26914 Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations

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.

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:

pratt.steven@epa.gov.

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 NOX

emissions from lean burn engines,

intended to meet the remaining NOX

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 NOX 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 NOX rulemaking

activities. The State submitted a

revision to their SIP dated April 25,

2000, as ‘‘Phase II’’ NOX 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

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

Pollutant 2007 tons/

day

VOC .......................................... 17.22

NOX .......................................... 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 NOX rulemaking

activities needed for attainment. The

State submitted a revision to their SIP

dated April 25, 2000, as ‘‘Phase II’’ NOX

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 NOX 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 NOX 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 NOX 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

26916 Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations

approved by the EPA on October 26,

2000 (65 FR 64148);

4. The administrative revisions to the

existing Texas NOX 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-OrangeHardin 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 hopedfor NOX reductions occur from upwind

states in response to the NOX SIP call

and/or section 126 actions. Such an

extension is not authorized by any

provision of the statute. It is not within

EPA’s discretion to extend the

attainment dates for downwind areas

classified as moderate or serious. The

Act does not authorize EPA to extend

attainment deadlines 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 oneyear 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

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

26918 Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations

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

NOX rules and a NOX exemption request

under section 182(f). Although the Court

did not use the theory advanced by

EPA, the court did find that the Agency

had authority under the CAA to extend

the deadline. EPA had found that

additional time would be needed for

States to conduct photochemical grid

modeling in order to document the

effects of NOX reductions on an area.

EPA had found that ‘‘the time needed to

establish and implement a modeling

protocol and to interpret the model

results will, in a variety of cases, extend

beyond the November 15, 1992 deadline

for submission of NOX rules.’’ EPA thus

extended the submission deadline,

provided the states could show that

modeling was not available or did not

consider effects of NOX reductions and

that the states submit progress reports

on the modeling. The D.C. Circuit

upheld EPA’s extension of the deadline

and of EPA’s time to review the

submissions and make an exemption

determination. The Court found that

‘‘because only a single NOX RACT

submission is required under the

statute, it is logical to infer that

Congress intended data supporting

exemptions to be included in that

submittal and that the EPA have the full

14–18 months to review them and to

make an exemption determination.’’

Even in the absence of explicit statutory

authority, the Court held that ‘‘had

Congress foreseen the exemption timing

problem, a matter outside the EPA’s

control, it would have elected to accord

the EPA the full statutory review time.’’

22 F.3d at 1136. The court ruled that

‘‘under the circumstances here the NOX

RACT deadlines were properly

extended to further the Clean Air Act’s

purposes.’’ Id. at 1137.

Here, similarly, EPA’s and the states’

inability, until 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 NOX submissions at issue

in NRDC v. EPA, EPA has shown that

the ability to document and analyze

ozone transport was delayed. And as

with the criteria imposed on areas

seeking NOX submission extensions in

NRDC, EPA has required analogous

showings by the states, limiting the

extensions to those areas that document

a transport problem and that submit

attainment demonstrations and adopt

local measures to address the pollution

that is within local control.

And lastly, Texas has benefitted from

the OTAG/NOX SIP call experience.

From this modeling we (EPA and Texas)

gained a better understanding of the role

NOX 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 NOX

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 NOX 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

NOX 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

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

26920 Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations

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 NOX SIP Call and

Section 126 rulemakings. 63 FR 57360–

63, 64 FR 28253–54.

The BPA and HG areas are not subject

to the NOX SIP call. But the analysis of

transport developed for the NOX 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

Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations 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 NOX SIP call effectively accelerates

their attainment dates. The OTC was to

recommend measures to bring about

attainment by the deadlines ‘‘in this

subpart.’’

Response 5: As pointed out in EPA’s

Response 4, above, an awareness that

transport was occurring is not

equivalent to an ability to identify,

analyze, and control the emissions that

cause it. This ability, which grew out of

years of study and joint effort, did not

coalesce until 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 OTCrecommended measures would bring

about attainment by the dates ‘‘in this

subpart’’ reflects Congress’’ over

optimistic view that transport would be

understood and controlled in time to

allow upwind areas to be held

accountable for their contributions to

downwind nonattainment. The

comment underscores that Congress

expected upwind reductions to take

place by the time the downwind area

was supposed to attain—this confirms

that Congress expected that upwind

pollution would be controlled prior to

downwind attainment deadlines, and

that only local pollution would remain

as the downwind area’s responsibility.

But, as we previously stated, the time

line for analyzing and assessing

transport, and the resulting ability to 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 NOX reductions on

individual areas, an effort that took

more time than Congress anticipated.

