Wednesday,

January 3, 2001

Part VI

Environmental

Protection Agency

40 CFR Part 52

Approval and Promulgation of Air Quality

Implementation Plans; One-Hour Ozone

Attainment Demonstration and

Attainment Date Extension for the

Greater Connecticut Ozone Nonattainment

Area; Final Rule

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

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[CT056–7215b; FRL–6924–5]

Approval and Promulgation of Air

Quality Implementation Plans;

Connecticut; One-Hour Ozone

Attainment Demonstration and

Attainment Date Extension for the

Greater Connecticut Ozone

Nonattainment Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving a State

Implementation Plan (SIP) revision

submitted by the State of Connecticut.

This action approves Connecticut’s OneHour Ozone Attainment Demonstration

for the Greater Connecticut serious

nonattainment area and extends the

attainment date for this area until

November 15, 2007. This approval of

the attainment demonstration SIP

establishes the 2007 volatile organic

compound (VOC) and nitrogen oxide

(NOX) motor vehicle emissions budgets

for the Greater Connecticut serious

ozone nonattainment area for use in

transportation conformity. A notice of

proposed rule making was published on

this action on December 16, 1999 (64 FR

70332). EPA received comments on that

proposal as well as other supplemental

proposals for this action. In this action,

EPA responds to those comments.

EFFECTIVE DATE: This rule becomes

effective on February 2, 2001.

ADDRESSES: Copies of the documents

relevant to this action are available for

public inspection by appointment

weekdays from 9 a.m. to 4 p.m. at the

Office of Ecosystem Protection, U.S.

Environmental Protection Agency,

EPA—New England, One Congress

Street, 11th floor, Boston, MA; Air and

Radiation Docket and Information

Center, U.S. Environmental Protection

Agency, Room M–1500, 401 M Street

(Mail Code 6102), S.W., Washington,

DC; and the Bureau of Air Management,

Department of Environmental

Protection, State Office Building, 79 Elm

Street, Hartford, CT 06106–1630.

FOR FURTHER INFORMATION CONTACT:

Richard P. Burkhart, (617) 918–1664.

SUPPLEMENTARY INFORMATION: This

supplementary information section is

organized as follows:

I. What Connecticut SIP revision is the topic

of this action?

II. What previous action has been taken on

this SIP revision?

III. What are the requirements for full

approval of the attainment

demonstration?

IV. How did Connecticut fulfill these

requirements for full approval?

V. What SIP elements did EPA need to take

action on before full approval of the

attainment demonstration could be

granted?

VI. What comments were received on the

proposed approvals and how has EPA

responded to those?

VII. EPA action

VIII. Administrative requirements

I. What Connecticut SIP Revision is the

Topic of This Action?

An attainment demonstration SIP was

submitted on September 16, 1998 by the

Connecticut Department of

Environmental Protection for the

Greater Connecticut one-hour serious

ozone nonattainment area. The SIP

revision was subject to public notice

and comment by the State and a hearing

was held in May 1998. Connecticut also

requested an attainment date extension

for this area in its September 1998

submittal. The State requested a new

attainment date of November 15, 2007.

On February 8, 2000, Connecticut DEP

submitted an addendum to the ozone

attainment demonstration for the

Greater Connecticut nonattainment area.

The addendum was submitted in

response to requirements EPA

articulated as necessary for full approval

in its proposed rulemaking on the

September 16, 1998 attainment

demonstration SIP.

II. What Previous Action Has Been

Taken on This SIP Revision?

EPA published a Notice of Proposed

Rulemaking (NPR) for the State of

Connecticut’s Greater Connecticut area’s

ozone attainment demonstration on

December 16, 1999 (64 FR 70332). In

that action, EPA proposed to approve

the ozone attainment demonstration

submitted by the State, and proposed to

approve an attainment date extension

for the Greater Connecticut

nonattainment area to November 15,

2007. EPA also proposed, in the

alternative, to disapprove the attainment

demonstration if Connecticut did not

submit an adequate motor vehicle

emissions budget consistent with

attainment. Also, on December 16, 1999,

EPA proposed to approve and/or

conditionally approve or disapprove in

the alternative the attainment

demonstration SIPs for nine other areas

in the eastern United States (64 FR

70317).

