40074 Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Rules and Regulations 

Periodic means occurring or recurring 

at regular intervals. Each lessee must 

specify the intervals for periodic 

training and periodic assessment of 

training needs in their training 

programs. 

Production safety includes measures, 

practices, procedures, and equipment to 

ensure safe, accident-free, and 

pollution-free production operations, as 

well as installation, repair, testing, 

maintenance, and operation of surface 

and subsurface safety equipment. 

Production operations include, but are 

not limited to, separation, dehydration, 

compression, sweetening, and metering 

operations. 

* * * * * 

[FR Doc. E9–19204 Filed 8–10–09; 8:45 am] 

BILLING CODE 4310–MR–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 50 and 51 

[EPA–HQ–OAR–2008–0419, FRL–8943–3] 

RIN 2060–AP96 

Implementation of the 1997 8-Hour 

Ozone National Ambient Air Quality 

Standard: Addressing a Portion of the 

Phase 2 Ozone Implementation Rule 

Concerning Reasonable Further 

Progress Emissions Reductions 

Credits Outside Ozone Nonattainment 

Areas 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

revise a portion of its Phase 2 

implementation rule for the 8-hour 

ozone National Ambient Air Quality 

Standard (NAAQS or standard) for 

which the Agency had sought a 

voluntary remand from the U.S. Circuit 

Court of Appeals for the District of 

Columbia Circuit. The Court granted 

EPA’s request by remanding and 

vacating that portion of the rule. 

Specifically, this rule addresses an 

interpretation that allowed certain 

credits toward reasonable further 

progress (RFP) for the 8-hour standard 

from emissions reductions outside the 

nonattainment area. 

DATES: This rule is effective on October 

13, 2009. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2008–0419. All 

documents in the docket are listed in 

http://www.regulations.gov. Although 

listed in the index, some information is 

not publicly available, i.e., Confidential 

Business Information (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 http:// 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket and 

Information Center in the EPA 

Headquarters Library, Room Number 

3334 in the EPA West Building, located 

at 1301 Constitution Ave., NW., 

Washington, DC. The Public Reading 

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

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744. 

FOR FURTHER INFORMATION CONTACT: For 

further information on the this final rule 

contact: Ms. Denise Gerth, Office of Air 

Quality Planning and Standards, (C539– 

01), U.S. EPA, Research Triangle Park, 

North Carolina 27711, telephone 

number (919) 541–5550 or by e-mail at 

gerth.denise@epa.gov, fax number (919) 

541–0824; or Mr. John Silvasi, Office of 

Air Quality Planning and Standards, 

U.S. Environmental Protection Agency, 

(C539–01), Research Triangle Park, NC 

27711, telephone number (919) 541– 

5666, fax number (919) 541–0824 or by 

e-mail at silvasi.john@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does This Action Apply to Me? 

Entities potentially affected directly 

by this action include state, local, and 

tribal governments. Entities potentially 

affected indirectly by this rule include 

owners and operators of sources of 

emissions [volatile organic compounds 

(VOCs) and nitrogen oxides (NOx)] that 

contribute to ground-level ozone 

concentrations. 

B. Where Can I Get a Copy of This 

Document and Other Related 

Information? 

A copy of this document and other 

related information is available from the 

docket EPA–HQ–OAR–2008–0419. 

C. How Is This Notice Organized? 

The information presented in this 

notice is organized as follows: 

I. General Information 

A. Does This Action Apply to Me? 

B. Where Can I Get a Copy of This 

Document and Other Related 

Information? 

C. How Is This Notice Organized? 

II. What is the Background for This Rule? 

A. Proposed Regulatory Interpretation of 

the Phase 2 Rule To Address RFP 

Emission Credits Outside Ozone 

Nonattainment Areas 

III. This Action 

A. Background 

B. Final Rule 

C. Comments and Responses 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Determination Under Section 307(d) 

II. What Is the Background for This 

Rule? 

A. Proposed Regulatory Interpretation of 

the Phase 2 Rule To Address RFP 

Emission Credits Outside Ozone 

Nonattainment Areas 

On July 21, 2008 (73 FR 42294), EPA 

published a proposed rule to revise its 

regulatory interpretation of the Phase 2 

implementation rule for the 8-hour 

ozone NAAQS to address the U.S. 

Circuit Court of Appeals for the District 

of Columbia Circuit’s vacatur and 

remand of that portion of the 

interpretation of the Phase 2 

implementation rule for which EPA had 

asked for a voluntary remand. The 

proposal addressed a provision that 

allowed credit toward RFP for the 8- 

hour NAAQS from emission reductions 

outside the nonattainment area. Readers 

should refer to the proposed rule for 

additional background on this action, 

including the final Phase 2 ozone 

implementation rule and the Court’s 

vacatur and remand of the provision 

allowing credit for emissions reductions 

outside a nonattainment area for the 

purposes of RFP for the 8-hour NAAQS. 

III. This Action 

A. Background 

In the Phase 2 Rule to implement the 

8-hour ozone NAAQS, EPA set forth an 

interpretation that stated that credits 

could be taken for emissions reductions 

from a source outside the nonattainment 


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1Transportation conformity is required under 

CAA section 176(c) to ensure that federally 

supported transportation plans, programs, and 

highway and transit projects are consistent with the 

purpose of the SIP. 

area provided that emissions from these 

sources were included in the baseline 

for calculating the percent reduction 

needed. 70 FR 71612. However, 

emissions from other sources outside 

the nonattainment area did not have to 

be included in the baseline if they did 

not provide RFP credit for the 

nonattainment area. The regulatory 

interpretation stated that certain 

additional conditions must be met for 

such reductions to qualify for credit, 

including that credit could be taken for 

VOCs and NOX emissions reductions 

within 100 kilometers (km) and 200 km 

respectively, and there must be a 

demonstration that the emissions from 

outside the nonattainment area had an 

impact on air quality levels within the 

nonattainment area. 

The Natural Resources Defense 

Council (NRDC) filed a petition for 

review of the Phase 2 Rule including the 

implementation of the statutory 

provisions regarding RFP. After briefing 

had concluded in this case, EPA 

published its final rule implementing 

the NAAQS for fine particulate matter 

(the ‘‘PM2.5 Implementation Rule’’) 72 

FR 20586 (April 25, 2007). Because the 

PM2.5 Implementation Rule significantly 

modified the interpretation regarding 

credits for emissions outside the 

nonattainment area, EPA requested a 

voluntary remand from the Court on 

July 17, 2007, to consider whether to 

revise the Phase 2 implementation rule 

to be consistent with the provisions in 

the PM2.5 rule. In response, the U.S. 

Court of Appeals for the District of 

Columbia Circuit vacated and remanded 

that portion of the Phase 2 Rule which 

provided credit under the 8-hour ozone 

RFP requirement for VOCs and NOX

emission reductions from outside a 

nonattainment area. EPA proposed to 

revise its regulatory interpretation of the 

RFP provisions in the Phase 2 Rule to 

be consistent with its regulatory 

interpretation of the RFP provisions in 

the PM2.5 Implementation Rule. 73 FR 

42294 (July 21, 2008). 

