# + 2

(,1 1/,1(

Citation: 66 Fed. Reg. 634 2001

Content downloaded/printed from HeinOnline (http://heinonline.org) Wed Jun 16 16:59:03 2010

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

### 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 ofAir 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 submittedby the State ofConnecticut. 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. Anotice 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: Thisrule becomes effective on February 2, 2001. ADDRESSES: Copies ofthe documents relevant to this action are available for public inspection by appointment weekdays from 9 a.m. to 4 p.m. at the Office ofEcosystem 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 ofAir Management, Department ofEnvironmental 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 sectionis organized asfollows:
I.What Connecticut SIPrevision isthe topic ofthis action? II.What previous action hasbeen taken on this SIPrevision? III. What aretherequirements for full approval ofthe attainment demonstration? IV. How did Connecticut fulfill these requirements forfull approval? V. What SIPelements didEPA need totake action onbefore full approval ofthe attainment demonstration could be granted? VI. What comments were received onthe proposed approvals and howhas EPA responded to those? VII. EPAaction VIII. Administrative requirements

I. What Connecticut SIPRevision is the Topic ofThis 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 commentby the State and ahearing

was held in May 1998. Connecticut also requested an attainment date extension for this area in its September 1998 submittal. The State requested anew attainment date ofNovember 15, 2007. OnFebruary 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. WhatPrevious Action HasBeen Taken on This SIPRevision?

EPA published a Notice ofProposed 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 submittedby the State, and proposed to approve an attainment date extension for the Greater Connecticut nonattainment area toNovember 15, 2007. EPA also proposed, in the alternative, to disapprove the attainment demonstration ifConnecticut 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).

OnFebruary 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.

OnJune 16, 2000 (65 FR 37778), EPA notified the public that we had found the 2007 VOC and NOx motor vehicle emission budgets submittedby Connecticut on February 8, 2000 adequate for conformity purposes. A public commentperiod was held on thesebudgets when they were posted at www.epa.gov/oms/transp/conform/ currsips.htm. The public comment period began onFebruary 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 submittedby Connecticut adequate for transportation conformity purposes when we originally proposed approval ofthe Greater Connecticut attainment demonstration on December 16, 1999. EPAresponded to all ofthose comments before determining the 2007budgets adequate. Acopy ofthe response to comments is available at http:// www.epa.gov/oms/transp/conform/ resp ct.pdf.

OnJuly 28, 2000 (65 FR 46383), a notice ofsupplemental proposed rulemaking was publishedrelating to the ten one-hour ozone attainment demonstrations (includingGreater Connecticut) proposed for approval or conditional approval on December 16, 1999. In the supplemental notice, EPA clarified and expanded ontwo issues relating to the motorvehicle emissions budgets in the attainment demonstration SIPs. In addition, EPAreopened the
comment period to take comment on those two issues andto allow comment

on any additional materials that were placed inthe dockets for the ten proposed actions close to or afterthe initial comment period closed on February 14, 2000.

On October 16, 2000 (65FR 61134), anothernotice ofsupplemental proposed rulemaking was publishedto provide further support for the proposed attainment demonstration published on December 16, 1999 for the four serious 

### 634

HeinOnline -- 66 Fed. Reg. 634 2001

### 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, EPAmade available an analysis it had performed to evaluate emission levels ofoxides of nitrogen (NOx)and volatile organic compounds (VOC) andtheir relationships tothe 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 ifadditional 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, EPAperformed this analysis in response to comments that were submitted onthe proposals for these areas' one-hour ozone attainment demonstrations. Originally, EPA established a commentperiod for this supplemental proposal ending on October 31, 2000. A notice extending the comment period onthe 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 ofthe
commentperiod was published on November 9, 2000 (65 FR 67319).

Comments received on all ofthe 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 Arethe Requirements forFull Approval ofthe 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 ifConnecticut did not submit an adequate motor vehicle emissions budget consistent with attainment. EPA also said itwill require Connecticut toincorporate the Tier 2/ Sulfur requirements into the attainment demonstration in order to fully approve the attainment demonstration. This was based onthe view that the Tier 2/Sulfur
program benefits were needed to improve the state's weight-of-evidence analysis. EPA stated that itexpected Connecticut torevise and submit its
motor vehicle emissions budgets to account for Tier 2reductions before final approval ofthe attainment demonstration, andto commit to further revise those motor vehicle emissions budgets within one year ofwhen 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 amid-course review (MCR). EPA said that in order for EPA tomove forward to approve the Greater Connecticut attainment demonstration, Connecticut will have to agree to perform the MCR immediately following the 2003 ozone season andto submitthe results toEPA byDecember 31, 2003.

As discussed in section IVbelow, Connecticut has met all ofthe above requirements for full approval ofits attainment demonstration for the Greater Connecticut area.
IV. How Did Connecticut Fulfill These Requirements forFull Approval?
OnFebruary 8, 2000, Connecticut DEP submitted an addendum tothe

ozone attainment demonstrations for the Greater Connecticut serious nonattainment area and for Connecticut portion ofthe 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 inJanuary 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 ofthe New York-Northern New Jersey-Long Island

severe ozone nonattainment area, will be dealtwith in a future rulemaking action.

The February 8, 2000 addendum contained 2007 VOC andNOx motor vehicle emissions budgets for the Greater Connecticut serious nonattainment area. The motor vehicle emissions budgets were calculated to be consistent with requirements Connecticut isrelying on in its attainment demonstration for the Greater Connecticut area. Connecticut alsoincorporated credit for the Tier 2/ sulfurprogram 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 ofAir Quality Planning and Standards andMerrylin Zaw-Mon, Office ofMobile Sources. The motor vehicle emissions budgets for 2007 for VOC andNOx submitted byConnecticut

are shownin Table 1.

TABLE 1-2007 TRANSPORTATION CONFORMITY BUDGETS
One-hour ozone non- VOC NOx

attainment area (tons/day) (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 onthe Connecticut budgets and addressing all relevant comments received. The public
comment period began on thesebudgets when they were posted on EPA's web site atwww.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 duringthis period. As explained previously, EPA did receive comments that opposed EPA determining adequate the budgets submittedby Connecticut for transportation conformity purposes during the original comment period on the proposed approval ofthe Greater Connecticut attainment demonstration. EPAresponded to all ofthose comments before determining the 2007budgets adequate. Acopy ofthe response to comments is available at http:// www.epa.gov/oms/transp/conform/ resp ct.pdf.

OnJune 16, 2000 (65 FR 37778), EPA notified the public that we had found the 2007 VOC and NOx motor vehicle emission budgets submittedby Connecticut on February 8, 2000 adequate for conformity purposes. Thesebudgets became effective on July 3, 2000. Intoday's action, EPA is approving these budgets into the SIP.

The budgets that we are approving into the SIP in today's action shouldbe usedfor transportation conformity
purposesuntil revised motor vehicle emissions budgets are submitted and EPAhas foundthem adequate. The budgets we are approving today as part ofthe attainment demonstration will apply for conformity purposes until there are new, adequate budgets consistent with the commitments to revise the budgets. Connecticut has committed inits February 8, 2000 addendum to the attainment demonstration to revise their VOC and NOxtransportation conformity budgets within one year ofthe release of MOBILE6. These revised budgets will apply for conformity purposes as soon

HeinOnline -- 66 Fed. Reg. 635 2001

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

as we findthem adequate. EPA is approving that commitment in today's action. Ifthe State fails tomeet its commitment to submit revised budgets using MOBILE6, EPA could make a finding offailure toimplement the SIP, which would start a sanctions clock under Clean Air Act section 179. Once

we have confirmed thatthe revised budgets are adequate, they will be more appropriate than thebudgets we are approving for conformity purposes now.

Iftherevised budgets raise issues about the sufficiency ofthe attainment demonstration, EPA will workwith States on a case-by-case basis. Ifthe revised budgets show thatmotor 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 howits original attainment demonstration isimpacted by using MOBILE6 vs. MOBILE5 before it reallocates any apparent motor vehicle emission reductions resulting from the

use ofMOBILE6.

The Addendum also includes Connecticut's analysis ofthe future air quality design value for the Greater Connecticut serious nonattainment area, which isidentical to the EPA analysis found in the Technical Support Document to the notice ofproposed 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 tobe 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 byDecember 31, 2003. EPAis approving that commitment in today's action.

V. What SIP Elements Did EPANeed To Take FinalAction on Before Full Approval ofthe Attainment Demonstration CouldBe Granted?

In the NPR for the Connecticut attainment demonstration SIP published

onDecember 16, 1999, EPA stated that it intended to publish final rulemaking

onVOC RACT pursuant to sections 182(b)(2)(A) and (C) ofClean Air Act, the 9% rate ofprogress 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 offinal approval ofthe 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) ofClean Air Act on October 19, 2000 (65 FR 62620). EPA approved the Connecticut area's 9% rate ofprogress plan on October 19, 2000 (65 FR 62624). EPA approved Connecticut's optin the National LowEmission Vehicle (NLEV)program onMarch 9, 2000 (65 FR 12476). Lastly, the final approval ofConnecticut's NOx SIP call SIP was granted byEPA Region I's Regional Administrator on October 20, 2000. As ofDecember 15, 2000, this approval was awaiting publication. The approved SIP Call rule will be promulgated at40 CFR 52.370(c)(86).

Additionally, subsequent to the December 16, 1999 proposal, EPA granted full approval totwo other SIP elements in Connecticut. On March 9, 2000 (65 FR 12474), EPA approved Connecticut's CleanFuel Fleets Substitute Plan as meeting the requirements ofsection 182(c)(4) ofthe Clean Air Act. On October 27, 2000 (65 FR 64357), EPA approved the Connecticut Enhanced Inspection and Maintenance program SIP converting it from alimited approval under the Clean Air Act to a full approval.

VI. What Comments Were Received on the ProposedApprovals andHow Has EPA Responded toThose?

EPA received comments from the public onthe Notice ofProposed 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 (Attorneyfor Environmental Defense andNatural Resources Defense Council); the Midwest Ozone Group; andELM 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 onthe supplemental proposed rulemaking published on July 28, 2000 (65 FR 46383), in which EPA clarified and expanded ontwo 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 respondsto these comments.

Lastly, EPA received comments from the public on the supplemental proposed rulemaking published on October 16, 2000 (65FR 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 ofoxides of nitrogen (NOx)and volatile organic compounds (VOC) and their relationships to the application of
current and anticipated control

measures expected tobe 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 respondsto the these comments as well.

A. AttainmentDateExtensionPolicy

In these responses, EPA addresses both the comments received on this rulemaking and those received in Docket A-98-47 on its noticeregarding "Extension ofAttainment 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 onthe individual areas. General
comments onthe 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 NOxreductions 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 ofthe 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, andEPA is without authority to create exemptions fromthem. 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 nomore than 

### 636

HeinOnline -- 66 Fed. Reg. 636 2001

### 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 ofattainment 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 toprovide for attainment by the statutory deadlines, the statutory limitation onEPA's authority to extend attainment dates under section 181(b), and the procedures to be followed in the event

an area fails to attainby the deadline are unequivocal and unambiguous, and compliance isrequired under step one ofChevron. 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 EPApolicy is also inconsistent with the Phoenix reclassification action, which stated that EPA had no flexibility toprovide 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.

Response1:The absence of an express provision in the Clean Air Act for an attainment date extension based on transport does not deprive EPA ofthe authority tointerpret 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 ofCongressional intent not to unfairly burden downwind

areas. In various parts ofthe 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 ofsection 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 ofextending attainment dates for ozone nonattainment areas affected by transport ofozone and ozone precursors represents areasonable effort to avoid the frustration ofCongressional intent to which a literal application offthe reclassification provisions would lead. Where a "literal reading ofthe statute would actually frustrate the congressional intent supporting it, [a
courtmay uphold] an interpretation of the statute more true to Congress's purpose." EDFv.EPA, 82 F.3d 451, 468 (D.C. Cir. 1996).

In 1990, Congress established a classification scheme for ozone nonattainment areas thatprovided for those areas to be classified onthe basis ofthe severity oftheir 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 ofthese provisions, Congress enacted the reclassification provisions under which

ozone nonattainment areas that failed to attain the ozone standard as oftheir attainment dates were tobe reclassified
to a higher classification, thereby receiving an extension oftheir attainment date, but also being subjected to additional control requirements. See section 181(b)(2). Ontheir face, the reclassification provisions donot provide for any exemption from thereclassification
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 ofthose provisions to such areas would frustrate broader congressional intent. In this context itis important to recognize that, apart from the ozone reclassification provisions, the Act contains aprovision-section 110(a)(2)(D)-that obligates upwind States to prohibit pollution-including

ozone andits precursors-from sources within the State that contribute significantly to nonattainment and maintenance problems in downwind States. Congress was cognizant ofthe 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 ontheir sources that contribute
to downwind air quality problems. Congress thus soughtto establish a regime that would eliminate such inequities.

The legislative history ofthe 1977 Clean Air Act Amendments regarding the enactment ofsection 110(a)(2)(E), the predecessor ofsection 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 havemore stringent implementation planrequirements thanin another State." S.Rep. No. 95-127 at41, reprinted in 3 1977 Legis. Hist. 1416. It isreasonable to assume that Congress, when it enacted the ozone reclassification regime in 1990, would have expected that upwind States would havein 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. Ifthathad happened, downwind areas that failed
to attain by their attainment dates would have failed to attain as a consequence oftheir own failures to adopt necessary controls, not as a consequence ofthe failure ofother States to adopt and implement controls necessary to eliminate the contribution oftheir own sources to the downwind area's nonattainment problem.

Such controls were notin place, however, since, as explained in EPA's transportpolicy, itin fact took many years for EPA and the States to gain a sufficient understanding ofthe interstate ozone transport problem to determine the appropriate division of control responsibilities between the upwind and downwind States under the Clean Air Act. Itwas only through the work ofthe Ozone Transport Assessment Group (OTAG), which consisted ofmembers from States, industry and environmental groups, and EPA's subsequentNOx SIP call, promulgated in October, 1998, thatthe division ofresponsibilities amongthe States was established. Consequently, the fruits ofthose efforts-the implementation ofthe 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 afterthe statutory attainment dates for areas such

as Springfield, MA. Moreover, because the allocation ofresponsibility for transportwas not made until late 1998, the prohibitions onupwind contributions under section 110(a)(2)(D) and section 126 could not be enforced prior to the attainment dates ofareas such asWashington, DC, Greater Connecticut and Springfield, MA. Nor could Congress intend that the upwind

areas with later attainment dates

HeinOnline -- 66 Fed. Reg. 637 2001

### 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 ofcontrolling transported pollution in the absence ofdata on transport impacts.