On February 22, 2000 (65 FR 8703),

EPA published a notice of availability

announcing two guidance memoranda

relating to the ten one-hour ozone

attainment demonstrations (including

Greater Connecticut) 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 June 16, 2000 (65 FR 37778), EPA

notified the public that we had found

the 2007 VOC and NOX motor vehicle

emission budgets submitted by

Connecticut on February 8, 2000

adequate for conformity purposes. A

public comment period was held on

these budgets when they were posted at

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

currsips.htm. The public comment

period began on February 14, 2000, and

closed on March 20, 2000. No public

comments were received by EPA during

the public comment period offered by

EPA on the specific transportation

conformity budgets submitted by

Connecticut DEP on February 8, 2000.

EPA did, however, receive comments

that opposed EPA determining budgets

submitted by Connecticut adequate for

transportation conformity purposes

when we originally proposed approval

of the Greater Connecticut attainment

demonstration on December 16, 1999.

EPA responded to all of those comments

before determining the 2007 budgets

adequate. A copy of the response to

comments is available at http://

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

resp ct.pdf.

On July 28, 2000 (65 FR 46383), a

notice of supplemental proposed

rulemaking was published relating to

the ten one-hour ozone attainment

demonstrations (including Greater

Connecticut) proposed for approval or

conditional approval on December 16,

1999. In the supplemental notice, EPA

clarified and expanded on two issues

relating to the motor vehicle emissions

budgets in the attainment demonstration

SIPs. In addition, EPA reopened the

comment period to take comment on

those two issues and to allow comment

on any additional materials that were

placed in the dockets for the ten

proposed actions close to or after the

initial comment period closed on

February 14, 2000.

On October 16, 2000 (65 FR 61134),

another notice of supplemental

proposed rulemaking was published to

provide further support for the proposed

attainment demonstration published on

December 16, 1999 for the four serious

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 635

ozone nonattainment areas (which

includes Greater Connecticut). In this

supplemental 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. This analysis was

done to determine if additional

reasonably available control measures

(RACM) are available after adoption of

Clean Air Act (CAA or Act) required

measures in the four serious ozone

nonattainment areas (i.e., Greater

Connecticut; Western Massachusetts;

Washington, D.C.; and Atlanta, Georgia).

As explained in the supplemental

notice, EPA performed this analysis in

response to comments that were

submitted on the proposals for these

areas’ one-hour ozone attainment

demonstrations. 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). Due

to a typographical error in the

November 2, 2000 notice, an additional

notice clarifying the close of the

comment period was published on

November 9, 2000 (65 FR 67319).

Comments received on all of the

proposed notices listed in this section

relevant to the Greater Connecticut

attainment demonstration and

attainment date extension are discussed

in section VI below.

III. What Are the Requirements for Full

Approval of the Attainment

Demonstration?

In the NPR for the Greater

Connecticut attainment demonstration

SIP published on December 16, 1999,

EPA proposed, in the alternative, to

disapprove the attainment

demonstration if Connecticut did not

submit an adequate motor vehicle

emissions budget consistent with

attainment. EPA also said it will require

Connecticut to incorporate the Tier 2/

Sulfur requirements into the attainment

demonstration in order to fully approve

the attainment demonstration. This was

based on the view that the Tier 2/Sulfur

program benefits were needed to

improve the state’s weight-of-evidence

analysis. EPA stated that it expected

Connecticut to revise and submit its

motor vehicle emissions budgets to

account for Tier 2 reductions before

final approval of the attainment

demonstration, and to commit to further

revise those motor vehicle emissions

budgets within one year of when EPA

issues the MOBILE6 model for

estimating mobile source emissions.

Lastly, EPA required Connecticut DEP

to amend the enforceable commitment it

submitted with its attainment

demonstration to submit a mid-course

review (MCR). EPA said that in order for

EPA to move forward to approve the

Greater Connecticut attainment

demonstration, Connecticut will have to

agree to perform the MCR immediately

following the 2003 ozone season and to

submit the results to EPA by December

31, 2003.

As discussed in section IV below,

Connecticut has met all of the above

requirements for full approval of its

attainment demonstration for the

Greater Connecticut area.

IV. How Did Connecticut Fulfill These

Requirements for Full Approval?

On February 8, 2000, Connecticut

DEP submitted an addendum to the

ozone attainment demonstrations for the

Greater Connecticut serious

nonattainment area and for Connecticut

portion of the New York-Northern New

Jersey-Long Island severe ozone

nonattainment area. The addendum was

submitted in response to requirements

EPA articulated as necessary for full

approval in its proposed rulemakings on

the two attainment demonstration SIPs.