EPA received seven comments on this 

proposed rule. A few commenters 

supported the proposal while others 

opposed the action we proposed. The 

commenters addressed the following 

topics: requested clarification on how 

the rule affects general conformity and 

whether the transportation conformity 

determinations are only required within 

the nonattainment areas; stated that 

nonattainment areas should be 

expanded to include areas that 

contribute to nonattainment as required 

under section 107(d) of the Clean Air 

Act (CAA) rather than allowing areas to 

take credit outside of their 

nonattainment for RFP reductions; 

requested assurance that the rules do 

not allow substitution of NOX to meet 

the 15 percent VOC reduction 

requirement; stated that the rule lacks 

mechanisms for addressing 

overwhelming transport in State 

Implementation Plan (SIP) 

requirements; stated that the proposed 

rule flouts the language and purpose of 

the CAA and is arbitrary and that EPA 

fails to offer a lawful or rational 

justification for the proposal, etc. 

Detailed responses to these comments 

are in section C under Comments and 

Responses. 

B. Final Rule 

Following its stated objective in the 

request for a voluntary remand, EPA reevaluted its interpretation of the RFP 

provision and is taking final action to 

revise the earlier interpretation as 

proposed on July 21, 2008 (73 FR 42294) 

which is consistent with the provisions 

in the PM2.5 Implementation Rule (72 

FR 20636). Consequently if the state 

justifies consideration of precursor 

emissions for an area outside the 

nonattainment area, EPA will expect 

state RFP assessments to reflect 

emissions changes from all sources in 

this area. The state must include all 

sources, not just some selected sources, 

for the area providing emission 

reductions in the calculation of either 

(a) the RFP baseline from which to 

calculate the percent reduction needed 

for RFP or (b) the reductions obtained 

that would be credited toward the RFP 

requirement and the analysis of whether 

the reductions from areas outside the 

nonattainment area would contribute to 

decreases in ozone levels in the 

nonattainment area. Also, the 

justification for considering emissions 

outside the nonattainment area will 

include justification of the state’s 

selection of the area used in the RFP 

plan for each pollutant. As is the case 

with the PM2.5 rule, if a state justifies 

consideration of precursor emissions for 

an area outside the nonattainment area, 

EPA expects state RFP assessments to 

reflect emissions changes from all 

sources in the area. The state cannot 

include only selected sources providing 

emission reductions in the analysis. The 

inventories for 2002, 2009, 2012 (where 

applicable) and the attainment year 

would all reflect the same source 

domain, i.e., the same set of sources 

except for the addition of any known 

new sources or removal of known, 

permanently shut down sources. 

In cases where the state justifies 

consideration of emissions of one or 

both of the ozone precursors (i.e.,VOC 

and NOX) from outside the 

nonattainment area, states must provide 

separate information regarding on-road 

mobile source emissions within the 

nonattainment area for transportation 

conformity purposes.1 However, this 

final rule does not change existing 

statutory requirements that 

transportation conformity 

determinations are only required within 

the nonattainment area boundary. The 

CAA section 176(c)(5) and EPA’s 

transportation conformity regulations 

(40 CFR 93.102(b)) only require 

conformity determinations in 

nonattainment and maintenance areas, 

and these requirements rely on SIP onroad motor vehicle emission budgets 

that address on-road emissions within 

the boundary of the designated 

nonattainment area. For this reason and 

consistent with the PM2.5

Implementation Rule (72 FR 20636), if 

the state addresses emissions outside 

the nonattainment area for an ozone 

precursor, the on-road mobile source 

component of the RFP inventory will 

not satisfy the requirements for 

establishing a SIP budget for 

transportation conformity purposes. In 

such a case, the state must supplement 

the RFP inventory with an inventory of 

on-road mobile source emissions to be 

used to establish a motor vehicle 

emissions budget for transportation 

conformity purposes. This inventory 

must: (1) Address on-road motor vehicle 

emissions that occur only within the 

designated nonattainment area, (2) 

provide for the same milestone year or 

years as the RFP demonstration, and (3) 

satisfy other applicable requirements of 

the transportation conformity 

regulations (40 CFR part 93). As long as 

the state provides this separate 

emissions budget and conformity is 

determined to that budget, EPA believes 

that this approach will optimally 

address both the RFP and the 

transportation conformity provisions of 

the CAA. 

In addition, we interpret this final 

rule to restrict the use of emission 

reductions for RFP credit to areas within 

the state, except in the case of multistate nonattainment areas, and only then 

would allow RFP reductions from 

outside the state to be credited from 

outside the nonattainment area if the 

states involved develop and submit a 

coordinated RFP plan. EPA expects 

states with multi-state nonattainment 

areas to consult with other involved 

states, to formulate a list of the measures 

that they will adopt and the measures 


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2For example, Memorandum of March 28, 2002, 

from John S. Seitz, ‘‘Boundary Guidance on Air 

Quality Designations for the 8-Hour Ozone National 

Ambient Air Quality Standards.’’ 

that the other state(s) will adopt, and 

then to adopt their list of measures 

under the assumption that the other 

state(s) will adopt their listed measures. 

Each state would be responsible for 

adopting and thereby providing for 

enforcement of its list of measures, and 

then that state and ultimately EPA (at 

such time as the plan is approved) 

would be responsible for assuring 

compliance with the SIP requirements 

which is an approach consistent with 

the approach for RFP in the PM2.5

Implementation rule. (72 FR 20640). 

C. Comments and Responses 

Comments Supporting EPA’s Approach 

1. Comment: One commenter noted 

that, in the Phase 2 Ozone 

Implementation Rule (70 FR 71648, 

November 29, 2005), EPA stated that 

modeling analyses relating to the NOX

SIP call demonstrate that significant 

contribution to nonattainment results 

not only from source emissions within 

a nonattainment area but also from 

source emissions over a much broader 

area. The commenter agrees that 

allowing states to take credit for 

reductions from sources outside of their 

nonattainment areas may help reduce 

ozone levels in the nonattainment area 

and believes that reductions from 

outside the nonattainment area are 

sometimes necessary to attain the 

standard. 

EPA Response: The EPA agrees with 

commenter. The preamble to the final 

Phase 2 rule explains that the rationale 

for allowing emission reduction credits 

from outside the nonattainment area for 

RFP purposes is based on modeling 

analyses that showed that emissions 

from outside the nonattainment area 

could affect the nonattainment area and 

that emission reductions from upwind 

of a nonattainment area will help the 

nonattainment area achieve progress 

toward attainment. 70 FR 71648; 61 FR 

65758 (December 13, 1996), and 

Memorandum of December 29, 1997 

from Richard D. Wilson to Regional 

Administrators, Regions I–X entitled: 

‘‘Guidance for Implementing the 1–Hour 

Ozone and Pre-Existing PM10 NAAQS’’ 

(the 1997 Policy) located at URL: http:// 

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

iig.pdf. 

2. Comment: One commenter 

supports the proposal to revise the 

interpretation for crediting emissions 

reductions from outside a 

nonattainment area for RFP to be 

analogous with the provision in the 

PM2.5 Implementation Rule. 

Specifically, the commenter supports 

the portion of the proposal that allows 

RFP reductions from outside the state to 

be credited from outside the 

nonattainment area if states develop a 

coordinated RFP plan as part of their 

SIPs. 

EPA Response: The EPA agrees with 

commenter. The EPA by this action 

makes the RFP provisions regarding 

credits from emission reductions 

outside the nonattainment area in the 

context of the ozone NAAQS consistent 

with the interpretation in the context of 

the PM2.5 NAAQS with respect to multistate areas. 

Clarification Requested on How This 

Rule Affects General Conformity 

3. Comment: One commenter 

appreciates EPA’s efforts in the proposal 

to clarify that a state may no longer 

include only selected sources from an 

area outside of a nonattainment area for 

emissions reduction credit in the SIP. 

