Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Proposed Rules 65151 

additive regulations be amended to 

provide for the safe use of synthetic iron 

oxide as a color additive in or on cooked 

meat products. 

FOR FURTHER INFORMATION CONTACT: 

Ellen Anderson, Center for Food Safety 

and Applied Nutrition (HFS–265), Food 

and Drug Administration, 5100 Paint 

Branch Pkwy., College Park, MD 20740– 

3835, 240–402–1309. 

SUPPLEMENTARY INFORMATION: In a notice 

published in the Federal Register of 

February 27, 2004 (69 FR 9340), FDA 

announced that a color additive petition 

(CAP 4C0276) had been filed by Cryovac 

North America, c/o Keller and Heckman 

LLP, 1001 G St. NW., Suite 500 West, 

Washington, DC 20001. The petition 

proposed to amend the color additive 

regulations in 21 CFR part 73 Listing of 

Color Additives Exempt From 

Certification to provide for the safe use 

of synthetic iron oxide as a color 

additive in or on cooked meat products. 

Cryovac North America has now 

withdrawn the petition without 

prejudice to a future filing (21 CFR 

71.6(c)(2)). 

Dated: October 19, 2012. 

Dennis M. Keefe, 

Director, Office of Food Additive Safety, 

Center for Food Safety and Applied Nutrition. 

[FR Doc. 2012–26242 Filed 10–24–12; 8:45 am] 

BILLING CODE 4160–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0721; FRL–9745–3] 

Finding of Substantial Inadequacy of 

Implementation Plan; Call for 

California State Implementation Plan 

Revision; South Coast; Reopening of 

Comment Period 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule; reopening of 

comment period. 

SUMMARY: EPA is reopening the public 

comment period for a proposal 

published in the Federal Register on 

September 19, 2012. In that action, in 

response to a remand by the Ninth 

Circuit Court of Appeals, and pursuant 

to the Clean Air Act, EPA proposed to 

find that the California State 

Implementation Plan (SIP) for the Los 

Angeles-South Coast Air Basin (South 

Coast) is substantially inadequate to 

comply with the obligation to adopt and 

implement a plan providing for 

attainment of the 1-hour ozone 

standard. If EPA finalizes this proposed 

finding of substantial inadequacy as 

proposed, California would be required 

revise its SIP to correct these 

deficiencies within 12 months of the 

effective date of our final rule. Two 

commentors requested an extension of 

the comment period for this proposed 

rulemaking. EPA is now reopening the 

public comment period. 

DATES: The comment period for the 

proposed rule published on September 

19, 2012 (77 FR 58072) is reopened. 

Comments must be received on or 

before November 8, 2012. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2012–0721, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Email: tax.wienke@epa.gov. 

• Mail or deliver: Wienke Tax, Air 

Planning Office, U.S. Environmental 

Protection Agency, Region 9, Mailcode 

AIR–2, 75 Hawthorne Street, San 

Francisco, California 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

http://www.regulations.gov or email. 

The http://www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

and EPA will not know your identity or 

contact information unless you provide 

it in the body of your comment. If you 

send an email comment directly to EPA, 

your email address will be 

automatically captured and included as 

part of the public comment. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Docket: The index to the docket for 

this action is available electronically on 

the http://www.regulations.gov Web site 

and in hard copy at EPA Region IX, 75 

Hawthorne Street, San Francisco, 

California 94105. While all documents 

in the docket are listed in the index, 

some information may be publicly 

available only at the hard copy location 

(e.g., copyrighted material), and some 

may not be publicly available at either 

location (e.g., CBI). To inspect the hard 

copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section 

below. 

FOR FURTHER INFORMATION CONTACT: 

Wienke Tax, Air Planning Office, U.S. 

Environmental Protection Agency, 

Region 9, Mail Code AIR–2, 75 

Hawthorne Street, San Francisco, 

California 94105–3901, 415–947–4192, 

tax.wienke@epa.gov. 

SUPPLEMENTARY INFORMATION: EPA 

published a proposed rule on September 

19, 2012 (77 FR 58072). In that action, 

in response to a remand by the Ninth 

Circuit Court of Appeals, and pursuant 

to the Clean Air Act, EPA proposed to 

find that the California State 

Implementation Plan (SIP) for the Los 

Angeles-South Coast Air Basin (South 

Coast) is substantially inadequate to 

comply with the obligation to adopt and 

implement a plan providing for 

attainment of the 1-hour ozone 

standard. If the action is finalized as 

proposed, California would be required 

revise its SIP to correct these 

deficiencies within 12 months of the 

effective date of our final rule. Written 

comments on the proposed rule were to 

be submitted to EPA on or before 

October 19, 2012. Two commentors 

requested an extension of the comment 

period for this proposed rulemaking. 

EPA is now reopening the public 

comment period for the September 19, 

2012, 1-hour ozone SIP call for 

California for the South Coast area 

proposed rulemaking for fourteen days. 

Dated: October 17, 2012. 

Jared Blumenfeld, 

Regional Administrator, EPA Region 9. 

[FR Doc. 2012–26286 Filed 10–24–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R01–OAR–2012–0290; FRL–9744–1] 

Approval and Promulgation of 

Implementation Plans and Designation 

of Areas for Air Quality Planning 

Purposes; New Hampshire; 

Redesignation of the Southern New 

Hampshire 1997 8-Hour Ozone 

Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve: 

the State of New Hampshire’s request to 

redesignate the Boston-ManchesterPortsmouth (SE), New Hampshire 

moderate 8-hour ozone nonattainment 


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65152 Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Proposed Rules 

area to attainment for the 1997 8-hour 

ozone National Ambient Air Quality 

Standard (NAAQS); a State 

Implementation Plan (SIP) revision 

containing a 10-year maintenance plan 

for this area; a 2008 comprehensive 

emissions inventory for the area; and 

new motor vehicle emissions budgets 

(MVEBs) for the years 2008 and 2022 

that are contained in the 10-year ozone 

maintenance plan for this area. Finally, 

EPA is proposing to withdraw the SIPapproved 2009 MVEBs and replace 

them with the 2008 MVEBs included in 

the maintenance plan. 

DATES: Written comments must be 

received on or before November 26, 

2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R01–OAR–2012–0290 by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: arnold.anne@epa.gov 

3. Fax: (617) 918–0047. 

4. Mail: ‘‘Docket Identification 

Number EPA–R01–OAR–2012–0290,’’ 

Anne Arnold, U.S. Environmental 

Protection Agency, EPA New England 

Regional Office, 5 Post Office Square, 

Suite 100 (mail code: OEP05–2), Boston, 

MA 02109–3912. 

5. Hand Delivery or Courier. Deliver 

your comments to: Anne Arnold, 

Manager, Air Quality Planning Unit, 

Office of Ecosystem Protection, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, 5 Post 

Office Square, Suite 100, Boston, MA 

02109–3912. Such deliveries are only 

accepted during the Regional Office’s 

normal hours of operation. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding legal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R01–OAR–2012– 

0290. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through 

www.regulations.gov or email, 

information that you consider to be CBI 

or otherwise protected. The 

www.regulations.gov Web site is an 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy at Air Quality Planning 

Unit, Office of Ecosystem Protection, 

U.S. Environmental Protection Agency, 

EPA New England Regional Office, One 

Congress Street, 11th floor, (CAQ), 

Boston, MA 02114–2023. EPA requests 

that if at all possible, you contact the 

person listed in the FOR FURTHER

INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding legal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Richard P. Burkhart, Air Quality 

Planning Unit, U.S. Environmental 

Protection Agency, EPA New England 

Regional Office, 5 Post Office Square, 

Suite 100, Boston, MA 02109–3912, 

telephone number (617) 918–1664, fax 

number (617) 918–0664, email 

Burkhart.Richard@epa.gov. 

In addition to the publicly available 

docket materials available for inspection 

electronically in the Federal Docket 

Management System at 

www.regulations.gov, and the hard copy 

available at the Regional Office, which 

are identified in the ADDRESSES section 

of this Federal Register, copies of the 

state submittal are also available for 

public inspection during normal 

business hours, by appointment at the 

State Air Agency: Air Resources 

Division, Department of Environmental 

Services, 6 Hazen Drive, P.O. Box 95, 

Concord, NH 03302–0095. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

Table of Contents 

I. What is EPA proposing? 

II. What is the background for these proposed 

actions? 

A. General Background 

B. What are the impacts of the December 

22, 2006 and June 8, 2007 United States 

Court of Appeals decisions regarding 

EPA’s Phase I Implementation Rule? 

III. What are the criteria for redesignation to 

attainment? 

IV. What is EPA’s analysis of the State’s 

request? 

A. Has the Southern NH area has attained 

the 1997 8-hour ozone NAAQS? 

B. Has the State of New Hampshire met all 

applicable requirements of Section 110 

and Part D and does the Southern NH 

area have a fully approved SIP under 

Section 110(k) of the CAA for purposes 

of redesignation to attainment? 

1. Requirements Under the 1997 8-Hour 

Ozone Standard 

2. Requirements Under the 1-Hour Ozone 

Standard 

3. Requirements of Section 110 and Part D 

of the CAA Applicable for Purposes of 

Redesignation for the 8-Hour NAAQS 

a. Section 110 and General SIP 

Requirements 

b. Part D SIP Requirements 

C. Are the air quality improvement in the 

Southern NH area is due to permanent 

and enforceable reductions in emissions? 

D. Does the Southern NH area have a fully 

approved maintenance plan pursuant to 

Section 175a of the CAA? 

1. Maintenance Plan Requirements 

2. EPA’s Analysis of the Southern NH 

Maintenance Plan 

a. Attainment Emissions Inventory 

b. Maintenance Demonstration 

c. Monitoring Network 

d. Verification of Continued Attainment 

e. The Maintenance Plan’s Contingency 

Measures 

V. How are MVEBs developed and what is an 

adequacy determination? 

VI. What is the status of EPA’s adequacy 

determination for the area’s MVEBs for 

2022? 

VII. Proposed Actions 

VIII. Statutory and Executive Order Reviews 

I. What is EPA proposing? 

EPA is proposing to determine that 

the Boston-Manchester-Portsmouth (SE), 

New Hampshire 1997 8-hour ozone 

nonattainment area (hereafter the 

‘‘Southern NH’’ area) has met the 

requirements for redesignation under 

sections 107(d)(3)(E) and 175A of the 

Clean Air Act (CAA). EPA is thus 

proposing to approve New Hampshire’s 


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request to change the legal designation 

of the Southern NH area from 

nonattainment to attainment for the 

1997 8-hour ozone NAAQS. In this 

rulemaking, EPA is also proposing to 

approve New Hampshire’s maintenance 

plan SIP revision for the Southern NH 

area under CAA section 175A, such 

approval being one of the CAA criteria 

for redesignation to attainment status. 

The maintenance plan is designed to 

keep the Southern NH area in 

attainment of the ozone NAAQS 

through 2022. EPA is proposing to 

approve the 2008 comprehensive 

emissions inventory for the Southern 

NH area as meeting the requirements of 

section 182(a)(1) of the CAA. Finally, 

EPA is proposing to approve the newlyestablished 2008 and 2022 MVEBs for 

the Southern NH area. At the state’s 

request, EPA is proposing to remove the 

2009 MVEBs prepared using MOBILE6.2 

and replace them with 2008 MVEBs 

prepared using MOVES2010. EPA will 

finalize its approval of the redesignation 

request only if EPA also approves the 

2008 comprehensive emissions 

inventory, vehicle inspection/ 

maintenance (I/M) program and certain 

Reasonably Available Control 

Technology (RACT) rules for the area. 