A public hearing on the addendum was

held by the Connecticut DEP in January

2000. This addendum to the SIP, as it

pertains to the Greater Connecticut

serious nonattainment area, is being

approved in this final action. The

addendum to the SIP, as it pertains to

the Connecticut portion of the New

York-Northern New Jersey-Long Island

severe ozone nonattainment area, will

be dealt with in a future rulemaking

action.

The February 8, 2000 addendum

contained 2007 VOC and NOX motor

vehicle emissions budgets for the

Greater Connecticut serious

nonattainment area. The motor vehicle

emissions budgets were calculated to be

consistent with requirements

Connecticut is relying on in its

attainment demonstration for the

Greater Connecticut area. Connecticut

also incorporated credit for the Tier 2/

sulfur program in calculating the

emissions budgets consistent with the

issued November 8, 1999 memorandum

entitled ‘‘1-Hour Ozone Attainment

Demonstrations and Tier 2/Sulfur

Rulemaking’’ from Lydia Wegman,

Office of Air Quality Planning and

Standards and Merrylin Zaw-Mon,

Office of Mobile Sources. The motor

vehicle emissions budgets for 2007 for

VOC and NOX submitted by Connecticut

are shown in Table 1.

TABLE 1—2007 TRANSPORTATION

CONFORMITY BUDGETS

One-hour ozone nonattainment areaVOC

(tons/day)

NOX

(tons/day)

Greater Connecticut 30.0 79.6

EPA sent a letter to Connecticut DEP

on May 31, 2000 finding these budgets

adequate for use in transportation

conformity determinations. Our

adequacy determination was done

subsequent to EPA offering an

opportunity for public comment on the

Connecticut budgets and addressing all

relevant comments received. The public

comment period began on these budgets

when they were posted on EPA’s web

site at www.epa.gov/oms/transp/

conform/currsips.htm. The public

comment period began on February 14,

2000, and closed on March 20, 2000,

and no public comments were received

by EPA during this period. As explained

previously, EPA did receive comments

that opposed EPA determining adequate

the budgets submitted by Connecticut

for transportation conformity purposes

during the original comment period on

the proposed approval of the Greater

Connecticut attainment demonstration.

EPA responded to all of those comments

before determining the 2007 budgets

adequate. A copy of the response to

comments is available at http://

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

resp ct.pdf.

On June 16, 2000 (65 FR 37778), EPA

notified the public that we had found

the 2007 VOC and NOX motor vehicle

emission budgets submitted by

Connecticut on February 8, 2000

adequate for conformity purposes.

These budgets became effective on July

3, 2000. In today’s action, EPA is

approving these budgets into the SIP.

The budgets that we are approving

into the SIP in today’s action should be

used for transportation conformity

purposes until revised motor vehicle

emissions budgets are submitted and

EPA has found them adequate. The

budgets we are approving today as part

of the attainment demonstration will

apply for conformity purposes until

there are new, adequate budgets

consistent with the commitments to

revise the budgets. Connecticut has

committed in its February 8, 2000

addendum to the attainment

demonstration to revise their VOC and

NOX transportation conformity budgets

within one year of the release of

MOBILE6. These revised budgets will

apply for conformity purposes as soon

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

as we find them adequate. EPA is

approving that commitment in today’s

action. If the State fails to meet its

commitment to submit revised budgets

using MOBILE6, EPA could make a

finding of failure to implement the SIP,

which would start a sanctions clock

under Clean Air Act section 179. 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

MOBILE6 vs. MOBILE5 before it

reallocates any apparent motor vehicle

emission reductions resulting from the

use of MOBILE6.

The Addendum also includes

Connecticut’s analysis of the future air

quality design value for the Greater

Connecticut serious nonattainment area,

which is identical to the EPA analysis

found in the Technical Support

Document to the notice of proposed

rulemaking published December 16,

1999. This analysis supports the

contention outlined in the notice of

proposed rulemaking that additional

emission controls beyond the benefits of

the Tier 2/Sulfur program are not

expected to be needed for the Greater

Connecticut area to demonstrate

attainment.

Lastly, the February 8, 2000

addendum contains a commitment by

Connecticut to conduct a mid-course

review to assess modeling and

monitoring progress achieved towards

the goal of attainment by 2007.

Connecticut has committed to perform

the review and submit the results to

EPA by December 31, 2003. EPA is

approving that commitment in today’s

action.

