with levels 

above the 1-hour NAAQS.16 Thus, the 

areas classified under subpart 1 do not 

have the same type of ozone problem as 

those classified under subpart 2 and the 

same control programs may not be 

needed for both types of areas. We note 

that the areas that will be classified 

under subpart 2 are the type of area that 

Congress considered at the time that it 

developed subpart 2 and it is more 

likely that subpart 2 will provide 

benefits for these areas. We also note 

that in the proposed rule, we proposed 

several ways to make the obligations 

under subpart 1 similar to those under 

subpart 2 for areas with a similar ozone 

problem. Thus, there are other means to 

address any inequities; EPA will 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23961

17Background Information Document, 

Hypothetical Nonattainment Areas for Purposes of 

Understanding the EPA Proposed Rule for 

Implementing the 8-hour Ozone National Ambient 

Air Quality Standard. Illustrative Analysis Based on 

1998–2000 Data. U.S. Environmental Protection 

Agency, Office of Air and Radiation, Office of Air 

Quality Planning and Standards, Draft, April 2003. 

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

o3imp8hr/.

18Concern about transport is supported by EPA’s 

modeling for the Interstate Air Quality Rule (69 FR 

4566, January 30, 2004); EPA has proposed to find 

that in the absence of further controls, 25 States 

would significantly contribute to downwind 

nonattainment in other States in 2010, even after 

the NOX SIP Call has been in full effect. As a result, 

EPA has proposed to require the 25 States to reduce 

their emissions of NOX to reduce interstate 

transport, with the reductions to be achieved by 

2010 and 2015.

19These include trying to meet the following 

objectives as discussed above: (a) Providing 

flexibility in determining the most effective control; 

(b) achieving attainment at costs lower than those 

for strategies with prescribed measures; (c) 

providing flexibility in addressing nonattainment 

areas that are have difficulty attaining due to 

transport; and (d) ensuring expeditious but 

reasonable attainment dates.

consider equity and other factors in 

deciding control requirements for 

subpart 1 areas in Phase 2.

Most of the gap areas would be 

classified as marginal if classified under 

subpart 2 by 8-hour design value.17

Because control requirements for 

marginal areas are similar to those for 

subpart 1 areas, and because most of 

these areas are projected to attain within 

3 years, the distinction in regulatory 

category may make no practical 

difference for many of these areas. 

However, placing these areas under 

subpart 1 provides States and EPA with 

greater discretion to handle 

implementation difficulties that might 

arise in some of these areas. For 

example, a gap area might be unable to 

attain within the maximum attainment 

date for marginal areas (3 years after 

designation) because of pollution 

transport from an upwind 

nonattainment area with a later 

attainment deadline. In that event, 

subpart 2 would call for the area to be 

reclassified as moderate and for the area 

to implement additional local controls 

specified for moderate areas. For areas 

under subpart 1, however, we could 

provide additional time for the area to 

attain while the upwind sources 

implemented required controls if this 

were determined to be a more effective 

or more appropriate solution. Although 

regional modeling projections indicate 

that the NOX SIP Call will bring most 

gap areas into attainment by 2007, some 

States have voiced concern that 

interstate or intrastate pollution 

transport may make timely attainment 

difficult for some 8-hour areas with 

near-term attainment deadlines (e.g.,

2007). Subpart 1 would provide States 

and EPA with more flexibility on the 

remedy in any such cases, while still 

requiring that subpart 1 areas adopt all 

reasonably available control measures to 

attain as expeditiously as practicable.18

Some may perceive the placement of 

gap areas in subpart 1 (based on their 1-

hour design values) as inequitable 

compared to placing other areas that 

have similar 8-hour design values in 

subpart 2 (based on their 1-hour design 

values). We do not believe, however, 

that it makes sense to limit our authority 

by placing gap areas in subpart 2 even 

though they may have 8-hour design 

values similar to areas that will be 

classified under subpart 2.

An advantage of Alternatives A and B 

was that they avoided or reduced equity 

concerns raised by some commenters 

with Option 2. Regardless, we believe 

that equity considerations should not 

override other considerations in 

determining how to best help areas 

attain the 8-hour NAAQS. Congress 

mandated that areas with 1-hour ozone 

levels above the level 0.121 ppm be 

classified under subpart 2. However, 

Congress did not specifically address 

the areas that fall into the ‘‘gap.’’ Where 

Congress has left to EPA’s discretion 

how to classify areas, we believe that 

factors we have considered above 19

outweigh any desire for ‘‘equity.’’

Additionally, we note that since 1990 

we have learned that NOX control is 

more important for many areas than was 

recognized at the time of the 1990 CAA 

Amendments. Some mandatory 

measures in subpart 2, such as the 15 

percent VOC reduction required for 

certain areas, focus on VOC reductions. 

In some areas it will be more effective 

and less costly to reduce ozone through 

a strategy that places more emphasis on 

NOX than VOC, and a 15 percent VOC 

reduction may not be part of an optimal 

strategy. Subpart 1 would allow such 

areas greater flexibility on choice of 

controls. 

In summary, Option 2 meets the 

policy goals EPA specified in the 

proposal—most importantly, providing 

flexibility, and encouraging expeditious 

attainment of the NAAQS—and is 

consistent with the Supreme Court’s 

ruling. Commenters were divided on the 

merits of different classification 

approaches and no single option 

appealed to a large majority of 

stakeholders. On balance, EPA 

determined that Option 2 was preferable 

to the other options identified. Thus, 

EPA is adopting Option 2.

3. Comments and Responses 

This preamble briefly summarizes 

major comments on each portion of the 

Phase 1 rule and generally provides a 

brief response to those comments. The 

response to comment (RTC) document 

presents a more complete description of 

comments received and a more 

complete response to those comments. 

Comment: The commenters were split 

on whether they preferred Option 1, 

under which all areas are classified 

under subpart 2 of the CAA, or Option 

2, under which 8-hour nonattainment 

areas with 1-hour ozone design values 

of 0.121 ppm or greater at the time of 

designation are classified under subpart 

2 and all other 8-hour nonattainment 

areas are classified under subpart 1. 

Those who supported Option 2, 

indicated it made better policy sense, 

was more flexible and more appropriate 

than Option 1, cost less, was better 

integrated with other regulations, 

provided more reasonable attainment 

dates, and was more consistent with the 

Supreme Court decision. A number of 

commenters supported Option 2, but 

recommended variations of that 

approach. These commenters raised one 

(or both) of two concerns with the 

approach recommended by EPA: (1) 

Since most of the areas fall into the 

lower classifications with short-term 

attainment dates, it does not provide 

sufficient time for many areas to attain; 

and (2) since some areas classified 

under subpart 1 will have a more severe 

8-hour ozone problem than some areas 

classified under subpart 2, Option 2 is 

or may be perceived as inequitable. In 

addition, several commenters 

recommended options different than 

either of the options proposed by EPA. 

Those who favored Option 1 argued 

that it was more consistent with the 

Supreme Court’s decision and the CAA, 

that Subpart 2 was more likely to 

produce progress and faster attainment, 

was more consistent with Subpart 2 of 

the CAA, was more equitable and fair, 

and that Subpart 1 had other problems 

that made it less desirable. 

Some commenters claimed both 

Options 1 and 2 were flawed, based on 

concerns about transport and concerns 

related to the Supreme Court decision. 

We received comments on the 

translation of Section 181’s Table 1. 

These comments addressed the 

concerns such as: the proposed 

translation could result in attainment 

deadlines which are unrealistic and 

unachievable; it would be more logical 

and more consistent with the nature of 

the standard being implemented—the 8-

hour standard—for EPA to translate the 

Table 1 thresholds into approximate 8-

hour equivalents; and the starting 

threshold should be different from what 

EPA proposed. Some commenters 

23962 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

offered other alternatives for the 

translation and/or the starting threshold. 

There were several specific comments 

related to the draft regulatory text. 

Our rationale for adopting Option 2 as 

the final classification approach is 

presented above. Below is a brief 

synopsis of the response to major 

comments. 

Response to Comments Supporting 

Option 2: We generally agree with these 

comments and the final rule 

incorporates Option 2. 

Response to Comments that 

Supported Option 2, But 

Recommending Variations That Would 

Provide More Time for Attainment:

Based on our projections of future air 

quality based on regional modeling and 

experience with ozone control in the 

past, we believe that States may find 

during the attainment planning process 

that a limited number of areas may need 

more time to attain the 8-hour NAAQS 

than their classification would permit. 

However, the statute provides a remedy 

for this situation. A State can receive 

more time to attain by voluntarily 

submitting a request to EPA for a higher 

classification—including the 

classification they had under the 1-hour 

NAAQS. The CAA (Section 181(b)(3)) 

directs EPA to grant a State’s request, 

and to publish notice of the request and 

EPA’s approval. Although the area 

would have to meet the additional 

requirements for the higher 

classification, the same would be true if 

the area had been initially classified 

higher, under a classification system 

that placed more areas in higher 

classifications. The EPA recognizes that 

voluntary reclassification is a legitimate 

option under the CAA, and may be an 

attractive option if the State is unable to 

develop a plan that demonstrates an 

area will attain within the time period 

for its assigned classification. As noted 

in the October 21, 2003 notice 

reopening the comment period, we 

considered other classification 

approaches, including those suggested 

by commenters and EPA’s Alternatives 

A and B, which would provide more 

areas with later attainment dates by 

placing more areas in higher 

classifications. However, EPA found 

that alternatives that provided more 

time to the areas with the worst ozone 

problems also provided higher 

classifications, accompanied by 

additional statutorily-mandated 

requirements, for areas that EPA 

believes may attain by the 2007 ozone 

season based on projected emissions 

reductions from existing programs. 

Under these approaches, these areas 

would be subject to controls that may 

not be necessary for attainment. The 

EPA believes it is more appropriate to 

use the statutory mechanism for a 

voluntary bump up for areas classified 

‘‘too low’’ than to mandate controls for 

areas based on a classification that is 

‘‘too high.’’

Response to Comments that Noted 

that Option 2 May Be Perceived as 

Inequitable: A number of other 

commenters dismissed the 

characterization of Option 2 as being 

inequitable. The EPA’s response to the 

equity issue is discussed above. 

Response to Comments that 

Recommended Options Different than 

the Options Proposed by EPA: Certain 

commenters suggested that areas still 

not meeting the 1-hour NAAQS should 

continue to implement the 1-hour 

NAAQS under subpart 2, but once the 

NAAQS is attained (or all mandated 

controls were implemented) the area 

would implement the 8-hour NAAQS 

under subpart 1. All areas attaining the 

1-hour NAAQS would begin 

implementing the 8-hour NAAQS under 

subpart 1. 

As explained more fully in the 

response to comments (RTC) document, 

EPA does not believe this approach is 

consistent with the CAA or the Supreme 

Court’s decision on implementation of a 

revised ozone NAAQS. The issue before 

the Court was whether the classification 

provisions of subpart 2 apply for 

purposes of implementing the revised 8-

hour ozone NAAQS. The Court 

unequivocally stated that those 

provisions do apply for purposes of 

implementing the 8-hour ozone 

NAAQS. 531 U.S. 482–84. We believe 

that any option that does not provide a 

role for the subpart 2 classification 

structure in implementing the 8-hour 

NAAQS is not consistent with the 

Court’s interpretation of the CAA. 

Commenters suggested several other 

options, some of which were described 

in our notice reopening the public 

comment period. Under one of these 

options, we would reduce the range for 

the subpart 2 classifications, which 

would have classified more subpart 2 

areas in higher classifications, thereby 

extending the maximum period for 

attainment. We have addressed the 

problems associated with that kind of 

classification structure above. Under 

another of these options, the 

classification structure would have 

relied solely on 8-hour ozone design 

values. This approach was a variant of 

Option 2 in which all areas with 8-hour 

design value of less than a value that is 

equivalent to the 1-hour value of 0.121 

ppm would be covered by subpart 1. 

This variant of Option 2 has the effect 

of moving source areas from Subpart 1 

to Subpart 2 and at the same time 

placing more Subpart 2 areas in lower 

classification categories. The Subpart 2 

areas placed in these lower 

classification categories would be 

subject to fewer mandatory 

requirements. However, EPA believes 

that this approach would increase the 

number of areas for which the initial 

classification would not provide 

sufficient time to attain.

The EPA’s assessment of these and 

other options is included in the RTC 

document. 

Response to Comments that Favored 

Option 1 and Argued that it was More 

Consistent with the Court Decision and 

the CAA: We believe Option 2 is a 

reasonable method for addressing the 

gaps that the Supreme Court recognized 

in the CAA. Option 2 provides more 

flexibility than Option 1 to States and 

Tribes to design strategies to meet the 8-

hour ozone NAAQS in the most 

effective and least costly way 

considering local circumstances, while 

requiring and providing incentives for 

expeditious attainment of the healthbased NAAQS. Since Option 1 would 

require all 8-hour nonattainment areas 

to be covered under subpart 2 with its 

set of prescriptive control measures, it 

would generally cost more but would 

not require attainment any more 

expeditiously than Option 2. Both 

subpart 1 and 2 require attainment dates 

‘‘as expeditious as practicable’’

regardless of the maximum attainment 

dates specified in the CAA. 

We believe that Option 2 is consistent 

both with the CAA and the Supreme 

Court’s decision in Whitman as 

described above and in the June 2, 2003 

proposed rule (68 FR 32813). In short, 

EPA relies on the Supreme Court’s 

recognition that there is a gap in the 

statute with respect to areas ‘‘whose 

ozone levels are greater than the new 

standard (and thus not attaining) but 

less than the approximation of the old 

standard codified by Table 1.’’ Thus, for 

areas with a 1-hour design value above 

the level codified in Table 1, EPA 

interprets the Supreme Court as 

determining that the CAA mandates that 

they be classified under subpart 2. For 

all other areas, the Court indicates there 

is a gap and EPA must determine a 

reasonable approach. For the policy 

reasons specified above, in the RTC and 

in the preamble to the proposed rule (68 

FR 32814–15), EPA believes it is 

reasonable to address these ‘‘gap’’ areas 

under subpart 1. 

Response to Comments Asserting that 

EPA does not have Authority to Modify 

Table 1 to Reflect 8-Hour Ozone Values:

We disagree with those commenters 

who claim EPA does not have authority 

to modify Table 1 in section 181(a) to 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23963

20Based on data from: Revised: Background 

Information Document, Hypothetical 

Nonattainment Areas for Purposes of 

Understanding the EPA Proposed Rule for 

Implementing the 8-hour Ozone National Ambient 

Air Quality Standard in Relation to Re-Opened 

Comment Period—Illustrative Analysis Based on 

2000–2002 Data. U.S. Environmental Protection 

Agency, Office of Air and Radiation, Office of Air 

Quality Planning and Standards. Draft. October 

2003. Available at: http://www.epa.gov/ttn/naaqs/

ozone/o3imp8hr/.

21Based on data from: Revised: Background 

Information Document, Hypothetical 

Nonattainment Areas for Purposes of 

Understanding the EPA Proposed Rule for 

Implementing the 8-hour Ozone National Ambient 

Air Quality Standard in Relation to Re-Opened 

Comment Period—Illustrative Analysis Based on 

2000–2002 Data. U.S. Environmental Protection 

Agency, Office of Air and Radiation, Office of Air 

Quality Planning and Standards. Draft. October 

2003. Available at: http://www.epa.gov/ttn/naaqs/

ozone/o3imp8hr/.

22As provided below, in the section regarding 

attainment dates for the 8-hour ozone NAAQS, 

subpart 2 actually specifies that the attainment 

period runs from the date of the 1990 CAA 

Amendments rather than the date of designation. 

However, as we explain in the attainment date 

section, for purposes of 8-hour NAAQS, we believe 

Congress intended those dates to run from the date 

of designation.

23The only control obligations mandated for 

marginal areas are that they fix flaws in their RACT 

rules and their I/M programs that existed at the time 

of the 1990 CAA Amendments. Areas designated 

nonattainment for the 1-hour NAAQS, which were 

the areas with the pre-90 RACT and I/M obligations, 

have already made these corrections. It is unlikely 

that any areas designated nonattainment for the 8-

hour NAAQS will not have already made these 

corrections if they have such programs in place.

reflect 8-hour design values. We 

acknowledge that EPA is applying the 

statute other than in the way it is 

written. We believe we have authority to 

do so because to apply it as written 

would produce absurd results. In 

enacting the classification structure in 

subpart 2, Congress linked the severity 

of an area’s air quality problem with the 

time needed to attain and the stringency 

of the controls that an area would be 

required to adopt. Thus, areas with a 

more significant air quality problem 

were granted more time to attain the 

NAAQS, but were also subject to more 

stringent controls. If we applied Table 1, 

as written, for purposes of the 8-hour 

NAAQS, the classification scheme 

would not be related to the severity of 

the area’s 8-hour ozone problem. 

If 1-hour values were used to classify 

8-hour nonattainment areas based solely 

on Table 1 as presented in section 181 

of the CAA, there would be 2 serious 

areas, 9 moderate areas, and 26 marginal 

areas.20 Unlike other areas, marginal 

areas (as explained elsewhere) are not 

subject to the requirement for 

attainment plans to ensure that they 

identify and adopt the controls 

necessary for attainment by their 

attainment date. Based on EPA’s 

modeling projections of future ozone 

levels and past experience working with 

states on ozone SIPs, EPA believes it is 

clear that most of the areas that would 

be marginal if classified by 1-hour 

design value would fail to attain the 8-

hour standard without additional local 

controls by the spring 2007 attainment 

date for marginal areas. These include 

major cities with elevated 8-hour ozone 

levels such as Chicago and Dallas-Fort 

Worth. In fact, over a quarter of these 

areas that would be marginal if 

classified by 1-hour design values were 

not projected to attain the 8-hour 

NAAQS without additional local 

controls even by 2010. The projection 

that many of these areas would not 

attain by 2010 without additional 

controls is further evidence they would 

not attain in 2007 without further 

controls. Thus, for many areas, 

classifying by 1-hour design value 

would not reflect the severity of their 8-

hour ozone problem or the time needed 

to attain.

An additional problem is that the 

practical effect of placing many areas 

that cannot attain by 2007 into the 

marginal classification would be to 

delay development of plans for 

improving air quality to meet the 8-hour 

standard. This would be inconsistent 

with Congress’s intent, reflected in the 

requirements of the Act, that areas attain 

air quality standards as expeditiously as 

practicable. Rather, Congress intended 

classifications to approximate the 

attainment needs of areas. In this 

circumstance, it is appropriate for EPA 

to make, by way of regulation, a limited 

modification to Table 1 to reflect 

Congressional intent. 

We recognize that even under the 

approach adopted by EPA, some of the 

same anomalies will be created. For 

example, some areas may need more 

time to attain than provided by the 

area’s initial classification. However, 

these anomalies are more limited 

because the classifications more 

appropriately recognize an area’s 8-hour 

ozone problem. As noted above in our 

discussion on the basis for selecting 

Option 2, we believe the statutory 

mechanisms such as voluntary bump 

ups can address these inequities in the 

limited situations in which they arise. 

In comparison, if 1-hour values were 

used to classify 8-hour nonattainment 

areas based solely on Table 1 as 

presented in section 181 of the CAA, 

there would only be 2 serious areas, 9 

moderate areas, and 26 marginal areas. 

This is a much different distribution 

than using Option 2, in which there 

would be more areas in the higher 

classifications (1 severe-17, 4 serious, 21 

moderate) and far fewer (11) marginal 

areas. And, under the adopted 

approach, the distribution under 

subpart 2 is based on the area’s 8-hour 

design value not its 1-hour design 

value.21

Response to Comments Favoring 

Option 1 Arguing that Subpart 2 was 

more Likely to Produce Progress and 

Faster Attainment: Other commenters 

raised concerns that because subpart 1 

is less prescriptive than subpart 2 and 

potentially allows later attainment dates 

for the less polluted areas, areas will not 

in fact attain the 8-hour NAAQS as 

quickly under subpart 1 as they would 

be required to do under subpart 2. As 

evidence, these commenters point to the 

past failure of areas to attain the ozone 

NAAQS prior to the enactment of 

subpart 2 in 1990. We disagree. 

Subpart 1 and subpart 2 both require 

areas to attain the 8-hour ozone NAAQS 

as expeditiously as practicable. Thus, 

the intention of the CAA is that 

regardless of whether an area is covered 

under subpart 1 or subpart 2, it must 

achieve clean air on the same 

schedule— i.e., as expeditiously as 

practicable. In addition, CAA section 

172(c)(1) requires that a SIP for a 

nonattainment area ‘‘* * * shall 

provide for implementation of all 

reasonably available control measures 

[‘‘RACM’’] as expeditiously as 

practicable * * * and shall provide for 

attainment of the [NAAQS].’’ In 

reviewing SIPs for approvability under 

subpart 1, we will evaluate whether the 

emission control measures in the SIP 

and the timing of implementation 

comports with the RACM and 

attainment provisions to ensure all 

RACM are adopted and implemented as 

expeditiously as practicable and that the 

attainment date is as expeditious as 

practicable. Subpart 1 sets an initial 

outside attainment date of 5 years 

following designation for the 8-hour 

NAAQS.

Subpart 2 sets the earliest outside 

attainment date as 3 years following 

designation 22 for marginal areas. Under 

subpart 2, marginal areas are not 

required to submit attainment 

demonstrations and, for all practical 

purposes, are not required to adopt 

additional local controls for existing 

sources.23 Thus, in general, Congress 

anticipated that these areas would come 

into attainment within 3 years without 

significant additional local controls. We 

believe that most areas covered under 

subpart 1 with air quality problems 

similar to marginal areas will in fact 

come into attainment with the 8-hour 

23964 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

24See 68 FR 32814.

NAAQS on a similar timeframe as areas 

classified as marginal (i.e., 3 years 

following designation).24 In fact, we 

believe the prospects for near-term 

attainment based on existing programs 

are more favorable now than they were 

in 1990 because national and regional 

control programs already in place will 

achieve substantial reductions in NOX

and VOC emissions prior to May 2007. 

These include the regional NOX SIP 

Call, which mandates interstate 

transport controls for certain States by 

May 31, 2004 (63 FR 53756, October 27, 

1998); progressively more stringent 

emissions standards for new cars and 

light-duty trucks issued since 1990, 

most recently the Tier 2 motor vehicle 

emission standards, and associated 

sulfur-in-gasoline requirements (65 FR 

6698, February 10, 2000); and the heavy 

duty diesel rule (66 FR 5002, January 

18, 2001).

For areas covered under subpart 1 

with an air quality problem similar to 

subpart 2 moderate areas, the 

presumptive maximum attainment date 

will be 1 year earlier—i.e., 5 years 

following designation rather than 6 

years. To receive a later attainment date, 

section 172(a)(2)(A) requires such areas 

to demonstrate more time is needed 

based on the severity of nonattainment 

and the availability and feasibility of 

pollution control measures. As to the 

first factor—severity of nonattainment—

EPA believes that it would be difficult 

to justify providing a period longer than 

6 years since similar areas classified 

under subpart 2 would not have a longer 

time to attain. Thus, such an area would 

need to demonstrate that the availability 

and feasibility of control measures 

(including those mandated under 

subpart 2) would justify an extension 

longer than 6 years. A similar analysis 

would apply if an area with an even 

more significant air quality problem 

were covered under subpart 1. For this 

reason, we do not believe that public 

health concerns support classifying all 

areas with similar air quality under 

subpart 2. 

4. Under the Final Classification 

Approach, How Will EPA Classify 

Subpart 1 Areas? (Section VI.A.4. of 

Proposal; 68 FR 32813; Section 51.904 

of Draft and Final Rules) 

a. Background. Section 172(a)(1) 

provides that EPA has the discretion to 

classify areas subject to subpart 1. We 

proposed two options with respect to 

classifications for areas subject only to 

subpart 1 (68 FR 32813). First, we 

proposed to create no classifications. 

Second, we proposed to create one 

classification—an interstate 

overwhelming transport classification 

for areas that submit a modeled 

attainment demonstration showing the 

area’s nonattainment problem is due to 

overwhelming transport and that meet 

the definition of a rural transport area 

under section 182(h) of the CAA. As we 

noted in the June 2, 2003 proposal, the 

area would receive an attainment date 

that is consistent with section 

172(a)(2)(A), but that takes into 

consideration the following: 

• The attainment date of upwind 

nonattainment areas that contribute to 

the downwind area’s problem; and 

• The implementation schedule for 

upwind area controls, regardless of their 

geographic scope (e.g., national, 

regional, statewide, local). 

This option would partially address 

Tribal concerns about designations 

where a Tribal area designated 

nonattainment does not contribute 

significantly to its own problem. This is 

one of the key issues for the Tribes who 

seek to have economic growth from new 

sources within their jurisdiction but that 

have difficulty obtaining emission 

reduction offsets from sources located 

either inside or outside Tribal areas. 

b. Summary of final rule. We are 

adopting the second option but 

modified as a result of comments. We 

are creating an overwhelming transport 

classification that will be available to 

subpart 1 areas that demonstrate they 

are affected by overwhelming transport 

of ozone and its precursors and 

demonstrate they meet the definition of 

a rural transport area in section 182(h). 

However, areas would not have to 

demonstrate that transport was due 

solely to sources from outside the State 

(interstate transport) as was implied by 

the June 2, 2003 proposal. All other 

areas that do not qualify for the 

overwhelming transport classification 

would not be classified. In addition, an 

area may consider the effects of 

international transport of ozone and 

precursors in determining if the area is 

affected by overwhelming transport. 

An overwhelming transport 

classification will accomplish several 

purposes. One purpose is to 

communicate to the public the need for 

an attainment date to account for the 

control timetable for upwind areas 

whose emissions are overwhelmingly 

contributing to the area’s nonattainment 

problem. An area will be classified as an 

‘‘Overwhelming Transport Area’’ upon 

full approval of an attainment 

demonstration SIP that demonstrates, 

using EPA-approved modeling, that the 

nonattainment problem in the area is 

due to ‘‘overwhelming transport,’’ as set 

forth in guidance. The area must also 

meet that part of the definition of a rural 

transport area in section 182(h) that 

requires that an area not be in or 

adjacent to a Consolidated Metropolitan 

Statistical Area (CMSA). 

In approving an attainment date for 

the area, EPA will consider: (1) The 

attainment date of the upwind 

nonattainment area or areas that 

contribute to the downwind area’s 

problem; and (2) the implementation 

schedule for upwind area controls, 

regardless of their geographic scope 

(e.g., national, regional, statewide, 

local). 

In the June 2003 proposal, we 

proposed that such areas would be 

subject to requirements similar to those 

that apply to areas classified as marginal 

under subpart 2. We are considering the 

comments we received on the issue of 

applicable requirements for these 

subpart 1 areas and will address this 

issue after we issue guidance on 

assessment of overwhelming transport. 

In addition, the proposed rule also 

indicated that we could consider more 

flexibility for conformity for such areas. 

In our proposed transportation 

conformity rule published on November 

5, 2003 (68 FR 62690), we did not 

propose any specific conformity 

flexibility for areas affected by ozone 

transport. However, many of the 

proposed options, including the types of 

emissions tests used in conformity, 

would be available to areas affected by 

transport, as well as other types of 8-

hour ozone areas. In addition, the 

existing transportation conformity rule 

already provides flexibility in such 

things as transportation modeling 

requirements for smaller areas with less 

severe local air quality problems. Also, 

EPA intends to propose in a few months 

more flexible NSR provisions that 

would apply in such areas.

We believe the overwhelming 

transport classification for areas covered 

under subpart 1 is consistent with the 

CAA and is reasonable. We believe that 

the classification should be restricted to 

rural areas because these areas will 

generally not have significant sources of 

emissions to control and therefore are 

not likely to contribute much to their 

own nonattainment problem. There are 

exceptions, of course, such as rural 

areas with large sources such as power 

plants, but such areas would also need 

to meet the other criteria for the 

classification, such as not contributing 

significantly to nonattainment in other 

areas. 

In determining an attainment date for 

areas classified as ‘‘transport,’’ we 

would apply the criteria in section 

172(a)(2)(A). The second criterion in 

section 172(a)(2)(A)—the availability 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23965

and feasibility of control measures—will 

allow EPA to consider the effects of 

transported pollution in setting an 

appropriate attainment date for these 

areas of no later than 10 years following 

designation. 

We recognize that there may be areas 

affected by transport that don’t meet the 

definition of rural transport. However, 

in determining attainment dates for 

areas under section 172(a)(2)(A), we can 

consider the availability and feasibility 

of control measures; thus, areas that do 

not meet the definition of a rural 

transport area should be able to adopt 

an attainment date that reflects the time 

period for reductions in upwind areas 

that are contributing to nonattainment. 

The EPA decided not to exercise its 

discretion to create additional 

classifications for subpart 1 areas. We 

do not believe another classification is 

necessary for expeditious attainment of 

the 8-hour NAAQS for these other 

subpart 1 areas. 

The final rule (section 51.904(a)) 

provides for a subpart 1 area to be 

classified as an overwhelming transport 

area if it meets the criteria as specified 

for rural transport areas under section 

182(h) of the CAA and overwhelming 

transport guidance that we will issue in 

the future. Although EPA’s June 2, 2003 

notice referenced an EPA guidance 

document as the criteria for determining 

the contribution of sources in one or 

more other areas are an overwhelming 

cause of an area being designated 

nonattainment, we believe that guidance 

needs to be updated. Thus, we are 

retracting our previous guidance and 

will issue revised guidance. We plan to 

address control requirements applicable 

to these areas in Phase 2. 

c. Comments and Responses 

Comment: Most of the commenters 

who commented on classifications for 

subpart 1 areas objected to the 

requirement that to receive an 

overwhelming transport area 

classification an area must demonstrate 

that it is a rural transport area. Many of 

these commenters pointed out that there 

are a number of areas that do not meet 

that definition and that do not generate 

a significant portion of emissions that 

contribute to the area’s nonattainment 

problem. Some also stated that the CAA 

does not mandate this as a criterion and 

thus the test was unduly restrictive. 

These commenters asked that the 

availability of the overwhelming 

transport classification be based only on 

whether an area is a victim of 

overwhelming transport. 

Response: The CAA does not mandate 

that an area be considered rural in order 

to receive an overwhelming transport 

classification under subpart 1. However, 

we believe that areas that are not rural, 

even if they are affected to a significant 

degree by transport, in general 

contribute at least some degree to their 

own and likely to other areas’

nonattainment problems. The final rule, 

therefore, is as proposed—the 

overwhelming transport classification is 

only available to areas that meet the 

criteria for rural transport areas under 

section 182(h) of the CAA. 

Comment: One commenter suggested 

EPA provide increased flexibility for 

areas that would be classified as 

nonattainment, primarily for reasons 

related to transport. A special category 

for transport areas, should be created for 

areas that are in attainment of the 1-

hour standard but, if not for the impact 

of transport, would not be in violation 

of the new 8-hour standard. The 

regulatory requirements for transport 

area should be minimal and required 

compliance dates should extend out at 

least as long as the upwind states. 

Response: We note that 8-hour ozone 

nonattainment areas covered under 

subpart 1 generally will be close to 

attaining the 1-hour standard. We 

believe the criteria used to determine 

overwhelming transport will invariably 

result in a situation where an area 

subject to overwhelming transport 

would be in attainment of the standard 

but for transport. Subpart 1 provides a 

maximum of 10 years from the effective 

date of nonattainment designation for 

attainment. We note, however, that if 

such an area believes that it would need 

an attainment date longer than 10 years, 

it could request to be reclassified under 

subpart 2 to a classification with a 

longer attainment date. The area would, 

of course, have to meet the requirements 

of its subpart 2 classification (either its 

requested classification or the rural 

transport classification if it so qualifies). 

5. Will EPA Adjust Classifications? 

(Section VI.A.9. of Proposal; 68 FR 

32816; Section 51.903(b) and (c) of Final 

Rule) 

a. Background. Under sections 

181(a)(4) and 181(b)(3), an ozone 

nonattainment area may be reclassified 

to the next higher or lower 

classification. Section 181(a)(4) of the 

CAA states:

If an area would have been classified in 

another category if the design value in the 

area were 5 percent greater or 5 percent less 

than the level on which such classification 

was based, the Administrator may, in the 

Administrator’s discretion, within 90 days 

after the initial classification, adjust the 

classification to place the area in such other 

category. In making such adjustment, the 

Administrator may consider the number of 

exceedances of the national primary ambient 

air quality standard for ozone in the area, the 

level of pollution transport between the area 

and other affected areas, including both 

intrastate and interstate transport, and the 

mix of sources and air pollutants in the area.

Section 181(b)(3) requires the 

Administrator to grant the request of 

any State to reclassify a nonattainment 

area in the State to a higher 

classification. 

b. Summary of final rule. We are 

adopting the approach we included in 

the proposal. For areas subject to 

subpart 2, section 181(a)(4) of the CAA 

provides that classifications may be 

adjusted upward or downward for an 

area if the area’s design value is within 

5 percent of another classification. If, for 

example, an area is subject to a subpart 

2 classification and there is evidence 

that the area will not benefit 

significantly from local controls 

mandated by subpart 2 for the area’s 

classification and can attain within the 

time period specified for the next lower 

classification, the area may obtain some 

relief based on the 5 percent rule in the 

CAA if applicable. In addition, section 

181(b)(3) requires the Administrator to 

grant the request of any State to 

reclassify a nonattainment area in the 

State to a higher classification. 

