Monday,

June 2, 2003

Part II

Environmental 

Protection Agency

40 CFR Part 51

Proposed Rule To Implement the 8-Hour 

Ozone National Ambient Air Quality 

Standard; Proposed Rule

32802 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 51

[FRL–7504–2] 

RIN: 2060–AJ99

Proposed Rule To Implement the 8-

Hour Ozone National Ambient Air 

Quality Standard

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Proposed rulemaking.

SUMMARY: In this document, EPA is 

proposing two discrete frameworks to 

implement the 8-hour ozone national 

ambient air quality standard (NAAQS or 

standard). We are proposing this rule so 

that States may know which statutory 

requirements apply for purposes of 

developing State implementation plans 

(SIPs) under the Clean Air Act (CAA) to 

implement the 8-hour ozone NAAQS. 

The intended effect of the rule is to 

provide certainty to States regarding 

their planning obligations such that 

States may begin SIP development upon 

designation and classification for the 8-

hour standard. Following are the 

principles that guided us in the 

development of these frameworks to 

implement the 8-hour ozone standard: 

To protect public health, provide 

incentives for expeditious attainment of 

the 8-hour ozone standard and avoid 

incentives for delay; to provide 

reasonable but expeditious attainment 

deadlines; to have a basic, 

straightforward structure that can 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. In addition, we intend to 

clarify the role of Tribes in 

implementing the 8-hour ozone 

NAAQS. 

The two frameworks we are proposing 

are based on two different classification 

options, which affect the requirements 

that would apply to individual 

nonattainment areas. We prefer 

classification option 2 because it 

provides more flexibility to States and 

Tribes as they address their unique air 

quality problems. This is likely to allow 

some areas to attain the standard at a 

lower cost. However, we are also 

soliciting comments on option 1, in part 

because it is less complex and may be 

easier to communicate, as well as on 

other ways to classify nonattainment 

areas.

This proposed rulemaking does not 

propose to establish attainment/

nonattainment designations nor does it 

address the principles that will be 

considered in the designation process; 

we have already issued guidance on the 

principles that States should consider in 

making designation recommendations, 

and we will issue further guidance 

separate from this rulemaking if 

appropriate. Finally, we are not taking 

comment at this time on appropriate 

tests under the 8-hour standard for 

demonstrating conformity of Federal 

actions to SIPs. We intend to conduct a 

separate rulemaking on this issue prior 

to designating areas under the 8-hour 

ozone standard. 

In this proposal, we do not yet 

propose regulatory text, primarily 

because a number of options are being 

proposed for many of the 

implementation elements, and we 

believe it would be better to obtain 

public comment on the options 

conceptually first. After we receive and 

consider comment on the proposed 

options, but before publishing a final 

rule, we will issue proposed regulatory 

text.

DATES: Comments must be received on 

or before August 1, 2003. We have 

scheduled public hearings on this 

proposal for June 17, 2003, June 19, 

2003, and June 27, 2003.

ADDRESSES: All comments should be 

submitted to Docket #OAR 2003–0079. 

When mailing documents, comments, or 

requests to the EPA Docket Center 

through the U.S. Postal Service, please 

use the following address: U.S. 

Environmental Protection Agency, EPA 

West (Air Docket), 1200 Pennsylvania 

Avenue, NW., Room: B108; Mail Code: 

6102T, Washington, DC 20460. To mail 

comments or documents through a 

courier service, the mailing address is: 

EPA Docket Center (Air Docket), U.S. 

Environmental Protection Agency, 1301 

Constitution Avenue, NW., Room: B108; 

Mail Code: 6102T, Washington, DC 

20460. The normal business hours are 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays. 

Comments can be submitted to the 

address above, by fax (202) 566–1741, or 

by e-mail to A-and-R-Docket@epa.gov.

The voice telephone number is (202) 

566–1742. In addition, we have placed 

a variety of materials regarding 

implementation options on the Web 

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

ozone/o3imp8hr. While this Web site is 

not an exact duplicate of the Air Docket, 

we have placed materials that we have 

generated and materials that have been 

submitted in an electronic format on the 

Web site. We request that comments be 

submitted by e-mail to facilitate 

expeditious distribution within EPA 

and placement on the Web site. 

The public hearings will be held from 

8:30 a.m. to 5 p.m. at the following 

locations: Marriott Dallas/Ft. Worth 

Airport North, 8440 Freeport Parkway, 

Irving, Texas, 75063, on June 17, 2003; 

Palace Hotel, 2 New Montgomery Street, 

San Francisco, California 94105, on June 

19, 2003; and Holiday Inn Select Old 

Town Alexandria, 480 King Street, 

Alexandria, Virginia 22314, on June 27, 

2003. Persons wishing to speak at the 

public hearings should contact: Ms. 

Barbara Bauer, E. H. Pechan, at phone 

number (919) 493–3144 ext. 188 or by 

e-mail at barbara.bauer@pechan.com.

Oral testimony may be limited to 3 to 

5 minutes depending on the number of 

people who sign up to speak. 

Commenters may also supplement their 

oral testimony with written comments. 

The hearing will be limited to the 

subject matter of the proposal, the scope 

of which is discussed below. The public 

hearing schedule, including lists of 

speakers, will be posted on EPA’s Web 

site at http://www.epa.gov/ttn/naaqs/

ozone/o3imp8hr. A verbatim transcript 

of the hearing and written statements 

will be made available for copying 

during normal working hours at the 

Office of Air and Radiation Docket and 

Information Center at the above address 

listed for inspection of documents.

FOR FURTHER INFORMATION CONTACT: Mr. 

John Silvasi, Office of Air Quality 

Planning and Standards, U.S. 

Environmental Protection Agency, Mail 

Code C539–02, Research Triangle Park, 

NC 27711, phone number (919) 541–

5666 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 or by email at: gerth.denise@epa.gov.

SUPPLEMENTARY INFORMATION: This 

notice uses a number of acronyms and 

terms that are defined when first used. 

A list appears in appendix D for 

convenience. 

In a number of places, this document 

refers to time periods (e.g., so many 

years) after designation or after the 

designation date. By this, we mean the 

effective date of designation by EPA.

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32803

Outline 

I. What is the 8-hour ozone problem and 

EPA’s strategy for addressing it? 

A. What is the ozone standard and the 

health problem? 

B. What is the geographic extent of the 8-

hour ozone problem? 

C. What is EPA’s overall strategy for 

reducing ozone pollution? 

1. The SIP system 

2. National rule 

D. What is the relationship between the SIP 

system proposed and the proposed Clear 

Skies legislation? 

II. What is the background on the 8-hour 

ozone standard? 

A. What is the legal background? 

B. What technical work influenced EPA’s 

implementation approach? 

III. How did EPA obtain stakeholder input for 

this effort? 

IV. What is EPA’s schedule for issuing an 8-

hour ozone implementation rule? 

V. In short, what does this proposed 

rulemaking contain? 

A. Classification of areas 

B. Attainment deadlines 

C. Transition from the 1-hour to the 8-hour 

standard 

D. Mandatory measures 

E. Consequences of failure to attain 

F. Interstate transport 

G. Modeling and attainment demonstration 

H. Reasonable Further Progress (RFP) 

1. Requirement for 15 percent VOC 

reductions for moderate and above areas 

during the first 6 years after the base year 

2. Base year 

I. Reasonably available control measures/

Reasonably available control technology 

(RACM/RACT) 

J. Conformity 

K. New Source Review 

VI. What are EPA’s proposed frameworks for 

implementing the 8-hour ozone 

standard? 

A. How will EPA reconcile subparts 1 and 

2? How will EPA classify nonattainment 

areas for the 8-hour standard? What 

attainment dates would apply? 

1. Statutory framework and Supreme Court 

decision 

2. EPA’s development of options 

3. Options for classification 

4. Under classification option 2, how 

would EPA classify subpart 1 areas? 

5. Rationale for regulating all ‘‘gap’’ areas 

under subpart 1 only 

6. Proposed incentive feature 

7. Other options EPA considered 

8. Implications for the options 

9. Other considerations 

B. How will EPA treat attainment dates and 

other dates including SIP submittal dates 

for the 8-hour ozone standard? 

1. Background 

2. How will EPA address the provision 

regarding 1-year extensions? 

3. How do attainment dates apply to Indian 

country? 

4. How will EPA establish attainment dates 

for areas classified as marginal under the 

‘‘incentive’’ feature proposed under the 

classification section or areas covered 

under subpart 1 with a requested 

attainment date of 3 years or less after 

the designation date? 

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? 

1. Background 

2. When will EPA revoke the 1-hour 

standard? 

3. What obligations should continue to 

apply as an area begins to implement the 

8-hour ozone NAAQS and what 

obligations should no longer apply? 

4. Does the requirement for continued 

implementation of the obligations 

addressed above expire at some point? 

5. How will EPA ensure that the public 

knows which areas must continue 

provisions under the 1-hour SIPs if EPA 

revokes the 1-hour standard? 

D. Should prescribed requirements of 

subpart 2 apply in all 8-hour 

nonattainment areas classified under 

subpart 2, or is there flexibility in 

application in certain narrowly defined 

circumstances? 

1. Background 

2. Approach being proposed 

3. Other approaches considered 

E. What is the required timeframe for 

obtaining emissions reductions to ensure 

attainment by the attainment date? 

F. How will EPA address long-range 

transport of ground-level ozone and its 

precursors when implementing the 8-

hour ozone standard? 

1. Background 

2. EPA’s anticipated approach 

3. Other concerns about transport 

4. Other options considered 

G. How will EPA address transport of 

ground-level ozone and its precursors for 

rural nonattainment areas, multi-State 

nonattainment areas, areas affected by 

intrastate transport, and international 

transport? 

1. Rural transport nonattainment areas 

2. Multi-state nonattainment areas 

3. Intrastate transport 

4. International transport 

5. Additional ways of addressing transport 

6. State-Tribal transport 

H. How will EPA address requirements for 

modeling and attainment demonstration 

SIPs when implementing the 8-hour 

ozone standard?

1. Multi-pollutant assessments (oneatmosphere modeling) 

2. Areas with early attainment dates 

3. Areas with later attainment dates 

4. Modeling guidance 

5. Mid-Course review 

I. What requirements for RFP should apply 

under the 8-hour ozone standard? 

1. Background 

2. Proposed features in general 

3. For subpart 2 areas, should the initial 15 

percent RFP requirement be limited to 

VOC emissions? 

4. What baseline year should be required 

for the emission inventory for the RFP 

requirement? 

5. Should moderate areas be subject to 

prescribed additional RFP requirements 

prior to their attainment date? 

6. What is the timing of the submission of 

the ROP plan? 

7. How should CAA restrictions on 

creditable measures be interpreted? 

Which national measures should count 

as generating emissions reductions credit 

toward RFP requirements? 

8. For areas covered by subpart 1 instead 

of subpart 2, how should the RFP 

requirement be structured? 

9. How should the RFP requirements be 

implemented for areas designated for the 

8-hour ozone standard that entirely or in 

part encompass an area that was 

designated nonattainment for the 1-hour 

ozone standard? 

10. Will EPA’s ‘‘Clean Data Policy’’

continue to apply under the 8-hour 

standard for RFP? 

11. How will RFP be addressed in Tribal 

areas? 

12. How will RFP targets be calculated? 

J. Are contingency measures required in 

the event of failure to meet a milestone 

or attain the 8-hour ozone NAAQS? 

1. Background 

2. Proposal 

K. What requirements should apply for 

RACM and RACT for 8-hour ozone 

nonattainment areas? 

1. Background 

2. Proposed approach for RACT in general 

for areas covered under subpart 2 

3. Proposed approach for RACT in general 

for areas covered under subpart 1 

4. Proposed approach for previous sourcespecific major source RACT 

determinations 

5. Proposed approach for NOX RACT 

determinations in areas affected by the 

NOX SIP Call 

6. Proposed approach for NOX as an ozone 

precursor 

7. Proposed approach for RACM 

8. Proposed submission date for RACT and 

RACM requirements 

L. How will the section 182(f) NOX

provisions be handled under the 8-hour 

ozone standard? 

M. What aspects of transportation 

conformity and the 8-hour ozone 

standard are addressed in this proposal? 

1. What is transportation conformity? 

2. Why is EPA discussing transportation 

conformity in this proposed rulemaking? 

3. Are any changes being made to 

transportation conformity in this 

proposed rulemaking? 

4. When does transportation conformity 

apply to 8-hour ozone nonattainment 

areas? 

5. How does the 1-year grace period apply 

in metropolitan areas? 

6. How does the 1-year grace period apply 

in ‘‘donut’’ areas? 

7. How does the 1-year grace period apply 

in isolated rural areas? 

8. Does conformity apply for the 1-hour 

ozone standard once the 1-hour ozone 

standard is revoked? 

9. What are EPA’s plans for amending the 

conformity rule to address the 8-hour 

ozone standard? 

10. What impact will the implementation 

of the 8-hour ozone standard have on a 

State’s Transportation Conformity SIP? 

11. What other parts of this proposal could 

affect transportation conformity 

determinations? 

32804 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

1 Due to the continued litigation over the 8-hour 

standard, EPA revised 40 CFR 50.9(b) in July 2000, 

to limit its authority to revoke the 1-hour standard 

until such time as the 8-hour standard became fully 

enforceable and no longer subject to legal challenge. 

(65 FR 45182, July 20, 2000).

N. What requirements for General 

Conformity should apply to the 8-hour 

ozone standard? 

1. What is the purpose of the General 

Conformity regulations? 

2. How is the General Conformity program 

currently structured? 

3. Who runs the General Conformity 

program? 

4. How does an agency demonstrate 

conformity? 

5. General Conformity regulation revisions 

for the 8-hour ozone standard 

6. How does the 1-year grace period apply 

to General Conformity determinations?

O. How should the NSR Program be 

implemented under the 8-hour ozone 

NAAQS? 

1. Background 

2. Nonattainment NSR under the 8-hour 

ozone standard 

3. Under what circumstances is a 

transitional program needed during the 

interim period? 

4. Elements of the Appendix S transitional 

program 

5. Will a State be required to assure that 

the increased emissions from a new 

major source do not cause or contribute 

to a violation in a nearby nonattainment 

area before it issues a preconstruction 

permit under Appendix S? 

6. What happens at the end of the interim 

period? 

7. What is the legal basis for providing this 

transitional program? 

8. How should the NSR requirements be 

implemented for new 8-hour ozone areas 

that encompass the old 1-hour ozone 

nonattainment areas after EPA revokes 

the 1-hour ozone standard? 

9. NSR option to encourage development 

patterns that reduce overall emissions—

Clean Air Development Communities 

10. Tribal concerns 

P. How will EPA ensure that the 8-hour 

ozone standard will be implemented in 

a way which allows an optimal mix of 

controls for ozone, PM2.5, and regional 

haze? 

1. Could an area’s 8-hour ozone strategy 

affect its PM2.5 and/or regional haze 

strategy? 

2. What guidance has EPA provided 

regarding ozone, PM2.5 and regional haze 

interaction? 

3. What is EPA proposing? 

Q. What emission inventory requirements 

should apply under the 8-hour ozone 

NAAQS? 

R. What guidance should be provided that 

is specific to Tribes? 

S. What are the requirements for Ozone 

Transport Regions (OTRs) under the 8-

hour ozone standard? 

T. Are there any additional requirements 

related to enforcement and compliance? 

U. What requirements should apply to 

emergency episodes? 

V. What ambient monitoring requirements 

will apply under the 8-hour ozone 

NAAQS? 

W. When will EPA require 8-hour 

attainment demonstration SIP 

submissions?

1. Background 

2. Option being proposed 

VII. Proposal of integrated frameworks using 

various options 

VIII. Other Considerations 

A. Will EPA be contemplating incentives 

for areas that want to take early action 

for reducing ozone under the 8-hour 

standard? 

1. What are the Ozone Flex Guidelines for 

the 1-hour ozone NAAQS? 

2. What is the ‘‘Early Action Compact’’ for 

implementing the 8-hour ozone NAAQS? 

3. What is EPA’s response to the Texas 

‘‘Early Action Compact?’’

4. Did EPA consider other options for 

incentives for areas that take early 

actions for reducing ozone? 

5. What is the difference between the early 

action compact program and the 

transitional NSR program? 

B. Clarification of how transition from 1-

hour to 8-hour standard will work for 

early action compact areas, for 

conformity, and for NSR and PSD. 

C. How will EPA’s proposal affect funding 

under the Congestion Mitigation and Air 

Quality Improvement (CMAQ) Program? 

D. Are there any environmental impact 

differences between the two major 

classification options being proposed? 

IX. 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

X. Appendices 

Appendix A—Comparison of Subpart 1 & 

2 Requirements 

Appendix B—‘‘Applicable Requirements’’

under Subpart 2 

Appendix C—Comparison of Transitional 

NSR and Early Action Compact Programs 

Appendix D—Glossary of Terms and 

Acronyms 

Appendix E—Application of Conformity, 

New Source Review and Prevention of 

Significant Deterioration under Various 

Transition Cases

I. What Is the 8-Hour Ozone Problem 

and EPA’s Strategy for Addressing it? 

A. What Is the Ozone Standard and the 

Health Problem? 

Ground-level ozone pollution is 

formed by the reaction of volatile 

organic compounds (VOC) and nitrogen 

oxides (NOX) in the atmosphere in the 

presence of sunlight. These two 

pollutants, often referred to as ozone 

precursors, are emitted by many types of 

pollution sources, including on-road 

and off-road motor vehicles and 

engines, power plants and industrial 

facilities, and smaller ‘‘area’’ sources. 

In 1979, we promulgated the 0.12 

ppm, 1-hour ozone standard, (44 FR 

8202, February 8, 1979). On July 18, 

1997, we promulgated a revised 

standard of 0.08 ppm, measured over an 

8-hour period (i.e., the 8-hour standard). 

In general, the 8-hour standard is more 

protective of public health and more 

stringent than the 1-hour standard, and 

there are more areas that do not meet 

the 8-hour standard than there are areas 

that do not meet the 1-hour standard. At 

the time that we promulgated the 

revised 8-hour standard, we also 

promulgated a rule providing for the 

phase-out of the 1-hour standard, (62 FR 

38856 (codified at 50.9(b)). That rule 

provided that the 1-hour standard 

would no longer apply to an area once 

we determined that the area had 

attained the 1-hour standard.1

Ozone can irritate the respiratory 

system, causing coughing, throat 

irritation, and/or uncomfortable 

sensation in the chest. Ozone can 

reduce lung function and make it more 

difficult to breathe deeply, and 

breathing may become more rapid and 

shallow than normal, thereby limiting a 

person’s normal activity. Ozone also can 

aggravate asthma, leading to more 

asthma attacks that require a doctor’s 

attention and/or the use of additional 

medication. In addition, ozone can 

inflame and damage the lining of the 

lungs, which may lead to permanent 

changes in lung tissue, irreversible 

reductions in lung function, and a lower 

quality of life if the inflammation occurs 

repeatedly over a long time period 

(months, years, a lifetime). People who 

are particularly susceptible to the effects 

of ozone include children and adults 

who are active outdoors, people with 

respiratory disease, such as asthma, and 

people with unusual sensitivity to 

ozone. 

More detailed information on health 

effects of ozone can be found at the 

following Web site: http://www.epa.gov/

ttn/naaqs/standards/ozone/

s_o3_index.html. 

The focus of today’s proposed rule is 

implementation of the revised 8-hour 

ozone air quality standard issued by 

EPA in 1997, including the transition 

from implementation of the 1-hour 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32805

2See discussion below on how EPA has 

developed hypothetical nonattainment areas for 

purposes of analysis of this proposed rulemaking 

and options. Modeling analyses for projections to 

2007 are found in: U.S. Environmental Protection 

Agency, Office of Air and Radiation, Technical 

Support Document for the Heavy-Duty Engine and 

Vehicle Standards and Highway Diesel Fuel Sulfur 

Control Requirements: Air Quality Modeling 

Analyses. EPA420–R–00–028. December 2000. 

Located at: http://www.epa.gov/otaq/regs/hd2007/

frm/r00028.pdf.

Information on the modeling analyses for 

projections to 2010 and 2020 are found in 

‘‘Technical Addendum: Methodologies for the 

Benefit Analysis of the Clear Skies Initiative.’’

September 2002. This can be found at the following 

Web site: http://www.epa.gov/clearskies/

Tech_adden.PDF. Results are summarized in 

‘‘Human Health and Environmental Benefits 

Achieved by the Clear Skies Initiative.’’ July 1, 

2002. http://www.epa.gov/clearskies/

CSIhealth_env_benefits7-01.ppt.

3Latest Findings on National Air Quality—2001 

Status and Trends. U.S. EPA; Office of Air Quality 

Planning and Standards; Emissions, Monitoring and 

Analysis Division; Research Triangle Park, NC. 

September 2002. EPA 454/K–02–001. Found at: 

http://www.epa.gov/airtrends/ozone.html.

standard to implementation of the 8-

hour standard.

B. What Is the Geographic Extent of the 

8-hour Ozone Problem? 

Although the nation as a whole has 

made significant progress since 1970 in 

reducing ground-level ozone pollution 

(sometimes called ‘‘smog’’), ozone 

remains a significant public health 

concern. At present, unhealthy ozone 

levels—exceeding the 8-hour standard—

occur over wide geographic areas 

including most of the nation’s major 

population centers. These areas include 

much of the eastern half of the United 

States and large areas of California. 

The geographic extent of the 8-hour 

ozone problem is expected to shrink 

between now and 2020 due to existing 

regulatory requirements. We estimate 

that existing control measures (e.g., 

Federal motor vehicle standards, EPA’s 

regional NOX rule known as the NOX

SIP Call, and local measures already 

adopted under the CAA) will 

dramatically reduce the number of 

areas 2 not attaining the 8-hour ozone 

standard—from 122 in 2000 (using data 

from 1998, 1999, and 2000), to 51 in 

2007, to 30 in 2010 and 13 in 2020. See 

Table 1 below.

The total population living in areas 

that we have hypothesized may be 

designated nonattainment is also 

projected to decline over time—from 

178 million in 2000, to 143 million in 

2007, to 116 million in 2010, to 82 

million in 2020. However, the number 

of people living in areas with excessive 

ozone levels remains high for the 

foreseeable future because existing 

control programs alone will not 

eliminate unhealthy ozone levels in 

some of the nation’s largest population 

centers. 

Based on information in EPA’s Trends 

Report issued in 2002,3 over the past 20 

years, national ambient ozone levels 

decreased 18 percent based on 1-hour 

data and 11 percent based on 8-hour 

data. Between 1982 and 2001, emissions 

of VOCs decreased 16 percent. During 

that same time period, emissions of NOX

increased 9 percent. For the period 1982 

to 2001, the downward trend in 1-hour 

ozone levels seen nationally is reflected 

in every broad geographic area in the 

country. The Northeast and West 

exhibited the most substantial 

improvement over the last 20 years, 

while the South and North Central 

regions experienced the least rapid 

progress in lowering ozone 

concentrations. Similar to the 1-hour 

ozone trends, all regions experienced 

improvements in 8-hour ozone levels 

between 1982 and 2001 except the 

North Central region, which showed 

little change during this period.

TABLE 1.—8-HOUR OZONE HYPOTHETICAL NONATTAINMENT AREAS AND POPULATION

[Projected by modeling] 

2000 2007 2010 2020

Number of areas—base case (without Clear Skies Act controls) ................................................... 122 51 30 13

Number of areas with Clear Skies Act controls .............................................................................. 122 51 24 12

Population (millions)—base case (without Clear Skies Act controls) ............................................. 178 143 116 82.4

Population (millions)—with Clear Skies Act controls ....................................................................... 178 143 103 82.1

Note: The number of areas 1 projected to each future year is based on modeled projections without consideration of application of new emission control measures that would be required under the SIP process for areas designated nonattainment for the 8-hour NAAQS. 1See discussion below on how we have developed hypothetical nonattainment areas for purposes of analysis of this proposed rulemaking and 

options. 

C. What Is EPA’s Overall Strategy for 

Reducing Ozone Pollution? 

Our overall strategy for achieving the 

8-hour ozone standard is based on the 

structure outlined in the CAA. The CAA 

gives both the States and EPA important 

roles in implementing national air 

quality standards. 

States have primary responsibility for 

developing and implementing SIPs that 

contain local and in-State measures 

needed to achieve the air quality 

standards in each area. We assist States 

by providing technical assistance and 

guidance, including guidance on control 

measures. In addition, we set national 

emissions limits for sources such as 

motor vehicles. Where upwind sources 

contribute to downwind problems in 

other States, we can also ensure that the 

upwind States address these 

contributing emissions or regulate them 

federally, where a State fails to act to 

address them. 

We intend to work closely with States 

and Tribes to use an appropriate 

combination of national, regional and 

local pollution reduction measures to 

meet the standard expeditiously and in 

a cost-effective manner. 

1. The SIP System 

States use the SIP process to identify 

the emissions sources that contribute to 

the nonattainment problem in a 

particular area, and to select the 

emissions reductions measures most 

appropriate for that area, considering 

costs and a variety of local factors. 

Under the CAA, SIPs must ensure that 

areas reach attainment as expeditiously 

as practicable. However, other 

programs, such as Federal controls, also 

provide reductions, and States may rely 

on those reductions when developing 

their attainment plans. 

The SIP system for nonattainment 

areas is an important component of the 

CAA’s overall strategy for meeting the 8-

hour ozone standard, but it is not the 

only component. As noted below, the 

CAA also requires or anticipates the use 

of national rules that will reduce 

emissions and help achieve cleaner air. 

2. National Rules 

For the States to be successful in 

developing local plans showing 

attainment of standards, EPA must do 

its part to control the sources that are 

32806 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

4On July 18, 1997, we also promulgated a revised 

particulate matter (PM) standard (62 FR 38652). 

Litigation on the PM standard paralleled the 

litigation on the ozone standard and the court 

issued one opinion addressing both challenges. 

However, issues regarding implementation of the 

revised PM NAAQS were not litigated.

more effectively and efficiently 

controlled at the national level and to 

ensure that interstate transport is 

addressed through SIPs or other means. 

We already have issued key national 

and regional control requirements for 

motor vehicles, power plants and other 

sources that will enable many areas to 

meet the 8-hour standard in the near 

term. 

Current emissions standards for new 

cars, trucks and buses are reducing 

motor vehicle emissions of VOCs 

(sometimes referred to as hydrocarbons) 

and NOX as older vehicles are retired. 

Other rules are reducing emissions from 

several categories of non-road engines. 

EPA’s Tier 2 motor vehicle emission 

standards, together with the associated 

sulfur in gasoline requirements, will 

provide additional benefits nationally 

within the time period of many 8-hour 

ozone nonattainment areas’ anticipated 

attainment dates (65 FR 6698, February 

10, 2000). Also, we published the heavy 

duty diesel rule on January 18, 2001 (66 

FR 5002), which will contribute to 

reductions needed to meet the 8-hour 

ozone standard in areas with later 

attainment dates. 

In the eastern U.S., dramatic 

reductions in NOX emissions from 

power plants and large industrial 

sources will occur by May 2004 under 

our rules to reduce interstate transport 

of ozone pollution in the East. These 

rules are the NOX SIP Call, published 

October 27, 1998 (63 FR 57356), and the 

Section 126 Rule, published January 18, 

2000 (65 FR 2674). 

Also, under the requirements of 

section 183(e) of the CAA, we are 

contemplating either Federal rules or 

control techniques guidelines (CTGs) for 

controlling VOCs from 15 additional 

categories of consumer and commercial 

products. The CTGs assist States in 

determining required controls for 

facilities in nonattainment areas. The 15 

categories are in addition to 6 CTGs 

already published under this provision 

of the CAA (consumer products, 

architectural coatings, automobile 

refinishing coatings, aerospace coatings, 

wood furniture coatings, and 

shipbuilding and ship repair coatings). 

These additional rules or CTGs are 

expected to be completed over the next 

few years. 

Control measures targeting hazardous 

air pollutants (HAPs) also result in 

control of VOCs and, in some cases, 

NOX. Under section 112 of the CAA, 

EPA was required to identify and list 

categories of industrial facilities that 

emit significant quantities of one or 

more of 188 HAPs and establish 

maximum achievable control 

technology (MACT) standards for each 

category of sources. Because most of the 

organic HAPs are also VOCs, in many 

cases, control of organic HAP emissions 

also achieves reductions in VOC 

emissions. 

Rules for most of the listed MACT 

categories have been promulgated. 

Although many of the earlier 

promulgated rules have already resulted 

in emissions reductions of VOCs, the 

more recent rules will not begin 

achieving reductions until the 

compliance date, which is generally 3 

years following promulgation. 

Therefore, the amount of reductions 

achieved through control of HAPs that 

are VOCs will continue to grow over the 

next several years. 

We see the potential for significant 

further emissions reductions from 

power plants and non-road engines at 

the national level. The Administration 

has proposed nationwide legislation, the 

‘‘Clear Skies Act’’ (CSA), to reduce 

power plant emissions of NOX

nationwide, as well as sulfur dioxide 

and mercury. We are also proposing a 

national rule that would significantly 

reduce NOX emissions from non-road 

diesel-powered equipment. These nonroad sources constitute an important 

fraction of the NOX emissions inventory.

D. What Is the Relationship Between the 

SIP System Proposed and the Proposed 

Clear Skies Legislation? 

A basic issue for implementation of 

the 8-hour ozone standard is how to 

treat areas projected to attain the 

standard based on existing controls. We 

believe that an appropriate balance 

should be struck between two goals: 

Avoiding requirements for unnecessary 

additional controls that increase cost, 

and ensuring expeditious attainment to 

protect public health. 

Today’s proposal contains options 

that strive to balance these two goals 

under the authority of current law. The 

proposal contains two options for 

classifying areas under the 8-hour ozone 

standard. Both options contain features 

to ensure that areas projected to attain 

compliance in the near term based on 

existing requirements are not subject to 

additional prescribed control 

obligations. Of course, these areas 

would be subject to the same 

requirements that apply to all areas 

designated nonattainment, such as new 

source review (NSR) and conformity. 

However, we are considering options for 

providing for more flexible 

implementation of these requirements, 

as described elsewhere in this proposed 

rulemaking, and are actually proposing 

an option related to NSR in this 

proposed rulemaking. 

The proposed Clear Skies legislation 

takes a different approach to 

requirements for areas projected to 

attain through controls that are already 

mandated. The proposed CSA includes 

a provision that would create a new 

designation of ‘‘transitional’’ for areas 

that are projected to attain compliance 

by 2015 based on existing controls, or 

with the aid of additional SIP controls 

approved by December 31, 2004. The 

proposed CSA provides that areas 

designated transitional would be subject 

to the requirements of the prevention of 

significant deterioration (PSD) program 

for new sources, which applies in 

attainment areas. Because ‘‘transitional’’

would be the designation for such areas, 

they would not be required to adopt 

additional control measures that would 

be required for areas designated 

nonattainment, nor would they be 

subject to conformity provisions. The 

provision includes a mid-course check 

to ensure that the area remains on-track 

toward attainment. In case of failure to 

attain by 2015, the area would be redesignated as a nonattainment area and 

would be subject to the nonattainment 

area requirements. We expect that most 

areas currently exceeding the 8-hour 

ozone standard could qualify for this 

designation, in many cases, without 

further local controls.

However, because the Clear Skies 

legislation has not been enacted, we 

have not considered it in this proposed 

rulemaking. Should the Clear Skies 

legislation be enacted into law, we 

would conduct further rulemaking on 

implementation of the 8-hour ozone 

standard under such law, if necessary. 

II. What Is the Background on the 8-

Hour Ozone Standard? 

A. What Is the Legal Background? 

On July 18, 1997, we revised the 

ozone NAAQS (62 FR 38856) by 

promulgating an ozone standard of 0.08 

parts per million (ppm) as measured 

over an 8-hour period. At that time, we 

indicated that we believed that the 8-

hour ozone NAAQS should be 

implemented under the less detailed 

requirements of subpart 1 of part D of 

title I of the CAA rather than the more 

detailed requirements of subpart 2. 

Various industry groups and States 

challenged EPA’s final rule 

promulgating the 8-hour ozone NAAQS 

in the U.S. Court of Appeals for the 

District of Columbia Circuit.4 In May 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32807

5The Court addressed a number of other issues, 

which are not relevant here.

6The CAA requires EPA to set ambient air quality 

standards and requires States to submit SIPs to 

implement those standards.

7The EPA’s NOX SIP Call mandated reductions 

by May 2003. However, the Court’s stay of the rule 

pending litigation resulted in a 1-year delay to May 

2004.

1999, the Appeals Court remanded the 

ozone standard to EPA on the basis that 

our interpretation of its authority under 

the standard-setting provisions of the 

CAA resulted in an unconstitutional 

delegation of authority. American 

Trucking Assns., Inc. v. EPA, 175 F.3d 

1027, 1034–1040 (ATA I) aff’d, 195 F.3d 

4 (D.C. Cir., 1999) (ATA II). In addition, 

the Court held that the CAA clearly 

provided for implementation of a 

revised ozone standard under subpart 2, 

not subpart 1. Id. at 1048–1050.5 We 

sought review of these two issues in the 

U.S. Supreme Court. In February 2001, 

the Supreme Court held that EPA’s 

action in setting the NAAQS was not an 

unconstitutional delegation of authority. 

Whitman v. American Trucking Assoc.,

121 S.Ct. 903, 911–914 (2001) 

(Whitman). In addition, the Supreme 

Court held that the D.C. Circuit 

incorrectly determined that the CAA 

was clear in requiring implementation 

only under subpart 2, but determined 

that our implementation approach, 

which did not provide a role for subpart 

2 in implementing the 8-hour NAAQS, 

was unreasonable. Id. at 916–919. 

Specifically, the Court noted we could 

not ignore the provisions of subpart 2 

that ‘‘eliminate[] regulatory discretion’’

allowed by subpart 1. Id. at 918. The 

Court also identified several portions of 

the CAA’s classification scheme under 

subpart 2 that are ‘‘ill-fitted’’ to the 

revised standard and remanded the 

implementation strategy to EPA to 

develop a reasonable approach for 

implementation. Id. Because the D.C. 

Circuit had not addressed all of the 

issues raised in the underlying case, the 

court remanded the case to the D.C. 

Circuit for disposition of those issues. 

Id. at 919. On March 26, 2002, the D.C. 

Circuit Court rejected all remaining 

challenges to the ozone and fine particle 

(PM2.5) standards. American Trucking 

Assoc. v. EPA, 283 F.3d 355 (D.C. Cir. 

2002) (ATA III). With that ruling, EPA 

began to move forward with programs to 

protect Americans from the wide variety 

of health problems that these air 

pollutants can cause, such as respiratory 

illnesses and premature death.

The implementation rule proposed 

herein will provide specific 

requirements for State, local, and Tribal 

air pollution control agencies to address 

as they prepare implementation plans to 

attain and maintain the 8-hour NAAQS. 

Each State with an area that is not 

attaining the 8-hour ozone NAAQS will 

have to develop—as part of its SIP—

emission limits and other requirements 

to attain the NAAQS within the 

timeframes set forth in the CAA.6 Tribes 

with jurisdiction over Tribal lands that 

are not attaining the 8-hour ozone 

standard could voluntarily submit a 

Tribal implementation plan (TIP) but 

would not be required to do so. 

However, in cases where a TIP is not 

submitted, EPA, working with the 

Tribes, would have the responsibility 

for planning in those areas.

B. What Technical Work Influenced 

EPA’s Implementation Approach? 

In developing our original approach 

for implementation of the 8-hour 

standard, we considered input from a 

variety of technical information sources 

and experts. We originally described the 

technical information of the physical 

processes that produce ozone, fine 

particles, and regional haze and relied 

on that in developing a proposed 

implementation approach. See 

‘‘Implementation of New or Revised 

Ozone and Particulate Matter (PM) 

National Ambient Air Quality Standards 

(NAAQS) and Regional Haze 

Regulations; Proposed Rule’’ (December 

13, 1996, 61 FR 65764). We also 

participated with States in the eastern 

United States in the Ozone Transport 

Assessment Group (OTAG), which 

documented that long-distance transport 

of nitrogen oxides across much of the 

OTAG study area contributed to high 

levels of ozone. For background on 

OTAG and the results from the study, 

see the following Web site: http://

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

index.html.

That OTAG process resulted in a 

report to EPA with the conclusions that 

included the following:

—Regional NOX reductions are 

effective in producing ozone 

benefits; the more NOX reduced, the 

greater the benefit. 

—Ozone benefits are greatest where 

emissions reductions are made; 

benefits decrease with distance. 

—Elevated and low-level NOX

reductions are both effective. 

—Volatile organic compound controls 

are effective in reducing ozone 

locally and are most advantageous 

to urban nonattainment areas. 

—Air quality data indicate that ozone 

is pervasive, that ozone is 

transported, and that ozone aloft is 

carried over and transported from 

one day to the next.

As a result of these recommendations, 

EPA called for SIP revisions from 22 

States and the District of Columbia and 

established Statewide budgets on NOX

emissions that those jurisdictions would 

have to meet by 2007. Stationary source 

emissions reductions to meet the 

budgets were required to be 

implemented by May 2004.7 The 

purpose of the rule was to address longrange transport by eliminating the 

significant contribution that each State’s 

NOX emissions made to both 1-hour and 

8-hour ozone nonattainment problems 

in downwind areas. The call for SIP 

revisions was challenged by a number of 

States, industry and interest groups but 

was largely upheld by the court and has 

remained a viable means for obtaining 

significant NOX emissions reductions.

The OTAG report also recognized that 

VOC emissions reductions do not play 

much of a role in long-range transport, 

and concluded that VOC reductions are 

effective in reducing ozone locally and 

are most advantageous to urban 

nonattainment areas. 

Under the Federal Advisory 

Committee Act (FACA), we also formed 

a Subcommittee for Development of 

Ozone, Particulate Matter and Regional 

Haze Implementation Programs that 

provided recommendations and ideas to 

assist us in developing implementation 

approaches for these programs. We have 

incorporated ideas from the FACA 

process for a number of SIP elements, 

particularly those related to transport of 

ozone, the process for demonstrating 

attainment of the ozone standard, and 

requirements for ensuring reasonable 

further progress. Further information on 

the FACA process and its reports is 

found at the following Web site:

http://www.epa.gov/ttn/faca/.

As noted above, we have also 

promulgated national rules that reduce 

VOC and NOX emissions (ozone 

precursors) from mobile and stationary 

sources, which also help address ozone 

nonattainment problems. A number of 

commenters recommended that we set 

additional national standards for more 

source categories such that States and 

Tribes do not have to control these 

sources locally. They suggest that such 

standards would eliminate the 

inconsistent regulation that occurs 

when each nonattainment area chooses 

how to regulate sources within its 

jurisdiction. We continue to review 

source categories for possible Federal 

measure development. 

This technical backdrop led us to be 

guided by the principle of emphasizing 

national and regional measures to help 

areas come into attainment and, where 

possible, reducing the need for those 

32808 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

8Section 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 publish 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 on the standard, whichever 

came first.

9American Lung Association v. EPA (D.D.C. No. 

1:02CV02239).

local controls that are more expensive 

than national and regional measures. 

However, as noted below, national and 

regional measures alone are not 

anticipated to bring all areas into 

attainment. Thus, some areas will need 

to adopt local controls through the SIP 

process. 

III. How Did EPA Obtain Stakeholder 

Input for This Effort? 

We initiated a process to obtain 

stakeholder feedback on options the 

Agency developed for implementation 

of the 8-hour ozone NAAQS. We held 

three public meetings in addition to a 

number of conference calls and 

meetings with State, local and Tribal 

governments, environmental groups and 

industry representatives. (The lists of 

the organizations with whom we had 

discussions are in the docket, in 

addition to meeting and conference call 

summaries.) The purpose of the 

meetings and conference calls was to 

obtain stakeholder feedback regarding 

the options that we had developed as 

well as to listen to any new or different 

ideas that stakeholders were interested 

in presenting. 

We received comments in response to 

the meetings and conference calls. The 

comments from the public meetings 

addressed a number of issues related to 

the implementation approach. 

In addition to comments received at 

the public meetings, we received a 

number of written comments on how to 

implement the 8-hour ozone NAAQS. 

We have considered these comments in 

the implementation approach proposed 

below. 

IV. What Is EPA’s Schedule for Issuing 

an 8-Hour Ozone Implementation Rule?

We plan to issue a final rule on an 

implementation approach by the end 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.8 We have entered into a 

consent decree that requires us to 

promulgate designations by April 15, 

2004.9

The nonattainment designation for an 

area starts the process whereby a State 

must develop a SIP that demonstrates 

how the air quality standard will be 

attained by the attainment dates 

required in the CAA. We plan to have 

an implementation strategy in place 

prior to designating areas for the 8-hour 

ozone standard. This will enable areas 

that are designated nonattainment for 

the 8-hour ozone standard to 

understand the obligations that attach to 

nonattainment designations and 

associated classifications. 

V. In Short, What Does This Proposed 

Rulemaking Contain? 

This summary is intended to give an 

overview of our proposed rule. It should 

not be relied on for the details of the 

actual proposal. The proposed rule 

described in Section VI. below should 

be consulted directly. The order in 

which issues are described in this 

summary does not match exactly the 

order these issues are discussed in the 

actual proposal. 

A. Classification of Areas 

Under the CAA, an ozone 

nonattainment area’s classification 

determines the minimum measures that 

must be included in the area’s SIP for 

meeting the 8-hour standard and the 

maximum time period allowed for the 

area to meet the standard. We are 

proposing two options for classifying 

areas. 

Under option 1, all areas would be 

classified under subpart 2 according to 

8-hour ozone levels. As a result, all 

areas would be classified as marginal, 

moderate, serious, or severe or extreme 

(based on the most recent air quality 

data, no areas would fall in the 

‘‘extreme’’ classification), and would be 

subject to control requirements 

specified in the CAA for each 

classification. 

Under option 2, more than half the 

nonattainment areas would likely be 

regulated under subpart 1. All of these 

would be areas meeting the 1-hour 

ozone standard. The rest of the areas—

those exceeding, and a few that may be 

meeting the 1-hour standard—would be 

classified under subpart 2 in the same 

manner as option 1. 

We are also proposing an ‘‘incentive 

feature’’ that would allow areas to 

qualify for a lower classification under 

subpart 2 than their air quality would 

dictate if they demonstrate they will 

attain by the earlier attainment date of 

a lower classification. For example, an 

area that would be classified 

‘‘moderate’’ could qualify for a 

‘‘marginal’’ classification by showing it 

will attain within 3 years of designation. 

The ‘‘incentive feature’’ is proposed for 

use in conjunction with either 

classification option. 

B. Attainment Deadlines 

We are proposing that for areas 

classified under subpart 2, the periods 

for attainment (running from the date of 

designation/classification) would be 3 

years for marginal areas, 6 years for 

moderate areas, 9 years for serious areas, 

and 15 years for severe-15 areas, and 17 

years for severe-17 areas. 

If classification option 2 were 

selected, some areas would be classified 

under subpart 1. Attainment dates for 

these areas would be no later than 5 

years after designation, although they 

could be extended up to 10 years after 

designation depending on the severity 

of the area’s air pollution and the 

availability and feasibility of pollution 

control measures. 

For all areas, the CAA requires each 

plan to be designed to meet the standard 

as expeditiously as practicable, 

regardless of the maximum statutory 

period specified for attainment. 

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? 

This section discusses which 

obligations would remain in effect for 

areas that were designated 

nonattainment under the 1-hour ozone 

NAAQS on or after November 15, 1990, 

as areas begin to implement the 8-hour 

standard. It also proposes two 

alternatives for revoking the 1-hour 

ozone standard: revocation in whole 

and revocation in part. 

1. Areas designated nonattainment 

under the 8-hour standard. We are 

proposing that all areas designated 

nonattainment for the 8-hour ozone 

NAAQS remain subject to certain 

obligations that applied by virtue of the 

area’s classification for the 1-hour 

standard where the area’s 1-hour 

classification was higher than the area’s 

classification for the 8-hour standard. 

These obligations include major source 

thresholds, inspection and maintenance 

(I/M) programs and fuel programs. 

However, these obligations would not 

apply to portions of an 8-hour ozone 

nonattainment area that was not a part 

of a 1-hour ozone nonattainment area. 

We believe that Congress intended these 

requirements to continue to apply to 

areas as they move forward to address 

an ozone NAAQS. We are soliciting 

comment whether areas that have not 

yet met the attainment demonstration 

obligation for the 1-hour standard 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32809

should remain obligated to submit a 1-

hour ozone attainment demonstration.

2. Areas designated attainment under 

the 8-hour standard. Since attainment 

areas are subject to PSD, not 

nonattainment NSR, we propose that 

these areas would not remain subject to 

the nonattainment NSR offset and major 

source thresholds that might otherwise 

apply due to their classification for the 

1-hour standard. However, we are 

proposing that control obligations that 

applied based on an area’s 1-hour 

classification would remain. We are 

proposing that these areas are obligated 

to submit a maintenance plan under 

section 110(a)(1). Consistent with EPA’s 

‘‘Clean Data Policy,’’ we are proposing 

that these areas not be required to meet 

outstanding attainment demonstration 

and rate-of-progress (ROP) 

requirements, so long as they remain in 

attainment. However, if the area violates 

the 8-hour standard and does not have 

an approved maintenance plan for the 8-

hour standard under section 110(a)(1), 

those obligations will once again apply. 

We are proposing that these areas would 

need contingency measures in their 

section 110(a)(1) maintenance plans. 

However, unlike contingency measures 

under section 175A, these contingency 

measures need not include an obligation 

to implement all control obligations in 

the previously approved SIP. For all 

areas designated attainment for the 8-

hour ozone NAAQS the requirement to 

demonstrate conformity to the 1-hour 

standard would no longer apply once 

the 1-hour standard is revoked or 

determined not to apply for that 

purpose. 

3. Concerning the NOX SIP Call. We 

are proposing that States must continue 

to adhere to the emission budgets 

established by the NOX SIP Call after the 

1-hour standard is revoked in whole or 

in part. Similarly, we are not proposing 

to revoke or modify the section 126 

regulation. 

4. Obligations under part D of title I 

of the CAA that would not continue to 

apply. We are proposing that areas 

would not be obligated to continue to 

demonstrate conformity for the 1-hour 

standard once the 1-year grace period 

for application of conformity for the 8-

hour standard has elapsed. We are also 

proposing that we would no longer 

make findings of failure to attain the 1-

hour standard and, therefore, also 

would not reclassify areas to a higher 

classification for the 1-hour standard 

based on a failure to meet the 1-hour 

standard. 

5. How long would the obligations 

discussed under the 1-hour standard 

last? We are proposing that these 

measures would not expire. However, 

we are proposing two options for when 

the State may relegate these measures to 

contingency measures: Option 1. When 

the area achieves the level of the 1-hour 

ozone standard (even if the area has not 

yet attained the 8-hour standard). 

Option 2. When the area attains the 8-

hour standard and is designated 

attainment (regardless of when, if ever, 

the area attains the 1-hour standard). 

6. Mechanism to effect the transition 

from the 1-hour to the 8-hour standard.

We are proposing 2 mechanisms. For 

both of these mechanisms, we are 

proposing that the revocation of the 1-

hour standard would occur 1 year 

following designations for the 8-hour 

NAAQS. Option 1: Complete revocation 

of the 1-hour standard. Option 2: Partial 

revocation of 1-hour standard. 

D. Mandatory Measures 

We believe that the CAA is clear that 

once an area is classified under subpart 

1 or subpart 2, the area’s State 

implementation plan must contain the 

measures enumerated in the CAA for its 

classification. However, today’s 

proposal contains several features 

intended to provide States with 

flexibility on the measures included in 

SIPs for 8-hour areas. In addition, we 

are proposing to consider case-by-case 

waivers if the applicant can show, 

consistent with case law on this issue, 

that implementing a requirement in a 

particular area would cause ‘‘absurd 

results.’’

E. Consequences of Failure To Attain 

The consequences of failure to attain 

the standard on time are specified by 

the CAA. If an area classified under 

subpart 2 fails to meet the standard by 

its deadline, the CAA requires that the 

area be bumped up to a higher 

classification and adopt a revised plan 

containing the additional measures 

specified by the CAA for that 

classification. If an area classified under 

subpart 1 fails to meet the standard by 

its deadline, the area would be required 

to adopt a new plan demonstrating 

attainment, including any requirement 

mandated by the Administrator. 