V. 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 Connecticut

attainment demonstration SIP published

on December 16, 1999, EPA stated that

it intended to publish final rulemaking

on VOC RACT pursuant to sections

182(b)(2)(A) and (C) of Clean Air Act,

the 9% rate of progress plan through

1999, the State opt-in to the National

Low Emission Vehicle program, and the

NOX SIP call SIP for the Greater

Connecticut area either before or at the

same time as publication of final

approval of the attainment

demonstration. These measures are

needed to fully approve the attainment

demonstration and the attainment date

extension request.

EPA approved the Connecticut VOC

RACT rules pursuant to sections

182(b)(2)(A) and (C) of Clean Air Act on

October 19, 2000 (65 FR 62620). EPA

approved the Connecticut area’s 9% rate

of progress plan on October 19, 2000 (65

FR 62624). EPA approved Connecticut’s

opt in the National Low Emission

Vehicle (NLEV) program on March 9,

2000 (65 FR 12476). Lastly, the final

approval of Connecticut’s NOX SIP call

SIP was granted by EPA Region I’s

Regional Administrator on October 20,

2000. As of December 15, 2000, this

approval was awaiting publication. The

approved SIP Call rule will be

promulgated at 40 CFR 52.370(c)(86).

Additionally, subsequent to the

December 16, 1999 proposal, EPA

granted full approval to two other SIP

elements in Connecticut. On March 9,

2000 (65 FR 12474), EPA approved

Connecticut’s Clean Fuel Fleets

Substitute Plan as meeting the

requirements of section 182(c)(4) of the

Clean Air Act. On October 27, 2000 (65

FR 64357), EPA approved the

Connecticut Enhanced Inspection and

Maintenance program SIP converting it

from a limited approval under the Clean

Air Act to a full approval.

VI. 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 70332) for the

Greater Connecticut area’s ozone

attainment demonstration. Comments

were received from the Conservation

Law Foundation; Robert E. Yuhnke

(Attorney for Environmental Defense

and Natural Resources Defense

Council); the Midwest Ozone Group;

and ELM Packaging Company. The

following discussion summarizes and

responds to the comments received on

the December 16, 1999 proposal. For

convenience, the comments have been

grouped into categories.

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.

Comments were received from

Environmental Defense. The following

discussion also summarizes and

responds to these comments.

Lastly, 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 Greater Connecticut

nonattainment area were received from

the Midwest Ozone Group. The

following discussion summarizes and

responds to the these comments as well.

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

FR12221 (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

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 637

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

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

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

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.

v. 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

D.C. 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 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 v. 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)(1), 182(c)(2)(A), and 172(c)(1),

downwind areas must provide for

attainment of the NAAQS, and EPA

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 639

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 CAA 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

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 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 CAA

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’s 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), provides 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’s decision to provide longer

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

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 petitions 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 an say that they are in

compliance in terms of their emissions,

that their failure to meet the overall

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’s 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

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 641

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

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

D.C. 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

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

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

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,

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 643

1Because 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.

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

FR at 57403. ‘‘Thus, once a state 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, 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 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, D.C. 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

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

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 FR 60001, 60003 (Nov.

6, 1997). 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

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

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 645

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 FR 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

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

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

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 VI.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 section

VI.A. and section VI.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 VI.L

for each of the attainment date

extension areas contained in Responses

to Comments.

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 diesel 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

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 VI.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. This 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 VI.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.

Response 5: EPA disagrees with the

commenter’s contention that the States

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 647

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. 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.

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

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 D.C. 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 1999. 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

Response 11 below.

Comment 10: This is not a situation

where the States have adopted all

available measures and still show

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

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 D.C. 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 shown that

the attainment date extension for

Connecticut is justified due to transport.

Response 11: 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 12: 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 12: 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 13: 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 13: 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 1: 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 1: 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,’’

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 649

2The August 12, 1996 version of ‘‘Appendix W

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

the rule in effect for these attainment

dmeonstrations. EPA is proposing updates to this

rule which will not be in effect until the new rule

is promulgated.

3 Guidance on the Use Of Modeled Results to

Demonstrate Attainment of the Ozone NAAQS.

EPA–454/B–95–007, June 1996.

4 Ibid.

5 ‘‘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. 6A 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 thetotal emissions

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, 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.

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).’’2 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

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).3

In 1996, EPA issued guidance 4 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 5 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.6 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

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

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 or 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

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.