Here, the effort to document, model, and

analyze regional ozone transport issues

and assess responsibility for relative

contributions is, if anything, more

complex than the NOX exemption

showings for which the Court upheld

deadline extensions in NRDC 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

26922 Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations

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 longrange regional transport of ozone do not

apply to PM–10. Beyond that, section

188(e) embodies a standard of ‘‘

impracticability’’ as a basis for seeking

an extension for a PM–10 attainment

deadline. With respect to the ozone

attainment deadlines at issue here, EPA

is not granting extensions solely on the

grounds of impracticability of attaining

the standard, but rather, that Congress

intended both upwind and downwind

areas to have an opportunity to bear the

responsibility for their respective

contributions to an area’s attainment

problems.

Comment 10: EPA’s effort to

‘‘manufacture a conflict’’ between the

statutory deadlines and transport

provisions fails, since these provisions

must be read together so that the

upwind area’s ‘‘obligation to control

pollution affecting the downwind area—

be it interstate or intrastate—falls due

no later than the downwind area’s

attainment date.’’ EPA’s argument that

areas with longer attainment dates be

given additional time ignores the

statutory requirement that areas attain

as expeditiously as practicable, even if

that results in attainment before section

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

181 attainment deadlines are ‘‘outside

limits.’’ A commenter argues that

Section 181(a) does not prevent upwind

areas from abating pollution in

downwind areas in time to meet the

downwind area’s attainment date. EPA’s

policy cannot be defended as necessary

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

should be able to control pollution

contributing to downwind area’s

nonattainment even before reaching

their own later-prescribed attainment

dates.

A commenter disputes EPA’s

interpretation of the language in section

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

prohibiting emissions which cause

transport be ‘‘consistent with the

provisions of this subchapter.’’ EPA

should interpret the provisions to

respect the attainment schedules of

sections 181 and 182, and address

transport separately. No reference is

made to any legislative history that

would legitimize EPA’s reading. An

upwind area’s obligation to control

transported pollution does not depend

on its own timetable for attainment.

EPA’s policy excuses upwind area’s

responsibility from their obligations

under sections 110, 176A and 184,

exempting them via granting extensions

to downwind areas. The policy defers

downwind action until the upwind area

attains.

EPA improperly assumes that it

would not be practicable for upwind

sources to reduce emissions

contributing to downwind

nonattainment prior to the time such

reductions would be required to attain

in the upwind area. The presumption

should be precisely the opposite: unless

the upwind state can show that such

reductions are impracticable, EPA

should assume such reductions can be

made at times to eliminate the upwind

state’s contribution to nonattainment

downwind by the downwind area’s

attainment date. EPA’s rule eliminates

the Act’s requirement that attainment be

accomplished as expeditiously as

possible. Section 184 indicates

Congressional intent that upwind areas

make reductions if necessary to permit

downwind areas to attain by their

statutory deadlines.

Response 10: EPA disagrees with the

commenter’s contention that it has

‘‘manufactured a conflict.’’ Rather, EPA

believes that it recognizes and resolves

the real tension between the statutory

deadlines and the transport provisions.

EPA explained this tension in its

guidance on the attainment date

extension policy. See also EPA’s

response to Comment 4. Congress did

not intend that areas with more severe

pollution problems 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

Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations 26923

1Because the D.C. Circuit stayed the obligation of

States to submit plans by 13 months, the court also

extended by 13 months the date by which sources

must implement the necessary controls.

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 NOX SIP call, EPA has

interpreted section 110(a)(2)(d)’s

significant contribution test as requiring

reductions as expeditiously as

practicable without requiring upwind

areas to impose draconian measures.

The United States Court of Appeals for

the District of Columbia Circuit recently

upheld EPA’s use of a cost component

in applying that section’s significant

contribution test. Michigan v. EPA, 213

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

decided that the states that were

‘‘significant contributors’’ under section

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

emissions by the amount achievable

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

Fed. Reg. at 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.

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

26924 Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations

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

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

26926 Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations

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-andcomment 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

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

and beyond-RACT NOX rules for the

BPA area.

The BPA area is implementing local

measures by 2005. The schedule is

based on time necessary for the

26928 Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations

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/

NOX SIP call experience. From this

modeling we gained a better

understanding of the role NOX

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 NOX 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 NOX 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 NOX 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

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

26930 Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations

2 3Transportation 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.

to either the date the NOX 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 NOX SIP call, Texas is actually not

included in the NOX 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 NOX 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.2 3 The TCMs

evaluated depend on the level of

implementation. Implementation

variables, representing levels of

implementation effort, are implicit in

the range of effectiveness for each

category of TCM. EPA does not believe

it is necessary, or even possible, to

evaluate every explicit variation of

TCM’s in order to adequately determine

if it is reasonably available. EPA

believes that using the midpoint level of

effectiveness represents a level of

implementation effort that is not so high

as to be economically infeasible, nor so

low as to be ineffective.

Comment 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 NOX

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) NOX RACT to 25 tons

per year; and (m) statewide NOX 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:

• 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.

• 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.

• 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.

• 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

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

• 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).