Section 51.903 was revised from the 

initial draft regulatory text language to 

add the reclassification provisions in 

section 181(a)(4) and 181(b)(3). 

c. Comments and Responses 

Comment: Several commenters 

supported the use of provisions in 

section 181(a)(4) to allow adjustment of 

a classification. Comments indicated 

that this approach could result in cost 

savings in cases where the increased 

controls of the higher classification 

would not be needed for attainment. 

One commenter noted that the 

Administrator should consider several 

factors in making the adjustment under 

section 181(a)(4), including the number 

of exceedances of the NAAQS and 

complexity of the problem. The 

commenter requested that EPA explain 

how the Administrator would make this 

decision and the process that will be 

used. Another commenter 

recommended that the actual test of 

compliance with the provisions of 

section 181(a)(4) should include 

allowance for meteorological fluctuation 

in order to avoid States having to meet 

an average design value well below the 

NAAQS before deemed in compliance. 

Response: The EPA’s guidance on the 

5 percent bump down provision in 

section 181(a)(4) is contained in the 

November 6, 1991 Federal Register (56 

FR 56698) which established the initial 

23966 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

25Memorandum 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.

26As explained in our proposed rule, areas will 

be classified as a matter of law at the same time they 

are designated; thus, we simply refer to 

‘‘designation’’ rather than designation and 

classification.

designations and classifications. In a 

separate Federal Register notice, EPA 

will invite States to submit bump down 

requests. The EPA will describe the 

criteria (including any changes from the 

1991 criteria) for approval of 5 percent 

bump downs in that notice and will 

provide at least a 30-day period for 

States to submit their requests. Section 

181(a)(4) authorizes the Administrator 

to adjust a classification within 90 days 

after the initial classification. The EPA 

continues to believe, as provided in the 

June 2, 2003 proposal, that section 

181(a)(4) does not provide a basis for an 

area to move from subpart 2 to subpart 

1. 

6. Proposed Incentive Feature (Section 

VI.A.6. of Proposal; See 68 FR 32815; 

51.903(b) of Draft Rule) 

a. Background. In the proposed rule 

(68 FR 32815), we sought comment on 

a classification feature that would allow 

areas classified under subpart 2 to 

qualify for a lower classification upon a 

demonstration the area would attain the 

8-hour NAAQS by the earlier attainment 

date of a lower classification. For 

example, an area that would be 

classified ‘‘moderate’’ based on its 8-

hour design value would qualify for a 

‘‘marginal’’ classification by 

demonstrating it would attain the 8-

hour NAAQS within 3 years of 

designation.

b. Summary of final rule. We are not 

including the proposed incentive 

feature in the final rule. We received 

numerous adverse comments on the 

idea, raising both legal and policy 

issues. Because we agree as a policy 

matter that we should not adopt the 

incentive feature, we do not reach the 

legal issue of whether the statute grants 

such authority. Our basis for this 

decision is provided more fully in the 

RTC document, portions of which are 

excerpted below. In short, we believe 

that only a few areas would have 

benefitted from this proposal 

considering the flexibility already 

available under classification Option 2, 

and we believe that the difficulties in 

developing and implementing such an 

approach outweigh any benefits. In 

particular, commenters on the June 2, 

2003 proposal were concerned that we 

did not identify the type of modeling 

that areas could rely on to take 

advantage of this option. While we had 

not identified in the June 2, 2003 

proposal the type of modeling that 

could be used, we had referenced our 

current modeling guidance in the draft 

regulatory text which was published on 

August 6, 2003. Additionally, we 

believe it would be very difficult for an 

area to have completed the necessary 

modeling and for us to approve such a 

SIP submission much in advance of the 

attainment date for a marginal area. 

Further, if the area did not meet that 

attainment date, it would need to begin 

the modeling process over again almost 

immediately. We now believe that it 

makes more sense for the area to prepare 

the modeling required for its higher 

classification and, if the area attains the 

NAAQS earlier than the attainment date 

for its classification, our Clean Data 

Policy 25 will provide relief from RFP 

requirements.

c. Comments and Responses 

Comment: About half the commenters 

that addressed this issue opposed the 

incentive feature. These comments 

originated mainly from environmental 

organizations and some State and local 

air pollution control agencies and 

organizations. Many of these 

commenters questioned the legal basis 

for such a feature and also believed 

modeling is too inaccurate or unreliable 

to be used for classification purposes. 

They believed that monitoring data 

should be the sole basis for 

classifications. The other comments 

received on this issue supported the 

incentive feature. These comments 

originated mainly from industrial 

representatives and organizations, as 

well as several State and local air 

agencies and transportation agencies 

and organizations. 

Response: Our analysis indicates that 

the incentive feature would not have 

helped very many areas. Of 21 

hypothetical nonattainment areas 

classified as moderate (based on 2000–

2002 air quality data), our modeling 

projects that only 3 would have 

qualified without first adopting further 

controls. No serious or higher classified 

area would have qualified without 

further controls. Very few areas would 

even receive a classification higher than 

moderate. In addition, even if we 

adopted this approach, we do not 

believe there would have been enough 

time for areas seeking a marginal 

classification to submit a plan with local 

controls that demonstrate attainment by 

a Spring attainment date in 2007 and 

implement the controls by the Spring of 

2006. In addition, we would have to 

develop guidance for the demonstration. 

Furthermore, although many 

commenters supported having the 

feature, many other commenters 

objected to the feature on a number of 

grounds. Because of the difficulties 

involved in administering such a 

program, the unfavorable timing, and 

the anticipated low number of areas that 

could benefit from the feature, we are 

not incorporating the feature in the final 

rule. 

A number of commenters who 

opposed the feature contended that the 

approach was not supported by the 

CAA. Since we are not adopting the 

feature in the final rule on policy 

grounds, we do not address the legal 

issues here. 

B. How Will EPA Treat Attainment 

Dates for the 8-Hour Ozone NAAQS? 

(Section VI.B. of Proposal; See 68 FR 

32816; 51.903 and 51.904 Draft and 

Final Rules) 

1. Background 

Under Subpart 2 of the CAA, 

maximum attainment dates are fixed as 

a function of a nonattainment area’s 

classification under Table 1. The CAA 

provides that an area’s attainment date 

must be ‘‘as expeditious as practicable 

but no later than’’ the date provided in 

Table 1 for that area’s classification. The 

statutory dates are specified as a set 

number of years from the date of 

enactment of the CAA Amendments of 

1990. Since a strict application of Table 

1 would produce absurd results for most 

areas (i.e., areas classified as marginal 

would have a November 15, 1993 

attainment date, moderate areas would 

have a November 15, 1996 attainment 

date, etc.), we are promulgating a 

targeted revision of Table 1 to reflect 

attainment dates consistent with 

Congressional intent. 

While the attainment dates in Table 1 

are expressly linked to the date of 

enactment of the CAA Amendments of 

1990, this is also the date on which 

most areas were designated and 

classified as a matter of law. In addition, 

as explained in the preamble to the 

proposed rule (68 FR 32817), other 

provisions of the CAA specify that the 

date for attainment shall run from the 

date of designation and/or classification 

as a matter of law for an area. Consistent 

with this, we proposed that the starting 

point for the set timeframes for 

attainment would be the date an area is 

designated and classified for purposes 

of the 8-hour NAAQS.26 Thus, for 

example, an area classified as marginal 

for the 8-hour NAAQS would have up 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23967

to 3 years from designation to meet that 

NAAQS and a moderate area would 

have up to 6 years from designation to 

attain.

For areas covered under subpart 1, 

attainment dates are set under section 

172(a)(2)(A), which provides that the 

SIP must demonstrate attainment as 

expeditiously as practicable but no later 

than 5 years after designation, with up 

to 10 years after designation permitted 

if the severity of the area’s air pollution 

and the availability and feasibility of 

pollution control measures indicate 

more time is needed. In the draft 

regulatory text, we provided that EPA 

would establish the attainment date for 

an area at the time we approve the area’s 

attainment demonstration. 

2. Summary of Final Rule 

We are adopting the time periods for 

attainment that we proposed for areas 

under both subpart 1 and subpart 2 of 

the CAA. For areas subject to subpart 2 

of the CAA, the maximum period for 

attainment will run from the effective 

date of designations and classifications 

for the 8-hour NAAQS and will be the 

same periods as provided in Table 1 of 

section 181(a):

• Marginal—3 years, 

• Moderate—6 years, 

• Serious—9 years, 

• Severe—15 or 17 years, and 

• Extreme—20 years. 

We are adopting this approach 

because applying the table, as written, 

would produce absurd results. For the 

reasons above and discussed in the 

preamble to the proposed rule, we 

believe it is consistent with 

Congressional intent to begin the time 

periods for attainment specified in 

Table 1 in section 181(a) at the time of 

designation and classification.

Consistent with section 172(a)(2)(A), 

for areas subject to subpart 1 of the 

CAA, the period for attainment will be 

no later than 5 years after the effective 

date of the designation. However, EPA 

may grant an area an attainment date no 

later than 10 years after designation, if 

warranted based on the factors provided 

in section 172(a)(2)(A). The EPA will 

establish an attainment date for each 

subpart 1 area at the time we approve 

an attainment demonstration for the 

area. 

3. Comments and Response 

Comment: Several commenters 

reiterated the CAA’s requirement that 

areas attain the NAAQS as 

‘‘expeditiously as practicable.’’ They felt 

that the attainment deadlines in the 

proposed rule would impede the 

progress that areas have made and 

would subject the general public to 

years of unhealthy air quality. One 

commenter suggested that EPA create 

enforceable short-term compliance dates 

to assure citizens of downwind States 

that upwind States are meeting their 

longer-term compliance deadlines. 

Other commenters felt that the 

attainment dates under both subpart 1 

and 2 that were proposed did not 

provide enough time for areas to attain 

for a number of reasons, such as: areas 

would not be able to take credit for 

emissions reductions from Federal 

measures, the slow turnover of mobile 

source fleets would not achieve the 

needed mobile source reductions in the 

timeframes proposed, EPA’s Clear Skies 

modeling shows that a number of areas 

in the mid-Atlantic and northeast will 

not come into attainment before the 

middle of the next decade, it would not 

be feasible to have stationary and 

mobile source controls in place 3 years 

before the attainment dates for purposes 

of monitoring, etc. However, a number 

of commenters agreed with EPA’s 

proposal to establish attainment dates 

that correspond to the timeframes 

established under subpart 2 of the CAA 

from the date of 8-hour nonattainment 

designations. In addition, one 

commenter stated that the proposal did 

not clearly address how attainment 

dates for subpart 1 areas would be set. 

Finally, several commenters 

recommended that EPA change the 

attainment dates to November or 

December of the attainment year rather 

than in April so areas can use the ozone 

season air quality data from the 

attainment year to demonstrate 

attainment. 

Response: As stated in our June 2, 

2003 proposal, under subpart 2 of the 

CAA, maximum attainment dates are 

fixed as a function of a nonattainment 

area’s classification under Table 1. The 

CAA provides that an area’s attainment 

date must be ‘‘as expeditious as 

practicable but no later than’’ the date 

prescribed in Table 1 for that area’s 

classification. The dates were specified 

as the number of years from the date of 

enactment of the CAA Amendments, 

which was November 15, 1990, which 

was also the date of designation and 

classification by operation of law for 

most subpart 2 areas. We believe that 

applying the attainment dates as 

expressly provided under Table 1 would 

produce absurd results, since a strict 

application of Table 1 would result in 

an attainment date of November 15, 

1993 for marginal areas and an 

attainment date of November 15, 1996 

for moderate areas. Although we believe 

a strict application of the statute would 

produce absurd results, we do not 

believe that allows broad authority to rewrite the statute. Rather, we look to the 

legislative history and other provisions 

of the CAA to discern Congressional 

intent. Consequently, for the reasons 

provided above and in the preamble to 

the proposed rule, we have determined 

that attainment dates will run from the 

effective date of designations and 

classifications for the 8-hour ozone 

NAAQS. Since we are designating and 

classifying areas for the 8-hour ozone 

NAAQS with an effective date of June 

15, 2004, the corresponding attainment 

periods would run from June 15, 2004. 

We do not believe we have authority 

to change the attainment dates to 

November or December of the 

attainment year as several commenters 

requested. We believe that Congress 

would have intended for areas 

designated nonattainment and classified 

under subpart 2 for the 8-hour NAAQS 

to have attainment periods consistent 

with those in Table 1 (e.g., 3 years for 

marginal areas, 6 years for moderate 

areas, etc.) This would result in the 8-

hour marginal attainment date being 3 

years from the effective date of 

designations for the 8-hour NAAQS (i.e.,

June 15, 2007), the moderate attainment 

being 6 years from the effective date of 

designations for the 8-hour NAAQS (i.e.,

June 15, 2010), etc. 

Additionally, EPA does not have the 

authority to shorten attainment dates or 

lengthen attainment dates to allow areas 

to take credit for emissions reductions 

from future Federal or regional 

measures as several commenters 

suggested. The statute provides for all 

areas to attain as expeditiously as 

practicable. As part of its attainment 

demonstration, a State must 

demonstrate that there are no reasonably 

available controls that can expedite 

attainment. Therefore, States must 

address why they cannot attain earlier 

than the maximum attainment date. As 

to longer attainment dates, States may 

request a voluntary bump up if they 

believe an area cannot attain by its 

maximum statutory attainment date 

through the adoption of RACM. 

For areas classified under subpart 1, 

attainment dates will be set under 

section 172(a)(2)(A), which provides 

that the SIP must demonstrate 

attainment as expeditiously as 

practicable but no later than 5 years 

after designation or 10 years after 

designation if the severity of the area’s 

air pollution and the availability and 

feasibility of pollution control measures 

indicate more time is needed. Under 

subpart 1, we will establish an 

attainment date for an area at the time 

we approve an attainment 

demonstration for the area. The State 

23968 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

27The 1-hour NAAQS, an exceedance-based 

NAAQS, is basically allowed to be exceeded an 

average of only once a year over a 3-year period. 

(This is a generalization of how attainment is 

determined; the actual method considers other 

factors such as completeness of the data.) See 40 

CFR, appendix H. In contrast, the level of the 8-

hour NAAQS (0.08 ppm, 8-hour average) can be 

‘‘exceeded’’ more than once a year on average 

because the form (concentration-based) of that 

NAAQS is determined by averaging the 4th high 

reading for each year over a 3-year period. Section 

50.10(b) provides that the 8-hour NAAQS is met at 

an ambient air quality monitor when the average of 

the annual fourth-highest daily maximum 8-hour 

average ozone concentration is less than or equal to 

0.08 ppm. 40 CFR part 50, appendix I. Example 1 

in appendix I provides an example of an ambient 

monitoring site attaining the 8-hour ozone NAAQS. 

The example shows that over a 3-year period, there 

were 10 exceedances of the level of the 8-hour 

ozone NAAQS, or an average of 3.33 exceedances 

per year.

must support that the attainment date is 

expeditiously as practicable and must 

justify any attainment date later than 5 

years using the factors in section 

172(a)(2)(A). The attainment date will 

be the date in the approved SIP. Thus, 

if an area submits an approvable 

attainment demonstration showing that 

they can attain the 8-hour NAAQS in, 

e.g., 4 years, the area’s attainment date 

will be 4 years from the effective date 

of designations for the 8-hour NAAQS. 

4. How Will EPA Address the Provision 

Regarding 1-Year Extensions? (Section 

VI.B.2 of Proposed Rule; 68 FR 32817; 

Sections 51.907 of Draft and Final 

Rules) 

a. Background. In limited 

circumstances, both subpart 1 and 

subpart 2 of the CAA provide for two 

brief attainment date extensions for 

areas that do not attain by their 

attainment date. Section 172(a)(2)(C) of 

subpart 1 (which applies for all 

NAAQS) provides for EPA to extend the 

attainment date for an area by 1 year if 

the State has complied with all 

requirements and commitments 

pertaining to the area in the applicable 

implementation plan and no more than 

a minimal number of exceedances of the 

NAAQS has occurred in the area in the 

attainment year. Up to two 1-year 

extensions may be issued for a single 

nonattainment area. 

Section 181(a)(5) of subpart 2 contains 

a similar provision for the ozone 

NAAQS, but instead of providing for an 

extension where there has been a 

‘‘minimal’’ number of exceedances, it 

allows an extension only if there is no 

more than one exceedance of the 

NAAQS in the year preceding the 

extension year. The language in section 

181(a)(5) reflects the form of the 1-hour 

ozone NAAQS, which is exceedancebased and does not reflect the 8-hour 

ozone NAAQS, which is concentrationbased.27 We proposed that since section 

181(a)(5) does not reflect the form of the 

8-hour NAAQS and application would 

produce an absurd result, it was 

reasonable to interpret this provision in 

a manner consistent with Congressional 

intent, but reflecting the form of the 8-

hour NAAQS. In addition, we proposed 

to apply the test in section 172(a)(2)(C), 

which applies to areas subject to subpart 

1, in the same manner as we apply the 

test under section 181(a)(5) for areas 

subject to subpart 2. Specifically, we 

proposed that an area would be eligible 

for the first 1-year extension under 

section 172(a)(2)(C) and under 181(a)(5) 

if, for the attainment year, the area’s 4th 

highest daily 8-hour average is 0.084 

ppm or less. The area will be eligible for 

the second extension if the area’s 4th 

highest daily 8-hour value, averaged 

over both the original attainment year 

and the first extension year, is 0.084 

ppm or less.

b. Summary of final rule. We are 

adopting the interpretation that we 

proposed on June 2, 2003. Under both 

sections 172(a)(2)(C) and 181(a)(5), an 

area will be eligible for the first of the 

1-year extensions under the 8-hour 

NAAQS if, for the attainment year, the 

area’s 4th highest daily 8-hour average 

is 0.084 ppm or less. The area will be 

eligible for the second extension if the 

area’s 4th highest daily 8-hour value, 

averaged over both the original 

attainment year and the first extension 

year, is 0.084 ppm or less. 

We believe that it would be absurd to 

apply section 181(a)(5) as written for 

purposes of the 8-hour ozone NAAQS. 

This section was written with the form 

of the 1-hour NAAQS in mind. For 

purposes of the 1-hour NAAQS, an area 

is violating the NAAQS if it has more 

than three exceedances of the NAAQS at 

a monitor over a 3-year period. Thus, if 

an area is averaging more than one 

exceedance per year at a monitor, it is 

violating the NAAQS. For the 1-hour 

NAAQS, it makes sense to consider 

whether there has been more than one 

exceedance in the attainment year for 

purposes of granting an extension 

because two or more exceedances 

indicate a significant likelihood the area 

will not be able to attain the NAAQS 

with a 1-year extension of the 

attainment date since four exceedances 

over a 3-year period mean the area is 

violating the NAAQS. 

For the 8-hour NAAQS, violations are 

determined based on the concentration 

as determined by averaging the 4th 

highest reading at a monitor over a 3-

year period. Thus, for each monitor 

(with complete data), the fourth highest 

readings for each of 3 consecutive years 

are averaged to determine whether an 

area is violating the NAAQS. If the 

average of those readings is at or above 

0.085, then the area is violating the 8-

hour ozone NAAQS. Unlike the 1-hour 

NAAQS, an area could have several 

exceedances of the 8-hour NAAQS in 

the attainment year and still be on track 

to attain the NAAQS the following year 

since attainment is based on an average 

of the fourth highest reading. For this 

reason, and as we proposed, we believe 

it makes sense to allow for the two 1-

year attainment date extensions under 

section 181(a)(5), based on the 4th 

highest reading at a monitor rather than 

based on the number of exceedances. 

We are interpreting the phrase ‘‘minimal 

number of exceedances’’ in section 

172(a)(2)(C) to apply in the same 

manner. 

c. Comments and Response 

Comment: The commenters generally 

supported EPA’s proposed 

interpretation for granting up to two 1-

year attainment date extensions. One 

commenter requested clarification that 

the 4th highest daily average 8-hour 

ozone concentration would be used to 

grant the first extension and the 4th 

highest daily average 8-hour ozone 

concentration of the attainment year and 

first extension year would be used to 

determine eligibility for the second 1-

year attainment date extension. The 

commenter further expressed support 

for this approach since it is consistent 

with how EPA determines whether an 

area is violating the 8-hour NAAQS. 

Response: No commenters opposed 

this aspect of EPA’s proposal. However, 

we are re-stating that the 4th highest 

daily average 8-hour ozone 

concentration would be used to grant 

the first 1-year extension and the 4th 

highest daily average 8-hour ozone 

concentration of the attainment year and 

first extension year would be used to 

determine eligibility for the second 1-

year attainment date extension. 

C. How Will EPA Implement the 

Transition From the 1-Hour to the 8-

Hour NAAQS in a Way To Ensure 

Continued Momentum in States’ Efforts 

Toward Cleaner Air? (Section VI.C. of 

the Proposal; See 68 FR 32818; 51.905 

of Draft Rule) 

There are two key issues that EPA 

considered together regarding the 

transition from the 1-hour NAAQS to 

the 8-hour NAAQS: (1) When will the 

1-hour NAAQS no longer apply (i.e., be 

‘‘revoked’’); and (2) what protections are 

in place to ensure that, once the 1-hour 

NAAQS is revoked, air quality will not 

degrade and that progress toward 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23969

28 In addition, in June 2003, we stayed our 

authority to apply the revocation rule pending our 

reconsideration in this rulemaking of the basis for 

revocation. (68 FR 38160, June 26, 2003).

attainment will continue as areas 

transition from implementing the 1-hour 

NAAQS to implementing the 8-hour 

NAAQS. As in the proposed rule, the 

second key issue has three components: 

(1) What requirements that applied 

based on an area’s classification for the 

1-hour NAAQS must continue to apply 

to that area; (2) for how long; and (3) in 

what geographic area. Below, we set 

forth our final transition approach in 

four parts: (1) When will the 1-hour 

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

it be revoked); (2) what 1-hour 

obligations should continue to apply 

once the 1-hour NAAQS is revoked; (3) 

how long should those requirements 

continue to apply; and (4) what is the 

geographic area subject to the 

requirement? 

1. When Will EPA Revoke the 1-Hour 

NAAQS? (Section VI.C.2. of Proposal; 

See 68 FR 32819; Section 50.9.b. of 

Proposed and Final Rules) 

a. Background. In the proposed rule 

(68 FR 32819), EPA provided an indepth discussion of the background of 

the transition rule (40 CFR 50.9(b)) and 

policy as established in July 1997 and 

as subsequently revised in response to 

the ongoing litigation over the 8-hour 

ozone NAAQS and court decisions (68 

FR 32818–19). In short, at the time the 

8-hour NAAQS was promulgated in 

1997, EPA anticipated that areas would 

implement the 8-hour ozone NAAQS 

under subpart 1. Areas that were not 

meeting the 1-hour NAAQS were 

obligated to continue to meet that 

NAAQS and would remain subject to 

most of the requirements that applied 

due to the area’s 1-hour classification, 

including obligations under subpart 2 

(62 FR 38873). Although EPA concluded 

in the NAAQS rulemaking that the 1-

hour NAAQS was not necessary to 

protect public health and that the 8-

hour NAAQS would replace the 1-hour 

NAAQS (62 FR 38863), we determined 

to delay revocation of the 1-hour 

NAAQS for areas not yet meeting that 

NAAQS in order to facilitate continued 

implementation of the 1-hour 

obligations (62 FR 38873). Thus, we 

promulgated a rule providing for the 

phase-out of the 1-hour ozone NAAQS 

on an area-by-area basis based upon a 

determination by EPA for each area that 

it had met the 1-hour NAAQS (40 CFR 

50.9(b), as promulgated at 62 FR 38894) 

(‘‘revocation rule’’). 

Subsequently, because the pending 

litigation over the 8-hour NAAQS 

created uncertainty regarding the 8-hour 

NAAQS and our implementation 

strategy, we placed two limitations on 

our authority to apply the revocation 

rule: (1) the 8-hour NAAQS must no 

longer be subject to legal challenge, and 

(2) it must be fully enforceable.28 (65 FR 

45182, July 20, 2000).

Ultimately, the Supreme Court struck 

down the implementation strategy 

provided for in the preamble to the final 

NAAQS rule. Although the Court agreed 

with EPA’s conclusion that the statute 

was ambiguous as to how a revised, 

more stringent ozone NAAQS should be 

implemented, the Court found 

unreasonable the implementation 

strategy EPA anticipated at the time the 

8-hour NAAQS was promulgated. 

Because EPA believes the time at which 

the 1-hour NAAQS should no longer 

apply is inextricably linked to the 

overall implementation strategy, EPA 

determined that it should reconsider 40 

CFR 50.9(b) in the context of this 

rulemaking. (68 FR 32818–19). 

Consistent with the decision of the 

Supreme Court, our proposed June 2003 

implementation rule anticipated that 

some, if not all, 8-hour ozone 

nonattainment areas would implement 

that NAAQS under subpart 2 of the 

CAA. There was no longer the clear cut 

dichotomy that we anticipated in 

1997—i.e., that 8-hour implementation 

would occur under subpart 1 and 1-hour 

implementation would continue to 

occur under subpart 2. Thus, the 

approach from 1997—where we 

retained the 1-hour NAAQS for areas 

that had not met it in order to make 

clear that such areas retained subpart 2 

obligations—merited reconsideration. In 

addition, we indicated that the area-byarea approach to revocation of the 

NAAQS was needlessly burdensome 

and that it made more sense to 

promulgate one rule establishing the 

date of revocation of the 1-hour NAAQS 

for all areas.

With respect to the time at which the 

1-hour NAAQS should no longer apply 

to areas, we sought comment on two 

options. Under Option 1, we would 

revoke the 1-hour NAAQS in full 1 year 

after the effective date of designations 

for the 8-hour NAAQS. The key 

consideration for when the NAAQS 

would be revoked was the time at which 

areas designated nonattainment for the 

8-hour NAAQS would be subject to 

conformity requirements for the 8-hour 

ozone NAAQS and our concern that 

areas not be subject to conformity for 

both the 8-hour and the 1-hour NAAQS 

at the same time. We believed that since 

our proposed anti-backsliding 

provisions would ensure that progress 

toward clean air continued and would 

obligate areas to continue to meet the 

control obligations associated with the 

area’s 1-hour classification, there was no 

need to retain the NAAQS and the 

associated designations and 

classifications. 

Under Option 2, we proposed to 

retain the NAAQS itself (and the 

associated designations and 

classifications) for limited purposes 

(viz., those identified and discussed in 

section VI.C.3. of the proposed rule, 

which are the same obligations that 

would continue to apply under Option 

1). For all remaining purposes, we 

would revoke the 1-hour NAAQS and 

the associated designations and 

classifications 1 year after the effective 

date of designations for the 8-hour 

NAAQS. This approach would not 

create a different substantive result than 

Option 1; under both Options, areas 

would remain subject to the same 

obligations that applied based on their 

1-hour classification. Rather, Option 2 

was based on a somewhat different legal 

rationale than Option 1. 

b. Summary of final rule. We are 

adopting Option 1. We will revoke the 

1-hour NAAQS in full, including the 

associated designations and 

classifications, 1 year following the 

effective date of the designations for the 

8-hour NAAQS. However, we are 

adopting strong anti-backsliding 

provisions which preserve control 

obligations mandated by subpart 2 for 

an area’s classification for the 1-hour 

NAAQS. In light of the anti-backsliding 

provisions, the deciding factor 

supporting the schedule for revocation 

is the conformity obligation for areas. 

We believe it is unnecessary to require 

areas to meet conformity for both the 1-

hour and 8-hour NAAQS at the same 

time; equally important, however, is the 

need to ensure that there is no time 

when conformity stops applying for 

areas that are subject to it under the 1-

hour NAAQS and designated 

nonattainment for the 8-hour NAAQS. 

Thus, we are adopting a regulation that 

provides for revocation of the 1-hour 

NAAQS 1 year following the effective 

date of the designation of the area for 

the 8-hour NAAQS since that is the time 

an area designated as nonattainment for 

the 8-hour NAAQS will be subject to 

conformity requirements for the 8-hour 

NAAQS. 

Our final anti-backsliding provisions 

will ensure that mandatory subpart 2 

control measures that applied due to an 

area’s classification under the 1-hour 

NAAQS will continue to apply after the 

1-hour NAAQS is revoked in full. 

Many commenters believed, and we 

agree, that Option 1 is a clearer 

approach than Option 2. Since both 

23970 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

options would lead to the same 

substantive result, we are adopting the 

clearer approach. Many commenters 

recommended alternatives other than 

those proposed by EPA. Our basis for 

rejecting these approaches is provided 

below and in the RTC document. 

c. Comments and responses. 

Comment: Most of the comments we 

received addressed the issue of when 

we should revoke the 1-hour NAAQS. 

About half of the commenters favored 

revocation of the 1-hour NAAQS in full 

1 year after the effective date of the 8-

hour designations (proposed Option 1). 

Only a handful of commenters favored 

partial revocation of the 1-hour NAAQS 

(proposed Option 2). Almost a third of 

the commenters who addressed this 

issue opposed revocation of the 1-hour 

NAAQS. Many of the commenters in 

this group insisted that EPA should 

retain the 1-hour NAAQS because it is 

necessary to protect public health and 

some noted that it may be more 

protective of public health than the 8-

hour NAAQS in several areas such as 

the South Coast and Houston. A number 

of these commenters also suggested that 

revocation would be contrary to the 

CAA and Congressional intent. Several 

commenters recommended alternative 

means or timing for the revocation of 

the 1-hour NAAQS, including a 

recommendation to revoke the 1-hour 

NAAQS immediately upon designations 

for the 8-hour NAAQS. 

Response to Major Comments: Several 

commenters opposed revocation at all 

because they believe the 1-hour NAAQS 

is necessary to protect public health. 

The issue of whether the 1-hour NAAQS 

is necessary to protect public health is 

a standard-setting issue that was 

resolved in 1997. At that time, EPA 

determined that it was not necessary to 

retain the 1-hour NAAQS as a NAAQS 

in order to protect public health. In 

setting the 8-hour NAAQS in 1997, we 

concluded that replacing the current 1-

hour NAAQS with an 8-hour NAAQS is 

appropriate to provide adequate and 

more uniform protection of public 

health from both short-term (1 to 3 

hours) and prolonged (6 to 8 hours) 

exposures to ozone in the ambient air 

(62 FR 38863). The sole issue here is 

how and when the transition from 

implementation of the 1-hour NAAQS 

to implementation of the 8-hour 

NAAQS should occur. 

We believe the strong anti-backsliding 

provisions in section 51.905 will ensure 

that not only will controls already 

adopted under the 1-hour NAAQS 

continue to be implemented until an 

area attains the 8-hour ozone NAAQS, 

but also that there will be no or minimal 

delay in obtaining additional emissions 

reductions comparable to those that 

would have been required had the 1-

hour NAAQS remained in place. 

Although attainment of the 1-hour 

NAAQS would no longer be a goal, the 

provisions of section 51.905 would 

retain the ROP obligations that would 

have been required under the 1-hour 

NAAQS. Furthermore, the provisions of 

section 51.905 also would retain an 

area’s obligation to either expeditiously 

complete the 1-hour attainment 

demonstration or obtain emissions 

reductions toward meeting the 8-hour 

NAAQS that substitute for those that 

would have been required had an area 

completed its attainment demonstration 

on a schedule more expeditious than 

that required solely for the 8-hour 

NAAQS. Thus, retaining the 1-hour 

NAAQS itself would become largely 

superfluous from the standpoint of 

obtaining timely emissions reductions. 

We disagree with comments that 

recommended that EPA revoke the 1-

hour NAAQS immediately upon a 

nonattainment designation for the 8-

hour NAAQS. We believe that such 

timing would create a gap when 

conformity would not apply in the year 

following designation under the 8-hour 

NAAQS (since conformity does not 

apply for the 8-hour NAAQS until 1-

year after designation). 

Comment: A major concern raised by 

commenters was that if the NAAQS 

were revoked, areas would no longer 

have to meet the SIP budgets established 

for the 1-hour NAAQS for conformity 

purposes. These commenters were 

concerned that 8-hour ozone 

nonattainment areas that were 

nonattainment or maintenance for the 1-

hour NAAQS would be able to 

determine conformity using another less 

protective test, such as the ‘‘build/nobuild’’ test. One commenter said that if 

conformity is weakened, billions of 

dollars will be spent on transportation 

without accountability for public health 

impacts. To avoid these results, 

commenters suggested that conformity 

requirements for the 1-hour NAAQS 

continue to apply until some other 

point, such as when budgets for the 8-

hour NAAQS are available, when areas 

have an approved maintenance plan for 

the 8-hour NAAQS, or the end of areas’

1-hour maintenance planning periods 

(assuming these periods would remain 

as they are, and would not be affected 

by revocation of the 1-hour NAAQS). 

