Wednesday,

January 3, 2001

Part V

Environmental

Protection Agency

40 CFR Part 52

Approval and Promulgation of Air Quality

Implementation Plans; District of

Columbia, Maryland, Virginia; Post 1996

Rate of Progress Plans, One Hour Ozone

Attainment Demonstrations and

Attainment Date Extensions for the

Metropolitan DC Ozone Non-Attainment

Area; Final Rule

586 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[DC–2025, MD–3064, VA–5052; FRL–6922–

9]

Approval and Promulgation of Air

Quality Implementation Plans; District

of Columbia, Maryland, Virginia; Post

1996 Rate-of-Progress Plans, OneHour Ozone Attainment

Demonstrations and Attainment Date

Extension for the Metropolitan

Washington D.C. Ozone Nonattainment

Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is approving the

State Implementation Plans (SIPs)

consisting of the Post-1996 rate-ofprogress (ROP) plans with

transportation control measures and the

one-hour ozone attainment

demonstrations for the Metropolitan

Washington D.C. serious nonattainment

area (the Washington area) submitted by

the District of Columbia’s Department of

Health (DoH), Maryland’s Department of

the Environment (MDE) and by the

Virginia Department of Environmental

Quality (VADEQ). EPA is also approving

the request to extend the attainment

date to November 15, 2005. The Clean

Air Act (CAA or the Act) requires EPA

to establish national air quality

standards (NAAQS) for certain

widespread pollutants that cause or

contribute to air pollution for the

purposes of the one-hour ozone

NAAQS. The Post-1996 ROP plans and

the one-hour ozone attainment

demonstrations will result in significant

emission reductions of volatile organic

compounds (VOCs) and oxides of

nitrogen (NOX) in the Washington area.

The intended effect of this action is to

approve these SIP revisions as meeting

the requirements of the Act.

DATES: This final rule is effective on

February 2, 2001.

ADDRESSES: Copies of the documents

relevant to this action are available for

public inspection during normal

business hours at the Air Protection

Division, U.S. Environmental Protection

Agency, Region III, 1650 Arch Street,

Philadelphia, Pennsylvania 19103;

District of Columbia Department of

Public Health, Air Quality Division, 51

N Street, N.E., Washington, DC 20002;

Maryland Department of the

Environment, 2500 Broening Highway,

Baltimore, Maryland, 21224; and the

Virginia Department of Environmental

Quality, 629 East Main Street,

Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT:

Christopher Cripps, (215) 814–2179 or

Janice Lewis, (215) 814–2185 at the EPA

Region III office above or e-mail

Cripps.Christopher@epa.gov or

Lewis.Janice@epa.gov.

SUPPLEMENTARY INFORMATION:

This SUPPLEMENTARY INFORMATION

section is organized to address the

following questions:

A. What actions is EPA taking today?

B. What Previous Action Has Been Taken on

These SIP Revisions?

C. What were the conditions for approval

provided in the Notice of Proposed

Rulemakings for the Post-1996 ROP

plans and the attainment

demonstrations?

D. What amendments to the attainment

demonstration SIP did the Washington,

DC area States’ make since the December

16, 1999?

E. What State enforceable commitments were

needed for approval?

F. What was the scope of the July 28, 2000

Supplemental Notice of Proposed

Rulemaking?

G. What was the scope of the October 16,

2000 Supplemental Notice of

Availability?

H. When did EPA make a determination

regarding the adequacy of the Motor

Vehicle Emissions Budgets for the

Metropolitan Washington, DC area?

I. What SIP elements did EPA need to take

final action on before full approval of the

attainment demonstration could be

granted?

J. What are the Clean Air Act measures relied

on for the post-1996 and attainment

demonstration SIP submission?

K. What are the conformity budgets in the

post-1996 ROP plans and the attainment

demonstrations?

L. What happens to the 2005 budgets when

States change their budgets using the

MOBILE6 Model?

M. What comments were received on the

proposed approvals and how has EPA

responded to those?

I. Background

A. What Action Is EPA Taking Today?

EPA is approving the Post-1996 ROP

plans, the one-hour attainment

demonstrations and attainment date

extension submitted by DoH, MDE and

VADEQ for the Washington area. The

following tables identify submittal dates

and amendment dates for the post-1996

ROP plans and the attainment

demonstrations:

TABLE 1.—POST-1996 ROP PLANS

DC MD VA

Initial submittal dates ........................... November 10, 1997 ............................. December 24, 1997 ............................. December 19, 1997.

Amendment dates ................................ May 25, 1999 ...................................... May 20, 1999 ...................................... May 25, 1999.

TABLE 2.—ATTAINMENT DEMONSTRATIONS

DC MD VA

Initial submittal dates ........................... April 24, 1998 ...................................... April 29, 1998 ...................................... April 29, 1998.

Amendment dates ................................ October 27, 1998 ................................ August 17, 1998 .................................. August 18, 1998.

Supplemental dates ............................. February 16, 2000 ............................... February 14, 2000 ...............................

(MD SIP No. 00–01) ............................

February 9, 2000.

Supplemental dates ............................. March 22, 2000 ................................... March 31, 2000 ...................................

(MD SIP No. 00–02) ............................

March 31, 2000.

TABLE 3.—ATTAINMENT DATE EXTENSION REQUEST

Initial submittal dates ........................... September 20, 1999 ............................ July 16, 1999 ....................................... September 3, 1999.

Supplemental dates ............................. February 16, 2000 ............................... February 14, 2000 ............................... February 9, 2000.

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 587

B. What Previous Action Has Been

Taken on These SIP Revisions?

On September 28, 2000, and October

19, 2000, EPA published Notices of

Proposed Rulemaking on the Post-1996

plans for the Washington area (65 FR

58243 and 65 FR 62658). On December

16, 1999 (64 FR 70460), we proposed

approval of the attainment

demonstration and request for an

attainment date extension for the

Metropolitan Washington, DC area.

On February 22, 2000 (65 FR 8703),

EPA published a notice of availability

on guidance memoranda relating to the

ten one-hour ozone attainment

demonstrations (including the

Washington area) proposed for approval

or conditional approval on December

16, 1999. The guidance memoranda are

entitled: ‘‘Guidance on Motor Vehicle

Emissions Budgets in One-Hour Ozone

Attainment Demonstrations’’ dated

November 3, 1999, and ‘‘Guidance on

the Reasonably Available Control

Measures (RACM) Requirement and

Attainment Demonstration Submissions

for Ozone Nonattainment Areas’’ dated

November 30, 1999.

On July 28, 2000, EPA published a

supplemental notice of proposed

rulemaking (SNPR) on the attainment

demonstration (65 FR 46383). In that

supplemental notice, we clarified and

expanded on two issues relating to the

motor vehicle emissions budgets in

these SIPs. This supplemental notice is

discussed in the section entitled ‘‘What

was the scope of the July 28, 2000

Supplemental Notice of Proposed

Rulemaking?’’ below.

On October 16, 2000 (65 FR 61134),

another notice of supplemental

proposed rulemaking was published to

specifically support the proposed

attainment demonstration published on

December 16, 1999 for the four serious

ozone nonattainment areas (including

the Washington area). Originally, EPA

established a comment period for this

supplemental proposal ending on

October 31, 2000. A notice extending

the comment period on the October 16,

2000 notice was published on

November 2, 2000 (65 FR 65818). An

additional notice correcting a

typographical error was published on

November 9, 2000 (65 FR 67319). This

supplemental notice is discussed in the

section entitled ‘‘What was the scope of

the October 16, 2000 Supplemental

Notice of Availability?’’ below.

Comments received on all of the

proposed notices listed in this section

relevant to the Metropolitan

Washington, DC area attainment

demonstration, Post-1996 ROP plan and

attainment date extension are discussed

in section I. M. below.

C. What Were the Conditions for

Approval Provided in the Notice of

Proposed Rulemakings for the Post-1996

ROP Plans and the Attainment

Demonstrations?

On December 16, 1999 (64 FR 70460),

we proposed approval of the attainment

demonstration and request for an

attainment date extension for the

Metropolitan Washington, DC area. Our

approval was contingent upon certain

actions by Maryland, Virginia and the

District of Columbia (‘‘the District’’).

These actions were:

1. The District, Maryland and Virginia

each had to adopt and submit an

adequate motor vehicle emissions

budget and concurrently submit a list of

potential control measures that, when

implemented, would be expected to

provide sufficient additional emission

reductions to ensure nonattainment area

emissions in 2005 are equal to or less

than the 1999 control strategy levels

contained in the attainment

demonstrations considering growth.

These measures could not involve

additional limits on highway

construction beyond those that could be

imposed under the submitted motor

vehicle emissions budget. The states

and the District needed to submit the

revised budget and list of potential

measures in time to allow EPA to

determine the budgets adequate by May

31, 2000.

2. The District, Maryland and Virginia

each had to adopt and submit an

enforceable commitment, or reaffirm an

existing enforceable commitment to do

the following:

(a) Submit measures by July 1, 2000

for additional emission reductions, if

any, as required to ensure

nonattainment area emissions in 2005

are equal to or less than the 1999 control

strategy levels.

(b) Submit a revised SIP and motor

vehicle emissions budget by July 1, 2000

if additional measures affect the motor

vehicle emissions inventory.

(c) Submit a revised SIP and motor

vehicle emissions budget 1 year after the

mobile sources MOBILE6 model is

issued (required only if the attainment

SIPs include the benefits of EPA’s Tier

2/sulfur rule).

(d) Perform a mid-course review.

3. The District, Maryland and Virginia

each had to adopt and submit a rule or

rules for additional emission reductions

needed, if any, to ensure nonattainment

area emissions in 2005 are equal to or

less than the 1999 control strategy

levels. If any of these adopted measures

affected the motor vehicle emissions

budgets, then the District, Maryland and

Virginia each needed to adopt and

submit a revised SIP that incorporated

revised motor vehicle emissions budgets

reflecting such measures. These rules

and revised motor vehicle emissions

budgets, if any, needed to be submitted

by July 1, 2000.

D. What Amendments to the Attainment

Demonstration SIP did the Washington,

D.C., Area States’ Make Since December

16, 1999?

The following is a summary of such

submittals which include submittal

dates of revisions, the content of these

submissions and other pertinent facts

regarding these submissions:

On February 9, 14 and 16, 2000,

Virginia, Maryland and the District,

respectively, submitted the ‘‘State

Implementation Plan (SIP) Revision,

Phase II Attainment Plan for the

Washington DC–MD–VA Nonattainment

Area’’—dated February 3, 2000.

Hereafter in this notice the phrase ‘‘the

February 3 plan document’’ means the

document entitled ‘‘State

Implementation Plan (SIP) Revision,

Phase II Attainment Plan for the

Washington DC-MD-VA Nonattainment

Area’’ that was dated February 3, 2000.

These submittals contain the 2005

motor vehicle emissions budgets that

include Tier 2/sulfur benefits,

commitments to a mid-course review

and a list of potential control measures

(from which a set of measures could be

selected) that when implemented,

would be expected to provide sufficient

additional emission reductions to

ensure nonattainment area emissions in

2005 are equal to or less than the control

strategy levels contained in the modeled

demonstration of attainment. Also, they

contain a demonstration that sufficient

additional emission reductions are

included to ensure nonattainment area

emissions in 2005 are equal to or less

than the 1999 control strategy levels

contained in the attainment

demonstrations considering growth.

On March 22 and 31, 2000, the

District, Maryland and Virginia

submitted the ‘‘Proposed Revision to

State Implementation Plan (SIP)

Revision, Phase II Attainment Plan for

the Washington DC–MD–VA

Nonattainment Area, establishing the

out year Mobile Emissions Budgets for

Transportation Conformity’’—dated

March 22, 2000. (Hereafter in this notice

the phase ‘‘the March 22 plan

document’’ means the document

entitled ‘‘Proposed Revision to State

Implementation Plan (SIP) Revision,

Phase II Attainment Plan for the

Washington DC–MD–VA Nonattainment

Area, establishing out year Mobile

588 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

Emissions Budgets for Transportation

Conformity’’ that was dated March 22,

2000.) These submittals amended

chapters 1 and 9 of the February 3 plan

document. These submittals established

outyear budgets and submitted an

enforceable commitment to revise the

SIP and motor vehicle emissions budget

1 year after the MOBILE6 model is

issued. In today’s action EPA is acting

only on the commitment found in

section 9.1.1.2 entitled ‘‘Commitment to

Revise Mobile Emissions Budgets’’ to

revise the motor vehicle emissions

budget one-year after the MOBILE6

model is issued. The portions of the

March 22 plan document that establish

outyear budgets will be the subject of a

separate rulemaking action.

E. What State Enforceable Commitments

Were Needed for Approval?

Of the four enforceable commitments

described in the December 16, 1999,

NPR two are now moot: Numbers 2.a

and 2.b described in the section entitled

‘‘What were the conditions for approval

in our December 16,1999 Notice of

Proposed Rulemaking’’ above. The first

is moot because EPA has approved the

relevant rules. The Regional

Administrator has signed the final

action final approving the rules for

additional reductions, and these final

actions have been or shortly will be

published in the Federal Register. The

second is moot because none of these

new measures affect the motor vehicle

emissions budgets. Thus the relevant

criterion for approving the attainment

demonstration SIP is whether or not the

States and the District have submitted

SIP revisions to fulfill the other relevant

conditions for approval set forth in the

December 16, 1999 NPR.

Of the two remaining commitments

regarding the mid-course review and

revision of the motor vehicle emissions

budgets using the MOBILE6 model, the

States and the District submitted

specific enforceable commitments in the

February 3 and March 22 plan

documents to meet these conditions.

F. What Was the Scope of the July 28,

2000 Supplemental Notice of Proposed

Rulemaking?

On July 28, 2000, EPA published a

supplemental notice of proposed

rulemaking (SNPR) on the attainment

demonstration (65 FR 46383). In that

supplemental notice, we clarified and

expanded on two issues relating to the

motor vehicle emissions budgets in

these SIPs:

First, we proposed a clarification of

what occurs if we finalize conditional or

full approval of any of these SIPs based

on a State commitment to revise the

SIP’s motor vehicle emissions budgets

in the future. Under the proposal, the

motor vehicle emissions budgets in the

approved SIP will apply for

transportation conformity purposes only

until the budgets are revised consistent

with the commitment and we have

found the new budgets adequate. Once

we have found the newly revised

budgets adequate, then they would

apply instead of the previous

conditionally or fully approved budgets.

Normally, revisions to approved budgets

cannot be used for conformity purposes

until we approve the revised budgets

into the SIP. Therefore, we proposed to

clarify that when our approval of these

1-hour ozone attainment demonstrations

is based on a commitment to future

revisions to the budget, our approval of

the budget lasts only until revisions to

satisfy those conditions are submitted

and we find them adequate.

Second, we proposed that States may

opt to commit to revise their emissions

budgets 1 year after the release of the

MOBILE6 model, as originally proposed

on December 16, 1999. Or, States may

commit to a new option, i.e., to revise

their budgets 2 years following the

release of the MOBILE6 model,

provided that conformity is not

determined without adequate MOBILE6-

derived SIP budgets during the second

year. This proposal did not affect the

Metropolitan Washington, DC area

because the District, Maryland and

Virginia have submittted an enforceable

commitment to revise the motor vehicle

emissions budgets within one year after

the official release of the MOBILE6

model.

In addition, we reopened the

comment period to take comment on

these two issues and to allow comment

on any additional materials that were

placed in the dockets for the proposed

actions close to or after the initial

comment period closed on February 14,

2000 (65 FR at 46383, July 28, 2000). For

many of the areas, additional

information had been placed in the

docket close to or since the initial

comment period concluded. In general,

these materials were identified as

consisting of motor vehicle emissions

budgets, and revised or additional

commitments or reaffirmations

submitted by the States (65 FR at 46387,

July 28, 2000).

G. What Was the Scope of the October

16, 2000 Supplemental Notice of

Availability?

On October 16, 2000 EPA published

a Notice of Availability and reopening

of the comment period (65 FR 61134).

This notice was in regards to an

analysis to evaluate emission levels of

oxides of nitrogen ( NOX) and volatile

organic compounds (VOC) and their

relationships to the application of

current and anticipated control

measures expected to be implemented

in four serious one-hour ozone

nonattainment areas. This analysis was

done to determine if additional

reasonably available control measures

(RACM) are available after adoption of

Act required measures for the following

serious ozone nonattainment areas:

Greater Connecticut; Springfield,

Massachusetts; Washington, D.C.-

Virginia-Maryland; and Atlanta,

Georgia. The EPA performed this

analysis in response to comments that

were submitted on the proposals on

these areas’ one-hour ozone attainment

demonstrations. The EPA took action to

propose approval (and disapproval in

the alternative) of these areas’ State

implementation plans (SIPs) on

December 16, 1999 (Greater Connecticut

(64 FR 70332); Springfield (64 FR

70319); Metropolitan Washington (64

FR 70460); and Atlanta (64 FR 70478)).

This information supplemented the

December 16, 1999 proposals.

H. When Did EPA Make a

Determination Regarding the Adequacy

of the Motor Vehicle Emissions Budgets

for the Metropolitan Washington, DC

Area?

The District, Maryland and Virginia

submitted revisions to the attainment

plan SIP for the Metropolitan

Washington, D.C. area on February 16,

14 and 9, 2000, respectively. These

revisions contained revised motor

vehicle emissions budgets for the

attainment year of 2005 with a list of

control measures that, when

implemented, would be expected to

provide sufficient additional emission

reductions to ensure nonattainment area

emissions in 2005 are equal to or less

than the 1999 control strategy levels

contained in the attainment

demonstrations considering growth. On

January 6, 2000, December 22, 1999, and

December 28, 1999, the District, Virginia

and Maryland, respectively, reaffirmed

their existing enforceable commitments.

The lists of measures were identified in

Tables 6–1 and 6–2 of the February 3,

2000 plan document.

On March 2, 2000, a notice was

posted on EPA’s website commencing

the comment period on the adequacy of

the motor vehicle emissions budgets in

these February 2000 SIP revisions for

the Washington DC area. That notice

also informed the public that the entire

revised attainment plan submitted by

the District, Maryland and Virginia had

been posted by them electronically.

EPA’s March 2, 1999 website notice also

provided a link to and the address for

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 589

the website where interested members

of the public could access the

attainment plan. EPA’s adequacy public

comment period closed on April 3,

2000. No public comments were

received pursuant to EPA’s March 2,

2000 posting. We did receive comments

on the adequacy of the budgets pursuant

to our December 16, 1999 NPR. The

comments relevant to the adequacy

determination of these budgets were

addressed in a response to comments

document portion of the technical

support document prepared for the

adequacy determination. The finding

that the budgets of the revised

attainment plan are adequate were made

in letters, dated May 31, 2000, from EPA

Region III to the Maryland Department

of the Environment, Virginia

Department of Environmental Quality

and the District of Columbia

Environmental Regulation

Administration. In a June 8, 2000,

Federal Register notice we announced

that we had determined the budgets

contained in the February 2000

submissions were adequate (65 FR

36439). These findings were effective on

June 23, 2000.

These budgets included the benefits

of EPA’s Tier 2/sulfur rule. The District,

Maryland and Virginia have an

acceptable commitment to revise the

attainment year motor vehicle emissions

budgets using the MOBILE6 model one

year after the release of the MOBILE6

model.

I. What SIP Elements Did EPA Need To

Take Final Action on Before Full

Approval of the Attainment

Demonstration Could Be Granted?

In the NPR for the Metropolitan

Washington, DC attainment

demonstration SIP published on

December 16, 1999, EPA noted in Tables

3 through 6 the status of many of the

control measures or part D requirements

of the Act for serious areas. Not all of

these were approved on the date of the

NPR. The following provides the status

of these SIP elements:

On October 29, 1999, EPA approved

Maryland’s enhanced vehicle inspection

and maintenance SIP (64 FR 58340).

On October 27, 1999, EPA approved

the District’s Non-CTG VOC RACT rule

and rules for Stage II, surface cleaning

and degreasing and graphic arts rule (64

FR 57777).

On December 28, 1999, EPA approved

Maryland’s and Virginia’s national low

emission vehicle (NLEV) SIPs (64 FR

72564).

On July 20, 2000, EPA approved the

District’s national low emission vehicle

(NLEV) SIP (65 FR 44981).

On July 19, 2000, and October 6,

2000, EPA approved Maryland’s and

Virginia’s, respectively, 15% VOC

Reduction Plans (65 FR 44686 and 65

FR 59727, respectively).

On November 3, 1999, EPA approved

Virginia’s surface cleaning and

degreasing rules (64 FR 59635).

Elsewhere in today’s Federal Register

EPA is approving Maryland’s new

source review regulation for the

Metropolitan Washington, D.C. area.

EPA is not crediting the Virginia

attainment demonstration or Post-1996

ROP plan for measures from VOC

sources subject to the Non-CTG RACT

or the expanded point source

regulations to 25 TPY measure

requirements unless source specific

limits are approved into the SIP. One of

the source specific rules was approved

on January 22, 1999 (64 FR 3425) as

well as a category specific rule covering

lithographic printing operations on

March 12, 1997 (62 FR 11334). The

Regional Administrator of EPA Region

III has signed a final action approving

the remaining source specific RACT

rules. That action has been or will be

published shortly in the Federal

Register.

Maryland has a state-wide Non-CTG

RACT rule which statutorily had to

cover 50 TPY sources in the Washington

area and which Maryland lowered the

applicability of the Non-CTG rule to 25

TPY. Because EPA has not finished

action on all the source specific RACT

determinations for other parts of the

state, EPA has not fully approved the

state-wide Non-CTG RACT rule.

However, Maryland has submitted

RACT regulations for all relevant

sources located in the Washington area,

and EPA has determined that Maryland

is not taking credit for any RACT

reductions from sources or categories of

sources in the attainment demonstration

or Post-1996 ROP plan for which there

is not a SIP-approved RACT rule. These

rules had been approved into the SIP

prior to December 16, 1999. These rules

covered categories such as structural

steel coating, explosives and propellant

manufacturing, bakeries, and other

categories. Further details are

documented in the technical support for

this final action.

On December 14, 2000, the Regional

Administrator signed a final action

approving the District’s NOX RACT rule.

That action has been or will be

published shortly in the Federal

Register.

On December 15, 2000, the Regional

Administrator signed final actions

approving Maryland’s and Virginia’s

NOX RACT rules. The Virginia final

approval also included RACT

determinations for Non-CTG major VOC

sources. These actions have been or will

be published shortly in the Federal

Register.

On December 15, 2000, EPA approved

into the SIP the Maryland’s NOX budget

rule consistent with the OTC MOU

Phase II (65 FR 78416).

On December 14, 2000, the Regional

Administrator signed a final action

approving the District’s beyond RACT

rule for large NOX sources. That action

has been or will be published shortly in

the Federal Register.

On December 14, 2000, EPA approved

into the SIP two Virginia permits that

impose a 0.15 pounds of NOX per

million BTU heat input on emissions

units at two electric generating facilities

in the Washington area (65 FR 78100).

On December 14, 2000, the Regional

Administrator signed a final action

approving the Maryland’s NOX SIP Call

state-wide rule. That action has been or

will be published shortly in the Federal

Register.

J. What Are the Clean Air Act Measures

Relied on for the Post-1996 and

Attainment Demonstration SIP

Submission?

TABLE 3.—CONTROL MEASURES IN THE 1-HOUR OZONE POST-1996 ROP AND ATTAINMENT PLANS FOR THE

METROPOLITAN WASHINGTON NONATTAINMENT AREA

Control measure Type of measure Credited in post1996 plan

Credited in attainment plan

Enhanced Inspection & Maintenance .................................................... Approved SIP ................................ Yes ................... Yes.

Federal Motor Vehicle Control program ................................................ Federal .......................................... Tier 1 ................ Tier 1 and 2.

NLEV ...................................................................................................... Approved SIP opt-in ...................... Yes ................... Yes 1.

Reformulated Gasoline (Phase 1 & 2) ................................................... State opt-in .................................... Phase 1 ............ Phase 2.

Transportation Control Measures (TCM) ............................................... Approved SIP ................................ Yes ................... Yes.

Federal Non-road Gasoline Engine standards ...................................... Federal .......................................... Yes ................... Yes.

590 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

TABLE 3.—CONTROL MEASURES IN THE 1-HOUR OZONE POST-1996 ROP AND ATTAINMENT PLANS FOR THE

METROPOLITAN WASHINGTON NONATTAINMENT AREA—Continued

Control measure Type of measure Credited in post1996 plan

Credited in attainment plan

Federal Non-road Heavy Duty diesel engine standards ....................... Federal .......................................... Yes ................... Yes.

Railroad Locomotive Controls ................................................................ Federal .......................................... No ..................... Yes.

NOX RACT ............................................................................................. Approved SIP ................................ Yes ................... Yes.

Non-CTG RACT to 50 tpy ...................................................................... Approved SIP ................................ Yes ................... Yes.

VOC Point Source Regulations to 25 tons/year 2 .................................. Approved SIP ................................ Yes ................... Yes.

Stage II Vapor Recovery 3 & On-board Refueling Vapor Recovery

(ORVR).

Approved SIP; Federal ................. Yes ................... Yes.

AIM Surface Coatings ............................................................................ Federal .......................................... Yes ................... Yes.

Consumer & commercial products ......................................................... Federal .......................................... Yes ................... Yes.

Autobody refinishing .............................................................................. Federal .......................................... Yes ................... Yes.

Surface Cleaning/Degreasing ................................................................ Approved SIP ................................ Yes ................... Yes.

Open Burning Ban 2 ............................................................................... Approved SIP ................................ Yes ................... Yes.

Stage I Vapor Recovery 4 ...................................................................... Approved SIP ................................ Yes ................... Yes.

Graphic Arts ........................................................................................... Approved SIP ................................ Yes ................... Yes.

Heavy Duty Diesel Engines (On-road) .................................................. Federal .......................................... No ..................... Yes.

Beyond RACT NOX Requirements on Utilities ...................................... Approved SIP ................................ No ..................... Yes.

Notes:

1To the extent NLEV not superceded by Tier 2.

2 Maryland and Virginia only.

3 Reduction credits calculated for Maryland and Virginia only. The District required implementation of Stage II in 1985 for most sources, and

claimed no reductions since 1990. (The District’s Stage II regulation was amended after 1990 to comply with the requirements for Stage II controls set forth in the 1990 amendments to the Clean Air Act. EPA has approved the District’s rule into the SIP. 4 Reductions only in those additional areas in Maryland and Virginia that were added to the Metropolitan Washington D.C. area after 1990.

K. What Are the Conformity Budgets in the Post-1996 ROP Plans and the Attainment Demonstrations?

TABLE 4.—TRANSPORTATION CONFORMITY BUDGETS FOR THE WASHINGTON AREA

VOC (tons/

day)

NOX (tons/

day)

Post-1996

ROP Plan .. 128.5 196.4

One-hour

Ozone Attainment

Demonstration ............ 101.8 161.8

EPA has concluded that the SIP

demonstrates attainment with these

budgets and contains the measures

necessary to support these budgets.

L. What Happens to the 2005 Budgets

When States Change Their Budgets

Using the MOBILE6 Model?

All States whose attainment

demonstration includes the effects of

the Tier 2/sulfur program were required

to revise and resubmit their motor

vehicle emissions budgets after EPA

releases the MOBILE6 model. On March

22, 2000, March 31, 2000, and March

31, 2000, the District, Maryland and

Virginia, respectively, submitted a

commitment to revise the 2005 motor

vehicle budgets in the attainment

demonstrations within one year of

EPA’s release of the MOBILE6 model. If

the State fails to meet its commitment

to submit revised budgets using the

MOBILE6 model, EPA could make a

finding of failure to implement the SIP,

which would start a sanctions clock

under Clean Air Act section 179.

As we proposed on July 28, 2000, the

final approval action we are taking

today on the 2005 attainment budgets

will be effective for conformity purposes

only until revised motor vehicle

emissions budgets are submitted and we

have found them adequate. In other

words, the budgets we are approving

today as part of the attainment

demonstration will apply for conformity

purposes only until there are new,

adequate budgets consistent with the

States’ commitments to revise the

budgets. The revised budgets will apply

for conformity purposes as soon as we

find them adequate.

We are limiting the duration of our

approval in this manner because we are

only approving the attainment

demonstrations and their budgets

because the States have committed to

revise them. Therefore, once we have

confirmed that the revised budgets are

adequate, they will be more appropriate

than the budgets we are approving for

conformity purposes now.

If the revised budgets raise issues

about the sufficiency of the attainment

demonstration, EPA will work with

States on a case-by-case basis. If the

revised budgets show that motor vehicle

emissions are lower than the budgets we

are approving today, a reassessment of

the attainment demonstration’s analysis

will be necessary before reallocating the

emission reductions or assigning them

to the motor vehicle emissions budget as

a safety margin. In other words, the area

must assess how its original attainment

demonstration is impacted by using the

MOBILE6 model vs. the MOBILE5

model before it reallocates any apparent

motor vehicle emission reductions

resulting from the use of the MOBILE6

model.

M. What Comments Were Received on

the Proposed Approvals and How Has

EPA Responded to Those?

EPA received comments from the

public on the Notice of Proposed

Rulemaking (NPR) published on

December 16, 1999 (64 FR 70319) for the

Washington area’s ozone attainment

demonstration and Post-1996 ROP plan.

Comments were received from the

Robert E. Yuhnke on behalf of

Environmental Defense and Natural

Resources Defense Council; the Midwest

Ozone Group; and from the EarthJustice

Legal Defense Fund (EarthJustice), on

behalf of the following organizations:

Virginia Chapter of the Sierra Club,

Audubon Naturalist Society,

Chesapeake Bay Foundation,

Environmental Defense, Coalition for

Smarter Growth, Washington Regional

Network for Livable Communities,

Piedmont Environmental Council, and

Southern Environmental Law Center.

EPA also received comments from the

public on the supplemental proposed

rulemaking published on July 28, 2000

(65 FR 46383), in which EPA clarified

and expanded on two issues relating to

the motor vehicle emissions budgets in

the attainment demonstration SIPs.

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 591

Comments were received from

Environmental Defense.

EPA received comments from the

public on the supplemental proposed

rulemaking published on October 16,

2000 (65 FR 61134) to support the

proposed attainment demonstration

published on December 16, 1999. In that

notice, EPA made available an analysis

it had performed to evaluate emission

levels of oxides of nitrogen ( NOX) and

volatile organic compounds (VOC) and

their relationships to the application of

current and anticipated control

measures expected to be implemented

in four serious one-hour ozone

nonattainment areas. Comments

applicable to the Metropolitan

Washington, DC area nonattainment

area were received from the

EarthJustice.

EPA received additional comments on

the District’s Post-1996 ROP plans for

the Metropolitan Washington, D.C. area

from the EarthJustice in response to the

September 28, 2000 proposal (65 FR

58243) on the Post-1996 ROP plan

submitted by the District, and from the

EarthJustice, on behalf of the Maryland

and Virginia Chapters of the Sierra Club

in response to the October 19, 2000

proposal (65 FR 62658) on the Post-1996

ROP plans submitted by Maryland and

Virginia.

A summary of the comments received

on this action are provided in section II

‘‘Response to Comments’’.

II. Response to Comments

The following discussion summarizes

and responds to the comments received

on all of the proposed actions

summarized in section I.B. above.

A. Attainment Date Extension Policy

In these responses, EPA addresses

both the comments received on this

rulemaking and those received in

Docket A–98–47 on its notice regarding

‘‘Extension of Attainment Dates for

Downwind Transport Areas’’ 64 FR

12221 (March 25, 1999), insofar as here

relevant. This includes responses to

comments filed by EarthJustice and

incorporated by reference in later

comments filed on proposed EPA

actions on the individual areas. General

comments on the policy are considered

first. Then specific comments as applied

to the area are addressed.

1. Comments Received in Response to

March 1999 Notice

Comment 1: EPA does not have the

legal authority to extend the attainment

deadline for serious areas until hopedfor NOX reductions occur from upwind

states in response to the NOX SIP Call

and/or section 126 actions . Such an

extension is not authorized by any

provision of the statute. It is not within

EPA’s discretion to extend the

attainment dates for downwind areas

classified as moderate or serious. The

Act does not authorize EPA to extend

attainment deadlines. Congress

provided express attainment deadlines

in the Clean Air Act, and EPA is

without authority to create exemptions

from them. Section 181 provides the

only exception to the general rule that

areas must meet their attainment dates,

and is the exclusive remedy. Section

181(a)(5) allows a one-year extension if

the state has complied with all

requirements and commitments in the

applicable SIP and had no more than

one exceedance in the attainment year.

In section 181(a)(5), Congress provided

other authority for extending attainment

dates, but not to address effects of

transport. See sections 181(a)(5). Section

181(b)(2)(A) requires reclassification for

failure to attain by the attainment date.

Section 182 requires submissions of

attainment plans by the applicable

attainment date. EPA’s policy violates

these express provisions. The statutory

deadlines for attainment, the

requirement that SIPs adopt measures

adequate to provide for attainment by

the statutory deadlines, the statutory

limitation on EPA’s authority to extend

attainment dates under section 181(b),

and the procedures to be followed in the

event an area fails to attain by the

deadline are unequivocal and

unambiguous, and compliance is

required under step one of Chevron. The

extension policy is inconsistent with

sections 182(b)(1)(A), 182(c)(2)(A) and

172(c)(1), which require each

nonattainment area to provide for

attainment and submit SIPs providing

for attainment by the applicable

deadline. There is no exemption from

these mandates for downwind areas that

can attain through local reductions, but

find it difficult to do so. The EPA policy

is also inconsistent with the Phoenix

reclassification action, which stated that

EPA had no flexibility to provide for

attainment date extensions in that

circumstance. In section 181(i) Congress

refused to give EPA authority to extend

attainment dates in light of

reclassification.

Response 1: The absence of an express

provision in the Clean Air Act for an

attainment date extension based on

transport does not deprive EPA of the

authority to interpret the Act to permit

such an extension. Nor do the specific

attainment date extension provisions in

the statute preclude EPA’s interpreting

the statute to allow for an extension to

account for upwind transport that has

interfered with downwind attainment.

This interpretation is necessary to

prevent the thwarting of Congressional

intent not to unfairly burden downwind

areas. In various parts of the statute,

Congress expressed an intent to

accomplish this through provisions

prohibiting transport, but these

provisions failed to achieve the

Congressional goal in time to allow the

downwind areas to meet their originally

prescribed attainment dates.

The provisions of section 182

governing reclassification also do not

prohibit EPA from interpreting the Act

to provide for an attainment date

extension based on transport. EPA’s

policy of extending attainment dates for

ozone nonattainment areas affected by

transport of ozone and ozone precursors

represents a reasonable effort to avoid

the frustration of Congressional intent to

which a literal application off the

reclassification provisions would lead.

Where a ‘‘literal reading of the statute

would actually frustrate the

congressional intent supporting it, [a

court may uphold] an interpretation of

the statute more true to Congress’s

purpose.’’ EDF v. EPA, 82 F.3d 451, 468

(D.C. Cir. 1996).

In 1990, Congress established a

classification scheme for ozone

nonattainment areas that provided for

those areas to be classified on the basis

of the severity of their ozone problems

and for areas with more serious

problems to be given more time to

attain, but also required to implement

more control measures. As part of these

provisions, Congress enacted the

reclassification provisions under which

ozone nonattainment areas that failed to

attain the ozone standard as of their

attainment dates were to be reclassified

to a higher classification, thereby

receiving an extension of their

attainment date, but also being

subjected to additional control

requirements. See section 181(b)(2).

On their face, the reclassification

provisions do not provide for any

exemption from the reclassification

process for areas affected by ozone

transport from other States. However,

EPA believes that, in light of

developments since the enactment of

the 1990 Clean Air Act Amendments, a

literal application of those provisions to

such areas would frustrate broader

congressional intent. In this context it is

important to recognize that, apart from

the ozone reclassification provisions,

the Act contains a provision—section

110(a)(2)(D)—that obligates upwind

states to prohibit pollution—including

ozone and its precursors—from sources

within the state that contribute

significantly to nonattainment and

592 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

maintenance problems in downwind

states. Congress was cognizant of the

need to control such emissions, and of

the inequities between upwind and

downwind sources that could result if

upwind states did not impose emission

controls on their sources that contribute

to downwind air quality problems.