To apply the reclassification provision ofsection 181(b) without taking into account the timing ofthe identification and implementation of the emission reductions needed to eliminate the significant contribution of the upwind States tothe downwind States would lead to the result that the downwind States' sources are required
to implement potentially costly control

measures to offset the effects ofupwind State pollution-pollution thatEPA has

now determined mustbe prohibited under the Act and pollution that will

soonbe eliminated as aresult ofthe 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 atodds with the kind ofconcerns 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 thatEPA 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 onlyone specific type ofan extension. The fact that Congress provided an extension based on air quality thatis

near attainment at the time ofits 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 ifthey have done enough
to control local air pollutionbut are still
not able to attain-also applies in the

case ofdownwind transport. Section 181(a)(5) shows that Congress was not unalterably opposed to extensions of attainment dates without requiring an

area to be subjected toreclassification andthe 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 ofAppeals for the District ofColumbia Circuit has previously held thatEPA may extend SIP submission deadlines even without explicit statutory authorization. In NaturalResourcesDefenseCouncil,Inc.

v. EPA, 22 F.3d 1125, 1135-36, the Court upheld EPA's extension ofa 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 thatthe Agency had authority under the CAA to extend the deadline. EPAhad found that additional time would be needed for States to conduct photochemical grid modeling in order to document the effects ofNOxreductions on an area. EPA had found that "the time needed to establish andimplement a modeling protocol andto interpret the model results will, in a variety ofcases, extend beyond the November 15, 1992 deadline for submission ofNOx rules."

EPA thus extended the submission deadline, providedthe States could show thatmodeling was not available or did not consider effects ofNOx reductions and thatthe States submit progress reports on the modeling. The D.C. Circuit upheld EPA's extension of the deadline and ofEPA's time to review the submissions and make an exemption determination. The Court found that "because only a single NOx RACT submission isrequired under the statute, itis logical to infer that Congress intended data supporting exemptions tobe included in that submittal and thatthe EPAhave the full 14-18 months to review them and to make an exemption determination." Even inthe absence ofexplicit statutory authority, the Courtheld that "had Congress foreseen the exemption timing problem, a matter outside the EPA's control, itwould have elected to accord the EPAthe full statutory review time." 22 F.3d at 1136. The courtruled 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 andNOx SIP call process was completed, to document the impacts ofupwind areas

onthe attainment status ofdownwind
areas, andto assess and allocate responsibilities amongthe areas, caused

a delay in meeting the attainment deadlines. EPA believes that, had Congress foreseen this timing problem, itwould have elected to accord the States andEPA more time to meet the attainment deadlines without imposing reclassification requirements on downwind areas. As in the case ofthe delayed photochemical grid modeling needed for the NOx submissions atissue in NRDCv. 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,EPAhas required analogous showings by the States, limiting the extensions to those areas that document

a transportproblem and that submit attainment demonstrations and adopt local measures to address the pollution that iswithin local control.

As for section 182(i), ithas no bearing

on the authority ofthe Administrator with respect to the attainment date extensions at issue here. Section 182(i) applies to the authority ofthe Administrator after an area has been reclassified, andrelates to the setting of

an attainment date for the reclassified

area. It does not apply to an area thatis
notbeing reclassified, but ratheris being granted an extension ofits attainment date that effectively defers the applicability ofthe reclassification provisions. Here, EPAis 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 thatthe 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.

Comment2: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 oflocal measures until the extended attainment deadline, thereby precluding any determination thatthe local measures have achieved the degree ofemission 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 mustprovide for attainment ofthe NAAQS, and EPA 

### 638

HeinOnline -- 66 Fed. Reg. 638 2001

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

unlawfully seeks to lessen these statutory obligations.

Response2:As explained in Response 1,above, EPA's attainment date extension policy aims to effectuate, not frustrate the intent ofCongress, 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 abilitytimely 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, EPArequires 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 ofthe emissions reductions required to achieve attainment in the area. EPAviews this coordination ofthe responsibilities of the upwind and downwind areas not as

alessening ofthe statutory obligations, but as a reconciliation ofthem 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 sacrificingbasic principles offairness. 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 ofupwind areas' contributions andthe need for upwind area emissions reductions, requiring local contributions earlier would not accelerate attainment, considering that EPAis requiring downwind areas to implement local controls as expeditiously as practicable.

Moreover, the difficulty ofassessing relative contributions and responsibilities ofupwind 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. SeeNRDCversus EPA,discussed supra, in Response to Comment 1.
Comment3:Reclassification alone has

no immediate or mandated regulatory
consequence. A SIP revision can consist ofa showing that attainment will result from implementation ofemission 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 ofbeing implemented.

Response3: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 therequirements ofsubsections (b) through (d) ofthis section as maybe applicable tothe area asreclassified." Thus the area must meet the more stringent requirements ofa higher classification, including new source review offsets and changes in cutoffs for permitting. The provisions ofsection 181(b) apply to reclassification ofozone

areas. Sections 179(c) and (d) do not apply to ozone areas that are classified

asmarginal, moderate, or serious, which

are subject tothe requirements of section 181, ifEPA determines thatthey failed to attain the ozone standard as of the applicable attainment date pursuant to that section.
Comment4:Sections 176 and 184 of the CAA donot 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 tobe 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 aburden only on upwind States and does not relieve downwind States oftheir obligation to attainby 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 ofthe 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 howto address pollutant transport and how to draft an attainment date extension addressed to itwhen itwished 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 exempttransport-affected

areas from control requirements ifit wanted to, asit did for rural transport

areas under section 182(h). Congress limited relieffor areas subject to transportto exemption from sanctions, but did not extend this to section 110(c) FIPs. H.R. 101-490, at 248. This shows Congress' intentto apply all ofthe CAA enforcement tools except for sanctions under section 179. Congress considered the effects oftransport, but not in the reclassification context. Congress did provide for attainment date extensions, but not in this context.

Response4:Having crafted provisions in the 1990 Amendments that it believed would be adequate to address the problem ofdownwind nonattainment, Congress did not expressly provide for an attainment date extension based on transport. But the absence ofsuch a provision does not preventEPA from inferring that Congress would have intended to provide such reliefshould the express provisions fail to function as envisioned. In fact, the mannerin which Congress did address the issue of transport shows thatEPA'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, asEPA 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 thatupwind areas be held accountable for reducing emissions that interfere with the ability ofdownwind

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 ofrelieffor downwind areas evenifno 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 thatthere wouldbe a means ofredress against upwind States prior to the downwind area's attainment date-a means that also would notbe at odds with Congress's decision to provide longer 

### 639

HeinOnline -- 66 Fed. Reg. 639 2001

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

attainment periods for upwind areas confronting onerous pollution problems. But, as EPApointed out in its guidance, there was in fact no practicable way to carry out the Congressional scheme until a much more comprehensive understanding ofthe complex facts of

ozone transport couldbe achieved.

Although Congress in the 1990 Amendments and in prior versions of the Clean Air Act attempted to deal with the issue oftransport, the reality ofthe problem proved far more complicated andintractable than expected. As explained in EPA's guidance, 64 FR 14441 (March 25, 1999), ittook many years for EPA and the States to study, analyze, and attempt toresolve the allocation ofresponsibility 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 andindustry and environmental groups tackled the problem ofallocating responsibility for transport in its Overwhelming Transport Policy. During the period required for this effort, the resolution ofregional transport issues

was held in abeyance. Itwas not until late in 1998 that the conclusion ofthe OTAG and SIP call processes resulted in assignments ofresponsibility that could assistin the design of SIPs and the formation andimplementation 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 126by northeast States to mandate federal controls onutilities and other large NOx emitters in upwind States. 64 FR 28250 (May 27, 1999) (Section 126 Rule). A

more detailed description ofthehistory ofefforts to address ozone transport through the 1990's maybe 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 tobe 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, itremained largely theoretical until EPA and the States could understand howto identify, quantify, and analyze the transport of emissions, and develop regulatory

means to coordinate the respective responsibilities ofa 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 touse the tools in the time frame anticipated by Congress. Bythe time EPA andthe States gained an understanding of regional transport sufficient to allow enforcement oftheprovisions ofthe Act, itwas too late tohelp some downwind areas meet their attainment dates. Thus it is spurious to argue that EPA and the States couldhave 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 ifthey 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 ofdomestic 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 holdEl Paso accountable for pollution thatis generated in a foreign country thatthey have no control over. Sowhat this amendment does it says that in assessing whether or not the State implementation plan hasbeen met, and when assessing the levels of

ozone * * * pollution thatis being generated across theborder has to be taken into account so thatour cities and regions will bejudged based on what they do. * * *. [The State, region and city] will have the opportunity to come to EPA an say thatthey are in compliance in terms oftheir emissions, that their failure to meet the overall standards is dueto something that is happening in a sovereign foreign country over which they exercise no control." Senator Baucus statedthat, "It is clear that cities like El Paso in the State ofTexas 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 ofTexas andEPA 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 andthe 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 ofthe provisions addressing transport citedby commenters, to prevent downwind areas frombeing held accountable for pollution over which they exercise no control. Because ofthe complexity ofthe transport problem, EPA and the States could not deploy these statutory provisions in timeto 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 asprecluding EPA frominterpreting the statute to provide the reliefthatthose 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 proofthat Congress meant to preclude such relief. But each ofthe provisions cited by
commenters-to sections 181(a)(4), 182(h) and 182(j)(2)-was designed to address a different problem fromthe

one EPA addresses here, and none undermines EPA's interpretation that Congress intended to provide reliefin the situations currently confronted by downwind areas. As shownin EPA's previous responses, Congress expressed its intent in the transport sections to protect downwind areas from the burdens oftransported pollution, but the mechanisms it provided could not be invoked intime.

As for the sections referenced by commenters, section 181(a)(4) concerns the potential for adjustment ofthe original classification ofan area ifits design value is within a certain margin. It allows the Administrator to consider

a number offactors, including among them transport. Thisprovision in no way casts doubt on the Congressional intentnot 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 ofrural transport

areas as marginal areas, the lowest level ofozone nonattainment areas. Far from 640

HeinOnline -- 66 Fed. Reg. 640 2001

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

indicating that Congress did not intend relieffor areas that are victims of transport, this provision reflects Congressional concern with not burdening areas with responsibility for transport not oftheir making. It sheds

no light on whether Congress would have intended EPAto reclassify areas suffering from transported pollution if they were subsequently unable tomeet 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 itselfto more stringent requirements to control local pollution in lieu ofimposing on upwind areas the responsibility for the transport they caused.

Comment5: The States had power to timely submit SIPs controlling local pollution to the full extent that itwas in the State's power torequire, and combine it with arequest toEPA 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 tobe documented the same time as the attainment demonstration due in 1994. There is no justification for allowing States to request attainment date extensions based ontransport ofwhich 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 tobring 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 isnot equivalent to an ability to identify, analyze, and control the emissions that

cause it. This ability, which grew out of
years ofstudy andjoint effort, did not coalesce until late in 1998. Thus, downwind States were faced with the prospect ofhaving to shoulder responsibility for pollution not oftheir 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 statedin its guidance on the attainment date extension, the state ofknowledge about and the ability to document and model transport has advanced considerably since the issuance ofEPA's overwhelming transport guidance. The
commenters seek to ignore the climate ofuncertainty 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 ofthe OTAGprocess, downwind areas in the OTAG region could not determine what boundary conditions they should assume in preparing attainment demonstrations and determining the sufficiency oflocal controls to bring about attainment. Meaningful reliefunder these provisions simplywas not available earlier.

But even with the allocation of responsibilities now available, EPA believes that Congress did not intend to accelerate the obligations ofupwind States so that downwind States can meet earlier attainment dates. This would undermine the objective, firmly embodied in the graduated attainment framework ofthe Clean Air Act, to allow upwind areas withmore 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 byCongress. It is unrealistic to expect upwind areas to be able to segregate outthe reduction ofemissions for purposes oftransport from the reduction ofemissions 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 bythe dates "in this subpart" reflects Congress" over optimistic viewthat 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 bythe time the downwind area

was supposed to attain-this confirms that Congress expected thatupwind pollution wouldbe controlled prior to downwind attainment deadlines, and that only local pollution would remain

asthe downwind area's responsibility. But, as we previously stated, the time line for analyzing and assessing transport, and the resulting abilityto 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 andthat is transported across Stateboundaries, and to fulfill the Congressional intent that downwind

areas not be saddled with this burden.

Comment6: EPA's decision directly conflicts withNRDCv. EPA,22 F.3d 1125 (D.C. Cir. 1994), where the Court heldthat EPA could not extend a clear statutory submission deadline.

Response 6: To the contrary, EPA believes thatNRDCv. EPA supports EPA's authority to issue the attainment date extensions at issue here. In that

case the U.S. Court ofAppeals forthe D.C. Circuitupheld EPA's extension of SIP submittal deadlines even though such extensions were not expressly permitted by the Clean AirAct. 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 ofNOx reductions on individual areas, an effort thattook

more time than Congress anticipated. Here, the effort to document, model, and analyze regional ozone transportissues and assess responsibility for relative contributions is, ifanything, more complex than the NOx exemption showings for which the Court upheld deadline extensions in NRDCv. EPA. The Court's reasoning in NRDCv. EPA shouldbe fully applicable to the policy
at stake here.

Comment7: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 bythe upwind states," but concludes thatthe delay "cannot justify delaying the obligation ofdownwind States to implement all the local measures necessary for attainment by the statutory deadline." One commenter, while acknowledging thatit "does not take issue with EPA's objective of accommodating the delayed control contributions fromupwind areas," contests EPA's claim of authority
to extend attainment dates. This
commenter suggests that the appropriate remedy is forEPA to authorize States to take credit for mandated emission reductions when preparing attainment demonstrations and determining the degree oflocal 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

HeinOnline -- 66 Fed. Reg. 641 2001

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

take credit when theyprepare their attainment demonstrations-but this solution addresses onlythe planning requirement, and does not assist the

areas in solving the problem offailing
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 ofupwind reductions-a delay conceded by commentersresulted in uncertainty in a downwind area's abilitynot only to plan for attainment, but torealize it.

This comment also highlights the difficulties thatEPA's attainment date extension policy was designed to address: namely thatthe states and EPA

were: (1)Not able to assess relative contributions until itwas 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 helpbring about attainment

as scheduled in affected downwind

areas with earlier attainment dates. As the policy explains, the determination ofrelative upwind and downwind contributions and the allocation of responsibility for determining controls did not occur in time for a number of

areas tomeet their attainment deadlines.

Comment8:EPA's approach allows emission reductions from motor vehicles to be deferred beyond the deadlines currently required bythe Act. The policy allows deferral ofconformity budgets beyond the statutory attainment
year. Itis also inconsistent with statutory requirements for reasonable further progress in section 182(c)(2)((B), for implementation ofall reasonably available control measures as expeditiously as practicable in section 172(c)(1), and for requiring that transportation plans andTIPs "will not delay timely attainment of any standard

or * * * other milestones in any area in section 176(c)(1)."