The commenter also appreciates EPA’s 

efforts to address how the proposed rule 

affects transportation conformity. The 

commenter requests that EPA provide 

clarity on how the proposed rule affects 

general conformity requirements and 

determinations in the final rule. 

EPA Response: This regulatory 

interpretation does not affect the 

requirement for federal agencies to 

demonstrate conformity with SIPs. 

These requirements stem from section 

176(c) of the CAA. Implementing 

regulations published by EPA (40 CFR 

93.150 -160) provide for when and how 

federal agencies can make these 

determinations. EPA discussed 

transportation conformity in the 

proposal only to clarify that it applies 

only within nonattainment areas and to 

facilitate development of appropriate 

budgets for use in areas that take rate of 

progress (ROP) credit from outside the 

nonattainment area. 

Nonattainment Areas Should Be 

Expanded To Include Contributing 

Sources 

4. Comment: One commenter is 

opposed to the revision because it is 

contrary to the CAA. Section 

107(d)(1)(A)(i) of the CAA requires the 

designation as nonattainment for ‘‘any 

area that does not meet (or that 

contributes to ambient air quality in a 

nearby area that does not meet) the 

national primary or secondary ambient 

air quality standard for that pollutant.’’ 

The CAA requires that instead of 

allowing an area that is contributing to 

the nonattainment area to be used to 

demonstrate RFP goals, the designated 

nonattainment area must be expanded 

to include that area. A commenter also 

feels that the proposal illegally 

circumvents the statutory designation 

provisions by allowing states to 

selectively claim credit for reductions 

from outside areas without subjecting 

those areas to the full range of 

safeguards mandated by Congress for 

such areas. 

EPA Response: As a threshold matter, 

EPA is not taking any action through 

this regulatory interpretation to 

establish procedures for designating or 

not designating areas. The designations 

process for each NAAQS generally 

provides guidance on how to determine 

nonattainment areas. Under CAA 

section 107 (d)(1)(A) an area is 

designated ‘‘nonattainment’’ if it does 

not meet the NAAQS or is a ‘‘nearby’’ 

area that contributes to ambient air 

quality in an area that is violating the 

NAAQS.2

As the Agency explained in the final 

preamble to the Phase 2 rule, the CAA 

does not specify a distance that is 

‘‘nearby’’ or a specific level of emissions 

that is deemed to ‘‘contribute to’’ 

nonattainment (70 FR at 71648). EPA 

also did not establish a hard-and-fast set 

of rules to determine which areas are 

‘‘nearby’’ or ‘‘contribute to’’ 

nonattainment. Instead, in guidance 

EPA listed a broad set of factors for 

states and EPA to consider in 

determining the boundaries of each 

nonattainment area. As for the comment 

that EPA is circumventing the statutory 

designations provisions by not 

subjecting the outside areas to all the 

requirements for nonattainment areas, 

EPA believes that since these areas are 

not necessarily ‘‘nearby’’ for 

designations purposes, it is not 

appropriate to subject these areas to all 

of the requirements for nonattainment 

areas. In this rule EPA is allowing 

emissions reductions outside a 

nonattainment area that benefits the 

nonattainment area to be considered for 

credit in emission reductions for ROP 

purposes. Whether an area is ‘‘nearby’’ 

for purposes of designations is an issue 

that would be considered on a case-bycase basis when the area is initially 

designated nonattainment. 

Clarification Requested That 

Transportation Conformity Only 

Applies in the Nonattainment Area 

5. Comment: One state transportation 

agency requested clarification in the 

final rule that transportation conformity 

only applies inside the nonattainment 

area. 

EPA Response: EPA’s final rule does 

not change existing statutory 

requirements that transportation 


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Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Rules and Regulations 40077 

conformity determinations are only 

required within the nonattainment area 

boundary. CAA section 176(c)(5) and 

section 93.102 of EPA’s transportation 

conformity regulations only require 

conformity determinations in 

nonattainment and maintenance areas. 

These requirements rely on SIP on-road 

motor vehicle emission budgets that 

address on-road emissions within the 

boundary of the designated 

nonattainment area. For this reason and 

consistent with EPA’s PM2.5

implementation rule (72 FR 20636), if 

the state addresses emissions outside 

the nonattainment area for an ozone 

precursor, the on-road mobile source 

component of the RFP inventory will 

not satisfy the requirements for 

establishing a SIP budget for 

transportation conformity purposes. In 

such a case, the state must supplement 

the RFP inventory with an inventory of 

on-road mobile source emissions to be 

used to establish a motor vehicle 

emissions budget for transportation 

conformity purposes, as described in 

this final rule. As long as the state 

provides this separate emissions budget 

and conformity is determined to be 

within the geographic boundary of the 

nonattainment area, EPA believes that 

this approach will optimally address 

both the RFP and the transportation 

conformity provisions of the CAA. 

Lack of Regulatory Text 

6. Comment: One commenter believes 

that the proposed revision appears to 

provide an appropriate and reasonable 

degree of flexibility to states in meeting 

the RFP requirements. It is, however, 

difficult for the commenter to evaluate 

and comment on the proposal because 

EPA has not provided any proposed 

regulatory text that clearly states the 

precise provisions and limitations of the 

intended rule. 

EPA Response: In this action we are 

modifying a regulatory interpretation 

that the Agency adopted in the Phase 2 

rule (70 FR at 71647–48). Since 

publication of that rule, EPA modified 

its approach to RFP credits from outside 

the nonattainment area in its PM2.5

Implementation Rule (72 FR 20636). 

This action provides a regulatory 

interpretation that is consistent with the 

approach adopted in the PM2.5

Implementation Rule. Neither rule 

included regulatory text on the specific 

issue of RFP credits from outside the 

nonattainment area and EPA believes 

that it is unnecessary to include 

regulatory text in this action. 

Substitution of NOX To Meet 15 Percent 

VOC Requirement 

7. Comment: The commenter assumes 

that EPA does not intend to apply, and 

will not apply, the policy reflected in 

the proposal in a way that would allow 

crediting of NOX emission reductions 

outside the nonattainment area to meet 

the 15 percent VOC emission reduction 

requirement in section 182(b)(1) of the 

CAA. Further the commenter stated that 

allowing states to use NOx emission 

reductions—wherever they may occur— 

to satisfy section 182(b)(1) would 

contradict the explicit statutory 

provision that the 15 percent ROP 

reduction requirement must be met by 

VOC emission reductions only. See 70 

FR 71,612, 71,636/1 (November 29, 

2005). 

The commenter also noted that this 

principle is also reflected in the 

December 1997 guidance memorandum 

that addressed taking credit outside 

nonattainment areas for purposes of 

RFP. 

EPA Response: The commenter is 

correct that EPA does not intend to 

apply the policy interpretation in the 

proposed rule to allow substitution of 

NOX emission reductions outside the 

ozone nonattainment area to meet the 15 

percent VOC requirement in section 

182(b)(1). This is consistent with the 

‘‘Guidance for Implementing the 1-Hour 

Ozone and Pre-Existing PM10 NAAQS’’ 

that EPA issued on December 29, 1997 

and the Phase 2 Ozone Implementation 

Rule that EPA issued on November 29, 

2005. 