EPA plans to take final action on the 

emission inventory, RACT rules, and 

revised I/M program, prior to, or in 

conjunction with, EPA’s final approval 

of New Hampshire’s redesignation 

request. 

II. What is the background for these 

proposed actions? 

A. General Background 

Ground-level ozone is not emitted 

directly by sources. Rather, emissions of 

nitrogen oxides (NOX) and volatile 

organic compounds (VOCs) react in the 

presence of sunlight to form groundlevel ozone. NOX and VOCs are referred 

to as precursors of ozone. 

The CAA establishes a process for air 

quality management through the 

NAAQS. Before promulgation of the 

1997 8-hour standard, the ozone 

NAAQS was based on a 1-hour 

standard. The Boston-ManchesterPortsmouth (SE), NH area 1997 8-hour 

ozone nonattainment area is composed 

of portions of three formerly separate 1- 

hour ozone nonattainment areas: (1) The 

Portsmouth-Dover-Rochester, NH 

serious 1-hour ozone nonattainment 

area; (2) the Boston-LawrenceWorcester, MA–NH serious 1-hour 

ozone nonattainment area; and (3) the 

Manchester, NH marginal 1-hour ozone 

nonattainment area. 

All three of these areas attained the 1- 

hour ozone standard by their respective 

attainment dates. Specifically, for the 

Boston-Lawrence-Worcester, MA–NH 1- 

hour area, see EPA’s final determination 

at 77 FR 31496, May 29, 2012. For the 

Portsmouth-Dover-Rochester, NH 1-hour 

area and the Manchester, NH 1-hour 

area, see EPA’s proposed determination 

at 77 FR 42470, July 19, 2012. (EPA will 

take final action with respect to this 

determination prior to taking final 

action on the redesignation request.) 

On July 18, 1997 (62 FR 38856), EPA 

promulgated an 8-hour ozone standard 

of 0.08 parts per million parts (ppm). On 

April 30, 2004 (69 FR 23858), EPA 

published a final rule designating and 

classifying areas under the 8-hour ozone 

NAAQS. These designations and 

classifications became effective June 15, 

2004. EPA designated as nonattainment 

any area that was violating the 8-hour 

ozone NAAQS based on the three most 

recent years of air quality data, 2001– 

2003. The Southern NH area was 

designated as nonattainment for the 

1997 8-hour ozone standard and 

classified as a ‘‘moderate’’ 

nonattainment area under subpart 2 of 

the CAA. This area includes 54 cities 

and towns in Hillsborough, Merrimack, 

Rockingham, and Strafford Counties. 

See 40 CFR 81.330, for exact listing of 

cities and towns. 

The CAA contains two sets of 

provisions, subpart 1 and subpart 2, that 

address planning and control 

requirements for nonattainment areas. 

(Both are found in title I, part D, 42 

U.S.C. 7501–7509a and 7511–7511f, 

respectively.) Subpart 1 contains general 

requirements for nonattainment areas 

for any pollutant, including ozone, 

governed by a NAAQS. Subpart 2 

provides more specific requirements for 

ozone nonattainment areas. Under 

EPA’s implementation rule for the 1997 

8-hour ozone standard (69 FR 23951, 

April 30, 2004), the Southern NH area 

was designated as a subpart 2, 8-hour 

ozone moderate nonattainment area by 

EPA based on air quality monitoring 

data from 2001–2003. 

The New Hampshire Department of 

Environmental Services (NH DES) 

submitted a request to redesignate the 

Southern NH area to attainment of the 

1997 8-hour ozone standard on March 2, 

2012, with a supplement submitted on 

September 21, 2012. Complete, qualityassured and certified data show the area 

first attained the 1997 8-hour NAAQS 

based on 2002–2004 data and has 

remained in attainment since then (see 

73 FR 14387, March 18, 2008 and 76 FR 

14805, March 18, 2011). In addition, 

available preliminary ozone monitoring 

data for 2012 indicate continued 

attainment of the standard. See 

complete discussion of air quality data 

for the Southern NH area in section 

IV.A. of today’s action. 40 CFR 50.10 

and appendix I of 40 CFR part 50 

provide that the 1997 8-hour ozone 

standard is attained when the three-year 

average of the annual fourth-highest 

daily maximum 8-hour average ozone 

concentrations is less than or equal to 

0.08 ppm, when rounded, at all ozone 

monitoring sites in the area. To support 

the redesignation of the area to 

attainment of the NAAQS, the ozone 

data must be complete for the three 

attainment years. The data completeness 

requirement is met when the three-year 

average of days with valid ambient 

monitoring data is greater than 90 

percent, and no single year has less than 

75 percent data completeness, as 

determined in accordance with 

appendix I of 40 CFR part 50. Under the 

CAA, EPA may redesignate a 

nonattainment area to attainment if 

sufficient, complete, quality-assured 

data are available to show that the area 

has attained the standard and if the 

State meets the other CAA redesignation 

requirements specified in section 

107(d)(3)(E) and section 175A. 

On March 27, 2008 (73 FR 16436), 

EPA promulgated a revised 8-hour 

ozone standard of 0.075 ppm. On May 

21, 2012 (77 FR 30088), EPA designated 

all of New Hampshire as attainment/ 

unclassifiable under the new, more 

stringent 2008 8-hour ozone NAAQS 

(see also 40 CFR part 81.330). Today’s 

action does not address requirements of 

the 2008 8-hour ozone standard. 

B. What are the impacts of the 

December 22, 2006 and June 8, 2007 

United States Court of Appeals 

decisions regarding EPA’s Phase 1 

Implementation Rule? 

On December 22, 2006, in South 

Coast Air Quality Management Dist. v. 

EPA, the U.S. Court of Appeals for the 

District of Columbia (D.C. Circuit) 

vacated EPA’s Phase 1 Implementation 

Rule for the 1997 8-hour Ozone 

Standard (69 FR 23951, April 30, 2004). 

472 F.3d 882 (D.C. Cir. 2006). On June 

8, 2007, in response to several petitions 

for rehearing, the D.C. Circuit clarified 

that the Phase 1 Rule was vacated only 

with regard to those parts of the rule 

that had been successfully challenged. 

Id., Docket No. 04 1201. Therefore, 

several provisions of the Phase 1 Rule 

remain effective: provisions related to 

classifications for areas currently 

classified under subpart 2 of title I, part 

D, of the CAA as 1997 8-hour 

nonattainment areas; the applicable 

attainment dates; and the timing for 

emissions reductions needed for 

attainment. The June 8, 2007 decision 

also left intact the court’s rejection of 


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EPA’s reasons for implementing the 8- 

hour standard in certain nonattainment 

areas under subpart 1 in lieu of subpart 

2. By limiting the vacatur, the D.C. 

Circuit let stand EPA’s revocation of the 

1-hour standard and those antibacksliding provisions of the Phase 1 

Rule that had not been successfully 

challenged. 

The June 8, 2007 decision reaffirmed 

the December 22, 2006 decision that 

EPA had improperly failed to retain four 

measures required for 1-hour 

nonattainment areas under the antibacksliding provisions of the 

regulations: (1) Nonattainment area New 

Source Review (NSR) requirements 

based on an area’s 1-hour nonattainment 

classification; (2) Section 185 penalty 

fees for 1-hour severe or extreme 

nonattainment areas; (3) measures to be 

implemented pursuant to section 

172(c)(9) or 182(c)(9) of the Act, on the 

contingency of an area not making 

reasonable further progress toward 

attainment of the 1-hour NAAQS, or for 

failure to attain that NAAQS; and (4) 

certain transportation conformity 

requirements for certain types of Federal 

actions. The June 8, 2007 decision 

clarified that the court’s reference to 

conformity requirements was limited to 

requiring the continued use of 1-hour 

motor vehicle emissions budgets until 8- 

hour budgets were available for 8-hour 

conformity determinations. More 

recently, EPA issued new regulations 

regarding 1-hour ozone anti-backsliding 

requirements (see 77 FR 28424, May 14, 

2012) that were the subject of the court’s 

rulings. 

EPA previously concluded that the 

D.C. Circuit’s December 22, 2006 and 

June 8, 2007 decisions impose no 

impediment to moving forward with 

redesignation to attainment, when 

redesignation is appropriate under the 

relevant redesignation provisions of the 

CAA and longstanding policies 

regarding redesignation requests. 

III. What are the criteria for 

redesignation to attainment? 

The CAA provides the requirements 

for redesignating a nonattainment area 

to attainment. Specifically, section 

107(d)(3)(E) allows for redesignation 

provided that: 

(1) The Administrator determines that 

the area has attained the applicable 

NAAQS; 

(2) the Administrator has fully 

approved the applicable 

implementation plan for the area under 

section 110(k); 

(3) the Administrator determines that 

the improvement in air quality is due to 

permanent and enforceable reductions 

in emissions resulting from 

implementation of the applicable SIP 

and applicable Federal air pollutant 

control regulations and other permanent 

and enforceable reductions; 

(4) the Administrator has fully 

approved a maintenance plan for the 

area as meeting the requirements of 

section 175A; and 

(5) the state containing such area has 

met all requirements applicable to the 

area under section 110 and part D. 

EPA provided guidance on 

redesignation in the General Preamble 

for the Implementation of Title I of the 

CAA Amendments of 1990 on April 16, 

1992 (57 FR 13498), and supplemented 

this guidance on April 28, 1992 (57 FR 

18070). EPA has provided further 

guidance on processing redesignation 

requests in the following documents: 

‘‘Ozone and Carbon Monoxide Design Value 

Calculations,’’ Memorandum from William 

G. Laxton, Director Technical Support 

Division, June 18, 1990; 

‘‘Maintenance Plans for Redesignation of 

Ozone and Carbon Monoxide 

Nonattainment Areas,’’ Memorandum from 

G. T. Helms, Chief, Ozone/Carbon 

Monoxide Programs Branch, April 30, 

1992; 

‘‘Contingency Measures for Ozone and 

Carbon Monoxide (CO) Redesignations,’’ 

Memorandum from G. T. Helms, Chief, 

Ozone/Carbon Monoxide Programs Branch, 

June 1, 1992; 

‘‘Procedures for Processing Requests to 

Redesignate Areas to Attainment,’’ 

Memorandum from John Calcagni, 

Director, Air Quality Management 

Division, September 4, 1992; 

‘‘State Implementation Plan (SIP) Actions 

Submitted in Response to Clean Air Act 

(Act) Deadlines,’’ Memorandum from John 

Calcagni, Director, Air Quality 

Management Division, October 28, 1992; 

‘‘Technical Support Documents (TSDs) for 

Redesignation Ozone and Carbon 

Monoxide (CO) Nonattainment Areas,’’ 

Memorandum from G. T. Helms, Chief, 

Ozone/Carbon Monoxide Programs Branch, 

August 17, 1993; 

‘‘State Implementation Plan (SIP) 

Requirements for Areas Submitting 

Requests for Redesignation to Attainment 

of the Ozone and Carbon Monoxide (CO) 

National Ambient Air Quality Standards 

(NAAQS) on or After November 15, 1992,’’ 

Memorandum from Michael H. Shapiro, 

Acting Assistant Administrator for Air and 

Radiation, September 17, 1993; 

‘‘Use of Actual Emissions in Maintenance 

Demonstrations for Ozone and CO 

Nonattainment Areas,’’ Memorandum from 

D. Kent Berry, Acting Director, Air Quality 

Management Division, to Air Division 

Directors, Regions 1–10, November 30, 

1993; 

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

Requirements for Areas Requesting 

Redesignation to Attainment,’’ 

Memorandum from Mary D. Nichols, 

Assistant Administrator for Air and 

Radiation, October 14, 1994; and 

‘‘Reasonable Further Progress, Attainment 

Demonstration, and Related Requirements 

for Ozone Nonattainment Areas Meeting 

the Ozone National Ambient Air Quality 

Standard,’’ Memorandum from John S. 