A commenter states that, 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

than 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

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 651

7Observing that for the attainment demonstration

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

modeled ozone values by 19% to account for model

overproduction, a commenter criticized this

technique as lacking technical justification. EPA

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.

8http://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.

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, D.C.

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.7

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 1895.8 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 can not 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

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

9 Guidance on the Use of Modeled Results to

Demonstrate Attainment of the Ozone NAAQS.

EPA–454/B–95–007, June 1996.

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.

Comment 2: A commenter states that

even with the upwind NOX reductions

anticipated by EPA’s proposed NOX SIP

Call, neither photochemical grid

modeling conducted by CT and other

New England States, nor the so-called

‘‘weight-of-evidence’’ approach

demonstrates that CT will achieve

attainment by 1999, by 2007 or by any

other date. The commenter also states

that the ‘‘weight of evidence/design

value rollback’’ approach is inconsistent

with section 182(c)(2)(A) of the CAA

and with EPA guidance and is

concerned that the analysis relies on use

of air quality design values that are

heavily dependent on meteorology and

can easily increase.

Response 2: The Connecticut 1-hour

ozone attainment demonstration is

based on photochemical grid modeling

and weight of evidence analyses as

recommended in the guidance 9.

Comments on the use of this approach

and its consistency with section

182(c)(2)(A) of the CAA are discussed in

response 1 above of section VI.B. This

guidance allows the use of a WOE

analysis to support a modeled control

strategy that does not predict

concentrations that are at or below the

1-hour ozone NAAQS compliance level

of 124 ppb.

EPA agrees that meteorology of any

given summer can dictate the ozone

design value, because of the unique

relationship between elevated ambient

ground-level ozone and hot, sunny

weather, and in Connecticut, between

hot, sunny weather and ozone

transported into Connecticut at the

surface by southwesterly winds from the

major metropolitan areas of New York

City, Philadelphia, Baltimore and

Washington, plus winds aloft from the

NOX laden Midwest. June and July of

1999 were particularly hot for

Connecticut and the ambient ozone

levels reflect this. In 1999 the ozone

design value for Greater Connecticut,

based on 1997–1999 data, is 147 ppb,

which reverses a long-term decline in

ozone levels dating back to the early

1980’s and demonstrates a somewhat

extreme increase from 139 ppb in 1998.

However, this does not mean attainment

predictions of the earlier ‘‘weight of

evidence’’ contained in the submittal

are reversed. High monitoring readings

may have occurred for many reasons

including, fluctuations due to changes

in meteorology or lack of additional

emission reductions in more recent

years.

The 1999 monitor readings do not

reflect several control programs relied

on for attainment, including both local

measures and the regional NOX SIP call

measures which are scheduled for

implementation in the future. Therefore

assumptions about future air quality

based solely on 1999 data are not valid.

However, analysis of recent air quality

trends predicts that the peak ozone

values will be less than 125 ppb and the

number of exceedances of the air quality

standard will be less than one per year

by the year 2005. Since a number of

emission control programs, such as the

NOX SIP Call, and Tier 2 car standards

are still to be implemented and others,

like the OTC NOX agreement and

vehicle inspection and maintenance

programs, are still being implemented

(i.e., not yet achieving full emissions

reduction benefit), emissions of ozone

precursors will continue to decrease

from now through 2007, producing

attainment of the one-hour ozone

standard predicted by 2007.

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 this determination based on all of

the information presented by the State

and available to EPA. This includes

model results for the local control

measures and the regional NOX SIP call

along with additional analyses of air

quality data and estimates of future

design values. Therefore, EPA believes

Connecticut will attain the standard, as

expeditiously as practicable, through

implementation of adopted local

controls and regional NOX reductions.

C. Reliance on NOX SIP Call and Tier

II 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

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.

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 653

10This response to comment document will not

address Atlanta; that will be addressed in the future

when EPA takes final rulemaking action on the

Atlanta SIP.

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. As of

December 15, 2000, this approval was

awaiting publication. 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);

Washington, D.C.-Virginia-Maryland;

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

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.

654 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).

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 FR

2674, January 18, 2000) to reach

attainment. In the NOX SIP call, 63 FR

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 this

response to comments document. See

section VI.A. 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 the Greater

Connecticut area.

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.

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 Greater Connecticut area will not

advance the attainment date, 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 Greater Connecticut for its 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

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 655

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

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

implementation 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

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

12Transportation Control Measures: State

Implementation Plan Guidance, US EPA 1992;

Transportation Control Measure Information

Documents, US EPA 1992; Costs and Effectiveness

of Transportation Control Measures: A Review and

Analysis of the Literature, National Association of

Regional Councils 1994.