Response8:EPA disagrees with the
commenter that the policy allows deferral ofmotor 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 thatthe 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 bythe applicable attainment date. Thus, whatever attainment date is applicable, either byvirtue ofthe statute

or an attainment date extension, defines the outside date bywhich motor vehicle andRACM 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 iskeyed to the established attainment date.

The commenter also complains about delays in establishingbudgets 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 arethose budgets that are established for the attainment year.The Act does not require thatthese budgets be setfor any specific year,but rather contemplates thatthey will be established for the attainment year. Where EPA has properly determined that an attainment date extension shouldbe granted, conformity budgets

are required for the extended attainment
year; they are no longer required for the superseded attainment year.The requirement thattransportation activities not delay timely attainment is

a duty imposed on transportation planning agencies to insure that their activities will not interfere with attainment ofthe standard bythe 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.
Comment9:A commenter argues that under the terms ofsection 188(e), an extension ofthe PM attainment date may not be granted unless the State demonstrates thatthe area's SIP contains "the most stringent measures that are included in the implementation plan ofany State or are achieved in practice in any Sate, and can feasibly be implemented in the area." Moreover, section 188(e) provides for consideration oftransboundary emissions from "foreign countries," not from U.S. sources. EPA's proposed

ozone nonattainment extension policy includes neither ofthese limitations.

Response9:The provision citedby
commenters applies the PM-10 standard, andis not applicable to attainment dates for ozone. Moreover, the regulatory regimes applicable to ozone andPM-10 are quite different, as
are the types oftransport issues that arise with respect to these two different pollutants. The issues EPA and the States confront with respectto longrange regional transport ofozone do not apply toPM-10. Beyond that, section 188(e) embodies a standard of" impracticability" as a basis for seeking

an extension for aPM-10 attainment deadline. Withrespect to the ozone attainment deadlines at issue here, EPA is not granting extensions solely on the grounds ofimpracticability ofattaining 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
mustbe read together so thatthe upwind area's "obligation to control pollution affecting the downwind areabe itinterstate or intrastate-falls due

no laterthan 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 aspracticable, even if thatresults 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 intime to meet the downwind area's attainment date. EPA's policy cannot be defended asnecessary to reconcile 181(a) with the Act's antitransportprovisions. Upwind areas shouldbe able to control pollution contributing to downwind area's nonattainment evenbefore reaching their own later-prescribed attainment dates.

A commenter disputes EPA's interpretation ofthe language in section 110(a)(2)(D)(1) that SIP provisions prohibiting emissions which cause transportbe "consistent with the provisions ofthis 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'spolicy excuses upwind area's responsibility from their obligations under sections 110, 176A and 184, 642

HeinOnline -- 66 Fed. Reg. 642 2001

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

exempting them via granting extensions
to downwind areas. The policy defers downwind action until the upwind area attains.

EPA improperly assumes thatit would not be practicable for upwind

sources toreduce emissions contributing to downwind nonattainment prior to the time such reductions wouldbe required to attain in the upwind area. The presumption shouldbe precisely the opposite: unless the upwind state can show that such reductions are impracticable, EPA should assume such reductions canbe made attimes to eliminate the upwind state's contribution to nonattainment downwind bythe 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 thatupwind areas make reductions ifnecessary to permit downwind areas to attainby their statutory deadlines.

Response10:EPA disagrees withthe commenter's contention thatit has "manufactured a conflict." Rather, EPA believes that itrecognizes and resolves the real tensionbetween 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 atimetable 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 solelyfor the purpose of obtaining downwind reductions.

In dealing with ozone, aregional 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 ofthe statutory provisions on attainment deadlines and transport reduction indicates that Congress intended upwind areas toreduce transport,but
not to the extent ofrequiring shorter schedules for upwind attainment. Separating out reductions for purposes ofattainment and those for the purposes oftransport is more difficult than commenters depict, andEPA believes that Congress did not intend a regimen ofdrastic reductions without regard to the upwind area's attainment schedule. In reality, an upwind area thatremains in nonattainment may doubtless be shown to continue to transport pollution to an affected downwind area.

Congress provided statutory tools to address the issue oftransport (including sections 184, 126, and 110(a)(2)(d)), and believed thatthey 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 thatupwind 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 factrepresent the dates
atwhich 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 ifearlier 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 andthe NOx SIP call, EPAhas interpreted section 110(a)(2)(d)'s significant contribution test asrequiring reductions as expeditiously as practicable without requiring upwind

areas to impose draconian measures. The United States Court ofAppeals for the District ofColumbia Circuit recently upheld EPA's use ofa cost component in applyingthat section's significant contribution test. Michiganv. EPA,213 F.3d 663, 674-679 (D.C. Cir. 2000). EPA decided thatthe States thatwere "significant contributors" under section 110(a)(2)(D) need onlyreduce their emissions bythe amount achievable with "highly cost-effective controls." 63 FR at 57403. "Thus, once astate had been nominally marked a 'significant contributor,' it could satisfy the statute, i.e., reduce its contribution to apoint where it would not be 'significant' within the meaning of section 110(a)(2)(D)(i)(I) by cutting backthe
amountthat 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 ofcontrol. Thus EPAhas been upheld in interpreting the Act in a way that limits the upwind area's responsibility to control pollution so as to mitigate itsresponsibility under section 110(a)(2)(D). The upwind area should nothave to impose draconian controls. As the court in Michiganv. EPA, concluded, "there is nothing in the text, structure, or history ofsection 110(a)(2)(D) thatbars EPA from considering costin its application." 213 F.3d 679. The Court's discussion makes clear thatEPA, in interpreting the responsibilities ofupwind 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 anumber ofconsiderations 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 onthe upwind area's attainment demonstration. The modeling evidence we have now shows thatupwind 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 thatitwould have accomplished attainment but for the failure ofother

areas to implement sufficient controls. The policy is vague, and fails to establish clear standards for a showing oftransport. The "affected bytransport" standard is unclear.

Response 11:EPA isnot constrained by the section 182(j)(2) standard. This section islimited 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 inthe SIP call were clear, and the modeling that resulted fromthe SIP call effort showed that

'Because theD.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 mustimplement the necessary controls. 

### 643

HeinOnline -- 66 Fed. Reg. 643 2001

### 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 thatpollution. The modeling shows that significant contributions are made by the upwind

areas tothe downwind areas seeking attainment date extensions. EPA still believes that Congress would not have intended toimpose theburden on downwind areas for an upwind area's contribution.

Comment12: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 oflaw based onair 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

orsevere at least in part because of

ozone transport,but did not grant EPA discretion to take suchtransport 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 andin light ofsections 181(b)(2) and 182(i)?

Response12:The fact thatthe provisions governing the initial classification process expressly take transport into account in a specific
way-see section 181(a)(4)-does not

mean that EPAis precluded from taking transport into account when providing for an attainment date extension based

ontransport, prior to invoking the reclassification provisions. See EPA's Response to Comment 1. Byproviding for an extension ofthe attainment date, EPA is effectuating Congressional intent that the transport reliefprovisions have

a chance to take effectbefore EPAhas

an obligation to determine whether the

area has attained for purposes of triggering the reclassification provisions.
Comment13:EPAhas previously concluded that reclassification isnot a

means ofpenalizing an area,but a means ofproviding additional reductions thatwill benefit public health. EPA rejected the notion that bump-up is apenalty when it reclassified the Phoenix, Arizona area from moderate to serious. There, EPA said:

The classification structure ofthe Act isa clear statement ofCongress's beliefthatthe later attainment deadlines afforded higherclassified and reclassified areas require compensating increases in the stringency of controls. Thereclassification provisions of the Clean Air Actare areasonable mechanism to assure continuedprogress toward attainment ofthe health-based ambient airquality 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 ofthe reclassification provision where the issue oftransport is not presented. In the context ofPhoenix, areclassification
not involving transport, EPAmade the response citedby commenter, andnoted that the reclassification provision was not intended to be punitive. This view is consistent with the position thatEPA takes here, where the circumstances are quite different from the non-transport reclassification context. In the absence oftransport, an area that fails to attain by its attainment date, may still fairlybe held accountable for controlling local pollution, and be granted alonger attainment deadline in return for more stringent controls. Under these circumstances, applyingthe reclassification provisions is not punitive. But in the circumstances EPA andthe states confront here, the local

area is not responsible for pollution that interferes with its ability to meet the standard. In such a case, totrigger reclassification wouldimpose 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 andrejected EPA's interpretation ofits attainment date extension authority duringthe Clean Air Act Amendments of1990. 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 5more years to meet air-quality standards than these Wisconsin counties will have." Senator Kasten then noted thatbecause ofChicago's longer attainment date, it

was likely thatthe Wisconsin counties "will be foundin violation ofthe Clean AirAct because ofactions taking place outside oftheirjurisdiction in an upwind State."

The commenter claims that Senator Kasten introduced an amendment which provided, among otherthings, for

an attainment date extension forthe downwind area until the upwind nonattainment area achieved emission reductions. S. Comm. On Envt. And Pub.Works, A Legislative History ofthe Clean Air ActAmendments of 1990, pp. 4954-55 (1993). The commenter claims that "the amendment, was, ofcourse, rejected." Thus the commenter argues that Congress, although it addressed

ozone transport in sections 176A and 184, declined to alter the requirements ofsection 181, even though itwas aware ofthe problem that EPA seeks to solve with its attainment date extension policy.

Response 14:There isno evidence thatthe amendment discussed by Senator Kasten was ever debated, considered, or voted upon. Commenter cites no support for the proposition that itwas considered andrejected. Thus no inferences canbe drawn fromthe fact thatthe amendment was not embodied in the statute. Moreover, even ifthe amendment had been considered and rejected, it differed from and went so far beyond the attainment date extension EPAis applying here as tonot be probative ofCongressional intent with respect toEPA's current interpretation ofthe Act. Among otherthings, itwould haveprovided for anew and separate Ozone Transport Region, and would haveprovided for different obligations and consequences for downwind areas thanwhat is contained inEPA's current interpretation ofthe attainment date extension policy. Legislative History at 4954-56.

Comment 15:The EPApolicy is an illegal expansion ofthe 1994 overwhelming transport policy. Now the upwind area need not be a nonattainment area with alater attainment date, as long asit 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 ifthe date for the
NOxSIP call reductions is later.Where 644

HeinOnline -- 66 Fed. Reg. 644 2001

### 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 isearlier than the NOx SIP call reductions, then an extension cannot bejustified as necessary to reconcile the transport provisions with section 181(a). There is

nojustification for applying the policy where the upwind area is in attainment,

oris in nonattainment but has air quality meeting the NAAQS, orwhere it is in nonattainment but has an attainment date earlierthan the extension proposed.

Response15:The policy isnot an illegal expansion ofthe overwhelming transport policy, but an appropriate interpretation ofthe provisions ofthe Clean Air Act in order to fulfill Congressional intent. EPA's current articulation ofthe attainment date extension policy reflects the considerable advances in understanding and allocating responsibility for transport that have occurred since the formulation ofthe 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. SeeEPA'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 thatmay include attainment and nonattainment areas that have been found to contribute significantly to downwind nonattainment.
Comment16:Downwind areas should be required to implement, notjust adopt, all required measures before becoming eligible for an extension. Modeling is imprecise and an area might be able to attain ifthey 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 oflocal pollution as required by sections 182(b)(1)(A)(i), 182(c)(2), and 172(c)(1) providing for the full extent oflocal reductions thatit was in the State's power torequire.

Response16: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 ofupwind 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 ofEPA's actions. EPAis in factrequiring 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 itwill implement all adopted measures as expeditiously as practicable, but no later than the dateby 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 ofthe areas being granted alater attainment deadlines. None ofthese

areas have delayed or postponed the effectiveness ofmeasures 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 EPAhas explained, it seeks to reconcile and coordinate the responsibilities ofupwind and downwind areas to worktogether to achieve attainment. However, as discussed elsewhere, EPA has applied the section 172(c)(1) RACM requirement
to these areas. Comment 18:EPAis excusing downwind areas from the requirement that nonattainment SIPs must provide for attainment ofthe NAAQS as provided in sections 182(b)(1)(A)(i), 182(c)(2)(A), 172(c)(1), andis also excusing them from the requirement thatthey implement all reasonably available control measures as expeditiously aspracticable, regardless ofthe reductions required for attainment. EPA's attempt to lessen these obligations is unlawful and, because unexplained, arbitrary and capricious.

Response 18:EPA isnot excusing downwind areas fromthe requirement thatthey submit SIPs providing for attainment. Nor is EPA excusing downwind areas fromthe RACM requirement. EPA's interpretation does
not exclude what is necessary for attainment; rather, a measure is RACM ifitis needed for attainment. EPA is enforcing this requirement, but allowing the downwind State to take into account the control contribution ofupwind 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 thatthe 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 areconciliation ofsection 181(a) with the Act's anti-transport provisions. Under a proper interpretation ofthe Act: (1)Upwind States' SIPs would ensure thatthe upwind areas' pollution contributing to NAAQS violations in downwind areas wouldbe controlled, no later than the downwind areas' attainment date; (2) upwind areas would attain locally as expeditiously aspracticable but nolater thanthe date prescribed by section 181(a)(1) for the upwind area; and (3) downwind areas would attain locally "as expeditiously as practicable but not laterthan" the applicable date prescribed in section 181(a)(1). This reading gives effect to all ofthe relevant statutory provisions.

Response 19:The commenter concedes that under aproper interpretation ofthe Act,upwind States' SIPs would ensure that upwind areas' pollution contributing to violations in downwind areas wouldbe controlled, prior to the downwind area's attainment date. But in the circumstances actually confronting EPA andthe States, asEPA has explained inprior responses, itwas notpossible, given the state of knowledge ofregional 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 andto avoid imposing on the downwind area

aburden Congress did not intend, EPA

HeinOnline -- 66 Fed. Reg. 645 2001

### 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 ofresponsibility that is acknowledged by the commenter, EPA indeed isreconciling the Act and rendering a proper interpretation.
Comment20:No extension shouldbe granted unless the area is as small as possible. The basis for transport should
not be OTAG modeling, since better datais available.

Response20:The boundaries for serious nonattainment areas were established by operation oflaw (CAA section 107(d)(4)). The modeling done by OTAG andby EPA in the SIP call andthe local modeling done in connection with the attainment demonstrations represents thebest available modeling.