Seitz, Director, Office of Air Quality 

Planning and Standards, May 10, 1995. 

IV. What Is EPA’s analysis of the State’s 

request? 

EPA is proposing to determine that 

the Southern NH area has met all 

applicable redesignation criteria under 

CAA section 107(d)(3)(E). The bases for 

EPA’s proposed approval of the 

redesignation request are discussed 

below. 

A. Has the Southern NH area attained 

the 1997 8-hour ozone NAAQS? 

On March 18, 2008 (73 FR 14387), 

EPA first determined that the Southern 

NH area attained the 1997 8-hour ozone 

NAAQS based on monitoring data for 

2002–2004. EPA determines that an area 

has attained the 1997 8-hour ozone 

NAAQS in accordance with 40 CFR 

50.10 and 40 CFR part 50, appendix I, 

based on three complete, consecutive 

calendar years of quality-assured air 

quality monitoring data. To attain this 

standard, the three-year average of the 

fourth-highest daily maximum 8-hour 

average ozone concentrations measured 

at each monitor within an area over 

each year must not exceed 0.08 ppm. 

Based on the rounding convention 

described in 40 CFR part 50, appendix 

I, the standard is attained if the design 

value is 0.084 ppm or below. The data 

must be collected and quality-assured in 

accordance with 40 CFR part 58, and 

recorded in EPA’s Air Quality System 

(AQS). The monitors generally should 

have remained at the same location for 

the duration of the monitoring period 

required for demonstrating attainment. 

In addition, on March 18, 2011 (76 FR 

14805), EPA determined that the 

Southern NH area attained the 1997 8- 

hour ozone NAAQS based on complete, 

quality-assured monitoring data for 

2007–2009. In the March 18, 2011 

action, EPA also determined that the 

Southern NH area attained the 1997 

ozone standard as of June 15, 2010, its 

applicable attainment date. 

The State of New Hampshire’s 

redesignation request that is the subject 

of this action, includes ozone data from 

1983–2010, and shows that the area has 

been in attainment since 2004 (see also 

73 FR 14387, March 18, 2008 and 76 FR 

14805, March 18, 2011). All ozone 

monitoring data have been qualityassured in accordance with 40 CFR 

58.10, recorded in the AQS database, 

and certified. The data also meet the 

completeness criteria in 40 CFR 50, 

appendix I, which requires a minimum 


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completeness of 75 percent annually 

and 90 percent over each three-year 

period. Monitoring data for the years 

2007 to 2011 is presented in Tables 1 

and 2 below. (The tables include several 

years of data for thoroughness; EPA 

previously determined this area attained 

the 1997 8-hour NAAQS (see 73 FR 

14387, March 18, 2008 and 76 FR 

14805, March 18, 2011).) The 2011 data 

were not included in the redesignation 

request, but have since been certified; 

thus, EPA is including them in this 

proposal to show that that the area 

continues to attain during the most 

recent three years of complete, qualityassured data for 2009–2011. Table 1 

shows, as determined on March 18, 

2011 (76 FR 14805), that the Southern 

NH area attained the 1997 ozone 

standard by its applicable attainment 

date. Table 2 shows that the Southern 

NH area continues to attain the 1997 

ozone standard. All sites are well below 

the 1997 8-hour NAAQS. 

TABLE 1—2007–2009 FOURTH-HIGH 8-HOUR AVERAGE OZONE CONCENTRATIONS AND 2007–2009 DESIGN VALUES

(PARTS PER MILLION) IN THE BOSTON-MANCHESTER-PORTSMOUTH (SE), NEW HAMPSHIRE AREA

Location AQS Site ID 4th high 

2007 

4th High 

2008 

4th High 

2009 

Design value 

(07–09) 

Manchester .......................................................................... 330110020 0.074 0.064 0.060 0.066 

Nashua ................................................................................. 330111011 0.081 0.067 0.066 0.071 

Portsmouth ........................................................................... 330150014 0.078 0.069 0.070 0.072 

Rye ....................................................................................... 330150016 0.086 0.075 0.068 0.076 

TABLE 2—2009–2011 FOURTH-HIGH 8-HOUR AVERAGE OZONE CONCENTRATIONS AND 2009–2011 DESIGN VALUES

(PARTS PER MILLION) IN THE BOSTON-MANCHESTER-PORTSMOUTH (SE), NEW HAMPSHIRE AREA

Location AQS Site ID 4th high 

2009 

4th High 

2010 

4th High 

2011 

Design Value 

(09–11) 

Manchester .......................................................................... 330110020 0.060 0.063 * N/A 

Londonderry ......................................................................... 330150018 ** ** 0.069 N/A 

Nashua ................................................................................. 330111011 0.066 0.065 0.066 0.066 

Portsmouth ........................................................................... 330150014 0.070 0.064 0.064 0.066 

Rye ....................................................................................... 330150016 0.068 0.066 0.066 0.066 

* Site moved to Londonderry; no 2009–2011 design values available. 

** New site; no 2009–2011 design values available. 

Preliminary data available for 2012 indicate that the area continues to attain. 

In addition, as discussed below with 

respect to the maintenance plan, the NH 

DES has committed to continue to 

operate an EPA-approved monitoring 

network in the area as necessary to 

demonstrate maintenance of the 

NAAQS. New Hampshire remains 

obligated to continue to quality-assure 

monitoring data in accordance with 40 

CFR part 58 and enter all data into the 

AQS in accordance with Federal 

guidelines. In summary, EPA proposes 

to find that the area has attained the 

1997 8-hour ozone NAAQS. 

B. Has the State of New Hampshire met 

all applicable requirements of Section 

110 and Part D and does the Southern 

NH area have a fully approved SIP 

under Section 110(k) of the CAA for 

purposes of redesignation to 

attainment? 

1. Requirements Under the 1997 8-Hour 

Ozone Standard 

With respect to the 1997 8-hour 

standard, the Southern NH area is 

classified under subpart 2. The June 8, 

2007 opinion clarifies that the Court did 

not vacate the Phase 1 Rule’s provisions 

with respect to classifications for areas 

under subpart 2. The Court’s decision 

therefore upholds EPA’s classifications 

for those areas classified under subpart 

2 for the 8-hour ozone standard. 

2. Requirements Under the 1-Hour 

Ozone Standard 

In its June 8, 2007 decision the DC 

Circuit limited its vacatur so as to 

uphold those provisions of the antibacksliding requirements that were not 

successfully challenged. Therefore, an 

area must meet the anti-backsliding 

requirements which apply by virtue of 

the area’s classification for the 1-hour 

ozone standard. See 40 CFR 51.900, et 

seq.; 70 FR 30592, 30604 (May 26, 

2005). As set forth in more detail below, 

the area must also address four 

additional anti-backsliding provisions 

identified by the court in its decisions. 

The anti-backsliding provisions at 40 

CFR 51.905(a)(1) prescribe 1-hour ozone 

standard requirements that continue to 

apply after revocation of the 1-hour 

ozone standard to former 1-hour ozone 

nonattainment areas that are also 

designated as nonattainment for the 

1997 8-hour standard. 40 CFR 

51.905(a)(1)(i) provides that the area 

remains subject to the obligation to 

adopt and implement the applicable 

requirements as defined in § 51.900(f), 

except as provided in § 51.905 (a)(1)(iii) 

of this section, and except as provided 

in paragraph (b) of § 51.905. 

40 CFR 51.900(f), as amended by 70 

FR 30592, 30604 (May 26, 2005), states 

that ‘‘applicable requirements’’ means 

for an area the following requirements 

to the extent such requirements apply or 

applied to the area for the area’s 

classification under section 181(a)(1) of 

the CAA for the 1-hour NAAQS at 

designation for the 8-hour NAAQS: 

• Reasonably available control 

technology (RACT). 

• Inspection and maintenance 

programs (I/M). 

• Major source applicability cut-offs 

for purposes of RACT. 

• Rate of Progress (ROP) reductions. 

• Stage II vapor recovery. 

• Clean fuels fleet program under 

section 182(c)(4) of the CAA. 

• Clean fuels for boilers under section 

182(e)(3) of the CAA. 

• Transportation Control Measures 

(TCMs) during heavy traffic hours as 

provided section 182(e)(4) of the CAA. 

• Enhanced (ambient) monitoring 

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

• Transportation controls under 

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

• Vehicle miles traveled provisions of 

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


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• NOX requirements under section 

182(f) of the CAA. 

• Attainment demonstration or an 

alternative as provided under 

§ 51.905(a)(1)(ii). 

• Contingency measures as provided 

under § 51.905(b). 

Pursuant to 40 CFR 51.905(c), the 

Southern NH area is subject to the 

obligations set forth in 40 CFR 51.905(a) 

and 40 CFR 51.900(f). 

In addition, the DC Circuit held that 

EPA should have retained four 

additional measures in its antibacksliding provisions: (1) 

Nonattainment area NSR; (2) section 185 

penalty fees; (3) contingency measures 

under section 172(c)(9) or 182(c)(9) of 

the Act; and (4) 1-hour MVEBs that were 

not yet replaced by 8-hour emissions 

budgets. EPA addressed portions of the 

court decision in a recent Federal 

Register notice (see 77 FR 28424, May 

14, 2012). For the New Hampshire 

request EPA has addressed these four 

requirements as follows: 

With respect to NSR, EPA has 

determined that an area being 

redesignated need not have an approved 

nonattainment NSR program, provided 

that the state demonstrates maintenance 

of the standard in the area without part 

D NSR in effect. The rationale for this 

view is described in a memorandum 

from Mary Nichols, Assistant 

Administrator for Air and Radiation, 

dated October 14, 1994, entitled, ‘‘Part 

D New Source Review Requirements for 

Areas Requesting Redesignation to 

Attainment.’’ This policy assumes that 

the state’s PSD program will become 

effective in the area immediately upon 

redesignation to attainment. 

Consequently EPA concludes that an 

approved NSR program is not an 

applicable requirement for purposes of 

redesignation. See the more detailed 

explanations in the following 

rulemakings: Detroit, Michigan (60 FR 

12467–12468, March 7, 1995); 

Cleveland-Akron-Lorrain, Ohio (61 FR 

20458, 20469–70, May 7, 1996); 

Louisville, Kentucky (66 FR 53665, 

53669, October 23, 2001); and Grand 

Rapids, Michigan (61 FR 31831, 31836– 

31837, June 21, 1996). Furthermore, 

New Hampshire has a fully approved 

NSR program. The New Hampshire NSR 

program was last approved on February 

6, 2012 (77 FR 5700). 

With regard to the requirement for 

section 185 source penalty fee programs, 

no portion of the Southern NH area was 

classified as severe or higher for the 1- 

hour ozone standard, and therefore the 

area is not subject to this requirement. 

With respect to the 1-hour MVEBs 

that were not yet replaced by 8-hour 

emissions budgets, the conformity 

portion of the court’s June 8, 2007 ruling 

clarified that, for those areas with 

MVEBs for the 1-hour ozone standard, 

anti-backsliding requires that these 

MVEBs be used for 8-hour conformity 

determinations until replaced by 

MVEBs for the 8-hour ozone standard. 

To meet this requirement, conformity 

determinations in such areas must 

comply with the applicable 

requirements of EPA’s conformity 

regulations at 40 CFR part 93. Note 

below that EPA is proposing to approve 

8-hour MVEBs contained in New 

Hampshire’s redesignation request and 

8-hour ozone maintenance plan for the 

Southern NH area. 

