[Federal Register Volume 66, Number 94 (Tuesday, May 15, 2001)]
[Rules and Regulations]
[Pages 26914-26939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11564]



[[Page 26913]]

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Part II





Environmental Protection Agency





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40 CFR Part 52



Approval and Promulgation of Implementation Plans; Texas; Ozone; 
Beaumont/Port Arthur Ozone Nonattainment Area; Final Rule

Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules 
and Regulations

[[Page 26914]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-6976-1]


Approval and Promulgation of Implementation Plans; Texas; Ozone; 
Beaumont/Port Arthur Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving the Texas 1-hour ozone attainment 
demonstration State Implementation Plan (SIP) for the Beaumont/Port 
Arthur (BPA) moderate ozone nonattainment area. The attainment 
demonstration SIP is addressed in the State of Texas submittals dated 
November 12, 1999 and April 25, 2000. In approving the attainment 
demonstration, EPA is: Extending the ozone attainment date for the BPA 
ozone nonattainment area to November 15, 2007 while retaining the 
area's current classification as a moderate ozone nonattainment area; 
approving the State's enforceable commitment to perform a mid-course 
review and submit a SIP revision to the EPA by May 1, 2004; finding 
that the BPA area meets the Reasonably Available Control Technology 
(RACT) requirements for major sources of volatile organic compounds 
(VOC) emissions; and approving the motor vehicle emissions budgets 
(MVEB). A notice of proposed rule making was published on this action 
on December 27, 2000 (65 FR 81786). EPA received comments on that 
proposal. EPA has also received comments on two related proposed 
actions: the ``Extension of Attainment Dates for Downwind Transport 
Areas,'' 64 FR 12221 (March 25, 1999); and, the proposed rulemaking 
published on April 16, 1999 (64 FR 18864), which addressed the Clean 
Air Act reclassification or eligibility for extension of attainment 
date for the BPA area. In this action, EPA responds to the comments to 
all three of these documents. For details on the SIP submittals and the 
EPA analysis of the submittals, refer to the December 27, 2000 proposed 
rule.

DATES: This final rule is effective on June 14, 2001.

ADDRESSES: Copies of documents relevant to this action are available 
for public inspection during normal business hours at the Environmental 
Protection Agency, Region 6, Air Planning Section (6PD-L), 1445 Ross 
Avenue, Dallas, Texas 75202-2733; and, the Texas Natural Resource 
Conservation Commission, Office of Air Quality, 12124 Park 35 Circle, 
Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Steven Pratt, Air Planning Section 
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733. Telephone Number 
(214) 665-2140, e-Mail Address: <a href="/cdn-cgi/l/email-protection#6b1b190a1f1f45181f0e1d0e052b0e1b0a450c041d"><span class="__cf_email__" data-cfemail="0d7d7f6c7979237e79687b68634d687d6c236a627b">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means EPA. This supplementary information section is organized 
as follows:

I  What Texas SIP revisions are the topic of this action?
II  What previous actions have been taken regarding BPA attainment 
demonstrations and attainment dates?
III  What Motor Vehicle Emissions Budgets are we approving?
IV  What are the requirements for full approval of the attainment 
demonstration?
V  How did Texas fulfill these requirements for full approval?
VI  What SIP elements did EPA need to take final action on before 
approval of the attainment demonstration could be granted?
VII  Implementation of Reasonably Available Control Measures.
VIII  What comments were received on this proposed approval, and the 
two related actions, and how has the EPA responded to those?
IX  EPA Action
X  Administrative Requirements

I. What Texas SIP Revisions Are the Topic of This Action?

    The Texas Natural Resource Conservation Commission (TNRCC) made two 
submittals to us, which concern the ozone attainment demonstration, and 
an extension of the attainment date for the BPA ozone nonattainment 
area:
    (a) A November 12, 1999, submission from the Governor of Texas, 
which included the following:
    A. Regulations and associated documentation for the control of VOC 
emissions from batch process operations and industrial wastewater 
treatment processes, intended to fulfill the remaining VOC RACT 
requirements of section 182(b)(2) of the Act for the BPA moderate 
nonattainment area;
    B. A regulation and associated documentation for the control of 
NO<INF>X</INF> emissions from lean burn engines, intended to meet the 
remaining NO<INF>X</INF> RACT requirements of section 182(b)(2) of the 
Act for the BPA moderate nonattainment area;
    C. Photochemical Modeling demonstration and its accompanying 
control strategy to bring the BPA area into attainment of the one-hour 
ozone standard as expeditiously as practicable, but no later than 2007;
    D. 2007 motor vehicle emissions budgets for transportation 
conformity;
    E. Emissions growth estimates and an emissions inventory; and,
    F. An enforceable commitment to submit additional rules to us in 
accordance with its modeled control strategy. (This was accomplished 
with the April 25, 2000, submittal--see below)
    (b) An April 25, 2000, submission from the Governor of Texas, which 
included the following:
    A. Beyond RACT NO<INF>X</INF> emissions specifications in the BPA 
area for electric utility boilers, industrial, commercial or 
institutional boilers, and certain process heaters, relied upon for 
attainment in the BPA area;
    B. Additional regional rules and orders relied upon for 
demonstrating attainment in the BPA area;
    C. A Revised Photochemical Modeling demonstration and emissions 
growth estimates; and,
    D. An enforceable commitment to perform a mid-course review with 
submittal to the EPA by May 1, 2004.
    The TNRCC held a public hearing on the November submittal on August 
9, 1999. This submittal was formally adopted by the TNRCC on October 
27, 1999. The TNRCC held ten public hearings on the April submittal; a 
public hearing was held in the BPA area on January 31, 2000. The TNRCC 
formally adopted the April 25, 2000, submittal on April 19, 2000.

II. What Previous Actions Have Been Taken Regarding BPA Attainment 
Demonstrations and Attainment Dates?

    On April 16, 1999, EPA proposed in the Federal Register to 
reclassify the BPA area to a serious ozone nonattainment area, and 
alternatively, proposed to extend the BPA area's attainment date if the 
State submitted a timely SIP meeting the criteria of the 1998 Transport 
Policy (64 Federal Register 18864).
    The BPA Attainment Demonstration SIP revision was adopted by the 
State on October 27, 1999 and submitted to EPA under a cover letter 
from the Governor dated November 12, 1999. This submittal was termed by 
the State as ``Phase I'' of their NO<INF>X</INF> rulemaking activities. 
The State submitted a revision to their SIP dated April 25, 2000, as 
``Phase II'' NO<INF>X</INF> rules and controls needed for attainment. 
We proposed approval of these SIP revisions in a notice of proposed 
rulemaking (NPR) published on December 27, 2000 (65 FR 81786). EPA

[[Page 26915]]

received comments on that proposal. EPA has also received comments on 
two related proposed actions: The ``Extension of Attainment Dates for 
Downwind Transport Areas'' 64 FR 12221 (March 25, 1999); and, the 
proposed rulemaking published on April 16, 1999 (64 FR 18864) which 
addressed the Clean Air Act potential reclassification or eligibility 
for extension of attainment date for the BPA area. In this action, EPA 
responds to the comments to all three of these documents.

III. What Motor Vehicle Emissions Budgets Are We Approving?

    Texas has submitted motor vehicle emissions budgets for the 2007 
attainment year for the BPA ozone nonattainment area. The emission 
budgets are shown in Table 1.

      Table 1.--BPA 2007 Attainment Motor Vehicle Emissions Budgets
------------------------------------------------------------------------
                                                              2007 tons/
                         Pollutant                               day
------------------------------------------------------------------------
VOC........................................................        17.22
NO<INF>X</INF>........................................................        29.94
------------------------------------------------------------------------

    We are approving these MVEBs in this action. These MVEBs are 
approvable as they are consistent with the control measures in the SIP, 
and the SIP as a whole demonstrates attainment.

IV. What Are the Requirements for Full Approval of the Attainment 
Demonstration?

    In the April 16, 1999, notice we proposed to find pursuant to 
section 181(b)(2) of the Clean Air Act that the BPA area had failed to 
attain the ozone one-hour NAAQS by the date prescribed under the Act 
for moderate ozone nonattainment areas (i.e., November 15, 1996). 
Finalizing that finding, would result in the BPA area being 
reclassified from moderate nonattainment to serious nonattainment.
    Alternatively, we proposed to extend the attainment date, providing 
that Texas met the criteria of our July 16, 1998 transport policy, 
``Guidance on Extension of Attainment Dates for Downwind Transport 
Areas.'' If Texas submitted a SIP by November 15, 1999, that met the 
July 1998 transport policy, we stated we would issue a supplemental 
proposal in a Federal Register notice to extend the BPA area's 
attainment date as appropriate.
    The demonstration SIP must meet applicable criteria as detailed in 
the Act. The specific requirements of the Act for moderate ozone 
nonattainment areas are found in part D, section 182(b). Section 172 in 
part D provides the general requirements for nonattainment plans. Refer 
to the December 27, 2000, supplemental proposed rule for further 
details of the SIP requirements.

V. How Did Texas Fulfill These Requirements for Full Approval?

    Texas fulfilled the requirements for full approval as follows.
    Texas adopted the BPA Attainment Demonstration SIP revision on 
October 27, 1999 and submitted it to the EPA under a cover letter from 
the Governor dated November 12, 1999. This submittal was termed by the 
State as ``Phase I'' of their NO<INF>X</INF> rulemaking activities 
needed for attainment. The State submitted a revision to their SIP 
dated April 25, 2000, as ``Phase II'' NO<INF>X</INF> rules and controls 
needed for attainment.
    The State addressed the aspect of transport in accordance with our 
July 16, 1998 transport policy, ``Guidance on Extension of Attainment 
Dates for Downwind Transport Areas.'' Texas has demonstrated that 
during some BPA exceedances, ozone levels are affected by emissions 
from the Houston/Galveston (HG) area, and that the HG area emissions 
affect BPA's ability to meet attainment of the 1-hour ozone standard.
    Because of the uncertainty in long term projections, EPA believes a 
viable attainment demonstration that relies on weight of evidence (as 
Texas does) should contain provisions for periodic review of 
monitoring, emissions, and modeling data to assess the extent to which 
refinements to emission control measures are needed. The Texas Natural 
Resource Conservation Commission (TNRCC) submitted an enforceable 
commitment in the April 2000 SIP submittal to perform a mid-course 
review (including evaluation of all modeling, inventory data, and other 
tools and assumptions used to develop this attainment demonstration). 
The TNRCC committed that it will submit a mid-course review SIP 
revision, with recommended mid-course corrective actions, to the EPA by 
May 1, 2004.
    On March 7, 1995, as part of our action approving VOC requirements, 
we found that TNRCC had implemented RACT on all major sources in the 
BPA area except those that were to be covered by post-enactment Control 
Technique Guidelines (CTG's). 44 FR 12438 (March 7, 1995). Since that 
time, many expected CTGs were issued as Alternative Control Technique 
documents (ACTs). Of the expected CTGs and ACT's, BPA has major sources 
in the following categories: Batch processing; reactors and 
distillation; industrial wastewater; and Volatile Organic Liquid 
Storage. EPA has approved measures as meeting RACT for the reactors and 
distillation and the Volatile Organic Liquid Storage categories for the 
BPA area. 64 FR 3841 (January 26, 1999), and 61 FR 55894 (October 30, 
1996), respectively. EPA has found that the State is imposing RACT on 
the batch processing and industrial wastewater categories in the BPA 
area (65 FR 79745, December 20, 2000). While CTGs and ACTs were issued 
for other categories such as wood furniture coating or aerospace 
coating, there are no major sources in those categories in the BPA 
area. TNRCC submitted, and EPA approved, negative declarations on these 
categories (61 FR 55894, October 30, 1996). There are also no other 
non-CTG/ACT major VOC sources in the BPA area that are not already 
covered by a state rule approved by the EPA as meeting RACT. Therefore, 
it is EPA's position that RACT is being implemented on all major VOC 
sources in BPA.
    Finally, Texas has submitted motor vehicle emissions budgets for 
the 2007 attainment year for the BPA ozone nonattainment area.

VI. What SIP Elements Did EPA Need To Take Final Action on Before 
Approval of the Attainment Demonstration Could Be Granted?

    In the NPR for the Texas attainment demonstration SIP published on 
December 27, 2000, we stated that we could not finalize the proposed 
actions unless and until we approved eight Texas rules covering 
NO<INF>X</INF> and VOC emissions control measures relied upon by the 
modeled attainment demonstration for the BPA nonattainment area. These 
actions have been approved as detailed below.
    1. The NO<INF>X</INF> rules for Electric Generating Facilities in 
East and Central Texas (30 TAC sections 117.131, 117.133, 117.134, 
117.135, 117.138, 117.141, 117.143, 117.145, 117.147, 117.149, 
117.512), were approved by the EPA on March 16, 2001 (66 FR 15195);
    2. The State-wide NO<INF>X</INF> rules for Water Heaters, Small 
Boilers, and Process Heaters (30 TAC sections 117.460, 117.461, 
117.463, 117.465, 117.467, 117.469), were approved by the EPA on 
October 26, 2000 (65 FR 64148);
    3. The revised emission specifications in the BPA area for Electric 
Utility Boilers, Industrial, Commercial or Institutional Boilers and 
certain Process Heaters (30 TAC sections 117.104, 117.106, 117.108, 
117.116, 117.206 as they relate to the BPA area, and the repeal of 
sections 117.109 and 117.601 as they relate to the BPA area), were

[[Page 26916]]

approved by the EPA on October 26, 2000 (65 FR 64148);
    4. The administrative revisions to the existing Texas 
NO<INF>X</INF> SIP (30 TAC sections 117.101-117.121, 117.201-117.223, 
117.510, 117.520, and 117.570), were approved by the EPA on October 26, 
2000 (65 FR 64148);
    5. The two Agreed Orders entered into by TNRCC and Alcoa, Inc. and 
TNRCC and Texas Eastman, were approved by the EPA on October 26, 2000 
(65 FR 64148);
    6. Lower RVP Program in East and Central Texas (30 TAC sections 
114.1, 114.301, 114.302, and 114.304-114.309), was approved by the EPA 
on April 26, 2001 (66 FR 20927);
    7. Stage I vapor recovery Program in East and Central Texas (30 TAC 
sections 115.222-114.229), was approved by the EPA on December 20, 2000 
(65 FR 79745); and,
    8. VOC rules as RACT for batch processing (30 TAC sections 115.160-
115.169) and wastewater (30 TAC sections 115.140-115.149), were 
approved by the EPA on December 20, 2000 (65 FR 79745).

VII. Implementation of Reasonably Available Control Measures

    Section 172(c)(1) of the Act requires SIPs to provide for the 
implementation of all reasonably available control measures (RACM) as 
expeditiously as practicable and for attainment of the standard. 
Details of these requirements and applicable guidelines are provided in 
the December 2000, NPR. As discussed in the NPR, EPA reviewed the SIP 
submittal for the BPA area and found that it did not include sufficient 
discussion concerning the rejection of certain available measures as 
RACM for the specific BPA area. EPA reviewed potential available 
measures, as documented in the RACM analysis section of the technical 
support document (TSD) for the December 2000, NPR. EPA concludes that 
this additional set of evaluated measures is not reasonably available 
for the specific BPA area, because (a) some would require an intensive 
and costly effort for numerous small area sources, (b) due to the small 
percentage of mobile source emissions in the over-all inventory, some 
are not cost-beneficial, and (c) since the BPA area relies in part on 
reductions from the upwind HG area which are substantial, and the 
reductions projected to be achieved by the evaluated additional set of 
measures are relatively small, they would not produce emission 
reductions sufficient to advance the attainment date in the BPA area 
and, therefore, should not be considered RACM.
    Although EPA encourages areas to implement available measures as 
potentially cost-effective methods to achieve emissions reductions in 
the short term, EPA does not believe that section 172(c)(1) requires 
implementation of potential measures that either require costly 
implementation efforts or produce relatively small emissions reductions 
that will not be sufficient to allow the BPA area to achieve attainment 
in advance of full implementation of all other required measures.

VIII. What Comments Were Received on This Proposed Approval, and 
the Two Related Actions, and How Has the EPA Responded to Those?

    EPA received comments from the public on the Notice of Proposed 
Rulemaking (NPR) published on December 27, 2000 (65 FR 81786) for the 
proposed approval of BPA area's ozone attainment demonstration and 
attainment date extension. Comments were received from: Jefferson-
Orange-Hardin Regional Transportation Study Transportation Planning 
Committee; City of Nederland; PDGlycol; Chevron Phillips Chemical 
Company; City of Orange; Jefferson County Drainage District No. 6; 
TNRCC; Beaumont Chamber of Commerce; City of Vidor; City of Port 
Neches; City of Port Arthur; Hardin County Commissioners Court; Port 
Arthur International Public Port; City of Beaumont; South East Texas 
Regional Planning Commission; City of Lumberton; Commissioners Court of 
Jefferson County; Orange County Commissioners Court; Southeast Texas 
Environmental Managers; Entergy; South Hampton Refining Co.; City of 
West Orange; Firestone Polymers; City of Pinehurst; Port of Beaumont 
Navigation District; Lone Star Chapter Sierra Club; and, three 
individuals.
    EPA also received comments from the public on the proposed 
rulemaking published on April 16, 1999 (64 FR 18864) which addressed 
the Clean Air Act potential reclassification or eligibility for 
extension of attainment date for the BPA area. In that notice, we 
proposed two alternative options. One option was to find that the BPA 
area had failed to attain the ozone one-hour NAAQS by the date 
prescribed under the Act for moderate ozone nonattainment areas, or 
November 15, 1996. Finalizing that finding would have resulted in the 
BPA area being reclassified from moderate nonattainment to serious 
nonattainment. Alternatively, we proposed to extend the attainment 
date, providing that Texas met the criteria of our July 16, 1998 
transport policy, ``Guidance on Extension of Attainment Dates for 
Downwind Transport Areas.''
    Finally, a number of the comments received in Docket A-98-47 on 
EPA's notice regarding ``Extension of Attainment Dates for Downwind 
Transport Areas'' 64 FR 12221 (March 25, 1999), are relevant to this 
rulemaking. EPA incorporates its responses to those comments, set forth 
in 66 FR 586 (January 3, 2001), insofar as herein relevant. EPA sets 
forth responses to some of the general comments in Section A. Adverse 
comments as they apply specifically to the BPA area are addressed in 
Section C.
    The following discussion summarizes and responds to all three sets 
of comments.

