[Federal Register Volume 66, Number 2 (Wednesday, January 3, 2001)]
[Rules and Regulations]
[Pages 666-694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-38]



[[Page 665]]

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Part VII





Environmental Protection Agency





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40 CFR Part 52



Approval and Promulgation of Air Quality Implementation Plans; One-Hour 
Ozone Attainment Demonstration and Attainment Date Extension for the 
Springfield (Western Massachusetts) Ozone Nonattainment Area; Final 
Rule

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

[[Page 666]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA069-7205; A-1-FRL-6927-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Massachusetts; One-Hour Ozone Attainment Demonstration and Attainment 
Date Extension for the Springfield (Western Massachusetts) Ozone 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Massachusetts. This action approves 
Massachusetts One-hour Ozone Attainment Demonstration for the 
Springfield (Western Massachusetts) ozone nonattainment area and 
extends the attainment date for this area until December 31, 2003. A 
notice of proposed rulemaking was published on this action on December 
16, 1999 (64 FR 70319). EPA received comments on that proposal. In this 
action, EPA responds to those comments.

EFFECTIVE DATE: This rule will become effective on February 2, 2001.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection by appointment weekdays from 9 a.m. to 
4 p.m., at the Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA-New England, One Congress Street, 11th floor, 
Boston, MA; Air and Radiation Docket and Information Center, U.S. 
Environmental Protection Agency, Room M-1500, 401 M Street, (Mail Code 
6102), S.W., Washington, D.C.; and Division of Air Quality Control, 
Department of Environmental Protection, One Winter Street, 8th Floor, 
Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, (617) 918-1664.

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

I. What Massachusetts SIP revision is the topic of this action?
II. What previous action has been taken on this SIP revision?
III. When did EPA make a determination regarding the adequacy of the 
Motor Vehicle Emissions Budgets for the Springfield, MA area?
IV. What are the requirements for full approval of the attainment 
demonstration?
V. How did Massachusetts fulfill these requirements for full 
approval?
VI. What SIP elements did EPA need to take action on before full 
approval of the attainment demonstration could be granted?
VII. What comments were received on the proposed approvals and how 
has EPA responded to those?
VIII. EPA Action
IX. Administrative Requirements

I. What Massachusetts SIP Revision Is the Topic of This Action?

    An attainment demonstration SIP was submitted on July 27, 1998 by 
the Massachusetts Department of Environmental Protection for the 
Springfield, Massachusetts one-hour ozone nonattainment area. The SIP 
revision was subject to public notice and comment by the State and a 
hearing was held in June 1998. On October 1, 1998, Massachusetts 
submitted its motor vehicle emissions budgets for the Springfield 
nonattainment area for use in transportation conformity. Massachusetts 
also requested an attainment date extension for this area on August 13, 
1999. The state requested a new attainment date of December 2003, which 
EPA interprets as December 31, 2003.

II. What Previous Action Has Been Taken on This SIP Revision?

    EPA published a Notice of Proposed Rulemaking (NPR) for the 
Massachusetts attainment demonstration SIP on December 16, 1999 (64 FR 
70319). In that action, EPA proposed to approve the ozone attainment 
demonstration submitted by the state and proposed to approve an 
attainment date extension for the Springfield, Massachusetts 
nonattainment area to December 31, 2003. EPA also proposed, in the 
alternative, to disapprove the attainment demonstration if 
Massachusetts did not submit certain additional items, as explained in 
section IV below. On December 16, 1999, EPA also proposed to approve or 
conditionally approve and disapprove in the alternative attainment 
demonstration SIPs for nine other areas in the eastern United States 
(64 FR 70317).
    On February 22, 2000 (65 FR 8703), EPA published a notice of 
availability on guidance memoranda relating to the ten one-hour ozone 
attainment demonstrations (including Springfield, Massachusetts) 
proposed for approval or conditionally approval on December 16, 1999. 
The guidance memoranda are entitled: ``Guidance on Motor Vehicle 
Emissions Budgets in One-Hour Ozone Attainment Demonstrations,'' dated 
November 3, 1999, and ``Guidance on the Reasonably Available Control 
Measures (RACM) Requirement and Attainment Demonstration Submissions 
for Ozone Nonattainment Areas,'' dated November 30, 1999.
    On July 28, 2000 (65 FR 46383), a notice of supplemental proposed 
rulemaking was published relating to the ten one-hour ozone attainment 
demonstrations (including Springfield, Massachusetts) proposed for 
approval or conditional approval on December 16, 1999. In the 
supplemental notice, EPA clarified and expanded on two issues relating 
to the motor vehicle emissions budgets in the attainment demonstration 
SIPs. In addition, EPA reopened the comment period to take comment on 
those two issues and to allow comment on any additional materials that 
were placed in the dockets for the ten proposed actions close to or 
after the initial comment period closed on February 14, 2000.
    On October 16, 2000 (65 FR 61134), another notice of supplemental 
proposed rulemaking was published to provide further support for the 
proposed attainment demonstration published on December 16, 1999 for 
the four serious ozone nonattainment areas (which includes Springfield, 
Massachusetts). In this supplemental notice, EPA made available an 
analysis it had performed to evaluate emission levels of oxides of 
nitrogen ( NO<INF>X</INF>) and volatile organic compounds (VOC) and 
their relationships to the application of current and anticipated 
control measures expected to be implemented in four serious one-hour 
ozone nonattainment areas. This analysis was done to determine if 
additional reasonably available control measures (RACM) are available 
after adoption of Clean Air Act (CAA) required measures in the four 
serious ozone nonattainment areas (i.e., Greater Connecticut; Western, 
Massachusetts; Washington, D.C.; and Atlanta, Georgia). As explained in 
the supplemental notice, EPA performed this analysis in response to 
comments that were submitted on the proposals on these areas' one-hour 
ozone attainment demonstrations. Originally, EPA established a comment 
period for this supplemental proposal ending on October 31, 2000. A 
notice extending the comment period on the October 16, 2000 notice was 
published on November 2, 2000 (65 FR 65818). Due to a typographical 
error in the November 2, 2000 notice an additional notice clarifying 
the close of the comment period was published on November 9, 2000 (65 
FR 67319).
    Comments received on all of the proposed notices listed in this 
section relevant to the Springfield, Massachusetts attainment 
demonstration and attainment date

[[Page 667]]

extension are discussed in section VII. below.

III. When Did EPA Make a Determination Regarding the Adequacy of 
the Motor Vehicle Emissions Budgets for the Springfield, MA Area?

    Massachusetts submitted motor vehicle budgets to EPA on October 1, 
1998. The motor vehicle emissions budgets were calculated to be 
consistent with requirements Massachusetts is relying on in its 
attainment demonstration for the Springfield, Massachusetts area. The 
motor vehicle emissions budgets for 2003 for VOC and NO<INF>X</INF> 
submitted by Massachusetts are shown in Table 1.

            Table 1.--2003 Transportation Conformity Budgets
------------------------------------------------------------------------
   One-hour Ozone Nonattainment Area    VOC  (tons/day)  NO<INF>X</INF>  (tons/day)
------------------------------------------------------------------------
Springfield, Massachusetts............           23.77            49.11
------------------------------------------------------------------------

    EPA sent a letter to Massachusetts on February 19, 1999 finding 
these budgets adequate for use in transportation conformity 
determinations. On June 10, 1999 (64 FR 31217), EPA notified the public 
that we had found the 2003 VOC and NO<INF>X</INF> motor vehicle 
emission budgets submitted by Massachusetts on October 1, 1998 adequate 
for conformity purposes. These budgets became effective on February 19, 
1999. In today's action, EPA is approving these budgets into the SIP.

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

    In the NPR for the Massachusetts attainment demonstration SIP 
published on December 16, 1999, EPA also proposed to disapprove, in the 
alternative, the attainment demonstration; if Massachusetts did not 
submit: (a) Revisions to the Massachusetts stage II vapor recovery 
rules that were committed to in the July 27, 1998 attainment 
demonstration and (b) the demonstration described in EPA's 
supplementary proposed approval of the Massachusetts 15% rate-of-
progress plan published in the Federal Register on November 30, 1999 
(64 FR 66829), requiring Massachusetts to demonstrate that the emission 
reduction credit it is claiming for its I/M program in the Springfield, 
Massachusetts attainment demonstration is warranted for the combination 
of test type and equipment that Massachusetts is implementing. As 
discussed in section V below, Massachusetts satisfied these 
requirements and has avoided a disapproval of its attainment 
demonstration for Springfield, Massachusetts.
    Massachusetts submitted a commitment with its July 27, 1998 
attainment demonstration committing to assess the progress and 
implementation of the state and federal measures necessary for 
attainment. Massachusetts committed to perform this assessment by 
November, 2001. EPA required such a commitment for an early assessment 
(or mid-course review) of progress toward attainment. Massachusetts has 
met this requirement, with its July 27, 1998 submittal.

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

    Massachusetts submitted the stage II vapor recovery regulation 
revisions that were committed to in their July 27, 1998 attainment 
demonstration on August 9, 2000. A notice proposing approval of the 
revised stage II vapor recovery regulation was published August 21, 
2000 (65 FR 50669). In that notice, EPA stated that it believed that 
with the revised Stage II regulation, along with the resources DEP is 
currently devoting to Stage II enforcement, the assumed level of SIP 
credit from the stage II program will be achieved. EPA approved the 
revised Stage II regulations on December 18, 2000 (65 FR 78974).
    On November 15, 2000 (65 FR 68898), EPA granted a limited approval 
of the Massachusetts inspection and maintenance program as a revision 
designed to strengthen the Massachusetts SIP. The action made the I/M 
SIP revisions submitted on May 14, 1999, February 1, 2000 and March 15, 
2000 an enforceable part of the Massachusetts SIP. On November 16, 2000 
(65 FR 69254), EPA published a direct final rule converting the limited 
approval for Massachusetts' enhanced vehicle inspection and maintenance 
program to a full approval. In that action, EPA approved an interim 
level of emission reduction credit for the inspection and maintenance 
program that can be utilized by Massachusetts in attainment planning. 
EPA approval of an interim level of emission reduction credit was based 
on additional information that became available which allowed the 
Agency to exercise engineering judgement in estimating the credit level 
of the Massachusetts I/M program. EPA approved a level of credit 
equivalent to ASM2 at final cut points, which is equivalent to the 
level of credit Massachusetts needs to support their attainment 
demonstration.
    As mentioned in section IV, Massachusetts submitted a commitment 
with its July 27, 1998 attainment demonstration to assess the progress 
and implementation of the state and federal measures necessary for 
attainment. Massachusetts committed to perform this assessment by 
November, 2001. EPA required such a commitment for an early assessment 
(or mid-course review) of progress toward attainment. Massachusetts has 
met this requirement, with its July 27, 1998 submittal.