Congress thus sought to establish a

regime that would eliminate such

inequities.

The legislative history of the 1977

Clean Air Act Amendments regarding

the enactment of section 110(a)(2)(E),

the predecessor of section 110(a)(2)(D),

and section 126 (a provision that allows

EPA to directly regulate sources that

significantly contribute to

nonattainment in another state) clearly

demonstrates this. The Senate

Committee Report criticized the lack of

effective ‘‘interstate abatement

procedures’’ and ‘‘interstate

enforcement actions’’ under existing

law, which the Committee viewed as

‘‘resulting in serious inequities among

several States, where one State may

have more stringent implementation

plan requirements than in another

State.’’ S.Rep. No. 95–127 at 41,

reprinted in 3 1977 Legis. Hist. 1416. It

is reasonable to assume that Congress,

when it enacted the ozone

reclassification regime in 1990, would

have expected that upwind states would

have in place implemented SIP

provisions that would eliminate

significant contributions, as required by

section 110(a)(2)(D), by the time

downwind areas were obligated to attain

the ozone standard. If that had

happened, downwind areas that failed

to attain by their attainment dates

would have failed to attain as a

consequence of their own failures to

adopt necessary controls, not as a

consequence of the failure of other

states to adopt and implement controls

necessary to eliminate the contribution

of their own sources to the downwind

area’s nonattainment problem.

Such controls were not in place,

however, since, as explained in EPA’s

transport policy, it in fact took many

years for EPA and the States to gain a

sufficient understanding of the

interstate ozone transport problem to

determine the appropriate division of

control responsibilities between the

upwind and downwind States under the

Clean Air Act. It was only through the

work of the Ozone Transport

Assessment Group (OTAG), which

consisted of members from states,

industry and environmental groups, and

EPA’s subsequent NOX SIP Call,

promulgated in October, 1998, that the

division of responsibilities among the

states was established. Consequently,

the fruits of those efforts—the

implementation of the control measures

in upwind states that were needed to

eliminate the significant contribution of

sources in those states—would not ripen

until 2003 or 2004, years after the

statutory attainment dates for areas such

as Springfield, MA. Moreover, because

the allocation of responsibility for

transport was not made until late 1998,

the prohibitions on upwind

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

and section 126 could not be enforced

prior to the attainment dates of areas

such as Washington, DC, Greater

Connecticut and Springfield, MA. Nor

could Congress intend that the upwind

areas with later attainment dates

accelerate the timetables provided for

their own attainment as an indirect

means of controlling transported

pollution in the absence of data on

transport impacts.

To apply the reclassification

provision of section 181(b) without

taking into account the timing of the

identification and implementation of

the emission reductions needed to

eliminate the significant contribution of

the upwind states to the downwind

states would lead to the result that the

downwind states’ sources are required

to implement potentially costly control

measures to offset the effects of upwind

state pollution—pollution that EPA has

now determined must be prohibited

under the Act and pollution that will

soon be eliminated as a result of the

NOX SIP Call and by emissions

reductions in upwind states with later

attainment dates. Imposing on

downwind areas the burden of

controlling for pollution attributable to

upwind sources would compound the

inequities that Congress was seeking to

avoid with the enactment of sections

110(a)(2)(D) and 126, thereby frustrating

Congressional intent. Moreover, such a

result would be at odds with the kind

of concerns that led Congress to adopt

section 179B for international border

areas—concerns that areas not be held

accountable for pollution over which

they exercise no control.

Section 181(b)(2) provides that EPA

should determine whether an area

attained the standard ‘‘within six

months following the applicable

attainment date (including any

extension thereof).’’ This reference to

extensions in section 181(b)(2) is not

limited to extensions granted under

section 181(a)(5). Nor does section

181(a)(5) state that Congress intended it

to be the only source for an extension.

Moreover, section 181(a)(5) addresses

only one specific type of an extension.

The fact that Congress provided an

extension based on air quality that is

near attainment at the time of its

deadline does not imply that Congress

precluded the Administrator from

conferring extensions based on other

considerations—such as the case when

air quality is affected by downwind

transport. The principle underlying

section 181(a)(5)—that areas should not

be reclassified if they have done enough

to control local air pollution but are still

not able to attain—also applies in the

case of downwind transport. Section

181(a)(5) shows that Congress was not

unalterably opposed to extensions of

attainment dates without requiring an

area to be subjected to reclassification

and the increased control burdens that

go with reclassifications. Indeed, section

181(a)(5) indicates that Congress wanted

to extend attainment dates without

adding control obligations when an area

had done what was apparently

sufficient to bring it into attainment.

The United States Court of Appeals

for the District of Columbia Circuit has

previously held that EPA may extend

SIP submission deadlines even without

explicit statutory authorization. In

Natural Resources Defense Council, Inc.

versus EPA, 22 F.3d 1125, 1135–36, the

Court upheld EPA’s extension of a

statutory deadline for submission of

NOX rules and a NOX exemption request

under section 182(f). Although the Court

did not use the theory advanced by

EPA, the court did find that the Agency

had authority under the CAA to extend

the deadline. EPA had found that

additional time would be needed for

States to conduct photochemical grid

modeling in order to document the

effects of NOX reductions on an area.

EPA had found that ‘‘the time needed to

establish and implement a modeling

protocol and to interpret the model

results will, in a variety of cases, extend

beyond the November 15, 1992 deadline

for submission of NOX rules.’’ EPA thus

extended the submission deadline,

provided the states could show that

modeling was not available or did not

consider effects of NOX reductions and

that the states submit progress reports

on the modeling. The DC Circuit upheld

EPA’s extension of the deadline and of

EPA’s time to review the submissions

and make an exemption determination.

The Court found that ‘‘because only a

single NOX RACT submission is

required under the statute, it is logical

to infer that Congress intended data

supporting exemptions to be included

in that submittal and that the EPA have

the full 14-18 months to review them

and to make an exemption

determination.’’ Even in the absence of

explicit statutory authority, the Court

held that ‘‘had Congress foreseen the

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 593

exemption timing problem, a matter

outside the EPA’s control, it would have

elected to accord the EPA the full

statutory review time.’’ 22 F.3d at 1136.

The court ruled that ‘‘under the

circumstances here the NOX RACT

deadlines were properly extended to

further the Clean Air Act’s purposes.’’

Id. At 1137.’’

Here, similarly, EPA’s and the states’

inability, until the OTAG and NOX SIP

Call process was completed, to

document the impacts of upwind areas

on the attainment status of downwind

areas, and to assess and allocate

responsibilities among the areas, caused

a delay in meeting the attainment

deadlines. EPA believes that, had

Congress foreseen this timing problem,

it would have elected to accord the

states and EPA more time to meet the

attainment deadlines without imposing

reclassification requirements on

downwind areas. As in the case of the

delayed photochemical grid modeling

needed for the NOX submissions at issue

in NRDC versus EPA, EPA has shown

that the ability to document and analyze

ozone transport was delayed. And as

with the criteria imposed on areas

seeking NOX submission extensions in

NRDC, EPA has required analogous

showings by the states, limiting the

extensions to those areas that document

a transport problem and that submit

attainment demonstrations and adopt

local measures to address the pollution

that is within local control.

As for Section 182(i), it has no bearing

on the authority of the Administrator

with respect to the attainment date

extensions at issue here. Section 182(i)

applies to the authority of the

Administrator after an area has been

reclassified, and relates to the setting of

an attainment date for the reclassified

area. It does not apply to an area that is

not being reclassified, but rather is being

granted an extension of its attainment

date that effectively defers the

applicability of the reclassification

provisions. Here, EPA is authorizing an

attainment date extension to relieve an

area from reclassification requirements,

and thus 182(i) does not apply. The

section explicitly applies to an area that

has already been reclassified, and

indicates nothing about the authority of

the Administrator to extend an area’s

attainment date prior to a determination

that the area must be reclassified. Nor

does section 182(i) indicate

Congressional intent to deny EPA

authority to interpret the Act

consistently with provisions designed to

prevent downwind areas from being

forced to compensate for upwind

pollution.

Comment 2: The Act does not

authorize EPA to extend the time for

implementation of adopted local control

measures. EPA’s approach allows

downwind areas to defer

implementation of local measures until

the extended attainment deadline,

thereby precluding any determination

that the local measures have achieved

the degree of emission reduction

necessary to provide for attainment

when the upwind sources are

controlled. EPA unlawfully proposes to

allow attainment date extensions for

downwind areas to implement local

control measures. Under sections

182(b)(l), 182(c)(2)(A), and 172(c)(1),

downwind areas must provide for

attainment of the NAAQS, and EPA

unlawfully seeks to lessen these

statutory obligations.

Response 2: As explained in Response

1, above, EPA’s attainment date

extension policy aims to effectuate, not

frustrate the intent of Congress, by

providing for an equitable allocation of

responsibilities between upwind and

downwind areas. Under EPA’s

interpretation, when an upwind area

interferes with a downwind area’s

ability timely to attain the standard, the

downwind area retains the obligation to

adopt all applicable local measures, and

to implement them as expeditiously as

practicable, but no later than the date by

which the upwind reductions needed

for attainment will be achieved.

Moreover, EPA requires that the area

submit an approvable attainment

demonstration containing any

necessary, adopted local measures and

showing that, assuming the appropriate

upwind emission reductions, the area

will attain the 1-hour standard no later

than the final NOX SIP Call and/or the

upwind area’s attainment date. Thus

both the upwind and downwind areas

are held accountable for their respective

shares of the emissions reductions

required to achieve attainment in the

area. EPA views this coordination of the

responsibilities of the upwind and

downwind areas not as a lessening of

the statutory obligations, but as a

reconciliation of them with the reality of

air transport as we have come to

understand it, and with the intent of

Congress that areas make expeditious

progress towards attainment without

sacrificing basic principles of fairness.

The attainment date extension policy

thus will still lead to attainment as

expeditiously as practicable, taking into

account the upwind contribution.

Indeed, given the impact of upwind

areas’ contributions and the need for

upwind area emissions reductions,

requiring local contributions earlier

would not accelerate attainment,

considering that EPA is requiring

downwind areas to implement local

controls as expeditiously as practicable.

Moreover, the difficulty of assessing

relative contributions and

responsibilities of upwind and

downwind areas until the completion of

the OTAG effort and the NOX SIP Call

lends support to extending attainment

deadlines in these circumstances, even

without express statutory permission.

See NRDC versus EPA, discussed supra,

in Response to Comment 1.

Comment 3: Reclassification alone has

no immediate or mandated regulatory

consequence. A SIP revision can consist

of a showing that attainment will result

from implementation of emission

reductions already required pursuant to

the SIP Call. EPA’s Extension Policy is

inconsistent with Clean Air Act sections

179 (c) and (d). This provision does not

require additional local control

measures beyond those previously

approved implemented by the State if

adequate control measures have been

adopted for upwind areas and are in the

process of being implemented.

Response 3: Reclassification does

impose regulatory consequences.

Section 182(i) requires that ‘‘each state

containing an ozone nonattainment area

reclassified under section 181(b)(2) shall

meet the requirements of subsections (b)

through (d) of this section as may be

applicable to the area as reclassified.’’

Thus the area must meet the more

stringent requirements of a higher

classification, including new source

review offsets and changes in cutoffs for

permitting. The provisions of section

181(b) apply to reclassification of ozone

areas. Sections 179 (c) and (d) do not

apply to ozone areas that are classified

as marginal, moderate, or serious, which

are subject to the requirements of

section 181, if EPA determines that they

failed to attain the ozone standard as of

the applicable attainment date pursuant

to that section.

Comment 4: Sections 176 and 184 of

the Act do not support EPA’s extension

policy. Congress left no room in the

statute for attainment date extensions

for downwind areas, considering

instead the additional recommended

OTC control measures for upwind areas

to be sufficient. Sections

110(a)(2)(D)(i)(1) and 110(a)(2)(A) do not

authorize the EPA policy. Section

110(a)(2)(D) imposes a burden only on

upwind states and does not relieve

downwind states of their obligation to

attain by the pre-set attainment dates.

EPA lacks the authority to rewrite the

extension authority Congress wrote into

sections 181 (a)(4) and (b)(3). Congress

was well aware of the transport problem

594 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

and addressed it in explicit provisions,

including section 110(a)(2)(D), section

110(a)(2)(A), section 184, section 176A,

section 126, section 182(h), and section

181(a)(4). Thus Congress knew how to

address pollutant transport and how to

draft an attainment date extension

addressed to it when it wished to do so.

It also provided for voluntary

reclassification under section 181(b)(3)

to be available for downwind areas that

are affected by transport. Congress dealt

with transport explicitly in sections

181(a)(4), 182(h) and 182(j)(2). Congress

knew how to exempt transport-affected

areas from control requirements if it

wanted to, as it did for rural transport

areas under section 182(h). Congress

limited relief for areas subject to

transport to exemption from sanctions,

but did not extend this to section 110(c)

FIPs. H.R. 101-490, at 248. This shows

Congress’ intent to apply all of the Act’s

enforcement tools except for sanctions

under section 179. Congress considered

the effects of transport, but not in the

reclassification context. Congress did

provide for attainment date extensions,

but not in this context.

Response 4: Having crafted provisions

in the 1990 Amendments that it

believed would be adequate to address

the problem of downwind

nonattainment, Congress did not

expressly provide for an attainment date

extension based on transport. But the

absence of such a provision does not

prevent EPA from inferring that

Congress would have intended to

provide such relief should the express

provisions fail to function as

envisioned. In fact, the manner in which

Congress did address the issue of

transport shows that EPA’s

interpretation is consistent with

Congress’ approach in other sections of

the Act. EPA’s interpretation resolves

the problem that arose when the express

statutory tools failed to function as

Congress had envisioned. It also, as EPA

pointed out in its guidance, 61 FR 14441

(March 25, 1999), provide a means to

reconcile the attainment demonstrations

and attainment date requirements for

downwind areas with the graduated

attainment date scheme and schedule

for achieving reductions in the upwind

areas. Although Congress intended that

upwind areas be responsible for

preventing interference with downwind

areas’ attainment dates, it also expressly

allotted more time for certain upwind

areas to reduce their emissions so as to

attain the standard.

Sections 110(a)(2)(D), 126, 184 and

176, provide principles for dealing with

transport, most importantly the

principle that upwind areas be held

accountable for reducing emissions that

interfere with the ability of downwind

areas to attain the ozone standard. EPA

disagrees with commenters that

Congress intended section 110(a)(2)(D)

and the other transport provisions to

exclude the possibility of relief for

downwind areas even if no timely and

adequate recourse against transport was

in fact available to them. These sections

express Congressional intent that

downwind states not be saddled with

responsibility for pollution beyond their

control. Their premise was that there

would be a means of redress against

upwind states prior to the downwind

area’s attainment date—a means that

also would not be at odds with

Congress’ decision to provide longer

attainment periods for upwind areas

confronting onerous pollution problems.

But, as EPA pointed out in its guidance,

there was in fact no practicable way to

carry out the Congressional scheme

until a much more comprehensive

understanding of the complex facts of

ozone transport could be achieved.

Although Congress in the 1990

Amendments and in prior versions of

the Clean Air Act attempted to deal with

the issue of transport, the reality of the

problem proved far more complicated

and intractable than expected. As

explained in EPA’s guidance, 64 FR

14441 (March 25, 1999), it took many

years for EPA and the states to study,

analyze, and attempt to resolve the

allocation of responsibility for

transported ozone pollution. EPA’s

initial efforts included a policy

memorandum addressing the issue of

overwhelming transport in 1994. The

Ozone Transport Assessment Group was

launched in 1995. Through this

collaborative process, EPA, 37 states

and industry and environmental groups

tackled the problem of allocating

responsibility for transport in its

Overwhelming Transport Policy. During

the period required for this effort, the

resolution of regional transport issues

was held in abeyance. It was not until

late in 1998 that the conclusion of the

OTAG and SIP Call processes resulted

in assignments of responsibility that

could assist in the design of SIPs and

the formation and implementation of

attainment demonstrations. 63 FR 57356

(Oct 27, 1998) (NOX SIP Call Rule). In

May 1999, these efforts were reinforced

when EPA approved petition submitted

under Clean Air Act section 126 by

northeast states to mandate federal

controls on utilities and other large NOX

emitters in upwind States. 64 FR 28250

(May 27, 1999) (Section 126 Rule). A

more detailed description of the history

of efforts to address ozone transport

through the 1990’s may be found in the

preambles to these rulemakings. 63 FR

57360–63, 64 FR 28253–54.

Even after the NOX SIP Call

rulemaking was complete, it was

temporarily placed in doubt when the

Court stayed the SIP Call rule pending

judicial review. The court has ordered

NOX SIP Call SIPS to be submitted by

October 30, 2000, and to require sources

to implement controls by May 31, 2004.

Thus, although Congress in the Clean

Air Act had formulated a prohibition on

transport interfering with downwind

attainment, it remained largely

theoretical until EPA and the states

could understand how to identify,

quantify, and analyze the transport of

emissions, and develop regulatory

means to coordinate the respective

responsibilities of a multitude of

upwind and downwind areas. Although

Congress endowed EPA and the states

with legal tools to protect downwind

areas from interference with attainment,

it did not give them the ability to use

the tools in the time frame anticipated

by Congress. By the time EPA and the

states gained an understanding of

regional transport sufficient to allow

enforcement of the provisions of the

Act, it was too late to help some

downwind areas meet their attainment

dates. Thus it is spurious to argue that

EPA and the States could have sought

and obtained meaningful relief earlier

under section 126 and section 110.

The fact that upwind states are subject

to the requirements of section

110(a)(2)(D) but other countries are not

provides a possible explanation as to

why Congress explicitly provided that

ozone nonattainment areas not be

reclassified upwards if they would have

attained by their attainment dates ‘‘but

for emissions emanating from outside’’

the United States (section 179B(b)) but

provided no such express exemption

from the reclassification provisions in

the case of domestic transport. See IV

1990 Legis. Hist. 5741–42 (remarks of

Sen. Gramm introducing the

international provision and Sen. Baucus

supporting it; Senator Gramm stated: ‘‘It

is unfair to hold El Paso accountable for

pollution that is generated in a foreign

country that they have no control over.

So what this amendment does it says

that in assessing whether or not the

State implementation plan has been

met, and when assessing the levels of

ozone * * * pollution that is being

generated across the border has to be

taken into account so that our cities and

regions will be judged based on what

they do. * * * [The State, region and

city] will have the opportunity to come

to EPA and say that they are in

compliance in terms of their emissions,

that their failure to meet the overall

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 595

standards is due to something that is

happening in a sovereign foreign

country over which they exercise no

control.’’ Senator Baucus stated that, ‘‘It

is clear that cities like El Paso in the

State of Texas do not have control of

their own destiny themselves. Much of

the air that affects them is from outside,

from another country, over which the

Senator said the State of Texas and EPA

in this country has virtually no

control.’’). Congress assumed that EPA

would have control over domestic

transport under section 110(a)(2)(D), so

it saw no need to enact a domestic

counterpart to section 179B. As set forth

in EPA’s responses and the history of

EPA and the states’ efforts to understand

and control transport, Congress’

assumptions were not realized.

As set forth in Response 1 above,

Congress intended, through enactment

of the provisions addressing transport

cited by commenters, to prevent

downwind areas from being held

accountable for pollution over which

they exercise no control. Because of the

complexity of the transport problem,

EPA and the states could not deploy

these statutory provisions in time to

achieve attainment by their original

attainment dates. But this does not

mean that Congress would have

intended EPA to construe the very

provisions designed to protect

downwind areas as precluding EPA

from interpreting the statute to provide

the relief that those provisions failed to

furnish. Notwithstanding the absence of

an express provision for an attainment

date extension based on transport, EPA

believes that, taking into account the

Act read as a whole, Congressional

intent supports EPA’s interpretation of

an attainment date extension in the

circumstances presented here.

Commenters argue that the fact that

Congress formulated various provisions

addressing certain specific types of

issues concerning transported pollution,

but did not provide for an explicit

attainment date extension based on

transport, should be taken as proof that

Congress meant to preclude such relief.

But each of the provisions cited by

commenters—to sections 181(a)(4),

182(h) and 182(j)(2)—was designed to

address a different problem from the

one EPA addresses here, and none

undermines EPA’s interpretation that

Congress intended to provide relief in

the situations currently confronted by

downwind areas. As shown in EPA’s

previous responses, Congress expressed

its intent in the transport sections to

protect downwind areas from the

burdens of transported pollution, but

the mechanisms it provided could not

be invoked in time.

As for the sections referenced by

commenters, Section 181(a)(4) concerns

the potential for adjustment of the

original classification of an area if its

design value is within a certain margin.

It allows the Administrator to consider

a number of factors, including among

them transport. This provision in no

way casts doubt on the Congressional

intent not to penalize downwind areas

through mandatory reclassification

should they later fail to attain the

standard due to transport. Section

182(h) provides a mechanism for

original classifications of rural transport

areas as marginal areas, the lowest level

of ozone nonattainment areas. Far from

indicating that Congress did not intend

relief for areas that are victims of

transport, this provision reflects

Congressional concern with not

burdening areas with responsibility for

transport not of their making. It sheds

no light on whether Congress would

have intended EPA to reclassify areas

suffering from transported pollution if

they were subsequently unable to meet

their attainment dates.

Nor, as commenters suggest, would

so-called ‘‘voluntary’’ reclassification

under section 181(b)(3) furnish an

adequate remedy for the situation

confronting areas that fail to attain due

to interference from transport. An area

that felt constrained to seek ‘‘voluntary’’

reclassification would still be forced to

subject itself to more stringent

requirements to control local pollution

in lieu of imposing on upwind areas the

responsibility for the transport they

caused.

Comment 5: The states had power to

timely submit SIPs controlling local

pollution to the full extent that it was

in the state’s power to require, and

combine it with a request to EPA to

invoke EPA’s authority to control

upwind pollution, and in this way the

state could have attained by the

applicable deadline. EPA’s 1994

overwhelming transport policy required

transport modeling to be documented

the same time as the attainment

demonstration due in 1994. There is no

justification for allowing states to

request attainment date extensions

based on transport of which they were

aware many years ago. An opening is

created for upwind states to argue that

the NOX SIP Call effectively accelerates

their attainment dates. The OTC was to

recommend measures to bring about

attainment by the deadlines ‘‘in this

subpart.’’

Response 5: As pointed out in EPA’s

Response 4, above, an awareness that

transport was occurring is not

equivalent to an ability to identify,

analyze, and control the emissions that

cause it. This ability, which grew out of

years of study and joint effort, did not

coalesce until late in 1998. Thus,

downwind states were faced with the

prospect of having to shoulder

responsibility for pollution not of their

making—a responsibility that Congress

did not intend to impose on them, even

as they were aware of an ongoing effort,

involving EPA and thirty-seven states,

to allocate responsibilities for transport

through the OTAG process. As EPA

stated in its guidance on the attainment

date extension, the state of knowledge

about and the ability to document and

model transport has advanced

considerably since the issuance of EPA’s

overwhelming transport guidance. The

commenters seek to ignore the climate

of uncertainty in which states and EPA

were operating with respect to

controlling transported pollution.

Section 110(a)(2)(D) and 126 are not

self-executing, and until the

culmination of the OTAG process,

downwind areas in the OTAG region

could not determine what boundary

conditions they should assume in

preparing attainment demonstrations

and determining the sufficiency of local

controls to bring about attainment.

Meaningful relief under these

provisions simply was not available

earlier.

But even with the allocation of

responsibilities now available, EPA

believes that Congress did not intend to

accelerate the obligations of upwind

states so that downwind states can meet

earlier attainment dates. This would

undermine the objective, firmly

embodied in the graduated attainment

framework of the Clean Air Act, to allow

upwind areas with more severe

pollution longer attainment deadlines .

Upwind areas with later attainment

dates still find it difficult to reduce

emissions solely to control for transport

without accelerating the time frames

intended by Congress. It is unrealistic to

expect upwind areas to be able to

segregate out the reduction of emissions

for purposes of transport from the

reduction of emissions for purposes of

achieving attainment in the upwind

area.

The fact, as a commenter points out,

that Congress envisioned that the OTCrecommended measures would bring

about attainment by the dates ‘‘in this

subpart’’ reflects Congress’’ over

optimistic view that transport would be

understood and controlled in time to

allow upwind areas to be held

accountable for their contributions to

downwind nonattainment. The

comment underscores that Congress

expected upwind reductions to take

place by the time the downwind area

596 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

was supposed to attain—this confirms

that Congress expected that upwind

pollution would be controlled prior to

downwind attainment deadlines, and

that only local pollution would remain

as the downwind area’s responsibility.

But, as we previously stated, the time

line for analyzing and assessing

transport, and the resulting ability to

implement appropriate measures to

control upwind pollution, did not keep

pace with Congress’s expectations. EPA

is extending attainment deadlines in

order to allow upwind areas to assume

responsibility for the pollution they

generate and that is transported across

State boundaries, and to fulfill the

Congressional intent that downwind

areas not be saddled with this burden.

Comment 6: EPA’s decision directly

conflicts with NRDC v. EPA, 22 F.3d

1125 (D.C. Cir. 1994), where the Court

held that EPA could not extend a clear

statutory submission deadline.

Response 6: To the contrary, EPA

believes that NRDC v. EPA supports

EPA’s authority to issue the attainment

date extensions at issue here. In that

case the U.S. Court of Appeals for the

DC Circuit upheld EPA’s extension of

SIP submittal deadlines even though

such extensions were not expressly

permitted by the Clean Air Act. See the

discussion in Response to Comment 1,

above. The Court relied in part on the

need for additional time to undertake

photochemical modeling to document

the impact of NOX reductions on

individual areas, an effort that took

more time than Congress anticipated.

Here, the effort to document, model, and

analyze regional ozone transport issues

and assess responsibility for relative

contributions is, if anything, more

complex than the NOX exemption

showings for which the Court upheld

deadline extensions in NRDC v. EPA.

The Court’s reasoning in NRDC v. EPA

should be fully applicable to the policy

at stake here.

Comment 7: A commenter concedes

that ‘‘EPA’s delay in establishing the

mandatory emission reduction targets

for upwind States might justify the

delay in adoption of adequate section

110(a)(2)(D) measures by the upwind

states,’’ but concludes that the delay

‘‘cannot justify delaying the obligation

of downwind States to implement all

the local measures necessary for

attainment by the statutory deadline.’’

One commenter, while acknowledging

that it ‘‘does not take issue with EPA’s

objective of accommodating the delayed

control contributions from upwind

areas,’’ contests EPA’s claim of authority

to extend attainment dates. This

commenter suggests that the appropriate

remedy is for EPA to authorize states to

take credit for mandated emission

reductions when preparing attainment

demonstrations and determining the

degree of local controls needed to attain.

Response 7: While the commenter

recognizes that there was a delay in

understanding and regulating

transported pollution that ‘‘might justify

the delay’’ in upwind states adopting

section 110(a)(2)(D) measures, and

agrees with EPA’s objective in taking

this delay into account, the commenter’s

proposed solution fails to address the

problem it acknowledges. The

commenter suggests allowing areas to

take credit when they prepare their

attainment demonstrations—but this

solution addresses only the planning

requirement, and does not assist the

areas in solving the problem of failing

to meet their attainment deadline. It is

to address this issue, and to effectuate

Congressional intent to avoid penalizing

downwind areas in these circumstances,

that EPA has formulated the attainment

date extension. The delay in

ascertaining the amount and achieving

the reality of upwind reductions—a

delay conceded by commenters—

resulted in uncertainty in a downwind

area’s ability not only to plan for

attainment, but to realize it.

This comment also highlights the

difficulties that EPA’s attainment date

extension policy was designed to

address: namely that the states and EPA

were (1) not able to assess relative

contributions until it was too late to

implement the controls to bring about

attainment; and (2) upwind areas with

longer attainment dates should not be

required to accelerate their reductions

in time to help bring about attainment

as scheduled in affected downwind

areas with earlier attainment dates. As

the policy explains, the determination

of relative upwind and downwind

contributions and the allocation of

responsibility for determining controls

did not occur in time for a number of

areas to meet their attainment deadlines.

Comment 8: EPA’s approach allows

emission reductions from motor

vehicles to be deferred beyond the

deadlines currently required by the Act.

The policy allows deferral of conformity

budgets beyond the statutory attainment

year. It is also inconsistent with

statutory requirements for reasonable

further progress in section 182(c)(2)((B),

for implementation of all reasonably

available control measures as

expeditiously as practicable in section

172(c)(1), and for requiring that

transportation plans and TIPs ‘‘will not

delay timely attainment of any standard

or ... other milestones in any area in

section 176(c)(1).’’

Response 8: EPA disagrees with the

commenter that the policy allows

deferral of motor vehicle emission

reductions and reasonably available

control measures beyond dates

contemplated in the Act. The statute

requires SIPs to provide for attainment

as expeditiously as practicable and for

reasonable further progress as necessary

to provide for attainment. The motor

vehicle and RACM measures the

commenter is apparently referring to are

not specific measures that the statute

requires to be implemented by a fixed

date. Rather, they are whatever motor

vehicle and RACM measures are

necessary to provide for attainment and

RFP by the applicable attainment date.

Thus, whatever attainment date is

applicable, either by virtue of the statute

or an attainment date extension, defines

the outside date by which motor vehicle

and RACM measures necessary to

provide for timely attainment must be

implemented. A determination must

then be made whether any additional

measures could advance that date, but

the analysis is keyed to the established

attainment date. The commenter also

complains about delays in establishing

budgets for conformity purposes, and

requirements that transportation

activities not delay timely attainment.

Again, these issues are not relevant to

establishing an appropriate attainment

date. Motor vehicle emission budgets for

conformity purposes are those budgets

that are established for the attainment

year. The Act does not require that these

budgets be set for any specific year, but

rather contemplates that they will be

established for the attainment year.

Where EPA has properly determined

that an attainment date extension

should be granted, conformity budgets

are required for the extended attainment

year; they are no longer required for the

superseded attainment year. The

requirement that transportation

activities not delay timely attainment is

a duty imposed on transportation

planning agencies to insure that their

activities will not interfere with

attainment of the standard by the

applicable attainment date. This duty is

irrelevant to establishing the

appropriate attainment date in the first

instance. Once an applicable attainment

date is established, transportation

planners must insure that their activities

will not delay attainment by that date.

Comment 9: A commenter argues that

under the terms of section 188(e), an

extension of the PM attainment date

may not be granted unless the State

demonstrates that the area’s SIP

contains ‘‘the most stringent measures

that are included in the implementation

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 597

plan of any State or are achieved in

practice in any Sate, and can feasibly be

implemented in the area.’’ Moreover,

section 188(e) provides for

consideration of transboundary

emissions from ‘‘foreign countries,’’ not

from U.S. sources. EPA’s proposed

ozone nonattainment extension policy

includes neither of these limitations.

Response 9: The provision cited by

commenters applies the PM–10

standard, and is not applicable to

attainment dates for ozone. Moreover,

the regulatory regimes applicable to

ozone and PM–10 are quite different, as

are the types of transport issues that

arise with respect to these two different

pollutants. The issues EPA and the

states confront with respect to longrange regional transport of ozone do not

apply to PM–10. Beyond that, section

188(e) embodies a standard of ‘‘

impracticability’’ as a basis for seeking

an extension for a PM–10 attainment

deadline. With respect to the ozone

attainment deadlines at issue here, EPA

is not granting extensions solely on the

grounds of impracticability of attaining

the standard, but rather, that Congress

intended both upwind and downwind

areas to have an opportunity to bear the

responsibility for their respective

contributions to an area’s attainment

problems.

Comment 10: EPA’s effort to

‘‘manufacture a conflict’’ between the

statutory deadlines and transport

provisions fails, since these provisions

must be read together so that the

upwind area’s ‘‘obligation to control

pollution affecting the downwind area—

be it interstate or intrastate—falls due

no later than the downwind area’s

attainment date.’’ EPA’s argument that

areas with longer attainment dates be

given additional time ignores the

statutory requirement that areas attain

as expeditiously as practicable, even if

that results in attainment before section

181(a)(1)’s outer deadlines. The section

181 attainment deadlines are ‘‘outside

limits.’’ A commenter argues that

Section 181(a) does not prevent upwind

areas from abating pollution in

downwind areas in time to meet the

downwind area’s attainment date. EPA’s

policy cannot be defended as necessary

to reconcile 181(a) with the Act’s antitransport provisions. Upwind areas

should be able to control pollution

contributing to downwind area’s

nonattainment even before reaching

their own later-prescribed attainment

dates.

A commenter disputes EPA’s

interpretation of the language in section

110(a)(2)(D)(1) that SIP provisions

prohibiting emissions which cause

transport be ‘‘consistent with the

provisions of this subchapter.’’ EPA

should interpret the provisions to

respect the attainment schedules of

sections 181 and 182, and address

transport separately. No reference is

made to any legislative history that

would legitimize EPA’s reading. An

upwind area’s obligation to control

transported pollution does not depend

on its own timetable for attainment.

EPA’s policy excuses upwind area’s

responsibility from their obligations

under sections 110, 176A and 184,

exempting them via granting extensions

to downwind areas. The policy defers

downwind action until the upwind area

attains.

EPA improperly assumes that it

would not be practicable for upwind

sources to reduce emissions

contributing to downwind

nonattainment prior to the time such

reductions would be required to attain

in the upwind area. The presumption

should be precisely the opposite: unless

the upwind state can show that such

reductions are impracticable, EPA

should assume such reductions can be

made at times to eliminate the upwind

state’s contribution to nonattainment

downwind by the downwind area’s

attainment date. EPA’s rule eliminates

the Act’s requirement that attainment be

accomplished as expeditiously as

possible. Section 184 indicates

Congressional intent that upwind areas

make reductions if necessary to permit

downwind areas to attain by their

statutory deadlines.

Response 10: EPA disagrees with the

commenter’s contention that it has

‘‘manufactured a conflict.’’ Rather, EPA

believes that it recognizes and resolves

the real tension between the statutory

deadlines and the transport provisions.

EPA explained this tension in its

guidance on the attainment date

extension policy. See also EPA’s

response to Comment 4. Congress did

not intend that areas with more severe

pollution problems, and accordingly

longer attainment dates, be forced to

accelerate reductions on a timetable that

otherwise would not be deemed to be

required in order to meet their

obligation to attain ‘‘as expeditiously as

practicable.’’ Commenters want EPA to

read the requirement for upwind areas,

not as containing the limitation that

their attainment deadline be ‘‘as

expeditiously as practicable’’—but

instead, to require deadlines that are not

practicable solely for the purpose of

obtaining downwind reductions.

In dealing with ozone, a regional

pollutant, an upwind nonattainment

area cannot make reductions for

transport purposes without affecting its

schedule for making reductions for

attainment purposes. Compelling the

upwind area to make drastically faster

reductions is akin to asking it to go on

a crash diet. But the interplay of the

statutory provisions on attainment

deadlines and transport reduction

indicates that Congress intended

upwind areas to reduce transport, but

not to the extent of requiring shorter

schedules for upwind attainment.

Separating out reductions for

purposes of attainment and those for the

purposes of transport is more difficult

than commenters depict, and EPA

believes that Congress did not intend a

regimen of drastic reductions without

regard to the upwind area’s attainment

schedule. In reality, an upwind area that

remains in nonattainment may

doubtless be shown to continue to

transport pollution to an affected

downwind area.

Congress provided statutory tools to

address the issue of transport (including

sections 184, 126, and 110(a)(2)(d)), and

believed that they would be used to

reach an accommodation among

upwind and downwind areas—but as

EPA and some commenters have

recognized, this accommodation took

longer than anticipated. Congress did

not, however, intend that upwind areas

be forced to apply draconian measures

in order to allow the downwind areas to

meet their shorter attainment periods.

And although the attainment

deadlines can be looked at as ‘‘outside

limits,’’ they in fact represent the dates

at which statutory consequences must

be considered. As long as no earlier date

is deemed to be ‘‘as expeditiously as

practicable,’’ there is no evidence that

Congress considered an earlier date to

be acceptable for these areas, regardless

of ‘‘practicability.’’ Even if earlier

deadlines would be beneficial to

downwind areas, Congress did not

indicate that this criterion should

override the criterion of ‘‘practicability’’

for the upwind area.