F. Interstate Transport 

EPA recognizes that ozone and ozone 

precursors are often transported across 

State boundaries, and that interstate 

transport can make it difficult—or 

impossible—for some States to meet 

their attainment deadlines solely by 

regulating sources within their own 

boundaries. To address this concern, the 

Agency recently adopted two rules (the 

NOX SIP Call and the Section 126 Rule) 

to reduce interstate ozone transport in 

the eastern U.S. These rules were 

developed based on the level of 

reductions needed to address transport 

for both the 1-hour and 8-hour 

standards. For both rules, the 

compliance date for achieving the 

required emissions reductions is May 

31, 2004. Thus, unlike in the past, States 

affected by transport can develop their 

local ozone implementation plans with 

the knowledge that the issue of 

interstate transport has already been 

addressed ‘‘up front.’’

The President recently proposed 

legislation known as the Clear Skies Act 

that, among other things, would further 

reduce interstate transport of ozone and 

NOX (an ozone precursor) from the 

power sector through a cap-and-trade 

program similar to the acid rain 

program. These reductions are beyond 

the levels required under the NOX SIP 

Call and the Section 126 Rule. The Clear 

Skies reductions would enable several 

additional areas to meet the 8-hour 

standard without imposing any 

additional local controls. A number of 

other areas would find it easier to meet 

the 8-hour standard because of the 

additional reductions in power plant 

emissions that would be required under 

Clear Skies. However, the Agency has 

not made a determination that such 

reductions are warranted under the 

transport provisions of the CAA. In 

order to evaluate this issue, the Agency 

intends to investigate the extent, 

severity and sources of interstate ozone 

transport that will exist after the 

existing transport rules are implemented 

in 2004.

G. Modeling and Attainment 

Demonstration 

An attainment demonstration SIP 

includes technical analyses to locate 

and regulate sources of emissions that 

are contributing to violations within 

nonattainment areas. Section 182(a) 

does not require marginal areas, which 

have an attainment date only 3 years 

following designation to perform any 

photochemical grid modeling. We are 

proposing to allow areas with 

attainment dates within 3 years after 

designation—regardless of whether they 

are covered under subpart 1 or 2—to 

rely on existing modeling. Areas with 

later attainment dates (more than 3 

years after designation) would be 

required to do an attainment 

demonstration SIP. Modeling developed 

to support Federal or local controls may 

be used if the application of that 

modeling is consistent with our 

modeling guidance. 

H. Reasonable Further Progress (RFP) 

There are several issues related to the 

Act’s RFP requirements. 

32810 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

1. Requirement for 15 Percent VOC 

Reductions for Moderate and Above 

Areas During the First 6 Years After the 

Base Year 

We are proposing two ways to 

implement the 15 percent requirements 

for moderate-and-above areas to meet 

numerical emissions reductions 

milestones (also known as rate-ofprogress, or ROP, requirements). 

Under the first option, all such areas 

would be required to reduce baseline 

VOC emissions by 15 percent over the 

first 6 years after a baseline year. 

Under the second option, areas that 

previously reduced VOC emissions by 

15 percent as part of implementing the 

1-hour standard would be viewed as 

having already met the requirement. 

Moderate areas meeting this criterion 

would comply with the general subpart 

1 requirement to demonstrate 

‘‘reasonable further progress’’ toward 

meeting the standard. Serious-andabove areas meeting the criterion would 

be required to achieve an 18 percent 

reduction in VOC and/or NOX over the 

first 6 years and 9 percent over 

subsequent 3-year periods until the 

area’s attainment date. 

2. Base Year 

We are proposing 2002 as the baseline 

year, and that the 6-year period for 

reductions would run from January 1, 

2003 until December 31, 2008. We 

propose that States be allowed credit 

toward meeting the ROP requirements 

for all emissions reductions that occur 

after the 2002 base year—including 

reductions from all post-1990 Federal or 

other measures (except those 

specifically excluded under section 

182(b)(1)) of the CAA. We have also 

recently issued a memorandum that sets 

forth 2002 as the baseline year for 

planning purposes. 

We are also proposing options for 

other RFP issues, including: 

• The timing of ROP reductions 

relative to attainment date for moderate 

areas. 

• Timing of submission of ROP plan. 

• CAA requirements for creditability 

of control measures. 

• Subpart 1 RFP. 

• Cases where 8-hr NA area 

encompasses and is larger than current 

1-hr NA area. 

I. RACM/RACT 

In the event classification option 2 is 

selected, we are proposing an 

interpretation of the requirements for 

reasonably available control measures 

(RACM) and reasonably available 

control technology (RACT) for areas 

covered by subpart 1. 

For RACT, for areas with 8-hour 

ozone levels that would place them in 

a moderate or above classification under 

subpart 2, we are proposing two 

options. Under the first option, these 

areas would be required to meet the 

traditional technology-based RACT 

control requirement that are applicable 

to moderate and above areas under 

subpart 2. Under the second option, if 

the area is able to demonstrate 

attainment of the standard as 

expeditiously as practicable with 

emission control measures in the SIP, 

then RACT will be met, and additional 

measures would not be required as 

being reasonably available. 

For subpart 1 areas with 8-hour ozone 

levels that would place them in a 

marginal classification if classified 

under subpart 2, the RACT requirement 

would be similar to that for marginal 

areas covered under subpart 2. This 

RACT approach also would be available 

to areas that qualified for marginal 

status via the incentive feature. 

The RACT requirements for areas 

under subpart 1 would have to be 

submitted within 2 years after an area’s 

nonattainment designation. 

We are proposing that the State does 

not need to perform a RACT analysis for 

sources subject to the State’s emission 

cap-and-trade program where we have 

approved the cap-and-trade program as 

meeting the NOX SIP Call requirements 

and it does not need to submit a new 

NOX RACT SIP for those sources. 

We propose to formally recognize 

NOX, as well as VOC, as an ozone 

precursor, so that RACT for NOX would 

be required for areas classified under 

either subpart 1 or subpart 2 for the 

same kinds of sources covered under the 

1-hour ozone standard. 

For RACM, we propose to continue 

with the same interpretation that we 

have used for implementing the 1-hour 

ozone standard. To show that all RACM 

have been included in the plan, the 

State must show that there are no 

additional measures that are technically 

and economically feasible that will 

advance the attainment date. 

J. Conformity 

No changes to the transportation 

conformity rule are proposed in this 

rulemaking. Transportation conformity 

is discussed in this proposal for 

informational purposes. By statute, 

transportation conformity applies to 8-

hour nonattainment areas 1 year after 

the effective date of an area’s 

designation. Our proposal to revoke the 

1-hour standard 1 year after 8-hour 

ozone area designations means that 

transportation conformity requirements 

under the 1-hour standard would end at 

the same time 8-hour transportation 

conformity requirements begin. We are 

proposing that conformity would not 

apply in 1-hour ozone standard 

maintenance areas after we revoke the 1-

hour ozone standard. 

For the general conformity program, 

which ensures that federal actions will 

not interfere with an area’s air quality 

plan, we are not proposing to revise its 

General Conformity Regulations in this 

rulemaking. We plan to retain the 

existing de minimis emissions levels for 

actions exempt from the rule. Our 

proposal to revoke the 1-hour standard 

one year after 8-hour ozone area 

designations means that general 

conformity requirements under the 1-

hour standard would end at the same 

time 8-hour general conformity 

requirements begin. We are proposing 

that general conformity would not apply 

in 1-hour ozone standard maintenance 

areas after we revoke the 1-hour ozone 

standard. 

K. New Source Review 

We are proposing three options for 

NSR, which could be implemented in 

conjunction with each other: 

1. A ‘‘status quo’’ NSR program under 

which subpart 1 areas would be covered 

by subpart 1 NSR, while subpart 2 areas 

would be covered by subpart 2 NSR. 

2. A more flexible ‘‘Transitional’’ NSR 

program for areas that submit early SIPs 

and that attain early. This program 

would be available to areas covered 

under subpart 1 and that are attaining 

the 1-hour ozone standard. 

3. A ‘‘Clean Air Development 

Community’’ program that would allow 

a more flexible NSR program for areas 

that manage growth in emissionsproducing activities.

VI. What Are EPA’s Proposed 

Frameworks for Implementing the 8-

Hour Ozone Standard? 

As noted above, we originally 

intended to implement the 8-hour ozone 

standard under subpart 1 of part D, title 

I of the CAA. This would have allowed 

areas more flexibility to determine 

whether to regulate NOX, VOC or both 

to address ozone nonattainment. 

As also noted above, however, the 

Supreme Court determined that an 

approach that did not provide for 

classifying areas under subpart 2—and 

thus subjecting those areas to the 

subpart 2 control requirements—in 

implementing the 8-hour standard was 

unreasonable. In structuring a proposed 

implementation rule, we have tried to 

stay as close as possible to the 

principles noted above, particularly 

with regard to seeking flexible ways for 

States to address their 8-hour ozone 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32811

10Additional Options Considered for ‘‘Proposed 

Rule to Implement the 8-Hour Ozone National 

Ambient Air Quality Standard.’’ U.S. 

Environmental Protection Agency, Office of Air 

Quality Planning and Standards, Research Triangle 

Park, NC. March 2003.

11State Implementation Plans; General Preamble 

for the Implementation of Title I of the Clean Air 

Act Amendments of 1990; Proposed Rule.’’ April 

16, 1992 (57 FR 13498 at 13501 and 13510).

problems by avoiding measures that 

may be unreasonable for an area. We 

have spent a large amount of time 

investigating possible legal theories and 

policy options to find flexibility within 

the statute, as interpreted by the 

Supreme Court. We have also had the 

benefit of ideas and recommendations 

from many interested stakeholders, who 

also have spent much time developing 

their own theories and ideas. Based on 

these efforts, we believe that we have 

developed options for an 

implementation program that are 

workable under the constraints of the 

CAA. Nonetheless, we recognize that 

those constraints will still require a 

number of areas to adopt certain control 

measures that may not be as effective as 

others in achieving the 8-hour ozone 

standard. We are soliciting any further 

ideas for addressing this situation. 

To describe our proposed frameworks 

for implementing the 8-hour ozone 

standard, it is necessary to examine all 

the components or elements of the 

process used to implement the standard. 

Therefore, the issues and options that 

we are proposing that deal with the 

aspects of preparing SIPs for the 

standard are presented below 

individually. Following that, we present 

two possible alternative frameworks that 

blend one or more options from each of 

the elements to illustrate how they may 

work in conjunction with each other. 

We are soliciting comment on the 

options presented for the individual 

elements, and also on how the options 

can be grouped into a consolidated 

implementation framework. 

The proposal below describes only 

those options or approaches we are 

proposing. We considered a number of 

other options and approaches for the 

elements discussed below. These other 

options that were considered but are not 

being proposed are described in a 

separate document available in the 

docket.10

A. How Will EPA Reconcile Subparts 1 

and 2? How Will EPA Classify 

Nonattainment Areas for the 8-hour 

Standard? What Attainment Dates 

Would Apply? 

1. 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 national ozone 

air quality standards in nonattainment 

areas. (Both are found in title I, part D.) 

Subpart 1 contains general 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. 

Throughout this proposed 

rulemaking, we repeatedly discuss 

whether an area is subject to the 

planning requirements of subpart 1 or 

subpart 2. This language is convenient 

shorthand for purposes of this proposal. 

Actually, if an area is subject to subpart 

2 requirements, it is also subject to 

subpart 1 requirements. In some cases, 

subpart 1 and subpart 2 requirements 

are inconsistent or overlap. To the 

extent that subpart 2 addresses a 

specific planning obligation, the 

provisions in subpart 2 control. For 

example, under section 182(b), 

moderate areas are subject to 15 percent 

ROP requirements rather than the more 

general RFP requirements of section 

172(c)(2). However, moderate areas 

remain subject to the contingency 

measure requirement of section 

172(c)(9), as that requirement is not 

addressed for moderate areas in subpart 

2. 11

When we published the 8-hour ozone 

standard on July 18, 1997, we indicated 

that we anticipated that States would 

implement that standard under the less 

prescriptive subpart 1 requirements. 

More specifically, we provided that 

areas designated nonattainment for the 

1-hour ozone standard would remain 

subject to the subpart 2 planning 

requirements for purposes of the 1-hour 

standard until such time as they met 

that standard. But those areas and all 

other areas would only be subject to 

subpart 1 for purposes of planning for 

the 8-hour ozone standard. 

As noted above, 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. 

However, the Court also ruled that our 

implementation approach, 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, 121 S.Ct. at 917. 

However, despite recognizing that 

subpart 2 does provide classifications 

applicable for the 8-hour standard, the 

Supreme Court also recognized that the 

subpart 2 classification scheme, 

specified in section 181, did not entirely 

fit with the revised 8-hour standard and 

left it to EPA to develop a reasonable 

resolution of the roles of subparts 1 and 

2 in implementing a revised ozone 

standard. 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.’’

• First, the Court recognized that 1-

hour design values used for establishing 

the classifications in Table 1 in section 

181 ‘‘would produce at best an inexact 

estimate of the new 8-hour averages 

***’’ 121 S.Ct. at 918.

• Second, the Court recognized that 

the design values in Table 1 start at the 

level of the 1-hour NAAQS—0.12 ppm. 

The Court 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. 

2. EPA’s Development of Options 

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 

standard. 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 standard. We 

believe that we need to take a narrow 

reading consistent with what we believe 

Congress intended. Consistent with 

those principles, we developed several 

options. 

32812 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

12The upper thresholds of the marginal, 

moderate, serious, severe-15, and severe-17 

classifications are precise percentages or fractions 

above the level of the standard, namely 15.000 

percent (3⁄20ths more than the standard), 33.333 

percent (one-third more than the standard), 50.000 

percent (one-half more than the standard), 58.333 

percent (7⁄12ths more than the standard) and 

133.333 percent (one and one-third more than the 

standard).

3. Options for Classification 

We are proposing two options for 

comment. We prefer classification 

option 2 because it provides more 

flexibility to States and Tribes as they 

address their unique air quality 

problems. This is likely to allow some 

areas to attain the standard at a lower 

cost. However, we are also soliciting 

comments on option 1, in part, because 

it is less complex and may be easier to 

communicate, in addition to any other 

ideas on how to classify nonattainment 

areas. 

a. Option 1. Under the first option, we 

would classify 8-hour ozone 

nonattainment areas according to the 

severity of their ozone pollution based 

on 8-hour ozone levels. 

Under this option, all 8-hour 

nonattainment areas would be classified 

under subpart 2 as marginal, moderate, 

serious, severe-15, severe-17, or 

extreme. The CAA gives areas in higher 

classifications—which are those with 

more serious ozone pollution 

problems—longer time periods for 

attaining the standard, but also requires 

these areas to meet a longer list of 

requirements than areas in lower 

classifications. 

A key feature of this option is the use 

of 8-hour ozone design values in 

determining the severity of an area’s 8-

hour ozone problem. However, the 

subpart 2 classification table (Table 1 of 

CAA section 181) is based on 1-hour 

ozone design values (because it was 

designed for implementation of the 

standard in effect in 1990—the 1-hour 

ozone standard). Therefore, this option 

would require us to adapt the subpart 2 

classification scheme. Specifically, we 

would adopt by regulation a modified 

version of the subpart 2 classification 

table that contains 8-hour design value 

thresholds for each classification, rather 

than the statutory 1-hour ozone design 

value thresholds. Using 8-hour design 

values for classifying areas for the 8-

hour standard would reflect the 

magnitude of the 8-hour ozone problem 

more accurately than would the 1-hour 

design values in Table 1. 

We are proposing to translate the 

classification thresholds in Table 1 of 

section 181 from 1-hour values to 8-

hour values in the following manner: 

Determine the percentage by which each 

classification threshold in Table 1 of 

section 181 exceeds the 1-hour ozone 

standard and set the 8-hour threshold 

value at the same percentage above the 

8-hour ozone standard. For example, the 

threshold separating marginal and 

moderate areas in Table 1 is 15 percent 

above the 1-hour standard, so we would 

set the 8-hour moderate area lower 

threshold value at 15 percent above the 

8-hour standard. 

An examination of the percentages 

derived indicated that Congress set the 

classification thresholds at certain 

percentages or fractions above the level 

of the standard.12 These are the 

percentages above the standard that we 

used and applied to the level of the 8-

hour standard to yield new threshold 

levels for the 8-hour standard. Table 2 

of this proposed rulemaking below 

depicts how the translation would be 

done and the results.

There are other ways of performing 

the translation as described further 

below, some of which have been 

suggested in public comment, but we 

believe that the translation described 

here is most consistent with the 

apparent intent of Congress in 

establishing the thresholds in the 

classification system in section 181. 

As mentioned above, under this 

option all 8-hour nonattainment areas 

would be classified under subpart 2 and 

receive attainment dates consistent with 

their classification. Elsewhere in this 

proposed rule, we discuss how it would 

interpret the attainment dates in Table 

1 of section 181 for purposes of areas 

classified under subpart 2 for the 8-hour 

standard. Areas that do not attain by 

their attainment date would be 

reclassified to a higher classification 

and be given a later attainment date and 

would be subject to the measures of the 

higher classification (section 181(b)(2)).

TABLE 2.—TABLE 1 OF SUBPART 2 1-HOUR OZONE CLASSIFICATION TABLE

[Translation to 8-Hour Design Values] 

Area class 

CAA design 

value thresholds 1-hour 

ozone ppm 

Percent above 

1-hour ozone 

NAAQS 

Translated 8-

hour design 

value thresholds ppm 

ozone 

Marginal .......................................................... from ................................................................ 0.121 0.833 1 0.085

up to ............................................................... 0.138 15.000 0.092

Moderate ......................................................... from ................................................................ 0.138 15.000 0.092

up to ............................................................... 0.160 33.333 0.107

Serious ............................................................ from ................................................................ 0.160 33.333 0.107

up to ............................................................... 0.180 50.000 0.120

Severe-15 ....................................................... from ................................................................ 0.180 50.000 0.120

up to ............................................................... 0.190 58.333 0.127

Severe-17 ....................................................... from ................................................................ 0.190 58.333 0.127

up to ............................................................... 0.280 133.333 0.187

Extreme ........................................................... equal to or above ........................................... 0.280 133.333 0.187

1The percentages used were calculated based on the level of the 1-hour standard as it appears in 40 CFR 51.9, viz., 0.12 ppm. The percentages were applied to the 8-hour standard as it appears in 40 CFR 51.10, viz., 0.08 ppm. Our guidance uses a rounding convention for 1-hour air 

quality data such that values less than 0.125 round down to 0.12 and therefore represent attainment; values of 0.125 up to and including 0.129 

round up to 0.13, and therefore indicate nonattainment. An exact translation of the 0.121 1-hour threshold would have produced 0.081 ppm as 

the corresponding 8-hour threshold; however, since any value less than 0.085 ppm would indicate an area is attaining the 8-hour ozone standard, the table’s lowest value reflects the lowest value representing nonattainment, viz., 0.085 ppm. 

b. Option 2—2-step approach. We are 

proposing a second option (our 

preferred option) under which some 

areas would implement the 8-hour 

standard under subpart 1, and other 

areas would implement the 8-hour 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32813

13Section 172(a)(1)(C) provides that the 

provisions of section 172(a) ‘‘shall not apply with 

respect to nonattainment areas for which 

classifications are specifically provided’’ in other 

sections of part D. Similarly, section 172(a)(2)(D) 

provides that the attainment date provisions in 

section 172(a)(2) do not apply ‘‘to nonattainment 

areas for which attainment dates are specifically 

provided’’ elsewhere in part D.

14Proposed Implementation Guidance for the 

Revised Ozone and Particulate Matter (PM) 

National Ambient Air Quality Standards (NAAQS) 

and the Regional Haze Program. November 17, 

1998. Found at: http://www.epa.gov/ttn/oarpg/

t1pgm.html.

standard under subpart 2. This option 

relies on language in the Supreme Court 

decision, which is described in detail 

below. 

In brief, the option that we are 

proposing would work as follows: 

• First, we would determine which 8-

hour areas must be classified under 

subpart 2. These would be areas with 

ozone levels that exceed the 1-hour 

ozone design values that Congress 

specified in Table 1 of section 181. For 

the remaining areas, we would have 

discretion to place them under subpart 

1 or subpart 2. 

• Second, we would classify all areas. 

Subpart 2 areas would be classified in 

the same manner described above under 

option 1. Options for classifying subpart 

1 areas are described below. 

(i) Legal framework for 2-step 

approach. Under this approach, we first 

determine the universe of areas that 

must be subject to the provisions of 

subpart 2 and the universe of areas that 

fall into a ‘‘gap’’ in subpart 2’s 

classification scheme. Then, we proceed 

to determine how to classify the areas. 

(ii) Legal framework—Step 1—Which 

subpart applies for an area? With 

respect to the first step, the Supreme 

Court noted that ‘‘to the extent that 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 * * * 

but less than the approximation of the 

old standard codified by Table 1 [in 

section 181(a)].’’ 121 S.Ct. at 918. Thus, 

for those areas with a 1-hour ozone 

design value above the level identified 

in Table 1 (i.e., 0.121 ppm), Table 1 

‘‘specifies’’ a classification for the area. 

For those areas, we would not have 

authority to establish classifications 

under subpart 1 because section 

172(a)(1)(C) prohibits the use of the 

classification authority in section 

172(a)(1)(A) for those areas.13 However, 

for areas with 1-hour ozone design 

values below 0.121 ppm, Table 1 does 

not specify a classification, and those 

areas fall into a gap in the statute. Thus, 

we must reasonably determine whether 

such areas should be subject to the 

planning obligations of subpart 1 or 

subpart 2. This issue is discussed more 

fully below under ‘‘Rationale for 

regulating all ‘‘gap’’ areas under subpart 

1 only.’’

In summary, under the first step of 

this approach, we examine each 

nonattainment area’s most recent 1-hour 

design value at the time of designation 

under the 8-hour NAAQS to determine 

whether the area must be subject to the 

classification under subpart 2. If an 

area’s 1-hour design value is 0.121 or 

higher, then it must be subject to a 

subpart 2 classification. If its 1-hour 

design value is lower than 0.121, it falls 

into a gap and we must determine a 

reasonable implementation scheme—

either subpart 1 or subpart 2—for such 

area. 

(iii) Legal framework-—Step 2—How 

should areas be classified under 

subparts 1 and 2? Under step 2 of this 

approach, we must determine how to 

classify areas subject to the 

classification provisions of subpart 2. 

For those areas subject to the 

classification provisions of subpart 2, 

we believe that it is most reasonable to 

use the area’s 8-hour design value to 

determine the appropriate classification. 

This would be done in the same manner 

as option 1, proposed above, in which 

the Table 1 threshold design values are 

converted from 1-hour values to 8-hour 

values. 

Another option would have been to 

apply Table 1 as it is written. Some 

might argue that this approach is better 

because it is consistent with the design 

value EPA would use under this option 

to determine whether Congress 

mandated that the area be subject to 

subpart 2. We do not believe that 

Congress would have intended the use 

of 1-hour design values for determining 

the classification ‘‘ and therefore the 

control obligations and attainment 

dates—of 8-hour areas. While we 

believe it is reasonable to use the 1-hour 

design values as a barometer of 

Congress’ intent as to which areas 

should be subject to the more 

prescriptive requirements of subpart 2, 

we do not believe it makes sense to use 

the 1-hour values to establish each 

area’s classification under that subpart. 

The area’s classification identifies the 

specific control requirements applicable 

to each area within that classification 

and the period of time the area has to 

attain. As enacted, the Table provides 

that areas having a more significant 

ozone pollution problem for the 1-hour 

standard and thus a higher classification 

are subject to more stringent controls 

and have a longer period to attain. 

Because of the different form and 

averaging times of the 1-hour and 8-

hour standards, areas with significant 1-

hour problems may not have as 

significant an 8-hour problem and vice 

versa. Using the 1-hour design values to 

classify areas, therefore, could result in 

areas with less significant ozone 

problems being subject to stricter 

planning obligations (and later 

attainment dates) than those with a 

more significant problem. Thus, we 

believe it is more consistent with 

Congressional intent to use 8-hour 

design values as the means for 

specifying the stringency of controls 

needed to attain the 8-hour ozone 

standard and the associated attainment 

dates. We also believe that this is 

consistent with the Supreme Court 

decision, in which the Court recognized 

that the ‘‘1-hour averages’’ in Table 1 

‘‘produce at best an inexact estimate of 

the new 8-hour averages.’’ See 121 S.Ct. 

at 918. 

As discussed in the following section, 

for areas that EPA determines would be 

subject only to subpart 1, section 

172(a)(1)(A) grants EPA discretion to 

develop a classification scheme. 

4. Under Classification Option 2, How 

Would EPA Classify Subpart 1 Areas? 

a. Background. As noted above, 

classification option 2 above could 

result in a number of areas not being 

classified under subpart 2. Section 

172(a)(1)(A) grants EPA discretion to 

establish a classification system for 

areas covered under subpart 1 but does 

not mandate classifications. Section 

172(a)(1)(A) provides that

on or after [the date of designation], the 

Administrator may classify the area for the 

purpose of applying an attainment date 

pursuant to paragraph (2), and for other 

purposes. In determining the appropriate 

classification, if any, for a nonattainment 

area, the Administrator may consider such 

factors as the severity of nonattainment in 

such area and the availability and feasibility 

of the pollution control measures that the 

Administrator believes may be necessary to 

provide for attainment of such standard in 

such area.

Prior to the Supreme Court’s remand 

of our implementation approach, we 

had proposed that all 8-hour ozone 

nonattainment areas be subject only to 

subpart 1 for purposes of the 8-hour 

standard, and that areas would be 

classified as traditional, transitional, or 

international transport. These 

classifications were described in our 

November 17, 1998 draft 

implementation guidance.14

Because we are no longer considering 

an option where all areas would be 

32814 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

15EPA’s guidance on such determinations 

appears in ‘‘Criteria for Assessing the Role of 

Transport of Ozone/Precursors in Ozone 

Nonattainment Areas,’’ May 1991. U.S. 

Environmental Protection Agency, Office of Air 

Quality Planning and Standards, Technical Support 

Division, Research Triangle Park, NC 27711. 

Available at: http://www.epa.gov/scram001/

tt25.htm. Look for zip file name UAMIVGUIDE. 

Unzip to access file name UAMCRIT.

16These 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 standard 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).

classified under subpart 1, we have 

determined the classification scheme it 

proposed earlier is not appropriate. We 

are now proposing, as described below, 

two new options for classifying subpart 

1 areas for the 8-hour standard. 

b. Options for classifying subpart 1 

areas (i) Option 1—no classifications.

Under this option, subpart 1 areas 

would not have different classifications. 

When submitting an attainment 

demonstration, each area would need to 

establish an attainment date consistent 

with section 172(a)(2)(A), i.e., 

demonstrating 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. 

(ii) Option 2—create an overwhelming 

interstate transport classification. This 

option could be implemented in 

addition to option 1 (no classifications) 

for areas that qualify; in other words, we 

would not classify areas that do not 

qualify for this transport classification. 

Under this option, an area could be 

classified as a ‘‘Transport Area’’ upon 

submission of a SIP that demonstrates, 

using modeling, that the nonattainment 

problem in the area is due to 

‘‘overwhelming transport’’ emissions. 

We are proposing that for subpart 1 

areas to qualify for an overwhelming 

transport classification, the area would 

have to meet the same criteria as 

specified for rural transport areas under 

section 182(h) (of subpart 2). This 

section restricts treatment as a rural 

transport area to an area that does not 

include, and is not adjacent to, any part 

of a Metropolitan Statistical Area or, 

where one exists, a Consolidated 

Metropolitan Statistical Area (as defined 

by the United States Bureau of the 

Census). The area may be treated as a 

rural transport area if we find that 

sources of VOC (and, where we 

determine relevant, NOX) emissions 

within the area do not make a 

significant contribution to the ozone 

concentrations measured in the area or 

in other areas.15 Since this classification 

would only apply to subpart 1 areas, 

areas classified under subpart 2 would 

not qualify for this classification.

The following are features of this 

option: 

• The area would be treated similar to 

areas classified marginal under subpart 

2 for purposes of emission control 

requirements. 

• Less restrictive NSR and conformity 

requirements could be proposed for the 

area. If we include the transport 

classification option in the final 

implementation rule, we would 

consider proposing a separate 

rulemaking on the details of NSR and 

conformity requirements. 

• 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. 

Interstate, intrastate, and international 

transport are also discussed elsewhere 

in this proposed rulemaking. 

5. Rationale for Regulating All ‘‘Gap’’

Areas Under Subpart 1 Only 

This section is aimed solely at 

providing a rationale for why all gap 

areas should be placed under the 

subpart 1 regulatory framework rather 

than the subpart 2 regulatory 

framework. Issues regarding what 

specific requirements should apply to 

subpart 1 areas are addressed in later 

sections of this preamble. 

In developing classification option 2, 

we explored a number of options 

regarding how to interpret the 

relationship of subpart 1 and subpart 2 

for areas with 1-hour design values less 

than 0.121. These areas are referred to 

below as ‘‘gap’’ areas because their 1-

hour design value falls below the lowest 

value in the subpart 2 classification 

table and thus Congress did not dictate 

whether subpart 2 or subpart 1 applies. 

The options we explored ranged from 

placing all of these areas into the 

subpart 2 classification scheme to 

placing none of these areas into the 

subpart 2 classification scheme. We are 

proposing the latter approach—that all 

areas that fall into the gap should be 

subject only to the planning obligations 

of subpart 1. 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 1.16

For classification option 2, 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. Congress 

enacted subpart 2 with the 

understanding that all areas (except 

marginal areas, for which no new 

controls were required) would have to 

employ additional local controls to meet 

the 1-hour ozone standard in a timely 

fashion. Since then, many control 

measures have been implemented, our 

understanding of the importance of 

interstate pollution transport has 

improved, and we have promulgated 

interstate NOX transport rules. Regional 

modeling by EPA indicates that the 

majority of potential 8-hour 

nonattainment areas that fall into the 

gap will attain the 8-hour standard 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. 

Of the 76 hypothetical areas that 

would fall into the gap (and would thus 

be covered under subpart 1 under 

classification option 2), 27 would have 

been classified as moderate if classified 

under option 1 based on their 8-hour 

design values. Eighteen of these 27 areas 

are projected to attain by 2007 through 

existing regional or national measures. If 

these areas were to be classified as 

moderate (under classification option 1), 

these areas would nonetheless be 

required to implement statutorily 

specified controls for moderate areas. 

Using our discretion to regulate gap 

areas under subpart 1 is one way (the 

proposed incentive feature, discussed 

below in this section on classifications, 

is another way) to avoid requiring 

unnecessary new local controls in areas 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32815

already projected to meet the standard 

in the near term. 

The other 49 gap areas could be 

regulated either under subpart 1 (under 

option 2) or as marginal areas if 

classified by 8-hour design value under 

subpart 2 (under option 1). These areas 

already are meeting the 1-hour standard 

and are close to meeting the 8-hour 

standard. 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 difference in regulatory 

category may make no practical 

difference for many of these areas. A 

potential rationale for placing these 

areas under subpart 1 is to provide 

States and EPA with greater discretion 

to handle implementation difficulties 

that might arise in some of these areas. 

For example, a gap area might fail 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 calls 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 to us that 

interstate or intrastate pollution 

transport may affect future 8-hour areas 

with near-term attainment deadlines. 

Subpart 1 would provide States and 

EPA with more flexibility on the remedy 

in any such cases. 

Although we believe that there are 

reasons to place gap areas in subpart 1, 

and have the legal authority to do so, we 

are not suggesting that subpart 2 is 

unreasonable for any area that would be 

subject to subpart 2 under either 

classification option. Also, our analysis 

here should not be taken as inconsistent 

with its proposal under classification 

option 1, whereby all 8-hour ozone 

nonattainment areas would be subject to 

the subpart 2 planning obligations. That 

simpler option, in conjunction with the 

incentive feature for classifications (if 

ultimately adopted), described below in 

this section on classification, could 

provide similar flexibility on control 

measures for most (though not quite all) 

areas. In addition, we are proposing 

ways in which to build some flexibility 

into some of the mandated VOC control 

obligations in subpart 2, in areas where 

it would make sense to provide such 

flexibility. A final observation is that 

Congress did recognize some benefit in 

prescribing measures for areas because 

of past failure to attain under less 

prescriptive provisions of the CAA. 

Placing all gap areas in subpart 1 

would result in over half of the 

hypothetical nonattainment areas being 

covered by subpart 1. To be fair, this 

option might appear to result in some 

areas being placed in subpart 1 even 

though they have 8-hour ozone design 

values as high or higher than some areas 

that fall under Table 1 in section 181 

and thus are covered under subpart 2. 

As explained above, we believe the most 

effective way to deal with that issue is 

not to exercise our discretion and make 

those areas subject to subpart 2. Rather, 

we can use our discretion under subpart 

1 to determine how to define the 

controls required under subpart 1 for 

such areas in order to assure the most 

equitable, yet effective, means for these 

areas to attain the 8-hour ozone 

NAAQS. For example, in the section of 

this proposed rulemaking addressing 

RFP under subpart 1, we explore an 

option of defining RFP in the same 

manner as it is defined under subpart 2. 

EPA is open to suggestions as to how to 

make the subpart 1 planning process 

that would apply to these areas effective 

and also equitable in light of the subpart 

2 planning obligations to which areas 

with a similar 8-hour ozone problem 

may be subject. 

6. Proposed Incentive Feature

In addition to the two basic 

classification options being proposed 

above, we are also proposing an early 

attainment incentive feature that could 

be applicable to either of the options 

proposed above. Under this feature, for 

areas classified under subpart 2, we 

would classify an area at a lower 

classification than it would receive 

based on its design value, if a modeled 

demonstration indicates the area will 

attain by an attainment date that is 

consistent with the lower classification. 

For instance, if a subpart 2 area has an 

8-hour ozone design value of 0.094 

ppm, it would ordinarily be classified as 

moderate, with an attainment date 6 

years after the area’s designation as 

nonattainment for the 8-hour standard. 

If modeling acceptable to EPA 

demonstrates that this area will attain 

within 3 years after designation, the area 

would be eligible for classification as a 

marginal area, since marginal areas 

would have a maximum attainment date 

of 3 years after their nonattainment 

designation date. (See our proposal on 

attainment dates elsewhere in this 

proposed rulemaking.) 

The lower classification would 

provide additional flexibility to the area 

in that it would avoid the mandatory 

control requirements of the higher 

classification. Appendix A of this 

proposal provides a comparison of 

requirements under subparts 1 and 2. 

In granting a lower classification to an 

8-hour ozone nonattainment area based 

on this option, we propose to take into 

account the extent to which the area 

significantly contributes to downwind 

nonattainment or interferes with 

maintenance under section 110(a)(2)(D) 

of the CAA. We solicit comment on 

possible mechanisms for assessing this 

contribution for purposes of granting the 

lower classification, and possible tests 

for whether to grant or deny the lower 

classification. 

In addition to soliciting comment on 

this proposed incentive feature itself, 

we are soliciting comment on whether 

such modeled demonstration would 

have to be made prior to the initial 

classification of areas, or whether it 

could be submitted after we have 

already classified the area initially at the 

higher classification, in which case we 

would have to revise the classification 

downward at a subsequent time. 

We also solicit comment on whether 

EPA, prior to initial classifications, 

should use EPA regional-scale modeling 

(rather than urban-scale modeling) to 

make determinations of which areas 

would receive a lower classification. 

Under this suboption, an area would 

qualify for the lower classification if 

EPA’s regional modeling indicated that, 

based on emissions reductions from 

existing national and regional programs, 

the area would attain the 8-hour 

standard by the attainment deadline for 

the next lower classification. In 

requesting comment on this suboption, 

EPA notes that regional-scale modeling 

alone is not considered sufficient for an 

approvable attainment demonstration. 

We request comment on whether 

regional-scale modeling would 

nonetheless be adequate for purposes of 

lowering an area’s classification. (Under 

this approach, if regional modeling did 

not provide grounds for the lower 

classification, States would need to 

perform local attainment 

demonstrations to take advantage of the 

incentive feature.) 

It should be noted that an option was 

presented and discussed at the public 

meetings similar to this incentive 

feature in conjunction with the option 

that would have classified all areas 

based on their 8-hour design values but 

also relied on modeled results to adjust 

the classification. The option received 

32816 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

17Additional Options Considered for ‘‘Proposed 

Rule to Implement the 8-Hour Ozone National 

Ambient Air Quality Standard.’’ U.S. 

Environmental Protection Agency, Office of Air 

Quality Planning and Standards, Research Triangle 

Park, NC. March 2003.

18Background 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/.

criticism from a wide variety of 

commenters, who argued that modeling 

could be applied inappropriately in 

classifying areas. We nonetheless 

believe it is appropriate to propose this 

feature to alleviate some of the other 

concerns that many commenters raised 

about the mandatory measures required 

under the higher classifications of 

subpart 2. Furthermore, we believe this 

option is justified by the intent of the 

CAA, in which an area’s classification is 

generally linked to the amount of time 

the area is anticipated to need to attain 

the NAAQS. We recognize that the CAA 

was not originally structured to allow 

lower classifications based on an area 

being projected to attain earlier. 

However, under the Supreme Court 

ruling that required that we interpret the 

law regarding subpart 2’s application to 

the 8-hour ozone standard, we believe it 

may reasonably give areas that are 

projected to attain the 8-hour ozone 

standard by an earlier date a 

classification that is consistent with that 

attainment date. 

7. Other Options EPA Considered 

We considered many other options for 

classification and for the translation of 

the classification table in the CAA. 

These options are discussed in a 

separate document available in the 

docket.17 These other possible ways of 

translating the classification table, in 

our opinion, do not have the same 

degree of consonance with the intent of 

Congress when it enacted subpart 2 as 

those we are proposing. We are 

therefore not proposing them.

8. Implications for the Options 

To evaluate the potential impact of 

the various classification options, we 

developed a set of 122 hypothetical 

nonattainment areas based on the 

counties that have monitors measuring 

violations of the 8-hour ozone standard 

for the 3-year period of 1998–2000. Our 

inclusion and grouping of counties into 

hypothetical nonattainment areas was 

done only for illustrative purposes and 

does not have any implications for the 

location, number or boundaries of 

nonattainment areas that may ultimately 

be evaluated and recommended by 

States and Tribes or designated by EPA. 

The final designations would be affected 

by factors contained in EPA’s guidance 

on boundaries of nonattainment areas 

(which is, as noted earlier, not a topic 

of discussion or comment for this notice 

of proposed rulemaking). As noted 

earlier, Table 3 illustrates a possible 

classification grouping of nonattainment 

areas based on counties with monitors 

based on the options proposed above. 

The list of these areas and the 

information we used in assessing the 

consequences of our proposal are 

available in the docket.18

TABLE 3.—PROPOSED CLASSIFICATION OPTIONS COUNTS OF HYPOTHETICAL NONATTAINMENT AREAS

Subpart 2 Subpart 1 

Extreme Severe17 

Severe15 Serious Moderate Marginal Total 

Option 1 (8-hour design value) ........................ 0 1 1 6 53 61 0 122

Option 1 (8-hour design value)–with incentive 

feature* ......................................................... 0 1 1 6 30 84 0 122

Option 2 (2-step approach—areas < 0.121 

ppm = subpart 1) .......................................... 0 1 1 6 26 12 76 122

Option 2 (2-step approach—areas < 0.121 

ppm = subpart 1)–with incentive feature 1 ... 0 1 1 6 21 17 76 122

1Areas that would be moderate using their 8-hour design value but that are projected to attain by 2007 would be classified marginal. 

9. Other Considerations 

In addition to the overall 

classification options being proposed, it 

should be noted that subpart 2 also 

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. This 

provision (section 181(a)(4)) reads:

If an area classified under [Table 1] 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.

Thus, for example, if a downwind 

area is subjected 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. 

This provision does not establish a 

mechanism for removing areas from the 

subpart 2 classification scheme. 

B. How Will EPA Treat Attainment 

Dates and Other Dates Including SIP 

Submittal Dates for the 8-Hour Ozone 

Standard?

1. Background 

Under subpart 2 of the CAA, 

maximum attainment dates and most 

SIP submittal 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 

statutory dates are specified as a number 

of years (e.g., 6 years) from the date of 

enactment of the CAA Amendments, 

which was November 15, 1990. Because 

these dates are a set number of years 

after enactment of the CAA 

Amendments, one might initially 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32817

19Section 181(b) provides that ‘‘any absolute, 

fixed date applicable in connection with any such 

requirement is extended by operation of law by a 

period equal to the length of time between the date 

of the enactment of the CAAA of 1990 and the date 

the area is classified under this paragraph.’’ Under 

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

as the date of redesignation to nonattainment.

20See 40 CFR 50.9(a); the 1-hour standard for 

ozone ‘‘* * * is attained when the expected 

number of days per calendar year with maximum 

hourly average concentrations above 0.12 parts per 

million (235 μg/m3) is equal to or less than 1 in 

order for the area to be considered attaining the 

standard, as determined by Appendix H to this 

part.’’ Thus, the 1-hour standard is an ‘‘exceedance’’

based standard, since the number of exceedances of 

the standard (yearly average over 3 years under 

appendix H) must be equal to or less than 1. In 

contrast, see 40 CFR 50.10(b); the 8-hour standard 

for ozone is ‘‘* * * met at an ambient air quality 

monitoring site when the average of the annual 

fourth-highest daily maximum 8-hour average 

ozone concentration is less than or equal to 0.08 

ppm, as determined in accordance with Appendix 

I to this part.’’ Thus, this is a concentration-based 

standard, because meeting the standard is 

determined by calculating the concentration, not 

the number of exceedances as under the 1-hour 

standard.

21Memorandum of February 3, 1994, from D. 

Kent Berry re: ‘‘Procedures for Processing Bump 

Ups and Extension Requests for Marginal Ozone 

Nonattainment Areas.’’ U.S. Environmental 

Protection Agency, Research Triangle Park, North 

Carolina.

conclude that the subpart 2 

classifications, with their associated 

attainment dates, should not apply for 

the 8-hour standard. The Supreme 

Court, however, rejected a conclusion 

that the subpart 2 classifications do not 

apply, although it noted that the 

attainment dates ‘‘seem[ ] to make no 

sense’’ for areas classified under a new 

standard after November 15, 1990. 121 

S.Ct. at 918. 

We believe that applying the 

attainment dates as expressly provided 

under Table 1 would produce absurd 

results. For example, a strict application 

of Table 1 would result in areas 

classified as marginal for the 8-hour 

NAAQS as having an attainment date of 

November 15, 1993 and areas classified 

as moderate as having an attainment 

date of November 15, 1996. Since these 

dates have long passed, it makes no 

sense to establish them as the applicable 

dates. 

Many provisions of the CAA, 

however, indicate what Congress’ intent 

was in setting attainment dates. For 

example, section 181(b), provides that 

for areas designated attainment or 

unclassifiable for ozone immediately 

following enactment of the 1990 CAA 

Amendments and subsequently 

redesignated to nonattainment, the 

attainment date would run from the date 

the area is classified under subpart 2.19

Thus, if an area designated as 

attainment for the 1-hour ozone 

standard in 1990 were redesignated to 

nonattainment for the 1-hour ozone 

standard in January 2002 and classified 

as moderate, the area’s attainment date 

would be 6 years following January 

2002, i.e., January 2008. Similarly, 

section 172(a)(2) provides for attainment 

dates to be calculated from the time the 

area is designated nonattainment. We 

believe that Congress would have 

intended for areas designated 

nonattainment and classified under 

subpart 2 for the 8-hour standard to 

have attainment periods consistent with 

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

marginal area, 6 years for a moderate 

area, etc.), but running from the date the 

area is designated and classified for 

purposes of the 8-hour NAAQS. We are 

proposing for areas classified under 

subpart 2, the period for attainment 

(running from date of designation/

classification) would be:

• Marginal—3 years. 

• Moderate—6 years. 

• Serious—9 years. 

• Severe—15 or 17 years. 

• Extreme—20 years (no areas 

currently expected to be in this category 

for the 8-hour ozone standard). 

Note that the CAA requires each area 

to demonstrate attainment as 

expeditiously as practicable, regardless 

of maximum statutory periods. 

Most SIP submittal dates in subpart 2 

run for a fixed period from the date of 

enactment of the 1990 CAA, which was 

also the date of designation and 

classification by operation of law for 

most subpart 2 areas. Under section 

181(b)(1), the statute provides that any 

fixed dates will be extended by 

operation of law to a period equal to the 

length of time between that date of 

enactment and the date an area is 

subsequently designated and classified. 

Thus, unless EPA has reason to create 

a different time period, either as 

explained specifically below or in any 

subsequent specific rulemaking 

applicable to a particular subpart 2 

requirement, subpart 2 SIP submittals 

will be due as a general matter by the 

same period of time after designation 

and classification under the 8-hour 

standard as provided in subpart 2 for 

areas designated and classified at the 

time of enactment of the 1990 CAA.

For areas classified under subpart 1, 

attainment dates would 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. 

Note that in determining whether an 

area actually attains the NAAQS at the 

time of the attainment date, EPA would 

use the ambient air quality data for the 

three ozone seasons prior to the 

attainment date. As an example, if the 

effective date of the nonattainment 

designations is May 15, 2004, the 

maximum attainment date for an area 

classified marginal would be May 15, 

2007. In this example, EPA would 

consider the 8-hour ozone data for the 

three previous ozone seasons—2004, 

2005 and 2006. 

2. How Will EPA Address the Provision 

Regarding 1-Year Extensions? 

Both subpart 1 and subpart 2 provide 

for two brief attainment date extensions 

for areas in limited circumstances where 

they do not attain by their attainment 

date. Section 172(a)(2)(C) (under subpart 

1) provides for EPA to extend the 

attainment date for 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 relevant NAAQS has 

occurred in the area in the attainment 

year. No more than two 1-year 

extensions may be issued under this 

subparagraph for a single nonattainment 

area. Section 181(a)(5) (under subpart 2) 

contains a similar provision, but instead 

of allowing a ‘‘minimal’’ number of 

exceedances, it provides for only one 

exceedance of the standard in the year 

preceding the extension year. This 

reflects the form of the 1-hour ozone 

standard, which is exceedance-based. 

The 8-hour ozone standard, however, is 

not an exceedance form of standard, but 

rather a concentration-based standard.20

We have issued guidance on the portion 

of these two provisions relating to the 

State’s compliance with all 

requirements and commitments 

pertaining to the area in the applicable 

implementation plan.21 However, for 

purposes of section 181(a)(5), we need 

to determine a reasonable interpretation 

in light of the fact that the statute, as 

written, does not fit the form of the 8-

hour standard. Because Congress has 

addressed this issue elsewhere in the 

statute, we believe it is reasonable to 

adopt that formulation. Therefore, we 

would apply the same test under 

subparts 1 and 2 for determining 

whether to grant a 1-year extension, i.e., 

whether there was a minimal number of 

exceedances. For both subparts, we 

propose to interpret this to mean for the 

8-hour standard, the area would 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 

32818 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

22On December 27, 2002 (67 FR 79460), EPA 

proposed to stay the applicability of its authority to 

revoke the 1-hour standard pending rulemaking to 

consider whether to modify the approach for 

transitioning to the 8-hour standard.

ppm or less. An area that has received 

the first of the 1-year extensions under 

the 8-hour standard would 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.

3. How Do Attainment Dates Apply to 

Indian Country? 

As discussed elsewhere in this 

proposed rulemaking, the Tribal 

Authority Rule (TAR), 40 CFR 49.9 

provides that Tribes should not be 

treated in a manner similar to States 

with regard to schedules, including the 

attainment dates. However, the TAR 

also requires EPA to develop Federal 

implementation plans (FIPs) where 

necessary and appropriate. (40 CFR 

49.11). Because we believe that public 

health considerations are of primary 

concern, the attainment dates for 

primary NAAQS should be met. 

Therefore, EPA, in consultation with the 

Tribes, will work to ensure that the 

standards are addressed as soon as 

possible, considering the needs of the 

Tribes, and ensure that attainment in 

other jurisdictions is not adversely 

affected. 

4. How Will EPA Establish Attainment 

Dates for Areas Classified as Marginal 

Under the ‘‘Incentive’’ Feature Proposed 

Under the Classification Section or 

Areas Covered Under Subpart 1 With a 

Requested Attainment Date of 3 Years or 

Less After the Designation Date? 

EPA would ordinarily have 

established attainment dates for areas 

through a review of the SIP and whether 

attainment is as expeditious as 

practicable but no later than the date 

prescribed in the CAA. Elsewhere in 

this proposal, we are providing that 

marginal areas (under subpart 2) and 

areas under subpart 1 with an 

attainment date within 3 years after 

designation would not actually have to 

submit an attainment demonstration 

within 3 years after designation. 