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

    In the NPR for the Massachusetts attainment demonstration SIP 
published on December 16, 1999, EPA stated that it intends to publish 
final rulemaking on the 15% VOC reduction plan and 9% rate of progress 
plan through 1999, the enhanced inspection and maintenance program, and 
the NO<INF>X</INF> SIP call SIP for Springfield, Massachusetts either 
before or at the same time as publication of final approval of the 
attainment demonstration.
    EPA fully approved the Springfield, Massachusetts area's 15% VOC 
reduction plan and 9% rate of progress plan on November 15, 2000 (65 FR 
68896). As explained previously, EPA published a direct final rule 
converting the limited approval for Massachusetts' enhanced vehicle 
inspection and maintenance program to a full approval on November 16, 
2000 (65 FR 69254). The final approval of the Massachusetts 
NO<INF>X</INF> SIP call SIP was granted by EPA Region I's Regional 
Administrator on October 20, 2000. As of December 21, 2000, this 
approval was awaiting publication. The approved SIP Call rule

[[Page 668]]

will be promulgated at 40 CFR 52.1120(c)(124). Additionally, EPA 
approved the Massachusetts new source review permitting regulation on 
October 27, 2000 (65 FR 64360).

VII. What Comments Were Received on the Proposed Approvals and How 
Has EPA Responded to Those?

    EPA received comments from the public on the Notice of Proposed 
Rulemaking published on December 16, 1999 (64 FR 70319) for the 
Springfield, Massachusetts area's ozone attainment demonstration. 
Comments were received from the Conservation Law Foundation; Robert E. 
Yuhnke (Attorney for Environmental Defense and Natural Resources 
Defense Council); the Midwest Ozone Group; and ELM Packaging Company. 
Prior to the publication of the NPR, we also received comments from the 
Law Office of Bulkley, Richardson and Gelinas, LLP; and the City of 
Holyoke's Mayor's Industrial Development Advisory Committee. Those 
letters were both in support of the state's request for an attainment 
date extension and no response is necessary. For the specific comments 
received on the December 16, 1999 proposal, the following discussion 
summarizes and responds to those comments. For convenience, the 
comments have been grouped into categories.
    EPA also received comments from the public on the supplemental 
proposed rulemaking published on July 28, 2000 (65 FR 46383), in which 
EPA clarified and expanded on two issues relating to the motor vehicle 
emissions budgets in the attainment demonstration SIPs. Comments were 
received from Environmental Defense. The following discussion also 
summarizes and responds to the these comments.
    Lastly, EPA received comments from the public on the supplemental 
proposed rulemaking published on October 16, 2000 (65 FR 61134) to 
support the proposed attainment demonstration published on December 16, 
1999. In that notice, EPA made available an analysis it had performed 
to evaluate emission levels of oxides of nitrogen and volatile organic 
compounds and their relationships to the application of current and 
anticipated control measures expected to be implemented in four serious 
one-hour ozone nonattainment areas. Comments applicable to the 
Springfield, Massachusetts nonattainment area were received from the 
Midwest Ozone Group and the Massachusetts Department of Environmental 
Protection. The following discussion summarizes and responds to these 
comments as well.

A. Attainment Date Extension Policy

    In these responses, EPA addresses both the comments received on 
this rulemaking and those received in Docket A-98-47 on its notice 
regarding ``Extension of Attainment Dates for Downwind Transport 
Areas'' 64 Fed. Reg. 12221 (March 25, 1999), insofar as here relevant. 
This includes responses to comments filed by EarthJustice and 
incorporated by reference in later comments filed on proposed EPA 
actions on the individual areas. General comments on the policy are 
considered first. Then specific comments as applied to the area are 
addressed.
1. Comments Received in Response to March 1999 Notice
    Comment 1: EPA does not have the legal authority to extend the 
attainment deadline for serious areas until hoped-for NO<INF>X</INF> 
reductions occur from upwind states in response to the NO<INF>X</INF> 
SIP call and/or section 126 actions. Such an extension is not 
authorized by any provision of the statute. It is not within EPA's 
discretion to extend the attainment dates for downwind areas classified 
as moderate or serious. The CAA does not authorize EPA to extend 
attainment deadlines. Congress provided express attainment deadlines in 
the Clean Air Act, and EPA is without authority to create exemptions 
from them. Section 181 provides the only exception to the general rule 
that areas must meet their attainment dates, and is the exclusive 
remedy. Section 181(a)(5) allows a one-year extension if the state has 
complied with all requirements and commitments in the applicable SIP 
and had no more than one exceedance in the attainment year. In section 
181(a)(5), Congress provided other authority for extending attainment 
dates, but not to address effects of transport. See sections 181(a)(5). 
Section 181(b)(2)(A) requires reclassification for failure to attain by 
the attainment date. Section 182 requires submissions of attainment 
plans by the applicable attainment date. EPA's policy violates these 
express provisions. The statutory deadlines for attainment, the 
requirement that SIPs adopt measures adequate to provide for attainment 
by the statutory deadlines, the statutory limitation on EPA's authority 
to extend attainment dates under section 181(b), and the procedures to 
be followed in the event an area fails to attain by the deadline are 
unequivocal and unambiguous, and compliance is required under step one 
of Chevron. The extension policy is inconsistent with sections 
182(b)(1)(A), 182(c)(2)(A) and 172(c)(1), which require each 
nonattainment area to provide for attainment and submit SIPs providing 
for attainment by the applicable deadline. There is no exemption from 
these mandates for downwind areas that can attain through local 
reductions, but find it difficult to do so. The EPA policy is also 
inconsistent with the Phoenix reclassification action, which stated 
that EPA had no flexibility to provide for attainment date extensions 
in that circumstance. In section 181(i) Congress refused to give EPA 
authority to extend attainment dates in light of reclassification.
    Response 1: The absence of an express provision in the Clean Air 
Act for an attainment date extension based on transport does not 
deprive EPA of the authority to interpret the CAA 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 CAA to provide for an attainment 
date extension based on transport. EPA's policy of extending attainment 
dates for ozone nonattainment areas affected by transport of ozone and 
ozone precursors represents a reasonable effort to avoid the 
frustration of Congressional intent to which a literal application off 
the reclassification provisions would lead. Where a ``literal reading 
of the statute would actually frustrate the congressional intent 
supporting it, [a court may uphold] an interpretation of the statute 
more true to Congress's purpose.'' EDF v. EPA, 82 F.3d 451, 468 (D.C. 
Cir. 1996).
    In 1990, Congress established a classification scheme for ozone 
nonattainment areas that provided for those areas to be classified on 
the basis of the severity of their ozone problems and for areas with 
more serious problems to be given more time to attain, but also 
required to implement more control measures. As part of these 
provisions, Congress enacted the reclassification provisions under 
which

[[Page 669]]