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 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 VI.A. EPA

has therein justified the position that

areas affected by transport may need

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. Issues concerned with

timing of implementation of additional

measures are also discussed above.

The regulation Connecticut adopted

to meet EPA’s NOX SIP call requires

compliance with covered emission

reductions in 2003, which EPA

considers as expeditiously as

practicable for those sources.

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

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 657

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

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 × 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 area, and therefore are not

considered RACM for purposes of the

attainment SIPs for that area.

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.

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

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: EPA did not provide

sufficient notice and time to permit

adequate comment.

Response 7: 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 8: EPA is trying to

circumvent obligations under 2 Consent

Decrees (MOG v. EPA and NRDC v.

Browner).

Response 8: 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 D.C. 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 Dec. 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 Administrator

signed a final rulemaking action

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 9: Since EPA found that

MA and CT failed to conduct an

adequate RACM analysis, EPA must

disapprove the SIPs and propose a FIP.

Response 9: 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

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.

Response: EPA’s adequacy process for

the Greater Connecticut area has been

completed, and we have found the

motor vehicle emissions budgets in the

SIPs to be adequate. We have already

responded to any comments related to

adequacy when we issued our adequacy

finding, and therefore we are not listing

the individual comments or responding

to them here. Our finding of adequacy

for the Greater Connecticut

transportation conformity budgets can

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

transp/conform/ct-resp.wpd. A copy of

the response to comments is available at

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

conform/resp_ct.pdf.

H. Rate of Progress 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.

Response: The Connecticut SIP we are

taking final action on is based on the

most recent vehicle registration data

available at the time the SIP was

submitted. The Connecticut SIP is based

on vehicle registration data from 1996,

which is the most recent data available

at the time the SIP was submitted. The

SIP also contains vehicle fleet

characteristics that are in the most

recent periodic inventory update, which

was submitted on March 13, 2000. EPA

requires the most recent available data

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 659

13 ‘‘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.

14 ‘‘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.

15 ‘‘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.

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.

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.

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 as 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 13 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

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,14 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. Thus, most

previously unregulated areas will need

to make up the approximately 1%

difference between the 37% estimate of

reductions assumed by States, following

EPA guidance based on the proposal,

and the 36% reduction actually

achieved by the final rule for previously

unregulated areas.

Consumer Products Rule: Consistent

with a June 22, 1995 EPA guidance,15

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,

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

16EPA policy provides that contingency measures

should achieve a 3 percent reduction in emissions

in the year following an EPA determination of a

failure to attain or to meet a progress requirement.

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 SIP for the Greater

Connecticut designated ozone

nonattainment area does 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.

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 §§ 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 VI.A.

The EPA has, however, examined the

ROP and attainment SIPs for Greater

Connecticut nonattainment area. The

following summarizes the EPA’s

findings for the Greater Connecticut

area.

The Greater Connecticut post-1996

ROP plan, contains contingency

measures for purposes of meeting

missed ROP milestones. The EPA

approved this plan on October 19, 2000.

65 FR 62624. The attainment

demonstration SIP for this area does not

specify any specific measures as

contingency measures. After 2007, the

attainment date that EPA is approving

for the area, there are a number of EPA

measures that will achieve significant

emission reductions that the SIP does

not rely on or take credit for. These

include continuing reductions from

EPA’s Tier 2 tailpipe standards and

EPA’s standards for a variety of nonroad sources. The EPA has analyzed the

Greater Connecticut SIP and has

estimated that the contingency

obligation would be approximately 10.5

tons per summer day (tpsd) in ozone

precursor emission reductions.

Reductions from the federal non-road

and the Tier 2 tailpipe standards during

the time frame contingency measures

would need to be implemented for

failure to attain (i.e., by May 2009) 16 are

estimated to be at least 12.1 tpsd, which

would cover the contingency obligation

for this area. 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 state failed to attain,

EPA believes that existing federally

enforceable measures would provide the

necessary substantive relief.

M. Motor Vehicle Emission Budgets and

MOBILE6

Comment 1: In their August 28, 2000

letter, Environmental Defense (ED)

generally supports a policy of requiring

motor vehicle emissions budgets to be

recalculated when revised MOBILE

models are released.