In administering the Clean Air Act

and the NOX SIP Call, EPA has

interpreted section 110(a)(2)(d)’s

significant contribution test as requiring

reductions as expeditiously as

practicable without requiring upwind

areas to impose draconian measures.

The United States Court of Appeals for

the District of Columbia Circuit recently

upheld EPA’s use of a cost component

in applying that section’s significant

contribution test. Michigan v. EPA, 213

F.3d 663, 674–679 (D.C. Cir 2000). EPA

decided that the states that were

‘‘significant contributors’’ under section

110(a)(2)(D) need only reduce their

emissions by the amount achievable

with ‘‘highly cost-effective controls.’’ 63

Fed. Reg. At 57,403. ‘‘Thus, once a state

598 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

1,2Because the D.C. Circuit stayed the obligation

of States to submit plans by 13 months, the court

also extended by 13 months the date by which

sources must implement the necessary controls.

had been nominally marked a

‘‘significant contributor,’’ it could

satisfy the statute, i.e., reduce its

contribution to a point where it would

not be ‘significant’ within the meaning

of section 110(a)(2)(D)(i)(I) by cutting

back the amount that could be

eliminated with ‘highly cost-effective

controls.’ ’’ 213 F.3d at 675.

In applying section 110(a)(2)(D), the

D.C. Circuit concluded that EPA can

consider not only air quality impacts,

but also costs of control. Thus EPA has

been upheld in interpreting the Act in

a way that limits the upwind area’s

responsibility to control pollution so as

to mitigate its responsibility under

section 110(a)(2)(D). The upwind area

should not have to impose draconian

controls. As the Court in Michigan v.

EPA, 213 F.3d 663, 674–679 (D.C. Cir.

2000) concluded, ‘‘there is nothing in

the text, structure, or history of section

110(a)(2)(D) that bars EPA from

considering cost in its application.’’ 213

F.3d 679. The Court’s discussion makes

clear that EPA, in interpreting the

responsibilities of upwind states under

section 110(a)(2)(D), may consider

differences in cutback costs in

determining what constitutes a

significant contribution, and that EPA’s

inquiry is based on balancing a number

of considerations to balance health

effects and cost-effectiveness.

EPA’s policy does not excuse the

upwind areas from fulfilling their

obligations under section 110. Upwind

areas will be held to section 110 and

RACM requirements. EPA has

determined the upwind areas’ section

110 obligations through the SIP call.

The SIP call requires reductions by the

date EPA determined was as soon as

practicable to eliminate significant

contributions to downwind areas.1,2

This is coupled with the upwind area’s

obligation to attain as expeditiously as

practicable. It is appropriate to hold

downwind areas to the upwind area’s

attainment date as an outside limit until

EPA acts on the upwind area’s

attainment demonstration. The

modeling evidence we have now shows

that upwind areas need to come into

attainment for the downwind areas of

Metropolitan Washington, DC and

Greater Connecticut to attain the

standard.

Comment 11: The section 182(j)(2)

‘‘but for’’ standard applies to intrastate

transport. An area must demonstrate

that it would have accomplished

attainment but for the failure of other

areas to implement sufficient controls.

The policy is vague, and fails to

establish clear standards for a showing

of transport. The ‘‘affected by transport’’

standard is unclear.

Response 11: EPA is not constrained

by the section 182(j)(2) standard. This

section is limited in application to

single nonattainment areas that are

located in more than one state, and does

not address transport coming into an

area from another, separate area. Our

determinations in the SIP call were

clear, and the modeling that resulted

from the SIP call effort showed that

there were significant impacts from

upwind areas on the downwind areas,

no matter whether one used as a

standard the ‘‘but for,’’ ‘‘significant

contribution’’ or ‘‘affected by transport’’

formulation. Congress intended that an

upwind area that significantly

contributes to a downwind area’s

nonattainment problem should bear

responsibility for that pollution. The

modeling shows that significant

contributions are made by the upwind

areas to the downwind areas seeking

attainment date extensions. EPA still

believes that Congress would not have

intended to impose the burden on

downwind areas for an upwind area’s

contribution.

Comment 12: Transport is already

incorporated into each area’s section

181 design value and thus is assumed in

setting the projected attainment date.

Congress understood transport resulted

in elevated design values, but did not

authorize classifications to take into

account transport, and provided for

reclassification by operation of law

based on air quality. In section

181(a)(1), Congress directed that ozone

nonattainment areas be placed within

certain classifications based solely on

their design values, regardless of

transport. Congress understood that

many areas were classified as moderate

or severe at least in part because of

ozone transport, but did not grant EPA

discretion to take such transport into

account when establishing initial

classifications under the Act. Why does

EPA believe so strongly that its

approach is consistent with

congressional intent, given congress’s

refusal to consider transport in

establishing the initial classifications

and in light of sections 181(b)(2) and

182(i)?

Response 12: The fact that the

provisions governing the initial

classification process expressly take

transport into account in a specific

way—see section 181(a)(4)—does not

mean that EPA is precluded from taking

transport into account when providing

for an attainment date extension based

on transport, prior to invoking the

reclassification provisions. See EPA’s

Response to Comment 1. By providing

for an extension of the attainment date,

EPA is effectuating Congressional intent

that the transport relief provisions have

a chance to take effect before EPA has

an obligation to determine whether the

area has attained for purposes of

triggering the reclassification

provisions.

Comment 13: EPA has previously

concluded that reclassification is not a

means of penalizing an area, but a

means of providing additional

reductions that will benefit public

health. EPA rejected the notion that

bump-up is a penalty when it

reclassified the Phoenix, Arizona area

from moderate to serious. There, EPA

said:

The classification structure of the Act is a

clear statement of Congress’s belief that the

later attainment deadlines afforded higherclassified and reclassified areas require

compensating increases in the stringency of

controls. The reclassification provisions of

the Clean Air Act are a reasonable

mechanism to assure continued progress

toward attainment of the health-based

ambient air quality standards when areas

miss their attainment deadlines and are not

punitive.

Final Rule, 62 Fed. Reg. 60001, 60003

(Nov. 6, 1997). Phoenix NFR. Why has

EPA changed its mind about the

functions of reclassification?

Response 13: EPA has not changed its

mind about the function of the

reclassification provision where the

issue of transport is not presented. In

the context of Phoenix, a reclassification

not involving transport, EPA made the

response cited by commenter, and noted

that the reclassification provision was

not intended to be punitive. This view

is consistent with the position that EPA

takes here, where the circumstances are

quite different from the non-transport

reclassification context. In the absence

of transport, an area that fails to attain

by its attainment date, may still fairly be

held accountable for controlling local

pollution, and be granted a longer

attainment deadline in return for more

stringent controls. Under these

circumstances, applying the

reclassification provisions is not

punitive. But in the circumstances EPA

and the states confront here, the local

area is not responsible for pollution that

interferes with its ability to meet the

standard. In such a case, to trigger

reclassification would impose on the

area the responsibility and costs for

pollution beyond its control, and would

indeed be punitive. To avoid such a

result, and to effectuate Congressional

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 599

intent, EPA has interpreted the Act to

authorize an attainment date extension.

Comment 14: Congress directly

considered and rejected EPA’s

interpretation of its attainment date

extension authority during the Clean Air

Act Amendments of 1990. During

debate, Senator Kasten expressed

concern about the proposed legislation’s

provisions concerning the ‘‘issue of

downwind ozone nonattainment.’’ He

noted that pollution from Chicago

affected southeastern Wisconsin, but

described ‘‘the difficulty this poses is

that the Nation’s most polluted urban

areas are given a much more generous

timetable for meeting air-quality

standards. Chicago will have 5 more

years to meet air-quality standards than

these Wisconsin counties will have.’’

Senator Kasten then noted that because

of Chicago’s longer attainment date, it

was likely that the Wisconsin counties

‘‘will be found in violation of the Clean

Air Act because of actions taking place

outside of their jurisdiction in an

upwind State.’’ The commenter claims

that Senator Kasten introduced an

amendment which provided, among

other things, for an attainment date

extension for the downwind area until

the upwind nonattainment area

achieved emission reductions. S. Comm.

On Envt. And Pub. Works, A Legislative

History of the Clean Air Act

Amendments of 1990, pp. 4954–55

(1993). The commenter claims that ‘‘the

amendment, was, of course, rejected.’’

Thus the commenter argues that

Congress, although it addressed ozone

transport in sections 176A and 184,

declined to alter the requirements of

section 181, even though it was aware

of the problem that EPA seeks to solve

with its attainment date extension

policy.

Response 14: There is no evidence

that the amendment discussed by

Senator Kasten was ever debated,

considered, or voted upon. Commenter

cites no support for the proposition that

it was considered and rejected. Thus no

inferences can be drawn from the fact

that the amendment was not embodied

in the statute. Moreover, even if the

amendment had been considered and

rejected, it differed from and went so far

beyond the attainment date extension

EPA is applying here as to not be

probative of Congressional intent with

respect to EPA’s current interpretation

of the Act. Among other things, it would

have provided for a new and separate

Ozone Transport Region, and would

have provided for different obligations

and consequences for downwind areas

than what is contained in EPA’s current

interpretation of the attainment date

extension policy. Legislative History at

4954–56.

Comment 15: The EPA policy is an

illegal expansion of the 1994

overwhelming transport policy. Now the

upwind area need not be a

nonattainment area with a later

attainment date, as long as it is an

upwind area in another state that

significantly contributes to

nonattainment in the downwind area.

Also, the new policy would allow

attainment even later than attainment

for the upwind area if the date for the

NOX SIP Call reductions is later. Where

the upwind area is in attainment or

where its attainment date is earlier than

the NOX SIP Call reductions, then an

extension cannot be justified as

necessary to reconcile the transport

provisions with section 181(a). There is

no justification for applying the policy

where the upwind area is in attainment,

or is in nonattainment but has air

quality meeting the NAAQS, or where it

is in nonattainment but has an

attainment date earlier than the

extension proposed.

Response 15: The policy is not an

illegal expansion of the overwhelming

transport policy, but an appropriate

interpretation of the provisions of the

Clean Air Act in order to fulfill

Congressional intent. EPA’s current

articulation of the attainment date

extension policy reflects the

considerable advances in understanding

and allocating responsibility for

transport that have occurred since the

formulation of the Overwhelming

Transport Policy. These advances have

resulted from the work on ozone

transport included in, among other

efforts, the OTAG, SIP call, and area

modeling programs. EPA thus regards

the attainment date extension policy as

superseding the Overwhelming

Transport Policy. See EPA’s earlier

responses. The policy is not being

applied here so as solely to involve

upwind attainment areas, or upwind

areas with earlier attainment dates.

Upwind attainment areas with deficient

SIPs have still been found to contribute

significantly to downwind

nonattainment. The SIP call involves a

statewide area that may include

attainment and nonattainment areas that

have been found to contribute

significantly to downwind

nonattainment.

Comment 16: Downwind areas should

be required to implement, not just

adopt, all required measures before

becoming eligible for an extension.

Modeling is imprecise and an area

might be able to attain if they

implement all required measures, which

should already have been implemented

prior to the original attainment date. A

state could have timely submitted all

the provisions for control of local

pollution as required by sections

182(b)(1)(A)(i), 182(c)(2), and 172(c)(1)

providing for the full extent of local

reductions that it was in the state’s

power to require.

Response 16: In granting an

attainment date extension for an area,

EPA has determined that upwind

reductions are necessary to help the area

reach attainment. Thus, requiring all

local reductions to be implemented

prior to the time that upwind reductions

are achieved would not accelerate

attainment. Nonetheless, EPA has

required that local reductions be

implemented as expeditiously as

practicable. See EPA’s Guidance 61 FR

14441 (March 25, 1999).

Comment 17: EPA’s allegation that

local measures ‘‘will become

superfluous once upwind areas reduce

their contribution to the pollution

problem,’’ 64 Fed. Reg. 14444, is

mistaken. First, the measures will

produce public health benefits during

the period prior to implementation of

upwind reductions, and second the Act

independently requires all areas to

‘‘implement all reasonably available

control measures as expeditiously as

practicable,’’ 172(c)(1), regardless of

what reductions are expected from

upwind areas. EPA should not allow

downwind areas to postpone

implementing local measures until

upwind reductions are achieved. This

extension is unlawful, and, because

unexplained, arbitrary and capricious.

Response 17: EPA disagrees with the

commenter’s characterization of EPA’s

actions. EPA is in fact requiring

downwind areas to implement the local

control measures required under the

classification as expeditiously as

practicable, but no later than the time

the upwind reductions are achieved.

See EPA’s Guidance, supra. To obtain

an extension the area must have

provided that it will implement all

adopted measures as expeditiously as

practicable, but no later than the date by

which the upwind reductions needed

for attainment will be achieved. See also

response to Comment 16, above. No

measures are being postponed as a

result of the areas being granted a later

attainment deadlines. None of these

areas have delayed or postponed the

effectiveness of measures because their

attainment date is being extended. The

states are enforcing their attainment

measures as expeditiously as

practicable. Thus EPA’s interpretation is

not unexplained, arbitrary, nor

capricious. As EPA has explained, it

seeks to reconcile and coordinate the

600 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

responsibilities of upwind and

downwind areas to work together to

achieve attainment. However, as

discussed elsewhere, EPA has applied

the section 172(c)(1) RACM requirement

to these areas.

Comment 18: EPA is excusing

downwind areas from the requirement

that nonattainment SIPs must provide

for attainment of the NAAQS as

provided in sections 182(b)(1)(A)(i),

182(c)(2)(A), 172(c)(1), and is also

excusing them from the requirement

that they implement all reasonably

available control measures as

expeditiously as practicable, regardless

of the reductions required for

attainment. EPA’s attempt to lessen

these obligations is unlawful and,

because unexplained, arbitrary and

capricious.

Response 18: EPA is not excusing

downwind areas from the requirement

that they submit SIPs providing for

attainment. Nor is EPA excusing

downwind areas from the RACM

requirement. EPA’s interpretation does

not exclude what is necessary for

attainment; rather, a measure is RACM

if it is needed for attainment. EPA is

enforcing this requirement, but allowing

the downwind state to take into account

the control contribution of upwind areas

that Congress envisioned, and that the

commenters themselves acknowledge is

embodied in Clean Air Act provisions,

in determining the applicable

attainment date. EPA is also requiring

that the states implement reasonable

control measures as expeditiously as

practicable. See EPA’s Responses to

other comments.

Comment 19: EPA’s policy cannot be

defended as a reconciliation of section

181(a) with the Act’s anti-transport

provisions. Under a proper

interpretation of the Act, (1) upwind

states’ SIPs would ensure that the

upwind areas’ pollution contributing to

NAAQS violations in downwind areas

would be controlled, no later than the

downwind areas’ attainment date, (2)

upwind areas would attain locally as

expeditiously as practicable but no later

than the date prescribed by section

181(a)(1) for the upwind area, and (3)

downwind areas would attain locally

‘‘as expeditiously as practicable but not

later than the applicable date prescribed

in section 181(a)(1). This reading gives

effect to all of the relevant statutory

provisions.

Response 19: The commenter

concedes that under a proper

interpretation of the Act, upwind states’

SIPs would ensure that upwind areas’

pollution contributing to violations in

downwind areas would be controlled,

prior to the downwind area’s attainment

date. But in the circumstances actually

confronting EPA and the states, as EPA

has explained in prior responses, it was

not possible, given the state of

knowledge of regional ozone transport,

to control upwind transport prior to the

original downwind attainment dates set

forth in section 181(a)(1). Thus, in order

to allow the upwind areas to fulfill their

responsibility under the Act and to

avoid imposing on the downwind area

a burden Congress did not intend, EPA

proposed interpreting the Act to adjust

the downwind attainment deadlines, the

very interpretation that the commenter

rejects as unnecessary. By adjusting the

attainment date to allow the upwind

and downwind areas to carry out the

statutory allocation of responsibility

that is acknowledged by the commenter,

EPA indeed is reconciling the Act and

rendering a proper interpretation.

Comment 20: No extension should be

granted unless the area is as small as

possible. The basis for transport should

not be OTAG modeling, since better

data is available.

Response 20: The boundaries for

serious nonattainment areas were

established by operation of law (CAA

section 107(d)(4)). The modeling done

by OTAG and by EPA in the SIP call

and the local modeling done in

connection with the attainment

demonstrations represents the best

available modeling.

2. Comments Received on 12/16/99

Proposals

Comment 1: The SIP submittals for

Springfield, Greater Connecticut and

Metropolitan D.C. do not contain

substantive additional measures to

reduce the state’s ground level ozone

problem. EPA cannot approve the

attainment submittal because, among

other reasons, it does not provide for

attainment ‘‘as expeditiously as

practicable,’’ as required by Section

181(a) of the CAA. Both the attainment

submittal and the proposed rule simply

assert that the states, acting alone,

cannot achieve attainment, either in

1999 or 2007. Neither the state nor EPA

explores the question of what can the

state can do, with the help of specified

upwind emission reductions, to achieve

attainment as expeditiously as

practicable. There is no showing that

the State could not achieve attainment

in 2003 through a combination of local

and state measures and the NOX SIP

Call; we only know that the NOX SIP

Call is not likely to produce attainment

by 2003 without additional local

reductions. The SIPs do not meet the

requirements of the CAA to provide for

attainment as expeditiously as

practicable and/or no later than

November 15, 1999. States have made

no attempt to provide for attainment as

soon as possible. Because they do not

meet the CAAs requirements for timely

attainment, EPA must disapprove them.

Response 1: Congress did not intend

for the states to be responsible for

achieving attainment, acting alone,

when upwind areas are transporting

pollution that contributes to their

nonattainment problem. EPA has

determined that, under the attainment

date extension, the states will attain the

standard as expeditiously as practicable.

The basis for this determination, and

EPA’s findings that the area is affected

by transport from upwind areas, is

discussed extensively in section II.A.1.

EPA has determined that even with the

attainment date extension, no

reasonably available control measures

would advance the attainment date. See

other Responses to Comments in

sections II. A and II. E.

Comment 2: The state’s SIP does not

contain adequate contingency measures

as required by Section 172(c)(9) of the

CAA. Such measures are especially

important in a case such as this, where

a substantial portion of the emission

reductions relied on are assumed to

occur well into the future, and well

beyond the statutory attainment date.

Response 2: Although no measures

have been specifically designated as

contingency measures, EPA has found

that measures that could reasonably

constitute appropriate contingency

measures are already contained in the

SIP or exist in promulgated Federal

regulations. See discussion of

contingency measures in section II. L

below.

Comment 3: Even assuming the

Transport Guidance is consistent with

the Act, the states’ attainment

submittals do not meet the requirements

and/or preconditions necessary to

secure adequate emissions reductions

from in-state sources. For example, CT

and MA could secure further NOX

reductions from power plants and other

stationary sources through

implementation of RACT on additional

stationary sources. The States could

secure additional reductions through a

diesel inspection and maintenance

program.

Response 3: EPA believes that a diesel

I/M program may have some potential

for emission reductions. At this time,

however, there is insufficient

information available about the program

to determine whether I/M would be

economically or technologically

feasible. Also, the test protocols are not

sufficiently developed to enable EPA to

determine the magnitude of reductions

possible, and thus whether the

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 601

program’s emission reductions would

advance the attainment date. In its other

Responses to Comments, EPA has

explained and supported its conclusions

that the states have adopted and will

implement as expeditiously as

practicable the measures necessary to

secure adequate emissions reductions

from in-state sources. No additional

RACM is required for these areas.

Comment 4: The States have failed to

timely pursue administrative avenues

for states to seek redress for transport

problems: through a section 126 petition

and a section 110 SIP call. CT and MA

did not file section 126 petitions until

the summer of 1997. Even if EPA’s

transport Guidance were lawful, it

should not be applied except as a matter

of last resort—the downwind area must

have identified and committed to all

necessary local measures and exhausted

its administrative remedies in a timely

fashion to secure all necessary upwind

reductions. The States have failed to do

that and have waited too long. They

want to wait until upwind reductions

bring them into attainment without

making any additional emission

reductions of their own. This is not in

keeping with the attainment provisions

and schedules in the CAA.

Response 4: EPA disagrees with the

commenter that the States have waited

too long to seek relief. As set forth in

detail in section II. A.1, the States and

EPA have worked for years to solve the

transport problem, and were unable to

obtain adequate redress for transported

pollution until the culmination of the

OTAG effort. EPA finds that the States

were not dilatory in their efforts to

pursue relief from transported pollution;

relief was not available until regional

transport could be analyzed and

responsibility for remediation

appropriately apportioned. These effort

took years, and was more prolonged

than Congress, EPA, or the states had

anticipated. See EPA’s discussion of the

history of the efforts to address transport

in section II. A.1. The States have not

failed to pursue any remedies as they

became meaningful and available. Nor

does EPA agree that its attainment date

extension allows the States to wait for

upwind reductions without making

local emission reductions. EPA’s policy

is predicated upon an equitable

allocation of responsibility between

upwind and downwind areas, and

explicitly requires the downwind areas

to adopt and implement local controls

as expeditiously as practicable.

Comment 5: The states have failed to

implement all available control

measures and have not demonstrated

that attainment is impracticable due to

pollutant transport. The states have

failed to meet the requirement of EPA’s

transport policy that the states adopt all

local measures required under the area’s

current classification. Among other

things, the Washington, DC area states

have failed to adopt NOX RACT

programs that meet all applicable

requirements of the Act and EPA

guidance.

Response 5: EPA disagrees with the

commenter’s contention that the states

being granted attainment date

extensions have not satisfied the

criterion of adopting required local

measures. EPA finds that the states have

fulfilled their responsibility with

respect to having adopted required local

measures. With respect to contingency

measures, EPA has determined that

measures that can be reasonably

construed to function as contingency

measures are already contained in the

areas’ SIPs. See further discussion of the

contingency measure requirement in

other Responses to Comments. With

respect to Washington, DC and

Massachusetts, the areas have adopted

and EPA has found approvable all other

local measures that are required under

their current classification, including

NOX RACT. EPA has further found that

the states have or will implement

required local measures as

expeditiously as practicable. With

respect to Connecticut, the state has

adopted and EPA has approved all

measures required under its current

classification except with respect to

certain aspects of its new source review

(NSR) program. Connecticut’s

nonattainment area NSR program is the

one Clean Air Act measure required

under the state’s classification that EPA

has not yet approved as meeting all the

requirements of the Act. Nevertheless,

EPA has determined that Connecticut’s

NSR program substantially addresses

the Act’s requirements and provides a

sufficient basis for EPA to apply its

attainment date extension policy. The

Connecticut NSR program imposes all

the Act’s requirements on new and

modified sources of air pollution for

those sources covered by the state’s

program, including the lowest

achievable emissions rate technology

standard and emissions offsets

consistent with the classification under

the Act of the state’s two ozone

nonattainment areas. In addition, the

state’s NSR program captures the correct

universe of new sources covered by the

Act’s requirements. The reason

Connecticut’s program does fully meet

all the Act’s requirements is that the

state’s formula for capturing modified

sources of air pollution in the program

differs from the federal requirements in

one respect. EPA’s federal NSR

regulations generally require that

modifications be measured by

comparing the actual emissions of the

existing facility with the potential

emissions of the modified facility.

Connecticut’s regulations compare the

potential emissions of the existing

facility with the potential emissions of

the modified facility. On the other hand,

Connecticut’s program is more rigorous

than EPA’s regulations in measuring a

modification in so far as the state’s

program does not allow for ‘‘netting’’ at

a source to avoid being treated as a

modification. Federal regulations would

allow an increase in emissions at an

existing source to be balanced against

contemporaneous emissions decreases

elsewhere at the source to avoid NSR,

while Connecticut’s NSR program does

not. On balance, EPA has concluded

that the state’s NSR program

substantially addresses this Clean Air

Act requirement for the purposes of

granting an attainment date extension

under EPA’s policy.

EPA thus concludes that substantial

compliance with the NSR program and

approval of all remaining required

measures constitutes substantial

compliance with the criterion that the

state adopt all measures required under

Connecticut’s current classification.

EPA has further found that it will

implement these measures as

expeditiously as practicable. Thus, EPA

believes that the states have fulfilled

their responsibility to satisfy the

requirements of their current

classification, and that, under these

circumstances, Congress would not have

intended them to be reclassified for

failure to attain.

The sufficiency of the Washington,

DC area States’ NOX RACT rules is

discussed extensively in responses to

other comments elsewhere in this

notice.

Comment 6: The states have not

shown that they have committed to

implement all local measures necessary

to secure adequate emissions reductions

from in-state sources. They have not

shown that a combination of local

reductions and upwind reductions will

achieve attainment by their extended

dates.

Response 6: EPA has found that the

states have demonstrated attainment

through a combination of upwind and

local measures. See other EPA responses

and discussion of the attainment

demonstration. Secondly, although the

states theoretically could always secure

more reductions through additional

local measures, Congress did not intend

that the downwind states compensate

for the upwind states failure to control

602 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

transported pollution. Having met the

RACM requirements and controlled for

local pollutants, the downwind area

should not be required to secure

additional emissions reductions in order

to offset emissions from upwind

sources. As EPA has discussed

elsewhere in its responses, the States

have committed to implement all

measures necessary to secure adequate

emissions from in-state sources.

Comment 7: The DC Circuit stated in

American Trucking Ass’n v EPA, 175

F.3d 1027 (D.C. Cir. 1999) that EPA ‘‘is

precluded from enforcing a revised

primary ozone NAAQS other than in

accordance with the classifications,

attainment dates, and control measures

set out in Subpart 2.’’ This means that

EPA cannot ignore the attainment dates

in Subpart 2.

Response 7: The opinion cited

concerns EPA’s authority to implement

a revised 0.08 ppm 8-hour standard not

the standard at issue here—the one-hour

0.12 ppm NAAQS. Regarding EPA’s

belief that the provisions in Subpart 2

of the Act govern implementation of the

one-hour standard, EPA is not ignoring

the attainment dates in Subpart 2. EPA

is interpreting the provisions of Subpart

2 to allow EPA to extend the attainment

deadlines in accordance with

Congressional intent and using means

set forth in the provisions of Subpart 2.

Thus EPA is properly implementing the

one-hour standard.

Comment 8: Each serious area plan on

its face shows that the control measures

described therein will not by themselves

produce attainment at any point, and

clearly not by l999. EPA’s reliance on

SIP call reductions is particularly

unjustified in the DC Area, given that

Virginia is challenging EPA’s authority

to require those very reductions. EPA

cannot grant credit for SIP call

reductions when the SIP call has been

judicially stayed.

Response 8: As EPA has explained

elsewhere in its responses, Congress did

not intend for a downwind area that is

affected by transport to be responsible

for pollution generated outside its

borders. The stay of the SIP call has

been vacated and the SIP call has been

upheld. The court lifted its stay and

states are required to submit SIPs fully

addressing the SIP call and if they fail,

EPA must promulgate a Federal plan.

EPA is fully justified in its reliance on

SIP call reductions and in granting

credit for them in the areas’ attainment

demonstrations.

Comment 9: The SIPs fail to provide

for attainment as expeditiously as

practicable even though this is a serious

area where a specific attainment

deadline has passed. Furthermore, the

States have not even evaluated the

possibility of attaining sooner than their

extended attainment dates. The SIPs

must be disapproved by EPA since they

do not meet the CAA’s basic

requirements for timely attainment nor

do they consider the possibility of

providing for earlier attainment even if

the attainment date extension were

permissible.

Response 9: EPA shows in its other

Responses, the SIPs provide for

attainment as expeditiously as

practicable, and the States have shown

that they qualify for an attainment date

extension due to transport. EPA

evaluated the reductions required for

attainment from both the upwind and

downwind areas, and determined that

the attainment dates were as

expeditious as practicable. See also

Responses 11 and 12 below.

Comment 10: This not a situation

where the states have adopted all

available measures and still show

nonattainment due solely to transport.

The states have refused to even identify

the levels of VOC and NOX emissions

that would be consistent with

attainment in the absence of NOX

reductions that would be required by

the NOX SIP Call. Nor do the plans state

the level of emission reductions that

would be needed to produce attainment

in the absence of upwind reductions.

EPA cannot rationally find that

transported NOX renders attainment

impracticable in the serious areas, when

the states have neither quantified the

reductions needed locally to attain in

the absence of transport reductions, nor

shown that such reductions are

unachievable through adoption of

additional state and local control

measures.

Response 10: EPA in its Responses

has provided an extensive analysis of

the role of transport in downwind

nonattainment for the serious areas. In

the NOX SIP Call, EPA concluded that

‘‘EPA believes that available modeling

analyses demonstrate that upwind

reductions are necessary to help

downwind areas come into attainment.’’

63 FR 57404 (October 27, 1998). These

downwind areas included the areas

being granted attainment date

extensions here. The DC Circuit upheld

EPA’s conclusion in Michigan versus

EPA, 213 F.3d 663 (D.C. Cir. 2000). The

SIP call and the modeling done by the

states support the conclusion that the

affected areas cannot attain without

upwind reductions. Congress intended

that upwind areas be responsible for

pollution that interferes with downwind

nonattainment, while at the same time

requiring that downwind areas be

accountable for locally generated

emissions. The Clean Air Act reflects

Congressional intent that downwind

areas not be compelled to compensate

for lack of upwind controls through the

adoption of additional state and local

control measures, as commenter

suggests. EPA disagrees with

commenter’s suggestion that the

downwind areas must show that no

further local reductions are achievable

before relying on upwind areas to

shoulder responsibility for the pollution

they generate. EPA finds that a reading

of the Clean Air Act shows that

Congress did not intend for downwind

areas to be forced to impose additional

local controls to offset significant

pollution contributions from upwind

areas, before seeking relief.

Comment 11: EPA has not

demonstrated that Metropolitan

Washington, DC would attain but for

transport. To the contrary, episodespecific data shows that the second

highest ozone exceedance recorded last

summer occurred on a day on which air

parcels originated in Northern Virginia.

The EPA has offered no rational basis

for granting a longer transport-related

extension to the Metropolitan

Washington, DC area than to

Massachusetts.

Response 11: Strong evidence

indicates that the Washington, DC

nonattainment area is impacted by

transport from outside the area and

cannot attain without upwind

reductions. Sensitivity modeling which

applies additional local controls to the

Baltimore nonattainment area indicates

reducing levels of ozone and its

precursors in the Baltimore

nonattainment area reduces ozone levels

in the Washington, DC nonattainment

area. A more focused analysis of days

when exceedances occur in the

Washington, DC nonattainment area

shows that under stagnant

meteorological conditions the

Washington, DC and Baltimore areas

ultimately share the same air mass and

mixing occurs throughout the CMSA as

is evidenced by the strong correlation

between high ozone concentrations in

each of these areas (less than 40 miles

apart) during stagnation events. Because

air can be transported from Baltimore to

Washington, DC within 24 hours and a

portion of the DC exceedances occur on

days when winds are from the north,

including Baltimore, high ozone in

Baltimore has the potential to cause

exceedances in Washington, DC.

NOX SIP Call and local attainment

modeling for the Washington, DC and

Baltimore nonattainment areas show

that the Washington, DC nonattainment

area will need controls not only local to

the Washington, DC nonattainment area

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 603

3The August 12, 1996 version of ‘‘Appendix W

to Part 51—Guideline on Air Quality Models’’ was

the rule in effect for these attainment

demonstrations. EPA is proposing updates to this

rule which will not be in effect until the new rule

is promulgated.

but from upwind areas, especially

Baltimore, MD. Local modeling for 1999

relies heavily on the NOX SIP Call

reductions and the local controls in the

Baltimore area, some of which will not

be implemented until 2005 (i.e, 2005

boundary conditions were used that

reflect the NOX SIP Call reductions in

addition to the Baltimore area SIP

controls). It has been clearly

demonstrated that, until the Baltimore

area implements local controls and

comes into attainment, high ozone and

precursor emissions from the Baltimore

nonattainment area have the potential to

cause exceedances in the Washington,

DC nonattainment area.

Comment 12: EPA has not shown that

the attainment date extension for

Connecticut is justified due to transport.

Response 12: There is strong evidence

to support the premise that the Greater

Connecticut nonattainment area is

impacted by transport from outside the

state, especially New York; and cannot

attain without upwind reductions.

Sensitivity modeling which removes all

emissions from Connecticut indicate

transported levels of ozone and its

precursors alone generate exceedances

in the state of Connecticut. A more

focused analysis of days when

exceedances occur in Connecticut

shows that the majority of these days

occur when winds are coming from the

Southwest and thus carry NOX and

ozone from the New York City

metropolitan area and points further

west and south. NOX SIP Call and local

attainment modeling for the New York

and Greater Connecticut nonattainment

areas show that the Greater Connecticut

nonattainment area will need controls

not only local to the Greater Connecticut

nonattainment area but from upwind

States, especially New York. Local

modeling for 2007 relies heavily on the

NOX SIP Call reductions (upwind and

within the modeling domain) as well as

controls being implemented in the New

York nonattainment area. It has been

clearly demonstrated that, until the New

York nonattainment area implements

local controls and comes into

attainment, high ozone and precursor

emissions from the New York

nonattainment area have the potential to

cause exceedances in the Greater

Connecticut nonattainment area.

Comment 13: The Plan fails to

demonstrate emission reductions of 3

percent per year over each three year

period after 1999 until attainment.

Assuming a 2005 attainment date, the

plan must provide for a nine percent

reduction in VOC and/or NOX

remissions by 2002 and another 9

percent between 2002 and 2005. The

states have not attempted to

demonstrate compliance with these

requirements, and EPA has not

proposed to find that they have been

met. EPA has no authority to waive the

statutory mandate for three per cent

annual reductions. Emission reductions

in upwind states do not waive the

statutory requirement for 3 percent

annual emission reductions within the

downwind nonattainment area.

Response 13: EPA’s guidance did not

interpret the period of time after

granting the attainment date extension

based on transport as requiring

additional rate of progress increments

from the downwind area, since we

determined that the reason the area had

not attained was due to upwind

transport. Therefore it would be

unreasonable to lock the downwind area

into fixed progress requirement

reductions from local sources, when the

combination of local reductions with

upwind area source emission reductions

is what will bring the area into

attainment. In any event, to the extent

that it should be determined otherwise,

and that any ROP required should be

imposed on the downwind area, this

requirement would not attach until EPA

grants the attainment date extension and

provides the area with a later attainment

date. Since the requirement was not

previously due, fulfilling the

requirement, if any is deemed to exist,

is not a condition of receiving the

attainment date extension.

Comment 14: EPA has no legal

authority to extend the one-hour

attainment date. Such extension is

unlawful and unwise. Under the

explicit provisions of Section 181(a)(1)

of the Act, the states are required to

attain the one-hour ozone standard as

expeditiously as practicable, but no later

than November 15, 1999. EPA cannot

create exemptions from this

requirement.

Response 14: EPA has responded

extensively to issues pertaining to the

legality of the attainment date extension

in its March 1999 responses, above.

B. Attainment Demonstrations—Weight

of Evidence

Comment: The weight of evidence

approach does not demonstrate

attainment or meet CAA requirements

for a modeled attainment

demonstration. Commenters added

several criticisms of various technical

aspects of the weight of evidence

approach, including certain specific

applications of the approach to

particular attainment demonstrations.

These comments are discussed in the

following response.

Response: Under section 182(c)(2) and

(d) of the CAA, serious and severe ozone

nonattainment areas were required to

submit by November 15, 1994,

demonstrations of how they would

attain the 1-hour standard. Section

182(c)(2)(A) provides that ‘‘[t]his

attainment demonstration must be based

on photochemical grid modeling or any

other analytical method determined by

the Administrator, in the

Administrator’s discretion, to be at least

as effective.’’ As described in more

detail below, the EPA allows states to

supplement their photochemical

modeling results, with additional

evidence designed to account for

uncertainties in the photochemical

modeling, to demonstrate attainment.

This approach is consistent with the

requirement of section 182(c)(2)(A) that

the attainment demonstration ‘‘be based

on photochemical grid modeling,’’

because the modeling results constitute

the principal component of EPA’s

analysis, with supplemental information

designed to account for uncertainties in

the model. This interpretation and

application of the photochemical

modeling requirement of section

182(c)(2)(A) finds further justification in

the broad deference Congress granted

EPA to develop appropriate methods for

determining attainment, as indicated in

the last phrase of section 182(c)(2)(A).