A. 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 hoped-for NO<INF>X</INF> 
reductions occur from upwind states in response to the NO<INF>X</INF> 
SIP call and/or section 126 actions. Such an extension is not 
authorized by any provision of the statute. It is not within EPA's 
discretion to extend the attainment dates for downwind areas classified 
as moderate or serious. The Act does not authorize EPA to extend 
attainment deadlines except in certain instances. Congress provided 
express attainment deadlines in the Clean Air Act, and EPA is without 
authority to create exemptions from them. Section 181 provides the only 
exception to the general rule that areas must meet their attainment 
dates, and is the exclusive remedy. Section 181(a)(5) allows a one-year 
extension if the state has complied with all requirements and 
commitments in the applicable SIP and had no more than one exceedance 
in the attainment year. In section 181(a)(5), Congress provided other 
authority for extending attainment dates, but not to address effects of 
transport. See section 181(a)(5). Section 181(b)(2)(A) requires 
reclassification for failure to attain by the attainment date. Section 
182 requires submissions of attainment plans by the applicable 
attainment date. EPA's policy violates these express provisions. The 
statutory deadlines for attainment, the requirement that SIPs adopt 
measures adequate to provide for attainment by the statutory deadlines, 
the statutory limitation on EPA's authority to extend attainment dates 
under section 181(b), and the procedures to be followed in the event an 
area fails to attain by the deadline are unequivocal and unambiguous, 
and compliance is required under step one

[[Page 26917]]

of Chevron. (The Supreme Court in Chevron detailed the process that a 
reviewing court must go through in determining whether an agency's 
construction of a statute is proper. The first step is the question 
whether Congress' intent is clear. If Congress has directly spoken to 
the precise question at issue, the agency must give effect to the 
unambiguously expressed intent of Congress. Chevron U.S.A. v. Natural 
Resources Defense Council, 467 U.S. 837 (1984).) The extension policy 
is inconsistent with sections 182(b)(1)(A), 182(c)(2)(A) and 172(c)(1), 
which require each nonattainment area to provide for attainment and 
submit SIPs providing for attainment by the applicable deadline. There 
is no exemption from these mandates for downwind areas that can attain 
through local reductions, but find it difficult to do so. The EPA 
policy is also inconsistent with the Phoenix reclassification action, 
which stated that EPA had no flexibility to provide for attainment date 
extensions in that circumstance. In section 181(i) Congress refused to 
give EPA authority to extend attainment dates in light of 
reclassification. Although this comment specifically refers to 
attainment date extensions for serious areas, the EPA addresses it here 
in the context of granting extensions to moderate areas, such as the 
BPA area.
    Response 1: The absence of an express provision in the Clean Air 
Act for an attainment date extension based on transport does not 
deprive EPA of the authority to interpret the Act to permit such an 
extension. Nor do the specific attainment date extension provisions in 
the statute preclude EPA's interpreting the statute to allow for an 
extension to account for upwind transport that has interfered with 
downwind attainment. This interpretation is necessary to prevent the 
thwarting of Congressional intent not to unfairly burden downwind 
areas. In various parts of the statute, Congress expressed an intent to 
accomplish this through provisions prohibiting transport, but these 
provisions failed to achieve the Congressional goal in time to allow 
the downwind areas to meet their originally prescribed attainment 
dates.
    The provisions of section 182 governing reclassification also do 
not prohibit EPA from interpreting the Act to provide for an attainment 
date extension based on transport. EPA's policy of extending attainment 
dates for ozone nonattainment areas affected by transport of ozone and 
ozone precursors represents a reasonable effort to avoid the 
frustration of Congressional intent to which a literal application of 
the reclassification provisions would lead. Where a ``literal reading 
of the statute would actually frustrate the congressional intent 
supporting it, [a court may uphold] an interpretation of the statute 
more true to Congress's purpose.'' EDF v. EPA, 82 F.3d 451, 468 (D.C. 
Cir. 1996).
    In 1990, Congress established a classification scheme for ozone 
nonattainment areas that provided for those areas to be classified on 
the basis of the severity of their ozone problems and for areas with 
more serious problems to be given more time to attain, but also 
required to implement more control measures. As part of these 
provisions, Congress enacted the reclassification provisions under 
which ozone nonattainment areas that failed to attain the ozone 
standard as of their attainment dates were to be reclassified to a 
higher classification, thereby receiving an extension of their 
attainment date, but also being subjected to additional control 
requirements. See section 181(b)(2). (Phoenix was reclassified with no 
demonstration of transport.)
    On their face, the reclassification provisions do not provide for 
any exemption from the reclassification process for areas affected by 
ozone transport from other upwind areas. However, EPA believes that, in 
light of developments since the enactment of the 1990 Clean Air Act 
Amendments, a literal application of those provisions to such areas 
would frustrate broader congressional intent. In this context it is 
important to recognize that, apart from the ozone reclassification 
provisions, the Act contains provisions--section 110(a)(2)(D) and 
110(a)(2)(A)--that obligates states to prohibit pollution--including 
ozone and its precursors--from sources within the state that contribute 
significantly to nonattainment and maintenance problems in downwind 
areas (whether within that state or outside it). (Section 110(a)(2)(A) 
does not expressly deal with transport but imposes a general obligation 
on a state to do what is needed to meet its CAA obligations, which 
include bringing nonattainment areas within the state into attainment 
and, if upwind areas within the state contribute significantly to 
nonattainment, dealing with emissions from those areas.) Congress was 
cognizant of the need to control such emissions, and of the inequities 
between upwind and downwind sources that could result if upwind areas 
did not impose emission controls on their sources that contribute to 
downwind air quality problems. Congress thus sought to establish a 
regime that would eliminate such inequities.
    Such controls were not imposed in the timeframes anticipated by 
Congress. As explained in EPA's transport policy, it in fact took many 
years for EPA and the States to gain a sufficient understanding of the 
interstate and intrastate ozone transport problem to determine the 
appropriate division of control responsibilities between the upwind and 
downwind areas under the Clean Air Act. It was only through the work of 
the Ozone Transport Assessment Group (OTAG), which consisted of members 
from states (including the State of Texas), industry and environmental 
groups, and EPA's subsequent NO<INF>X</INF> SIP call, promulgated in 
October, 1998, that a better scientific understanding of ozone 
transport resulted and how to divide the responsibilities among and 
within the states was established. These developments occurred after 
the attainment date of November 1996 for the BPA area. Nor did Congress 
intend that an upwind area within a state, but with a later attainment 
date, such as HG, should accelerate the timetable provided for its own 
attainment as an indirect means of controlling transported pollution in 
a downwind area like BPA.
    As EPA stated in its explanation of the legal basis for its 
attainment date extension policy, the graduated control scheme in 
sections 181 and 182 of the Act expressed Congressional intent that 
areas have varying attainment dates, based on the severity of their air 
quality problem. While all areas must attain ``as expeditiously as 
practicable'', the more polluted areas are given later deadlines 
because they must accomplish greater reductions. Thus many upwind areas 
have later attainment dates than the downwind areas that they are 
affecting. With respect to the BPA area, the upwind area affecting it, 
the HG area, has an attainment date eleven years later than the BPA 
area's original attainment date. EPA has interpreted section 
110(a)(2)(A) of the Act as incorporating for areas within the same 
state the requirement, analogous to section 110(a)(2)(D)(i)(I) for 
areas in different states, that an upwind area, consistent with the 
provisions of the Act, be prohibited from contributing significantly to 
nonattainment in a downwind area.
    EPA explained in its policy that these provisions ``demonstrate 
Congressional intent that upwind areas be responsible for preventing 
interference with timely downwind attainment.'' They must be 
reconciled, however, with express Congressional intent that more 
polluted

[[Page 26918]]

areas be allotted additional time to attain. Since Congress failed to 
specify how to fill this gap, EPA's policy interprets the Act to 
harmonize the attainment demonstration and attainment date requirements 
for downwind areas affected by transport both with the graduated 
attainment date scheme and the schedule for achieving reductions in 
emissions from upwind areas. Not to do so would result either in 
penalizing downwind areas for upwind areas' pollution or shortening the 
time for emissions reductions and attainment in the upwind areas--
timeframes that Congress had expressly determined should be lengthier.
    To apply the reclassification provisions of section 181(b) without 
taking into account the timing of the identification and implementation 
of the emission reductions needed to eliminate the significant 
contribution of upwind areas to the downwind areas would result in the 
downwind areas' sources being required to implement potentially costly 
control measures to offset the effects of upwind area pollution--
pollution that will be eliminated by emissions reductions in the upwind 
areas 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, 
thereby frustrating Congressional intent.
    Section 181(b)(2) provides that EPA should determine whether an 
area attained the standard ``within six months following the applicable 
attainment date (including any extension thereof).'' This reference to 
extensions in section 181(b)(2) is not limited to extensions granted 
under section 181(a)(5). Nor does section 181(a)(5) state that Congress 
intended it to be the only source for an extension.
    Moreover, section 181(a)(5) addresses only one specific type of an 
extension. The fact that Congress provided an extension based on air 
quality that is near attainment at the time of its deadline does not 
imply that Congress precluded the Administrator from conferring 
extensions based on other considerations--such as the case when air 
quality is affected by downwind transport. The principle underlying 
section 181(a)(5)--that areas should not be reclassified if they have 
done enough to control local air pollution but are still not able to 
attain--also applies in the case of downwind transport. Section 
181(a)(5) shows that Congress was not unalterably opposed to extensions 
of attainment dates without requiring an area to be subjected to 
reclassification and the increased control burdens that go with 
reclassifications. Indeed, section 181(a)(5) indicates that Congress 
wanted to extend attainment dates without adding control obligations 
when an area had done what was apparently sufficient to bring it into 
attainment.
    The United States Court of Appeals for the District of Columbia 
Circuit has previously held that EPA may extend SIP submission 
deadlines even without explicit statutory authorization. In Natural 
Resources Defense Council, Inc. v. EPA, 22 F.3d 1125, 1135-36 (D.C. 
Cir. 1994), the Court upheld EPA's extension of a statutory deadline 
for submission of NO<INF>X</INF> rules and a NO<INF>X</INF> exemption 
request under section 182(f). Although the Court did not use the theory 
advanced by EPA, the court did find that the Agency had authority under 
the CAA to extend the deadline. EPA had found that additional time 
would be needed for States to conduct photochemical grid modeling in 
order to document the effects of NO<INF>X</INF> reductions on an area. 
EPA had found that ``the time needed to establish and implement a 
modeling protocol and to interpret the model results will, in a variety 
of cases, extend beyond the November 15, 1992 deadline for submission 
of NO<INF>X</INF> rules.'' EPA thus extended the submission deadline, 
provided the states could show that modeling was not available or did 
not consider effects of NO<INF>X</INF> reductions and that the states 
submit progress reports on the modeling. The D.C. Circuit upheld EPA's 
extension of the deadline and of EPA's time to review the submissions 
and make an exemption determination. The Court found that ``because 
only a single NO<INF>X</INF> RACT submission is required under the 
statute, it is logical to infer that Congress intended data supporting 
exemptions to be included in that submittal and that the EPA have the 
full 14-18 months to review them and to make an exemption 
determination.'' Even in the absence of explicit statutory authority, 
the Court held that ``had Congress foreseen the exemption timing 
problem, a matter outside the EPA's control, it would have elected to 
accord the EPA the full statutory review time.'' 22 F.3d at 1136. The 
court ruled that ``under the circumstances here the NO<INF>X</INF> 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 recently, 
to adequately document the impacts of upwind areas on the attainment 
status of downwind areas, and to assess and allocate responsibilities 
among the areas, caused a delay in meeting the attainment deadlines. 
EPA believes that, had Congress foreseen this timing problem, it would 
have elected to accord the states and EPA more time to meet the 
attainment deadlines without imposing reclassification requirements on 
downwind areas. As in the case of the delayed photochemical grid 
modeling needed for the NO<INF>X</INF> submissions at issue in NRDC v. 
EPA, EPA has shown that the ability to document and analyze ozone 
transport was delayed. And as with the criteria imposed on areas 
seeking NO<INF>X</INF> submission extensions in NRDC, EPA has required 
analogous showings by the states, limiting the extensions to those 
areas that document a transport problem and that submit attainment 
demonstrations and adopt local measures to address the pollution that 
is within local control.
    And lastly, Texas has benefitted from the OTAG/NO<INF>X</INF> SIP 
call experience. From this modeling we (EPA and Texas) gained a better 
understanding of the role NO<INF>X</INF> emissions play in the 
formation and transport of ozone. Earlier we had thought local VOC was 
the major contributing factor, but through the OTAG regional modeling 
and other analyses being conducted during that time period we learned 
that NO<INF>X</INF> emissions play a major role in ozone formation and 
that ozone transport distances are much longer than envisioned. As a 
result TNRCC improved, through its regional modeling to develop 
boundary conditions, the manner in which transported NO<INF>X</INF> is 
treated. Also, during this time period they benefitted from 
improvements in our emissions inventories and updates to the carbon 
bond IV chemistry in the model (e.g., improvement in the isoprene 
chemistry). These improvements were necessary for us to understand the 
ozone problem in BPA.
    Though not a product of the OTAG or NO<INF>X</INF> SIP call 
modeling, TNRCC did use this time to better understand the land/sea 
breeze phenomenon which has added a level of complexity to the HG and 
BPA analysis not seen any where else in the country (with the exception 
of some lake breeze effects in the Lake Michigan area). Emissions in 
the HG and BPA areas are emitted into the local atmosphere where ozone 
formation begins, later emissions and ozone formed are transported out 
over the warm air over the Gulf of Mexico where the warmer temperatures 
further activate the chemistry to form more ozone which is then 
transported back inland over both areas. So far, current meteorological 
models have not been able to accurately simulate this process. However, 
our understanding of what is happening has improved to the degree that 
we at least know better how to

[[Page 26919]]

interpret the photochemical model results.
    As for Section 182(i), it has no bearing on the authority of the 
Administrator with respect to the attainment date extensions at issue 
here. Section 182(i) applies to the authority of the Administrator 
after an area has been reclassified, and relates to the setting of an 
attainment date for the reclassified area. It does not apply to an area 
that is not being reclassified, but rather is being granted an 
extension of its attainment date that effectively defers the 
applicability of the reclassification provisions. Here, EPA is 
authorizing an attainment date extension to relieve an area from 
reclassification requirements, and thus 182(i) does not apply. The 
section explicitly applies to an area that has already been 
reclassified, and indicates nothing about the authority of the 
Administrator to extend an area's attainment date prior to a 
determination that the area must be reclassified. Nor does section 
182(i) indicate Congressional intent to deny EPA authority to interpret 
the Act consistently with provisions designed to prevent downwind areas 
from being forced to compensate for upwind pollution.
    Comment 2: The Act does not authorize EPA to extend the time for 
implementation of adopted local control measures. EPA's approach allows 
downwind areas to defer implementation of local measures until the 
extended attainment deadline, thereby precluding any determination that 
the local measures have achieved the degree of emission reduction 
necessary to provide for attainment when the upwind sources are 
controlled. EPA unlawfully proposes to allow attainment date extensions 
for downwind areas to implement local control measures. Under sections 
182(b)(1), 182(c)(2)(A), and 172(c)(1), downwind areas must provide for 
attainment of the NAAQS, and EPA unlawfully seeks to lessen these 
statutory obligations.
    Response 2: As explained in Response 1, above, EPA's attainment 
date extension policy aims to effectuate, not frustrate the intent of 
Congress, by providing for an equitable allocation of responsibilities 
between upwind and downwind areas. Under EPA's interpretation, when an 
upwind area interferes with a downwind area's ability timely to attain 
the standard, the downwind area retains the obligation to adopt all 
applicable local measures, and to implement them as expeditiously as 
practicable, but no later than the date by which the upwind reductions 
needed for attainment will be achieved. Moreover, EPA requires that the 
area submit an approvable attainment demonstration containing any 
necessary, adopted local measures and showing that, assuming the 
appropriate upwind emission reductions, the area will attain the 1-hour 
standard no later than the upwind area's attainment date. Thus both the 
upwind and downwind areas are held accountable for their respective 
shares of the emissions reductions required to achieve attainment in 
the area. EPA views this coordination of the responsibilities of the 
upwind and downwind areas not as a lessening of the statutory 
obligations, but as a reconciliation of them with the reality of air 
transport as we have come to understand it, and with the intent of 
Congress that areas make expeditious progress towards attainment 
without sacrificing basic principles of fairness. The attainment date 
extension policy thus will still lead to attainment as expeditiously as 
practicable, taking into account the upwind contribution. Indeed, given 
the impact of the upwind area's contributions and the need for the 
upwind area emissions reductions, requiring local contributions earlier 
would not accelerate attainment, considering that EPA is requiring the 
downwind areas to implement local controls as expeditiously as 
practicable. Moreover, the difficulty until recently of assessing 
relative contributions and responsibilities of upwind and downwind 
areas lends support to extending attainment deadlines in these 
circumstances, even without express statutory permission. See NRDC v. 
EPA, discussed supra, in Response to Comment 1.
    Comment 3: Reclassification alone has no immediate or mandated 
regulatory consequence. A SIP revision can consist of a showing that 
attainment will result from implementation of emission reductions 
already required pursuant to the SIP call. EPA's Extension Policy is 
inconsistent with Clean Air Act sections 179(c) and (d). This provision 
does not require additional local control measures beyond those 
previously approved and implemented by the State if adequate control 
measures have been adopted for upwind areas and are in the process of 
being implemented.
    Response 3: Reclassification does impose regulatory consequences. 
Section 182(i) requires that ``each state containing an ozone 
nonattainment area reclassified under section 181(b)(2) shall meet the 
requirements of subsections (b) through (d) of this section as may be 
applicable to the area as reclassified.'' Thus the area must meet the 
more stringent requirements of a higher classification, including new 
source review offsets and changes in cutoffs for permitting. The 
provisions of section 181(b) apply to reclassification of ozone areas. 
Sections 179(c) and (d) do not apply to ozone areas that are classified 
as marginal, moderate, or serious, which are subject to the 
requirements of section 181, if EPA determines that they failed to 
attain the ozone standard as of the applicable attainment date pursuant 
to that section.
    Comment 4: Sections 176A and 184 of the CAA do not support EPA's 
extension policy. Congress left no room in the statute for attainment 
date extensions for downwind areas, considering instead the additional 
recommended OTC control measures for upwind areas to be sufficient. 
Sections 110(a)(2)(D)(i)(1) and 110(a)(2)(A) do not authorize the EPA 
policy. Section 110(a)(2)(D) imposes a burden only on upwind states and 
does not relieve downwind states of their obligation to attain by the 
pre-set attainment dates. EPA lacks the authority to rewrite the 
extension authority Congress wrote into sections 181(a)(4) and (b)(3). 
Congress was well aware of the transport problem and addressed it in 
explicit provisions, including section 110(a)(2)(D), section 
110(a)(2)(A), section 184, section 176A, section 126, section 182(h), 
and section 181(a)(4). Thus Congress knew how to address pollutant 
transport and how to draft an attainment date extension addressed to it 
when it wished to do so. It also provided for voluntary 
reclassification under section 181(b)(3) to be available for downwind 
areas if affected by transport. Congress dealt with transport 
explicitly in sections 181(a)(4), 182(h) and 182(j)(2). Congress knew 
how to exempt transport-affected areas from control requirements if it 
wanted to, as it did for rural transport areas under section 182(h). 
Congress limited relief for areas subject to transport to exemption 
from sanctions, but did not extend this to section 110(c) FIPs. H.R. 
101-490, at 248. This shows Congress' intent to apply all of the CAA 
enforcement tools except for sanctions under section 179. Congress 
considered the effects of transport, but not in the reclassification 
context. Congress did provide for attainment date extensions, but not 
in this context.
    Response 4: Having crafted provisions in the 1990 Amendments that 
it believed would be adequate to address the problem of downwind 
nonattainment, Congress did not expressly provide for an attainment 
date extension based on transport. But the absence of such a provision 
does not prevent EPA from inferring that Congress would have intended 
to provide such relief should the express