ozone nonattainment areas that failed to attain the ozone standard as 
of their attainment dates were to be reclassified to a higher 
classification, thereby receiving an extension of their attainment 
date, but also being subjected to additional control requirements. See 
section 181(b)(2).
    On their face, the reclassification provisions do not provide for 
any exemption from the reclassification process for areas affected by 
ozone transport from other States. However, EPA believes that, in light 
of developments since the enactment of the 1990 Clean Air Act 
Amendments, a literal application of those provisions to such areas 
would frustrate broader congressional intent. In this context it is 
important to recognize that, apart from the ozone reclassification 
provisions, the CAA contains a provision--section 110(a)(2)(D)--that 
obligates upwind states to prohibit pollution--including ozone and its 
precursors--from sources within the state that contribute significantly 
to nonattainment and maintenance problems in downwind states. Congress 
was cognizant of the need to control such emissions, and of the 
inequities between upwind and downwind sources that could result if 
upwind states did not impose emission controls on their sources that 
contribute to downwind air quality problems. Congress thus sought to 
establish a regime that would eliminate such inequities.
    The legislative history of the 1977 Clean Air Act Amendments 
regarding the enactment of section 110(a)(2)(E), the predecessor of 
section 110(a)(2)(D), and section 126 (a provision that allows EPA to 
directly regulate sources that significantly contribute to 
nonattainment in another state) clearly demonstrates this. The Senate 
Committee Report criticized the lack of effective ``interstate 
abatement procedures'' and ``interstate enforcement actions'' under 
existing law, which the Committee viewed as ``resulting in serious 
inequities among several States, where one State may have more 
stringent implementation plan requirements than in another State.'' S. 
Rep. No. 95-127 at 41, reprinted in 3 1977 Legis. Hist. 1416. It is 
reasonable to assume that Congress, when it enacted the ozone 
reclassification regime in 1990, would have expected that upwind states 
would have in place implemented SIP provisions that would eliminate 
significant contributions, as required by section 110(a)(2)(D), by the 
time downwind areas were obligated to attain the ozone standard. If 
that had happened, downwind areas that failed to attain by their 
attainment dates would have failed to attain as a consequence of their 
own failures to adopt necessary controls, not as a consequence of the 
failure of other states to adopt and implement controls necessary to 
eliminate the contribution of their own sources to the downwind area's 
nonattainment problem.
    Such controls were not in place, however, since, as explained in 
EPA's transport policy, it in fact took many years for EPA and the 
States to gain a sufficient understanding of the interstate ozone 
transport problem to determine the appropriate division of control 
responsibilities between the upwind and downwind States under the Clean 
Air Act. It was only through the work of the Ozone Transport Assessment 
Group (OTAG), which consisted of members from states, industry and 
environmental groups, and EPA's subsequent NO<INF>X</INF> SIP call, 
promulgated in October, 1998, that the division of responsibilities 
among the states was established. Consequently, the fruits of those 
efforts--the implementation of the control measures in upwind states 
that were needed to eliminate the significant contribution of sources 
in those states--would not ripen until 2003 or 2004, years after the 
statutory attainment dates for areas such as Springfield, MA. Moreover, 
because the allocation of responsibility for transport was not made 
until late 1998, the prohibitions on upwind contributions under section 
110(a)(2)(D) and section 126 could not be enforced prior to the 
attainment dates of areas such as Washington, D.C., Greater Connecticut 
and Springfield, MA. Nor could Congress intend that the upwind areas 
with later attainment dates accelerate the timetables provided for 
their own attainment as an indirect means of controlling transported 
pollution in the absence of data on transport impacts.
    To apply the reclassification provision of section 181(b) without 
taking into account the timing of the identification and implementation 
of the emission reductions needed to eliminate the significant 
contribution of the upwind states to the downwind states would lead to 
the result that the downwind states' sources are required to implement 
potentially costly control measures to offset the effects of upwind 
state pollution--pollution that EPA has now determined must be 
prohibited under the CAA and pollution that will soon be eliminated as 
a result of the NO<INF>X</INF> SIP call and by emissions reductions in 
upwind states with later attainment dates. Imposing on downwind areas 
the burden of controlling for pollution attributable to upwind sources 
would compound the inequities that Congress was seeking to avoid with 
the enactment of sections 110(a)(2)(D) and 126, thereby frustrating 
Congressional intent. Moreover, such a result would be at odds with the 
kind of concerns that led Congress to adopt section 179B for 
international border areas--concerns that areas not be held accountable 
for pollution over which they exercise no control.
    Section 181(b)(2) provides that EPA should determine whether an 
area attained the standard ``within six months following the applicable 
attainment date (including any extension thereof).'' This reference to 
extensions in section 181(b)(2) is not limited to extensions granted 
under section 181(a)(5). Nor does section 181(a)(5) state that Congress 
intended it to be the only source for an extension.
    Moreover, section 181(a)(5) addresses only one specific type of an 
extension. The fact that Congress provided an extension based on air 
quality that is near attainment at the time of its deadline does not 
imply that Congress precluded the Administrator from conferring 
extensions based on other considerations--such as the case when air 
quality is affected by downwind transport. The principle underlying 
section 181(a)(5)--that areas should not be reclassified if they have 
done enough to control local air pollution but are still not able to 
attain--also applies in the case of downwind transport. Section 
181(a)(5) shows that Congress was not unalterably opposed to extensions 
of attainment dates without requiring an area to be subjected to 
reclassification and the increased control burdens that go with 
reclassifications. Indeed, section 181(a)(5) indicates that Congress 
wanted to extend attainment dates without adding control obligations 
when an area had done what was apparently sufficient to bring it into 
attainment.
    The United States Court of Appeals for the District of Columbia 
Circuit has previously held that EPA may extend SIP submission 
deadlines even without explicit statutory authorization. In Natural 
Resources Defense Council, Inc. v. EPA, 22 F.3d 1125, 1135-36, the 
Court upheld EPA's extension of a statutory deadline for submission of 
NO<INF>X</INF> rules and a NO<INF>X</INF> exemption request under 
section 182(f). Although the Court did not use the theory advanced by 
EPA, the court did find that the Agency had authority under the CAA to 
extend the deadline. EPA had found that additional time would be needed 
for States to conduct photochemical grid modeling in order to document 
the effects of NO<INF>X</INF> reductions on an area.

[[Page 670]]

EPA had found that ``the time needed to establish and implement a 
modeling protocol and to interpret the model results will, in a variety 
of cases, extend beyond the November 15, 1992 deadline for submission 
of NO<INF>X</INF> rules.'' EPA thus extended the submission deadline, 
provided the states could show that modeling was not available or did 
not consider effects of NO<INF>X</INF> reductions and that the states 
submit progress reports on the modeling. The D.C. Circuit upheld EPA's 
extension of the deadline and of EPA's time to review the submissions 
and make an exemption determination. The Court found that ``because 
only a single NO<INF>X</INF> RACT submission is required under the 
statute, it is logical to infer that Congress intended data supporting 
exemptions to be included in that submittal and that the EPA have the 
full 14-18 months to review them and to make an exemption 
determination.'' Even in the absence of explicit statutory authority, 
the Court held that ``had Congress foreseen the exemption timing 
problem, a matter outside the EPA's control, it would have elected to 
accord the EPA the full statutory review time.'' 22 F.3d at 1136. The 
court ruled that ``under the circumstances here the NO<INF>X</INF> RACT 
deadlines were properly extended to further the Clean Air Act's 
purposes.'' Id. At 1137.
    Here, similarly, EPA's and the states' inability, until the OTAG 
and NO<INF>X</INF> SIP call process was completed, to document the 
impacts of upwind areas on the attainment status of downwind areas, and 
to assess and allocate responsibilities among the areas, caused a delay 
in meeting the attainment deadlines. EPA believes that, had Congress 
foreseen this timing problem, it would have elected to accord the 
states and EPA more time to meet the attainment deadlines without 
imposing reclassification requirements on downwind areas. As in the 
case of the delayed photochemical grid modeling needed for the 
NO<INF>X</INF> submissions at issue in NRDC v. EPA, EPA has shown that 
the ability to document and analyze ozone transport was delayed. And as 
with the criteria imposed on areas seeking NO<INF>X</INF> submission 
extensions in NRDC, EPA has required analogous showings by the states, 
limiting the extensions to those areas that document a transport 
problem and that submit attainment demonstrations and adopt local 
measures to address the pollution that is within local control.
    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 CAA consistently with provisions designed to prevent downwind areas 
from being forced to compensate for upwind pollution.
    Comment 2: The CAA 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 national ambient air quality standards (NAAQS), and 
EPA unlawfully seeks to lessen these statutory obligations.
    Response 2: As explained in Response 1, above, EPA's attainment 
date extension policy aims to effectuate, not frustrate the intent of 
Congress, by providing for an equitable allocation of responsibilities 
between upwind and downwind areas. Under EPA's interpretation, when an 
upwind area interferes with a downwind area's ability timely to attain 
the standard, the downwind area retains the obligation to adopt all 
applicable local measures, and to implement them as expeditiously as 
practicable, but no later than the date by which the upwind reductions 
needed for attainment will be achieved. Moreover, EPA requires that the 
area submit an approvable attainment demonstration containing any 
necessary, adopted local measures and showing that, assuming the 
appropriate upwind emission reductions, the area will attain the 1-hour 
standard no later than the final NO<INF>X</INF> SIP call and/or the 
upwind area's attainment date. Thus both the upwind and downwind areas 
are held accountable for their respective shares of the emissions 
reductions required to achieve attainment in the area. EPA views this 
coordination of the responsibilities of the upwind and downwind areas 
not as a lessening of the statutory obligations, but as a 
reconciliation of them with the reality of air transport as we have 
come to understand it, and with the intent of Congress that areas make 
expeditious progress towards attainment without sacrificing basic 
principles of fairness. The attainment date extension policy thus will 
still lead to attainment as expeditiously as practicable, taking into 
account the upwind contribution. Indeed, given the impact of upwind 
areas' contributions and the need for upwind area emissions reductions, 
requiring local contributions earlier would not accelerate attainment, 
considering that EPA is requiring downwind areas to implement local 
controls as expeditiously as practicable. Moreover, the difficulty of 
assessing relative contributions and responsibilities of upwind and 
downwind areas until the completion of the OTAG effort and the 
NO<INF>X</INF> SIP call 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 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

[[Page 671]]