Therefore, we must establish another 

procedure for establishing the 

attainment dates for these areas. We are 

proposing the following procedure. 

a. Areas that are classified marginal 

based solely on their 8-hour ozone 

design value. For these areas, we are 

proposing that the CAA attainment date 

under Table 1 of section 181 would be 

the area’s attainment date (namely, 3 

years after designation). 

b. Areas that are classified marginal 

based on the proposed incentive feature 

proposed elsewhere and areas covered 

under subpart 1 with a requested 

attainment date of 3 years or less after 

the designation date. These are areas 

that are projected through modeling to 

attain within 3 years following 

designation. For these areas, we are 

proposing that these States must submit 

a SIP—within 1 year after designation—

that provides documentation (viz., 

concerning the modeling and analyses 

that the area is relying on to support its 

claim) that the area will attain within 3 

years following designation. Such a SIP 

submission must undergo the normal 

public hearing and comment procedures 

as for any SIP submission. 

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? 

As areas are designated for the 8-hour 

ozone NAAQS, we must address how 

those areas will transition from current 

implementation of the 1-hour standard 

to implementation of the 8-hour 

standard. In addressing this issue, we 

considered a number of factors, 

including the existing ‘‘antibacksliding’’ provisions of the CAA, 

Congress’ intent, as evidenced in the 

statute, to ensure continued progress 

toward attainment of the ozone 

standard, and the Supreme Court’s 

interpretation of the CAA and 

Congressional intent. In subsection 1 of 

this section, we provide background 

information on the transition process we 

set forth in 1997 (and subsequently 

amended through regulation) and we 

summarize the statutory antibacksliding provisions and the 

Congressional intent in enacting these 

provisions and subpart 2 of the CAA. In 

subsection 2, we identify two proposed 

options to effect the transition from 

implementation of the 1-hour standard 

to the 8-hour standard that concern the 

revocation of the 1-hour standard in 

whole or revocation of the 1-hour 

standard in part. In subsection 3, we 

indicate—in light of the CAA provisions 

and Congressional intent—which 

requirements that applied for purposes 

of the 1-hour standard should continue 

to apply to areas after they are 

designated for the 8-hour standard. 

Next, in subsection 4, we consider 

whether there is a point at which the 

States should no longer be required to 

implement those obligations EPA 

determines continue to apply after areas 

are designated for the 8-hour standard. 

Finally, in subsection 5, we indicate 

how it will ensure through regulation 

that the public knows which ‘‘1-hour’’

obligations remain in place and for 

which areas.

1. Background 

a. Background on EPA’s current 

regulation for governing the transition.

At the time we promulgated the 8-hour 

ozone NAAQS in July 1997, we issued 

a rule (40 CFR 50.9(b)) providing that 

the 1-hour standard would no longer 

apply to an area once we determined 

that the area had attained the 1-hour 

NAAQS. (62 FR 38856, July 18, 1997). 

This process became known as 

‘‘revocation’’ of the 1-hour NAAQS. We 

interpreted that provision to mean that 

once the 1-hour standard was revoked, 

the area’s 1-hour ozone designation no 

longer applied. Due to the ongoing 

litigation concerning the 8-hour ozone 

NAAQS and our implementation 

strategy for that standard, we 

subsequently modified 40 CFR 50.9(b) 

in part to provide that ‘‘after the 8-hour 

standard has become fully enforceable 

under part D of title I of the CAA and 

subject to no further legal challenge, the 

1-hour standards set forth in this section 

will no longer apply to an area once we 

determine that the area has air quality 

meeting the 1-hour standard.’’ (65 FR 

45181, July 20, 2000).22 Thus, currently, 

three criteria would need to be met 

before we could revoke the 1-hour 

standard for an area: (1) The 8-hour 

standard would need to be fully 

enforceable, (2) all legal challenges to 

the 8-hour ozone NAAQS would need to 

be resolved; and (3) we would need to 

determine that an area had attained the 

1-hour standard.

In this section, we are proposing to 

revise 40 CFR 50.9(b) to reflect more 

appropriately the implementation 

strategy that we develop pursuant to 

this proposal. At the time that we 

initially promulgated 40 CFR 50.9(b), 

we contemplated that areas would not 

be subject to the planning obligations of 

subpart 2 for purposes of implementing 

the revised 8-hour ozone NAAQS. 

Furthermore, we stated that ‘‘as a matter 

of law,’’ areas should continue to be 

subject to the planning obligations of 

subpart 2 for purposes of implementing 

the 1-hour standard until such time as 

they attained the 1-hour ozone NAAQS. 

Thus, we contemplated that the 1-hour 

NAAQS—and the associated 

designation and classification under 

subpart 2 for an area, including any 

mandated control obligations—would 

continue to apply until the area attained 

that standard. At that time, the area 

would be subject only to the planning 

obligations of subpart 1. In light of the 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32819

23Specifically, section 172(e) requires EPA to 

promulgate regulations providing for controls that 

‘‘are not less stringent than the controls applicable 

to areas designated nonattainment’’ before 

relaxation of the standard.

Supreme Court’s ruling that we cannot 

ignore subpart 2 for purposes of 

implementing a revised ozone NAAQS, 

we believe it is appropriate to 

reconsider how to transition from the 1-

hour NAAQS to the 8-hour NAAQS in 

light of the statutory structure of the 

CAA, as amended in 1990. 

Our principal objectives for the 

mechanism that would ensure a smooth 

transition to implementation of the 8-

hour standard are to ensure (1) that 

there will be no degradation of air 

quality, (2) that areas continue to make 

progress toward ozone attainment, and 

(3) consistency with the intent of 

Congress when it originally established 

the implementation structure for ozone 

in subpart 2 of the CAA. 

We believe the several alternative 

approaches proposed below are more 

consistent with the implementation 

path we are proposing in light of the 

Supreme Court’s remand. These 

alternatives would more effectively 

continue the momentum towards 

cleaner air than would have been 

accomplished under the current 40 CFR 

50.9(b) structure while allowing 8-hour 

ozone nonattainment areas to more 

readily focus on their 8-hour ozone 

standard SIP obligations. 

b. Background on the CAA’s antibacksliding provisions. The CAA 

contains a number of provisions that 

indicate that Congress did not intend to 

allow States to alter or remove 

provisions from implementation plans if 

the plan revision would jeopardize the 

air quality protection provided in the 

approved plan. Section 110(l) provides 

that EPA may not approve a SIP revision 

if it interferes with any applicable 

requirement concerning attainment and 

ROP or any other applicable 

requirement of the CAA. Congress 

created a tougher test for areas that 

might want to relax control 

requirements that were in SIPs prior to 

the CAA Amendments of 1990. Section 

193 of the CAA prohibits modification 

of a control requirement in effect or 

required to be adopted as of November 

15, 1990 (i.e., enactment of the 1990 

CAA Amendments), unless such a 

modification would ensure equivalent 

or greater emissions reductions. 

We also believe that Congress set an 

additional statutory bar for 1-hour ozone 

areas that were designated 

nonattainment and classified at the time 

of the 1990 CAA Amendments. For 

these areas, Congress classified the areas 

‘‘as a matter of law’’ and provided that 

even upon redesignation to attainment, 

such areas could not remove from the 

SIP control measures specified in 

subpart 2 (‘‘applicable requirements’’), 

but could shift them to contingency 

measures that would be implemented to 

‘‘promptly correct any violation of the 

standard.’’

For these reasons, we believe that 

although Congress gave EPA the power 

to revise the existing ozone standard, 

Congress did not open the door for 

States to remove SIP-approved measures 

or to avoid control obligations with 

which they have not yet complied. 

One other provision, though not 

directly applicable, sheds light on 

Congress’ intent. In 1990, Congress 

enacted section 172(e), which applies 

when EPA revises a NAAQS and makes 

it less stringent. This provision specifies 

that in those circumstances, States 

cannot relax control obligations that 

apply in nonattainment area SIPs or 

avoid adopting those that they have not 

yet adopted.23 Because Congress 

specifically mandated that such control 

measures need to be adopted or retained 

even when EPA relaxes a standard, we 

believe that Congress did not intend to 

permit States to remove control 

measures when EPA revises a standard 

to make it more stringent, as in the case 

of the 8-hour standard.

We also note that in finding EPA’s 

subpart 1-only implementation 

approach unlawful, the Supreme Court 

voiced concern that EPA not render 

subpart 2 ‘‘abruptly obsolete’’ because 

‘‘Subpart 2 obviously was enacted to 

govern implementation for some time. 

* * * A plan reaching so far into the 

future was not enacted to be abandoned 

the next time EPA reviewed the ozone 

standard—which Congress knew could 

happen at any time, since technical staff 

papers already had been completed in 

1989.’’ In response to the decision, we 

are now proposing (as noted above in 

the discussion on classifications) to use 

subpart 2 in implementing the 8-hour 

standard. However, the classification 

systems we are proposing today would 

result in the majority of ozone 

nonattainment areas that are currently 

classified for the 1-hour standard being 

placed in a lower classification for the 

8-hour standard. Our proposed antibacksliding approaches, discussed 

below, would not render obsolete the 

congressionally-specified control 

measure requirements of subpart 2 for 1-

hour ozone nonattainment areas at a 

time when those areas have not yet met 

either of the health-based ozone 

standards. 

2. When Will EPA Revoke the 1-Hour 

Standard? 

We are proposing to revoke the 1-hour 

standard either in part or in whole 1 

year following designations for the 8-

hour NAAQS. As discussed below, we 

are proposing two different legal 

mechanisms for achieving the 

revocation. Under either approach, 

however, the same stipulations continue 

to apply to areas currently or formerly 

designated nonattainment for the 1-hour 

standard. 

The deciding factor supporting the 

schedule for the revocation in our 

proposal is to ensure areas do not have 

to perform conformity analyses for both 

the 1-hour and 8-hour standards at the 

same time. As background, areas 

designated nonattainment for the first 

time for a new standard (e.g., the 8-hour 

ozone standard) have a 1-year grace 

period before conformity applies for that 

standard (i.e., a 1-year grace period 

before conformity applies for the 8-hour 

ozone standard). This 1-year grace 

period before conformity is required for 

the 8-hour standard applies to all areas 

designated nonattainment for the 8-hour 

standard, regardless of their 1-hour 

NAAQS designation status. Thus, under 

either of the mechanisms described 

below, we are proposing that conformity 

for the 1-hour standard no longer apply 

1 year following the effective date of the 

8-hour designation (i.e., when the 

standard is revoked in whole or in part). 

However, conformity obligations for the 

1-hour ozone standard would remain 

applicable during the grace period and 

would not be affected by the designation 

of areas for the 8-hour standard. Our 

intentions regarding conformity—as 

well as a more complete discussion of 

transportation conformity appear 

elsewhere in this proposal. 

(i) Option 1: Revocation in whole of 

the 1-hour standard. Under this option, 

which is our preferred option, EPA 

would revoke the 1-hour standard and 

the associated designations and 

classifications 1 year following the 

effective date of the designations for the 

8-hour NAAQS. The complete 

revocation of the 1-hour standard would 

occur in late spring of 2005 on the 

effective date of the 8-hour NAAQS 

designations, which will be issued by 

April 15, 2004. In order to address the 

anti-backsliding issues discussed in 

section 3, below, EPA would 

promulgate regulations specifying those 

requirements that would continue to 

apply after the revocation of the 1-hour 

standard. The regulations would also 

specify the geographic areas in which 

those obligations continue to apply, 

since areas designated nonattainment 

32820 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

24A number of commenters in the pre-proposal 

phase recommended an approach premised on 

retention of the standard. See, e.g., Letter of 

December 5, 2002 from Michael P. Kenny, 

Executive Director, California Air Resources Board, 

to Jeffrey R. Holmstead, EPA Assistant 

Administrator for Air and Radiation. Available at: 

http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/.

25Additional Options Considered for ‘‘Proposed 

Rule to Implement the 8-Hour Ozone National 

Ambient Air Quality Standard.’’ U.S. 

Environmental Protection Agency, Office of Air 

Quality Planning and Standards, Research Triangle 

Park, NC. March 2003.

for the 8-hour standard may include 

counties that were not designated 

nonattainment for the 1-hour standard. 

The anti-backsliding regulations would 

apply only to the portion of the 8-hour 

nonattainment area that was designated 

nonattainment for the 1-hour standard. 

(ii) Option 2: Partial revocation of 1-

hour standard. Under this mechanism, 

EPA would retain the 1-hour standard 

and its associated designations and 

classifications for limited purposes (viz., 

those discussed and proposed below in 

section 3) until the area meets the 1-

hour standard. For many areas, this is 

likely to extend well beyond May 2005, 

the date of likely revocation under 

option 1.24 For all remaining purposes, 

EPA would revoke the 1-hour standard 

and the associated designations and 

classifications 1 year after the effective 

date of designations for the 8-hour 

standard. As noted above, we believe 

that Congress initially intended the 

State’s obligations under subpart 2 to 

continue to apply ‘‘as a matter of law,’’

and the 1-hour designations and 

classifications—established for the 

circumstances present when the 

requirements were enacted—are the 

mechanism Congress identified for 

triggering the applicability of these 

requirements. Under this theory, 

Congress would have intended the 

standard to remain in place for purposes 

of control measures and NSR 

requirements, as discussed above.

While the partial retention of the 

standard itself and the associated 

designations and classifications would 

be the mechanism used to retain the 

specified obligations, we would need to 

promulgate regulations similar to those 

described in option 1 to ensure that it 

is clear for which purposes the standard 

is being retained. 

(iii) Request for comment. Both of 

these options would achieve the same 

result—ensuring the continued 

applicability of certain control 

requirements in subpart 2 and ensuring 

continued improvement in air quality, 

while shifting the focus from modeling 

and other planning requirements for the 

1-hour standard to analyses for the 8-

hour standard. We solicit comment on 

which mechanism is preferable for 

accomplishing the overriding objective 

of preventing backsliding from statutory 

and SIP requirements while achieving a 

smooth transition to implementation of 

the new standard. In addition, EPA also 

solicits comment on whether to retain 

the limit in current 40 CFR 50.9(b) that 

the 1-hour standard will not be revoked 

for any area until the 8-hour standard is 

no longer subject to legal challenge. 

(iv) Other possible approaches for the 

transition from the 1-hour to the 8-hour 

standard.

EPA considered other approaches for 

the timing of the revocation of the 1-

hour ozone standard; these are 

discussed in a separate document 

available in the docket.25

3. What Obligations Should Continue 

To Apply as an Area Begins To 

Implement the 8-Hour Ozone NAAQS 

and What Obligations Should no Longer 

Apply? 

In this section, we consider what 

obligations from subpart 2 relative to the 

1-hour ozone standard should continue 

to apply to areas after they have been 

designated for the 8-hour standard. We 

are proposing that the continuity of 

particular obligations should vary 

depending on the attainment status of 

an area for both the 1-hour and 8-hour 

standard. We first discuss those 

obligations that we propose should 

continue to apply to an area that is 

designated nonattainment for the 8-hour 

NAAQS, and that was designated 

nonattainment for the 1-hour ozone 

standard on or after November 15, 1990. 

Second, we discuss those obligations 

that should continue to apply to an area 

that is designated attainment for the 8-

hour NAAQS, and that was designated 

nonattainment for the 1-hour standard 

on or after November 15, 1990. (This 

section addresses only the continued 

application of requirements that applied 

by virtue of an area having been 

designated nonattainment for the 1-hour 

standard at some point following 

enactment of the CAA Amendments of 

1990. It does not address areas that have 

been designated attainment for the 1-

hour standard at all times since 

November 15, 1990, because they would 

not have any continuing obligations 

under subpart 2 for purposes of the 1-

hour standard.) Finally, we address 

States’ continued obligations with 

respect to the NOX SIP Call. We address 

this issue separately since this 

obligation applies statewide and 

without respect to the designation status 

of areas within the State. 

In general, the types of obligations 

that apply to areas by virtue of their 1-

hour classification can be broken into 

three groups: control obligations; 

measures to address growth in new 

sources; and planning obligations. 

Control measures include specific 

emission reduction obligations such as 

NOX RACT, I/M, and fuel programs, 

which are mandated in subpart 2. 

Measures to address growth are NSR 

(required under subpart 1 and subpart 2) 

and conformity (required by subpart 1). 

Planning obligations consist of 

attainment and maintenance 

demonstrations and RFP plans. For 

purposes of clarifying what we are 

proposing with respect to control 

measures, we also discuss in this 

section ‘‘discretionary’’ control 

measures that are not specified in 

subpart 2. Generally, these are 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.

a. What obligations should continue 

to apply for an area that is designated 

nonattainment for the 8-hour NAAQS 

and that was designated nonattainment 

for the 1-hour ozone NAAQS on or after 

November 15, 1990? We believe 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. We interpret 

the mandated obligations in subpart 2 

for purposes of an area’s 1-hour ozone 

classification to remain applicable to 

such areas by virtue of the area’s 

classification ‘‘as a matter of law’’ in 

1990. (Appendix B of this proposed 

rulemaking contains a list of the subpart 

2 requirements that remain applicable.) 

The three types of obligations described 

above (control obligations, measures to 

address growth in new sources, and 

planning obligations) are discussed 

separately below. 

(i) Control measures. We are 

proposing that all areas designated 

nonattainment for the 8-hour ozone 

NAAQS remain subject to control 

measures that applied by virtue of the 

area’s classification for the 1-hour 

standard. To the extent the area has met 

the obligation and the control measure 

is a part of the approved SIP, the State 

could not modify or remove that 

measure except to the extent that it 

could modify or remove that measure 

for purposes of the 1-hour standard and 

subject to a demonstration under section 

110(l) that modification or removal 

would not interfere with attainment or 

maintenance of the 8-hour ozone 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32821

26 In addition, for a revision to an obligation that 

was in effect prior to November 15, 1990, section 

193 prohibits a SIP revision without a showing that 

it would result in equivalent or greater emission 

reductions. For purposes of avoiding repetition, we 

do not mention section 193 in each of the examples 

discussed in this section. However, States remain 

obligated to make the section 193 demonstration for 

any revision to a requirement that applied prior to 

November 15, 1990.

27A maintenance plan, which is a SIP revision 

required under sections 107(d)(3)(E) and 175A as a 

prerequisite for redesignating a nonattainment area 

to attainment, must provide for maintenance of the 

NAAQS for 10 years after redesignation and must 

contain contingency measures to promptly correct 

any violation of the standard that occurs after 

redesignation. Contingency measures must provide 

for implementation of all measures that were 

contained in the SIP for the area before 

redesignation of the area as an attainment area.

NAAQS.26 For control measures that the 

State has not yet adopted, the State 

remains obligated to adopt and submit 

such controls. And, once adopted into 

the approved SIP, the State could not 

modify or remove that measure except 

to the extent that it could modify or 

remove that measure for purposes of the 

1-hour standard and subject to a 

demonstration under section 110(l) that 

modification or removal would not 

interfere with attainment or 

maintenance of the 8-hour ozone 

NAAQS. This obligation would apply 

only to the part of the 8-hour ozone 

nonattainment area that was designated 

nonattainment for the 1-hour ozone 

NAAQS.

To illustrate what we are proposing, 

we provide the following example, 

which will also be used in the next 

section discussing discretionary control 

measures. Assume an area is classified 

as marginal for the 8-hour ozone 

NAAQS and was classified as serious 

for the 1-hour ozone NAAQS at the time 

of the 8-hour designations. Also assume 

RACT for a particular source category is 

considered an 80 percent reduction in 

uncontrolled emissions of VOCs at all 

major sources. In its 1-hour SIP, the 

State chose to require emissions 

reductions of 90 percent and the RACT 

requirement applied to all major 

stationary sources, which for a serious 

area includes all sources that emit 

greater than 50 tons/year VOCs. After 

designation for the 8-hour standard, the 

State wants to modify this RACT 

requirement to require only 80 percent 

reduction in emissions and to limit the 

requirement to sources that emit 100 

tons/year of VOCs. Because the State 

could not have modified the RACT 

obligation to apply only to sources 

emitting 100 tons/year or more of VOCs 

for purposes of the 1-hour standard, the 

State could not change the source cutoff from 50 tons/year for purposes of the 

8-hour standard. The 50 tons/year major 

source threshold would continue to be 

an ‘‘applicable requirement’’ for the part 

of the area that was designated 

nonattainment for the 1-hour NAAQS. 

The State, however, could apply RACT 

only to sources that emit 100 tons/year 

or more for any portion of the area that 

was not a part of the 1-hour serious 

nonattainment area. While the 80 

percent control level would be 

considered mandatory, the 90 percent 

control level was not mandated by the 

CAA and thus is considered a 

‘‘discretionary control measure.’’ We 

address below how modification of a 

discretionary control measure would be 

treated under this proposal.

The same principle would hold true 

for control measures in a maintenance 

plan for an area that was designated 

nonattainment for the 1-hour standard 

at or after November 15, 1990 and that 

was subsequently redesignated to 

attainment under the 1-hour ozone 

standard.27 Subpart 2 control measures 

(including those that had been shifted to 

contingency measures) could not be 

removed from the SIP and could be 

modified only to the extent that they 

could have been modified if the 1-hour 

standard remained in effect for the area. 

If the State had previously shifted a 

mandated subpart 2 control measure to 

its contingency plan, we would not 

require that the area begin to implement 

that measure as part of its 8-hour 

implementation plan, if the measure 

was not required under its classification 

under the 8-hour standard. However, 

the measure would need to remain as a 

contingency measure for the area and 

could not be removed from the SIP.

(ii) Discretionary control measures.

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 are proposing that no additional 

burden be placed on the State. For 

purposes of the 1-hour standard, 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). Under the 

CAA, for purposes of the 8-hour 

standard, the same obligation would 

apply except the State would need to 

make the demonstration with respect to 

the 8-hour standard instead of the 1-

hour standard. 

In the example above, if a State wants 

to revise the control level for certain 

sources from 90 percent control to 80 

percent control, the State may do so 

because subpart 2 mandated RACT in 

this example is an 80 percent level of 

control rather than a 90 percent control 

level. The 90 percent control level thus 

was ‘‘discretionary.’’ We are proposing 

that no additional burden, beyond the 

statutory section 110(l) test, be placed 

on the State to alter this requirement. 

Thus, to revise the control level, the 

State would need to demonstrate, 

consistent with section 110(l), that the 

lower control level of 80 percent would 

not interfere with attainment of the 8-

hour standard or RFP for the 8-hour 

standard (or any other applicable 

requirement of the CAA). 

A number of SIPs contain enforceable 

commitments to adopt additional 

discretionary emission reduction 

control measures in the future. The 

State remains obligated to these 

commitments to the same extent as if 

they were adopted measures. The only 

way a State may modify or remove such 

a commitment is through a 

demonstration under section 110(l). 

(iii) Measures to address growth. For 

1-hour nonattainment NSR 

requirements in place at the time an 

area is designated nonattainment for the 

8-hour standard, we are proposing that 

the major source applicability cut-offs 

and offset ratios continue to apply to the 

extent the area has a higher 

classification for the 1-hour standard 

than for the 8-hour standard. We see no 

rationale under the CAA—given the 

Congressional intent for areas 

‘‘classified by operation of law’’—why 

the existing NSR requirements should 

not remain ‘‘applicable requirements’’

for the portion of the 8-hour 

nonattainment area that was classified 

higher for the 1-hour standard. 

However, if an area has been 

redesignated to attainment for the 1-

hour standard as of the date of 

designation for the 8-hour standard, and 

is thus no longer implementing the 

nonattainment NSR program for its 

previous 1-hour ozone classification, it 

would not need to revert back to the 

program it had for purposes of the 1-

hour standard. For example, if an area 

is classified moderate under the 8-hour 

standard, but was classified severe 

under the 1-hour standard at the time of 

the 8-hour designations, the portion of 

the 8-hour nonattainment area that was 

classified severe for the 1-hour standard 

would remain subject to an offset ratio 

of 1.3:1 and a major source threshold of 

25 tons/year. The remaining portions of 

the 8-hour area would be subject to the 

offset ratio for moderate areas (1.15:1) 

32822 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

28 For instance, an area with a past-due obligation 

to revise its SIP to develop a new attainment 

demonstration for the 1-hour standard could 

possibly submit such a revision within the next 

year or so (2004–2005), with emissions reductions 

beginning to occur likely within 1 or 2 years (by 

2006–2007). If this area were now only required to 

address the 8-hour standard, it would not have to 

submit a new attainment demonstration until 2007, 

as proposed elsewhere in this proposed rule, with 

emissions reductions occurring from that 

demonstration likely a year or more after 2007, 

which is several years after the time period possible 

by fulfilling the existing obligation.

and the moderate area major source 

threshold (100 tons/year). If the severe 

1-hour area had been redesignated to 

attainment prior to the time of the 8-

hour designations and was subject to 

PSD rather than NSR, however, the 

entire designated area for the 8-hour 

standard would be subject to the offset 

ratio and major source threshold for a 

moderate area. 

(iv) Planning SIPs. Most areas that are 

nonattainment under the 1-hour 

standard have already adopted 

attainment and ROP plans. However, 

there are a few areas that remain 

obligated to submit attainment or ROP 

SIPs. We have outlined our proposal for 

addressing ROP elsewhere in this 

proposed rulemaking and will not 

repeat those options in detail here. In 

general, however, we are proposing that 

States are still obligated to address 

separately ROP that does not overlap 

with ROP obligations for the 8-hour 

NAAQS. Where the ROP obligations 

overlap, the area need not separately 

address ROP for the 1-hour standard. 

For ROP already adopted into the SIP, 

we are proposing that the State may 

remove or revise control measures 

needed to meet the ROP milestone if 

such control measures were 

‘‘discretionary,’’ as discussed above. 

But, a State could not revise or remove 

control measures if they would interfere 

with meeting the ROP goals. In other 

words, the CAA-mandated ROP 

emission reduction targets that applied 

for the 1-hour standard would still have 

to be met, but discretionary measures 

adopted to meet those targets could be 

modified, if the State makes the 

necessary showing under section 110(l).

With respect to attainment 

demonstrations, we are soliciting 

comment on the interpretation we 

should take for the two scenarios we 

believe exist. The first scenario would 

be a State that does not have a fully 

approved attainment demonstration 

under the 1-hour standard because it 

has failed to act in a timely manner. The 

second scenario is an area subject to an 

obligation to submit an attainment 

demonstration under the 1-hour 

standard in the future. In general, since 

attainment demonstrations are planning 

SIPs, and States must now be planning 

to attain the 8-hour NAAQS, one might 

argue that Congress could not have 

intended areas to continue to plan to 

meet a standard that EPA no longer 

considers to be adequately protective of 

public health. This is especially true 

when to do so would divert resources 

from planning to meet the 8-hour 

standard. In contrast, one could argue 

that allowing areas to bypass planning 

obligations under the 1-hour standard 

will delay attainment of health 

protection since States have more time 

to submit attainment plans under the 8-

hour standard than under the 1-hour 

standard.28

There are some cases where a State 

does not have a fully-approved 

attainment demonstration because it has 

failed to act in a timely manner. To lift 

that obligation from those areas simply 

because EPA had adopted a more 

stringent NAAQS could result in a more 

preferential treatment of those areas 

over areas that did adopt fullyapprovable attainment demonstrations 

with the requisite controls. For example, 

if an area has adopted controls to 

demonstrate attainment of the 1-hour 

standard, it may not remove those 

controls from its SIP without a 

demonstration that those controls would 

not interfere with attainment or progress 

toward the 8-hour standard (or any 

other applicable requirement of the 

CAA). Such an area likely would have 

more stringent control obligations in 

place than the area without a fullyapproved attainment SIP and would 

have a high hurdle to removing or 

altering those controls. In contrast, the 

area without a fully-approved 

attainment demonstration would likely 

make slower progress toward attaining 

the 8-hour NAAQS (at least in the shortterm) because it does not have all 

necessary measures in its approved SIP 

and—without a clear requirement to the 

contrary—would be under no pressure 

to have those measures in its SIP until 

its attainment demonstration for the 8-

hour NAAQS is due. 

For the following examples of actual 

situations, we are soliciting comment on 

whether to retain the obligation to 

develop a 1-hour attainment 

demonstration or to determine that the 

requirement no longer applies. In 

addition, we are soliciting comment on 

two alternatives that might address 

some of the inequities, while not 

subjecting States to the more 

complicated planning associated with 

developing two separate attainment 

demonstrations (one under the 1-hour 

standard and another under the 8-hour 

standard). Under the first alternative 

approach, areas that are subject to an 

obligation to submit a new or revised 

attainment demonstration would 

instead be required to submit a SIP 

revision that would obtain an advance 

increment of emissions reductions 

toward attainment of the 8-hour ozone 

standard within a specified, short-term 

timeframe. For example, we could 

require these areas to submit within 1 

year of promulgation of the 

implementation rule a plan revision that 

requires a specific percentage of 

emissions reductions (e.g., 5 percent or 

10 percent) from the baseline emissions 

for the 8-hour NAAQS. In addition, we 

could require that the measures be 

implemented in the near term, e.g., no 

more than 2 years after the required 

submission date. Under the second 

alternative, areas with an outstanding 

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. Submittal of an early 8-

hour attainment demonstration would 

likely prevent the inequity of areas 

avoiding emissions reductions in the 

short term, as described in the 

preceding footnote. 

• Example 1: An area has not met in 

part or in full a past-due obligation to 

submit a 1-hour attainment 

demonstration required because EPA 

reclassified the area to a higher 

classification after it failed to attain the 

1-hour standard by its attainment date. 

• Example 2: An area is subject to an 

obligation to submit an attainment 

demonstration in the future, as is the 

case where EPA applied its attainment 

date extension policy rather than 

reclassifying an area that failed to meet 

its attainment date and EPA has 

subsequently reclassified the area or 

soon will do so, because of the courts’

rejection of the extension policy. 

(v) Other obligations. A number of 

areas have SIPs that contain 

commitments to review their progress 

toward attaining the 1-hour NAAQS (in 

some cases, these are called ‘‘midcourse reviews’’). These SIP-approved 

commitments are enforceable, and EPA 

and the States can use these mid-course 

reviews to ensure that progress is being 

made consistent with the analysis in the 

area’s 1-hour attainment demonstration. 

The State remains obligated to honor 

these commitments.

b. What obligations continue to apply 

for areas that are designated attainment 

under the 8-hour standard and that 

were designated nonattainment for the 

1-hour standard on or after November 

15, 1990?

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32823

29Memorandum 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.

30Areas that are designated attainment under the 

8-hour standard and that were designated 

nonattainment for the 1-hour standard on or after 

November 15, 1990.

31Based on ambient ozone data for the period 

1998 to 2000 for the hypothetical nonattainment 

areas, we identified approximately 20 areas that are 

currently designated nonattainment under the 1-

hour standard but that will likely be designated 

attainment under the 8-hour standard).

(i) Obligations related to NSR. Areas 

that are in attainment for the 8-hour 

ozone NAAQS would not be subject to 

nonattainment NSR for the 8-hour 

standard. We believe it makes little 

sense to require nonattainment NSR to 

continue simply because these areas 

were previously designated 

nonattainment for the 1-hour standard. 

Thus, we propose that these areas 

would be subject to PSD and would not 

be subject to the nonattainment NSR 

offset and major source thresholds that 

applied under their classification for the 

1-hour standard. 

(ii) Obligations related to planning 

obligations other than maintenance 

plans. With respect to SIP planning 

obligations (ROP plans and attainment 

demonstrations), we are proposing that 

the SIP planning requirements that 

applied for purposes of the 1-hour 

standard would not continue to apply to 

these areas as long as they continue to 

maintain the 8-hour NAAQS. Thus, 

even if these areas have failed to meet 

ROP or attainment plan obligations for 

the 1-hour standard, they would not be 

required to meet them for so long as 

they remain in attainment with the 8-

hour standard. (As discussed below, 

however, we are proposing that such 

areas develop a maintenance plan under 

section 110(a)(1).) This approach is 

consistent with EPA’s ‘‘Clean Data 

Policy’’ 29 under the 1-hour standard, 

which provides for these planning 

obligations to be stayed once an area 

attains the standard, but only for so long 

as an area remains in attainment of the 

1-hour standard. If such an area violates 

the 8-hour NAAQS-prior to having an 

approved maintenance plan in effect (as 

proposed below to be required for these 

areas)—those obligations would once 

again apply in the same manner that 

they apply in areas designated 

nonattainment for the 8-hour ozone 

NAAQS.

(iii) Obligations related to control 

measures and maintenance plans. The 

issue of what obligation remains with 

respect to ‘‘non-discretionary’’ control 

measures approved into the SIP or 

required under the CAA is more 

difficult. Our approach for these is 

based on the CAA’s requirements for 

maintenance plans. (Consistent with our 

proposal for discretionary control 

measures in areas designated 

nonattainment for the 8-hour NAAQS, 

we would permit areas to modify 

discretionary measures for areas 

designated attainment for the 8-hour 

NAAQS so long as section 110(l) is met.) 

If EPA determined that these areas 30

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. Some 

commenters urged us to require all areas 

previously designated nonattainment for 

the 1-hour NAAQS to retain (where the 

area had been redesignated to 

attainment) or develop (where the area 

was still designated nonattainment for 

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

designations) a section 175A 

maintenance plan. However, we do not 

believe that a section 175A maintenance 

plan is mandated or is necessary for 

areas initially designated attainment for 

the 8-hour NAAQS.

Section 175A maintenance plans are 

required for areas that were designated 

nonattainment for a NAAQS and then 

subsequently redesignated to attainment 

for that NAAQS. The areas addressed in 

this section have never been designated 

nonattainment for the 8-hour ozone 

NAAQS. Moreover, they have a 

maintenance obligation that already 

applies: Section 110(a)(1) requires areas 

to demonstrate how they will attain and 

maintain a new or revised NAAQS.31

Therefore, we do not believe that 

Congress mandated that such areas be 

subject to the section 175A maintenance 

plan obligation for the 8-hour NAAQS, 

nor do we believe it is necessary to 

interpret that provision to apply.

For an area that was never 

redesignated to attainment for the 1-

hour standard and never had a section 

175A maintenance plan, we are 

proposing 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). Moreover, even if the 

State elects not to revise its existing SIP, 

we are proposing that the area submit a 

section 110(a)(1) maintenance plan 

within 3 years of designation as 

attainment for the 8-hour NAAQS. We 

believe that 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. Unlike section 

175A, section 110(a)(1) does not address 

contingency measures and thus does not 

specify that mandated controls in the 

existing SIP must be shifted to 

contingency measures if modified or 

removed. We are proposing that if the 

State adopts sufficient contingency 

measures, and if it makes a 

demonstration consistent with section 

110(1), it can modify or remove control 

measures in the approved SIP. 

We are also proposing that areas with 

approved 1-hour section 175A 

maintenance plans will 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). For 

these areas, we are proposing that the 

following obligations could be removed 

from the SIP if the State demonstrates 

that the area will maintain the 8-hour 

standard consistent with section 

110(a)(1) for a period of 10 years 

following designation for the 8-hour 

NAAQS:

• the obligation to submit a 

maintenance plan for the 1-hour 

standard 8 years after approval of their 

initial 1-hour maintenance plan; 

• the requirement to implement 

contingency measures upon a violation 

of the 1-hour ozone standard; however, 

such areas would need contingency 

measures as part of a maintenance SIP 

for the 8-hour NAAQS and States could 

elect to modify the existing contingency 

measure trigger so that it is based on a 

violation or exceedance of the 8-hour 

standard. 

(iv) Obligations related to conformity.

For all areas designated attainment for 

the 8-hour ozone NAAQS, the 

requirement to demonstrate conformity 

to the 1-hour standard would no longer 

apply once the 1-hour standard is 

revoked in whole or determined not to 

apply for that purpose under a partial 

revocation of the 1-hour standard (as 

proposed below). Under section 176 of 

the CAA, conformity applies to areas 

designated nonattainment or subject to 

the requirement to develop a 

maintenance plan pursuant to section 

175A. Areas designated attainment for 

the 8-hour standard would no longer be 

subject to the obligation to demonstrate 

conformity to the 1-hour emissions 

budgets in an approved attainment or 

ROP SIP or an approved section 175A 

maintenance plan for the 1-hour 

standard. The reason for this is that, 

under the options proposed below, they 

would either no longer be designated 

nonattainment for the 1-hour standard 

or the nonattainment designation would 

32824 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

32For instance, upon discussion between EPA 

and States, some States have in the past voluntarily 

agreed to revise their SIPs when it appears that the 

SIP is inadequate to attain or maintain the NAAQS.

no longer apply for purposes of 

conformity, and the area would no 

longer be required to develop a 

maintenance plan under section 175A 

for purposes of the 1-hour standard. 

c. What happens with respect to the 

NOX SIP Call?

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

establishes requirements for States to 

address the problem of transport. It 

requires a SIP to prohibit the State’s 

sources from emitting air pollutants in 

amounts that will contribute 

significantly to nonattainment, or 

interfere with maintenance, in one or 

more downwind States. As noted above 

in section I of this proposal, in 1998, 

EPA called on 22 States and the District 

of Columbia (‘‘States’’) to reduce 

emissions of NOX consistent with 

budgets set for each State. (63 FR 57356, 

October 27, 1998). Furthermore, EPA 

granted petitions under section 126 and 

thus directly regulated certain sources 

of NOX emissions in many of the States 

covered by the NOX SIP Call. (65 FR 

2674, January 18, 2000). Below, we refer 

to these collectively as the ‘‘NOX

transport rules.’’

The NOX transport rules were 

designed to prevent upwind NOX

emissions from contributing to 

nonattainment in a downwind area for 

both the 1-hour and 8-hour ozone 

NAAQS. EPA, however, stayed the 8-

hour basis for the NOX transport rules 

in response to the extensive and 

extended litigation (described above) 

that occurred concerning the 

establishment of the 8-hour ozone 

standard. We intend to take rulemaking 

action to lift the stay of the 8-hour basis 

for these rules. 

We believe it important to ensure that 

the transition to the 8-hour standard 

does not have the effect of jeopardizing 

the controls required to be in place 

under the NOX transport rules. 

Regardless of whether EPA lifts the stay 

of the 8-hour basis for these rules, the 

controls required have substantial 

benefits for reductions of both 1-hour 

and 8-hour ozone levels. We believe that 

relaxing such controls would be 

contrary to the principles we identified 

above for an effective transition. 

Consequently, we are proposing that 

States must continue to adhere to the 

emission budgets established by the 

NOX SIP Call after the 1-hour standard 

is revoked in whole or in part, as 

proposed below. Similarly, we are not 

proposing to revoke or modify its 

section 126 regulation. 

However, States retain the authority 

to revise the control obligations they 

have established for specific sources or 

source categories, if they continue to 

meet their SIP Call budgets. In addition, 

consistent with section 110(l), the States 

would need to demonstrate that the 

modification in control obligations 

would not interfere with attainment of 

or progress toward the 8-hour NAAQS 

or with any other applicable 

requirement of the CAA. 

d. What additional obligations under 

part D of title I of the CAA would not 

continue to apply after the 1-hour 

standard is revoked in whole or in part?

As discussed elsewhere in this 

proposal, we are proposing that areas 

would not be obligated to continue to 

demonstrate conformity for the 1-hour 

standard once the 1-year grace period 

for application of conformity for the 8-

hour standard has elapsed. 

In addition, EPA would not take 

certain actions with respect to the 1-

hour ozone NAAQS. First, we are 

proposing that we would no longer 

make findings of failure to attain the 1-

hour standard and, therefore, would not 

reclassify areas to a higher classification 

for the 1-hour standard based on a 

failure to meet the 1-hour standard. We 

believe that areas should focus their 

resources on attainment of the 8-hour 

standard and that it would be 

counterproductive to establish new 

obligations for States with respect to the 

1-hour standard after they have begun 

planning for the 8-hour standard. 

(Moreover, we note that the attainment 

dates for marginal, moderate and serious 

areas have passed and the CAA does not 

provide for reclassification of severe 

areas in the absence of a request by the 

State.) EPA must ensure that areas are 

continuing to make progress toward 

cleaner air. If EPA determines that a 

State is not adequately implementing an 

approved SIP and achieving air quality 

reductions in a timely manner, EPA may 

enter into an informal process to ensure 

the State takes any necessary action 32

or, alternatively, may take more formal 

action such as making a finding of 

failure to implement the SIP or issuing 

a SIP Call to require action. As noted 

above, many areas have SIPs that 

contain commitments to review their 

progress toward attaining the 1-hour 

NAAQS (‘‘mid-course review’’). These 

SIP-approved commitments are 

enforceable, and EPA and the States can 

use these mid-course reviews to ensure 

that progress is being made consistent 

with the analysis in the area’s 1-hour 

attainment demonstration.

4. Does the Requirement for Continued 

Implementation of the Obligations 

Addressed Above Expire at Some Point? 

The SIP obligations under the 1-hour 

standard for an area’s classification 

under the 1-hour standard would not 

expire after the 1-hour standard is 

revoked in whole or in part. However, 

for those mandatory requirements that 

continue to apply to an area due to the 

area’s classification for the 1-hour 

NAAQS, we are proposing two options 

for when the State may move the 

mandatory measures to a maintenance 

plan in the SIP and treat them as 

contingency measures:

a. Option 1. When the area achieves 

the level of the 1-hour ozone standard 

(even if the area has not yet attained the 

8-hour standard). The rationale for this 

option is that Congress intended an area 

to continue to implement these 

obligations until it attained the 1-hour 

standard, at which time the area would 

be able to discontinue implementation 

upon a showing of continued 

maintenance. However, in such a case, 

the area could not remove the measures 

from the SIP; rather, it could shift such 

measures to contingency measures. 

b. Option 2. When the area attains the 

8-hour standard and is designated 

attainment (regardless of when, if ever, 

the area attains the 1-hour standard). 

The rationale for this option is that the 

8-hour standard is the standard that 

EPA has determined will protect public 

health and the environment. Once an 

area demonstrates it has met and can 

maintain the health protective standard, 

it would be appropriate to remove or 

modify those controls. 

It should be noted that either of these 

two options could apply for either of the 

transition options, discussed in section 

2, above. 

It should also be noted that the SIP 

obligations would include not only 

requirements in the 1-hour 

nonattainment area but also for the SIP 

in general, including the SIP 

requirements to address the NOX SIP 

Call. We are proposing under the antibacksliding provision in section 110(l) 

to require that the SIP retain the NOX

SIP Call controls that have already been 

approved. In the absence of appropriate 

regional scale modeling that would 

demonstrate that changing a SIP Call 

control to a contingency measure would 

not interfere with attainment or 

maintenance in any other State, the 

State could not shift SIP Call control 

strategies to contingency measures. The 

State would, of course, also have to 

submit a demonstration that the SIP 

change would not interfere with 

attainment or reasonable further 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32825

progress for any air quality standard or 

other applicable requirement of the Act. 

5. How Will EPA Ensure That the Public 

Knows Which Areas Must Continue 

Provisions Under the 1-Hour SIPs if 

EPA Revokes the 1-Hour Standard? 

EPA would promulgate regulatory 

provisions identifying the obligations to 

which areas remain subject, and 

identifying the areas. If EPA ultimately 

chooses to revoke the 1-hour standard 

and the associated designations and 

classifications shortly after designations 

for the 8-hour standard (as proposed 

below), EPA would ensure that there are 

provisions in the Code of Federal 

Regulations (CFR) that continue to 

define the boundaries for those areas. 

The reason for this is that boundaries for 

8-hour ozone nonattainment areas may 

not be coextensive with those for the 1-

hour standard, and EPA would need to 

make clear which areas or portions of 

areas must continue to implement 

obligations due to their 1-hour 

classification. 

D. Should Prescribed Requirements of 

Subpart 2 Apply in all 8-Hour 

Nonattainment Areas Classified Under 

Subpart 2, or Is There Flexibility in 

Application in Certain Narrowly 

Defined Circumstances? 

1. Background 

The 1990 CAA Amendments 

overhauled the CAA’s requirements for 

ozone nonattainment areas and, in 

doing so, specified new mandatory 

measures for many areas. The new 

approach embodied in subpart 2 was to 

classify areas according to the severity 

of their pollution. Areas with more 

serious ozone pollution were allowed 

more time to meet the standard—but 

were required to adopt more numerous 

and stringent measures depending on 

their classification. Congressional 

proponents of this approach argued that 

specifying mandatory measures in the 

statute was necessary because States 

and EPA, prior to 1990, had failed to 

ensure that SIPs achieve steady 

reasonable progress in reducing 

emissions or to require readily available 

measures that were cost effective and 

needed to meet the standard. 

Mandatory subpart 2 requirements for 

moderate and higher-classified areas 

include, for example, specific ROP 

requirements (including a 15 percent 

VOC reduction for moderate and above 

areas), basic I/M programs, a 

requirement that sources subject to NSR 

obtain emissions offsets at a ratio of 

1.15-to-1, and RACT for NOX sources as 

well as VOC sources. Serious and severe 

areas are subject to additional measures 

such as further ROP requirements, 

applicability of NSR to smaller sources, 

enhanced I/M, and applicability of 

RACT to smaller sources. (Appendix A 

presents a summary comparison of 

measures under subparts 1 and 2.) 

For the proposed 8-hour ozone 

implementation strategy, EPA has 

examined the issue of mandatory 

measures from both legal and policy 

standpoints. EPA’s legal view is guided 

by the Supreme Court decision. The 

Court held that Congress drastically 

limited EPA’s discretion on whether the 

mandatory requirements of subpart 2 

will apply to 8-hour areas by concluding 

that the classification scheme of subpart 

2 applied for purposes of a revised 

ozone NAAQS. ATA I, 175 F3d at 1048–

1050. 

As discussed elsewhere, the Supreme 

Court decision states that subpart 2 

provides for classification of areas under 

the 8-hour standard. With respect to the 

requirements of subpart 2, the Supreme 

Court stated, ‘‘The principal distinction 

between Subpart 1 and Subpart 2 is that 

the latter eliminates regulatory 

discretion that the former allowed.’’

Whitman 121 S.Ct. at 918. The Court 

went on to state, ‘‘Whereas Subpart 1 

gives EPA considerable discretion to 

shape nonattainment programs, Subpart 

2 prescribes large parts of them by law.’’

Id. The Court also stated, ‘‘EPA may not 

construe the statute in a way that 

completely nullifies textually applicable 

provisions meant to limit its 

discretion.’’ Id. 918–919. 

Once an area is classified under 

subpart 2, the subpart 2 requirements 

apply. EPA may have some limited 

ability to change or limit subpart 2 

controls, consistent with the statutory 

language, but EPA cannot broadly waive 

those requirements. For example, EPA 

may have some flexibility to modify 

regulatory requirements for programs 

such as NSR (discussed elsewhere in 

this proposed rulemaking). 

Furthermore, subpart 2 provides 

discretion to EPA in implementing 

certain provisions already, such as 

waivers for stage II vapor recovery, NOX

RACT and NOX NSR. In addition, case 

law may provide EPA with some 

flexibility to waive federally applicable 

requirements on a case-by-case basis 

where application of those requirements 

would produce an ‘‘absurd result.’’

With respect to policy considerations, 

some commenters at public meetings or 

in written submissions to EPA have 

expressed the view that mandatory 

measures are needed to ensure actions 

are taken, but a number of commenters 

have raised concerns. These include 

whether mandated VOC controls will be 

appropriate for all areas in the future, 

and whether mandatory measures are 

appropriate in areas projected to attain 

in the near term. A number of 

commenters recommended that EPA 

allow for flexibility in implementing the 

8-hour ozone standard and not require 

mandatory measures, such as local VOC 

measures, where they would not be very 

effective in achieving attainment of the 

standard. In many cases, particularly for 

areas that would be new nonattainment 

areas under the 8-hour standard, region 

wide NOX controls and national 

controls on mobile sources are predicted 

to greatly reduce the areas’ ozone levels 

and to bring many into attainment 

without additional local emission 

controls.

Although a number of comments were 

received on the issue of flexibility, 

many commenters on this issue took the 

position that they would prefer areas to 

be classified under subpart 1 rather than 

subpart 2. Some commenters did 

recommend that EPA make the 

argument that new information about 

the relative benefits of NOX and VOC 

control would lead to allowing more 

tailored controls for a number of areas, 

rather than the one-size-fits-all approach 

of subpart 2. However, commenters did 

not suggest how the CAA could be 

interpreted to allow the flexibility they 

were advocating for the mandatory 

requirements of subpart 2. Other 

commenters argued that the subpart 2 

measures are mandatory under the CAA 

for areas classified under subpart 2 and 

that the CAA does not provide 

flexibility to waive those requirements. 