Lack of Mechanism for Addressing 

Overwhelming Transport 

8. Comment: One commenter feels 

that EPA’s proposed rule lacks 

reasonable, equitable mechanisms for 

addressing overwhelming transport in 

SIP requirements. This rule, as 

proposed, would disallow RFP credit in 

the Michigan SIP for out-of-state 

reductions even though the local areas’ 

contribution to high ozone 

concentrations measured at monitors in 

counties abutting Lake Michigan are 

negligible. The contributors, large urban 

areas ‘across the lake, are in other states, 

and West Michigan nonattainment areas 

are not part of multistate nonattainment 

areas. The proposed rule does nothing 

to ameliorate the regulatory burdens of 

ozone transport into West Michigan. 

Additionally, the commenter stated that 

the CAA lacks adequate provisions to 

address ozone transport and include a 

presumption that local emissions 

reductions are necessary to reduce 

ozone levels. The commenter 

recommends that amendments to the 

CAA be pursued. 

EPA Response: The regulatory 

interpretation was not intended to 

address the kind of situation posed by 

the commenter. The revised 

interpretation only applies to ROP plans 

and does not attempt to resolve issues 

of regional transport. Amendments to 

the CAA to address regional transport 

are only within Congress’ purview. 

CAA Does Not Give EPA Authority To 

Take Credit for Emissions Reductions 

Outside the Nonattainment Area nor 

Change the Emissions Baseline 

9. Comment: One commenter believes 

that the proposed rule is unlawful and 

arbitrary. The commenter stated that 

CAA sections 182(b)(1) and 182(c)(2)(B) 

require SIPs for ozone nonattainment 

areas to provide for an initial 15 percent 

rate of progress cut in ozone-forming 

emissions and subsequent three percent 

per year emission cuts until attainment. 

The CAA requires these cuts to be made 

from emissions ‘‘in’’ each 

nonattainment area. § 182(b)(1). The 

commenter believes that allowing areas 

to claim credit toward these ROP 

requirements from emission cuts 

outside the nonattainment area would 

not require that outside reductions 

provide the same ozone reduction 

benefit to the nonattainment area as 

would equivalent emission reductions 

inside the nonattainment area. The 

commenter feels that the EPA is without 

authority to allow states to claim ROP 

credit for emission reductions occurring 

outside of the nonattainment area 

because section 182(b)(1)(A) requires 

each plan to provide for cuts in VOC 

emissions ‘‘of at least 15 percent from 

baseline emissions’’ (emphasis added). 

The statute goes on to define ‘‘baseline 

emissions’’ as ‘‘the total amount of 

actual VOC or NOX emissions from all 

anthropogenic sources in the area,’’ 

with certain exclusions not relevant 

here. § 182(b)(1)(B) (emphasis added). 

Thus, Congress explicitly mandated that 

the required 15 percent emissions cut be 

achieved from a baseline comprising 

emissions from sources ‘‘in the 

[nonattainment] area.’’ Congress did not 

authorize EPA to grant rate of progress 

credit for emission reductions outside 

the nonattainment area or to redefine 

‘‘baseline emissions’’ to include 

emissions from sources outside of the 

nonattainment area, even where those 

outside reductions are alleged to or do 

in fact ‘‘contribute’’ to ozone 

concentrations in the nonattainment 

area. The commenter feels that EPA 

cannot allow states to credit emission 

cuts from outside of the nonattainment 

area toward meeting post-15 percent 


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3Although the Fifth Circuit found application of 

the 1997 policy as applied to the facts in that case 

unsupported, it did so for reasons that are 

inapposite here. First, the court was reviewing 

EPA’s determination that continuing reductions 

outside an area could be used as contingency 

measures. The court found EPA had not 

demonstrated that the policy had ‘‘any rational 

connection with the relevant issue of what 

contingency measures to apply when an attainment 

deadline passes.’’ Id. at 586. 

Second, the court found that in the specific case 

under review there was no data to support the 

presumption that the ‘‘outside’’ reductions selected 

in that case ‘‘can affect emissions reductions in the 

* * * area.’’ Id. In contrast, in its regulatory 

interpretation, EPA is explicitly requiring that such 

data be demonstrated in all cases prior to accepting 

credits from outside a nonattainment area. 70 FR at 

71,647/3. 

progress requirements. Nor can EPA 

alter the baseline for the post-15 percent 

cuts, a baseline that is identical to the 

one set in the statute for the 15 percent 

plans, and that is explicitly limited to 

emissions from within the 

nonattainment area. 

EPA Response: The EPA notes first 

that the regulatory interpretation set 

forth here does not apply to the section 

182(b)(1) requirement to provide 15 

percent reductions within the first six 

years from a baseline year, but only to 

the section 182(c)(2)(B) requirement for 

an average of three percent per year for 

subsequent three year periods up to the 

attainment date. The interpretation is 

based on the December 29, 1997 

memorandum from Richard D. Wilson, 

‘‘Guidance for Implementing the 1–Hour 

Ozone and Pre-Existing PM10 NAAQS.’’ 

Page 7 of the attachment to that 

memorandum says: ‘‘The EPA believes 

that the start date of the expanded 

locality-based substitution credit for 

ROP is changed from post-1999 ROP 

requirements to post-1996 requirements. 

EPA does not believe that it may allow 

credit for substitutions to complete or 

revise the 15 percent ROP requirement 

for VOC emission reductions in 

nonattainment areas through 1996. 

Although the start date for application 

of ROP substitution reductions from 

outside the nonattainment area would 

apply to post-1996 ROP requirements, 

consistent with past Agency policy, 

states would be able to bank excess 

earlier reduction credits (NOX or VOC) 

to apply to post-1996 and later 

requirements.’’ 

Secondly, EPA disagrees with the 

assertion in the comment that the 

proposed rule is unlawful and arbitrary 

and that EPA is without authority to 

allow RFP credit for emission 

reductions from outside the 

nonattainment area. The CAA does not 

expressly prohibit credits for emission 

reductions outside the area. In fact, the 

Fifth Circuit, which examined the same 

language at issue here, found the 

language ‘‘ambiguous’’ reasoning: 

On the one hand, the meaning of ‘‘in the 

area’’ could be limited to emissions within 

the nonattainment area. On the other hand, 

the CAA does not expressly state that 

emissions outside the nonattainment area are 

prohibited, rather the Act only states that 

emissions from sources ‘‘in the area’’ must be 

included. We therefore find the CAA 

ambiguous on this point. 

Louisiana Envtl. Action Network 

(‘‘LEAN’’) v. EPA, 382 F.3d 575, 585 (5th 

Cir. 2004).3 If Congress intended to 

disallow credits from outside the 

nonattainment area, it could have 

expressly disallowed it as it did for RFP 

credit for four other specific categories 

of emission reductions, 42 U.S.C. 

7511a(b)(1)(D)(i)–(iv), while otherwise 

allowing credit for any reductions that 

‘‘have actually occurred after November 

15, 1990,’’ id. section 7511a(b)(1)(C). 

See also the discussion in response to 

comments 15 and 16. 

Rule Is Unclear as to the Precise 

Requirements for Crediting Outside 

Reductions 

10. Comment: One commenter stated 

that the proposal is actually unclear as 

to the precise requirements for crediting 

these outside reductions. The Federal 

Register notice describes EPA’s 

approach for crediting outside 

reductions in the PM2.5 Implementation 

Rule, and states that EPA is proposing 

to revise its earlier interpretation with 

respect to ozone plans ‘‘to be consistent 

with the analogous provisions in the 

PM2.5 Implementation Rule.’’ The 

proposal does not explain whether 

‘‘consistent with’’ means ‘‘identical to’’ 

or whether it allows some differences 

from the PM2.5 approach. For purposes 

of these comments, the commenter will 

assume EPA is proposing an identical 

approach to the one adopted for PM2.5.