apply to ozone areas that are classified as marginal, moderate, or 
serious, which are subject to the requirements of section 181, if EPA 
determines that they failed to attain the ozone standard as of the 
applicable attainment date pursuant to that section.
    Comment 4: Sections 176 and 184 of the CAA do not support EPA's 
extension policy. Congress left no room in the statute for attainment 
date extensions for downwind areas, considering instead the additional 
recommended Ozone Transport Commission (OTC) control measures for 
upwind areas to be sufficient. Sections 110(a)(2)(D)(i)(1) and 
110(a)(2)(A) do not authorize the EPA policy. Section 110(a)(2)(D) 
imposes a burden only on upwind states and does not relieve downwind 
states of their obligation to attain by the pre-set attainment dates. 
EPA lacks the authority to rewrite the extension authority Congress 
wrote into sections 181(a)(4) and (b)(3). Congress was well aware of 
the transport problem and addressed it in explicit provisions, 
including section 110(a)(2)(D), section 110(a)(2)(A), section 184, 
section 176A, section 126, section 182(h), and section 181(a)(4). Thus 
Congress knew how to address pollutant transport and how to draft an 
attainment date extension addressed to it when it wished to do so. It 
also provided for voluntary reclassification under section 181(b)(3) to 
be available for downwind areas are affected by transport. Congress 
dealt with transport explicitly in sections 181(a)(4), 182(h) and 
182(j)(2). Congress knew how to exempt transport-affected areas from 
control requirements if it wanted to, as it did for rural transport 
areas under section 182(h). Congress limited relief for areas subject 
to transport to exemption from sanctions, but did not extend this to 
section 110(c) FIPs. H.R. 101-490, at 248. This shows Congress' intent 
to apply all of the CAA enforcement tools except for sanctions under 
section 179. Congress considered the effects of transport, but not in 
the reclassification context. Congress did provide for attainment date 
extensions, but not in this context.
    Response 4: Having crafted provisions in the 1990 Amendments that 
it believed would be adequate to address the problem of downwind 
nonattainment, Congress did not expressly provide for an attainment 
date extension based on transport. But the absence of such a provision 
does not prevent EPA from inferring that Congress would have intended 
to provide such relief should the express provisions fail to function 
as envisioned. In fact, the manner in which Congress did address the 
issue of transport shows that EPA's interpretation is consistent with 
Congress's approach in other sections of the CAA. EPA's interpretation 
resolves the problem that arose when the express statutory tools failed 
to function as Congress had envisioned. It also, as EPA pointed out in 
its guidance, 61 FR 14441 (March 25, 1999), provides a means to 
reconcile the attainment demonstrations and attainment date 
requirements for downwind areas with the graduated attainment date 
scheme and schedule for achieving reductions in the upwind areas. 
Although Congress intended that upwind areas be responsible for 
preventing interference with downwind areas' attainment dates, it also 
expressly allotted more time for certain upwind areas to reduce their 
emissions so as to attain the standard.
    Sections 110(a)(2)(D), 126, 184 and 176, provide principles for 
dealing with transport, most importantly the principle that upwind 
areas be held accountable for reducing emissions that interfere with 
the ability of downwind areas to attain the ozone standard. EPA 
disagrees with commenters that Congress intended section 110(a)(2)(D) 
and the other transport provisions to exclude the possibility of relief 
for downwind areas even if no timely and adequate recourse against 
transport was in fact available to them. These sections express 
Congressional intent that downwind states not be saddled with 
responsibility for pollution beyond their control. Their premise was 
that there would be a means of redress against upwind states prior to 
the downwind area's attainment date--a means that also would not be at 
odds with Congress's decision to provide longer attainment periods for 
upwind areas confronting onerous pollution problems. But, as EPA 
pointed out in its guidance, there was in fact no practicable way to 
carry out the Congressional scheme until a much more comprehensive 
understanding of the complex facts of ozone transport could be 
achieved.
    Although Congress in the 1990 Amendments and in prior versions of 
the Clean Air Act attempted to deal with the issue of transport, the 
reality of the problem proved far more complicated and intractable than 
expected. As explained in EPA's guidance, 64 FR 14441 (March 25, 1999), 
it took many years for EPA and the states to study, analyze, and 
attempt to resolve the allocation of responsibility for transported 
ozone pollution. EPA's initial efforts included a policy memorandum 
addressing the issue of overwhelming transport in 1994. The Ozone 
Transport Assessment Group was launched in 1995. Through this 
collaborative process, EPA, 37 states and industry and environmental 
groups tackled the problem of allocating responsibility for transport 
in its Overwhelming Transport Policy. During the period required for 
this effort, the resolution of regional transport issues was held in 
abeyance. It was not until late in 1998 that the conclusion of the OTAG 
and SIP call processes resulted in assignments of responsibility that 
could assist in the design of SIPs and the formation and implementation 
of attainment demonstrations. 63 FR 57356 (Oct 27, 1998) ( 
NO<INF>X</INF> SIP Call Rule). In May 1999, these efforts were 
reinforced when EPA approved petitions submitted under Clean Air Act 
section 126 by northeast states to mandate federal controls on 
utilities and other large NO<INF>X</INF> emitters in upwind States. 64 
FR 28250 (May 27, 1999) (Section 126 Rule). A more detailed description 
of the history of efforts to address ozone transport through the 1990's 
may be found in the preambles to these rulemakings. 63 FR 57360-63, 64 
FR 28253-54.
    Even after the NO<INF>X</INF> SIP call rulemaking was complete, it 
was temporarily placed in doubt when the Court stayed the SIP call rule 
pending judicial review. The court has ordered NO<INF>X</INF> SIP call 
SIPS to be submitted by October 30, 2000, and to require sources to 
implement controls by May 31, 2004.
    Thus, although Congress in the Clean Air Act had formulated a 
prohibition on transport interfering with downwind attainment, it 
remained largely theoretical until EPA and the states could understand 
how to identify, quantify, and analyze the transport of emissions, and 
develop regulatory means to coordinate the respective responsibilities 
of a multitude of upwind and downwind areas. Although Congress endowed 
EPA and the states with legal tools to protect downwind areas from 
interference with attainment, it did not give them the ability to use 
the tools in the time frame anticipated by Congress. By the time EPA 
and the states gained an understanding of regional transport sufficient 
to allow enforcement of the provisions of the CAA, it was too late to 
help some downwind areas meet their attainment dates. Thus it is 
spurious to argue that EPA and the States could have sought and 
obtained meaningful relief earlier under section 126 and section 110.
    The fact that upwind states are subject to the requirements of 
section 110(a)(2)(D) but other countries are not provides a possible 
explanation as to why Congress explicitly provided that ozone 
nonattainment areas not be reclassified upwards if they would have 
attained by their attainment dates ``but

[[Page 672]]

for emissions emanating from outside'' the United States (section 
179B(b)) but provided no such express exemption from the 
reclassification provisions in the case of domestic transport. See IV 
1990 Legis. Hist. 5741-42 (remarks of Sen. Gramm introducing the 
international provision and Sen. Baucus supporting it; Senator Gramm 
stated: ``It is unfair to hold El Paso accountable for pollution that 
is generated in a foreign country that they have no control over. So 
what this amendment does it says that in assessing whether or not the 
State implementation plan has been met, and when assessing the levels 
of ozone . . . pollution that is being generated across the border has 
to be taken into account so that our cities and regions will be judged 
based on what they do. . . . [The State, region and city] will have the 
opportunity to come to EPA an say that they are in compliance in terms 
of their emissions, that their failure to meet the overall standards is 
due to something that is happening in a sovereign foreign country over 
which they exercise no control.'' Senator Baucus stated that, ``It is 
clear that cities like El Paso in the State of Texas do not have 
control of their own destiny themselves. Much of the air that affects 
them is from outside, from another country, over which the Senator said 
the State of Texas and EPA in this country has virtually no control.'') 
Congress assumed that EPA would have control over domestic transport 
under section 110(a)(2)(D), so it saw no need to enact a domestic 
counterpart to section 179B. As set forth in EPA's responses and the 
history of EPA and the states' efforts to understand and control 
transport, Congress's assumptions were not realized.
    As set forth in Response 1 above, Congress intended, through 
enactment of the provisions addressing transport cited by commenters, 
to prevent downwind areas from being held accountable for pollution 
over which they exercise no control. Because of the complexity of the 
transport problem, EPA and the states could not deploy these statutory 
provisions in time to achieve attainment by their original attainment 
dates. But this does not mean that Congress would have intended EPA to 
construe the very provisions designed to protect downwind areas as 
precluding EPA from interpreting the statute to provide the relief that 
those provisions failed to furnish. Notwithstanding the absence of an 
express provision for an attainment date extension based on transport, 
EPA believes that, taking into account the CAA read as a whole, 
Congressional intent supports EPA's interpretation of an attainment 
date extension in the circumstances presented here.
    Commenters argue that the fact that Congress formulated various 
provisions addressing certain specific types of issues concerning 
transported pollution, but did not provide for an explicit attainment 
date extension based on transport, should be taken as proof that 
Congress meant to preclude such relief. But each of the provisions 
cited by commenters--to sections 181(a)(4), 182(h) and 182(j)(2)--was 
designed to address a different problem from the one EPA addresses 
here, and none undermines EPA's interpretation that Congress intended 
to provide relief in the situations currently confronted by downwind 
areas. As shown in EPA's previous responses, Congress expressed its 
intent in the transport sections to protect downwind areas from the 
burdens of transported pollution, but the mechanisms it provided could 
not be invoked in time.
    As for the sections referenced by commenters, Section 181(a)(4) 
concerns the potential for adjustment of the original classification of 
an area if its design value is within a certain margin. It allows the 
Administrator to consider a number of factors, including among them 
transport. This provision in no way casts doubt on the Congressional 
intent not to penalize downwind areas through mandatory 
reclassification should they later fail to attain the standard due to 
transport. Section 182(h) provides a mechanism for original 
classifications of rural transport areas as marginal areas, the lowest 
level of ozone nonattainment areas. Far from indicating that Congress 
did not intend relief for areas that are victims of transport, this 
provision reflects Congressional concern with not burdening areas with 
responsibility for transport not of their making. It sheds no light on 
whether Congress would have intended EPA to reclassify areas suffering 
from transported pollution if they were subsequently unable to meet 
their attainment dates.
    Nor, as commenters suggest, would so-called ``voluntary'' 
reclassification under section 181(b)(3) furnish an adequate remedy for 
the situation confronting areas that fail to attain due to interference 
from transport. An area that felt constrained to seek ``voluntary'' 
reclassification would still be forced to subject itself to more 
stringent requirements to control local pollution in lieu of imposing 
on upwind areas the responsibility for the transport they caused.
    Comment 5: The states had power to timely submit SIPs controlling 
local pollution to the full extent that it was in the state's power to 
require, and combine it with a request to EPA to invoke EPA's authority 
to control upwind pollution, and in this way the state could have 
attained by the applicable deadline. EPA's 1994 overwhelming transport 
policy required transport modeling to be documented the same time as 
the attainment demonstration due in 1994. There is no justification for 
allowing states to request attainment date extensions based on 
transport of which they were aware many years ago. An opening is 
created for upwind states to argue that the NO<INF>X</INF> SIP call 
effectively accelerates their attainment dates. The OTC was to 
recommend measures to bring about attainment by the deadlines ``in this 
subpart.''
    Response 5: As pointed out in EPA's Response 4, above, an awareness 
that transport was occurring is not equivalent to an ability to 
identify, analyze, and control the emissions that cause it. This 
ability, which grew out of years of study and joint effort, did not 
coalesce until late in 1998. Thus, downwind states were faced with the 
prospect of having to shoulder responsibility for pollution not of 
their making--a responsibility that Congress did not intend to impose 
on them, even as they were aware of an ongoing effort, involving EPA 
and thirty-seven states, to allocate responsibilities for transport 
through the OTAG process. As EPA stated in its guidance on the 
attainment date extension, the state of knowledge about and the ability 
to document and model transport has advanced considerably since the 
issuance of EPA's overwhelming transport guidance. The commenters seek 
to ignore the climate of uncertainty in which states and EPA were 
operating with respect to controlling transported pollution. Section 
110(a)(2)(D) and 126 are not self-executing, and until the culmination 
of the OTAG process, downwind areas in the OTAG region could not 
determine what boundary conditions they should assume in preparing 
attainment demonstrations and determining the sufficiency of local 
controls to bring about attainment. Meaningful relief under these 
provisions simply was not available earlier.
    But even with the allocation of responsibilities now available, EPA 
believes that Congress did not intend to accelerate the obligations of 
upwind states so that downwind states can meet earlier attainment 
dates. This would undermine the objective, firmly embodied in the 
graduated attainment framework of the Clean Air Act, to allow