As stated above, in 1991, all cities and 

towns of what is now the Southern NH 

1997 8-hour ozone nonattainment area 

were designated nonattainment by 

operation of law and classified by EPA. 

The two largest of these areas, the 

Boston-Lawrence-Worcester, MA–NH 1- 

hour area and the Portsmouth-DoverRochester, NH 1-hour area were 

classified as serious ozone 

nonattainment areas 56 FR 56694 

(November 6, 1991). EPA previously 

approved the serious attainment 

demonstration SIP and its associated 

elements, e.g., attainment MVEBs and 

the Reasonably Available Control 

Measures (RACM) demonstration, for 

the Boston-Lawrence-Worcester, MA– 

NH 1-hour area (see 63 FR 67405, 

December 7, 1998; 67 FR 18493, April 

16, 2002; and 67 FR 72574, December 6, 

2002). As stated above, the PortsmouthDover-Rochester, NH 1-hour area 

attained the 1-hour NAAQS by 

November 15, 1999. See 77 FR 42470, 

July 19, 2012. Since this area attained 

the 1-hour standard by its attainment 

deadline there is not a need for 1-hour 

contingency measures. Also as stated 

above, the Manchester, NH 1-hour area 

attained the 1-hour standard by its 

attainment deadline. In addition, since 

the Manchester, NH 1-hour area was a 

marginal area it did not need to have 

contingency measures for failure to 

attain. Neither the Portsmouth-DoverRochester, NH 1-hour area, the BostonLawrence-Worcester, MA–NH 1-hour 

area, nor the Manchester, NH 1-hour 

area needed to have section 185 fees 

since they were not classified as severe 

or extreme. In conclusion, there are no 

outstanding 1-hour requirements for this 

area (see 77 FR 42470, July 19, 2012). 

We are proposing to determine that 

New Hampshire has met all currently 

applicable SIP requirements for 

purposes of redesignation of the 

Southern NH area to attainment of the 

1997 8-hour ozone standard under 

section 110 and part D of the CAA, in 

accordance with section 107(d)(3)(E)(v). 

We are also proposing to determine that 

the New Hampshire SIP, with the 

exception of the comprehensive 

emission inventory, certain RACT rules, 

and revisions to New Hampshire’s 

vehicle I/M program, is fully approved 

with respect to all applicable 

requirements for purposes of 

redesignation to attainment of the 1997 

8-hour ozone standard, in accordance 

with section 107(d)(3)(E)(ii) of the CAA. 

As discussed below, in this action, EPA 

is proposing to approve New 

Hampshire’s 2008 comprehensive 

emissions inventory as meeting the 

comprehensive emissions inventory 

requirement of section 182(a)(1) for the 

area. EPA is taking action on the New 

Hampshire RACT regulations and 

vehicle I/M program revisions in 

separate rules. Provided that the 

comprehensive emissions inventory, 

vehicle I/M program revisions, and 

RACT rules are approved on or before 

we complete final rulemaking approving 

the redesignation request, we determine 

here that, assuming that this occurs, 

New Hampshire will have met all 

applicable section 110 and part D SIP 

requirements of the CAA for purposes of 

approval of New Hampshire’s ozone 

redesignation requests for the Southern 

NH area. In making these 

determinations, we have ascertained 

what SIP requirements are applicable to 

the area for purposes of redesignation, 

and have determined that the portions 

of the SIP meeting these requirements 

are fully approved or will be fully 

approved under section 110(k) of the 

CAA by the time we complete final 

rulemaking on New Hampshire’s ozone 

redesignation requests for the Southern 

NH area. As discussed more fully below, 

SIPs must be fully approved only with 

respect to currently applicable 

requirements of the CAA. 

The September 4, 1992 Calcagni 

memorandum (see ‘‘Procedures for 

Processing Requests to Redesignate 

Areas to Attainment,’’ Memorandum 

from John Calcagni, Director, Air 

Quality Management Division, 

September 4, 1992) describes EPA’s 

interpretation of section 107(d)(3)(E) of 

the CAA. Under this interpretation, a 

state and the area it wishes to 

redesignate must meet the relevant CAA 

requirements that are due prior to the 

state’s submittal of a complete 

redesignation request for the area. See 

also the September 17, 1993 Michael 

Shapiro memorandum and 60 FR 12459, 

12465–66 (March 7, 1995) 

(redesignation of Detroit-Ann Arbor, 

Michigan to attainment of the 1-hour 

ozone NAAQS). Applicable 

requirements of the CAA that come due 


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subsequent to the state’s submittal of a 

complete request remain applicable 

until a redesignation to attainment is 

approved, but are not required as a 

prerequisite to redesignation. See 

section 175A(c) of the CAA. See Sierra 

Club v. EPA, 375 F.3d 537 (7th Cir. 

2004), and also 68 FR 25424, 25427 

(May 12, 2003) (redesignation of the St. 

Louis/East St. Louis area to attainment 

of the 1-hour ozone NAAQS). 

As noted in the Clean Data 

Determination for the area (see 76 FR 

14805, March 18, 2011), since EPA 

determined that the Southern NH area 

has attained the 1997 8-hour ozone 

standard, under 40 CFR 51.918, the 

requirements to submit certain planning 

SIPs related to attainment, including 

attainment demonstration requirements 

(the reasonably available control 

measure (RACM) requirement of section 

172(c)(1) of the CAA, the reasonable 

further progress (RFP) and attainment 

demonstration requirements of sections 

172(c)(2) and (6) and 182(b)(1) of the 

CAA, and the requirement for 

contingency measures of section 

172(c)(9) of the CAA) are not applicable 

to the area as long as it continues to 

attain the NAAQS and will cease to 

apply upon redesignation. In addition, 

in the context of redesignations, EPA 

has interpreted requirements related to 

attainment as not applicable for 

purposes of redesignation. For example, 

in the General Preamble, EPA stated 

that: 

[t]he section 172(c)(9) requirements are 

directed at ensuring RFP and attainment by 

the applicable date. These requirements no 

longer apply when an area has attained the 

standard and is eligible for redesignation. 

Furthermore, section 175A for maintenance 

plans provides specific requirements for 

contingency measures that effectively 

supersede the requirements of section 

172(c)(9) for these areas. ‘‘General Preamble 

for the Interpretation of Title I of the Clean 

Air Act Amendments of 1990,’’ (General 

Preamble) 57 FR 13498, 13564 (April 16, 

1992). 

See also Calcagni memorandum (dated 

September 4, 1992) on page 6. (‘‘The 

requirements for reasonable further 

progress and other measures needed for 

attainment will not apply for 

redesignations because they only have 

meaning for areas not attaining the 

standard.’’) 

3. Requirements of Section 110 and Part 

D of the CAA Applicable for Purposes 

of Redesignation for the 8-Hour NAAQS 

a. Section 110 and General SIP 

Requirements 

Section 110(a) of Title I of the CAA 

contains the general requirements for a 

SIP. Section 110(a)(2) provides that the 

implementation plan submitted by a 

State must have been adopted by the 

State after reasonable public notice and 

hearing, and, among other things, must: 

Include enforceable emission 

limitations and other control measures, 

means or techniques necessary to meet 

the requirements of the CAA; provide 

for establishment and operation of 

appropriate devices, methods, systems, 

and procedures necessary to monitor 

ambient air quality; provide for 

implementation of a source permit 

program to regulate the modification 

and construction of any stationary 

source within the areas covered by the 

plan; include provisions for the 

implementation of part C, Prevention of 

Significant Deterioration (PSD) and part 

D, NSR permit programs; include 

criteria for stationary source emission 

control measures, monitoring, and 

reporting; include provisions for air 

quality modeling; and provide for 

public and local agency participation in 

planning and emission control rule 

development. 

We believe that the section 110 

elements that are not connected with 

nonattainment plan submissions and 

not linked with an area’s attainment 

status are not applicable requirements 

for purposes of redesignation. A State 

remains subject to these requirements 

after an area is redesignated to 

attainment. Only the section 110 and 

part D requirements that are linked with 

a particular area’s designation and 

classification are the relevant measures 

which we may consider in evaluating a 

redesignation request. This approach is 

consistent with EPA’s existing policy on 

applicability of conformity and 

oxygenated fuels requirements for 

redesignation purposes, as well as with 

section 184 ozone transport 

requirements. See Reading, 

Pennsylvania, proposed and final 

rulemakings (61 FR 53174–53176 

October 10, 1996) and (62 FR 24826 

May 7, 1997); Cleveland-Akron-Lorain, 

Ohio, final rulemaking (61 FR 20458, 

May 7, 1996); and Tampa, Florida, final 

rulemaking (60 FR 62748 December 7, 

1995). See also the discussion on this 

issue in the Cincinnati, Ohio 1-hour 

ozone redesignation (65 FR 37890 June 

19, 2000), and in the Pittsburgh, 

Pennsylvania 1-hour ozone 

redesignation (66 FR 50399 October 19, 

2001). 

We have reviewed New Hampshire’s 

SIP and have concluded that it meets 

the general SIP requirements under 

section 110 of the CAA, to the extent 

they are applicable for purposes of 

redesignation. EPA has previously 

approved provisions of the New 

Hampshire SIP addressing section 110 

elements under the 1-hour ozone 

standard. See Table 3 below. All the 

VOC and NOX control measures listed 

in Table 3 are permanent and 

enforceable controls that will remain in 

place following redesignation. 

TABLE 3—LIST OF NEW HAMPSHIRE CONTROL MEASURES FOR VOLATILE ORGANIC COMPOUNDS AND OXIDES OF

NITROGEN

[Ozone precursors] 

Name of control measure Type of measure Approval status 

On-board Refueling Vapor Recovery ............................... federal rule ......................... Promulgated at 40 CFR part 86. 

Federal Motor Vehicle Control program ........................... federal rule ......................... Promulgated at 40 CFR part 86. 

Heavy Duty Diesel Engines (On-road) ............................. federal rule ......................... Promulgated at 40 CFR part 86. 

Federal Non-road Heavy Duty diesel engines ................. federal rule ......................... Promulgated at 40 CFR part 89. 

Federal Non-road Gasoline Engines ................................ federal rule ......................... Promulgated at 40 CFR part 90. 

Federal Marine Engines ................................................... federal rule ......................... Promulgated at 40 CFR part 91. 

AIM Surface Coatings ....................................................... federal rule ......................... Promulgated at 40 CFR part 59. 

Automotive Refinishing ..................................................... federal rule ......................... Promulgated at 40 CFR part 59. 

Consumer & commercial products ................................... federal rule ......................... Promulgated at 40 CFR part 59. 

Inspection & Maintenance ................................................ CAA SIP Requirement ....... SIP approved (66 FR 1868; 1/10/01). 

NOX RACT ........................................................................ CAA SIP Requirement ....... SIP approved (62 FR 17087; 4/9/97). 

VOC RACT pursuant to sections 182(a)(2)(A) and 

182(b)(2)(B) of CAA.

CAA SIP Requirement ....... SIPs approved (63 FR 67405; 12/17/98); (63 FR 

11600; 3/10/98); (58 FR 4902; 1/19/93); (58 FR 

29973; 5/25/93). 


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1The on-road mobile source emissions estimates 

found in the SNH redesignation request includes 

emissions reductions achieved as a result of the 

implementation of the revised New Hampshire 

motor vehicle I/M program; thus New Hampshire’s 

revised I/M program should be approved into the 

SIP prior to, or in conjunction with, final action on 

the SNH redesignation request. 