Regarding the VOC/NOX issue, we 

observe that scientific understanding of 

ozone pollution and the impact of 

control strategies has improved over 

time. Prior to 1990, the main focus of 

ozone control strategies was VOC 

control. Since then, scientific studies 

have more clearly recognized the role of 

NOX, biogenic emissions, and transport 

of ozone and NOX in ozone 

nonattainment. In response, EPA’s 

ozone strategy for the 1-hour standard 

evolved to put greater emphasis on 

controlling NOX in addition to VOC and 

to require control of NOX emissions that 

contribute to interstate ozone problems. 

We recognize that the relative 

effectiveness of VOC and NOX controls 

will vary from area to area, depending 

significantly upon VOC/NOX ratios in 

the atmosphere. Current scientific 

information shows that VOC reductions 

will reduce ozone in urban areas and in 

other areas where there is excess NOX

available for reaction. Ozone levels in 

areas that are less urban and have lower 

NOX emissions, or that have high 

biogenic VOC levels, may be more 

sensitive to NOX control and less 

32826 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

33Additional Options Considered for ‘‘Proposed 

Rule to Implement the 8-Hour Ozone National 

Ambient Air Quality Standard.’’ U.S. 

Environmental Protection Agency, Office of Air 

Quality Planning and Standards, Research Triangle 

Park, NC. March 2003.

sensitive to VOC control. Because ozone 

formation is greatly affected by 

meteorological conditions and source/

receptor orientation, ozone formation 

may be limited by either VOC or NOX

concentrations at different times and 

locations within the same area. 

In order to support the approach 

proposed below, we solicit relevant 

technical information on this issue from 

States and others. 

2. Approach Being Proposed 

In line with the legal interpretation 

above, we are proposing that subpart 2 

requirements would apply to each area 

classified under subpart 2 consistent 

with the area’s classification. However, 

today’s proposal contains several 

features intended to provide States with 

flexibility on the measures required to 

be included in SIPs for 8-hour areas. 

First, as explained in the section on 

classifications above, proposed 

classification option 2 would result in a 

number of areas being classified under 

subpart 1 rather than under subpart 2. 

Second, for both classification options, 

we are proposing an incentive feature 

that would allow areas to qualify for a 

lower classification with fewer 

mandatory requirements if the area 

could show it will meet the standard by 

the deadline for the lower classification. 

This would, for example, allow any area 

projected to attain by 2007 based on 

existing Federal measures and any State 

or local measures approved into the SIP 

to be classified as marginal and to avoid 

subpart 2 mandatory measures—some of 

which may be significant—that apply to 

higher classifications. 

Under either of our proposed 

classification frameworks, a majority of 

potential 8-hour areas would not be 

subject to significant subpart 2 

mandatory measures because they 

would be classified marginal or lower. 

Based on our analysis of hypothetical 

nonattainment areas, there would be 

fewer than 10 potential 8-hour 

nonattainment areas classified ‘‘serious’’

or above, and these areas already are 

implementing requirements applicable 

to serious or above areas for the 1-hour 

standard. Therefore, the main impact of 

subpart 2 mandatory measures in 8-hour 

implementation would be on (1) areas 

that are classified as moderate, and did 

not have to meet moderate or above 

requirements for the 1-hour standard, 

(2) areas classified as moderate or above 

that would be subject to ROP 

requirements for the 8-hour NAAQS, 

and (3) new counties or areas included 

as part of a serious or higher classified 

nonattainment area. 

As a third flexibility mechanism, we 

are proposing to consider allowing caseby-case waivers when sufficient 

evidence is presented that application of 

a specific requirement in a particular 

area would cause absurd results. 

Evidence of an absurd result might, for 

example, include a modeled 

demonstration that future VOC 

reductions required under subpart 2 for 

a particular area would actually cause 

ozone to increase more than a de 

minimis amount and therefore increase 

the amount of NOX emissions 

reductions needed for the attainment 

demonstration. Such a showing would 

also have to account for the potential 

benefits of the mandated controls in 

downwind areas in determining 

whether on the whole the application of 

the subpart 2 measure would produce 

an absurd result.

We believe that absurd results will 

happen only rarely in those cases where 

application of the requirement in that 

area would thwart the intent of Congress 

in enacting the relevant provisions of 

the CAA. In such cases, EPA may be 

able to provide limited relief to the area, 

but only to the degree needed to protect 

Congressional intent. For example, we 

believe that the purpose of the 15 

percent VOC ROP requirement is to 

ensure that areas make progress 

cleaning up their air and moving toward 

their goal of attainment in the first 6 

years following the emissions baseline 

year. If an area could demonstrate that 

reductions in VOC would provide no 

progress toward attaining the standard, 

EPA may be allowed to interpret the 

statute to allow for reduction in NOX

emissions instead. EPA could not, 

however, simply waive the requirement 

for the area to meet the ROP goals of the 

CAA. Moreover, it would not be 

sufficient for the area to show that VOC 

reductions would be less beneficial than 

NOX reductions. While one might 

contend that such a result is not the 

most logical result, it is not absurd. The 

above example is a simplistic example—

application of the absurd results test in 

any specific situation would likely be 

more complex. In any specific situation, 

we would need to consider all of the 

facts in light of various statutory 

provisions. For example, we would 

need to consider that another goal of the 

SIP provisions in the CAA is to mitigate 

transport of ozone (and ozone 

precursors). Therefore, in determining 

whether there is an ‘‘absurd result,’’ we 

would not only need to consider the 

implications for the specific area 

asserting an absurd result, but also the 

effects on downwind areas. 

A State attempting an absurd results 

demonstration would have to work very 

closely with EPA to ensure that the 

demonstration passes the highest 

standards of technical credibility. If we 

had information that the agency believes 

supports an absurd results showing, we 

would make that information available 

to the State. The State would, of course, 

have to subject this demonstration to the 

same public process carried out for the 

SIP submission itself prior to 

submission to EPA of the SIP containing 

the demonstration. In no way would 

this waiver exempt an area from the 

requirement to demonstrate attainment 

by the attainment date or to demonstrate 

RFP toward attainment consistent with 

the area’s classification. We would have 

to review the State’s demonstration as to 

whether the result is ‘‘absurd’’ in light 

of the particular statutory requirement 

at issue and within the context of the 

statute as a whole. Simply because a 

State may demonstrate an absurd result 

for purposes of meeting one statutory 

provision, such as the requirement for a 

15 percent VOC reduction within 6 

years after a base year, this does not 

imply that some other provision of the 

CAA that requires VOC reductions is 

automatically considered ‘‘absurd.’’

3. Other Approaches Considered 

We considered a number of other 

options for allowing additional 

flexibility for subpart 2 requirements. 

These other options that were 

considered but are not being proposed 

are described in a separate document 

available in the docket.33

E. What Is the Required Timeframe for 

Obtaining Emissions Reductions To 

Ensure Attainment by the Attainment 

Date? 

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. 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32827

34As a result of court actions, certain 

circumstances upon which the Section 126 Rule 

withdrawal provision was based have changed. The 

compliance dates for the Section 126 Rule and the 

NOX SIP Call have been delayed and the NOX SIP 

Call has been divided into two phases. The EPA 

recently issued a proposed rulemaking to update 

the withdrawal provision so that it will operate 

appropriately under these new circumstances (68 

FR 16644, April 4, 2003).

35The Agency stayed the 8-hour basis for both 

rules in response to the extensive and extended 

litigation that occurred concerning the 

establishment of the 8-hour ozone standard. (65 FR 

56245, September 18, 2000 and 65 FR 2674, January 

18, 2000). Recently, however, the Administrator 

signed a final rule on the UV–B issue and 

reaffirmed the 8-hour ozone standard (68 FR 614, 

January 6, 2003), which was remanded to EPA in 

ATA I, 175 F.3d 1027. Having now reaffirmed the 

8-hour standard, the Agency plans to take action in 

the near future to reinstate the 8-hour bases for both 

the NOX SIP Call and the Section 126 Rule. Such 

action would provide the initial basis for dealing 

with ozone transport as part of the implementation 

of the 8-hour standard.

States should be aware of the 

consequences of failing to implement 

the control measures necessary for 

attainment sufficiently far in advance of 

the attainment date. For areas covered 

under subpart 2, section 181(a)(5) of the 

CAA does allow for up to two 1-year 

attainment date extensions in certain 

circumstances. We are proposing how 

those extension provisions would be 

implemented elsewhere in this proposal 

under the discussion of attainment 

dates. To obtain the first of the 1-year 

extensions, the CAA basically requires 

that the area be meeting the level of the 

standard in the attainment year itself, 

even if the area has not actually attained 

considering the most recent 3 years of 

data. Thus, the States should ensure that 

the emissions reductions be 

implemented to ensure that ozone levels 

for the ozone season preceding the 

attainment date are below the level of 

the standard. If an area does not meet 

the eligibility requirements for a 1-year 

extension (as proposed elsewhere in this 

rulemaking) in the attainment year, then 

the area would not be eligible for an 

attainment date extension, and EPA 

would have an obligation to reclassify 

the area to a higher classification 

(‘‘bump-up’’). A marginal area with an 

attainment date 3 years after its 

nonattainment designation that fails to 

attain would be subject to bump-up to 

at least moderate, and would then have 

to prepare a plan to attain within 3 years 

afterward (6 years after their 

nonattainment designation). 

There is further discussion of this 

situation as it relates to the 1-hour 

ozone standard in the General Preamble 

of April 16, 1992 (57 FR 13498, 13506); 

this discussion may have some 

applicability to the 8-hour standard. 

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.

Elsewhere in this notice of proposed 

rulemaking, we also refer to requiring 

that emission reductions needed for 

attainment need to be implemented by 

the attainment date. By this, we mean 

that they must be implemented by the 

beginning of the ozone season prior to 

the attainment date. In other words, if 

the attainment date is April 15, 2010, 

the reductions would need to be 

implemented by the beginning of the 

ozone season in the previous year 

(2009). Ozone seasons are defined in 40 

CFR Part 58, Appendix D; for many 

States, the ozone season starts March 1 

or April 1. 

F. How Will EPA Address Long-Range 

Transport of Ground-Level Ozone and 

Its Precursors When Implementing the 

8-Hour Ozone Standard? 

1. Background 

Although much progress has been 

made over the last decade to improve air 

quality, many States contain areas that 

have not yet attained the 1-hour ozone 

standard and/or that are violating the 8-

hour ozone standard. Some of these 

areas are significantly affected by 

interstate ozone transport from upwind 

areas. Wind currents can transport 

ozone and NOX, a primary precursor to 

ozone, long distances, affecting multiple 

States downwind of a source area. EPA 

recognizes that this type of interstate 

transport can make it difficult—or 

impossible—for some States to meet 

their attainment deadlines solely by 

regulating sources within their own 

boundaries. The 1990 Amendments to 

the CAA reflect Congress’ awareness 

that ozone is a regional, and not solely 

a local problem. Section 110(a)(2)(D) 

provides an important tool for 

addressing the problem of transport. It 

provides that a SIP must contain 

adequate provisions to prohibit sources 

in a State from emitting air pollutants in 

amounts that contribute significantly to 

nonattainment, or interfere with 

maintenance, in one or more downwind 

States. Section 110(k)(5) authorizes EPA 

to find that a SIP is substantially 

inadequate to meet any CAA 

requirement, including the requirements 

of section 110(a)(2)(d). If EPA makes 

such a finding, it must require the State 

to submit, within a specified period, a 

SIP revision to correct the inadequacy. 

The CAA further addresses interstate 

transport of pollution in section 126, 

which authorizes any State to petition 

EPA for a finding designed to protect 

the State from significant upwind 

sources of air pollutants from other 

States. 

In the past several years, EPA has 

conducted two rulemakings to control 

interstate ozone transport in the eastern 

U.S. In 1998, EPA issued the NOX SIP 

Call, which requires certain States in the 

eastern U.S. to meet statewide NOX

emissions budgets (63 FR 57356, 

October 27, 1998.) State programs to 

implement the rule have focused on 

reducing emissions from electric power 

generators and large industrial emitters. 

In addition, in response to petitions 

submitted by several northeastern States 

under section 126, EPA issued a 

separate rule (usually known as the 

Section 126 Rule) to establish Federal 

control requirements for certain electric 

power generators and industrial boilers 

and turbines in upwind States (64 FR 

28250, May 25, 1999 and 65 FR 2674, 

January 18, 2000). For both rules, the 

compliance date for achieving the 

required NOX reductions is May 31, 

2004. These two transport rules overlap 

considerably, with the NOX SIP Call 

being the broader action affecting more 

States. All the States affected by the 

Section 126 Rule are covered by the 

NOX SIP Call. Therefore, EPA 

coordinated the two rulemakings and 

established a mechanism under which 

the Section 126 Rule would be 

withdrawn for sources in a State where 

EPA has approved a SIP meeting the 

NOX SIP Call.34

In both the NOX SIP Call and the 

Section 126 Rule, EPA made 

determinations of whether upwind 

sources are significantly contributing to 

downwind nonattainment problems 

under both the 1-hour and 8-hour ozone 

standards. In the final SIP Call rule, EPA 

determined that the same level of 

reductions was needed to address 

transport for both the 1-hour and 8-hour 

standards.35 Thus, unlike in the past, 

States affected by transport can develop 

their new ozone implementation plans 

with the knowledge that the issue of 

interstate transport has already been 

addressed up front. This approach will 

provide these States with certainty that 

they will benefit from substantial 

emissions reductions from upwind 

sources and give them significantly 

improved boundary conditions that they 

32828 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

36The CAA’s requirement for RACM in section 

172(c)(1) does require the SIP to include RACM; 

EPA has noted in policy elsewhere that a measure 

is RACM if it is technologically and economically 

feasible and if it would advance the attainment 

date. Thus, if there are measures available in the 

nonattainment area that would advance the 

attainment date—even if attainment is likely at a 

later date due to upwind emissions reductions that 

occur later—then the CAA requires such measures 

to be in the SIP.

37Additional Options Considered for ‘‘Proposed 

Rule to Implement the 8-Hour Ozone National 

Ambient Air Quality Standard.’’ U.S. 

Environmental Protection Agency, Office of Air 

Quality Planning and Standards, Research Triangle 

Park, NC. March 2003.

can rely on as they work to identify 

additional emission reductions they will 

need to include in a local area’s 

attainment SIP.

2. EPA’s Anticipated Approach 

In providing their views to EPA on 

the 8-hour ozone implementation rule, 

the Ozone Transport Commission (OTC) 

and other State commenters have argued 

that the NOX SIP Call and the Section 

126 Rule are not fully adequate. In their 

view, additional steps are needed to 

reduce interstate transport of ozone and 

NOX to assist downwind areas in 

meeting the 8-hour ozone standard. In 

particular, these commenters have 

expressed continued concern about 

upwind emissions from power plants 

and other major sources and transported 

pollution from upwind cities. 

As described above, EPA has already 

taken two actions to address the issue of 

interstate transport for purposes of the 

8-hour standard. The NOX SIP Call and 

the Section 126 Rule require that States 

within the SIP Call make significant 

emissions reductions from power plants 

and other major sources that contribute 

to ozone nonattainment in downwind 

areas. For both rules, the compliance 

date for achieving the required 

emissions reductions is May 31, 2004. 

EPA intends to investigate the extent, 

severity and sources of interstate ozone 

transport that will exist after the NOX

SIP Call and the Section 126 Rule are 

implemented in 2004. The Agency 

believes that it may be appropriate to 

consider the need to reduce interstate 

transport that contributes to unhealthy 

levels of PM2.5 in downwind 

nonattainment areas when looking at 

any additional requirements for 

reducing the transport of ozone or ozone 

precursors. 

As noted above, the President recently 

proposed the CSA that, among other 

things, would achieve significant 

reductions—beyond those required 

under the SIP Call and the Section 126 

Rule—in the regional transport of ozone 

and ozone precursors. Detailed 

modeling by EPA for the year 2010 

shows that the 2008 Phase I NOX limits 

in the CSA would reduce maximum 8-

hour ozone levels in many parts of the 

eastern U.S., including a number of 

areas likely to be designated 

nonattainment for the 8-hour standard. 

The modeling results are available on 

the Web at http://www.epa.gov/

clearskies.

The Clear Skies reductions would 

enable several additional areas to meet 

the 8-hour standard without imposing 

any additional local controls. A number 

of other areas would find it easier to 

meet the 8-hour standard because of the 

additional reductions in power plant 

emissions that would be required under 

Clear Skies. However, the Agency has 

not made a determination that such 

reductions are warranted under the 

transport provisions of the CAA. As 

noted above, in order to evaluate this 

issue, the Agency intends to investigate 

the extent, severity and sources of 

interstate ozone transport that will exist 

after the existing transport rules are 

implemented in 2004. 

The Agency welcomes input from 

States and other interested parties as to 

how to deal with ozone transport 

effectively and equitably and on the 

technical and other issues that will have 

to be confronted as part of an evaluation 

of what further steps should be taken 

beyond the existing NOX SIP Call to 

deal with ozone transport.

3. Other Concerns About Transport 

EPA realizes that, whatever measures 

may be taken in the future, attainment 

demonstrations for some areas would 

continue to be complicated by the 

effects of ozone and transport from 

upwind sources and other 

nonattainment areas in cases where 

upwind source controls are scheduled 

for implementation after the downwind 

area’s attainment date (e.g., 2007 

attainment date). 

Downwind areas could be in one of 

two situations. In the first situation, an 

area might be receiving such high levels 

of transported ozone or ozone 

precursors that even if it totally 

eliminated its own emissions, the 

incoming ozone and precursors would 

be sufficient to continue to cause 

violations of the standard beyond the 

applicable attainment date. In the 

second situation, the area might be able 

to achieve additional local reductions 

sufficient to demonstrate attainment. In 

this second case, the question arises as 

to whether it is equitable to require 

those reductions or to allow more time 

for the reductions in the ‘‘upwind’’ area 

to take place.36

EPA solicits comment on how to 

address this issue. EPA believes that a 

subpart 1 area could be granted a later 

attainment date if warranted 

considering transport. For areas 

classified under subpart 2, the statute 

provides no express relief for these 

situations. The area does have the 

option of requesting to be classified to 

the next higher classification. Thus, 

where the demonstration of attainment 

is complicated by transport between two 

areas of different classifications, the 

State is still responsible for developing 

and submitting demonstrations which 

show that the standard will be attained 

by the applicable date. In other words, 

the State must provide for sufficient 

emissions reductions on a schedule that 

will ensure attainment in its area. 

One approach would be for States to 

work together in a collaborative process 

to perform the necessary analyses to 

identify appropriate controls that 

provide for attainment throughout the 

multi-State area. EPA believes that the 

wording in sections 172(c)(1) and 

182(b)(1)(A)(i) requires the State to 

develop a plan providing such 

emissions reductions. States working 

together in a collaborative process could 

perform a comprehensive assessment of 

the impacts of all control measures 

being implemented in both the local and 

upwind areas. The analysis may show 

the extent to which the downwind area 

is dependent on upwind strategies 

while fully meeting its own 

requirements associated with its 

classification. Upwind areas may 

provide a comprehensive assessment of 

the impacts of all control measures 

being implemented on the downwind 

areas. 

4. Other Options Considered 

We considered a number of other 

options and approaches for addressing 

transport. The other options that were 

considered but are not being proposed 

are described in a separate document 

available in the docket.37

G. How Will EPA Address Transport of 

Ground-level Ozone and its Precursors 

for Rural Nonattainment Areas, MultiState Nonattainment Areas, Areas 

Affected by Intrastate Transport, and 

International Transport? 

1. Rural Transport Nonattainment Areas 

Section 182(h) recognizes that the 

ozone problem in a rural transport area 

is almost entirely attributable to 

emissions from upwind areas. 

Therefore, the only requirements for the 

rural area are the minimal requirements 

specified for areas expected to attain 

within 3 years of designation, the 

assumption being that the controls in 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32829

38The statute contains a typographical error 

referring to section 181(a)(2) instead of 181(b)(2).

39As noted elsewhere in this notice, the 

Consolidated Emissions Reporting Rule (67 FR 

39602, June 10, 2002) has established basic 

emission inventory requirements for all areas of the 

country and generally requires periodic inventories 

of emissions that actually occur in the year of the 

inventory in the U.S. area of interest. This would 

include emissions from foreign-registered vehicles.

the upwind area will solve the 

remaining nonattainment problem in 

the rural transport area as well. In these 

cases, the timing for attainment will 

depend on the schedule for adoption 

and implementation of control measures 

in the upwind areas. 

2. Multi-State Nonattainment Areas 

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

nonattainment areas (i.e., portions of the 

nonattainment area lie in two or more 

States) recognizes that one State may 

not be able to demonstrate attainment 

for the portion of the nonattainment 

area within its borders if other States 

containing the remaining portions of the 

nonattainment area do not adopt and 

submit the necessary attainment plan 

for their portions of the nonattainment 

area. In such cases, even though the area 

as a whole would not be able to 

demonstrate attainment, the sanction 

provisions of section 179 shall not apply 

in the portion of the nonattainment area 

located in a State that submitted an 

attainment plan. 

Section 182(j) defines a multi-State 

ozone nonattainment area as an ozone 

nonattainment area, portions of which 

lie in two or more States. Section 

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

requirements for such areas. First, each 

State in which a multi-State ozone 

nonattainment area lies, must take all 

reasonable steps to coordinate the 

implementation of the required 

revisions to SIPs for the given 

nonattainment area [section 

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

requires the States to use photochemical 

grid modeling or any other equally 

effective analytical method approved by 

EPA for demonstrating attainment. EPA 

is prevented by section 182(j) from 

approving any SIP revision submitted 

under that section if a State has failed 

to meet the above requirements. 

Pursuant to section 182(j)(1)(A), States 

that include portions of a multi-State 

ozone nonattainment area are required 

to develop a joint work plan as evidence 

of early cooperation and integration. 

The work plan should include a 

schedule for developing the emissions 

inventories, and the attainment 

demonstration for the entire multi-State 

area. Each State within a multi-State 

ozone nonattainment area is responsible 

for meeting all the requirements 

relevant to the given area. Care should 

be taken to coordinate strategies and 

assumptions in a modeled area with 

those in other, nearby modeled areas in 

order to ensure that consistent, 

plausible strategies are developed. 

3. Intrastate Transport 

Several State air agency 

representatives have voiced a concern 

about intrastate transport of ozone and 

precursor emissions and have asked 

EPA to address this concern. One State, 

for instance, notes that it has upwind 

areas that are affecting downwind areas 

and in some cases may be preventing a 

downwind area from attaining the 

standard by its statutory date.

We believe that the CAA requires 

individual States, as an initial matter, to 

deal with intrastate transport. We 

realize that some States are structured 

with semi-autonomous local air 

agencies that are empowered to address 

major elements of the SIP process, 

including preparation of the attainment 

demonstration. In those situations, the 

CAA provides that the State retain 

sufficient backstop authority to ensure 

all areas within its borders reach 

attainment, (110(a)(2)(E)). A State could, 

of course, recommend designation of 

nonattainment areas that are large 

enough to encompass upwind and 

downwind areas of the State and require 

that the individual jurisdictions work 

together on an attainment plan that 

accounts for transport and results in 

attainment by the attainment date for 

the entire nonattainment area. Or a State 

could require the individual agencies to 

work together in the same manner as 

multi-State organizations. In this case, 

there would be separate nonattainment 

areas with independent agencies 

expected to work together to address 

transport among the nonattainment 

areas. To facilitate this process, the State 

could require the agencies to sign a 

memorandum of agreement which 

describes the technical and 

administrative approach for performing 

the modeling analysis and identifying 

the appropriate controls measures. 

Upon a State’s request, we would be 

willing to provide support for these 

activities. 

We also solicit comments on other 

ways of addressing intrastate transport 

within the context of the CAA 

provisions. 

4. International Transport 

a. International transboundary 

transport. International transboundary 

transport of ozone and ozone precursors 

can contribute to exceedances of the 

NAAQS. It is likely that the 

international transport of air pollutants 

will affect the ability of some areas to 

attain and maintain the 8-hour ozone 

NAAQS. As States and EPA implement 

control strategies and national emission 

reduction programs, the impact of high 

background levels emanating from 

outside the U.S. may play a larger role 

in future attainment demonstrations. We 

have developed an information 

document on ‘‘International 

Transboundary Influences and Meeting 

the NAAQS,’’ which is located in the 

Docket to this proposed rulemaking. 

This document provides information on 

efforts with Canada and Mexico to 

address transboundary air pollution as 

well as additional information for 

intercontinental modeling work 

currently underway within EPA. 

b. Section 179B and the SIP approval 

process. Section 179B of the CAA 

(International Border Areas), applies to 

nonattainment areas that are affected by 

emissions emanating from outside the 

United States. This section requires EPA 

to approve a SIP for a nonattainment 

area if: It meets all of the requirements 

applicable under the CAA, other than a 

requirement that the area demonstrate 

attainment and maintenance of the 

ozone NAAQS by the applicable 

attainment date; and the affected State 

establishes to EPA’s satisfaction that the 

SIP would be adequate to attain and 

maintain the ozone NAAQS by the 

applicable attainment date but for 

emissions emanating from outside the 

United States. Further, any State that 

establishes to the satisfaction of EPA 

that the State would have attained the 

8-hour ozone NAAQS, but for emissions 

emanating from outside the U.S., would 

not be subject to the attainment date 

extension provided in section 181(a)(5), 

the fee provisions of section 185, and 

the bump-up provisions for failure to 

attain for 8-hour ozone NAAQS 

specified in section 181(b)(2).38

In demonstrating that an area could 

attain the 8-hour ozone NAAQS but for 

emissions emanating from outside the 

U.S., approved EPA modeling 

techniques should be used to the best 

extent practicable. An emission 

inventory incorporating vehicle 

emissions released in the U.S. by foreign 

vehicles, i.e., those vehicles registered 

in the adjacent foreign country, must be 

completed by the States before modeling 

the U.S. side only and attempting to 

demonstrate attainment.39 We recognize 

that adequate data may not be available 

for mobile and stationary sources 

outside the United States. Therefore, 

modeling, per EPA’s ‘‘modeling 

32830 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

40Use of models that are capable of simulating 

transport and formation of multiple pollutants 

simultaneously. For example, for ozone and fine 

particles, it is critical that the model simulate 

photochemistry, which includes interactions among 

the pollutants and their precursors.

guidance’’ described elsewhere in the 

section on attainment demonstrations, 

may not be possible in all cases. 

Because very few areas are likely to be 

affected by this provision, EPA will 

determine on a case-by-case basis 

whether the State has satisfactorily 

made the required demonstration. The 

State is encouraged to consult with EPA 

Regional Office in developing any 

alternate demonstration methods. 

Methods that the State may want to 

consider include: Using ozone episodes 

that do not involve international 

transport of emissions for modeling (see 

guidance document entitled ‘‘Criteria 

for Assessing Role of Transported 

Ozone/Precursors in Ozone 

Nonattainment Areas’’), running the 

model with boundary conditions that 

reflect general background 

concentrations on the U.S. side, 

analyzing monitoring data if a dense 

network has been established, and using 

receptor modeling. States should confer 

with the appropriate EPA Regional 

Office to establish appropriate technical 

requirements for these analyses.

5. Additional Ways of Addressing 

Transport 

Additional approaches to address 

transport are discussed in the section on 

classifications. 

6. State-Tribal Transport 

States have an obligation to notify 

Tribes as well as other States in advance 

of any public hearing(s) on their State 

plans that will significantly impact such 

jurisdictions. Under 40 CFR 51.102(6)(i), 

States must notify the affected States of 

hearings on their SIPs; this requirement 

extends to Tribes under 301(d) of the 

CAA and the TAR. (40 CFR Part 49). 

Therefore, affected Tribes that have 

achieved ‘‘treatment as States’’ status 

must be informed of the contents of 

such plans and the extent of 

documentation to support the plans. For 

example, in the case where the State 

models projected emissions and air 

quality under the SIP, the Tribes should 

be made aware of these modeling 

analyses. Tribes may wish to determine 

if the Tribal area has been affected by 

upwind pollution and whether 

projected emissions from the Tribal area 

have been considered in the modeling 

analyses. 

Generally, Tribal lands have few 

major sources, but in many cases, air 

quality in Indian country is affected by 

the transport—both long range and 

shorter distance transport—of 

pollutants. In many cases, Tribal 

nonattainment problems caused by 

upwind sources will not be solved by 

long-range transport policies, as the 

Tribes’ geographic areas are small. 

Tribes are sovereign entities, and not 

political subdivisions of States. 

Strategies used for intrastate transport 

are not always available. Most of the 

strategies and policies used by States in 

dealing with short-range transport are 

not available to Tribes, e.g., requiring 

local governments to work together and 

expanding the area to include the 

upwind sources. Unlike Tribes, States 

can generally require local governments 

to work together, or make the 

nonattainment area big enough to cover 

contributing and affected areas. We 

believe that it is also unfair to Tribes to 

require disproportionate local regulatory 

efforts to compensate for upwind 

emissions. In many cases, attainment 

could not be reached even if emissions 

from the Tribe were zero. 

To address these concerns, we 

propose to take comment on the 

following: EPA will review SIPs for 

their effectiveness in preventing 

significant contributions to 

nonattainment in downwind Tribal 

areas with the same scrutiny it applies 

to reviewing SIPs with respect to 

impacts on downwind States. Where a 

Tribe has ‘‘treatment in the same 

manner as States,’’ EPA will support the 

Tribe in reviewing upwind area SIPs 

during the State public comment period.

H. How Will EPA Address Requirements 

for Modeling and Attainment 

Demonstration SIPs When 

Implementing the 8-Hour Ozone 

Standard? 

An attainment demonstration SIP 

consists of (1) technical analyses to 

locate and identify sources of emissions 

that are causing violations of the 8-hour 

NAAQS within nonattainment areas 

(i.e., analyses related to the emissions 

inventory required for the 

nonattainment area), (2) adopted 

measures with schedules for 

implementation and other means and 

techniques necessary and appropriate 

for attainment, (3) commitments, in 

some cases, to perform a mid-course 

review, and (4) contingency measures 

required under section 172(c)(9) of the 

CAA that can be implemented without 

further action by the State or the 

Administrator to cover emissions 

shortfalls in RFP plans and failures to 

attain. We are soliciting public comment 

on the following guidance. Associated 

with the attainment demonstration also 

are the RFP/ROP plans and the SIP 

submission concerning RACM, for 

which we are proposing rules elsewhere 

in this proposal. 

1. Multi-Pollutant Assessments (OneAtmosphere Modeling 40)

Many factors affecting formation and 

transport of secondary fine particles 

(i.e., PM2.5 components) are the same as 

those affecting formation and transport 

of ozone. For example, similarities exist 

in sources of precursors for ozone and 

secondary fine particles. Sources of NOX

may lead to formation of ozone as well 

as nitrates which contribute to the 

formation of secondary fine particles. 

Sources of VOC may contribute to ozone 

formation and may also be sources or 

precursors for organic particles. 

Presence of ozone itself may be an 

important factor affecting secondary 

particle formation. As ozone builds up, 

so do hydroxyl (OH) radicals as a result 

of equilibrium reactions between ozone, 

water and OH in the presence of 

sunlight. Hydroxyl radicals are 

instrumental in oxidizing gas phase SO2

to sulfuric acid, which is eventually 

absorbed by liquid aerosol and 

converted to particulate sulfate in the 

presence of ammonia. Therefore, 

strategies to reduce ozone can also affect 

formation of secondary fine particles 

which contribute to visibility 

impairment. 

Therefore, models and data analysis 

intended to address visibility 

impairment need to be capable of 

simulating transport and formation of 

both secondary fine particles and ozone. 

At a minimum, modeling should 

include previously implemented or 

planned measures to reduce ozone, 

secondary fine particles, and visibility 

impairment. An integrated assessment 

of the impact controls have on ozone, 

secondary fine particles, and regional 

haze provides safeguards to ensure 

ozone controls will not preclude 

optimal controls for secondary fine 

particles and visibility impairment. 

The concept of modeling control 

impacts on all three programs is further 

strengthened by the alignment of the 

implementation process for ozone and 

secondary fine particles. As the dates for 

attainment demonstration SIPs begin to 

coincide, the practicality of using 

common data bases and analysis tools 

for all three programs becomes more 

viable and encourages use of shared 

resources. 

States that undertake multi-pollutant 

assessments as part of their attainment 

demonstration would assess the impact 

of their ozone attainment strategies on 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32831

41U.S. EPA, (May 1999), Draft Guidance on the 

Use of Models and Other Analyses in Attainment 

Demonstrations for the 8-Hour Ozone NAAQS, 

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

(Modeling Guidance, File name: DRAFT8HR).

secondary fine particles and visibility or 

perform a consistent analysis for ozone, 

secondary fine particles, and visibility. 

To facilitate such an effort, we would 

encourage States to work closely with 

established regional haze Regional 

Planning Organizations (RPOs) and the 

jurisdictions responsible for developing 

PM2.5 implementation plans. Though 

the CSA, if enacted as introduced, 

would provide substantial improvement 

in air quality for ozone, PM2.5 and 

visibility, States are encouraged to 

follow EPA’s lead and perform similar 

multi-pollutant assessments as part of 

their ozone attainment demonstrations, 

considering the programs that are in 

place at the time of the assessment. 

Multi-pollutant assessments are 

discussed elsewhere in this proposed 

rulemaking. 

2. Areas With Early Attainment Dates 

Under section 182(a), marginal areas, 

which have an attainment date of only 

3 years after designation, are not 

required to perform a complex modeling 

analysis using photochemical grid 

modeling. Areas covered under either 

subpart 1 or 2 with ozone 

concentrations close to the level of the 

NAAQS (e.g., within 0.005 ppm), will 

most likely come into attainment within 

3 years after designation as 

nonattainment without any additional 

local planning as a result of national 

and/or regional emission control 

measures that are scheduled to occur. 

We have good reason to believe these 

areas will come into attainment. 

Regional scale modeling for national 

rules, such as the NOX SIP Call and Tier 

II motor vehicle tailpipe standards, 

demonstrates major ozone benefits for 

the 3-year period of 2004–2006. This 

period would be relevant for 

demonstrating attainment within 3 years 

of designation, assuming designations 

occur in early 2004. Many similar areas 

classified as marginal for the 1-hour 

ozone NAAQS in 1990 came into 

attainment within the initial 3-year 

period. As an additional safeguard, if 

attainment demonstration modeling is 

performed using multi-State geographic 

areas, most of these areas with early 

attainment dates will be included in the 

modeling analyses conducted by areas 

with later attainment dates. This will 

provide an opportunity for review of the 

impact control programs will have on 

areas with early attainment dates. 

Experience with the 1-hour ozone 

attainment demonstrations has shown 

that 3 years is not enough time to 

perform the detailed photochemical grid 

modeling needed to develop the 

demonstration and complete the 

regulatory process needed to adopt and 

implement control measures sufficiently 

before the attainment date. It would not 

be reasonable to require these areas to 

expend the amount of resources needed 

to perform a complex modeling analysis 

given how close these areas are to 

meeting the level of the NAAQS. 

Therefore, we propose that no 

additional modeled attainment 

demonstration would be required for 

areas with air quality observations close 

to the level of the standard as described 

above and where regional or national 

modeling exists and is appropriate for 

use in the area demonstrates that an area 

will attain the 8-hour standard within 3 

years after designation. This proposal 

would apply for areas covered under 

either subpart 1 or subpart 2. 

Areas with early attainment dates 

with air quality observations that are not 

close to the level of the NAAQS (as 

described above) and regional scale 

modeling for national rules that 

demonstrates they will not be in 

attainment within 3 years of designation 

should consider requesting 

reclassification to the next higher 

classification. This reclassification 

would provide additional time for 

developing an attainment demonstration 

SIP and adopting and implementing the 

control measures needed. 

3. Areas With Later Attainment Dates 

Areas with later attainment dates 

(more than 3 years after designation), 

regardless of whether they are covered 

under subpart 1 or subpart 2, would be 

required to do an attainment 

demonstration SIP. Local, regional and 

national modeling developed to support 

Federal or local controls may be used 

provided the modeling is consistent 

with EPA’s modeling guidance, 

described below. Several States have 

invested considerable time and 

resources in regional 8-hour ozone 

modeling projects following this 

guidance. Since exceedances of the 8-

hour ozone NAAQS are more pervasive 

than 1-hour ozone exceedances, we 

encourage multi-State applications of 

the modeling guidance. States should 

work together and leverage off work 

under development and resources spent 

on these projects. This will be most 

beneficial in developing attainment 

demonstrations to achieve attainment.

4. Modeling Guidance 

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

nonattainment areas to develop an 

attainment demonstration which 

provides for reductions in VOC and 

NOX emissions ‘‘as necessary to attain 

the national primary ambient air quality 

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

requires areas covered under subpart 1 

to demonstrate attainment. As noted 

above, if a subpart 1 area has an 

attainment date beyond 3 years of 

designation, we would require the State 

to develop an attainment demonstration. 

Section 182(c)(2)(A) provides that for 

serious and higher-classified areas the 

‘‘attainment demonstration must be 

based on photochemical grid modeling 

or any other analytical method 

determined by the Administrator, in the 

Administrator’s discretion, to be at least 

as effective.’’ A photochemical grid 

model should meet several general 

criteria for it to be a candidate for 

consideration in an attainment 

demonstration. Note that, unlike in 

previous guidance (U.S. EPA, 1991), we 

are not recommending a specific model 

for use in the attainment demonstration 

for the 8-hour NAAQS for ozone. At 

present, there is no single model which 

has been extensively tested and shown 

to be clearly superior or easier to use 

than other available models. General 

criteria for attainment demonstrations 

are contained in 40 CFR part 51, 

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

Air Quality Models’’, 68 FR 18440, April 

15, 2003). Appendix W refers to EPA’s 

May 1999 draft ‘‘Guidance on the Use of 

Models and Other Analyses in 

Attainment Demonstrations for the 8-

Hour Ozone NAAQS’’ for a set of 

general requirements that an air quality 

model should meet to qualify for use in 

an attainment demonstration for the 8-

hour ozone NAAQS.41 Thus, States may 

choose from several alternatives. These 

include having received a scientific peer 

review, being applicable to the specific 

application on a theoretical basis, and 

having an adequate database to support 

its application. It is also important that 

past applications indicate model 

estimates are not likely to be biased low 

and that the model is applied 

consistently with a protocol on methods 

and procedures. We plan to finalize this 

guidance at the same time the final 

implementation rule is published. 

Comments on this document are 

solicited as part of this proposal.

The guidance describes how to apply 

air quality models. The output from 

such a model is used to support an 

attainment demonstration. The 

recommended procedure for applying a 

model includes developing a conceptual 

description of the problem to be 

addressed; developing a modeling/

analysis protocol; selecting an 

appropriate model to support the 

demonstration; selecting appropriate 

32832 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

42Memorandum of March 28, 2002, from Lydia N. 

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

Review Guidance for the 1-Hour Ozone 

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

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

guide/policymem33d.pdf.

meteorological episodes or time periods 

to model; choosing an appropriate area 

to model with appropriate horizontal/

vertical resolution; generating 

meteorological and air quality inputs to 

the air quality model; generating 

emissions inputs to the air quality 

model; evaluating performance of the air 

quality model; and performing 

diagnostic tests. After these steps are 

completed, the model is used to 

simulate effects of candidate control 

strategies. 

The guidance recommends 

procedures for estimating if a control 

strategy to reduce emissions of ozone 

precursors will lead to attainment of the 

8-hour NAAQS for ozone. It explains 

what is meant by a modeled attainment 

demonstration, a modeled attainment 

test, a screening test, and a weight of 

evidence determination. It also 

identifies additional data which, if 

available, should enhance the 

credibility of model results and results 

of other analyses used in a weight of 

evidence determination. States should 

work closely with the appropriate U.S. 

EPA Regional Office(s) in executing 

each step. 

We are planning to make substantial 

changes to the draft version of this 

document. Changes include: (1) The 

future year of emission estimates to 

model, (2) the recommended length of 

time period to model (i.e., up to full 

ozone season), and (3) the use of spatial 

fields of ambient concentrations as part 

of the ‘‘modeled attainment test.’’ We 

welcome public comments on the 

guidance at any time and will consider 

those comments in any future revision 

of the document. Comments submitted 

on the modeling guidance document 

should be identified as such and will 

not be docketed as part of this 

rulemaking, nor will a comment/

response summary of these comments 

be a part of the final 8-hour ozone 

implementation rule since they will not 

affect the rule itself. The final version of 

the guidance is scheduled for release by 

December 2003 and will be posted on 

EPA’s Web site (http://www.epa.gov/ttn/

scram/). 

5. Mid-Course Review (MCR) 

A MCR provides an opportunity to 

assess whether a nonattainment area is 

or is not making sufficient progress 

toward attainment of the 8-hour ozone 

standard, as predicted in its attainment 

demonstration. The review utilizes the 

most recent monitoring and other data 

to assess whether the control measures 

relied on in a SIP’s attainment 

demonstration have resulted in 

adequate improvement in air quality. 

We believe that a commitment to 

perform a MCR is a critical element in 

an attainment demonstration that 

employs a long-term projection period 

and relies on weight of evidence. 

Because of the uncertainty in long-term 

projections, we believe such attainment 

demonstrations need to contain 

provisions for periodic review of 

monitoring, emissions, and modeling 

data to assess the extent to which 

refinements to emission control 

measures are needed.

A number of States have participated 

in a consultative process with EPA, 

which resulted in the development of 

the 1-hour MCR guidance.42 We are 

updating the 1-hour MCR policy and 

technical guidance to include 8-hour 

metrics and are soliciting comment on 

appropriate revisions; final MCR 

guidance incorporating 8-hour metrics 

will be available at the time we issue 

our final implementation rule. States 

should consult with EPA prior to using 

a methodology other than the one 

developed through the public 

consultative process.

The procedure for performing a MCR 

contains three basic steps: (1) Perform 

an administrative test (e.g., demonstrate 

whether the appropriate emission limits 

were adopted and implemented); (2) 

analyze available air quality, 

meteorology, emissions and modeling 

data and document findings; and (3) 

document conclusions regarding 

whether progress toward attainment is 

being made using a weight of evidence 

determination (which may or may not 

include new modeling analyses). 

EPA does not request that States 

commit in advance to adopt new control 

measures as a result of the MCR process. 

Based on the MCR, if EPA determines 

sufficient progress has not been made, 

EPA would determine whether 

additional emissions reductions are 

necessary from the State or States in 

which the nonattainment area is located 

or upwind States, or both. EPA would 

then require the appropriate State or 

States to adopt and submit the new 

measures within a specified period. We 

anticipate that these findings would be 

made as calls for SIP revisions under 

section 110(k)(5) and, therefore, the 

period for submission of the measures 

would be no longer than 18 months after 

the EPA finding. Thus, States should 

complete the MCR 3 or more years 

before the applicable attainment date to 

ensure that any additional controls that 

may be needed can be adopted in 

sufficient time to reduce emissions by 

the start of the ozone season in the 

attainment year. 

I. What Requirements for RFP Should 

Apply Under the 8-Hour Ozone 

Standard? 

1. Background 

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

subpart 1 of part D of title I, requires 

State plans for nonattainment areas to 

require RFP. Section 171(1) of the CAA 

defines RFP to mean ‘‘such annual 

incremental reductions in emissions of 

the relevant air pollutant as are required 

by this part [part D of title I] or may 

reasonably be required by the 

Administrator for the purpose of 

ensuring attainment of the applicable 

[NAAQS] by the applicable date.’’

Subpart 2 of part D of title I provides 

more specific RFP requirements for 

ozone areas classified under section 

181. (In general, we have used the term 

‘‘RFP’’ as the more generic progress 

requirement, whereas it has used the 

term ‘‘rate of progress’’ or ‘‘ROP’’ to 

denote the specific subpart 2 progress 

requirements that are defined as specific 

percent reductions from a baseline 

emissions inventory.) In particular, it 

specifies the base year emission 

inventory upon which ROP is to be 

planned for and implemented, the 

increments of emissions reductions 

required over specified time periods, 

and the process for determining whether 

the ROP milestones were achieved. 

Subpart 2 does not specify ROP 

requirements for marginal areas. Section 

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

emission reduction, accounting for 

growth, between 1990 and 1996 for 

moderate and above ozone 

nonattainment areas. Furthermore, 

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

each serious and above ozone 

nonattainment area to submit a SIP 

revision providing for an actual VOC 

emission reduction of at least 3 percent 

per year averaged over each consecutive 

3-year period beginning in 1996 until 

the area’s attainment date (the post-1996 

ROP plan). Section 182(c)(2)(C) of the 

CAA allows for substitution of NOX for 

VOC emissions reductions in the post1996 ROP plan. EPA’s policy, the NOX

Substitution Guidance (December 15, 

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

ttn/oarpg/t1pgm.html), addresses the 

substitution of NOX emissions 

reductions for VOC emissions 

reductions. The baseline emission 

inventory for determining the required 

ROP reductions is specified as 1990. 

The requirements for RFP under 

subparts 1 and 2, as described above, are 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32833

43Memorandum of December 29, 1997 from 

Richard D. Wilson to Regional Administrators, 

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

Hour Ozone and Pre-Existing PM10 NAAQS.’’

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

memoranda/iig.pdf. The distances used resulted 

from FACA discussions cited earlier and generally 

represent transport of 1 to 2 days.

44Additional Options Considered for ‘‘Proposed 

Rule to Implement the 8-Hour Ozone National 

Ambient Air Quality Standard.’’ U.S. 

Environmental Protection Agency, Office of Air 

Quality Planning and Standards, Research Triangle 

Park, NC. March 2003.

the minimum required for an area. More 

reductions may be necessary for 

attainment within the nonattainment 

area or where the area contributes to a 

downwind area’s nonattainment 

problem. Moreover, an upwind area that 

contributes to nonattainment in a 

downwind area may need more 

reductions in a shorter time in order for 

the downwind area to reach attainment 

by its required attainment date. 

2. Proposed Features in General 

In developing an approach for 

addressing the RFP requirements for the 

8-hour ozone standard, we propose the 

following:

—The same baseline year would be used 

both to address growth (in emissions, 

vehicle miles traveled (VMT) or 

otherwise) and to calculate the RFP 

target level. 

—Emissions reductions from outside the 

nonattainment area up to 100 km for 

VOC and 200 km for NOX (and 

statewide if under a regional strategy) 

would be allowed consistent with 

EPA’s existing December 1997 interim 

implementation policy for 1-hour 

ozone NAAQS.43

—For areas classified under subpart 2, 

the ROP requirements specified in 

subpart 2 would apply, namely a 15 

percent VOC emission reduction, 

accounting for growth, in the first 6 

years after the baseline year for 

moderate and above ozone 

nonattainment areas. In addition, for 

areas classified as serious and above, 

the ROP provisions in subpart 2 

require a VOC or NOX emission 

reduction of at least three percent per 

year averaged over each consecutive 

3-year period beginning 6 years after 

the baseline year (specified as under 

the 1990 CAAA). Areas classified 

under subpart 2 as marginal, which 

are required to attain 3 years 

following classification, are subject 

only to such RFP as necessary to 

attain. We believe the periods for RFP 

under subpart 2 for the 8-hour ozone 

NAAQS should run from the date of 

the baseline year under subpart 2, and 

would be equivalent to the periods 

under the 1-hour ozone NAAQS. 

Thus, the first 15 percent reduction 

would be required for the 6-year 

period starting from the last day 

(December 31) of the baseline year 

and the first 3-year period for the 

subsequent three percent per year 

emission reduction requirement in 

serious areas would begin 6 years 

after the last day (December 31) of the 

baseline year. The baseline issue is 

discussed in section 4 below. 

3. For Subpart 2 Areas, Should the 

Initial 15 Percent RFP Requirement Be 

Limited to VOC Emissions? 

Currently, for many areas of the 

country, particularly in the Eastern U.S. 

outside major metropolitan areas, there 

is a greater need for NOX reductions 

rather than VOC reductions. However, 

under the prescribed requirements of 

the CAA, NOX substitution is only 

allowed for the post-1996 ROP 

requirement (three percent per year 

averaged over 3 years), not for the initial 

15 percent ROP requirement. We are 

proposing 2 options to address this 

issue. 

a. Option 1. Continue to require 15 

percent VOC reductions within 6 years 

after the baseline year for all areas 

designated moderate and above for the 

8-hour ozone NAAQS. After 6 years, all 

serious and above areas would be 

required to achieve a nine percent 

reduction in VOC and/or NOX emissions 

every 3 years, i.e., an average of three 

percent per year. 

b. Option 2. For those areas that have 

approved 15 percent plans for their 1-

hour ozone SIPs, an additional 15 

percent VOC reduction is not necessary. 