2.Comments Received on 12/16/99 Proposals
Comment1: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 otherreasons, it does not provide for attainment "as expeditiously as practicable," as required by section 181(a) ofthe CAA. Both the attainment submittal and theproposed rule simply
assertthat the States, acting alone,
cannot achieve attainment, either in 1999 or 2007. Neither the State norEPA explores the question ofwhat can the State can do, with the help ofspecified 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 oflocal and State measures and the NOx SIP Call; we only know thatthe NOx SIP call isnot likely to produce attainment by 2003 without additional local reductions. The SIPs do not meet the requirements ofthe CAA to provide for attainment as expeditiously as practicable and/orno later than November 15, 1999. States have made

no attemptto provide for attainment as

soon as possible. Because they do not meet the CAAs requirements for timely attainment, EPAmust disapprove them.

Response1: 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. EPAhas 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 thatthe 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 otherResponses to Comments in section VI.A. and sectionVI.E. Comment2:The State's SIP does not contain adequate contingency measures

asrequired by section 172(c)(9) ofthe CAA. Such measures are especially important in a case such as this, where

a substantial portion ofthe emission reductions relied on are assumed to

occur well into the future, and well beyond the statutory attainment date.

Response2:Although no measures have been specifically designated as contingency measures, EPAhas found that measures thatcould 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 ofthe attainment date extension areas contained in Responses
to Comments.
Comment3:Even assuming the Transport Guidance is consistent with the Act,the States' attainment submittals do not meet the requirements and/orpreconditions necessary to

secure adequate emissions reductions from in-State sources. For example, CT andMA could secure further NOI reductions from power plants and other stationary sources through implementation ofRACT on additional stationary sources. The States could

secure additional reductions through a diesel inspection andmaintenance program.

Response3:EPAbelieves that a diesel I/M program may have some potential for emission reductions. Atthis time, however, there is insufficient information available about the program to determine whether diesel I/M would be economically ortechnologically feasible. Also, the test protocols are not sufficiently developed to enable EPA to determine the magnitude ofreductions possible, andthus 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 Stateshave adopted andwill implement as expeditiously as practicable the measures necessary to

secure adequate emissions reductions fromin-State sources. No additional RACM isrequired for these areas.

Comment4:The States have failed to timely pursue administrative avenues for Statesto seek redress fortransport problems: Through a section 126 petition and a section 110 SIP call. CT and MA did not file section 126 petitions until the summer of1997. Even ifEPA's transport Guidance were lawful, it shouldnot be applied except

as a matter oflast resort-the downwind

area must have identified and committed to all necessary local

measures and exhausted its administrative remedies in a timely fashionto 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 oftheir own. Thisis not in keeping with the attainment provisions and schedules in the CAA.

Response4:EPA disagrees with the
commenter thatthe States have waited
too long to seek relief.As setforth in detail in sectionVI.A.1, the States and EPAhave worked for years to solve the transportproblem, and were unable to obtain adequate redress for transported pollution until the culmination ofthe OTAG effort. EPAfinds that the States

were not dilatory in their efforts to pursue relieffromtransported pollution; reliefwas not available until regional transport couldbe analyzed and responsibility for remediation appropriately apportioned. This effort tookyears, and was more prolonged thanCongress, EPA, or the States had anticipated. See EPA's discussion ofthe history ofthe efforts to address transport in section VI.A.1. The States have not failed topursue any remedies asthey became meaningful and available. Nor does EPA agree thatits attainment date extension allows the States to wait for upwind reductions without making local emission reductions. EPA's policy ispredicated upon an equitable allocation ofresponsibility between upwind and downwind areas, and explicitly requires the downwind areas to adopt and implement local controls

as expeditiously aspracticable.

Comment5:The States have failed to implement all available control

measures and havenot demonstrated that attainment is impracticable due to pollutant transport. The States have failed tomeet the requirement ofEPA's transportpolicy thatthe States adopt all local measures required under the area's
current classification.

Response5:EPA disagrees with the commenter's contention that the States 646

HeinOnline -- 66 Fed. Reg. 646 2001

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

being granted attainment date extensions have not satisfied the criterion ofadopting required local

measures. EPAfinds thatthe States have fulfilled their responsibility with respect to having adopted required local

measures. With respect to contingency
measures, EPAhas determined that

measures that canbe reasonably construed to function as contingency

measures are already contained in the areas' SIPs. See further discussion ofthe contingency measure requirement in otherResponses 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 andEPA has approved all

measures required under its current classification except with respect to certain aspects ofits 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 ofthe Act. Nevertheless, EPA has determined that Connecticut's NSR program substantially addresses the Act's requirements and provides a sufficientbasis for EPAto apply its attainment date extension policy. The Connecticut NSR program imposes all the Act's requirements on new and modified sources ofair 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 ofthe State's two ozone nonattainment areas. In addition, the State's NSR program captures the
correct universe ofnew sources covered by the Act's requirements. The reason Connecticut's program does fully meet allthe Act's requirements is thatthe State's formula for capturing modified

sources of air pollution in theprogram differs from the federal requirements in

one respect. EPA's federal NSR regulations generally require that modifications be measured by comparing the actual emissions ofthe existing facility with the potential emissions ofthe modified facility. Connecticut's regulations compare the potential emissions ofthe 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 tobe balanced against contemporaneous emissions decreases elsewhere atthe 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 ofall remaining required

measures constitutes substantial compliance with the criterion thatthe State adopt allmeasures required under Connecticut's current classification. EPA has further found that itwill implement these measures as expeditiously aspracticable. Thus, EPA believes that the Stateshave fulfilled their responsibility to satisfy the requirements oftheir current classification, and that, under these circumstances, Congress would not have intended them to be reclassified for failure to attain.
Comment6:The States have not shown that theyhave committed to implement all local measures necessary to secure adequate emissions reductions from in-State sources. They have not shown that a combination oflocal reductions and upwind reductions will achieve attainment by their extended dates.

Response6:EPAhas found thatthe States have demonstrated attainment through a combination ofupwind and local measures. See otherEPA responses and discussion ofthe 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 shouldnot be required to secure additional emissions reductions in order
to offset emissions from upwind

sources. As EPAhas discussed elsewhere in its responses, the States have committed to implement all

measures necessary to secure adequate emissions from in-State sources.

Comment7:The D.C. Circuit statedin American TmckingAss'n v. EPA, 175 F.3d 1027 (D.C. Cir. 1999) thatEPA "is precluded from enforcing arevised primary ozone NAAQS other than in accordance with the classifications, attainment dates, and control measures set outin 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 atissue here-the one-hour 0.12 ppm NAAQS. Regarding EPA's beliefthat the provisions in Subpart 2 ofthe Act govern implementation ofthe one-hour standard,EPA is not ignoring the attainment dates in Subpart 2. EPA is interpreting the provisions of Subpart 2to allow EPAto extend the attainment deadlines in accordance with Congressional intent and using means set forth in theprovisions ofSubpart 2. Thus EPA isproperly implementing the one-hour standard.

Comment8: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 beenjudicially stayed.

Response8:As EPAhas explained elsewhere in itsresponses, Congress did
notintend for a downwind area that is affected by transport tobe responsible for pollution generated outside its borders. The stay ofthe SIP call has been vacated and the SIP call hasbeen upheld. The courtlifted its stay and States are required to submit SIPs fully addressing the SIP call and ifthey fail, EPAmust promulgate aFederal plan. EPAis fullyjustified in itsreliance on SIP call reductions and in granting credit for them in the areas' attainment demonstrations.

Comment9:The SIPs fail to provide for attainment as expeditiously as practicable eventhough this is a serious

area where a specific attainment deadline has passed.Furthermore, the States have not even evaluated the possibility ofattaining sooner than their extended attainment dates. The SIPs
mustbe disapproved by EPA since they do notmeet the CAA'sbasic requirements for timely attainment nor do they consider the possibility of providing for earlier attainment evenif the attainment date extension were permissible.

Response9:EPA shows in its other Responses, the SIPs provide for attainment as expeditiously as practicable, and the States have shown thatthey qualify for an attainment date extension due to transport. EPA evaluated the reductions required for attainment fromboth the upwind and downwind areas, and determined that the attainment dates were as expeditious as practicable. See also Response 11below.

Comment 10:This is not a situation where the States have adopted all available measures and still show

HeinOnline -- 66 Fed. Reg. 647 2001

### 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 ofVOC and NOx emissions that wouldbe consistent with attainment in the absence ofNOx reductions thatwould be required by the NOx SIP call. Nor do the plans state the level ofemission reductions that would be needed to produce attainment in the absence ofupwind reductions. EPA cannot rationally findthat transported NOx renders attainment impracticable in the serious areas, when the States have neither quantified the reductions needed locally to attain in the absence oftransport reductions, nor shown that such reductions are unachievable through adoption of additional State andlocal control

measures.

Response10:EPAin its Responses has provided an extensive analysis of the role oftransport 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 inMichigan

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 thatdownwind areas be accountable for locally generated emissions. The Clean Air Act reflects Congressional intent that downwind

areas notbe compelled to compensate for lack ofupwind controls through the adoption of additional State and local control measures, as commenter suggests. EPA disagrees with commenter's suggestion thatthe downwind areas must show thatno further local reductions are achievable before relying on upwind areas to shoulder responsibility for thepollution they generate. EPA finds that a reading ofthe Clean Air Act shows that Congress did not intend for downwind

areas tobe forced to impose additional local controls to offset significant pollution contributions from upwind
areas, before seeking relief.

Comment11:EPAhas not shown that the attainment date extension for Connecticut isjustified due to transport.

Response11: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 ofozone and its
precursors alone generate exceedances in the State ofConnecticut. A more focused analysis ofdays when exceedances occur in Connecticut shows thatthe majority ofthese 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 andlocal attainment modeling for the New York and Greater Connecticut nonattainment

areas show that the Greater Connecticut nonattainment area will need controls
not onlylocal tothe Greater Connecticut nonattainment area but from upwind States, especially New York. Local modeling for 2007 relies heavily onthe NOx SIP call reductions (upwind and within the modeling domain) aswell as controls being implemented in the New York nonattainment area. Ithas 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 findthat theyhave been
met. EPAhas no authority to waive the statutory mandate for three per cent annual reductions. Emission reductions in upwind States donot waive the statutory requirement for 3percent annual emission reductions within the downwind nonattainment area.

Response 12:EPA's guidance did not interpret theperiod oftime after granting the attainment date extension based ontransport asrequiring additional rate ofprogress increments from the downwind area, since we determined that the reason the area had
not attained was due toupwind transport. Therefore it would be unreasonable to lock the downwind area into fixed progress requirement reductions from local sources, when the combination oflocal reductions with upwind area source emission reductions is what will bring the area into attainment. In any event, to the extent thatit shouldbe determined otherwise, and that any ROPrequired should be imposed onthe downwind area, this requirement wouldnot attach until EPA grants the attainment date extension and provides the area with alater attainment date. Since the requirement was not previously due, fulfillingthe requirement, ifany is deemed to exist, is not a condition ofreceiving the attainment date extension.

Comment 13:EPAhas no legal authority to extend the one-hour attainment date. Such extension is unlawful andunwise. Under the explicitprovisions ofsection 181(a)(1) ofthe Act,the States are required to attain the one-hour ozone standard as expeditiously aspracticable, but no later thanNovember 15, 1999. EPA cannot create exemptions from this requirement.

Response 13:EPA hasresponded extensively to issues pertaining to the legality ofthe attainment date extension in itsMarch 1999 responses, above.

B.AttainmentDemonstrations-Weight ofEvidence

Comment

### 1:The weight ofevidence approach does not demonstrate attainment ormeet CAA requirements for amodeled attainment demonstration. Commenters added several criticisms ofvarious technical aspects ofthe weight ofevidence approach, including certain specific applications ofthe approach to particular attainment demonstrations. These comments are discussed in the following response.

Response 1:Under section 182(c)(2) and (d) ofthe CAA, serious and severe

ozone nonattainment areas were required to submitby November 15, 1994, demonstrations ofhowthey would attain the 1-hour standard. Section 182(c)(2)(A) provides that "[t]his attainment demonstration must be based onphotochemical 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 detailbelow, 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 isconsistent with the requirement ofsection 182(c)(2)(A) that the attainment demonstration "be based

on photochemical grid modeling," 648

HeinOnline -- 66 Fed. Reg. 648 2001

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

because the modeling results constitute the principal component ofEPA's analysis, with supplemental information designed to account for uncertainties in the model. This interpretation and application ofthe photochemical modeling requirement ofsection 182(c)(2)(A) finds furtherjustification in the broad deference Congress granted EPA to develop appropriate methods for determining attainment, as indicated in the last phrase ofsection 182(c)(2)(A).

The flexibility granted to EPAunder section 182(c)(2)(A) is reflected in the regulations EPApromulgated for modeled attainment demonstrations. These regulations provide, "The adequacy ofa control strategy shall be demonstrated by means ofapplicable air quality models, data bases, and other requirements specified in [40 CFR part 51 Appendix W] (Guideline on Air Quality Models)." 240 CFR 51.112(a)(1). However, the regulations further provide, "Where an air quality model specified in appendix W * * *is inappropriate, the model maybe 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 datarequirements 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 ofmodel 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 ledus to useboth 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 ofthe NAAQS. The results maybe interpreted through either oftwo modeled attainment or exceedance tests:

a deterministic test or a statistical test.

2The August 12, 1996 version of "Appendix W
to Part51-Guideline on Air QualityModels" was the rule in effect for these attainment dmeonstrations. EPA is proposing updates to this rule which will notbe in effect until the new rule is promulgated. Under the deterministic test, apredicted concentration above 0.124 parts per million (ppm)ozone indicates thatthe

area is expected to exceed the standard in the attainment year and a prediction
at orbelow 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, orbelow, an acceptable
upper limit above the NAAQS permitted under certain conditions (depending on the severity ofthe episode modeled). 3

In 1996, EPA issued guidance 4to update the 1991 guidance referenced in 40 CFR 50 App. W, to make the modeled attainment test more closely reflect the form ofthe NAAQS (i.e.,the statistical test described above), to consider the area's ozone design value andthe meteorological conditions accompanying observed exceedances, andto allow consideration ofother 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 tohelp determine whether the area will attain the standard. As with other predictive tools, there are inherent uncertainties associated with air quality modeling andits results. The inherent imprecision ofthe model means thatit
may be inappropriate to viewthe specific numerical result ofthe model as the only determinant ofwhether the SIP controls are likely to lead to attainment. The EPA's guidance recognizes these limitations, andprovides a means for considering other evidence to help

assess whether attainment ofthe NAAQS is likely tobe achieved. The
process bywhich this is done is called

aweight ofevidence (WOE) determination. Under aWOE determination, the state can rely on, and EPA will consider in addition to the results ofthe modeled attainment test, otherfactors such as othermodeled 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 ofmonitored air quality data); estimated emissions trends; andthe responsiveness ofthe model predictions to further controls.