[[Page 26920]]

provisions fail to function as envisioned. In fact, the manner in which 
Congress did address the issue of transport shows that EPA's 
interpretation is consistent with Congress's approach in other sections 
of the Act. EPA's interpretation resolves the problem that arose when 
the express statutory tools failed to function as Congress had 
envisioned. It also, as EPA pointed out in its guidance, 61 FR 14441 
(March 25, 1999), provides a means to reconcile the attainment 
demonstrations and attainment date requirements for downwind areas with 
the graduated attainment date scheme and schedule for achieving 
reductions in the upwind areas. Although Congress intended that upwind 
areas be responsible for preventing interference with downwind areas' 
attainment dates, it also expressly allotted more time for certain 
upwind areas to reduce their emissions so as to attain the standard.
    EPA disagrees with commenters that Congress intended section 
110(a)(2)(D) and the other transport provisions to exclude the 
possibility of further relief for downwind areas. These sections 
express Congressional intent that downwind areas not be saddled with 
responsibility for pollution beyond their control. Their premise was 
that there would be a means of redress against upwind areas prior to 
the downwind area's attainment date--a means that also would not be at 
odds with Congress's decision to provide longer attainment periods for 
upwind areas confronting onerous pollution problems. But, as EPA 
pointed out in its guidance, there was in fact no practicable way to 
carry out the Congressional scheme until a much more comprehensive 
understanding of the complex facts of ozone transport could be 
achieved.
    Although Congress in the 1990 Amendments and in prior versions of 
the Clean Air Act attempted to deal with the issue of transport, the 
reality of the problem proved far more complicated and intractable than 
expected. As explained in EPA's guidance, 64 FR 14441 (March 25, 1999), 
and in the January 3, 2001, rulemaking granting extensions to serious 
areas (66 FR 586), it took many years for EPA and the states to study, 
analyze, and attempt to resolve the allocation of responsibility for 
transported ozone pollution. A detailed description of the history of 
efforts to address ozone transport through the 1990's may be found in 
the preambles to these NO<INF>X</INF> SIP Call and Section 126 
rulemakings. 63 FR 57360-63, 64 FR 28253-54.
    The BPA and HG areas are not subject to the NO<INF>X</INF> SIP 
call. But the analysis of transport developed for the NO<INF>X</INF> 
SIP Call aided EPA and Texas in understanding the transport problem in 
the BPA area. See Section C, Response 2. The BPA SIP was submitted in 
November 1999 and supplemented in April 2000. The HG SIP was submitted 
in December 2000, the date for submission for all severe areas.
    Thus, although Congress in the Clean Air Act had formulated a 
prohibition on transport interfering with downwind attainment, it 
remained largely theoretical until EPA and the states could understand 
how to identify, quantify, and analyze the transport of emissions, and 
develop regulatory means to coordinate the respective responsibilities 
of a multitude of upwind and downwind areas. Although Congress endowed 
EPA and the states with legal tools to protect downwind areas from 
interference with attainment, it did not give them the ability to use 
the tools in the time frame anticipated by Congress. By the time EPA 
and the states gained an understanding of regional transport sufficient 
to allow enforcement of the provisions of the Act, it was too late to 
help some downwind areas meet their attainment dates, including 
moderate areas such as the BPA area.
    As set forth in Response l above, Congress intended, through 
enactment of the provisions addressing transport cited by commenters, 
to prevent downwind areas from being held accountable for pollution 
over which they exercise no control. Because of the complexity of the 
transport problem, EPA and the states could not deploy these statutory 
provisions in time to achieve attainment by their original attainment 
dates. But this does not mean that Congress would have intended EPA to 
construe the very provisions designed to protect downwind areas as 
precluding EPA from interpreting the statute to provide the relief that 
those provisions failed to furnish. Notwithstanding the absence of an 
express provision for an attainment date extension based on transport, 
EPA believes that, taking into account the Act read as a whole, 
Congressional intent supports EPA's interpretation of an attainment 
date extension in the circumstances presented here.
    Commenters argue that the fact that Congress formulated various 
provisions addressing certain specific types of issues concerning 
transported pollution, but did not provide for an explicit attainment 
date extension based on transport, should be taken as proof that 
Congress meant to preclude such relief. But each of the provisions 
cited by commenters was designed to address a different problem from 
the one EPA addresses here, and none undermines EPA's interpretation 
that Congress intended to provide relief in the situations currently 
confronted by downwind areas. As shown in EPA's previous responses, 
Congress expressed its intent in the transport sections to protect 
downwind areas from the burdens of transported pollution, but the 
mechanisms it provided could not be invoked in time.
    For example, section 181(a)(4) concerns the potential for 
adjustment of the original classification of an area if its design 
value is within a certain margin. It allows the Administrator to 
consider a number of factors, including among them transport. This 
provision in no way casts doubt on the Congressional intent not to 
penalize downwind areas through mandatory reclassification should they 
later fail to attain the standard due to transport. Section 182(h) 
provides a mechanism for original classifications of rural transport 
areas as marginal areas, the lowest level of ozone nonattainment areas. 
Far from indicating that Congress did not intend relief for areas that 
are victims of transport, this provision reflects Congressional concern 
with not burdening areas with responsibility for transport not of their 
making. It sheds no light on whether Congress would have intended EPA 
to reclassify areas suffering from transported pollution if they were 
subsequently unable to meet their attainment dates.
    Nor, as commenters suggest, would so-called ``voluntary'' 
reclassification under section 181(b)(3) furnish an adequate remedy for 
the situation confronting areas that fail to attain due to interference 
from transport. An area that felt constrained to seek ``voluntary'' 
reclassification would still be forced to subject itself to more 
stringent requirements to control local pollution in lieu of imposing 
on upwind areas the responsibility for the transport they caused. 
Further, the imposition of the more stringent local controls would 
still not bring the downwind area into attainment. It could not reach 
attainment unless and until the upwind area reachs attainment and stops 
affecting the downwind area's ability to attain.
    Comment 5: The states had power to timely submit SIPs controlling 
local pollution to the full extent that it was in the state's power to 
require, and combine it with a request to EPA to invoke EPA's authority 
to control upwind pollution, and in this way the state could have 
attained by the applicable deadline. EPA's 1994 overwhelming transport 
policy required transport modeling to be documented

[[Page 26921]]

the same time as the attainment demonstration due in 1994. There is no 
justification for allowing states to request attainment date extensions 
based on transport of which they were aware many years ago. An opening 
is created for upwind states to argue that the NO<INF>X</INF> SIP call 
effectively accelerates their attainment dates. The OTC was to 
recommend measures to bring about attainment by the deadlines ``in this 
subpart.''
    Response 5: As pointed out in EPA's Response 4, above, an awareness 
that transport was occurring is not equivalent to an ability to 
identify, analyze, and control the emissions that cause it. This 
ability, which grew out of years of study and joint effort, did not 
coalesce until 1998. Thus, downwind states and areas were faced with 
the prospect of having to shoulder responsibility for pollution not of 
their making--a responsibility that Congress did not intend to impose 
on them, even as they were aware of an ongoing effort, involving EPA 
and thirty-seven states (including Texas), to allocate responsibilities 
for transport through the OTAG process. As EPA stated in its guidance 
on the attainment date extension, the state of knowledge about and the 
ability to document and model transport has advanced considerably since 
the issuance of EPA's overwhelming transport guidance. The commenters 
seek to ignore the climate of uncertainty in which states and EPA were 
operating with respect to controlling transported pollution.
    But even with the allocation of responsibilities now available, EPA 
believes that Congress did not intend to accelerate the obligations of 
upwind areas so that downwind areas can meet earlier attainment dates. 
This would undermine the objective, firmly embodied in the graduated 
attainment framework of the Clean Air Act, to allow upwind areas with 
more severe pollution longer attainment deadlines. Upwind areas with 
later attainment dates still find it difficult to reduce emissions 
solely to control for transport without accelerating the time frames 
intended by Congress. It is unrealistic to expect upwind areas to be 
able to segregate out the reduction of emissions for purposes of 
transport from the reduction of emissions for purposes of achieving 
attainment in the upwind area.
    The fact, as a commenter points out, that Congress envisioned that 
the OTC-recommended measures would bring about attainment by the dates 
``in this subpart'' reflects Congress'' over optimistic view that 
transport would be understood and controlled in time to allow upwind 
areas to be held accountable for their contributions to downwind 
nonattainment. The comment underscores that Congress expected upwind 
reductions to take place by the time the downwind area was supposed to 
attain--this confirms that Congress expected that upwind pollution 
would be controlled prior to downwind attainment deadlines, and that 
only local pollution would remain as the downwind area's 
responsibility. But, as we previously stated, the time line for 
analyzing and assessing transport, and the resulting ability to set 
boundary conditions for modeling attainment demonstrations, did not 
keep pace with Congress' expectations. EPA is extending attainment 
deadlines in order to allow upwind areas to assume responsibility for 
the pollution they generate and that is transported across State 
boundaries or to downwind areas within a state, and to fulfill the 
Congressional intent that downwind areas not be saddled with this 
burden.
    Comment 6: EPA's decision directly conflicts with NRDC v. EPA, 22 
F.3d 1125 (D.C. Cir. 1994), where the Court held that EPA could not 
extend a clear statutory submission deadline.
    Response 6: To the contrary, EPA believes that NRDC v. EPA supports 
EPA's authority to issue the attainment date extensions at issue here. 
In that case the U.S. Court of Appeals for the D.C. Circuit upheld 
EPA's extension of SIP submittal deadlines even though such extensions 
were not expressly permitted by the Clean Air Act. See the discussion 
in Response to Comment l, above. The Court relied in part on the need 
for additional time to undertake photochemical modeling to document the 
impact of NO<INF>X</INF> reductions on individual areas, an effort that 
took more time than Congress anticipated. Here, the effort to document, 
model, and analyze regional ozone transport issues and assess 
responsibility for relative contributions is, if anything, more complex 
than the NO<INF>X</INF> exemption showings for which the Court upheld 
deadline extensions in NRDC versus EPA. The Court's reasoning in NRDC 
v. EPA should be fully applicable to the policy at stake here.
    Comment 7: A commenter concedes that ``EPA's delay in establishing 
the mandatory emission reduction targets for upwind States might 
justify the delay in adoption of adequate section 110(a)(2)(D) measures 
by the upwind states,'' but concludes that the delay ``cannot justify 
delaying the obligation of downwind States to implement all the local 
measures necessary for attainment by the statutory deadline.'' One 
commenter, while acknowledging that it ``does not take issue with EPA's 
objective of accommodating the delayed control contributions from 
upwind areas,'' contests EPA's claim of authority to extend attainment 
dates. This commenter suggests that the appropriate remedy is for EPA 
to authorize states to take credit for mandated emission reductions 
when preparing attainment demonstrations and determining the degree of 
local controls needed to attain.
    Response 7: While the commenter recognizes that there was a delay 
in understanding and regulating transported pollution that ``might 
justify the delay'' in upwind states adopting section 110(a)(2)(D) 
measures, and agrees with EPA's objective in taking this delay into 
account, the commenter's proposed solution fails to address the problem 
it acknowledges. The commenter suggests allowing areas to take credit 
when they prepare their attainment demonstrations--but this solution 
addresses only the planning requirement, and does not assist the areas 
in solving the problem of failing to meet their attainment deadline. It 
is to address this issue, and to effectuate Congressional intent to 
avoid penalizing downwind areas in these circumstances, that EPA has 
formulated the attainment date extension. The delay in ascertaining the 
amount and achieving the reality of upwind reductions--a delay conceded 
by commenters--resulted in uncertainty in a downwind area's ability not 
only to plan for attainment, but to realize it.
    This comment also highlights the difficulties that EPA's attainment 
date extension policy was designed to address: Namely that the states 
and EPA were (1) not able to assess relative contributions until it was 
too late to implement the controls to bring about attainment; and (2) 
upwind areas with longer attainment dates should not be required to 
accelerate their reductions in time to help bring about attainment as 
scheduled in affected downwind areas with earlier attainment dates. As 
the policy explains, the determination of relative upwind and downwind 
contributions, how downwind areas should model their attainment 
demonstrations to show the upwind areas' impact, and the allocation of 
responsibility for determining controls did not occur in time for a 
number of areas to meet their attainment deadlines.
    Comment 8: EPA's approach allows emission reductions from motor 
vehicles to be deferred beyond the deadlines currently required by the 
Act. The policy allows deferral of conformity budgets beyond the 
statutory attainment year. It is also inconsistent with statutory 
requirements for reasonable

[[Page 26922]]

further progress in section 182(c)(2)(B), for implementation of all 
reasonably available control measures as expeditiously as practicable 
in section 172(c)(1), and for requiring that transportation plans and 
TIPs ``will not delay timely attainment of any standard or * * * other 
milestones in any area in section 176(c)(1).''
    Response 8: EPA disagrees with the commenter that the policy allows 
deferral of 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 RACM measures the 
commenter is apparently referring to are not specific measures that the 
statute requires to be implemented by a fixed date. Rather, they are 
whatever RACM measures, including motor vehicle measures, necessary to 
provide for attainment and RFP by the applicable attainment date. Thus, 
whatever attainment date is applicable, an attainment date extension, 
etc., defines the outside date by which RACM measures, including motor 
vehicle measures, necessary to provide for timely attainment must be 
implemented. A determination must then be made whether any additional 
measures could advance that date, but the analysis is keyed to the 
established attainment date. The commenter also complains about delays 
in establishing budgets for conformity purposes, and requirements that 
transportation activities not delay timely attainment. Again, these 
issues are not relevant to establishing an appropriate attainment date. 
Motor vehicle emission budgets for conformity purposes are those 
budgets that are established for the attainment year. The Act does not 
require that these budgets be set for any specific year, but rather 
contemplates that they will be established for the attainment year. 
Where EPA has properly determined that an attainment date extension 
should be granted, conformity budgets are required for the extended 
attainment year; they are no longer required for the superseded 
attainment year. The requirement that transportation activities not 
delay timely attainment is a duty imposed on transportation planning 
agencies to insure that their activities will not interfere with 
attainment of the standard by the applicable attainment date. This duty 
is irrelevant to establishing the appropriate attainment date in the 
first instance. Once an applicable attainment date is established, 
transportation planners must insure that their activities will not 
delay attainment by that date.
    Comment 9: A commenter argues that under the terms of section 
188(e), an extension of the PM attainment date may not be granted 
unless the State demonstrates that the area's SIP contains ``the most 
stringent measures that are included in the implementation plan of any 
State or are achieved in practice in any Sate, and can feasibly be 
implemented in the area.'' Moreover, section 188(e) provides for 
consideration of transboundary emissions from ``foreign countries,'' 
not from U.S. sources. EPA's proposed ozone nonattainment extension 
policy includes neither of these limitations.
    Response 9: The provision cited by commenters applies the PM-10 
standard, and is not applicable to attainment dates for ozone. 
Moreover, the regulatory regimes applicable to ozone and PM-10 are 
quite different, as are the types of transport issues that arise with 
respect to these two different pollutants. The issues EPA and the 
states confront with respect to long-range regional transport of ozone 
do not apply to PM-10. Beyond that, section 188(e) embodies a standard 
of `` impracticability'' as a basis for seeking an extension for a PM-
10 attainment deadline. With respect to the ozone attainment deadlines 
at issue here, EPA is not granting extensions solely on the grounds of 
impracticability of attaining the standard, but rather, that Congress 
intended both upwind and downwind areas to have an opportunity to bear 
the responsibility for their respective contributions to an area's 
attainment problems.
    Comment 10: EPA's effort to ``manufacture a conflict'' between the 
statutory deadlines and transport provisions fails, since these 
provisions must be read together so that the upwind area's ``obligation 
to control pollution affecting the downwind area--be it interstate or 
intrastate--falls due no later than the downwind area's attainment 
date.'' EPA's argument that areas with longer attainment dates be given 
additional time ignores the statutory requirement that areas attain as 
expeditiously as practicable, even if that results in attainment before 
section 181(a)(1)'s outer deadlines. The section 181 attainment 
deadlines are ``outside limits.'' A commenter argues that Section 
181(a) does not prevent upwind areas from abating pollution in downwind 
areas in time to meet the downwind area's attainment date. EPA's policy 
cannot be defended as necessary to reconcile 181(a) with the Act's 
anti-transport provisions. Upwind areas should be able to control 
pollution contributing to downwind area's nonattainment even before 
reaching their own later-prescribed attainment dates.
    A commenter disputes EPA's interpretation of the language in 
section 110(a)(2)(D)(1) that SIP provisions prohibiting emissions which 
cause transport be ``consistent with the provisions of this 
subchapter.'' EPA should interpret the provisions to respect the 
attainment schedules of sections 181 and 182, and address transport 
separately. No reference is made to any legislative history that would 
legitimize EPA's reading. An upwind area's obligation to control 
transported pollution does not depend on its own timetable for 
attainment. EPA's policy excuses upwind area's responsibility from 
their obligations under sections 110, 176A and 184, exempting them via 
granting extensions to downwind areas. The policy defers downwind 
action until the upwind area attains.
    EPA improperly assumes that it would not be practicable for upwind 
sources to reduce emissions contributing to downwind nonattainment 
prior to the time such reductions would be required to attain in the 
upwind area. The presumption should be precisely the opposite: unless 
the upwind state can show that such reductions are impracticable, EPA 
should assume such reductions can be made at times to eliminate the 
upwind state's contribution to nonattainment downwind by the downwind 
area's attainment date. EPA's rule eliminates the Act's requirement 
that attainment be accomplished as expeditiously as possible. Section 
184 indicates Congressional intent that upwind areas make reductions if 
necessary to permit downwind areas to attain by their statutory 
deadlines.
    Response 10: EPA disagrees with the commenter's contention that it 
has ``manufactured a conflict.'' Rather, EPA believes that it 
recognizes and resolves the real tension between the statutory 
deadlines and the transport provisions. EPA explained this tension in 
its guidance on the attainment date extension policy. See also EPA's 
response to Comment 4. Congress did not intend that areas with more 
severe pollution problems such as the HG area, and accordingly longer 
attainment dates, be forced to accelerate reductions on a timetable 
that otherwise would not be required to meet their obligation to attain 
``as expeditiously as practicable.'' Commenters want EPA to read the 
requirement for upwind areas, not as mandating attainment ``as 
expeditiously as practicable''--but as requiring

[[Page 26923]]

deadlines that are not practicable, solely for the purpose of obtaining 
downwind reductions.
    In dealing with ozone, a regional pollutant, an upwind 
nonattainment area cannot make reductions for transport purposes 
without affecting its schedule for making reductions for attainment 
purposes. Compelling the upwind area to make drastically faster 
reductions is akin to asking it to go on a crash diet. But the 
interplay of the statutory provisions on attainment deadlines and 
transport reduction indicates that Congress intended upwind areas to 
reduce transport, but not to the extent of requiring shorter schedules 
for upwind attainment. Separating out reductions for purposes of 
attainment and those for the purposes of transport is more difficult 
than commenters depict, and EPA believes that Congress did not intend a 
regimen of drastic reductions without regard to the upwind area's 
attainment schedule. In reality, an upwind area that remains in 
nonattainment may well be shown to continue to transport pollution to 
an affected downwind area.
    Congress provided statutory tools to address the issue of 
transport, and believed that they would be used to reach an 
accommodation among upwind and downwind areas--but as EPA and some 
commenters have recognized, this accommodation took longer than 
anticipated. Congress did not, however, intend that upwind areas be 
forced to apply drastic measures in order to allow the downwind areas 
to meet their shorter attainment periods.
    Although the attainment deadlines can be viewed as ``outside 
limits,'' they in fact represent the dates at which statutory 
consequences must be considered. As long as no earlier date is deemed 
to be ``as expeditiously as practicable,'' there is no evidence that 
Congress considered an earlier date to be acceptable for these areas, 
in disregard of ``practicability.'' Even if earlier deadlines would be 
beneficial to downwind areas, Congress did not indicate that this 
criterion should override the criterion of ``practicability'' for the 
upwind area.
    In administering the Clean Air Act and the NO<INF>X</INF> SIP call, 
EPA has interpreted section 110(a)(2)(d)'s significant contribution 
test as requiring reductions as expeditiously as practicable without 
requiring upwind areas to impose draconian measures. The United States 
Court of Appeals for the District of Columbia Circuit recently upheld 
EPA's use of a cost component in applying that section's significant 
contribution test. Michigan v. EPA, 213 F.3d 663, 674-679 (D.C. Cir. 
2000). EPA decided that the states that were ``significant 
contributors'' under section 110(a)(2)(D) need only reduce their 
emissions by the amount achievable with ``highly cost-effective 
controls.'' 63 Fed. Reg. at 57403. ``Thus, once a state had been 
nominally marked a ``significant contributor,'' it could satisfy the 
statute, i.e., reduce its contribution to a point where it would not be 
``significant'' within the meaning of section 110(a)(2)(D)(i)(I) by 
cutting back the amount that could be eliminated with `highly cost-
effective controls.' '' 213 F.3d at 675.
    In applying section 110(a)(2)(D), the D.C. Circuit concluded that 
EPA can consider not only air quality impacts, but also costs of 
control. Thus EPA has been upheld in interpreting the Act in a way that 
limits the upwind area's responsibility to control pollution so as to 
mitigate its responsibility under section 110(a)(2)(D). The upwind area 
should not have to impose draconian controls. As the court in Michigan 
v. EPA, concluded, ``there is nothing in the text, structure, or 
history of section 110(a)(2)(D) that bars EPA from considering cost in 
its application.'' 213 F.3d 679. The Court's discussion makes clear 
that EPA, in interpreting the responsibilities of upwind states under 
section 110(a)(2)(D), may consider differences in cutback costs in 
determining what constitutes a significant contribution, and that EPA's 
inquiry is based on balancing a number of considerations to balance 
health effects and cost-effectiveness.
    EPA's policy does not excuse the upwind areas from fulfilling their 
obligations under section 110 and part D. Upwind areas will be held to 
section 110, part D and RACM requirements. EPA has determined the out-
of-state 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. The upwind area in this instance, the 
HG area, must reduce emissions as soon as practicable to eliminate its 
significant contribution to the BPA area. The HG area must also attain 
as expeditiously as practicable. It is appropriate to hold downwind 
areas to the upwind area's attainment date as an outside limit until 
EPA acts on the upwind area's attainment demonstration. The modeling 
evidence we have now shows that the upwind area needs to come into 
attainment for the downwind BPA area to attain the standard.
---------------------------------------------------------------------------