Response: The EPA proposed 

conformity regulations for the new 8-

hour ozone NAAQS and new fine 

particulate matter NAAQS on November 

5, 2003 (68 FR 62690). We proposed that 

new 8-hour ozone nonattainment areas 

that have 1-hour ozone SIPs would meet 

one of several tests, and the menu of 

options we offered differed depending 

on how the 8-hour area boundary relates 

to the 1-hour area boundary. We will 

consider the issues raised by 

commenters and provide a full response 

in the context of that rulemaking. 

However, at this point EPA can 

respond to the suggestions to revoke the 

1-hour NAAQS at a later point such as 

when 8-hour budgets are available, or 

the end of the 1-hour maintenance 

planning period. Under these scenarios, 

there would be a period of years where 

conformity would have to be 

determined for both NAAQS at the same 

time: a result that EPA believes could 

lead to confusion and additional burden 

for transportation and air quality 

planners. The EPA believes it is 

sufficient that conformity be determined 

for one ozone NAAQS at a time. Since 

the 8-hour NAAQS is the health-based 

standard and it is more stringent than 

the 1-hour NAAQS, we believe 

conforming to the 8-hour NAAQS will 

be sufficient.

Comment: One commenter 

recommended that we provide an 

option that allows States to submit an 8-

hour conformity budget early and 

suspend the 1-hour conformity 

requirements at the time the 8-hour 

budget is determined to be adequate. A 

second commenter suggested something 

similar, that EPA require States to 

expedite budgets for the 8-hour standard 

in areas where the 8-hour boundary is 

larger. 

Response: The EPA did not propose to 

revoke the 1-hour NAAQS earlier than 

1 year after designations, in part because 

we did not believe that areas would be 

able to submit an 8-hour SIP earlier than 

1-year following designation. 

Furthermore, EPA’s proposal was 

intended to align the revocation of the 

1-hour NAAQS with the application of 

conformity requirements for the 8-hour 

NAAQS 1 year after the effective date of 

8-hour nonattainment designations. The 

EPA continues to believe it is unlikely 

that areas will have adequate budgets 

that address the 8-hour NAAQS before 

EPA revokes the 1-hour NAAQS. Such 

budgets cannot stand alone but have to 

be associated with adopted control 

measures and demonstrations of either 

attainment or RFP, and we believe 

developing these SIPs will take States 

some time. Once the SIPs are submitted, 

EPA must find them adequate, a process 

which EPA intends to complete within 

90 days of receiving a SIP. It is unlikely 

that States will be able to complete the 

work to submit 8-hour ozone SIPs 1 year 

from the effective date of 8-hour ozone 

area designations, and less likely that 

States will have submitted them 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23971

29The draft regulatory text did not accurately 

reflect the preamble discussion which 

distinguished maintenance areas at the time of 

designation for the 8-hour NAAQS from those that 

remained designated nonattainment at the time of 

8-hour designation. For the final rule, we use the 

time of 8-hour designations rather than the time the 

1-hour NAAQS is revoked.

sufficiently in time for EPA to find them 

adequate before the 1-hour NAAQS is 

revoked. 

Given these facts and the fact that 

EPA did not propose an option for 

revoking the standard earlier than 1 year 

after 8-hour designations are effective, 

EPA does not intend to provide for early 

revocation of the 1-hour NAAQS, nor 

will EPA require 8-hour areas to 

expedite development of their 8-hour 

SIP for this purpose. All areas must 

submit SIPs as soon as practicable, and 

EPA wants States to develop quality 

SIPs to support attainment 

demonstrations and conformity 

determinations. Prior to the revocation 

of the 1-hour NAAQS, new 

transportation plan and transportation 

improvement plan must conform to the 

applicable SIP budgets for the 1-hour 

NAAQS. 

Comment: Some commenters rebutted 

EPA’s assertion that revoking the 1-hour 

NAAQS is necessary so that agencies 

can focus on planning for the 8-hour 

NAAQS. These commenters stated that 

neither the revocation of the 1-hour 

NAAQS (or the budgets) is justified on 

this basis with respect to transportation 

and emissions modeling, because under 

either NAAQS, similar work in 

establishing base year inventories, and 

future forecasts of travel and emissions 

must be done. Once the resources are in 

place to make future forecasts, 

commenters thought that the level of 

effort in both time and money to 

produce analyses to different regional 

boundaries is relatively small, and 

ample resources are available to pay for 

the additional analyses needed to 

determine conformity to both NAAQS. 

The EPA also received comments of 

the opposite opinion. A number of 

commenters supported EPA’s proposal 

that conformity apply for one NAAQS at 

a time. One commenter stated that 

determining conformity for two separate 

ozone NAAQS would result in undue 

administrative burden, create confusion 

about requirements in the public 

process and make synchronization of 

the air quality and transportation 

planning processes more difficult. A 

couple of commenters argued that 

having to determine conformity for both 

ozone NAAQS would drain limited 

resources in transportation and 

environmental agencies. One of these 

commenters contended that 

demonstrating conformity for two ozone 

NAAQS could in fact delay progress, 

due to the high administrative burdens. 

Response: While these comments 

focus solely on the resources necessary 

to determine conformity for both 

NAAQS, EPA believes a discussion of 

resources should include all aspects of 

attainment planning. Under EPA’s 

proposal, with revocation of the 1-hour 

NAAQS, conformity will no longer 

apply for that NAAQS as a matter of 

law. Therefore, in order for conformity 

to apply for both NAAQS as one 

commenter requests, both NAAQS have 

to be implemented at the same time, i.e., 

the 1-hour NAAQS would have to be 

implemented in addition to the 8-hour 

NAAQS. This would mean continuation 

of the requirements to demonstrate 

attainment and maintenance of the 1-

hour as well as the 8-hour NAAQS. The 

EPA believes that it would be a 

substantial increase in burden for States 

to plan for attainment of both NAAQS, 

which includes conformity but also 

includes creating inventories for each 

source sector, determining feasible 

control measures, writing rules to 

implement control measures, permitting 

stationary sources, establishing ROP 

plans, running iterations of air shed 

modeling, and demonstrating 

attainment. 

In 1997, EPA determined that the 1-

hour NAAQS is not necessary to protect 

public health. Where they are not 

required by anti-backsliding provisions, 

EPA does not believe that the additional 

burden States would undertake in 

planning to achieve both the 1-hour and 

the 8-hour NAAQS is necessary to 

protect public health. 

2. What Requirements That Applied in 

an Area for the 1-Hour NAAQS 

Continue To Apply After Revocation of 

the 1-Hour NAAQS for That Area? 

(Section VI.C.3. of Proposal; 68 FR 

32820; Section 51.905(a) of the Draft 

and Final Rules) 

a. Background. In this section of the 

June 2, 2003 proposed rule (68 FR 

32820), we considered what obligations 

from subpart 2 that applied to an area 

based on its classification for the 1-hour 

ozone NAAQS should continue to apply 

to such area after it has been designated 

for the 8-hour NAAQS and the 1-hour 

NAAQS has been revoked. We proposed 

that the continuity of particular 

obligations may vary depending on the 

attainment status of an area for the 8-

hour NAAQS. The proposed rule 

addressed two categories of areas: (1) 

areas that are designated nonattainment 

for the 8-hour NAAQS and that were 

designated nonattainment for the 1-hour 

NAAQS on or after November 15, 1990; 

and (2) areas that are designated 

attainment for the 8-hour NAAQS and 

that were designated nonattainment for 

the 1-hour NAAQS on or after 

November 15, 1990. Furthermore, we 

divided the types of obligations into 

four categories for purpose of our 

analysis: (1) Mandatory control 

measures (e.g., NOX RACT, I/M, and 

fuel programs); (2) discretionary control 

measures (e.g., control measures or 

other obligations the State selected and 

adopted into the SIP for purposes of 

attainment, ROP or any other goal to 

benefit air quality, but which are not 

specifically mandated by subpart 2); (3) 

growth management (NSR); and (4) 

planning activities (attainment and 

maintenance demonstrations and RFP 

plans). We addressed conformity 

separately because it is a subpart 1 

requirement. In addition, we addressed 

the NOX SIP Call separately since this 

obligation applies statewide and 

without respect to the designation status 

of areas within the State. 

In the draft regulatory text released in 

August 2003, for areas designated 

nonattainment for the 8-hour NAAQS, 

we broke into two groups the areas 

designated nonattainment for the 1-hour 

NAAQS on or after November 15, 1990: 

(1) Areas that remain designated 

nonattainment for the 1-hour NAAQS at 

the time of revocation of the 1-hour 

NAAQS; and (2) areas that were 

designated nonattainment for the 1-hour 

NAAQS but that have been redesignated 

to attainment for the 1-hour NAAQS 

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

revocation of the 1-hour NAAQS.29 In 

response to comments on the proposed 

rule and draft regulatory text, the final 

regulation creates the same subcategorization for areas designated 

attainment for the 8-hour NAAQS. In 

the final rule and in the preamble 

discussion below, we also break into the 

same two groups the areas designated 

attainment for the 8-hour NAAQS. 

Thus, in the preamble and rule we 

consider the obligations that continue to 

apply for four categories of areas: (1) 

Areas that remain designated 

nonattainment for the 1-hour NAAQS at 

the time of designation as 

nonattainment for the 8-hour NAAQS; 

(2) areas that are maintenance areas for 

the 1-hour NAAQS at the time of 

designation as nonattainment for the 8-

hour NAAQS; (3) areas that remain 

designated nonattainment for the 1-hour 

NAAQS at the time of designation as 

attainment for the 8-hour NAAQS; and 

(4) areas that are maintenance areas for 

the 1-hour NAAQS at the time of 

designation as attainment for the 8-hour 

NAAQS. Both the preamble and the rule 

may use the following terms to discuss 

23972 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

30 In addition, Appendix E of the June 2, 2003 

proposal treats 1-hour NSR as an applicable 

requirement after the 1-hour standard is revoked. 

Under the final rule, 1-hour NSR would not be a 

required implementation plan element after the 1-

hour standard is revoked. Instead, NSR under the 

8-hour NAAQS will apply.

these four categories: (1) 8-hour NAAQS 

nonattainment/1-hour NAAQS 

nonattainment (2) 8-hour NAAQS 

nonattainment/1-hour NAAQS 

maintenance; (3) 8-hour NAAQS 

attainment/1-hour NAAQS 

nonattainment (4) 8-hour NAAQS 

attainment/1-hour NAAQS 

maintenance. Under each of these 

sections in the preamble, we address 

how the final rule treats the four types 

of obligations identified in the proposed 

rule: (1) Mandatory control measures; 

(2) discretionary control measures; (3) 

growth; and (4) planning obligations.

b. Summary of final rule. The 

approach we are adopting in the final 

rule is summarized below under the 

individual sections discussing each 

category of area and type of control 

obligation. 

c. Section 51.905(a)(1): 8-hour 

NAAQS nonattainment/1-Hour NAAQS 

nonattainment.

(i) Mandatory control measures.

(Section VI.C.3.a.i. of proposed rule; see 

68 FR 32820; sections 51.900(f) and 

51.905(a)(1) of the draft and final rules.) 

(A) Background. For areas designated 

nonattainment for the 1-hour NAAQS at 

the time they are designated 

nonattainment for the 8-hour NAAQS, 

we proposed that, to the extent the area 

has met a mandatory SIP obligation 

under the CAA that is included as part 

of the approved SIP, the State may not 

modify or remove that measure except 

to the extent that it may have modified 

or removed that measure for purposes of 

the 1-hour NAAQS (68 FR 32820). For 

example, if an area was classified as 

serious for the 1-hour ozone NAAQS 

and required to have an enhanced I/M 

program as part of its SIP, the State 

cannot remove the enhanced I/M 

program for that area even though it 

may be classified as marginal or 

moderate for the 8-hour ozone NAAQS. 

However, under the proposal, the State 

may modify the enhanced I/M program 

consistent with EPA’s enhanced I/M 

regulations, just as it may have done for 

purposes of the 1-hour NAAQS. (We 

address below when the obligation to 

retain such control measures as active 

control programs no longer applies, the 

geographic area in which the obligation 

applies, and the demonstration a State 

must make at that point to modify the 

SIP.) 

For control measures that the State 

has not yet adopted, we proposed that 

the State remains obligated to adopt and 

submit such control measures. And, 

once adopted into the approved SIP, the 

State may not modify or remove such 

measures except to the same extent that 

it could have modified or removed them 

for purposes of the 1-hour NAAQS. 

Our draft regulatory text referred to 

these obligations as ‘‘applicable 

requirements’’ and we identified the 

subpart 2 mandatory control measures 

in the definitions section under 

‘‘applicable requirements.’’

(B) Summary of final rule. We are 

adopting the approach we proposed. 

(See sections 51.905(a)(1)(i)and 

51.900(f) of the final rule.) All areas 

designated nonattainment for the 8-hour 

ozone NAAQS and designated 

nonattainment for the 1-hour ozone 

NAAQS at the time of designation for 

the 8-hour NAAQS remain subject to 

control measures that applied by virtue 

of the area’s classification for the 1-hour 

NAAQS. 

As we stated in the preamble to the 

proposed rule (68 FR 32819), there are 

a number of provisions in the CAA that 

we believe are evidence of Congress’

intent that these obligations continue to 

apply despite EPA’s determination that 

the 1-hour NAAQS is no longer 

necessary to protect public health. For 

example, at the time of the 1990 

Amendments to the CAA, Congress 

designated and classified existing ozone 

nonattainment areas (and classified all 

other ozone nonattainment areas) as a 

matter of law. Congress also provided 

that areas could not remove from the 

SIP controls mandated by subpart 2 

even after the area attains the NAAQS 

and is redesignated to attainment. At 

most, the State could move such 

controls to the contingency plan 

provisions of the SIP. See CAA section 

175A(d). Also significant is that in 1990, 

Congress enacted a provision specifying 

States’ obligations with respect to 

control measures for a NAAQS after 

EPA revised that NAAQS to be less 

stringent. In section 172(e), Congress 

specified that if EPA revises a NAAQS 

and makes it less stringent, EPA must 

promulgate regulations applicable to 

areas that have not yet attained the 

original NAAQS to require controls that 

are no less stringent than the controls 

that applied to areas designated 

nonattainment prior to such relaxation. 

We believe that, if Congress intended 

areas to remain subject to the same level 

of control where a NAAQS was relaxed, 

they also intended that such controls 

not be weakened where the NAAQS is 

made more stringent. Finally, we noted 

that the Supreme Court cautioned 

against making subpart 2 ‘‘abruptly 

obsolete.’’ For areas designated 

nonattainment in 1990, Congress 

intended the mandatory requirements of 

subpart 2 to apply (as implemented 

controls or contingency measures) for a 

significant period of time. We believe if 

we allowed areas to remove those 

mandated controls from their SIPs it 

would render those provisions 

prematurely obsolete, contrary to 

Congressional intent. We adopt in full 

the analysis provided at 68 FR 32819, 

1st and 2nd columns. 

The final rule also reflects, with 

several exceptions, the table in 

appendix B of the June proposal which 

identified the applicable requirements. 

The definition of ‘‘applicable 

requirements’’ in section 51.900(f) of the 

draft regulatory text erroneously 

excluded some of the requirements 

included in appendix B. The 

requirements that weren’t included in 

the proposed regulatory text definition 

of applicable requirement but are 

included in the definition in the final 

rule are: 

• Enhanced (ambient) monitoring 

under section 182(c)(1) of the CAA. 

• Transportation controls under 

section 182(c)(5) of the CAA.

• Vehicle miles traveled provisions of 

section 182(d)(1) of the CAA. 

• NOX requirements under section 

182(f) of the CAA. 

One exception in which the final rule 

does not reflect appendix B of the 

proposal concerns the requirement for 

reformulated gasoline (RFG). Appendix 

B erroneously included RFG as an 

applicable requirement under subpart 2. 

As discussed below under ‘‘Comments 

and responses,’’ it is not an applicable 

requirement under subpart 2 and is not 

included as such in section 51.900(f) of 

the final rule. In addition, Appendix B 

listed NSR (major source applicability 

and offsets) as ‘‘applicable 

requirements’’ under subpart 2. 

Although these would be applicable 

requirements under subpart 2 for the 8-

hour standard, they would not be 

applicable requirements under subpart 2 

for the 1-hour standard after the 1-hour 

standard is revoked.30

(C) Comments and responses

Comment: Concerning the June 2, 

2003 proposal, several commenters 

believed that not all control 

requirements required by an area’s 1-

hour classification would necessarily 

help achieve the 8-hour NAAQS and 

therefore opposed the proposed antibacksliding provisions. Other 

commenters supported the proposal. 

Concerning the draft regulatory text, 

commenters generally reiterated their 

comments from the June 2, 2003 notice 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23973

31For purposes of the preamble to this 

rulemaking, whenever we state that a State must 

make the demonstration required under section 

110(l) to modify its SIP, we also mean that the State 

must make the required demonstration under 

section 193 to the extent the affected area is 

designated nonattainment and the SIP requirement 

the State is modifying was a control requirement in 

effect or required to be in effect prior to November 

15, 1990.

in commenting on the draft regulatory 

text. 

Response: As we noted above and in 

the preamble to the proposed rule, we 

examined the CAA as a whole to discern 

Congressional intent since Congress did 

not specifically address anti-backsliding 

where EPA promulgated a more 

stringent NAAQS. After considering the 

‘‘as a matter of law’’ designation and 

classification for the 1-hour NAAQS, 

section 172(e), and the CAA’s 

redesignation provisions, we believe 

that Congress intended these areas to 

continue to implement requirements 

that applied in the area for the 1-hour 

NAAQS. 

Comments: The EPA’s June 2 proposal 

listed RFG in appendix B as an 

‘‘applicable requirement’’ for severe and 

above ozone nonattainment areas; it was 

also listed as an ‘‘applicable 

requirement’’ in the draft regulatory text 

under section 51.900(f). The EPA 

received a number of comments 

addressing RFG requirements. Some 

commenters argued that the program 

was of no environmental benefit in 

certain locations, and should not be 

required. One commenter suggested that 

where it is estimated that the costs per 

ton of VOC removal would be around 

$36 million per daily ton removed or 

around $100,000 per annual ton 

removed, with no measurable benefit to 

ozone levels, that requiring use of RFG 

would be an ‘‘absurd result’’ justifying 

a waiver of the RFG requirement. One 

commenter argued that the rules 

providing for ozone nonattainment areas 

to opt-in to the RFG program should be 

liberalized, to allow additional areas to 

avail themselves of the benefits of RFG. 

Other commenters argued against such 

liberalization, on the basis that the fuels 

industry is already burdened with 

implementation of far-reaching fuels 

regulations and does not need the 

additional difficulties that would be 

associated with the proliferation of RFG 

opt-ins. 

Response: The EPA has decided that 

it is not appropriate to list RFG as an 

‘‘applicable requirement’’ in the final 

rule in section 51.900(f). The RFG 

program is not adopted as a State 

program in SIPs, as are the other 

‘‘applicable requirements’’ listed in 

today’s final rule. Rather, RFG is 

required under a Federal program. It is 

prescribed in some instances by statute, 

and in other instances States are 

allowed to opt-in and opt-out of the 

program in accordance with Federal 

statutory prescriptions and EPA rules. 

The EPA recognizes that the scope and 

applicability of the RFG program during 

and after implementation of the new 8-

hour ozone standard raises various 

issues that need further clarification. 

However, such clarification is more 

appropriately provided in a separate 

undertaking. Since Federal RFG does 

not appear on the final rule’s list of 

‘‘applicable requirements’’ in subpart 2, 

there is no need to respond in this 

rulemaking to the comments regarding 

implementation of the RFG program. 

Therefore, while not an ‘‘applicable 

requirement’’ under today’s rules, the 

RFG requirement is nonetheless 

applicable under the CAA for certain 

areas, and EPA will determine in the 

future whether this requirement would 

change for these areas when they attain 

the ozone NAAQS. 

Comment: One commenter noted that 

the language in the draft regulatory text 

is based upon the date of revocation of 

the 1-hour ozone NAAQS, which is at 

least one year later than that specified 

in the proposed rule. The date of 

revocation is also highly uncertain 

compared to the date of designation, 

which is driven by the Consent Decree. 

The Draft Regulatory Text therefore 

conflicts with the proposed rule 

language. The commenter prefers use of 

the date of designation for these and 

other applicable requirements. 

Response: The regulatory text has 

been revised to key the requirement 

from the effective date of designation for 

the 8-hour NAAQS.

Comment: One commenter believed 

there was a conflict between the June 2, 

2003 notice and the draft regulatory text 

concerning the timing of the 1-hour NSR 

obligation. The draft section 51.905(a)(1) 

provision would apply for areas 

designated nonattainment for the 1-hour 

NAAQS at the time of revocation of the 

1-hour NAAQS, but the June 2, 2003 

notice provision would apply to areas 

designated nonattainment for the 1-hour 

NAAQS at the time of designation of the 

8-hour NAAQS. The commenter 

recommended that the rule be based on 

the date of designation for the 8-hour 

NAAQS. 

Response: We agree there was a 

conflict in the draft regulatory text on 

this matter. However, as discussed 

below, the final differs from the 

proposal in that after the 1-hour NAAQS 

is revoked, NSR under the 1-hour 

NAAQS will no longer be a required 

implementation plan element in areas 

that are 8-Hour NAAQS nonattainment/

1-Hour NAAQS nonattainment. Instead, 

NSR under the 8-hour NAAQS will 

apply. 

(ii) Discretionary control measures.

This discussion of discretionary 

measures includes how we plan to treat 

enforceable commitments approved into 

the SIP. (section VI.C.3.a.ii. of proposed 

rule, see 68 FR 32821, and section 

VI.C.3.a.v. of proposed rule; see 68 FR 

32822; section 51.905(d) of draft and 

final rules; there is no parallel provision 

in the final rule.) 

(A) Background. Many approved SIPs 

contain control measures that are not 

specified under subpart 2 for the area, 

but that the State chose to adopt as part 

of the demonstration of attainment or 

part of the ROP requirement for the 1-

hour NAAQS. For these kinds of 

measures, we proposed that States 

retain the discretion they now have to 

modify these requirements in their SIPs. 

For purposes of the 1-hour NAAQS, 

States may currently revise or remove 

those requirements so long as they make 

a demonstration consistent with section 

110(l) that such removal or modification 

would not interfere with attainment of 

or progress toward the 1-hour ozone 

NAAQS (or any other applicable 

requirement of the CAA).31 Once the 1-

hour standard is revoked, for purposes 

of the 8-hour NAAQS, the same 

discretion to modify a SIP would apply 

except the State would need to make the 

demonstration required by section 

110(l) with respect to the 8-hour 

NAAQS, not the 1-hour NAAQS. See 68 

FR 32821 for an example of how this 

would work.

We also proposed that States remain 

obligated to meet enforceable 

commitments approved into a SIP to the 

same extent as if they were adopted 

measures (68 FR 32822). This includes 

enforceable commitments to perform a 

mid-course review. The only way a 

State may modify or remove such a 

commitment is through a SIP revision 

making the required demonstration 

under section 110(l). 

(B) Summary of final rule. We are 

adopting the approach we set forth in 

our proposed rule. A State may revise or 

remove discretionary control measures 

(including enforceable commitments) 

contained in its SIP for the 1-hour 

NAAQS so long as the State 

demonstrates consistent with section 

110(l) that such removal or modification 

will not interfere with attainment of or 

progress toward the 8-hour ozone 

NAAQS (or any other applicable 

requirement of the CAA). Under the 

rule, States remain obligated to meet 

any SIP-approved commitment to 

perform a mid-course review. These SIP 

commitments generally do not bind the 

23974 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

32 In this rulemaking, we use ‘‘ROP’’ to refer to 

the rate of progress requirement for the 1-hour 

NAAQS and ‘‘RFP’’ to refer to both the rate of 

progress requirement under subpart 2 and the 

reasonable further progress requirement under 

subpart 1 for the 8-hour ozone NAAQS. 33Op cit.

States to take any specific action in 

response to the results of the mid-course 

review. The EPA anticipates that rather 

than using these reviews to ensure areas 

meet the 1-hour NAAQS (which will 

have been revoked), States and EPA can 

use these reviews to ensure progress is 

being made consistent with needs for 

the 8-hour NAAQS. 

Note, however, that since general 

provisions for modifying or removing 

control measures in a SIP are already 

provided in the statute (sections 110(l) 

and 193), we do not believe there is a 

need to have a duplicative provision in 

this final rule. Therefore, even though 

the draft regulatory text contained such 

a provision (section 51.905(d)), the final 

rule does not contain that provision. 

(C) Comments and Responses 

Comment: Several commenters 

supported the proposal regarding 

discretionary control measures. Other 

commenters believed that States should 

not be held to commitments to submit 

the mid-course review required under 

their 1-hour SIP. Some commenters 

objected to the provision in draft 

regulatory text for allowing 

‘‘relaxations’’ of the SIP under sections 

110(l) and 193 of the CAA. 

Response: Sections 110(l) and 193 

allow States to modify the discretionary 

controls in their SIPs if the provisions 

of those sections are met. While we 

believe it is important to prevent 

backsliding consistent with the statutory 

provisions, we do not believe it is 

appropriate to further restrain the 

discretion Congress granted to States in 

determining the appropriate mix of 

controls in the SIP. We believe that a 

State may revise discretionary controls 

approved in its SIP as long as it meets 

the criteria specified in sections 110(l) 

and 193. We believe the tests provided 

in sections 110(l) and 193 will prevent 

the adverse effects envisioned by the 

commenter. 

(iii) Measures to address growth.

(section VI.C.3.a.iii of proposed rule; see 

68 FR 32821; sections 51.900(f) and 

51.905(a)(1) of the draft and final rule.) 

(A) Background. In general, the SIP 

provisions in the CAA include one 

provision to address growth—

nonattainment NSR. We discuss 

conformity for all areas in a later 

section. 

For areas that are 8-hour NAAQS 

nonattainment/1-hour NAAQS 

nonattainment, we proposed in the June 

2, 2003 notice that the major source 

applicability cut-offs and offset ratios 

for nonattainment NSR that applied for 

an area’s 1-hour classification continue 

to apply. 

(B) Summary of final rule. The final 

rule treats 1-hour NSR as a requirement 

that will no longer apply once the 1-

hour NAAQS is revoked. We provide a 

more thorough discussion of the 

approach in our final rule and the 

rationale in the section below 

discussing 1-hour NAAQS obligations 

that no longer apply as of revocation of 

the 1-hour NAAQS. 

(C) Comments and responses.

Comments and responses are included 

in the section below discussing 1-hour 

NAAQS obligations that no longer apply 

as of revocation of the 1-hour NAAQS. 

(iv) Planning SIPs.

(A) Outstanding ROP obligation.

(section VI.C.3.a.iv of proposal; 68 FR 

32822; section 51.905(a)(1) of the draft 

and final rules). 

(1) Background. In the June 2, 2003 

proposal, we proposed that States 

remain obligated to address separately 

1-hour ROP requirements that do not 

overlap with RFP obligations for the 8-

hour NAAQS.32 Where outstanding ROP 

and RFP obligations overlap, the area 

need not submit a separate ROP plan for 

the 1-hour NAAQS but must show that 

the 8-hour ROP plan is no less stringent 

than the 1-hour ROP requirement. For 

ROP provisions already adopted into the 

SIP, we proposed that the State may 

remove or revise control measures 

needed to meet the ROP milestone if 

such control measures were 

discretionary (i.e., not mandated by 

subpart 2 for the area’s 1-hour 

classification), as discussed above, and 

the State makes a demonstration under 

section 110(l) including a demonstration 

that the revision will not interfere with 

meeting the 1-hour ROP and 8-hour RFP 

goals.

(2) Summary of final rule. We are 

adopting the approach set forth in our 

proposed rule for areas that are 8-hour 

NAAQS nonattainment/1-hour NAAQS 

nonattainment. States remain obligated 

to meet the CAA-mandated ROP 

emission reduction targets that applied 

for the 1-hour NAAQS, but 

discretionary measures adopted to meet 

those targets may be modified, if the 

State makes the necessary showing 

under section 110(l).

In addition, we are providing further 

clarification regarding how this 

obligation applies. Areas that have an 

outstanding obligation for an approved 

1-hour ROP SIP for one or more of the 

ROP periods (e.g., 1999–2002, 2002–

2005, 2005–2007) must still develop and 

submit to EPA (if they have not already 

done so) all outstanding 1-hour ROP 

plans. Where a 1-hour ROP obligation 

overlaps with an 8-hour RFP 

requirement, the State’s 8-hour RFP 

measures can be used to satisfy the 1-

hour ROP obligation. 

The State may choose to show that 

both the 8-hour and 1-hour ROP 

obligations are met through a single 8-

hour plan submittal. To prevent 

backsliding, the State must ensure that 

the 8-hour RFP emission plan is at least 

as stringent as the 1-hour ROP emission 

target, for the year in which 1-hour ROP 

must be met. The State may do this by 

first establishing an RFP emission target 

for the entire 8-hour ozone 

nonattainment area, for the 1-hour ROP 

target year. If the 8-hour RFP emission 

target for the 8-hour area for the same 

period is more stringent than the 1-hour 

ROP emission target for the 1-hour area 

(assuming the 8-hour area includes the 

entire 1-hour area), the State is not 

obligated to submit a separate 1-hour 

ROP plan, but can rely solely on the 8-

hour RFP plan and emission target to 

demonstrate that the 1-hour target will 

be met. However, the State must ensure 

that the emission target will be met for 

the same period as for 1-hour ROP (e.g., 

2003–2005). The State may rely on any 

control measure to meet both ROP for 

the 1-hour NAAQS and RFP for the 8-

hour NAAQS. Appendix A below 

provides an example of how this might 

work. 

In the June 2, 2003 proposal (68 FR 

32835), we proposed that the Agency’s 

Clean Data Policy 33 would remain 

effective under the 8-hour ozone 

NAAQS, and we therefore intend to 

apply this policy in implementing this 

final rule for areas that achieve the 8-

hour NAAQS. Thus, if an area attains 

the 8-hour ozone NAAQS, under the 

Agency’s ‘‘Clean Data Policy,’’ EPA may 

waive the 1-hour RFP obligation for the 

area based on a determination that the 

area has attained the 8-hour NAAQS. 

Under that policy, the State will not be 

subject to the 1-hour RFP requirement 

for so long as the area remains in 

attainment with the 8-hour NAAQS. 

(The EPA will address the applicability 

of the Clean Data Policy for 8-hour 

ozone nonattainment areas in Phase 2 of 

the implementation rule.)

We believe that there is ambiguity in 

the statute regarding whether areas 

should remain subject to the 

requirement to submit planning SIPs, 

such as the 1-hour ROP plans. Unlike 

control obligations, we do not believe 

there is as strong an argument that 

Congress intended areas to continue to 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23975

submit planning SIPs for a NAAQS that 

EPA has determined is no longer 

necessary to protect public health. 

Section 172(e), which applies when 

EPA relaxes a NAAQS, only requires 

EPA to ensure that control measures are 

no less stringent than they were for the 

more stringent NAAQS that has been 

replaced. It does not indicate a 

Congressional intent that areas remain 

obligated to plan for and meet a NAAQS 

as it existed before it was revised. 

However, both attainment 

demonstrations and ROP plans result in 

the adoption of control obligations. 

And, if EPA determined that these 

planning requirements did not apply at 

all, areas currently designated 

nonattainment for the 1-hour NAAQS 

that have not met these obligations 

might be subject to less stringent 

controls than would have otherwise 

applied. Thus, in considering how to 

treat this obligation, we balanced the 

need to ensure the same level of control 

with the difficulties associated with 

meeting this obligation. 

For purposes of ROP, the exercise of 

calculating the reductions necessary to 

meet ROP is relatively simple. 

Moreover, as provided above, even if the 

State must calculate ROP separately for 

the 1-hour and 8-hour NAAQS, it may 

still rely on one or more of the same 

control measures to meet both those 

obligations. Additionally, we believe 

that most of the areas with an 

outstanding 1-hour ROP obligation will 

be able to demonstrate that the 8-hour 

RFP targets for the same time period 

will be more stringent and thus will not 

be required to prepare a separate 1-hour 

ROP plan. Finally, we note that States 

have already submitted and, EPA has 

already approved 1-hour ROP plans for 

most 1-hour nonattainment areas. Thus, 

the anti-backsliding provisions 

regarding the continued obligation to 

adopt and submit 1-hour ROP plans will 

affect only a handful of areas. For these 

reasons, we are adopting a regulation 

that requires areas that are 8-hour 

NAAQS nonattainment/1-hour NAAQS 

nonattainment to continue to adopt and 

achieve the level of ROP reductions 

mandated by Congress under the CAA 

for that NAAQS. 

(3) Comments and responses 

Comments on June 2, 2003 Proposal:

Few commenters submitted comments 

on the portion of the proposed rule 

discussing the anti-backsliding 

requirements applicable to 1-hour ROP. 