3Guidance on the Use OfModeled Results to Demonstrate Attainment ofthe Ozone NAAQS. EPA-454/B-95-O007,June 1996.

4Ibid. In 1999, EPA issued additional guidance 5thatmakes further use of model results for base case andfuture emission estimates to predict afuture design value. This guidance describes the use ofan 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 tomonitor attainment ifeach monitor site has air quality observed ozone design values (4thhighest daily maximum ozone using the three most recent consecutive
years ofdata) at or belowthe level ofthe standard. Therefore, itis 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 belowthe level ofthe standard. Since the form ofthe 1- hourNAAQS allows exceedances, itdid
not seem appropriate for EPAtorequire the test for attainment tobe "no exceedances" inthe future model predictions. The method outlined in EPA's 1999 guidance uses the highest measured design value from all sitesin the nonattainment area for each ofthree years. 6The 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 tothe future attainment date. The three yearly design values (highestacross 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 ofthe peak model predicted

5"Guidance for Improving Weight ofEvidence Through Identification ofAdditional Emission Reductions, NotModeled." U.S. Environmental Protection Agency, Office ofAir Quality Planning and Standards, Emissions, Monitoring, and AnalysisDivision, AirQuality 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 ongrounds that itallows 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 ofallowing lower airquality 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 ofdetermining one component, the amount ofadditional emission reductions notmodeled ofthe WOE determination. The WOE determination, in turn,is intended to be

a qualitative assessment ofwhether additional factors (includingthe additional emissions reductions notmodeled), taken as a whole, indicate that the area is more likely than not to attain. 

### 649

HeinOnline -- 66 Fed. Reg. 649 2001

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

ozone concentrations in the attainment year (i.e.,average ofdaily maximum concentrations from all days modeled)
to thepeak model predicted ozone concentrations in the base year (i.e., average ofdaily 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 toreduce areas ofpeak ozone concentrations generally result in similar ozone reductions in allcore

areas ofthe modeling domain, thereby providing some assurance ofattainment
atall monitors.

In the event thatthe attainment year designvalue 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 ofthe 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 measuresbeing implemented. Moreover, a component ofthis technique-the estimation of future design value, should be considered amodel 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 ofthe proposed rule. EPAhas received several
comments on the technical aspects of the approach and the results ofits application, as discussed above and in the responses tothe individual SIP's.

A commenter states that, application ofthe method of attainment analysis in the December 16, 1999 guidance will yield a lower control estimate than ifwe relied entirely onreducing 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 ofthe standard allows up to 3 exceedances in 3years in every grid cell; andifthe model over predicts observed concentrations, predicted controls may alsobe overestimated, etc.). In recognition ofthis EPAhas considered other evidence tomake these determinations, as described above through the weight ofevidence 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 theWOE determination, EPAhas made these determinations based on all ofthe information presented bythe States and available to EPA. The information considered includes model results for the majority ofthe control

measures. Though allmeasures were not modeled, EPAreviewed the model's
response to changes in emissions as well as observed air quality changes to evaluate the impact ofafew 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, ifthe anticipated progress is not being made.

A commenter further criticized EPA's technique for estimating the ambient impact ofadditional emissions reductions not modeled ongrounds that EPA employed arollback modeling technique that, according tothe commenter, isprecluded 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 ofappendix W defines "rollback" as "a simple model that assumes thatifemissions from each

source affecting a given receptor are decreased bythe same percentage, ambient air quality concentrations decrease proportionately." Under this approach if20% improvement in ozone is needed for the area to reach attainment, itis 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, andis not what EPA did. The prohibition in Appendix W applies
to theuse ofarollback method which is empirically/mathematically derived andindependent ofmodel estimates or observed air quality and emissions changes as the solemethod for evaluating control strategies. For the demonstrations under proposal, EPA used alocally derived (as determined by the model and/or observed changes in air quality) ratio ofchange 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 ofozone improvement. EPAhas generally relied on photochemical modeling to evaluate the attainment demonstrations and their control strategies, and has usedlocally 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 soundthan the unacceptable use of proportional rollback. The limited use ofadjustment factors is more practical in light ofthe uncertainty in the modeling, theresources andtime required to perform additional modeling, and the requirement that

areas perform a progress check bythe end of2003.

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 ofappendix W states, "It shouldnot be construed that the preferred models identified here are the only models available for relating emissions to air quality." Section 3.2.2 ofAppendix W further provides thatthe "determination ofacceptability ofa model is a Regional Office responsibility. Where the Regional Administrator finds that an alternative model is more appropriate than apreferred model, thatmodel may be used subject tothe 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 havethe 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 Wwas designed to allow changes in the predictive tools and databases without undergoing additional rulemaking. In
any event, the EPAis taking comment during the SIP rulemaking process on the application ofits guidance.

A commenter also expressed concern thanEPA applied unacceptably broad discretion in fashioning and applying the WOE determinations. EPA disagrees. The WOE determinations are made on a case-by-case basis. EPAhas approved attainment demonstrations based on WOE determinations, generally with a requirement for additional reductions
notmodeled, only when the 

### 650

HeinOnline -- 66 Fed. Reg. 650 2001

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

photochemical modeling provides a basis for believing thatthe SIP controls will achieve substantial ozone reductions, ifnot attainment levels. The fact thatthe WOE factors are incremental and differ between demonstrations, leads EPA to conclude these determinations may be made ona case-by-case basis, without hard-andfast guidelines. Moreover, EPAbelieves that the WOE approach isbounded by the strength ofthe various factors that may be applied. The commenter added,

as an example, EPA's application ofthe 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 limitof 137 ppb. The commenter observed that EPA adjusted the modeled prediction on averageby a factor of19% to account for model over prediction, and statedthat such an adjustment was not appropriate. In EPA's view, the 19% over prediction that underlies the 142 ppb level is only

arough approximation ofthe extent of modeling uncertainty. In EPA's view, consideration ofmodel performance (specifically, a bias to under- oroverpredict 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 ofthe other attainment demonstrations received. Both the
assessment ofmodel performance and the estimated future design value were used in the WOE determination. 7

7Observing thatfor 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 ofmodel performance (both over- andunder-prediction) as

one ofthe factors affecting the model results. In general performance measures thatfall 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 ofthe WOE. The technique is described in "Technical Support Document for the One-Hour Ozone Attainment Demonstrations submitted by the State ofMaryland. Commonwealth ofVirginia and the District ofColumbia for the Metropolitan Washington, D.C. Ozone Nonattainment Area," November 30, 1999. The modeled peak ozone results generally correlated (ingeographic proximity) with the monitored peak ozone emissions (and the modeled plume generally correlated (ingeographic proximity) with the observed ozone plume), except that the peak modeled ozone levels averaged approximately 19- 20% higherthan the peak monitored levels. Modeling uncertainties (including, for example, the non-linearity ofthe modeling) lead EPA to conclude that adjusting each modeled peak by the 19%
average over-prediction was atleast as sensible as adjusting each modeledpeak by an amount that corresponds to thatmodeled peak's relationship to the monitored ozone value in the same vicinity. The commenter also complained that EPA has applied the WOE determinations to adjust modeling results onlywhen those results indicate nonattainment, and not when they indicate attainment. WOE is not used to adjust model results. WOE is additional analysis that isreviewed 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 otherWOE, as well. For example, EPA considered current air quality, model performance (over- aswell as underprediction), number ofepisode days, model predicted future design values, andresults from the regional modeling for the NOx SIP call, where applicable. For a given attainment demonstration any one ofthese elements could have indicated the area may not attain. But collectively the information supported EPA's decision. EPA has applied WOE determinations to all ofthe current demonstrations under proposal, although except for the Chicago and Milwaukee attainment demonstrations, the modeling results submitted donot pass the recommended "modeled attainment test." Reference the individual proposals for howWOE was applied in each case. These determinations were made based on EPA's best understanding ofthe problem andrelied on a qualitative
assessment as well as quantitative
assessments ofthe available information. In some cases, EPA believed the demonstration of attainment was not conclusive, andin these cases EPA made the determination that additional emission reductions

were needed to strengthen the demonstration.

The commenter further criticized EPA's application ofthe WOE determination ongrounds that EPA ignores evidence indicating that continued nonattainment is likely, such
as, according tothe 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 otherinformation 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 andlack of emission reductions. The 1999 monitor values donot reflect several control
programs, both local andthe regional which are scheduled for implementation in the next several years. And the 1999 meteorology in the Northeast was suchthat July 1999 was
one ofthe warmest (ranked 9th) ever experienced since 1895.8 In addition to the heat, the middle and southern portions ofthe Northeast were also drier than average during this month. This information supports EPA'sbeliefthat the high exceedances observed in 1999

are not likelyto reoccur frequent enough to cause aviolation, once the controls adopted inthese 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 bymargins 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 orwill 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 awider margin thanthe UAM predictions for 1999. In
summary, there is little evidence to support the conclusion thathigh exceedances in 1999 will continue to

occur after adopted control measures are implemented.

In addition, the commenter argued thatin applying the WOE determinations, EPAignored 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 ispresently evaluating mobile source emissions data

as part ofan effort toupdate the computer model for estimating mobile

source emissions. EPA is considering various changes to the model, and isnot prepared to conclude at this time that the net effect ofall these various changes would be toincrease 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 intheir motorvehicle 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 ifthe new emission estimates raise issues about

8http://www.ncdc.noaa.gov/ol/climate/research/ 1999/perspectives.html and "Regional Haze and Visibility inthe Northeast U.S.," NESCAUM at http://www.nescaum/org/pdf/pubslist.pdf.

HeinOnline -- 66 Fed. Reg. 651 2001

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

the sufficiency ofthe attainment demonstration. Corrections, ifneeded, will be made in time for the progress check in 2003 and ifthe analysis indicates additional measures are needed, EPA will take the appropriate action.

Comment2:Acommenter 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, northe so-called "weight-of-evidence" approach demonstrates that CT will achieve attainment by 1999, by 2007 orby any other date. The commenter also states that the "weight ofevidence/design value rollback" approach is inconsistent with section 182(c)(2)(A) ofthe CAA and with EPA guidance and is concerned thatthe analysis relies on use ofair quality design values that are heavily dependent on meteorology and

can easily increase.

Response2:The Connecticut 1-hour

ozone attainment demonstration is based onphotochemical grid modeling and weight ofevidence analyses as recommended in the guidance 9. Comments on theuse ofthis approach andits consistency with section 182(c)(2)(A) ofthe CAA are discussed in
response 1above ofsection VI.B. This guidance allows theuse ofa WOE analysis to support a modeled control strategy thatdoes not predict concentrations that are ator below the 1-hour ozone NAAQS compliance level of124 ppb.

EPA agrees thatmeteorology ofany given summer can dictate the ozone designvalue, because ofthe unique relationship between elevated ambient ground-level ozone and hot, sunny weather, andin Connecticut, between hot, sunny weather and ozone transported into Connecticut at the surface by southwesterly winds from the major metropolitan areas ofNew York City, Philadelphia, Baltimore and Washington, plus winds aloftfrom the NOx laden Midwest. June andJuly of 1999 were particularly hot for Connecticut and the ambient ozone levels reflect this. In 1999 the ozone designvalue 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 ofthe earlier "weight of evidence" contained in the submittal

9Guidance on the Use ofModeled Results to Demonstrate Attainment ofthe Ozone NAAQS. EPA-454/B-95-007,June 1996. are reversed. High monitoring readings may have occurred for many reasons including, fluctuations dueto changes in meteorology or lack ofadditional emission reductions in more recent years.

The 1999 monitor readings donot reflect several control programs relied

onfor attainment, including both local

measures andthe 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 notvalid. However, analysis ofrecent air quality trends predicts thatthe peak ozone values will be less than 125 ppb andthe number ofexceedances ofthe air quality standard will be less than one per year by the year 2005. Since a number of emission control programs, such asthe NOx SIP Call, and Tier 2car standards

are still tobe implemented and others, like the OTC NOx agreement and vehicle inspection and maintenance programs, are stillbeing implemented (i.e., not yet achieving full emissions reduction benefit), emissions ofozone precursors will continue to decrease from now through 2007, producing attainment ofthe 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 theWOE determination, EPAhas made this determination based on allof the information presented by the State and available toEPA. This includes model results for the local control

measures andthe regional NOx SIP call along with additional analyses ofair quality data and estimates offuture design values. Therefore, EPA believes Connecticut will attain the standard, as expeditiously aspracticable, through implementation of adopted local controls andregional NOx reductions.

C.Relianceon NOxSIP CallandTier IIModeling
Comment:Given the uncertainty surrounding the NOx SIP Call atthe time ofEPA's proposals onthe attainment demonstrations, there is no basis for the conclusion reached byEPA that States should assume implementation ofthe NOx SIP Call, or rely on it as apart oftheir demonstrations. The commenter references modeling data which demonstrates thatthe benefits of imposing NOx SIP Call controls are limited to areas near the sources controlled.

The commenter adds thatthere are
errors in the emissions used for the NOx SIP Call Supplemental Notice (SNPR). The commenter believes thatbecause of inaccurate inventories the modeling analyses, estimates ofair quality based

on thatmodeling, and estimates of EPA'sTier II tailpipe emissions reduction program not modeled in the demonstrations, are also flawed.

Response:InMichiganv. EPA, 213 F.3d 663 (D.C. Cir. 2000), the court upheld the NOx SIP Call on most issues, although a subsequent order ofthe court delays the implementation date to no laterthan May 31, 2004. EPA is moving forward to implement those portions of the rule thathave been upheld, ensuring that most-if not all-ofthe emission reductions from the NOx SIP call assumed bythe States in their 1-hour

ozone NAAQS attainment demonstrations will occur. EPA's modeling to determine the region-wide impacts ofthe NOx SIP call clearly shows thatregional transport ofozone and itsprecursors is impacting nonattainment areas several States
away, and this analysis was upheld by the court. Therefore, it is appropriate for States to assume implementation ofthe NOx SIP Call.