Response 1: The Greater Connecticut

attainment demonstration, which relies

on Tier 2 emission reduction credit,

contains a commitment to revise the

motor vehicle emissions budgets after

MOBILE6 is released.

Comment 2: 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 2: 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 3: 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 3: EPA agrees. The motor

vehicle emissions budgets in the Greater

Connecticut attainment demonstration

reflect the motor vehicle control

measures in the attainment

demonstration.

Comment 4: 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 4: EPA will not approve

SIPs without motor vehicle emissions

budgets that are explicitly quantified for

conformity purposes. The Greater

Connecticut attainment demonstration

contains explicitly quantified motor

vehicle emissions budgets which EPA

has found adequate (65 FR 37778).

Comment 5: 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 5: EPA agrees that 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 6: If the budgets

recalculated using MOBILE6 are larger

than the MOBILE5 budgets, then

attainment should be demonstrated

again.

Response 6: As EPA proposed in its

December 16, 1999 notices, we will

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 661

work with States on a case-by-case basis

if the new emissions estimates raise

issues about the sufficiency of the

attainment demonstration.

Comment 7: 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 7: 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

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.

N. MOBILE6

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.

Comment 3: 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 3: 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.

O. NOX Emissions Budget

Comment: Since Connecticut and

Massachusetts are significant

contributors to other States’ ozone

nonattainment, EPA should require

Connecticut and Massachusetts to make

necessary reductions to attain the ozone

standard within their States and

neighboring States. The commenter

objected to allowing Connecticut to

increase its NOX emissions budget.

Response: The states of Connecticut,

Massachusetts and Rhode Island all

submitted their SIPs in response to the

NOX SIP call in late 1999, and EPA

proposed approval of them all on July

12, 2000 (at 65 FR 42900, 65 FR 42907,

and 65 FR 42913 for CT, MA and RI,

respectively). No public comments were

received on those proposals. On October

20, 2000, final approval of Connecticut,

Massachusetts and Rhode Island NOX

SIP call SIPs was granted by EPA Region

I’s Regional Administrator. Approval of

the SIPs will be codified at 40 CFR

52.370(c)(86) for Connecticut, 40 CFR

52.1120(c)(124) for Massachusetts, and

Table C of 40 CFR 52.2070 for Rhode

Island. In our final approval, we said

that we have determined the SIP

revisions for these three states meet the

air quality objectives of the NOX SIP call

requirements EPA has published to

date. Thus, we believe that Connecticut

and Massachusetts have already

adopted adequate emission control

strategies to address 1-hour ozone

transport for downwind areas.

Furthermore, EPA has previously

determined each of the 1-hour ozone

nonattainment areas in eastern New

England (i.e., Providence, Rhode Island;

Boston-Lawrence-Worcester,

Massachusetts-New Hampshire;

Portsmouth-Dover-Rochester, New

Hampshire; Manchester, New

Hampshire; Cheshire County, New

Hampshire; Portland, Maine; LewistonAuburn, Maine, and Knox and Lincoln

Counties, Maine) to have air quality

meeting the 1-hour ozone standard. (See

final actions published on June 5, 1998

(63 FR 31014), and June 9, 1999 (64 FR

30911).) Based on final data for some

areas and preliminary data for others,

EPA expects each of these areas to

continue to meet the 1-hour ozone

standard for the years 1998 through

2000.

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

Furthermore, in February 1999, CT,

MA, RI, and EPA signed a memorandum

of understanding (i.e., ‘‘the Three State

MOU’’) agreeing to redistribute the EGU

portions of the three states’ budgets, as

well as the compliance supplement pool

allocations, amongst themselves. Under

the MOU, the combined 2007 controlled

emission level and compliance

supplement pool did not change for the

three states, only the individual state

EGU allocations and supplement pools

were redistributed to provide additional

flexibility among these three states. EPA

supports this concept because such a

redistribution is no different than the

effects of trading.

When EPA reviewed whether each

state was meeting the objectives of the

NOX SIP call, we considered the

adopted 2007 emission budgets and

adopted NOX reducing measures in CT,

MA and RI together and found them as

meeting the air quality objectives of the

NOX SIP Call. The issue of whether the

redistribution was appropriate was

considered and decided during the

rulemaking approving the NOX SIPs.

P. Lack of Fully Approved Rules

Comment: Connecticut only has

conditional approval of VOC RACT

rules for VOC for non-CTG categories,

and Connecticut does not have fully

approved post-1996 ROP plans.