Several commenters generally opposed 

any continued planning obligations 

under the 1-hour NAAQS, but did not 

raise specific concerns with respect to 

ROP. Similarly, a number of other 

commenters opposed revocation of the 

1-hour NAAQS and urged retention of 

all 1-hour planning and control 

obligations; but again, these commenters 

did not raise concerns specific to the 

proposed anti-backsliding approach for 

ROP. 

One commenter, addressing section 

51.905(a)(1)(iii) of the draft regulatory 

text, argued that States should have the 

ability to modify ROP measures if it can 

be demonstrated that they are not 

needed for purposes of meeting 

requirements under the 8-hour NAAQS 

or if measures are no longer appropriate 

due to updated technical information 

regarding emissions inventory and 

control strategy effectiveness. Another 

commenter objected to retaining the 1-

hour ROP requirement, primarily 

because areas recently reclassified to a 

higher classification would have a 

continuing obligation for ROP even if 

they were not required to develop an 

RFP plan under the 8-hour NAAQS. 

Another commenter believed the 1-hour 

ROP requirement should only be 

required where it is demonstrated to be 

needed for attainment of the 8-hour 

NAAQS. 

Response: As provided above, we 

believe Congress intended areas to 

continue to have control measures no 

less stringent than those that applied for 

the 1-hour NAAQS. Because the ROP 

obligation results in control obligations, 

we believe areas should remain 

obligated to adopt outstanding ROP 

obligations to ensure that the ROP 

milestones are met. If a State believes 

adopted controls are not the best fit for 

the 8-hour NAAQS, the State retains full 

discretion to revise those controls so 

long as the revision doesn’t interfere 

with the ROP milestones. 

Without this provision, an area with 

an unmet obligation to submit and 

implement a ROP plan under the 1-hour 

NAAQS could experience backsliding 

by being released from the obligation to 

have controls in place that achieve a 

specified level of emissions reductions 

during the interim period prior to 

implementation of the SIP required for 

the 8-hour NAAQS. In other words, if 

the 1-hour NAAQS were not revoked, 

the area would have been required to 

continue to ensure emissions would be 

reduced by specified levels in specific 

timeframes. If the final rule contained 

no provision comparable to section 

51.905(a)(1)(i), achievement of those 

emissions reductions would almost 

certainly be delayed. Because we are 

transitioning to a more stringent and 

protective air quality NAAQS. We see 

no reason why there should be 

provisions that would provide less 

protection to public health. 

(B) Unmet attainment demonstration 

obligations (section VI.C.3.a.iv of 

proposal; see 68 FR 32822; section 

51.905(a)(1)(ii) of the draft and final 

rules) 

(1) Background. Most areas 

designated nonattainment for the 1-hour 

ozone NAAQS have fully approved 

attainment demonstrations for the 1-

hour NAAQS. Because there are so few 

areas without approved attainment 

demonstrations, in the proposed rule we 

identified the two types of situations of 

which we were aware and solicited 

comment on how to handle those 

situations. First, there are a few areas 

that do not have a fully approved 

attainment demonstration because the 

area has not acted in accordance with 

the timelines provided under the CAA. 

The second situation is an area which 

has a future obligation to submit an 

attainment demonstration. In general, 

these are areas that, over the past several 

years, have been reclassified (i.e., 

‘‘bumped up’’) to a higher classification. 

In the preamble to the proposal, we 

discussed the policy reasons that would 

support retention of the obligation to 

submit an attainment demonstration 

and the policy reasons that would 

counsel against retention of that 

obligation (68 FR 32822). For both these 

groups of areas, we solicited comment 

on whether to retain the obligation to 

develop a 1-hour attainment 

demonstration. In addition, we solicited 

comment on two alternatives that would 

address many of the policy concerns we 

noted. 

Alternative 1 would require that areas 

with a current or past due obligation to 

submit a new or revised attainment 

demonstration instead be required to 

submit a SIP revision that would obtain 

an advance increment of local emissions 

reductions toward attainment of the 8-

hour ozone NAAQS within a specified, 

short-term timeframe; 5 percent and 10 

percent were suggested possibilities for 

the increment. Under Alternative 2, 

areas with a current or past due 

obligation to submit a 1-hour attainment 

demonstration would be required to 

submit their 8-hour ozone attainment 

demonstration early in lieu of being 

required to submit a 1-hour attainment 

demonstration. The draft regulatory text 

was developed using the first 

alternative, and used a 10 percent 

increment. 

(2) Summary of final rule. In the final 

rule, we are allowing the States to 

choose among three options that are 

tailored after the approaches addressed 

in the proposed rule. Thus, rather than 

establishing one mandatory approach, 

we are adopting a rule that will allow 

23976 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

34The amount of which will depend on the ROP 

option in the final rule and the classification of the 

area.

35Memorandum 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.

States to choose any one of the 

following three options:

• Option 1. Submit a 1-hour 

attainment demonstration. 

• Option 2. Submit, no later than 1 

year after the effective date of the 8-hour 

designations, an early increment of 

progress plan toward the 8-hour 

NAAQS which provides: 

• A 5 percent increment of reduction 

from the 2002 emissions baseline (NOX

and/or VOC). The control measures for 

achieving this increment must be in 

addition to measures (or enforceable 

commitments to measures) in the SIP as 

of the effective date of designation and 

in addition to national or regional 

measures. (The State can take credit for 

this increment of reduction toward its 

RFP requirement under the 8-hour 

NAAQS.) 

• For achievement of the emissions 

reductions within 2 years after submittal 

(i.e., 3 years after designation). 

• Option 3. Submit an early 8-hour 

ozone attainment demonstration SIP 1 

year after the effective date of 

designation for the 8-hour NAAQS that: 

• Demonstrates attainment of the 8-

hour NAAQS by the area’s attainment 

date, 

• Provides for 8-hour RFP consistent 

with the area’s classification out to the 

area’s attainment date, and 

• Ensures that the first segment of 

RFP 34 between the end of 2002 and the 

end of 2008 is achieved early—by the 

end of 2007.

With respect to Option 2, the final 

rule specifies a 2002 baseline year for 

calculating the early increment of 

progress whereas the draft regulatory 

text did not provide a specific baseline 

year. 

As noted above in the ROP section, 

we believe the statute is ambiguous 

regarding the need for States to address 

planning for a NAAQS no longer needed 

to protect public health. However, since 

these planning SIPs result in the 

adoption of control measures, which we 

believe Congress intended be no less 

stringent, we examined what 

approaches would ensure controls are 

adopted and implemented without 

unnecessarily obligating States to plan 

for a NAAQS not needed to protect 

public health. 

Unlike planning for ROP, preparing 

an attainment demonstration involves 

complex modeling and analyses that can 

be resource intensive both in terms of 

workload and cost. We don’t believe it 

is appropriate or necessary to mandate 

that States perform the attainment 

demonstration for a NAAQS that is not 

needed to protect public health. But we 

also do not believe it is appropriate to 

waive in total this obligation in light of 

the need to ensure there is no delay in 

achieving emissions reductions to 

protect public health. We are adopting 

an approach that provides States with 

options because it provides maximum 

flexibility to States that have 

outstanding attainment demonstration 

obligations while continuing to obtain 

in a timely fashion many or all of the 

emissions reductions that should occur 

under those obligations, effecting an 

orderly transition to planning under the 

8-hour NAAQS. In addition, we do not 

believe it is equitable to relieve these 

areas of this obligation where other 

areas have already adopted controls to 

meet these obligations and will not be 

able to modify or remove such controls 

unless the State can demonstrate that 

such action is consistent with section 

110(l). 

Thus, in balancing Congressional 

intent to ensure no backsliding, 

equitable treatment of all areas, the need 

for areas to begin planning for the 8-

hour NAAQS and the limited planning 

resources that States have available, we 

believe the best approach is to provide 

States with several alternatives, each of 

which will achieve emissions 

reductions on a timeframe similar to 

when they would have been achieved 

for the 1-hour NAAQS through a 1-hour 

attainment demonstration SIP. The State 

may choose the option that is least 

burdensome in light of activities already 

performed. For example, States with a 1-

hour attainment demonstration that is 

past due or is due in the next several 

months may have already made 

significant progress in developing a 1-

hour attainment demonstration SIP. 

Thus, these States may choose the first 

option. We are aware that one or more 

States have already begun the process of 

developing 8-hour attainment 

demonstrations for some 1-hour 

nonattainment areas. These States may 

choose to submit an early 8-hour 

attainment demonstration SIP. Other 

areas, which have not yet made 

significant progress on 1-hour or 8-hour 

attainment planning, may wish to 

reserve more time for the attainment 

demonstration process, which can 

involve complex modeling, and thus 

choose the third option—to achieve an 

early increment of progress. 

For the second option available to 

States, we chose 5—rather than 10—

percent as the amount of reduction. 

Under this option, States must achieve 

the 5 percent emission reduction from 

local controls (not currently required by 

the SIP) and within 3 years of 

designation for the 8-hour NAAQS. In 

light of the quick timeframe in which to 

achieve the reductions following 

designations and the limitation that 

such reductions cannot be from regional 

or national controls or from measures 

already in the SIP, we concluded that 10 

percent was unduly burdensome. The 

States that choose this option will need 

to identify and adopt appropriate 

controls within a 1-year timeframe and 

require sources to implement the 

controls within a short time thereafter. 

These limitations will restrict the 

control choices available to States. In 

addition, because of the limited 

timeframe for adoption and submission 

of the controls to EPA, we do not 

believe it is reasonable to require the 

State to obtain a level of reduction that 

would force the States to concentrate its 

resources on the early ROP reduction 

rather than on an 8-hour attainment 

plan. However, because the State will 

not be able to rely on national or 

regional controls, we are confident that 

the 5 percent requirement will achieve 

the anti-backsliding goal. 

Finally, as with the 1-hour ROP 

requirement, we note that EPA may 

waive the 1-hour attainment 

demonstration requirement for areas 

based on a determination that the area 

has attained the 8-hour NAAQS. The 

EPA’s Clean Data Policy 35 provides that 

if EPA has determined that an area has 

attained the 1-hour NAAQS, it will not 

be obligated to submit a 1-hour 

attainment demonstration for so long as 

it maintains the 1-hour NAAQS. Thus, 

extending this policy to the 8-hour 

NAAQS, if EPA determines that an area 

has attained the 8-hour ozone NAAQS 

before the time the area is obligated to 

make a submission under this portion of 

EPA’s 8-hour implementation 

regulations, EPA would waive this 

requirement for so long as the area 

remains in attainment with the 8-hour 

NAAQS. (The EPA will address the 

applicability of the Clean Data Policy for 

8-hour ozone nonattainment areas in 

Phase 2 of the implementation rule.)

(3) Comments and responses.

Comment: Several commenters 

advocated retaining the planning 

obligations under the 1-hour NAAQS, 

expressing the belief that momentum 

will be lost in implementing controls if 

these obligations are not retained. In 

general, most of these commenters also 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23977

36 In order to redesignate these areas to 

attainment, EPA had to determine these areas had 

met all obligations under part D. See CAA section 

107(d)(3)(E).

opposed revocation of the 1-hour 

NAAQS and believed Congress intended 

the 1-hour NAAQS to be planned for 

and met. Some commenters opposed 

retaining the attainment demonstration 

requirements under the 1-hour NAAQS 

after the NAAQS is revoked on the basis 

that State resources are limited and 

should be focused on developing plans 

for implementing the 8-hour rather than 

the 1-hour NAAQS. A few commenters 

favored the alternative of requiring an 

early plan with an advance increment of 

emissions reductions toward progress of 

the 8-hour NAAQS in lieu of the 

attainment demonstration SIP revision. 

A few other commenters favored the 

alternative of requiring States to submit 

an early attainment demonstration SIP 

for the 8-hour NAAQS. 

Only one commenter believed that 10 

percent was the appropriate amount 

under Alternative 1 for an advance 

increment of progress; several others 

opposed 10 percent, claiming that it 

appeared to be punitive, that there was 

no technical support for that amount, 

and that it may be more than what was 

needed for attainment of the 8-hour 

NAAQS. 

Some commenters recommended that 

exceptions be made for any area that 

made good faith efforts to develop and 

submit its plan, such as those with a 

submitted and approved plan that may 

have been challenged and overturned by 

a court. 

Response: We have designed the final 

rule such that an area without an 

approved attainment demonstration or 

ROP plan would still be required to 

submit and implement a ROP plan and 

an attainment demonstration or 

substitute plan as required for the 1-

hour NAAQS. We believe this approach 

will ensure there are no delays in 

achieving emissions reductions as we 

transition to the more stringent 8-hour 

ozone NAAQS.

We believe that areas that have not 

met their planning obligations under the 

1-hour NAAQS—if relieved of that 

obligation after the 1-hour NAAQS is 

revoked—would provide emissions 

reductions on a more protracted time 

schedule than areas that had met their 

1-hour NAAQS planning obligations. 

For example, an area that is classified 

severe-15 for the 1-hour NAAQS would 

have to obtain RFP reductions and any 

additional reductions needed for 

attainment by the end of 2005, whereas 

if that same area is moderate under the 

8-hour NAAQS, it would not be 

required to obtain reductions under the 

RFP provisions until 2008 and 

additional reductions for attainment by 

some time in 2009. We believe that the 

provisions of the final rule—by offering 

three alternative means of meeting the 

1-hour attainment demonstration 

obligation—allow sufficient flexibility 

for a State in these circumstances to 

choose the most appropriate means to 

achieve these reductions in the time 

intended by Congress. 

d. Section 51.905(a)(2): 8-hour 

NAAQS Nonattainment/1-hour NAAQS 

Maintenance

In the June 2003 proposal, we 

discussed the requirements for areas 

designated as attainment for the 1-hour 

NAAQS with a maintenance plan at the 

time of designation for the 8-hour 

NAAQS in the same sections discussing 

the requirements for areas designated 

nonattainment for the 1-hour NAAQS at 

the time of 8-hour designations. 

However, in the draft regulatory 

provisions, we created a separate 

subparagraph addressing these areas. 

Below, we indicate briefly where the 

obligations for these areas, i.e.,

maintenance areas at the time of 

designation, are the same as for areas 

designated nonattainment for the 1-hour 

NAAQS at the time of 8-hour 

designations. We discuss in more detail 

where the obligations differ. 

(i) Mandatory Control Measures.

(section VI.C.3.a.i. of proposed rule; see 

68 FR 32821; sections 51.900(f) and 

51.905(a)(2) of draft and final rules). 

(A) Background. In the June 2003 

proposal, we proposed that all areas 

designated nonattainment for the 8-hour 

NAAQS and that were nonattainment or 

maintenance for the 1-hour NAAQS at 

the time of 8-hour designations would 

be required to continue to implement 

mandatory measures adopted into the 

approved SIP. We did not distinguish 

between areas designated nonattainment 

for the 1-hour NAAQS at the time of 

designation for the 8-hour NAAQS and 

areas that are maintenance for the 1-

hour NAAQS at the time of designation 

for the 8-hour NAAQS. However, in the 

draft regulatory text, we created a 

separate provision for maintenance 

areas because these areas do not have an 

outstanding obligation to adopt 

mandatory control obligations for the 1-

hour NAAQS.36 Thus, the draft 

regulatory provision for maintenance 

areas did not address the future 

adoption of controls; it simply provided 

that these areas would be required to 

continue to implement the applicable 

requirements (as defined in the 

regulatory text) in the approved SIP.

We also provided in the June 2003 

proposal and the draft regulatory text 

that if a maintenance area had 

previously shifted a mandatory control 

measure to the contingency provisions, 

the area would not be required to begin 

implementation of that measure based 

on the 8-hour nonattainment 

designation. However, the measure 

would need to remain as a contingency 

measure for the area and could not be 

removed from the SIP. 

(B) Final Rule. We are adopting the 

approach we took in the proposal and 

the draft regulatory text. Areas that are 

maintenance for the 1-hour NAAQS at 

the time of 8-hour designations and are 

designated nonattainment for the 8-hour 

NAAQS, must continue to implement 

mandatory control requirements (i.e.,

‘‘applicable requirements’’) that have 

been approved into the SIP. However, 

since maintenance areas do not have 

any outstanding obligation to adopt 

mandatory control measures for the 1-

hour NAAQS, the provision only 

addresses implementation, not 

adoption. In addition, this section 

recognizes that maintenance areas had 

the flexibility to move mandatory 

controls to the contingency measures 

portion of their maintenance plan. The 

area would not be required to 

implement these measures unless it is 

required to do so for the area’s 

classification for the 8-hour NAAQS. 

However, the measures would need to 

remain as contingency measures and 

could not be removed from the SIP. 

We are adopting the requirement that 

1-hour maintenance areas are required 

to continue to implement mandatory 

controls for the same reasons we 

provided with respect to 8-hour NAAQS 

nonattainment/1-hour NAAQS 

nonattainment areas above. With respect 

to mandatory measures that the State 

has moved to the contingency portion of 

the maintenance plan, we do not believe 

that Congress intended to require areas 

to begin implementing such measures 

again based on the promulgation of a 

revised NAAQS unless required based 

on the area’s classification for the 

revised NAAQS. These areas have fully 

complied with the process that Congress 

established—attainment of the (thenexisting) NAAQS and redesignation to 

attainment for that NAAQS based on a 

plan demonstrating that the area will 

maintain the NAAQS. While we believe 

these areas should not ‘‘backslide’’ from 

existing control levels, we do not 

believe that for purposes of the 8-hour 

NAAQS they should be required to 

begin implementing once more 

measures that the State has chosen to 

place in the contingency measures 

portion of the SIP. 

(ii) Discretionary Control Measures.

(Section VI.C.3.a.ii. of proposed rule, 

23978 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

37 If an area located in the Ozone Transport 

Region was redesignated to attainment, section 

184(b)(2) of the CAA required it to retain a 

nonattainment NSR program. In addition, it is 

possible that one or more areas still has a 

nonattainment NSR program in place because of the 

way the State wrote the SIP.

see 68 FR 32821, Section 51.905(a)(2) of 

draft regulatory text; there is no parallel 

provision in the final rule.) 

(A) Background. The June 2, 2003 

proposal did not discuss the 

requirements for these areas 

independent of all areas that were 

designated nonattainment for the 1-hour 

NAAQS on or after November 15, 1990. 

The draft regulatory text (section 

51.905(a)(2)), however, did provide for 

this situation separately but did not 

directly address discretionary measures. 

(B) Summary of Final Rule. As with 

discretionary control measures for 8-

hour NAAQS nonattainment/1-hour 

NAAQS nonattainment areas, 1-hour 

NAAQS maintenance/8-hour NAAQS 

nonattainment areas will retain the 

discretion to modify any discretionary 

control measures upon a demonstration 

under section 110(l). We are not 

promulgating regulatory text because, as 

described above, sections 110(l) and 193 

of the CAA govern such SIP revisions.

(iii) Measures to address growth.

(Section VI.C.3.a.iii of proposed rule; 

see 68 FR 32821; sections 51.900(f) and 

51.905(a)(1) of the draft and final rules) 

(A) Background. In the proposal, we 

recognized that 1-hour maintenance 

areas generally are subject to the 

prevention of significant deterioration 

(PSD) program and are no longer 

implementing the nonattainment NSR 

program for their previous 1-hour ozone 

designation and classification.37 For 

areas where the NSR program no longer 

applies under the SIP, we proposed that 

the areas would not need to revert back 

to the NSR program they had for 

purposes of the 1-hour NAAQS. The 

proposal provided examples of how this 

would work (68 FR 32821).

(B) Summary of final rule. We are 

adopting the approach we proposed but 

our rationale relies on the final rule’s 

provision that NSR under the 1-hour 

standard will no longer apply as of 

revocation of the 1-hour standard. If an 

area has been redesignated to attainment 

for the 1-hour NAAQS as of the effective 

date of the 8-hour nonattainment 

designation and is no longer required to 

implement a nonattainment NSR 

program, the area will not be required 

to revert back to the program it had for 

purposes of the 1-hour ozone NAAQS. 

As noted elsewhere, NSR offset ratios 

and source applicability provisions 

under the 1-hour standard are not being 

defined as ‘‘applicable requirements’’

after the 1-hour standard is revoked. 

As provided in more detail below for 

8-hour NAAQS nonattainment/1-hour 

NAAQS nonattainment areas, we have 

determined that 1-hour NAAQS NSR 

should not continue to apply once the 

1-hour NAAQS is revoked for those 

areas. It would not be reasonable to 

require these areas to begin those 1-hour 

programs again for the 1-year between 

designation for the 8-hour NAAQS and 

revocation of the 1-hour standard. 

Moreover, Congress did not intend the 

nonattainment NSR program to continue 

to apply to most areas once they are 

redesignated to attainment. Rather, such 

areas are subject to the PSD program. 

For an area that has met the clean air 

goals for the 1-hour NAAQS, we see no 

reason to require such area to revert 

back to its 1-hour NSR program. These 

areas will be required to implement the 

nonattainment NSR program that 

applies based on their classification for 

the 8-hour ozone NAAQS. 

(iv) Planning SIPs. (Section 

VI.C.3.a.iV. of proposed rule, see 68 FR 

32822; no specific provision in draft 

regulatory text or final rule.) 

(A) Background. In the June 2003 

proposal, we did not discuss 

maintenance areas separate from 8-hour 

NAAQS nonattainment/1-hour NAAQS 

nonattainment areas. However, the 

preamble discussion focused on areas 

with an outstanding obligation to 

submit a 1-hour ROP or attainment plan 

and the obligation to ensure that the 

ROP percentage reduction obligations in 

the approved SIP are achieved. 

Maintenance areas for the 1-hour 

NAAQS do not have an outstanding 

obligation to submit ROP or attainment 

plans for the 1-hour NAAQS. Thus, the 

draft regulatory text did not include 

language similar to that in 51.905(a)(ii) 

and (iii) for maintenance areas. The 

draft regulatory text did reflect ROP as 

an applicable requirement for 

maintenance areas, indicating that these 

areas must ensure that any SIP revision 

does not interfere with an approved 

ROP milestone. 

(B) Summary of final rule. We are 

adopting the approach taken in the draft 

regulatory text. In redesignating an area 

to attainment, EPA must conclude that 

the area has met all requirements 

applicable under section 110 and part D. 

Thus, maintenance areas do not have 

continuing progress and attainment 

demonstration requirements, and the 

final rule does not establish 

requirements for maintenance areas 

related to outstanding attainment 

demonstration and ROP plans. The final 

rule does identify the ROP percent 

reduction requirement as an applicable 

requirement. However, we note that the 

ROP periods for areas redesignated to 

attainment for the 1-hour NAAQS have 

already passed and thus any revision to 

the SIP should not affect ROP 

reductions for the periods required for 

the 1-hour NAAQS. 

(C) Comments and responses.

Comment: One commenter believed 

that 1-hour maintenance areas 

designated nonattainment under the 8-

hour NAAQS should not have to submit 

updates to the 1-hour maintenance plan, 

since they will be developing 8-hour 

attainment plans that will subsume the 

requirements of the maintenance plan 

previously in effect. 

Response: The rule provides that after 

the 1-hour ozone NAAQS is revoked, 

areas are relieved of responsibilities to 

submit updates to their 1-hour 

maintenance plans. The State may 

submit a revision to the SIP to remove 

the provisions that require the update to 

the maintenance plan. 

Comment: One commenter noted that 

draft Section 51.905(a)(2) would limit 

shifting of an applicable requirement to 

the contingency measure portion of an 

area’s maintenance plan. Under the 

proposal, a State may only make such a 

shift prior to the revocation of the 1-

hour NAAQS; States may only make 

subsequent shifts by satisfying the 

requirements of section 110(l) of the 

CAA. The commenter believes that this 

criterion for shifting measures to the 

maintenance plan is more stringent and 

burdensome than the requirements in 

section 175A of the CAA for 

maintenance plans. In the alternative, 

the commenter recommends that in lieu 

of the showing required by Section 

110(l), that States, instead, be allowed to 

substitute a control measure with 

equivalent emissions reductions for the 

measures they propose to remove from 

their plan. 

Response: We agree with the 

commenter that section 51.905(a)(2) will 

limit the authority of an area that was 

maintenance for the 1-hour standard at 

the time of designation as 

nonattainment for the 8-hour standard. 

However, we disagree with the 

commenter regarding the statutory 

provisions that apply for purposes of 

SIP revisions. The commenter is 

incorrect that section 110(l) does not 

apply to revisions to maintenance plans. 

Prior to being designated nonattainment 

for the 8-hour NAAQS, such an area 

could move adopted measures to the 

contingency measures portion of the 

maintenance plan based on a 

demonstration under section 110(l) that 

such a revision would not interfere with 

attainment, maintenance or any other 

applicable requirement of the CAA. Our 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23979

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

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

attains the 8-hour NAAQS.

39 If an area located in the Ozone Transport 

Region was redesignated to attainment, section 

184(b)(2) of the CAA required it to retain a 

nonattainment NSR program. In addition, it is 

possible that one or more areas still has a 

nonattainment NSR program in place because of the 

way the State wrote the SIP.

40Memorandum from Mary Nichols to Regional 

Air Division Directors dated October 14, 1994, 

entitled ‘‘Part D New Source Review (part D NSR) 

Requirements for Areas Requesting Redesignation 

to Attainment.’’

rule provides that upon designation as 

nonattainment for the 8-hour NAAQS, a 

1-hour maintenance area will not be 

able to shift adopted mandatory controls 

(i.e., those identified as ‘‘applicable 

requirements’’ in the regulation) to 

contingency measures as those 

obligations are now defined as 

‘‘applicable requirements.’’ Once the 

area is redesignated to attainment for 

the 8-hour NAAQS, such obligations 

will no longer be defined as ‘‘applicable 

requirements’’ and the State can move 

them to contingency measures based on 

a demonstration that to do so would not 

interfere with attainment or 

maintenance of the 8-hour NAAQS or 

any other applicable requirement of the 

CAA. For adopted control measures that 

are not identified as ‘‘applicable 

requirements’’ in the regulation, the 

State will continue to have the same 

authority it currently has for shifting 

adopted controls to contingency 

measures, based on a demonstration 

under section 110(l). 

Comment: One commenter noted that 

in section 51.905(a)(2), the clause 

‘‘* * * except to the extent required 

under its 8-hour obligations * * *’’

could be interpreted to imply that 

contingency measures in the 1-hour 

maintenance plan become 8-hour 

measures by default. The commenter 

suggested language to avoid an incorrect 

interpretation. 

Response: The final rule reflects this 

recommended language change with 

some slight modifications.

e. Section 51.905(a)(3): 8-Hour 

NAAQS Attainment/1-Hour NAAQS 

Nonattainment

(i) Mandatory control obligations.

(Section VI.C.3.b. of proposal, see 68 FR 

32823; section 51.905(a)(3)(i) of the draft 

and final rule) 

(A) Background. The proposal noted 

that the issue of what obligation remains 

with respect to mandatory control 

measures approved into the SIP or 

required under the CAA is based on the 

CAA’s requirements for maintenance 

plans. We proposed that if EPA 

determined that these areas were 

required to develop maintenance plans 

pursuant to section 175A, then they 

would need to keep (or to adopt and 

then keep) those control measures in the 

SIP, though they could shift them to 

contingency measures. 

For an area that was never 

redesignated to attainment for the 1-

hour standard and never had a section 

175A maintenance plan, we proposed 

that if the area wants to revise any part 

of its current 1-hour SIP, the area must 

first adopt and submit a maintenance 

plan consistent with section 110(a)(1) 

(discussed below). We proposed that 

these obligations would remain in place 

but in a later section of the preamble 

proposed options as to when this 

obligation would no longer apply.38

(B) Summary of final rule.

We are adopting an approach 

consistent with our proposed rule. As 

we discuss later in this preamble, we 

have determined that mandatory control 

obligations will no longer apply once an 

area attains the 8-hour NAAQS. Thus, 

because these areas are attaining the 8-

hour NAAQS, the State may request that 

obligations under the applicable 

requirements of section 51.900(f) be 

shifted to contingency measures once 

the 1-hour NAAQS is revoked, 

consistent with sections 110(l) and 193 

of the CAA. However, the State cannot 

remove the obligations from the SIP. 

Because these areas are in attainment 

with the health-based NAAQS, we 

believe that Congress—as with areas 

redesignated from nonattainment to 

attainment—did not intend the areas to 

retain these controls as implemented 

measures if the area can demonstrate 

maintenance without the controls. As 

with areas redesignated to attainment, 

the rule provides that the State cannot 

remove the measures from the SIP, but 

rather may move them to the 

contingency measures portion of the 

SIP. We did not receive comments 

directly addressing mandatory control 

obligations for this category of areas 

outside the context of maintenance 

plans for these areas discussed below. 

(ii) Discretionary control obligations.

(Section VI.C.3.b.iii. of proposal; 68 FR 

32823; section 51.905(d) of draft 

regulatory text; no parallel provision in 

final rule.) 

Areas designated nonattainment for 

the 1-hour NAAQS that are designated 

attainment for the 8-hour ozone NAAQS 

will retain the ability to modify any 

discretionary controls upon a 

demonstration under section 110(l). 

However, such controls must remain in 

the SIP as contingency measures. We are 

not promulgating regulatory text 

because, as described above, sections 

110(l) and 193 of the CAA govern such 

SIP revisions. As with mandatory 

measures, we look to the maintenance 

plan provision of section 175A to see 

what Congress’ intent may have been for 

these areas. Because these areas were 

nonattainment for the 1-hour NAAQS, 

we believe Congress intended them to 

retain the measures in the SIP, but could 

shift them to contingency measures if 

the area demonstrates it will maintain 

the 8-hour NAAQS if the measure is no 

longer implemented. We did receive 

comments directly addressing 

discretionary control obligations for this 

category of areas outside the context of 

maintenance plans for these areas 

discussed below. 

(iii) Measures to address growth.

(Section VI.C.3.b.i. of proposal; 68 FR 

32823; no provision in draft or final 

rule.) 

(A) Background. The proposal 

explained that NSR applies only in 

nonattainment areas.39 Since these areas 

would be designated attainment for the 

8-hour NAAQS—the only ozone 

NAAQS that exists for the area once the 

1-hour NAAQS is revoked—they would 

be subject to PSD, not NSR, once the 1-

hour NAAQS is revoked.

(B) Summary of final rule. We are 

adopting the approach we set forth in 

our proposed rule for areas designated 

attainment for the 8-hour NAAQS and 

designated nonattainment for the 1-hour 

NAAQS at the time of designation for 

the 8-hour NAAQS. After the 1-hour 

NAAQS is revoked, the CAA requires 

such areas to comply with PSD, not 

NSR. (The States may need to modify 

their SIPs so that it provides for PSD 

rather than NSR in such areas.) We do 

not see a basis for mandating that such 

areas retain a nonattainment NSR 

program and do not believe that 

Congress intended such a result. As an 

initial matter, once the 1-hour NAAQS 

is revoked, these areas are meeting the 

only ozone NAAQS that is in place. 

Congress specified that PSD shall apply 

in areas not designated nonattainment 

(section 161 of the CAA). In addition, as 

provided in more detail below for 8-

hour NAAQS nonattainment/1-hour 

NAAQS nonattainment areas, we have 

determined that 1-hour NAAQS NSR 

should not continue to apply once the 

1-hour NAAQS is revoked for those 

areas. 

Note that for these areas, the NSR 

provisions may be removed from the SIP 

and need not be shifted to contingency 

measures.40 We have never interpreted 

section 175A of the CAA to mandate 

that nonattainment NSR be retained as 

a contingency measure in the SIP after 

an area is redesignated from 

nonattainment to attainment because we 

do not interpret NSR to be a control 

23980 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

41We discuss the obligation for these areas to 

adopt a section 110(a)(1) maintenance plan below.

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

25436.)

(C) Comments and responses.

Comment: Some commenters believed 

that the 1-hour NAAQS should remain 

in effect, and therefore NSR would 

continue to apply until the area attains 

the 1-hour NAAQS and is redesignated 

to attainment for that NAAQS regardless 

of the area’s status for the 8-hour 

NAAQS. Other commenters generally 

agreed with the proposal. 

Response: We address the broader 

legal and policy issues regarding 

revocation of the 1-hour NAAQS in the 

revocation section of this rule. 

(iv) Planning SIPs. (Section 

VI.C.3.b(ii) of proposed rule; see 68 FR 

32823; section 51.905(a)(3)(ii) of draft 

and final rule.) 

(A) Background. In the June 2, 2003 

proposed rule, we proposed that any 

outstanding SIP planning requirements 

(ROP plans and attainment 

demonstrations) that applied for 

purposes of the 1-hour NAAQS would 

not continue to apply to areas 

designated attainment for the 8-hour 

NAAQS for as long as they continue to 

maintain the 8-hour NAAQS. If such an 

area violates the 8-hour NAAQS prior to 

having an approved maintenance plan 

meeting the requirements of section 

110(a)(1) the obligation to have a 1-hour 

attainment demonstration and ROP plan 

would once again apply in the same 

manner that they apply for 8-hour 

NAAQS nonattainment/1-hour NAAQS 

nonattainment areas. 