[[Page 673]]

upwind areas with more severe pollution longer attainment deadlines. 
Upwind areas with later attainment dates still find it difficult to 
reduce emissions solely to control for transport without accelerating 
the time frames intended by Congress. It is unrealistic to expect 
upwind areas to be able to segregate out the reduction of emissions for 
purposes of transport from the reduction of emissions for purposes of 
achieving attainment in the upwind area.
    The fact, as a commenter points out, that Congress envisioned that 
the OTC-recommended measures would bring about attainment by the dates 
``in this subpart'' reflects Congress' over optimistic view that 
transport would be understood and controlled in time to allow upwind 
areas to be held accountable for their contributions to downwind 
nonattainment. The comment underscores that Congress expected upwind 
reductions to take place by the time the downwind area was supposed to 
attain--this confirms that Congress expected that upwind pollution 
would be controlled prior to downwind attainment deadlines, and that 
only local pollution would remain as the downwind area's 
responsibility. But, as we previously stated, the time line for 
analyzing and assessing transport, and the resulting ability to 
implement appropriate measures to control upwind pollution, did not 
keep pace with Congress's expectations. EPA is extending attainment 
deadlines in order to allow upwind areas to assume responsibility for 
the pollution they generate and that is transported across State 
boundaries, and to fulfill the Congressional intent that downwind areas 
not be saddled with this burden.
    Comment 6: EPA's decision directly conflicts with NRDC v. EPA, 22 
F.3d 1125 (D.C. Cir. 1994), where the Court held that EPA could not 
extend a clear statutory submission deadline.
    Response 6: To the contrary, EPA believes that NRDC v. EPA supports 
EPA's authority to issue the attainment date extensions at issue here. 
In that case the U.S. Court of Appeals for the D.C. Circuit upheld 
EPA's extension of SIP submittal deadlines even though such extensions 
were not expressly permitted by the Clean Air Act. See the discussion 
in Response to Comment 1, above. The Court relied in part on the need 
for additional time to undertake photochemical modeling to document the 
impact of NO<INF>X</INF> reductions on individual areas, an effort that 
took more time than Congress anticipated. Here, the effort to document, 
model, and analyze regional ozone transport issues and assess 
responsibility for relative contributions is, if anything, more complex 
than the NO<INF>X</INF> exemption showings for which the Court upheld 
deadline extensions in NRDC v. EPA. The Court's reasoning in NRDC v. 
EPA should be fully applicable to the policy at stake here.
    Comment 7: A commenter concedes that ``EPA's delay in establishing 
the mandatory emission reduction targets for upwind States might 
justify the delay in adoption of adequate section 110(a)(2)(D) measures 
by the upwind states,'' but concludes that the delay ``cannot justify 
delaying the obligation of downwind States to implement all the local 
measures necessary for attainment by the statutory deadline.'' One 
commenter, while acknowledging that it ``does not take issue with EPA's 
objective of accommodating the delayed control contributions from 
upwind areas,'' contests EPA's claim of authority to extend attainment 
dates. This commenter suggests that the appropriate remedy is for EPA 
to authorize states to take credit for mandated emission reductions 
when preparing attainment demonstrations and determining the degree of 
local controls needed to attain.
    Response 7: While the commenter recognizes that there was a delay 
in understanding and regulating transported pollution that ``might 
justify the delay'' in upwind states adopting section 110(a)(2)(D) 
measures, and agrees with EPA's objective in taking this delay into 
account, the commenter's proposed solution fails to address the problem 
it acknowledges. The commenter suggests allowing areas to take credit 
when they prepare their attainment demonstrations--but this solution 
addresses only the planning requirement, and does not assist the areas 
in solving the problem of failing to meet their attainment deadline. It 
is to address this issue, and to effectuate Congressional intent to 
avoid penalizing downwind areas in these circumstances, that EPA has 
formulated the attainment date extension. The delay in ascertaining the 
amount and achieving the reality of upwind reductions--a delay conceded 
by commenters--resulted in uncertainty in a downwind area's ability not 
only to plan for attainment, but to realize it.
    This comment also highlights the difficulties that EPA's attainment 
date extension policy was designed to address: namely that the states 
and EPA were (1) not able to assess relative contributions until it was 
too late to implement the controls to bring about attainment; and (2) 
upwind areas with longer attainment dates should not be required to 
accelerate their reductions in time to help bring about attainment as 
scheduled in affected downwind areas with earlier attainment dates. As 
the policy explains, the determination of relative upwind and downwind 
contributions and the allocation of responsibility for determining 
controls did not occur in time for a number of areas to meet their 
attainment deadlines.
    Comment 8: EPA's approach allows emission reductions from motor 
vehicles to be deferred beyond the deadlines currently required by the 
CAA. The policy allows deferral of conformity budgets beyond the 
statutory attainment year. It is also inconsistent with statutory 
requirements for reasonable further progress in section 182(c)(2)((B), 
for implementation of all reasonably available control measures as 
expeditiously as practicable in section 172(c)(1), and for requiring 
that Transportation Plans and Transportation Improvement Programs 
(TIPs) ``will not delay timely attainment of any standard or . . . 
other milestones in any area in section 176(c)(1).''
    Response 8: EPA disagrees with the commenter that the policy allows 
deferral of motor vehicle emission reductions and reasonably available 
control measures beyond dates contemplated in the CAA. The statute 
requires SIPs to provide for attainment as expeditiously as practicable 
and for reasonable further progress as necessary to provide for 
attainment. The motor vehicle and RACM measures the commenter is 
apparently referring to are not specific measures that the statute 
requires to be implemented by a fixed date. Rather, they are whatever 
motor vehicle and RACM measures are necessary to provide for attainment 
and RFP by the applicable attainment date. Thus, whatever attainment 
date is applicable, either by virtue of the statute or an attainment 
date extension, defines the outside date by which motor vehicle and 
RACM measures necessary to provide for timely attainment must be 
implemented. A determination must then be made whether any additional 
measures could advance that date, but the analysis is keyed to the 
established attainment date. The commenter also complains about delays 
in establishing budgets for conformity purposes, and requirements that 
transportation activities not delay timely attainment. Again, these 
issues are not relevant to establishing an appropriate attainment date. 
Motor vehicle emission budgets for conformity purposes are those 
budgets that are established for the attainment year. The CAA 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

[[Page 674]]

determined that an attainment date extension should be granted, 
conformity budgets are required for the extended attainment year; they 
are no longer required for the superseded attainment year. The 
requirement that transportation activities not delay timely attainment 
is a duty imposed on transportation planning agencies to insure that 
their activities will not interfere with attainment of the standard by 
the applicable attainment date. This duty is irrelevant to establishing 
the appropriate attainment date in the first instance. Once an 
applicable attainment date is established, transportation planners must 
insure that their activities will not delay attainment by that date.
    Comment 9: A commenter argues that under the terms of section 
188(e), an extension of the PM attainment date may not be granted 
unless the State demonstrates that the area's SIP contains ``the most 
stringent measures that are included in the implementation plan of any 
State or are achieved in practice in any Sate, and can feasibly be 
implemented in the area.'' Moreover, section 188(e) provides for 
consideration of transboundary emissions from ``foreign countries,'' 
not from U.S. sources. EPA's proposed ozone nonattainment extension 
policy includes neither of these limitations.
    Response 9: The provision cited by commenters applies the PM-10 
standard, and is not applicable to attainment dates for ozone. 
Moreover, the regulatory regimes applicable to ozone and PM-10 are 
quite different, as are the types of transport issues that arise with 
respect to these two different pollutants. The issues EPA and the 
states confront with respect to long-range regional transport of ozone 
do not apply to PM-10. Beyond that, section 188(e) embodies a standard 
of ``impracticability'' as a basis for seeking an extension for a PM-10 
attainment deadline. With respect to the ozone attainment deadlines at 
issue here, EPA is not granting extensions solely on the grounds of 
impracticability of attaining the standard, but rather, that Congress 
intended both upwind and downwind areas to have an opportunity to bear 
the responsibility for their respective contributions to an area's 
attainment problems.
    Comment 10: EPA's effort to ``manufacture a conflict'' between the 
statutory deadlines and transport provisions fails, since these 
provisions must be read together so that the upwind area's ``obligation 
to control pollution affecting the downwind area--be it interstate or 
intrastate--falls due no later than the downwind area's attainment 
date.'' EPA's argument that areas with longer attainment dates be given 
additional time ignores the statutory requirement that areas attain as 
expeditiously as practicable, even if that results in attainment before 
section 181(a)(1)'s outer deadlines. The section 181 attainment 
deadlines are ``outside limits.'' A commenter argues that Section 
181(a) does not prevent upwind areas from abating pollution in downwind 
areas in time to meet the downwind area's attainment date. EPA's policy 
cannot be defended as necessary to reconcile 181(a) with the CAA's 
anti-transport provisions. Upwind areas should be able to control 
pollution contributing to downwind area's nonattainment even before 
reaching their own later-prescribed attainment dates.
    A commenter disputes EPA's interpretation of the language in 
section 110(a)(2)(D)(1) that SIP provisions prohibiting emissions which 
cause transport be ``consistent with the provisions of this 
subchapter.'' EPA should interpret the provisions to respect the 
attainment schedules of sections 181 and 182, and address transport 
separately. No reference is made to any legislative history that would 
legitimize EPA's reading. An upwind area's obligation to control 
transported pollution does not depend on its own timetable for 
attainment. EPA's policy excuses upwind area's responsibility from 
their obligations under sections 110, 176A and 184, exempting them via 
granting extensions to downwind areas. The policy defers downwind 
action until the upwind area attains.
    EPA improperly assumes that it would not be practicable for upwind 
sources to reduce emissions contributing to downwind nonattainment 
prior to the time such reductions would be required to attain in the 
upwind area. The presumption should be precisely the opposite: unless 
the upwind state can show that such reductions are impracticable, EPA 
should assume such reductions can be made at times to eliminate the 
upwind state's contribution to nonattainment downwind by the downwind 
area's attainment date. EPA's rule eliminates the CAA's requirement 
that attainment be accomplished as expeditiously as possible. Section 
184 indicates Congressional intent that upwind areas make reductions if 
necessary to permit downwind areas to attain by their statutory 
deadlines.
    Response 10: EPA disagrees with the commenter's contention that it 
has ``manufactured a conflict.'' Rather, EPA believes that it 
recognizes and resolves the real tension between the statutory 
deadlines and the transport provisions. EPA explained this tension in 
its guidance on the attainment date extension policy. See also EPA's 
response to Comment 4. Congress did not intend that areas with more 
severe pollution problems, and accordingly longer attainment dates, be 
forced to accelerate reductions on a timetable that otherwise would not 
be deemed to be required in order to meet their obligation to attain 
``as expeditiously as practicable.'' Commenters want EPA to read the 
requirement for upwind areas, not as containing the limitation that 
their attainment deadline be ``as expeditiously as practicable''--but 
instead, to require deadlines that are not practicable solely for the 
purpose of obtaining downwind reductions.
    In dealing with ozone, a regional pollutant, an upwind 
nonattainment area cannot make reductions for transport purposes 
without affecting its schedule for making reductions for attainment 
purposes. Compelling the upwind area to make drastically faster 
reductions is akin to asking it to go on a crash diet. But the 
interplay of the statutory provisions on attainment deadlines and 
transport reduction indicates that Congress intended upwind areas to 
reduce transport, but not to the extent of requiring shorter schedules 
for upwind attainment. Separating out reductions for purposes of 
attainment and those for the purposes of transport is more difficult 
than commenters depict, and EPA believes that Congress did not intend a 
regimen of drastic reductions without regard to the upwind area's 
attainment schedule. In reality, an upwind area that remains in 
nonattainment may doubtless be shown to continue to transport pollution 
to an affected downwind area.
    Congress provided statutory tools to address the issue of transport 
(including sections 184, 126, and 110 (a)(2)(d)), and believed that 
they would be used to reach an accommodation among upwind and downwind 
areas--but as EPA and some commenters have recognized, this 
accommodation took longer than anticipated. Congress did not, however, 
intend that upwind areas be forced to apply draconian measures in order 
to allow the downwind areas to meet their shorter attainment periods.
    And although the attainment deadlines can be looked at as ``outside 
limits,'' they in fact represent the dates at which statutory 
consequences must be considered. As long as no earlier date is deemed 
to be ``as expeditiously as practicable,'' there is no evidence that 
Congress considered an earlier date to be acceptable for these areas, 
regardless of ``practicability.'' Even if earlier