The flexibility granted to EPA under

section 182(c)(2)(A) is reflected in the

regulations EPA promulgated for

modeled attainment demonstrations.

These regulations provide, ‘‘The

adequacy of a control strategy shall be

demonstrated by means of applicable air

quality models, data bases, and other

requirements specified in [40 CFR part

51 Appendix W] (Guideline on Air

Quality Models).’’ 3 40 CFR 51.112(a)(1).

However, the regulations further

provide, ‘‘Where an air quality model

specified in appendix W * * * is

inappropriate, the model may be

modified or another model substituted

[with approval by EPA, and after] notice

and opportunity for public comment

* * *.’’ Appendix W, in turn, provides

that, ‘‘The Urban Airshed Model (UAM)

is recommended for photochemical or

reactive pollutant modeling applications

involving entire urban areas,’’ but

further refers to EPA’s modeling

guidance for data requirements and

procedures for operating the model. 40

CFR 51 App. W section 6.2.1.a. The

modeling guidance discusses the data

requirements and operating procedures,

as well as interpretation of model

604 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

4 Guidance on the Use Of Modeled Results to

Demonstrate Attainment of the Ozone NAAQS.

EPA–454/B–95–007, June 1996.

5 Ibid.

6 ‘‘Guidance for Improving Weight of Evidence

Through Identification of Additional Emission

Reductions, Not Modeled.’’ U.S. Environmental

Protection Agency, Office of Air Quality Planning

and Standards, Emissions, Monitoring, and

Analysis Division, Air Quality Modeling Group,

Research Triangle Park, NC 27711. November 1999.

Web site: http://www.epa.gov/ttn/scram.

7A commenter criticized the 1999 guidance as

flawed on grounds that it allows the averaging of

the three highest air quality sites across a region,

whereas EPA’s 1991 and 1996 modeling guidance

requires that attainment be demonstrated at each

site. This has the effect of allowing lower air quality

concentrations to be averaged against higher

concentrations thus reducing the total emission

reduction needed to attain at the higher site. The

commenter’s concern is misplaced. EPA relies on

this averaging only for purposes of determining one

component, i.e.—the amount of additional emission

reductions not modeled—of the WOE

determination. The WOE determination, in turn, is

intended to be a qualitative assessment of whether

additional factors (including the additional

emissions reductions not modeled), taken as a

whole, indicate that the area is more likely than not

to attain.

results as they relate to the attainment

demonstration. This provision

references guidance published in 1991,

but EPA envisioned the guidance would

change as we gained experience with

model applications, which is why the

guidance is referenced, but does not

appear, in Appendix W. With updates

in 1996 and 1999, the evolution of

EPA’s guidance has led us to use both

the photochemical grid model, and

additional analytical methods approved

by EPA.

The modeled attainment test

compares model predicted 1-hour daily

maximum ozone concentrations in all

grid cells for the attainment year to the

level of the NAAQS. The results may be

interpreted through either of two

modeled attainment or exceedance tests:

a deterministic test or a statistical test.

Under the deterministic test, a predicted

concentration above 0.124 parts per

million (ppm) ozone indicates that the

area is expected to exceed the standard

in the attainment year and a prediction

at or below 0.124 ppm indicates that the

area is expected to not exceed the

standard. Under the statistical test,

attainment is demonstrated when all

predicted (i.e., modeled) 1-hour ozone

concentrations inside the modeling

domain are at, or below, an acceptable

upper limit above the NAAQS permitted

under certain conditions (depending on

the severity of the episode modeled).4

In 1996, EPA issued guidance; 5 to

update the 1991 guidance referenced in

40 CFR 50 App. W, to make the

modeled attainment test more closely

reflect the form of the NAAQS (i.e., the

statistical test described above), to

consider the area’s ozone design value

and the meteorological conditions

accompanying observed exceedances,

and to allow consideration of other

evidence to address uncertainties in the

modeling databases and application.

When the modeling does not

conclusively demonstrate attainment,

EPA has concluded that additional

analyses may be presented to help

determine whether the area will attain

the standard. As with other predictive

tools, there are inherent uncertainties

associated with air quality modeling

and its results. The inherent

imprecision of the model means that it

may be inappropriate to view the

specific numerical result of the model as

the only determinant of whether the SIP

controls are likely to lead to attainment.

The EPA’s guidance recognizes these

limitations, and provides a means for

considering other evidence to help

assess whether attainment of the

NAAQS is likely to be achieved. The

process by which this is done is called

a weight of evidence (WOE)

determination. Under a WOE

determination, the state can rely on, and

EPA will consider in addition to the

results of the modeled attainment test,

other factors such as other modeled

output (e.g., changes in the predicted

frequency and pervasiveness of 1-hour

ozone NAAQS exceedances, and

predicted change in the ozone design

value); actual observed air quality

trends (i.e. analyses of monitored air

quality data); estimated emissions

trends; and the responsiveness of the

model predictions to further controls.

In 1999, EPA issued additional

guidance 6 that makes further use of

model results for base case and future

emission estimates to predict a future

design value. This guidance describes

the use of an additional component of

the WOE determination, which requires,

under certain circumstances, additional

emission reductions that are or will be

approved into the SIP, but that were not

included in the modeling analysis, that

will further reduce the modeled design

value. An area is considered to monitor

attainment if each monitor site has air

quality observed ozone design values

(4th highest daily maximum ozone

using the three most recent consecutive

years of data) at or below the level of the

standard. Therefore, it is appropriate for

EPA, when making a determination that

a control strategy will provide for

attainment, to determine whether or not

the model predicted future design value

is expected to be at or below the level

of the standard. Since the form of the 1-

hour NAAQS allows exceedances, it did

not seem appropriate for EPA to require

the test for attainment to be ‘‘no

exceedances’’ in the future model

predictions. The method outlined in

EPA’s 1999 guidance uses the highest

measured design value from all sites in

the nonattainment area for each of three

years. 7 The three year ‘‘design value’’

represents the air quality observed

during the time period used to predict

ozone for the base emissions. This is

appropriate because the model is

predicting the change in ozone from the

base period to the future attainment

date. The three yearly design values

(highest across the area) are averaged to

account for annual fluctuations in

meteorology. The result is an estimate of

an area’s base year design value. The

base year design value is multiplied by

a ratio of the peak model predicted

ozone concentrations in the attainment

year (i.e., average of daily maximum

concentrations from all days modeled)

to the peak model predicted ozone

concentrations in the base year (i.e.,

average of daily maximum

concentrations from all days modeled).

The result is an attainment year design

value based on the relative change in

peak model predicted ozone

concentrations from the base year to the

attainment year. Modeling results also

show that emission control strategies

designed to reduce areas of peak ozone

concentrations generally result in

similar ozone reductions in all core

areas of the modeling domain, thereby

providing some assurance of attainment

at all monitors.

In the event that the attainment year

design value is above the standard, the

1999 guidance provides a method for

identifying additional emission

reductions, not modeled, which at a

minimum provide an estimated

attainment year design value at the level

of the standard. This step uses a locally

derived factor which assumes a linear

relationship between ozone and the

precursors. Although a commenter

criticized this technique for estimating

ambient improvement because it does

not incorporate complete modeling of

the additional emissions reductions, the

regulations do not mandate nor does

EPA guidance suggest that States must

model all control measures being

implemented. Moreover, a component

of this technique—the estimation of

future design value, should be

considered a model predicted estimate.

Therefore, results from this technique

are an extension of ‘‘photochemical

grid’’ modeling and are consistent with

Section 182(c)(2)(A). Also, a commenter

believes EPA has not provided sufficient

opportunity to evaluate the calculations

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 605

8Observing that for the attainment demonstration

for the Washington, D.C. area, EPA reduced

modeled ozone values by 19% to account for model

overprediction, a commenter criticized this

technique as lacking technical justification. EPA

Continued

used to estimate additional emission

reductions. EPA provided a full 60-day

period for comment on all aspects of the

proposed rule. EPA has received several

comments on the technical aspects of

the approach and the results of its

application, as discussed above and in

the responses to the individual SIP’s.

Commenter states, application of the

method of attainment analysis in the

December 16, 1999 guidance will yield

a lower control estimate than if we

relied entirely on reducing maximum

predictions in every grid cell to less

than or equal to 124 ppb on every

modeled day. However, this approach

may overestimate needed controls (e.g.,

the form of the standard allows up to 3

exceedances in 3 years in every grid

cell; and if the model over predicts

observed concentrations, predicted

controls may also be overestimated,

etc.). In recognition of this EPA has

considered other evidence to make these

determinations, as described above

through the weight of evidence

determination.

When reviewing a SIP, the EPA must

make a reasonable determination that

the control measures adopted more

likely than not will lead to attainment.

Under the WOE determination, EPA has

made these determinations based on all

of the information presented by the

States and available to EPA. The

information considered includes model

results for the majority of the control

measures. Though all measures were not

modeled, EPA reviewed the model’s

response to changes in emissions as

well as observed air quality changes to

evaluate the impact of a few additional

measures, not modeled. EPA’s decision

was further strengthened by each State’s

commitment to check progress towards

attainment in 2003 and to adopt

additional measures, if the anticipated

progress is not being made.

A commenter further criticized EPA’s

technique for estimating the ambient

impact of additional emissions

reductions not modeled on grounds that

EPA employed a rollback modeling

technique that, according to the

commenter, is precluded under EPA

regulations. The commenter explained

that 40 CFR 51 App. W section 6.2.1.e.

provides, ‘‘Proportional (rollback/

forward) modeling is not an acceptable

procedure for evaluating ozone control

strategies.’’ Section 14.0 of appendix W

defines ‘‘rollback’’ as ‘‘a simple model

that assumes that if emissions from each

source affecting a given receptor are

decreased by the same percentage,

ambient air quality concentrations

decrease proportionately.’’ Under this

approach if 20% improvement in ozone

is needed for the area to reach

attainment, it is assumed a 20%

reduction in VOC would be required.

There was no approach for identifying

NOX reductions. The ‘‘proportional

rollback’’ approach is a purely

empirically/mathematically derived

relationship, and is not what EPA did.

The prohibition in Appendix W applies

to the use of a rollback method which

is empirically/mathematically derived

and independent of model estimates or

observed air quality and emissions

changes as the sole method for

evaluating control strategies. For the

demonstrations under proposal, EPA

used a locally derived (as determined by

the model and/or observed changes in

air quality) ratio of change in emissions

to change in ozone to estimate

additional emission reductions to

achieve an additional increment of

ambient improvement in ozone. This

did assume a linear relationship

between the precursors and ozone for a

small amount of ozone improvement.

EPA has generally relied on

photochemical modeling to evaluate the

attainment demonstrations and their

control strategies, and has used locally

derived adjustment factors as a

component to estimate the extent to

which additional emissions

reductions—not the core control

strategies—would reduce ozone levels

and thereby strengthen the weight of

evidence test. This limited use of

adjustment factors is more technically

sound than the unacceptable use of

proportional rollback. The limited use

of adjustment factors is more practical

in light of the uncertainty in the

modeling; the resources and time

required to perform additional

modeling; and the requirement that

areas perform a progress check by the

end of 2003.

Contrary to concerns expressed by a

commenter, EPA did not err by

modifying the modeling requirements

without first proposing to do so. Section

3.0 of appendix W states, ‘‘It should not

be construed that the preferred models

identified here are the only models

available for relating emissions to air

quality.’’ Section 3.2.2 of Appendix W

further provides that the ‘‘determination

of acceptability of a model is a Regional

Office responsibility. Where the

Regional Administrator finds that an

alternative model is more appropriate

than a preferred model, that model may

be used subject to the recommendations

in appendix W. This finding will

normally result from a determination

that (1) a preferred air quality model is

not appropriate for the particular

application; or (2) a more appropriate

model or analytical procedure is

available and is applicable.’’ Therefore,

EPA does have the discretion to identify

a more appropriate analytical procedure

without undergoing rulemaking on

updates to Appendix W. Also, as

discussed above, by reference to the

modeling guidance, Appendix W was

designed to allow changes in the

predictive tools and data bases without

undergoing additional rulemaking. In

any event, the EPA is taking comment

during the SIP rulemaking process on

the application of its guidance.

A commenter also expressed concern

that EPA applied unacceptably broad

discretion in fashioning and applying

the WOE determinations. EPA disagrees.

The WOE determinations are made on a

case-by-case basis. EPA has approved

attainment demonstrations based on

WOE determinations, generally with a

requirement for additional reductions

not modeled, only when the

photochemical modeling provides a

basis for believing that the SIP controls

will achieve substantial ozone

reductions, if not attainment levels. The

fact that the WOE factors are

incremental and differ between

demonstrations, leads EPA to conclude

these determinations may be made on a

case-by-case basis, without hard-andfast guidelines. Moreover, EPA believes

that the WOE approach is bounded by

the strength of the various factors that

may be applied. The commenter added,

as an example, EPA’s application of the

WOE approach to the Washington, DC

attainment demonstration where

modeling showing an ozone level (as

adjusted) of 142 ppb was compared to

the acceptable upper limit of 137 ppb.

The commenter observed that EPA

adjusted the modeled prediction on

average by a factor of 19% to account for

model over prediction, and stated that

such an adjustment was not appropriate.

In EPA’s view, the 19% over prediction

that underlies the 142 ppb level is only

a rough approximation of the extent of

modeling uncertainty. In EPA’s view,

consideration of model performance

(specifically, a bias to under- or overpredict ozone levels) is one way to

assess modeling uncertainty. To further

address uncertainty, EPA applied the

1999 guidance to estimate the future

design, in the same manner as applied

to all of the other attainment

demonstrations received. Both the

assessment of model performance and

the estimated future design value were

used in the WOE determination.8

606 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

guidance recommends assessment of model

performance (both over- and under-prediction) as

one of the factors affecting the model results. In

general performance measures that fall within EPA

recommended ranges are considered as an

indication that the model is performing acceptably.

For the Washington, D.C. area, EPA explained how

performance was more closely reviewed and used

as part of the WOE. The technique is described in

‘‘Technical Support Document for the One-Hour

Ozone Attainment Demonstrations submitted by the

State of Maryland, Commonwealth of Virginia and

the District of Columbia for the Metropolitan

Washington, D.C. Ozone Nonattainment Area,’’

November 30, 1999. The modeled peak ozone

results generally correlated (in geographic

proximity) with the monitored peak ozone

emissions (and the modeled plume generally

correlated (in geographic proximity) with the

observed ozone plume), except that the peak

modeled ozone levels averaged approximately 19–

20% higher than the peak monitored levels.

Modeling uncertainties (including, for example, the

non-linearity of the modeling) lead EPA to conclude

that adjusting each modeled peak by the 19%

average over-prediction was at least as sensible as

adjusting each modeled peak by an amount that

corresponds to that modeled peak’s relationship to

the monitored ozone value in the same vicinity.

9http://www.ncdc.noaa.gov/ol/climate/research/

1999/perspectives.html and ‘‘Regional Haze and

Visibility in the Northeast U.S.’’; NESCAUM at

http://www.nescaum.org/pdf/pubslist.pdf.

The commenter also complained that

EPA has applied the WOE

determinations to adjust modeling

results only when those results indicate

nonattainment, and not when they

indicate attainment. WOE is not used to

adjust model results. WOE is additional

analysis that is reviewed when there is

reason to question the attainment

demonstration. For the current

demonstrations under proposal, EPA’s

decision to approve the demonstrations

relied not only on the modeling, but

other WOE, as well. For example, EPA

considered current air quality, model

performance (over- as well as underprediction), number of episode days,

model predicted future design values,

and results from the regional modeling

for the NOX SIP Call, where applicable.

For a given attainment demonstration

any one of these elements could have

indicated the area may not attain. But

collectively the information supported

EPA’s decision. EPA has applied WOE

determinations to all of the current

demonstrations under proposal,

although except for the Chicago and

Milwaukee attainment demonstrations,

the modeling results submitted do not

pass the recommended ‘‘modeled

attainment test.’’ Reference the

individual proposals for how WOE was

applied in each case. These

determinations were made based on

EPA’s best understanding of the

problem and relied on a qualitative

assessment as well as quantitative

assessments of the available

information. In some cases, EPA

believed the demonstration of

attainment was not conclusive, and in

these cases EPA made the determination

that additional emission reductions

were needed to strengthen the

demonstration.

The commenter further criticized

EPA’s application of the WOE

determination on grounds that EPA

ignores evidence indicating that

continued nonattainment is likely, such

as, according to the commenter,

monitoring data indicate that ozone

levels in many cities during 1999

continue to exceed the NAAQS by

margins as wide or wider than those

predicted by the UAM model. EPA did

consider the monitoring data along with

other information in these

determinations. When reviewing the

monitoring data, EPA considered other

factors. For example, high monitoring

values may have occurred for many

reasons including, fluctuations due to

changes in meteorology and lack of

emission reductions. The 1999 monitor

values do not reflect several control

programs, both local and the regional

which are scheduled for

implementation in the next several

years. And the 1999 meteorology in the

Northeast was such that July 1999 was

one of the warmest (ranked 9th) ever

experienced since 1895.9 In addition to

the heat, the middle and southern

portions of the Northeast were also drier

than average during this month. This

information supports EPA’s belief that

the high exceedances observed in 1999

are not likely to reoccur frequent

enough to cause a violation, once the

controls adopted in these SIP’s are

implemented. There is little evidence to

support the statement that ozone levels

in many cities during 1999 continue to

exceed the NAAQS by margins as wide

or wider than those predicted by the

UAM. Since areas did not model 1999

ozone levels using 1999 meteorology

and 1999 emissions which reflect

reductions anticipated by control

measures, that are or will be approved

into the SIP, there is no way to

determine how the UAM predictions for

1999 compare to the 1999 air quality.

Therefore, we cannot determine

whether or not the monitor values

exceed the NAAQS by a wider margin

than the UAM predictions for 1999. In

summary, there is little evidence to

support the conclusion that high

exceedances in 1999 will continue to

occur after adopted control measures are

implemented.

In addition, the commenter argued

that in applying the WOE

determinations, EPA ignored factors

showing that the SIPs under-predict

future emissions, and the commenter

included as examples certain mobile

source emissions sub-inventories. EPA

did not ignore possible under-prediction

in mobile emissions. EPA is presently

evaluating mobile source emissions data

as part of an effort to update the

computer model for estimating mobile

source emissions. EPA is considering

various changes to the model, and is not

prepared to conclude at this time that

the net effect of all these various

changes would be to increase or

decrease emissions estimates. For

attainment demonstration SIPs that rely

on the Tier 2/Sulfur program for

attainment or otherwise (i.e., reflect

these programs in their motor vehicle

emissions budgets), States have

committed to revise their motor vehicle

emissions budgets after the MOBILE6

model is released. EPA will work with

States on a case-by-case basis if the new

emission estimates raise issues about

the sufficiency of the attainment

demonstration. Corrections, if needed,

will be made in time for the progress

check in 2003 and if the analysis

indicates additional measures are

needed, EPA will take the appropriate

action.

C. Reliance on NOX SIP Call and Tier

2 Modeling

Comment: Given the uncertainty

surrounding the NOX SIP Call at the

time of EPA’s proposals on the

attainment demonstrations, there is no

basis for the conclusion reached by EPA

that states should assume

implementation of the NOX SIP Call, or

rely on it as a part of their

demonstrations. The commenter

references modeling data which

demonstrates that the benefits of

imposing NOX SIP Call controls are

limited to areas near the sources

controlled.

The commenter adds that there are

errors in the emissions used for the NOX

SIP Call Supplemental Notice (SNPR).

The commenter believes that because of

inaccurate inventories the modeling

analyses, estimates of air quality based

on that modeling, and estimates of

EPA’s Tier II tailpipe emissions

reduction program not modeled in the

demonstrations, are also flawed.

Response: In Michigan v. EPA, 213

F.3d 663 (D.C. Cir. 2000), the court

upheld the NOX SIP Call on most issues,

although a subsequent order of the court

delays the implementation date to no

later than May 31, 2004. EPA is moving

forward to implement those portions of

the rule that have been upheld, ensuring

that most—if not all—of the emission

reductions from the NOX SIP Call

assumed by the States in their 1-hour

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 607

10These responses to comments will not address

Atlanta; that will be addressed in the future when

EPA takes final rulemaking action on the Atlanta

SIP.

ozone NAAQS attainment

demonstrations will occur. EPA’s

modeling to determine the region-wide

impacts of the NOX SIP Call clearly

shows that regional transport of ozone

and its precursors is impacting

nonattainment areas several states away,

and this analysis was upheld by the

court. Therefore, it is appropriate for

States to assume implementation of the

NOX SIP Call.

The EPA considered many factors

when making these determinations. No

single piece of information was

determinant. It is important to recognize

that the regional modeling for the Tier

II rule was not used in the 1-hour

attainment demonstrations and that the

SNPR modeling was only one of several

factors considered. EPA’s decision was

based on a qualitative assessment of the

information presented. Information

reviewed included results of the

modeled attainment test, along with

other supplemental information such as

other modeled outputs (e.g., changes in

the predicted frequency and

pervasiveness of 1-hour ozone NAAQS

exceedances and predicted changes in

the ozone design value); actual observed

air quality trends (i.e. analyses of

monitored air quality data); estimated

emissions trends; base year model

performance; SNPR derived future

design values; the responsiveness of the

model predictions to further controls;

and for some of the demonstrations

estimates of additional emission

reductions. EPA recognizes that any and

all of this information has some degree

of uncertainty, including the SNPR

modeling. EPA recognizes that these

uncertainties should be considered

when making these determinations and

that is why EPA considered other

factors. EPA’s weight of evidence

determinations are not affected by error

in any one piece of the information.

D. Impact of the NOX SIP Call on

Attainment of the 1-Hour NAAQS

Comment: One commenter states that

Massachusetts’s NOX emissions

interfere with attainment in downwind

areas of New Hampshire and Maine and

that Connecticut’s NOX emissions

interfere with attainment in downwind

areas of Massachusetts, New Hampshire

and Maine. Therefore, the commenter

states that significant additional NOX

reductions are needed for these areas to

attain the 1-hour ozone NAAQS. The

commenter also remarked that neither

Massachusetts nor Connecticut has

committed to adequate emission control

strategies.

Response: In the final rule for the

NOX SIP Call (63 FR 57394, October 27,

1998), EPA indicated that Massachusetts

contains sources that contribute

significantly to 1-hour nonattainment in

Maine and New Hampshire, and that

Connecticut contains sources that

contribute significantly to 1-hour

nonattainment in Massachusetts, Maine

and New Hampshire. The NOX SIP Call

rule specified the emissions that

Connecticut and Massachusetts were

required to regulate to address their

significant contribution to

nonattainment in these downwind

States. Massachusetts submitted a rule

meeting the NOX SIP Call on November

19, 1999, and EPA proposed approval of

this rule on July 12, 2000 (65 FR 42907).

Similarly, Connecticut submitted a rule

in response to the NOX SIP Call on

October 1, 1999, and EPA proposed

approval on July 12, 2000 (65 FR

42900). On October 20, 2000, the

Regional Administrator signed notices

fully approving these rules, and

publication is expected soon. These

rules have addressed Massachusetts’s

and Connecticut’s contribution to ozone

nonattainment in downwind areas. In

addition, recent air quality monitoring

data for 1998–2000, which have been

quality assured, indicate that the

Portland, ME, and Portsmouth-DoverRochester, NH, ozone nonattainment

areas no longer violate the 1-hour ozone

NAAQS.

E. RACM (Including Transportation

Control Measures)

1. Comments on December 16, 1999

Proposal

Comment: Several commenters have

stated that there is no evidence in

several states that they have adopted

reasonably available control measures

(RACM) or that the SIPs have provided

for attainment as expeditiously as

practicable. Specifically, the lack of

Transportation Control Measures

(TCMs) was cited in several comments,

but potential stationary source controls

were also covered. One commenter

stated that mobile source emission

budgets in the plans are by definition

inadequate because the SIPs do not

demonstrate timely attainment or

contain the emissions reductions

required for all RACM. That commenter

claims that EPA may not find adequate

a motor vehicle emission budget

(MVEB) that is derived from a SIP that

is inadequate for the purpose for which

it is submitted. The commenter alleges

that none of the MVEBs submitted by

the states that EPA is considering for

adequacy is consistent with either the

level of emissions achieved by

implementation of all RACM; nor are

they derived from SIPs that provide for

attainment. Some commenters stated

that for measures that are not adopted

into the SIP, the State must provide a

justification for why they were

determined to not be RACM.

Response: The EPA reviewed the SIP

submittals for the four serious areas

(Greater Connecticut, Western

Massachusetts (Springfield);

Metropolitan Washington, D.C.; and

Atlanta, Georgia 10) and determined that

they did not include sufficient

documentation concerning available

RACM measures. Therefore, EPA

reviewed numerous potential RACM

measures. As part of this review, EPA

developed an analysis, which has been

placed in the dockets for the SIPs for the

serious areas to help address this issue:

‘‘RACM Analysis for Four Serious Areas

Designated Nonattainment for 1-hr

Ozone NAAQS.’’ U.S. Environmental

Protection Agency; Office of Air Quality

Planning and Standards, Research

Triangle Park, NC 27711; and Office of

Transportation and Air Quality, Ann

Arbor, MI 48105. October 12, 2000. An

electronic version of EPA’s RACM

analysis cited above can be downloaded

at www.epa.gov/ttn/rto under ‘‘What’s

New.’’ The EPA published a notice of

availability of this material on October

16, 2000 (65 FR 61134) and provided

initially a 15 day public comment

period on the material. The EPA

extended the public comment period on

this supplemental material for an

additional 15 days in a notice published

November 2, 2000 (65 FR 65818) and

corrected on November 9, 2000 (65 FR

67319).

Section 172(c)(1) of the Act requires

SIPs to contain RACM and provides for

areas to attain as expeditiously as

practicable. EPA has previously

provided guidance interpreting the

requirements of 172(c)(1). See 57 FR

13498, 13560. In that guidance, EPA

indicated its interpretation that

potentially available measures that

would not advance the attainment date

for an area would not be considered

RACM. EPA also indicated in that

guidance that states should consider all

potentially available measures to

determine whether they were

reasonably available for implementation

in the area, and whether they would

advance the attainment date. Further,

states should indicate in their SIP

submittals whether measures

considered were reasonably available or

not, and if measures are reasonably

available they must be adopted as

RACM. Finally, EPA indicated that

608 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

11Several States (DE, PA, CT, MA, RI, MD, NY,

NJ) have submitted plans providing for reductions

by 2003. EPA has fully approved three of these

plans (CT, MA, RI).

states could reject measures as not being

RACM because they would not advance

the attainment date, would cause

substantial widespread and long-term

adverse impacts, or would be

economically or technologically

infeasible. The EPA also issued a recent

memorandum re-confirming the

principles in the earlier guidance,

entitled, ‘‘Guidance on the Reasonably

Available Control Measures (RACM)

Requirement and Attainment

Demonstration Submissions for Ozone

Nonattainment Areas.’’ John S. Seitz,

Director, Office of Air Quality Planning

and Standards. November 30, 1999. Web

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

t1pgm.html.

The EPA’s RACM analysis cited above

evaluated emission levels of oxides of

nitrogen ( NOX) and volatile organic

compounds (VOC) and their

relationship to the application of

current and anticipated control

measures expected to be implemented

in four serious one-hour ozone

nonattainment areas. This analysis was

done to determine if additional RACM

are available after adoption of Clean Air

Act (Act) required measures for the four

serious ozone nonattainment areas. The

analysis supplemented the December

16, 1999 proposals to approve the 1-

hour O3 NAAQS attainment

demonstrations in these areas.

Based on this analysis and other

information discussed below, EPA

concluded that additional emission

control measures would not advance the

attainment date and therefore do not

constitute RACM in three

nonattainment areas: Greater

Connecticut; Springfield,

Massachusetts; and Metropolitan

Washington. The EPA therefore

concludes that the SIPs for these areas

meet the requirement for adopting

RACM.

In addition to control measures

already implemented locally, each of

the three areas relies in large part on

reductions from outside the

nonattainment areas from EPA’s NOX

SIP Call rule or section 126 rule (65 Fed.

Reg. 2674, January 18, 2000) to reach

attainment. In the NOX SIP Call, 63 Fed.

Reg. 57356, EPA concluded that

reductions from various upwind states

were necessary to provide for timely

attainment in nonattainment areas in

various downwind states, including all

four of the nonattainment areas that

were the subject of this analysis. The

NOX SIP Call therefore established

requirements for control of sources of

significant emissions in all upwind

states. However, these reductions were

not slated for full implementation until

May 2003. Further, the United States

Court of Appeals for the District of

Columbia Circuit recently ordered that

EPA could not require SIPs to provide

for full implementation of the NOX SIP

Call prior to May 2004. Michigan, et al.,

v. EPA, D.C. Cir. No. 98–1497, Order of

Aug. 30, 2000.11

The attainment demonstrations for

these three serious areas indicate that

the ozone benefit expected to be

achieved from regional NOX reductions

(such as the NOX SIP Call) are

substantial. (See the individual

attainment demonstrations in the docket

for each of these areas.)

EPA had proposed to approve an

attainment date extension beyond the

original attainment date specified in the

Clean Air Act (November 1999) for each

of the three serious areas: to 2007 for

Greater Connecticut; to 2003 for

Western Massachusetts; and to 2005 for

Metropolitan Washington. The rationale

for such extensions is discussed in

detail extensions elsewhere in these

responses to comments. Briefly,

however, the extensions are being given

mainly due to the fact that these areas

will have to rely on emission reductions

from upwind areas. Some of those

upwind reductions will be provided

under the NOX SIP Call rule with

compliance in 2004, and from the

section 126 rule, with compliance in

2003. Additional reductions from other

nonattainment areas are relied on by

Greater Connecticut and the

Metropolitan Washington, DC areas.

For Greater Connecticut—Greater

Connecticut must rely on reductions

from the New York City nonattainment

area to reach attainment. The New York

nonattainment area—classified severe—

has a statutory attainment date of as late

as 2007. The SIP submitted for New

York City, which EPA has proposed to

approve, establishes a 2007 attainment

date. It is unlikely that all the emission

reductions necessary to reduce

sufficiently upwind emissions to bring

Greater Connecticut into attainment will

be obtained until the attainment year for

New York City and the best available

evidence indicates that date will be

2007. EPA’s zero out modeling analyses

conducted in support of EPA’s NOX SIP

Call show that even eliminating all of

Connecticut’s emissions does not help

Connecticut attain prior to the time New

York City reaches attainment, since the

effects of transport are so significant.

(See 64 FR 70343.) Therefore, EPA

concludes that additional emission

reductions within Connecticut would

not advance the attainment date for the

Greater Connecticut area, and thus that

no additional measures are considered

RACM.

For Metropolitan Washington—There

is strong evidence to support the

premise that the Washington, DC

nonattainment area is impacted by

transport from outside the modeled

Washington-Baltimore area and cannot

attain without upwind reductions. The

response to comments on the issue of

attainment date extensions for the

Metropolitan Washington DC area

provides a detailed discussion of the

role of transport from within the

modeling area and we do not repeat that

information here. See section II. A.

Based on that information, it has been

clearly demonstrated that, until the

Baltimore nonattainment area

implements local controls and comes

into attainment, there is the potential for

high ozone and precursor emissions

from the Baltimore nonattainment area

to cause exceedances in the

Washington, D.C. nonattainment area.

Based on the above, the Metropolitan

Washington, DC area must rely on

reductions from outside the

nonattainment area to reach attainment.

The Baltimore nonattainment area—

classified severe—has a statutory

attainment date of as late as 2005. The

SIP submitted for Baltimore, which EPA

has proposed to approve, establishes a

2005 attainment date. It is unlikely that

all the emission reductions necessary to

reduce sufficiently upwind emissions to

bring Metropolitan Washington into

attainment will be obtained until the

attainment year for Baltimore, and the

best available evidence indicates that

date will be 2005. Therefore, EPA

concludes that additional emission

reductions within the Metropolitan

Washington, D.C. area would not

advance the attainment date for the area,

and thus that no additional measures

are considered RACM.

For Western Massachusetts and

Metropolitan Washington:

1. Many of the measures designed to

achieve emissions reductions from

within these nonattainment areas—in

particular, the regional NOX

reductions—will also not be fully

implemented until just prior to each

area’s respective attainment date. One

could argue that the local measures

needed for attainment in these two areas

could be implemented earlier and

advance attainment. Additional

reductions beyond those already

provided for in the SIPs for these two

areas could potentially be implemented

in the interim period prior to the

reductions from these upwind controls;

however, they would only be needed for

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 609

an interim period of time, after which

the State could actually replace them if

the State submits a new attainment

demonstration showing they were no

longer necessary. The interim

implementation of such measures could

likely result in cases where sources

would have to install controls, and then

would be relieved of such

responsibility, which could be

disruptive. Thus, EPA believes this

situation—where the local controls

would only marginally advance

attainment—supports a finding that the

additional controls would not be

considered RACM.

2. Also, the development of rules for

sources in the Western Massachusetts

and Metropolitan Washington

nonattainment areas for which little

control information may exist—

especially a large number of very

different source categories of small

sources—will likely take much longer

than development of rules for source

categories for which control information

exists or that comprise a smaller number

of larger sources. The longer the time

frame for development of rules by the

State would decrease the possibility that

the emission reductions from the rules

would advance the attainment date

earlier than would be achieved from the

larger amount of reductions expected

from upwind controls, such as the NOX

SIP Call rule and the section 126 rule.

For all three areas—One could also

argue that the measures needed in the

upwind area that is affecting the area in

question could be implemented earlier

and therefore could result in earlier

attainment. The EPA recognizes that it

has not taken final rulemaking on the

severe areas that affect the three serious

areas in question (New York for the

Greater Connecticut and Western

Massachusetts nonattainment areas, and

Baltimore for the Metropolitan

Washington nonattainment area).

However, since EPA must take

rulemaking action on the three serious

areas at this time, and because it does

not have information to the contrary at

this point, EPA must presume the

attainment dates submitted by the States

and for which EPA proposed approval

on December 16, 1999, and therefore

presume that emission controls for those

severe areas will be implemented as

expeditiously as practicable on a

schedule to achieve those reductions.

Because EPA proposed to approve the

attainment dates for the severe areas in

question, it is reasonable to assume that

the severe areas cannot implement their

measures to achieve attainment any

more expeditiously.

Thus, EPA believes that

implementation of additional measures

in the three nonattainment areas will

not advance the attainment date, prior

to the time of full implementation of the

SIP call and/or the section 126 rule and,

for Greater Connecticut and

Metropolitan Washington, prior to

implementation by the upwind area of

all local measures needed to attain by

the area’s attainment date.

Therefore, EPA concludes, based on

the available documentation, that the

reductions from additional control

measures will not advance attainment,

and thus none of these potential

measures analyzed can be considered

RACM for purposes of section 172(c)(1)

for these three areas for their 1-hour

ozone standard attainment

demonstration.

Although EPA does not believe that

section 172(c)(1) requires

implementation of additional measures

for these three serious areas, this

conclusion is not necessarily valid for

other areas. For 1-hour ozone

nonattainment areas classified as severe,

for instance, some of which are the

‘‘upwind’’ areas referred to in the above

responses for serious areas, such

measures may in fact be RACM, and the

States in which such areas are located

have a responsibility to perform an

analysis of whether additional measures

are RACM. EPA is about to issue

additional guidance concerning the

RACM requirement for the severe areas.

In addition, if in the future EPA moves

forward to implement another ozone

standard, this RACM analysis would not

control what is RACM for these or any

other areas for that other ozone

standard.

Also, EPA has long advocated that

States consider the kinds of control

measures that the commenters have

suggested, and EPA has indeed

provided guidance on those measures.

See, e.g., http://www.epa.gov/otaq/

transp.htm. In order to demonstrate that

they will attain the 1-hour ozone

NAAQS as expeditiously as practicable,

some areas may need to consider and

adopt a number of measures—including

the kind that EPA itself evaluated in the

RACM analysis for the three serious

areas—that even collectively do not

result in many emission reductions.

Furthermore, EPA encourages areas to

implement technically available and

economically feasible measures to

achieve emissions reductions in the

short term—even if such measures do

not advance the attainment date—since

such measures will likely improve air

quality. Also, over time, emission

control measures that may not be RACM

now for an area may ultimately become

feasible for the same area due to

advances in control technology or more

cost-effective implementation

techniques. Thus, areas should continue

to assess the state of control technology

as they make progress toward

attainment and consider new control

technologies that may in fact result in

more expeditious improvement in air

quality.