The draft regulatory text (section 

51.905(a)(3)) contained specific 

provisions addressing the obligation for 

an area designated attainment for the 8-

hour NAAQS that subsequently violates 

the 8-hour NAAQS prior to having an 

approved maintenance plan under 

section 110(a)(1). If the area was 

required to and does not have an 

approved attainment demonstration or 

ROP plan for the 1-hour NAAQS, the 

State would be required to submit a 

plan providing for a 10 percent emission 

reduction as a substitute for the 

attainment demonstration and to adopt 

and submit any outstanding ROP 

emission reductions. 

(B) Summary of final rule. We are 

adopting our proposal with some 

modification. As an initial matter, 

section 51.905(a)(3) now only addresses 

8-hour NAAQS attainment/1-hour 

NAAQS nonattainment areas. We have 

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

addresses 8-hour NAAQS attainment/1-

hour NAAQS maintenance areas. The 

section addressing that second category 

of areas is discussed below. An area that 

is 8-hour NAAQS attainment/1-hour 

NAAQS nonattainment will not be 

required to develop and submit 

outstanding attainment demonstration 

and ROP plans for the 1-hour NAAQS 

for so long as the area continues to 

maintain the 8-hour NAAQS. However, 

if the area violates the 8-hour NAAQS 

prior to having an approved 8-hour 

maintenance plan under section 

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

submit a SIP revision to address 

outstanding ROP and attainment 

demonstration plans as follows.41

(1) ROP Plans. For an outstanding 1-

hour ROP plan, the State must submit 

a SIP providing for any outstanding ROP 

and the 3-year periods for achieving 

those reductions will begin January 1 of 

the year following the 3-year period on 

which EPA bases its determination. For 

example, if an area was required to and 

does not have an approved SIP 

providing for a 9% reduction in 

emissions from 1996–1999, the 

obligation to have such a SIP is deferred 

unless the area violates the 8-hour 

NAAQS prior to having an approved 

maintenance plan for the 8-hour 

NAAQS. If EPA determines in August 

2007 that the area violated the 8-hour 

NAAQS based on ambient air quality 

data from 2004–2006 and at that time 

the area does not have an approved 

maintenance plan for the 8-hour 

NAAQS, the area will be required to 

submit a SIP providing for a 9 percent 

reduction in emissions for the 3-year 

period of January 2007—December 

2009. The State may rely on national 

and regional controls for purposes of 

meeting this increment of reduction and 

the 9 percent should be calculated using 

the 1990 baseline. (The 1-hour ROP 

requirement is calculated from a 1990 

baseline, not a 2002 baseline, as is the 

8-hour RFP requirement.) We have 

clarified the language in the final 

regulation to make clear that the 

requirement to submit the plan for 

additional emission reductions applies 

only to the extent that an area had not 

met its prior planning obligations. For 

example, if an area was classified as 

serious for the 1-hour NAAQS and had 

an approved 15 percent ROP plan and 

an approved 9 percent ROP plan for 

1996–1999, then the area does not have 

any outstanding ROP obligation that 

must be met under this provision. 

However, if the same area only had an 

approved 15 percent ROP plan, but not 

an approved 9 percent ROP plan for 

1996–1999, then the area has an 

outstanding 9 percent ROP plan for the 

1996–1999 period. If the State had 

submitted the ROP plan to EPA, but 

EPA had not yet acted on the 

submission, the State may notify EPA 

that it wishes to rely on the previously 

submitted SIP or it may elect to submit 

a new or revised SIP. 

We believe this approach makes sense 

as it ensures that the level of emission 

reduction that the area was required to 

achieve, but was not yet enforceable 

under the SIP, will be achieved 

expeditiously after a violation of the 8-

hour NAAQS occurs. 

(2) Attainment Demonstration. For an 

outstanding 1-hour attainment 

demonstration, the final rule requires 

the State to either: (1) submit an 8-hour 

maintenance plan that addresses the 

violation and demonstrates maintenance 

through EPA-approved modeling; or (2) 

submit a plan to achieve a 3 percent 

increment of progress within 3 years 

after EPA determines the area has 

violated the NAAQS. The 3 percent 

increment of progress must be in 

addition to measures (or enforceable 

commitments to measures) in the SIP at 

the time of the effective date of 

designation and in addition to national 

or regional measures. 

This approach differs from both the 

June 2003 proposal and the draft 

regulatory text in that we do not 

establish precisely the same 

requirement for these areas that we 

establish for areas that are 8-hour 

NAAQS nonattainment/1-hour NAAQS 

nonattainment. For areas that are 8-hour 

NAAQS nonattainment/1-hour NAAQS 

nonattainment, section 51.905(a)(1)(ii) 

provides three options for the State. The 

first option available is that States may 

choose to submit their 1-hour SIP. We 

do not believe this option makes good 

policy sense for an area designated 

attainment for the 8-hour NAAQS to 

spend resources to develop a plan to 

achieve the 1-hour NAAQS (which is 

likely to have been revoked by that 

time), when the area will already be in 

the process of developing the section 

110(a)(1) maintenance plan for the area 

discussed elsewhere in this preamble. 

The second and third options under 

section 51.905(a)(1)(ii) available to areas 

that are 8-hour NAAQS nonattainment/

1-hour NAAQS nonattainment are 

analogous but not identical to the two 

options we provide for areas designated 

attainment for the 8-hour NAAQS. Both 

types of areas are provided with the 

option of achieving a specified 

increment of progress. For areas that are 

8-hour NAAQS nonattainment/1-hour 

NAAQS nonattainment, we established 

an increment of 5 percent and for those 

designated attainment for the 8-hour 

NAAQS, we established a 3 percent 

increment. In general, we believe that 

those areas initially designated 

attainment for the 8-hour NAAQS will 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23981

have a less significant 8-hour problem—

these areas tend to record values within 

a few parts per billion of the NAAQS. 

Thus, since the increment of progress is 

limited to controls not already adopted 

into the SIP or required by federal or 

regional controls, the 5 percent 

reduction requirement would likely be 

excessive for purposes of addressing 

that small deviation from the NAAQS. 

The third option available to areas 

that are 8-hour NAAQS nonattainment/

1-hour NAAQS nonattainment is to 

submit an early 8-hour attainment 

demonstration. Since areas designated 

attainment for the 8-hour NAAQS are 

not required to develop attainment 

demonstrations, it did not make sense to 

carry this option over. Rather, we 

determined it made more sense to allow 

the area to address the violation in the 

context of the obligation that it does 

have, i.e., to develop a maintenance 

plan for the 8-hour NAAQS. Thus, for 

these areas, we created the option of 

performing a more rigorous 

maintenance demonstration—a 

demonstration based on EPA-approved 

modeling. 

(C) Comments and responses.

Comment: Some commenters on draft 

regulatory text objected to continuing 

the obligation for areas to submit ROP 

plans and/or attainment demonstrations 

for the 1-hour NAAQS after the 1-hour 

NAAQS is revoked. Some of the 

comments reflected the fact that the 

regulatory text may have been unclear 

regarding what the requirement entailed 

and which areas were affected. 

Response: We have designed the final 

rule such that an area with an unmet 

planning obligation would still be 

required to submit and implement a rate 

of progress plan and an attainment 

demonstration (or substitute plan) under 

the 1-hour NAAQS if the area violates 

the 8-hour NAAQS before it has an 

approved maintenance plan. These are 

areas that have historically had an 

ozone problem and, in general, have 8-

hour design values within a few parts 

per billion of the 8-hour NAAQS. Once 

these areas have an approved 110(a)(1) 

maintenance plan with contingency 

measures, that plan will address future 

violations of the 8-hour NAAQS and the 

1-hour obligations will no longer apply. 

However, until that plan is in place, we 

believe that Congress would have 

intended these requirements to still 

have significance if the area violates the 

health-based NAAQS. 

The final regulatory text was modified 

to clarify that the provision applies to 

areas that do not have approved ROP 

plans and/or attainment demonstrations 

under the 1-hour NAAQS and that 

violate the 8-hour NAAQS before having 

an approved 8-hour maintenance plan 

under section 110(a)(1). The regulatory 

text also clarifies the obligation that will 

apply. 

(v) Maintenance Plans for the 8-hour 

NAAQS. (Section VI.C.3.b(iii) of 

proposed rule; see 68 FR 32823; Section 

51.905(a)(3)(iii)of draft and final rules). 

(A) Background.

In the June 2003 proposal, we 

proposed that areas designated 

attainment for the 8-hour NAAQS and 

designated nonattainment for the 1-hour 

NAAQS on or after November 15, 1990, 

must adopt and submit a maintenance 

plan consistent with section 110(a)(1) 

within 3 years of designation as 

attainment for the 8-hour NAAQS. The 

maintenance plan should provide for 

continued maintenance of the 8-hour 

NAAQS for 10 years following 

designation for the 8-hour NAAQS and 

must include contingency measures. 

Areas with approved 1-hour 

maintenance plans under section 175A 

would be able to modify those 

maintenance plans consistent with their 

obligation to have a maintenance plan 

for the 8-hour NAAQS under section 

110(a)(1). Such areas could remove from 

their maintenance SIPs (a) the obligation 

to submit a maintenance plan for the 1-

hour NAAQS 8 years after approval of 

their initial 1-hour maintenance plan; 

and (b) the requirement to implement 

contingency measures upon a violation 

of the 1-hour ozone NAAQS.

The draft regulatory text reflected the 

description in the June 2003 proposal. 

(B) Summary of final rule.

We are adopting the approach we 

proposed. However, as noted above, we 

have now created separate subsections 

in the rule addressing areas that were 

designated nonattainment for the 1-hour 

NAAQS at the time of designation for 

the 1-hour NAAQS and areas that were 

maintenance areas for the 1-hour 

NAAQS at the time of designation for 

the 8-hour NAAQS. Section 

51.905(a)(3)(iii) applies only to areas 

designated nonattainment for the 1-hour 

NAAQS at the time of designation for 

the 8-hour NAAQS. Section 

51.905(a)(4)(ii) establishes the same 

requirement for areas that are 

maintenance for the 1-hour NAAQS at 

the time of designation for the 8-hour 

NAAQS. These two provisions provide 

that 1-hour NAAQS nonattainment/8-

hour NAAQS attainment (section 

51.905(a)(3)(iii)) and 8-hour NAAQS 

attainment/1-hour NAAQS maintenance 

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

adopt and submit a maintenance plan 

consistent with section 110(a)(1) within 

3 years of designation as attainment for 

the 8-hour NAAQS. The maintenance 

plan should provide for continued 

maintenance of the 8-hour NAAQS for 

10 years following designation for the 8-

hour NAAQS and should include 

contingency measures. We provide 

additional detail below regarding 

maintenance areas for the 1-hour 

NAAQS. 

Section 110(a)(1) requires all areas to 

demonstrate that they will attain and 

maintain the relevant NAAQS. Most of 

the areas addressed by this provision of 

the regulation have historically had 

problems meeting and/or remaining in 

attainment of the ozone NAAQS. We 

think it is important for States to ensure 

that these areas will continue to have 

clean air so that the health of citizens 

will be protected. 

(C) Comments and responses.

Comment: A number of commenters 

who addressed this issue in comments 

on the June 2, 2003 proposal did not 

support the section 110(a)(1) 

maintenance plan requirement. Some 

commenters believed the 1-hour 

NAAQS should remain in effect and 

with it any existing 1-hour SIP 

requirements, including section 175A 

maintenance plan requirements (which 

would require conformity 

determinations). One commenter 

objected to the proposed requirement, 

alleging the requirement was 

unnecessary and not required. Two 

commenters agreed with the 

requirement. 

In commenting on the draft regulatory 

text one commenter supported this 

provision. One commenter 

recommended that we provide more 

specific guidance on preparation of 

section 110(a)(1) maintenance plans and 

also not require modeling for them. Two 

commenters objected to maintenance 

plans under section 110(a)(1) because 

they would not require conformity (as 

would maintenance plans under section 

175A) for areas that currently have 

maintenance plans under the 1-hour 

NAAQS. The commenters believed the 

maintenance planning should be done 

under section 175A. Another 

commenter believed that section 

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

contingency measures nor a 10-year 

plan; the commenter suggested that the 

section 110(a)(1) maintenance plan 

merely be a continuation of the 

provisions of the existing maintenance 

plan. 

Response: Because the 1-hour NAAQS 

would be revoked, the requirements of 

section 175A would not apply to these 

areas (areas initially designated 

attainment for the 8-hour NAAQS but 

that were designated nonattainment for 

the 1-hour NAAQS at the time of 

enactment of the 1990 CAA 

Amendments.) Section 175A applies to 

23982 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

redesignations, not to initial 

designations. After the 1-hour NAAQS 

is revoked, we believe that an area that 

was previously designated 

nonattainment for the 1-hour NAAQS or 

was designated attainment with a 

maintenance plan and that initially is 

designated attainment for the 8-hour 

ozone NAAQS, should be required to 

demonstrate maintenance only for the 8-

hour NAAQS at that point. The area was 

not ‘‘redesignated’’ attainment for the 8-

hour NAAQS, and therefore the section 

175A maintenance plan requirement 

does not apply. We believe that the 

section 110(a)(1) maintenance 

provisions—as required in section 

51.905—will provide adequate 

assurance of maintenance of the 8-hour 

NAAQS. The EPA always retains the 

authority to require a State that fails to 

maintain the NAAQS to revise its SIP to 

provide additional maintenance 

measures or to redesignate the area 

nonattainment and require an 

attainment demonstration. 

We do not agree with commenters 

that opposed a provision requiring a 

maintenance plan under section 

110(a)(1) for these areas. We believe that 

the CAA requires that SIPs continue to 

provide for maintenance of the 

applicable NAAQS under section 

110(a)(1). Because these areas have 

historically experienced ozone problems 

and generally are close to violating the 

8-hour NAAQS, we believe it is prudent 

to require a demonstration of how they 

will maintain the 8-hour NAAQS. We 

think this requirement will benefit 

citizens by providing better assurance 

that the air will remain clean and will 

benefit industry by minimizing the 

likelihood the area will violate the 

standard and be redesignated to 

nonattainment. 

f. Section 51.905(a)(4): 8-Hour 

NAAQS Attainment/1-Hour NAAQS 

Maintenance.

As noted above, in the preamble to 

the proposed rule, EPA addressed in the 

same section 1-hour nonattainment 

areas and 1-hour maintenance areas that 

are designated nonattainment for the 8-

hour NAAQS. Comments on the 

proposed regulatory text noted that 

section 51.905(a)(3) only addressed 8-

hour attainment areas that were 

designated nonattainment for the 1-hour 

ozone NAAQS and not areas that were 

maintenance for that NAAQS. Thus, the 

draft rule did not address all aspects of 

the proposal since it did not include 

provisions for areas that are 

maintenance for the 1-hour NAAQS at 

the time of designations. 

We considered revising paragraph 

51.905(a)(3) to include 1-hour 

maintenance areas. However, that 

subsection included certain 

requirements not relevant for 1-hour 

maintenance areas, such as 

requirements concerning outstanding 

attainment demonstration and ROP 

plans. Thus, in the final rule, we created 

section 51.905(a)(4) to apply to areas 

designated attainment for the 8-hour 

NAAQS and that were maintenance 

areas for the 1-hour NAAQS at the time 

of designation for the 8-hour NAAQS. 

(i) Obligations in an approved SIP.

(51.905(a)(4)(i)). 

This subsection is identical in 

structure to section 51.905(a)(3)(i). Our 

reasons are explained in our discussion 

of section 51.905(a)(3)(i), above. 

(ii) Maintenance plan.

(51.905(a)(4)(ii). As provided above in 

the discussion of section 

51.905(a)(3)(iii), we are adopting in our 

final rule our proposed interpretation 

regarding maintenance plans for areas 

designated nonattainment for the 1-hour 

NAAQS on or after November 15, 1990 

(i.e., areas that remain designated 

nonattainment for the 1-hour NAAQS as 

well as maintenance areas for the 1-hour 

NAAQS at the time of designation for 

the 8-hour NAAQS). Specifically, these 

areas must adopt a maintenance plan 

under section 110(a)(1) within 3 years of 

designation for the 8-hour NAAQS. The 

provision for maintenance areas is the 

same as for areas designated 

nonattainment for the 1-hour NAAQS. 

However, for maintenance areas, section 

51.905(e), discussed below, crossreferences this provision and addresses 

the relationship between the existing 1-

hour maintenance plan and the 8-hour 

maintenance plan. 

Our reasons for adopting this 

provision are discussed above. Although 

these areas already have maintenance 

plans, those plans only address 

maintenance of the 1-hour NAAQS. It is 

important for these areas to ensure that 

they have a plan addressing 

maintenance of the 8-hour NAAQS. 

These areas may evaluate their existing 

plan and demonstrate how it will ensure 

maintenance of the 8-hour NAAQS, or 

may modify their existing plan, or may 

adopt a new plan, as appropriate.

Comment: One commenter argued 

that it makes little sense to require the 

State to continue to expend the effort 

and resources to update and extend 

these maintenance plans. The 

commenter questioned why a newly 

designated marginal area under the 8-

hour NAAQS should be exempt from 

implementation plan requirements, 

while an area previously nonattainment 

for the 1-hour NAAQS, but now in 

attainment for both NAAQS, should be 

required to continue with 8 additional 

years of maintenance plan requirements. 

Response: The final rule (section 

51.905(a)(4)) clarifies that these areas 

(areas that are initially designated 

attainment for the 8-hour NAAQS but 

were attainment areas under the 1-hour 

NAAQS with approved maintenance 

plans) are relieved of the requirement to 

update their maintenance plan under 

section 175(A), but must submit a 

maintenance plan under section 

110(a)(1) that provides for maintenance 

for 10 years. It should be noted that 

marginal areas under the 8-hour 

NAAQS are not ‘‘exempt’’ from 

implementation plan requirements; they 

are still subject to nonattainment new 

source review and conformity 

requirements, for instance. Furthermore, 

if a marginal area does not attain the 

NAAQS by its attainment date, the CAA 

requires that the area be bumped up in 

classification, which would require the 

area to submit a revised SIP with an 

attainment demonstration and control 

measures required under subpart 2 for 

the area’s new classification. In 

addition, once the area attains the 8-

hour NAAQS, it will be subject to the 

more stringent maintenance plan 

provision in section 175A, which 

requires the areas to demonstrate 

maintenance for 20 years. 

3. For How Long Do These Obligations 

Continue To Apply? (Section VI.C.4 of 

Proposed rule; See 68 FR 32824; Section 

51.905(b) of Draft and Final Rules) 

a. Background. In the June 2, 2003 

proposed rule, we proposed two options 

for when the State would no longer be 

required to continue implementing SIPapproved control obligations required 

for an area’s 1-hour classification. At 

that time, these requirements could be 

relegated to the contingency measures 

portion of the SIP if the State 

demonstrated that implementation of 

the controls was not necessary to attain 

or maintain the 8-hour NAAQS 

(consistent with section 110(l)). For 

simplification, we refer to this as the 

time control obligations may be shifted 

to the contingency measures. We 

clarified that the term ‘‘control 

obligations’’ was intended to refer to the 

obligations which we determined would 

continue to apply under the preceding 

sections of the proposal, including the 

NOX transport rules. Under Option 1, 

control obligations could be shifted to 

contingency measures when the area 

achieves the level of the 1-hour ozone 

NAAQS (even if the area has not yet 

attained the 8-hour NAAQS). Under 

Option 2, control obligations could be 

shifted to contingency measures once 

the area attains and is redesignated to 

attainment for the 8-hour NAAQS 

(regardless of when, if ever, the area 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23983

attains the 1-hour NAAQS). The draft 

regulatory text was developed using 

Option 1 (when the area achieves the 

level of the 1-hour ozone NAAQS). 

b. Summary of final rule. We are 

adopting Option 2—control obligations 

an area is required to retain in the 

approved SIP for an area’s 1-hour 

classification must continue to be 

implemented under the SIP until the 

area attains and is redesignated to 

attainment for the 8-hour NAAQS. At 

that time, the State may relegate such 

controls to the contingency measure 

portion of the SIP if the State 

demonstrates in accordance with 

section 110(l) that doing so will not 

interfere with maintenance of the 8-hour 

NAAQS or any other applicable 

requirement of the CAA. If at the time 

the area is redesignated to attainment 

for the 8-hour NAAQS the State has an 

outstanding obligation to adopt a 

control requirement under the 1-hour 

NAAQS, it remains obligated to do so, 

but may adopt it as a contingency 

measure. As discussed above, under 

EPA’s Clean Data Policy, certain 

obligations such as the requirement to 

submit ROP plans and attainment 

demonstrations may be suspended 

based on a determination that the area 

has attained the 8-hour NAAQS and 

will no longer apply if the area is 

redesignated to attainment. However, if 

an area experiences a violation of the 8-

hour NAAQS prior to being 

redesignated to attainment the 

requirements would once again apply. 

We are adopting this option because, 

as noted in the June 2, 2003 proposal, 

the 8-hour NAAQS is the NAAQS that 

we have determined will protect public 

health and the environment. Only once 

an area demonstrates it has met and can 

maintain the health protective NAAQS 

do we believe it will be appropriate to 

shift these obligations to the 

contingency measures portion of the 

SIP. This scheme is consistent with 

what Congress intended. The CAA 

contemplates under subpart 2 that 

States must implement certain 

mandated requirements. Under the 

maintenance plan provision of the CAA 

(section 175A), such requirements may 

be shifted to the contingency measure 

portion of the SIP upon or after 

redesignation to attainment. Since the 

relevant NAAQS is now the 8-hour 

NAAQS, we believe it is appropriate to 

require these mandated controls to 

remain as part of the implemented SIP 

until an area attains the 8-hour NAAQS 

and is redesignated to attainment. On or 

after that date, a State may move such 

obligation to the contingency measures 

portion of the SIP consistent with 

sections 175A and 110(l). Moreover, we 

believe it is appropriate to use 

attainment of the 8-hour NAAQS rather 

than attainment of the 1-hour NAAQS 

because, as provided elsewhere in this 

rulemaking, EPA will no longer be 

making determinations of whether an 

area has attained the 1-hour NAAQS 

and areas will not be required to 

demonstrate attainment or maintenance 

of the 1-hour NAAQS. Some areas may 

never attain the 1-hour NAAQS, as there 

will be no obligation to do so once it is 

revoked. 

The final rule covers the continued 

applicability of the NOX transport rules 

under section 51.905(f), rather than as 

an ‘‘applicable requirement’’ for 

purposes of section 110(l) because the 

NOX rules apply regardless of an area’s 

attainment or nonattainment status for 

the 8-hour (or the 1-hour) NAAQS.

c. Comments and responses

Comment: Of the few commenters 

who addressed this issue in response to 

the June 2, 2003 proposal, several 

favored Option 1, and several favored 

Option 2. Of those who commented on 

the draft regulatory text, one commenter 

opposed the provision, and one 

comment was unclear as to the 

commenter’s concerns. One other 

commenter supported the provision. 

Several commenters had clarifying 

questions. 

Response: Our rationale for the choice 

of Option 2 is presented above. A more 

detailed response to these and other 

comments appears in the RTC 

document. 

4. Which Portions of an Area Designated 

for the 8-Hour NAAQS Remain Subject 

to the 1-Hour NAAQS Obligations? 

(Section VI.C.2 and 3 of Proposal; See

68 FR 32820–32821; 51.905(c) of the 

Draft and Final Rules) 

a. Background. In the June 2, 2003 

notice, we proposed that the obligation 

to retain or to adopt and retain a 

mandatory control obligation applies 

only to the part of the 8-hour ozone 

nonattainment area that was designated 

nonattainment for the 1-hour ozone 

NAAQS. The proposal also provided an 

example of how this would work. 

The draft regulatory text provided 

additional specificity concerning 

geographic applicability of the antibacksliding provisions. The draft text 

provided that with two exceptions only 

the portion of the designated area for the 

8-hour NAAQS that was required to 

adopt the applicable requirements in 

51.900(f) for purposes of the 1-hour 

NAAQS is subject to the obligations 

identified in paragraph (a) of this 

section with several exceptions. The 

first exception is an area that is 

designated nonattainment for the 8-hour 

NAAQS but that was nonattainment for 

the 1-hour NAAQS with an unmet 

obligation to submit an attainment 

demonstration; for these areas, the draft 

regulatory text provided that the entire 

area designated nonattainment for the 8-

hour ozone NAAQS would be subject to 

the 10 percent advance increment of 

reduction. The second exception is an 

area that is attainment for the 8-hour 

NAAQS but that was nonattainment 

under the 1-hour NAAQS with an 

unmet obligation to submit an 

attainment demonstration; for these 

areas, the 110(l) maintenance plan 

would have to demonstrate maintenance 

for the entire 8-hour ozone attainment 

area. 

b. Summary of final rule. The final 

rule incorporates most aspects of the 

approach as that contained in the 

proposal and in the draft regulatory text. 

The final rule provides that only the 

portion of the designated area for the 8-

hour NAAQS that was designated 

nonattainment for the 1-hour NAAQS is 

required to comply with the obligations 

in subparagraph 51.905(a), except if the 

State elects to provide an early 

increment of progress or an early 8-hour 

attainment demonstration in lieu of an 

outstanding 1-hour attainment 

demonstration (for an 8-hour NAAQS 

nonattainment area/1-hour NAAQS 

nonattainment area under 

51.905(a)(1)(ii)(B) and (C)), the 

increment of progress or early 8-hour 

attainment plan must apply for 

purposes of the entire 8-hour 

nonattainment area. 

The final rule does not follow the 

approach in the proposal for the 

maintenance plan requirement for 8-

hour attainment areas. The maintenance 

plans required under section 

51.905(a)(3)(iii) and (4)(ii) must 

demonstrate maintenance only for the 

area designated nonattainment for the 1-

hour NAAQS at the time of designation 

of the 8-hour NAAQS. We received 

comment that recommended this 

obligation apply only to the area that 

was originally designated 

nonattainment for the 1-hour NAAQS. 

After considering this comment and our 

discussion in the preamble to the 

proposed rule, we agree with the 

commenter. In many States, attainment 

areas are identified county by county 

rather than identifying a group of 

counties as an attainment area. Thus, a 

State may have one or more groups of 

counties listed as a nonattainment area 

and then the remaining counties in the 

State are each identified individually as 

‘‘attainment.’’ See e.g., 40 CFR 81.311 

(Georgia); 81.329 (Nevada). Because the 

area that historically had a problem 

attaining the ozone NAAQS is the area 

23984 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

that was previously designated 

nonattainment for the 1-hour NAAQS, 

we believe it makes the most sense to 

require the maintenance plan for the 

area previously designated 

nonattainment for the 1-hour NAAQS. 

We will set forth in 40 CFR Part 81, 

Subpart E, an identification of the 

boundaries of areas and the area 

designations and classifications for the 

1-hour NAAQS at the time of the 8-hour 

designations. 

c. Comments and responses.

Comments on June 2, 2003 Proposal:

With regard to limiting the applicability 

of 1-hour obligations to that portion of 

the 8-hour nonattainment area that was 

also part of the 1-hour nonattainment 

area, one commenter supports this 

policy, especially for the enhanced I/M 

program. The commenter believes that 

the environmental benefit of requiring 

an extension of the enhanced I/M 

program to areas recently added to the 

CMSA and designated nonattainment 

for the 8-hour NAAQS to be minimal, 

costly, and disruptive of the continued 

implementation of the enhanced I/M 

program in the current 1-hour 

nonattainment area. 

One commenter objected to requiring 

the substitute planning requirement (10 

percent advance increment of emission 

reductions) that applies to areas with an 

outstanding attainment demonstration 

for the entire 8-hour ozone 

nonattainment area. Instead, the 

commenter recommended it should 

only apply to the 1-hour nonattainment 

area. 

Response: The final rule provides for 

retaining applicable emission control 

requirements for an area’s 1-hour 

classification in only the original 1-hour 

nonattainment area. 

As noted in the final rulemaking 

notice, we are now allowing the State to 

meet its unmet 1-hour attainment 

demonstration obligation by submitting 

the outstanding attainment 

demonstration or by taking one of two 

early actions for 8-hour planning: 

achieve a 5 percent advance increment 

of emission reductions or submit an 

early 8-hour attainment demonstration. 

The advance increment of emission 

reductions is applied throughout the 

entire 8-hour nonattainment area 

because, although it is being submitted 

in lieu of the 1-hour requirement, it is 

intended to address the 8-hour 

nonattainment problem. Similarly, the 

8-hour attainment demonstration is 

intended to address attainment for the 

full 8-hour area. Because these 

alternatives to the 1-hour attainment 

demonstration are intended to address 

attainment and progress toward the 8-

hour NAAQS, the State would need to 

apply these requirements, if selected, to 

the entire 8-hour nonattainment area. 

We developed these alternatives in 

response to concerns that areas focus on 

the 8-hour NAAQS rather than on the 1-

hour NAAQS and that continued 

planning obligations for the 1-hour 

NAAQS would burden State resources. 

States still have the flexibility to choose 

to develop the 1-hour attainment 

demonstrations for the 1-hour area if 

they would like to restrict the unmet 

planning obligation to the old area.

5. What Obligations That Applied for 

the 1-Hour NAAQS Will No Longer 

Apply After Revocation of the 1-Hour 

NAAQS for an Area? (Section VI.C.3.d. 

of Proposal; See 68 FR 32824; Section 

51.905(e) of Proposed and Final Rules) 

a. Background. In the June 2, 2003 

proposed rule (68 FR 328224), we 

proposed that once the 1-hour NAAQS 

is revoked, EPA would no longer make 

findings of failure to attain that NAAQS 

and, therefore, we would not reclassify 

areas based upon a finding that the area 

failed to attain the 1-hour NAAQS. We 

indicated areas should focus their 

resources on attainment of the 8-hour 

NAAQS and stated that we believed it 

would be counterproductive to establish 

new obligations for States with respect 

to the 1-hour NAAQS after they have 

begun planning for the 8-hour NAAQS. 

In addition, we noted that the 

attainment dates for areas classified as 

marginal, moderate and serious had 

passed and that the CAA does not 

provide for reclassification of severe 

areas. We also noted other mechanisms 

that are available to make sure that 

States continue to make progress toward 

attaining the 8-hour NAAQS. 

In addition, we indicated that 

conformity requirements would no 

longer apply for the 1-hour NAAQS 

once the NAAQS is revoked. The June 

2, 2003 proposal explains that, under 

section 176(c) of the CAA, conformity 

applies to areas designated 

nonattainment or subject to the 

requirement to develop a maintenance 

plan pursuant to section 175A. Once the 

1-hour NAAQS is revoked, areas would 

no longer be designated nonattainment 

for the 1-hour NAAQS or subject to the 

obligation to develop a maintenance 

plan under section 175A for the 1-hour 

NAAQS and thus would no longer be 

subject to the obligation to demonstrate 

conformity (either transportation 

conformity or general conformity) for 

that NAAQS. 

The draft regulatory text incorporated 

these concepts and also provided that, 

at the time of revocation of the 1-hour 

NAAQS, any provisions of applicable 

SIPs that require conformity 

determinations in such areas for the 1-

hour NAAQS will no longer be 

enforceable as a matter of law pursuant 

to section 176(c)(5) of the CAA. 

Additionally, the draft regulatory text 

reflected the discussion in the preamble 

to the proposed rule regarding what 

portions of a 1-hour maintenance plan 

could be revised or removed once the 1-

hour NAAQS was revoked (68 FR 

32823). The draft regulatory text 

provided that areas with approved 1-

hour maintenance plans could modify 

those plans to remove the obligation to 

submit a maintenance plan for the 1-

hour NAAQS eight years after approval 

of the initial 1-hour maintenance plan 

and to remove the obligation to 

implement contingency measures upon 

a violation of the 1-hour NAAQS. The 

draft regulatory text provided, however, 

that these requirements would remain 

enforceable until EPA approved a SIP 

removing or revising them and also 

provided that EPA would not approve 

such revisions until EPA approves an 8-

hour attainment demonstration for an 

area designated nonattainment for the 8-

hour NAAQS or an 8-hour maintenance 

plan for an area designated attainment 

for the 8-hour NAAQS. Finally, EPA 

noted that such a SIP revision must also 

be consistent with sections 110(l) and 

193 of the CAA. 

b. Summary of final rule.

We are adopting the approach we set 

forth in our proposed rule and 

providing clarification regarding the 

penalty obligations under sections 

181(b)(4) and 185 of the CAA that apply 

in severe areas that do not attain the 1-

hour NAAQS by the applicable 

attainment date. The final rule provides 

that as of the effective date of revocation 

of the 1-hour NAAQS: 

• We will no longer make findings of 

failure to attain the 1-hour NAAQS and, 

therefore, (a) we will not reclassify areas 

to a higher classification for the 1-hour 

NAAQS based on such a finding, and (b) 

areas that were classified as severe for 

the 1-hour NAAQS are not obligated to 

impose fees as provided under sections 

181(b)(4) and 185 of the CAA. 