TABLE 3—LIST OF NEW HAMPSHIRE CONTROL MEASURES FOR VOLATILE ORGANIC COMPOUNDS AND OXIDES OF

NITROGEN—Continued 

[Ozone precursors] 

Name of control measure Type of measure Approval status 

VOC RACT pursuant to section 182(b)(2)(A) and (C) of 

CAA.

CAA SIP Requirement ....... SIPs approved (67 FR 48034; 7/23/02); (65 FR 42290; 

7/10/2000); (63 FR 11600; 3/10/98). 

Stage II Vapor Recovery .................................................. CAA SIP Requirement ....... SIP approved (63 FR 67405; 12/7/98). 

Reformulated Gasoline ..................................................... state opt-in ......................... SIP approved (63 FR 67405; 12/7/98). 

National Low Emission Vehicle ........................................ state opt-in ......................... SIP approved (65 FR 12476; 3/9/00). 

Clean Fuel Fleets ............................................................. CAA SIP Requirement ....... SIP approved (64 FR 52434; 9/29/99). 

New Source Review ......................................................... CAA SIP Requirement ....... SIP approved (66 FR 39100; 7/27/01). 

Base Year Emissions Inventory ....................................... CAA SIP Requirement ....... SIP approved (62 FR 55521; 10/27/97). 

15% VOC Reduction Plan ................................................ CAA SIP Requirement ....... SIP approved (63 FR 67405; 12/7/98). 

9% rate of progress plan .................................................. CAA SIP Requirement ....... SIP approved (67 FR 18547; 4/16/02). 

Emissions Statements ...................................................... CAA SIP Requirement ....... SIP approved (63 FR 11600; 3/10/98). 

Enhanced Monitoring (PAMS) .......................................... CAA Requirement .............. SIP approved (62 FR 55521; 10/27/97). 

OTC NOX MOU Phase II and III ...................................... state initiative ..................... SIP approved (64 FR 29567; 6/2/99). 

Stage II Vapor Recovery or comparable measures section 184(b)(2) CAA requirement.CAA SIP requirement ......... SIP approved (64 FR 52434; 9/29/1999). 

The requirements of section 110(a)(2), 

however, are statewide requirements 

that are not linked to the 8-hour ozone 

nonattainment status of the Southern 

NH area. Therefore, EPA concludes that 

these infrastructure SIP elements are not 

applicable requirements for purposes of 

review of the state’s 8-hour ozone 

redesignation request. Nevertheless, in a 

submittal dated December 14, 2007, 

New Hampshire confirmed that the state 

meets the section 110 requirements for 

the 1997 8-hour ozone standard. EPA 

approved the New Hampshire 110(a)(2) 

SIP submittal on July 8, 2011, at 76 FR 

40248, for the following elements: 

110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), 

(H), (J), (K), (L), and (M). 

b. Part D SIP Requirements 

EPA has reviewed the New 

Hampshire SIP for the Southern NH area 

with respect to SIP requirements 

applicable for purposes of redesignation 

under part D of the CAA for both the 1- 

hour ozone NAAQS and the 1997 8- 

hour ozone NAAQS. EPA believes that 

the New Hampshire SIP for the 

Southern NH area contains approved 

SIP measures that meet the part D 

requirements applicable for purposes of 

redesignation. EPA has approved most 

of the required Part D elements. EPA 

plans to take final action on revisions to 

New Hampshire’s vehicle I/M program,1

and certain RACT rules prior to, or in 

conjunction with, final action on the 

Southern NH redesignation request. In 

addition EPA is proposing to approve 

the 2008 comprehensive emissions 

inventory, discussed in section IV.D.2.a. 

of this rulemaking. Upon final approval 

of New Hampshire’s I/M program 

revisions, RACT rules, and the 2008 

comprehensive emissions inventory, the 

Southern NH area will meet all of the 

requirements applicable to the area 

under part D for purposes of 

redesignation. 

EPA has determined that, if EPA 

finalizes the approval of New 

Hampshire’s I/M program, discussed 

below, requirements for RACT, and the 

2008 comprehensive emissions 

inventory, discussed in section 

VII.D.2.a. of this rulemaking, the New 

Hampshire SIP will meet the SIP 

requirements applicable for purposes of 

redesignation under part D of the CAA 

for the Southern NH area. Subpart 1 of 

part D, found in sections 172–176 of the 

CAA, sets forth the basic nonattainment 

requirements applicable to all 

nonattainment areas. Subpart 2 of part 

D, which includes section 182 of the 

CAA, establishes additional specific 

requirements depending on the area’s 

nonattainment classification. 

The applicable subpart 1 

requirements are contained in sections 

172(c)(1)–(9) and in section 176. The 

applicable subpart 2 requirements are 

contained in sections 182(a) and (b) 

(marginal and moderate nonattainment 

area requirements). 

Subpart 1 Section 172 Requirements 

For purposes of evaluating this 

redesignation request, the applicable 

section 172 SIP requirements for the 

Southern NH area are contained in 

sections 172(c)(1)–(9). A thorough 

discussion of the requirements 

contained in section 172 can be found 

in the General Preamble for 

Implementation of Title I (57 FR 13498, 

April 16, 1992). 

Section 172(c)(1) requires the plans 

for all nonattainment areas to provide 

for the implementation of all RACM as 

expeditiously as practicable and to 

provide for attainment for the national 

primary ambient air quality standards. 

EPA interprets this requirement to 

impose a duty on states containing 

nonattainment areas to consider all 

available control measures and to adopt 

and implement such measures as are 

reasonably available for implementation 

in each area as components of the area’s 

attainment demonstration. Because 

attainment has been reached in the 

Southern NH area, no additional 

measures are needed to provide for 

attainment and section 172(c)(1) 

requirements are no longer considered 

to be applicable as long as the area 

continues to attain the standard until 

redesignation. See 40 CFR 51.918. 

The RFP requirement under section 

172(c)(2) is defined as progress that 

must be made toward attainment. This 

requirement is not relevant for purposes 

of redesignation because the Southern 

NH area has met the 1997 8-hour ozone 

NAAQS (see General Preamble, 57 FR 

13564, April 16, 1992). See also 40 CFR 

51.918. In addition, because the 

Southern NH area has attained the 

ozone NAAQS and is no longer subject 

to an RFP requirement, the section 

172(c)(9) contingency measures are not 

applicable for purposes of 

redesignation. Id. 

Section 172(c)(3) requires submission 

and approval of a comprehensive, 

accurate and current inventory of actual 

emissions. This requirement was 

superseded by the inventory 

requirement in section 182(a)(1) 

discussed below. 


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2See Final Rule to Implement the 8-Hour Ozone 

National Ambient Air Quality Standard—Phase 2 

(the Phase 2 Rule) (70 FR 71612; November 29, 

2005). 

Section 172(c)(4) requires the 

identification and quantification of 

allowable emissions for major new and 

modified stationary sources in an area, 

and section 172(c)(5) requires source 

permits for the construction and 

operation of new and modified major 

stationary sources anywhere in the 

nonattainment area. 

New Hampshire has a fully approved 

NSR program (77 FR 5700, February 6, 

2012). Even if New Hampshire did not 

have a fully approved NSR program, 

EPA has interpreted the section 184 

Ozone Transport Region (OTR) 

requirements, including NSR, as not 

being applicable for purposes of 

redesignation. The rationale for this is 

based on two factors. First, the 

requirement to submit SIP revisions for 

the section 184 requirements continues 

to apply to areas in the OTR after 

redesignation to attainment. Therefore, 

the State remains obligated to have New 

Source Review even after redesignation. 

Second, the section 184 control 

measures are region-wide requirements 

and do not apply to the area by virtue 

of its designation and classification. See 

61 FR 53174, 53175–53176 (October 10, 

1996) and 62 FR 24826, 24830–32 (May 

7, 1997). Thus, EPA proposes to find 

that the Southern NH area has satisfied 

all 8-hour ozone standard requirements 

applicable for purposes of section 

107(d)(3)(E) under Part D of the CAA. 

Section 172(c)(6) requires the SIP to 

contain control measures necessary to 

provide for attainment of the standard. 

Because attainment has been reached, 

no additional measures are needed to 

provide for attainment. 

Section 172(c)(7) requires the SIP to 

meet the applicable provisions of 

section 110(a)(2). As noted above, we 

believe the New Hampshire SIP meets 

the requirements of section 110(a)(2) for 

purposes of redesignation. 

Subpart 1, Section 176 Conformity 

Requirements 

Section 176(c) of the CAA requires 

states to establish criteria and 

procedures to ensure that Federallysupported or funded activities, 

including highway projects, conform to 

the air quality planning goals in the 

applicable SIPs. The requirement to 

determine conformity applies to 

transportation plans, programs and 

projects developed, funded or approved 

under title 23 of the U.S. Code and the 

Federal Transit Act (transportation 

conformity) as well as to all other 

Federally-supported or funded projects 

(general conformity). State conformity 

revisions must be consistent with 

Federal conformity regulations relating 

to consultation, enforcement, and 

enforceability, which EPA promulgated 

pursuant to CAA requirements. 

EPA interprets the conformity SIP 

requirements as not applying for 

purposes of evaluating the redesignation 

request under section 107(d) for two 

reasons. First, the requirement to submit 

SIP revisions to comply with the 

conformity provisions of the CAA 

continues to apply to areas after 

redesignation to attainment, since such 

areas would be subject to a section 175A 

maintenance plan. Second, EPA’s 

Federal conformity rules require the 

performance of conformity analyses in 

the absence of Federally-approved state 

rules. Therefore, because areas are 

subject to the conformity requirements 

regardless of whether they are 

redesignated to attainment and, because 

they must implement conformity under 

Federal rules if state rules are not yet 

approved, it is reasonable to view these 

requirements as not applying for 

purposes of evaluating a redesignation 

request. See Wall v. EPA, 265 F.3d 426 

(6th Cir. 2001), upholding this 

interpretation. See also 60 FR 62748, 

62749–62750 (December 7, 1995) 

(Tampa, Florida). 

EPA approved New Hampshire’s EnvA 1500 general conformity SIP on 

August 16, 1999 (64 FR 44417). New 

Hampshire submitted a revised Env-A 

1500 Transportation Conformity SIP on 

December 9, 2011. New Hampshire has 

submitted onroad MVEBs for the 

Southern NH area of 17.8 tons per 

summer weekday (tpswd) VOC and 37.2 

tpswd NOX for the year 2008, and 9.2 

tpswd VOC and 11.8 tpswd NOX for the 

year 2022. 

The area must use the MVEBs from 

the maintenance plan in any conformity 

determination that is effective on or 

after the effective date of the 

maintenance plan approval. MVEBs are 

discussed further in section V. 

Subpart 2 Section 182(a) and (b) 

Requirements 

Comprehensive Emissions Inventory. 

Section 182(a)(1) requires the 

submission of a comprehensive 

emissions inventory. New Hampshire 

submitted both a 2002 comprehensive 

emissions inventory to EPA on June 7, 

2007 and a 2008 emissions inventory 

with its redesignated request. As 

discussed below in section VII, EPA is 

proposing to approve the 2008 

emissions inventory as meeting the 

section 182(a)(1) comprehensive 

emissions inventory requirement. 

Emissions Statements. EPA approved 

New Hampshire’s emission statement 

SIP, as required by section 182(a)(3)(B), 

on March 10, 1998 (63 FR 11600). 

Reasonable Further Progress and 

Attainment Demonstration. For the 

reasons set forth earlier in this notice, 

because the Southern NH area has 

attained the 1997 8-hour ozone NAAQS, 

the requirements of section 182(b)(1) do 

not apply. 

VOC and NOX RACT Requirements. 