    \1\ Because the D.C. Circuit stayed the obligation of States to 
submit plans by 13 months, the court also extended by 13 months the 
date by which sources must implement the necessary controls.
---------------------------------------------------------------------------

    The BPA area is implementing local measures by 2005. The schedule 
is based on time necessary for the engineering and installation of 
control equipment on point sources during their regular maintenance and 
down times. This period must be as soon as possible, but such that BPA 
does not incur an economic hardship. This timing is appropriate and 
expeditious. Further, EPA recalculated the estimate of the future 
design values based solely on modeled days when winds are not coming 
from the HG area. The results indicate that the local measures in BPA 
are adequate to show attainment on days when transport is not an issue. 
This confirms that BPA has done all that they can to address the local 
portion of their nonattainment problem.
    Comment 11: The section 182(j)(2) ``but for'' standard applies to 
intrastate transport. An area must demonstrate that it would have 
accomplished attainment but for the failure of other areas to implement 
sufficient controls. The policy is vague, and fails to establish clear 
standards for a showing of transport. The ``affected by transport'' 
standard is unclear.
    Response 11: EPA is not constrained by the section 182(j)(2) 
standard. This section is limited in application to single 
nonattainment areas that are located in more than one state, and does 
not address transport coming into an area from another, separate area.
    The Texas modeling for the BPA and HG modeling domain showed that 
there were significant impacts from the upwind area on the downwind 
area, no matter whether one used as a standard the ``but for,'' 
``significant contribution'' or ``affected by transport'' formulation. 
EPA's review of the number of days when there is an exceedance in BPA 
for the 1990-94 data shows 41 exceedances in the BPA area, of which 16 
days are when winds are from the HG area. This is more than 3 
exceedances per year (three being the maximum number of exceedances 
allowed to still be in attainment) for BPA which are influenced by 
transport from HG. Given the two areas are less than 24 hours transport 
from each other, and the life time of ozone and its precursors, it is 
reasonable to believe ozone observations and emissions emitted in HG 
will arrive in BPA within 24 hours. This argument alone closely links 
the two areas. Modeling which eliminated the HG emissions and resulted 
in 10-30 ppb change in ozone levels in BPA, as documented in the TSD, 
shows HG is

[[Page 26924]]

having a major impact on BPA's ability to attain the 1-hour ozone 
standard.
    Congress intended that an upwind area that significantly 
contributes to a downwind area's nonattainment problem should bear 
responsibility for that pollution. The Texas modeling shows that 
significant contribution is made by the upwind area to the downwind 
area seeking the attainment date extension. EPA still believes that 
Congress would not have intended to impose the burden on downwind areas 
for an upwind area's contribution.
    Comment 12: Transport is already incorporated into each area's 
section 181 design value and thus is assumed in setting the projected 
attainment date. Congress understood transport resulted in elevated 
design values, but did not authorize classifications to take into 
account transport, and provided for reclassification by operation of 
law based on air quality. In section 181(a)(1), Congress directed that 
ozone nonattainment areas be placed within certain classifications 
based solely on their design values, regardless of transport. Congress 
understood that many areas were classified as moderate or severe at 
least in part because of ozone transport, but did not grant EPA 
discretion to take such transport into account when establishing 
initial classifications under the Act. Why does EPA believe so strongly 
that its approach is consistent with Congressional intent, given 
Congress's refusal to consider transport in establishing the initial 
classifications and in light of sections 181(b)(2) and 182(i)?
    Response 12: Section 181(a)(4) is for a discrete and limited 
purpose. The fact that this provision governing the initial 
classification process expressly takes transport into account in a 
specific way does not mean that EPA is precluded from taking transport 
into account when providing for an attainment date extension based on 
transport, prior to invoking the reclassification provisions. See EPA's 
Response to Comment 1. By providing for an extension of the attainment 
date, EPA is effectuating Congressional intent that the transport 
relief provisions have a chance to take effect before EPA has an 
obligation to determine whether the area has attained for purposes of 
triggering the reclassification provisions.
    Comment 13: EPA has previously concluded that reclassification is 
not a means of penalizing an area, but a means of providing additional 
reductions that will benefit public health. EPA rejected the notion 
that bump-up is a penalty when it reclassified the Phoenix, Arizona 
area from moderate to serious. There, EPA said:
    ``The classification structure of the Act is a clear statement of 
Congress's belief that the later attainment deadlines afforded higher-
classified and reclassified areas require compensating increases in the 
stringency of controls. The reclassification provisions of the Clean 
Air Act are a reasonable mechanism to assure continued progress toward 
attainment of the health-based ambient air quality standards when areas 
miss their attainment deadlines and are not punitive.''
    Final Rule, 62 FR 60001, 60003 (Nov. 6, 1997). Why has EPA changed 
its mind about the functions of reclassification?
    Response 13: EPA has not changed its mind about the function of the 
reclassification provision where the issue of transport is not 
presented. In the context of Phoenix, a reclassification not involving 
transport, EPA made the response cited by commenter, and noted that the 
reclassification provision was not intended to be punitive. This view 
is consistent with the position that EPA takes here, where the 
circumstances are quite different from the non-transport 
reclassification context. In the absence of transport, an area that 
fails to attain by its attainment date, may still fairly be held 
accountable for controlling local pollution, and be granted a longer 
attainment deadline in return for more stringent controls. Under these 
circumstances, applying the reclassification provisions is not 
punitive. But in the circumstances EPA and Texas confront here, the 
local area is not responsible for pollution that interferes with its 
ability to meet the standard. In such a case, to trigger 
reclassification would impose on the area the responsibility and costs 
for pollution beyond its control, and would indeed be punitive. To 
avoid such a result, and to effectuate Congressional intent, EPA has 
interpreted the Act to authorize an attainment date extension.
    Comment 14: Congress directly considered and rejected EPA's 
interpretation of its attainment date extension authority during the 
Clean Air Act Amendments of 1990. During debate, Senator Kasten 
expressed concern about the proposed legislation's provisions 
concerning the ``issue of downwind ozone nonattainment.'' He noted that 
pollution from Chicago affected southeastern Wisconsin, but described 
``the difficulty this poses is that the Nation's most polluted urban 
areas are given a much more generous timetable for meeting air-quality 
standards. Chicago will have 5 more years to meet air-quality standards 
than these Wisconsin counties will have.'' Senator Kasten then noted 
that because of Chicago's longer attainment date, it was likely that 
the Wisconsin counties ``will be found in violation of the Clean Air 
Act because of actions taking place outside of their jurisdiction in an 
upwind State.'' The commenter claims that Senator Kasten introduced an 
amendment which provided, among other things, for an attainment date 
extension for the downwind area until the upwind nonattainment area 
achieved emission reductions. S. Comm. On Envt. And Pub. Works, A 
Legislative History of the Clean Air Act Amendments of 1990, pp. 4954-
55 (1993). The commenter claims that ``the amendment, was, of course, 
rejected.'' Thus the commenter argues that Congress, although it 
addressed ozone transport in sections 176A and 184, declined to alter 
the requirements of section 181, even though it was aware of the 
problem that EPA seeks to solve with its attainment date extension 
policy.
    Response 14: There is no evidence that the amendment discussed by 
Senator Kasten was ever debated, considered, or voted upon. Commenter 
cites no support for the proposition that it was considered and 
rejected. Thus no inferences can be drawn from the fact that the 
amendment was not embodied in the statute. Moreover, even if the 
amendment had been considered and rejected, it differed from and went 
so far beyond the attainment date extension EPA is applying here as to 
not be probative of Congressional intent with respect to EPA's current 
interpretation of the Act. Among other things, it would have provided 
for a new and separate Ozone Transport Region, and would have provided 
for different obligations and consequences for downwind areas than what 
is contained in EPA's current interpretation of the attainment date 
extension policy. Legislative History at 4954-56.
    Comment 15: The EPA attainment date extension policy is an illegal 
expansion of its 1994 overwhelming transport policy.
    Response 15: The policy is not an illegal expansion of the 
overwhelming transport policy, but an appropriate interpretation of the 
provisions of the Act in order to fulfill Congressional intent. EPA's 
current articulation of the attainment date extension policy reflects 
the considerable advances in understanding and allocating 
responsibility for transport that have occurred since the formulation 
of the overwhelming transport policy. These advances have resulted from 
the work on ozone transport included in, among

[[Page 26925]]

other efforts, the OTAG, SIP Call, and area modeling programs. EPA thus 
regards the attainment date extension policy as superseding the 
overwhelming transport policy. See EPA's earlier responses.
    Comment 16: Downwind areas should be required to implement, not 
just adopt, all required measures before becoming eligible for an 
extension. Modeling is imprecise and an area might be able to attain if 
they implement all required measures, which should already have been 
implemented prior to the original attainment date. A state could have 
timely submitted all the provisions for control of local pollution as 
required by sections 182(b)(1)(A)(i), 182(c)(2), and 172(c)(1) 
providing for the full extent of local reductions that it was in the 
state's power to require.
    Response 16: In granting an attainment date extension for an area, 
EPA has determined that upwind reductions are necessary to help the 
area reach attainment. Thus, requiring all local reductions to be 
implemented prior to the time that upwind reductions are achieved would 
not accelerate attainment. Nonetheless, EPA has required that local 
reductions be implemented as expeditiously as practicable. See EPA's 
Guidance 61 FR 14441 (March 25, 1999). In this case, BPA has adopted 
and will be implementing local regulations controlling pollution from 
local sources, but which will not be able to bring about attainment due 
to pollution caused by transport due to the transport from the HG area 
preventing the BPA area attaining.
    Comment 17: EPA's allegation that additional local measures ``will 
become superfluous once upwind areas reduce their contribution to the 
pollution problem,'' 64 FR 14444, is mistaken. First, the measures will 
produce public health benefits during the period prior to 
implementation of upwind reductions, and second the Act independently 
requires all areas to ``implement all reasonably available control 
measures as expeditiously as practicable,'' 172(c)(1), regardless of 
what reductions are expected from upwind areas. EPA should not allow 
downwind areas to postpone implementing local measures until upwind 
reductions are achieved. This extension is unlawful, and, because 
unexplained, arbitrary and capricious.
    Response 17: EPA disagrees with the commenter's characterization of 
EPA's actions. EPA is in fact requiring downwind areas to implement the 
local control measures required under the classification as 
expeditiously as practicable, but no later than the time the upwind 
reductions are achieved. See EPA's Guidance, supra. To obtain an 
extension the area must have provided that it will implement all 
adopted measures as expeditiously as practicable, but no later than the 
date by which the upwind reductions needed for attainment will be 
achieved. See also response to Comment 16, above. No measures are being 
postponed as a result of the area's being granted a later attainment 
deadline. The BPA area has not delayed or postponed the effectiveness 
of measures because its attainment date is being extended. Texas is 
enforcing its attainment measures as expeditiously as practicable. The 
BPA area is implementing local measures by 2005. The schedule is based 
on time necessary for the engineering and installation of control 
equipment on point sources during their regular maintenance and down 
times. This period must be as soon as possible, but such that BPA 
incurs disproportionate economic hardship. This timing is appropriate 
and expeditious. Further, EPA recalculated the estimate of the future 
design values based solely on modeled days when winds are not coming 
from HG. The results indicate that the local measures in BPA are 
adequate to show attainment on days when transport is not an issue. 
This confirms that BPA has done all that it can to address the local 
portion of its nonattainment problem. Thus EPA's interpretation is not 
unexplained, arbitrary, nor capricious. As EPA has explained, it seeks 
to reconcile and coordinate the responsibilities of the HG and BPA 
areas to work together to achieve attainment. However, as discussed 
elsewhere, EPA has applied the section 172(c)(1) RACM requirement to 
these areas.
    Comment 18: EPA is excusing downwind areas from the requirement 
that nonattainment SIPs must provide for attainment of the NAAQS as 
provided in sections 182(b)(1)(A)(i), 182(c)(2)(A), 172(c)(1), and is 
also excusing them from the requirement that they implement all 
reasonably available control measures as expeditiously as practicable, 
regardless of the reductions required for attainment. EPA's attempt to 
lessen these obligations is unlawful and, because unexplained, 
arbitrary and capricious.
    Response 18: EPA is not excusing downwind areas from the 
requirement that they submit SIPs providing for attainment. Nor is EPA 
excusing downwind areas from the RACM requirement. EPA's interpretation 
does not exclude what is necessary for attainment; rather, a reasonably 
available measure is required as RACM if it is needed for attainment or 
will advance the attainment date. EPA is enforcing this requirement, 
but allowing the downwind areas to take into account the control 
contribution of upwind areas that Congress envisioned, and that the 
commenters themselves acknowledge is embodied in Clean Air Act 
provisions, in determining the applicable attainment date. EPA is also 
requiring that the areas implement reasonable control measures as 
expeditiously as practicable. See EPA's Responses to other comments.
    Comment 19: EPA's policy cannot be defended as a reconciliation of 
section 181(a) with the Act's anti-transport provisions. Under a proper 
interpretation of the Act, (1) an upwind area's SIP would ensure that 
the upwind area's pollution contributing to NAAQS violations in the 
downwind area would be controlled, no later than the downwind area's 
attainment date, (2) the upwind area would attain locally as 
expeditiously as practicable but no later than the date prescribed by 
section 181(a)(1) for the upwind area, and (3) the downwind area would 
attain locally ``as expeditiously as practicable but not later than'' 
the applicable date prescribed in section 181(a)(1). This reading gives 
effect to all of the relevant statutory provisions.
    Response 19: The commenter concedes that under a proper 
interpretation of the Act, the upwind area's SIP would ensure that the 
upwind area's pollution contributing to violations in the downwind area 
would be controlled, prior to the downwind area's attainment date. But 
in the circumstances actually confronting EPA and Texas, as EPA has 
explained in prior responses, it was not possible without accelerating 
the HG area attainment date, to control upwind transport prior to BPA's 
original attainment date. Thus, in order to allow the upwind area its 
alloted time to attain, and to avoid imposing on the downwind area a 
burden Congress did not intend, EPA proposed interpreting the Act to 
adjust BPA's attainment deadlines. By adjusting the attainment date to 
allow the upwind and downwind areas to carry out the statutory 
allocation of responsibility that is acknowledged by the commenter, EPA 
indeed is reconciling the Act and rendering a proper interpretation.
    Comment 20: No extension should be granted unless the area is as 
small as possible. The basis for transport should not be OTAG modeling, 
since better data is available.

[[Page 26926]]

    Response 20: The boundary for the BPA nonattainment area was 
established and codified in 40 CFR part 81 (see 56 FR 56694, November 
6, 1991; and, 61 FR 14496, April 2, 1996). The modeling done by OTAG 
and by EPA in the SIP call and the local modeling done in connection 
with the BPA attainment demonstration represent the best available 
modeling.
    Comment 21: EPA purports to apply its policy to moderate and 
serious areas, but moderate areas should already have been bumped up to 
serious, because their attainment date was November 15, 1996, and the 
Act requires EPA to reclassify an area within six months of its 
attainment date under section 181(b)(2)(A). Thus, moderate areas should 
not be at issue, because such areas should be in serious status, and 
therefore the relevant bump-up should be from serious to severe.
    Response 21: As EPA has noted, its attainment date extension policy 
and an adequate understanding of ozone transport were not developed 
until after the attainment date for moderate areas had passed. See 
Response to Comment 1. Nevertheless, EPA believes that to deny 
eligibility for the attainment date extension to moderate areas 
affected by transport because the policy and science were not available 
earlier, would work an injustice. Moreover, EPA believes that applying 
the policy to these areas is consistent with Congressional intent and 
with the Congressional approach of applying other types of attainment 
date extensions after an area has been unable to reach attainment. See, 
for example, section 181(a)(5).
    Under section 181(a)(5), EPA may determine that an area has 
qualified for an extension after it has failed to attain in its 
attainment year. Section 181(a)(5) provides that EPA may grant an 
extension of one year (``the Extension Year'') if, in relevant part, 
``no more than 1 exceedance of the [ozone standard] has occurred in the 
area in the year preceding the Extension Year.'' This procedure 
presumes that the area did not attain in its attainment year, and 
requires a review of data to determine the number of exceedances in the 
original attainment year prior to the granting of the extension. Thus, 
Congress knew and approved of a system for granting extensions after an 
area had already failed to attain according to its original schedule. 
EPA's granting of an extension to the BPA area after its original date 
for attainment has lapsed is therefore consistent with Congressional 
intent and the statutory scheme that Congress established in the Act.
    In the case of the BPA area, EPA did not act to reclassify this 
area to serious after its attainment date had passed, nor does EPA 
believe that it would be appropriate to do so retroactively. Nor does 
EPA believe that it is consistent with the statutory scheme or 
Congressional intent to deem the BPA area, in the absence of a notice-
and-comment rulemaking on reclassification, to have somehow 
constructively been bumped up to serious. Moreover, if EPA were to deny 
the BPA area the attainment date extension and reclassify the area, 
reclassifying the area to severe would create an injustice. The area 
would then be required to impose severe area requirements without ever 
having been afforded an opportunity to attain the standard by employing 
serious area requirements. Such an approach would in effect impose a 
retroactive reclassification to serious, coupled with a second 
reclassification to severe. The U.S. District Court for Washington, DC, 
in Sierra Club v. Whitman 98-2733 (CCK) (January 29, 2001 Order), 
declined to impose a retroactive reclassification in part because it 
would create this kind of injustice.
    Comment 22: EPA's reliance on section 110(a)(2)(D)(i)(l) and 
section 110(a)(2)(A) for the proposition that EPA is statutorily 
authorized to extend attainment dates expressly set under sections 181 
and 182 of the Act is erroneous. Section 110(a)(2)(A) states that each 
SIP shall ``include enforceable emission limitations and other control 
measures * * * for compliance, as may be necessary to meet the 
applicable requirements of this chapter.'' The provision in no way 
gives EPA the ability to extend the attainment dates expressly provided 
for under sections 181 and 182. In fact, EPA's statement that the EPA 
interprets section 110(a)(2)(A) to incorporate the same requirement as 
section 110(a)(2)(D)(i)(l) that upwind States are prohibited from 
interfering with the air quality of downwind states that somehow 
downwind states can magically ignore their attainment dates under 
section 110(a)(2)(A), a provision that does not even expressly deal 
with transport.
    Response 22: The commenter mistakes the role of EPA's 
interpretation of section 110(a)(2)(A) in supporting EPA's attainment 
date extension policy. EPA simply reads section 110(a)(2)(A) as 
creating, in the intrastate context, a responsibility on the part of a 
state to control upwind pollution originating in its borders that 
affects another in-state nonattainment area. This responsibility is 
analogous to the responsibility the state has under section 
110(a)(2)(D) to a nonattainment area located in another state that is 
affected by pollution from within the upwind state's borders. But, as 
EPA pointed out in its attainment date extension policy, EPA believes 
that this responsibility must be harmonized and read consistently with 
the graduated attainment date scheme that allows upwind areas with 
later attainment dates additional time to obtain emissions reductions. 
In the circumstance of an upwind area with a later attainment date, EPA 
believes that the upwind area should not be forced to accelerate 
attainment solely for the purpose of discharging its obligations to the 
downwind area under either section 110(a)(2)(A) or 110(a)(2)(D). EPA 
believes that Congress intended to authorize attainment date extensions 
in the downwind area when necessary to reconcile the need for upwind 
reductions with the timetable for attainment in the upwind area, 
whether that attainment area be within or outside the State.