• Areas will not be obligated to 

continue to demonstrate conformity for 

the 1-hour NAAQS as of the effective 

date of the revocation of the 1-hour 

NAAQS. 

• An area with an approved 1-hour 

maintenance plan under section 175A of 

the CAA may modify its maintenance 

plan to: (1) Remove the planning 

obligation to develop the second 10-year 

maintenance plan for the 1-hour 

NAAQS; and, (2) replace the existing 1-

hour contingency measure trigger with 

an 8-hour value. However, before the 

EPA can consider approving such a 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23985

revision, certain conditions must be 

met. If the area is designated 

nonattainment for the 8-hour ozone 

NAAQS, it must first have an approved 

8-hour attainment demonstration in 

place. If the area has been designated as 

attainment for the 8-hour ozone 

NAAQS, it must first have an approved 

section 110(a)(1) maintenance plan in 

place for the 8-hour NAAQS. 

• NSR under the 1-hour NAAQS will 

no longer apply in areas that are 8-Hour 

NAAQS nonattainment/1-Hour NAAQS 

nonattainment. 

Each of these provisions is discussed 

further below. 

(i) Findings of Failure to Attain the 1-

hour NAAQS. We continue to believe, 

as stated in the preamble to the 

proposed rule, that areas should focus 

their resources on attainment of the 8-

hour NAAQS and that it would be 

counterproductive to establish new 

obligations for States with respect to the 

1-hour NAAQS after they have begun 

planning for the 8-hour NAAQS. 

Moreover, we do not believe there is a 

basis to determine whether an area has 

met the 1-hour NAAQS once that 

NAAQS no longer applies; once the 1-

hour NAAQS is revoked, there will not 

be an applicable attainment date with 

which to make a determination as to 

whether an area has met its attainment 

date or not. Since the obligations to 

reclassify areas and impose fees are 

based on a determination that an area 

has failed to meet the NAAQS by the 

appropriate attainment date, those 

obligations also would no longer apply 

for the 1-hour NAAQS once the 1-hour 

NAAQS has been revoked. 

While we did not specifically state in 

our proposal that severe areas would no 

longer be obligated to impose fees under 

sections 181(b)(4) and 185 based on a 

failure to attain the 1-hour NAAQS after 

the effective date of the revocation of 

the 1-hour NAAQS, it is a logical 

extension of our proposal as that 

obligation is triggered by a finding of 

failure to attain. In addition, this is 

consistent with Appendix B of the June 

2, 2003 proposal, which did not identify 

the section 185 fee provision as an 

applicable requirement. 

(ii) Conformity under the 1-hour 

NAAQS. Regarding conformity, we are 

adopting the approach we set forth in 

our proposed rule (68 FR 32823). The 

final rule provides that, upon revocation 

of the 1-hour NAAQS for an area, 

conformity determinations will no 

longer be required for the 1-hour 

NAAQS. At that time, any provisions of 

applicable SIPs that require conformity 

determinations for the 1-hour NAAQS 

in such areas will no longer be 

enforceable pursuant to section 

176(c)(5) of the CAA. 

Under section 176(c) of the CAA, 

conformity applies to areas designated 

nonattainment or subject to the 

requirement to develop a maintenance 

plan pursuant to section 175A for a 

specific NAAQS. Once the 1-hour 

NAAQS is revoked, areas designated 

attainment for the 8-hour NAAQS 

would no longer be subject to the 

obligation to demonstrate conformity for 

the 1-hour NAAQS and would have no 

conformity obligation for the 8-hour 

NAAQS. Likewise, even areas 

designated nonattainment for the 8-hour 

NAAQS would no longer have an 

obligation to demonstrate conformity 

under the 1-hour NAAQS. The reason 

for this is that these areas would no 

longer be designated nonattainment for 

the 1-hour NAAQS and would no longer 

be required to develop a maintenance 

plan under section 175A for purposes of 

the 1-hour NAAQS.

(iii) 1-hour maintenance plans.

Regarding the revisions to 1-hour 

maintenance plans, as noted above, 

upon revocation of the 1-hour NAAQS, 

an area with an approved 1-hour 

maintenance plan under section 175A of 

the CAA may modify the maintenance 

plan to remove both the obligation to 

submit a second maintenance plan for 

the 1-hour NAAQS 8 years after 

approval of the initial 1-hour 

maintenance plan and the obligation to 

implement contingency measures upon 

a violation of the 1-hour NAAQS. The 

maintenance plan requirements will 

remain enforceable as part of the 

approved SIP until such time as EPA 

approves a SIP revision removing such 

obligations. We will not approve a SIP 

revision requesting these modifications 

until the State submits and EPA 

approves an attainment demonstration 

for the 8-hour NAAQS for an area 

designated nonattainment for the 8-hour 

ozone NAAQS or a maintenance SIP for 

the 8-hour NAAQS for an area 

designated attainment for the 8-hour 

NAAQS. Any revision to such SIP must 

meet the requirements of section 110(l) 

and 193 of the CAA. 

(iv) New Source Review under the 1-

hour NAAQS. As noted above 

concerning anti-backsliding provisions 

related to growth measures, our June 2, 

2003 proposal indicated that 1-hour 

NSR requirements would continue to 

apply in a nonattainment area if that 

area’s classification under the 1-hour 

ozone standard (at the time of 

designation for the 8-hour standard) is 

higher than its classification under the 

8-hour standard (68 FR 32821). We 

indicated at proposal that Congress 

intended each area that was classified 

for the 1-hour ozone NAAQS under 

subpart 2 to adopt the specified control 

obligations in subpart 2 for the area’s 1-

hour classification. Accordingly, we 

proposed that the 1-hour NSR 

obligations continue to apply after 

revocation. 

We have now determined that it is 

inappropriate to mandate that a State 

continue to apply 1-hour nonattainment 

NSR requirements to such areas. 

Therefore, today’s final rule specifies 

that, at the time that the 1-hour NAAQS 

is revoked, a state is no longer required 

to retain a nonattainment NSR program 

in its SIP based on the requirements that 

applied by virtue of the area’s previous 

classification under the 1-hour standard. 

Instead, State implementation plans will 

be required to include an NSR program 

based on the area’s designation and 

classification under the 8-hour standard. 

Accordingly, a State may request 

approval of a SIP revision to remove its 

1-hour nonattainment NSR program 

from its SIP. We will approve such 

changes to a State’s SIP because we have 

determined based on section 110(l) of 

the Act that such changes will not 

interfere with any State’s ability to reach 

attainment of the 8-hour standard and 

will be consistent with reasonable 

further progress. 

For example, upon approval of a SIP 

revision for a nonattainment area that 

we classify as marginal for the 8-hour 

standard, the major source threshold 

would be 100 tpy and the offset ratio 

would be at least 1.1:1. Any lower major 

stationary source threshold and higher 

offset ratio that applied by virtue of the 

area’s previous 1-hour classification 

would no longer apply. For areas that 

must comply with nonattainment NSR 

requirements solely based on the area’s 

location within the Ozone Transport 

Region under Section 184 of the Act, 

there will be no change in the major 

stationary source threshold or offset 

ratio as these requirements remain the 

same for the 8-hour standard. 

Although the proposal identified 

nonattainment NSR as a measure to 

address growth and not a control 

obligation, we proposed to treat NSR in 

the same manner as control obligations. 

We stated that such requirements 

should continue to apply based on 

Congressional intent to prohibit States 

from altering or removing provisions 

from SIPs if the SIP revision would 

jeopardize the air quality protection 

provided in the approved plan. 68 FR at 

32819. We further concluded that 

Congress intended the specified control 

obligations in subpart 2 to continue to 

apply after revocation by virtue of the 1-

hour classifications. 

23986 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

42Part D New Source Review (part D NSR) 

Requirements for Areas Requesting Redesignation 

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

Nichols.

Upon further reflection, and 

consideration of public comments, we 

have revised our approach concerning 

NSR in areas that were non-attainment 

for the 1-hour NAAQS and continue to 

be nonattainment under the 8-hour 

NAAQS. While some commenters 

believed that NSR requirements that are 

part of SIPs submitted to meet 1-hour 

NAAQS requirements should be 

retained, several preferred that the 1-

hour NSR program be replaced by an 

NSR program under the 8-hour standard 

when the 1-hour standard is revoked. 

Other commenters supported removing 

the 1-hour NSR requirements based on 

a showing that removing the 

requirements would not interfere with 

attainment or maintenance of the 8-hour 

standard. We agree with these 

commenters that there is no need to 

retain 1-hour NSR programs upon a 

finding under section 110(l) that 8-hour 

NSR will not interfere with the State’s 

ability to reach attainment of the 8-hour 

standard. Moreover, we note major NSR 

only applies to new sources and to 

existing sources that have a physical 

change or change in the method of 

operation. Therefore, emission 

limitations and other requirements in 

NSR permits issued under 1-hour NSR 

programs will continue to be in force 

when the 1-hour NAAQS is revoked. 

Also, our revised approach is more 

consistent with our longstanding 

treatment of NSR as a growth measure. 

We have historically treated control 

measures differently from measures to 

control growth. We provided no 

rationale in our proposal for treating 

control measures and growth measures 

in the same manner for purposes of the 

8-hour standard, in contrast with our 

historical approach. 

Unlike control requirements such as 

RACT and I/M, the NSR program is a 

growth measure and is not specifically 

designed to produce emissions 

reductions. Instead, its purpose is to 

allow new source growth to occur 

without interfering with an area’s ability 

to attain. The statute and regulatory 

history identify nonattainment NSR as a 

growth measure. Thus, we have 

previously concluded that NSR is not a 

‘‘control’’ measure in the context of 

Section 175A maintenance plans. See 68 

FR 25418, 25436 (May 12, 2003). 

Specifically, we explained that the 

requirement that contingency provisions 

include ‘‘control’’ measures does not 

include nonattainment NSR. We 

reasoned that the LAER and offset 

requirements included in existing NSR 

permits would remain in effect for those 

sources. Thus, the LAER and offset 

measures that were relied upon to attain 

the NAAQS would remain in effect after 

the nonattainment NSR program was 

replaced. We also noted that another 

preconstruction review program (in that 

context, PSD) would be triggered to 

limit growth consistent with attainment 

in the future. Those considerations 

apply with equal force here, as 

discussed in more detail below. 

The role of the NSR permitting 

program as a growth measure, rather 

than a control measure, is evident in the 

structure of the Act, which delineates 

nonattainment NSR and control 

measures as separate SIP requirements. 

In the general requirements for 

nonattainment plan provisions, NSR 

permits are listed in CAA 172(c)(5), 

while control measures are listed in 

CAA 172(c)(6). Similarly, in defining 

implementation plan requirements, 

CAA 110(a)(2)(C) sets forth the 

requirement for permit programs and 

CAA 110(a)(2)(A) the control measures. 

As we explained in our 1994 policy 

memo,42 if the term ‘‘measures,’’ as used 

in sections 110(a)(2)(A) and 110(a)(2)(C), 

had been intended to include PSD and 

part D NSR, there would have been no 

point to requiring that SIPs include both 

measures and preconstruction review. 

Section 172(e), which applies when 

EPA relaxes a NAAQS, only requires 

EPA to ensure that ‘‘controls’’ are no 

less stringent than they were for the 

more stringent NAAQS that has been 

replaced. It contains no specific 

requirements concerning growth 

measures.

Moreover, the statute is clear 

regarding the roles of the NSR program 

and control measures in nonattainment 

areas. CAA 172(a)(2) requires attainment 

as expeditiously as practicable 

considering control measures and CAA 

172(c)(1) and (c)(6) require 

implementation of all control measures 

as expeditiously as practical to provide 

for attainment of the NAAQS by the 

area’s attainment date. Conversely, CAA 

173(a)(1)(A) requires only that growth 

due to proposed sources, when 

considered together with the other plan 

provisions required under section 172, 

be sufficient to ensure RFP. Thus, 

unlike the control measures required by 

section 172(c)(1) and (c)(6), NSR is not 

a measure in and of itself to assure 

attainment of the NAAQS. Rather, NSR 

should be considered in conjunction 

with a State’s control measures to 

assure, consistent with the requirements 

in Section 172(c)(4), that the emissions 

from new sources will be consistent 

with RFP and not interfere with 

attainment of the applicable NAAQS.

In light of these different statutory 

goals, we believe the appropriate review 

of NSR SIP revisions under the 8-hour 

standard is whether: (1) The SIP 

revision is consistent with reasonable 

further progress; and whether (2) the SIP 

revision will not interfere with the 

ability to attain. 

With regard to the specific 

requirements of 110(l), we do not 

believe that States need to make any 

case-specific demonstration that 

replacing the 1-hour NSR program with 

an NSR program based on the area’s 8-

hour classification satisfies the Section 

110(l) requirements. As one commenter 

noted, NSR is a prospective permitting 

program that only applies to future 

emissions from new and modified 

sources. Any source that is subject to 

the 1-hour NSR requirements is required 

to continue to comply with those 

requirements. In this respect, there will 

be no degradation of air quality by 

virtue of this SIP change. Moreover, 

unlike control measures, States do not 

rely on the NSR program to generate 

emissions reductions to move an area 

further toward attainment. The essential 

question is whether the NSR program 

changes will hinder future air quality 

improvements based on future growth 

projections. Such a question inherently 

involves a look at the present day air 

quality, which is best reflected by the 

current 8-hour classifications. As long 

as the State plans to manage growth 

within the emissions inventory and 

include growth in their attainment 

plans, new source growth will be 

consistent with RFP and not interfere 

with the State’s ability to attain. 

Therefore, we believe that the 8-hour 

NSR program requirements, based on an 

area’s present air quality needs, will 

assure that progress continues toward 

attainment despite future economic 

growth. 

c. Comments and responses.

(i) Comments on June 2, 2003 

proposal:

Comment: Several commenters 

addressed this issue. Most agreed with 

the proposal, but recommended that we 

clarify that the section 185 penalty fees 

would not be imposed after the 1-hour 

NAAQS is revoked. A few of the 

commenters disagreed on the basis that 

EPA should not revoke the 1-hour 

NAAQS and that all requirements that 

apply for purposes of the 1-hour 

NAAQS remain applicable. 

Regarding conformity, the majority of 

commenters that addressed this issue 

objected to EPA’s proposal. Most of 

these commenters believed the 1-hour 

NAAQS and any 1-hour SIP budgets 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23987

should remain in effect, such that for an 

area that was designated nonattainment 

under the 1-hour NAAQS, or was 

redesignated to attainment and had an 

approved maintenance plan under the 

1-hour NAAQS, conformity 

requirements would still apply. Given 

the variety of comments we received 

about how conformity will be 

implemented, in this section we provide 

a response following each type of 

comment. 

Several commenters indicated that 

revoking the 1-hour NAAQS for 

conformity is backsliding, and offered 

several arguments for why the 1-hour 

budgets should be retained in 1-hour 

nonattainment and maintenance areas. 

Some commenters indicated that once 

approved, the motor vehicle emissions 

budget is part of the applicable 

implementation plan, and EPA may not 

render them nugatory for conformity 

purposes. Commenters also asserted that 

EPA may not unilaterally revise a state’s 

SIP or suspend it, and in order to 

require states to revoke the budgets in 

their SIPs, EPA would have to find the 

budgets inadequate. Further, 

commenters argued that EPA may not 

lawfully allow states to discontinue 

implementation of the budgets in their 

current SIPs, and if states were to decide 

on their own that budgets no longer 

apply for conformity purposes, 

commenters said that EPA would be 

obligated to impose sanctions pursuant 

to section 179(a)(3). Commenters 

asserted that states may not revise their 

SIPs to remove budgets without 

complying with section 110(l), which 

states that EPA cannot approve 

revisions ‘‘if the revision would 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress (as defined 

in section 171), or any other applicable 

requirement of this Act.’’

Response: The CAA specifically states 

that conformity applies only in ‘‘a 

nonattainment area* * *’’ and ‘‘an area 

that was designated as a nonattainment 

area but that was later redesignated by 

the Administrator as an attainment area 

and that is required to develop a 

maintenance plan under section 7505a 

of this title* * *’’ (42 U.S.C. 7506(5)). 

Therefore, CAA section 176(c)(5) 

restricts conformity to nonattainment 

areas and areas that are required to 

submit maintenance plans under section 

175A; in these areas, the Federal 

government’s sovereign immunity is 

waived so that states can require 

conformity to be determined by the U.S. 

Department of Transportation. However, 

after revocation of the 1-hour NAAQS, 

the areas previously nonattainment for 

the 1-hour NAAQS are no longer 

nonattainment for that NAAQS. 

Similarly, after revocation of the 1-hour 

NAAQS, the areas previously required 

to submit section 175A maintenance 

plans under the statute for the 1-hour 

NAAQS will no longer be required to do 

so. Therefore, after revocation the 

statute will no longer waive sovereign 

immunity to allow States to require the 

U.S. Department of Transportation to 

perform conformity determinations.

States are not taking any action to 

remove the budgets for the 1-hour ozone 

NAAQS in their SIPs, nor are they 

required to do so. In fact, EPA has 

proposed that 8-hour nonattainment 

areas would be able to use the 1-hour 

budgets for conformity for the 8-hour 

NAAQS, if they exist in an area 

(November 5, 2003, proposed rule, 68 

FR 62690). Thus, although the 1-hour 

budgets would remain in the SIP, areas 

previously designated nonattainment or 

maintenance for the 1-hour NAAQS 

would no longer be required or even 

authorized to show conformity under 

CAA section 176(c)(5) for that NAAQS. 

Similarly, EPA would have no grounds 

for imposing sanctions where 

conformity is not conducted in these 

areas because there would be no SIP 

planning or implementation failure, 

since any SIP provisions requiring 

conformity would become 

unenforceable under section 176(c)(5) 

after revocation. EPA also disagrees that 

States cannot revise their SIPs to remove 

budgets without a demonstration that 

110(l) is met, because states will not be 

revising their SIPs to remove budgets. 

As we acknowledged in our June 2, 

2003, proposal, EPA’s conclusion that 

conformity cannot apply in 1-hour 

maintenance areas once the 1-hour 

NAAQS is revoked differs from the 

approach we planned to take in 1997. In 

1997, we interpreted revoking the 1-

hour ozone NAAQS to mean that 

conformity would not apply for the 1-

hour ozone NAAQS in areas that were 

nonattainment for the 1-hour ozone 

NAAQS, but that conformity would 

continue to apply for the 1-hour ozone 

NAAQS in areas with a maintenance 

plan. However, the 1997 interpretation 

would lead to an unfair and counterintuitive result: areas that had attained 

the NAAQS and had made the effort to 

establish a maintenance plan would 

have to continue a required program, 

but areas that had not attained would 

not. We reconsidered this result and 

found it to be unfair and inappropriate. 

Further, upon reanalyzing CAA section 

176(c)(5), we concluded that this 

interpretation did not fit with the text of 

the statute. 

Although section 110(l) would 

normally require areas to demonstrate 

that removing prior SIP requirements 

would not interfere with any applicable 

requirements of the CAA, where the 

CAA itself now forbids application of a 

prior requirement such a demonstration 

would be unnecessary. Further, it would 

interfere with the statutory limitation on 

the applicability of conformity to 

require conformity determinations in 

areas that are no longer required by the 

CAA to submit section 175A 

maintenance plans. 

Comment: Commenters remarked that 

revoking the 1-hour ozone NAAQS is of 

particular concern in areas that are 

currently nonattainment or maintenance 

for the 1-hour ozone NAAQS that will 

be designated attainment for the 8-hour 

ozone NAAQS, because once the 

NAAQS is revoked, these areas will no 

longer be subject to conformity. A 

couple of commenters made the point 

that revoking the 1-hour NAAQS would 

have economic implications for their 

area because without transportation 

conformity, the emissions from the 

transportation sector could grow 

without restraint and therefore, 

emissions from the industrial sector 

would have to be limited further. 

Commenters were also concerned that 

their region would lose the ability to 

forecast whether a violation could 

occur. 

Response: We promulgated the 8-hour 

ozone NAAQS in response to the latest 

data and science regarding ozone; we 

believe the 8-hour ozone NAAQS is 

more protective of public health. In 

1997, EPA made the decision to replace 

the 1-hour ozone NAAQS with the 8-

hour ozone NAAQS, because EPA 

concluded that the 1-hour NAAQS is 

not needed to protect health and 

welfare. 

It is our conclusion that areas that are 

in attainment for the 8-hour NAAQS 

would not be subject to conformity 

because the statute explicitly limits the 

applicability of conformity to 

designated nonattainment and 

maintenance areas. These areas still 

have an incentive to monitor the growth 

of emissions from the transportation 

sector; if these areas violate the 8-hour 

NAAQS, EPA could redesignate them as 

nonattainment for the 8-hour NAAQS 

and conformity would then apply. 

The EPA notes that although States 

could not implement conformity for 

attainment areas as a matter of federal 

law, they could still work with their 

MPOs to estimate regional emissions 

that would be generated by the planned 

transportation system to see whether a 

violation could occur and to address 

motor vehicle emissions growth. These 

type of State activities may be done 

23988 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

43When EPA promulgated the NOX SIP Call, we 

required the same level of reductions for both the 

1-hour and 8-hour ozone NAAQS (63 FR 57356, 

October 27, 1998). In response to the Court of 

Appeals remand of the 8-hour NAAQS, EPA stayed 

the 8-hour basis of the NOX SIP Call (65 FR 2674, 

January 18, 2000). However, since the same level of 

reductions was required for both the 8-hour and 1-

hour NAAQS, the stay had no practical effect on 

States’ compliance with the rule. Because EPA also 

stayed the 8-hour portion of the Section 126 Rule, 

we did not move forward to make the section 126 

findings under the 8-hour NAAQS which would 

trigger the 8-hour control requirements (65 FR 2674, 

January 18, 2000). We plan to complete rulemaking 

action on the 8-hour petitions at the time we lift the 

8-hour stay. All of the States affected by the 1-hour 

under State law, when possible, or on a 

voluntary basis. 

Comment: One commenter supports, 

in part, our proposal to allow 

amendment of maintenance plans, but 

takes issue with the fact that States 

would face a continuing obligation to 

implement contingency measures after 

revocation of the 1-hour NAAQS and 

the criteria for approval of such 

amendments. After the 1-hour NAAQS 

is revoked, a State’s obligation to 

implement contingency measures 

should automatically be lifted. The 

Illinois EPA recommends that 

amendments to the maintenance plans 

for these areas be approved after the 1-

hour NAAQS has been revoked. 

Response: Once we revoke the 1-hour 

NAAQS, the requirement for submission 

or subsequent revision of a section 175A 

maintenance plan under the 1-hour 

NAAQS no longer apply. The State still 

has an obligation to ensure that air 

quality remains clean and to invoke 

contingency measures in accordance 

with the terms of the approved SIP. The 

final rule provides that, upon revocation 

of the 1-hour NAAQS, an area with an 

approved 1-hour maintenance plan 

under section 175A of the CAA may 

modify the maintenance plan to remove 

the obligation to submit a maintenance 

plan for the 1-hour NAAQS 8 years after 

approval of the initial 1-hour 

maintenance plan and to remove the 

obligation to implement contingency 

measures upon a violation of the 1-hour 

NAAQS. The final rule provides that 

EPA would not approve a SIP revision 

requesting these modifications until the 

State submits and EPA approves an 

attainment demonstration for the 8-hour 

NAAQS for an area initially designated 

nonattainment for the 8-hour ozone 

NAAQS or a maintenance SIP for the 8-

hour NAAQS for an area initially 

designated attainment for the 8-hour 

NAAQS. Any revision to such SIP must 

meet the requirements of section 110(l) 

and 193 of the CAA. For areas that are 

not required to submit attainment 

demonstrations (e.g., marginal areas), 

the SIP revisions that affect prior 

maintenance plans under the 1-hour 

NAAQS may be made when other 

portions of the 8-hour SIP are due (e.g,

the NSR provisions). The EPA disagrees 

with the comments that certain 

obligations in the maintenance plan 

should no longer apply upon revocation 

of the 1-hour NAAQS. The EPA believes 

that in order to ensure that these 

revisions will not interfere with 

attainment or maintenance of the 8-hour 

NAAQS, these areas should first have an 

approved 8-hour attainment or 

maintenance SIP in place. 

Comment: A commenter 

recommended that, in general, the rule 

should make it clear that any SIP 

revisions must comply with Sections 

110(l) and 193. 

Response: The proposed rule—as well 

as the final rule—provides that EPA will 

not approve revisions to the 

maintenance plan until EPA approves 

the area’s 8-hour SIP for either 

attainment or maintenance, which will 

ensure non-interference with the 8-hour 

NAAQS. However, the final rule also 

includes a requirement that the changes 

must be in accordance with sections 

110(l) and 193. Several commenters 

supported the proposed rule. Other 

commenters believed the 1-hour 

NAAQS should not be revoked at all, 

and therefore there would not be a need 

for the anti-backsliding provision 

regarding NSR. 

Response: We address the issue of the 

revocation of the 1-hour NAAQS 

elsewhere in this notice and do not 

repeat it here. 

(ii) Comments on draft regulatory text

(sect. 51.905(e) of the draft):

Comment: One commenter believes 

that proposed 40 CFR 51.905(e)(1) 

contains an apparent misstatement that 

EPA should correct. That provision 

states that upon revocation of the 1-hour 

NAAQS, an area with an approved 

maintenance plan for that NAAQS may 

modify that plan to remove the 

obligation under CAA § 175A(b) to 

submit a ‘‘second round’’ maintenance 

plan eight years after redesignation to 

attainment and to remove the obligation 

to implement contingency measures 

upon a 1-hour NAAQS violation. The 

provision goes on to say that EPA will 

not approve a SIP revision making these 

modifications until the state submits 

and EPA approves: (1) An 8-hour 

attainment demonstration, if the area is 

designated nonattainment for the 8-hour 

NAAQS; or (2) an 8-hour maintenance 

SIP under proposed 40 CFR 

51.905(a)(3)(iii), if the area is designated 

attainment for the 8-hour NAAQS. 

Option (2) does not make sense, 

however. Proposed 40 CFR 51.905(e) by 

its terms applies to areas with approved 

1-hour maintenance plans. Thus, these 

areas by definition have been 

redesignated to attainment—i.e., are no 

longer nonattainment—for the 1-hour 

NAAQS. Yet proposed 40 CFR 

51.905(a)(3)(iii) applies only to areas 

that are ‘‘designated nonattainment for 

the 1-hour NAAQS at the time of 

revocation of the 1-hour NAAQS.’’

Thus, contrary to the last clause of 

§ 51.905(e)(l), areas that are 

maintenance for the 1-hour NAAQS and 

attainment for the 8-hour NAAQS 

cannot be subject to § 51.905(a)(3)(iii). 

Response: The commenter has 

pointed out a flaw in the proposal. The 

final rule has been modified from the 

proposal to account for this situation. A 

separate parallel provision has been 

established in section 51.905(a)(4) 

requiring 1-hour maintenance plan areas 

to submit a maintenance plan under 

section 110(a)(1). As provided earlier, 

EPA has also changed the proposed 

regulatory text—consistent with the 

June proposal—to indicate that 

51.905(a)(3) and (4) apply, respectively 

to areas that are nonattainment or 

maintenance of the 1-hour NAAQS at 

the time of designation for the 8-hour 

NAAQS. Section 51.905(e)(1) has been 

modified to provide that the State 

would not be able to modify an existing 

1-hour maintenance plan until EPA 

approves the new 8-hour maintenance 

plan. 

Comment: One commenter provided 

suggested language changes to section 

51.905(e) that would retain the section 

175A maintenance plan and the 

conformity requirement. 

Response: As noted above, once EPA 

revokes the 1-hour NAAQS, and the 

area is an 8-hour attainment area, 

section 175A maintenance provisions 

do not apply and conformity for the 1-

hour NAAQS no longer applies. 

6. What Is the Continued Applicability 

of the NOX SIP Call After Revocation of 

the 1-Hour NAAQS? (Section VI.C.3.c. 

of Proposal; See 68 FR 32824; Section 

51.905(f) of the Proposed and Final 

Rules) 

a. Background. In the June 2, 2003 

proposal (68 FR 32824), we noted that 

it is important to ensure that the 

transition to the 8-hour NAAQS does 

not jeopardize the controls required to 

be in place under the NOX SIP Call rule 

and the section 126 rule (i.e., the rules 

for addressing the long-range transport 

of ozone and its precursor, NOX). We 

jointly referred to these rules in the 

proposal as the NOX transport rules. We 

indicated that we plan to lift the stay of 

the 8-hour basis for the NOX transport 

rules.43 Regardless of whether we lift 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23989

and/or 8-hour Section 126 Rule are also covered by 

the NOX SIP Call. The Section 126 Rule contains 

a provision under which the Section 126 findings 

and control requirements would be withdrawn if 

States have approved SIPs meeting the NOX SIP 

Call. The EPA has already withdrawn the 1-hour 

Section 126 Rule in three States and the District of 

Columbia and proposed to withdraw the 1-hour 

rule in all other affected States except one. (We 

expect to propose action with respect to the rule in 

the remaining State shortly.)

44As discussed in the section regarding the two 

1-year attainment date extensions, section 

172(a)(2)(C), which applies to all pollutants, allows 

for a 1-year attainment date extension if the area has 

had ‘‘minimal exceedances’’ in the attainment year 

and section 181(a)(5), which applies to ozone 

nonattainment areas classified under subpart 2, 

allows for a 1-year extension if the area has had no 

more than 1 exceedance in the attainment year.

that stay, the controls required have 

substantial benefits for reductions of 

both 1-hour and 8-hour ozone levels. 

We indicated that we believe that 

relaxing such controls would be 

contrary to the principles we identified 

in the proposal for an effective 

transition. Thus, we proposed that 

States must continue to adhere to the 

emission budgets established by the 

NOX transport rules after the 1-hour 

NAAQS is revoked in whole or in part.

The draft regulatory text reflected the 

discussion in the June proposal. 

b. Summary of final rule. We are 

adopting the approach we set forth in 

our proposed rule and draft regulatory 

text. States must continue to adhere to 

the emission budgets established by the 

NOX transport rules after the 1-hour 

NAAQS is revoked. States retain the 

authority to revise control obligations 

they have established for specific 

sources or source categories under the 

NOX SIP Call rule so long as the State 

demonstrates consistent with section 

110(l) that such modification will not 

interfere with attainment of or progress 

toward meeting the 8-hour NAAQS or 

any other applicable requirement of the 

CAA. We continue to believe that the 

reductions required by the NOX

transport rules are necessary to address 

transported emissions for the 8-hour 

ozone NAAQS as well as the 1-hour 

ozone NAAQS. 

c. Comments and responses.

(i) Comments on the June 2, 2003 

proposal:

Only a handful of commenters 

addressed this issue, all of whom 

supported the proposal. Several of these 

commenters recommended that we lift 

the stay of the NOX transport rules with 

respect to the 8-hour NAAQS.

D. What Is the Required Timeframe for 

Obtaining Emissions Reductions To 

Ensure Attainment by the Attainment 

Date (Section VI.E of the Proposed Rule 

(68 FR 32826); Section 51.908 of the 

Draft and Final Rules) 

1. Background 

In the June 2003 proposal, we 

proposed that emissions reductions 

needed for attainment must be 

implemented by an area’s attainment 

date. We noted this meant that 

emissions reductions must be 

implemented by the beginning of the 

final ozone season prior to the 

attainment date. For example, for areas 

with an attainment date in May 2010, 

the emissions reductions need to be 

implemented by the beginning of the 

2009 ozone season because a 

determination of attainment will be 

based on air quality monitoring data 

from 2007, 2008 and 2009. The proposal 

cautioned that States should be aware of 

the consequences of failing to 

implement the control measures 

necessary for attainment sufficiently far 

in advance of their attainment date. As 

noted above, areas covered under 

subpart 2 can receive up to two 1-year 

attainment date extensions if certain 

criteria are met. However, if an area 

does not meet the eligibility 

requirements for the 1-year extension, it 

would be subject to a reclassification to 

a higher classification (bump up). While 

areas covered under subpart 1 are able 

to obtain up to two 1-year attainment 

date extensions, there is no provision 

for a bump up in subpart 1. If an area 

covered under subpart 1 fails to attain, 

section 179 of the CAA provides that 

EPA publish a finding of failure to attain 

which starts a 1-year time frame for 

States to submit a SIP revision that 

provides for attainment within a 

specified time frame. 

2. Summary of Final Rule 

In section 51.908, we are adopting the 

approach we set forth in our proposed 

rule, namely that emissions reductions 

needed for attainment must be 

implemented by the beginning of the 

ozone season immediately preceding the 

area’s attainment date. We believe that 

Congress contemplated that control 

measures would continue to be 

implemented up to the attainment year. 