Section 182(b)(2) requires states with 

moderate nonattainment areas to adopt 

RACT under section 172(c)(1) with 

respect to each of the following: (1) All 

sources covered by a Control 

Technology Guideline (CTG) document 

issued between November 15, 1990, and 

the date of attainment; (2) all sources 

covered by a CTG issued prior to 

November 15, 1990; and, (3) all other 

major non-CTG stationary sources. In 

addition, Section 182(f) establishes NOX

requirements for ozone nonattainment 

areas. As required under the 1-hour 

ozone standard, New Hampshire 

submitted, and EPA approved, NOX and 

VOC RACT regulations into the New 

Hampshire SIP. See 62 FR 17092, April 

9, 1997; 63 FR 11600, March 10, 1998; 

and 67 FR 48036, July 23, 2002. 

In addition, under the 1997 8-hour 

ozone standard, moderate and above 

ozone nonattainment areas, and areas in 

the OTR, were required to submit RACT 

SIPs. As noted in the EPA’s Phase 2 

ozone implementation rule,2 the RACT 

submittal for the 1997 8-hour ozone 

standard was due from New Hampshire 

on September 16, 2006. See 40 CFR 

51.916(b)(2). On January 28, 2008, New 

Hampshire submitted a SIP revision to 

EPA consisting of a certification that it 

met RACT for purposes of the 1997 8- 

hour ozone standard. EPA plans to take 

final action on New Hampshire’s RACT 

certification, prior to, or in conjunction 

with, final action on the Southern NH 

redesignation request. 

Furthermore, subsequent to the RACT 

submittal due date for the 1997 8-hour 

ozone standard, EPA issued additional 

CTGs, covering various VOC source 

categories. Specifically, on October 5, 

2006, EPA issued four new CTGs (71 FR 

58745). Then, on October 9, 2007, EPA 

issued three more CTGs (72 FR 57215). 

Lastly, on October 7, 2008, EPA issued 

an additional four CTGs (73 FR 58841). 

The State of New Hampshire submitted 

its SIP revision for all eleven 2006, 

2007, and 2008 CTGs in one SIP 

revision package on July 26, 2011. EPA 

plans to take final action on New 

Hampshire’s submittal for the 2006, 

2007, and 2008 CTGs, prior to, or in 


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3The OTC includes the states of Connecticut, 

Delaware, Maine, Maryland, Massachusetts, New 

Hampshire, New Jersey, New York, Pennsylvania, 

Rhode Island, Vermont, and Virginia, and the 

District of Columbia. 

4The NOX Budget Program involves an allowance 

trading system which harnesses free market forces 

to reduce pollution, similar to the U.S. EPA’s Acid 

Rain Program. Under this program, budget sources 

were allocated allowances by their state 

governments. Each allowance permits a source to 

emit one ton of NOX during the control period (May 

through September) for which it is allocated or any 

later control period. Allowances may be bought, 

sold, or banked. Any person may acquire 

allowances and participate in the trading system. 

Each budget source must comply with the program 

by demonstrating at the end of each control period 

that actual emissions do not exceed the amount of 

allowances held for that period. However, 

regardless of the number of allowances a source 

holds, it cannot emit at levels that would violate 

other federal or state limits (e.g., NSPS, Title IV, 

NOX RACT). 

conjunction with, final action on the 

Southern NH redesignation request. 

Stage II Vapor Recovery. Section 

182(b)(3) requires states to submit Stage 

II rules no later than November 15, 

1992. New Hampshire became subject to 

the Stage II vapor recovery requirements 

under the 1-hour ozone standard. EPA 

approved New Hampshire’s Stage II rule 

on December 7, 1998 (63 FR 67405). In 

addition, since New Hampshire is in the 

OTR, the State must meet the CAA 

Section 184(b)(2) Stage II or comparable 

measures requirement. EPA approved 

New Hampshire’s Stage II or comparable 

measures SIP on September 9, 1999 (64 

FR 52434). 

On May 16, 2012 (77 FR 28772), EPA 

issued a final rulemaking determining 

that onboard refueling vapor recovery 

technology is in widespread use across 

the motor vehicle fleet for purposes of 

controlling motor vehicle refueling 

emissions. The May 16, 2012 

rulemaking waives the requirement for 

states to implement Stage II vapor 

recovery systems at gasoline dispensing 

facilities in nonattainment areas 

classified as Serious and above for the 

ozone NAAQS. The May 16, 2012 

rulemaking allows a state to remove its 

Stage II vapor recovery program as of a 

date certain, if the state revises its SIP 

to satisfy the requirements of CAA 

sections 110(l), 184(b)(2), and 193, as 

applicable. In addition, on August 7, 

2012, EPA issued guidance, ‘‘Guidance 

on Removing Stage II Gasoline Vapor 

Control Programs from State 

Implementation Plans and Assessing 

Comparable Measures,’’ in order to 

assist states with addressing the SIP 

CAA requirements if a state moves 

forward with the phase out of its Stage 

II vapor recovery program. New 

Hampshire has recently revised its State 

regulation to eliminate the requirement 

for gasoline dispensing facilities to 

implement Stage II vapor recovery 

systems as of January 1, 2012. The State 

has not yet submitted the revised rule to 

EPA as a SIP revision. NH DES is 

currently developing a SIP revision to 

address the phase out of the State’s 

Stage II vapor recovery program in 

accordance with EPA’s May 16, 2012 

rulemaking and August 7, 2012 

guidance. The Stage II phase out is a 

separate action from this redesignation 

request. The maintenance plan included 

in New Hampshire’s redesignation 

request is, however, consistent with the 

planned Stage II phase out SIP revision. 

Specifically, emission estimates for 

2022 do not include any emission 

reductions from Stage II vapor recovery 

controls. 

Vehicle Inspection and Maintenance 

(I/M). EPA’s final I/M regulations in 40 

CFR part 85 required the states to 

submit a fully adopted I/M program by 

November 15, 1993. New Hampshire 

became subject to the motor vehicle I/ 

M requirements under the 1-hour ozone 

standard. EPA approved New 

Hampshire’s enhanced I/M program on 

January 10, 2001 (66 FR 1868). On April 

5, 2001, EPA issued ‘‘Amendments to 

Vehicle Inspection and Maintenance 

Program Requirements Incorporating the 

On-Board Diagnostics Check’’ (65 FR 

18156). The revised I/M rule requires 

that electronic checks of the On-Board 

Diagnostics (OBD2) system be 

conducted as part of states’ motor 

vehicle I/M programs. Subsequently, 

New Hampshire revised its I/M program 

regulations to include OBD2 testing of 

1996 and newer motor vehicles. New 

Hampshire submitted a SIP revision, for 

its OBD2 I/M program, to EPA on 

November 17, 2011. EPA has not yet 

taken final action on the revised I/M SIP 

but plans to do so prior to the final 

approval of this redesignation request. 

Thus, as discussed above, with 

approval of the comprehensive 

emissions inventory, certain RACT 

rules, and New Hampshire’s revised I/ 

M program, the Southern NH area will 

satisfy the requirements applicable for 

purposes of redesignation under section 

110 and part D of the CAA. 

C. Is the air quality improvement in the 

Southern NH area due to permanent 

and enforceable reductions in 

emissions? 

EPA proposes to find that the state 

has demonstrated that the observed air 

quality improvement in the Southern 

NH area is due to permanent and 

enforceable reductions in emissions 

resulting from implementation of the 

SIP, Federal measures, and other stateadopted measures, listed in Table 3 

above. As shown in the state’s submittal 

and supported by EPA rulemaking (see 

73 FR 14387, March 18, 2008 and 76 FR 

14805, March 18, 2011) the area first 

came into attainment of the 1997 8-hour 

ozone standard based on ozone data for 

2002–2004. The area has remained in 

attainment and the air quality has 

improved in the area. The area is now 

attainment for the more stringent 2008 

8-hour ozone NAAQS (77 FR 30088, 

May 21, 2012). Attainment is the direct 

result of permanent and enforceable 

emission reductions and not favorable 

meteorology or economic downturn. 

New Hampshire’s redesignation 

request documents a substantial 

emission reduction in ozone precursor 

emissions both in upwind states and 

within New Hampshire. For example, 

the state’s request notes that in light of 

the OTC’s NOX budget program and the 

EPA’s NOX SIP call, NOX emissions 

from budget sources declined by 62% 

between 2000 and 2008. Additionally, 

the emission inventories for New 

Hampshire show that between 2002 

(one of the ozone seasons on which the 

area’s nonattainment designation was 

based) and 2008, an attainment year, instate NOX and VOC emissions were 

reduced by approximately 68 tons per 

day and 51 tons per day, respectively. 

The following summary from the New 

Hampshire redesignation request (see 

pages 23–24) gives one example of the 

magnitude of emission reductions the 

area has experienced over the past two 

decades. 

The observed improvement in air quality 

would not have occurred without the 

concerted efforts of EPA and the Ozone 

Transport Commission (OTC) to reduce the 

emitted amounts of both pollutants across the 

region. In September 1994, the OTC member 

states 3 adopted a memorandum of 

understanding to achieve regional NOX

emission reductions. Phase I began with the 

installation of RACT, followed in Phases II 

and III by the development and 

implementation of regulations to achieve 

further reductions in ozone-season NOX

emissions by 1999 and 2003, respectively. 

The second and third phases were modeled 

on the cap-and-trade principle and resulted 

in the creation of the OTC NOX Budget 

Program.4 This program established a de 

facto NOX emission rate of 0.15 lbs/MMBtu 

for participating electric generating units and 

large industrial boilers. Rules for New 

Hampshire’s participation in the OTC NOX

Budget Program are codified at Chapter EnvA 3200. In the midst of these efforts, in 1998, 

EPA issued a final rule aimed at reducing the 

regional transport of NOX and ozone. This 

rule, commonly known as the NOX SIP Call, 

required 22 eastern states and the District of 

Columbia (not including New Hampshire) to 

reduce ozone-season NOX emissions. 

Compliance with the NOX SIP call began on 

May 1, 2003, for the participating OTC 


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5The NOX SIP Call superseded Phase III of the 

OTC NOX Budget Program. Maine, New Hampshire, 

and Vermont were not participating states. 

6The NOX Budget Trading Program established 

under the NOX SIP Call is separate and distinct 

from the OTC NOX Budget Program. 

7USEPA, The NOX Budget Trading Program: 2008 

Highlights, December 2008; available at http:// 

www.epa.gov/airmarkt/progress/NBP_4.html. 

8The court’s judgment is not final, as of Sept. 30, 

2012, as the mandate has not yet been issued. 

states 5 and on May 31, 2004, for states 

outside the Ozone Transport Region. 

Although the NOX SIP Call provided states 

with the flexibility to design their own 

programs to meet the NOX reduction 

requirements, all affected states chose to 

participate in a regional cap-and-trade 

program.6 The NOX SIP Call and the NOX

Budget Trading Program (NBP) have had a 

major effect on reducing regional transport of 

this pollutant. EPA data show that total 

ozone-season NOX emissions from all NBP 

sources fell from 1,256,000 tons in 2000 to 

481,000 tons in 2008.7 (That is a 61% 

reduction in NOX.) 

The New Hampshire submittal 

contains a discussion of meteorology as 

it affects ozone levels (see Attachment 

A). This analysis shows that the 

downward trend in New Hampshire’s 

ozone levels is a direct result of 

emission reductions and not favorable 

meteorology. EPA believes that New 

Hampshire has adequately 

demonstrated that the air quality 

improvement in the Southern NH area 

is due to permanent and enforceable 

reductions in emissions resulting from 

implementation of the SIP and 

applicable federal air pollution control 

regulations and other permanent and 

enforceable reductions, and not other 

factors such as favorable meteorology or 

economic downturn. 