B. Comments Received in Response to April 16, 1999, Notice

    Comment 1: Among the comments received, twenty comment letters were 
received voicing strong statements of support for EPA not to reclassify 
the BPA nonattainment area from moderate to severe. No adverse comments 
were received. These commenters asserted that reclassification would 
put the economic viability of the BPA area in jeopardy. The commenters 
believed that the BPA area was affected by transport of ozone and ozone 
precursor chemicals from the HG area.
    Response 1: EPA has reviewed the TNRCC SIP submittals and it is our 
technical opinion that Texas has demonstrated that during some BPA 
exceedances, ozone levels are affected by emissions from the HG area, 
and that the HG area emissions prevent BPA from attaining the 1-hour 
ozone standard prior to the time HG implements all measures necessary 
for HG to attain the 1-hour standard.
    EPA recalculated the estimate of the future design values based 
solely on modeled days when winds are not coming from HG. The results 
indicate that the local measures in BPA are adequate to show attainment 
on days when transport is not an issue. This confirms that BPA has done 
all that they can to address the local portion of their nonattainment 
problem.
    EPA's review of the number of days when there is an exceedance in 
BPA for the 1990-94 data shows 41 exceedances in the BPA area, of which 
16 days are when winds are from the HG area. This is more than 3 
exceedances per year

[[Page 26927]]

(three being the maximum number of exceedances allowed to still be in 
attainment) for BPA which are influenced by transport from HG. Given 
the two areas are less than 24 hours transport from each other, and the 
life time of ozone and its precursors, it is reasonable to believe 
ozone observations and emissions emitted in HG will arrive in BPA 
within 24 hours. This argument alone closely links the two areas. 
Modeling which eliminated the HG emissions and resulted in 10-30 ppb 
change in ozone levels in BPA, as documented in the TSD, shows HG is 
having a major impact on BPA's ability to attain the 1-hour ozone 
standard. BPA has adopted and will be implementing local regulations 
that modeling demonstrates would eliminate exceedances on those days 
when transport is not involved, but which will not be able to bring 
about attainment because transport would continue to cause a sufficient 
number of exceedances such that violation of the standard would 
continue. Transport from the HG area will prevent the BPA area from 
attaining. See our responses in Section (A), comments 1, 5, 10, 11, 16 
and 17, regarding EPA's standard for determining the contribution of 
transport to the BPA area. Furthermore, EPA's Transport Policy 
supercedes EPA's earlier Overwhelming Transport Policy. See the 
response in Section (A), comments 15 and 16.

C. Comments Received in Response to December 27, 2000, Notice

    Twenty-seven documents were received in response to the December 
2000 notice. Twenty-six documents supported the proposed rule. These 
are summarized and addressed as comment 1. One document contained 
comments adverse to the proposed rule. The comments in that document 
are listed and responded to individually as comments 2 through 21.
    Comment 1: Twenty-six documents were received in support of various 
aspects of the December 27, 2000, proposal to extend the ozone 
attainment date for the BPA ozone nonattainment area to November 15, 
2007, while retaining the area's current classification as a moderate 
ozone nonattainment area. The commenters supported the EPA technical 
opinion that Texas has demonstrated that during a significant portion 
of BPA exceedances, ozone levels are affected by emissions from the HG 
area, and that the HG area emissions affect BPA's ability to attain the 
1-hour ozone standard. Many stated their belief that the technical 
basis and legal rationale are sound.
    Response 1: The EPA is in general agreement with the commenters who 
support the proposed actions in our December 27, 2000, NPR. A number of 
the commenters appropriately stated opinions such as: ``By proposing to 
extend BPA's ozone attainment date, EPA has rightfully exercised its 
July 16, 1998 policy regarding attainment date extensions for downwind 
transport areas. The technical basis and legal rationale for extending 
a downwind transport area's attainment date were clearly articulated in 
EPA's July 1998 policy memorandum and in its response to comments 
regarding similar proposals to extend the attainment dates of the 
Western Massachusetts, Washington, DC, and Connecticut nonattainment 
areas.'' The previous responses to comments detail our interpretation 
of the transport policy, our rationale for granting attainment date 
extensions for nonattainment areas located downwind of nonattainment 
areas that have attainment dates later than the downwind areas, and the 
relation of these interpretations to the CAA.
    Comment 2: BPA has failed to attain. EPA has a statutory duty to 
determine that BPA has failed to meet the November 15, 1996 attainment 
deadline for moderate ozone areas. EPA has been in violation of the Act 
since that date, and is subject to a lawsuit requesting a court to 
order the agency to act on the finding of non-attainment. [T]he ambient 
air quality data demonstrate clearly that the BPA area did not meet the 
ozone standard and that air quality is continuously and steadily 
deteriorating from 1996 to today. BPA has continued to experience ozone 
exceedances each year since 1996 through 2000, which indicates the need 
for the area to adopt a stringent SIP. BPA should have been notified of 
their failure to attain no later than May 15, 1997. Contingency 
measures should have been implemented immediately, and the area 
reclassified from moderate to serious.
    Response 2: EPA believes it is fulfilling its duties under the 
Clean Air Act by applying the attainment date extension to the BPA 
area, or in the alternative, proposing to reclassify the area.
    In the proposed rulemaking published on April 16, 1999 (64 FR 
18864), we proposed, as one alternative, to find, pursuant to section 
181(b)(2) of the Clean Air Act, that the BPA area had failed to attain 
the ozone one-hour NAAQS by the date prescribed under the Act for 
moderate ozone nonattainment areas, or November 15, 1996. If we were to 
finalize such a finding, we would then have published a notice that the 
BPA area is reclassified from moderate nonattainment to serious 
nonattainment.
    Alternatively, we proposed to extend the area's attainment date, 
providing that Texas meet the criteria of our July 16, 1998 transport 
policy, ``Guidance on Extension of Attainment Dates for Downwind 
Transport Areas.'' We stated that if Texas submitted a SIP that met the 
July 1998 transport policy, we would issue in a Federal Register notice 
a supplemental proposal to extend the BPA area's attainment date as 
appropriate. Further, if Texas did not submit a SIP that met the July 
1998 transport policy, or failed to submit a SIP, we would finalize the 
proposed finding of failure to attain, and the BPA area would be 
reclassified as a serious ozone nonattainment area.
    The July 16, 1998, policy memorandum entitled ``Guidance on 
Extension of Air Quality Attainment Dates for Downwind Transport 
Areas,'' outlines the criteria by which the attainment date for an area 
may be extended. Following this guidance, and in consideration of the 
evolution of our understanding of ozone formation and transportation, 
EPA proposed the actions in the April 19, 1999, and the December 27, 
2000, Federal Registers. The issues of the legality of the transport 
guidance and the guidance's relation to the CAA have been discussed in 
the responses to the March 25, 1999, notice, and are incorporated 
herein insofar as relevant. See Section VIII (A).
    Overall, the BPA air quality has not steadily deteriorated over 
time, as stated by the commenters. TNRCC analyzed the historic air 
quality in the BPA ozone nonattainment area for the period of 1975 to 
1999. While there is the expected sawtooth spread of data (due 
primarily to meteorologic time specific fluctuations) the analyses 
demonstrate that the area's ozone design value exhibits a general 
decrease since 1975 (this can be seen on Figure 6.3-2 of the April 25, 
2000 BPA SIP submission). This downward trend is almost as great for 
the period 1991-1999 as for the earlier period. It is EPA's technical 
opinion that this long-term downward trend is likely to continue. In 
addition, the air quality will keep improving due to substantial 
reductions in precursor emissions in both HG and BPA, due to both state 
and federal emission control requirements. This includes the impacts of 
the implementation of the NO<INF>X</INF> RACT and beyond-RACT 
NO<INF>X</INF> rules for the BPA area.
    The BPA area is implementing local measures by 2005. The schedule 
is based on time necessary for the

[[Page 26928]]

engineering and installation of control equipment on point sources 
during their regular maintenance and down times. This period must be as 
soon as possible, but such that BPA does not incur an economic 
hardship. This timing is appropriate and expeditious. Further, EPA 
recalculated the estimate of the future design values based solely on 
modeled days when winds are not coming from HG. The results indicate 
that the local measures in BPA are adequate to show attainment on days 
when transport is not an issue. This confirms that BPA has done all 
that they can to address the local portion of their nonattainment 
problem.
    EPA's review of the number of days when there is an exceedance in 
BPA for the 1990-94 data shows 41 exceedances in the BPA area, of which 
16 days are when winds are from the HG area. This is more than 3 
exceedances per year (three being the maximum number of exceedances 
allowed to still be in attainment) for BPA which are influenced by 
transport from HG. Given the two areas are less than 24 hours transport 
from each other, and the life time of ozone and its precursors, it is 
reasonable to believe ozone observations and emissions emitted in HG 
will arrive in BPA within 24 hours. This argument alone closely links 
the two areas. Modeling which eliminated the HG emissions and resulted 
in 10-30 ppb change in ozone levels in BPA, as documented in the TSD, 
shows HG is having a major impact on BPA's ability to attain the 1-hour 
ozone standard.
    Texas has benefitted from the OTAG/ NO<INF>X</INF> SIP call 
experience. From this modeling we gained a better understanding of the 
role NO<INF>X</INF> emissions play in the formation and transport of 
ozone. Earlier we had thought local VOC was the major contributing 
factor, but through the regional modeling and other analyses being 
conducted during that time period we learned that NO<INF>X</INF> is a 
significant contributor and has much longer transport distance than 
earlier envisioned. As a result TNRCC improved, through regional 
modeling to develop boundary conditions, the manner in which 
transported NO<INF>X</INF> is treated. Also, during this time period 
they benefitted from improvements in our emissions inventories and 
updates to the carbon bond IV chemistry in the model (e.g., improvement 
in the isoprene chemistry). These improvements were necessary for us to 
understand the ozone problem in the BPA area.
    Texas' conclusions regarding transport from the HG area were not a 
product of the OTAG or NO<INF>X</INF> SIP call modeling. However, TNRCC 
did use the time during which OTAG met to better understand the land/
sea breeze phenomenon which has added a level of complexity to the HG 
and BPA analysis not seen anywhere else in the country. Emissions and 
ozone in the HG and BPA areas are emitted into the local atmosphere 
where ozone formation begins, transported out over the warm air over 
the Gulf of Mexico where the warmer temperatures further activate the 
chemistry to form more ozone which is then transported back inland over 
both areas. So far, our meteorological models have not been able to 
accurately simulate this process. However, our understanding of what is 
happening has improved to the degree that we at least know better how 
to interpret the photochemical model results.
    It is EPA's technical opinion that based on the weight-of-evidence 
and the modeling, the State's control strategy should provide for 
attainment by November 15, 2007.
    Comment 3: EPA cannot invent rationales for the state. EPA concedes 
that the state has failed to adequately justify rejection of identified 
measures as RACM. Rather than disapproving the SIPs on that basis, 
however, EPA proceeds to provide its own rationales for why the states 
might have decided to reject these measures as RACM. EPA has no 
authority to proceed in this manner. The Act and EPA guidance require 
the states to perform the required RACM analysis, and to justify their 
rejection of any available control measures. EPA's role is limited to 
reviewing what the states have submitted, and approving or disapproving 
it. 42 U.S.C. 7410(k)(3); Riverside Cement Co. v. Thomas, 843 F.2d 1246 
(9th Cir. 1988). EPA ``may either accept or reject what the state 
proposes; but EPA may not take a portion of what the state proposes and 
amend the proposal ad libitum.'' Id. The approach EPA is proposing is 
nowhere authorized by the Act. It also conflicts with the Act's 
requirement that SIP revisions be subjected to public notice and 
hearing at the state level before submission to EPA. 42 U.S.C. 
7410(a)(1). If states are going to reject control measures, their 
decision to do so and the rationale therefor must be subject to notice 
and hearing at the state and local level. Indeed, EPA's own guidance 
emphasizes the importance of local determinations of the feasibility of 
specific measures as RACM. 57 FR at 13560.
    Response 3: The State adopted all the measures, including the 
additional more stringent point source rules, it believed necessary for 
meeting the RACM requirement under section 172(c)(1). During the 
State's public comment periods on the overall SIP and its supporting 
rules, commenters raised the RACM requirement for the point source 
rules only. Commenters believed that there was no need for the more 
stringent point source rules. The State addressed the comment and 
explained why the beyond-RACT point source rules were necessary for 
attainment and were RACM for the BPA area. The EPA by reviewing a 
particular small sub-set of non-adopted control measures is not 
amending the SIP; EPA analyzed the non-adoption of this particular 
small sub-set of control measures and is approving the SIP with a 
conclusion that it was acceptable for the State to not adopt any 
further additional measures to meet the RACM requirement of the Clean 
Air Act.
    The commenter cites Riverside Cement for the proposition that EPA 
cannot perform an analysis of whether the State's plan complies with 
the CAA's RACM requirement. The EPA believes that the holding of that 
case is inapplicable to these facts. In Riverside Cement, EPA approved 
a control requirement establishing an emission limit into the SIP and 
disregarded a contemporaneously-submitted contingency that would allow 
the State to modify the emission limit. Thus, the court concluded that 
EPA ``amended'' the State proposal by approving into the SIP something 
different than what the State had intended. 843 F.2d at 1248.
    In the present circumstances, EPA did not attempt to modify a 
substantive control requirement of the submitted plan. Rather, EPA 
performed an additional analysis of a small sub-group of measures to 
determine if the plan, as submitted, fulfilled the substantive RACM 
requirement of the Act. The statute places primary responsibility on 
the States to submit plans that meet the Act's requirements. However, 
nothing in the Act precludes EPA from performing those analyses, and 
the Act clearly provides that EPA must determine whether the State's 
submission meets the Act's requirements. Under that authority, EPA 
believes that it is appropriate, though not mandated, that EPA perform 
independent analyses to determine whether a submission meets the 
requirements of the Act. The EPA has not attempted to modify the 
State's submission by either adding or deleting a substantive element 
of the submitted plan. By virtue of the supplemental RACM analysis, EPA 
has concluded that the State's submission contains control measures 
sufficient to meet the RACM requirement. EPA also believes the State's 
hearings sufficiently addressed

[[Page 26929]]

the fact that the State had not included additional control measures as 
RACM. This is further supported by the fact that no adverse comments 
were received raising the need for additional RACM.
    Comment 4: Inappropriate grounds for rejecting RACM.
    Comment 4(a): EPA's grounds for rejecting measures as RACM are 
inappropriate. EPA employed the following three grounds for rejecting 
measures as RACM: (a) The measures are likely to ``require an intensive 
and costly effort for numerous small area sources''; (b) ``due to the 
small percentage of mobile source emissions in the over-all inventory, 
some are not cost-beneficial,'' and (c) ``since the BPA [Beaumont/Port 
Arthur] area relies in part on reductions from the upwind HG [Houston/
Galveston] area which are substantial, and the reductions projected to 
be achieved by the evaluated additional set of measures are relatively 
small, they would not produce emission reductions sufficient to advance 
the attainment date in the BPA [Beaumont/Port Arthur] area and, 
therefore, should not be considered RACM.'' None of these grounds are 
legally or rationally sufficient bases for rejecting control measures.
    Response 4(a): The EPA's approach toward the RACM requirement is 
grounded in the language of the Clean Air Act. Section 172(c)(1) states 
that a SIP for a nonattainment area must meet the following 
requirement, ``In general. Such plan provisions shall provide for the 
implementation of all reasonably available control measures as 
expeditiously as practicable (including such reductions in emissions 
from existing sources in the area as may be obtained through the 
adoption, at a minimum, of reasonably available control technology) and 
shall provide for attainment of the national primary ambient air 
quality standards.'' [Emphasis added.] The EPA interprets this language 
as tying the RACM requirement to the requirement for attainment of the 
national primary ambient air quality standard. The Act provides that 
the attainment date shall be ``as expeditiously as practicable but no 
later than * * *'' the deadlines specified in the Act. EPA believes 
that the use of the same terminology in conjunction with the RACM 
requirement serves the purpose of specifying RACM as the way of 
expediting attainment of the NAAQS in advance of the deadline specified 
in the Act. As stated in the ``General Preamble'' (57 FR 13498 at 
13560, April 16, 1992), ``The EPA interprets this requirement to impose 
a duty on all nonattainment areas to consider all available control 
measures and to adopt and implement such measures as are reasonably 
available for implementation in the area as components of the area's 
attainment demonstration.'' [Emphasis added.] In other words, because 
of the construction of the RACM language in the CAA, EPA does not view 
the RACM requirement as separate from the attainment demonstration 
requirement. Therefore, EPA believes that the Act supports its 
interpretation that measures may be determined to not be RACM if they 
do not advance the attainment date. In addition, EPA believes that it 
would not be reasonable to require implementation of measures that 
would not in fact advance attainment. See 57 FR 13560.
    The term ``reasonably available control measure'' is not actually 
defined in the definitions in the Act. Therefore, the EPA 
interpretation that potential measures may be determined not to be RACM 
if they require an intensive and costly effort for numerous small area 
sources is based on the common sense meaning of the phrase, 
``reasonably available.'' A measure that is reasonably available is one 
that is technologically and economically feasible and that can be 
readily implemented. Ready implementation also includes consideration 
of whether emissions from small sources are relatively small and 
whether the administrative burden, to the States and regulated 
entities, of controlling such sources was likely to be considerable. As 
stated in the General Preamble, EPA believes that States can reject 
potential measures based on local conditions including cost. 57 FR 
13561.
    Also, the development of rules for a large number of very different 
source categories of small sources for which little control information 
may exist will likely take much longer than development of rules for 
source categories for which control information exists or that comprise 
a smaller number of larger sources. The longer the time frame for 
development of rules by the State would decrease the possibility that 
the emission reductions from the rules in the nonattainment area would 
advance the attainment date earlier than would be achieved from the 
larger amount of reductions expected from the upwind controls of the HG 
area with a later statutory attainment date.
    Similar to the above analysis, the EPA interpretation that 
potential mobile source measures may not be RACM if they represent a 
small percentage of mobile source emissions in the over-all inventory, 
is again based on the fact that these measures could not advance the 
attainment date. For instance, as detailed in the Technical Support 
Document (TSD) for this proposed action, when compared to emission 
reductions necessary for attainment, the emission reductions from 
transportation control measures (TCMs) that could potentially be 
implemented are only a small percentage (3.3% for NO<INF>X</INF>) of 
emission reductions needed. From this analysis, EPA concludes that 
implementation of these TCMs would not produce emission reductions 
sufficient to advance the attainment date.
    Comment 4(b): EPA's approach also illegally assumes that the 
attainment dates for these areas can be extended beyond November 15, 
1999 via the Agency's downwind transport policy. Once an attainment 
deadline has passed, EPA must require SIPs to include all available 
control measures to provide for attainment as soon as possible. Delaney 
v. EPA, 898 F.2d 687 (9th Cir. 1990).
    Response 4(b): As noted above, EPA concluded that RACM is linked in 
the language of the Clean Air Act to the attainment date. We elsewhere 
respond to comments that object to EPA's approval of attainment date 
extensions and do not restate those responses here. See Section 
VIII(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. EPA is setting 
November 15, 2007 as the attainment date for the BPA area. We do not 
consider measures as RACM for the BPA area if they do not advance that 
attainment date. We are requiring the State to demonstrate that all 
local measures that are RACM are implemented as expeditiously as 
practicable, however.
    Comment 5: Failure to quantify reductions needed to attain sooner. 
Even if advancement of the attainment date were a relevant test for 
RACMs, EPA has failed to rationally justify its claim that additional 
RACMs would not meet that test. To begin with, neither the Agency nor 
the state have quantified in a manner consistent with EPA rules and 
guidance the emission reductions that would be needed to attain the 
standard prior to achievement of emission reductions required under the 
NO<INF>X</INF> SIP call.
    Response 5: Elsewhere in this response to comments on the proposed 
approval of the 1-hour ozone SIP, EPA addresses the issue of the 
attainment date extension. See Section VIII(A). In that section, EPA 
justified the position that areas affected by transport may need 
additional time to attain, and in some cases may need an extension out