[[Page 675]]

deadlines would be beneficial to downwind areas, Congress did not 
indicate that this criterion should override the criterion of 
``practicability'' for the upwind area.
    In administering the Clean Air Act and the NO<INF>X</INF> SIP call, 
EPA has interpreted section 110(a)(2)(d)'s significant contribution 
test as requiring reductions as expeditiously as practicable without 
requiring upwind areas to impose draconian measures. The United States 
Court of Appeals for the District of Columbia Circuit recently upheld 
EPA's use of a cost component in applying that section's significant 
contribution test. Michigan v. EPA, 213 F.3d 663, 674-679 (D.C. Cir. 
2000). EPA decided that the states that were ``significant 
contributors'' under section 110(a)(2)(D) need only reduce their 
emissions by the amount achievable with ``highly cost-effective 
controls.'' 63 FR at 57403. ``Thus, once a state had been nominally 
marked a `significant contributor,' it could satisfy the statute, i.e., 
reduce its contribution to a point where it would not be `significant' 
within the meaning of section 110(a)(2)(D)(i)(I) by cutting back the 
amount that could be eliminated with `highly cost-effective controls.' 
'' 213 F.3d at 675.
    In applying section 110(a)(2)(D), the D.C. Circuit concluded that 
EPA can consider not only air quality impacts, but also costs of 
control. Thus EPA has been upheld in interpreting the CAA in a way that 
limits the upwind area's responsibility to control pollution so as to 
mitigate its responsibility under section 110(a)(2)(D). The upwind area 
should not have to impose draconian controls. As the court in Michigan 
v. EPA, concluded, ``there is nothing in the text, structure, or 
history of section 110(a)(2)(D) that bars EPA from considering cost in 
its application.'' 213 F.3d 679. The Court's discussion makes clear 
that EPA, in interpreting the responsibilities of upwind states under 
section 110(a)(2)(D), may consider differences in cutback costs in 
determining what constitutes a significant contribution, and that EPA's 
inquiry is based on balancing a number of considerations to balance 
health effects and cost-effectiveness.
    EPA's policy does not excuse the upwind areas from fulfilling their 
obligations under section 110. Upwind areas will be held to section 110 
and RACM requirements. EPA has determined the upwind areas' section 110 
obligations through the SIP call. The SIP call requires reductions by 
the date EPA determined was as soon as practicable to eliminate 
significant contributions to downwind areas.\1\ This is coupled with 
the upwind area's obligation to attain as expeditiously as practicable. 
It is appropriate to hold downwind areas to the upwind area's 
attainment date as an outside limit until EPA acts on the upwind area's 
attainment demonstration. The modeling evidence we have now shows that 
upwind areas need to come into attainment for the downwind areas of 
Metropolitan Washington, D.C. and Greater Connecticut to attain the 
standard.
---------------------------------------------------------------------------

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

    Comment 11: The section 182(j)(2) ``but for'' standard applies to 
intrastate transport. An area must demonstrate that it would have 
accomplished attainment but for the failure of other areas to implement 
sufficient controls. The policy is vague, and fails to establish clear 
standards for a showing of transport. The ``affected by transport'' 
standard is unclear.
    Response 11: EPA is not constrained by the section 182(j)(2) 
standard. This section is limited in application to single 
nonattainment areas that are located in more than one state, and does 
not address transport coming into an area from another, separate area. 
Our determinations in the SIP call were clear, and the modeling that 
resulted from the SIP call effort showed that there were significant 
impacts from upwind areas on the downwind areas, no matter whether one 
used as a standard the ``but for,'' ``significant contribution'' or 
``affected by transport'' formulation. Congress intended that an upwind 
area that significantly contributes to a downwind area's nonattainment 
problem should bear responsibility for that pollution. The modeling 
shows that significant contributions are made by the upwind areas to 
the downwind areas seeking attainment date extensions. EPA still 
believes that Congress would not have intended to impose the burden on 
downwind areas for an upwind area's contribution.
    Comment 12: Transport is already incorporated into each area's 
section 181 design value and thus is assumed in setting the projected 
attainment date. Congress understood transport resulted in elevated 
design values, but did not authorize classifications to take into 
account transport, and provided for reclassification by operation of 
law based on air quality. In section 181(a)(1), Congress directed that 
ozone nonattainment areas be placed within certain classifications 
based solely on their design values, regardless of transport. Congress 
understood that many areas were classified as moderate or severe at 
least in part because of ozone transport, but did not grant EPA 
discretion to take such transport into account when establishing 
initial classifications under the CAA. Why does EPA believe so strongly 
that its approach is consistent with Congressional intent, given 
Congress's refusal to consider transport in establishing the initial 
classifications and in light of sections 181(b)(2) and 182(i)?
    Response 12: The fact that the provisions governing the initial 
classification process expressly take transport into account in a 
specific way--see section 181(a)(4)--does not mean that EPA is 
precluded from taking transport into account when providing for an 
attainment date extension based on transport, prior to invoking the 
reclassification provisions. See EPA's Response to Comment l. 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 Fed. Reg. 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

[[Page 676]]

not intended to be punitive. This view is consistent with the position 
that EPA takes here, where the circumstances are quite different from 
the non-transport reclassification context. In the absence of 
transport, an area that fails to attain by its attainment date, may 
still fairly be held accountable for controlling local pollution, and 
be granted a longer attainment deadline in return for more stringent 
controls. Under these circumstances, applying the reclassification 
provisions is not punitive. But in the circumstances EPA and the states 
confront here, the local area is not responsible for pollution that 
interferes with its ability to meet the standard. In such a case, to 
trigger reclassification would impose on the area the responsibility 
and costs for pollution beyond its control, and would indeed be 
punitive. To avoid such a result, and to effectuate Congressional 
intent, EPA has interpreted the CAA 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 CAA. Among other things, it would have provided 
for a new and separate Ozone Transport Region, and would have provided 
for different obligations and consequences for downwind areas than what 
is contained in EPA's current interpretation of the attainment date 
extension policy. Legislative History at 4954-56.
    Comment 15: The EPA policy is an illegal expansion of the 1994 
overwhelming transport policy. Now the upwind area need not be a 
nonattainment area with a later attainment date, as long as it is an 
upwind area in another state that significantly contributes to 
nonattainment in the downwind area. Also, the new policy would allow 
attainment even later than attainment for the upwind area if the date 
for the NO<INF>X</INF> SIP call reductions is later. Where the upwind 
area is in attainment or where its attainment date is earlier than the 
NO<INF>X</INF> SIP call reductions, then an extension cannot be 
justified as necessary to reconcile the transport provisions with 
section 181(a). There is no justification for applying the policy where 
the upwind area is in attainment, or is in nonattainment but has air 
quality meeting the NAAQS, or where it is in nonattainment but has an 
attainment date earlier than the extension proposed.
    Response 15: The policy is not an illegal expansion of the 
overwhelming transport policy, but an appropriate interpretation of the 
provisions of the Clean Air Act in order to fulfill Congressional 
intent. EPA's current articulation of the attainment date extension 
policy reflects the considerable advances in understanding and 
allocating responsibility for transport that have occurred since the 
formulation of the Overwhelming Transport Policy. These advances have 
resulted from the work on ozone transport included in, among other 
efforts, the OTAG, SIP call, and area modeling programs. EPA thus 
regards the attainment date extension policy as superseding the 
Overwhelming Transport Policy. See EPA's earlier responses. The policy 
is not being applied here so as solely to involve upwind attainment 
areas, or upwind areas with earlier attainment dates. Upwind attainment 
areas with deficient SIPs have still been found to contribute 
significantly to downwind nonattainment. The SIP call involves a 
statewide area that may include attainment and nonattainment areas that 
have been found to contribute significantly to downwind nonattainment.
    Comment 16: Downwind areas should be required to implement, not 
just adopt, all required measures before becoming eligible for an 
extension. Modeling is imprecise and an area might be able to attain if 
they implement all required measures, which should already have been 
implemented prior to the original attainment date. A state could have 
timely submitted all the provisions for control of local pollution as 
required by sections 182(b)(1)(A)(i), 182(c)(2), and 172(c)(1) 
providing for the full extent of local reductions that it was in the 
state's power to require.
    Response 16: In granting an attainment date extension for an area, 
EPA has determined that upwind reductions are necessary to help the 
area reach attainment. Thus, requiring all local reductions to be 
implemented prior to the time that upwind reductions are achieved would 
not accelerate attainment. Nonetheless, EPA has required that local 
reductions be implemented as expeditiously as practicable. See EPA's 
Guidance 61 FR 14441 (March 25, 1999).
    Comment 17: EPA's allegation that local measures ``will become 
superfluous once upwind areas reduce their contribution to the 
pollution problem,'' 64 FR 14444, is mistaken. First, the measures will 
produce public health benefits during the period prior to 
implementation of upwind reductions, and second the CAA 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