Areas that are classified as moderate 

under the 8-hour standard that have 

already implemented their 15 percent 

plans under their 1-hour ozone SIPs 

would be considered to have met the 

statutory 15 percent requirement and 

would be covered under the more 

generic RFP requirements of subpart 1. 

Subpart 1 RFP requirements are 

discussed below. Areas that are 

classified as serious and above under 

the 8-hour standard that have already 

implemented their 15 percent plans 

under the 1-hour ozone standard would 

have to include in their SIPs an 

additional RFP plan that would achieve 

an average of three percent per year of 

VOC and/or NOX over each 3-year 

period until their attainment year. We 

recognize that it would be difficult to 

submit a plan that provides for the first 

nine percent emission reduction within 

3 years after nonattainment designation. 

Therefore, consistent with what 

Congress did under section 182(b)(1), 

we propose to allow the first ROP 

increment to be averaged over 6 years. 

We propose that an area classified 

serious or above submit its ROP plan 

within 2 years after designation that 

provides for 18 percent emissions 

reductions (VOC and/or NOX) over the 

first 6 years from the baseline year and 

then submit within 3 years after 

designation a ROP plan that provides 

nine percent emissions reductions (VOC 

and/or NOX) over each of the next 3-

year periods until the area’s attainment 

date. 

This option recognizes previous 

efforts by areas that submitted 15 

percent plans as required under the 1-

hour ozone NAAQS and provides 

flexibility to States to use a mix of NOX

and VOC reductions to meet the 

additional ROP/RFP requirements. We 

believe that the statute can be 

interpreted to require the mandatory 15 

percent VOC reduction only once for a 

given area. Once 15 percent VOC 

reduction requirements have been met, 

an area would actually have to achieve 

greater emissions reductions, i.e., an 

average of three percent per year, but 

could choose either VOC or NOX

reductions as appropriate. We prefer 

this second option because it provides 

more flexibility for the ROP plan to be 

consistent with the area’s needs in 

attaining the standard. 

c. Other options that EPA considered.

We considered other options for 

addressing this issue that are not being 

proposed here; discussion of them 

appears in a separate document, 

available in the docket.44 However, we 

solicit comments on other options and 

what possible rationales—legal and 

scientific—might be used to justify 

those options.

4. What Baseline Year Should Be 

Required for the Emission Inventory for 

the RFP Requirement? 

The baseline inventory for RFP (under 

subpart 2) is used as the starting point 

for the determination of a target level of 

emissions for the future year RFP and as 

the baseline from which creditable 

reductions are determined. We currently 

anticipate designating nonattainment 

areas in 2004. Under the ‘‘Consolidated 

Emissions Reporting Rule’’ (67 FR 

39602, June 10, 2002) revised emissions 

inventories are required for the years 

2002 and 2005; therefore, we propose to 

require use of the 2002 inventory as the 

baseline inventory for the RFP 

requirement. This would be the most 

recently available inventory at the time 

of designation. We recently issued a 

memorandum identifying 2002 as the 

anticipated emission inventory base 

year for the SIP planning process to 

32834 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

45Memorandum on November 18, 2002, from 

Lydia Wegman and Peter Tsirigotis, ‘‘2002 Base 

Year Emission Inventory SIP Planning: 8-hr Ozone, 

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

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

www.epa.gov/ttn/oarpg/

meta.442.1.2002baseinv.pdf.

46Additional Options Considered for ‘‘Proposed 

Rule to Implement the 8-Hour Ozone National 

Ambient Air Quality Standard.’’ U.S. 

Environmental Protection Agency, Office of Air 

Quality Planning and Standards, Research Triangle 

Park, NC. March 2003.

address the 8-hour ozone and the PM2.5

standards.45

We considered other options for 

addressing this issue that are not being 

proposed here; discussion of them 

appears in a separate document, 

available in the docket.46

5. Should Moderate Areas Be Subject to 

Prescribed Additional RFP 

Requirements Prior to Their Attainment 

Date? 

For areas initially classified moderate 

and higher under the 1-hour ozone 

standard, the baseline inventory was 

defined as 1990 in the CAA 

Amendments of 1990. Therefore, the 6-

year period for the initial 15 percent 

ROP requirement ended in the same 

year as the attainment date for moderate 

areas, viz., 1996. For areas classified 

moderate and higher under the 8-hour 

ozone standard, however, we are 

proposing that the 15 percent ROP target 

level of emissions would be calculated 

for the 6-year period after the 2002 

baseline year, i.e., 2003–2008. Moderate 

areas would be required to meet an 

attainment date no later than 6 years 

after the area is designated 

nonattainment for the 8-hour standard. 

If the effective date of designation of 

nonattainment areas is, for instance, 

May 15, 2004, the attainment date 

would be May 15, 2010. This leaves 

approximately a 11⁄2 year gap between 

the end of the 6-year period for the 15 

percent ROP requirement (i.e.,

December 31, 2008) and the attainment 

date. If we were to also require moderate 

areas to obtain an additional three 

percent per year reduction beyond 2008 

for the 11⁄2 additional years until 2010, 

the ROP requirement would be more 

than what we believe Congress intended 

for moderate areas under subpart 2. 

Additional three percent per year 

reductions were only required for 

serious and higher classified 1-hour 

ozone nonattainment areas. We are 

proposing that the only specific ROP 

requirement applicable for moderate 

areas is the 15 percent VOC requirement 

between the end of 2002 and the end of 

2008. However, section 172(c)(2) also 

applies, requiring areas to meet RFP 

generally. Therefore, a moderate area 

would also have to provide any 

additional emissions reductions—VOC 

and/or NOX—needed to provide for 

attainment by the area’s attainment date. 

In proposing this approach, we are 

interpreting the subpart 1 RFP 

requirement to mean that the area must 

achieve whatever further reduction is 

needed for attainment in the remaining 

period prior to the attainment date 

(2009 and 2010). 

We are proposing that serious and 

higher classified areas would need to 

provide in their SIPs an additional 

average of three percent per year 

emissions reductions over each 

subsequent 3-year period beyond the 

initial 6-year period through the 

attainment year, consistent with what 

Congress specified in section 

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

6. What Is the Timing of the Submission 

of the ROP Plan? 

Section 182(b)(1) requires that 

moderate and higher classified areas 

submit their 15 percent ROP plans 

within 3 years after 1990. For the 

attainment dates under the 8-hour ozone 

standard, we propose interpreting the 

CAA’s language referring to the date of 

enactment of the 1990 CAA 

Amendments to mean the date of 

designations for the 8-hour standard. If 

we were to require the ROP plans to be 

submitted within 3 years after their 

nonattainment designation date (i.e., in 

2007 if we designate in 2004), the plans 

would have to be implemented within 

1 year after submission to ensure the 15 

percent emissions reductions are 

achieved by the end of the relevant 6-

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

believe this would likely not be 

sufficient time to ensure that the 

reductions would occur by the required 

deadline. Therefore, we propose that the 

ROP SIP be submitted within 2 years 

after nonattainment designation—by 

2006. This would provide 2 years for the 

State to develop and submit its ROP 

plan, and another 2 years for the control 

measures to be implemented. 

7. How Should CAA Restrictions on 

Creditable Measures Be Interpreted? 

Which National Measures Should Count 

as Generating Emissions Reductions 

Credit Toward RFP Requirements?

Section 182(b)(1) contains provisions 

that limit creditability toward meeting 

RFP for certain limited emission 

reduction measures required prior to the 

enactment of the CAA Amendments of 

1990. We believe these specific 

restrictions should continue to apply for 

purposes of the 8-hour NAAQS as 

written in the CAA. We believe that 

Congress intended to prevent areas from 

taking credit for RFP only for those 

specific measures that were already 

adopted and in place (or required to be 

in place) prior to the date of enactment 

of the CAA Amendments of 1990 

(November 15, 1990). We believe that 

this same logic holds true for the RFP 

requirement as it applies to the 8-hour 

ozone standard, namely preventing 

credit toward the mandatory RFP 

percent reductions for continuing 

reductions from those specific measures 

cited in the CAA that were already 

adopted and in place prior to the date 

of enactment of the CAA Amendments 

of 1990. There is no indication in the 

CAA that this exclusion should be 

changed. Congress mandated many 

emissions reductions in the 1990 CAA 

Amendments with no indication that 

they should not be credited to meeting 

RFP or attainment of any existing or 

revised NAAQS. Therefore, we are 

proposing that all emissions reductions 

that occur after the baseline emission 

inventory year from all Federal and any 

other measures (not otherwise identified 

in section 182(b)(1)(D)) would be 

creditable to the RFP requirement. For 

example, emissions reductions that 

occur after the 2002 baseline emission 

inventory year that result from the Tier 

2 and sulfur in gasoline rules that were 

issued by EPA after the CAA 

Amendments of 1990 are creditable 

toward the RFP requirement for the 8-

hour ozone standard. Another example 

of emissions reductions that would be 

creditable toward the RFP requirement 

for the 8-hour ozone standard would be 

VOC emissions reductions from certain 

MACT standards that will not produce 

emissions reductions until after the 

2002 baseline; these would include 

several recently promulgated MACT 

standards (such as those covering 

several surface coating operations) and 

also MACT standards that are expected 

to be promulgated in the summer of 

2003. Reductions that occur prior to the 

baseline year would be incorporated 

into the baseline and could not be 

credited. 

8. For Areas Covered by Subpart 1 

Instead of Subpart 2, How Should the 

RFP Requirement Be Structured? 

As described above, the RFP 

requirement under subpart 1 is more 

general than that under subpart 2, and 

EPA thus has more flexibility in 

determining what RFP means under 

subpart 1. For instance, the State may 

rely on emissions reductions of VOC or 

NOX or a combination of both to meet 

its RFP requirement. However, we are 

also mindful of the need for ensuring 

equity between areas with similar 8-

hour ozone problems covered under 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32835

47NOX Substitution Guidance. December 15, 

1993; avaialble at http://www.epagov/ttn/oarpg/

t1pgm.html.

48Additional Options Considered for ‘‘Proposed 

Rule to Implement the 8-Hour Ozone National 

Ambient Air Quality Standard.’’ U.S. 

Environmental Protection Agency, Office of Air 

Quality Planning and Standards, Research Triangle 

Park, NC. March 2003.

49Memorandum 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.

subpart 1 and those covered under 

subpart 2. We are proposing rules for 

three kinds of areas: (a) Areas with 

attainment dates 3 years or less after 

designation; (b) Areas with attainment 

dates between 3 and 6 years after 

designation; and (c) Areas with 

attainment dates beyond 6 years after 

designation. Note that the CAA requires 

that attainment dates for areas subject 

only to subpart 1 be no longer than 10 

years after designation. 

a. Areas with attainment dates 3 years 

or less after designation. We propose a 

RFP requirement for these areas similar 

to that for areas under subpart 2 that are 

classified as marginal. Such an area 

would not be subject to a separate RFP 

requirement, but would have to attain 

the standard by its attainment date. 

b. Areas with attainment dates 

between 3 to 6 years after designation.

These areas would have attainment 

dates similar to subpart 2 areas 

classified as moderate. We propose two 

options for these areas: 

(i) Option 1. This option would 

require the RFP plan to be submitted 

with the attainment demonstration 

within 3 years after designation of the 

nonattainment area. The SIP would 

have to show that all emissions 

reductions needed for attainment would 

be implemented by the attainment date. 

This situation would occur, for 

example, for an area with a base year 

inventory of 2002, designation in 2004, 

a required attainment SIP submission 

date of 2007 and an attainment date of 

2010. Where areas have only 3 years 

after SIP submission before attainment, 

this option recognizes that there may be 

only a short amount of time available to 

achieve any specified emissions 

reductions beyond that needed to 

demonstrate attainment and therefore 

would not require a showing that a 

specified amount of emissions 

reductions occur between the time of 

SIP submission and the attainment date. 

(ii) Option 2. This option would 

require these areas to be treated in a 

manner similar to subpart 2 areas 

classified as moderate. The RFP SIP 

would have to provide for a 15 percent 

emission reduction from the baseline 

year within 6 years after the baseline 

year. The RFP SIP would have to be 

submitted within 2 years after 

designation. However, since the area is 

subject only to subpart 1, NOX

emissions reductions could be 

substituted for some or all of the 15 

percent reduction requirement, 

consistent with EPA’s NOX substitution 

policy.47 Also, we are soliciting 

comment on whether a percentage other 

than 15 percent should be required as 

the minimum. Additional measures that 

would provide the remaining portion of 

the emissions reductions needed for 

attainment would have to be submitted 

with the area’s attainment 

demonstration within 3 years after 

designation.

c. Areas with attainment dates beyond 

6 years after designation. These areas 

are similar in attainment dates to areas 

classified under subpart 2 as serious or 

higher. We are proposing that the RFP 

plan show increments of progress from 

the baseline emission inventory year 

until the attainment date. The RFP SIP 

would first have to provide for a 15 

percent emission reduction from the 

baseline year within 6 years after the 

baseline year. The 15 percent RFP SIP 

would have to be submitted within 2 

years after designation. However, since 

the area is subject only to subpart 1, 

NOX emissions reductions could be 

substituted for some or all of the 15 

percent reduction requirement, 

consistent with EPA’s NOX substitution 

policy. Also, we are soliciting comment 

on whether a percentage other than 15 

percent would be more appropriate. 

Then, for each subsequent 3-year period 

out to the attainment date, another RFP 

SIP would have to provide for an 

additional increment of progress no less 

than the amount of emissions 

reductions that would be proportional 

to the time between the end of the first 

increment (in 2008) to the attainment 

date. This second RFP SIP would have 

to be submitted at the same time as the 

attainment demonstration, namely 

within 3 years after designation.

9. How Should the RFP Requirements 

Be Implemented for Areas Designated 

for the 8-Hour Ozone Standard That 

Entirely or in Part Encompass an Area 

That Was Designated Nonattainment for 

the 1-Hour Ozone Standard? 

We are proposing the following 

approach to address this issue. Develop 

a new baseline and new ROP/RFP 

emission reduction targets for the entire 

8-hour standard nonattainment area (the 

old 1-hour standard nonattainment area 

and the newly added portion of the 8-

hour standard nonattainment area). 

Emissions reductions from measures in 

the 1-hour ozone SIP that are achieved 

after the 8-hour ozone NAAQS baseline 

year could count (subject to creditability 

restrictions as discussed above in this 

proposed rulemaking) toward meeting 

the RFP requirement for the entire 8-

hour area. 

This approach would set a ROP target 

for the entire 8-hour ozone 

nonattainment area. The State would 

have to ensure that the target is at least 

as stringent as the 1-hour ROP/RFP 

target, thus ensuring no backsliding on 

the 1-hour NAAQS requirements. Under 

this approach, the new ROP/RFP target 

for the 8-hour standard would replace 

the previous 1-hour ozone target (while 

ensuring that, at a minimum, the 

emissions reductions required to meet 

the old target are met). For example, the 

1-hour ozone NAAQS nonattainment 

area may comprise four counties and 

have a target level for one future RFP 

increment of 350 tons/day of VOC and 

300 tons/day of NOX. The 8-hour ozone 

nonattainment area may comprise the 

initial 1-hour ozone standard 

nonattainment area and two more 

counties. The target for the same 

increment period for the entire six 

county nonattainment area may now be, 

for instance, 400 tons/day of VOC and 

350 tons/day of NOX (assuming that 

these emission reductions were 

consistent with the attainment 

demonstration). 

We considered another option for this 

issue. This option, which is not being 

proposed, is discussed in a separate 

document available in the docket.48

10. Will EPA’s ‘‘Clean Data Policy’’

Continue to Apply Under the 8-Hour 

Standard for RFP? 

We issued a clean data waiver policy 

on May 10, 1995, which allows EPA to 

determine that an area has attained the 

standard and that certain requirements 

(e.g., RFP) will not apply so long as the 

area remains in attainment. 49 We 

propose that this policy would remain 

effective under the 8-hour ozone 

NAAQS.

11. How Will RFP Be Addressed in 

Tribal Areas? 

As mentioned elsewhere in this 

proposed rulemaking, the TAR provides 

the Tribes with the ability to develop 

TIPs to address the NAAQS. However, 

it also provides the Tribes with 

32836 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

flexibility to develop these plans in a 

modular way, as long as the elements of 

their TIPs are ‘‘severable.’’ For example, 

each TIP submission must include a 

demonstration that the Tribe has 

authority to develop and run its 

program, the ability to enforce its rules, 

and the capacity and resources to 

implement the program it adopts. 

However, the modular approach 

provided for Tribes in the TAR allows 

the TIP to address a particular problem 

on the reservation. Therefore, it may 

include one or two source-specfic 

requirements but may not include 

provisions for RFP and other SIP 

requirements. We will review and 

approve these TIPs as a step in 

addressing an overall air quality plan to 

achieve health and environmental goals. 

In addition, a Tribe may later add other 

elements to the plan, or EPA may be 

obligated to step in to fill air quality 

gaps. In approving the TIPs, we will 

ensure that they will not interfere with 

the overall air quality plan for an area 

when Tribal lands are part of a multijurisdictional area. 

Because many of the nonattainment 

areas will include jurisdictions, 

including both Tribes and States, it is 

important for Tribes and States to work 

together wherever possible to coordinate 

their planning efforts. 

12. How Will RFP Targets Be 

Calculated? 

We propose a methodology for the 

calculation of ROP target levels of 

emissions that is based on the method 

developed for the CAA Amendments of 

1990, while taking into account our 

interpretation of CAA restrictions on 

creditable emissions and our proposal to 

use the 2002 inventory as the baseline 

inventory for the ROP requirement. The 

CAA Amendments of 1990 specify four 

types of measures that were not 

creditable toward the 15 percent RFP 

requirement. These were: 

(1) Any measure relating to motor 

vehicle exhaust or evaporative 

emissions promulgated by the 

Administrator by January 1, 1990; 

(2) Regulations concerning Reid 

Vapor Pressure that would go into effect 

in 1992; 

(3) State regulations submitted to 

correct deficiencies in existing VOC 

RACT regulations or previously 

required RACT rules; 

(4) State regulations submitted to 

correct deficiencies in I/M programs. 

These four types of measures were all 

expected to result in a decrease in 

emissions between 1990 and 1996. Of 

these four types of measures, RACT and 

I/M program corrections and the 1992 

Reid vapor pressure (RVP) requirements 

were completely in place by 1996 and 

therefore are already accounted for in 

the 2002 baseline. As a result, they 

would produce no additional reductions 

between 2002 and 2008 or later 

milestone years. 

However, the pre-1990 Federal Motor 

Vehicle Control Program (FMVCP) will 

continue to provide benefits during the 

first two decades of the 21st century as 

remaining vehicles meeting pre-1990 

standards leave the vehicle fleet. 

Because these benefits are not creditable 

for ROP purposes, in order to calculate 

the target level of emissions for ROP 

milestone years (i.e., 2008, 2011, etc.), 

States must first calculate the reductions 

that would occur over these years as a 

result of the pre-1990 FMVCP. We 

propose the following methods to 

properly account for the non-creditable 

reductions when calculating ROP targets 

for the 2008 and later ROP milestone 

years. 

Method 1: For areas that must meet a 

15 percent VOC reduction requirement 

by 2008:

(1) Estimate the actual anthropogenic 

base year VOC inventory in 2002 with 

all 2002 control programs in place. 

(2) Using the same highway vehicle 

activity inputs used to calculate the 

actual 2002 inventory, run MOBILE6 for 

2002 and for 2008 with all post-1990 

CAA measures turned off. This is 

accomplished using the NO CLEAN AIR 

ACT command as described in the 

MOBILE6 User’s Guide. Any other local 

inputs for I/M programs should be set 

according to the program that was 

required to be in place in 1990. Fuel 

RVP should be set at 9.0 or 7.8 

depending on the RVP required in the 

local area as a result of fuel RVP 

regulations promulgated in June, 1990. 

(3) Calculate the difference between 

2002 and 2008 VOC emission factors 

and multiply by 2002 VMT. The result 

is the VOC emissions reductions that 

will occur between 2002 and 2008 

without the benefits of any post-1990 

CAA measures. These are the noncreditable reductions that occur over 

this period. 

(4) Subtract the non-creditable 

reductions calculated in step 3 from the 

actual anthropogenic 2002 inventory 

estimated in step 1. 

(5) Reduce the VOC inventory 

calculated in step 4 by 15 percent. The 

result is the target level of VOC 

emissions in 2008 in order to meet the 

2008 ROP requirement. The actual 

projected 2008 inventory with all 

control measures in place and including 

projected 2008 growth in activity must 

be at or lower than this target level of 

emissions. 

Method 2: For areas that qualify under 

option 2 of section 3 above and must 

meet an 18 percent VOC emission 

reduction requirement by 2008 with 

NOX substitution allowed, following 

EPA’s NOX Substitution Guidance: 

(1) Estimate the actual anthropogenic 

base year inventory in 2002 with all 

2002 control programs in place. 

(2) Using the same highway vehicle 

activity inputs used to calculate the 

actual 2002 inventory, run MOBILE6 for 

2002 and for 2008 with all post-1990 

CAA measures turned off. This is 

accomplished using the NO CLEAN AIR 

ACT command as described in the 

MOBILE6 User’s Guide. Any other local 

inputs for I/M programs should be set 

according to the program that was 

required to be in place in 1990. Fuel 

RVP should be set at 9.0 or 7.8 

depending on the RVP required in the 

local area as a result of fuel RVP 

regulations promulgated in June, 1990. 

(3) Calculate the difference between 

2002 and 2008 VOC emissions factors 

and multiply by 2002 VMT. The result 

is the emissions reductions that will 

occur between 2002 and 2008 without 

the benefits of any post-1990 CAA 

measures. These are the non-creditable 

reductions that occur over this period. 

(4) Subtract the non-creditable 

reductions calculated in step 3 from the 

actual anthropogenic 2002 inventory 

estimated in step 1. 

(5) Reduce the inventory calculated in 

step 4 by 18 percent. The result is the 

target level of emissions in 2008 in 

order to meet the 2008 ROP 

requirement. The actual projected 2008 

inventory with all control measures in 

place and including projected 2008 

growth in activity must be at or lower 

than this target level of emissions. 

Method 3: For all areas that must meet 

an additional reduction VOC 

requirement of 9 percent every 3 years 

after 2008 with NOX substitution 

allowed, following EPA’s NOX

Substitution Guidance. Each subsequent 

target level of emissions should be 

calculated as emissions reductions from 

the previous target. 

(1) Using the same highway vehicle 

activity inputs used to calculate the 

actual 2002 inventory, run MOBILE6 for 

2008 (previously done in step 2 above) 

and 2011 with all post-1990 CAA 

measures turned off. This is 

accomplished using the NO CLEAN AIR 

ACT command as described in the 

MOBILE6 User’s Guide. Any other local 

inputs for I/M programs should be set 

according to the program that was 

required to be in place in 1990. Fuel 

RVP should be set at 9.0 or 7.8 

depending on the RVP required in the 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32837

50 40 CFR part 52, State Implementation Plans; 

General Preamble for the Implementation of Title I 

of the Clean Air Act Amendments of 1990; 

Proposed Rule. April 16, 1992. (57 FR 13498); 40 

CFR part 52, State Implementation Plans; Nitrogen 

Oxides Supplement to the General Preamble; Clean 

Air Act Amendments of 1990; Implementation of 

Title I; Proposed Rule. November 25, 1992. (57 FR 

55620).

51 ‘‘Issues Relating to VOC Regulation Cutpoints, 

Deficiencies, and Deviations—Clarification to 

Appendix D of November 24, 1987, Federal 

Register.’’ Ozone/Carbon Monoxide Program 

Branch, Air Quality Management Division, Office of 

Air Quality Planning and Standards, U.S. 

Environmental Protection Agency. May 25, 1988; 

Federal Register of November 24, 1987, Appendix 

D (52 FR at 45105).

local area as a result of fuel RVP 

regulations promulgated in June, 1990. 

(2) Calculate the difference between 

2008 and 2011 emission factors and 

multiply by 2002 VMT. The result is the 

emissions reductions that will occur 

between 2008 and 2011 without the 

benefits of any post-1990 CAA 

measures. These are the non-creditable 

reductions that occur over this period. 

(3) Subtract the non-creditable 

reductions calculated in step 2 from the 

2008 target level of emissions calculated 

previously. 

(4) Reduce the inventory calculated in 

step 3 by 9 percent. The result is the 

target level of emissions in 2011 in 

order to meet the 2011 ROP 

requirement. The actual projected 2011 

inventory with all control measures in 

place and including projected 2011 

growth in activity must be at or lower 

than this target level of emissions. 

J. Are Contingency Measures Required 

in the Event of Failure To Meet a 

Milestone or To Attain the 8-Hour 

Ozone NAAQS?

1. Background 

Under the CAA, nonattainment areas 

must include in their SIPs contingency 

measures consistent with section 

172(c)(9). However, section 182(a) 

expressly exempts areas classified as 

marginal from this obligation. States 

with ozone nonattainment areas 

classified as moderate and above must 

include contingency measures in their 

SIPs consistent with sections 172(c)(9) 

and 182(c)(9). Contingency measures are 

additional controls to be implemented 

in the event the area fails to meet a RFP 

milestone or fails to attain by its 

attainment date. These contingency 

measures must be fully adopted rules or 

measures which are ready for 

implementation quickly upon failure to 

meet milestones or attainment. The SIP 

should contain trigger mechanisms for 

the contingency measures, specify a 

schedule for implementation, and 

indicate that the measures will be 

implemented without significant further 

action by the State or EPA. Additional 

background information concerning the 

CAA contingency measure provisions 

appears in the General Preamble of 

April 16, 1992 (57 FR 13510–13512 and 

13520); and Section 9.2 of ‘‘Guidance 

for Growth Factor, Projections, and 

Control Strategies for the 15 percent 

Rate-of-Progress Plans’’ (EPA–452/R–

93–002), March 1993. 

The guidance indicates that States 

should adopt and submit contingency 

measures to provide a three percent 

emission reduction (beyond what is 

needed for attainment or the ROP 

requirement) for moderate and above 

ozone areas, which EPA concludes is 

generally acceptable to offset emission 

increases while States are correcting 

their SIPs. 

Also, EPA guidance suggests that 

contingency measures that a State 

adopted for purposes of the 15 percent 

ROP requirement may be used as the 

contingency measures for any post-1996 

3-year requirements for RFP, provided 

they have not been triggered and used 

as contingency measures for the 15 

percent plan. See Section 5.6 of 

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

Demonstration’’ (corrected version of 

February 18, 1994). Furthermore, 

Federal measures that result in 

additional emission reductions beyond 

those needed for attainment or ROP in 

an area could serve as contingency 

measures for a failure to attain or meet 

the ROP requirements. EPA has 

approved the use of Federal measures as 

part of contingency measures in several 

EPA actions approving 1-hour ozone 

SIPs (62 FR 15844, April 3, 1997), (62 

FR 66279, December 18, 1997), and (66 

FR 30811, June 8, 2001), (66 FR 586 and 

66 FR 634, January 3, 2001). 

2. Proposal 

For the 8-hour ozone standard, we 

intend to continue to observe our 

existing policies regarding contingency 

measures for areas covered under 

subpart 2. Areas that are nonattainment 

for the 8-hour ozone standard that have 

unused adopted contingency measures 

for the 1-hour ozone NAAQS may use 

those measures as appropriate as 

contingency measures for the 8-hour 

ozone NAAQS. For areas covered under 

subpart 1, we will provide additional 

guidance on the contingency measure 

requirement, but it is likely that it will 

be patterned after the subpart 2 

requirement. 

K. What Requirements Should Apply for 

RACM and RACT for 8-Hour Ozone 

Nonattainment Areas? 

1. Background 

Subpart 1 of part D includes general 

requirements for all designated 

nonattainment areas, including a 

requirement that a nonattainment plan 

provide for the implementation of all 

RACM as expeditiously as practicable, 

including such reductions that may be 

obtained through RACT. Most areas 

designated nonattainment for the 1-hour 

ozone standard are also subject to the 

requirements of subpart 2 of part D, 

including its detailed control measure 

provisions. Under subpart 2, RACT 

requirements for ozone nonattainment 

areas apply independent of the 

emissions reductions needed to attain 

the standard. The RACT requirements 

also apply in attainment areas within 

the current ozone transport region 

(OTR) (or any additional OTR that EPA 

may establish under the CAA), 

regardless of the emissions reductions 

needed to attain. The RACT requirement 

applies to both ozone precursors—NOX

and VOC. Since 1990, we have issued 

guidance on the RACT requirements in 

subpart 2.50 Prior to enactment of the 

CAA Amendments of 1990, EPA also 

issued detailed guidance on RACT for 

ozone nonattainment area SIPs.51 This 

guidance continues to be relevant.

Elsewhere in this proposed 

rulemaking, we are proposing one 

option for classifying 8-hour ozone 

nonattainment areas in which some 

areas would be subject to the 

requirements of subpart 1. Unlike 

subpart 2, which contains detailed 

requirements regarding the adoption of 

RACT, subpart 1 contains only a general 

provision which requires that SIPs for 

nonattainment areas provide for RACM, 

including RACT. See CAA section 

172(c)(1). Because RACT is a control 

technology requirement, it is somewhat 

independent of the need to demonstrate 

attainment or RFP. In the period prior 

to enactment of the 1990 CAA 

Amendments, only the general 

requirements for RACM and RACT 

existed, and EPA had issued CTGs to 

provide presumptive norms for RACT 

for VOC controls for States to follow in 

adopting RACT for ozone nonattainment 

areas. In 1990, Congress 

institutionalized this requirement for 

NOX and VOC (as ozone precursors) in 

subpart 2, and emphasized the role of 

CTGs and EPA’s pre-1990 guidance for 

ensuring that RACT rules themselves 

were adequately structured to ensure 

they would be effective and enforceable. 

For instance, ozone nonattainment areas 

classified as marginal or higher that had 

a previous obligation to submit 

corrections to their VOC RACT rules 

were required to complete and submit 

32838 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

52The exception to this rule is that States in the 

OTR are also required for all areas in the State to 

adopt RACT rules for all sources covered by a CTG 

and all other major sources of NOx or VOC 

regardless of their nonattainment classification. See

CAA section 184(b).

53Note that under the anti-backsliding provisions 

proposed above, any portion of an area classified 

marginal under the 8-hour standard that was 

classified moderate or higher under the 1-hour 

standard would also have a continuing RACT 

requirement from its classification as moderate or 

higher.

54Proposed Implementation Guidance for the 

Revised Ozone and Particulate Matter (PM) 

National Ambient Air Quality Standards (NAAQS) 

and the Regional Haze Program. November 17, 

1998. Found at: http://www.epa.gov/ttn/oarpg/

t1pgm.html. 55See CAA section 184(b).

those corrections within 6 months after 

the date of classification. See CAA 

section 182(a)(2)(A). However, the 1990 

CAA Amendments did not require 

marginal areas to adopt any RACT rules 

if they did not have a pre-1990 

obligation to do so. 52

Also, the amended CAA required EPA 

to issue CTGs for certain VOC sources 

by November 15, 1993. See CAA section 

183(a) and (b). Similarly, the EPA was 

required to issue alternative control 

techniques (ACT) documents for 

additional categories of VOC and NOX. 

See CAA section 183(c). The ACT 

documents are intended to help States 

in making RACT determinations.

2. Proposed Approach for RACT in 

General for Areas Covered Under 

Subpart 2 

We are proposing that the RACT 

requirement for areas covered under 

subpart 2 apply as specified in subpart 

2. Thus, areas classified as marginal that 

had a pre-1990 obligation for RACT 

would continue to have that obligation. 

Areas classified as moderate and above 

would be required to adopt RACT for 

the categories covered by the CTG’s that 

EPA has issued and to adopt non-CTG 

RACT measures for major sources.53

3. Proposed Approach for RACT in 

General for Areas Covered Only Under 

Subpart 1 

We are proposing two alternative 

options for addressing RACT for areas 

covered under subpart 1. 

a. Option 1: Treatment of RACT 

similar to subpart 2 areas. Based on the 

provisions of the CAA described above 

and the apparent differences in 

treatment regarding RACT between 

marginal and other areas, we propose to 

interpret the CAA in a manner similar 

to that under subpart 2 by requiring 

areas covered under subpart 1 to face 

different RACT requirements based on 

the magnitude of the ozone problem. 

This proposal has the advantage of 

minimizing some of the apparent 

inequities that might exist under the 

classification option (discussed 

elsewhere in this proposed rulemaking) 

in which some areas are covered under 

subpart 1 and others under subpart 2. 

(i) Areas similar to marginal areas.

Those 8-hour nonattainment areas 

covered only under subpart 1 that have 

an ozone problem that is similar in 

degree to that of a marginal area would 

be subject to the same RACT 

requirement as areas classified as 

marginal under subpart 2. These areas 

would be defined as those whose 8-hour 

ozone design value at the time of 

designation/classification would have 

placed them in the marginal 

classification if they had been subject to 

subpart 2 (i.e., areas that have an 8-hour 

design value of less than 0.092 ppm. 

(See elsewhere in this proposed 

rulemaking under the section 

concerning classification.) Similarly, if 

we adopt the incentive feature proposed 

in the classification section, and a 

subpart 1 area with a design value of 

0.092 ppm or greater can demonstrate 

that it will attain within 3 years after 

designation, then it would be subject to 

the same RACT requirement as applies 

to marginal areas under subpart 2. As 

noted in the background of this section, 

the 1990 CAA Amendments did not 

require marginal areas (with the 

exception of those located in the OTR) 

to adopt any RACT rules if they did not 

have a pre-1990 obligation to do so. 

Marginal areas that had a pre-1990 

obligation for RACT were required to 

make any corrections to those rules that 

we had previously identified. 

(ii) Areas similar to moderate and 

higher-classified areas. Those 8-hour 

nonattainment areas covered under 

subpart 1 that have an ozone problem 

that is similar in degree to that of a 

moderate or higher-classified area 

would be subject to the same RACT 

requirements as those that apply in 

subpart 2 for moderate and above areas. 

These areas would be defined as those 

whose 8-hour ozone design value at the 

time of designation/classification would 

have placed them in the moderate or 

above classification if they had been 

subject to subpart 2. As proposed 

elsewhere in this proposed rulemaking, 

this would mean areas that have an 8-

hour design value of 0.092 ppm or 

greater that are not able to demonstrate 

attainment within 3 years after 

designation. 

b. Option 2: Alternative treatment for 

RACT under subpart 1. This option is 

similar to the approach we proposed in 

our November 17, 1998 draft 

implementation guidance.54 At the time, 

we stated that we believed we had 

authority under subpart 1 to apply an 

interpretation for RACT for ozone 

nonattainment areas for the 8-hour 

NAAQS that was similar to the Agency’s 

policy for pollutants other than ozone. 

Under that interpretation and this 

option, for the 8-hour ozone NAAQS, if 

the area is able to demonstrate 

attainment of the standard as 

expeditiously as practicable with 

emission control measures in the SIP, 

then RACT will be met, and additional 

measures would not be required as 

being reasonably available.

c. Ozone transport regions. In 

addition, all areas of the OTR are 

required to adopt NOX and VOC RACT 

requirements, regardless of their 

attainment classification.55 Of course, 

these areas were already required to 

submit RACT rules for purposes of the 

1-hour standard.

4. Proposed Approach for Previous 

Source-Specific Major Source RACT 

Determinations 

Section 182(b)(2)(C) requires SIPs in 

moderate and higher classified areas to 

provide for RACT for major stationary 

sources of VOC that are not covered by 

CTGs. Section 182(f)(1) provided that 

this requirement also apply to major 

sources of NOX. Many areas subject to 

the major source RACT requirement 

under the 8-hour ozone standard would 

have previously addressed the RACT 

requirement with respect to the 1-hour 

ozone standard. This includes the nonCTG major source VOC RACT 

requirement and the NOX major source 

RACT requirement. For example, major 

sources located in States of the OTC 

were subject to the NOX RACT 

requirement in the mid-1990s. We 

believe that, in many cases, a new RACT 

determination under the 8-hour 

standard would call for installation of 

similar control technology as the initial 

RACT determination under the 1-hour 

standard because the fundamental 

control techniques are still applicable. 

In other cases, a new RACT analysis 

could determine that better technology 

has become available and some 

additional emissions reductions are 

achievable. The cost per ton of NOX

removed associated with installing a 

second round of RACT controls is likely 

to be high in many cases due to the 

relatively small amount of additional 

NOX emission reductions expected. In 

these cases, the additional costs 

associated with the replacement of the 

existing RACT controls may be an 

unnecessary burden, given the small 

emissions benefit potential. In contrast, 

a RACT analysis for uncontrolled 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32839

56Memorandum of March 16, 1994, from D. Kent 

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

Reasonably Available Control Technology (RACT).’’

U.S. Environmental Protection Agency, Research 

Triangle Park, North Carolina.

sources would be much more likely to 

find that cost-effective controls are 

available. 

Therefore, in portions of 8-hour ozone 

nonattainment areas where major 

sources or source categories were 

previously reviewed and controls 

subsequently applied to meet the RACT 

requirement under the 1-hour standard, 

we propose that States may choose to 

accept the initial RACT analysis as 

meeting the RACT requirements for the 

8-hour program and need not submit a 

new RACT SIP. At the time the State 

submits its attainment demonstration, it 

should submit a certification that it 

previously met the RACT requirement 

as part of its SIP revision. We also 

propose that a RACT determination 

would be necessary for major sources in 

any portion of the 8-hour nonattainment 

area that was not subject to an initial 

RACT program under the 1-hour 

standard. Furthermore, in cases where 

the initial RACT analysis under the 1-

hour standard for a specific source or 

source category concluded that no 

additional controls were necessary, we 

propose that a new RACT determination 

is required. The new RACT 

determination is needed to take into 

account that newer, cost-effective 

control measures may have become 

available for sources that were not 

previously regulated. Thus, the State 

needs to reassess whether controls 

should be required. In addition, any 

major VOC or NOX source that exists at 

the time of final rulemaking on 

implementation of the 8-hour ozone 

standard but that did not exist during a 

previous RACT determination must be 

subject to a RACT determination as part 

of the SIP for the 8-hour ozone standard.

5. Proposed Approach for NOX RACT 

Determinations in Areas Affected by the 

NOX SIP Call 

All States submitting SIP revisions to 

meet the NOX SIP Call (October 27, 

1998, 63 FR 57356) have elected to 

require large boilers and turbines to 

comply with an emissions cap-and-trade 

program consistent with EPA’s model 

cap-and-trade rule. As a result, all these 

sources are already subject to stringent 

control requirements. As described 

below, these sources collectively 

achieve more emissions reductions than 

would be required by application of 

RACT requirements to each source. 

Therefore, where a nonattainment area 

is located in a State with an EPAapproved cap-and-trade program, EPA 

proposes that sources subject to the capand-trade program already meet the 

NOX RACT requirements. 

In previously issued guidance 

concerning NOX RACT for boilers and 

turbines, EPA indicated that NOX RACT 

for certain types of electricity generating 

units (EGUs) is equivalent to the title IV 

requirements and is the most effective 

level of combustion modification 

reasonably available (NOX General 

Preamble at 57 FR 55625). In subsequent 

guidance, EPA further indicated that 

NOX RACT should generally be 

expected to achieve approximately 30–

50 percent reduction from uncontrolled 

levels.56

Large boilers and turbines subject to 

the NOx SIP Call cap-and-trade program 

are expected to achieve much greater 

emissions reductions than these NOX

RACT levels. The NOX SIP Call base 

case assumes EGUs meet the title IV 

and/or RACT requirements. In the NOX

SIP Call control case, EGUs are expected 

to achieve a 64 percent reduction 

beyond the base case requirements (65 

FR 11225). Thus, these EGUs are 

expected to reduce emissions by far 

greater amounts than would be required 

by a RACT program. Furthermore, the 

EGU emissions reductions comprise 

nearly 85 percent of the overall 

emissions reductions resulting from the 

NOX SIP Call. The non-EGUs subject to 

the States’ cap-and-trade program are 

expected to achieve a 60 percent 

reduction from uncontrolled levels (63 

FR 57402). These non-EGU reductions 

are clearly beyond the 30–50 percent 

expected from a RACT program. 

Because the NOX SIP Call is a marketbased program, there may be a few units 

that choose to meet those requirements 

simply by emissions trading, even 

though the vast majority of units 

affected by the NOX SIP Call will install 

controls. In any nonattainment areas 

where this is the case, EPA believes that 

the overall emission reductions from 

sources in the NOX SIP Call cap-andtrade program will achieve more 

emissions reductions in the 

nonattainment area than would 

application of RACT to each of those 

units. 

In summary, the level of emissions 

reductions required by the NOX SIP Call 

is far greater than the level of reductions 

achieved by controls we have 

determined to be NOX RACT. Therefore, 

EPA believes the sources that comply 

with the NOX SIP Call cap-and-trade 

program meet NOX RACT requirements. 

Accordingly, EPA proposes that the 

State need not perform a NOX RACT 

analysis for sources subject to the State’s 

emission cap-and-trade program where 

the cap-and-trade program has been 

approved by EPA as meeting the NOX

SIP Call requirements and need not 

submit a new NOX RACT SIP for those 

sources. EPA invites comment on this 

approach. 

As described in section 4, proposed 

approach for previous source-specific 

major source RACT determinations, 

States would need to make a RACT 

determination for major sources not 

subject to the cap-and-trade program. 

However, in cases where States have 

adopted controls consistent with the 

NOX SIP Call for cement kilns (i.e., 30 

percent reduction), the State may 

choose to accept the NOX SIP Call 

requirements as meeting the NOX RACT 

requirements for the 8-hour standard 

and need not submit a new NOX RACT 

SIP for those sources. As part of the 

NOX SIP Call, EPA determined that 

highly cost-effective controls for cement 

kilns will achieve a 30 percent 

reduction and that many cement plants 

in the SIP Call region implemented such 

controls in State RACT programs (63 FR 

57418). In its RACT SIP submission, the 

State should identify the cement plants 

that are subject to NOX SIP Call controls 

and that, therefore, already meet RACT. 

In addition, through the NOX SIP Call 

or other programs (e.g., NSR) States may 

have adopted control measures for 

specific NOX sources that equal or 

exceed RACT requirements. For these 

sources, States may choose to submit, as 

part of its NOX RACT SIP revision, 

documentation that the previously 

adopted control measure meets the 

RACT requirement, where applicable. 

Finally, in developing the NOX SIP Call, 

States may have considered control 

measures for sources not in the cap-andtrade program—or may consider 

additional sources in responding to the 

second phase of the NOX SIP Call. EPA’s 

NOX RACT guidance (NOX General 

Preamble at 57 FR 55625) encourages 

States to develop RACT programs that 

are based on ‘‘areawide average 

emission rates.’’ Thus, States can submit 

a demonstration as part of their RACT 

submittal showing that the weighted 

average emission rate from sources in 

the nonattainment area subject to 

RACT—including sources reducing 

emissions to meet the NOX SIP Call 

requirements—meet RACT 

requirements.

It should also be noted that this 

proposal in no way limits States’

discretion to require beyond-RACT NOX

reductions from any source (including 

NOX SIP Call sources) in a plan to 

demonstrate attainment of the healthbased ozone standards. In certain areas, 

States may choose to require NOX

controls based on more advanced 

32840 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

57For example, the 1991 National Academy of 

Sciences report entitled Rethinking the Ozone 

Problem in Urban and Regional Air Pollution

recommends that ‘‘To substantially reduce O3

[ozone] concentrations in many urban, suburban, 

and rural areas of the United States, the control of 

NOX emissions will probably be necessary in 

addition to, or instead of, the control of VOCs.’’ 58For example, NOX SIP Call (published October 

27, 1998), Tier 2/Gasoline Sulfur regulations 

(published on February 10, 2000); and Control of 

Emissions of Air Pollution from 2004 and Later 

Model Year Heavy-duty Highway Engines and 

Vehicles (published October 6, 2000). 59 ‘‘State Implementation Plans; General Preamble 

for the Implementation of Title I of the Clean Air 

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

13498 at 13560 (April 16, 1992). 

‘‘Guidance on the Reasonably Available Control 

Measures (RACM) Requirement and Attainment 

Demonstration Submissions for Ozone 

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

Office of Air Quality Planning and Standards. 

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

oarpg/t1pgm.html.

Memorandum of December 14, 2000, from John 

S. Seitz, Director, Office of Air Quality Planning 

and Standards, re: ‘‘Additional Submission on 

RACM from States with Severe One-Hour Ozone 

Nonattainment Area SIPs.’’

60Section 182(a) provided that marginal areas 

with pre-1990 RACT obligations had to submit 

corrections to their RACT rules within 6 months 

after classification under the 1990 CAAA. New 8-

hour ozone nonattainment areas that are classified 

as marginal would not have this requirement.

61See 57 FR 55622 (‘‘Nitrogen Oxides 

Supplement to the General Preamble,’’ published 

November 25, 1992).

62As stated in EPA’s I/M (57 FR 52950) and 

conformity rules (60 FR 57179 for transportation 

rules and 58 FR 63214 for general rules), certain 

NOX requirements do not apply where EPA granted 

an areawide exemption under section 182(f).

63See 57 FR 55620, ‘‘Nitrogen Oxides 

Supplement to the General Preamble,’’ published 

November 25, 1992.

64The EPA’s primary guidance regarding section 

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

Determining the Applicability of Nitrogen Oxide 

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

S. Seitz, Director, Office of Air Quality Planning 

and Standards, to the Regional Division Directors, 

December 16, 1993.

control technologies to provide for 

attainment of the ozone standards. 

As stated in section 3, above, we are 

proposing an alternative option for 

RACT under subpart 1. In this option, 

areas that are able to demonstrate 

attainment of the 8-hour standard as 

expeditiously as practicable with the 

control measures in their SIP would be 

considered as having met RACT. 

6. Proposed Approach for NOX as an 

Ozone Precursor 

In addition to the issue regarding the 

nature of the RACT rules that apply 

under subpart 1, another issue concerns 

the pollutants (precursors) to which the 

RACT rules apply. Although NOX has 

long been recognized as a precursor to 

ozone 57 and several national rules 58

have been promulgated to control NOX

for purposes of helping attain the ozone 

standard, subpart 1 does not specifically 

address either NOX or VOC, but rather 

RACT in general. We propose to clarify 

this by recognizing both NOX and VOCs 

as precursors to ozone and to require 

NOX and VOC RACT under subpart 1. 

This is consistent with the application 

of RACT under subpart 2. Under section 

182(f) (in subpart 2), a waiver from NOX

RACT is possible under certain 

circumstances (the waiver provision is 

discussed elsewhere in this proposed 

rulemaking) for areas subject to subpart 

2. We are proposing to allow areas 

subject to subpart 1, to seek a waiver 

consistent with the tests set forth in 

section 182(f).

7. Proposed Approach for RACM 

We have also issued guidance for 

implementing the RACM provisions of 

the CAA that interprets those provisions 

to require a demonstration that the State 

has adopted all reasonable measures to 

meet RFP and attainment as 

expeditiously as practicable and thus 

that no additional measures that are 

reasonably available will advance the 

attainment date or contribute to RFP for 

the area. 59 The RACM requirement, 

which is set forth in section 172(c)(1) of 

the CAA, applies to all nonattainment 

areas that are required to submit an 

attainment demonstration, whether 

covered under only subpart 1 or also 

subpart 2.

8. Proposed Submission Date for RACT 

and RACM Requirements 

We are proposing that the SIP 

provisions for RACT for a 

nonattainment area—regardless of 

whether the area is covered under 

subpart 1 or subpart 2—be submitted 

within 2 years after the area’s 

nonattainment designation; this is 

consistent with the timing for 

submission of RACT rules in section 

182(b)(2) for moderate areas.60

We are proposing that the SIP 

provisions for RACM for a 

nonattainment area—regardless of 

whether the area is covered under 

subpart 1 or subpart 2—be submitted 

within 3 years after the area’s 

nonattainment designation; this is 

consistent with the timing for 

submission of an area’s demonstration 

of attainment. 

L. How Will the Section 182(f) NOX

Provisions Be Handled Under the 8-

Hour Ozone Standard? 