The EPA considered many factors when making these determinations. No single piece ofinformation was determinant. Itis important to recognize thatthe regional modeling for the Tier II rule was not usedin the 1-hour attainment demonstrations and that the SNPR modeling was only one ofseveral factors considered. EPA's decision was based on a qualitative assessment ofthe information presented. Information reviewed included results ofthe modeled attainment test, along with other supplemental information such as other modeled outputs (e.g., changes in the predicted frequency and pervasiveness of1-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 ofthe model predictions to further controls; and for some ofthe demonstrations estimates ofadditional emission reductions. EPArecognizes that any and all ofthis information has some degree ofuncertainty, including the SNPR modeling. EPArecognizes thatthese uncertainties should be considered when making these determinations and thatis why EPA considered other factors. EPA's weight ofevidence determinations are not affected by error in any one piece ofthe information. 652

HeinOnline -- 66 Fed. Reg. 652 2001

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

D.ImpactoftheNOx SIP Callon Attainment ofthe 1-Hour NAAQS
Comment:One commenter states that Massachusetts's NOx emissions interfere with attainment in downwind

areas ofNew Hampshire and Maine and that Connecticut's NOxemissions interfere with attainment in downwind

areas ofMassachusetts, New Hampshire andMaine. Therefore, the commenter states that significant additional NOx reductions are needed for these areas to attain the 1-hour ozone NAAQS. The
commenter alsoremarked thatneither 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 andNew 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 onJuly 12, 2000 (65 FR 42907). Similarly, Connecticut submitted arule 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 datafor 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(IncludingTransportation ControlMeasures)

1.Comments on December 16, 1999 Proposal
Comment:Several commenters have statedthat there is no evidence in several states that theyhave adopted reasonably available control measures (RACM) orthat 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 statedthat mobile source emission budgets in theplans are by definition inadequate because the SIPs donot demonstrate timely attainment or contain the emissions reductions required for all RACM. That commenter claims thatEPA may not find adequate

amotor vehicle emission budget (MVEB) that is derived from aSIP that is inadequate for thepurpose for which it is submitted. The commenter alleges that none ofthe MVEBs submittedby the states that EPAis considering for adequacy is consistent with either the level ofemissions achieved by implementation ofallRACM; 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 EPAreviewed the SIP submittals for the four serious areas (Greater Connecticut, Western Massachusetts (Springfield); Washington, D.C.-Virginia-Maryland; andAtlanta, Georgia 10) and determined that they did not include sufficient documentation concerning available RACM measures. Therefore, EPA reviewed numerous potential RACM

measures. As part ofthis 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 ofAir Quality Planning and Standards, Research Triangle Park, NC 27711; and Office of Transportation andAir Quality, Ann Arbor, MI48105. October 12, 2000. An electronic version ofEPA's RACM analysis cited above can be downloaded
atwww.epa.gov/ttn/rto under "What's New." The EPApublished anotice of availability ofthis material on October 16, 2000 (65 FR 61134) and provided initially a 15 day public comment period on the material. The EPA extended thepublic commentperiod on this supplemental material for an additional 15 days in a notice published November 2, 2000 (65 FR 65818) and corrected onNovember 9, 2000 (65 FR 67319).

Section 172(c)(1) ofthe Act requires SIPs to contain RACM and provides for

areas to attain as expeditiously as

10This response to comment document willnot address Atlanta; that willbe addressed in the future when EPA takes final rulemaking action on the Atlanta SIP. 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 ifmeasures are reasonably available they mustbe adopted as RACM. Finally, EPAindicated that
states could reject measures as not being RACMbecause they would not advance the attainment date, would cause substantial widespread and long-term adverse impacts, or would be economically ortechnologically infeasible. The EPA also issued arecent 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 ofAir Quality Planning and Standards. November 30, 1999. Web site: http://www.epa.gov/ttn/oarpg/ tlpgm.html.

The EPA's RACM analysis cited above evaluated emission levels ofoxides of nitrogen (NOx) andvolatile organic compounds (VOC) and their relationship to the application of
current and anticipated control

measures expected tobe implemented in four serious one-hour ozone nonattainment areas. This analysis was done to determine ifadditional RACM

are available after adoption ofClean 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 03 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 EPAtherefore concludes thatthe SIPs for these areas meet the requirement for adopting RACM. 

### 653

HeinOnline -- 66 Fed. Reg. 653 2001

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

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) toreach attainment. In the NOx SIP call, 63 FR 57356, EPA concluded thatreductions from various upwind States were necessary to provide for timely attainment in nonattainment areas in various downwind States, including all four ofthe nonattainment areas that

were the subject ofthis analysis. The NOx SIP call therefore established requirements for control ofsources of significant emissions in all upwind States. However, these reductions were not slated for full implementation until May 2003. Further, the United States Court ofAppeals for the District of Columbia Circuit recently ordered that EPA could not require SIPs to provide for full implementation ofthe NOx SIP call prior toMay 2004. Michigan,etal.,

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 tobe achieved from regional NOxreductions (such as the NOx SIP call) are substantial. (Seethe individual attainment demonstrations in the docket for each ofthese 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 ofthe 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 sectionVI.A. Briefly, however, the extensions are being given mainly due
to the fact thatthese areas will have to rely on emission reductions from upwind areas. Some ofthose upwind reductions willbe provided under the NOx SIP call rule with compliance in 2004, andfrom 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 toreach attainment. The New York nonattainment areaclassified severe-has a statutory

"Several States (DE, PA, CT, MA,RI, ME, NY, NJ) have submitted plans providing forreductions by 2003. EPAhas fully approved three ofthese plans (CT, MA, RI). attainment date ofas late as 2007. The SIP submitted for New York City, which EPA hasproposed to approve, establishes a 2007 attainment date. Itis 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 andthe best available evidence indicates that date will be 2007. EPA's

zero outmodeling analyses conducted in support ofEPA's NOx SIP call show that even eliminating all of Connecticut's emissions does not help Connecticut attain prior tothe time New York Cityreaches attainment, since the effects oftransport 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, andthus that

no additional measures are considered RACM. One could also argue thatthe

measures needed in the upwind area that is affecting the area in question couldbe implemented earlier and therefore could result in earlier attainment. The EPA recognizes thatit has not taken final rulemaking on the

severe areas that affect the three serious

areas in question (NewYork for the Greater Connecticut andWestern 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, andbecause it does
not have information tothe contrary at this point, EPA must presume the attainment dates submittedby the States and for which EPAproposed approval

onDecember 16, 1999, and therefore
presume that emission controls for those

severe areas will be implemented as expeditiously aspracticable on a schedule to achieve those reductions. Because EPA proposed to approve the attainment dates for the severe areas in question, itis reasonable to assume that the severe areas cannot implement their

measures to achieve attainment any

more expeditiously.

Thus, EPAbelieves that implementation of additional measures in the Greater Connecticut area will not advance the attainment date, prior to implementation bythe upwind area of alllocal measures needed to attainby the area's attainment date.

Therefore, EPA concludes, based on the available documentation, thatthe reductions from additional control

measures willnot advance attainment, andthus none ofthese potential

measures analyzed can be considered RACM for purposes ofsection 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 ofwhich are the "upwind" areas referred to inthe above
responses for serious areas, such

measures may in factbe RACM, and the States in which such areas are located have aresponsibility toperform an analysis ofwhether additional measures
are RACM. EPA is about to issue additional guidance concerning the RACM requirement for the severe areas. In addition,ifin the future EPAmoves forward to implement another ozone standard, thisRACM 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 ofcontrol

measures thatthe commenters have suggested, andEPA has indeed provided guidance onthose 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 aspracticable,

some areas may need to consider and adopt anumber ofmeasures-including the kind thatEPAitself 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 ifsuch measures do
not advance the attainment date-since suchmeasures will likely improve air quality.Also, over time, emission control measures thatmay not be RACM

nowfor 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 ofcontrol technology

as they make progress toward attainment and consider new control technologies that mayin factresult in

more expeditious improvement in air quality.

Discussion ofother factors related to RACM, such as economic and technological feasibility, are discussed below in responses to comments on EPA'sRACM analysis.

Elsewhere in thisresponse to comments, EPA addresses the issue of 654

HeinOnline -- 66 Fed. Reg. 654 2001

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

whether the attainment dates are as expeditious as practicable andthat discussion isnot repeated here.

EPA previously responded to comments concerning the adequacy of MVEBs when EPAtook 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
commentrelated to severe areas willbe provided at the time EPAtakes final rulemaking action on those areas.
2. Commentson October16, 2000 Notice of Availability
Comment1:EPAcannotinvent rationales forthe 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 CementCo. 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 ofwhat the state proposes and amend the proposal ad libitum." Id.If
states are going toreject control
measures, their decision to do so and the rationale therefore must be subject
to notice and hearing at the state and local level.

Response1:The SIP submittals from the States for the Metropolitan Washington, Western Massachusetts, andthe Greater Connecticut nonattainment areas contained no

measures adopted for the sole purpose ofsatisfying the RACM requirement. The public did have achance to comment at the State level on the fact that there were no additional measures. The EPAinterpreted this lackof additional measures as an indication that the State did not identify any additional measures asmeeting 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 ofwhy itwas acceptable for the State to identify no additional

measures to meetthe RACM requirement ofthe Clean Air Act.

The commenter cites Riverside Cementfor the proposition that EPA
cannot perform an analysis ofwhether the State's plan complies with the CAA's RACM requirement. The EPA believes that the holding ofthat 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 attemptto modify a substantive control requirement ofthe submittedplan. Rather, EPA performed additional analyses to determine ifthe plan, as submitted, fulfilled the substantive RACM requirement ofthe Act. As a general matter, EPA believes that States shouldperform their own analyses of RACM (aswell as submitting other supporting documents for the choices they make). The statuteplaces primary responsibility on the Statesto submit plans that meet the Act's requirements. However, nothing in the Act precludes EPA from performing those analyses, andthe Act clearly provides thatEPA
must determine whether the State's submission meets the Act's requirements. Under that authority, EPA believes that itis appropriate, though
not mandated, that EPAperform independent analyses to determine whether a submission meets the requirements ofthe Act. The EPA has
not attempted to modify the State's submission by either adding or deleting

a substantive element ofthe submitted plan. Byvirtue ofthe supplemental RACM analysis, EPAhas concluded that the State's initial submission contains control measures sufficient to meet the RACM requirement.
Comment2 (a):Inappropriate grounds forrejectingRACM. The
commenter claims thatEPA's bases for rejecting measures asRACM 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 ofthese grounds are legally or rationally sufficient bases for rejecting control measures.

Response2(a):The EPA's approach toward the RACM requirement is grounded in the language ofthe Clean Air Act. Section 172(c)(1) states that a SIP for a nonattainment area must meet the following requirement, "In general.-Such planprovisions shall provide for the implementation of all reasonablyavailablecontrolmeasures

asexpeditiouslyaspracticable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, ofreasonably available control technology) and shallprovide forattainmentofthenational primary ambientairqualitystandards." [Emphasis added.] The EPAinterprets this language as tyingthe RACM requirement to the requirement for attainment ofthe national primary ambient air quality standard. The Act provides thatthe attainment date shall be "as expeditiously as practicable but

no laterthan * * *"the deadlines specified in the Act. EPAbelieves that the use ofthe same terminology in conjunction with the RACM requirement serves the purpose of specifying RACM as the way of expediting attainment ofthe NAAQS in advance ofthe deadline specified in the Act. As stated inthe "General Preamble" (57 FR 13498 at 13560, April 16, 1992), "The EPAinterprets 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 ascomponentsofthearea's attainmentdemonstration."[Emphasis added.] In other words, because ofthe construction ofthe RACM language in the CAA, EPA does not viewthe RACM requirement as separate from the attainment demonstration requirement. Therefore, EPA believes that the Act supports its interpretation thatmeasures maybe determined to not be RACM if they do not advance the attainment date. In addition, EPAbelieves that it would notbe reasonable to require implementation ofmeasures that would
notin fact advance attainment. See 57 FR 13560.

The term "reasonably available control measure" isnot actually defined in the definitions in the Act. Therefore, the EPA interpretation thatpotential

measures maybe determined not to be RACM iftheyrequire an intensive and costly effort for numerous small area
sources isbased onthe common sense meaning ofthe phrase, "reasonably available." Ameasure thatis reasonably available is one that is technologically and economically feasible and that can be readily implemented. Ready implementation also includes consideration ofwhether emissions from small sources are relatively small and whether the administrative burden,
to the States andregulated entities, of controlling such sources was likelyto be considerable. As stated in the General Preamble, EPAbelieves that States can reject potential measures based on local conditions including cost. 57 FR 13561.

Also, the development ofrules for a large number ofvery different source categories of small sources for which little control information may exist will likely take much longer than

HeinOnline -- 66 Fed. Reg. 655 2001

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

development ofrules for source categories for which control information exists orthat comprise a smaller number oflarger sources. The longer the time frame for development ofrules 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 ofreductions expected from upwind controls, such as from the NOx SIP call and controls from severe areas with later statutory attainment dates. Comment2(b):EPA's approach also illegally assumes that the attainment dates for these areas canbe extended beyond November 15, 1999 via the Agency's downwind transport policy.

Response2(b):Asnoted above, EPA concluded that RACM islinked in the language ofthe 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. SeeSection 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.
Comment3:Failure to quantify reductionsneededtoattainsooner. Even ifadvancement ofthe attainment date were a relevant test for RACM, EPA has failed to rationally justifyits claim that additional control measures would
not meet thattest. To begin with, neither the Agency nor the states have quantified in amanner consistent with EPA rules and guidance the emission reductions thatwould be needed to attain the standard prior to achievement ofemission reductions required under the NOx SIP call.

Response3:Elsewhere in this
response to comments on theproposed approval ofthe 1-hour ozone SIPs, EPA addresses the issue ofthe attainment date extension. SeeSection 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 ifitcannot attain without the reductions from the upwind

area. In the case ofGreater Connecticut, it would be futile to perform analyses of whether additional emission reductions in the nonattainment area-whether RACM orbeyond RACM-would advance the attainment date when itis already demonstrated through modeling that the area cannot attain sooner than the upwind New York City nonattainment area thatneeds 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 ofimplementation of additional

measures are also discussed above.

The regulation Connecticut adopted
to meetEPA's NOx SIP call requires compliance with covered emission reductions in 2003, which EPA considers as expeditiously as practicable for those sources. Comment4:Inadequate RACM analysis.EPA's RACM analysis is grossly inadequate in several key respects. Comment4(a):EPA's analysis fails to provide the technical basis and calculations bywhich itdeveloped its emission reduction estimates for various

measures. EPAfailed to provide citations to the literature regarding estimates ofemission reductions for various TCMs. EPAfailed to specify the level ofimplementation assumed for

some ofthe TCMs in the analysis.

Response4(a):EPA's RACM analysis (found atwww.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 ofestimated emission reductions were derived from areview ofthe literature on the implementation and effectiveness ofTCM's.12 The TCMs evaluated depend onthe level of implementation. Implementation variables, representing levels of implementation effort, are implicit in the range ofeffectiveness for each category ofTCM. EPA does not believe it isnecessary, or evenpossible, to evaluate every explicit variation of TCM's in order to adequately determine ifitis reasonably available. EPA believes that using the midpoint level of effectiveness represents a level of implementation effort that isnot so high

asto be economically infeasible, nor so low as to be ineffective. Comment4(b):EPA's analysis looks at only a smalluniverse ofpotential
measures, and does not evaluate all of the measures identified in public
comment and other sources.