[[Page 677]]

control measures required under the classification as expeditiously as 
practicable, but no later than the time the upwind reductions are 
achieved. See EPA's Guidance, supra. To obtain an extension the area 
must have provided that it will implement all adopted measures as 
expeditiously as practicable, but no later than the date by which the 
upwind reductions needed for attainment will be achieved. See also 
response to Comment 16, above. No measures are being postponed as a 
result of the areas being granted a later attainment deadlines. None of 
these areas have delayed or postponed the effectiveness of measures 
because their attainment date is being extended. The states are 
enforcing their attainment measures as expeditiously as practicable. 
Thus EPA's interpretation is not unexplained, arbitrary, nor 
capricious. As EPA has explained, it seeks to reconcile and coordinate 
the responsibilities of upwind and downwind areas to work together to 
achieve attainment. However, as discussed elsewhere, EPA has applied 
the section 172(c)(1) RACM requirement to these areas.
    Comment 18: EPA is excusing downwind areas from the requirement 
that nonattainment SIPs must provide for attainment of the NAAQS as 
provided in sections 182(b)(1)(A)(i), 182(c)(2)(A), 172(c)(1), and is 
also excusing them from the requirement that they implement all 
reasonably available control measures as expeditiously as practicable, 
regardless of the reductions required for attainment. EPA's attempt to 
lessen these obligations is unlawful and, because unexplained, 
arbitrary and capricious.
    Response 18: EPA is not excusing downwind areas from the 
requirement that they submit SIPs providing for attainment. Nor is EPA 
excusing downwind areas from the RACM requirement. EPA's interpretation 
does not exclude what is necessary for attainment; rather, a measure is 
RACM if it is needed for attainment. EPA is enforcing this requirement, 
but allowing the downwind state to take into account the control 
contribution of upwind areas that Congress envisioned, and that the 
commenters themselves acknowledge is embodied in Clean Air Act 
provisions, in determining the applicable attainment date. EPA is also 
requiring that the states implement reasonable control measures as 
expeditiously as practicable. See EPA's Responses to other comments.
    Comment 19: EPA's policy cannot be defended as a reconciliation of 
section 181(a) with the CAA's anti-transport provisions. Under a proper 
interpretation of the CAA, (1) upwind states' SIPs would ensure that 
the upwind areas' pollution contributing to NAAQS violations in 
downwind areas would be controlled, no later than the downwind areas' 
attainment date, (2) upwind areas would attain locally as expeditiously 
as practicable but no later than the date prescribed by section 
181(a)(1) for the upwind area, and (3) downwind areas would attain 
locally ``as expeditiously as practicable but not later than'' the 
applicable date prescribed in section 181(a)(1). This reading gives 
effect to all of the relevant statutory provisions.
    Response 19: The commenter concedes that under a proper 
interpretation of the CAA, upwind states' SIPs would ensure that upwind 
areas' pollution contributing to violations in downwind areas would be 
controlled, prior to the downwind area's attainment date. But in the 
circumstances actually confronting EPA and the states, as EPA has 
explained in prior responses, it was not possible, given the state of 
knowledge of regional ozone transport, to control upwind transport 
prior to the original downwind attainment dates set forth in section 
181(a)(1). Thus, in order to allow the upwind areas to fulfill their 
responsibility under the CAA and to avoid imposing on the downwind area 
a burden Congress did not intend, EPA proposed interpreting the CAA to 
adjust the downwind attainment deadlines, the very interpretation that 
the commenter rejects as unnecessary. By adjusting the attainment date 
to allow the upwind and downwind areas to carry out the statutory 
allocation of responsibility that is acknowledged by the commenter, EPA 
indeed is reconciling the CAA and rendering a proper interpretation.
    Comment 20: No extension should be granted unless the area is as 
small as possible. The basis for transport should not be OTAG modeling, 
since better data is available.
    Response 20: The boundaries for serious nonattainment areas were 
established by operation of law (CAA section 107(d)(4)). The modeling 
done by OTAG and by EPA in the SIP call and the local modeling done in 
connection with the attainment demonstrations represents the best 
available modeling.
2. Comments Received on 12/16/99 Proposals
    Comment 1: The SIP submittals for Springfield, Greater Connecticut 
and Metropolitan D.C. do not contain substantive additional measures to 
reduce the state's ground level ozone problem. EPA cannot approve the 
attainment submittal because, among other reasons, it does not provide 
for attainment ``as expeditiously as practicable,'' as required by 
Section 181(a) of the CAA. Both the attainment submittal and the 
proposed rule simply assert that the states, acting alone, cannot 
achieve attainment, either in 1999 or 2007. Neither the state nor EPA 
explores the question of what the state can do, with the help of 
specified upwind emission reductions, to achieve attainment as 
expeditiously as practicable. There is no showing that the State could 
not achieve attainment in 2003 through a combination of local and state 
measures and the NO<INF>X</INF> SIP Call; we only know that the 
NO<INF>X</INF> SIP call is not likely to produce attainment by 2003 
without additional local reductions. The SIPs do not meet the 
requirements of the CAA to provide for attainment as expeditiously as 
practicable and/or no later than November 15, 1999. States have made no 
attempt to provide for attainment as soon as possible. Because they do 
not meet the CAA's requirements for timely attainment, EPA must 
disapprove them.
    Response 1: Congress did not intend for the states to be 
responsible for achieving attainment, acting alone, when upwind areas 
are transporting pollution that contributes to their nonattainment 
problem. EPA has determined that, under the attainment date extension, 
the states will attain the standard as expeditiously as practicable. 
The basis for this determination, and EPA's findings that the area is 
affected by transport from upwind areas, is discussed extensively in 
section VII.A.1. EPA has determined that even with the attainment date 
extension, no reasonably available control measures would advance the 
attainment date. See other Responses to Comments in section VII.A. and 
section VII.E.
    Comment 2: The state's SIP does not contain adequate contingency 
measures as required by Section 172(c)(9) of the CAA. Such measures are 
especially important in a case such as this, where a substantial 
portion of the emission reductions relied on are assumed to occur well 
into the future, and well beyond the statutory attainment date.
    Response 2: Although no measures have been specifically designated 
as contingency measures, EPA has found that measures that could 
reasonably constitute appropriate contingency measures are already 
contained in the SIP or exist in promulgated Federal regulations. See 
discussion of contingency measures in Section VII.L for each of the 
attainment date

[[Page 678]]