Response: That is no longer true. EPA

fully approved the Connecticut VOC

RACT rules pursuant to sections

182(b)(2)(A) and (C) of Clean Air Act on

October 19, 2000 (65 FR 62620). EPA

fully approved the 9 percent rate of

progress plans for both of Connecticut’s

ozone nonattainment areas on October

19, 2000 (65 FR 62624).

Other information and rationale for

EPA’s action are explained in the NPR

and will not be restated here.

Final Action: As described above,

EPA does not believe any of the

comments received on the proposals

published for the attainment

demonstration and attainment date

extension for the Greater Connecticut

area change the basis for our proposed

approval. Thus, EPA is approving the

ground-level one-hour ozone attainment

demonstration SIP for the Greater

Connecticut area. EPA is also approving

the attainment date extension for this

area until November 15, 2007. This

revision also approves the 2007 volatile

organic compound (VOC) and nitrogen

oxide (NOX) motor vehicle emissions

budgets for the Greater Connecticut

serious ozone nonattainment area for

use in transportation conformity. Lastly,

EPA is approving the commitment made

by Connecticut to revise their VOC and

NOX transportation conformity budgets

within one year of the release of

MOBILE6, and the commitment 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.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any State

implementation plan. Each request for

revision to the State implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

III. Administrative 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.).

The Congressional Review Act, 5

U.S.C. section 801 et seq., as added by

the Small Business Regulatory

Enforcement Fairness Act of 1996,

generally provides that before a rule

may take effect, the agency

promulgating the rule must submit a

rule report, which includes a copy of

the rule, to each House of the Congress

and to the Comptroller General of the

United States. EPA will submit a report

containing this rule and other required

information to the U.S. Senate, the U.S.

House of Representatives, and the

Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

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

defined by 5 U.S.C. section 804(2).

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 may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 663

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental

relations, Nitrogen dioxide, Ozone,

Particulate matter, Reporting and

recordkeeping requirements, Sulfur

oxides.

Dated: December 15, 2000.

Mindy S. Lubber,

Regional Administrator, EPA-New England.

Part 52 of chapter I, title 40 of the

Code of Federal Regulations 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 H—Connecticut

2. Section 52.374 is amended by

revising the table to read as follows:

§ 52.374 Attainment dates for national

standards.

* * * * *

Air quality control region

Pollutant

SO2

PM10 NO2 CO O3

Primary Secondary

AQCR 41: Eastern Connecticut Intrastate (See 40 CFR

81.183) ......................................................................... (a) (b) (a) (a) (a) (d)

AQCR 42: Hartford-New Haven-Springfield Interstate

Area (See 40 CFR 81.26) ............................................

All portions except City of New Haven ..................... (a) (b) (a) (a) (a) (d)

City of New Haven .................................................... (a) (b) (c) (a) (a) (d)

AQCR 43: New Jersey-New York-Connecticut Interstate

Area (See 40 CFR 81.13) ............................................ (a) (a) (a) (a) (a) (d)

AQCR 44: Northwestern Connecticut Intrastate (See 40

CFR 81.184) ................................................................. (a) (b) (a) (a) (a) (d)

a. Air quality levels presently below primary standards or area is unclassifiable.

b. Air quality levels presently below secondary standards or area is unclassifiable.

c. December 31, 1996 (two 1-year extensions granted).

d. November 15, 2007.

3. Section 52.377 is amended by

designating the existing text as

paragraph (a) and by adding paragraph

(b) to read as follows:

§ 52.377 Control strategy: Ozone.

* * * * *

(b) Approval—Revisions to the State

Implementation Plan submitted by the

Connecticut Department of

Environmental Protection on September

16, 1998 and February 8, 2000. 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 Greater

Connecticut serious ozone

nonattainment area. The revision

establishes an attainment date of

November 15, 2007 for the Greater

Connecticut serious ozone

nonattainment area. This revision

establishes motor vehicle emissions

budgets for 2007 of 30.0 tons per day of

volatile organic compounds (VOC) and

79.6 tons per day of nitrogen oxides

(NOX) to be used in transportation

conformity in the Greater Connecticut

serious ozone nonattainment area, until

revised budgets pursuant to MOBILE6

are submitted and found adequate. In

the revision, Connecticut commits to

revise their VOC and NOX

transportation conformity budgets

within one year of the release of

MOBILE6. Connecticut 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. 01–62 Filed 1–2–01; 8:45 am]

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