Discussion of other factors related to

RACM, such as economic and

technological feasibility, are discussed

below in responses to comments on

EPA’s RACM analysis.

Elsewhere in this response to

comments, EPA addresses the issue of

whether the attainment dates are as

expeditious as practicable and that

discussion is not repeated here.

EPA previously responded to

comments concerning the adequacy of

MVEBs when EPA took final action

determining the budgets adequate and

does not address those issues again

here. The responses are found at http:/

/www.epa.gov/oms/transp/conform/

pastsips.htm .

Comments on the supplemental

material were received from several

commenters and are addressed below.

Note that the response to the

comment related to severe areas will be

provided at the time EPA takes final

rulemaking action on those areas.

2. Comments on October 16, 2000

Notice of Availability

Comment 1: EPA cannot invent

rationales for the states: EPA’s role is

limited to reviewing what the states

have submitted, and approving or

disapproving it. 42 U.S.C. 7410(k)(3);

Riverside Cement Co. v. Thomas, 843

F.2d 1246 (9th Cir. 1988). EPA ‘‘may

either accept or reject what the state

proposes; but EPA may not take a

portion of what the state proposes and

amend the proposal ad libitum.’’ Id. If

states are going to reject control

measures, their decision to do so and

the rationale therefore must be subject

to notice and hearing at the state and

local level.

Response 1: The SIP submittals from

the States for the Metropolitan

Washington, Western Massachusetts,

and the Greater Connecticut

nonattainment areas contained no

measures adopted for the sole purpose

of satisfying the RACM requirement.

The public did have a chance to

comment at the State level on the fact

that there were no additional measures.

The EPA interpreted this lack of

additional measures as an indication

that the State did not identify any

additional measures as meeting the

RACM requirement under section

172(c)(1). The EPA did not amend the

SIP; EPA supplemented the rationale

610 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

and approved the SIP with an

explanation of why it was acceptable for

the State to identify no additional

measures to meet the RACM

requirement of the Clean Air Act.

The commenter cites Riverside

Cement for the proposition that EPA

cannot perform an analysis of whether

the State’s plan complies with the

CAA’s RACM requirement. The EPA

believes that the holding of that case is

inapplicable to these facts. In Riverside

Cement, EPA approved a control

requirement establishing an emission

limit into the SIP and disregarded a

contemporaneously-submitted

contingency that would allow the State

to modify the emission limit. Thus, the

court concluded that EPA ‘‘amended’’

the State proposal by approving into the

SIP something different than what the

State had intended. 843 F.2d at 1248. In

the present circumstances, EPA did not

attempt to modify a substantive control

requirement of the submitted plan.

Rather, EPA performed additional

analyses to determine if the plan, as

submitted, fulfilled the substantive

RACM requirement of the Act. As a

general matter, EPA believes that States

should perform their own analyses of

RACM (as well as submitting other

supporting documents for the choices

they make). The statute places primary

responsibility on the States to submit

plans that meet the Act’s requirements.

However, nothing in the Act precludes

EPA from performing those analyses,

and the Act clearly provides that EPA

must determine whether the State’s

submission meets the Act’s

requirements. Under that authority, EPA

believes that it is appropriate, though

not mandated, that EPA perform

independent analyses to determine

whether a submission meets the

requirements of the Act. The EPA has

not attempted to modify the State’s

submission by either adding or deleting

a substantive element of the submitted

plan. By virtue of the supplemental

RACM analysis, EPA has concluded that

the State’s initial submission contains

control measures sufficient to meet the

RACM requirement.

Comment 2 (a): Inappropriate

grounds for rejecting RACM. The

commenter claims that EPA’s bases for

rejecting measures as RACM are

inappropriate considerations: (a) The

measures are ‘‘likely to require an

intensive and costly effort for numerous

small area sources’’; or (b) the measures

‘‘do not advance the attainment dates’’

for the four areas. 65 Fed. Reg. at 61134.

Neither of these grounds are legally or

rationally sufficient bases for rejecting

control measures.

Response 2(a): The EPA’s approach

toward the RACM requirement is

grounded in the language of the Clean

Air Act. Section 172(c)(1) states that a

SIP for a nonattainment area must meet

the following requirement, ‘‘In

general.—Such plan provisions shall

provide for the implementation of all

reasonably available control measures

as expeditiously as practicable

(including such reductions in emissions

from existing sources in the area as may

be obtained through the adoption, at a

minimum, of reasonably available

control technology) and shall provide

for attainment of the national primary

ambient air quality standards.’’

[Emphasis added.] The EPA interprets

this language as tying the RACM

requirement to the requirement for

attainment of the national primary

ambient air quality standard. The Act

provides that the attainment date shall

be ‘‘as expeditiously as practicable but

no later than * * *’’ the deadlines

specified in the Act. EPA believes that

the use of the same terminology in

conjunction with the RACM

requirement serves the purpose of

specifying RACM as the way of

expediting attainment of the NAAQS in

advance of the deadline specified in the

Act. As stated in the ‘‘General

Preamble’’ (57 FR 13498 at 13560, April

16, 1992), ‘‘The EPA interprets this

requirement to impose a duty on all

nonattainment areas to consider all

available control measures and to adopt

and implement such measures as are

reasonably available for implementation

in the area as components of the area’s

attainment demonstration.’’ [Emphasis

added.] In other words, because of the

construction of the RACM language in

the CAA, EPA does not view the RACM

requirement as separate from the

attainment demonstration requirement.

Therefore, EPA believes that the Act

supports its interpretation that measures

may be determined to not be RACM if

they do not advance the attainment

date. In addition, EPA believes that it

would not be reasonable to require

implementation of measures that would

not in fact advance attainment. See 57

FR 13560.

The term ‘‘reasonably available

control measure’’ is not actually defined

in the definitions in the Act. Therefore,

the EPA interpretation that potential

measures may be determined not to be

RACM if they require an intensive and

costly effort for numerous small area

sources is based on the common sense

meaning of the phrase, ‘‘reasonably

available.’’ A measure that is reasonably

available is one that is technologically

and economically feasible and that can

be readily implemented. Ready

implemention also includes

consideration of whether emissions

from small sources are relatively small

and whether the administrative burden,

to the States and regulated entities, of

controlling such sources was likely to be

considerable. As stated in the General

Preamble, EPA believes that States can

reject potential measures based on local

conditions including cost. 57 FR 13561.

Also, the development of rules for a

large number of very different source

categories of small sources for which

little control information may exist will

likely take much longer than

development of rules for source

categories for which control information

exists or that comprise a smaller number

of larger sources. The longer the time

frame for development of rules by the

State would decrease the possibility that

the emission reductions from the rules

in the three nonattainment areas would

advance the attainment date earlier than

would be achieved from the larger

amount of reductions expected from

upwind controls, such as from the NOX

SIP Call and controls from severe areas

with later statutory attainment dates.

Comment 2(b): EPA’s approach also

illegally assumes that the attainment

dates for these areas can be extended

beyond November 15, 1999 via the

Agency’s downwind transport policy.

Response 2(b): As noted above, EPA

concluded that RACM is linked in the

language of the Clean Air Act to the

attainment date. We elsewhere respond

to comments that object to EPA’s

approval of attainment date extensions

and do not restate those responses here.

See Section II. A. Once an attainment

date is set for an area, an analysis can

then be made to determine whether any

additional measures that may

potentially be RACM would advance

that attainment date.

Comment 3: Failure to quantify

reductions needed to attain sooner:

Even if advancement of the attainment

date were a relevant test for RACM, EPA

has failed to rationally justify its claim

that additional control measures would

not meet that test. To begin with,

neither the Agency nor the states have

quantified in a manner consistent with

EPA rules and guidance the emission

reductions that would be needed to

attain the standard prior to achievement

of emission reductions required under

the NOX SIP Call.

Response 3: Elsewhere in this

response to comments on the proposed

approval of the 1-hour ozone SIPs, EPA

addresses the issue of the attainment

date extension. See section II. A. EPA

has therein justified the position that

areas affected by transport may need

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 611

12Transportation Control Meausres: State

Implementation Plan guidance, US EPA 1992;

Transportation Control Measure Information

Documents, US EPA 1992; Costs and Effectiveness

of Transportation Control Meausres: A Review and

Analysis of the Literature, National Association of

Regional Councils 1994.

additional time to attain—and in some

cases may need an extension out to

either the date the NOX SIP Call will be

implemented or the attainment date of

an upwind area if it cannot attain

without the reductions from the upwind

area. In the case of Greater Connecticut,

it would be futile to perform analyses of

whether additional emission reductions

in the nonattainment area—whether

RACM or beyond RACM—would

advance the attainment date when it is

already demonstrated through modeling

that the area cannot attain sooner than

the upwind New York City

nonattainment area that needs to

control. In addition, all local measures

needed for attainment are already being

implemented. EPA considers this

implementation as expeditious as

practicable. In the case of Western

Massachusetts, all local measures are

already being implemented also. EPA

also considers this implementation as

expeditious as practicable. Issues

concerned with timing of

implementation of additional measures

are also discussed above for the three

serious areas.

For all three areas, EPA’s section 126

rule requires compliance with covered

emission reductions in 2003, which

EPA considers as expeditiously as

practicable for those sources. Additional

discussion of the Metropolitan

Washington nonattainment area appears

below.

Comment 4: Inadequate RACM

analysis: EPA’s RACM analysis is

grossly inadequate in several key

respects.

Comment 4(a): EPA’s analysis fails to

provide the technical basis and

calculations by which it developed its

emission reduction estimates for various

measures. EPA failed to provide

citations to the literature regarding

estimates of emission reductions for

various TCMs. EPA failed to specify the

level of implementation assumed for

some of the TCMs in the analysis.

Response 4(a): EPA’s RACM analysis

(found at www.epa.gov/ttn/rto) did

provide the technical basis and

calculations for its emission reduction

estimates for controls possible for the

source categories in the emission

inventory. The commenter apparently

believes EPA’s analysis is insufficient,

however. The technical basis for the

analyses and the assumptions used in

the calculation of estimated emission

reductions were derived from a review

of the literature on the implementation

and effectiveness of TCM’s.12 The TCMs

evaluated depend on the level of

implementation. Implementation

variables, representing levels of

implementation effort, are implicit in

the range of effectiveness for each

category of TCM. EPA does not believe

it is necessary, or even possible, to

evaluate every explicit variation of

TCM’s in order to adequately determine

if it is reasonably available. EPA

believes that using the midpoint level of

effectiveness represents a level of

implementation effort that is not so high

as to be economically infeasible, nor so

low as to be ineffective.

Comment 4(b): EPA’s analysis looks at

only a small universe of potential

measures, and does not evaluate all of

the measures identified in public

comment and other sources.

Response 4(b): EPA’s RACM analysis

was intended to address all potential

categories of stationary and mobile

sources that could provide additional

emission reductions that might be

considered RACM. The EPA believes

that all identified measures were

included in the categories addressed in

the analysis.

Comment 4(c): EPA’s analysis also

completely fails to consider the

additional benefits likely from

combined implementation of

complementary TCMS e.g., parking

management along with transit

improvements. It is arbitrary and

irrational for EPA to assume that these

measures can and will be implemented

in complete isolation from one another.

Response 4(c): EPA recognizes that

many control measures—particularly

TCMS—are more effective if done in

conjunction with others. EPA maintains,

however, that it would be impossible to

analyze a seeming infinite set of

combinations of measures for possible

benefits. The EPA’s analysis did look at

all measures in various categories and

concluded that as a whole these

categories of measures would not

advance attainment or would otherwise

not be reasonably available.

Comment 5: Stationary sources: The

analysis of potential emission

reductions from additional stationary

source measures is flawed in several key

respects.

Comment 5(a): First, EPA arbitrarily

excluded from any consideration the

bottom 20% of the stationary source

categories.

Response 5(a): EPA does not consider

this exclusion arbitrary, since it was

designed to eliminate from

consideration controls on a number of

source categories that were not expected

to yield many emission reductions. The

EPA believed that controls on categories

with very low emission reduction

potential would not constitute RACM.

The fact that none of the top 80 percent

of the categories considered for

additional controls yielded measures

that EPA considered RACM for the areas

in question validates EPA’s decision not

to analyze separately the bottom 20

percent of the categories, which would

cumulatively have achieved fewer

emission reductions. Therefore, EPA

concludes that control measures applied

to the bottom 20 percent of the

categories are also not RACM.

Comment 5(b): Second, EPA did not

consider potential additional controls

on electric generating units and point

source combustion sources.

Response 5(b): Undoubtedly there are

additional controls that could be placed

on electric generating units and point

source combustion sources. However,

EPA believes that the implementation of

the RACT requirements in

nonattainment areas and, more

importantly, the implementation of the

NOX SIP Call in all areas affecting the

nonattainment areas in general provide

a level of control that represents all

reasonably available controls for these

sources in the areas in question. The

EPA believes that generally, the level of

NOX emissions control required under

the NOX SIP Call for larger sources,

including electric generating units and

point source combustion sources, is

greater than the level of control

presumed by EPA under the NOX RACT

requirement. The NOX SIP Call is based

on a level of highly cost effective

controls, characterized as having a

$2000 per ton cost effectiveness or less

(63 FR 57400, October 27, 1998). The

presumptive level of RACT provided in

EPA guidance is based on cost

effectiveness up to $1300 per ton

(Memorandum of March 16, 1994, from

D. Kent Berry re: ‘‘Cost-Effective

Nitrogen Oxides (NOX) Reasonably

Available Control Technology (RACT)’’).

EPA acknowledges that controls with

costs higher than $2000 per ton are

available and may be cost-effective.

However, the control costs do not reflect

other concerns regarding reasonableness

of control. EPA received comments that

predicted problems with availability of

electrical generation even at the NOX

SIP Call level of control; therefore, in its

final NOX SIP Call rule, EPA included

provisions for a NOX supplement pool

to allow more time for some units to

come into compliance and thus

minimize potential power availability

problems. At control levels greater than

612 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

those in the NOX SIP Call rule, EPA

believes the time States would need to

provide for sources to come into

compliance while avoiding power

availability problems would be more

than the current amount of time for

Western Massachusetts and

Metropolitan Washington to attain.

Therefore, EPA had determined that

such additional controls do not

constitute RACM.

Comment 5(c): Third, EPA assumes

that only a 50% level of control is

achievable for the uncontrolled

emissions. This completely

unsupported claim is hard to fathom.

Response 5(c): EPA’s long-standing

guidance on the RACT requirement for

stationary sources of VOC has generally

assumed a presumptive norm of 81

percent control efficiency; this

efficiency was based on the assumption

of a 90 percent capture efficiency and 90

percent control efficiency of the

captured emissions (0.9 X 0.9 = 0.81).

However, the specific VOC RACT

control techniques guidelines were

developed for emission sources for

which much information about

emissions and controls was available.

The RACT rules often apply to smaller

sources as well as to major sources.

There is not nearly as much information

available concerning source categories

for which RACT guidelines have not

been developed; nor is there

information regarding what controls are

appropriate for the smaller sources that

are not already subject to RACT.

Therefore, without further information,

EPA was hesitant to assume an 81

percent level of control. EPA therefore

chose a 50 percent level of control for

VOC control, which EPA believes is

reasonable in light of our limited

knowledge on available controls.

The EPA established guidance to

States in complying with the Clean Air

Act’s requirements for NOX RACT in the

NOX Supplement to the General

Preamble (57 FR 55620, November 25,

1992). That guidance addressed RACT

for major stationary sources of NOX.

Under section 182(b)(2) of the Act,

moderate and higher ozone

nonattainment area SIPs—and also SIPs

for all areas in the Ozone Transport

Region—were already required to

contain provisions for applying a

reasonably available level of control for

NOX for major stationary sources. For

NOX emission control for other sources,

when EPA published the NOX SIP Call

(63 FR 57402, October 27, 1998), EPA

evaluated other levels of control for

categories of stationary sources that

were not included in the highly costeffective controls assumed for

establishing the level of control

reflected in the Statewide NOX emission

budgets in that rule. The EPA

determined that for area sources,

additional controls that were

technologically feasible and highly costeffective could not be identified. The

EPA determined that for small point

sources, their collective emissions were

relatively small and the administrative

burden, to the States and regulated

entities, of controlling such sources was

likely to be considerable. Nonetheless,

for the purpose of the RACM analysis,

EPA did assume a level of control for

sources with potential for control. In

light of the lower level of confidence in

information concerning NOX controls on

these sources, and the conclusion

concerning cost effectiveness, however,

EPA believed it had to take a more

conservative approach, and thus chose a

lower level of control, namely 50

percent. The EPA believes this level is

reasonable in light of these facts.

Comment 6: Transportation Control

Measures as RACM: EPA gives virtually

no consideration to the emission

reduction benefits of transportation

programs, projects and services

contained in adopted regional

transportation plans (RTPs), or that are

clearly available for adoption as part of

RTPs adopted for a nonattainment area.

In addition, it is arbitrary and capricious

for EPA not to require as RACM

economic incentive measures that are

generally available to reduce motor

vehicle emissions in every

nonattainment area.

Response 6: EPA’s notice of

availability of the RACM analysis (65 FR

61134, October 16, 2000) does consider

transportation programs, projects and

services that are generally adopted, or

available for inclusion in a

nonattainment area’s regional

transportation plan (RTP) and

Transportation Improvement Program

(TIP). The RACM analysis includes

seven broad categories and twentyseven subcategories of Transportation

Control Measures (TCMs) that represent

a range of programs, projects and

services that can be included in RTP’s

and TIP’s. The inclusion of a TCM in an

RTP or TIP does not necessarily mean

that it meets EPA’s criteria for RACM

and must be included in the SIP. EPA

has concluded that implementation of

these TCM’s would not advance the

attainment date for the Greater

Connecticut, Western Massachusetts, or

Metropolitan Washington

nonattainment areas, and therefore are

not considered RACM for purposes of

the attainment SIPs for those three

areas.

Some of these TCM’s, such as parking

cashout, transit subsidies, and parking

pricing, are explicitly economic

incentive programs. Furthermore, these

categories of TCMs, as well as most of

the others, could be infinitely

differentiated according to criteria, such

as the method of implementation, level

of promotional effort or market

penetration, stringency of enforcement,

etc. The application of economic

incentives to increase the effectiveness

of a TCM is one such criterion. These

implementation variables, representing

levels of implementation effort, are

implicit in the range of effectiveness for

each category of TCM. EPA does not

believe it is necessary, or even possible,

to evaluate every explicit variation of

TCM’s in order to adequately determine

if it is reasonably available. EPA

believes that using the midpoint level of

effectiveness represents a level of

implementation effort that is not so high

as to be economically infeasible, nor so

low as to be ineffective.

Also, there are many important

reasons why a state, regional, or local

planning agency might implement

TCMs in an integrated traffic

management plan beyond whatever air

quality benefits the TCMs might

generate, including preserving open

space, water shed protection, avoiding

sprawl, mitigating congestion, and

‘‘smart growth’’ planning generally. So

the fact that TCMs are being

implemented in certain ozone

nonattainment areas does not

necessarily lead one to the conclusion

that those TCMs represent mandatory

RACM measures when they are

analyzed primarily for the purpose of

determining whether they would

advance the ozone attainment date.

Comment 7: Washington, D.C. area

analysis: Having refused to consider a

wide range of measures for this area,

and understating the potential benefits

of others, EPA asserts that available

measures would not advance the

attainment date in Washington because:

(a) The area relies heavily on control of

transported emissions and ozone; and

(b) the modeling indicates that NOX

reductions are generally more beneficial

in reducing ozone levels, suggesting that

the area may be NOX limited. The first

point is truly irrelevant to the RACM

inquiry. Even if the issue is whether

additional measures could advance the

attainment date, that inquiry is not

informed by whether the area might

attain by 2005 due to NOX SIP Call

reductions, but by whether it could

attain sooner than 2005 through

additional local emission reductions. As

to the second point, the modeling does

not show that NOX reductions are

inherently more beneficial. They merely

show that under some circumstances

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 613

13RACM Analysis for Four Serious Areas

Designated Nonattainment for 1-hr Ozone NAAQS.

U.S. Environmental Protection Agency; Office of

Air Quality Planning and Standards, Research

Triangle Park, NC 27711; and Office of

Transportation and Air Quality, Ann Arbor, MI

48105. October 12, 2000. p. 6.

generally involving very substantial

NOX reductions (e.g., 60% cuts) NOX

reductions might provide greater

benefits per ton. The same model shows

that NOX reductions can sometimes

actually lead to increased ozone levels

in some cells. Even if the ozone problem

in the Washington area is NOX limited,

that hardly justifies eschewing

additional measures; at most it would

suggest focusing more heavily on

additional measures for NOX sources.

The commenter also attached a

summary of South Coast AQMD Clean

Fleet Rules.

Response 7: The sensitivity analyses

that were performed with the

photochemical grid model for the

Baltimore-Washington area (see

Attachment 4 of the RACM analysis)

showed that, even with smaller NOX

emission reductions (e.g., 30% from the

area and mobile sectors), the ozone

benefits that are achieved are

substantially greater than the minor

ozone benefits achieved from similar

VOC emission reductions. Therefore,

EPA stands by its belief that the levels

of VOC reductions in the Metropolitan

Washington, DC area that could be

achieved by additional stationary and

mobile source control measures that are

potentially RACM would not improve

ozone levels to the point that would

result in advancing the attainment date.

Furthermore, EPA’s analysis

demonstrated that the source categories

that were available for mobile NOX

controls were considered too limited—

even with the area’s ability to benefit

from NOX controls—to advance the

attainment date.13 Also, EPA’s analysis

of levels of NOX reductions in the

Metropolitan Washington, DC area that

could be achieved by additional

stationary source controls that are

potentially RACM would have to come

from a large number of small sources

where EPA does not have much

guidance for control, and therefore

could be costly to develop. Therefore,

EPA concluded that additional controls

on the source categories evaluated

would not be considered RACM. It

should be noted that the modeling was

done for a modeling domain

encompassing both Baltimore and

Washington. The sensitivity analyses

were performed for the entire area.

Baltimore is classified severe with a

2005 attainment date, whereas the

Metropolitan Washington

nonattainment area is classified as a

serious area. EPA has proposed to

approve an attainment date extension

for the Metropolitan Washington, D.C.

area precisely because the modeling

shows that additional controls are

needed for the Washington area to come

into attainment—both from outside the

modeling domain, and from within the

Baltimore area. Other reasons for why

EPA does not consider additional

measures to be RACM for the

Metropolitan Washington, D.C. area are

discussed elsewhere in these responses

to comments.

Comment 8: EPA did not provide

sufficient notice and time to permit

adequate comment.

Response 8: In its initial notice of

availability of the RACM analysis (65 FR

61134, October 16, 2000) EPA offered a

15 day comment period (to October 31,

2000). On November 2, 2000 (65 FR

65818), EPA extended the comment

period an additional 15 days,

specifically stating that this would

provide a total of 30 days for public

comment. Unfortunately, that notice

was published with a typographical

error that appeared to extend the

comment period an additional year and

15 days. Therefore, on November 9,

2000 (65 FR 67319), EPA published a

correction to clearly extend the

comment period 15 days from October

31, 2000, to November 15, 2000. EPA

believes 30 days is an adequate period

for public comment. The first notice to

extend the public comment period (the

November 2, 2000 notice) made it quite

clear that the extension was for only 15

days to provide a total of 30 days for

comment; EPA believes no possible

confusion should have resulted from the

fact that the end date of the comment

period contained a typographical error.

Comment 9: EPA is trying to

circumvent obligations under 2 Consent

Decrees (MOG vs EPA and NRDC v.

Browner).

Response 9: This comment refers to

consent decrees filed in two cases:

NRDC v. Browner, No. 99–2976 (D.D.C.)

and Midwest Ozone Group v. EPA, No.

00–1047 (D.D.C.). In NRDC, the consent

decree provides that by November 15,

2000, EPA shall propose a federal

implementation plan (FIP) for the

Springfield, Massachusetts; Greater

Connecticut; and Metropolitan

Washington, DC nonattainment areas if

EPA has not approved full attainment

demonstration SIP for that area. The

consent decree for Midwest Ozone

Group is similar, but not identical. It

provides that EPA shall propose federal

implementation plans (FIPs) for two of

the three nonattainment areas—

Springfield, Massachusetts and Greater

Connecticut—if EPA has not proposed

approval of a full attainment

demonstration SIP for that area. The

EPA met its obligation under the

Midwest Ozone Group decree when it

proposed approval of the full attainment

demonstration SIPs for those two areas

on December 16, 1999. 64 FR 70319 and

64 FR 70332. On November 6, 2000, the

District Court granted EPA’s unopposed

motion to extend the deadline for action

under the NRDC decree until December

15, 2000 for each of the three areas. On

December 7, 2000, the court further

extended the date for EPA action with

respect to Springfield until December

22, 2000. The EPA has complied with

the NRDC consent decree with respect

to the Greater Connecticut and

Metropolitan Washington, D.C. areas.

The appropriate Regional

Administrators signed final rulemaking

actions approving the full attainment

demonstration SIPs for those two areas

by December 15, 2000. The EPA is on

track to comply with the NRDC consent

decree for the Springfield,

Massachusetts nonattainment area by

December 22, 2000.

Comment 10: Since EPA found that

MA and CT failed to conduct an

adequate RACM analysis, EPA must

disapprove the SIPs and propose a FIP.

Response 10: Although EPA found

that MA and CT failed to conduct an

adequate RACM analysis, EPA believes

it does have authority to supplement the

record and conclude that the SIPs for

these two areas meet the RACM

requirement of the Act. See above the

response to comment.

F. Reliance on Commitments and State

Rules Not Yet Adopted

Comment: Several commenters

disagreed with the EPA’s proposal to

approve attainment demonstrations and

rate-of-progress plans for the

Springfield, Massachusetts, Greater

Connecticut, and Metropolitan

Washington, DC ozone nonattainment

areas because not all of the emissions

reductions credited in the

demonstrations or plans are supported

by legally enforceable limitations

adopted and approved by the state or

District and approved by the EPA as

part of the SIP. Commenters also

objected to accepting enforceable state

commitments to adopt emission

reduction control measures in the future

in lieu of current adopted measures.

Response: The EPA has approved

previously, or is approving together

with the attainment demonstrations, all

outstanding emission reduction

limitations relied on for attainment for

these three areas. Thus, none of the

three areas on which the EPA is

614 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

14 ‘‘Credit for the 15 Percent Rate-of-Progress

Plans for Reductions from the Architectural and

Industrial Maintenance (AIM) Coating Rules,’’

March 22, 1995, from John S. Seitz, Director, Office

of Air Quality Planning and Standards to Air

Division Directors, Regions I–X.

approving have commitments to adopt

emission reduction measures in the

future and all emission reductions rules

relied on for attainment have been fully

approved by the EPA.

G. Adequacy of Motor Vehicle

Emissions Budgets

Comment: We received a number of

comments about the process and

substance of EPA’s review of the

adequacy of motor vehicle emissions

budgets for transportation conformity

purposes. (Conservation Law

Foundation, Environmental Defense

Fund and Natural Resources Defense

Council, New York Department of

Transportation, New York State

Department of Environmental

Conservation, EarthJustice, Southern

Environmental Law Center)

Response: EPA’s adequacy process for

these SIPs has been completed, and we

have found the motor vehicle emissions

budgets in all of these SIPs to be

adequate. We have already responded to

any comments related to adequacy

when we issued our adequacy findings,

and therefore we are not listing the

individual comments or responding to

them here. Our findings of adequacy

and responses to comments can be

accessed at www.epa.gov/otaq/traq

(once there, click on the ‘‘conformity’’

button). At the web site, EPA regional

contacts are identified.

H. Motor Vehicle Emissions Inventory

Comment: Several commenters stated

that the motor vehicle emissions

inventory is not current, particularly

with respect to the fleet mix.

Commenters stated that the fleet mix

does not accurately reflect the growing

proportion of sport utility vehicles and

gasoline trucks, which pollute more

than conventional cars. Also, a

commenter stated that EPA and states

have not followed a consistent practice

in updating SIP modeling to account for

changes in vehicle fleets. For these

reasons, commenters recommend

disapproving the SIPs. (Environmental

Defense Fund and Natural Resources

Defense Council; EarthJustice; Southern

Environmental Law Center)

Response: All of the SIPs on which

we are taking final action are based on

the most recent vehicle registration data

available at the time the SIP was

prepared. The SIPs use the same vehicle

fleet characteristics that were used in

the most recent periodic inventory

update. The Metropolitan Washington,

DC Ozone Nonattainment Area SIP is

based on vehicle registration data from

1996, which is the most recent data

available at the time the SIP was

prepared and submitted. Clearly the

1999 data could not have been used in

motor vehicle emissions projections

prepared in the fall of 1998 as

documented in appendix D of the SIP.

EPA requires the most recent available

data to be used, but we do not require

it to be updated on a specific schedule.

Therefore, different SIPs base their fleet

mix on different years of data. Our

guidance does not suggest that SIPs

should be disapproved on this basis.

Further, EPA does not require states to

go back and reanalyze SIP submissions

if new data becomes available shortly

before EPA takes final action on the SIP.

Nevertheless, we do expect that

revisions to these SIPs that are

submitted using MOBILE6 (as required

in those cases where the SIP is relying

on emissions reductions from the Tier 2

standards) will use updated vehicle

registration data appropriate for use

with MOBILE6, whether it is updated

local data or the updated national

default data that will be part of

MOBILE6. EPA is requiring the

Metropolitan Washington, DC area

states to revise the attainment budgets

using MOBILE6.

I. VOC Emission Reductions

Comment: For States that need

additional VOC reductions, this

commenter recommends a process to

achieve these VOC emission reductions,

which involves the use of HFC–152a

(1,1 difluoroethane) as the blowing

agent in manufacturing of polystyrene

foam products such as food trays and

egg cartons. HFC–152a could be used

instead of hydrocarbons, a known

pollutant, as a blowing agent. Use of

HFC–152a, which is classified as VOC

exempt, would eliminate nationwide

the entire 25,000 tons/year of VOC

emissions from this industry.

Response: EPA has met with the

commenter and has discussed the

technology described by the company to

reduce VOC emissions from polystyrene

foam blowing through the use of HFC–

152a (1,1 difluoroethane), which is a

VOC exempt compound, as a blowing

agent. Since the HFC–152a is VOC

exempt, its use would give a VOC

reduction compared to the use of VOCs

such a pentane or butane as a blowing

agent. However, EPA has not studied

this technology exhaustively. It is each

State’s prerogative to specify which

measures it will adopt in order to

achieve the additional VOC reductions

it needs. In evaluating the use of HFC–

152a, States may want to consider

claims that products made with this

blowing agent are comparable in quality

to products made with other blowing

agents. Also the question of the over-all

long term environmental effect of

encouraging emissions of fluorine

compounds would be relevant to

consider. This is a technology which

States may want to consider, but

ultimately, the decision of whether to

require this particular technology to

achieve the necessary VOC emissions

reductions must be made by each

affected State. Finally, EPA notes that

under the significant new alternatives

policy (SNAP) program, created under

CAA § 612, EPA has identified

acceptable foam blowing agents many of

which are not VOCs (http://

www.epa.gov/ozone/title6/snap/).

J. Credit for Measures Not Fully

Implemented

Comment: States should not be given

credit for measures that are not fully

implemented. For example, the States

are being given full credit for Federal

coating, refinishing and consumer

product rules that have been delayed or

weakened.

Response: Architectural and

Industrial Maintenance (AIM) Coatings:

On March 22, 1995 EPA issued a

memorandum 14 that provided that

States could claim a 20% reduction in

VOC emissions from the AIM coatings

category in ROP and attainment plans

based on the anticipated promulgation

of a national AIM coatings rule. In

developing the attainment and ROP SIPs

for their nonattainment areas, States

relied on this memorandum to estimate

emission reductions from the

anticipated national AIM rule. EPA

promulgated the final AIM rule in

September 1998, codified at 40 CFR part

59 subpart D. In the preamble to EPA’s

final AIM coatings regulation, EPA

estimated that the regulation will result

in 20% reduction of nationwide VOC

emissions from AIM coatings categories

(63 FR 48855). The estimated VOC

reductions from the final AIM rule

resulted in the same level as those

estimated in the March 1995 EPA policy

memorandum. In accordance with

EPA’s final regulation, States have

assumed a 20% reduction from AIM

coatings source categories in their

attainment and ROP plans. AIM

coatings manufacturers were required to

be in compliance with the final

regulation within one year of

promulgation, except for certain

pesticide formulations which were

given an additional year to comply.

Thus all manufacturers were required to

comply, at the latest, by September

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 615

15 ‘‘Credit for the 15 Percent Rate-of-Progress

Plans for Reductions from the Architectural and

Industrial Maintenance (AIM) Coating Rule and the

Autobody Refinishing Rule,’’ November 27, 1994,

John S. Seitz, Director OAQPS, to Air Division

Directors, Regions I–X.

16 ‘‘Regulatory Schedule for Consumer and

Commercial Products under Section 183(e) of the

Clean Air Act,’’ June 22, 1995, John S. Seitz,

Director OAQPS, to Air Division Directors, Regions

I–X.

2000. Industry confirmed in comments

on the proposed AIM rule that 12

months between the issuance of the

final rule and the compliance deadline

would be sufficient to ‘‘use up existing

label stock’’ and ‘‘adjust inventories’’ to

conform to the rule. 63 FR 48848

(September 11, 1998). In addition, EPA

determined that, after the compliance

date, the volume of nonconforming

products would be very low (less than

one percent) and would be withdrawn

from retail shelves anyway. Therefore,

EPA believes that compliant coatings

were in use by the Fall of 1999 and that

it was appropriate for the States to take

credit for those reductions in their SIPs.

Autobody Refinish Coatings Rule:

Consistent with a November 27, 1994

EPA policy,15 many States have claimed

a 37% reduction from this source

category based on a proposed rule.

However, EPA’s final rule, ‘‘National

Volatile Organic Compound Emission

Standards for Automobile Refinish

Coatings,’’ published on September 11,

1998 (63 FR 48806), did not regulate

lacquer topcoats and will result in a

smaller emission reduction of around

33% overall nationwide. The 37%

emission reduction from EPA’s

proposed rule was an estimate of the

total nationwide emission reduction.

Since this number is an overall national

average, the actual reduction achieved

in any particular area could vary

depending on the level of control which

already existed in the area. For example,

in California the reduction from the

national rule is zero because California’s

rules are more stringent than the

national rule. In the proposed rule, the

estimated percentage reduction for areas

that were unregulated before the

national rule was about 40%. However

as a result of the lacquer topcoat

exemption added between proposal and

final rule, the reduction is now

estimated to be 36% for previously

unregulated areas. Both the District and

Virginia claimed 35.7% credit in their

attainment and ROP plans while

Maryland claimed 45%. EPA’s best

estimate of the reduction potential of

the final rule was spelled out in a

September 19, 1996 memorandum

entitled ‘‘Emissions Calculations for the

Automobile Refinish Coatings Final

Rule’’ from Mark Morris to Docket No.

A–95–18. The basis for approving

Maryland’s reductions is dealt with in a

response to a separate comment

Consumer Products Rule: Consistent

with a June 22, 1995 EPA guidance,16

States have claimed a 20% reduction

from this source category based on

EPA’s proposed rule. The final rule,

‘‘National Volatile Organic Compound

Emission Standards for Consumer

Products,’’ (63 FR 48819), published on

September 11, 1998, has resulted in a

20% reduction after the December 10,

1998 compliance date. In the consumer

products rule, EPA determined and the

consumer products industry concurred,

that a significant proportion of subject

products have been reformulated in

response to State regulations and in

anticipation of the final rule. 63 FR

48819. That is, industry reformulated

the products covered by the consumer

products rule in advance of the final

rule. Therefore, EPA believes that

complying products in accordance with

the rule were in use by the Fall of 1999

and that it was appropriate for the States

to take credit for those reductions in

their SIPs.

K. Enforcement of Control Programs

Comment: The attainment

demonstrations do not clearly set out

programs for enforcement of the various

control strategies relied on for emission

reduction credit.