For example, section 182(c)(2)(B) 

requires areas classified as serious or 

higher to achieve an average of 3 

percent reduction in emissions per year 

over each 3-year period until the area’s 

attainment date. If Congress intended 

areas to achieve all reductions needed 

for attainment 3 years prior to 

attainment, then the last 9 percent 

reductions required for serious and 

above areas would be reductions beyond 

those needed for attainment. We do not 

believe that Congress mandated these 

reductions in addition to the reductions 

needed to attain the NAAQS. In fact, 

this requirement is included in the 

statute as a part of the subparagraph 

addressing attainment and reasonable 

further progress, which indicates that 

Congress intended it to address progress 

toward attainment. This is further 

supported by the definition of 

reasonable further progress in section 

171(1) as ‘‘annual incremental 

reductions in emissions * * * for the 

purpose of ensuring attainment * * *.’’

Other provisions in the CAA also 

support the concept that areas do not 

need to achieve 3 years in advance of 

the attainment date the full complement 

of reductions needed for attainment. For 

example, Congress only provided 

marginal areas with 3 years to attain the 

NAAQS and did require at least 

minimal additional controls be 

implemented in such areas. In addition, 

the fact that Congress provided for two 

1-year extensions of the attainment date 

also indicated that Congress believed 

that some areas might not be fully 

implementing all measures needed for 

attainment 3 years in advance of the 

attainment date. Rather, Congress 

contemplated that areas would have air 

quality healthy enough to make it 

substantially likely the area would 

attain within the next 1 or 2 years.44

Finally, we note that the NAAQS 

itself does not contemplate that air 

quality must be at ‘‘attainment levels’’

for each of the 3 years on which 

attainment is based. Rather, attainment 

is determined based on an average of the 

4th high reading at a monitor over a 3 

year period. Thus, the 4th high reading 

for an area could be above the NAAQS 

for one or both of the years preceding 

the attainment year, but so long as the 

4th high level for the other year(s) was 

low enough to produce an average at or 

below 0.084 ppm, the area would be 

attaining the NAAQS. 

As noted in the June 2003 preamble, 

despite the fact that we believe an area 

need not have all controls implemented 

until the beginning of the final 

attainment season, the State needs to 

consider that attainment is based on a 

3-year average. Thus, the State will need 

to ensure that implementation of 

controls is not unduly delayed. A State 

that plans to achieve reductions by the 

beginning of the ozone season prior to 

the attainment date may still experience 

meteorology conducive to very high 

ozone formation in that last ozone 

season that may result in the area 

having a 4th highest daily ozone 

concentration above the level of the 8-

hour NAAQS, making it ineligible for 

the first of the 1-year extensions. Such 

an area—if classified under subpart 2—

23990 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

45Memorandum, ‘‘Guidance on the Reasonably 

Available Control Measures (RACM) Requirement 

and Attainment Demonstration Submissions for 

Ozone Nonattainment Areas.’’ John S. Seitz, 

Director, Office of Air Quality Planning and 

Standards. November 30, 1999. Web site: http://

www.epa.gov/ttn/oarpg/t1pgm.html.

would then be reclassified (bumped up) 

to a higher classification and be subject 

to additional planning requirements and 

mandatory control measures. Thus, a 

State should be aware of the 

consequences of delaying too long to 

implement control measures needed for 

attainment. Additionally, in reviewing 

implementation timeframes in SIPs, 

EPA will consider whether those 

timeframes are as expeditious as 

practicable. A guidance memorandum 

from John Seitz of November 30, 1999 45

reiterates the need to implement 

measures as expeditiously as 

practicable:

In order for EPA to determine whether an 

area has provided for implementation as 

expeditiously as practicable, the State must 

explain why the selected implementation 

schedule is the earliest schedule based on the 

specific circumstances of that area. Such 

claims cannot be general claims that more 

time is needed but rather should be 

specifically grounded in evidence of 

economic or technologic infeasibility. While 

it may be appropriate for some control 

measures to be implemented shortly after 

adoption, the EPA recognizes that other 

measures may need a longer period. The EPA 

will review the State’s submission to ensure 

that sufficient information is provided for the 

EPA to determine whether the State has 

adopted all RACM necessary for attainment 

as expeditiously as practicable and provided 

for implementation of those measures as 

expeditiously as practicable. The EPA will 

make those determinations based on the 

information provided by the State and any 

other information available to the EPA at the 

time the Agency approves or disapproves the 

attainment demonstration.

3. Comments and Responses 

Comment: Some commenters agreed 

with our proposal as written, i.e., to 

require that emission reductions needed 

for attainment be implemented by the 

beginning of the ozone season prior to 

the attainment year. 

However, several commenters 

disagreed with the timeframe that was 

included in our proposal because it 

precludes areas from realizing the 

benefit of Federal measures prior to 

developing additional local controls. 

Another commenter stated that the 

attainment deadlines place an 

extraordinary burden on metropolitan 

areas to achieve the level of emissions 

reductions necessary to demonstrate 

attainment. The commenter felt that 

requiring emissions reductions to be 

implemented at the beginning of the 

ozone season prior to the attainment 

date is 1 year earlier than is required. 

The commenter stated that so long as 

there are no exceedances in the 

attainment year, i.e., having controls in 

place by the beginning of the ozone 

season of the attainment year, the area 

has met the statutory requirement and 

could qualify for the first of two 1-year 

attainment date extensions allowed 

under the CAA. The commenter further 

stated that controls for moderate areas 

would need to be in place by about the 

same time the area’s SIP must be 

submitted to EPA in order to provide 3 

years of clean data for the 

demonstration of attainment.

Other commenters stated that all 

emissions reductions needed for 

attainment must be implemented in 

sufficient time to ensure attainment by 

the attainment date without relying on 

the CAA provisions for the 1-year 

extensions. 

Response: Section 172(c)(2) of the 

CAA requires that emissions reductions 

needed for attainment be phased in such 

that RFP toward attainment is achieved. 

For areas classified as moderate under 

subpart 2, their attainment date would 

be as expeditiously as practicable but no 

later than 6 years after the date of 

classification. Their ROP requirement 

would be at least a 15 percent VOC 

emissions reduction from the base year 

to be achieved no later than 6 years after 

the base year. However, if the area 

needed more than 15 percent VOC 

reductions in order to demonstrate 

attainment, then any additional 

reductions would also have to be 

achieved by the beginning of the ozone 

season prior to the area’s attainment 

date. 

The CAA requires each area to 

demonstrate attainment as expeditiously 

as practicable but no later than the 

maximum timeframe specified in the 

CAA for the area. In addition, each area 

is required to adopt RACM. In 

determining whether measures are 

reasonably available, we consider cost, 

technical feasibility and whether 

implementation will advance the 

attainment date. An area cannot reject 

local control measures that are 

technically and economically feasible in 

favor of awaiting the implementation of 

national or regional controls, if to do so 

would delay attainment of the NAAQS. 

The consequences of failing to 

implement the control measures 

necessary for attainment sufficiently far 

in advance of the attainment date are 

discussed above and in the proposed 

rule. 

Areas covered under subpart 1 are 

also able to obtain up to two 1-year 

extensions of the attainment date (see 

section 172(a)(2)(C)). There is no 

provision for bump-up in classification 

similar to that under subpart 2. 

However, if an area fails to attain, 

section 179 of the CAA provides that 

EPA publish a finding that the area 

failed to attain. The State then must 

submit within 1 year after that 

publication a revision to the SIP that 

provides for attainment within the time 

provided under section 179. Section 179 

also provides that the SIP revision must 

also include any additional measures 

that EPA may prescribe. 

Comment: Several commenters 

suggested that nonattainment areas 

should be afforded the opportunity to 

install controls in time to monitor for 

attainment before the attainment 

deadline. The commenters believes that 

for many industrialized and 

metropolitan areas classified under 

Subpart 2 as marginal, moderate or 

serious, it will not be feasible to have 

stationary and mobile source controls in 

place 3 years before the attainment 

deadlines for the purposes of attainment 

monitoring. Pragmatically, state SIPS 

will not be finalized until mid-2007, at 

which time industrial facilities can 

begin the 18–24 month period for 

detailed engineering, permitting and 

procurement of NOX control equipment. 

The installation of controls would occur 

over a 5-year average facility turnaround 

period. Furthermore, Tier II fuels and 

engines will just be entering the market 

as will cleaner diesel fuel and engines. 

It is virtually certain that many of these 

areas will not have the necessary 

emission reductions in place 3 years 

before the attainment deadline and will 

be required to rely on the case-by-case 

extensions to the designated attainment 

deadlines. The commenters believe that 

Congress did not intend for EPA to 

establish attainment deadlines that 

would in a large number of cases 

automatically require areas to use 

deadline extensions; such areas have 

probably been misclassified. All 

nonattainment areas should be afforded 

the opportunity to install controls in 

time to monitor for attainment by the 

attainment deadline, but not three years 

prior to the attainment year. This would 

also eliminate the need for case-by-case 

extensions. 

Response: The final rule does not 

require emission reductions to be in 

place three ozone seasons prior to the 

attainment date. However, the after-thefact determination of whether an area 

actually attains the NAAQS by its 

attainment date must be done by 

looking back at the previous 3 years of 

ambient air quality data. As noted 

elsewhere in this preamble, the CAA 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23991

46EPA issued the memorandum ‘‘Boundary 

Guidance on Air Quality Designations for the 8-

Hour Ozone National Ambient Air Quality Standard 

(NAAQS or Standard)’’ on March 28, 2000, from 

John S. Seitz, Director, Office of Air Quality 

Planning and Standards, to the Air Directors, 

Regions I–X, to provide guidance to State and local 

agencies and Tribes on designating areas and EPA’s 

views on boundaries for nonattainment areas for the 

8-hour NAAQS.

provides for up to two 1-year extensions 

of the attainment date. 

Comment: Marginal areas may not be 

able to demonstrate compliance in 3 

years and the final rule should provide 

for automatic extensions for such areas. 

Additional time to implement all of 

these reductions may be required in 

order for marginal areas to comply. By 

creating an automatic extension, EPA 

will avoid the inevitable cost of SIP 

nonattainment planning problems that 

communities will face if these measures 

are fully implemented. 

Response: The general assumption for 

marginal areas is that they will be able 

to attain without significant additional 

emissions controls. As such, section 

182(a) specifies very little in terms of 

mandatory obligations for marginal 

areas. If an area needs additional 

controls and time to implement such 

controls, it may need to be reclassified 

to a higher classification. The CAA does 

not allow EPA to extend attainment 

dates for a classification. 

Comment: One commenter noted that 

EPA’s proposal provides: ‘‘For each 

nonattainment area, the State must 

provide for implementation of all 

control measures needed for attainment 

no later than the beginning of the 

attainment year ozone season.’’ CAA 

§ 51.908(e). Attainment of the 8-hour 

NAAQS is based on analysis of 3 years 

of data. Part 51, App. I ¶ 2.3(a) (‘‘The 

primary and secondary ozone ambient 

air quality standards are met at an 

ambient air quality monitoring site 

when the 3-year average of the annual 

fourth highest daily maximum 8-hour 

average ozone concentration is less than 

or equal to 0.08 ppm.’’). Thus, to meet 

the statutory requirement that SIPs 

provide for attainment, the rule must 

require SIPs to provide for 

implementation of all control measures 

needed for attainment no later than 3 

years before the attainment date. 

Response: We disagree with the 

comment. In section 51.908, we are 

adopting the approach we set forth in 

our proposed rule, namely that 

emissions reductions needed for 

attainment must be implemented by the 

beginning of the ozone season 

immediately preceding the area’s 

attainment date. Our rationale is 

presented above. 

Comment: In addition, a commenter 

stated that this timing was inconsistent 

with the draft modeling guidance which 

essentially requires areas with an 

attainment date of 2013 to have their 

controls in place by 2011 to perform an 

attainment demonstration. The 2011 

date is inconsistent with the proposal 

which would require that the emissions 

reductions be in place in 2012. The 

commenter further stated that it seems 

inappropriate that the draft modeling 

guidance would be driving the schedule 

for implementation of control measures 

as opposed to the 8-hour 

implementation rule. 

Response: Comments on the modeling 

requirements will be addressed in Phase 

2 of this rulemaking. The approach on 

when emission reductions needed for 

attainment must be in place was not 

based on the modeling requirements, 

but on the rationale stated in the 

preamble to the final rule. The modeling 

guidance will be revised for consistency 

with the final rule.

E. Conformity Under the 8-Hour Ozone 

Standard 

The June 2, 2003 proposal provided 

background discussion on issues related 

to transportation conformity and general 

conformity under the 8-hour ozone 

standard. See sections VI.M (68 FR 

32841) and VI.N. (68 FR 32842). 

However, we did not propose any rules 

related to either. We did receive a 

number of comments on this topic, 

however. Responses to those comments 

are included in the response to 

comments document. 

F. Comments on Other Issues 

We received comments on other 

issues associated with elements of this 

final rulemaking. We address those 

comments here. Comments on any other 

issues not discussed in this preamble or 

the RTC accompanying this final rule 

will be addressed in the second phase 

of this final rulemaking. 

1. Designation of Nonattainment and 

Attainment Areas 

We received a number of comments 

on the designation process. 

Response: As we noted in the June 2, 

2003 proposal, we did not propose to 

establish attainment/nonattainment 

designations nor did we address the 

principles that will be considered in the 

designation process; we issued guidance 

on the principles that States should 

consider in making designation 

recommendations in March 2000.46 The 

designation process is being conducted 

separately.

2. Early Action Compacts (EACs). 

(Section VIII.A.2. and 3 of the Proposal; 

See 68 FR 32859) 

We received a number of comments 

that addressed EACs. The June 2, 2003 

proposal included a description and 

background information concerning 

EACs, but the proposal made clear that 

we were not proposing any rulemaking 

on EACs in that notice. 

Response: The comments we received 

will be addressed in the rule that takes 

final action on the proposed rule to 

defer the effective date for EAC areas 

and therefore those comments are not 

addressed in this current rulemaking. 

We note that existing 1-hour 

maintenance areas will remain subject 

to all the requirements of that 

maintenance plan and transportation 

conformity, until the 1-hour standard is 

revoked 1 year following the effective 

date of the area’s 8-hour designation. If 

EPA takes final action deferring the 

effective date of the 8-hour designation 

for an EAC area, revocation of the 1-

hour standard will also be effectively 

deferred for such area. Therefore, for 

such an EAC area that is a 1-hour 

maintenance area, the 1-hour 

maintenance plan, and 1-hour 

conformity, will continue to apply until 

1 year after the 8-hour designation takes 

effect. 

3. Health and Environmental Concerns 

We received a number of general 

comments related to health and 

environmental concerns. Some of these 

cited national health statistics or 

provided information concerning the 

levels of ozone in their communities or 

information concerning the adverse 

health symptoms of themselves or 

friends, relatives, or patients. These 

commenters generally cited this 

information as a way of encouraging 

EPA to ensure expeditious attainment of 

the 8-hour ozone NAAQS and in some 

cases to support leaving the 1-hour 

NAAQS and its implementation process 

in place. 

Response: We have addressed these 

latter concerns above in discussion of 

the classification system, revocation of 

the 1-hour NAAQS and the antibacksliding provisions that serve to 

ensure that the 8-hour NAAQS is 

attained as expeditiously as practicable 

with little or no delay in emission 

reductions as a result of revoking the 1-

hour NAAQS. 

4. Clarity and Understandability of 

Proposed Rule 

A number of commenters expressed 

concern about the complexity of the 

proposed rule, and the lack of apparent 

23992 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

47OAR–2003–0079–0081, 0085 American 

Petroleum Institute (API) requests for extension to 

the August 1st, 2003 comment deadline.

48OAR–2003–0079–0405 Request for Extension 

of Time for Filing Comments on Draft Regulatory 

Text for Proposed Rule to Implement the 8-Hour 

Ozone National Ambient Air Quality Standard 

(NAAQS) submitted by Howard J. Feldman, 

Director, American Petroleum Institute.

49OAR–2003–0079–0542, 0589, 0590 Request 

for Extension of time for 15-day comment period on 

approaches to implement the 8-hour ozone NAAQS, 

submitted by Gregory Dana, Vice President 

Environmental Affairs, Alliance of Automobile 

Manufacturers. 

OAR–2003–0079–0555 Request for extension of 

time for 15-day comment period on alternative 

approaches to implement the 8-hour ozone NAAQS 

submitted by Howard Feldman, Director Regulatory 

Analysis and Scientific Affairs, American 

Petroleum Institute (API). 

OAR–2003–0079–0572 Request for Extension of 

Public Comment Period submitted by Leslie S. 

Ritts, Counsel to The National Environmental 

Development Associations Clean Air Regulatory 

Project (NEDA/CARP).

50See, for instance, OAR–2003–0079–0165

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

Feldman, Director, API, denying extension of 

comment period.

clarity and transparency. A number of 

these commenters complained that due 

to the large number of combinations of 

options that were possible from the 

proposal, it was difficult or impossible 

to determine exactly what the effect of 

the rule would be. 

Response: One of our principles in 

drafting the proposal was to make the 

rule as understandable as possible. 

However, the Supreme Court’s ruling on 

our previous implementation approach 

left it to EPA to develop an 

implementation scheme with only 

general guidance as to how to proceed. 

Because the consequences of 

implementation under a particular 

approach might be fairly large, we felt 

obligated to place as many practicable 

options in our proposal as possible to 

assess public reaction by providing an 

opportunity for comment. This 

approach obviously added complexity 

to the proposal. We tried to minimize 

the complexity by setting forth two 

example frameworks for how some 

options could work in conjunction with 

each other. We also attempted in the 

draft regulatory text to focus on one set 

of options to illustrate how one set of 

options would work together. We 

attempted to simplify where we could 

and to provide other materials in the 

docket and on our web site for this 

rulemaking (e.g., the ‘‘roadmap’’ and the 

crosswalks between the June 2, 2003 

proposal and the draft regulatory text) to 

enable the reader to more easily see 

relations between various sections of the 

proposal and to provide a synopsis of 

the options being proposed. Although 

the very nature of the proposal was 

complex, we believe that the public had 

sufficient opportunity to comment on 

the rule. 

5. Regulatory Text 

A number of commenters chastised us 

for not providing regulatory text with 

the proposal. 

Response: As noted above, we did 

provide for public comment draft 

regulatory text, which reflected one set 

of proposed options. On August 6, 2002 

(68 FR 46536), we published a notice of 

availability of the draft regulatory text 

for the proposed rule to implement the 

8-hour ozone NAAQS. This notice 

started a 30-day public comment period 

on the draft regulatory text. 

6. Requests for Extension of Comment 

Periods 

We received a number of requests for 

extension of the comment periods on 

the three notices related to our proposal 

(the June 2, 2003 proposal,47 the notice 

of availability of the draft regulatory 

text,48 and the notice reopening the 

comment period on the classification 

approach.49) We did not grant any of 

these requests.50 We provided a 60-day 

comment period on our full 

implementation proposal, which was 

published on June 2, 2003. We also 

provided a separate 30-day comment 

period on draft regulatory text (notice of 

availability was published on August 6, 

2003). The October 21, 2003 notice was 

very narrow, supplementing just one 

aspect of the June 2, 2003 proposal. We 

believe that a 15-day comment period 

was sufficient to address this limited 

issue. That notice was based on several 

comments which were submitted during 

the public comment period. Those 

comments have been available to the 

public since early August.

We are committed by a consent decree 

to designate areas for the 8-hour ozone 

NAAQS by April 15, 2004. We believe 

it was essential to move forward to 

provide the public health protection 

that implementation of the 8-hour 

NAAQS will yield. We have recognized 

the strong interest from many 

stakeholders in our issuance of a final 

implementation rule prior to the April 

2004 designation deadline. These 

interests, in conjunction with the 

reasons set forth above, support our 

denial of requests for an extension of the 

comment period. However, as is 

normally the case, we considered 

comments received after the close of the 

comment period to the extent we were 

able to do so without impeding the 

process for issuing the final rule. 

G. Other Considerations 

Although Phase 2 of the final rule will 

address aspects of implementation of 

the 8-hour ozone NAAQS that are not 

addressed in this rulemaking, additional 

information is provided below regarding 

new source review for the 8-hour ozone 

NAAQS. 

1. What Happens If a Source Is in the 

Process of PSD Permitting at the Time 

That the Area in Which It Is Located Is 

Designated as Nonattainment for the 8-

Hour Ozone NAAQS? 

An area’s designation at the time the 

final permit is issued determines which 

major New Source Review (NSR) 

requirements apply to the construction 

activity.

Accordingly, if a source has received 

its PSD permit before the area is 

designated nonattainment, it may 

construct under the terms of that permit 

if it commences an ongoing program of 

construction within the required time 

period and completes the project within 

a reasonable time. However, if the area 

is designated nonattainment before the 

permit is issued (even if the reviewing 

authority deemed the PSD application 

complete), the PSD permit may not be 

issued. The source would be required to 

submit a new application to comply 

with the requirements of the applicable 

nonattainment major NSR program 

before receiving a final permit and 

beginning construction. 40 CFR 52.24(k) 

and 40 CFR part 51, appendix S. We 

have consistently applied this approach 

in past designation and redesignation 

situations. 

This approach is consistent with CAA 

section 165, which states that PSD 

permitting requirements apply only in 

attainment and unclassifiable areas. The 

DC District Court of Appeals affirmed 

this plain reading of the statute in the 

Alabama Power decision (636 F.2d 323). 

In response to EPA’s attempt to apply 

PSD permitting requirements in some 

nonattainment areas, the court stated, 

‘‘After careful consideration of the 

statute and the legislative history, we 

must accept the contention of the 

industry petitioners that the phrase 

‘constructed in any area to which this 

part applies’ limits the application of 

section 165 to major emitting facilities 

to be constructed in [attainment and 

unclassifiable areas].’’ The court went 

on to say, ‘‘The plain meaning of the 

inclusion in section 165 of the words 

‘any area to which this part applies’ is 

that Congress intended location to be 

the key determinant of the applicability 

of the PSD review requirements.’’

This approach is also consistent with 

the regulatory text in the Federal PSD 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23993

regulations. These regulations limit the 

applicability of PSD requirements to ‘‘an 

area designated as attainment or 

unclassifiable.’’ 40 CFR 51.166(a)(7)(i); 

52.21(a)(2)(i). 

H. EPA’s Final Action 

We are taking final action on key 

elements of the program to implement 

the 8-hour ozone NAAQS. This final 

rule addresses the following topics: 

Classifications for the 8-hour NAAQS; 

revocation of the 1-hour NAAQS (i.e., 

when the 1-hour NAAQS will no longer 

apply); how anti-backsliding principles 

will ensure continued progress toward 

attainment of the 8-hour ozone NAAQS; 

attainment dates; and the timing of 

emission reductions needed for 

attainment. A summary of the rule 

appears in section IV of this preamble. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and, therefore, 

subject to Office of Management and 

Budget (OMB) review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Order 12866, it has been determined 

that this rule is a ‘‘significant regulatory 

action’’ because it raises novel legal or 

policy issues arising out of legal 

mandates. As such, this action was 

submitted to OMB for review. Changes 

made in response to OMB suggestions or 

recommendations will be documented 

in the public record. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. This rule 

merely interprets the requirement to 

develop State implementation plans to 

achieve a new or revised NAAQS. This 

requirement is prescribed in the CAA 

sections 110 and part D, subparts 1 and 

2 of Title 1. The present final rule does 

not establish any new information 

collection burden apart from any that 

required by law. A SIP contains rules 

and other requirements designed to 

achieve the NAAQS by the deadlines 

established under the CAA, and also 

contains a demonstration that the State’s 

requirements will in fact result in 

attainment. Such a document is not 

considered information collection. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. An agency 

may not conduct or sponsor, and a 

person is not required to respond to a 

collection of information unless it 

displays a currently valid OMB control 

number. The OMB control numbers for 

EPA’s regulations in 40 CFR are listed 

in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

generally requires an Agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedures Act or any 

other statute unless the Agency certifies 

the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

that is a small industrial entity as 

defined in the U.S. Small Business 

Administration (SBA) size standards 

(See 13 CFR 121.); (2) a governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s rule on small entities, 

I certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

This rule will not impose any 

requirements on small entities. Rather, 

this rule interprets the obligations 

established in the CAA for States to 

submit implementation plans in order to 

attain the 8-hour ozone NAAQS. We are 

issuing this rule so that States and 

Tribes will know how we plan to 

classify areas and transition from 

implementation of the 1-hour NAAQS 

to implementation of the 8-hour 

NAAQS.

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and Tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and Tribal governments, in the 

aggregate, or to the private sector, of 

$100 million or more in any 1 year. 

Before promulgating an EPA rule for 

which a written statement is needed, 

section 205 of the UMRA generally 

requires EPA to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost-effective or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows EPA to 

adopt an alternative other than the least 

costly, most cost-effective or least 

burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including Tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

23994 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

The EPA has determined that this rule 

does not contain a Federal mandate that 

may result in expenditures of $100 

million or more for State, local, and 

Tribal governments, in the aggregate, or 

the private sector in any 1 year. The 

estimated administrative burden hour 

and costs associated with implementing 

the 8-hour, 0.08 ppm NAAQS were 

developed upon promulgation of the 

NAAQS and presented in Chapter 10 of 

U.S. EPA 1997, Regulatory Impact 

Analyses for the Particulate Matter and 

Ozone National Ambient Air Quality 

Standards, Innovative Strategies and 

Economics Group, Office of Air Quality 

Planning and Standards, Research 

Triangle Park, NC, July 16, 1997. The 

estimated costs presented there for 

States in 1990 dollars totaled $0.9 

million. The corresponding estimate in 

1997 dollars is $1.1 million. Should the 

more traditional classification option be 

adopted as the implementation 

framework, these costs may increase 

modestly, but would not reach $100 

million. Thus, today’s rule is not subject 

to the requirements of section 202 and 

205 of the UMRA. 

The CAA imposes the obligation for 

States to submit SIPs to implement the 

8-hour ozone NAAQS; in this rule, EPA 

is merely fleshing out those 

requirements. However, even if this rule 

did establish a requirement for States to 

submit SIPs, it is questionable whether 

a requirement to submit a SIP revision 

would constitute a Federal mandate in 

any case. The obligation for a State to 

submit a SIP that arises out of section 

110 and part D of the CAA is not legally 

enforceable by a court of law, and at 

most is a condition for continued 

receipt of highway funds. Therefore, it 

is possible to view an action requiring 

such a submittal as not creating any 

enforceable duty within the meaning of 

section 421(5)(9a)(I) of UMRA (2 U.S.C. 

658(a)(I)). Even if it did, the duty could 

be viewed as falling within the 

exception for a condition of Federal 

assistance under section 421(5)(a)(i)(I) of 

UMRA (2 U.S.C. 658(5)(a)(i)(I)). 

In this rule, EPA has determined that 

this rule contains no regulatory 

requirements that may significantly or 

uniquely affect small governments, 

including Tribal governments. 

Nonetheless, EPA carried out 

consultations with governmental 

entities affected by this rule. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This rule does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. As described in 

section D, above (on UMRA), EPA 

previously determined the costs to 

States to implement the 8-hour ozone 

NAAQS to be approximately $1 million. 

While this rule considers options not 

addressed at the time the NAAQS were 

promulgated, the costs for 

implementation under these options 

would may rise modestly. This rule 

fleshes out the statutory obligations of 

States in implementing the 8-hour 

ozone NAAQS. Finally, the CAA 

establishes the scheme whereby States 

take the lead in developing plans to 

meet the NAAQS. This rule would not 

modify the relationship of the States 

and EPA for purposes of developing 

programs to implement the NAAQS. 

Thus, Executive Order 13132 does not 

apply to this rule.

Although section 6 of Executive Order 

13132 does not apply to this rule, EPA 

actively engaged the States in the 

development of this rule. EPA held 

regular calls with representatives of 

State and local air pollution control 

agencies. EPA also held three public 

meetings at which it described the 

approaches it was considering and 

provided an opportunity for States and 

various other governmental officials to 

comment on the options being 

considered. Finally, EPA held three 

public hearings after the proposed rule 

was published to obtain public 

comments. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This determination is 

stated below. 

This rule concerns the 

implementation of the 8-hour ozone 

NAAQS in areas designated 

nonattainment for that NAAQS. The 

CAA provides for States and Tribes to 

develop plans to regulate emissions of 

air pollutants within their jurisdictions. 

The regulations flesh out the statutory 

obligations of States and Tribes that 

develop plans to implement the 8-hour 

ozone NAAQS. The TAR gives Tribes 

the opportunity to develop and 

implement CAA programs such as the 8-

hour ozone NAAQS, but it leaves to the 

discretion of the Tribe whether to 

develop these programs and which 

programs, or appropriate elements of a 

program, they will adopt. 

This rule does not have Tribal 

implications as defined by Executive 

Order 13175. It does not have a 

substantial direct effect on one or more 

Indian Tribes, since no Tribe has 

implemented a CAA program to attain 

the 8-hour ozone NAAQS at this time. 

Furthermore, this rule does not affect 

the relationship or distribution of power 

and responsibilities between the Federal 

government and Indian Tribes. The 

CAA and the TAR establish the 

relationship of the Federal government 

and Tribes in developing plans to attain 

the NAAQS, and this rule does nothing 

to modify that relationship. Because this 

rule does not have Tribal implications, 

Executive Order 13175 does not apply. 

The EPA also notes that even if Tribes 

choose to develop plans to implement 

the 8-hour ozone NAAQS in the future, 

these regulations would not impose 

substantial direct compliance costs on 

such Tribes, nor would they preempt 

Tribal law. As provided above, EPA has 

determined that the total costs for 

implementing the 8-hour ozone NAAQS 

by State, local, and Tribal governments 

is approximately $1 million in all areas 

designated nonattainment for the 

NAAQS. The percentage of Indian 

country that will be designated 

nonattainment for the 8-hour ozone 

NAAQS is very small. For Tribes that 

choose to regulate sources under their 

jurisdiction, the costs would be 

attributed to inspecting regulated 

facilities and enforcing adopted 

regulations. 

Although Executive Order 13175 does 

not apply to this rule, EPA did consult 

with Tribal officials in developing this 

rule and encouraged Tribal input at an 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23995

early stage. The EPA supports a national 

‘‘Tribal Designations and 

Implementation Work Group’’ which 

provided an open forum for all Tribes to 

voice concerns to EPA about the 

designation and implementation process 

for the 8-hour ozone NAAQS. These 

discussions have given EPA valuable 

information about Tribal concerns 

regarding implementation of the 8-hour 

ozone NAAQS. The work group sent 

issue summaries and suggestions for 

addressing them to the newly formed 

National Tribal Air Association (NTAA), 

who in turn sent them to Tribal leaders. 

EPA encouraged Tribes to participate in 

the national public meetings held to 

take comment on early approaches to 

the rule. Several Tribes made public 

comments at the April 2002 public 

meeting in Tempe, Arizona.

Furthermore, EPA sent individualized 

letters to all federally recognized Tribes 

about the proposal and gave Tribal 

leaders the opportunity for consultation. 

EPA received comment from the NTAA 

raising several questions: (1) NTAA 

asked for clarification on the nature of 

EPA’s support for Tribes without 

Treatment in the same manner as a State 

(TAS) status and asked if EPA would 

provide technical assistance in 

interpreting SIP documentation to a 

Tribe without TAS approval; (2) NTAA 

asked EPA to explain how it envisions 

its role in continuing consultation with 

Tribes throughout the execution of SIPs. 

These comments will be addressed in 

the technical support document. The 

NTAA’s final comment cited concerns 

with the impact of NSR requirements on 

the Tribes. The EPA intends to address 

these NSR comments in the Tribal NSR 

Rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children From Environmental Health 

and Safety Risks’’ (62 FR 19885, April 

23, 1997) applies to any rule that (1) is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

The rule is not subject to Executive 

Order 13045 because it implements a 

previously promulgated health based 

Federal standard (this rule implements 

the 8-hour ozone NAAQS). Nonetheless, 

we have evaluated the environmental 

health or safety effects of the 8-hour 

ozone NAAQS on children. The results 

of this evaluation are contained in 40 

CFR part 50, National Ambient Air 

Quality Standards for Ozone, Final Rule 

(62 FR 38855–38896; specifically, 62 FR 

38855, 62 FR 38860 and 62 FR 38865). 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions That Significantly 

Affect Energy Supply, Distribution, or 

Use,’’ (66 FR 28355, May 22, 2001) 

because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. 

Information on the methodology and 

data regarding the assessment of 

potential energy impacts is found in 

Chapter 6 of U.S. EPA 2003, Cost, 

Emission Reduction, Energy, and 

Economic Impact Assessment of the 

Proposed Rule Establishing the 

Implementation Framework for the 8-

Hour, 0.08 ppm Ozone National 

Ambient Air Quality Standard, prepared 

by the Innovative Strategies and 

Economics Group, Office of Air Quality 

Planning and Standards, Research 

Triangle Park, N.C. April 24, 2003. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer Advancement Act 

of 1995 (NTTAA), Public Law No. 104–

113, section 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards (VCS) in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by VCS bodies. The NTTAA 

directs EPA to provide Congress, 

through OMB, explanations when the 

Agency decides not to use available and 

applicable VCS. 