12Transportation ControlMeasures: State Implementation Plan Guidance, USEPA 1992; Transportation Control Measure Information Documents, US EPA 1992; Costs andEffectiveness ofTransportation ControlMeasures: AReview and Analysis ofthe Literature, National Association of Regional Councils 1994. Response4(b):EPA's RACM analysis

was intended to address all potential categories of stationary and mobile

sources that could provide additional emission reductions thatmightbe considered RACM. The EPA believes that all identified measures were included in the categories addressed in the analysis.

Comment4(c):EPA's analysis also completely fails to consider the additional benefits likelyfrom combined implementation of complementary TCMS, e.g., parking management along with transit improvements. It is arbitrary and irrational for EPAto assume that these

measures can andwill be implemented in complete isolation from one another.

Response4(c):EPArecognizes that many control measures-particularly TCMS-are more effective ifdone in conjunction with others. EPAmaintains, however, that itwould be impossible to analyze a seeming infinite set of combinations ofmeasures forpossible benefits. The EPA's analysis did look at all measures invarious categories and concluded that as a whole these categories ofmeasures would not advance attainment or would otherwise
notbe reasonably available.

Comment5: Stationarysources.The analysis ofpotential emission reductions from additional stationary

source measures is flawed in several key respects.

Comment5(a):First, EPA arbitrarily excluded from any consideration the bottom 20% ofthe stationary source categories.

Response5(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 yieldmany emission reductions. The EPAbelieved that controls on categories with very low emission reduction potential would not constitute RACM. The fact thatnone ofthe top 80 percent ofthe categories considered for additional controls yielded measures thatEPA considered RACM for the areas in question validates EPA's decision not to analyze separately the bottom 20 percent ofthe categories, which would cumulatively have achieved fewer emission reductions. Therefore, EPA concludes that controlmeasures applied
to thebottom 20 percent ofthe categories are also not RACM.

Comment5(b):Second, EPA did not consider potential additional controls

on electric generating units and point

source combustion sources.

Response5(b):Undoubtedly there are additional controls that could be placed 

### 656

HeinOnline -- 66 Fed. Reg. 656 2001

### 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 thatthe implementation of the RACT requirements in nonattainment areas and, more importantly, the implementation ofthe NOx SIP call in all areas affecting the nonattainment areas in general provide

alevel ofcontrol 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 ofcontrol presumed byEPA under the NOx RACT requirement. The NOx SIP call isbased

on alevel ofhighly cost effective controls, characterized as having a $2000 per ton cost effectiveness orless (63 FR 57400, October 27, 1998). The presumptive level ofRACT provided in EPA guidance isbased on cost effectiveness up to $1300 per ton (Memorandum ofMarch 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 maybe cost-effective. However, the control costs do not reflect other concerns regarding reasonableness ofcontrol. EPA received comments that predicted problems with availability of electrical generation even at the NOx SIP call level ofcontrol; therefore, in its final NOx SIP call rule, EPAincluded provisions for aNOx 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 oftime for Western Massachusetts and Metropolitan Washington to attain. Therefore, EPA had determined that such additional controls donot constitute RACM.

Comment5(c):Third, EPA assumes that only a 50% level ofcontrol is achievable for the uncontrolled emissions. This completely unsupported claim is hardto fathom.

Response5(c):EPA's long-standing guidance on the RACT requirement for stationary sources ofVOC has generally assumed a presumptive norm of81 percent control efficiency; this efficiency was based on the assumption ofa 90 percent capture efficiency and 90 percent control efficiency ofthe captured emissions (0.9 x 0.9 = 0.81). However, the specific VOC RACT control techniques guidelines were developed for emission sources for which much information about emissions and controls was available. The RACT rules often apply to smaller

sources as well asto major sources. There isnot nearly as much information available concerning source categories for which RACT guidelines have not been developed; nor isthere information regarding what controls are appropriate for the smaller sources that

are not already subject toRACT. Therefore, without further information, EPA was hesitant to assume an 81 percent level ofcontrol. EPA therefore chose a 50 percent level ofcontrol for VOC control, which EPA believes is reasonable in light ofour limited knowledge on available controls.

The EPA established guidance to States in complying with the Clean Air Act's requirements for NOxRACT in the NOx Supplement tothe General Preamble (57 FR 55620, November 25, 1992). That guidance addressed RACT for major stationary sources ofNOx. Under section 182(b)(2) ofthe Act, moderate andhigher 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 ofcontrol for NOx for major stationary sources. For NOx emission control for other sources, when EPApublished the NOx SIP call (63 FR 57402, October 27, 1998), EPA evaluated other levels ofcontrol for categories of stationary sources that

were not included in the highly costeffective controls assumed for establishing the level ofcontrol reflected in the Statewide NOx emission budgets in thatrule. The EPA determined that for area sources, additional controls that were technologically feasible andhighly costeffective could not be identified. The EPA determined thatfor smallpoint
sources, their collective emissions were relatively small and the administrative burden, tothe States and regulated entities, of controlling such sources was likely to be considerable. Nonetheless, for the purpose ofthe RACM analysis, EPA did assume alevel ofcontrol for

sources withpotential for control. In light ofthe lower level ofconfidence in information concerning NOx controls on these sources, andthe conclusion concerning cost effectiveness, however, EPA believed it had totake a more conservative approach, andthus chose a lower level ofcontrol, namely 50 percent. The EPAbelieves this level is reasonable in light ofthese facts.

Comment6:Transportation Control Measures as RACM: EPA gives virtually

no consideration to the emission reduction benefits oftransportation programs, projects and services contained in adopted regional transportation plans (RTPs), or that are clearly available for adoption as part of RTPs adopted for anonattainment area. In addition,it is arbitrary and capricious for EPAnot to require as RACM economic incentive measures that are generally available toreduce motor vehicle emissions in every nonattainment area.

Response6:EPA's notice of availability ofthe 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

sevenbroad categories and twentyseven subcategories ofTransportation Control Measures (TCMs) thatrepresent

a range ofprograms, projects and services that canbe included in RTP's and TIP's. The inclusion ofa TCM in an RTP or TIP does not necessarily mean thatitmeets EPA's criteria for RACM and mustbe included in the SIP. EPA has concluded thatimplementation of these TCM's would not advance the attainment date forthe Greater Connecticut area, and therefore are not considered RACM for purposes ofthe attainment SIPs for that area.

Some ofthese TCM's, such as parking cashout, transit subsidies, and parking pricing, are explicitly economic incentive programs. Furthermore, these categories ofTCMs, as well as most of the others, couldbe infinitely differentiated according to criteria, such

as the method ofimplementation, level ofpromotional effort or market penetration, stringency ofenforcement,
etc. The application ofeconomic incentives to increase the effectiveness ofa TCM is one such criterion. These implementation variables, representing levels ofimplementation effort, are implicit in the range ofeffectiveness for each category ofTCM. EPA does not believe itis necessary, or even possible,
to evaluate every explicit variation of TCM's in order to adequately determine ifitis reasonably available. EPA believes thatusing 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.

HeinOnline -- 66 Fed. Reg. 657 2001

### 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 mightimplement 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 arebeing 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 theywould advance the ozone attainment date.

Comment7:EPA did not provide sufficient notice and time topermit adequate comment.

Response 7:In its initial notice of availability ofthe 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 statingthat this would provide a total of 30 days for public
comment. Unfortunately, thatnotice

was published with a typographical

error thatappeared to extend the
commentperiod an additional year and 15 days. Therefore, on November 9, 2000 (65 FR 67319), EPA published a correction to clearly extend the
commentperiod 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 itquite clear thatthe extension was for only 15 days toprovide a total of 30 days for comment; EPAbelieves no possible confusion should have resulted from the fact thatthe end date ofthe comment period contained atypographical error. Comment8:EPAis trying to circumvent obligations under 2Consent Decrees (MOGv.EPA and NRDCv. Browner).

Response8:This comment refers to consent decrees filed in two cases: NRDCv. Browner,No. 99-2976 (D.D.C.) andMidwest Ozone Groupv. EPA,No. 00-1047 (D.D.C.). InNRDC,the consent decree provides that byNovember 15, 2000, EPA shall propose a federal implementation plan (FIP) for the Springfield, Massachusetts; Greater Connecticut; andMetropolitan Washington D.C. nonattainment areas if EPA has not approved full attainment demonstration SIP for that area. The
consent decree forMidwest Ozone Groupis similar,but not identical. It provides thatEPA shall propose federal implementation plans (FIPs) for two of the three nonattainment areasSpringfield, Massachusetts and Greater Connecticut-if EPAhas not proposed approval ofa full attainment demonstration SIP for that area. The EPA met its obligation under the Midwest Ozone Groupdecree when it proposed approval ofthe full attainment demonstration SIPs for those two areas

onDec. 16, 1999. 64 FR 70319 and 64 FR 70332. OnNovember 6, 2000, the District Court granted EPA's unopposed motion to extend the deadline for action under the NRDCdecree until December 15, 2000 for each ofthe three areas. On December 7, 2000, the courtfurther extended the date for EPA action with respect to Springfield until December 22, 2000. The EPAhas complied with the NRDCconsent decree withrespect 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 theNRDCconsent decree for the Springfield, Massachusetts nonattainment area by December 22, 2000.

Comment9:Since EPA found that MA and CT failed to conduct an adequate RACM analysis, EPA must disapprove the SIPs and propose a FIP.

Response9: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 thatthe SIPs for these two areas meet the RACM requirement ofthe Act. See above the
response to comment.

F. Relianceon CommitmentsandState 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, andMetropolitan Washington, DC ozone nonattainment

areas because not all ofthe emissions reductions credited in the demonstrations or plans are supported by legally enforceable limitations adopted and approved bythe state or District and approved bythe EPA as part ofthe SIP. Commenters also objected to accepting enforceable state commitments to adopt emission reduction control measures in the future in lieu ofcurrent adopted measures. Response:The EPA has approved previously, or is approving together with the attainment demonstrations, all outstanding emission reduction limitations relied onfor attainment for these three areas. Thus, none ofthe three areas on which the EPAis 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 MotorVehicle EmissionsBudgets
Comment:Wereceived a number of
comments about the process and substance ofEPA's review ofthe adequacy ofmotor vehicle emissions budgets for transportation conformity purposes.

Response:EPA's adequacy process for the Greater Connecticut area has been completed, and we have foundthe
motorvehicle emissions budgets in the SIPs tobe adequate. Wehave already responded to any comments related to adequacy when we issued our adequacy finding, andtherefore we are notlisting the individual comments or responding
to them here. Our finding ofadequacy 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. RateofProgress MotorVehicle EmissionsInventory
Comment:Several commenters stated thatthe motor vehicle emissions inventory is not current, particularly with respect to the fleet mix. Commenters stated thatthe fleet mix does not accurately reflect the growing proportion ofsport utility vehicles and gasoline trucks, which pollute more than conventional cars. Also, a commenter statedthat EPA and States havenot 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 takingfinal action on isbased onthe
mostrecent vehicle registration data available at the time the SIP was submitted. The Connecticut SIP isbased

onvehicle registration data from 1996, which is the mostrecent data available
atthe time the SIP was submitted. The SIP also contains vehicle fleet characteristics that are in the most recentperiodic inventory update, which

was submitted on March 13, 2000. EPA requires the most recent available data 

### 658

HeinOnline -- 66 Fed. Reg. 658 2001

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

to be used,but we do not require itto be updated on a specific schedule. Therefore, different SIPs base their fleet mix on different years ofdata. Our guidance does not suggest that SIPs shouldbe disapproved onthis basis. Nevertheless, we do expect that revisions to these SIPs that are submittedusing MOBILE6 (as required in those cases where the SIP isrelying

on emissions reductions from the Tier 2 standards) will use updated vehicle registration data appropriate for use with MOBILE6, whether itis updated local data or the updated national default data that will be part of MOBILE6.

L VOCEmissionReductions
Comment:For States thatneed additional VOC reductions, this
commenter recommends a process to achieve these VOC emission reductions, which involves the use ofHFC-152a (1,1 difluoroethane) as theblowing agent in manufacturing ofpolystyrene foam products such as food trays and eggcartons. HFC-152a could be used instead ofhydrocarbons, a known pollutant, asa blowing agent. Use of HFC-152a, which is classified as VOC exempt, would eliminate nationwide the entire 25,000 tons/year ofVOC emissions from this industry.

Response:EPA has met with the
commenter andhas discussed the technology described bythe company to reduce VOC emissions from polystyrene foam blowing through the use ofHFC152a (1,1 difluoroethane), which is a VOC exempt compound, as a blowing agent. Since the HFC-152a isVOC exempt, itsuse would give a VOC reduction compared to the use ofVOCs such as pentane or butane as a blowing agent. However, EPA has not studied this technology exhaustively. Itis 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 ofHFC152a, States may want to consider claims thatproducts made with this blowing agent are comparable in quality
to products made with other blowing agents. Also the question ofthe over-all long term environmental effect of encouraging emissions offluorine compounds would be relevant to consider. This is a technology which States may want to consider, but ultimately, the decision ofwhether to require this particular technology to achieve the necessary VOC emissions reductions mustbe madeby 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 forMeasuresNotFully Implemented
Comment:States shouldnot 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: OnMarch 22, 1995 EPAissued 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 onthe anticipated promulgation ofa national AIM coatings rule. In developing the attainment andROP 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 at40 CFR Part 59 Subpart D. In the preamble toEPA's final AIM coatings regulation, EPA estimated thatthe regulation will result in 20% reduction ofnationwide 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 EPApolicy memorandum. In accordance with EPA's final regulation, States have assumed a 20% reduction from AIM coatings source categories in their attainment andROP 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, atthe latest, by September 2000. Industry confirmed in comments

onthe proposed AIM rule that 12 months between the issuance ofthe 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, afterthe compliance date, the volume ofnonconforming products would be very low (less than

one percent) and would be withdrawn

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 ofAir Quality Planning and Standards to Air Division Directors, Regions I-X. fromretail shelves anyway. Therefore, EPAbelieves that compliant coatings

were in useby the Fall of 1999 and that itwas appropriate for the States to take credit for those reductions in their SIPs.

AutobodyRefinish CoatingsRule: Consistentwith a November 27, 1994 EPApolicy,14 many States have claimed

a 37% reduction from this source category based on aproposed rule. However, EPA'sfinal rule, "National Volatile Organic Compound Emission Standards forAutomobile Refinish Coatings," published on September 11, 1998 (63 FR48806), did not regulate lacquer topcoats andwill result in a smaller emission reduction ofaround 33% overall nationwide. The 37% emission reduction from EPA's proposed rule was an estimate ofthe totalnationwide emission reduction. Since this number is an overall national average, the actual reduction achieved in any particular area could vary depending on the level ofcontrol which already existed inthe 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 ofthe 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 willneed
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 bythe final rule for previously unregulated areas.