Response: State enforcement program

elements are contained in SIP revisions

previously approved by EPA under

obligations for enforceable emission

limitations set out in section 110 of the

Clean Air Act. Once approved by the

EPA, there is no need for states to

readopt and resubmit their enforcement

programs with each and every SIP

revision generally required by other

sections of the Act.

L. Contingency Measures

Comment: The SIPs for the

Metropolitan Washington, D.C. ozone

nonattainment area do not provide

contingency measures to make up for

any emission reduction shortfall, either

in achievement of ROP milestones or for

failure to attain, as required by sections

172(c)(9) and 182(c)(9)of the Clean Air

Act. The lawn/garden control measure

that is included in the SIP for the

District of Columbia and indicated as

sufficient for a contingency measure is

not currently legally enforceable, is only

episodic in nature, and would not be

adopted until 18 months after notice of

a milestone failure.

Response: The EPA believes the

contingency measure requirements of

sections 172(c)(9) and 182(c)(9) are

independent requirements from the

attainment demonstration requirements

under sections 172(c)(1) and

182(c)(2)(A) and the rate-of-progress

(ROP) requirements under sections

172(c)(2) and 182(c)(2)(B). The

contingency measure requirements are

to address the event that an area fails to

meet a ROP milestone or fails to attain

the ozone NAAQS by the attainment

date established in the SIP. The

contingency measure requirements have

no bearing on whether a state has

submitted a SIP that projects attainment

of the ozone NAAQS or the required

ROP reductions toward attainment. The

attainment or ROP SIP provides a

demonstration that attainment or ROP

requirements ought to be fulfilled, but

the contingency measure SIP

requirements concern what is to happen

only if attainment or ROP is not actually

achieved. The EPA acknowledges that

contingency measures are an

independently required SIP revision,

but does not believe that submission of

contingency measures is necessary

before EPA may approve an attainment

or ROP SIP. Also see the discussion of

contingency measures in the extension

of the attainment date policy section.

The EPA has, however, examined the

ROP and attainment SIPs for the

Washington, D.C. nonattainment area.

The Post 1996 ROP and attainment

demonstration SIPs for the Washington,

D.C. area do not specify any specific

measures as contingency measures. The

EPA is approving the nonattainment

demonstration and ROP plans today.

(The plans pertain to the District and

portions of the Commonwealth of

Virginia and State of Maryland.)

Approval of the plans without

contingency measures is appropriate as

stated above. Furthermore, the EPA

notes that there are emission reductions

not relied on or credited in the ROP

plan accruing from the January 1, 2000,

implementation of phase 2 of the

reformulated gasoline program, NOX

reductions beyond RACT, and other onroad measures, such as NLEV, and a

variety of off-road national emissions

reduction programs. These measures

will continue to provide reductions after

1999. The additional NOX controls and

reformulated gasoline measures alone

are estimated to reduce emissions in the

area by 1.7 percent of the VOC base line

emissions and 10.5 percent of the NOX

base line emissions by May 2001. Thus,

the SIP contains approved measures

consistent with the contingency

requirement.

Additionally, the EPA notes that there

are emissions reductions not relied on

or credited in the attainment

616 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

17U.S. Environmental Protection Agency Office

of Air Quality Planning and Standards Emissions,

Monitoring, and Analysis Division Air Quality

Modeling Group Research Triangle Park, NC 27711.

November 1999. Available at http://www.epa.gov/

/tnn.scram/.

demonstration SIP accruing from the

EPA’s Tier II tailpipe standards and offroad national emission reduction

measures. These measures will continue

to provide reductions after November

2005, the attainment date that EPA is

approving for the area. The measures are

estimated to reduce emissions in the

area by 2.5 percent of the VOC base line

emissions and 1.7 percent of the NOX

base line emissions by May 2007 (the

year following the time by which EPA

must determine whether the area has

attained). More details on EPA’s

contingency measure analysis are

included in the docket for the

rulemaking action. While there is not an

approved SIP contingency measure that

would apply if the Washington, D.C.

area failed to attain, EPA believes that

existing federally enforceable measures

would provide the necessary

substantive relief.

The EPA agrees with the commenter

that the lawn/garden measure is

insufficient as a contingency measure.

However, the measure is not critical to

meeting the contingency obligation in

view of the reductions generated by the

other emission control measures noted

above.

M. Rate of Progress—NOX Substitution

Comment: We received comments

that assert the 9% demonstration

assumes that a 1% reduction in NOX

emissions is equivalent in ozone

reducing benefit to a 1% reduction in

VOC emissions. The commenters assert

that EPA’s NOX Substitution Guidance

(December 1993) is flawed under

section 182(c)(2)(C) of the Clean Air Act

because it allows NOX substitution

without a demonstration that such

substitution will in fact provide ozone

reductions at least equivalent to that

which would result from a 3% annual

cut in VOC emissions. The commenters

claim that such a demonstration

requires photochemical grid modeling

showing equivalency and that EPA’s

own guidance (Guidance on the Post1996 Rate-of-Progress Plan and

Attainment Demonstration (corrected

version as of 2/18/94)) requires such

modeling. The states cannot use a 1%

NOX for 1% VOC substitution without

proving that a 1% NOX cut will in fact

provide ozone reductions at least

equivalent to that resulting from a 1%

VOC cut.

The commenters further assert that

more recent EPA guidance dated

January 10, 2000 for NOX substitution in

out-year conformity budgets requires 1.6

tons in NOX reductions to offset 1 ton

of VOC reductions. The commenters do

not disavow their other comments that

the states must prove the validity of

their NOX substitution ratios as

discussed in the summary of their

comments in the preceding paragraph

but they claim the 9% demonstration

fail to use the ratio of 1.6 to 1 required

by the more recent EPA guidance.

Additionally, the commenters assert

that substitutions should not be allowed

because the plan does not demonstrate

timely attainment.

Response:

1. NOX Substitution in General

The EPA believes States have the

opportunity to substitute NOX

reductions for required VOC reductions

under certain circumstances. The

opportunity for NOX substitution

originates in section 182(c)(2)(C) of the

CAA which specifically allows NOX

emissions reductions to be substituted

for VOC reductions required under

section 182(c)(2)(B) for reasonable

further progress (RFP) also called rateof-progress (ROP).

EPA issued guidance to the States on

how to implement the NOX substitution

provisions for the post-1996 ROP plans

in 1993 (Memorandum of December 15,

1993, from John S. Seitz re: ‘‘Transmittal

of NOX Substitution Guidance’’). The

guidance allows States to substitute

NOX emission reductions for VOC

emission reductions if such substitution

is consistent with the modeled

attainment demonstration in the SIP.

The modeled attainment demonstration

in the SIP establishes the overall

reductions of VOC and/or NOX

reductions required for attainment in

the attainment year. The rate of progress

plan is basically a tool to phase in

emission reductions between the time

the plan is prepared and the attainment

date. To substitute NOX for VOC in post1996 ROP’s, care must be taken to not

substitute so much NOX such that the

attainment demonstration is no longer

valid. At the extreme case, in an area for

which the attainment demonstration

that relies totally on VOC emission

reductions, it would be inconsistent to

substitute NOX for VOC.

The NOX substitution guidance allows

substitution on a percentage basis (i.e.,

one percent of NOX emissions

reductions for one percent of VOC

emissions reductions) and does not

require additional analysis of whether

the ozone reduced from the NOX

emission reductions is equivalent to that

which would result from the foregone

VOC emission reductions.

It should be noted also that EPA’s

‘‘Guidance for Improving Weight of

Evidence Through Identification of

Additional Emission Reductions, Not

Modeled’’,17 references EPA’s NOX

substitution guidance for purposes of

substitution of NOX reduction for

additional VOC emission reductions

identified as needed for attainment.

2. Technical and Practical Reasons for

NOX Substitution Guidance

The modeling performed for

attainment demonstration basically

establishes the relationship between

emission reductions—either of VOC,

NOX, or both—and ozone reductions.

This relationship is established for the

attainment year. As noted above, the

modeled attainment demonstration

establishes the overall VOC and/or NOX

emission targets that are consistent with

attainment of the standard at the

attainment year. When EPA determines

that an attainment demonstration is

approvable, i.e., will likely demonstrate

attainment for the relevant areas, it is

making an implicit corollary conclusion

that the mix of VOC and/or NOX control

measures included in the area’s

attainment demonstration is adequate.

The ROP plan is then used to phase

in emission reductions between the time

of plan adoption and the attainment

date. EPA does not require modeling of

interim years for the purpose of trying

to update the NOX/VOC/ozone

relationship for a number of reasons,

including the following that are

provided in the 1993 NOX substitution

guidance:

a. The strong likelihood that optimum

‘‘exchange’’ rates vary from year to year

and across a geographic area as an area’s

emissions distribution and atmospheric

chemistry change over time;

b. Uncertainty in modeling analyses,

particularly when attempting to

ascertain responses from small

percentage perturbations in emissions;

and

c. Resource limitations associated

with modeling specific control measures

during interim years before attainment

dates.

The EPA believes these are adequate

reasons for maintaining this guidance

for purposes of NOX substitution under

the ROP plan requirements.

In addition, the ‘‘Major Modeling/Air

Quality Conclusions’’ from the Ozone

Transport and Assessment Group

(OTAG) effort, based on extensive

photochemical grid modeling of the

Eastern U.S. stated that regional NOX

reductions are effective in producing

ozone benefits, and that the more NOX

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 617

18This incidently is consistent with the intended

outcome of the NOX substitution guidance

document, which requires that substitution be done

on the basis of percentage—a 1 percent reduction

in NOX from the 1990 ROP baseline adjusted to

1999 of 667.3 tons/day (6.67 tons/day) will thus

likely produce a greater reduction in ozone than a

1 percent reduction in VOC from the 1990 ROP

baseline adjusted to 1999 of 435.7 tons a day (4.36

tons/day). [Baseline emissions taken from

memoranda of August 24, 2000, from Christopher

Cripps, re: ‘‘Technical Support Document for the

Approval of the Post-1996 Rate-of-Progress Plan for

the District of Columbia portion of the Metropolitan

Washington, DC Nonattainment Area (DC 035–

2015, DC 044–2015).’’ and of October 13, 2000, from

Janice Lewis, re: ‘‘Technical Support Document for

Approval and Promulgation of Air Quality

Implementation Plans; Maryland, and Virginia;

Post-1996 Rate-of-Progress Plan for the

Metropolitan Washington, DC Area (MD 058–3036

and VA 083–5038).’’]

reduced, the greater the benefit. [From:

‘‘Summary of Ozone Transport

Assessment Group Recommendations to

the U.S. Environmental Protection

Agency as of June 20, 1997.’’ Found at:

http://www.epa.gov/ttn/rto/otag/

finalrpt/.]

Recognizing that regional NOX

reductions are effective in producing

ozone benefits, EPA further encouraged

NOX reductions by allowing States to

credit certain regional NOX emission

reductions outside the nonattainment

area for purposes of the ROP plan. See

EPA’s Interim Implementation

Guidance. [Memorandum of December

29, 1997, from Richard D. Wilson re:

‘‘Guidance for Implementing the 1-Hour

Ozone and Pre-Existing PM10 NAAQS.’’]

3. Legal Rationale for EPA NOX

Substitution Guidance

In addition, EPA still stands behind

its legal rationale underlying the

interpretation of ‘‘equivalency’’ that

appears in the 1993 NOX substitution

guidance (see section 4 of that

guidance). In that guidance, the basis for

equivalency is the ability of a given

control strategy (i.e., any particular mix

of NOX and VOC emission reductions)

to effect attainment of the ozone

NAAQS by the designated attainment

year ( NOX substitution guidance at page

2).’’ Further, the NOX emission

reductions credited toward ROP may be

limited to the amount of NOX

reductions required in the attainment

demonstration; see the discussion and

example above on this matter.

In allowing a combination of NOX and

VOC controls or the substitution of NOX

emissions reductions for VOC emissions

reductions, Section 182(c)(2)(C) of the

statute states that the resulting

reductions ‘‘in ozone concentrations’’

must be ‘‘at least equivalent’’ to that

which would result from the 3% VOC

reductions required as a demonstration

of RFP under Section 182(c)(2)(B). The

second sentence of Section 182(c)(2)(C)

requires EPA to issue guidance

‘‘concerning the conditions under

which NOX control may be substituted

for [or combined with] VOC control.’’ In

particular, the Agency is authorized to

address in the guidance the appropriate

amounts of VOC control and NOX

control needed, in combination, ‘‘in

order to maximize the reduction in

ozone air pollution.’’ Further, the Act

explicitly provides that the guidance

may permit RFP demonstrations that

allow a lower percentage of VOC

emission reductions as long as

compensating NOX reductions are

achieved. In light of the entire set of

language and Congress’s evident intent

under this subsection to maximize the

opportunity for ozone reductions, EPA

believes that Section 182(c)(2)(C)

confers on the Agency the discretion to

select, for purposes of determining

equivalent reductions, a percentage of

NOX emission reductions that is

reasonably calculated to achieve both

the ozone reduction and attainment

progress goals intended by Congress.

As noted above, when EPA

determines that an attainment

demonstration is approvable, it is

making an implicit corollary conclusion

that the mix of VOC and/or NOX control

measures included in the area’s

attainment demonstration is adequate.

EPA disagrees with the comments that

EPA’s Guidance on the Post-1996 Rateof-Progress Plan and Attainment

Demonstration (corrected version as of

2/18/94) requires a different test than

EPA’s December 15, 1993 NOX

Substitution Guidance. In section 4.1 of

the Guidance on the Post-1996 Rate-ofProgress Plan and Attainment

Demonstration, EPA restated the

equivalency test set forth in sections 2

and 3 of our December 1993 NOX

Substitution Guidance. With regard to

the photochemical grid modeling.

section 4.1 of the Guidance on the Post1996 Rate-of-Progress Plan and

Attainment Demonstration reads:

Section 182(c)(2)(C) states that actual

NOX emission reductions which occur

after 1990 can be used to meet post-1996

emission reduction requirements,

provided that such reductions meet the

criteria outlined in EPA’s December 15,

1993 NOX Substitution Guidance. The

condition for meeting the rate-ofprogress requirement is that the sum of

all creditable VOC and NOX emission

reductions must equal 3 percent per

year averaged over each applicable

milestone period. The percent VOC

reduction is determined from the VOC

rate-of-progress inventory and the

percent NOX reduction is determined

from the NOX rate-of-progress inventory.

In addition, the overall VOC and NOX

reductions must be consistent with the

area’s modeled attainment

demonstration. In other words, the NOX

emission reductions creditable toward

the rate-of-progress plan cannot be

greater than the cumulative reductions

dictated by the modeled attainment

demonstration.

This portion of the 1994 guidance

merely summarizes the guidance

provided in our December 1993 NOX

Substitution Guidance. With regard to

the photochemical grid modeling.

section 2 of our December 1993 NOX

Substitution Guidance reads:

The provision for NOX substitution

recognizes that a VOC-only control pathway

may not be the most effective approach for

effecting attainment in all areas.

Consequently, NOX reductions are placed on

a near equal footing with VOC through

substitution. This document establishes two

conditions pursuant to both the substitution

and RFP provisions in the Act. The first

condition requires that control strategies

incorporating NOX emission reduction

measures must demonstrate that the ozone

NAAQS will be attained within time periods

mandated by the Act. This condition reflects

the Title I provision for gridded

photochemical model demonstrations

(Section 182(c)).

The second condition, addressed below in

Section 3, maintains the requirement for

periodic emission reductions in order to

realize progress toward attainment.

Flexibility is introduced by allowing VOC

and NOX reductions rather than VOC

reductions alone. A third condition exists in

which the periodic emission reductions must

be consistent with the model attainment

demonstration.

In both cases, the guidance refers to

the photochemical grid modeling that is

necessary for the modeled attainment

demonstration and that establishes the

NOX/VOC/ozone relationship at the

attainment date. The NOX substitution

guidance does not require a modeled

demonstration of equivalence for

interim period for the reasons discussed

above.

4. January 10, 2000, Guidance on

Conformity Budgets in Out-Years

The January 10, 2000 guidance

(Memorandum from G.T. Helms to

Marcia Spink re: ‘‘Substitution of

Nitrogen Oxide ( NOX) Emission

Reduction in Out-Year Conformity

Budgets’’) was developed to address a

question related to development of an

emissions budget for conformity

purposes well beyond the attainment

date of an area. Transportation planning

cycles generally run beyond the

attainment year, and a State may

establish a budget for conformity

618 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

18This incidently is consistent with the intended

outcome of the NOX substitution guidance

document, which requires that substitution be done

on the basis of percentage—a 1 percent reduction

in NOX from the 1990 ROP baseline adjusted to

1999 of 667.3 tons/day (6.67 tons/day) will thus

likely produce a greater reduction in ozone than a

1 percent reduction in VOC from the 1990 ROP

baseline adjusted to 1999 of 435.7 tons a day (4.36

tons/day). [Baseline emissions taken from

memoranda of August 24, 2000, from Christopher

Cripps, re: ‘‘Technical Support Document for the

Approval of the Post-1996 Rate-of-Progress Plan for

the District of Columbia portion of the Metropolitan

Washington, DC Nonattainment Area (DC 035–

2015, DC 044–2015).’’ and of October 13, 2000, from

Janice Lewis, re: ‘‘Technical Support Document for

Approval and Promulgation of Air Quality

Implementation Plans; Maryland, and Virginia;

Post-1996 Rate-of-Progress Plan for the

Metropolitan Washington, DC Area (MD 058–3036

and VA 083–5038).’’]

purposes in those out years beyond the

attainment year if it desires and may

substitute NOX for VOC reductions in

that out-year budget. The January 10,

2000 guidance refers to the methodology

contained in ‘‘Guidance for Improving

Weight of Evidence Through

Identification of Additional Emissions

Reductions, Not Modeled’’ (EPA,

November 1999) and was not intended

for use in ROP demonstrations; the

methodology was developed for use in

strengthening weight of evidence

arguments for attainment

demonstrations. The January 10, 2000

guidance contemplates use of this

methodology for establishing conformity

budgets for the out-years of an

attainment demonstration, i.e., the years

after the attainment date for which there

are no ROP requirements unless the area

fails to attain as determined by the

relevant air quality monitoring data. The

guidance may result in NOX substitution

ratios of other than one-to-one, since it

is based on the results of the modeled

attainment demonstration. EPA’s

methodology for use in strengthening

weight of evidence arguments for

attainment demonstrations was

intended to be used for calculating

small amounts of emission reductions

such that the overall NOX/VOC/ozone

relationship of the modeling used in the

attainment demonstration would not be

significantly altered. Likewise, the

substitution of NOX for VOC reductions

for purposes of setting an emissions

budget for conformity in the out-years

beyond the attainment date would likely

involve relatively small tons/day shifts

in the ratio of NOX to VOC. Thus EPA’s

methodology would be appropriate to

use for this purpose. It should be noted

that this methodology provides most

reliable results when used with the best

and most recent data.

Of course, any future emissions

budget for a period years after the

projected attainment year has

uncertainty. If EPA subsequently finds

that an area is not making sufficient

progress toward attainment and its SIP

is inadequate, or if ultimately the area

does not attain the standard by its

attainment date, the area will be

required to revise its SIP. At that time,

a new modeled attainment

demonstration would be required,

together with updated modeling that

would re-establish a new NOX/VOC/

ozone relationship.

Furthermore, once an area attains the

standard, the State may request

redesignation to attainment. To obtain

that redesignation, one requirement is

that the State must submit an

approvable air quality maintenance plan

to ensure that the standard will be

maintained for at least a 10-year period.

The maintenance plan will establish an

out-year emission budget for conformity

based on conditions at the time of

attainment.

5. NOX Substitution in Metropolitan

Washington

Based on our review of all the

information submitted in the attainment

demonstration, it is the Agency’s belief

that the ozone reduction benefits

achieved by application of NOX controls

is at least equivalent as that achieved by

application of VOC controls.

The modeled attainment

demonstration for the Metropolitan

Washington, D.C. area calls for more

NOX and VOC emissions control than

the 9 percent post-1996 ROP plan. The

ROP plan relies on NOX substitution,

but the substitution rate is consistent

with the attainment demonstration in

that it does not provide any more NOX

reductions than called for in the

attainment demonstration. The state’s

attainment demonstration is based upon

local-scale photochemical grid modeling

performed on the Baltimore-Washington

Urban Airshed Modeling (UAM) domain

and upon EPA’s Regional Oxidant

Modeling (ROM) results. Both EPA’s

ROM results and the photochemical grid

modeling submitted with the attainment

plan show that significant NOX

reductions will contribute to attainment

in the area. The local UAM modeling

also shows that NOX reductions beyond

those contained in the Post-1996 plan

continue to provide reductions in ozone

concentrations. The local

photochemical grid modeling submitted

with the attainment demonstration

contains modeling results that further

support the conclusion that on a ton for

ton basis, NOX reductions achieve at

least equivalent changes in ozone

concentrations as an equivalent

reduction in VOC emissions.18

Also, model sensitivity analysis

demonstrates that the Metropolitan

Washington portion of the BaltimoreWashington modeling domain benefits

more from NOX reductions than VOC

reductions. See Attachment 4 (‘‘Model

Sensitivity Study for Metropolitan

Washington Area’’) of the EPA

document, ‘‘RACM Analysis for Four

Serious Areas Designated

Nonattainment for 1-hr Ozone NAAQS.’’

U.S. Environmental Protection Agency;

Office of Air Quality Planning and

Standards, Research Triangle Park, NC

27711; and Office of Transportation and

Air Quality, Ann Arbor, MI 48105.

October 12, 2000. An electronic version

of EPA’s RACM analysis cited above can

be downloaded at www.epa.gov/ttn/rto

under ‘‘What’s New.’’ This analysis does

not contradict EPA’s determination that

a one percentage reduction of NOX

emissions will likely produce a greater

reduction of ozone than a one percent

reduction of VOC emissions.

EPA is determining that the

attainment demonstration is approvable,

i.e., will likely demonstrate attainment

for the Metropolitan Washington, D.C.

area. Implicit in making this

determination, is a corollary conclusion

that the mix of VOC and/or NOX control

measures included in the area’s

attainment demonstrations is adequate.

Based on review of all the information

submitted in support of the attainment

demonstration, it is the Agency’s belief

that the percentage of ozone reduction

benefits achieved by application of NOX

controls, for both ozone reduction and

attainment progress goals, is ‘‘at least

equivalent’’ as that achieved by

application of VOC controls. Both the

NOX and VOC controls are necessary if

the area is to realize ozone reduction

benefits and attain the NAAQS.

The commenter submitted a

memorandum, dated January 13, 2000,

from Joan Rohlfs, Chief Air Quality

Planning, Metropolitan Washington

Council of Governments, to the

Technical Advisory Committee,

Metropolitan Washington Air Quality

Committee, entitled ‘‘Calculating the

NOX Substitution Ratio for Out-Year

Conformity Budget in the Washington

Nonattainment Area’’, in which a 1.64

to 1 ratio was calculated for the

Washington, D.C. area based upon the

January 10, 2000 guidance. On March

22, 31, and 31, 2000, respectively, the

District, Maryland and Virginia

submitted a SIP revision with budgets

for years after 2005 that used

substitution at the 1.64:1 ratio. EPA has

not yet taken rulemaking action on the

portion of that submittal that deals with

the out-year budgets. As noted above,

the use of this 1.64:1 ratio, calculated

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 619

from the January 2000 guidance, is not

applicable for purposes of the ROP plan.

6. Assertion of Metropolitan

Washington Plan Fails To Demonstrate

Attainment

EPA disagrees with the assertion that

the attainment plan does not

demonstrate attainment. The TSD and

other documents in the docket support

the conclusion that the area will attain.

Further reasoning is also set forth in

responses to other comments elsewhere

in this notice.

N. NOX Reduction Credits

Comment: We received comments

that both the attainment and rate-ofprogress (ROP) demonstrations are

further flawed because they rely on

emission reductions from control

measures that have not been fully

approved by EPA as part of the SIP.

These measures include NOX RACT

rules for all three Metropolitan

Washington, DC area states. The EPA

cannot credit the SIP with NOX

reductions until the state adopts source

specific RACT limits.

Response: The EPA recently signed a

final action approving Maryland’s,

Virginia’s and the District’s RACT

regulations all sources subject to RACT

in the Metropolitan Washington, DC

area. The action has been or will be

published shortly in the Federal

Register.

O. Attainment Demonstration and Rate

of Progress

Comment 1: We received comments

that assert that both the attainment

demonstration and rate of progress plan

for the Washington DC nonattainment

area rely on emission reductions from

control measures that have not been

fully approved by EPA as part of the

SIP.

Response 1: The EPA recently signed

a final action fully approving the

District’s, Maryland’s and Virginia’s

post-1996 ROP plan. These plans were

credited with reductions from only

those measures that have been fully

approved into the SIP.

The EPA recently approved the

District’s, Maryland’s and Virginia’s

NOX RACT rules. Maryland’s NOX

RACT rule has been amended since

1999. The District’s final rule was

amended since 1999. The EPA recently

approved source specific emission

limits for the major sources of NOX in

the Virginia portion of the Metropolitan

Washington, DC area. The EPA recently

signed a final action approving these

rules. The action has been or will be

published shortly in the Federal

Register.

The EPA recently approved the

District’s and Maryland’s NOX reduction

measures that require NOX reductions

from stationary sources beyond those

required under RACT. The EPA recently

signed a final action approving these

rules. The action has been or will be

published shortly in the Federal

Register.

For purposes of the Metropolitan

Washington, DC attainment

demonstration, the EPA has not granted

any reduction credits from Virginia’s

non-CTG VOC RACT rule except to the

extent source-specific RACT limits or in

the case of lithographic printing

operations a category-specific RACT

limits have been approved by EPA. [See

40 CFR 52.2520 (c)(128), and (c)(113)].

In addition, EPA recently approved a

source specific RACT determination for

another source subject to the 50 TPY

non-CTG RACT for which Virginia takes

no credit.

Comment 2: We received comments

that state there are significant disparities

between the projections of 1999 regional

emissions found in the most recent 9%

ROP plan for the Metropolitan DC area

and the EPA’s Technical Support

Document for the attainment

demonstrations. The commenter claims

that lower emissions in the TSD for the

December 16, 1999 NPR, should not be

used unless EPA provides an adequate

technical basis.

Response 2: A large part of the

disparity is that the ROP plan does not

take credit for all the measures

implemented by 1999. However, those

measures can be credited for attainment.

Specifically, the ROP demonstration

only requires the area to achieve a NOX

emissions level of 614.7 tons per day

whereas attainment requires an

emissions level of 538 tons per day. The

States and the District have specifically

identified beyond the RACT reductions

at large point sources of NOX that have

not been counted towards the ROP

demonstration. These reductions are

quantified at 93 tons per day. Other

control programs such as the surface

cleaning and degreasing rules in

Virginia and the Stage I reductions in

Loudoun County, Virginia, resulted in

emission reductions by 1999. However,

Virginia elected not to claim credit for

the surface cleaning rule in the final

version of the Post-1996 plan (which

EPA is approving), and the Stage I

reductions are not creditable towards

the 9% reduction requirement (because

it is a RACT correction subject to the

restrictions of section 182(b)(1)(D)).

However, these measures are creditable

for purposes of the attainment

demonstration. EPA’s approval of the

attainment demonstration is based upon

the February 2000 amendments to the

SIP. The SIP amendments show that in

2005, the area can achieve the emission

levels less than the levels in the

modeled demonstration of attainment.

The SIP amendments account for

growth in emissions from 1990 through

2005, as well as more recent planning

assumptions and modeling assumptions

used in the development of the mobile

source emissions budgets. They also

provide a reevaluation of the control

measures.

P. Modeling Assumptions

Comment 1: We received comments

saying that the (Transportation) model

does not incorporate adequate

assumptions about the effects of land

development and new road projections

on the growth of vehicle travel and

citing to an EPA letter from Judith Katz,

Director, Air Protection Division, EPA

Region III to James Cheatham,

Divisional Administrator, Federal

Highway Administration dated August

27, 1998, in which the commenters

assert that EPA stated that the plans did

not include any information on the rate

of land development in the Washington

Region and the effect this development

will have on the transportation system.

The comments discuss the

transportation model’s land use

assumptions, and imply that the

Metropolitan Planning Organization (the

Metropolitan Washington Council of

Governments, MWCOG) (hereafter, ‘‘the

MPO’’) has not included the effects of

land use in the model and that EPA has

known about this issue since 1998.

Response 1: This August 27, 1998,

EPA letter to the MPO concerned EPA’s

review of the conformity determination

on the FY99–04 Transportation

Improvement program (TIP) as well as

the Long Range Transportation Plan.

Planning assumptions in a TIP must be

derived from the estimates of current

and future population, employment,

travel, and congestion most recently

developed by the MPO or other agency

authorized to make such estimates and

approved by the MPO. Likewise, the

conformity rule, 40 CFR 93.118(e)(4)(ii),

requires SIP motor vehicle emissions

budgets to be developed in consultation

with federal, state and local agencies

such as the MPO in order to be adequate

and approvable. Based on EPA reviews

of the most recently approved

Transportation Improvement programs

(TIPs) as well as the Long Range

Transportation Plans in the Washington,

DC area, EPA is satisfied that the MPO

through its land activity forecasts,

provides timely information on growth

and land use, through consultation with

all of its regional county planners.

620 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

These same forecasts are used for both

the development of SIP motor vehicle

emissions budget as well as the

determination that a TIP conforms.

Therefore, while the estimates of land

use activity are not done by modeling,

their process of estimating land use

activity does not violate the

requirements of the conformity rule

which was the context in which this

August 27, 1998 letter was sent, and

therefore EPA can find no reason to

agree with any assertion or implication

that the transportation model, used by

the MPO to develop any SIP budgets in

1999 or 2005, is deficient. Furthermore,

this August 27, 1998, EPA letter to the

MPO does not have any relevance in

this instance because the letter targets

the lack of any clear graphic display of

information in the transportation plans

rather than the absence of information

for the transportation model to use.

Comment 2: We have received

comments saying that the temperature

assumed in the mobile source modeling

inputs was 93 degrees (Fahrenheit), yet

the maximum recorded temperatures for

those days during which peak ozone

values in the 1999 ozone season were

recorded were higher (96 to 98 degrees).

Response 2: EPA disagrees with the

comment that this is a reason to

determine that the budgets are not

approvable. EPA guidance on projecting

all future mobile source emissions

inventories requires the States to use the

temperatures representative of a

‘‘typical ozone season day’’. See section

3.3.5.2 of Procedures for Emission

Inventory Preparation Volume IV:

Mobile Sources, EPA–450/4–81–026d

(Revised), 1992 which also sets the

procedure for determining the

temperature for the 1990 base year and

all subsequent projection inventories.

The typical ozone season day conditions

are those used when determining the

typical daily emissions for the 1990 base

year emissions inventory. For 1990

inventories, the period to be used for

temperature determination was 1988–

1990. The same typical season day is

also used when setting target levels of

emissions in ROP plans and all future

year projection inventories in ROP plans

and attainment demonstrations. EPA

believes it is reasonable to use these

typical ozone season day temperatures

rather than actual future year

temperatures in projecting future

emissions since these projections are

made in advance when actual

temperatures cannot be known.

Q. NOX RACT Size Cutoff

Comment: All of the States should

extend NOX RACT to 25 ton per year

sources. In addition, the SIP must

require Virginia to extend VOC RACT to

25 ton per year sources, like Maryland.

Response: The Clean Air Act does not

require that serious areas extend NOX or

VOC RACT to 25 tons per year sources

within serious classifications. Virginia’s

approved SIP has extended VOC RACT

to 25 ton per year sources in the

Washington, DC area. In addition, in

section II. E. discussing RACM, EPA has

determined that Maryland, Virginia and

the District have met the RACM

requirements.

R. NOX Reduction Credits

Comment: We received comments

that both the attainment and rate-ofprogress (ROP) demonstrations are

further flawed because they rely on

emission reductions from control

measures that have not been fully

approved by EPA as part of the SIP.

These measures include NOX RACT

rules for all three Metropolitan

Washington, DC area states. EPA cannot

credit the SIP with NOX reductions until

the state adopts source specific RACT

limits.

Response: EPA has approved SIP

revisions for all sources subject to RACT

in the Metropolitan Washington, DC

area subject to Maryland’s, Virginia’s

and the District’s RACT regulations. On

December 14, 2000, the Regional

Administrator signed a final action

approving the District’s NOX RACT rule.

That action has been or will be

published shortly in the Federal

Register. On December 15, 2000, the

Regional Administrator signed final

actions approving Maryland’s and

Virginia’s NOX RACT rules. The

Virginia final approval also included

RACT determinations for Non-CTG

major VOC sources. These actions have

been or will be published shortly in the

Federal Register.

S. Control Measures

Comment 1: We received comments

claiming that the states have failed to

submit lists of potential control

measures by December 31, 1999 as

required by EPA’s condition. The

comments state that the states submitted

commitments to adopt additional

control measures if needed, but did not

provide lists from which those measures

would be chosen and further state that

because the states have failed to meet a

condition that EPA itself set as a

prerequisite for plan approval, EPA

must disapprove the Washington area

SIP.

Response 1: The list of control

measures is related only to the adequacy

determination of the attainment year

budgets. The States have now adopted

all regulations on which they rely for

attainment. In section I.C.5 of the

proposed rulemaking we stated:

‘‘For purposes of conformity, if the states

submitted a commitment, which has been

subject to public hearing, to adopt the control

measures necessary for attainment and ROP

through the area’s attainment date in

conformance with the December 1997 Wilson

policy, the State will not need an additional

commitment at this time. However, the states

will need to amend its commitment by letter

to provide two things concerning the

additional measures.

First, the State will need to identify a list

of potential control measures (from which a

set of measures could be selected) that when

implemented, would be expected to provide

sufficient additional emission reductions to

meet the level of reductions that EPA has

identified as necessary for attainment. States

need not commit to adopt any specific

measures on their list at this time, but if they

do not do so, they must identify sufficient

additional emission reductions to attain the

standard with the submitted motor vehicle

emissions budget. These measures may not

involve additional limits on highway

construction beyond those that could be

imposed under the submitted motor vehicle

emissions budget.’’ (64 FR at 70467,

December 16, 1999).

Likewise in Table 2 of section I.D. the

list of measures was tied to the making

of a finding of adequacy that the motor

vehicle emissions budgets are consistent

with attainment.

Elsewhere, in section I.C.3 the

December 16, 1999 NPR we spelled out

the importance of making an adequacy

finding by May 31, 2000:

Therefore, EPA is proposing, in the

alternative, to disapprove the attainment

demonstration SIPs for those nine areas if the

States do not submit motor vehicle emissions

budgets that EPA can find adequate by May

31, 2000.11 In order for EPA to complete the

adequacy process by the end of May, States

should submit a budget no later than

December 31, 1999.12 If an area does not have

a motor vehicle emissions budget that EPA

can determine adequate for conformity

purposes by May 31, 2000, EPA plans to take

final action at that time disapproving in full

or in part the area’s attainment

demonstration. (64 FR at 70465, December

16, 1999.) (Footnote 11 read as follows: For

severe areas, EPA will determine the

adequacy of the emissions budgets associated

with the post-1999 ROP plans once the States

submit the target calculations, which are due

no later than December 2000. Footnote 12

read as follows: A final budget is preferred;

but, if the State public hearing process is not

yet complete, then the draft budget for public

hearing may be submitted. The adequacy

process generally takes at least 90 days.

Therefore, in order for EPA to complete the

adequacy process no later than the end of

May, EPA must have by February 15, 2000,

the final budget or a draft that is substantially

similar to what the final budget will be. The

State must submit the final budget by April

15, 2000.)

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 621

Through the adequacy process the

public had an opportunity to comment

on the lists of potential control

measures. The states identified all the

potential control measures in Tables A,

6–1 and 6–2 of the SIP revision

submittals of the plan document

entitled ‘‘State Implementation Plan

(SIP) Revision, Phase II Attainment Plan

for the Washington DC–MD–VA

Nonattainment Area’’—-dated February

3, 2000, by which the budgets were

submitted by the District, Maryland and

Virginia on February 16, 2000, February

14, 2000, and February 9, 2000,

respectively. These tables identified a

number of control measures most of

which had been either promulgated by

EPA, or adopted and submitted by the

states as SIP revisions on February 3,

2000. Not all of the remaining measures

are necessary to make the motor vehicle

emissions budgets consistent with

attainment. EPA made the requisite

findings of adequacy (65 FR 36439, June

8, 2000).