In subpart 2 of part D, section 182(f) 

requires States to apply the same 

requirements to major stationary sources 

of NOX as are applied to major 

stationary sources of VOC. The 

applicable requirements are RACT and 

NSR for major stationary sources in 

certain ozone nonattainment areas and 

throughout States in the OTR.61 In 

addition, section 182(f) specifies 

circumstances under which these NOX

requirements would be limited or would 

not apply (‘‘NOX waiver’’). Further, 

areas granted a NOX waiver under 

section 182(f) may be exempt from 

motor vehicle I/M and certain Federal 

requirements of general and 

transportation conformity.62 For the 

same reasons described in the ‘‘Nitrogen 

Oxides Supplement to the General 

Preamble’’ with respect to the 1-hour 

ozone standard, we propose to also 

apply the NOX requirements and waiver 

provisions in section 182(f) for 8-hour 

ozone nonattainment areas under 

subpart 2 and OTRs.63

Elsewhere in today’s proposed 

rulemaking, we propose to establish 

NOX as a precursor to ozone under 

subpart 1 and require RACT and NSR in 

subpart 1 nonattainment areas for major 

sources of NOX as well as VOC. As 

noted in the preceding paragraph, we 

are also proposing that the NOX RACT 

and NSR requirements apply in certain 

subpart 2 nonattainment areas and 

throughout OTRs. While NOX emissions 

are necessary for the formation of ozone 

in the lower atmosphere, a local 

decrease in NOX emissions can, in some 

cases, increase local ozone 

concentrations. This potential ‘‘NOX

disbenefit’’ resulted in Congress 

including NOX waiver provisions in 

section 182(f) (in subpart 2 of part D) for 

areas classified under subpart 2. We 

believe the NOX waiver provisions are a 

prudent safeguard to avoid unnecessary 

emissions reductions and that these 

safeguards should be extended to areas 

classified under subpart 1 that are 

subject to the NOX RACT and NSR 

provisions. Therefore, we propose to 

establish NOX waiver provisions 

identical to those in section 182(f) for 

areas subject to subpart 1. 

In the event that the final rulemaking 

does not establish NOX as a precursor to 

ozone under subpart 1 and the NOX

RACT and/or NSR requirements do not 

apply, a NOX waiver provision would be 

unnecessary with respect to subpart 1 

areas. We propose that the concepts 

contained in the existing 1-hour ozone 

guidance 64 regarding section 182(f) 

would apply for the 8-hour ozone 

program under subparts 1 and 2. We 

would update the existing guidance to 

take into account the new ozone and PM 

standards and modeling techniques now 

available. For areas that were previously 

granted a NOX waiver under the 1-hour 

ozone standard, a re-approval would be 

needed to make it clear that the 

exemption applies, to allow for public 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32841

65The EPA’s Conformity Guidance on 

Implementation of March 2, 1999, Conformity Court 

Decision (EPA 420–F–99–025, May 1999).

comment, to be consistent with the 

waiver guidance under the 8-hour 

standard (once issued), and to account 

for any new information that may point 

to a different conclusion.

M. What Aspects of Transportation 

Conformity and the 8-Hour Ozone 

Standard Are Addressed in This 

Proposal? 

1. What Is Transportation Conformity? 

Transportation conformity is required 

under section 176(c) of the CAA (42 

U.S.C.§ 7506(c)) to ensure that federally 

supported highway and transit project 

activities are consistent with (‘‘conform 

to’’) the purpose of a SIP. Conformity to 

the purpose of the SIP means that 

transportation activities will not cause 

new air quality violations, worsen 

existing violations, or delay timely 

attainment of the NAAQS. 

Transportation conformity applies in 

nonattainment areas and maintenance 

areas. EPA’s transportation conformity 

rule, 40 CFR part 93, establishes the 

criteria and procedures for determining 

whether transportation activities 

conform to the State air quality plan. It 

also establishes criteria and procedures 

for determining whether transportation 

activities conform in areas where no SIP 

containing mobile source emissions 

budgets yet exists. 

EPA first published the transportation 

conformity rule on November 24, 1993 

(58 FR 62188) and has amended the rule 

several times. On August 15, 1997, a 

comprehensive set of amendments was 

published that clarified and streamlined 

language from the 1993 transportation 

conformity rule (62 FR 43780). These 

rulemakings, as well as other relevant 

conformity materials such as guidance 

documents, policy memoranda, and 

conformity research can be found at 

EPA’s transportation conformity Web 

site, at: http://www.epa.gov/otaq/

transp.htm (once at the site, click on 

‘‘Transportation Conformity.’’) 

2. Why Is EPA Discussing 

Transportation Conformity in This 

Proposed Rulemaking?

We are discussing transportation 

conformity in this proposed rulemaking 

in order to provide affected parties with 

information on when transportation 

conformity will be implemented under 

the 8-hour ozone standard and how we 

plan to make the transition from the 1-

hour ozone standard to the 8-hour ozone 

standard. Affected parties may include 

State and local transportation and air 

quality agencies, metropolitan planning 

organizations (MPOs) and the U.S. 

Department of Transportation (DOT). To 

determine whether this discussion 

affects your organization, you should 

carefully examine the applicability 

requirements in 40 CFR 93.102 of the 

transportation conformity rule. 

3. Are Any Changes Being Made to 

Transportation Conformity in This 

Proposed Rulemaking? 

No, we are not proposing changes to 

the transportation conformity rule in 

this proposed rulemaking. In the future, 

we plan to conduct a rulemaking to 

establish the specific conformity tests 

that will apply under the 8-hour 

standard. We intend to complete that 

rulemaking prior to area designations 

for the 8-hour standard and will provide 

the public with the opportunity to 

comment on the proposed changes. We 

plan to propose this rulemaking in the 

summer of 2003. 

4. When Does Transportation 

Conformity Apply to 8-hour Ozone 

Nonattainment Areas? 

Transportation conformity applies to 

8-hour ozone nonattainment areas 1 

year after the effective date of an area’s 

designation. This 1-year grace period is 

found in the CAA at 42 U.S.C. 

7506(c)(6). Specifically, this section of 

the CAA provides areas, that for the first 

time are designated nonattainment for a 

given air quality standard, with a 1-year 

grace period before the conformity 

regulation applies with respect to that 

standard. Since the 8-hour ozone 

standard is a different standard from the 

1-hour ozone standard, every area that 

is designated nonattainment for the 8-

hour ozone standard will have a 1-year 

grace period before conformity applies 

for the 8-hour standard, regardless of 

whether or not it was designated 

nonattainment or maintenance for the 1-

hour ozone standard. 

For more information, please see the 

proposed and final rulemaking entitled, 

‘‘Transportation Conformity Rule 

Amendments: Minor Revision of 18-

Month Requirement for Initial SIP 

Submissions and Addition of Grace 

Period for Newly Designated 

Nonattainment Areas,’’ published 

October 5, 2001 (66 FR 50954); and 

August 6, 2002 (67 FR 50808), 

respectively for additional discussion of 

the 1-year grace period for newly 

designated areas. (The proposed and 

final rule can be found on EPA’s 

transportation conformity Web site 

mentioned above.) 

5. How Does the 1-Year Grace Period 

Apply in Metropolitan Areas? 

Metropolitan areas are those areas that 

have a MPO designated as being 

responsible for transportation planning 

per 23 U.S.C. 134. In these areas, the 1-

year grace period means that, 1 year 

after the effective date of an area’s 

designation as nonattainment for the 8-

hour standard, the area must have a 

conforming transportation plan and 

Transportation Improvement Program in 

place to fund or approve transportation 

projects. If, at the conclusion of the 1-

year grace period, a metropolitan area is 

not able to make a conformity 

determination for its plan and 

Transportation Improvement Program, 

the area will be in what is known as a 

‘‘conformity lapse.’’ (For the discussion 

of which projects can proceed during a 

conformity lapse, please see DOT’s 

January 2, 2002 guidance, published 

February 7, 2002, at 67 FR 5882; and 

EPA’s May 14, 1999 guidance.65 Both of 

these documents can be found on EPA’s 

transportation conformity Web site: 

http://www.epa.gov/otaq/transp/

traqconf.htm.

6. How Does the 1-Year Grace Period 

Apply in ‘‘Donut’’ Areas?

For the purposes of conformity, a 

donut area is the geographic area 

outside a metropolitan planning area 

boundary, but inside the boundary of a 

designated nonattainment/maintenance 

area. The conformity requirements for 

donut areas are generally the same as 

those for metropolitan areas, and the 

MPO would include any projects 

occurring in the donut area in its 

analysis of the metropolitan 

transportation plan and TIP. Therefore, 

the one-year grace period applies to 

donut areas in much the same way that 

it applies to metropolitan areas. That is, 

within one year of the effective date of 

an area’s designation, a donut area’s 

projects must be included in an MPO’s 

conformity determination for the 

metropolitan plan and TIP for those 

projects to be funded or approved. If, at 

the conclusion of the one-year grace 

period, the donut area’s projects have 

not been included in an MPO’s 

conformity determination, the entire 

nonattainment area’s conformity would 

lapse. 

7. How Does the 1-Year Grace Period 

Apply in Isolated Rural Areas? 

For the purposes of conformity, a 

nonattainment or maintenance area (or 

portion thereof) is considered to be an 

isolated rural area if it does not have a 

metropolitan transportation plan or 

Transportation Improvement Program 

required under 23 U.S.C. 134, and its 

projects are not considered in the 

emissions analysis of any MPO’s 

32842 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

transportation plan or Transportation 

Improvement Program. Isolated rural 

areas are distinguished from ‘‘donut’’

areas which are outside the 

metropolitan planning boundary and 

inside the nonattainment/maintenance 

area boundary. 

Because isolated rural areas do not 

have federally required metropolitan 

transportation plans and Transportation 

Improvement Programs, a conformity 

determination need only be done in an 

isolated rural area when that area has a 

transportation project or projects that 

need approval. Therefore, isolated rural 

areas also have a 1-year grace period 

before conformity applies under the 8-

hour ozone standard, but at the end of 

that grace period, the area is not 

required to have made a conformity 

determination. An isolated rural area 

would be required to make a conformity 

determination only at the point when a 

new transportation project needs 

approval. This point may occur 

significantly after the 1-year grace 

period has ended. (Conformity 

requirements for isolated rural areas can 

be found at 40 CFR 93.109(g)). 

8. Does Conformity Apply for the 1-

Hour Ozone Standard Once the 1-Hour 

Ozone Standard Is Revoked? 

The CAA only requires conformity in 

areas that are designated nonattainment 

or maintenance for a standard. 

Therefore, conformity will not apply for 

purposes of the 1-hour ozone standard 

after the 1-hour standard and an area’s 

1-hour designation are revoked. In other 

words, existing 1-hour ozone 

nonattainment and maintenance areas, 

including those that will not be 

designated nonattainment for the 8-hour 

ozone standard, will no longer be 

required to demonstrate conformity to 

the 1-hour standard when EPA revokes 

the standard, 1 year after the effective 

date of EPA’s 8-hour ozone 

designations. This interpretation that 

conformity would not apply in 1-hour 

ozone maintenance areas once the 1-

hour standard is revoked is a change 

from the approach we planned to take 

in 1997. Since that time, we have 

reconsidered whether or not conformity 

should continue to apply in 

maintenance areas. We have concluded 

that the better interpretation is that 

conformity would not apply in 1-hour 

maintenance areas once the 1-hour 

ozone standard is revoked because 

maintenance areas are relieved of the 

obligation under section 175A of the 

CAA to have a maintenance plan. Since 

a maintenance plan is not required, 

conformity no longer applies in these 

areas. A detailed discussion of our plans 

for revoking the 1-hour standard and the 

associated 1-hour designations may be 

found elsewhere in today’s proposed 

rulemaking. 

9. What Are EPA’s Plans for Amending 

the Conformity Rule To Address the 8-

Hour Ozone Standard?

The conformity rule will need to be 

amended to address the implementation 

of both the 8-hour ozone and PM2.5 air 

quality standards. We plan to address 

both standards in one revision to the 

rule. We anticipate proposing this 

revision in 2003 and finalizing the 

rulemaking prior to EPA’s finalization of 

designations of nonattainment areas in 

2004. This schedule would allow areas 

to be well aware of the conformity 

requirements that will apply to them 

prior to the start of the 1-year grace 

period. The proposal will provide an 

opportunity for stakeholders to offer 

comments and ideas for providing 

flexibilities that would be appropriate 

for some or all nonattainment areas. 

10. What Impact Will the 

Implementation of the 8-Hour Ozone 

Standard Have on a State’s 

Transportation Conformity SIP? 

Since we are not now proposing to 

make specific revisions to our 

Transportation Conformity Regulations 

in this proposal, States should not need 

to revise their Transportation 

Conformity SIPs, unless they need to do 

so to ensure the regulations apply in the 

appropriate areas. 

11. What Other Parts of This Proposal 

Could Affect Transportation Conformity 

Determinations? 

We believe that transportation 

conformity stakeholders would be 

interested in the proposed Clean Air 

Development Communities program 

found in section O, question 9 of this 

proposal. Section O discusses how we 

propose to implement the NSR, EPA’s 

program that regulates emissions from 

stationary sources such as power plants, 

under the 8-hour ozone standard. In 

question 9 of section O, we propose two 

options to recognize the air quality 

benefits that may result from siting new 

sources and planning development in a 

particular manner. Under these two 

options, the air quality benefit of 

location decisions would be applied to 

the stationary source sector. Because the 

benefits of measures cannot be counted 

twice, if air quality benefits of location 

decisions are applied to the stationary 

source sector, they could not also be 

credited to the transportation sector in 

a conformity determination. These 

options and their implications are 

discussed in further detail in section O, 

question 9. We encourage transportation 

conformity stakeholders to review that 

section carefully and submit any 

comments to us. 

N. What Requirements for General 

Conformity Should Apply to the 8-Hour 

Ozone Standard? 

1. What Is the Purpose of the General 

Conformity Regulations? 

Section 176(c) of the CAA requires 

that before a Federal entity takes an 

action, it must make a determination 

that the proposed action will not 

interfere with the SIP or the State’s 

ability to attain and maintain the 

NAAQS. In November 1993, EPA 

promulgated two sets of regulations to 

implement section 176(c). One set, 

known as the Transportation 

Conformity Regulations (described 

above) deals with approval and funding 

of highway and mass transit projects. 

The other set, known as the general 

conformity regulations, deals with all 

other Federal activities. Besides 

ensuring that Federal actions will not 

interfere with the SIP, the general 

conformity program also fosters 

communications with State/local air 

quality agencies, allows for public 

participation in the review of air quality 

impacts from Federal actions, and 

allows for air quality review of 

individual projects. In 1995, Congress 

limited the application of section 176(c) 

to nonattainment and maintenance areas 

only. 

2. How Is the General Conformity 

Program Currently Structured? 

Due to the very broad definition of 

‘‘Federal action’’ in the statute and the 

number of Federal agencies subject to 

the conformity requirement, the number 

of individual conformity decisions 

could have been on the order of a 

thousand or more per day. To avoid 

creating an unreasonable administrative 

burden, EPA established de minimis

emissions levels and exempted certain 

actions. In addition, the regulations 

allow Federal agencies to develop their 

own list of actions which are presumed 

to conform. For non-exempt actions that 

increase emissions above the de 

minimis levels, the Federal agency must 

demonstrate that the action will 

conform with the SIP or will not cause 

or contribute to any new violation of 

any standard in any area; interfere with 

provisions in the applicable SIP for 

maintenance of any standard; increase 

the frequency or severity of any existing 

violation of any standard; or delay 

timely attainment of any standard or 

any required interim emissions 

reductions or other milestone. We are 

currently reviewing the general 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32843

conformity program and, in a separate 

action, may revise the regulations as 

appropriate, with respect to the 8-hour 

standard. 

3. Who Runs the General Conformity 

Program? 

Each Federal agency is responsible for 

determining if the action it takes is 

subject to the conformity regulations 

and, if so, whether the action conforms 

to the SIP. Each Federal agency’s 

approach to the conformity evaluation 

differs depending upon the actions 

being taken. Agencies that are 

permitting or funding actions subject to 

the conformity rules generally require 

the applicant to develop the technical 

support for the conformity 

determination, although some agencies 

undertake the complete evaluation 

themselves. 

4. How Does an Agency Demonstrate 

Conformity?

Depending upon the pollutant and the 

specific situation, Federal agencies have 

several options for demonstrating 

conformity. For actions in ozone 

nonattainment and maintenance areas, 

the Federal agency can demonstrate that 

the project/action is specifically 

identified and accounted for in the SIP, 

obtain documentation from the State 

that the emissions are included in the 

SIP, have the State commit to include 

the emissions in the SIP, or mitigate the 

emissions or offset the emissions from 

emissions reductions within the same 

nonattainment or maintenance area. 

5. General Conformity Regulation 

Revisions for the 8-Hour Ozone 

Standard 

a. What de minimis emission levels 

will be set for ozone precursors? For the 

ozone precursors VOC and NOX, we are 

proposing to retain the existing de 

minimis emission levels. Those levels 

were based on the definition of a major 

stationary source for the NSR programs 

as established by sections 182, 183, and 

302 of the CAA. The current de minimis

levels are identified in Table 4 below.

TABLE 4.—DE MINIMIS EMISSION

LEVELS FOR VOC AND NOX

Type of ozone area VOC 

tons/year 

NOX

tons/year 

Extreme Nonattainment ...................... 10 10 

Severe Nonattainment ...................... 25 25

Serious Nonattainment ...................... 50 50 

Moderate and Marginal Nonattainment in the OTR ... 50 100 

TABLE 4.—DE MINIMIS EMISSION LEVELS FOR VOC AND NOX—Continued

Type of ozone area VOC 

tons/year 

NOX

tons/year 

Other Nonattainment 100 100 

Maintenance in OTR 50 100 

Other Maintenance ... 100 100 

Areas covered by subpart 1 are 

included in the ‘‘Other Nonattainment’’

category listed in Table 4 and would 

have de minimis emission levels of 100 

tons per year for both VOC and NOX

emissions. 

b. What impact will the 

implementation of the 8-hour ozone 

standard have on a State’s general 

conformity SIP? Since we are not now 

proposing to make specific revisions to 

its general conformity regulations in this 

proposal, States should not need to 

revise their general conformity SIPs, 

unless they need to do so to ensure the 

regulations apply in the appropriate 

areas. 

c. Are there any other impacts on the 

SIPs related to general conformity based 

on implementation of the 8-hour 

standard? Currently, we are reviewing 

the general conformity regulations and 

are considering whether it would be 

appropriate to revise them in the near 

future. We are not proposing any 

revisions at this time. However, as areas 

develop SIPs for the 8-hour ozone 

standard, we recommend that State and 

local air quality agencies work with 

major facilities which are subject to the 

general conformity regulations (e.g., 

commercial airports and large military 

bases) to establish an emission budget 

for those facilities in order to facilitate 

future conformity determinations. Such 

a budget could be used by Federal 

agencies in determining conformity or 

identifying mitigation measures. 

6. How Does the 1-Year Grace Period 

Apply to General Conformity 

Determinations? 

Section 42 U.S.C. 7506(c)(6) applies to 

both transportation and general 

conformity. Therefore, the general 

conformity requirements would not 

apply to actions/projects in newly 

designated nonattainment areas until 1 

year after the effective date of the 

designation. As discussed in section 

M.4., the 8-hour ozone standard is a 

new standard and the grace period 

applies to all the areas designated 

nonattainment for that standard. 

Actions/projects in areas previously 

designated nonattainment or 

maintenance for the 1-hour ozone 

standard must demonstrate conformity 

for the 1-hour standard until that 

standard is revoked in whole or in part. 

Once the 1-hour ozone standard is 

revoked in whole or in part, Federal 

agencies will be required to conduct 

conformity determinations for the 8-

hour standard if the project/action is in 

an area designated nonattainment for 

that standard. The general conformity 

regulations specify requirements for 

actions/projects in areas without an 

approved SIP. Those requirements 

would apply to 8-hour ozone 

nonattainment areas until the SIP is 

approved by EPA. 

O. How Should the NSR Program be 

Implemented Under the 8-Hour Ozone 

NAAQS? 

1. Background 

The major NSR program contained in 

parts C and D of title I of the CAA is 

a preconstruction review and permitting 

program applicable to new or modified 

major stationary sources of air 

pollutants regulated under the CAA. In 

nonattainment areas, and throughout 

the OTR, the program is implemented 

under the requirements of part D of Title 

I of the CAA, and is referred to as 

nonattainment NSR. In attainment or 

unclassifiable areas outside the OTR, 

the requirements under part C of title I 

of the CAA apply, and the program is 

called the Prevention of Significant 

Deterioration (PSD) program. 

Collectively, we also commonly refer to 

these programs as the major NSR 

program. These regulations are 

contained in 40 CFR 51.165, 51.166, 

52.21, 52.24 and part 51, appendix S. 

In attainment/unclassifiable areas 

outside of the OTR, a new major source, 

or a major modification to an existing 

source, must install best available 

control technology (BACT) and conduct 

an air quality modeling analysis and an 

analysis of potential impacts on Class I 

areas (see section 162 of the CAA). If the 

source is located in a nonattainment 

area, or anywhere in the OTR, including 

OTR attainment areas, it must install 

technology that meets the lowest 

achievable emission rate (LAER), secure 

emission reductions to offset any 

increases in emissions, and perform 

other analyses. 

As of the date areas are designated 

attainment or nonattainment under the 

8-hour standard, major NSR will apply 

under the standard. In areas outside the 

OTR that will be designated as 

attainment for the 8-hour ozone 

standard, the part C PSD program will 

apply. As there are currently PSD 

programs in place in all areas of the 

country, implementation of the new 

standard should be a straightforward 

32844 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

66Should EPA issue revisions to these 

regulations, the revised NSR program would of 

course apply to new sources and major 

modifications.

67States with already applicable part D NSR 

programs may choose to amend their SIPs to allow 

them to take advantage of the transitional option 

described in this section, provided they meet the 

transitional program eligibility criteria.

matter. (Note that one change we will be 

codifying is the addition of NOX as an 

ozone precursor. This is discussed in 

more detail later in this section). 

In areas newly designated as 

nonattainment for the 8-hour ozone 

standard, however, a number of 

implementation issues will arise, which 

we discuss below. Typically, upon 

designation, nonattainment areas would 

be required to implement nonattainment 

NSR for major sources and major 

modifications.66 However, in order to 

reduce the burden for nonattainment 

areas meeting certain conditions, we are 

proposing a revised set of major NSR 

requirements under the authority of 40 

CFR Part 51, appendix S, section VI. We 

are referring to this as the transitional 

program, and it is discussed in more 

detail later in this section.

2. Nonattainment NSR Under the 8-

Hour Ozone Standard 

Some States may already have in 

place a part D major source program 

applicable to newly designated 8-hour 

ozone nonattainment areas. For 

nonattainment areas in States whose 

SIPs contain a generic requirement to 

issue part D major source NSR permits 

in areas designated as nonattainment, 

nonattainment NSR permit 

requirements will become automatically 

effective upon designation (See Figure 

1).67

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32845

For a nonattainment area in a State 

with a SIP that specifically lists the 

areas in which part D NSR applies, or 

in areas which currently have no 

nonattainment plan, there will be an 

interim period between the designation 

date and the date that the State amends 

its SIP either to list any new 

nonattainment area(s) or to include a 

part D plan. During this interim period, 

part D NSR requirements are governed 

not by section 51.165, but by appendix 

S to part 51. 

a. What does appendix S require for 

nonattainment areas during the interim 

period? In general, appendix S requires 

new or modified major sources to meet 

LAER and obtain sufficient offsetting 

emissions reductions to assure that the 

new major source will not interfere with 

the area’s progress toward attainment. 

(Readers should refer to 40 CFR part 51, 

appendix S for a complete 

understanding of these and other


EP02JN03.000</GPH>
32846 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

68The actual language at 40 CFR 52.24(k) allows 

States to issue permits under appendix S for a 

maximum period of 18 months after designation. 

After this time, if the nonattainment area does not 

have an approved Part D NSR permit program, a 

construction ban would apply. However, in 1990, 

Congress altered the provisions of the construction 

ban such that it would not apply when a State 

lacked an approved part D NSR permit program in 

the future. We believe that Congress’ removal of the 

construction ban from the CAA supersedes the 

regulatory language at 52.24(k) and EPA has 

reinterpreted this language to allow States to issue 

permits under appendix S from designation until 

the SIP is approved even if this exceeds 18 months. 

See 1991 guidance memo, ‘‘New Source Review 

(NSR) Program Transitional Guidance’’, John S. 

Seitz, March 11, 1991. We will be revising the 

language at section 52.24(k) to properly reflect this 

interpretation.

69Note that new sources or modifications which 

are major as a result of NOX emissions, and are thus 

subject to nonattainment NSR for NOX, would also 

be considered major sources of nitrogen dioxide 

(NO2), which is also a criteria pollutant. Since all 

areas are currently in attainment under the NO2

NAAQS, these new NOX sources will also need to 

go through PSD review of NO2.

70Certain nonattainment NSR requirements in 

subpart 2 of part D are specifically spelled out in 

the CAA, and thus cannot be altered under a 

transitional program.

appendix S permitting requirements.) 

However, per section VI of appendix S, 

we have always recognized the need for 

flexibility under certain circumstances, 

which we address in detail below. 

Also, note that EPA does not have a 

Federal permit program in place for 

nonattainment NSR. This creates 

particular difficulties for the Tribes, 

because their programs are not as 

mature as the State programs. Therefore, 

in most locations, EPA, not the Tribes, 

will need to address the implementation 

of appendix S in these areas, until a 

Tribe develops a nonattainment NSR 

program on its own. 

b. What is the legal basis for requiring 

States to issue nonattainment NSR 

permits during the interim period?

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

establishes a general duty on States to 

include a program in their SIP that 

regulates the modification and 

construction of any stationary source as 

necessary to assure that NAAQS are 

achieved. This general duty, often 

referred to as ‘‘minor NSR,’’ exists 

during all periods, including before a 

State has an approved part D NSR 

permit program. 

Although section 110(a)(2)(c) does not 

define specific requirements States must 

follow for issuing major source permits 

during the interim period between 

nonattainment designation and EPA 

approval of a part D nonattainment NSR 

SIP (‘‘interim period’’), EPA’s 

regulations codified at 52.24(k) require 

States to follow EPA’s Emission Offset 

Interpretative rule codified at 40 CFR 

part 51, appendix S (hereinafter referred 

to as appendix S) during this time.68

c. Codification of NOX as an ozone 

precursor. Currently, only VOCs are 

expressly regulated as ozone precursors 

under the PSD regulations. Although 

appendix S specifically states that a 

source is major for ozone if it is major 

for VOCs, we do not believe this 

language is exclusive. The more general 

portion of the ‘‘major stationary source’’

definition states, ‘‘* * * any stationary 

source that emits, or has the potential to 

emit, 100 tons per year or more of any 

pollutant subject to regulation under the 

Act,’’ is considered a major source. 

There is similar general language within 

the definition of ‘‘major modification.’’

The nonattainment provisions of the 

Act, as amended in 1990, recognize NOX

as an ozone precursor; section 182(f) of 

the CAA established nonattainment 

requirements for NOX. In addition, the 

definition of air pollutant under section 

302(g) of the CAA includes, ‘‘* * * any 

precursors to the formation of any air 

pollutant * * *’’ Thus, where NOX is 

considered a precursor to the formation 

of ozone, the State would use appendix 

S to issue a preconstruction permit to a 

new major source of NOX emissions 

during the interim period.69

Notwithstanding the above, in order 

to be completely clear, we are proposing 

to amend both our NSR and PSD 

regulations to expressly include NOX as 

an ozone precursor in major PSD and 

major nonattainment NSR programs. 

Where relevant for both PSD areas and 

transitional NSR areas, States would be 

required to modify their existing 

programs to include NOX as an ozone 

precursor. 

Elsewhere in today’s action, we are 

proposing to include NOX as an ozone 

precursor for RACT requirements under 

subpart 1. Under section 182(f) (in 

subpart 2), a waiver from NOX RACT 

and nonattainment NSR is possible 

under certain circumstances. We are 

proposing that the section 182(f) waiver 

provisions would also apply to areas 

designated nonattainment under either 

subpart 1 or subpart 2. However, the 

waiver provisions do not apply in areas 

where PSD is applicable. 

3. Under What Circumstances Is a 

Transitional Program Needed During the 

Interim Period? 

We request comment on providing 

States flexibility regarding major source 

nonattainment NSR program 

requirements in areas that meet specific 

conditions. We believe that a more 

flexible NSR option is appropriate in 

areas that are expected to reach 8-hour 

ozone attainment early—within 3 years 

after designation—through, for example, 

national or regional programs such as 

the NOX SIP Call and the Tier 2 motor 

vehicle emissions standards. In these 

areas, we believe that States should 

have the flexibility to apply a 

nonattainment NSR program that 

provides some relief from certain 

requirements.

Several factors warrant a flexible 

approach for implementing NSR in 

areas which qualify for the transitional 

program. We expect many areas to attain 

the new 8-hour standard within 3 years 

solely through regional NOX reductions 

under the NOX SIP Call rule and other 

currently applicable Federal programs. 

We intend this option to be available to 

any 8-hour ozone nonattainment areas 

located outside the NOX SIP Call area, 

so long as those nonattainment areas 

can meet the 8-hour ozone NAAQS 

within 3 years after designation. Some 

of these areas may be in nonattainment 

due largely to transport from upwind 

sources; but no allowance is made 

under major NSR for sources in areas 

overwhelmed by transport. As we have 

construed it, this option would also 

encourage the early adoption of 

attainment plans, which we believe will 

lead to emissions reductions and 

resultant health benefits earlier than 

would otherwise occur. We request 

comment on the transitional program 

described in this proposed rulemaking, 

and in particular welcome information 

from States regarding how many new 

major sources or major modifications 

they anticipate would construct in 

transitional areas during the period 

between EPA’s approval of a transitional 

part D nonattainment NSR plan and the 

State reaching attainment of the 8-hour 

NAAQS. 

4. Elements of the Appendix S 

Transitional Program 

a. Which nonattainment areas would 

be eligible for the transitional program?

The appendix S transitional program 

would only be available to 8-hour ozone 

nonattainment areas that are subject to 

NSR under subpart 1, not subpart 2 (see 

discussion of classifications elsewhere 

in this proposal). In addition, in order 

to be eligible for the transitional option, 

by the date EPA publishes the 

nonattainment designations for the 8-

hour standard (currently expected in 

2004) a subpart 1 nonattainment area 

must: (1) Be attaining the 1-hour ozone 

standard; (2) be subject to subpart 1, not 

subpart 2, of part D; 70 (3) have 

submitted an attainment plan that 

demonstrates attainment within 3 years 

after designation; the attainment plan 

would have to include control measures 

under the NOX SIP Call rule where 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32847

71The actual attainment date—as proposed 

elsewhere in this proposal—would be 3 years after 

the nonattainment designation.

72U.S. EPA Office of Air Quality Planning and 

Standards, New Source Review Workshop Manual, 

Prevention of Significant Deterioration and 

Nonattainment Area Permitting, Draft, October 

1990. Available at: http://www.epa.gov/ttn/nsr/gen/

wkshpman.pdf.

applicable; and (4) have submitted an 

attainment plan containing any 

additional local control measures 

needed for attainment of the 8-hour 

standard. These plans must commit the 

State to implement, by December 31, 

2004, all measures necessary to bring 

the nonattainment area into attainment 

by a 2007 attainment date.71 In addition, 

when a State submits its attainment 

plan, it should note that it intends to 

implement a program under appendix S, 

section VI that meets the requirements 

for transitional areas discussed below.

Note that, under this option, the 

attainment plan submission timing (i.e., 

submission by the date of EPA 

designation of nonattainment areas) for 

transitional areas is about 3 years earlier 

than is otherwise required for areas not 

meeting the 8-hour standard. Note also 

that areas would be eligible for this 

transitional NSR provision even though 

we are not establishing a ‘‘transitional’’

nonattainment classification for areas 

covered under subpart 1. We request 

comment on these criteria. 

Also, note that while relief from 

offsets is provided for the NSR 

transitional program (see discussion 

below), those States and Tribes subject 

instead to the main body of appendix S 

will still need to provide offset 

provisions. 

b. What would be the basic 

requirements of a transitional 

nonattainment NSR program under 

appendix S, section VI?

i. Major source applicability 

threshold. Under the general part D NSR 

requirements, the applicability 

threshold for ‘‘major stationary source’’

is defined as 100 tons per year of a 

nonattainment pollutant; in some 

instances under subpart 2 the major 

source threshold can be as low as 10 

tons per year. In contrast, the major 

source threshold under the PSD 

program is either 100 or 250 tons per 

year, depending upon the type of 

stationary source undergoing review. 

We propose that, consistent with the 

subpart 1 part D NSR requirements, an 

appendix S, subpart VI transitional 

nonattainment programs will use a 

major source threshold of 100 tons per 

year for each ozone precursor. 

ii. Emission Control. Another key 

provision of the part D nonattainment 

NSR program is that, in order to be 

permitted, major new and modified 

sources must minimize their emission 

rate by applying control technology to 

achieve LAER, which is generally the 

most stringent emission limit contained 

in a SIP or achieved in practice. 

In contrast to LAER, which does not 

consider costs and other factors, a BACT 

analysis requires consideration of 

energy, environmental, and economic 

impacts in determining the maximum 

degree of reduction achievable for the 

proposed new source or modification. In 

a BACT analysis, as described in the 

New Source Review Workshop 

Manual,72 the most stringent emission 

limit, including the limit representing 

LAER and its associated control 

technology, must be considered. If the 

most stringent limit is rejected as BACT 

for a particular case, that decision must 

be supported by an analysis that shows 

that the most stringent limit should not 

be chosen in light of the costs or other 

relevant factors. For example, if the 

most effective control technology would 

impose unacceptably high costs because 

of site-specific factors, that technology 

could be rejected as BACT for the 

proposed source. In this way, BACT 

may be less stringent than LAER.

We request comment on whether a 

BACT requirement, consistent with the 

BACT approach described in the NSR 

workshop manual, may be required in 

transitional appendix S nonattainment 

NSR programs in lieu of requiring 

LAER. We believe granting this relief is 

appropriate, given the minimal 

difference we would expect between the 

emissions reductions achieved from 

BACT, rather than LAER, for the small 

number of sources that may trigger 

nonattainment NSR in transitional 

areas, for the few years the area is 

nonattainment. 

iii. Relief from source-specific offsets 

requirements. We are proposing that 

major sources and major modifications 

would not be required to obtain caseand source-specific offsets under the 

transitional program. However, despite 

locating in a nonattainment area which 

qualifies for the NSR transitional 

program, a new major source may not 

cause or contribute to the existing 

violation in the nonattainment area. If 

the State determines that the source 

does not contribute to the existing 

violation, then mitigation would not be 

required. 

There are several circumstances under 

which it is reasonable to assume that a 

new major source locating in a 

nonattainment area will not interfere 

with timely attainment of the standard. 

First, if the nonattainment area which 

qualifies for the NSR transitional option 

is participating in the NOX SIP Call (63 

FR 57356; October 27, 1998), we expect 

that a source locating in the area will 

not cause or contribute to the existing 

violation, so long as the new emissions 

are consistent with growth projections. 

This is because it is assumed that where 

new emissions are consistent with 

growth projections, those new emissions 

will not interfere with timely attainment 

of the standard. Under the NOX SIP Call, 

we modeled emissions for 2007. We 

included future growth projections for 

both VOC and NOX emissions, and 

allocated each State a NOX budget 

designed to control interstate NOX

transport. Because these budgets 

include an emission growth factor for 

VOC and NOX, we believe that new 

major sources may locate in those 

nonattainment areas which qualify for 

the NSR transitional option without 

interfering with the area’s ability to 

reach attainment, provided that any new 

emissions are within the projected 

emissions growth factor. We expect 

States to develop appropriate emission 

inventory procedures to assure that any 

new emissions are consistent with 

projected growth in emissions. 

Those nonattainment areas which 

qualify for the NSR transitional program 

that are not projected to attain under the 

NOX SIP Call or are not covered by the 

NOX SIP Call may also allow for an 

increase in new major source emissions 

if their attainment demonstration 

includes an emissions growth factor for 

major new and modified sources and 

demonstrates that, provided emission 

increases from new major sources 

remain below this level, the area will 

reach attainment. Again, we expect 

States to develop appropriate emission 

inventory procedures to demonstrate 

that the new emissions are consistent 

with projected growth in emissions. 

iv. Other requirements. In addition to 

the control technology requirements 

discussed above, and consistent with 

current NSR requirements under 

appendix S, section IV, condition 2, 

sources locating in transitional areas 

will be required to certify statewide 

compliance of all existing major sources 

under the same ownership or control. 

We believe this requirement will not 

impose a substantial burden on permit 

applicants or permitting authorities. 

v. Backstop Provisions. Should a 

nonattainment area under the appendix 

S, section VI transitional program fail to 

meet its SIP obligations to attain the 

NAAQS before the end of the interim 

period, then it will no longer be eligible 

for the transitional program. We request 

comment on the need for a backstop 

provision that requires a State to notify 

32848 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

73The actual attainment date—as proposed 

elsewhere in this proposed rulemaking—would be 

3 years after the effective date of nonattainment 

designation, which we anticipate will occur in the 

spring of 2004.

us, at the time of such failure, that it is 

reverting to the traditional 

nonattainment requirements under 

appendix S. We also request comment 

on any other findings which should end 

eligibility for the transitional program.

5. Will a State Be Required To Assure 

That the Increased Emissions From a 

new Major Source Do Not Cause or 

Contribute to a Violation in a Nearby 

Nonattainment Area Before It Issues a 

Preconstruction Permit Under Appendix 

S? 

At the current time, EPA allows the 

State to presume that a source locating 

outside a designated ozone 

nonattainment area will have no 

significant impact on the designated 

nonattainment area. See section III of 

appendix S. However, given the recent 

advances in the scientific understanding 

of ozone formation, we may revise these 

guidelines in the near future. In the 

meantime, under the PSD rules, States 

may choose to address the impacts of 

sources in attainment areas on nearby 

nonattainment areas in a more proactive 

manner; i.e., through PSD offsets and/or 

tighter emission controls when the 

source is shown to contribute to a 

violation of the NAAQS. 

6. What Happens at the End of the 

Interim Period? 

a. Transitional NSR areas. As noted 

above, this transitional option is only 

intended to apply to certain 

nonattainment areas that expect to 

attain the 8-hour ozone NAAQS within 

3 years after designation. Therefore, we 

expect these areas to be in attainment on 

or before an attainment date in 2007. 

Accordingly, States must submit, by the 

attainment date in 2007, an attainment 

demonstration with a maintenance plan. 

A State may continue implementing 

transitional NSR under appendix S, 

section VI for 6 months following 

submission of its attainment plan, or 

until its attainment plan is approved, 

whichever is earlier. 

b. Traditional NSR areas. If a State 

has never been or is no longer operating 

under a section VI transitional program, 

it must submit a part D nonattainment 

NSR plan within 3 years after 

designation (in 2007). The State may 

continue implementing traditional part 

D nonattainment requirements under 

appendix S until we approve its part D 

plan. 

7. What Is the Legal Basis for Providing 

This Transitional Program? 

As stated earlier, appendix S applies 

during the period after an area is 

designated nonattainment but before a 

part D nonattainment NSR plan is due 

under subparts 1 and 2 of part D. 

Application of appendix S during this 

interim period ensures compliance with 

the section 110(a)(2)(C) ‘‘minor’’ NSR 

program. However, Congress was 

ambiguous regarding what specific 

requirements States must follow for 

issuing major source permits during the 

interim period described above. Thus, 

we have discretion to interpret those 

regulations in a reasonable manner. 

Chevron, U.S.A. v. NRDC, 467 U.S. 837 

(1984). 

The transitional appendix S approach 

is reasonable for several reasons. First, 

it would be available only for those 

areas that are already attaining the 1-

hour standard and that will attain the 8-

hour standard within 3 years after 

designation (before a part D 

nonattainment NSR SIP revision is due) 

through national and regional planning. 

These areas appropriately deserve a 

different approach for implementing the 

section 110(a)(2)(C) requirements than 

areas that are in nonattainment for the 

1-hour standard and thus currently 

implementing NSR, or those areas that 

are not projected to reach attainment of 

the 8-hour in the short term. 

We believe that the transitional 

option, as we have constructed it, would 

result in a level of emissions reductions 

that is substantially similar to the level 

that would be achieved from traditional 

NSR for the small number of sources it 

will affect in the short period during 

which these areas are designated 

nonattainment. Thus, these transitional 

areas would still be implementing a 

program that regulates the modification 

and construction of any stationary 

source ‘‘as necessary’’ to assure that the 

NAAQS are achieved as expeditiously 

as practicable. 

Currently, the language of section VI 

allows all States to exempt a new major 

source from complying with the 

requirement to install LAER and obtain 

offsets if the source will meet all other 

applicable SIP requirements and not 

interfere with the area’s ability to meet 

its attainment date. However, we plan to 

revise section VI to remove this general 

exemption and apply the transitional 

approach. This revision is appropriate 

because we do not believe that areas not 

meeting the transitional approach 

would be able to ensure that they were 

implementing an NSR program ‘‘as 

necessary’’ to ensure the attainment of 

the NAAQS without complying with 

appendix S in general (e.g., sections I–

V). Note that section VI of appendix S 

originally applied only to secondary 

NAAQS, and we revised section VI to 

include primary standards following the 

1977 Amendments. The exemption 

provided by section VI applied to areas 

whose attainment dates were shortly 

after the CAA was re-authorized in 1977 

because these areas had already 

submitted their attainment plans to us, 

and we believed that these areas would 

reach attainment without having to 

impose LAER and offsets on new major 

sources. 

While nonattainment areas that 

qualify for the 8-hour ozone standard 

NSR transitional option are in a similar 

situation, areas not qualifying for the 

transitional approach are not. In order to 

qualify for the NSR transitional option, 

States will have to submit an attainment 

plan by the date of designation for the 

8-hour NAAQS in 2004. These plans 

must commit the State to implement by 

December 31, 2005, all measures 

necessary to bring the nonattainment 

area into attainment and to meet a 2007 

attainment date.73 Similar to the 

nonattainment areas to which section VI 

originally applied, we believe that 

nonattainment areas which qualify for 

the NSR transitional option will be able 

to meet a 2007 attainment date without 

imposing LAER and offsets on new 

major sources.

On its surface, section VI’s existing 

language could be applied in any 

nonattainment area during the interim 

period. For an area that fails to meet the 

transitional option requirements, 

however, we believe that the area would 

not be able to show that it will continue 

to meet the areas attainment date if it 

does not apply LAER or obtain offsets. 

Thus, we are proposing to revise the 

language of section VI to apply only in 

areas qualifying for the transitional NSR 

program. 

8. How Should the NSR Requirements 

Be Implemented for New 8-Hour Ozone 

Areas that Encompass the Old 1-Hour 

Ozone Nonattainment Areas After EPA 

Revokes the 1-Hour Ozone Standard? 

Newly-designated 8-hour ozone areas 

which include areas which have never 

attained the 1-hour standard will have 

two different sets of requirements in 

place until a point in time proposed 

elsewhere in this proposed rulemaking 

under the anti-backsliding provisions. 

(There are two options proposed in the 

anti-backsliding section of this proposal 

for that point in time—until either the 

level of the 1-hour ozone standard is 

achieved or the 8-hour ozone standard 

is attained.) The 1-hour NSR 

requirements and higher offset ratios (if 

applicable) will remain in place in the 

area that was designated nonattainment 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32849

74Brownfields are generally considered to be 

abandoned or underutilized properties (especially 

industrial and commercial facilities) where 

redevelopment or expansion may be complicated by 

possible environmental contamination (real or 

perceived). However, a brownfield site, as defined 

by The Small Business Liability Relief and 

Brownfields Revitalization Act of January 11, 2002, 

is any ‘‘real property, the expansion, 

redevelopment, or reuse of which may be 

complicated by the presence or potential presence 

of a hazardous substance, pollutant, or 

contaminant.’’ Further information is available at: 

http://www.epa.gov/compliance/resources/faqs/

cleanup/brownfields/index.html.

for the 1-hour standard until that point 

in time. The remaining portion of the 

newly-designated 8-hour ozone area 

must comply only with the 8-hour 

ozone NSR requirements and offset 

ratios (if applicable). 

9. NSR Option To Encourage 

Development Patterns That Reduce 

Overall Emissions—Clean Air 

Development Communities 

EPA is considering two options to 

recognize the air quality benefits which 

can accrue when areas site new sources 

and plan development in a manner that 

results in overall reduced emissions. 

EPA would define a community that 

changes its development patterns in 

such a way that air emissions within the 

non-attainment area are demonstrably 

reduced as a ‘‘Clean Air Development 

Community’’ (CADC). We propose that 

areas that qualify as CADCs would 

obtain certain flexibilities in 

implementing CAA programs. We 

request comments on the options listed 

here and encourage commenters to 

suggest other ways under the CAA that 

we could encourage development that 

will result in lower emissions.

In the first option, a CADC would 

have a more flexible NSR program by: 

(1) Being subject to subpart 1 NSR as 

opposed to subpart 2 NSR; (2) lowering 

NSR major source thresholds for these 

areas to make them similar to the 

thresholds for PSD areas; and (3) 

allowing areas that meet certain 

development criteria (development 

zones) to receive NSR offsets from State 

offset pools. In the second option, a 

CADC would be able to receive a pool 

of NSR offset credits equal to the 

reduced emissions from new 

development patterns. Credits from the 

pool could be provided to any new or 

modified source in a ‘‘development 

zone’’ as offsets. 

The first goal of a CADC option is that 

it would give communities a tool to 

achieve air quality benefits that can 

accrue from strategic location of new 

sources. The location of new sources 

(often major job centers) can affect 

regional development patterns and air 

emissions. As a result, new sources have 

a dual impact on air quality. The first 

impact is from their own direct 

emissions and the second impact is 

from the emissions associated with 

other sources whose development is 

influenced by the new source and any 

change in travel patterns (positive or 

negative) that may result. This option 

attempts to recognize the net impact 

that a new source has on a region, not 

just from their own stationary 

emissions, but also from their associated 

stationary, area and mobile source 

emissions influenced by the location of 

the new source. It provides a 

mechanism to recognize the relative 

emissions reductions associated with 

locating major job centers in close 

proximity with transit, commercial/

retail destinations, and workforce 

housing. 

Furthermore, the EPA recognizes that 

brownfields 74 are often prime 

candidates to realize these locational 

benefits. Brownfields, as sites of 

previous economic activity, frequently 

enjoy excellent proximity to a variety of 

destinations and a range of 

transportation infrastructure. Second, 

given their potentially contaminated 

state, manufacturing or other industrial 

uses are often the appropriate type of 

revitalization. The productive re-use of 

these sites is a priority for the Agency. 

This option will provide flexibility 

within CAA programs to achieve the 

dual goals of brownfields revitalization 

and reduced air emissions.

The second goal of a CADC program 

would be that it would allow 

communities to use the air benefits of 

their development practices as an 

incentive for locating new sources and 

their associated economic growth. 

Anthropogenic emissions within a 

region come from three kinds of sources: 

Mobile sources, areas sources, and 

stationary sources. Thus, the ability of a 

region to accommodate new stationary 

sources is dependent not only on 

stationary source emissions but also on 

mobile and area source emissions. 

Localities which choose to engage in 

development that reduces emissions 

from mobile and area sources, with 

either of these options, could have the 

opportunity to turn those reductions 

into incentives for siting new economic 

activity. 

It should be noted that an area that 

decides to become a CADC is, in effect, 

transferring to the stationary source 

sector emission reductions which 

normally would remain in the mobile 

source sector where they could, for 

example, be used for conformity 

determinations. Areas would have to 

think through the implications for them 

of doing this. 

While we have not decided to go 

forward with either of these options at 

this time, we are continuing to examine 

them and, therefore, request comment 

on them. In particular, we request 

comment and suggestions on possible 

legal rationales for supporting these 

options which would enable them to be 

implemented through rulemaking. We 

are also very interested in other 

potential incentives that we could 

provide in addition to or instead of 

those included in this proposal. (We 

encourage commenters to focus on those 

incentives that are within EPA control.) 

In addition, we request comment on 

implementation barriers, as well as the 

analytical complexities in the 

estimation of emission benefits from 

changes to development patterns that 

areas would need to calculate in order 

to become a CADC. Public comments 

will help us determine how and 

whether to include either option in the 

final rulemaking. 

a. What is EPA considering? Option 1:

EPA is considering a package of three 

kinds of flexibility for areas subject to 

subpart 2 whose land use development 

meets certain criteria. First, we would 

allow CADC’s to be covered under the 

NSR program under subpart 1 rather 

than under subpart 2 if: (a) They adopt 

specific land use measures into their 

SIPs that reduced air emissions; and, (b) 

they demonstrate that air quality would 

not decrease as a result of using subpart 

1 instead of subpart 2. This 

demonstration would have to quantify 

the emissions reductions from adopted 

land use measures in their SIPs and 

show that the decreases from the land 

use measures are sufficient to offset any 

potential increase in emissions from 

using subpart 1 instead of subpart 2. 