[[Page 26930]]

to either the date the NO<INF>X</INF> SIP call will be implemented 
(where applicable) or the attainment date of an upwind area if it 
cannot attain without the reductions from the upwind area. Please note 
that while the commenter makes reference to the NO<INF>X</INF> SIP 
call, Texas is actually not included in the NO<INF>X</INF> SIP call. 
However, it should also be noted that even though they were not 
included, Texas still showed that transport from areas outside of the 
BPA area, but within the State including attainment areas, contribute 
to exceedances in the BPA area. Therefore, Texas included control 
measures for regional emissions reductions (including in attainment 
areas) as part of the BPA attainment demonstration SIP, in a manner 
similar to those undertaken by the states included in the 
NO<INF>X</INF> SIP call.
    For the case where the upwind area, e.g., the HG area, precludes 
the downwind area (e.g., BPA) from reaching attainment, it would be 
futile to perform analyses of whether additional emission reductions in 
the BPA nonattainment area itself (whether RACM or beyond RACM) would 
advance the attainment date when it is already demonstrated through the 
BPA/HG specific modeling that the BPA area cannot attain sooner than 
the upwind HG nonattainment area, with any combination of local 
measures. In addition, with regard to the local attainment modeling for 
the BPA area's self-generated exceedances, all local measures needed 
for expeditious attainment, are already or will soon be implemented. 
EPA considers the implementation of the local control measures (i.e., 
the measures within the BPA area itself) to be as expeditious as 
practicable. Issues concerned with timing of implementation of 
additional measures are also discussed above. As noted previously, EPA 
cannot technically distinguish which particular emissions reductions in 
the HG area would contribute to attainment in the BPA area.
    Comment 6: Inadequate RACM analysis. EPA's RACM analysis is grossly 
inadequate in several key respects.
    Comment 6(a): The Agency fails to provide the technical basis and 
calculations by which it developed its emission reduction estimates for 
various RACMs.
    Response 6(a): EPA's RACM analysis (Appendix C to the TSD for the 
December 27, 2000 notice) did provide the technical basis and 
calculations for its emission reduction estimates for controls possible 
for the source categories in the emission inventory. The technical 
basis for the analyses and the assumptions used in the calculation of 
estimated emission reductions for TCMs were derived from a review of 
the literature on the implementation and effectiveness of 
TCM's.<SUP>2 3</SUP> The TCMs evaluated depend on the level of 
implementation. Implementation variables, representing levels of 
implementation effort, are implicit in the range of effectiveness for 
each category of TCM. EPA does not believe it is necessary, or even 
possible, to evaluate every explicit variation of TCM's in order to 
adequately determine if it is reasonably available. EPA believes that 
using the midpoint level of effectiveness represents a level of 
implementation effort that is not so high as to be economically 
infeasible, nor so low as to be ineffective.
---------------------------------------------------------------------------

    \2 3\ Transportation Control Measures: State Implementation Plan 
Guidance, US EPA 1992; Transportation Control Measure Information 
Documents, US EPA 1992; Costs and Effectiveness of Transportation 
Control Measures: A Review and Analysis of the Literature, National 
Association of Regional Councils 1994.
---------------------------------------------------------------------------

    Comment 6(b): EPA's analysis looks at only a small universe of 
potential measures as RACM, and does not evaluate all of the measures 
identified in public comment and other sources. Among the controls 
ignored by the EPA analysis are: (a) Expansion and increased stringency 
of I/M; (b) diesel I/M; (c) expanded remote sensing programs; (d) CARB 
diesel fuel standards; (e) clean fuel vehicle programs; (f) lawn 
equipment replacement programs, adoption of SCAQMD controls for VOC and 
NO<INF>X</INF> sources; (g) adoption of the SCAQMD rule requiring 
conversion of many diesel fleets to alternative fuel or clean diesel/
hybrid technologies; (h) elimination of solvent decreasing; (i) limits 
on pesticide application during the ozone season; (j) source reduction 
for discharges to sewage plants; improved rule-effectiveness measures; 
(k) enhanced Stage II vapor recovery enforcement; (l) NO<INF>X</INF> 
RACT to 25 tons per year; and (m) statewide NO<INF>X</INF> limits. See, 
e.g., letter of July 6, 1999 to Gregg Cooke, EPA Region 6, the November 
15, 2000 comments by David Baron to EPA Region 3, and his prior 
comments to EPA Region 3 on the Washington, DC SIP. It is arbitrary and 
irrational for EPA to assume that these measures can and will be 
implemented in complete isolation from one another.
    Response 6(b): EPA's RACM analysis was intended to address all 
potential categories of stationary and mobile sources that could 
provide additional emission reductions that might be considered RACM. 
The commenter mentions a long list of measures they believe were 
ignored by the EPA in its analysis. However, the EPA did consider a 
wide range of measures, including appropriate measures from the 
commenters' listing, and the measures mentioned by the commenters were 
either not considered to be technically or economically feasible in the 
BPA area's situation or would not advance attainment. Examples include:
    <bullet> Expansion and increased stringency of I/M--In 40 CFR 
section 51.350(a)(4) requires only urbanized areas with population of 
more than 200,000 to implement an I/M program, unless that area is in 
the ozone transport Region. In the final rulemaking on this, EPA said, 
``the 200,000 population cut-off for basic programs is authorized by 
the Act because sections 182(a)(2)(B)(i) and 182(b)(4) require 
implementation only of an I/M program no less stringent than that 
required under pre-1990 EPA I/M guidance. EPA's pre-1990 I/M guidance 
required implementation of basic I/M programs only in urbanized areas 
of 200,000 population. It is true that some moderate areas would not be 
required to implement I/M programs if their population were under 
200,000, despite the fact that section 182(b)(4) requires a basic I/M 
program in all moderate areas. However, the basic program that is 
required is a program that applies only to areas of 200,000 or more 
population.'' 60 FR 48032, 48033 (September 18, 1995). To now require 
I/M under the guise of a RACM analysis would contradict the flexibility 
intended by promulgation of the regulation and thwart the intent of 
Congress. Implementation of an I/M program would not advance the 
attainment.
    <bullet> Diesel I/M--Due to the state of instrumentation and 
certification, this type of program is not presently technically and 
economically feasible for the BPA area and as such is not RACM.
    <bullet> Expanded remote sensing programs--Remote sensing would not 
provide sufficient emission reductions to justify the cost of the 
implementation, nor would it advance attainment, for the BPA area.
    <bullet> CARB diesel fuel standards--Texas has passed a low 
emission diesel program similar to the California diesel program and 
has submitted that program along with a request for a waiver of federal 
preemption under 211(c)(4)(C) of the CAA. The Texas program goes beyond 
the California program in that it also controls cetane, in addition to 
sulfur and aromatic hydrocarbons. If approved by EPA, it would apply in 
the BPA area. It should be noted that the Texas Legislature is 
considering a measure that would void

[[Page 26931]]

this regulation. On April 23, 2001, the Texas House of Representatives 
Environmental Regulation Committee reported favorable on Texas House 
Bill 2649. Currently, section 2 of this Bill amends section 382.037(g) 
of the Texas Health and Safety Code. If passed by both houses of the 
Texas Legislature and signed by the Governor, this measure will 
preclude TNRCC from adopting any fuel control measure. While any loss 
in emissions reductions from this measure would have to be offset by 
Texas, lack of legislative authority would be valid rationale for not 
including fuel controls as reasonably available. In addition, 
currently, EPA is in the process of performing a comprehensive review 
and analysis of data to quantify the emission reduction effects of low 
emission diesel fuels. The outcome of this evaluation could result in a 
need to reconsider the emission reduction estimate used by the State in 
their low emission diesel rule. We expect the evaluation process to be 
completed by May of 2001. If the results of EPA's evaluation indicates 
that Texas has overestimated the emission reductions attributable to 
their low emission diesel rule, this measure may no longer be 
considered reasonably available (depending on the cost associated with 
low emission reductions). We would work with the State to address any 
shortfall in emission reductions that may be realized because of 
results from the evaluation. However, due to transport from HG this 
control measure would not advance the attainment date in the BPA area, 
and the modeling demonstrates that it is not needed to address the 
local contribution.
    <bullet> Clean Fuel Vehicle programs--Texas currently has a Clean 
Fleet Program substitute plan that exceeds the emissions reductions 
requirements of the Federal Clean Fuel Fleet program. EPA recently 
approved this program and it is in effect in the BPA area (66 FR 9203, 
dated February 7, 2001).
    <bullet> Lawn equipment replacement--Combining the economic impact 
on individuals with a small reduction in emissions with the difficulty 
in enforcement results in a finding that this measure would not be 
RACM.
    The responses for the other items listed by the commenters are 
similar. As with the diesel and clean fuel vehicle programs listed by 
the commenters, the State has gone beyond requirements in several 
programs. EPA recognizes that many control measures, particularly TCMs, 
are more effective if done in conjunction with others. EPA maintains 
that it has considered appropriate measures for RACM for the BPA area. 
EPA also maintains that it would be impossible to analyze a seeming 
infinite set of measures for possible benefits. The EPA's analysis did 
look at all appropriate measures in various applicable categories and 
concluded that as a whole these categories and/or measures would not 
advance attainment or would otherwise not be reasonably available, for 
the BPA nonattainment area.
    Comment 7: Stationary sources: The analysis of potential emission 
reductions from additional stationary source RACMs is flawed in several 
key respects.
    Comment 7(a): EPA arbitrarily excluded from consideration a base 
percentage of the stationary source categories at smaller facilities. 
EPA asserts that this exclusion was based on the assumption that the 
contribution from these categories ``would be considered too small and 
too numerous to regulate individually.'' This is an arbitrary basis.
    Response 7(a): EPA does not consider this exclusion (the bottom 
20%) to be based on an arbitrary assumption, since it was designed to 
eliminate from consideration controls on a number of source categories 
that were not expected to yield many emission reductions. The EPA 
believed that controls on categories with very low emission reduction 
potential would not constitute RACM. The fact that the top 80 percent 
of the categories considered for additional controls yielded minimal 
(maximum 2.5 tpd) emissions reductions, validates EPA's decision not to 
analyze separately the bottom 20 percent of the categories, which would 
cumulatively have achieved fewer emission reductions. Therefore, EPA 
concludes that control measures applied to the bottom 20 percent of the 
categories are not RACM. In the case of NO<INF>X</INF> controls for 
stationary sources in BPA, Texas is controlling emissions beyond levels 
that EPA has previously approved as RACT (defined by EPA as the lowest 
achievable emission rate considering technical and economic feasibility 
and therefore considered RACM for major sources) for utility and 
industrial boilers and process heaters.
    Comment 7(b): Second, EPA did not consider potential additional 
controls on electric generating units and point source combustion 
sources. EPA offers no explanation for this exclusion. If the Agency is 
assuming that these sources are already controlled to RACT levels, that 
assumption is not supported by the record.
    Response 7(b): EPA does believe the record supports that RACT was 
in place on electric generating units and point sources. The EPA 
proposed conditional approval of BPA NO<INF>X</INF> RACT on October 28, 
1999 (64 FR 58011), and published final conditional approval on March 
3, 2000 (65 FR 11468). A direct final notice converting the conditional 
approval to a full approval was published September 1, 2000 (65 FR 
53172). This process included two public comment periods in which no 
adverse comments were received.
    Undoubtedly there are additional controls that could be placed on 
electric generating units and point source combustion sources. However, 
EPA believes that: (1) the implementation of the RACT requirements in 
the BPA nonattainment area; (2) Texas' regional measures providing for 
additional 50% NO<INF>X</INF> reductions at electrical generating 
facilities in Central and Eastern Texas (which will affect the 
nonattainment area in general), and; (3) the beyond-RACT emission 
specifications for Electric Utility Boilers and industrial boilers and 
certain process heaters in the BPA area; provide a level of control 
that represents all reasonably available controls for these types of 
sources in the BPA area in question.
    The EPA believes that generally, the level of NO<INF>X</INF> 
emissions control required under Texas' local and regional measures 
(similar to the NO<INF>X</INF> SIP call requirements in other parts of 
the U.S.), including controls for electric generating units (above), 
industrial, commercial, and institutional boilers, water heaters, small 
boilers and certain process heaters, is greater than the level of 
control presumed to be RACT by EPA under the NO<INF>X</INF> RACT 
requirement. EPA acknowledges that additional controls with higher 
costs are available and may be cost-effective for areas other than the 
BPA area. Also, the control costs may not reflect other concerns for 
the BPA area, regarding reasonableness of control. If control levels 
greater than those provided by the RACT and the beyond-RACT stationary 
control measures already or about to be implemented were to be adopted 
for the BPA area, the EPA believes they would not advance the 
attainment date for the BPA area, particularly since this area relies 
heavily on NO<INF>X</INF> controls from upwind (HG area) sources, and 
further local reductions within this BPA area are not needed to address 
local contribution. Therefore, EPA has determined that such additional 
controls on electric generating units and point source combustion 
sources do not constitute RACM.
    Comment 7(c): EPA assumes that only a 44% (32-58% range) level of 
control is achievable for the uncontrolled emissions for industrial 
boilers and process heaters at 19 large stationary

[[Page 26932]]

sources (4 refineries reduce their NO<INF>X</INF> by 58% and 15 
chemical plants reduce NO<INF>X</INF> by 32%). This completely 
unsupported claim is hard to fathom.
    Response 7(c): The EPA established guidance to States in complying 
with the Clean Air Act's requirements for NO<INF>X</INF> RACT in the 
NO<INF>X</INF> Supplement to the General Preamble (57 FR 55620, 
November 25, 1992). That guidance addressed RACT for major stationary 
sources of NO<INF>X</INF>. Under section 182(b)(2) of the Act, moderate 
and higher ozone nonattainment area SIPs (and also SIPs for all areas 
in the Ozone Transport Region) were already required to contain 
provisions for applying a reasonably available level of control for 
NO<INF>X</INF> for major stationary sources. As discussed in the 
previous response to comment, EPA approved RACT levels for the BPA 
area.
    For NO<INF>X</INF> emission control for other sources, when EPA 
published the NO<INF>X</INF> SIP call (63 FR 57402, October 27, 1998), 
EPA evaluated other levels of NO<INF>X</INF> control for categories of 
stationary sources that were not included in the highly cost-effective 
controls assumed for establishing the level of control reflected in the 
Statewide NO<INF>X</INF> emission budgets in that rule. The EPA 
determined that for area sources, additional NO<INF>X</INF> controls 
that were technologically feasible and highly cost-effective could not 
be identified. The EPA determined that for small point sources, their 
collective emissions were relatively small and the administrative 
burden, to the States and regulated entities, of controlling such 
sources of NO<INF>X</INF> was likely to be considerable. Nonetheless, 
for the purpose of the RACM analysis, EPA did assume a level of control 
for sources of NO<INF>X</INF> with potential for control. In light of 
the lower level of confidence in information concerning NO<INF>X</INF> 
controls on these sources, and the conclusion concerning cost 
effectiveness, however, EPA believed it had to take a more conservative 
approach.
    The additional local BPA area control measures the State 
implemented results in a 44 percent level of control for the BPA area. 
The EPA believes this level is reasonable in light of the analysis 
performed for the General Preamble, the SIP call, and the BPA RACT 
approvals. In addition, this level is consistent with EPA guidance 
issued on March 16, 1994 which states that NO<INF>X</INF> RACT is 
generally expected to achieve a 30-50% reduction. EPA further believes 
the 44 percent level of control is sufficient to bring the BPA area 
into attainment by the attainment extension date of November 15, 2007. 
This 44 percent reduction is the amount achieved by aggressive 
combustion modifications, and was termed ``Tier I'' level of controls 
by the State. The TNRCC also considered a ``Tier II'' level of controls 
that would have required extensive add-on controls such as Selective 
Catalytic Reduction (SCR). The modeling showed Tier II controls were 
not necessary for BPA to reach attainment for 1-hr ozone NAAQS. In 
addition, the HG area will be implementing major reductions in 
emissions to support attainment. Those ``regional'' reductions are 
needed for the BPA area to attain the NAAQS for ozone. Therefore, 
further controls in the BPA area will not advance the attainment date 
and are not necessary.
    Comment 8: Transportation Control Measures as RACM: EPA gives 
virtually no consideration to the emission reduction benefits of 
transportation programs, projects and services contained in adopted 
regional transportation plans (RTPs), or that are clearly available for 
adoption as part of RTPs adopted for a nonattainment area. In addition, 
it is arbitrary and capricious for EPA not to require as RACM economic 
incentive measures that are generally available to reduce motor vehicle 
emissions in every nonattainment area.
    Response 8: EPA's RACM analysis performed for the December 27, 
2000, notice (Included in the TSD for the proposed rule) does consider 
transportation programs, projects and services that are generally 
adopted, or available for inclusion in a nonattainment area's regional 
transportation plan (RTP) and Transportation Improvement Program (TIP). 
The RACM analysis includes seven broad categories covering twenty-seven 
subcategories of Transportation Control Measures (TCMs) that represent 
a range of programs, projects and services that can be included in RTPs 
and TIPs. The inclusion of a TCM in an RTP or TIP does not necessarily 
mean that it meets EPA's criteria for RACM and must be included in the 
SIP. EPA has concluded that implementation of these TCMs would not 
advance the attainment date for the BPA area, and therefore are not 
considered RACM for purposes of the attainment SIPs for that area.
    Some of these TCMs, such as parking cashout, transit subsidies, and 
parking pricing, are explicitly economic incentive programs. 
Furthermore, these categories of TCMs, as well as most of the others, 
could be infinitely differentiated according to criteria, such as the 
method of implementation, level of promotional effort or market 
penetration, stringency of enforcement, etc. The application of 
economic incentives to increase the effectiveness of a TCM is one such 
criterion. These implementation variables, representing levels of 
implementation effort, are implicit in the range of effectiveness for 
each category of TCM. EPA does not believe it is necessary, or even 
possible, to evaluate every explicit variation of TCMs in order to 
adequately determine if it is reasonably available. EPA believes that 
using the midpoint level of effectiveness represents a level of 
implementation effort that is not so high as to be economically 
infeasible, nor so low as to be ineffective.
    Also, there are many important reasons why a state, regional, or 
local planning agency might implement TCMs in an integrated traffic 
management plan beyond whatever air quality benefits the TCMs might 
generate, including preserving open space, water shed protection, 
avoiding sprawl, mitigating congestion, and ``smart growth'' planning 
generally. So the fact that TCMs are being implemented in certain ozone 
nonattainment areas does not necessarily lead one to the conclusion 
that those TCMs represent mandatory RACM measures when they are 
analyzed primarily for the purpose of determining whether they would 
advance the ozone attainment date.
    Due to the smaller number of mobile sources and vehicle miles 
traveled (VMT) in the BPA area, mobile source NO<INF>X</INF> emissions 
amount to less that 20% of the total NO<INF>X</INF> emissions for the 
BPA area. As such, small changes resulting from implementation of 
additional TCMs have a negligible effect on ozone reduction and will 
not contribute to acceleration of the attainment date for the BPA 
nonattainment area.
    Comment 9: BPA area analysis: Having refused to consider a wide 
range of potential measures as RACM for this area, and understating the 
potential benefits of others, EPA asserts that available measures would 
not advance the attainment date in BPA because: (a) The area relies 
heavily on control of transported emissions and ozone; and (b) The 
modeling indicates that NO<INF>X</INF> reductions are generally more 
beneficial in reducing ozone levels, suggesting that the area may be 
NO<INF>X</INF> limited. The first point is truly irrelevant to the RACM 
inquiry, for all the reasons set forth above. Even if the issue is 
whether additional measures could advance the attainment date, that 
inquiry is not informed by whether the area might attain by November 
15, 2007, but by whether it could attain sooner than November 15, 2007. 
As to the second point, the modeling does not show that NO<INF>X</INF> 
reductions are inherently more