• 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 NOX 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 NOX 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%

NOX reductions at electrical generating

facilities in Central and Eastern Texas

(which will affect the nonattainment

area in general), and; (3) the beyondRACT 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 NOX emissions control required

under Texas’ local and regional

measures (similar to the NOX 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 NOX 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 NOX 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

26932 Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations

sources (4 refineries reduce their NOX

by 58% and 15 chemical plants reduce

NOX 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

NOX RACT in the NOX Supplement to

the General Preamble (57 FR 55620,

November 25, 1992). That guidance

addressed RACT for major stationary

sources of NOX. Under section 182(b)(2)

of the Act, moderate and higher ozone

nonattainment area SIPs (and also SIPs

for all areas in the Ozone Transport

Region) were already required to

contain provisions for applying a

reasonably available level of control for

NOX for major stationary sources. As

discussed in the previous response to

comment, EPA approved RACT levels

for the BPA area.

For NOX emission control for other

sources, when EPA published the NOX

SIP call (63 FR 57402, October 27,

1998), EPA evaluated other levels of

NOX 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 NOX emission

budgets in that rule. The EPA

determined that for area sources,

additional NOX controls that were

technologically feasible and highly costeffective could not be identified. The

EPA determined that for small point

sources, their collective emissions were

relatively small and the administrative

burden, to the States and regulated

entities, of controlling such sources of

NOX was likely to be considerable.

Nonetheless, for the purpose of the

RACM analysis, EPA did assume a level

of control for sources of NOX with

potential for control. In light of the

lower level of confidence in information

concerning NOX controls on these

sources, and the conclusion concerning

cost effectiveness, however, EPA

believed it had to take a more

conservative approach.

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 NOX 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 addon 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 twentyseven 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

NOX emissions amount to less that 20%

of the total NOX 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 NOX

reductions are generally more beneficial

in reducing ozone levels, suggesting that

the area may be NOX limited. The first

point is truly irrelevant to the RACM

inquiry, 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

NOX reductions are inherently more

Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations 26933

beneficial. They merely show that under

some circumstances—generally

involving very substantial NOX

reductions (e.g., 60% cuts or larger)—

NOX reductions might provide greater

benefits per ton. The same model shows

that NOX reductions can sometimes

actually lead to increased ozone levels

in some cells. Even if the ozone problem

in the BPA area is NOX limited, that

hardly justifies eschewing additional

measures as RACM—at most it would

suggest focusing more heavily on

additional measures for NOX 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 NOX 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 NOX 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 NOX

controls were considered too few (even

with the area’s ability to benefit from

NOX controls) to advance the attainment

date.

Also, EPA’s analysis of levels of NOX

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 NOX 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

NOX 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 socalled ‘‘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

26934 Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations

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 NOX 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. § 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

Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations 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 nontechnical Analysis for Approving an

Extension to 2007: The state’s weight-ofevidence 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 nonscientific 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

26936 Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations

4The 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.

5 Guidance on the Use of Modeled Results to

Demonstrate Attainment of the Ozone NAAQS.

EPA–454/B–95–007, June 1996.

6 Ibid.

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.

8EPA 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.

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.

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

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.

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

Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations 26937

9EPA notes that commenters reference a Title VI

administrative complaint regarding the ExxonMobil 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.

designed to reduce areas of peak ozone

concentrations generally result in

similar ozone reductions in all core

areas of the modeling domain, thereby

providing some assurance of attainment

at all monitors.

In the event that the attainment year

design value is above the standard, the

1999 guidance 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 weightof-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 postcontrol 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 NOX 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.

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 rateof-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

26938 Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations

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-ofprogress (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 industrybusiness 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 NOX

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 midcourse 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 preexisting requirements under state law

and does not impose any additional

enforceable duty beyond that required

by state law, it does not contain any

unfunded mandate or significantly or

uniquely affect small governments, as

described in the Unfunded Mandates

Reform Act of 1995 (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.

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

§ 52.2270 Identification of plan.

* * * * *

(e) * * *

EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP

Name of SIP provision

Applicable

geographic or

nonattainment area

State

submittal/

effective date

EPA approval

date Comments

*******

Attainment Demonstration for the 1-hour

Ozone NAAQS.

Beaumont/Port Arthur, TX ..... 04/19/00 5/15/01 66 FR 26939

Ozone Attainment Date Extension to 11/15/07 Beaumont/Port Arthur, TX ..... 04/19/00 5/15/01 66 FR 26939

Commitment by Texas to perform a midcourse review and submit a SIP revision by

05/01/04.

Beaumont/Port Arthur, TX ..... 04/19/00 5/15/01 66 FR 26939

Finding that BPA area meets VOC RACT requirements as of 5/15/01.Beaumont/Port Arthur, TX ..... 04/19/00 5/15/01 66 FR 26939

* * * * *

[FR Doc. 01–11564 Filed 5–14–01; 8:45 am]

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