Second, we would lower the NSR major 

source thresholds for CADC areas to 

make them similar to those under the 

PSD provisions. Third, we would allow 

development zones, areas that meet 

certain development criteria, to receive 

NSR offsets from ‘‘pools’’ or ‘‘banks’’ of 

offsets established by the State. (A pool 

would be created by the State’s taking 

action or requiring others to take actions 

that meet the criteria for NSR offsets. 

The State would then collect these 

offsets and could distribute them to new 

development that would occur in 

specific areas.) We believe that these 

actions would help steer development 

to development zones where fewer 

regional emissions would occur than if 

the development had occurred 

elsewhere. In addition, the change in 

land use patterns may help areas reduce 

their mobile source emissions. EPA 

requests comments on whether an area 

32850 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

75Urbanized area—an area consisting of a central 

place(s) and adjacent urban fringe that together 

have a minimum residential population of at least 

50,000 and generally an overall population density 

of at least, 1,000 people per square mile of land 

area. http://www.census.gov/geo/www.tiger/

glossary.html

should receive all three incentives or 

only one or two of them. 

Option 2: EPA is also considering a 

less ambitious program of incentives 

that focuses on the development zones. 

In this option, the reduced emissions 

from improved development patterns 

are used to create offset pools for use by 

sources in development zones. We 

believe that this would also help steer 

development toward development zones 

providing the same benefits discussed 

above. The main advantage to a CADC 

compared to option 1 is that the offset 

pool could start with considerable offset 

credits and, therefore, the credits would 

not have to be created through 

additional actions. It would also have 

the potential of more carefully targeting 

new development just to the 

development zone instead of anywhere 

in the CADC. 

b. What would a CADC be? A CADC 

would be a ‘‘community’’ that changes 

its development patterns in such a way 

that air emissions within the nonattainment area are demonstrably 

reduced. A CADC does not have to be, 

and in most cases probably would not 

be, an entire metropolitan 

nonattainment area covered by a SIP. A 

portion of a nonattainment area could 

be designated a CADC in those cases 

where the land use changes did not 

result in a sufficient emissions 

reductions to allow the entire 

nonattainment area to qualify. It should 

be noted, however, that if a CADC 

smaller than the entire nonattainment 

area was designated, any analysis of the 

effect of any changes in development 

would have to reflect and consider 

effects on the nonattainment area as a 

whole. 

c. What would a development zone 

be? EPA proposes that areas that meet 

certain criteria would be considered 

‘‘development zones,’’ and new sources 

in these development zones could 

receive offsets from State offset pools. 

The following is a list of possible 

criteria that EPA could use to define 

those zones. EPA’s goal is to help 

identify zones which promote 

environmentally sound development, 

the preservation of regionally-or locallydesignated open space, and sites which 

have adequate, existing infrastructure. 

Areas would, for example, have to be: 

• Located within an 8-hour ozone 

nonattainment area. 

• Located within an ‘‘urbanized area’’

as defined by the U.S. Census Bureau.75

• Zoned for industrial use. 

• Located within 0.25 miles of rail 

freight facilities. 

• Located within 0.5 mile of fixed rail 

or express bus transit service. 

• Designated or qualify for 

designation as a Federal or State 

redevelopment zone. 

• Enrolled in a State brownfield 

remediation plan. 

• Designated industrial corridor. 

• Adopting land use density 

indicators such as population, 

employment, congestion index. 

EPA specifically requests comment on 

these criteria including whether these 

criteria are appropriate, and if not, how 

should they be changed? We also 

request comment regarding whether a 

site must meet all or just some of the 

criteria to qualify.

d. Why is EPA proposing these ideas?

EPA would like to encourage land use 

practices that reduce emissions, and one 

possible way could be through NSR 

program flexibility. EPA recognizes that 

the way land use occurs in an area can 

affect emissions in all sectors, including 

stationary, area and mobile sources. For 

on-road mobile sources, areas can 

already include the emissions impacts 

of their land use choices within their 

SIP, as well as in their transportation 

conformity determinations. EPA would 

like to encourage areas to adopt land use 

practices that result in fewer emissions 

from all sectors by allowing areas to 

apply the benefits from certain land use 

measures to the major stationary source 

sector and creating special NSR 

flexibilities for areas that do so. 

e. If areas receive NSR flexibility for 

adopting land use measures, can the air 

quality benefits of land use measures 

also be applied to other sectors? As part 

of any flexibility, EPA wants to ensure 

that areas do not count the effects of a 

land use activity twice. For example, if 

areas decide that they want to apply the 

emissions benefits that result from 

certain land use decisions toward NSR, 

then they cannot also include the air 

quality benefits of land use choices in 

their motor vehicle emissions budgets in 

the SIP, or in the area’s transportation 

conformity determinations. EPA 

recognizes that this means that areas 

will have to decide for themselves how 

to apply any emissions benefits of land 

use activities, and that consultation 

among all affected parties must occur. 

For many communities, this could be a 

difficult decision that would require the 

input of many stakeholders representing 

both the mobile and stationary source 

sectors as well as the general public. 

One possible way for areas to avoid 

double counting would be for EPA to 

give credit only for new measures that 

are adopted in response to this proposal. 

This approach would ensure that the 

proposal acts as an incentive to 

encourage new actions that will reduce 

emissions. Such an approach could, 

however, be seen as unfairly penalizing 

areas that have already taken positive 

actions. EPA requests comment on how 

best to balance the issues of ensuring 

fair treatment for all areas, preventing 

double counting, and making this 

proposal an effective incentive. 

For example, areas would continue to 

include existing land use measures in 

their SIP motor vehicle emissions 

budgets and in their conformity 

determinations, and apply the 

reductions from newly adopted land use 

measures to demonstrate they qualify 

for the type of flexibilities proposed 

here. Quantifying the on-road mobile 

source air quality impacts of land use 

measures occurs in transportation 

modeling (discussed below). Therefore, 

in a SIP submission that includes land 

use measures adopted to obtain NSR 

flexibility, areas would have to show 

that their motor vehicle emissions 

budgets do not also include the effects 

of the newly adopted land use 

measures. EPA also recognizes that 

there may be other, potentially easier 

ways to avoid double counting and 

encourages commenters to submit them. 

f. How would areas quantify the 

benefits of land use choices? Areas 

would quantify the benefits of land use 

through their air quality modeling 

process in the SIP process. EPA’s 

guidance, ‘‘Improving Air Quality 

Through Land Use Activities’’

(Improving Air Quality Through Land 

Use Activities Report). U.S. 

Environmental Protection Agency, 

Office of Air and Radiation, Office of 

Transportation and Air Quality. 

(EPA420–R–01–001, January 2001). It 

can be found at: http://www.epa.gov/

otaq/transp/trancont/r01001.pdf)

provides information about how land 

use measures are modeled and possibly 

quantified. EPA requests comment on 

other potential methods of quantifying 

the reductions. 

Areas should be aware that 

quantifying the benefits of land use may 

not be an easy task. EPA sees two 

potential difficulties in quantifying the 

benefits of land use for application to 

NSR on which we seek input. First, as 

stated above, it may be very complicated 

for areas to avoid counting the same air 

quality benefits twice. One way areas 

might reduce the risk of such double 

counting is to produce two sets of 

modeling. One would be based on the 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32851

current situation, the other based on the 

proposed land use changes made by the 

community. The difference between 

these ‘‘before and after modeling’’

scenarios would show the emission 

impacts of the land use changes. We 

recognize that this modeling is very 

complex and resource intensive. 

Complexities arise because in many 

areas across the country, on-road mobile 

source emissions are estimated using 

transportation and emissions models. 

The locations where people live and 

work in an area, are important inputs to 

the transportation planning and 

modeling processes. As such, the long 

range transportation plan which covers 

at least 20 years into the future was 

developed to reflect the mobility needs 

for a specific land use scenario. It has 

been long recognized that there is a 

complicated, dynamic and interrelated 

relationship among air quality, 

transportation and land use planning. 

Evaluation may need to be iterative. For 

example, if land use changes are 

proposed to gain air quality benefits, the 

transportation system may need to be reevaluated to insure, that with the new 

land use scenario, the transportation 

system can continue to provide an 

acceptable level of transportation 

service to all members of the 

community. Therefore, it may be 

difficult for areas to precisely quantify 

the emissions related to land use 

choices from this modeling, given the 

dynamic nature between land use and 

transportation. In conducting this sort of 

analysis, States should be working 

closely with MPOs and other 

transportation and planning agencies. 

The second set of difficulties involves 

setting the timeframe before emission 

benefits can be realized. EPA seeks 

comment on the potential difference in 

the time period over which benefits may 

be realized from land use strategies 

compared to the NSR program. Land use 

strategies tend to be long term. Once a 

particular land use strategy is adopted, 

it may take several years before the 

change results in air quality benefits. 

For example, suppose an area decides to 

change its zoning regulations to 

encourage mixed-use development. This 

strategy may ultimately result in lower 

relative emissions because of people 

making fewer vehicle trips because 

housing, employment, and shopping are 

located together compared to 

development patterns that might occur 

without the changes to the zoning 

regulations, and the increase in density 

may generate transportation options 

such as transit service, bicycling, and 

walking. However, it may be several 

years before the zoning regulations 

actually change where people and 

businesses decide to locate. Of course, 

it should be noted that flexibilities 

proposed do not necessarily mean that 

new development will occur right away. 

EPA requests comment on how to take 

this issue of timing into account in our 

proposal to give program flexibility for 

adopting land use measures.

g. How can changes to land 

development affect air quality? As 

metropolitan areas continue to expand 

in both size and population, how and 

where development occurs has 

significant implications for many 

environmental impacts including air 

quality. For example, establishing land 

use strategies to increase population and 

housing densities, and support the 

provision of mixed use development 

can make transit, and bicycle and 

pedestrian facilities more viable options 

to driving. These strategies may 

decrease the amount of motor vehicle 

emissions that would occur compared to 

development patterns if the strategies 

were not established. 

h. What is the connection between 

land use and NSR? A major new source 

has the potential to be a major economic 

development generator for a region that 

may influence development and travel 

patterns. For example, if a large new 

facility were to locate outside of the 

nonattainment area (in many cases this 

means outside of the area with existing 

development, infrastructure and 

density) it may affect regional travel 

patterns. Such a facility that hires 

hundreds of people and is located 

where there are few opportunities to use 

alternative modes of transportation (e.g., 

mass transit or walking to work) may 

result in greater amounts of VMT and 

vehicle trips (‘‘VT’’) per employee than 

a similar facility accessible by mass 

transit. For example, a long-term effect 

of locating a large facility in an 

undeveloped area, particularly one that 

employs a large number of people, 

could be that it ultimately attracts 

additional development. For instance, if 

enough employees are at the site, the 

nearby area may attract other service 

industries (e.g., fast food, drycleaners, 

and gas stations). These developments 

may be low density, auto-dependent, 

and single-use, which may generate 

additional emissions (both area and 

mobile sources). The NSR program does 

not consider or offset these emissions. 

On the other hand, if a hypothetical 

source chooses to locate in an area that 

is already developed, it may generate 

less VMT and therefore fewer emissions 

than one located in an undeveloped 

area. The source may be able to take 

advantage of the existing infrastructure 

and service, without the construction of 

new infrastructure elements (roads, 

sewer lines, etc.) that result in their own 

air emissions and other environmental 

impacts. Such location in existing 

developed areas may not open up new 

areas to development, nor encourage 

sprawl. With this option, EPA is trying 

to recognize the indirect impacts of 

development. If communities use CADC 

techniques, they should, compared to 

communities that do not use such 

practices, offset some of the indirect 

emissions from new sources. The NSR 

program only considers the direct 

impacts from a development. This 

option tries to look more broadly at all 

the impacts of development. We would 

reduce the requirements of NSR and 

would provide increased program 

flexibility in exchange for the reduced 

emissions from CADC practices. 

A strategy that recognizes the 

relationships between stationary, area 

and mobile sources, as well as how 

these impacts affect total environmental 

quality, is one that will most effectively 

deal with today’s environmental 

problems. That is why multiple offices 

in EPA—the Air Office, the Water 

Office, the Policy Office and the 

Brownfields Office—all have programs 

encouraging development patterns that 

reduce environmental impacts. These 

programs use a variety of tools: 

regulations, information, and 

partnerships to encourage such 

development. It would be consistent 

with these other Agency efforts to 

develop a way to use flexibilities in 

CAA programs to encourage CADC 

practices. It would also be supportive of 

the many States and localities that are 

interested in accounting for the air 

quality benefits of their development 

choices. 

i. Are there other environmental 

impacts that result from land use 

choices? Yes, low density development 

patterns tend to disturb more land and 

create more impervious cover over a 

region (e.g., paved roads), harming a 

region’s water quality and disrupting 

habitat. Because of the close interaction 

between development and the 

achievement of national environmental 

goals, EPA has long been engaged in 

addressing their environmental impacts. 

The Office of Water seeks to address the 

impacts of development through its 

watershed programs, non-point source 

programs, source water protection 

efforts, the National Estuary Program, 

and Total Maximum Daily Load 

programs. When EPA reviews projects 

under the National Environmental 

Policy Act, it examines the secondary 

and cumulative impacts of development 

generated by Federal actions. The 

Brownfields Office, recognizing the 

32852 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

necessity of engaging the private sector, 

has sought specifically to encourage 

development on brownfields. 

j. What are some of the land use 

strategies measures included in 

‘‘Improving Air Quality Through Land 

Use Activities’’? The guidance includes 

a number of different activities that may 

generate on-road mobile source 

emissions reductions. A sampling of 

them includes: 

• Grant incentives to build 

concentrated activity centers: 

encouraging pedestrian and transit 

travel by creating high density mixed 

use nodes that can be easily linked by 

a transit network. 

• Change zoning regulations to allow 

or encourage mixed-use development; 

this encourages pedestrian travel by 

putting compatible land uses next to 

each other. 

• Build, or require developers to 

install, pedestrian and bicycle facilities; 

and increase the number of sidewalks, 

paths, crosswalks, bike lanes, etc., to 

make walking and bike use safe.

• Transfer unused development 

capacity in outlying areas to increase 

density above existing limits in central 

areas and near transit nodes; this moves 

development away from outlying areas 

and toward already developed areas. 

• Provide incentives such as reduced 

parking requirements to new in-fill 

development; this takes advantage of 

existing infrastructure and discourages 

driving. 

EPA were to go forward with this 

concept the Guidance would be 

formally incorporated by reference. 

k. Does the CAA include the concept 

of increased flexibility in the NSR 

program in cases where development is 

targeted in appropriate areas? Yes, 

Section 173(a)(1)(B) replaces the 

traditional requirement that a new or 

modified stationary source in a 

nonattainment area obtain offsets with a 

growth allowance concept in specially 

designated zones to which ‘‘economic 

development should be targeted.’’ EPA 

recognizes, however, that this proposal 

differs in many respects from section 

173. 

l. Does this option mandate any 

changes to local land use decisions? No. 

The CAA, in Section 131, clearly 

supports the position that land use 

decisions are local. This option would 

simply recognize that areas that choose 

to develop in certain patterns are doing 

more to improve air quality and that 

such efforts should be rewarded. 

m. How would this option be 

enforced? Since the CADC measures 

would be in the SIP, they could not be 

changed without EPA approval of a SIP 

revision. If measures are changed they 

must be replaced with other measures of 

equal or greater effectiveness, and 

otherwise meet the requirements of 

section 110(l) concerning antibacksliding. Failure to do so would 

mean that either of these options would 

no longer apply to the area. EPA 

understands that it does not have the 

authority to control local land use 

decisions. The choice always rests with 

the community, however, it doesn’t get 

the advantages of being a CADC unless 

it puts the measures in its SIP. Should 

it decide to change a land use measure 

in the SIP, the issue for EPA would be 

whether or not other new measures 

yield sufficient reductions to allow the 

area to remain a CADC. The land use 

measure itself would be approved. EPA 

requests comments on how best to 

enforce these options. 

n. What are the relative advantages of 

the two options? The first option 

provides greater incentive for 

communities and is, therefore, more 

likely to encourage changes to land 

development policies. The second 

option is simpler since it does not make 

changes to NSR. As a result, unlike 

option 1, it does not require 

communities to estimate the increased 

emissions that could result from 

changing NSR applicability—which 

admittedly would be difficult. 

o. What are the disadvantages of this 

proposal? In addition to the modeling 

issues discussed above in section f, 

there are several other issues associated 

with providing flexibilities, such as 

reducing NSR requirements, for areas 

that adopt CADC land use measures. It 

may be difficult to ensure that the CADC 

land use measures are implemented by 

areas participating in the option. It may 

also be difficult to design penalty 

measures if those land use measures are 

not implemented by areas. In addition, 

if the CADC should fail to achieve its 

envisioned land use pattern, how would 

the MPO model the area for purposes of 

conformity. By encouraging growth in 

established areas, this option may raise 

environmental justice concerns and 

unanticipated costs for low-income 

residents. Some States may have 

difficulties managing and tracking offset 

pools. EPA requests comment on all of 

these issues and how we can best 

resolve them. 

10. Tribal Concerns 

In addition, we expect that some 

Tribal areas will be designated as 

nonattainment because of pollution that 

is transported from the surrounding 

State(s) and will have little control over 

the ability of areas under their 

jurisdiction to attain the air quality 

standards. In the event that such an area 

fails to attain by the attainment date, 

additional flexibility for the Tribes will 

be needed to address the fairness issues 

created by transported nonattainment 

problems. Tribes have asked that we 

consider providing offset set-asides in 

order to address these issues. We 

request comment on whether emission 

offset set-asides, possibly generated by 

innovative measures to promote 

additional emissions reductions, are an 

appropriate method to help level the 

playing field for the Tribes in order to 

support economic development in 

Tribal areas. In any case, we believe that 

some provisions will need to be made 

for Tribal areas, because they will have 

limited ability, if any, to generate offsets 

on their own. We may also need to work 

with States to help provide the Tribes 

access to offsets from non-Tribal areas. 

Also, it is important to recognize that 

the NOX SIP Call does not provide for 

an emissions budget for Tribes. 

Therefore, we are asking for comments 

on how to provide a set-aside to provide 

fair access to development in these 

areas. 

P. How Will EPA Ensure That the 8-

Hour Ozone Standard Will Be 

Implemented in a Way Which Allows an 

Optimal Mix of Controls for Ozone, 

PM2.5 and Regional Haze? 

1. Could an Area’s 8-Hour Ozone 

Strategy Affect Its PM2.5 and/or Regional 

Haze Strategy? 

Many of the areas that are violating 

either the 8-hour ozone or PM2.5

NAAQS, may be violating both of these 

NAAQS. Thus, in many cases, States 

will have ozone and PM2.5

nonattainment areas with overlapping 

boundaries. Requirements for regional 

haze apply to all areas. Each State is 

responsible for developing SIP revisions 

to meet all the requirements relevant to 

each nonattainment area for each 

pollutant as well as developing a 

regional haze plan. In some cases, ozone 

control measures may also be useful for 

a PM2.5 control strategy or a regional 

haze plan. Similarly, controls for PM2.5

may lead to reductions in ozone or 

regional haze. For example, considered 

in isolation, a metropolitan area’s ozone 

strategy might be based on additional 

VOC emissions reductions; if the area 

needs NOX reductions for PM2.5

attainment, however, an optimal 

approach might include a more complex 

ozone strategy using both NOX and VOC 

reductions. We believe integration of 

ozone and PM2.5 attainment planning 

will reduce overall costs of meeting 

multiple air quality goals. 

Many of the factors affecting 

concentrations of ozone also affect 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32853

concentrations of PM2.5. Emissions of 

NOX and/or VOC will lead to formation 

of organic particles and the precursors 

of particulate nitrate, as well as ozone. 

The presence of ozone is an important 

factor affecting PM2.5 formation; as 

ozone builds up, so do OH radicals 

which are instrumental in oxidizing gas 

phase SO2 to sulfuric acid. The sulfuric 

acid may be converted to sulfate 

particles, increasing the PM2.5

concentration. Further, the local ozone 

concentrations may be decreased by the 

reaction of ozone with nitric oxide; 

thus, in some large urban areas, a 

decrease in local NOX emissions can 

result in higher local ozone 

concentrations, leading to higher OH 

radical concentrations and increases in 

secondary PM2.5. Because the precursors 

for ozone and PM2.5 may be transported 

hundreds of kilometers, regional scale 

impacts may also need to be considered.

2. What Guidance Has EPA Provided 

Regarding Ozone, PM2.5 and Regional 

Haze Interaction? 

As described in an earlier section of 

today’s proposed rulemaking, States 

must develop ozone attainment 

demonstrations for many nonattainment 

areas. General criteria for attainment 

demonstrations are contained in 40 CFR 

part 51, appendix W (i.e., ‘‘EPA’s 

Guideline on Air Quality Models’’). 

EPA’s May 1999 draft ‘‘Guidance on the 

Use of Models and Other Analyses in 

Attainment Demonstrations for the 8-

Hour Ozone NAAQS’’ provides a set of 

general requirements that an air quality 

model should meet to qualify for use in 

an attainment demonstration for the 8-

hour ozone NAAQS. The draft guidance 

encourages States to integrate ozone 

control strategies with strategies 

designed later to attain the NAAQS for 

PM2.5 and to meet reasonable progress 

goals for regional haze. In addition, the 

draft guidance presents some modeling/

analysis principles to help States 

develop data bases and capabilities for 

considering joint effects of control 

strategies for ozone, PM2.5 and regional 

haze. Because emissions and 

meteorological conditions vary 

seasonally, the guidance recommends 

assessing the effects of an ozone control 

strategy on annual PM2.5 concentrations 

by estimating effects on mean PM2.5 for 

each season and using the resulting 

information to estimate annual impacts. 

Emission estimates for VOC, NOX, 

primary PM2.5 , sulfur dioxide and 

ammonia will be needed. In addition, 

the modeling should separately estimate 

the effects of the ozone strategy on the 

major components of PM2.5 : mass 

associated with sulfates, nitrates, 

organic carbon, elemental carbon, and 

all other species. We believe that this 

approach is adequate to ensure that the 

8-hour ozone standard will be 

implemented by States in a way that 

allows an optimal mix of controls for 

ozone, PM2.5, and regional haze. 

Similarly, EPA’s attainment 

demonstration guidance for PM2.5 and 

regional haze states that models 

intended to address secondary PM 

problems should also be capable of 

simulating ozone formation and 

transport (January 2, 2001, ‘‘Guidance 

for Demonstrating Attainment of Air 

Quality Goals for PM2.5 and Regional 

Haze’’). The formation and transport of 

secondary PM are closely related to 

processes that are important in the 

formation and transport of ozone. Thus, 

it makes sense for programs designed to 

control ozone to be cognizant of 

programs to reduce PM2.5 and improve 

visibility and vice versa. The PM2.5

guidance suggests conducting a ‘‘midcourse review’’ of an approved PM2.5

plan to review changes in air quality 

resulting from implementation of plans 

to reduce PM2.5, regional haze, and 

ozone. (EPA guidance on mid-course 

review of attainment demonstrations is 

described earlier in today’s proposed 

rulemaking.) 

We realize that in some cases 

development of control plans will be 

complicated by the need to assess the 

impact of the precursors of ozone, PM2.5, 

and regional haze. The question arises 

whether such areas may be provided 

more time to perform the more 

complicated analyses such that an 

effective multi-pollutant strategy may be 

developed. However, the statute 

provides no express relief for these 

situations. Thus, the State is still 

responsible for developing and 

submitting demonstrations which show 

that each standard will be attained by 

the applicable date or dates provided. 

3. What Is EPA Proposing? 

Today, we propose to continue the 

policy of encouraging each State with an 

ozone nonattainment area which 

overlaps or is nearby a PM2.5

nonattainment area to take all 

reasonable steps to coordinate the 

required revisions for these 

nonattainment areas and meet 

reasonable progress goals for regional 

haze. Specifically, we encourage States 

conducting modeling analyses for ozone 

to separately estimate effects of a 

strategy on the following: mass 

associated with sulfates, nitrates, 

organic carbon, elemental carbon, and 

all other species. 

Q. What Emission Inventory 

Requirements Should Apply Under the 

8-Hour Ozone NAAQS? 

The Consolidated Emissions 

Reporting Rule (CERR) (67 FR 39602, 

June 10, 2002) has established basic 

emission inventory requirements. 

Specific SIP-related inventory issues 

will be detailed in a guidance 

document. An important difference 

between inventories submitted in 

response to the CERR and SIP 

inventories is the issue of approvability. 

While it is likely that an inventory 

submitted under the CERR would be 

identical to the inventory submitted as 

part of a SIP, the SIP inventory will 

need to go through public hearing and 

formal approval by EPA as a SIP 

element. This public process can be 

combined with the public process the 

State undertakes for other SIP elements. 

The following discussion presents more 

details on the emission inventory. 

Emission inventories are critical for 

the efforts of State, local, and Federal 

agencies to attain and maintain the 

NAAQS that EPA has established for 

criteria pollutants including ozone. 

Pursuant to its authority under section 

110 of title I of the CAA, EPA has long 

required States to submit emission 

inventories containing information 

regarding the emissions of criteria 

pollutants and their precursors. EPA 

codified these requirements in 40 CFR 

part 51, subpart Q in 1979 and amended 

them in 1987.

The 1990 CAA Amendments revised 

many of the provisions of the CAA 

related to attainment of the NAAQS and 

the protection of visibility in mandatory 

Class I Federal areas (certain national 

parks and wilderness areas). These 

revisions established new periodic 

emission inventory requirements 

applicable to certain areas that were 

designated nonattainment for certain 

pollutants. In the case of ozone, section 

182(a)(3)(A) required that States submit 

an emission inventory every 3 years for 

nonattainment areas beginning in 1995 

for calendar year 1993. The inventory 

must include emissions of VOC, NOX, 

and carbon monoxide (CO) for point, 

area, mobile (on-road and non-road), 

and biogenic sources. 

In 1998, EPA promulgated the NOX

SIP Call (§ 51.121) which calls on the 

affected States and the District of 

Columbia to submit SIP revisions 

providing for NOX reductions in order 

to reduce the amount of ozone and 

ozone precursors transported across 

State borders. As part of that rule, EPA 

established emissions reporting 

32854 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

76Although the United States Court of Appeals 

has remanded certain limited issues regarding the 

NOX SIP Call to the Agency, those issues do not 

include the reporting requirements. See Michigan v. 

EPA, 213 F. 3d 663 D.C. Cir. 2000) and Appalachian 

Power Co. v. EPA, 251 F. 3d 1026 (D.C. Cir. 2001).

requirements for States subject to the 

SIP Call.76

In 2002, EPA promulgated the CERR. 

(67 FR 39602, June 10, 2002). The CERR 

consolidates the various emissions 

reporting requirements that already 

exist into one place in the CFR, 

establishes new reporting requirements 

for PM2.5 and its precursors and 

establishes new requirements for the 

statewide reporting of area source and 

mobile source emissions. 

The CERR establishes two types of 

required emission inventories: 

• Annual inventories, and 

• 3-year cycle inventories. 

We anticipate that States will use data 

obtained through their current annual 

source reporting requirements (annual 

inventories) to report emissions from 

larger point sources annually. States 

will need to get data from smaller point 

sources every 3rd year. States may also 

take advantage of data from emission 

statements that are available to States 

but not reported to EPA. New 

nonattainment areas for the 8-hour 

standard that are classified under 

subpart 2 will need to establish an 

emission statement program as specified 

under section 182(a)(3)(B). We 

published guidance on emission 

statements in July 1992 titled, 

‘‘Guidance on the Implementation of an 

Emission Statement Program.’’ As 

appropriate, States may use the 

emission statement data to meet their 

reporting requirements for point 

sources. We are interested in States’

comments on their experience with the 

emission statement program and how 

the implementation of the emission 

statement program can be improved. 

States are also required to inventory 

area and mobile source emissions on a 

statewide basis for the 3-year cycle 

inventory. Mobile source emissions 

should be estimated by using the latest 

emissions models and planning 

assumptions available. The latest 

approved version of the MOBILE model 

(MOBILE6 at the time of this proposed 

rulemaking, see 67 FR 4254, January 29, 

2002) should be used to estimate 

emissions from on-road transportation 

sources, in combination with the latest 

available estimates of VMT. EPA has 

issued a guidance memo titled ‘‘Policy 

Guidance on the Use of MOBILE6 for 

SIP Development and Transportation 

Conformity’’ dated January 18, 2002, 

that provides additional information on 

the use of the MOBILE6 model. The 

NONROAD model is currently available 

in draft form and can be used for initial 

estimates of off-road mobile source 

emissions. We expect that the final 

version of the NONROAD model will be 

released in late 2004, which will not be 

in time for States to use it for their 2002 

emission inventories, which are due 

June 1, 2004. However, by the time 

EPA’s rulemaking on implementation of 

the 8-hour ozone standard is final and 

States need to begin preparing SIPs, a 

new draft version of NONROAD will 

have been released in connection with 

a planned proposal in early 2003 

regarding regulation of certain non-road 

engine categories. When the NONROAD 

model is final, States may choose to 

update their 2002 emission inventories 

using the final NONROAD model. By 

merging the information on point 

sources, area sources and mobile 

sources into a comprehensive emission 

inventory, State and local agencies may 

do the following: 

• Set a baseline for SIP development, 

• Measure their progress in reducing 

emissions, 

• Have a tool they can use to support 

future trading programs, 

• Answer public requests for 

information. 

Most importantly, States need these 

inventories to help nonattainment areas 

develop and meet SIP requirements to 

reach the NAAQS. 

In April 1999, we published 

‘‘Emissions Inventory Guidance for 

Implementation of Ozone and 

Particulate Matter National Ambient Air 

Quality Standards (NAAQS) and 

Regional Haze Regulations,’’ EPA–454/

R–99–006. We will be updating this 

guidance and are soliciting comment on 

several key points to be addressed in the 

revised document. These points are: 

• Section 182(a)(1) requires that 

marginal and above ozone 

nonattainment areas submit an emission 

inventory 2 years after designation as 

nonattainment in 1990. For 

nonattainment areas classified under 

subpart 2 for the 8-hour ozone standard, 

we propose to interpret this to mean 

that an emission inventory would be 

required 2 years after designation (i.e., 

in 2006 if EPA designates areas in 2004). 

The CERR requires comprehensive 

triennial emission inventories, 

beginning with the 2002 inventory year, 

regardless of an area’s attainment status. 

Because these emission inventories will 

be available, we propose that the 

emission inventories required by the 

CERR are sufficient to meet the 

provisions of section 182(a)(1). 

• In the past, there have been 

instances where portions of Tribal areas 

have been included in designated 

nonattainment areas, but when the 

baseline emission inventory was 

prepared, emissions from the Tribal 

lands were not included. This has had 

the effect of preventing the Tribes from 

generating emission reductions from 

existing sources to develop emission 

offsets, as well as impairing the ability 

of the State to model as accurately as 

possible. We are encouraging the States 

and Tribes to work together to ensure 

that the information used in developing 

the baseline emission inventory is 

inclusive of all emissions from the 

nonattainment area.

• The emission inventory is used as 

a tracking metric by some programs 

such as emission trading, NSR offsets 

trading and RFP. This requires that a 

year is designated as a ‘‘baseline’’ year 

and used as the reference for the 

particular program. 

An external review draft of the 

emission inventory guidance titled 

‘‘Emission Inventory Guidance for 

Implementation of Ozone and 

Particulate Matter National Ambient Air 

Quality Standards (NAAQS) and 

Regional Haze Regulations’’ is available 

at: http://www.epa.gov/ttn/chief/

eiinformation.html. Comments on this 

document are due at the same time as 

comments on this proposed rulemaking. 

However, the review of the emission 

inventory guidance is not part of this 

proposed rulemaking. Comments 

submitted on the emission inventory 

guidance should be identified as such 

and will not be docketed nor will a 

comment/response summary of these 

comments be a part of the final 8-hour 

ozone implementation rule. Instructions 

on how to submit comments are 

included with the draft guidance 

document. 

R. What Guidance Should Be Provided 

That Is Specific to Tribes? 

This section summarizes guidance for 

Tribes offered in various parts of this 

proposal. The TAR (40 CFR part 49), 

which implements section 301(d) of the 

CAA, gives Tribes the option of 

developing TIPs. Unlike States, Tribes 

are not required to develop 

implementation plans. Specifically, the 

TAR, adopted in 1998, provides for the 

Tribes to be treated in the same manner 

as a State in implementing sections of 

the CAA. EPA determined in the TAR 

that it was inappropriate to treat Tribes 

in a manner similar to a State with 

regard to specific plan submittal and 

implementation deadlines for NAAQSrelated requirements, including, but not 

limited to, such deadlines in CAA 

sections 110(a)(1), 172(a)(2), 182, 187, 

and 191. See 40 CFR 49.4(a). If a Tribe 

elects to do a TIP, we will work with the 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32855

Tribe to develop an appropriate 

schedule which meets the needs of each 

Tribe, and which does not interfere with 

the attainment of the NAAQS in other 

jurisdictions. The Tribe developing a 

TIP can work with the EPA Regional 

Office on the appropriateness of 

applying RFP and other SIP 

requirements that may or may not be 

appropriate for the Tribe’s situation. 

The TAR indicates that EPA is 

ultimately responsible for implementing 

CAA programs in Indian country, as 

necessary and appropriate, if Tribes 

choose not to implement those 

provisions. For example, an unhealthy 

air quality situation in Indian country 

may require EPA to develop a FIP to 

reduce emissions from sources on the 

reservation. In such a situation, EPA, in 

consultation with the Tribe and in 

consideration of their needs, would 

work to ensure that the NAAQS are met 

as expeditiously as practicable. 

Likewise, if we determine that sources 

in Indian country could interfere with a 

larger nonattainment area meeting the 

NAAQS by its attainment date, we 

would develop a FIP for those sources 

in consultation with the Tribe, as 

necessary and appropriate. 

The TAR also provides flexibility for 

the Tribe in the preparation of a TIP to 

address the NAAQS. If a Tribe elects to 

develop a TIP, the TAR offers flexibility 

to Tribes to identify and implement—on 

a Tribe-by-Tribe, case-by-case basis—

only those CAA programs or program 

elements needed to address their 

specific air quality problems. In its 

proposed Tribal rule, we described this 

flexible implementation approach as the 

‘‘modular approach.’’ Each Tribe may 

evaluate the particular activities, 

including potential sources of air 

pollution within the exterior boundaries 

of its reservation (or within nonreservation areas for which it has 

demonstrated jurisdiction), which cause 

or contribute to its air pollution 

problem. A Tribe may adopt measures 

for controlling only those sources or 

ozone precursor emissions, as long as 

the elements of the TIP are ‘‘reasonably 

severable’’ from the package of elements 

that can be included in a whole TIP. A 

TIP must include regulations designed 

to solve specific air quality problems for 

which the Tribe is seeking EPA 

approval, as well as a demonstration 

that the Tribal air agency has the 

authority from the Tribal government to 

develop and run their program, the 

capability to enforce their rules, as well 

as the resources to implement the 

program they adopt. In addition, the 

Tribe must receive an ‘‘eligibility 

determination’’ from EPA to be treated 

in the same manner as a State and to 

receive authorization from EPA to run a 

CAA program. 

We would review and approve, where 

appropriate, these partial TIPs as one 

step of an overall air quality plan to 

attain the NAAQS. A Tribe may step in 

later to add other elements to the plan, 

or EPA may step in to fill air quality 

gaps as necessary and appropriate. In 

approving a TIP, we would evaluate 

whether the plan interferes with the 

overall air quality plan for an area when 

Tribal lands are part of a multijurisdictional area. 

Because many of the nonattainment 

areas will include many jurisdictions, 

and in some cases both Tribal and State 

jurisdictions, it is important for the 

Tribes and the States to work together 

to coordinate their planning efforts. 

States need to incorporate Tribal 

emissions in their base emission 

inventories if Indian country is part of 

an attainment or nonattainment area. 

Tribes and States need to coordinate 

their planning activities as appropriate 

to ensure that neither is adversely 

affecting attainment of the NAAQS in 

the area as a whole.

S. What Are the Requirements for OTRs 

Under the 8-Hour Ozone Standard? 

Section 176A of subpart 1 provides 

the authority to establish interstate 

transport regions where transport of air 

pollutants from one or more States 

contributes significantly to a violation of 

a NAAQS in one or more other States. 

When a transport region is established, 

section 176A requires that a transport 

commission, comprised of 

representatives from the States in the 

transport region, also be established. 

The role of the transport commission is 

to assess the degree of interstate 

transport of the pollutant and precursors 

throughout the transport region and to 

evaluate strategies for mitigating the 

interstate pollution. 

Section 184 of subpart 2 establishes 

additional provisions for OTRs. Section 

184(a) specifically established an OTR 

comprising 12 Northeast and MidAtlantic States and the District of 

Columbia in order to address the 

longstanding problem of interstate 

ozone pollution in that region. The 

general provisions of section 176A 

apply to any OTR established under 

section 184. To date, the existing OTR 

is the only transport region for any 

pollutant that has been established and 

is subject to the section 176A 

requirements. 

Section 184(b) of subpart 2 sets forth 

specific VOC and NOX control 

requirements to be applied throughout 

the entire OTR, in both attainment and 

nonattainment areas, to reduce 

interstate pollution. These additional 

regional control requirements are part D 

NSR (for VOC and NOX), RACT (for 

VOC and NOX), enhanced vehicle I/M, 

and Stage II vapor recovery (for vehicle 

refueling) or a comparable measure. 

Some of these requirements duplicate 

requirements for ozone nonattainment 

areas that are classified under subpart 2. 

We believe the clearest legal 

interpretation of section 184 is that the 

current OTR and section 184 control 

requirements apply for purposes of the 

8-hour standard. We believe that this 

interpretation would not result in any 

new control requirements for any area 

in the OTR because these control 

requirements are not associated with an 

area’s designation or classification and 

already apply regionwide under the 1-

hour ozone standard. Rather, these 

statutory obligations would remain in 

place for areas in the existing OTR. If a 

new OTR is established for purposes of 

the 8-hour standard pursuant to section 

176A, that area would also be subject to 

the provisions and additional control 

requirements of section 184. 

Because all areas in the existing OTR, 

including attainment areas, are subject 

to part D NSR for NOX and VOC and a 

number of other control measures, areas 

in the OTR would not be able to take 

full advantage of either the transitional 

option proposed for NSR or the 

Agency’s existing approach for early 

reductions, both of which are discussed 

elsewhere in this proposed rulemaking. 

T. Are There Any Additional 

Requirements Related to Enforcement 

and Compliance? 

Section 172(c)(6) requires 

nonattainment SIPs to ‘‘include 

enforceable emission limitations, and 

such other control measures, means or 

techniques * * * as well as schedules 

and timetables for compliance, as may 

be necessary or appropriate to provide 

for attainment * * *’’ The current 

guidance, ‘‘Guidance on Preparing 

Enforceable Regulations and 

Compliance Programs for the 15 Percent 

Rate-of-Progress Plans (EPA–452/R–93–

005, June 1993)’’ is relevant to rules 

adopted for SIPs under the 8-hour ozone 

NAAQS and should be consulted for 

purposes of developing appropriate 

nonattainment plan provisions under 

section 172(c)(6). This document 

provides States with guidance on how 

to prepare enforceable stationary and 

mobile source regulations for their ROP 

plans. Developing clear, concise, 

enforceable rules and establishing 

strong compliance programs helps to 

ensure that the emissions reductions 

projected for specific control strategies 

are actually achieved. The document 

32856 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

77A description of the NCore can be found at the 

following Web site: http://www.epa.gov/ttnamtil/

files/ambient/monitorstrat/sec4.pdf.

78A description of the NCore level 2 stations can 

be found at the following Web site: http://

www.epa.gov/ttnamtil/files/ambient/monitorstrat/

sec4.pfd.

79Since we anticipae that areas will be designated 

and classified on the same date, we will use the 

term ‘‘designation’’ to represent the date of 

designation and classification.

identifies the minimum criteria and the 

information sources that we will use to 

evaluate the enforceability of 

regulations, and to determine 

compliance with Federal guidelines and 

regulations. States should follow the 

guidelines provided in this document as 

part of their quality assurance process 

involved in the development of control 

measures for their ROP plans and their 

attainment demonstrations. 

U. What Requirements Should Apply to 

Emergency Episodes? 

Currently, subpart H of 40 CFR part 

51 specifies requirements for SIPs to 

address emergency air pollution 

episodes and for preventing air 

pollutant levels from reaching levels 

determined to cause significant harm to 

the health of persons. We anticipate 

proposing a separate rulemaking in the 

future to update portions of that rule. 

This separate rulemaking may be done 

in conjunction with revisions to the 

emergency episode rules that will 

address the PM2.5 NAAQS. 

V. What Ambient Monitoring 

Requirements Will Apply Under the 8-

Hour Ozone NAAQS? 

Ozone monitoring data play an 

important role in designations, control 

strategy development, and related 

implementation activities. The ambient 

monitoring requirements are listed in 40 

CFR part 58. 

We plan to modify these existing 

ozone monitoring requirements as part 

of the National Air Monitoring Strategy. 

These changes are being undertaken in 

a separate rulemaking effort. We plan to 

propose a national strategy introducing 

NCore (national core monitoring sites) 

as a replacement for traditional national 

air monitoring stations/State and local 

air monitoring stations (NAMS/SLAMS) 

monitoring currently codified at 40 CFR 

part 58. 

Part of the NCore network 77 would 

include the existing ozone monitoring 

sites that currently support the NAAQSrelated activities. The number and 

location of the original sites would 

likely be very similar to the current 

network. The regulatory modifications 

are expected to include ozone 

monitoring requirements based upon 

the population of an area and its 

historical/forecasted ozone air quality 

values.

In addition, we anticipate that we will 

include a requirement for measuring 

multiple air pollutants at select 

locations. The NCore sites are expected 

to include high-sensitivity nitrogen 

oxide (NO) and total reactive oxides of 

nitrogen (NOy) measurements at 

locations across the nation to support 

the tracking of national emission 

strategy efforts such as the NOX SIP Call 

and, if created, a statute codifying the 

Clear Skies Bill, which addresses NOX

reductions across the nation.

Each State, local, and Tribal air 

monitoring agency is being asked to 

assess the adequacy of its air pollution 

monitoring networks, including those 

sites that measure ozone. We will work 

with these agencies to develop network 

plans to ensure approval of all network 

designs. On a local basis, there will be 

some relocation, addition and removal 

of ozone sites as a result of regional 

network assessments. 

The CAA requires that ozone 

precursor monitoring be conducted in 

any ozone nonattainment area classified 

as serious, severe, or extreme. We 

adopted regulations reflecting the 

statutory requirements in 40 CFR part 

58 in 1994 as the Photochemical 

Assessment Monitoring Stations 

(PAMS) program. Areas that would be 

designated under the 8-hour ozone 

NAAQS are not directly addressed in 40 

CFR part 58 for ozone precursor 

monitoring. 

The PAMS monitoring will be 

retained in areas currently designated as 

1-hour ozone serious, severe, and 

extreme nonattainment areas. The 

monitoring strategy regulation revisions 

will consider the possibility of reducing 

some of the sampling schedules. We 

also intend to promote the use of 

individually designed PAMS networks 

to address the very specific ozone and 

ozone precursor data needs in PAMS 

areas. 

The revised regulation will also cover 

all areas that are classified as serious or 

above for the 8-hour NAAQS. Once an 

area is bumped up to serious or above, 

it would be subject to the enhanced 

monitoring rule and would be required 

to develop appropriate PAMS plans. 

Where practical, PAMS stations should 

be incorporated into multi-pollutant 

NCORE level 2 sites 78 that include NOy, 

meteorological and CO (a good indicator 

of mobile emission measurements.) 

Alternative plans are recommended for 

8-hour bump-up areas. This will be 

reflected in the 40 CFR part 58 changes 

as well.

W. When Will EPA Require 8-Hour 

Attainment Demonstration SIP 

Submissions? 

1. Background 

The time for submission of attainment 

demonstration SIPs is linked to whether 

the requirements are specified under 

subpart 1 or subpart 2. In general, all 

areas designated nonattainment are 

subject to the planning requirements of 

subpart 1. However, if the area is subject 

to a more specific requirement under 

subpart 2, the subpart 2 planning 

obligation controls. As proposed 

elsewhere in the discussion concerning 

classification options, some, if not all, 8-

hour ozone standard nonattainment 

areas will be subject to the subpart 2 

planning obligations. 

Section 172(b) (in subpart 1) provides 

that at the time EPA promulgates the 

designation of an area as nonattainment 

with respect to a NAAQS under section 

107(d), the Administrator shall establish 

a schedule for submission of a plan that 

meets the CAA’s requirements for 

nonattainment areas. This schedule may 

not extend beyond 3 years after the date 

of nonattainment designation. 

Under subpart 2 of the CAA, 

attainment demonstration SIP 

submission deadlines for areas 

designated nonattainment for the 1-hour 

ozone standard are linked to the date of 

enactment of the CAA Amendments, 

i.e., from November 15, 1990. This date 

is also the date by which most of these 

areas were designated and classified by 

operation of law. See CAA section 

107(d)(1)(C) and 181(a). Moreover, in 

subpart 1, Congress linked the time for 

SIP submission to the time of 

designations. See CAA section 172(b). 

Because such dates have long since 

passed, we believe that it is reasonable 

to tie the SIP submittal dates to the date 

of nonattainment designations and 

classifications for the 8-hour 

standard. 79 While the submission date 

for all SIP requirements in subpart 2 

will be tied to the date of nonattainment 

designations, this section of the 

proposed rule discusses the requirement 

to submit an attainment demonstration. 

For purposes of the discussion here, we 

are assuming that designations will 

occur in 2004.

Subpart 2 requires attainment 

demonstration submissions at different 

times depending on an area’s 

classification. Section 182(a) does not 

require an attainment demonstration for 

marginal areas. Section 182(b)(A)(1) 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32857

requires moderate areas to submit an 

attainment demonstration no later than 

3 years after the date of enactment. 

Section 183(c)(2) requires serious (and 

higher classified) areas to submit an 

attainment demonstration no later than 

4 years after date of enactment. As 

provided above, we propose to interpret 

these times to run from the date of an 

area’s nonattainment designation. 

Despite the fact that the CAA’s 

provisions for the timing of submission 

of attainment demonstration SIPs for 

subpart 1 areas differs from that of 

subpart 2 areas, we do not believe it is 

appropriate or desirable to require 

States to submit attainment 

demonstrations for areas designated 

nonattainment under the 8-hour 

standard at greatly different times. We 

recognize that photochemical grid 

modeling—required by the CAA for 

interstate moderate nonattainment 

areas, as well as serious and higherclassified areas—will be performed on 

large enough scales to address transport 

and will in most cases encompass a 

number of nonattainment areas. These 

numerous nonattainment areas may 

differ by classification (some areas may 

be intrastate moderate areas, some interstate moderate areas, and others serious 

and above nonattainment areas). Some 

areas that may require attainment 

demonstrations may be subject to 

subpart 1 while others may be subject to 

subpart 2. Furthermore, the control 

strategies that may be modeled for all 

the areas in the modeling domain will 

likely be modeled simultaneously, 

especially if all the areas are located in 

a single State. Also, we believe that 

techniques for photochemical grid 

modeling, while they were more timeconsuming when the 1990 CAA 

Amendments were enacted, are now 

more standardized and less timeconsuming. In light of this, we do not 

believe it is reasonable to defer 

submission of attainment 

demonstrations beyond 3 years after 

designation. 

The TAR, which implements section 

301(d) of the CAA, gives Tribes the 

option of developing TIPs. Specifically, 

the TAR provides for the Tribes to be 

treated in the same manner as a State in 

implementing most of the CAA. 

However, in the TAR, EPA determined 

that it was inappropriate to treat Tribes 

in a manner similar to a State with 

regard to schedules. Therefore, Tribes 

are not required to submit a TIP, nor, if 

they choose to submit a TIP, are they 

required to submit a TIP in the same 

timeframe as the States. Where a Tribe 

chooses to develop a TIP, we will work 

with them to develop an appropriate 

schedule that meets the needs of the 

Tribe but does not interfere with timely 

attainment of the NAAQS on Tribal land 

or in other jurisdictions.