[[Page 26933]]

beneficial. They merely show that under some circumstances--generally 
involving very substantial NO<INF>X</INF> reductions (e.g., 60% cuts or 
larger)--NO<INF>X</INF> reductions might provide greater benefits per 
ton. The same model shows that NO<INF>X</INF> reductions can sometimes 
actually lead to increased ozone levels in some cells. Even if the 
ozone problem in the BPA area is NO<INF>X</INF> limited, that hardly 
justifies eschewing additional measures as RACM--at most it would 
suggest focusing more heavily on additional measures for NO<INF>X</INF> 
sources as RACM.
    Response 9: The sensitivity analyses that were performed by the 
State of Texas with the photochemical grid model for the BPA area 
showed that, even with small NO<INF>X</INF> emission reductions, the 
ozone benefits achieved are substantially greater than the minor ozone 
benefits achieved from similar VOC emission reductions. Also, the 
results of the attainment demonstration modeling conducted by the State 
specifically indicate that NO<INF>X</INF> control is particularly 
effective in reducing ozone levels in the BPA area. Therefore, EPA 
stands by its technical position that the levels of VOC reductions in 
the BPA area that could be achieved by additional stationary and mobile 
source control measures that are potentially RACM would not improve 
ozone levels to the point that would result in advancing the attainment 
date. Furthermore, EPA's analysis demonstrated that the source 
categories that were available for mobile NO<INF>X</INF> controls were 
considered too few (even with the area's ability to benefit from 
NO<INF>X</INF> controls) to advance the attainment date.
    Also, EPA's analysis of levels of NO<INF>X</INF> reductions in the 
BPA area that could be achieved by additional stationary source 
controls that are potentially RACM would have to come from a large 
number of small sources where EPA does not have much guidance for 
control, and therefore would be costly to develop. Further, 
implementation of these potential measures for both VOC and 
NO<INF>X</INF> would not advance the attainment date due to the 
substantial reductions needed in the HG area. Therefore, EPA concluded 
that additional controls on the source categories evaluated for both 
VOC and NO<INF>X</INF> should not be considered RACM.
    The HG nonattainment area is classified severe-17 with an 
attainment date of November 15, 2007, whereas the BPA nonattainment 
area is classified as a moderate area. EPA is approving an attainment 
date extension for the BPA area precisely because the modeling shows 
that additional controls coming from outside the BPA area itself are 
needed for the BPA area to come into attainment. Other reasons why EPA 
does not consider additional measures to be RACM for the BPA area are 
discussed elsewhere in these responses to comments. Also, refer to 
previous responses to comments concerning the BPA attainment date and 
advancing an attainment date due to transport.
    Comment 10: EPA's 1998 Transport Policy: Commenters believe that 
the so-called ``July 1998 transport policy'' is legally and technically 
flawed and must not be relied upon to allow further delay in responding 
to the Act's requirements. Assuming arguendo that the ``transport 
policy'' is valid, commenters believe that the evidence, information 
and data available to EPA surrounding the BPA area indicate that 
transport plays no part in at least a portion of the ozone exceedances 
observed in the BPA area and thus the transport policy cannot apply, 
even if transport is a factor in other episodes. Even EPA and the state 
concede that applying an analysis of back trajectories of air parcels 
coming into the BPA area from the HG area fails to demonstrate 
transport effects from HG as the sole cause of higher ozone 
concentrations in the BPA area. Commenters request the development of 
an environmental justice analysis and the incorporation of specific 
measures and accommodations to address the needs of particular 
communities that are disproportionally affected by exposure to 
unhealthful air quality.
    Response 10: EPA has responded extensively to issues pertaining to 
the legality and technical applicability of the July 1998 Transport 
Policy in its March 1999 responses, above.
    EPA disagrees with the assertion that even if the July 1998 
Transport Policy is valid it does not apply, since transport does not 
appear to be a significant factor in some of the area's ozone 
exceedances. The evidence shows that absent adequate controls on 
transported pollution from the HG area, the BPA area will not attain 
the standard. The policy requires the BPA area to put in place local 
control measures to address local contributions to the area's 
nonattainment problem. However, these measures alone will not bring the 
BPA area into attainment due to the transport of ozone and ozone 
precursor compounds from the HG area. Thus, the EPA has determined that 
the July 1998 Transport Policy is appropriately applied in this case.
    In approving the State's request for an attainment date extension 
for BPA, EPA did not base the decision solely on the State's back 
trajectory analyses. The State demonstrated the impact of ozone and 
ozone precursor transport from the upwind HG area counties upon the BPA 
area through photochemical grid modeling (i.e., CAMx).
    EPA recalculated the estimate of the future design values based 
solely on modeled days when winds are not coming from HG. The results 
indicate that the local measures in BPA are adequate to show attainment 
on days when transport is not an issue. This confirms that BPA has done 
all that they can to address the local portion of their nonattainment 
problem. EPA's review of the number of days when there is an exceedance 
in BPA for the 1990-94 data shows 41 exceedances in the BPA area, of 
which 16 days are when winds are from the HG area. This is more than 3 
exceedances per year (three being the maximum number of exceedances 
allowed to still be in attainment) for BPA which are influenced by 
transport from HG. Given the two areas are less than 24 hours transport 
from each other, and the life time of ozone and its precursors, it is 
reasonable to believe ozone observations and emissions emitted in HG 
will arrive in BPA within 24 hours. This argument alone closely links 
the two areas. In addition, five of the 41 exceedances occurred at the 
same BPA Monitor (BMTC). During four of these execeedances, ozone 
quality in the HG area on the day before, or the day of, these 
exceedances ranged from 107 to 140 ppb. These high levels of HG ozone, 
on days when the winds were from the direction of HG, further link HG 
area ozone and emissions with BPA exceedances. Modeling which 
eliminated the HG emissions and resulted in 10-30 ppb change in ozone 
levels in BPA, as documented in the TSD, shows HG is having a major 
impact on BPA's ability to attain the 1-hour ozone standard. BPA has 
adopted and will be implementing local regulations controlling 
pollution from local sources, but which will not be able to bring about 
attainment due to pollution caused by transport. Transport from the HG 
area will prevent the BPA area from attaining.
    This is consistent with the criteria in EPA's July 17, 1998 policy 
memo entitled ``Extension of Attainment Dates for Downwind Transport 
Areas'', and demonstrates through modeling that transport from an 
upwind area with a later attainment date affects the downwind area's 
ability to attain the standard by its attainment date. The State has 
demonstrated through modeling that Beaumont-Port Arthur was affected by 
transport from HG emissions to a degree that affects BPA's ability to 
attain. In addition to photochemical modeling, the State

[[Page 26934]]

conducted an analysis of back trajectories to further illustrate the 
impact of the HG area emissions on the BPA ozone nonattainment area.
    The subject of an environmental justice analysis is addressed later 
in response to a specific comment (see comment 18).
    Comment 11: EPA has a duty to reclassify BPA immediately: The 
administrative record in this matter includes extensive correspondence 
between EPA and the state of Texas over BPA. This correspondence 
reflects the air quality status of BPA during the years 1997 and 1998, 
and includes express direction from EPA to Texas to submit a 
demonstration of overwhelming transport no later than May 15, 1998. 
Several years later, no new or substantive evidence from Texas 
describing the nature or extent of any transport is presented. EPA 
lacks the authority to ignore non-compliance and interminable foot-
dragging. EPA is bound by the express requirements and structure of the 
Act and must reclassify BPA immediately.
    Response 11: EPA has responded to issues pertaining to the 
interpretation of the reclassification requirements of the Clean Air 
Act and application of those requirements in light of developments 
since the enactment of the 1990 Clean Air Act in its March 1999 
responses, above. See Section VIII(A), specifically the response to 
comment 1. The EPA is not relying on the overwhelming transport policy; 
that policy guidance is superseded by the 1998 transport policy. See 
Section VIII(A) comments 15 and 16. The 1998 transport policy reflects 
the latest science and modeling information, as well as EPA's 
application of its interpretation of the CAA. The information added by 
the State in the 1999 and 2000 SIP submissions adds to the record, and 
more clearly depicts the influence of transport on the ability of BPA 
to attain the NAAQS for 1-hr ozone levels. Refer to preceding responses 
and comment number 17 in Section VIII(A). EPA is not ignoring the 
issue, but has gained a new and improved understanding leading to a 
more equitable resolution that better executes the will of Congress as 
embodied in the CAA.
    Comment 12: Further delays are inappropriate: EPA proposes to grant 
Texas time for months and years of further inaction by the proposed 
rule. Reclassification should occur immediately upon the conclusion of 
this rulemaking, i.e., by early February 2001. An emergency, partial 
SIP submittal should be required immediately which commits to 
implementing all available control strategies for stop-gap emissions 
reductions, including the incorporation of whatever improved 
NO<INF>X</INF> rules, contingency measures, RACT fix-up and other 
available control strategies for adoption into a federally enforceable 
interim SIP. A complete SIP (with attainment demonstration, revised 
inventories, further enhanced control strategies, etc.) should be 
developed and submitted no later than 6 months after the final rule is 
published.
    Response 12: EPA responds extensively to the issues of attainment 
date extension, reclassification requirements, implementation of RACM 
and other control measures, and the appropriateness of the SIP 
components submitted by the State of Texas, the subjects of this 
comment, throughout these responses to comments.
    Comment 13: Reclassification to severe is justified: BPA's design 
value is not significantly decreasing, according to monitoring 
stations. It is experiencing degrading air quality rather than steady 
improvement. Reclassification to serious is inadequate to reverse this 
trend, and as EPA notes, BPA cannot realistically be expected to meet 
the 11/15/99 SIP submittal deadline, much less demonstrate attainment, 
even though these are the requirements of the Act. Current data 
demonstrates that the serious classification is not appropriate: BPA 
should be reclassified to severe.
    Response 13: The BPA design value is decreasing. The 1-hr ozone 
design value for the three-year period of 1995 through 1997 is 157 ppm, 
while the design value for the three-year period of 1998 through 2000 
is 145 ppm. In addition, overall the design value has been steadily 
decreasing since 1975. This is demonstrated in the State's Design Value 
Trend analysis, and is discussed previously in Section VIII(C) response 
to comment 2.
    EPA disagrees with the assessment that BPA should be reclassified 
to severe. In our April 16, 1999, proposed rule (64 FR 18864) we 
proposed to find, pursuant to section 181(b)(2) of the Clean Air Act, 
that the BPA area has failed to attain the ozone 1-hour NAAQS by the 
date prescribed under the Act for moderate ozone nonattainment areas, 
or November 15, 1996. Alternatively, in that proposed rule, we proposed 
to extend the attainment date, providing that Texas meets the criteria 
of our July 16, 1998, transport policy, ``Guidance on Extension of 
Attainment Dates for Downwind Transport Areas.'' We stated that if 
Texas submits a SIP that meets the July 1998 transport policy, we would 
issue a supplemental proposal in a Federal Register notice to extend 
the BPA area's attainment date as appropriate. If Texas did not submit 
a SIP that met the July 1998 transport policy, or failed to submit a 
timely SIP, we would have finalized the proposed finding of failure to 
attain, and the BPA area would be reclassified as a serious ozone 
nonattainment area.
    The State met the requisite criteria and has demonstrated that the 
BPA area is influenced by transport from the HG area to the extent that 
BPA can not attain until the HG area attains. Therefore, we are 
approving the BPA ozone attainment demonstration and, following the 
criteria of the July 1998 transport policy guidance, are extending the 
date required for BPA attainment compliance to the appropriate date 
equal to the attainment date of the upwind source influencing the BPA 
(downwind) nonattainment. Our previous responses fully address the 
validity and application of the July 1998 transport policy guidance, 
and our interpretation of the Clean Air Act and application of those 
requirements in light of developments since the enactment of the 1990 
Clean Air Act. In light of this, it is not appropriate to reclassify 
the BPA nonattainment area as either serious or severe. Refer to 
Section VIII(A) comment 13, and Section VIII(C) comments 1 and 2. In 
any event, if the area were to be reclassified, the statute would call 
for reclassification to ``serious'', not severe. Refer to Section 
VIII(A), response to comment 21.
    Comment 14: Reliance on the July 1998 transport policy is 
inappropriate: EPA's July 1998 transport policy is neither legally 
valid nor applicable to BPA. It should be ignored and instead, the Act 
applied as written.
    Response 14: EPA has replied extensively on the validity of the 
July 1998 transport policy and its applicability to the BPA ozone 
nonattainment area in previous responses to comments, above, especially 
Section VIII(A), response to comment 2. Responses in Section VIII(C) 
(e.g., comment 9, and comment 16 to follow) discuss specifics 
particular to the BPA area.
    Comment 15: If Houston's air pollution is actually being 
transported to BPA, EPA must make a SIP call to improve the HG SIP: The 
Act is clear that states are required to develop plans which include 
sufficient control strategies to mitigate and compensate for the 
effects of transported air pollutants. Sec. 110(a)(2)(D), 110(k)(5). As 
noted above, the 7/98 transport policy is backwards: Congress clearly 
expected that upwind areas would be required to control emissions to 
the degree that these emissions would not affect

[[Page 26935]]

downwind areas. The state must adopt whatever controls are necessary 
for HG to reduce its pollution in a timely fashion and help Beaumont 
into attainment.
    Response 15: EPA has replied extensively on the validity of the 
July 1998 transport policy and its applicability to the BPA ozone 
nonattainment area in previous responses to comments, above, especially 
the responses to the March 1999 Notice--Section VIII(A). In addition, 
as discussed previously, it is difficult to ascertain which emission 
reductions an upwind area might require earlier in order to bring a 
downwind area into attainment prior to attainment by the upwind area. 
Moreover, requiring control strategies in the HG area that accelerates 
that area's attainment date conflicts with Congressional intent to 
allow the HG area a later attainment date, and based on consideration 
of what is ``practicable.''
    In response to the commenter's concern that the EPA must make a SIP 
call to improve the HG SIP, the EPA does not agree. We are currently 
operating under the Natural Resources Defense Council consent decree 
(Natural Resources Defense Council v. Browner, Civ No. 99-2976, 
November 30, 1999) for HG SIP actions. This consent decree essentially 
is functioning as a SIP call. The State of Texas submitted an 
attainment demonstration SIP for the HG area, with rules or other 
enforceable control measures, by December 31, 2000. This attainment 
demonstration SIP revision is currently under EPA review. Thus, until 
EPA has ruled on the sufficiency of that SIP submission, a SIP call 
would be premature. Per the decree, if EPA has not fully approved an 
attainment demonstration SIP for HG, EPA must by October 15, 2001, 
propose a Federal Implementation Plan (FIP). Should a FIP be proposed, 
the EPA must promulgate the FIP by June 14, 2002 to be in compliance 
with the consent decree. Previous responses found above, including the 
responses to the March 1999 Notice--Section VIII(A), discuss why the 
EPA does not believe the Act requires the HG area to shorten its 
attainment schedule by adopting and implementing rules on a faster 
schedule in order to bring the BPA area into attainment sooner. Also, 
reference the TSD to the December 27, 2000, proposed rule for details 
of the modeling evidence for transport and BPA nonattainment.
    Comment 16: The ``Extension'' of the attainment date is not 
warranted by fact or permissible under law: EPA's legal basis for 
simply adjusting the attainment date under these circumstances is non-
existent. Even if there were statutory authority to grant extensions, 
there is nothing in the notice to suggest that the area has to reduce 
transport to attain.
    Response 16: EPA has replied extensively on the validity of the 
July 1998 transport policy, the granting of an extension to the 
attainment date for a downwind nonattainment area, and its 
applicability to the BPA ozone nonattainment area in previous responses 
to comments, above, including the responses to the March 1999 Notice--
Section VIII(A).
    Also, the State has submitted an approvable modeling demonstration 
with supporting documentation that the BPA area is affected by 
transport of ozone and ozone precursor compounds from an upwind source, 
namely the HG area. The submitted documentation successfully 
demonstrates that this transport from the HG area affects the BPA 
area's ability to attain earlier than the date that the HG area 
attains. There is strong evidence to support the position that the BPA 
nonattainment area is impacted by transport from the HG area. EPA's 
review of the number of days when there is an exceedance in BPA for the 
1990-94 data shows 41 exceedances in the BPA area, of which 16 days are 
when winds are from the HG area. This is more than 3 exceedances per 
year (three being the maximum number of exceedances allowed to still be 
in attainment) for BPA which are influenced by transport from HG. Given 
the two areas are less than 24 hours transport from each other, and the 
life time of ozone and its precursors, it is reasonable to believe 
ozone observations and emissions emitted in HG will arrive in BPA 
within 24 hours. This argument alone closely links the two areas. 
Modeling which eliminated the HG emissions and resulted in 10-30 ppb 
change in ozone levels in BPA, as documented in the TSD, shows HG is 
having a major impact on BPA's ability to attain the 1-hour ozone 
standard. Local attainment modeling for the BPA and HG nonattainment 
areas shows that the BPA nonattainment area will need controls not only 
local to the BPA nonattainment area but from upwind sources (the HG 
area) to demonstrate attainment of the ozone NAAQS. Local modeling for 
2007 relies substantively on the HG area reductions (upwind and within 
the modeling domain) as well as controls being implemented in the BPA 
nonattainment area. EPA recalculated the estimate of the future design 
values based solely on modeled days when winds are not coming from HG. 
The results indicate that the local measures to be implemented in BPA 
are adequate to show attainment on days when transport is not an issue. 
This confirms that BPA has done all that they can to address the local 
portion of their nonattainment problem. It has been clearly 
demonstrated that, until the HG nonattainment area implements local 
controls and comes into attainment, high ozone and precursor emissions 
from the HG nonattainment area will continue to contribute to 
exceedances and thwart attainment in the BPA nonattainment area. 
Reference the TSD to the December 27, 2000, proposed rule for details 
of the modeling evidence for transport and BPA nonattainment.
    Comment 17: Weight-of-evidence Approach is so Poorly Described and 
Developed as to constitute a non-technical Analysis for Approving an 
Extension to 2007: The state's weight-of-evidence determinations are 
technically flawed and poorly presented in the proposed rulemaking (65 
FR 81797 by relying on too many uncertainties, estimates and non-
scientific methods, which make this approach entirely unacceptable and 
illegal. EPA needs to do a comprehensive scientific analysis of the 
information and not a non-scientific one in making these critical 
public health evaluations and decisions.
    Response 17: Under section 182(b), (c)(2), and (d) of the CAA, 
moderate ozone nonattainment areas were required to submit by November 
15, 1993, and serious and severe ozone nonattainment areas were 
required to submit by November 15, 1994, demonstrations of how they 
would attain the 1-hour standard. Section 182(c)(2)(A) provides that 
``[t]his attainment demonstration must be based on photochemical grid 
modeling or any other analytical method determined by the 
Administrator, in the Administrator's discretion, to be at least as 
effective.'' Moderate areas were therefore not required to submit an 
attainment demonstration SIP based upon photochemical modeling. As 
described in more detail below, the EPA guidance provides options for 
states to supplement their photochemical modeling results, with 
additional evidence designed to account for uncertainties in the 
photochemical modeling, to demonstrate attainment. This approach is 
consistent with the requirement of section 182(c)(2)(A) that the 
attainment demonstration ``be based on photochemical grid modeling,'' 
because the modeling results constitute the principal component of 
EPA's analysis, with supplemental information designed to account for 
uncertainties in