ConsumerProductsRule:Consistent with a June 22, 1995 EPA guidance, 15
States have claimed a 20% reduction fromthis source category based on EPA'sproposed rule. The final rule, "National Volatile Organic Compound Emission Standards for Consumer Products," (63 FR48819), 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 andthe

consumer products industry concurred,

14"Credit for the 15 Percent Rate-of-Progress Plans for Reductions from the Architectural and Industrial Maintenance (AIM) Coating Rule and the AutobodyRefinishing 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) ofthe Clean Air Act," June 22, 1995,John S. Seitz, Director OAQPS, to Air Division Directors, Regions I-X. 

### 659

HeinOnline -- 66 Fed. Reg. 659 2001

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

that a significant proportion ofsubject products have been reformulated in
response to State regulations and in anticipation ofthe final rule. 63 FR 48819. That is, industry reformulated the products covered by the consumer products rule in advance ofthe final rule. Therefore, EPAbelieves that complying products in accordance with the rule were in use by the Fall of 1999 andthat itwas appropriate for the States
to take credit for those reductions in their SIPs.

K.EnforcementofControlPrograms
Comment:The attainment demonstrations do not clearly set out programs for enforcement ofthe various control strategies relied on for emission reduction credit.

Response:State enforcement program elements are contained in SIP revisions previously approved by EPAunder obligations for enforceable emission limitations set out in section 110 ofthe Clean Air Act. Once approved by the EPA, there isno need for states to readopt and resubmit their enforcement programs with each and every SIP revision generally required by other sections ofthe 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 ofROP milestones or for failure to attain, as required by sections 172(c)(9) and 182(c)(9)ofthe Clean Air Act.

Response:The EPAbelieves 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 orfails to attain the ozone NAAQS by the attainment date established in the SIP. The contingency

measure requirements have no bearing

onwhether a state has submitted a SIP that projects attainment ofthe ozone NAAQS orthe 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 tohappen only ifattainment or ROP is not actually achieved. The EPA acknowledges that contingency

measures are an independently required SIP revision, but does notbelieve that submission ofcontingency measures is
necessary before EPAmay approve an attainment orROP SIP. Also see the discussion ofcontingency measures in the extension ofthe attainment date policy section VI.A.

The EPAhas, 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 forpurposes ofmeeting 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 EPAis approving for the area, there are a number ofEPA

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 2tailpipe standards and EPA's standards for avariety ofnonroad sources. The EPAhas analyzed the Greater Connecticut SIP and has estimated thatthe contingency obligation would be approximately 10.5
tons per summer day (tpsd)in ozone precursor emission reductions. Reductions from the federal non-road andthe Tier 2tailpipe standards during the time frame contingency measures would need tobe implemented for failure to attain (i.e., byMay 2009) 16 are estimated to be atleast 12.1 tpsd, which would coverthe 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 ifthe state failed to attain, EPA believes that existingfederally enforceable measures would provide the
necessary substantive relief.

M.MotorVehicle EmissionBudgets and MOBILE6

Comment 1:In their August 28, 2000 letter, Environmental Defense (ED) generally supports apolicy ofrequiring
motor vehicle emissions budgets tobe recalculated when revised MOBILE models are released.

Response 1:The Greater Connecticut attainment demonstration, which relies

onTier 2 emission reduction credit,

16EPA policy provides thatcontingency measures should achieve a 3percent reduction in emissions in the yearfollowing an EPA determination ofa failure to attain orto meet a progress requirement. contains a commitment to revise the
motorvehicle emissions budgets after MOBILE6 isreleased.

Comment2:The revised budgets calculated using MOBILE6 will likelybe submitted after the MOBILE5 budgets have already been approved. EPA's policy is that submitted SIPs maynot replace approved SIPs.

Response2:This is the reason that EPAproposed in the SNPR (65FR 46383) that the approval ofthe MOBILE5 budgets for conformity
purposes would last onlyuntil MOBILE6 budgets had been submitted and found adequate. In this way,the MOBILE6 budgets can apply for conformity purposes as soon asthey are found adequate.

Comment3:Ifa State submits additional control measures that affect the motor vehicle emissions budgetbut does not submit a revised motor vehicle emissions budget, EPA should not approve the attainment demonstration.

Response3:EPA agrees. The motor vehicle emissions budgets in the Greater Connecticut attainment demonstration reflect the motorvehicle control

measures inthe attainment demonstration.

Comment4:EPA shouldmake it clear thatthe motor vehicle emissions budgets to be used for conformity
purposes will be determined fromthe totalmotor vehicle emissions reductions required in the SIP, evenifthe SIP does
not explicitly quantify a revised motor vehicle emissions budget.

Response4:EPAwill 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).

Comment5:Ifa state fails to follow through on its commitment to submit the revised motorvehicle emissions budgets using MOBILE6, EPA could make a finding offailure to submit a portion ofa SIP, which wouldtrigger a sanctions clock under section 179.

Response5:EPA agrees thatifa state fails tomeet its commitment, EPA could make a finding offailure to implement the SIP, which would start a sanctions clock under section 179 ofthe CleanAir Act.

Comment6:Ifthe budgets recalculated using MOBILE6 are larger thanthe MOBILE5 budgets, then attainment shouldbe demonstrated again.

Response6:As EPAproposed in its December 16, 1999 notices, we will 660

HeinOnline -- 66 Fed. Reg. 660 2001

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

work with States on a case-by-case basis ifthe new emissions estimates raise issues about the sufficiency ofthe attainment demonstration.

Comment7:Ifthe MOBILE6 budgets

are smaller than the MOBILE5 budgets, the difference between the budgets shouldnot be available for reallocation
to other sources unless air quality data show thatthe 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 isbeing 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 motorvehicle emission reductions cannot be reallocated to other sources orassigned
to the motor vehicle emissions budget as

a safety margin unless the area

reassesses the analysis in its attainment demonstration and shows that itwill still attain. In other words, the area must

assess howits original attainment demonstration isimpacted by using MOBILE6 vs. MOBILE5 before it reallocates any apparent motor vehicle emission reductions resulting from the

use ofMOBILE6. However, ifthe state is not required to remodel with MOBILE6 because the attainment demonstration does not rely on TierII reductions, the conformity rules do require the use ofMOBILE6 for conformity after any established grace period even ifthe SIP isbased on MOBILE5. The state is not required to revise the SIP merely because a new mobile model becomes available.

N. MOBILE6

Comment1:We received a comment

onwhether 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 1or 2years ofMOBILE6's release. This commenter was concerned that MOBILE6 couldbe required for conformity before new budgets were submittedbased on MOBILE6.

Response1:The MOBILE6 grace period for conformity determinations is

a separate requirement thatis not explicitly tied to EPA's SIP policy and approvals. However, itis important to note thatthe transportation conformity rule requires EPA to consider many factors in establishing the length ofthe grace period before MOBILE6 is required in conformity, including the degree of change in emissions models and scope ofre-planning likely to be necessary bytransportation agencies (40 CFR 93.111). The grace period mustbe between 3-24 months, and EPA understands that alonger 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.
Comment2: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

onMOBILE6. The commenter thought that this situation could necessitate the

use ofthe emission reduction tests (e.g., build/no-build test) for conformity analyses, instead ofusing the budgets based onMOBILE5b. The commenter statedthat using thebuild/no-build test instead ofexisting budgets that are based onMOBILE5b is less appropriate for air quality planning purposes.

Response2:The transportation conformity rule requires adequate budgets tobe 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 ifthey were the only applicable budgets atthe end ofthe MOBILE6 grace period. Thus, the conformity analysis would compare future reductions under aproposed transportation plan orTIP calculated with MOBILE6 against the SIP budgets developed withMOBILE5. This has always been required bythe conformity rule once the grace period for anew model haspassed. Once budgets have been established, the build/no-build test is no longer applicable. See40 CFR 93.111 ofthe transportation conformity rule. During the grace period, areas shoulduse the consultation process to address any future conformity impacts ofusing the new emissions model.

Comment3:One commenter did not prefer the additional option for asecond
year before the state has torevise the conformity budgets withMOBILE6, 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 withMOBILE6.

Response3:EPAproposed the additional option toprovide further flexibility in managing MOBILE6 budget revisions. The supplemental proposal did not change the original option to revisebudgets within one year of MOBILE6's release. State andlocal governments can continue to use the 1- year option,ifdesired, or submit anew commitment consistent with the alternative 2-year option.

0. NOxEmissionsBudget

Comment:Since Connecticut and Massachusetts are significant contributors to other States' ozone nonattainment, EPA shouldrequire 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 ofConnecticut, Massachusetts and Rhode Island all submitted their SIPs in response tothe NOx SIP call in late 1999, and EPA proposed approval ofthem all onJuly 12, 2000 (at65 FR 42900, 65 FR 42907, and 65 FR 42913 for CT, MA andRI, respectively). No public comments were received on those proposals. On October 20, 2000, final approval ofConnecticut, Massachusetts and Rhode IslandNOx SIP call SIPs was granted byEPA Region I's Regional Administrator. Approval of the SIPs willbe codified at 40 CFR 52.370(c)(86) for Connecticut, 40 CFR 52.1120(c)(124) for Massachusetts, and Table C of40 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 ofthe 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 transportfor downwind areas. Furthermore, EPA has previously determined each ofthe 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 onfinal data for some

areas and preliminary datafor others, EPAexpects each ofthese areas to continue to meet the 1-hour ozone standard for the years 1998 through 2000.

HeinOnline -- 66 Fed. Reg. 661 2001

### 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 ofunderstanding (i.e., "the Three State MOU") agreeing to redistribute the EGU portions ofthe 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 amongthese three states. EPA supports this concept because such a redistribution is no different than the effects oftrading.

When EPA reviewed whether each
state was meeting the objectives ofthe NOx SIP call, we considered the adopted 2007 emission budgets and adopted NOx reducing measures in CT, MA andRI together and found them as meeting the air quality objectives ofthe NOx SIP Call. The issue ofwhether the redistribution was appropriate was considered and decided during the rulemaking approving the NOx SIPs.

P.Lack ofFullyApprovedRules
Comment:Connecticut only has conditional approval ofVOC 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) ofClean Air Act on October 19, 2000 (65 FR 62620). EPA fully approved the 9 percent rate of
progress plans for both ofConnecticut'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 ofthe
comments received on theproposals published for the attainment demonstration and attainment date extension for the Greater Connecticut

area change the basis for ourproposed approval. Thus, EPAis approving the ground-level one-hour ozone attainment demonstration SIP for the Greater Connecticut area. EPAis also approving the attainment date extension for this

area until November 15, 2007. This revision also approves the 2007 volatile organic compound (VOC) andnitrogen 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 ofthe release of MOBILE6, and the commitment to conduct amid-course review to assess modeling and monitoring progress achieved towards the goal ofattainment 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 aprecedent 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 andin relation torelevant 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 isnot subject toreview bythe Office ofManagement 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 (5U.S.C. 601
etseq.).Because this rule approves preexisting requirements under state law and does not impose any additional enforceable duty beyond thatrequired 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 oruniquely affect the communities oftribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will
not have substantial direct effects onthe States, on the relationship between the national government andthe States, or

onthe distribution ofpower and responsibilities amongthe various levels ofgovernment, 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 alterthe relationship or the distribution ofpower andresponsibilities established in the Clean Air Act. This rule also isnot subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because itis not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that theymeet the criteria of the Clean Air Act. In this context, in the absence ofa prior existing requirement for the State touse voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. Itwould thus be inconsistent with applicable law for EPA, when itreviews a SIP submission,
to use VCS in place ofa SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements ofsection 12(d) ofthe National Technology Transfer and Advancement Act of1995 (15 U.S.C. 272 note) do not apply. As required by section 3ofExecutive 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. EPAhas complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications ofthe rule in accordance with the "Attorney General's Supplemental Guidelines for the Evaluation ofRisk and Avoidance of Unanticipated Takings" issued under the executive order. This rule does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act of 1995 (44 U.S.C. 3501 etseq.).

The Congressional Review Act, 5 U.S.C. section 801 etseq., as addedby the Small Business Regulatory Enforcement Fairness Act of1996, generally provides thatbefore 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 ofthe Congress and to the Comptroller General ofthe United States. EPAwill submit areport containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register.A major rule
cannot take effect until 60 days after it ispublished in the FederalRegister. This action is not a "major rule" as defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) ofthe Clean AirAct, petitions forjudicial review of this action must be filed in the United States Court ofAppeals for the appropriate circuit by March 5,2001. Filing apetition for reconsideration by the Administrator ofthis final rule does
not affectthe finality ofthis rule for the
purposes ofjudicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness of suchrule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) 

### 662

HeinOnline -- 66 Fed. Reg. 662 2001

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

List ofSubjects in 40 CFR Part 52 Dated: December 15, 2000. Authority: 42 U.S.C. 7401 et seq.

Environmental protection, Air Mindy S. Lubber, Envronentl rotctin, irRegional Administrator, EPA-NewEngland. Subpart H-Connecticut pollution control, Carbon monoxide, ReinlAmisrt, P-wngad Hydrocarbons, Intergovernmental Part 52 ofchapter I,title 40 ofthe 2. Section 52.374 is amended by

relations,Code ofFederal Regulations is amended revising the table to read as follows: Particulate matter, Reporting and :§52.374 Attainment dates for national recordkeeping requirements, Sulfur PART 52-[AMENDED] standards. oxides. 1. The authority citation for part 52 * * * * * continues to read asfollows:

Pollutant

Air quality control region S02 PM 10 NO 2 CO 03 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 N ew H aven

.................................................... (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) (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 amendedby designating the existing text as paragraph (a) and by adding paragraph (b)to read as follows:
§52.377 Controlstrategy: Ozone.

(b)Approval-Revisions to the State Implementation Plan submitted bythe 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 of30.0 tons per day of volatile organic compounds (VOC) and 79.6 tons per day ofnitrogen oxides (NOx)tobe used in transportation conformity in the Greater Connecticut serious ozone nonattainment area, until revised budgets pursuant toMOBILE6 are submitted and found adequate. In the revision, Connecticut commits to revise their VOC andNOx transportation conformity budgets within one year ofthe release of MOBILE6. Connecticut also commits to conduct a mid-course review to assess modeling and monitoring progress achieved towards the goal ofattainment by 2007, and submit the results to EPA by December 31, 2003. [FR Doc. 01-62 Filed 1-2-01; 8:45 am]

BILLING CODE 6560-50-P 

### 663

HeinOnline -- 66 Fed. Reg. 663 2001