Disapproving the SIP for the sole

reason that the lists were not submitted

by December 31, 1999, would place the

states in a situation where the states

would have no ability to remedy the

disapproval because the States have

adopted and EPA has approved all

measures needed to make the motor

vehicle emissions budgets approvable.

EPA disagrees that the attainment

demonstration SIPs should be

disapproved because the states have

failed to submit lists of potential control

measures by December 31, 1999.

Comment 2: We received Comments

that assert that both the attainment

demonstration and rate of progress plan

for the Washington D.C. nonattainment

area rely on emission reductions from

control measures that have not been

fully approved by EPA as part of the

SIP.

Response 2: Today, EPA is fully

approving the District’s, Maryland’s and

Virginia’s post-1996 ROP plan. These

plans were credited with reductions

from only those measures that have

been fully approved into the SIP.

In recent Federal Register notices,

EPA has fully approved the District’s,

Maryland’s and Virginia’s NOX RACT

rules. Maryland’s NOX RACT rule has

been amended since 1999. The District’s

final rule was amended since 1999. The

EPA has approved source specific

emission limits for the major sources of

NOX in the Virginia portion of the

Metropolitan Washington, DC area.

In recent Federal Register notices,

EPA has approved the District’s and

Maryland’s NOX reduction measures

that require NOX reductions from

stationary sources beyond those

required under RACT.

For purposes of the Washington, DC

attainment demonstration, the EPA has

not granted any reduction credits from

Virginia’s non-CTG VOC RACT rule

except to the extent source-specific

RACT limits or in the case of

lithographic printing operations a

category-specific RACT limits have been

approved by EPA. [See 40 CFR

52.2520(c)(128), and (c)(113)]. In

addition, in a recent Federal Register

notice, EPA has approved a source

specific RACT determination for

another source subject to the 50 TPY

non-CTG RACT for which Virginia takes

no credit. On December 15, 2000, the

Regional Administrator signed final

actions approving RACT for this source

along with Virginia’s NOX RACT rules.

This action has been or will be

published shortly in the Federal

Register. (The Virginia attainment plan

also includes credits from a source that

would have been subject to the 50 TPY

non-CTG VOC RACT requirement but

that shut-down in 1991.)

T. MOBILE6 and the Motor Vehicle

Emissions Budgets (MVEBs)

Comment 1: One Commenter

generally supports a policy of requiring

motor vehicle emissions budgets to be

recalculated when revised MOBILE

models are released.

Response 2: The Phase II attainment

demonstrations that rely on Tier 2

emission reduction credit contain

commitments to revise the motor

vehicle emissions budgets after

MOBILE6 is released.

Comment 3: The revised budgets

calculated using MOBILE6 will likely be

submitted after the MOBILE5 budgets

have already been approved. EPA’s

policy is that submitted SIPs may not

replace approved SIPs.

Response 3: This is the reason that

EPA proposed in the SNPR (65 FR

46383) that the approval of the

MOBILE5 budgets for conformity

purposes would last only until

MOBILE6 budgets had been submitted

and found adequate. In this way, the

MOBILE6 budgets can apply for

conformity purposes as soon as they are

found adequate.

Comment 4: If a State submits

additional control measures that affect

the motor vehicle emissions budget but

does not submit a revised motor vehicle

emissions budget, EPA should not

approve the attainment demonstration.

Response 4: EPA agrees. The motor

vehicle emissions budgets in the

Metropolitan Washington, DC area

attainment demonstration reflect the

motor vehicle control measures in the

attainment demonstration.

Comment 5: EPA should make it clear

that the motor vehicle emissions

budgets to be used for conformity

purposes will be determined from the

total motor vehicle emissions reductions

required in the SIP, even if the SIP does

not explicitly quantify a revised motor

vehicle emissions budget.

Response 5: EPA will not approve

SIPs without motor vehicle emissions

budgets that are explicitly quantified for

conformity purposes. The Metropolitan

Washington, DC area attainment

demonstration contains explicitly

quantified motor vehicle emissions

budgets which EPA has found adequate

(64 FR 62196).

Comment 6: If a state fails to follow

through on its commitment to submit

the revised motor vehicle emissions

budgets using MOBILE6, EPA could

make a finding of failure to submit a

portion of a SIP, which would trigger a

sanctions clock under section 179.

Response 6: If a state fails to meet its

commitment, EPA could make a finding

of failure to implement the SIP, which

would start a sanctions clock under

section 179 of the Clean Air Act.

Comment 7: If the budgets

recalculated using MOBILE6 are larger

than the MOBILE5 budgets, then

attainment should be demonstrated

again.

Response 7: As EPA proposed in its

December 16, 1999 notices, we will

work with States on a case-by-case basis

if the new emissions estimates raise

issues about the sufficiency of the

attainment demonstration.

Comment 8: If the MOBILE6 budgets

are smaller than the MOBILE5 budgets,

the difference between the budgets

should not be available for reallocation

to other sources unless air quality data

show that the area is attaining, and a

revised attainment demonstration is

submitted that demonstrates that the

increased emissions are consistent with

attainment and maintenance. Similarly,

the MOBILE5 budgets should not be

retained (while MOBILE6 is being used

for conformity demonstrations) unless

the above conditions are met.

Response 8: EPA agrees that if

recalculation using MOBILE6 shows

lower motor vehicle emissions than

MOBILE5, then these motor vehicle

emission reductions cannot be

reallocated to other sources or assigned

to the motor vehicle emissions budget as

a safety margin unless the area

reassesses the analysis in its attainment

demonstration and shows that it will

still attain. In other words, the area must

assess how its original attainment

demonstration is impacted by using

622 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

MOBILE6 vs. MOBILE5 before it

reallocates any apparent motor vehicle

emission reductions resulting from the

use of MOBILE6. However, if the state

is not required to remodel with

MOBILE6 because the attainment

demonstration does not rely on Tier II

reductions, the conformity rules do

require the use of MOBILE6 for

conformity after any established grace

period even if the SIP is based on

MOBILE5. The state is not required to

revise the SIP merely because a new

mobile model becomes available.

U. MOBILE6 Grace Period

Comment 1: We received a Comment

on whether the grace period before

MOBILE6 is required in conformity

determinations will be consistent with

the schedules for revising SIP motor

vehicle emissions budgets (‘‘budgets’’)

within 1 or 2 years of MOBILE6’s

release. This Commenter was concerned

that MOBILE6 could be required for

conformity before new budgets were

submitted based on MOBILE6.

Response 1: The MOBILE6 grace

period for conformity determinations is

a separate requirement that is not

explicitly tied to EPA’s SIP policy and

approvals. However, it is important to

note that the transportation conformity

rule requires EPA to consider many

factors in establishing the length of the

grace period before MOBILE6 is

required in conformity, including the

degree of change in emissions models

and scope of re-planning likely to be

necessary by transportation agencies (40

CFR 93.111). The grace period must be

between 3–24 months, and EPA

understands that a longer grace period

would allow some areas to better

transition to new MOBILE6 budgets.

EPA will be taking the 1–2 year period

provided for in the SIP approvals into

account in establishing an appropriate

grace period for conformity.

Comment 2: One Commenter asked

EPA to clarify in the final rule whether

MOBILE6 will be required for

conformity determinations once new

MOBILE6 budgets are submitted and

found adequate. The Commenter

wanted clarification on the case where

the MOBILE6 conformity grace period

ends before new budgets are submitted

based on MOBILE6. The Commenter

thought that this situation could

necessitate the use of the emission

reduction tests (e.g., build/no-build test)

for conformity analyses, instead of using

the budgets based on MOBILE5b. The

Commenter stated that using the build/

no-build test instead of existing budgets

that are based on MOBILE5b is less

appropriate for air quality planning

purposes.

Response 2: The transportation

conformity rule requires adequate

budgets to be used in regional emissions

analysis, when they exist, regardless of

what emissions model was used to

establish the budgets. In the example

highlighted by the Commenter, the

MOBILE5b budgets would be required

for conformity purposes if they were the

only applicable budgets at the end of the

MOBILE6 grace period. Thus, the

conformity analysis would compare

future reductions under a proposed

transportation plan or TIP calculated

with MOBILE6 against the SIP budgets

developed with MOBILE5. This has

always been required by the conformity

rule once the grace period for a new

model has passed. Once budgets have

been established, the build/no-build test

is no longer applicable. See 40 CFR

93.111 of the transportation conformity

rule. During the grace period, areas

should use the consultation process to

address any future conformity impacts

of using the new emissions model.

V. Two-Year Option To Revise the

MVEBs

Comment: One Commenter did not

prefer the additional option for a second

year before the state has to revise the

conformity budgets with MOBILE6, due

to several concerns. The Commenter

cited that the air agency did not select

this option and had already submitted a

commitment to revise the conformity

budgets with MOBILE6.

Response: EPA proposed the

additional option to provide further

flexibility in managing MOBILE6 budget

revisions. The supplemental proposal

did not change the original option to

revise budgets within one year of

MOBILE6’s release. State and local

governments can continue to use the 1-

year option, if desired, or submit a new

commitment consistent with the

alternative 2-year option.

W. RACM

Comment: The Phase II NOX limits

agreed to by OTC are also clearly

RACM.

Response: With respect to the OTC

MOU Phase II NOX limits in the

Metropolitan Washington, DC

nonattainment area, Maryland and the

District have adopted programs to

implement the Phase II NOX reduction

in the OTC memorandum of

understanding. EPA has approved these

programs into Maryland’s and the

District’s SIPs. Virginia was not a party

to the OTC MOU. However, in permits

approved into the Virginia SIP, Virginia

has imposed beyond RACT

requirements on two large point sources

of NOX in the Virginia portion of the

Metropolitan Washington

nonattainment area. These permits

impose limits of 0.15 pounds of NOX

per million BTU heat input on these two

sources. Such limits go beyond the OTC

Phase II limits. An analysis of whether

these SIP approved measures is RACM

for the area is moot, since the States and

the District have adopted the Phase II

NOX limits (in the case of Maryland and

the District of Columbia) or measures

consistent with these limits (in the case

of Virginia). There is additional

discussion elsewhere of the RACM

requirement in relationship to electric

generating units.

X. Additional Comments on the Rate of

Progress Plan

Comment 1: We received Comments

that asserted EPA cannot act on the

District’s, Maryland’s and Virginia’s

Post-1996 ROP plan in isolation because

the Post-1996 ROP plan for the

Washington area was developed using a

regional approach. EPA cannot know

whether these requirements are met

unless it acts on all three plans

simultaneously.

Response 1: The Comment is moot

because EPA is concurrently approving

the District’s, Maryland’s and Virginia’s

submittals the Post-1996 plan for the

Metropolitan Washington, DC serious

nonattainment area in one final action

published in the Federal Register.

Comment 2: We received Comments

that certain modeling cited by EPA’s

proposed approval do not show that a

1% reduction in NOX emissions

provides the same ozone reduction

benefit as a 1% reduction in VOC

emissions, and that these results address

post-1999 conditions—not 1996–99

conditions, and that one cannot reliably

extrapolate back from the modeled

results to the reductions at issue in the

9% plan. The Comments also assert

there must be photochemical grid

modeling of the actual substitution

being proposed ‘‘to determine the extent

to which NOX can be substituted for

VOC. These Comments also note these

model results themselves show that

NOX reductions sometimes actually lead

to an increase in the number of cells

exceeding the ozone standard.

Response 2: EPA proposed approval

of the District’s, Maryland’s and

Virginia’s Post-1996 ROP plan for the

Metropolitan Washington, DC area

based upon the modeling results from

the attainment demonstration and

conformance of the NOX substitution to

EPA’s December 1993 ‘‘ NOX

Substitution Guidance’’ which was

issued pursuant to section 182(c) of the

Act. In the notice of proposed

rulemakings EPA stated:

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 623

19Or in the case of the Metropolitan Washington,

DC area, the three-state opt-in into the reformulated

gasoline program would also quickly produce

emission reduction benefits from the

commencement of the second phase of the program

in January 1, 2000 without further rule adoption.

‘‘EPA’s guidance requires that the amount

of substituted NOX reductions in the Post1996 plan be less than or equal to the amount

of NOX reductions needed to attain the

national ozone standard. The amount of NOX

reductions needed for attainment must be

demonstrated by photochemical grid

modeling. The District’s demonstration that

the NOX substitution is based upon local

scale modeling performed on the BaltimoreWashington Urban Airshed Modeling (UAM)

domain and upon EPA’s Regional Oxidant

Modeling (ROM) results. Both EPA’s ROM

results and the photochemical grid modeling

submitted with the attainment plan show

that significant NOX reductions will

contribute to attainment in the area.’’

[and,

‘‘Post-1996 plan substitutes fewer NOX

reductions than assumed in the attainment

plan modeling.’’

(See 65 FR at 58245 to 58246,

September 28, 2000, and see 65 FR

62660 to 62661, October 19, 2000.)

In the TSDs for the proposed

rulemaking actions, EPA compared the

NOX substitution in the Post-1996 plan

to the NOX reductions assumed in the

attainment demonstration. EPA noted

that the Post-1996 plan assumed less

NOX reduction than the photochemical

grid modeling supporting the attainment

demonstration or, when stated another

way, the target level (i.e., ROP

allowable) of NOX emissions is higher

than the NOX emissions allowed by the

attainment demonstration modeling. See

section III.C.3.b and 3.c of the TSDs for

the proposed actions.

EPA does not believe that the

presence of an ozone increase in four

modeling grid cells on one episode day

is sufficient cause to disapprove the

Post-1996 plan on the grounds that NOX

reductions do not provide equivalent

ozone concentration benefits. Under

EPA’s December 1993 NOX Substitution

Guidance, which is the basis for

approving the Post-1996 plan, it is only

necessary to show equivalency for one

of the episodes selected for the

attainment demonstration. This follows

because the attainment strategy

ultimately selected must show predicted

ozone to be less than or equal to the

standard for all selected episodes.

Comment 3: We received comments

that assert that although the plan cites

various rules and programs that have

been adopted to reduce emissions, it

does not demonstrate that actual

compliance with the rules and

implementation of necessary programs

will be achieved by the deadline or that

claimed emission reductions will be

fully realized by that date. We received

comments that assert that EPA can only

credit these plans with reductions

actually achieved by November 15,

1999. We also received general

comments that the ROP plan cannot be

approved because programs on which

the area relies for ROP credit were not

approved by EPA until after November

15, 1999, thus the programs were not

federally enforceable during the 1996–

99 ROP period. Comments concerning

specific measures and EPA’s responses

are summarized separately. Finally, the

commenters suggest that certain

programs may not have achieved the

level of reductions for which credit was

taken in the ROP plan.

Response 3: An ROP SIP is a

projection that the State has a SIP to

achieve an emissions target based upon

projections of future year activity. In

other words, the ROP analysis is

forward-looking. The CAA has other

provisions that require a backward look

at what were the actual emissions in an

area during a milestone year and

whether a milestone was met or not.

Determination of actual emissions for a

milestone year is the subject of the

periodic inventory requirement of

section 182(a)(3) and the requirements

of section 182(g) concerns milestone

compliance.

For approving ROP plans, EPA views

implementation dates as the date

sources are required to comply with

rule. In general, when reviewing a SIP

submission with enforceable

regulations, EPA does not separately

analyze whether sources are in fact

complying with the adopted regulations.

The Act provides relief against sources

that fail to comply, such as enforcement

action and penalties. See CAA 304. In

addition, if EPA determines that a State

is failing to require sources to comply

with an approved plan, EPA may make

a finding of failure to implement under

section 179(a), which would trigger the

possible imposition of sanctions.

Preparation of the Post-1996 ROP SIP

for the Metropolitan Washington, DC

area commenced prior to the start of

calendar year 1999 and was formally

adopted in April and submitted in May

1999. Thus, the ROP SIP prepared for

the area was a forward-looking

projection that the 9% ROP requirement

for the three year period from November

1996 to November 1999 would occur.

The rules relied on in the plan were

required to be implemented prior to

November 15, 1999.

EPA is not required to disapprove an

area’s SIP simply because EPA did not

act on the SIP revision prior to the

statutory timeframe for the reductions. If

EPA disapproves a SIP, the area is

subject to sanctions and EPA is required

to promulgate a FIP. Sanctions will not

be imposed (or will be lifted) and EPA

will not be required to promulgate a FIP

(or the FIP can be replaced) if the

State(s) submit a SIP that corrects the

deficiency that was the basis for the

disapproval and EPA approves the SIP.

It would be impossible for a State to

ever correct a disapproval based on

EPA’s failure to approve the SIP by an

earlier date. Moreover, if EPA were to

then promulgate a FIP, the FIP would

not be federally enforceable during the

compliance timeframe contemplated by

the statute. For these reasons, EPA does

not believe that it is precluded from

approving the SIP simply because

November 1999 has passed.

As provided below, EPA believes that

the measures on which the Metropolitan

Washington, DC area relied for credit in

the post-1996 plan were scheduled to

achieve the necessary reductions prior

to November 1999. However, EPA notes

that even if it had found that there was

a shortfall in the plan, the best remedy

at this juncture would be to allow credit

for other measures that were not relied

upon, but that achieved reductions prior

to 1999. If sufficient actual reductions

occurring by the milestone date did not

exist, then Maryland, Virginia or the

District could only get reductions after

the milestone deadline because, at this

point, the States do not have the ability

to require additional reductions for a

period that has already passed. The

passing of the deadline would not

relieve Maryland, Virginia or the

District from the requirement to achieve

the 9% reduction in emissions, but the

9% reduction needs to be achieved as

expeditiously as practicable after

November 15, 1999. Measures such as

enhanced inspection and maintenance

and National Low Emission Vehicle that

accrue additional benefits over time as

newer vehicles replace older vehicles or

as additional vehicles are required to

obtain repairs will generate additional

reductions more expeditiously than new

measures which must undergo adoption

processes that must include public

notice and comment periods and any

required legislative review processes

prior to SIP approval.19

Comment 4: We received comments

that said reductions from the National

Low Emission Vehicle (NLEV) program

are not creditable because the District

did not submit a SIP revision for the

NLEV program and because the NLEV

SIPs for Maryland and Virginia were not

approved until after the November 15,

1999 milestone date. The comments also

assert that emission reductions are

624 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

20The NLEV program was ‘‘voluntary’’ in that it

could only come into effect if agreed upon by the

northeastern states and the auto manufacturers. As

of March 2, 1998, the NLEV standards were

enforceable in the same manner as any other federal

new motor vehicle program (63 FR at 11375, March

9, 1998).

creditable toward the ROP requirement

only to the extent that they have

actually occurred by the November 15,

1999 milestone date. The comments

state that if the ROP plan does not get

sufficient creditable reductions then the

plan cannot be approved.

Response 4: As provided above, EPA

does not believe that it cannot approve

ROP credit for the NLEV program

simply because the NLEV program was

not approved prior to November 1999.

In addition, EPA disagrees with the

comment that the NLEV program does

not get sufficient creditable reductions.

The NLEV program is a federallyenforceable program. Unlike other

federally enforced motor vehicle control

programs, however, the NLEV program

required an agreement from nine

northeastern states and 23

manufacturers prior to its becoming

enforceable. On March 9, 1998, EPA

made a finding that the NLEV program

was in effect. Nine northeastern states

and 23 manufacturers had opted into

this ‘‘voluntary’’ 20 clean car program

and the opt-ins met the criteria set forth

by EPA in its NLEV regulations (63 FR

926, January 7, 1998). As a result,

starting in the northeastern states in

model year 1999 and nationally in

model year 2001, new cars and smaller

light-duty trucks had to meet tailpipe

standards that are more stringent than

EPA could mandate prior to model year

2004. The phase-in of the NLEV

vehicles began in the District, Maryland

and Virginia (and the other northeastern

states covered under the rule)

commencing with the introduction of

the model year 1999 vehicles during the

fall of 1998.

The NLEV program required certain

northeast states and the District to adopt

certain regulations into their SIP. The

scope of these regulations can be found

in the NLEV final rule and associated

docket. See 63 FR 926, January 7, 1998.

EPA would concede that if the

Maryland, Virginia or the District did

not have a SIP-approved NLEV rule at

this time then crediting of the

reductions from the measure would

require a definitive determination

whether the NLEV reductions resulted

from a rule promulgated by EPA or from

a rule adopted into the SIP. However,

the NLEV rule has been approved into

the SIPs for the District, Maryland and

Virginia thus negating any need for such

a determination. The reductions from

this program that are relied on in the

Metropolitan Washington, DC post-1996

ROP plan occurred prior to November

15, 1999, in accordance with the

approved SIPs and, therefore, are

creditable.

Comment 5: We received comments

that EPA should not credit reductions

from the District’s NOX RACT rule

because (1) EPA has not yet approved

the District’s NOX RACT rule and,

therefore, it will not become federally

enforceable until long after 11/15/99,

and (2) the District has not shown actual

implementation of NOX RACT before

11/15/99 by major NOX sources within

the District.

Response 5: As provided above, EPA

believes that there is no point in

disapproving the Metropolitan

Washington DC area Post-1996 ROP

SIPs at this time on the basis that the

District’s NOX RACT regulation was

approved after November 15, 1999.

Moreover, as provided above, it is

sufficient that the District’s NOX RACT

rule requires sources to comply prior to

the November 15, 1999 date by which

ROP must be achieved. The District

does not need to demonstrate that

sources have actually complied with its

regulations. Affected sources were

required to comply with the applicable

emissions standards and requirements

contained in the District’s NOX RACT

regulation (20 DCMR Section 805) by

May 31, 1995. On December 14, 2000,

the Regional Administrator signed a

final action approving the District’s NOX

RACT rule. That action has been or will

be published shortly.

Comment 6: The comments assert the

NOX RACT rules include inadequate

emission control requirements for

various source categories. With respect

to Maryland and Virginia NOX RACT

rules, the commenter referenced

comments submitted in response to

EPA’s proposed rulemaking actions on

those SIPs. With respect to the District’s

NOX RACT rule, the commenter says the

District proposed to amend its rule to

eliminate deficiencies precluding EPA

approval.

Response 6: With respect to Maryland

and Virginia NOX RACT rules, EPA has

provided responses to comments in the

final rulemaking action on those SIPs.

With respect to the District’s NOX RACT

rule, the District did make several

amendments to address several

provisions regarding monitoring,

operating practice standards for smaller

emission units, and applicability

provisions that would only increase the

number of sources and hence reductions

available after 1999.

Comment 7: We received comments

that assert that EPA cannot credit

reductions because the District has not

implemented its NOX RACT rules.

Specifically, the comments cite that the

District’s proposed title V permit for the

Blue Plains Wastewater Treatment Plant

contains no NOX RACT requirements

(either as federal or state-only

requirements), even though the District

has identified the Plant as a major NOX

source.

Response 7: As an initial matter, EPA

notes that the District has not taken

credit in its ROP plan for NOX RACT

reductions attributable to the Blue

Plains Wastewater Treatment Plant and,

as provided below, believes that this

source is not subject to the NOX RACT

requirement. (EPA notes that no

comments regarding the Blue Plains

Plant were received during the comment

period on EPA’s proposed full approval

of the District’s NOX RACT rule.)

Sources subject to the District’s NOX

RACT rule were required to comply

with the applicable emissions standards

and requirements contained in the

District’s NOX RACT regulation (20

DCMR Section 805) by May 31, 1995.

Over the past several years, the District

has been incorporating source-specific

NOX RACT requirements in Title V

permits for many sources.

EPA has reviewed a draft operating

permit for the Blue Plains Plant. The

Blue Plains Plant has twenty-nine

combustion sources. This includes five

digester gas/number two fuel oil-fired

boilers between ten and thirteen and

one-half million BTU per hour heat

input, nine natural gas/number 2 fuel

oil-fired boilers between five and ten

million BTU per hour heat input, seven

distillate/natural gas fired boilers less

than five million BTU per hour heat

input, two oil-fired generators and six

flares. The requirements in the permit

limit the hours of operation of the

emergency generators to less than 500

hours per year consistent with section

805.1(c) of the District’s NOX RACT

rule, thus excluding the generators from

coverage by the NOX RACT rule.

The District’s NOX RACT rule sets

differing level of control on boilers

through emission limitations or good

operating practices, depending upon the

rated capacity and fuel type of the

boiler. A source generally consists of

several units which emit pollutants to

the atmosphere. The sum of emissions

from all units at a facility determines if

a unit is major and, thus, subject to the

RACT requirements. However, certain

units at a facility may be so small that

it is clear that no controls are reasonably

available for those units, although RACT

might apply at the other units within

the facility. Regulatory agencies have

typically included exemptions for very

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 625

21Consistent with the Act, the Commonwealth’s

RACT regulations require facilities in the Northern

Virginia Emissions Control Area which have a

theoretical potential to emit of 50 tons per year

(TPY) or greater of NOX or VOCs to comply by May

31, 1995. To obtain additional emission reductions

beyond those mandated by the Act, the

Commonwealth also required VOC sources with a

theoretical potential to emit 25 TPY or greater, but

less than 50 TPY, to apply RACT. The

Commonwealth set a compliance deadline for these

sources of May 31, 1996.

small emission units in their VOC RACT

rules. The reason for the exemptions is

that control requirements at very small

units are generally not reasonable,

considering technological and economic

feasibility. As a result of the new NOX

RACT requirements in the Clean Air Act

Amendments of 1990, regulatory

agencies are required to develop and

adopt NOX RACT rules. In the process

of drafting these rules, many agencies

have included exemptions for very

small NOX emission sources for the

same reason noted above for VOC rules.

Unlike the VOC rules, however, there is

no well-established precedent with

respect to NOX.

The District’s NOX RACT was

approved without emission limits for de

minimis sources. In the case of the

boilers at the Blue Plains Plant, EPA

concludes these 29 units would be de

minimis because the units are distillateoil or digester/natural-gas fired and thus

the emission reduction potential is

small, control is not cost effective, and

the actual emissions reported in the

draft operating permit from the plant are

small and thus the potential emission

reductions are negligible. Most of the

combustion units, such as the sixteen

boiler units below ten-million BTU per

hour, are below the threshold at which

controls are cost effective, and those at

or just over ten-million BTU per hour

are on the threshold of cost

effectiveness. See the memorandum

entitled ‘‘De Minimis Values for NOX

RACT’’ G. T. Helms, Group Leader,

Ozone Policy and Strategies Group

(MD–15), to the Air Branch Chiefs,

Regions I–X, dated January 1, 1995.

Comment 8: We received comments

that assert that EPA should not credit

reductions from Maryland’s or

Virginia’s NOX RACT rules for the

following reasons: (1) EPA has not yet

even approved these NOX RACT rules;

(2) even if the rules are approved prior

to final action on the ROP plan, the

approvals will not become federally

enforceable until long after 11/15/99;

and (3) Maryland and Virginia have not

shown actual implementation of all

RACT requirements before 11/15/99.

Response 8: As provided above, EPA

believes that there is no point in

disapproving the Metropolitan

Washington DC Post-1996 ROP SIPs at

this time on the basis that Virginia’s and

Maryland’s NOX RACT regulations were

approved after November 15, 1999.

Moreover, as provided above, it is

sufficient that the States’ NOX RACT

rules require sources to comply prior to

the November 15, 1999 date by which

ROP must be achieved. The States do

not need to demonstrate that sources

have actually complied with its

regulations.

The Commonwealth’s EPA-approved

RACT regulations, found at 9 VAC 5–

40–300 and 310, require all sources for

which the CAA requires RACT to be in

compliance by the May 31, 1995

deadline specified in the CAA.21

Virginia has not extended the Act’s

compliance date for those major sources

mandated to comply by May 31, 1995,

and by approving the Commonwealth’s

case-by-case SIP revisions, EPA is not

approving an extension of this deadline.

To the extent that Virginia’s consent

agreements and permits require

additional reductions beyond the

mandated compliance deadline for

meeting RACT, these requirements are

not considered to be part of the RACT

determinations.

EPA disagrees with the commenter

that there are no compliance dates

established for the RACT requirements.

As explained previously, on July 11,

1995, the MDE submitted a revision to

its SIP for the control of NOX emissions

from major sources. This submittal

included revisions to regulation

COMAR 26.11.09.01 and 26.11.09.08

which pertained to definitions and a

generic NOX RACT rule which required

affected sources to either meet a

presumptive NOX emissions standard or

to submit a case-by-case RACT proposal

for approval by MDE. In all cases, under

this regulation, RACT requirements

were to have been met by no later than

May 31, 1995. On June 22, 1999 (64 FR

33197), EPA granted conditional limited

approval of this SIP revision. The

condition imposed required that all

case-by-case RACT determination be

submitted as SIP revisions. On

September 8, 2000, Maryland submitted

a SIP revision. It consisted of a revised

version of COMAR 26.11.09.08 which

removed the generic RACT provisions

and replaced them with source category

specific RACT emission limitations.

Maryland chose to do this to avoid the

undue burden of submitting all the caseby-case RACT determinations as sourcespecific SIP revisions. The submittal of

the September 8, 2000, SIP revision

satisfies the conditions of EPA’s June

22, 1999 conditional limited approval.

Maryland first revised COMAR

26.11.09.08 on September 22, 1999 and

further revised it on August 30, 2000.

These revisions to COMAR 26.11.09.08

became effective in the State of

Maryland on October 18, 1999, and

September 18, 2000, respectively. Its

provisions are to be complied with at all

times and it provides no extension of

the CAA mandated RACT compliance

date of May 31, 1995.

EPA has fully approved Maryland’s

and Virginia’s NOX RACT rules. On

December 15, 2000, the regional

Administrator signed final actions

approving the Maryland and Virginia

NOX RACT rules. These actions have

been or will be published shortly.

Comment 9: We received comments

that asserted that EPA can only credit

those reductions that the District

actually achieved as a result of

enhanced vehicle inspection between

April 1999 and November 15 1999. The

comments state that only a fraction of

the fleet was tested between the April

1999 commencement of the enhanced

I/M program and November 15, 1999.

Other comments likewise questioned

whether full emission reductions

credited from the Maryland and Virginia

I/M programs actually occurred by

11/15/99. The latter comments assert

that states must demonstrate full

implementation including enhanced

testing of the entire fleet. These

comments also questioned whether the

full emission reductions were credited

to the enhanced I/M programs in

Maryland and Virginia given that final

SIP approval did not occur until late

1999.

All comments state if the ROP plan

does not get sufficient creditable

reductions by November 15, 1999, then

the plan cannot be approved.

Response 9: EPA disagrees that the

full fleet must be tested for a state to get

the credit that they claim. I/M program

benefits were determined using EPA’s

MOBILE5b emission factor model. The

MOBILE5b emission factor model was

designed to evaluate program benefits

from annual and bienniel programs and

is quite capable of evaluating program

benefits for a specified year that is yearone of a bienniel program. The

MOBILE5b model has inherent

limitations in that it can only assume an

I/M start date of January 1 and can only

provide output for July 1 or January 1

for the year of evaluation. The States

modeled an enhanced I/M start date of

January 1 of the following years: 1998

for Maryland and Virginia and 1999 for

the District. The Maryland enhanced

program commenced in October 1997,

the Virginia program commenced

during May of 1998 and the District on

April 26, 1999. All the programs have

626 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

22 ‘‘Credit for the 15 Percent Rate-of-Progress

Plans for Reductions from the Architectural and

Industrial Maintenance (AIM) Coating Rules,’’

March 22, 1995, from John S. Seitz, Director, Office

of air Quality Planning and Standards to Air

Division Directors, Regions I–X

23 ‘‘Credit for the 15 Percent Rate-of-Progress

Plans for Reductions from the Architectural and

Industrial Maintenance (AIM) Coating Rule and the

Autobody Refinishing Rule,’’ November 27, 1994,

John S. Seitz, Director OAQPS, to Air Division

Directors, Regions I–X.

now tested the amount of the fleet

specified in the post-1996 ROP plan.

EPA believes the estimated reductions

from I/M needed for the post-96 ROP

plans were achieved and surpassed by

the end of May 2000, prior to the

beginning of the ozone season. EPA

believes that these reductions were

achieved as expeditiously as practicable

and that no other reasonable emissions

control strategy would have allowed the

District or Virginia or EPA to achieve

these reductions sooner.

EPA believes that there is no point to

disapprove Maryland’s, Virginia’s or the

District’s Post-1996 plan SIP at this time

because of the date Maryland’s,

Virginia’s or the District’s I/M SIP

regulation was approved. First the

reductions claimed by Maryland,

Virginia and the District have now

occurred. Second, Maryland, Virginia or

the District would have to remedy the

deficiencies that lead to the disapproval.

The comments suggest that the

deficiency could arise from one of two

deficiencies: first, the reductions did not

occur by the required deadline or, two,

the reductions did not arise from either

a measure approved into the District’s

SIP or from a measure promulgated by

EPA. In either case, a shortfall of

creditable reductions would occur. Now

that the milestone deadline has passed,

Maryland’s, Virginia’s or the District’s

has limited ability to effectuate a

remedy to a shortfall of creditable

reductions that must occur by a date

past. The passing of the deadline does

not relieve Maryland, Virginia or the

District from the requirement to achieve

the 9% reduction in emissions, but the

9% reduction needs to be achieved as

expeditiously as practicable after

November 15, 1999. Maryland, Virginia

or the District can only get creditable

reductions from reductions that actually

occurred by the milestone deadline by

making such reductions, if any exist,

creditable by incorporating such

reductions into a SIP regulation that

EPA approves. In such a situation, the

SIP approval would occur after the

deadline. If sufficient actual reductions

occurring by the milestone date did not

exist then Maryland, Virginia or the

District could only get reductions after

the milestone deadline. The Post-1996

ROP requirement would only be

fulfilled if such additional reductions

occurred as expeditiously as practicable.

Measures such as I/M and NLEV that

accrue additional benefits over time as

newer vehicles replace older vehicles or

as additional vehicles are required to

obtain repairs will generate additional

reductions more expeditiously than new

measures which must undergo adoption

processes that must include public

notice and comment periods and any

required legislative review processes

prior to SIP approval.

Comment 10: We received comments

that assert because the final national

rules for autobody refinishing, surface

coatings and consumer products allow

for exemptions or variances, EPA cannot

grant any emission reduction credit at

all because the Clean Air Act does not

allow EPA to credit state or national

measures with emission reductions

when emission limits are subject to

waiver at any time. The comments

further assert that because the tonnage

exceptions and exceedance fee

provisions or variance provisions in the

rules are not limited to a specific

tonnage figure at all the rules place no

cap on the use of these provisions and

thus assert in the absence of such caps,

EPA cannot rationally or lawfully grant

emission reduction credit for these

rules.

Response 10: The AIM rule (40 CFR

594.404) sets caps on the amount of the

tonnage exemptions. The Economic

Impact Analysis for the final rule

evaluated the magnitude of lost

emission reductions in considering the

fee provision and found that the fee

would result in a relatively minor

adjustment in emission reductions,

while providing considerable flexibility

in the marketplace, thus reducing the

number of products that withdraw from

the market. The effect of the tonnage

exemption and the exceedance fee on

the estimated emission reduction was

considered in derivation of the

estimated emission reduction. The

estimated reduction for the final rule

was reduced by 2,350 tons to account

for the exceedance and tonnage

exemptions in the rule.

Not all variance requests were related

to time extensions to reformulate

products but also included time

extensions to update product literature

or labeling or date coding equipment.

See 64 FR 16447, April 5, 1999. Most

variances were submitted immediately

after the rules became effective and the

time extension requested have now run

out. Region III has not received a

variance request in over a year.

Comment 11: We received comments

that assert that the proposed

rulemakings used estimates from the

proposed rulemaking for autobody

refinishing, consumer products, and

architectural and industrial

maintenance coatings as a basis for

approving the States’ reduction claims.

Response 11: As stated in the TSDs

for the proposed approvals of

Maryland’s, Virginia’s and the District’s

post-1996 ROP plan, the 36% reduction

for autobody refinish coatings is based

upon the final rule, and as stated in the

preambles and associated dockets for

the consumer products and architectural

and industrial maintenance coatings

final rules, these final rules are

estimated to achieve a 20% reduction in

affected source categories.