[[Page 26936]]

the model. This interpretation and application of the photochemical 
modeling requirement of section 182(c)(2)(A) finds further 
justification in the broad deference Congress granted EPA to develop 
appropriate methods for determining attainment, as indicated in the 
last phrase of section 182(c)(2)(A).
    The flexibility granted to EPA under section 182(c)(2)(A) is 
reflected in the regulations EPA promulgated for modeled attainment 
demonstrations. These regulations provide, ``The adequacy of a control 
strategy shall be demonstrated by means of applicable air quality 
models, data bases, and other requirements specified in [40 CFR part 51 
Appendix W] (Guideline on Air Quality Models).'' \4\ 40 CFR 
51.112(a)(1). However, the regulations further provide, ``Where an air 
quality model specified in appendix W * * * is inappropriate, the model 
may be modified or another model substituted [with approval by EPA, and 
after] notice and opportunity for public comment * * *.'' Appendix W, 
in turn, provides that, ``The Urban Airshed Model (UAM) is recommended 
for photochemical or reactive pollutant modeling applications involving 
entire urban areas,'' but further refers to EPA's modeling guidance for 
data requirements and procedures for operating the model. 40 CFR 51 
App. W section 6.2.1.a. The modeling guidance discusses the data 
requirements and operating procedures, as well as interpretation of 
model results as they relate to the attainment demonstration. This 
provision references guidance published in 1991, but EPA envisioned the 
guidance would change as we gained experience with model applications, 
which is why the guidance is referenced, but does not appear, in 
Appendix W. With updates in 1996 and 1999, the evolution of EPA's 
guidance has led us to use both the photochemical grid model, and 
additional analytical methods approved by EPA.
---------------------------------------------------------------------------

    \4\ The August 12, 1996 version of ``Appendix W to Part 51--
Guideline on Air Quality Models'' was the rule in effect for these 
attainment demonstrations. EPA is proposing updates to this rule 
which will not be in effect until the new rule is promulgated.
---------------------------------------------------------------------------

    The modeled attainment test compares model predicted 1-hour daily 
maximum ozone concentrations in all grid cells for the attainment year 
to the level of the NAAQS. The results may be interpreted through 
either of two modeled attainment or exceedance tests: A deterministic 
test or a statistical test. Under the deterministic test, a predicted 
concentration above 0.124 parts per million (ppm) ozone indicates that 
the area is expected to exceed the standard in the attainment year and 
a prediction at or below 0.124 ppm indicates that the area is expected 
to not exceed the standard. Under the statistical test, attainment is 
demonstrated when all predicted (i.e., modeled) 1-hour ozone 
concentrations inside the modeling domain are at, or below, an 
acceptable upper limit above the NAAQS permitted under certain 
conditions (depending on the severity of the episode modeled).\5\
---------------------------------------------------------------------------

    \5\ Guidance on the Use of Modeled Results to Demonstrate 
Attainment of the Ozone NAAQS. EPA-454/B-95-007, June 1996.
---------------------------------------------------------------------------

    In 1996, EPA issued guidance \6\ to update the 1991 guidance 
referenced in 40 CFR 50 App. W, to make the modeled attainment test 
more closely reflect the form of the NAAQS (i.e., the statistical test 
described above), to consider the area's ozone design value and the 
meteorological conditions accompanying observed exceedances, and to 
allow consideration of other evidence to address uncertainties in the 
modeling databases and application. When the modeling does not 
conclusively demonstrate attainment, EPA has concluded that additional 
analyses may be presented to help determine whether the area will 
attain the standard. As with other predictive tools, there are inherent 
uncertainties associated with air quality modeling and its results. The 
inherent imprecision of the model means that it may be inappropriate to 
view the specific numerical result of the model as the only determinant 
of whether the SIP controls are likely to lead to attainment. The EPA's 
guidance recognizes these limitations, and provides a means for 
considering other evidence to help assess whether attainment of the 
NAAQS is likely to be achieved.
---------------------------------------------------------------------------

    \6\ Ibid.
---------------------------------------------------------------------------

    The process by which this is done is called a weight of evidence 
(WOE) determination. Under a WOE determination, the state can rely on, 
and EPA will consider in addition to the results of the modeled 
attainment test, other factors such as other modeled output (e.g., 
changes in the predicted frequency and pervasiveness of 1-hour ozone 
NAAQS exceedances, and predicted change in the ozone design value); 
actual observed air quality trends (i.e. analyses of monitored air 
quality data); estimated emissions trends; and the responsiveness of 
the model predictions to further controls.
    In 1999, EPA issued additional guidance \7\ that makes further use 
of model results for base case and future emission estimates to predict 
a future design value. This guidance describes the use of an additional 
component of the WOE determination, which requires, under certain 
circumstances, additional emission reductions that are or will be 
approved into the SIP, but that were not included in the modeling 
analysis, that will further reduce the modeled design value. An area is 
considered to monitor attainment if each monitor site has air quality 
observed ozone design values (4th highest daily maximum ozone using the 
three most recent consecutive years of data) at or below the level of 
the standard. Therefore, it is appropriate for EPA, when making a 
determination that a control strategy will provide for attainment, to 
determine whether or not the model predicted future design value is 
expected to be at or below the level of the standard. Since the form of 
the 1-hour NAAQS allows exceedances, it did not seem appropriate for 
EPA to require the test for attainment to be ``no exceedances'' in the 
future model predictions. The method outlined in EPA's 1999 guidance 
uses the highest measured design value from all sites in the 
nonattainment area for each of three years.\8\ The three year ``design 
value'' represents the air quality observed during the time period used 
to predict ozone for the base emissions. This is appropriate because 
the model is predicting the change in ozone from the base period to the 
future attainment date. The three yearly design values (highest across 
the area) are averaged to account for annual fluctuations in 
meteorology. The result is an estimate of an area's base year design 
value. The base year design value is multiplied by a ratio of the peak 
model predicted ozone concentrations in the attainment year (i.e., 
average of daily maximum concentrations from all days modeled) to the 
peak model predicted ozone concentrations in the base year (i.e., 
average of daily maximum concentrations from all days modeled). The 
result is an attainment year design value based on the relative change 
in peak model predicted ozone concentrations from the base year to the 
attainment year. Modeling results also show that emission control 
strategies

[[Page 26937]]

designed to reduce areas of peak ozone concentrations generally result 
in similar ozone reductions in all core areas of the modeling domain, 
thereby providing some assurance of attainment at all monitors.
---------------------------------------------------------------------------

    \7\ ``Guidance for Improving Weight of Evidence Through 
Identification of Additional Emission Reductions, Not Modeled.'' 
U.S. Environmental Protection Agency, Office of Air Quality Planning 
and Standards, Emissions, Monitoring, and Analysis Division, Air 
Quality Modeling Group, Research Triangle Park, NC 27711. November 
1999. Web site: http://www.epa.gov/ttn/scram.
    \8\ EPA relies on this averaging only for purposes of 
determining one component, i.e.--the amount of additional emission 
reductions not modeled--of the WOE determination. The WOE 
determination, in turn, is intended to be a qualitative assessment 
of whether additional factors (including the additional emissions 
reductions not modeled), taken as a whole, indicate that the area is 
more likely than not to attain.
---------------------------------------------------------------------------

    In the event that the attainment year design value is above the 
standard, the 1999 guidance identifies a method for identifying 
additional emission reductions, not modeled, which at a minimum provide 
an estimated attainment year design value at the level of the standard. 
This step uses a locally derived factor which assumes a relationship 
between ozone and the precursors. The Act and the regulations do not 
mandate nor does EPA guidance suggest that States must model all 
control measures being implemented. Moreover, a component of this 
technique--the estimation of future design value--should be considered 
a model-predicted estimate. Therefore, results from this technique are 
an extension of ``photochemical grid'' modeling and are consistent with 
Section 182(c)(2)(A).
    The State provided an array of weight-of-evidence analysis to 
support the probability of attainment of the NAAQS in November, 2007. 
These analyses were in accordance with the guidelines and procedures 
discussed above. Analyses included future design value calculations, 
design value trends, spatial and temporal modeling metrics, and several 
other measures not included in the attainment demonstration CAMX 
modeling. Specifically, the future design value calculations indicated 
a calculated future design value of 115.4 parts per billion (ppb), 
below the NAAQS value of 124 ppb. The design values trend analysis 
demonstrates a general decrease in design values from 1975 through 
1999. The spatial and temporal modeling shows an overall 87 percent 
improvement in ozone exceedance days for the 2007 post-control case as 
compared to the 1993 base case. In addition, other items in the WOE 
analysis provided for additional emissions reductions on top of those 
included in the CAMX modeling.
    In addition to the summary discussion provided in the proposed 
rulemaking notice (65 FR 81797), the weight-of-evidence approach is 
discussed in more detail in the TSD to the December 27, 2000, notice 
and the supporting documentation submitted by the State. Also, it must 
be understood that the WOE analysis is used for additional analyses 
based on a composite of the information, not on a single element. The 
State analyzed, and the EPA considered, these analyses in the aggregate 
in assessing whether the State has provided sufficient evidence that 
corroborates further the attainment demonstration. It is the EPA's 
technical opinion the State's analyses of air quality and emission 
trends do provide additional support for the State's attainment 
demonstration. Progress in air quality improvement through recent 
periods is demonstrated and future progress in air quality improvement 
is shown. In addition, these analyses lend support to a regional 
NO<INF>X</INF> reduction as a reasonable approach to achieving 
attainment of the ozone standard. Based on the weight-of-evidence and 
the modeling, the control strategy should provide for attainment by 
November 15, 2007.
    Comment 18: In addition to the fundamental attainment issues, 
commenters believe that the emissions reductions strategy contained in 
the applicable SIP for the BPA area must consider and accommodate 
disproportionate effects on minority and disadvantaged communities, 
i.e., environmental justice issues.
    Response 18: Commenters' assertion that minority and low-income 
populations in Jefferson, Hardin and Orange counties are exposed to 
higher levels of ozone that other residents of the BPA area is not 
supported by the available data. In addition, the air quality for the 
entire BPA area will reflect levels below the ozone NAAQS once 
attainment is realized. Moreover, an evaluation of the available air 
quality data for the BPA for the years 1998-2000 indicates that fewer 
exceedances occurred in areas with minority and low-income populations 
than did for areas with relatively high non-minority and non-low-income 
populations. EPA therefore finds that this rulemaking is consistent 
with Executive Order 12898 and does not impose any disproportionately 
high and adverse human health or environmental effects on minority and 
low-income populations.
    Commenters also contend that the provisions of 40 CFR 7.35(a)(3) 
proscribe EPA's administration of the air quality program in a 
discriminatory manner. EPA regulations at 40 CFR Part 7 implement Title 
VI of the Civil Rights Act of 1964, as amended, and prohibit recipients 
of EPA assistance from discriminating on the basis of race, color or 
national origin, among other things. Title VI and the Part 7 
regulations apply to the programs and activities of recipients of EPA 
assistance, but not to actions taken by federal agencies. Therefore, 
the requirements of 40 CFR Part 7 do not apply to the action EPA is 
taking today. \9\ More importantly, as noted above, EPA concludes that 
this action does not impose any disproportionately high and adverse 
human health or environmental effects on minority and low-income 
populations.
---------------------------------------------------------------------------

    \9\ EPA notes that commenters reference a Title VI 
administrative complaint regarding the Exxon-Mobil Beaumont 
refinery-chemical plant complex. The complaint, which is dated April 
13, 2000, involves a permitting action by the Texas Natural 
Resources Conservation Commission. EPA's Office of Civil Rights is 
responsible for the Agency's administration of Title VI and is still 
processing this complaint. As a result, the complaint is not germane 
to the SIP action taken today by EPA pursuant Clean Air Act section 
110.
---------------------------------------------------------------------------

    Finally, commenters make a number of factual allegations about the 
demographics and health of poor and minority populations in the BPA 
nonattainment area and across the country. However, commenters did not 
provide EPA with any concrete references or resources to support these 
allegations. Therefore, EPA is not responding to these unsupported 
factual allegations.
    Comment 19: BPA needs Reasonable Further Progress: Reasonable 
further progress is not being provided for in the BPA area due to the 
state's failure to require the CAA minimum 3%-per-year rate-of-progress 
reductions, even though the statute clearly requires these basic 
reductions. This failure violates the rate-of-progress requirements in 
the statute. EPA needs to enforce this requirement of the Act.
    Response 19: Since the BPA ozone nonattainment area is classified 
as a moderate nonattainment area, the State was required to submit as a 
revision to the SIP a 15% Rate-of-Progress (ROP) plan for the BPA area. 
CAA Section 182(b)(1). This 15% plan meets the reasonable further 
progress requirements for a moderate ozone nonattainment area. The 15% 
plan was submitted and subsequently approved by the EPA. 63 FR 06659, 
February 10, 1998. The reasonable further progress requirement cited by 
the commenter (3%-per-year ROP reductions) does not apply to a moderate 
ozone nonattainment area. The 3%-per-year ROP measure is an additional 
reasonable further progress requirement for serious and above ozone 
nonattainment areas, which becomes effective for those areas after the 
15% requirement is submitted. CAA Section 182(c)(2)(B). Since, with 
this rulemaking the EPA is approving the Attainment Demonstration SIP 
revision, extending the attainment date, and is not reclassifying the 
BPA ozone nonattainment from its present classification of moderate to 
serious or

[[Page 26938]]

above, the additional 3%-per-year ROP component of the reasonable 
further progress requirements of the CAA does not apply in the case of 
the BPA area.
    On the other hand, the HG December 2000 SIP revision submission 
includes the required Post-1999 ROP Plans for the HG area through 2007. 
Because of the impact of the HG area upon the BPA area's air quality, 
through transport of ozone and ozone pre-curser compounds, the fact 
that the HG area's plan includes the 3% ROP requirements will ensure 
that the air quality in BPA improves at a steady pace.
    Comment 20: Contingency Measures needed if State fails to show 
Progress: The lack of contingency measures is unacceptable and illegal. 
The extension for the BPA area requires that the area do nothing if the 
state fails to show progress, therefore EPA needs to require the state 
to adopt a set of contingency measures.
    Response 20: First, the EPA believes the contingency measure 
requirements of Section 172(c)(9) are an independent requirement from 
the attainment demonstration requirements under Section 172(c)(1) and 
the rate-of-progress (ROP) requirements under Sections 172(c)(2) and 
182(b)(1)(A). The contingency measure requirements are to address the 
event that an area fails to meet a ROP milestone or fails to attain the 
ozone NAAQS by the attainment date established in the SIP. The 
contingency measure requirements have no bearing on whether a state has 
submitted a SIP that projects attainment of the ozone NAAQS or the 
required ROP reductions toward attainment. The attainment or ROP SIP 
provides a demonstration that attainment or ROP requirements ought to 
be fulfilled, but the contingency measure SIP requirements concern what 
is to happen only if attainment or ROP is not actually achieved. 
Therefore, the EPA acknowledges that contingency measures are an 
independently required SIP revision, but does not believe that 
submission of contingency measures is generally necessary before EPA 
may approve an attainment or ROP SIP, or that contingencies submitted 
previously, and still in effect, need be restated in the attainment 
demonstration SIP. However, where EPA is granting an attainment date 
extension, as in BPA, EPA's policy requires that areas meet all of the 
requirements applicable to the areas' classification. Further, as 
discussed below, the BPA area has met its ROP contingency measures 
requirements.
    The State of Texas has previously submitted contingency measures 
applicable to the BPA nonattainment area. These measures were submitted 
with the 15% ROP SIP revision and approved by EPA. 63 FR 6659, February 
10, 1998. The State meets the requirements of the CAA for a moderate 
area's ROP contingency measure submittals. These contingency measures 
include the triggering of the lower major source threshold for the 
application of RACT controls for certain source categories. These 
contingency measures were submitted previously, approved by EPA, and 
remain in effect. Therefore, the BPA area meets the ROP requirements 
applicable to its classification.
    Comment 21: HG area may not attain by 2007 due to series of 
industry-business lawsuits filed January, 2001 opposing the HG SIP: 
Ability of the BPA area to attain by November 15, 2007 is now 
threatened by lawsuits in HG to oppose the major stationary source 
NO<INF>X</INF> reductions required for the HG area's 2007 attainment. 
Delays will impact attainment for the BPA area since the state is 
relying heavily on reductions in the HG area for improving air quality.
    Response 21: The commenter is correct in stating there are 
currently pending lawsuits challenging several rules included in the HG 
area SIP. They also correctly point out that delays in effective dates 
of these rules could impact attainment for the BPA area. The lawsuits 
are pending and final resolutions have not been made. As such, the 
provisions of the regulations have not been invalidated. For the 
purpose of this SIP revision approval, the HG area measures necessary 
for HG to attain the ozone NAAQS levels, preparatory for the BPA area's 
attainment of the Ozone NAAQS, stand.
    Under the consent decree, if EPA has not fully approved an 
attainment SIP for the HG area, then EPA must, by June 14, 2002, 
promulgate a FIP.

IX. EPA Action

    EPA is taking the following actions on the State submittals of 
November 12, 1999, and April 25, 2000:
    1. EPA is approving the ground-level one-hour ozone attainment 
demonstration SIP for the BPA, Texas ozone nonattainment area.
    2. EPA is approving the State's request to extend the ozone 
attainment date for the BPA ozone nonattainment area to November 15, 
2007 while retaining the area's current classification as a moderate 
ozone nonattainment area.
    3. EPA is approving the on-road motor vehicle emissions budgets.
    4. EPA finds that the BPA area meets all remaining outstanding VOC 
RACT requirements for major sources.
    The EPA also approves the State's enforceable commitment to conduct 
a mid-course review (including evaluation of all modeling, inventory 
data, and other tools and assumptions used to develop this attainment 
demonstration) and to submit a mid-course review SIP revision, with 
recommended mid-course corrective actions, to the EPA by May 1, 2004. 
If the subsequent analyses conducted by the State as part of the mid-
course review indicate additional reductions are needed for BPA to 
attain the ozone standard, EPA will require the State to implement 
additional controls as soon as possible until attainment is 
demonstrated through an approvable attainment demonstration.

X. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not 
have a substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.

[[Page 26939]]

    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2). This rule will be effective June 14, 2001.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 16, 2001. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen Oxides, Ozone, Reporting and 
recordkeeping requirements.

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

    Dated: April 30, 2001.
Gregg A. Cooke,
Regional Administrator, Region 6.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for Part 52 continues to read as follows:

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

Subpart SS--Texas

    2. In Sec. 52.2270, four entries in the ``EPA Approved 
Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas 
SIP'' table in paragraph (e) are added, after the last listing in the 
table, to read:


Sec. 52.2270  Identification of plan.

* * * * *
    (e) * * *

              EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                          Applicable            State
       Name of SIP provision            geographic or        submittal/     EPA approval          Comments
                                      nonattainment area   effective date       date
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
Attainment Demonstration for the 1- Beaumont/Port Arthur,        04/19/00         5/15/01  66 FR 26939
 hour Ozone NAAQS.                   TX.
Ozone Attainment Date Extension to  Beaumont/Port Arthur,        04/19/00         5/15/01  66 FR 26939
 11/15/07.                           TX.
Commitment by Texas to perform a    Beaumont/Port Arthur,        04/19/00         5/15/01  66 FR 26939
 mid-course review and submit a      TX.
 SIP revision by 05/01/04.
Finding that BPA area meets VOC     Beaumont/Port Arthur,        04/19/00         5/15/01  66 FR 26939
 RACT requirements as of 5/15/01.    TX.
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 01-11564 Filed 5-14-01; 8:45 am]
BILLING CODE 6560-50-P


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