EPA Response: The commenter is 

correct in the assumption that EPA’s 

proposed approach follows the same 

approach for ozone as followed for 

PM2.5.

Rule Does Not Set Meaningful 

Restrictions on Boundary Drawing for 

the Outside Area 

11. Comment: One commenter alleged 

that the proposal sets no meaningful 

restrictions on boundary drawing for the 

‘‘outside’’ area, thereby allowing states 

to gerrymander them in a way that 

includes sources expected to cut 

emissions while excluding sources that 

are likely to increase their emissions. 

Although the proposal appears to limit 

the ‘‘outside’’ to a doughnut around the 

nonattainment area of up to 200 km, it 

allows the states to choose the slice or 

hole in that surrounding doughnut to 

include for purposes of the RFP 

calculation. Assuming EPA is proposing 

the same approach used in the PM2.5

rule, the state need only show that 

emissions from the area selected 

substantially impact ambient 

concentrations in the nonattainment 

area. There is no stated requirement that 

all areas substantially impacting the 

nonattainment area be included. The 

proposal does not prevent states from 

defining whatever area they choose— 

theoretically even the block on which 

the selected source sits—for inclusion in 

the RFP inventory. 

EPA Response: Under this approach, 

as a prerequisite to including emission 

reductions from outside the 

nonattainment area in the RFP 

assessment, a state must justify the 

outside area. The justification must 

include a demonstration that these 

outside emissions have a substantial 

impact on nonattainment 

concentrations. Because the 

demonstration of such impacts likely 

involve differing factors and 

characteristics, EPA believes a one-size 

fits all ‘‘boundary drawing’’ approach is 

not an appropriate approach in this 

instance. EPA will evaluate each RFP 

assessment on a case-by-case basis to 

determine whether a state using RFP 

credits from outside the nonattainment 

area has included the appropriate and 

pertinent area for calculating the 

emission reductions. In addition, if a 

state wants to adopt this approach, the 

RFP assessment must include emissions 

for all sources within the pertinent area 

in order to ensure that the RFP plan 

reflects the actual net emissions changes 

that occur within that area. 

12. Comment: One commenter alleged 

that the proposed 200 km radius for the 

‘‘outside’’ area is also wholly arbitrary. 

EPA offers no rational basis, and none 

exists, for choosing that particular 

distance and applying it to each and 

every nonattainment area in the nation. 

There is no evidence, for example, that 

NOX emission reductions 200 km 

outside a nonattainment area invariably 

provide the same ROP benefit as the 

same reductions inside the 

nonattainment area. EPA appears to 

have picked the 200 km figure out of 

thin air. The arbitrariness of EPA’s 

approach here is confirmed by 

contrasting it with agency’s approach in 

drawing nonattainment area boundaries. 

In the latter situation, EPA has taken the 

position that determining whether 

nearby sources contribute to 

nonattainment is too complex to be 

dictated by hard and fast rules, and 

instead requires a multi-factor analysis 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Rules and Regulations 40079 

4See Footnote 43 at 68 FR 32833 (June 2, 2003). 

5 70 FR 71647, col 3. (November 29, 2005). 

tailored to each area. See EPA’s Final 

Brief in Catawba County v. EPA, No. 

05–1064 (D.C. Cir) filed June 11, 2008. 

EPA Response: The commenter’s 

assertions are incorrect. EPA has not 

picked the distances ‘‘out of thin air.’’ 

As described below, EPA has had this 

policy, adopted after discussions and 

input from the scientific community, in 

place for over ten years. The December 

1997 policy was developed ‘‘as a result 

of the modeling results relating to the 

NOX SIP Call, [which] demonstrate that 

significant contribution to 

nonattainment resulted not only from 

source emissions within a 

nonattainment area but also from source 

emissions over a much broader area.’’ 

1997 Policy at 5–6. In addition, under 

the Federal Advisory Committee Act 

(FACA), we formed a Subcommittee for 

Development of Ozone, Particulate 

Matter and Regional Haze 

Implementation Programs that provided 

recommendations and ideas to assist us 

in developing implementation 

approaches for these programs. We have 

incorporated ideas from the FACA 

process for a number of SIP elements, 

particularly those related to transport of 

ozone, the process for demonstrating 

attainment of the ozone standard, and 

requirements for ensuring reasonable 

further progress. The distance of 100 km 

for VOC and 200 km for NOX resulted 

from discussions of the FACA 

Subcommittee and generally represent 

transport of one to two days.4 Further 

information on the FACA process and 

its reports is found at the following Web 

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

regulatory interpretation incorporates 

the same distance limitations, which 

must be supported in an individual area 

by data ‘‘that are shown to be beneficial 

toward reducing ozone in the 

nonattainment area.’’ 5 In addition, the 

proposed regulatory interpretation does 

not change the distances for crediting 

emissions from outside the 

nonattainment area for NOX and VOCs. 

EPA proposed and finalized those 

distances in the rulemaking for the 

Phase 2 rule. The proposed regulatory 

interpretation only modifies those 

instances where the ozone RFP 

interpretations were not consistent with 

the PM2.5 Implementation Rule such as 

whether emissions from all sources 

should be included in the RFP 

assessments for the pertinent area 

outside the nonattainment area. Thus, 

the comments on the distances 

themselves are outside the scope of this 

rulemaking. 

Lack of Justification for Proposal 

13. Comment: The commenter states 

that the proposed rule is unlawful and 

arbitrary in that EPA has failed to offer 

a lawful or rational justification for the 

proposal. The commenter states that the 

notice of proposed rulemaking offers no 

justification for allowing credit for 

outside reductions, other than a desire 

to provide ‘‘flexibility.’’ In the past, EPA 

has stated other rationales for allowing 

ROP credit for outside reductions, but as 

the agency does not state any intent to 

rely on them here, they cannot support 

this iteration of the proposal. If EPA 

wants to provide other rationales for the 

proposal, it must first provide public 

notice and an opportunity to comment. 

EPA Response: EPA disagrees with 

the commenter’s assertion that it has 

provided no justification for its proposal 

to modify its regulatory interpretation of 

the RFP provisions. First, in the 

preamble to the Phase 2 rule, EPA 

explained its rationale for permitting 

credits for reductions outside the 

nonattainment area (70 FR 71647–48). 

The proposed modification of that 

regulatory interpretation does not 

change the distances or the precursors 

for which such credits may be taken 

provided other conditions such as 

reductions are not attributed to 

measures otherwise mandated by the 

CAA are met. Second, the preamble to 

the proposed regulatory interpretation 

explains that EPA is modifying its 

approach to allowing credits for 

emission reductions from outside the 

nonattainment area to make it consistent 

with the approach that the Agency 

adopted in the PM2.5 Implementation 

Rule. In the PM2.5 Implementation Rule, 

EPA received comments that indicated 

that RFP inventories for areas outside 

the nonattainment area could include 

selected sources expecting substantial 

emissions reductions while excluding 

other sources in the area expecting 

emission increases. In response to those 

comments, EPA modified its approach 

and required that if a state justifies 

consideration of emissions for an area 

outside the nonattainment area, the RFP 

assessments will be expected to reflect 

emission changes from all sources in 

this area and would no longer allow 

states to include only selected sources 

that provide emission reductions. 

Because the rationale for the change 

there is equally applicable for ozone, 

EPA proposed the same regulatory 

interpretation for RFP assessments for 

ozone. 