EPA’s March 22, 1995

memorandum 22 allowed states to claim

a 20% reduction in VOC emissions from

the AIM coatings category in ROP and

attainment plans based on the

anticipated promulgation of a national

AIM coatings rule. In developing the

attainment and ROP SIPs for their

nonattainment areas, States relied on

this memorandum to estimate emission

reductions from the anticipated national

AIM rule. EPA promulgated the final

AIM rule in September 1998, codified at

40 CFR part 59 subpart D. In the

preamble to EPA’s final AIM coatings

regulation, EPA estimated that the

regulation will result in 20% reduction

of nationwide VOC emissions from AIM

coatings categories (63 FR 48855). The

estimated VOC reductions from the final

AIM rule resulted in the same level as

those estimated in the March 1995 EPA

policy memorandum. In accordance

with EPA’s final regulation, States have

assumed a 20% reduction from AIM

coatings source categories in its

attainment and ROP plans.

Consistent with a November 27, 1994

EPA policy,23 many States have claimed

a 37% reduction from the autobody

refinishing source category based on a

proposed rule. However, EPA’s final

rule, ‘‘National Volatile Organic

Compound Emission Standards for

Automobile Refinish Coatings,’’

published on September 11, 1998 (63 FR

48806), did not regulate lacquer

topcoats and will result in a smaller

emission reduction of around 33%

overall nationwide. The 37% emission

reduction from EPA’s proposed rule was

an estimate of the total nationwide

emission reduction. Since this number

is an overall national average, the actual

reduction achieved in any particular

area could vary depending on the level

of control which already existed in the

area. For example, in California the

reduction from the national rule is zero

because California’s rules are more

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 627

24 ‘‘Regulatory Schedule for Consumer and

Commercial Products under Section 183(e) of the

Clean Air Act’’, June 22, 1995, John S. Seitz,

Director OAQPS, to Air Division Directors, Regions

I–X.

stringent than the national rule. In the

proposed rule, the estimated percentage

reduction for areas that were

unregulated before the national rule was

about 40%. However as a result of the

lacquer topcoat exemption added

between proposal and final rule, the

reduction is now estimated to be 36%

for previously unregulated areas. Both

the District and Virginia claimed 35.7%

credit in their attainment and ROP plans

while Maryland claimed 45%. EPA’s

best estimate of the reduction potential

of the final rule was spelled out in a

September 19, 1996 memorandum

entitled ‘‘Emissions Calculations for the

Automobile Refinish Coatings Final

Rule’’ from Mark Morris to Docket No.

A–95–18.

The basis for approving Maryland’s

reductions is dealt with in a response to

a separate comment consistent with a

June 22, 1995 EPA guidance,24 States

have claimed a 20% reduction from the

consumer products source category

based on EPA’s proposed rule. The final

rule, ‘‘National Volatile Organic

Compound Emission Standards for

Consumer Products,’’ (63 FR 48819),

published on September 11, 1998, has

resulted in a 20% reduction after the

December 10, 1998 compliance date.

Therefore the reductions obtained by

States for their attainment and ROP

plans from the final national rule are

consistent with credit which was

claimed.

Comment 12: We received comments

that state for the architectural and

industrial maintenance (AIM) coatings

rule, the limits on a number of coatings

were changed between the proposal and

final rule either directly, or by

establishing new subcategories with

higher VOC limits. The comments assert

that the effects of these changes and

other changes is not documented

precisely how those changes justify the

claimed emission reduction credit. The

comments further state that EPA does

not show how the effects of these were

reflected in the final percentage

reduction estimate EPA is allowing

states to claim from the rule.

Response 12: The basis for the 20%

reductions achieved by the final rule is

documented in the rulemaking docket

for the AIM coatings final rule in docket

A–92–18, item number IV–B–2 as stated

in appendix C to the TSDs for the

rulemakings on Maryland’s, Virginia’s

and the District’s P attainment and Post1996 ROP plans. The emission

reduction and the baseline emissions

estimate for the final rule reflect

changes due to new information as well

as the decisions on some categories.

These changes included:

(a) Addition of information on

concrete curing and sealing compounds.

(b) Removal of acetone emissions

from the inventory for industrial

maintenance coatings and for traffic

coatings and zone marking coatings.

(c) Adjustments to account for

creation of new categories where EPA

had the necessary information on

coating volume and VOC content and

we could determine if the category was

included in the NPCA survey.

After all of the revisions were made,

the revised estimate of baseline

emissions was 6 percent higher than the

estimate at proposal and the revised

estimate of the emission reduction was

7 percent higher. Thus, it is not possible

to assess the validity of the emission

reduction estimate by a simple

comparison of the VOC content limits

for a few products.

EPA believes the 20% reduction

identified in the final AIM rule was

reasonable and EPA took final action on

the attainment and Post-1996 ROP plans

on that basis.

Comment 13: We received comments

that assert the estimate of emission

reductions from the autobody

refinishing rule does not account for

establishment of a separate category for

multi-colored topcoats in the final

rule—a category that has weaker limits

than would have applied to the same

topcoats under the proposed rule, and

the comments assert EPA that has no

data on the usage of multi-colored

topcoats—data that is required in order

to rationally estimate the expected

emission reductions from the rule.

Response 13: EPA’s best estimate of

the reduction potential of the final rule

was spelled out in a September 19, 1996

memorandum entitled ‘‘Emissions

Calculations for the Automobile

Refinish Coatings Final Rule’’ from

Mark Morris to Docket No. A–95–18.

The basis for approving Maryland’s

reductions is dealt with in a response to

a separate comment below.

Comment 14: We received comments

that assert there is insufficient basis for

granting full credit for AIM rule as of

November 15, 1999 because EPA has

failed to offer any facts or analyses

showing that only compliant products

were in use as of 11/15/99, and the late

implementation deadline of September

12, 1999 virtually assures that this was

not the case.

Response 14: As discussed in

response to other comments, the

estimated VOC reductions from the final

AIM rule resulted in the same level as

those estimated in the March 1995 EPA

policy memorandum. In accordance

with EPA’s final regulation, States have

assumed a 20% reduction from AIM

coatings source categories in its

attainment and ROP plans. AIM

coatings manufacturers were required to

be in compliance with the final

regulation within one year of

promulgation, except for certain

pesticide formulations which were

given an additional year to comply.

Thus all manufacturers were required to

comply, at the latest, by September

2000.

EPA believes that there is no point to

disapprove the Post-1996 plan SIPs at

this time because the States have

limited ability to effectuate a remedy to

a shortfall of creditable reductions that

must occur by a date past. The passing

of the deadline does not relieve the

States from the requirement to achieve

the 9% reduction in emissions, but the

9% reduction needs to be achieved as

expeditiously as practicable after

November 15, 1999. The States can only

get creditable reductions from

permanent reductions that actually

occurred by the milestone deadline by

making such reductions, if any exist,

creditable by incorporating such

reductions into a SIP regulation that

EPA approves. In such a situation, the

SIP approval would occur after the

deadline. If sufficient actual reductions

occurring by the milestone date did not

exist then the States could only get

reductions after the milestone deadline.

The Post-1996 ROP requirement would

only be fulfilled if such additional

reductions occurred as expeditiously as

practicable. Measures such as AIM rule

which are already promulgated would

generate reductions more expeditiously

than new measures which must undergo

adoption processes that must include

public notice and comment periods and

any required legislative review

processes prior to SIP approval.

In promulgating the final AIM rule in

1998, EPA considered the impact of the

new rule on the affected industry and

inventory. Industry confirmed in

comments on the proposed AIM rule

that 12 months between the issuance of

the final rule and the compliance

deadline would be sufficient to ‘‘use up

existing label stock’’ and ‘‘adjust

inventories’’ to conform to the rule (63

FR at 48867, September 11, 2000).

EPA believes the estimated reductions

from AIM needed for the Post-96 ROP

plans were achieved already. EPA

believes that these reductions were

achieved as expeditiously as practicable

and that no other reasonable emissions

control strategy would have allowed the

628 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

States or EPA to achieve these

reductions sooner.

Comment 15: We received comments

claiming that one EPA analysis

indicates some reductions from the AIM

rule could be deferred to as late as 2002.

The comments cite a Memorandum

dated May 30, 2000 from Paul T.

Wentworth, EPA, to Administrative

Record on the Adequacy findings for the

Motor Vehicle Emissions Budgets in the

Revised Phase II Ozone Attainment

Plans for the Metropolitan Washington,

DC Ozone Nonattainment Area.

Response 15: The budgets at issue in

the Memorandum dated May 30, 2000

from Paul T. Wentworth, EPA, to

Administrative Record on the Adequacy

findings for the Motor Vehicle

Emissions Budgets in the Revised Phase

II Ozone Attainment Plans for the

Metropolitan Washington, DC Ozone

Nonattainment Area were the 2005

budgets. The statement made in this

document stated that the reductions

from the AIM rule ‘‘* * * will occur by

2002 * * *’’. The statement does not

state EPA’s position that the reductions

would not occur any sooner. For the

reasons outlined in the TSDs for the

proposed rulemaking actions, EPA

believes the AIM reductions occurred by

November 15, 1999.

Comment 16: We have received

comments saying that the

(Transportation) model does not

incorporate adequate assumptions about

the effects of land development and new

road projections on the growth of

vehicle travel and cites an EPA letter

from Judith Katz, Director, Air

Protection Division, EPA Region III to

James Cheatham, Divisional

Administrator, Federal Highway

Administration dated August 27, 1998,

in which the commenters assert that

EPA stated that the plans did not

include any information on the rate of

land development in the Washington

Region and the effect of this

development will have on the

transportation system. The comments

discuss the transportation model’s land

use assumptions, and imply that the

Metropolitan Planning Organization (the

Metropolitan Washington Council of

Governments, MWCOG) (hereafter, ‘‘the

MPO’’) has not included the effects of

land use in the model and that EPA has

known about this issue since 1998.

Response 16: This August 27, 1998,

EPA letter to the MPO concerned EPA’s

review of the conformity determination

FY99–04 Transportation Improvement

program (TIP) as well as the Long Range

Transportation Plan. Planning

assumptions in a TIP must be derived

from the estimates of current and future

population, employment, travel, and

congestion most recently developed by

the MPO or other agency authorized to

make such estimates and approved by

the MPO. Likewise, the conformity rule,

40 CFR 93.118(e)(4)(ii), requires SIP

motor vehicle emissions budgets to be

developed in consultation with federal,

state and local agencies such as the

MPO in order to be adequate and

approvable. Based on EPA reviews of

the most recently approved

Transportation Improvement programs

(TIPs) as well as the Long Range

Transportation Plans in the Washington,

DC area, EPA is satisfied that the MPO

through its land activity forecasts,

provides timely information on growth

and land use, through consultation with

all of its regional county planners.

These same forecasts are used for both

the development of SIP motor vehicle

emissions budget and the determination

of conformity TIP. Therefore, while the

estimates of land use activity are not

done by modeling, their process of

estimating land use activity does not

violate the requirements of the

conformity rule which was the context

in which the cited 1998 letter was sent,

and therefore EPA can find no reason to

agree with any assertion or implication

that the transportation model, used by

the MPO to develop any SIP budgets in

1999 or 2000, is deficient. Furthermore,

this August 27, 1998, EPA letter to the

MPO does not have any relevance in

this instance because the letter targets

the lack of any clear graphic display of

information in the transportation plans

rather than the absence of information

for the transportation model to use.

Comment 17: We received comments

that assert that EPA cannot credit the

Post-1996 plan submitted by Virginia

and Maryland with reductions from

measures credited in the 15% plan and

cannot count emission reductions to

both the 15% and 9% reduction

requirements, that is reductions from

some measures are being counted

towards both the 5% and 9% reduction

requirements.

Response 17: EPA disagrees with this

comment. Under EPA’s interpretation of

the reasonable further progress (also

called rate-of-progress (ROP))

requirements under section 182 of the

CAA, the 15% reduction requirement

and post-1996 reduction requirement

(e.g., 9% by 1999) are not separate

tabulations but rather the post-1996

requirement is in addition to the 15%

requirement.

EPA has always interpreted the ROP

requirement to be a requirement to

lower an area’s emissions below a target

level of emissions. See 57 FR at 13506,

April 16, 1992. The 9% per post-1996

requirement (over the three year period

1996 to 1999) is in addition to 15% by

1996 requirement. See 57 FR at 13516.

EPA continued this approach in

guidance documents issued subsequent

to April 16, 1992.

The target level for any milestone year

is always calculated relative to the 1990

base year emissions in the area and

results in a lower target level for each

milestone year. The 15% target level of

VOC emissions is the 1990 base year

inventory adjusted to account for the

effects on base year emissions of certain

noncreditable programs under Clean Air

Act section 182(b): (1) Certain mandated

RACT and I/M rule corrections, if any;

(2) certain mandated reductions in

gasoline Reid vapor pressure (the so

called ‘‘Phase II RVP’’ program) to occur

in 1992; and (3) the federal motor

vehicle control program in place as of

1990 (the so-called ‘‘Tier 0 FMVCP’’).

This adjusted VOC emissions inventory

is reduced by 15% to arrive at the 15%

plan target level.

Calculation of the VOC target level for

the 1999 milestone year starts with the

15% plan target level and applies

further decremental reductions. Part of

the decrement is due to effects on base

year emissions due to the Tier 0 FMVCP

between 1996 and 1999 (which is not

creditable towards the 9% per year post1996 ROP requirement under the Act)

and part due to application of the post1996 9% requirement. Substituting NOX

reductions for VOC reductions only

lessens the additional 9% VOC

reduction requirement by 1999 to some

lesser percentage, which is 1% in the

case of the plan subject to this

rulemaking action.

Under section 182(b) of the CAA, the

ROP requirements are to be met

accounting for growth in the area.

An emission reduction is the

difference between two emission

projections that differ only in the

presence of the effects of a control

strategy in one case and the absence in

the other (often referred to the

‘‘uncontrolled’’ projected emissions).

For the 15% ROP plan, the projection

year is 1996 whereas for the Post-1996

ROP plan the year is 1999.

A demonstration of ROP for the 15%

plan requires that the plan have enough

reductions to reduce the 1996 projected

uncontrolled emissions to less or equal

to the 1996 target level. The Post-1996

ROP plan has to have enough VOC

reductions to account for growth in VOC

emissions between 1996 and 1999 and

to make the VOC portion (when NOX is

substituted) of the 1996 to 1999 3% per

year reduction requirement.

The Post-1996 plan for the

Washington area projects all emissions

in all categories to 1999 without new

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 629

controls from the 1990 base year level

and then applies controls to determine

1999 reductions. (Any growth

projections in uncontrolled emissions

for 1996 to 1999 or any changes in

reductions for 1996 to 1999 in the plan

were the difference between the 1990 to

1999 projections and the 1990 to 1996

projections (from the 15% plan)). The

Post-1996 ROP plans evaluate the effects

of the various creditable control

strategies in the plan on these

uncontrolled emissions levels to

determine the reductions in 1999 from

the Post-1996 ROP plan. EPA is

approving the Post-1996 ROP plans on

the basis that there were sufficient

projected reductions to reduce the 1999

projected uncontrolled emissions to less

than or equal to the target level.

Some measures used for the 15% ROP

demonstration may produce more

reductions relative to projected 1999

uncontrolled emissions for the post1996 plan than for the reductions

relative to projected 1996 uncontrolled

emissions the 15% plan because the

source categories affected by the

measures have higher uncontrolled

emissions in the post-1996 period due

to growth in emissions related activity.

(Other measures produce the same

reductions because the underlying

emissions related activity are projected

to remain steady.) Some measures

namely the additional rules under the

FMVCP promulgated since 1990 (i.e.,

‘‘Tier 1’’) produce greater reductions for

a post-1996 plan than for the 15% plan

for an additional reason than just

growth in underlying emissions related

activity: the post-1996 fleet contains a

higher percentage of vehicles meeting

the newer standards than the fleet

assumed in the 15% plan.

Suppose a measure (implemented

after 1990 but before 11/15/96) can

reduce emissions in a sector (or at a

source) by 20%. Suppose the 1990 base

line emissions for that sector (or source)

were 10.0 tons per day. Suppose the

emissions in the category were projected

to grow 1% per year or 6.2% between

1990 and 1996 and 9.4% between 1990

and 1999. The uncontrolled emissions

would be 10.62 (10 × 1.062) tons per day

for 1996 and 10.94 (10 × 1.094) tons per

day for 1999. The 1996 reductions

would be 2.12 tons per day (0.20 ×

10.62) , and the 1999 reductions would

be 2.19 (0.20 × 10.94) tons per day.

A demonstration of ROP for the post1996 plan requires that the plan have

enough VOC reductions to reduce the

1999 projected uncontrolled emissions

to less than or equal to the relevant post1996 VOC target level.

In the Post-1996 ROP plan the

measures used in the 15% plan are

evaluated as to how well these measures

reduce projected uncontrolled 1999

emissions. These 1999 reductions were

added up with the 1999 reductions from

additional measures implemented after

11/15/96 to get the total emission

reductions in 1999 (relative to the 1999

uncontrolled levels).

Thus although some measures may be

included in both the 15% and 9% plans,

only the reductions between 1990 and

1996 from those measures are counted

towards the 15% plan, while those from

1996 to 1999 are counted in the 9%

plan.

The comments do not offer any

substantive alternative interpretation

regarding the demonstration of ROP to

that which EPA has issued in guidance

on the subject except to claim once a

measure has been used towards the 15%

requirement it cannot be used towards

the 9% requirement. Nor do the

commenters comment adversely on

EPA’s interpretation regarding

demonstration of ROP through

calculation of target levels and through

a showing that milestone year projected

emission inventories with all controls

are less than the target levels. As

explained above, the measures used to

achieve the 15% reduction requirement

by 1996 were evaluated for the effect on

uncontrolled 1999 emissions (that were

projected from 1990). In the case of the

Metropolitan Washington, D.C.

nonattainment area additional measures

are needed in the post-1996 plan to

achieve additional reductions needed to

offset growth in emissions after 1996

and to achieve the VOC portion of the

9% reduction requirement.

Comment 18: We received comments

that assert that EPA must document its

reasons for accepting Maryland’s and

Virginia’s emission reduction claims.

The comments cite the example of the

reductions from Maryland’s and

Virginia’s open burning program and

the 45% reduction claimed by Maryland

for the Maryland rules applicable to

autobody refinishing. The comments

state that the States assume an 80%

compliance with the open burning

regulations without documenting the

basis for this assertion. The comments

claim that the 80% compliance

assertion is void in the absence of plans

or commitments needed for local

enforcement.

Response 18: In the case of

Maryland’s autobody refinishing rule,

Maryland’s rule requires coating limits

equivalent to those required under

EPA’s proposed autobody refinishing

rule. Maryland’s rule also establishes

VOC content requirements for surface

preparation cleaners, equipment

cleaning, and for application

equipment. The effect from the coating

limits, surface preparation cleaners, and

equipment cleaning would be a

reduction of 42.5% based upon the

analysis in EPA’s Alternative Control

Techniques: Auto Body Refinishing

(EPA 453/R–94–031, April 1994).

Maryland’s rule also requires the use of

either low-volume, high-pressure or

high-volume, low-pressure application

equipment. STAPPA reports that the

Bay Area Air Quality Management

District conservatively estimates that

use of HVLP equipment can reduce

coatings usage by 20 to 40% (STAPPA/

ALAPCO, ‘‘Meeting the 15% Rate of

Progress—A Menu of Options’’, pages

91–99 (Sept. 1993)). A 20% reduction in

coatings usage would result in a further

12% reduction in coating emissions

which equate to a further 10% reduction

in overall emissions. Based upon this

EPA believes the 45% reduction credit

assumed by Maryland is appropriate

and may be conservative.

Regarding open burning, 80%

compliance is reasonable as a default

compliance rate. This default 80%

compliance assertion is based upon

EPA’s guidance for rule effectiveness.

This guidance was among that listed in

appendix A to the TSD for the proposed

action (such as item numbers 4, 5, 6, 24,

27, 30, 35, 36, and 38 among others).

EPA’s guidance allows States to assume

80% compliance rate as a default. EPA

views the fact that States take the

default 80% rule effectiveness as a

defacto commitment to invest

enforcement resources to ensure this

level of compliance.

Comment 19: We received comments

that claimed open burning emissions

were not in the 1990 base year

emissions inventory for Maryland and

Virginia. The comments assert that EPA

cannot credit reductions from emissions

that were not included in the 1990 base

year emissions inventory.

Response 19: The emissions from the

open burning category were

documented in the 1990 base year

emissions inventory. These were

documented in Chapter 3.0, section

3.4.4.5.2 on pages 3–65 and 3–66, and

on page III–32 of Appendix 3.0 of the

‘‘1990 Base Year Emissions Inventory

for Stationary Anthropogenic, Biogenic

and Highway Vehicle Emissions of

Ozone Precursors in the Washington,

DC-MD-VA Metropolitan Statistical

Nonattainment Area’’, dated September

22, 1993, that was submitted by

Maryland and Virginia as part of their

1990 base year emissions inventory SIP.

Comment 20: We received comments

asserting that the Maryland and Virginia

attainment and Post-1996 ROP plans are

flawed because they assume a fleet mix

630 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

that does not accurately reflect the

growing proportion of sport utility

vehicles and gasoline trucks. The

comments cite data from the Maryland

Department of the Environment for 1996

and 1999. The comments further assert

that EPA and the states have not

followed a consistent practice in

updating SIP modeling to account for

changes in vehicle fleets. The comments

also assert that EPA cannot rationally

approve SIPs that are based on such

materially inaccurate assumptions. The

comments also assert continued use of

out-dated assumptions is inconsistent

with the duty imposed by Clean Air Act

section 182(a)(3) to triennially update

the emission inventory. The comments

also assert that if the motor vehicle

inventory has not been updated to

prepare the current SIP submission, it

should be disapproved.

Response 20: All of the SIPs on which

we are taking final action are based on

the most recent vehicle registration data

available at the time the SIP was

prepared. The SIPs use the same vehicle

fleet characteristics that were used in

the most recent periodic inventory

update. The Metropolitan Washington

D.C. Ozone Nonattainment Area SIP is

based on vehicle registration data from

1996, which is the most recent data

available at the time the SIP was

prepared and submitted. Clearly the

1999 data could not have been used in

motor vehicle emissions projections

prepared in the fall of 1998 as

documented in Appendix D of the SIP.

EPA requires the most recent available

data to be used, but we do not require

it to be updated on a specific schedule.

Therefore, different SIPs base their fleet

mix on different years of data. Our

guidance does not suggest that SIPs

should be disapproved on this basis.

Further, EPA does not require states to

go back and reanalyze SIP submissions

if new data becomes available shortly

before EPA takes final action on the SIP.

Nevertheless, we do expect that

revisions to these SIPs that are

submitted using MOBILE6 (as required

in those cases where the SIP is relying

on emissions reductions from the Tier 2

standards) will use updated vehicle

registration data appropriate for use

with MOBILE6, whether it is updated

local data or the updated national

default data that will be part of

MOBILE6. EPA is requiring the

Metropolitan Washington, D.C. area

states to revise the attainment budgets

using MOBILE6.

Comment 21: We received comments

that assert that the Post-1996 ROP plan

and the attainment plan fail to include

a program to provide for the

enforcement of the adopted control

measures as required by section

110(a)(2)(C) of the CAA. The comments

assert that these plans must contain a

legally enforceable SIP commitment to

enforce the various control strategies

relied upon for emission reduction

credit. The comments assert that EPA

review of state enforcement programs in

connection with federal grantmaking

does not satisfy EPA’s duty to ensure

that the SIP itself contains the legally

required enforcement and funding

commitments.

Response 21: EPA disagrees with the

commenter’s assertion that states must

provide such information with each SIP

revision. Although Clean Air Act

sections 110(a)(2)(E) and 110(a)(2)(C) do

contain these provisions cited by the

commenter, section 110(a)(2)(H) is the

statutory provision which governs

requirements for individual plan

revisions which States may be required

to submit from time to time. There are

no cross-references in section

7410(a)(2)(H) to either 7410(a)(2)(E) or

7410(a)(2)(C). Therefore, EPA concludes

that Congress did not intend to require

States to submit an analysis of adequate

funding and enforcement with each

subsequent and individual SIP revision

submitted under the authority of section

110(a)(2)(H).

Once EPA approves a State’s SIP as

meeting section 110(a)(2), EPA is not

required to reevaluate that SIP for each

new revision to the plan to meet

additional requirements in later sections

of the Act. The Metropolitan

Washington D.C. area States had

previously received approval of their

section 110(a)(2) SIPs.

In a final rulemaking action published

on February 25, 1984 (49 FR 3063), EPA

approved Virginia’s financial and

manpower resource commitments, after

having proposed approval of these

commitments on February 3, 1983 (48

FR 5124 at 5127).

In a final rulemaking action published

on March 8, 1984 (49 FR 8610), EPA

approved Maryland’s financial and

manpower resource commitments, after

having proposed approval of these

commitments on February 3, 1983 (48

FR 5048 at 5052).

In a final rulemaking action published

on October 3, 1984 (49 FR 39059 at

39060), EPA approved the District’s

financial and manpower resource

commitments, after having proposed

approval of these commitments on

December 17, 1983 (48 FR 54833 at

54836).

Neither this commenter or any other

person has submitted substantive

comments that would lead EPA to

separately analyze whether it should

call on the states to revise their section

110(a)(2) SIPs regarding enforcement

and funding.

III. Final Action

A. The District of Columbia

1. Post-1996 ROP Plan

EPA is approving the District of

Columbia’s post-1996 (ROP) plan SIP

revision for the Washington area which

was submitted on November 3, 1997,

and supplemented on May 25, 1999.

2. Attainment Demonstration

EPA is approving the District of

Columbia’s attainment demonstration

SIP revision for the Washington area

which was submitted on April 24, 1998,

and supplemented on October 27, 1998,

and on February 16, 2000, and section

9.1.1.2 of the March 22, 2000 SIP

supplement dealing with a commitment

to revise the 2005 attainment motor

vehicle emissions budgets within oneyear of the EPA’s release of the

MOBILE6 model.

3. Attainment Date Extension

EPA is approving the District of

Columbia’s request for an attainment

date extension from November 15, 1999

to November 15, 2005, for the

Washington area.

B. State of Maryland

1. Post-1996 Plan

EPA is approving the State of

Maryland’s post-1996 (ROP) plan SIP

revision for the Washington area which

was submitted on December 24, 1997,

and supplemented on May 20, 1999,

and the transportation control measures

in Appendix H of the May 20, 1999

submittal.

2. Attainment Demonstration

EPA is approving the State of

Maryland’s attainment demonstration

SIP revision for the Washington area

which was submitted on April 29, 1998

and supplemented on August 17, 1998

and February 14, 2000, and only section

9.1.1.2 of the March 31, 2000 SIP

supplement dealing with a commitment

to revise the 2005 attainment motor

vehicle emissions budgets within oneyear of the EPA’s release of the

MOBILE6 model.

3. Attainment Date Extension

EPA is approving the State of

Maryland’s request for an attainment

date extension from November 15, 1999

to November 15, 2005, for the

Washington area.

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 631

C. Commonwealth of Virginia

1. Post -1996 Plan

EPA is approving the Commonwealth

of Virginia’s post-1996 (ROP) plan SIP

revision for the Washington area which

was submitted on December 19, 1997,

and supplemented on May 25, 1999,

and the transportation control measures

in Appendix H of the May 25, 1999

submittal.

2. Attainment Demonstration

EPA is approving the Commonwealth

of Virginia’s attainment demonstration

SIP revision for the Washington area

which was submitted on April 29, 1998

and supplemented on August 18, 1998,

and February 9, 2000, and only section

9.1.1.2 of the March 31, 2000 SIP

supplement dealing with a commitment

to revise the 2005 attainment motor

vehicle emissions budgets within oneyear of the EPA’s release of the

MOBILE6 model.

3. Attainment Date Extension

EPA is approving the Commonwealth

of Virginia’s request for an attainment

date extension for the Washington area

from November 15, 1999 to November

15, 2005.

IV. Administrative Requirements

A. General Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a ‘‘significant regulatory action’’ and

therefore is not subject to review by the

Office of Management and Budget. This

action merely approves state law as

meeting federal requirements and

imposes no additional requirements

beyond those imposed by state law.

Accordingly, the Administrator certifies

that this rule will not have a significant

economic impact on a substantial

number of small entities under the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.). Because this rule approves preexisting requirements under state law

and does not impose any additional

enforceable duty beyond that required

by state law, it does 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). For

the same reason, this rule also does not

significantly or uniquely affect the

communities of tribal governments, as

specified by Executive Order 13084 (63

FR 27655, May 10, 1998). This rule 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 (64 FR 43255,

August 10, 1999), because it merely

approves a state rule implementing a

federal standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act. This rule also is not

subject to Executive Order 13045 (62 FR

19885, April 23, 1997), because it is not

economically significant.

In reviewing SIP submissions, EPA’s

role is to approve state choices,

provided that they meet the criteria of

the Clean Air Act. In this context, in the

absence of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the Clean Air Act. Thus, the

requirements of section 12(d) of the

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply. As required by

section 3 of Executive Order 12988 (61

FR 4729, February 7, 1996), in issuing

this rule, EPA has taken the necessary

steps to eliminate drafting errors and

ambiguity, minimize potential litigation,

and provide a clear legal standard for

affected conduct. EPA has complied

with Executive Order 12630 (53 FR

8859, March 15, 1988) by examining the

takings implications of the rule in

accordance with the ‘‘Attorney

General’s Supplemental Guidelines for

the Evaluation of Risk and Avoidance of

Unanticipated Takings’’ issued under

the executive order. This rule does not

impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

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

B. Submission to Congress and the

Comptroller General

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. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by March 5, 2001.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action to

approve the Post-1996 ROP plan, the

ozone attainment demonstration and the

attainment date extension SIP revisions

submitted by the District, Maryland and

Virginia may not be challenged later in

proceedings to enforce its requirements.

(See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Intergovernmental relations, Nitrogen

dioxide, Ozone, Reporting and

recordkeeping requirements.

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

Dated: December 15, 2000.

Thomas C. Voltaggio,

Acting Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

Subpart J–DC

2. Section 52.475 is added to read as

follows:

§ 52.475 Extensions.

The Administrator hereby approves a

request to extend the attainment date for

the national ambient air quality

standards for ozone to November 15,

2005 for the Metropolitan Washington,

DC ozone nonattainment area.

3. Section 52.476 is amended by

designating the existing text as

paragraph (a) and by adding paragraphs

(b) and (c) to read as follows:

§ 52.476 Control strategy and rate-ofprogress plan: ozone.

* * * * *

(b) EPA is approving the District of

Columbia’s post-1996 (ROP) plan SIP

revision for the Washington area which

was submitted on November 3, 1997,

and supplemented on May 25, 1999.

(c) EPA approves the revisions to the

State Implementation Plan submitted by

the District of Columbia Department of

632 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

Health on April 24, 1998, October 27,

1998, and February 16, 2000, and only

section 9.1.1.2 of the March 22, 2000

SIP supplement dealing with a

commitment to revise the 2005

attainment motor vehicle emissions

budgets within one-year of the EPA’s

release of the MOBILE6 model. The

revisions are for the purpose of

satisfying the attainment demonstration

requirements of section 182(c)(2)(A) of

the Clean Air Act for the Metropolitan

Washington, DC serious ozone

nonattainment area. The revision

establishes an attainment date of

November 15, 2005 for the Metropolitan

Washington, DC ozone nonattainment

area. This revision establishes motor

vehicle emissions budgets for 2005 of

101.4 tons per day of volatile organic

compounds (VOC) and 166.7 tons per

day of nitrogen oxides (NOX) to be used

in transportation conformity in the

Metropolitan Washington, DC. Serious

ozone nonattainment area until revised

budgets based upon the MOBILE6

model are submitted and found

adequate. In the revision, the District of

Columbia commits to revise their VOC

and NOX transportation conformity

budgets within one year of the release

of the MOBILE6 model. The District of

Columbia also commits to conduct a

mid-course review to assess modeling

and monitoring progress achieved

towards the goal of attainment by 2007,

and submit the results to EPA by

December 31, 2003.

Subpart V–MD

4. Section 52.1078 is added to read as

follows:

§ 52.1078 Extensions.

The Administrator hearby approves a

request to extend the attainment date for

the national ambient air quality

standards for ozone to November 15,

2005 for the Metropolitan Washington,

DC ozone nonattainment area.

5. Section 52.1076 is amended by

adding paragraphs (d) and (g) to read as

follows:

§ 52.1076 Control strategy and rate-ofprogress plan: ozone.

* * * * *

(d) EPA is approving the State of

Maryland’s post-1996 (ROP) plan SIP

revision for the Washington area which

was submitted on December 24, 1997,

and supplemented on May 20, 1999,

and the transportation control measures

in Appendix H of the May 20, 1999

submittal.

* * * * *

(g) EPA approves the revisions to the

State Implementation Plan submitted by

the Maryland Department of the

Environment on April 29, 1998, August

17, 1998, and February 14, 2000, and

only section 9.1.1.2 of the March 31,

2000 SIP supplement dealing with a

commitment to revise the 2005

attainment motor vehicle emissions

budgets within one-year of the EPA’s

release of the MOBILE6 model. The

revisions are for the purpose of

satisfying the attainment demonstration

requirements of section 182(c)(2)(A) of

the Clean Air Act for the Metropolitan

Washington, DC serious ozone

nonattainment area. The revision

establishes an attainment date of

November 15, 2005 for the Metropolitan

Washington, DC ozone nonattainment

area. This revision establishes motor

vehicle emissions budgets for 2005 of

101.4 tons per day of volatile organic

compounds (VOC) and 166.7 tons per

day of nitrogen oxides (NOX) to be used

in transportation conformity in the

Metropolitan Washington, DC. Serious

ozone nonattainment area until revised

budgets based upon the MOBILE6

model are submitted and found

adequate. In the revision, Maryland

commits to revise their VOC and NOX

transportation conformity budgets

within one year of the release of the

MOBILE6 model. Maryland also

commits to conduct a mid-course

review to assess modeling and

monitoring progress achieved towards

the goal of attainment by 2007, and

submit the results to EPA by December

31, 2003.

Subpart VV–VA

6. Section 52.2429 is added to read as

follows:

§ 52.2429 Extensions.

The Administrator hearby approves a

request to extend the attainment date for

the national ambient air quality

standards for ozone to November 15,

2005 for the Metropolitan Washington,

DC ozone nonattainment area.

7. Section 52.2428 is amended by

adding paragraphs (c) and (d) to read as

follows:

§ 52.2428 Control strategy and rate-ofprogress plans: ozone.

* * * * *

(c) EPA is approving the

Commonwealth of Virginia’s post-1996

(ROP) plan SIP revision for the

Washington area which was submitted

on December 19, 1997, and

supplemented on May 25, 1999, and the

transportation control measures in

Appendix H of the May 25, 1999

submittal.

(d) EPA approves the revisions to the

State Implementation Plan submitted by

the Virginia Department of

Environmental Quality on April 29,

1998, August 18, 1998, and February 9,

2000, and only section 9.1.1.2 of the

March 31, 2000 SIP supplement dealing

with a commitment to revise the 2005

attainment motor vehicle emissions

budgets within one-year of the EPA’s

release of the MOBILE6 model. The

revisions are for the purpose of

satisfying the attainment demonstration

requirements of section 182(c)(2)(A) of

the Clean Air Act for the Metropolitan

Washington, DC serious ozone

nonattainment area. The revision

establishes an attainment date of

November 15, 2005 for the Metropolitan

Washington, DC ozone nonattainment

area. This revision establishes motor

vehicle emissions budgets for 2005 of

101.4 tons per day of volatile organic

compounds (VOC) and 166.7 tons per

day of nitrogen oxides (NOX) to be used

in transportation conformity in the

Metropolitan Washington, DC. Serious

ozone nonattainment area until revised

budgets based upon the MOBILE6

model are submitted and found

adequate. In the revision, Virginia

commits to revise their VOC and NOX

transportation conformity budgets

within one year of the release of the

MOBILE6 model. Virginia also commits

to conduct a mid-course review to

assess modeling and monitoring

progress achieved towards the goal of

attainment by 2007, and submit the

results to EPA by December 31, 2003.

[FR Doc. 01–61 Filed 1–2–00; 8:45 am]

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