The recent D.C. Circuit decision on 

the Cross-State Air Pollution Rule 

(Transport Rule), EME Homer 

Generation LP v. EPA, No. 11–1302 

(D.C. Cir., August 21, 2012) 8 does not 

disturb EPA’s determination that it is 

appropriate to move forward with this 

redesignation. The air quality modeling 

analysis conducted for the Transport 

Rule demonstrates that the Southern NH 

Area would be able to attain the 1997 

8-hour ozone NAAQS even in the 

absence of either the Clean Air Interstate 

Rule (CAIR) or the Transport Rule. See 

‘‘Air Quality Modeling Final Rule 

Technical Support Document,’’ App. B, 

B–18, B–19. Nothing in the D.C. 

Circuit’s August 2012 decision disturbs 

or calls into question that conclusion or 

the validity of the air quality analysis on 

which it is based. More importantly, the 

Transport Rule is not relevant to this 

redesignation, since the Transport Rule 

only addressed emissions in 2012 and 

beyond. The Southern NH area has been 

in attainment since 2004 (see 73 FR 

14387, March 18, 2008), well before the 

Transport rule and also before CAIR (see 

70 FR 25162, May 12, 2005) was an 

enforceable control measure. As such, 

the status of CAIR is irrelevant and does 

not impact our conclusion that the 

Southern NH area can be redesignated. 

Moreover, in its August 2012 decision, 

the Court also ordered EPA to continue 

implementing CAIR. See EME Homer 

Generation LP v. EPA, slip op. at 60. In 

sum, neither the current status of CAIR 

nor the current status of the Transport 

Rule affects any of the criteria for 

proposed approval of this redesignation 

request for the Southern NH area. 

D. Does the Southern NH area have a 

fully approved maintenance plan 

pursuant to Section 175A of the CAA? 

In conjunction with its request to 

redesignate the Southern NH 

nonattainment area to attainment status, 

New Hampshire submitted a SIP 

revision to provide for the maintenance 

of the 1997 8-hour ozone NAAQS in the 

Southern NH area until 2022. 

1. Maintenance Plan Requirements 

Section 175A of the CAA sets forth 

the elements of a maintenance plan for 

areas seeking redesignation from 

nonattainment to attainment. Under 

section 175A, the plan must 

demonstrate continued attainment of 

the applicable NAAQS for at least ten 

years after the Administrator approves a 

redesignation to attainment. Eight years 

after the redesignation, the State must 

submit a revised maintenance plan 

which demonstrates that attainment will 

continue to be maintained for the ten 

years following the initial ten-year 

period. To address the possibility of 

future NAAQS violations, the 

maintenance plan must contain such 

contingency measures, with a schedule 

for implementation as EPA deems 

necessary to assure prompt correction of 

any future 8-hour ozone violations. 

Section 175A of the CAA sets forth the 

elements of a maintenance plan for 

areas seeking redesignation from 

nonattainment to attainment. The 

Calcagni memorandum dated September 

4, 1992, provides additional guidance 

on the content of a maintenance plan. 

An ozone maintenance plan should 

address the following provisions: 

(a) An attainment emissions inventory 

for both VOC and NOX; 

(b) A maintenance demonstration 

showing maintenance for the ten years 

of the maintenance period; 

(c) A commitment to maintain the 

existing monitoring network; 

(d) Factors and procedures to be used 

for verification of continued attainment; 

and 

(e) Contingency measures as to correct 

future violations of the NAAQS. 

2. EPA’s Analysis of the Southern NH 

Maintenance Plan 

a. Attainment Emissions Inventory 

An attainment inventory includes the 

emissions during the time period 

associated with the monitoring data 

showing attainment. An attainment 

inventory year of 2008 was used for the 

Southern NH area since it is a year for 

which monitors within the area showed 

attainment, and is also a year for which 

New Hampshire prepared a 

comprehensive inventory pursuant to 

the requirements of 40 CFR Part 51, 

Subpart A. The 2008 inventory is 

consistent with EPA guidance and is 

based on actual ‘‘typical summer day’’ 

emissions of VOC and NOX during 2008. 

New Hampshire prepared 

comprehensive VOC and NOX emissions 

inventories for the Southern NH area, 

including point, area, mobile on-road, 

and mobile non-road sources for their 

2008 attainment inventory. To develop 

the NOX and VOC base-year emission 

inventories, New Hampshire used the 

following approaches and sources of 

data: 

Point source emissions—New 

Hampshire requires owners and 

operators of larger facilities to submit 

annual production figures and emission 

calculations each year. Data for the 

point source emissions inventory was 

collected by this and several other 

means, including direct reporting by 

facilities to the NH DES pursuant to the 

state’s emission statement requirements, 

permit requirements, and from data 

collected during site visits by field 

engineers. Quality assurance checks 

were performed on the source emission 

estimates, and comparisons made to 

prior year estimates. 

Area source emissions—Area source 

emissions are generally estimated by 

multiplying an emission factor by some 

known indicator or collective activity 

for each area source category at the 

county level. New Hampshire estimates 

emissions from area sources using 

primarily the methodologies described 

within the EPA’s Emissions Inventory 

Improvement Program (EIIP). 

Throughput estimates are derived from 

county-level activity data, by 

apportioning national and statewide 

activity data to counties, from census 

numbers, and from county employee 

numbers. County employee numbers are 

based upon North American Industry 

Classification System (NAICS) codes to 

establish that those numbers are specific 

to the industry covered. 


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On-road mobile sources—New 

Hampshire used EPA’s Motor Vehicle 

Emissions Simulator (MOVES) to 

estimate highway vehicle emissions for 

2008. Estimates of vehicle miles 

traveled (VMT) by vehicle type and 

roadway type were obtained from the 

relevant Metropolitan Planning 

Organization within the Southern NH 

area. 

Nonroad mobile emissions—The 2008 

emissions for the majority of nonroad 

emission source categories were 

estimated using the EPA NONROAD 

2008a model. The NONROAD model 

estimates emissions for diesel, gasoline, 

liquefied petroleum gasoline, and 

compressed natural gas-fueled nonroad 

equipment types and includes growth 

factors. The NONROAD model does not 

estimate emissions from aircraft, 

locomotives, or commercial marine 

vessels (CMVs). For 2008 locomotive 

and commercial marine emissions, New 

Hampshire used standard EPA 

recommended emission estimation 

methodologies. For 2008 aircraft and 

airport ground service equipment, New 

Hampshire used the Federal Aviation’s 

Agency’s Emissions and Dispersion 

Modeling System (EDMS). The 2008 

attainment year VOC and NOX

emissions for the Southern NH area are 

summarized along with the 2012 and 

2022 projected emissions for this area in 

Table 4. The downward emissions trend 

demonstrates that the NAAQS should be 

maintained for this area. EPA has 

concluded that New Hampshire has 

adequately derived and documented the 

2008 attainment year and projected year 

VOC and NOX emissions for this area. 

New Hampshire’s 2008 inventory 

VOC and NOX emissions was developed 

on a tons per summer weekday basis, 

and is summarized in Table 4 below. 

b. Maintenance Demonstration 

New Hampshire’s March 2, 2012 SIP 

submittal, as amended September 21, 

2012, includes a 10-year maintenance 

plan for the Southern NH area as 

required by section 175A of the Act. 

This plan demonstrates maintenance by 

showing that future emissions of VOC 

and NOX remain at or below attainment 

year emission levels. A maintenance 

demonstration need not be based on 

modeling. See Wall v. EPA, 265 F.3d 

426 (6th Cir. 2001), Sierra Club v. EPA, 

375 F. 3d 537 (7th Cir. 2004). See also 

66 FR 53094, 53099–53100 (October 19, 

2001), 68 FR 25430–25432 (May 12, 

2003). 

New Hampshire used 2008 as the base 

year, 2012 as the current year, and 2022 

as the last year of the maintenance plan. 

(In addition, per 40 CFR Part 93, a 

MVEB must be established for the last 

year of the maintenance plan. MVEBs 

are discussed in Section V below.) Table 

4 shows the emissions inventories for 

2008, 2012, and 2022, from New 

Hampshire’s September 21, 2012 

amended submittal for the Southern NH 

area. The emissions inventory shows a 

downward trend in precursor emissions 

from 2008 through 2012, and continuing 

on until 2022. By 2022, VOC emissions 

are expected to decrease by 13 percent 

and NOX emissions to decrease by 48 

percent. Analysis of the anticipated 

trend in emissions is a requirement of 

a maintenance plan. New Hampshire’s 

submittal provides such documentation 

and demonstrates that a significant 

downward trend in emissions will 

occur. New Hampshire has fulfilled this 

maintenance plan requirement. 

TABLE 4—ATTAINMENT (2008), CURRENT (2012) AND MAINTENANCE (2022) INVENTORIES FOR THE SOUTHERN NH 

NONATTAINMENT AREA

[Pounds per summer week day] 

Source category 

VOC NOX

2008 2012 2022 2008 2012 2022 

Point ................................................................................. 5,762 5,288 6,605 24,289 21,665 22,742 

Area .................................................................................. 55,871 57,885 70,195 6,528 6,243 6,432 

Onroad ............................................................................. 35,666 28,470 18,410 74,352 51,204 23,558 

Nonroad ........................................................................... 33,512 26,863 19,152 31,364 26,121 17,670 

Total .......................................................................... 130,811 118,506 114,362 136,533 105,223 70,402 

Change from 2008 ........................................................... .................... ¥12,305 ¥16,449 .................... ¥31,310 ¥66,131 

c. Monitoring Network 

There are currently 4 monitors 

measuring ozone in the Southern NH 

area. In the maintenance plan, the State 

of New Hampshire has committed to 

continue to monitor ozone levels 

according to an EPA-approved 

monitoring plan. New Hampshire 

remains obligated to continue to quality 

assure monitoring data in accordance 

with 40 CFR part 58 and enter all data 

into the AQS in accordance with federal 

guidelines. New Hampshire has 

therefore addressed the requirement for 

continued ozone monitoring in this 

area. 

d. Verification of Continued Attainment 

The state has the legal authority to 

enforce and implement the 

requirements of the ozone maintenance 

plan. This includes the authority to 

adopt, implement, and enforce any 

subsequent emission control 

contingency measures determined to be 

necessary to correct future ozone 

attainment problems. To implement the 

ozone maintenance plan, the state will 

continue to monitor ozone levels in the 

area. New Hampshire has also 

committed to track the progress of the 

maintenance demonstration by 

periodically updating their emission 

inventory. New Hampshire has 

committed to do this annually. The 

update will be based, in part, on the 

annual update of the National Emissions 

Inventory (NEI), and will indicate new 

source growth and other changes from 

the attainment inventory, including any 

changes in vehicle miles traveled or in 

traffic patterns, as well as any changes 

in MOVES or its successor. 

e. The Maintenance Plan’s Contingency 

Measures 

The contingency plan provisions are 

designed to promptly correct a violation 

of the NAAQS that might occur after 

redesignation. Section 175A of the Act 

requires that a maintenance plan 

include such contingency measures as 

EPA deems necessary to assure that the 

state will promptly correct a violation of 

the NAAQS that occurs after 

redesignation. The maintenance plan 

should identify the contingency 

measures to be adopted, a schedule and 

procedure for adoption and 

implementation, and a time limit for 

action by the state. The state should also 


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9 It should be noted that New Hampshire’s 

December 2011 proposed redesignation request that 

was subject to public comment also included 

modeling runs with Stage II vapor controls turned 

off for 2012 and 2022. However, the final 

redesignation request submitted on March 2, 2012 

did not include such provisions. This was corrected 

in the supplement submitted on September 21, 

2012. 

identify specific indicators to be used to 

determine when the contingency 

measures need to be implemented. The 

maintenance plan must include a 

requirement that the state will 

implement all measures with respect to 

control of the pollutant that were 

contained in the SIP before 

redesignation of the area to attainment. 