14. Comment: The commenter noted 

that EPA has also tried to justify 

overriding the statutory language by 

citing section 182(c)(2)(C) which 

provides for substitution of NOX

emission cuts for VOC emission cuts to 

meet the percentage reduction 

requirements in serious and above areas, 

where the state shows that equivalent 

ozone reductions will be achieved. EPA 

erroneously claimed that this provision 

somehow shows intent to allow even 

broader exceptions, such as the one 

here, as long as some ozone reductions 

are achieved within the nonattainment 

area. In reality, section 182(c)(2)(C) 

contains no language at all authorizing 

states to claim emission reduction credit 

for emission cuts outside of the 

nonattainment area, nor does it redefine 

‘‘baseline emissions’’ to include 

emissions from outside the 

nonattainment area. The provision 

merely defines the limited 

circumstances in which an area can 

substitute NOX emission cuts for VOC 

emission cuts to meet percentage 

reduction requirements. It does not 

allow the required reductions to be 

achieved outside the nonattainment 

area. Moreover, a key requirement of 

section 182(c)(2)(C) is that any 

substitution of NOX reductions for VOC 

reductions will ‘‘result in a reduction in 

ozone concentrations at least 

equivalent’’ to that which would result 

from the required VOC percentage 

reduction (emphasis added). EPA’s 

proposed rule merely requires that 

emissions from the ‘‘outside’’ area 

‘‘contribute to’’ ozone concentrations in 

the nonattainment area—it does not 

require the ozone benefits from cutting 

those outside emissions to be at least 

equivalent to those achievable by 

reductions inside the nonattainment 

area (70 FR 71647). 

EPA Response: The Phase 2 rule 

clarified the 1997 policy to respond to 

concerns identified in the Office of 

Inspector General Report [OAR–2003– 

0079–0849 AT 80 (‘‘OIG Report’’)]. The 

regulatory interpretation for RFP did not 

allow crediting of outside emissions 

based solely on distance from the 

nonattainment area boundary. Instead, 

the regulatory interpretation stated that 

the distances are only a general 

presumption that would need areaspecific data showing that reductions 

from sources in attainment areas benefit 

the particular nonattainment area. 70 FR 

71647–49. Under this approach, as a 

prerequisite to including emission 

reductions from outside the 

nonattainment area in the RFP 

assessment, a state must justify the 

inclusion of sources outside the area. 

The justification must include a 

demonstration that these outside 

emissions have a substantial impact on 

nonattainment concentrations and that 


jlentini on DSKJ8SOYB1PROD with RULES
40080 Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Rules and Regulations 

6 ‘‘Evaluating Ozone Control Programs in the 

Eastern United States: Focus on the NOX Budget 

Trading Program, 2004’’ United States 

Environmental Protection Agency; Office of Air and 

Radiation; Office of Air Quality Planning and 

Standards; Office of Atmospheric Programs. 1200 

Pennsylvania Ave., NW., Washington, DC 20460. 

EPA454–K–05–001. August 2005. Found at: 

http://www.epa.gov/airmarkt/progress/docs/ 

ozonenbp.pdf. 

7NOX Substitution Guidance, December, 1993. 

Office of Air Quality Planning and Standards; U.S. 

Environmental Protection Agency; Research 

Triangle Park, North Carolina 27711. 

8Memorandum from John Seitz, ‘‘Clarification of 

Policy for Nitrogen Oxides (NOX) Substitution.’’ 

August 8, 1994. 

9 It should be noted that reductions toward the 

RFP requirement of the CAA that actually occur 

within one part of a nonattainment area do not 

necessarily produce the same ozone reductions as 

emissions reductions in another part of the 

nonattainment area. Depending on where the 

reductions occur, even if all the RFP emission 

reductions in these emissions would 

have a beneficial impact on the 

nonattainment area. 

As clarified in a response below, in 

evaluating RFP submittals, EPA would 

consider whether the reductions from 

outside the nonattainment area could 

reasonably be expected to yield 

comparable air quality benefits as would 

be obtained if the same quantity of 

reductions were to occur inside the 

nonattainment area. 

15. Comment: The commenter offers 

as support for the previous comment 

based on the fact that EPA’s Office of 

Inspector General (OIG) observed that 

EPA’s policy allows credit ‘‘for all 

emission reductions achieved by 

outside sources within specified 

distances outside the nonattainment 

area boundaries without any 

demonstration of the actual impact of 

these specific emissions on the area’s 

nonattainment * * *’’ OAR–2003– 

0079–0849 AT 80 (‘‘OIG Report’’). 

EPA Response: EPA believes that 

when Congress allowed the substitution 

of NOX controls for VOC controls to 

meet the section 182(c)(2)(C) RFP 

requirement, its choice of specific words 

is telling because it referred to 

‘‘reductions in ozone concentrations’’ in 

the applicable nonattainment area, 

rather than ‘‘reductions in emissions.’’ 

70 FR 71648. While the language in the 

CAA does not explicitly state that 

emission reductions from outside the 

nonattainment area may be credited for 

RFP assessments, EPA reasonably 

interpreted this language as an 

indication that Congress’ intent was to 

lower ‘‘ozone concentrations’’—not just 

‘‘emissions’’ of ozone precursors— 

within the nonattainment area. As EPA 

explained, ‘‘(i)t is consistent with that 

intent that emissions reductions from 

outside the nonattainment area that will 

reduce ozone concentrations in the 

nonattainment area should be creditable 

(toward) RFP.’’ 70 FR 71648. 

As for the commenter’s assertion that 

VOC and NOX reductions should result 

in equivalent benefits within the area, 

the fact that EPA’s policy always had 

limits for the distance outside the 

nonattainment area was intended to 

preclude emission reductions from 

having negligible ozone benefits within 

the nonattainment area. While it is 

implicit in EPA’s proposed regulatory 

interpretation in its evaluation of the 

appropriateness of the credit reductions, 

the Agency is now clarifying in 

response to the commenter’s statement 

that EPA, in evaluating RFP submittals, 

would consider whether the reductions 

from outside the nonattainment area 

could reasonably be expected to yield 

comparable air quality benefits as would 

be obtained if the same quantity of 

reductions were to occur inside the 

nonattainment area. 

In setting forth a requirement for the 

ozone transport region in section 184 of 

the CAA, Congress realized that 

controlling ozone would require 

emission reductions from not just 

nonattainment areas, but all areas that 

were shown to contribute to ozone 

concentrations, including areas outside 

nonattainment areas. The work done 

under the Ozone Transport Assessment 

Group (OTAG) led to the NOX SIP call, 

which resulted in State-wide NOX

emission budgets. The NOX SIP call, 

with its significant NOX emission 

reductions from attainment as well as 

nonattainment areas, was highly 

successful in reducing ozone 

concentrations, and indeed provided 

progress toward attainment for many of 

the nonattainment areas in the eastern 

portion of the U.S.6

A state’s ozone attainment 

demonstration performed with 

photochemical grid modeling will 

invariably take account of emission 

reductions not only from within the 

nonattainment area, but also from 

outside the nonattainment area. 

Generally, a state will be unable to 

demonstrate attainment for many areas 

unless there are emission reductions 

from attainment and nonattainment 

areas outside the area for which the 

state is performing the attainment 

demonstration. An extreme hypothetical 

example of this situation would be a 

nonattainment area that is mostly rural 

with few emissions of its own, but 

which is ineligible for rural transport 

area treatment and that is affected by 

significant transport from upwind areas. 