2. Option Being Proposed 

In light of the above discussion and 

rationale, we are proposing to require all 

nonattainment areas that are required to 

perform photochemical grid modeling—

regardless of coverage under subpart 1 

or 2 or regardless of classification under 

subpart 2—to submit an attainment 

demonstration within 3 years after 

designation. 

We believe this proposal would result 

in a closer synchronization of the 8-hour 

ozone and PM2.5 attainment 

demonstration SIP submittal dates. We 

discussed the integration of ozone and 

PM2.5 schedules at the three public 

meetings and numerous conference calls 

that were held with stakeholder groups. 

A majority of commenters were 

supportive of integrating the SIP 

attainment plan submission schedules 

for ozone and PM2.5 because integration 

would optimize control strategies, save 

time and planning resources, streamline 

deadlines, and maximize cost 

effectiveness, among other benefits. 

The PM2.5 standard is anticipated to 

be implemented under subpart 1 of the 

CAA, which requires a SIP submission 

by a date set by EPA, which can be no 

later than 3 years from designation. 

Since we are proposing that all 8-hour 

ozone nonattainment areas that are 

required to perform photochemical grid 

modeling submit their attainment 

demonstration SIPs within 3 years after 

nonattainment designation, this would 

result in a high degree of 

synchronization and thus allow 

comprehensive analyses that would 

evaluate controls to attain both air 

quality standards. As noted above, we 

are assuming for this proposed 

rulemaking that ozone designations will 

be promulgated in the 2004 timeframe; 

currently under TEA–21, designations 

for PM2.5 would occur beginning in 

2004, and must be completed by the end 

of 2005. Thus, the later-designated PM2.5

areas would not be required to submit 

their attainment demonstration SIPs 

until after the ozone SIPs are due. 

Additional discussion of the benefits of 

integrating the planning for both 

standards appears elsewhere in this 

proposed rulemaking. 

VII. Proposal of Integrated Frameworks 

Using Various Options 

As noted above, we are presenting 

two possible integrated frameworks that 

comprise an option from each of the 

above implementation elements to 

illustrate how they may work in 

conjunction with each other. In addition 

to soliciting comment on the options 

presented for the individual elements, 

we are also soliciting comment on how 

the options can be grouped into an 

integrated implementation framework. 

The following frameworks should be 

considered illustrative of possible ways 

of combining the element options. For 

final rulemaking, however, we may 

develop a consolidated framework that 

uses a different combination of the 

options proposed above, based on 

comments received and other 

information that comes to light during 

the public comment period. 

We are proposing for comment two 

integrated frameworks: 

• Framework 1—an approach 

considered similar to traditional 

implementation, 

• Framework 2—an approach 

considered more flexible than 

traditional implementation. 

Table 5 illustrates how element 

options may be combined to form these 

two frameworks. Elements for which we 

are proposing only one option would be 

common to either framework. For 

elements for which we are proposing 

several options, only one option has 

been selected for purposes of illustrating 

the frameworks depicted below. 

In addition, there are several 

proposed elements where options are 

presented that only apply to areas that 

would be covered by subpart 1; these 

elements include RACT for subpart 1 

areas and the NOX waiver requirement 

as it would apply to subpart 1 areas. 

These elements are not shown in Table 

5 below, since they are only applicable 

to subpart 1 areas.

32858 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

TABLE 5.—8-HOUR OZONE NAAQS IMPLEMENTATION ELEMENTS/OPTIONS GROUPED INTO FRAMEWORKS FOR PROPOSAL

[This table only summarizes the options and approaches; the full description of the approach or option in the proposed rulemaking should be 

consulted] 

Implementation element Framework 1 Framework 2 

A. Will subpart 1 or subpart 2 govern 

classifications? 

Classify all areas under subpart 2 using 8-

hour design values. (Option 1) 

Areas with a 1-hour design value ≥ 0.121 

ppm would be classified under subpart 2 

using 8-hour design values. Areas with a 1-

hour design value < 0.121 ppm would be 

covered under subpart 1. (Option 2) 

B. Will areas under subpart 1 be classified? N/A ................................................................... No classification. (Option 1) 

C. When may the State treat measures that applied for purposes of the 1-hour standard as 

contingency measures, consistent with section 110(l).

When the area attains the 8-hour ozone 

standard and is designated attainment.

When the area achieves the level of the 1-

hour standard. 

D.1. How will the 15 percent VOC ROP requirement apply? All areas classified as moderate or above for 

the 8-hour NAAQS must achieve a 15 percent reduction in VOC emissions for the 

first 6 years after the base year (2002). 

(Option 1) 

A moderate area that already achieved a 15 

percent VOC reduction for the 1-hour ozone 

standard would be considered to have met 

the 15 percent requirement already and 

may instead implement RFP consistent with 

section 172(c). An area classified as serious or above that already achieved a 15 

percent VOC reduction would be considered to have met the 15 percent requirement so it could choose to achieve an average of three percent per year of VOC or 

NOX reductions for the 6-year period. (Option 2) 

D.2. What is the baseline year for the emission 

inventory used for RFP/ROP? 

All areas would use a 2002 baseline year for preparation of the emissions inventory. 

D.3. What restrictions on creditable measures 

for RFP/ROP under the 8-hour standard 

(subpart 2 areas only) will apply? 

All emissions reductions that occur after the baseline emissions inventory year from post-1990 

Federal measures and any other measures would be creditable for ROP/RFP, except those 

specifically prohibited in section 182(b)(1)(D). 

D.4. What will RFP be for areas classified 

under subpart 1?.

N/A ................................................................... a. Areas with attainment dates 3 years or less 

after designation. As with marginal areas, 

those areas would not be subject to a separate RFP requirement. 

b. Areas with attainment dates between 3 to 6 

years after designation.

No separate RFP demonstration required except RFP would be met if a State demonstrates emissions reductions needed for 

attainment would be achieved by the attainment date. (Option 1) 

c. Areas with attainment dates beyond 6 

years after designation.

The RFP plan submission would be due with 

the attainment demonstration within 3 years 

after designation and would need to provide 

for certain increments of reductions from 

the baseline emission year out to the attainment year, proportionate to the time between the base year and the attainment 

year. (Option 1) 

D.5. How would the 8-hour ROP requirement fit 

with the 1-hour ROP requirement? 

The area would develop new baseline and new ROP emission reduction targets for the 8-hour 

standard for the entire area and could drop the 1-hour standard target for any periods that 

overlap with an 8-hour RFP period. 

E. What’s the RACT requirement for areas covered under subpart 1?.N/A ................................................................... If the area is able to demonstrate attainment 

of the standard as expeditiously as practicable with emission control measures in 

the SIP, then RACT will be met, and additional measures would not be required as 

being reasonably available. (Option 2) 

F. What will be the NSR requirement? .............. Status quo approach for all areas—areas subject to NSR obligations for their 8-hour classifications under subpart 2. (Option 1) Three options which could be implemented in 

conjunction with each other: Status quo approach for all areas (subpart 1 areas get 

subpart 1 NSR, subpart 2 areas get subpart 

2 NSR) (Option 1); 

AND 

A more flexible NSR program (i.e., allowing a 

pool of offsets, more flexible technology 

control requirement) for areas that submit 

early SIPs (‘‘transitional’’ NSR program) 

(Option 2); 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32859

80 If a Compact area had air quality meeting the 

8-hour standard for the period on which 

Continued

TABLE 5.—8-HOUR OZONE NAAQS IMPLEMENTATION ELEMENTS/OPTIONS GROUPED INTO FRAMEWORKS FOR

PROPOSAL—Continued

[This table only summarizes the options and approaches; the full description of the approach or option in the proposed rulemaking should be 

consulted] 

Implementation element Framework 1 Framework 2 

AND 

A CADC program, which would allow a more 

flexible NSR program for areas that adopt 

CADC provisions. (Option 3) 

VIII. Other Considerations 

A. Will EPA Be Contemplating 

Incentives for Areas That Want To Take 

Early Action for Reducing Ozone Under 

the 8-Hour Standard? 

This section discusses the extent to 

which we are providing incentives for 

areas that wish to voluntarily expedite 

the path to cleaner air by initiating early 

planning and control actions for 

reducing ground-level ozone prior to 

EPA’s designations for the 8-hour ozone 

NAAQS. State, local and Tribal air 

pollution control agencies have 

continued to express a need for added 

flexibility in implementing the 8-hour 

ozone NAAQS, including incentives for 

taking action sooner than EPA requires 

for reducing ground-level ozone. We are 

encouraging localities to make decisions 

that will achieve clean air sooner than 

otherwise is mandated by the CAA. 

Early planning and early 

implementation of control measures that 

improve air quality will likely accelerate 

protection of public health. We issued 

our policy on early planning on 

November 14, 2002. We are not 

proposing action on this approach in 

this rulemaking and, therefore, we are 

not requesting comment on this issue. 

1. What Are the Ozone Flex Guidelines 

for the 1-Hour Ozone NAAQS? 

In June 2001 we announced the 

‘‘Ozone Flex Guidelines’’ program 

(Ozone Flex), which supports and 

rewards innovative, voluntary, local 

strategies to reduce ground-level ozone. 

Ozone Flex is a framework for local 

communities to develop voluntary 

solutions for areas concerned about 

potential future nonattainment of the 1-

hour ozone standard. Ozone Flex is 

intended to achieve emissions 

reductions and avoid future 

nonattainment problems in those areas 

designated attainment for the 1-hour 

standard. While this program is only 

available to areas to address the 1-hour 

ozone standard, it also recognizes that 

areas may secure emissions reductions 

and public health benefits toward 

attaining the 8-hour ozone standard 

prior to EPA’s designation of areas. 

These voluntary measures may be 

creditable to future planning efforts for 

the 8-hour standard, to the extent 

allowed by the CAA and EPA guidance 

or rules. Any emissions reductions 

targeted for a period after the base year 

would provide ‘‘credit’’ for a State, 

local, or Tribal area in any future plan. 

Emission reduction credits toward 

meeting RFP are discussed elsewhere in 

this proposed rulemaking. 

2. What Is the ‘‘Early Action Compact’’

for Implementing the 8-Hour Ozone 

NAAQS? 

Following EPA’s issuance of the 

‘‘Ozone Flex Guidelines’’ for continued 

attainment of the 1-hour standard, the 

Texas Commission on Environmental 

Quality (TCEQ) encouraged EPA to 

consider additional incentives for early 

planning towards achieving the 8-hour 

ozone NAAQS. On March 20, 2002, the 

TCEQ submitted to EPA the Protocol for 

Early Action Compacts Designed to 

Achieve and Maintain the 8-hour Ozone 

Standard (Protocol). The Protocol was 

designed to achieve emissions 

reductions and clean air sooner than 

would otherwise be required under the 

CAA for implementing the 8-hour ozone 

NAAQS. The TCEQ proposed that the 

Protocol would be formalized by ‘‘Early 

Action Compact’’ agreements 

(Compacts) primarily developed by 

local, State and Federal (EPA) officials. 

The principles of the Compacts are the 

following: 

• Early planning, implementation, 

and emissions reductions leading to 

expeditious attainment and 

maintenance of the 8-hour ozone 

standard; 

• Local control of the measures 

employed, with broad-based public 

input; 

• State support to ensure technical 

integrity of the early action plan; 

• Formal incorporation of the early 

action plan into the SIP; 

• Designation of all areas as 

attainment or nonattainment in April 

2004, but, for Compact areas, deferral of 

the effective date of the nonattainment 

designation and/or designation 

requirements so long as all Compact 

terms and milestones continue to be 

met; and 

• Safeguards to return areas to 

traditional SIP attainment requirements 

should Compact terms be unfulfilled 

(e.g., if the area fails to attain in 2007), 

with appropriate credit given for 

reduction measures already 

implemented. 

Under this approach, an early, 

voluntary 8-hour air quality plan would 

be developed through an Early Action 

Compact agreement for each area that 

approaches or monitors exceedances of 

the 8-hour standard and that is 

designated attainment for the 1-hour 

ozone standard. This approach would 

also apply to maintenance areas for the 

1-hour ozone standard to the extent 

such areas continue to maintain that 

standard. One-hour ozone maintenance 

areas are areas that were previously 

designated nonattainment for the 1-hour 

ozone standard, but were redesignated 

to attainment pursuant to section 

107(d)(3)(E) and subject to the 

requirements of section 175A of the 

CAA. 

Under a Compact, the local area 

would commit to develop a SIP based 

on recent emission inventories and air 

quality modeling demonstrating 

attainment of the 8-hour standard by 

2007. In addition, the area would 

identify additional local controls 

beyond Federal and State requirements, 

which would be implemented by 2005. 

According to the Protocol, we would 

recognize the local area’s commitment 

to early, voluntary action by designating 

the area nonattainment in April 2004 (at 

the time of national designations for all 

areas of the country), but deferring the 

effective date of the nonattainment 

designation for participating Compact 

areas that are monitoring a violation of 

the 8-hour ozone standard, so long as all 

terms and milestones of the Compact 

continue to be met, including 

submission of the early action SIP 

revision no later than December 31, 

2004.80 We circulated the Protocol to 

32860 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

designations are based, we would designate the area 

as attainment without a deferred effective date.

81Additional Options Considered for ‘‘Proposed 

Rule to Implement the 8-Hour Ozone National 

Ambient Air Quality Standard.’’ U.S. 

Environmental Protection Agency, Office of Air 

Quality Planning and Standards, Research Triangle 

Park, NC, March 2003.

numerous organizations for review and 

comment. A copy of the revised 

Protocol is available in the docket for 

this proposed rulemaking.

3. What is EPA’s Response to the Texas 

‘‘Early Action Compact?’’

In a letter dated June 19, 2002, from 

Gregg Cooke, Administrator, Region 6, 

to Robert Huston, Chairman, TCEQ, EPA 

endorsed the principles outlined in the 

Protocol. The Protocol was subsequently 

revised on December 11, 2002, based on 

comments from EPA. Upon the 

completion of Compacts by December 

31, 2002 in areas that meet the 

requirements of the Protocol (including 

1-hour maintenance areas), we intend to 

honor the commitments established in 

these agreements. Any control measures 

identified by a Compact area must be 

submitted to EPA for approval as a SIP 

revision.

In a proposed settlement with nine 

environmental groups, we agreed to 

designate areas for the 8-hour ozone 

standard by April 15, 2004. This 

deadline gives States and Tribes ample 

time to update their recommendations 

by April 15, 2003 for nonattainment 

area boundaries. EPA lodged the 

proposed consent decree on November 

13, 2002 with the U.S. District Court for 

the District of Columbia. Also on 

November 14, 2002, we issued a 

guidance memorandum outlining the 

new designations schedule, 

requirements for designating Tribal 

areas, and discussing the impact of the 

designation schedule on areas that are 

developing early action compacts. 

(Memorandum dated November 14, 

2002, from Jeffrey R. Holmstead, 

Assistant Administrator, to EPA 

Regional Administrators.) 

We have entered into early action 

compacts with a number of areas of the 

country. As a result, we will designate 

all areas of the country either attainment 

or nonattainment in April 2004 

(including Compact areas). At that time, 

we plan to propose to defer the effective 

date of the nonattainment designation 

for participating Compact areas that are 

monitoring a violation of the 8-hour 

ozone standard, provided all terms of 

the agreement continue to be met, 

including timely completion of all 

Compact milestones. However, as the 

Compacts were signed prior to the 2004 

designations process, the Agency cannot 

prejudge the outcome of designations. 

Consequently, States are advised that if 

EPA determines that any portion of a 

compact area should become part of an 

8-hour ozone nonattainment area, that 

portion would no longer be eligible for 

participation in the Early Action 

Compact, and the effective date of the 

nonattainment designation for that 

portion of the Compact would not be 

deferred. Also, as noted above, this 

proposed rulemaking does not propose 

to establish attainment/nonattainment 

designations, nor does it address the 

principles that will be considered in the 

designation process, nor does it take 

comment on the Early Action Compact 

program. 

4. Did EPA Consider Other Options for 

Incentives for Areas That Take Early 

Actions for Reducing Ozone? 

We did consider another option, 

which is discussed in a separate 

document available in the docket.81

5. What Is the Difference Between the 

Early Action Compact Program and the 

Transitional NSR Program?

Appendix D of this proposed 

rulemaking contains a table comparing 

the two programs. It should be noted 

that areas that may be initially eligible 

for the Early Action Compact but that 

become ineligible later may still be 

eligible for the transitional NSR 

program. 

B. Clarification of How the Transition 

from 1-Hour to 8-Hour Standard Will 

Work for Early Action Compact Areas, 

for Conformity, and for NSR and PSD 

Appendix E presents a table that 

describes our interpretation of the 

applicability of conformity and 

traditional NSR and PSD under the 

various potential transition scenarios. 

This table is included for informational 

purposes only and does not constitute 

part of the proposed rule. It is intended 

only to inform comment on the proposal 

itself. As discussed elsewhere in this 

preamble, we are proposing options for 

how areas will transition from the 1-

hour standard to the 8-hour standard. 

Under one of the options, we would 

revoke the 1-hour standard 1 year after 

the effective date of the 8-hour 

designations. For Early Action Compact 

areas, the nonattainment designation for 

the 8-hour ozone standard is 

promulgated, but the effective date of 

that designation is deferred as long as 

the area continues to meet compact 

milestones. These milestones are 

described in the Holmstead 

memorandum referenced earlier. 

Shortly after December 2007 (i.e., by 

April 2008), we intend to make a 

determination of whether the area 

attained the 8-hour ozone standard. For 

all Compact areas, under the transition 

option described earlier in this 

paragraph, we would revoke the 1-hour 

standard for these areas 1 year after the 

effective date of the designation of 

attainment or nonattainment for the 8-

hour standard. Therefore, on the 1-year 

effective date of the determination we 

make in April 2008, which will include 

the designation of Compact areas, the 1-

hour standard would be revoked (in 

approximately May or June of 2009). 

C. How Will EPA’s Proposal Affect 

Funding Under the Congestion 

Mitigation and Air Quality Improvement 

(CMAQ) Program? 

Depending on the specific 

characteristics of a nonattainment area, 

revocation of the 1-hour ozone standard 

will have varying effects on some 

Federal transportation program funds 

apportioned to the States through a 

formula established by the TEA–21. The 

TEA–21 establishes eligibility for the 

CMAQ program transportation funds for 

nonattainment and maintenance areas, 

designated under section 107(d) of the 

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

area is, or was, classified in accordance 

with CAA sections 181, 186, and 188. 

Eligibility, in part, establishes an area’s 

ability to use CMAQ funding. Areas 

designated nonattainment after 

December 31, 1997 are also eligible, but 

without regard to classification. 

The amount of CMAQ funds available 

to States for use in nonattainment and 

maintenance areas is set at levels 

authorized by TEA–21. The funds are 

apportioned to States through the 

statutory formula contained in section 

104(b) of title 23. The formula is based 

on a State’s weighted population, which 

takes into account the classifications of 

ozone and CO nonattainment and 

maintenance areas, and the population 

in such areas. The formula does not 

account for PM nonattainment areas. 

As we revoke the 1-hour ozone 

standard under implementation of the 

new 8-hour ozone NAAQS, changes 

regarding the designation and 

classification of these nonattainment 

and maintenance areas, will change the 

amount of CMAQ funds apportioned to 

each State under the current 

apportionment formula, and thus 

available to these areas. Some States 

with 1-hour ozone nonattainment and 

maintenance areas will lose CMAQ 

funding while others may gain without 

a statutory change. The changes in 

funding will depend on how much a 

State’s weighted population changes 

because of the revocation. 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32861

82U.S. EPA, 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 the Innovative 

Strategies and Economics Group, Office of Air 

Quality Planning and Standards, Research Triangle 

Park, NC, April 24, 2003.

Furthermore, after revocation any 1-

hour ozone nonattainment or 

maintenance area that is not also 

designated nonattainment under the 8-

hour or the existing CO or PM–10 

standards will lose the ability to spend 

CMAQ funding. Since 1-hour ozone 

designations will no longer be in force, 

the authorized ability to use CMAQ 

funds under 23 U.S.C. 149(b) will be 

limited to existing CO and PM–10 

nonattainment and maintenance areas 

and areas designated after December 31, 

1997, such as those designated under 

the 8-hour standard. 

Finally, nonattainment areas 

designated under the 8-hour ozone 

standard would all be eligible for CMAQ 

funding, but the formula for 

determining the amount of funds 

apportioned to the States would only 

take into account the areas that are 

classified pursuant to CAA sections 181, 

186, and 188. Areas designated but not 

classified under the 8-hour standard 

would not be included in the 

apportionment formula, and States with 

such areas will not receive any CMAQ 

funding because of those areas. As noted 

elsewhere in this proposal, EPA is 

requesting comment on various 

concepts for classifying nonattainment 

areas under the 8-hour standard. 

We are aware that apportionment of 

CMAQ funds is calculated yearly and 

varies according to changing 

population, and severity of air 

pollution. The TEA–21 is due for 

reauthorization in October, 2003, and 

adjustments to the CMAQ eligibility 

criteria and apportionment formula may 

be possible. We understand the 

importance of CMAQ funding to States 

and nonattainment areas and are 

prepared to work with DOT and 

Congress to minimize the unintended 

impact of the 8-hour ozone NAAQS, on 

those funds.

D. Are There Any Environmental Impact 

Differences Between the Two Major 

Classification Options Being Proposed? 

Both of the major classification 

options being proposed would result in 

attainment by an expeditious attainment 

date. However, the EPA analysis of costs 

of the options notes that they do not 

necessarily have the same 

environmental impact. The subpart 2-

only option is more expensive for some 

of the 10 areas analyzed in the cost 

analysis—largely because subpart 2 ROP 

requires more emissions reductions, and 

it requires these reductions by 2008, 2 

years earlier than the attainment date of 

2010 that is assumed for the analysis 

areas. This would result in an earlier air 

quality benefit. We have not performed 

air quality modeling to determine the 

increment of air quality benefit from the 

subpart 2-only option compared to the 

option under which some areas are 

covered under subpart 1. 

IX. Statutory and Executive Order 

Reviews 

Upon promulgation of the NAAQS, 

the CAA requires EPA to designate areas 

as attaining or not attaining the NAAQS. 

The CAA then specifies requirements 

for areas based on the designation. This 

proposed rule fleshes out the statutory 

requirements that non-attainment areas 

are obligated to meet. In some instances, 

the statute is ambiguous regarding the 

statutory obligations that apply—thus 

we are proposing various options that 

we believe are consistent with the 

ambiguous language of the statute. One 

option attempts to provide a flexible 

and least-cost approach for States to 

apply to the sources that States may 

choose to regulate. The other option 

follows a more traditional statutory 

interpretation.82

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.

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 proposed 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-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. This proposed 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. 

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, 

32862 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

and Tribal governments, in the 

aggregate, or to the private sector, of 

$100 million or more in any 1 year. 

Before promulgating an EPA rule for 

which a written statement is needed, 

section 205 of the UMRA generally 

requires EPA to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost-effective or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows EPA to 

adopt an alternative other than the least 

costly, most cost-effective or least 

burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including Tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

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 

standard 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 the proposal, EPA has determined 

that this proposed 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 proposed 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 proposed rule considers 

options not addressed at the time the 

NAAQS were promulgated, the costs for 

implementation under these options 

would rise only marginally. 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 proposed 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 proposed rule. 

Although section 6 of Executive Order 

13132 does not apply to this rule, EPA 

actively engaged the States in the 

development of this proposed rule. EPA 

held regular calls with representatives 

of State and local air pollution control 

agencies. EPA also held three public 

hearings 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. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed rule from State and local 

officials. 

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 proposed rule does 

not have ‘‘Tribal implications’’ as 

specified in Executive Order 13175. 

This proposed rule concerns the 

implementation of the 8-hour ozone 

standard in areas designated 

nonattainment for that standard. The 

CAA provides for States and Tribes to 

develop plans to regulate emissions of 

air pollutants within their jurisdictions. 

The proposed 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 proposed 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 proposed rule does 

not affect the relationship or 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32863

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 proposed rule 

does nothing to modify that 

relationship. Because this proposed rule 

does not have Tribal implications, 

Executive Order 13175 does not apply. 

Assuming a Tribe is implementing 

such a plan at this time, while the 

proposed rule would have Tribal 

implications upon that Tribe, it would 

not impose substantial direct costs upon 

it, nor would it preempt Tribal law. As 

provided above, EPA has determined 

that the total costs for implementing the 

8-hour ozone by State, local, and Tribal 

governments is approximately $1 

million in all areas designated 

nonattainment for the standard. The 

percentage of Tribal land that will be 

designated nonattainment for the 8-hour 

ozone standard is very small. For Tribes 

that choose to regulate sources in Indian 

country, the costs would be attributed to 

inspecting regulated facilities and 

enforcing adopted regulations. 

Although Executive Order 13175 does 

not apply to this proposed rule, EPA 

consulted with Tribal officials in 

developing this proposed rule. EPA has 

encouraged Tribal input at an early 

stage. EPA supports a national ‘‘Tribal 

Designations and Implementation Work 

Group’’ which provides an open forum 

for all Tribes to voice concerns to EPA 

about the designation and 

implementation process for the 8-hour 

ozone standard. These discussions have 

given EPA valuable information about 

Tribal concerns regarding 

implementation of the 8-hour ozone 

NAAQS. The work group sends issue 

summaries and suggestions for 

addressing them to the newly formed 

National Tribal Air Association, who in 

turn will send them to Tribal leaders. 

EPA has encouraged Tribes to 

participate in the national public 

meetings held to take comment on early 

approaches to the proposed rule. 

Several Tribes made public comments at 

the April 2002 public meeting in 

Tempe, Arizona.

Furthermore, EPA will send 

individualized letters to all federally 

recognized Tribes about this proposal 

and will give Tribal leaders the 

opportunity for consultation. EPA 

specifically solicits additional comment 

on this proposed rule from Tribal 

officials. 

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 proposed rule is not subject to 

Executive Order 13045 because the 

Agency does not have reason to believe 

the environmental health risks or safety 

risks addressed by this action present a 

disproportionate risk to children. 

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 38854, 62 FR 38860 

and 62 FR 38865). 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed 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 2002, 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 proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

VCS. 

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. 

EPA believes that this proposed 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 proposed rule provides a 

framework for improving environmental 

quality and reducing health risks for 

areas that may be designated 

nonattainment.

List of Subjects in 40 CFR Part 51 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Ozone, Particulate matter, 

Transportation, Volatile organic 

compounds.

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

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

Dated: May 14, 2003. 

Christine Todd Whitman, 

Administrator.

X. Appendices

Note: The following appendices will not 

appear in the Code of Federal Regulations.

32864 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

Appendix A 

Comparison of Subpart 1 & 2 Requirements 

This is only an outline of the general 

requirements of subparts 1 and 2 and should 

not be relied on for regulatory purposes.

Element Subpart 1 

Subpart 2 

Classification Requirement 

Attainment Dates: For all areas, attainment should occur as expeditiously as practicable, but no later 

than specified timeframe.

Up to 5 years after nonattainment 

designation; may extend up to 

10 years based on specified 

considerations.

Marginal ........................................ 3 years from CAA Amendments 

enactment. 

Moderate ...................................... 6 years from CAA Amendments 

enactment. 

Serious ......................................... 9 years from CAA Amendments 

enactment. 

Severe-15 ..................................... 15 years from CAA Amendments 

enactment. 

Severe-17 ..................................... 17 years from CAA Amendments 

enactment. 

Extreme ........................................ 20 years from CAA Amendments 

enactment. 

RFP ................................................. ‘‘Annual incremental emissions 

reductions’’.

Marginal ........................................ None. 

Moderate ...................................... 15% VOC reduction from baseline within 6 years of enactment. 

Serious ......................................... Moderate req’t plus 9% VOC/NOX

reductions for years 7–9 after 

CAA Amendments enactment. 

Severe-15 ..................................... Serious req’t plus 9% VOC/NOX

for years 9–15 after CAA 

Amendments enactment. 

Severe-17 ..................................... Serious req’t plus 9% VOC/NOX

for years 9–17 after CAA 

Amendments enactment. 

Extreme ........................................ Severe req’t plus 9% VOC/NOX

for years 9–20 after CAAA enactment. 

Milestone Compliance Determination.Not required as such; contingency measures supposed to 

be implemented upon failure to 

meet RFP.

Marginal/moderate ....................... No further requirement. 

Serious & above ........................... Requires milestone compliance 

demonstration to be made following milestone; failing area 

must elect one of the following: 

1. bump-up. 

2. implement contingency measures. 

3. economic incentive. 

Attainment demonstration submission.EPA sets date which can be no 

later than 3 years after designation.

Marginal ........................................ None. 

Moderate ...................................... Due 3 years after CAA Amendments enactment. 

Serious ......................................... Due 4 years from CAA Amendments enactment. 

Severe .......................................... Due 4 years from CAA Amendments enactment. 

Extreme ........................................ Due 4 years from CAA Amendments enactment. 

NSR and RACT major source applicability.100 TPY ....................................... Marginal ........................................ 100 TPY 

Moderate ...................................... 100 TPY 

Serious ......................................... 50 TPY 

Severe .......................................... 25 TPY 

Extreme ........................................ 10 TPY 

NSR offsets ..................................... >1 to 1 .......................................... Marginal ........................................ 1.1 to 1

Moderate ...................................... 1.15 to 1

Serious ......................................... 1.2 to 1

Severe .......................................... 1.3 to 1

Extreme ........................................ 1.5 to 1

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32865

Element Subpart 1 

Subpart 2 

Classification Requirement 

NSR permits .................................... Permits required ........................... All ................................................. Construction permits for new or 

modified major stationary 

sources pre-1990 permit program corrections. 

Bump-up to higher classification ..... NA ................................................ All except severe & extreme ........ Required to bump-up to higher 

classification if area doesn’t 

meet attainment date. 

NOX control for RACT ..................... No specificity ................................ Moderate & above; all areas in 

OTC.

Requirements under this subpart 

for major stationary VOC 

sources (NSR & RACT) also 

apply to all major NOX sources, 

unless EPA approves NOX

waiver. 

NOX control for NSR ....................... No specificity ................................ Marginal & above.

Emission inventory .......................... Required in nonattainment area; 

no express requirement for updates or emission statements.

All ................................................. Comprehensive emissions inventory within 2 years of enactment; update every 3 years 

(until area attains). Provision 

for submission to State of annual emissions statements from 

VOC and NOX stationary 

sources. 

RACM/RACT ................................... General requirement for RACM 

including RACT.

Marginal & above ......................... Pre-1990 RACT fix-up. 

Moderate & above ........................ RACT for all CTG sources and all 

other major sources. 

I/M ................................................... Nothing specified .......................... Marginal ........................................ Pre-1990 corrections to previously required I&M programs 

immediately upon CAA Amendments enactment. 

Moderate ...................................... Basic I&M. 

Serious & above ........................... Enhanced I&M within 2 years of 

CAA Amendments enactment. 

Conformity (transportation and general).Required ....................................... All ................................................. No additional specificity. 

Stage II vapor recovery (VOC) ....... Not specified ................................ Moderate & above ........................ Stage II for gas stations within 2 

years. 

Consequences of failure to attain ... EPA to specify additional requirements; up to 10 more years to 

attain.

Marginal, moderate and serious .. Bump-up for failure to attain. 

Severe and extreme ..................... Fee system; continued ROP; possible stricter NSR major source 

cut-offs. 

Maintenance .................................... Requirement for maintenance 

plans for areas redesignated 

from nonattainment to attainment.

All ................................................. No additional specificity. 

Contingency measures ................... Required for failure to make RFP 

or attainment.

All ................................................. Required for failure to meet ROP 

milestones or attain. 

Enhanced (ambient) monitoring 

(PAMS).

Not specified ................................ Marginal and moderate ................ Not specified. 

Serious & above ........................... Ambient ozone precursor monitoring (VOC and NOX). 

VMT demonstration and transportation control measures (TCMs) if 

needed.

Not specified ................................ Marginal and moderate ................ Not specified. 

Serious & above ........................... Demonstration of whether current 

aggregate vehicle mileage, 

emissions, congestion levels 

are consistent with attainment 

demo. 

Clean fuels program ........................ Not specified ................................ Marginal and moderate ................ Not specified. 

Serious & above ........................... Certain percentage of fleet vehicles for 1998 and higher to be 

clean vehicles and use alternative fuels (if needed). 

32866 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

Element Subpart 1 

Subpart 2 

Classification Requirement 

Reformulated Gasoline required 

under section 211(k)(10)(D), 

which requires the use of reformulated gasoline in 9 covered 

areas, and areas that are 

bumped-up to Severe under section 181(d)).

Not specified ................................ Marginal, moderate & serious ...... Not specified. 

Severe & above ........................... Prohibition of sale of gas that has 

not been reformulated to be 

less polluting. 

TCMs to offset growth in VMT 

emissions.

Not specified ................................ Marginal, moderate & serious ...... Not specified. 

Severe & above ........................... Enforceable transportation control 

strategies and TCMs to offset 

any emissions growth due to 

VMT growth. 

Clean Fuels for Boilers ................... Not specified ................................ Marginal, moderate, serious & severe.Not specified. 

Extreme areas .............................. Use of clean fuels or advanced 

technology for certain boilers 

that emit more than 25 TPY of 

NOX. 

TCMs during heavy traffic hours ..... Not specified ................................ Marginal, moderate, serious & severe.Not specified. 

Extreme areas .............................. Option to have TCMs during periods of heavy traffic that reduce 

use of high polluting or heavyduty vehicles. 

New Technologies ........................... Not specified ................................ Marginal, moderate, serious & severe.Not specified. 

Extreme areas .............................. New or future technologies for 

emissions reductions. 

APPENDIX B.—‘‘APPLICABLE REQUIREMENTS’’ UNDER SUBPART 2 

Element Classification Requirement 

RFP .................................................................... Moderate .......................................................... 15% VOC reduction from baseline within 6 

years of enactment. 

Serious ............................................................. Moderate req’t plus 9% VOC/NOX reductions 

for years 7–9 after CAA Amendments enactment. 

Severe-15 ......................................................... Serious req’t plus 9% VOC/NOX for years 9–

15 after CAA Amendments enactment. 

Severe-17 ......................................................... Serious req’t plus 9% VOC/NOX for years 9–

17 after CAA Amendments enactment. 

Extreme ............................................................ Severe req’t plus 9% VOC/NOX for years 9–

20 after CAA Amendments enactment. 

Milestone Compliance Determination ................. Serious & above .............................................. Requires milestone compliance demonstration 

to be made following milestone; failing area 

must elect one of the following: 

1. bump-up. 

2. implement contingency measures. 

3. economic incentive. 

NSR and RACT major source applicability ........ Marginal ........................................................... 100 TPY 

Moderate .......................................................... 100 TPY 

Serious ............................................................. 50 TPY 

Severe .............................................................. 25 TPY 

Extreme ............................................................ 10 TPY 

NSR offsets ........................................................ Marginal ........................................................... 1.1 to 1 

Moderate .......................................................... 1.15 to 1 

Serious ............................................................. 1.2 to 1 

Severe .............................................................. 1.3 to 1 

Extreme ............................................................ 1.5 to 1 

NSR permits ....................................................... All ..................................................................... Construction permits for new or modified 

major stationary sources pre-1990 permit 

program corrections. 

NOX control for RACT ........................................ Moderate & above; all areas in OTC ............... Requirements under this subpart for major 

stationary VOC sources (NSR & RACT) 

also apply to all major NOX sources, unless 

EPA approves NOX waiver. 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32867

APPENDIX B.—‘‘APPLICABLE REQUIREMENTS’’ UNDER SUBPART 2—Continued

Element Classification Requirement 

NOX control for NSR .......................................... Marginal & above .............................................

RACM/RACT ...................................................... Marginal & above ............................................. Pre-1990 RACT fix-up. 

Moderate & above ........................................... RACT for all CTG sources and all other major 

sources. 

I/M ....................................................................... Marginal ........................................................... Pre-1990 corrections to previously required 

I&M programs immediately upon CAA 

Amendments enactment. 

Moderate .......................................................... Basic I&M. 

Serious & above .............................................. Enhanced I&M within 2 years of CAA Amendments enactment. 

Stage II vapor recovery (VOC) ........................... Moderate & above ........................................... Stage II for gas stations within 2 years. 

Maintenance ....................................................... All ..................................................................... No additional specificity. 

Enhanced (ambient) monitoring (PAMS) ........... Serious & above .............................................. Ambient ozone precursor monitoring (VOC 

and NOX). 

VMT demonstration and transportation control 

measures (TCMs) if needed.

Serious & above .............................................. Demonstration of whether current aggregate 

vehicle mileage, emissions, congestion levels are consistent with attainment demo. 

Clean fuels program ........................................... Serious & above .............................................. Certain percentage of fleet vehicles for 1998 

and higher to be clean vehicles and use alternative fuels (if needed). 

Reformulated Gasoline* ..................................... Severe & above ............................................... Prohibition of sale of gas that has not been 

reformulated to be less polluting. 

TCMs to offset growth in VMT emissions .......... Marginal, moderate & serious .......................... Not specified. 

Severe & above ............................................... Enforceable transportation control strategies 

and TCMs to offset any emissions growth 

due to VMT growth 

Clean Fuels for Boilers ....................................... Extreme areas .................................................. Use of clean fuels or advanced technology for 

certain boilers that emit more than 25 TPY 

of NOX. 

TCMs during heavy traffic hours ........................ Extreme areas .................................................. Option to have TCMs during periods of heavy 

traffic that reduce use of high polluting or 

heavy-duty vehicles. 

New Technologies .............................................. Extreme areas .................................................. New or future technologies for emission reductions. 

* Required under section 211(k)(10)(D), which requires the use of reformulated gasoline in 9 covered areas, and areas that are bumped-up to 

Severe under section 181(d). 

APPENDIX C.—COMPARISON OF TRANSITIONAL NSR AND EARLY ACTION COMPACT PROGRAMS

Program elements Transitional new source review (NSR) 8-hour Early action compact 

Eligibility * ............................. —Meet 1-hr standard ......................................................

—Must be 8-hr nonattainment ........................................

—Must be covered under Subpart 1 ** ...........................

—Must have monitoring data meeting 1-hr standard. 

—Must be designated attainment for 1-hr standard. 

Initiation Date ....................... Submit attainment demonstration by designations date 

(4/15/04).

Signed compact by 12/31/02. 

Other Dates .......................... —All measures must be implemented by 12/31/05 ........

—Projected attainment of 8-hr standard by April 2007 ..

—Submit progress reports every 6 months beginning 6/

03. 

—Describe planned measures by 6/16/03. 

—Submit local plan to State by 3/31/04. 

—Submit SIP to State by 12/31/04. 

—Implement all measures by 12/31/05. 

—Submit progress report to certify continued implementation & air quality improvements. 

—Area must attain 8-hr standard by 12/31/07. 

Benefits ................................ —BACT instead of LAER (cite NSR workshop manual) 

—No required emission offsets .......................................

—Deferred effective date of nonattainment designation. 

—Implies no NSR or conformity. 

—Implementation of measures earlier than required by 

CAA (early reductions in emissions). 

Consequences ..................... If 2007 attainment date is missed, State must submit by 

April 2007 a Part D NSR plan, which meets requirements under sec. 51.165 (i.e., traditional nonattainment NSR).

—Nonattainment designation becomes effective soon 

after failure to meet milestone. 

—Nonattainment requirements must be met (NSR, conformity, RACT, etc) if missed milestone. 

* Areas not eligible for Early Action Compact may still be eligible for transitional NSR. 

** Areas in the Ozone Transport Region are not eligible for transitional NSR because they are not covered under Subpart 1 for purposes of 

NSR applicability. 

APPENDIX D.—GLOSSARY OF TERMS AND ACRONYMS

ACT .................. Alternative control techniques 

32868 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

APPENDIX D.—GLOSSARY OF TERMS AND ACRONYMS—Continued

BACT ................ Best available control technology 

bump-up ........... Reclassify to higher classification 

CAA .................. Clean Air Act 

CAAA ................ 1990 Clean Air Act Amendments 

CADC ............... Clean Air Development Community 

CASAC ............. Clean Air Scientific Advisory Committee 

CERR ............... Consolidated Emissions Reporting Rule 

CFR .................. Code of Federal Regulations 

CO .................... Carbon monoxide 

Compacts ......... Early Action Compact Agreements 

CSA .................. Clear Skies Act 

CTGs ................ Control techniques guidelines 

DOT .................. Department of Transportation 

EPA .................. Environmental Protection Agency 

FACA ................ Federal Advisory Committee Act 

FIPs .................. Federal implementation plans 

FMVCP ............. Federal Motor Vehicle Control Program 

GAM ................. Generalized additive models 

HAPs ................ Hazardous air pollutants 

HEI .................... Health Effects Institute 

LAER ................ Lowest achievable emission rate 

MACT ............... Maximum achievable control technology 

MCR ................. Mid-course review 

MPO ................. Metropolitan Planning Organization 

NAAQS ............. National Ambient Air Quality Standards 

NAMS ............... National Air Monitoring Stations 

NCore ............... National Core Monitoring Sites 

NMMAPS .......... National Morbidity, Mortality, and Air Pollution Study 

NOX .................. Nitrogen oxides 

NOy ................... Reactive oxides of nitrogen 

NO2 ................... Nitrogen dioxide 

NSCR ............... Non-selective catalytic reduction 

NSR .................. New source review 

NTTAA .............. National Technology Transfer Advancement Act of 1995 

OH .................... Hydroxyl 

OMB ................. Office of Management and Budget 

OTAG ............... Ozone Transport Assessment Group 

OTC .................. Ozone Transport Commission 

OTR .................. Ozone Transport Region 

Ozone Flex ....... Ozone Flex Guidelines Program 

PAMS ............... Photochemical Assessment Monitoring Stations 

PM .................... Particulate matter 

PM2.5 ................. Fine particle 

ppm ................... Parts per million 

Protocol ............ Protocol for Early Action Compacts designed to achieve and maintain the 8-hour ozone standard 

PSD .................. Prevention of significant deterioration 

RACM ............... Reasonably available control measures 

RACT ................ Reasonably available control technology 

RFP .................. Reasonable further progress 

ROP .................. Rate of progress 

RPOs ................ Regional Planning Organizations 

SBA .................. Small Business Administration 

SIPs .................. State implementation plans 

SLAMS ............. State and Local Air Monitoring Stations 

TAR .................. Tribal Authority Rule 

TCEQ ................ Texas Commission on Environmental Quality 

TCMs ................ Transportation control measures 

TEA–21 ............. Transportation Equity Act for the Twenty-first Century 

TIP .................... Tribal implementation plan 

TSP ................... Total suspended particulates 

UMRA ............... Unfunded Mandates Reform Act of 1995 

VCS .................. Voluntary consensus standards 

VMT .................. Vehicle miles traveled 

VOC .................. Volatile organic compound 

VT ..................... Vehicle trips 

Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32869

APPENDIX E.—APPLICATION OF CONFORMITY, NEW SOURCE REVIEW AND PREVENTION OF SIGNIFICANT DETERIORATION

UNDER VARIOUS TRANSITION CASES

If an area’s 1-hr situation is: And its 8-hr situation 

is: How would conformity apply? How would traditional 1 NSR/PSD apply? 

Designated Attainment 

(never been nonattainment).

Designated Attainment Under 1 hr std: Conformity does not apply .... Under 1 hr std: PSD continues to apply until 

the 1-hr standard is revoked. 

Under 8 hr std: Conformity does not apply .... Under 8 hr std: PSD applies (Note: PSD applies as long as area is attainment for the 

8-hr std.) 

Designated Nonattainment.Under 1 hr std: Conformity does not apply .... Under 1 hr std: PSD applies until the 1-hr 

standard is revoked (but nonattainment 

NSR requirements for 8-hr std. would tend 

to override). 

Under 8 hr std: Conformity applies 1 year 

after the effective date of designation 

(2005).

Under 8-hr std:

(1) NSR under 40 CFR appendix S applies 

before SIP (containing § 51.165(a) NSR 

program) is approved by EPA. 

(2) Nonattainment NSR under § 51.165 applies after SIP approval 

Early Action Compact 

(EAC).

Under 1 hr std: Conformity does not apply ....

Under 8 hr std: Assuming all milestones are 

met, conformity would not apply through 

2007. If the area is violating in 2007, its 

nonattainment designation would become 

effective 4/15/2008, and conformity would 

apply 1 year later (4/15/2009). If area not 

violating in 2007, the area would be designated attainment, and no conformity 

would apply.

Under 1 hr std: PSD continues to apply to 

EAC areas until the 1-hr standard is 

revoked. 

Under 8 hr std: Assuming all milestones are 

met, PSD would apply through 2007.2 If 

the area is violating in 2007, it would become subject to nonattainment NSR. If 

area is not violating in 2007, the area 

would be designated attainment, and PSD 

continues to apply 

Designated Nonattainment.Designated Attainment Under 1 hr std: Conformity applies until 1 

year after the effective date of the area’s 

designation under the 8-hr standard (2005).

Under 1 hr std: Nonattainment NSR applies 

until it is no longer an ‘‘applicable requirement’’ (see proposal on anti-backsliding). 

Under 8 hr std: Conformity does not apply .... Under 8 hr std: PSD applies.3

Designated Nonattainment.Under 1 hr std: Conformity applies until 1 

year after the effective date of the area’s 

designation under the 8-hr standard (2005).

Under 8 hr std: Conformity would apply 1 

year after the effective date of the area’s 

designation (2005).

Under 1 hr std: Nonattainment NSR continues to apply until it is no longer an ‘‘applicable requirement’’ (see proposal on 

anti-backsliding). 

Under 8 hr std: (1) Nonattainment NSR under 

appendix S applies until the nonattainment 

NSR SIP (containing § 51.165(a) NSR program) is approved by EPA; 

(2) Nonattainment NSR applies under 

§ 51.165 after SIP approval. 

(EAC: Not eligible) 

Designated attainment 

with Maintenance 

Plan.

Designated Attainment Under 1 hr std: Conformity applies until 1 

year after the effective date of the area’s 

designation under the 8-hr standard (2005).

Under 8 hr std: Conformity does not apply ....

Under 1 hr std: PSD applies until 1-hr std. is 

revoked. 

Under 8 hr std: PSD applies. 

32870 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 

APPENDIX E.—APPLICATION OF CONFORMITY, NEW SOURCE REVIEW AND PREVENTION OF SIGNIFICANT DETERIORATION

UNDER VARIOUS TRANSITION CASES—Continued

If an area’s 1-hr situation is: And its 8-hr situation 

is: How would conformity apply? How would traditional 1 NSR/PSD apply? 

Designated Nonattainment.Under 1 hr std: Conformity applies until 1 

year after the effective date of the area’s 

designation under the 8-hr standard (2005).

Under 8 hr std: Conformity would apply 1 

year after the effective date of the area’s 

designation under the 8-hr standard (2005).

Under 1 hr std: PSD applies until the 1-hr 

standard is revoked. 

Under 8 hr std:

(1) NSR under 40 CFR appendix S applies 

before SIP (containing § 51.165(a) NSR 

program) is approved by EPA; 

(2) Nonattainment NSR under § 51.165 applies after SIP approval. 

Early Action Compact Under 1 hr std: 1-hour conformity applies 

until 1 year after the effective date of the 

area’s designation under the 8-hr standard 

(4/15/2009, or earlier if the area misses an 

EAC milestone).

Under 8 hr std: Assuming all milestones are 

met, conformity would not apply through 

2007. If the area is violating in 2007, its 

nonattainment designation would become 

effective 4/15/2008 and conformity would 

apply 1 year later (4/15/2009). If area not 

violating in 2007, the area would be designated attainment, and no conformity 

would apply.

Under 1 hr std: PSD continues to apply until 

the 1-hr standard is revoked. 

Under 8 hr std: Assuming all milestones are 

met, PSD would apply through 2007.2 If 

the area is violating in 2007, it would become subject to nonattainment NSR. If 

area is not violating in 2007, the area 

would be designated attainment, and PSD 

continues to apply. 

1Traditional NSR is nonattainment NSR under 40 CFR part 51, either § 51.165 or appendix S. 2PSD applies even if the attainment designation under the 8-hr standard is not yet effective. 

3Generally, nonattainment NSR requirements would supersede most PSD requirements. However, note that in specific instances PSD may 

mandate additional analyses, such as preconstruction monitoring or analysis of impacts on Class I areas. 

[FR Doc. 03–13240 Filed 5–30–03; 8:45 am] 

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