See Section 175A(d). 

As required by section 175A of the 

CAA, the NH DES has committed to the 

following procedure. At the conclusion 

of each ozone season, the NH DES will 

evaluate whether the design value for 

the Southern NH area is above or below 

the 1997 8-hour ozone standard. If the 

design value is above the standard, the 

NH DES will evaluate the potential 

causes of this design value increase. The 

NH DES will examine whether this 

increase is due to an increase in local 

in-state emissions or an increase in 

upwind out-of-state emissions. If an 

increase in in-state emissions is 

determined to be a contributing factor to 

the design value increase, New 

Hampshire will evaluate the projected 

in-state emissions for the Southern NH 

area for the ozone season in the 

following year. If in-state emissions are 

not expected to satisfactorily decrease in 

the following ozone season, in order to 

mitigate the violation, New Hampshire 

will implement one or more of the 

contingency measures listed in this 

section, or substitute a new VOC or NOx 

control measure(s) to achieve additional 

in-state emissions reductions. 

As stated in New Hampshire’s 

redesignation submittal (see page 42): 

The contingency measures(s) will be 

selected by the Governor or the Governor’s 

designee within 6 months of the end of the 

ozone season for which contingency 

measures have been determined needed. New 

Hampshire will then initiate a course of 

action to implement enforceable control 

measure(s) to rectify the problem. New 

rulemaking, when required, can typically be 

adopted and implemented within a 12-month 

timeframe. NHDES will update the 

maintenance plan as necessary and develop 

and implement required regulations as soon 

as practicable within the guidelines 

established in the New Hampshire 

Administrative Procedures Act, but no later 

than 18 months after selection of the 

appropriate measure. 

Possible contingency measures 

include: Additional controls for NOx at 

ICI Boilers (at Major Point Sources); 

additional controls on Emulsified 

Asphalt Paving operations for VOC; and 

additional controls on Consumer 

Products to lower VOC emissions 

(details can be found in the New 

Hampshire request see pages 41 to 45). 

In addition, NH DES is evaluating other 

potential NOx and VOC control 

measures that could be applied, if 

necessary, to further reduce ozone levels 

in the maintenance area. These control 

measures are listed in Table 6.4 of the 

New Hampshire request, along with the 

previously mentioned contingency 

measures for boilers, asphalt paving, 

and consumer products. 

For the foregoing reasons, EPA 

believes that the Southern NH area 

maintenance plan adequately addresses 

the five basic components of a 

maintenance plan: Attainment 

inventory; maintenance demonstration; 

monitoring network; verification of 

continued attainment; and a 

contingency plan. Therefore, EPA is 

proposing to approve the maintenance 

plan SIP revision submitted by New 

Hampshire for the Southern NH area as 

meeting the requirements of CAA 

section 175A. 

V. How are MVEBs developed and what 

is an adequacy determination? 

Under the CAA, states are required to 

submit, at various times, control strategy 

SIPs and maintenance plans in ozone 

areas. These control strategy SIPs (e.g., 

reasonable further progress SIPs and 

attainment demonstration SIPs) and 

maintenance plans create MVEBs based 

on on-road mobile source emissions for 

criteria pollutants and/or their 

precursors to address pollution from 

cars and trucks. Per 40 CFR part 93, a 

MVEB is established for the last year of 

the maintenance plan. The MVEB is the 

portion of the total allowable emissions 

that is allocated to highway and transit 

vehicle use that, together with 

emissions from other sources in the 

area, will provide for attainment or 

maintenance. The MVEB serves as a 

ceiling on emissions from an area’s 

planned transportation system. The 

MVEB concept is further explained in 

the preamble to the November 24, 1993, 

transportation conformity rule (58 FR 

62188). The preamble also describes 

how to establish the MVEB in the SIP 

and revise the MVEB. 

Under section 176(c) of the CAA, new 

transportation projects, such as the 

construction of new highways, must 

‘‘conform’’ to (i.e., be consistent with) 

the part of the state’s air quality plan 

that addresses pollution from cars and 

trucks. ‘‘Conformity’’ to the SIP means 

that transportation activities will not 

cause new air quality violations, worsen 

existing violations, or delay timely 

attainment of the national ambient air 

quality standards or an interim 

milestone. If a transportation plan does 

not ‘‘conform,’’ most new projects that 

would expand the capacity of roadways 

cannot go forward. Regulations at 40 

CFR part 93 set forth EPA policy, 

criteria, and procedures for 

demonstrating and assuring conformity 

of such transportation activities to a SIP. 

When reviewing submitted ‘‘control 

strategy’’ SIPs or maintenance plans 

containing MVEBs, EPA must 

affirmatively find the MVEB budget 

contained therein ‘‘adequate’’ for use in 

determining transportation conformity. 

Once EPA affirmatively finds the 

submitted MVEB is adequate for 

transportation conformity purposes, that 

MVEB can be used by state and federal 

agencies in determining whether 

proposed transportation projects 

‘‘conform’’ to the SIP as required by 

section 176(c) of the Act. EPA’s 

substantive criteria for determining 

‘‘adequacy’’ of an MVEB are set out in 

40 CFR 93.118(e)(4). 

VI. What is the status of EPA’s 

adequacy determination for the area’s 

MVEBs for 2022? 

The Southern NH area’s attainment 

plan and 10-year maintenance plan 

submission contains new VOC and NOX

MVEBs for the years 2008 and 2022. The 

availability of the SIP submission with 

these 2008 and 2022 MVEBs was 

announced for public comment on 

EPA’s adequacy web page on March 5, 

2012, at: www.epa.gov/otaq/ 

stateresources/transpconfor/ 

adequacy.htm. The EPA public 

comment period on adequacy of the 

2008 and 2022 MVEBs for the Southern 

NH area closed on April 4, 2012. EPA 

did not receive any adverse comments. 

EPA New England sent a letter to the 

New Hampshire Department of 

Environmental Services on April 25, 

2012, stating that the 2008 and 2022 

motor vehicle emissions budgets in the 

March 2, 2012 SIP submittal are 

adequate. 

On September 21, 2012, the New 

Hampshire Department of 

Environmental Services submitted 

minor amendments to the SIP revision 

entitled ‘‘Request for Redesignating the 

Boston-Manchester-Portsmouth (SE), 

NH 8-Hour (1997 Standard) Ozone 

Nonattainment Area.’’ One of these 

minor changes was running the 

MOVES2010b model with Stage II vapor 

controls turned off for 2012 and 2022 to 

generate new 2012 and 2022 on-road 

mobile VOC emissions.9 This reflects 

the fact that New Hampshire’s Stage II 


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65164 Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Proposed Rules 

vapor recovery program will no longer 

be providing emissions reductions as of 

January 1, 2012. See section IV of this 

notice. Turning off Stage II vapor 

controls in future years increased the 

2022 onroad motor vehicle VOC 

emissions by 581 pounds per summer 

weekday. This increase in onroad VOC 

emissions increased the 2022 VOC 

MVEB from 8.9 tpswd (previously 

determined adequate) to 9.2 tpswd. 

The NH DES utilized the MOVES2010 

model to calculate on-road emissions of 

VOC and NOX for the Southern NH 8- 

hour nonattainment area. New 

Hampshire is establishing motor vehicle 

emissions budgets for the last year of the 

Southern NH area’s 8-hour ozone 

maintenance plan (year 2022) at 9.2 

tpswd of VOC and 11.8 tpswd of NOX. 

These on-road mobile source emissions 

when added to emissions from all other 

inventory sources (stationary, other 

mobile (i.e., non-road, marine vessels, 

airplanes, locomotives) and area 

sources) result in year 2022 emissions 

inventories lower than the year 2008 

attainment emissions inventory. New 

Hampshire is also establishing 2008 

motor vehicle emissions budgets of 17.8 

tpswd of VOC and 37.2 tpswd of NOX. 

As part of its redesignation request, 

NHDES has requested that EPA 

withdraw the SIP-approved 2009 

MVEBs prepared using MOBILE6.2 and 

replace them with the submitted 2008 

MVEBs prepared using MOVES2010. 

The 2008 and 2022 adequate emissions 

budgets, once approved by EPA, will 

continue to be used for future 

transportation conformity 

determinations. 

VII. Proposed Actions 

EPA is proposing to approve (1) the 

redesignation of the Southern New 

Hampshire 8-hour ozone nonattainment 

area from nonattainment to attainment 

for the 1997 8-hour ozone NAAQS. EPA 

has evaluated the State of New 

Hampshire’s redesignation request and 

is proposing to approve it as meeting the 

redesignation requirements in section 

107(d)(3)(E) of the CAA provided that 

EPA finalizes approvals of emissions 

inventories under section 182(a)(1), 

certain RACT requirements, and New 

Hampshire’s Vehicle I/M SIP revision. 

The final approval of this redesignation 

request would change the official 

designation for the Southern New 

Hampshire ozone nonattainment area 

from nonattainment to attainment for 

the 1997 8-hour ozone standard. EPA is 

also proposing to approve the 175A 

maintenance plan SIP revision for the 

Southern NH 8-hour area, including the 

2008 and 2022 MVEBs submitted by 

New Hampshire. EPA is proposing to 

withdraw the SIP-approved 2009 

MVEBs prepared using MOBILE6.2 and 

replace them with the new 2008 MVEBs 

included in the maintenance plan. In 

addition, in this notice EPA is 

proposing to approve the 2008 

comprehensive emissions inventory for 

the Southern NH area under CAA 

section 182(a)(1). EPA is soliciting 

public comments on the issues 

discussed in this document. These 

comments will be considered before 

taking final action. 

VIII. Statutory and Executive Order 

Reviews 

Under the CAA, redesignation of an 

area to attainment and the 

accompanying approval of a 

maintenance plan under section 

107(d)(3)(E) are actions that affect the 

status of a geographical area and do not 

impose any additional regulatory 

requirements on sources beyond those 

imposed by state law. A redesignation to 

attainment does not in and of itself 

create any new requirements, but rather 

results in the applicability of 

requirements contained in the CAA for 

areas that have been redesignated to 

attainment. Moreover, the Administrator 

is required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, these actions do 

not impose additional requirements 

beyond those imposed by state law and 

the CAA. For that reason, these actions: 

• Are not ‘‘significant regulatory 

actions’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Do not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Are certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Do not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Do not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Are not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Are not a significant regulatory 

action subject to Executive Order 13211 

(66 FR 28355, May 22, 2001); 

• Are not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Do not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because 

redesignation is an action that affects 

the status of a geographical area and 

does not impose any new regulatory 

requirements on tribes, impact any 

existing sources of air pollution on 

tribal lands, nor impair the maintenance 

of ozone national ambient air quality 

standards in tribal lands. 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 

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

Dated: October 15, 2012. 

H. Curtis Spalding, 

Regional Administrator, EPA New England. 

[FR Doc. 2012–26210 Filed 10–24–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 26 

[Docket No. OST–2012–0147] 

RIN 2105–AE08 

Disadvantaged Business Enterprise: 

Program Implementation Modifications 

AGENCY: Office of the Secretary (OST), 

DOT. 

ACTION: Notice of Proposed Rulemaking 

(NPRM); Correction; Extension of 

Comment Period. 


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