For its attainment demonstration, it 

must rely totally on emission reductions 

from upwind areas and may not be able 

to demonstrate RFP from emission 

reductions totally within the 

nonattainment area. 

Additionally, air quality modeling to 

make a determination of equivalent 

ozone reductions would be very 

difficult. Ozone reductions from a 

particular strategy of emission 

reductions vary based on a number of 

factors such as wind, climate, type of 

emission source, location of sources, 

and height of emissions release above 

the ground. Therefore, the location and 

spatial extent of ozone reductions may 

be highly variable on a day-to-day basis. 

In many cases, emission reductions 

from farther away from a receptor 

location could be more beneficial in 

reducing ozone than emission 

reductions from a nearer location in the 

nonattainment area. The fact that the 

NOX SIP call regional emission 

reductions have been shown to reduce 

ozone concentrations in almost all 

nonattainment areas is a testament to 

the fact that regional NOX controls are 

beneficial in reducing ozone. The 

current policy of allowing reductions for 

RFP purposes only out to certain welldefined geographic distances would 

serve to prevent abuse. 

Section 182(c)(2)(C) does require that 

NOX reductions must be shown to 

reduce ozone concentrations ‘‘at least 

equivalent’’ to that which would result 

from VOC reductions. In response to the 

CAA’s requirement of section 

182(c)(2)(C), EPA had in the early- and 

mid-1990’s issued guidance,7 8 for 

implementation of this provision. The 

guidance is based on two principles: 

First, an equivalency demonstration 

requires that cumulative RFP emission 

reductions must be consistent with the 

NOX and VOC emission reductions 

determined in the ozone attainment 

modeling demonstration; in other 

words, a ton of NOX cannot simply 

substitute for a ton of VOC since the air 

quality impact might be entirely 

different. Second, specified reductions 

in NOX and VOC emissions should be 

accomplished in the interim period 

between the time of the beginning of the 

RFP period in question (at the time, that 

was the end of 1996) and the attainment 

date, consistent with the continuous 

RFP emission reduction requirement. 

Thus, substituting NOX emission 

reductions for VOC emission reductions 

for RFP purposes has consistently been 

done in the context of the area’s 

attainment demonstration in order to 

demonstrate equivalent ozone 

reductions regardless of whether the 

emission reductions that are credited for 

RFP purposes come wholly within the 

nonattainment area or where some come 

from outside the nonattainment area.9


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Rules and Regulations 40081 

reductions occur wholly within the nonattainment 

area, it is possible that there could actually be no 

reduction in ozone concentrations within that 

nonattainment area. 

10See 42 U.S.C. 7501 (stating that the ensuing 

definitions apply ‘‘(f)or the purpose of this part’’). 

Mandate From Subpart 1 for RFP 

16. Comment: The commenter also 

feels that EPA has erroneously claimed 

support from Subpart 1’s mandate for 

‘‘reasonable further progress,’’ defined 

as ‘‘such annual incremental reductions 

in emissions of the relevant air pollutant 

as are required by this part or may 

reasonably be required by the 

Administrator for the purpose of 

ensuring attainment of the applicable 

national ambient air quality standard by 

the applicable date.’’ Section 171(1). 

The agency has asserted that this 

Subpart 1 provision somehow shows 

that Congress did not care about the 

location of emission reductions as long 

as they contributed to progress toward 

attainment. 70 FR 71648, quoting CAA 

section 171(1). This argument simply 

ignores the express language of Subpart 

2, which explicitly requires the 

achievement of specified percentage 

reductions ‘‘in’’ the nonattainment area. 

EPA cannot rely on a general statutory 

provision to override a more specific 

one, or rely on policy goals to override 

express statutory mandates. 

EPA Response: The EPA believes that 

its interpretation advances the general 

statutory purpose underlying RFP. For 

both Subparts 1 and 2,10 Congress 

defined RFP to mean ‘‘such annual 

incremental reductions in emissions of 

the relevant pollutant as are required by 

this part or may reasonably be required 

by (EPA) for the purpose of ensuring 

attainment * * * by the applicable 

date.’’ CAA section 171(1). Under both 

Sections 172 and 182, the stated 

purpose of ‘reasonable further progress’ 

is to ensure attainment by the applicable 

attainment date. Acknowledging this 

stated purpose, EPA reasoned that 

‘‘specific, annual emissions reductions 

from geographic areas outside the 

nonattainment area boundaries that 

contribute to lower ambient ozone 

levels in the nonattainment area would 

fall within the scope of ‘such annual 

incremental reductions’ * * * as are 

required * * * for the purpose of 

ensuring attainment * * *.’’ 70 FR 

71,648/2. Therefore, while it is true that 

the statute does not expressly authorize 

RFP credit for outside emission 

reductions, EPA believes its 

interpretation of the statute to allow 

such credit in the absence of an express 

prohibition is reasonable. The 

commenter is incorrect in stating that 

this construction relies on a general 

statutory provision to override a more 

specific one. Although the RFP 

requirements in Subpart 2 are more 

specific than those in Subpart 1, they do 

not expressly and unambiguously limit 

the crediting of reductions in the 

manner the commenter suggests. 

Because no provision speaks precisely 

to the relevant issue, EPA appropriately 

considered the RFP and creditability 

provisions (CAA section 182 (b)(1)(c)) as 

a whole to reach a reasonable reading of 

the statute. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order (EO) 12866 (58 FR 

51735, October 4, 1993) and is therefore 

not subject to review under the 

Executive Order. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. 

However, the Office of Management and 

Budget (OMB) has previously approved 

the information collection requirements 

contained in the existing regulations of 

the Phase 2 Rule published on 

November 29, 2005 under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. and has 

assigned OMB control number 2060– 

0594. The Phase 2 Rule’s information 

collection request (ICR) covered the RFP 

interpretation that is the subject of this 

final rule. The OMB control numbers for 

EPA’s regulations in 40 CFR are listed 

in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an Agency to prepare 

a regulatory flexibility analysis of any 

regulation subject to notice and 

comment rulemaking requirements 

under the Administrative Procedures 

Act or any other statute unless the 

Agency certifies the rule will not have 

a significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of this final rule on small entities, small 

entity is defined as: (1) A small business 

that is a small industrial entity as 

defined in the U.S. Small Business 

Administration (SBA) size standards. 

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

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) A small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impact of this rule on small entities, I 

certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

This rule will not directly impose any 

requirements on small entities. Rather 

this final rule interprets the RFP 

requirements under the SIP for states to 

submit RFP plans in order to attain the 

ozone NAAQS. 

D. Unfunded Mandates Reform Act 

This action contains no federal 

mandate under the provisions of Title II 

of the Unfunded Mandates Reform Act 

of 1995 (UMRA), 2 U.S.C. 1531–1538 for 

state, local, or tribal governments or the 

private sector. This action imposes no 

enforceable duty on any state, local, and 

tribal governments or the private sector. 

Therefore, this action is not subject to 

the requirements of section 202 and 205 

of the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. The 

CAA imposes the obligation for states to 

submit SIPs, including RFP, to 

implement the Ozone NAAQS. In this 

final rule, EPA is merely providing an 

interpretation of those requirements. 

However, even if this interpretation did 

establish an independent requirement 

for states to submit SIPs, it is 

questionable whether such a 

requirement would constitute a federal 

mandate in any case. The obligation for 

a state to submit a SIP that arises out of 

section 110 and section 172 (part D) of 

the CAA is not legally enforceable by a 

court of law, and at most is a condition 

for continued receipt of highway funds. 