This rulemaking does not involve 

technical standards. Therefore, EPA is 

not considering the use of any VCS. 

The EPA will encourage the States 

and Tribes to consider the use of such 

standards, where appropriate, in the 

development of the implementation 

plans. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 requires that 

each Federal agency make achieving 

environmental justice part of its mission 

by identifying and addressing, as 

appropriate, disproportionate high and 

adverse human health or environmental 

effects of its programs, policies, and 

activities on minorities and low-income 

populations. 

The EPA believes that this rule should 

not raise any environmental justice 

issues. The health and environmental 

risks associated with ozone were 

considered in the establishment of the 

8-hour, 0.08 ppm ozone NAAQS. The 

level is designed to be protective with 

an adequate margin of safety. The rule 

provides a framework for improving 

environmental quality and reducing 

health risks for areas that may be 

designated nonattainment. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A Major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). This rule will be effective June 

15, 2004. 

L. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by June 29, 2004. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See CAA 

section 307(b)(2). 

23996 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

M. Determination Under Section 307(d) 

Pursuant to section 307(d)(1)(V) of the 

CAA, the Administrator determines that 

this action is subject to the provisions 

of section 307(d). Section 307(d)(1)(V) 

provides that the provisions of section 

307(d) apply to ‘‘such other actions as 

the Administrator may determine.’’

While the Administrator did not make 

this determination earlier, the 

Administrator believes that all of the 

procedural requirements, e.g., 

docketing, hearing and comment 

periods, of section 307(d) have been 

complied with during the course of this 

rulemaking.

Appendix A to Preamble—Example for 

8-Hr Ozone Preamble Portion Dealing 

with Anti-Backsliding and Outstanding 

1-Hr ROP Obligation

Consider a 1-hour nonattainment area 

classified as Severe-15. For simplicity, only 

one precursor is assumed here, and this 

example does not account for issues of 

creditability established by the CAA. The 1-

hour Severe-15 areas are required to reach 

attainment no later than 15 years after the 

1990 base year, i.e., in year 2005. The ROP 

requirement over this 15-year period would 

be accomplished by an initial 15 percent 

reduction in emissions in the first six years, 

followed by additional 3 percent per year 

reductions (9 percent averaged over three 

years) until attainment is reached but no later 

than the attainment date (with any additional 

reductions needed for attainment). Suppose 

an area started with a base year emissions 

inventory of 1000 tons/day (t/d); after an 

initial 15 percent reduction, the area’s 

emissions in 1996 would be 850 t/d. 

Subsequent additive linear 9 percent 

reductions would net 24 percent, 33 percent, 

and 42 percent reductions, leaving emissions 

of 760 t/d in 1999, 670 t/d in 2002, and 580 

t/d in 2005. (Since each subsequent 9 year 

incremental reduction toward attainment 

would have to account for adjustments in the 

base year inventory because of noncreditable 

reductions, actual reductions would vary 

somewhat from those shown here.) 

Assume that the same area is classified 

Serious for the 8-hour NAAQS. Under one of 

our proposed options for such an area, the 

area would be required to submit an RFP 

plan in 2006 that shows (for the 6-year period 

from the end of 2002 to the end of 2008) an 

18 percent reduction from a 2002 base year. 

The 1-hour NAAQS ROP schedule thus 

overlaps the 8-hour one, which begins in 

base year 2002 and continues to year 2013. 

As the same 1-hour Severe-15 area transitions 

to an 8-hour serious nonattainment area, 

overlap occurs during years 2002 through 

2005. During this interval, the area will 

complete its last 9 percent incremental 

reduction in year 2005 for its 1-hour 

obligation while at the same time beginning 

to meet the 8-hour obligation of 18 percent 

by 2008. Therefore, between 2002–2005, the 

area will need to get (670 t/d¥580 t/d =) 90 

t/d reductions to meet its 1-hour obligation. 

The area would also be required to get 

between 2002—2008 an 18 percent reduction 

from the 2002 base inventory of 670 t/d 

which equals a 121 t/d in reductions. 

However, since the 90 t/d is already obtained 

for the 2002–2005 period, the area need only 

get an additional (121 t/d¥90 t/d =) 31 t/d 

reductions to meet the 8-hour obligation from 

2005 out to 2008. Therefore, if this area had 

not actually submitted a 1-hour ROP plan 

that covered the 2002–2005 period, and it 

submitted its 8-hour RFP plan that achieves 

the 121 t/d reduction, it would be deemed to 

have met its 1-hour ROP obligation, provided 

that the RFP plan insured that 90 t/d would 

be achieved by 2005.

Appendix B to Preamble—Glossary of 

Terms and Acronyms

bump-up Reclassify to higher classification 

CAA Clean Air Act 

CAAA 1990 Clean Air Act Amendments 

CFR Code of Federal Regulations 

CMSA Consolidated Metropolitan 

Statistical Area 

EAC Early Action Compacts 

EPA Environmental Protection Agency 

I/M Inspection and Maintenance Area 

LAER Lowest achievable emission rate 

LNB Low NOX Burner 

MCR Mid-course review 

MPO Metropolitan Planning Organization 

NAAQS National Ambient Air Quality 

Standards 

NOX Nitrogen oxides 

NSR New source review 

NTAA National Tribal Air Association 

NTTAA National Technology Transfer 

Advancement Act of 1995 

OMB Office of Management and Budget 

OTR Ozone Transport Region 

PAMS Photochemical Assessment 

Monitoring Stations 

ppm Parts per million 

PSD Prevention of significant deterioration 

RACM Reasonably available control 

measures 

RACT Reasonably available control 

technology 

RFG Reformulated gasoline 

RFP Reasonable further progress 

ROP Rate of progress 

SBA Small Business Administration 

SCR Selective Catalytic Reduction 

SIPs State implementation plans 

TAR Tribal Authority Rule 

TAS Treatment in the same manner as a 

State 

t/d Tons per day 

TEA–21 Transportation Equity Act for the 

Twenty-first Century 

UMRA Unfunded Mandates Reform Act of 

1995 

VCS Voluntary consensus standards 

VOC Volatile organic compound

List of Subjects 

40 CFR Part 50 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Sulfur oxides. 

40 CFR Part 51 

Air pollution control, 

Intergovernmental relations, Ozone, 

Particulate matter, Transportation, 

Volatile organic compounds. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas.

Authority: 42 U.S.C. 7408; 42 U.S.C. 7410; 

42 U.S.C. 7501–7511f; 42 U.S.C. 7601(a)(1); 

42 U.S.C. 7401.

Dated: April 15, 2004. 

Michael O. Leavitt, 

Administrator.

■ For the reasons stated in the preamble, 

Title 40, Chapter I of the Code of Federal 

Regulations is amended as follows:

PART 50—NATIONAL PRIMARY AND 

SECONDARY AMBIENT AIR QUALITY 

STANDARDS

■ 1. The authority citation for Part 50 

continues to read as follows:

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

■ 2. Section 50.9 is amended by revising 

the second sentence of paragraph (b) to 

read as follows:

§ 50.9 National 1-hour primary and 

secondary ambient air quality standards for 

ozone.

* * * * *

(b) * * * The 1-hour NAAQS set 

forth in paragraph (a) of this section will 

no longer apply to an area one year after 

the effective date of the designation of 

that area for the 8-hour ozone NAAQS 

pursuant to section 107 of the Clean Air 

Act. * * *

* * * * *

PART 51—REQUIREMENTS FOR 

PREPARATION, ADOPTION, AND 

SUBMITTAL OF IMPLEMENTATION 

PLANS

■ 3. The authority citation for Part 51 

continues to read as follows:

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

7671q.

■ 4. Part 51 is amended by adding a new 

subpart X to read as follows:

Subpart X—Provisions for 

Implementation of 8-hour Ozone 

National Ambient Air Quality Standard 

Sec. 

51.900 Definitions. 

51.901 Applicability of part 51. 

51.902 Which classification and area 

planning provisions of the CAA shall 

apply to areas designated nonattainment 

for the 8-hour NAAQS? 

51.903 How do the classification and 

attainment date provisions in section 181 

of subpart 2 of the CAA apply to areas 

subject to § 51.902(a)? 

51.904 How do the classification and 

attainment date provisions in section 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23997

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

areas subject to § 51.902(b)? 

51.905 How do areas transition from the 1-

hour NAAQS to the 8-hour NAAQS and 

what are the anti-backsliding provisions? 

51.906 [Reserved] 

51.907 For an area that fails to attain the 8-

hour NAAQS by its attainment date, how 

does EPA interpret sections 

172(a)(2)(C)(ii) and 181(a)(5)(B) of the 

CAA? 

51.908 What is the required timeframe for 

obtaining emission reductions to ensure 

attainment by the attainment date? 

51.909—51.916 [Reserved]

Subpart X—Provisions for 

Implementation of 8-hour Ozone 

National Ambient Air Quality Standard

§ 51.900 Definitions. 

The following definitions apply for 

purposes of this subpart. Any term not 

defined herein shall have the meaning 

as defined in 40 CFR 51.100. 

(a) 1-hour NAAQS means the 1-hour 

ozone national ambient air quality 

standards codified at 40 CFR 50.9. 

(b) 8-hour NAAQS means the 8-hour 

ozone national ambient air quality 

standards codified at 40 CFR 50.10. 

(c) 1-hour ozone design value is the 1-

hour ozone concentration calculated 

according to 40 CFR part 50, Appendix 

H and the interpretation methodology 

issued by the Administrator most 

recently before the date of the 

enactment of the CAA Amendments of 

1990. 

(d) 8-Hour ozone design value is the 

8-hour ozone concentration calculated 

according to 40 CFR part 50, appendix 

I. 

(e) CAA means the Clean Air Act as 

codified at 42 U.S.C. 7401—7671q 

(2003). 

(f) Applicable requirements means for 

an area the following requirements to 

the extent such requirements apply or 

applied to the area for the area’s 

classification under section 181(a)(1) of 

the CAA for the 1-hour NAAQS at the 

time the Administrator signs a final rule 

designating the area for the 8-hour 

standard as nonattainment, attainment 

or unclassifiable: 

(1) Reasonably available control 

technology (RACT). 

(2) Inspection and maintenance 

programs (I/M). 

(3) Major source applicability cut-offs 

for purposes of RACT. 

(4) Rate of Progress (ROP) reductions. 

(5) Stage II vapor recovery. 

(6) Clean fuels fleet program under 

section 183(c)(4) of the CAA. 

(7) Clean fuels for boilers under 

section 182(e)(3) of the CAA. 

(8) Transportation Control Measures 

(TCMs) during heavy traffic hours as 

provided under section 182(e)(4) of the 

CAA. 

(9) Enhanced (ambient) monitoring 

under section 182(c)(1) of the CAA.

(10) Transportation controls under 

section 182(c)(5) of the CAA. 

(11) Vehicle miles traveled provisions 

of section 182(d)(1) of the CAA. 

(12) NOX requirements under section 

182(f) of the CAA. 

(g) Attainment year ozone season

shall mean the ozone season 

immediately preceding a nonattainment 

area’s attainment date. 

(h) Designation for the 8-hour NAAQS

shall mean the effective date of the 8-

hour designation for an area. 

(i) Higher classification/lower 

classification. For purposes of 

determining whether a classification is 

higher or lower, classifications are 

ranked from lowest to highest as 

follows: classification under subpart 1 

of the CAA; marginal; moderate; serious; 

severe-15; severe-17; and extreme. 

(j) Initially designated means the first 

designation that becomes effective for 

an area for the 8-hour NAAQS and does 

not include a redesignation to 

attainment or nonattainment for that 

standard. 

(k) Maintenance area for the 1-hour 

NAAQS means an area that was 

designated nonattainment for the 1-hour 

NAAQS on or after November 15, 1990 

and was redesignated to attainment for 

the 1-hour NAAQS subject to a 

maintenance plan as required by section 

175A of the CAA. 

(l) Nitrogen Oxides (NOX) means the 

sum of nitric oxide and nitrogen dioxide 

in the flue gas or emission point, 

collectively expressed as nitrogen 

dioxide. 

(m) NOX SIP Call means the rules 

codified at 40 CFR 51.121 and 51.122. 

(n) Ozone season means for each 

State, the ozone monitoring season as 

defined in 40 CFR Part 58, Appendix D, 

section 2.5 for that State. 

(o) Ozone transport region means the 

area established by section 184(a) of the 

CAA or any other area established by 

the Administrator pursuant to section 

176A of the CAA for purposes of ozone. 

(p) Reasonable further progress (RFP)

means for the purposes of the 8-hour 

NAAQS, the progress reductions 

required under section 172(c)(2) and 

section 182(b)(1) and (c)(2)(B) and 

(c)(2)(C) of the CAA. 

(q) Rate of progress (ROP) means for 

purposes of the 1-hour NAAQS, the 

progress reductions required under 

section 172(c)(2) and section 182(b)(1) 

and (c)(2)(B) and (c)(2)(C) of the CAA. 

(r) Revocation of the 1-hour NAAQS

means the time at which the 1-hour 

NAAQS no longer apply to an area 

pursuant to 40 CFR 50.9(b). 

(s) Subpart 1 (CAA) means subpart 1 

of part D of title I of the CAA. 

(t) Subpart 2 (CAA) means subpart 2 

of part D of title I of the CAA. 

(u) Attainment Area means, unless 

otherwise indicated, an area designated 

as either attainment, unclassifiable, or 

attainment/unclassifiable.

§ 51.901 Applicability of part 51. 

The provisions in subparts A through 

W of part 51 apply to areas for purposes 

of the 8-hour NAAQS to the extent they 

are not inconsistent with the provisions 

of this subpart.

§ 51.902 Which classification and 

nonattainment area planning provisions of 

the CAA shall apply to areas designated 

nonattainment for the 8-hour NAAQS? 

(a) Classification under subpart 2 

(CAA). An area designated 

nonattainment for the 8-hour NAAQS 

with a 1-hour ozone design value equal 

to or greater than 0.121 ppm at the time 

the Administrator signs a final rule 

designating or redesignating the area as 

nonattainment for the 8-hour NAAQS 

will be classified in accordance with 

section 181 of the CAA, as interpreted 

in § 51.903(a), for purposes of the 8-hour 

NAAQS, and will be subject to the 

requirements of subpart 2 that apply for 

that classification. 

(b) Covered under subpart 1 (CAA).

An area designated nonattainment for 

the 8-hour ozone NAAQS with a 1-hour 

design value less than 0.121 ppm at the 

time the Administrator signs a final rule 

designating or redesignating the area as 

nonattainment for the 8-hour NAAQS 

will be covered under section 172(a)(1) 

of the CAA and will be subject to the 

requirements of subpart 1.

§ 51.903 How do the classification and 

attainment date provisions in section 181 of 

subpart 2 of the CAA apply to areas subject 

to §51.902(a)? 

(a) In accordance with section 

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

to § 51.902(a) shall be classified by 

operation of law at the time of 

designation. However, the classification 

shall be based on the 8-hour design 

value for the area, in accordance with 

Table 1 below, or such higher or lower 

classification as the State may request as 

provided in paragraphs (b) and (c) of 

this section. The 8-hour design value for 

the area shall be calculated using the 

three most recent years of air quality 

data. For each area classified under this 

section, the primary NAAQS attainment 

date for the 8-hour NAAQS shall be as 

expeditious as practicable but not later 

than the date provided in the following 

Table 1.

23998 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

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

Area class 

8-hour

design value

(ppm ozone) 

Maximum period for attainment dates in state 

plans (years after effective date of nonattainment designation for 8-

hour NAAQS) 

Marginal ................................................................ from ......................................................................

up to 1 ...................................................................

0.085 

0.092

3 

Moderate ............................................................... from ......................................................................

up to 1 ...................................................................

0.092 

0.107

6 

Serious .................................................................. from ......................................................................

up to 1 ...................................................................

0.107 

0.120

9 

Severe-15 ............................................................. from ......................................................................

up to 1 ...................................................................

0.120 

0.127

15 

Severe-17 ............................................................. from ......................................................................

up to 1 ...................................................................

0.127 

0.187

17 

Extreme ................................................................ equal to .................................................................

or above ...............................................................

0.187 20 

1 but not including. 

(b) A State may request a higher 

classification for any reason in 

accordance with section 181(b)(3) of the 

CAA. 

(c) A State may request a lower 

classification in accordance with section 

181(a)(4) of the CAA.

§ 51.904 How do the classification and 

attainment date provisions in section 172(a) 

of subpart 1 of the CAA apply to areas 

subject to § 51.902(b)? 

(a) Classification. The Administrator 

may classify an area subject to 

§ 51.902(b) as an overwhelming 

transport area if: 

(1) The area meets the criteria as 

specified for rural transport areas under 

section 182(h) of the CAA; 

(2) Transport of ozone and/or 

precursors into the area is so 

overwhelming that the contribution of 

local emissions to observed 8-hour 

ozone concentration above the level of 

the NAAQS is relatively minor; and 

(3) The Administrator finds that 

sources of VOC (and, where the 

Administrator determines relevant, 

NOX) emissions within the area do not 

make a significant contribution to the 

ozone concentrations measured in other 

areas. 

(b) Attainment dates. For an area 

subject to § 51.902(b), the Administrator 

will approve an attainment date 

consistent with the attainment date 

timing provision of section 172(a)(2)(A) 

of the CAA at the time the 

Administrator approves an attainment 

demonstration for the area.

§ 51.905 How do areas transition from the 

1-hour NAAQS to the 8-hour NAAQS and 

what are the anti-backsliding provisions? 

(a) What requirements that applied in 

an area for the 1-hour NAAQS continue 

to apply after revocation of the 1-hour 

NAAQS for that area? (1) 8-Hour 

NAAQS Nonattainment/1-Hour NAAQS 

Nonattainment. The following 

requirements apply to an area 

designated nonattainment for the 8-hour 

NAAQS and designated nonattainment 

for the 1-hour NAAQS at the time of 

designation for the 8-hour NAAQS for 

that area. 

(i) The area remains subject to the 

obligation to adopt and implement the 

applicable requirements as defined in 

§ 51.900(f), except as provided in 

paragraph (a)(1)(iii) of this section, and 

except as provided in paragraph (b) of 

this section. 

(ii) If the area has not met its 

obligation to have a fully-approved 

attainment demonstration SIP for the 1-

hour NAAQS, the State must comply 

with one of the following: 

(A) Submit a 1-hour attainment 

demonstration no later than 1 year after 

designation; 

(B) Submit a RFP plan for the 8-hour 

NAAQS no later than 1-year following 

designations for the 8-hour NAAQS 

providing a 5 percent increment of 

emissions reduction from the area’s 

2002 emissions baseline, which must be 

in addition to measures (or enforceable 

commitments to measures) in the SIP at 

the time of the effective date of 

designation and in addition to national 

or regional measures and must be 

achieved no later than 2 years after the 

required date for submission (3 years 

after designation). 

(C) Submit an 8-hour ozone 

attainment demonstration no later than 

1 year following designations that 

demonstrates attainment of the 8-hour 

NAAQS by the area’s attainment date; 

provides for 8-hour RFP for the area out 

to the attainment date; and for the initial 

period of RFP for the area (between 

2003–2008), achieve the emission 

reductions by December 31, 2007. 

(iii) If the area has an outstanding 

obligation for an approved 1-hour ROP 

SIP, it must develop and submit to EPA 

all outstanding 1-hour ROP plans; 

where a 1-hour obligation overlaps with 

an 8-hour RFP requirement, the State’s 

8-hour RFP plan can be used to satisfy 

the 1-hour ROP obligation if the 8-hour 

RFP plan has an emission target at least 

as stringent as the 1-hour ROP emission 

target in each of the 1-hour ROP target 

years for which the 1-hour ROP 

obligation exists. 

(2) 8–Hour NAAQS Nonattainment/1–

Hour NAAQS Maintenance. An area 

designated nonattainment for the 8-hour 

NAAQS that is a maintenance area for 

the 1-hour NAAQS at the time of 

designation for the 8-hour NAAQS for 

that area remains subject to the 

obligation to implement the applicable 

requirements as defined in § 51.900 (f) 

to the extent such obligations are 

required by the approved SIP, except as 

provided in paragraph (b) of this 

section. Applicable measures in the SIP 

must continue to be implemented; 

however, if these measures were shifted 

to contingency measures prior to 

designation for the 8-hour NAAQS for 

the area, they may remain as 

contingency measures, unless the 

measures are required to be 

implemented by the CAA by virtue of 

the area’s requirements under the 8-

hour NAAQS. The State may not 

remove such measures from the SIP. 

(3) 8–Hour NAAQS Attainment/1–

Hour NAAQS Nonattainment—(i) 

Obligations in an approved SIP. For an 

area that is 8-hour NAAQS attainment/

1-hour NAAQS nonattainment, the State 

may request that obligations under the 

applicable requirements of § 51.900(f) be 

shifted to contingency measures, 

consistent with sections 110(l) and 193 

Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 23999

of the CAA, after revocation of the 1-

hour NAAQS; however, the State cannot 

remove the obligations from the SIP. For 

such areas, the State may request that 

the nonattainment NSR provisions be 

removed from the SIP on or after the 

date of revocation of the 1-hour NAAQS 

and need not be shifted to contingency 

measures subject to paragraph (e)(4) of 

this section. 

(ii) Attainment demonstration and 

ROP plans. (A) To the extent an 8-hour 

NAAQS attainment/1-hour NAAQS 

nonattainment area does not have an 

approved attainment demonstration or 

ROP plan that was required for the 1-

hour NAAQS under the CAA, the 

obligation to submit such an attainment 

demonstration or ROP plan

(1) Is deferred for so long as the area 

continues to maintain the 8-hour 

NAAQS; and 

(2) No longer applies once the area 

has an approved maintenance plan 

pursuant to paragraph (a)(3)(iii) of this 

section. 

(B) For an 8-hour NAAQS attainment/

1-hour NAAQS nonattainment area that 

violates the 8-hour NAAQS, prior to 

having an approved maintenance plan 

for the 8-hour NAAQS as provided 

under paragraph (a)(3)(iii) of this 

section, paragraphs (a)(3)(ii)(B)(1), (2), 

and (3) of this section shall apply. 

(1) In lieu of any outstanding 

obligation to submit an attainment 

demonstration, within 1 year after the 

date on which EPA publishes a 

determination that a violation of the 8-

hour NAAQS has occurred, the State 

must submit (or revise a submitted) 

maintenance plan for the 8-hour 

NAAQS, as provided under paragraph 

(a)(3)(iii) of this section, to—

(i) Address the violation by relying on 

modeling that meets EPA guidance for 

purposes of demonstrating maintenance 

of the NAAQS; or 

(ii) Submit a SIP providing for a 3 

percent increment of emissions 

reductions from the area’s 2002 

emissions baseline; these reductions 

must be in addition to measures (or 

enforceable commitments to measures) 

in the SIP at the time of the effective 

date of designation and in addition to 

national or regional measures. 

(2) The plan required under paragraph 

(a)(3)(ii)(B)(1) of this section must 

provide for the emission reductions 

required within 3 years after the date on 

which EPA publishes a determination 

that a violation of the 8-hour NAAQS 

has occurred. 

(3) The State shall submit an ROP 

plan to achieve any outstanding ROP 

reductions that were required for the 

area for the 1-hour NAAQS, and the 3-

year period or periods for achieving the 

ROP reductions will begin January 1 of 

the year following the 3-year period on 

which EPA bases its determination that 

a violation of the 8-hour NAAQS 

occurred. 

(iii) Maintenance plans for the 8-hour 

NAAQS. For areas initially designated 

attainment for the 8-hour NAAQS, and 

designated nonattainment for the 1-hour 

NAAQS at the time of designation for 

the 8-hour NAAQS, the State shall 

submit no later than 3 years after the 

area’s designation for the 8-hour 

NAAQS, a maintenance plan for the 8-

hour NAAQS in accordance with 

section 110(a)(1) of the CAA. The 

maintenance plan must provide for 

continued maintenance of the 8-hour 

NAAQS for 10 years following 

designation and must include 

contingency measures. This provision 

does not apply to areas redesignated 

from nonattainment to attainment for 

the 8-hour NAAQS pursuant to CAA 

section 107(d)(3); such areas are subject 

to the maintenance plan requirement in 

section 175A of the CAA. 

(4) 8-Hour NAAQS Attainment/1–

Hour NAAQS Maintenance—(i) 

Obligations in an approved SIP. For an 

8-hour NAAQS attainment/1-hour 

NAAQS maintenance area, the State 

may request that obligations under the 

applicable requirements of § 51.900(f) be 

shifted to contingency measures, 

consistent with sections 110(l) and 193 

of the CAA, after revocation of the 1-

hour NAAQS; however, the State cannot 

remove the obligations from the SIP. 

(ii) Maintenance Plans for the 8-hour 

NAAQS. For areas initially designated 

attainment for the 8-hour NAAQS and 

subject to the maintenance plan for the 

1-hour NAAQS at the time of 

designation for the 8-hour NAAQS, the 

State shall submit no later than 3 years 

after the area’s designation for the 8-

hour NAAQS, a maintenance plan for 

the 8-hour NAAQS in accordance with 

section 110(a)(1) of the CAA. The 

maintenance plan must provide for 

continued maintenance of the 8-hour 

NAAQS for 10 years following 

designation and must include 

contingency measures. This provision 

does not apply to areas redesignated 

from nonattainment to attainment for 

the 8-hour NAAQS pursuant to section 

107(d)(3); such areas are subject to the 

maintenance plan requirement in 

section 175A of the CAA. 

(b) Does attainment of the ozone 

NAAQS affect the obligations under 

paragraph (a) of this section? A State 

remains subject to the obligations under 

paragraphs (a)(1)(i) and (a)(2) of this 

section until the area attains the 8-hour 

NAAQS. After the area attains the 8-

hour NAAQS, the State may request 

such obligations be shifted to 

contingency measures, consistent with 

sections 110(l) and 193 of the CAA; 

however, the State cannot remove the 

obligations from the SIP. 

(c) Which portions of an area 

designated for the 8-hour NAAQS 

remain subject to the obligations 

identified in paragraph (a) of this 

section? (1) Except as provided in 

paragraph (c)(2) of this section, only the 

portion of the designated area for the 8-

hour NAAQS that was required to adopt 

the applicable requirements in 

§ 51.900(f) for purposes of the 1-hour 

NAAQS is subject to the obligations 

identified in paragraph (a) of this 

section, including the requirement to 

submit a maintenance plan for purposes 

of paragraph (a)(3)(iii) of this section. 40 

CFR Part 81, Subpart E identifies the 

boundaries of areas and the area 

designations and classifications for the 

1-hour NAAQS at the time the 1-hour 

NAAQS no longer applied to each area.

(2) For purposes of paragraph 

(a)(1)(ii)(B) and (C) of this section, the 

requirement to achieve emission 

reductions applies to the entire area 

designated nonattainment for the 8-hour 

ozone NAAQS. 

(d) [Reserved] 

(e) What obligations that applied for 

the 1-hour NAAQS will no longer apply 

after revocation of the 1-hour NAAQS 

for an area?—(1) Maintenance plans.

Upon revocation of the 1-hour NAAQS, 

an area with an approved 1-hour 

maintenance plan under section 175A of 

the CAA may modify the maintenance 

plan: To remove the obligation to 

submit a maintenance plan for the 1-

hour NAAQS 8 years after approval of 

the initial 1-hour maintenance plan; and 

to remove the obligation to implement 

contingency measures upon a violation 

of the 1-hour NAAQS. However, such 

requirements will remain enforceable as 

part of the approved SIP until such time 

as EPA approves a SIP revision 

removing such obligations. The EPA 

shall not approve a SIP revision 

requesting these modifications until the 

State submits and EPA approves an 

attainment demonstration for the 8-hour 

NAAQS for an area initially designated 

nonattainment for the 8-hour ozone 

NAAQS or a maintenance SIP for the 8-

hour NAAQS for an area initially 

designated attainment for the 8-hour 

NAAQS. Any revision to such SIP must 

meet the requirements of section 110(l) 

and 193 of the CAA. 

(2) Findings of failure to attain the 1-

hour NAAQS. (i) Upon revocation of the 

1-hour NAAQS for an area, EPA is no 

longer obligated—

(A) To determine pursuant to section 

181(b)(2) or section 179(c) of the CAA 

24000 Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules and Regulations 

whether an area attained the 1-hour 

NAAQS by that area’s attainment date 

for the 1-hour NAAQS; or 

(B) To reclassify an area to a higher 

classification for the 1-hour NAAQS 

based upon a determination that the 

area failed to attain the 1-hour NAAQS 

by the area’s attainment date for the 1-

hour NAAQS. 

(ii) In addition, the State is no longer 

required to impose under CAA sections 

181(b)(4) and 185 fees on emissions 

sources in areas classified as severe or 

extreme for failure to meet the 1-hour 

attainment date. 

(3) Conformity determinations for the 

1-hour NAAQS. Upon revocation of the 

1-hour NAAQS for an area, conformity 

determinations pursuant to section 

176(c) of the CAA are no longer required 

for the 1-hour NAAQS. At that time, any 

provisions of applicable SIPs that 

require conformity determinations in 

such areas for the 1-hour NAAQS will 

no longer be enforceable pursuant to 

section 176(c)(5) of the CAA.

(4) Nonattainment area new source 

review under the 1-hour NAAQS. (i) 

Upon revocation of the 1-hour ozone 

NAAQS, for any area that was 

designated nonattainment for the 1-hour 

ozone NAAQS, the area’s 

implementation plan provisions 

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

the CAA (including provisions 

satisfying section 182) based on the 

area’s previous 1-hour ozone NAAQS 

classification are no longer required 

elements of an approvable 

implementation plan. Instead, the area’s 

implementation plan must meet the 

requirements contained in paragraphs 

(e)(4)(ii) through (e)(4)(iv) of this 

section. 

(ii) If the area is designated 

nonattainment for the 8-hour ozone 

NAAQS, the implementation plan must 

include requirements to implement the 

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

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

ozone NAAQS classification under part 

81 of this chapter, and the provisions of 

§ 51.165. 

(iii) If the area is designated 

attainment or unclassifiable for the 8-

hour ozone NAAQS, the area’s 

implementation plan must include 

provisions to implement the provisions 

of section 165 of the CAA, and the 

provisions of § 51.166 of this part, 

unless the provisions of § 52.21 of this 

chapter apply in such area. 

(iv) If the area is designated 

attainment or unclassifiable but is 

located in an Ozone Transport Region, 

the area’s implementation plan must 

include provisions to implement, 

consistent with the requirements in 

section 184 of the CAA, the 

requirements of sections 172(c) and 173 

of the CAA as if the area is classified as 

moderate nonattainment for the 8-hour 

ozone NAAQS. 

(f) What is the continued applicability 

of the NOX SIP Call after revocation of 

the 1-hour NAAQS? The NOX SIP Call 

shall continue to apply after revocation 

of the 1-hour NAAQS. Control 

obligations approved into the SIP 

pursuant to 40 CFR 51.121 and 51.122 

may be modified by the State only if the 

requirements of §§ 51.121 and 51.122, 

including the statewide NOX emission 

budgets, continue to be met and the 

State makes a showing consistent with 

section 110(l) of the CAA.

§ 51.906 [Reserved]

§ 51.907 For an area that fails to attain the 

8-hour NAAQS by its attainment date, how 

does EPA interpret sections 172(a)(2)(C)(ii) 

and 181(a)(5)(B) of the CAA? 

For purposes of applying sections 

172(a)(2)(C) and 181(a)(5) of the CAA, 

an area will meet the requirement of 

section 172(a)(2)(C)(ii) or 181(a)(5)(B) of 

the CAA pertaining to 1-year extensions 

of the attainment date if: 

(a) For the first 1-year extension, the 

area’s 4th highest daily 8-hour average 

in the attainment year is 0.084 ppm or 

less. 

(b) For the second 1-year extension, 

the area’s 4th highest daily 8-hour 

value, averaged over both the original 

attainment year and the first extension 

year, is 0.084 ppm or less. 

(c) For purposes of paragraphs (a) and 

(b) of this section, the area’s 4th highest 

daily 8-hour average shall be from the 

monitor with the highest 4th highest 

daily 8-hour average of all the monitors 

that represent that area.

§ 51.908 What is the required timeframe 

for obtaining emission reductions to ensure 

attainment by the attainment date? 

For each nonattainment area, the State 

must provide for implementation of all 

control measures needed for attainment 

no later than the beginning of the 

attainment year ozone season.

§§ 51.909–51.916 [Reserved]

PART 81—DESIGNATION OF AREAS 

FOR AIR QUALITY PLANNING 

PURPOSES

■ 5. The authority citation for Part 81 

continues to read as follows:

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

■ 6. Part 81 is amended by adding and 

reserving a new subpart E to read as 

follows:

Subpart E—Identification of Area 

Designations and Classifications for 

the 1-Hour Ozone NAAQS as of June 

15, 2004 [Reserved]

[FR Doc. 04–9153 Filed 4–29–04; 8:45 am] 

BILLING CODE 6560–50–P