Therefore, it is possible to view an 

action requiring such a submittal as not 

creating any enforceable duty within the 

meaning of section 21(5)(9a)(I) of UMRA 

(2 U.S.C. 658(a)(I)). Even if it did, the 

duty could be viewed as falling within 

the exception for a condition of federal 

assistance under section 21(5)(a)(i)(I) of 

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

The EPA has determined that this rule 

contains merely an interpretation of 

regulatory requirements and no 

regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments because these regulations 

affect federal agencies only. 


jlentini on DSKJ8SOYB1PROD with RULES
40082 Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Rules and Regulations 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

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

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by state 

and local officials in the development of 

regulatory policies that have Federalism 

implications.’’ Policies that have 

‘‘Federalism implications’’ are defined 

in the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the states, on the relationship 

between the national government and 

the states, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

This final action does not have 

federalism implications. It will not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This rule 

addresses the Court’s vacatur and 

remand of a portion of the Phase 2 

implementation rule for the 8-hour 

standard, namely an interpretation that 

allowed credit toward RFP for the 8- 

hour standard from emission reductions 

outside the nonattainment area. In 

addressing the vacatur and remand, this 

rule merely explains the requirements 

for RFP and does not impose any 

additional requirements. Thus, 

Executive Order 13132 does not apply 

to this rule. 

In the spirit of Executive Order 13121 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

specifically solicited comments on the 

proposed rule from state and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This final rule does not have tribal 

implications as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). It does not have a substantial 

direct effect on one or more Indian 

tribes, since no tribe has to develop a 

SIP under this final rule. Furthermore, 

this final rule does not affect the 

relationship or distribution of power 

and responsibilities between the federal 

government and Indian tribes. The CAA 

and the Tribal Air Rule establish the 

relationship of the federal government 

and Tribes in developing plans to attain 

the NAAQS, and these revisions to the 

regulations do nothing to modify that 

relationship. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

This final action is not subject to 

Executive Order 13045 because it is not 

economically significant as defined in 

Executive Order 12866 and because EPA 

does not have reason to believe the 

environmental health or safety risk 

addressed by the 8-hour ozone RFP 

Regulations present a disproportionate 

risk to children. This final action 

addresses whether a SIP will adequately 

and timely achieve reasonable further 

progress to attain and maintain the 

NAAQS and meet the obligations of the 

CAA. The NAAQS are promulgated to 

protect the health and welfare of 

sensitive population, including 

children. However, EPA solicited 

comments on whether this action would 

result in an adverse environmental 

effect that would have a 

disproportionate effect on children. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This action does not involved 

technical standards. Therefore, EPA did 

not consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629, February 16, 1994) establishes 

federal executive policy on 

environmental justice. Its main 

provision directs federal agencies, to the 

greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not affect the level of protection 

provided to human health or the 

environment. This final action will 

address the Court’s vacatur and remand 

of a portion of the Phase 2 

implementation rule for the 8-hour 

standard, namely an interpretation that 

allowed credit toward RFP for the 8- 

hour standard from emission reductions 

outside the nonattainment area. This 

final action merely explains the 

requirements for RFP and does not 

impose any additional requirements. 

K. Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective October 13, 2009. 

L. Determination Under Section 307(d) 

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

judicial review of today’s final action is 

available by filing of a petition for 

review in the U.S. Court of Appeals for 

the District of Columbia Circuit by 

October 13, 2009. Any such judicial 

review is limited to only those 

objections that are raised with 

reasonable specificity in timely 

comments. Under section 307(b)(2) of 

the Act, the requirements of this final 

action may not be challenged later in 

civil or criminal proceedings brought by 

us to enforce these requirements. 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Rules and Regulations 40083 

List of Subjects 

40 CFR Part 50 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Sulfur oxides. 

40 CFR Part 51 

Air pollution control, 

Intergovernmental relations, Ozone, 

Particulate matter, Transportation, 

Volatile organic compounds. 

Authority: 42 U.S.C. 7409; 42 U.S.C. 7410; 

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

Dated: August 4, 2009. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. E9–19190 Filed 8–10–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2009–0311; FRL–8941–6] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Pennsylvania; Revised Motor Vehicle 

Emission Budgets for the Scranton/ 

Wilkes-Barre 8-Hour Ozone 

Maintenance Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve a State 

Implementation Plan (SIP) revision 

submitted by the Commonwealth of 

Pennsylvania. The revision amends the 

8-hour ozone maintenance plan for the 

Scranton/Wilkes-Barre Area 8-Hour 

Ozone Maintenance Area (the Area). 

This revision amends the maintenance 

plan’s 2009 and 2018 motor vehicle 

emissions budgets (MVEBs) by 

unequally dividing the existing 

approved MVEBs which covers the 

entire maintenance area into three subregional MVEBs, one set of MVEBs for 

each county comprising the area. The 

revised plan continues to demonstrate 

maintenance of the 8-hour national 

ambient air quality standard (NAAQS) 

for ozone. EPA is approving this SIP 

revision to the Pennsylvania 

maintenance plan for the Scranton/ 

Wilkes-Barre Area in accordance with 

the requirements of the Clean Air Act 

(CAA). 

DATES: This rule is effective on October 

13, 2009 without further notice, unless 

EPA receives adverse written comment 

by September 10, 2009. If EPA receives 

such comments, it will publish a timely 

withdrawal of the direct final rule in the 

Federal Register and inform the public 

that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2009–0311 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. E-mail: febbo.carol@epa.gov. 

C. Mail: EPA–R03–OAR–2009–0311, 

Carol Febbo, Chief, Energy, Radiation 

and Indoor Environment Branch, 

Mailcode 3AP23, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

D. Hand Delivery: At the previously 

listed EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2009– 

0311. 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 information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or e-mail. The www.regulations.gov Web 

site is an anonymous access system, 

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 e-mail 

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. 

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 during normal business 

hours at the Air Protection Division, 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the Pennsylvania 

Department of Environmental 

Protection, Bureau of Air Quality, P.O. 

Box 8468, 400 Market Street, Harrisburg, 

Pennsylvania. 

FOR FURTHER INFORMATION CONTACT: 

Martin Kotsch, (215) 814–3335, or by 

e-mail at kotsch.martin@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

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

EPA. 

Table of Contents 

I. Background 

II. Summary of Pennsylvania’s SIP Revision 

and EPA’s Review 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Background 

On November 11, 2007 (72 FR 64948) 

EPA redesignated the Scranton/WilkesBarre area of Pennsylvania to attainment 

for the 8-hour ozone NAAQS. For this 

area, the redesignation included 

approval of an 8-hour ozone 

maintenance plan, which identifies onroad MVEBs for Volatile Organic 

Compounds (VOCs) and Nitrous Oxides 

(NOX), which are ozone precursors, 

which are then used for transportation 

planning and conformity purposes. 

There are three separate metropolitan 

planning organizations (MPOs) in this 

maintenance area—one for Lackawana 

and Luzerne Counties, one for Monroe 

County and one for Wyoming County, 

with individual responsibility for doing 

transportation conformity within their 

respective planning boundaries within 

the Area. Pennsylvania has unequally 

divided the existing MVEBs and created 

sub-regional MVEBs for each MPO to 

better accommodate the transportation 

planning and conformity processes 

within the Area. 

II. Summary of Pennsylvania’s SIP 

Revision and EPA’s Review 

On April 21, 2008, the State of 

Pennsylvania submitted to EPA a formal 

revision to its State Implementation 


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