extension areas contained in Responses to Comments.
    Comment 3: Even assuming the Transport Guidance is consistent with 
the CAA, the states' attainment submittals do not meet the requirements 
and/or preconditions necessary to secure adequate emissions reductions 
from in-state sources. For example, CT and MA could secure further 
NO<INF>X</INF> reductions from power plants and other stationary 
sources through implementation of RACT on additional stationary 
sources. The States could secure additional reductions through a diesel 
inspection and maintenance program.
    Response 3: EPA believes that a diesel I/M program may have some 
potential for emission reductions. At this time, however, there is 
insufficient information available about the program to determine 
whether diesel I/M would be economically or technologically feasible. 
Also, the test protocols are not sufficiently developed to enable EPA 
to determine the magnitude of reductions possible, and thus whether the 
program's emission reductions would advance the attainment date. In its 
other Responses to Comments, EPA has explained and supported its 
conclusions that the states have adopted and will implement as 
expeditiously as practicable the measures necessary to secure adequate 
emissions reductions from in-state sources. No additional RACM is 
required for these areas.
    Comment 4: The States have failed to timely pursue administrative 
avenues for states to seek redress for transport problems: through a 
section 126 petition and a section 110 SIP call. CT and MA did not file 
section 126 petitions until the summer of 1997. Even if EPA's transport 
Guidance were lawful, it should not be applied except as a matter of 
last resort--the downwind area must have identified and committed to 
all necessary local measures and exhausted its administrative remedies 
in a timely fashion to secure all necessary upwind reductions. The 
States have failed to do that and have waited too long. They want to 
wait until upwind reductions bring them into attainment without making 
any additional emission reductions of their own. This is not in keeping 
with the attainment provisions and schedules in the CAA.
    Response 4: EPA disagrees with the commenter that the States have 
waited too long to seek relief. As set forth in detail in Section 
VII.A.1, the States and EPA have worked for years to solve the 
transport problem, and were unable to obtain adequate redress for 
transported pollution until the culmination of the OTAG effort. EPA 
finds that the States were not dilatory in their efforts to pursue 
relief from transported pollution; relief was not available until 
regional transport could be analyzed and responsibility for remediation 
appropriately apportioned. This effort took years, and was more 
prolonged than Congress, EPA, or the states had anticipated. See EPA's 
discussion of the history of the efforts to address transport in 
Section VII.A.1. The States have not failed to pursue any remedies as 
they became meaningful and available. Nor does EPA agree that its 
attainment date extension allows the States to wait for upwind 
reductions without making local emission reductions. EPA's policy is 
predicated upon an equitable allocation of responsibility between 
upwind and downwind areas, and explicitly requires the downwind areas 
to adopt and implement local controls as expeditiously as practicable.
    Comment 5: The states have failed to implement all available 
control measures and have not demonstrated that attainment is 
impracticable due to pollutant transport. The states have failed to 
meet the requirement of EPA's transport policy that the states adopt 
all local measures required under the area's current classification.
    Response 5: EPA disagrees with the commenter's contention that the 
states being granted attainment date extensions have not satisfied the 
criterion of adopting required local measures. EPA finds that the 
states have fulfilled their responsibility with respect to having 
adopted required local measures. With respect to contingency measures, 
EPA has determined that measures that can be reasonably construed to 
function as contingency measures are already contained in the areas' 
SIPs. See further discussion of the contingency measure requirement in 
other Responses to Comments. With respect to Massachusetts, the area 
has adopted and EPA has found approvable all other local measures that 
are required under its current classification, including NO<INF>X</INF> 
RACT. EPA has further found that the states have or will implement 
required local measures as expeditiously as practicable. Thus, EPA 
believes that the states have fulfilled their responsibility to satisfy 
the requirements of their current classification, and that, under these 
circumstances, Congress would not have intended them to be reclassified 
for failure to attain.
    Comment 6: The states have not shown that they have committed to 
implement all local measures necessary to secure adequate emissions 
reductions from in-state sources. They have not shown that a 
combination of local reductions and upwind reductions will achieve 
attainment by their extended dates.
    Response 6: EPA has found that the states have demonstrated 
attainment through a combination of upwind and local measures. See 
other EPA responses and discussion of the attainment demonstration. 
Secondly, although the states theoretically could always secure more 
reductions through additional local measures, Congress did not intend 
that the downwind states compensate for the upwind states failure to 
control transported pollution. Having met the RACM requirements and 
controlled for local pollutants, the downwind area should not be 
required to secure additional emissions reductions in order to offset 
emissions from upwind sources. As EPA has discussed elsewhere in its 
responses, the States have committed to implement all measures 
necessary to secure adequate emissions from in-state sources.
    Comment 7: The D.C. Circuit stated in American Trucking Ass'n v. 
EPA, 175 F.3d 1027 (D.C. Cir. 1999) that EPA ``is precluded from 
enforcing a revised primary ozone NAAQS other than in accordance with 
the classifications, attainment dates, and control measures set out in 
Subpart 2.'' This means that EPA cannot ignore the attainment dates in 
Subpart 2.
    Response 7: The opinion cited concerns EPA's authority to implement 
a revised 0.08 ppm 8-hour standard not the standard at issue here--the 
one-hour 0.12 ppm NAAQS. Regarding EPA's belief that the provisions in 
Subpart 2 of the CAA govern implementation of the one-hour standard, 
EPA is not ignoring the attainment dates in Subpart 2. EPA is 
interpreting the provisions of Subpart 2 to allow EPA to extend the 
attainment deadlines in accordance with Congressional intent and using 
means set forth in the provisions of Subpart 2. Thus EPA is properly 
implementing the one-hour standard.
    Comment 8: Each serious area plan on its face shows that the 
control measures described therein will not by themselves produce 
attainment at any point, and clearly not by 1999. EPA cannot grant 
credit for SIP call reductions when the SIP call has been judicially 
stayed.
    Response 8: As EPA has explained elsewhere in its responses, 
Congress did not intend for a downwind area that is affected by 
transport to be responsible for pollution generated outside its 
borders. The stay of the SIP call has been vacated and the SIP call has 
been upheld. The court lifted its stay and states are required to 
submit SIPs fully addressing the SIP call and if they fail, EPA must 
promulgate a Federal plan.

[[Page 679]]

EPA is fully justified in its reliance on SIP call reductions and in 
granting credit for them in the areas' attainment demonstrations.
    Comment 9: The SIPs fail to provide for attainment as expeditiously 
as practicable even though this is a serious area where a specific 
attainment deadline has passed. Furthermore, the States have not even 
evaluated the possibility of attaining sooner than their extended 
attainment dates. The SIPs must be disapproved by EPA since they do not 
meet the CAA's basic requirements for timely attainment nor do they 
consider the possibility of providing for earlier attainment even if 
the attainment date extension were permissible.
    Response 9: Massachusetts has shown that they qualify for an 
attainment date extension due to transport, and that its SIP provides 
for attainment as expeditiously as practicable. EPA evaluated the 
reductions required for attainment from both the upwind and downwind 
areas, and determined that the Springfield area attainment date is as 
expeditious as practicable. As explained in the December 16, 1999 
proposed approval of the Springfield area attainment demonstration, 
Massachusetts submitted modeling evidence showing that transported air 
pollution is causing the Springfield area to be nonattainment and that 
the transport is from upwind areas outside of New England. 63 Fed. Reg. 
at 70328. The modeling further showed that lowering transported ozone 
is extremely important in bringing the Springfield area into attainment 
of the ozone standard. The modeling showed that it will attain the one-
hour standard no later than the date that the reductions are expected 
from upwind areas under the final NO<INF>X</INF> SIP call. Upwind 
reductions will be provided under the section 126 rule, and under SIPs 
submitted to comply with the NO<INF>X</INF> SIP call rule by a number 
of states,\2\ by 2003. Thus, an attainment date of December 31, 2003 
for the Springfield area is as expeditious as practicable.
---------------------------------------------------------------------------

    \2\ The states of DE, PA, CT, MA, RI, MD, NY, NJ have submitted 
NO<INF>X</INF> SIP call plans providing for reductions by 2003. EPA 
has fully approved three of these plans (CT, MA, RI).
---------------------------------------------------------------------------

    Comment 10: This is not a situation where the states have adopted 
all available measures and still show nonattainment due solely to 
transport. The states have refused to even identify the levels of VOC 
and NO<INF>X</INF> emissions that would be consistent with attainment 
in the absence of NO<INF>X</INF> reductions that would be required by 
the NO<INF>X</INF> SIP call. Nor do the plans state the level of 
emission reductions that would be needed to produce attainment in the 
absence of upwind reductions. EPA cannot rationally find that 
transported NO<INF>X</INF> renders attainment impracticable in the 
serious areas, when the states have neither quantified the reductions 
needed locally to attain in the absence of transport reductions, nor 
shown that such reductions are unachievable through adoption of 
additional state and local control measures.
    Response 10: EPA in its Responses has provided an extensive 
analysis of the role of transport in downwind nonattainment for the 
serious areas. In the NO<INF>X</INF> SIP call, EPA concluded that ``EPA 
believes that available modeling analyses demonstrate that upwind 
reductions are necessary to help downwind areas come into attainment.'' 
63 FR 57404 (October 27, 1998). These downwind areas included the areas 
being granted attainment date extensions here. The D.C. Circuit upheld 
EPA's conclusion in Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000). The 
SIP call and the modeling done by the states support the conclusion 
that the affected areas cannot attain without upwind reductions. 
Congress intended that upwind areas be responsible for pollution that 
interferes with downwind nonattainment, while at the same time 
requiring that downwind areas be accountable for locally generated 
emissions. The Clean Air Act reflects Congressional intent that 
downwind areas not be compelled to compensate for lack of upwind 
controls through the adoption of additional state and local control 
measures, as commenter suggests. EPA disagrees with commenter's 
suggestion that the downwind areas must show that no further local 
reductions are achievable before relying on upwind areas to shoulder 
responsibility for the pollution they generate. EPA finds that a 
reading of the Clean Air Act shows that Congress did not intend for 
downwind areas to be forced to impose additional local controls to 
offset significant pollution contributions from upwind areas, before 
seeking relief.
    Comment 11: The Plan fails to demonstrate emission reductions of 3 
percent per year over each three year period after 1999 until 
attainment. Assuming a 2005 attainment date, the plan must provide for 
a nine percent reduction in VOC and/or NO<INF>X</INF> remissions by 
2002 and another 9 percent between 2002 and 2005. The states have not 
attempted to demonstrate compliance with these requirements, and EPA 
has not proposed to find that they have been met. EPA has no authority 
to waive the statutory mandate for three per cent annual reductions. 
Emission reductions in upwind states do not waive the statutory 
requirement for 3 percent annual emission reductions within the 
downwind nonattainment area.
    Response 11: EPA's guidance did not interpret the period of time 
after granting the attainment date extension based on transport as 
requiring additional rate of progress increments from the downwind 
area, since we determined that the reason the area had not attained was 
due to upwind transport. Therefore it would be unreasonable to lock the 
downwind area into fixed progress requirement reductions from local 
sources, when the combination of local reductions with upwind area 
source emission reductions is what will bring the area into attainment. 
In any event, to the extent that it should be determined otherwise, and 
that any ROP required should be imposed on the downwind area, this 
requirement would not attach until EPA grants the attainment date 
extension and provides the area with a later attainment date. Since the 
requirement was not previously due, fulfilling the requirement, if any 
is deemed to exist, is not a condition of receiving the attainment date 
extension.
    Comment 12: EPA has no legal authority to extend the one-hour 
attainment date. Such extension is unlawful and unwise. Under the 
explicit provisions of Section 181(a)(1) of the CAA, the states are 
required to attain the one-hour ozone standard as expeditiously as 
practicable, but no later than November 15, 1999. EPA cannot create 
exemptions from this requirement.
    Response 12: EPA has responded extensively to issues pertaining to 
the legality of the attainment date extension in its March 1999 
responses, above.

B. Attainment Demonstrations--Weight of Evidence

    Comment 1: The weight of evidence approach does not demonstrate 
attainment or meet CAA requirements for a modeled attainment 
demonstration. Commenters added several criticisms of various technical 
aspects of the weight of evidence approach, including certain specific 
applications of the approach to particular attainment demonstrations. 
These comments are discussed in the following response.
    Response 1: Under section 182(c)(2) and (d) of the CAA, serious and 
severe ozone nonattainment areas were required to submit by November 
15, 1994, demonstrations of how they

[[Page 680]]

would attain the 1-hour standard. Section 182(c)(2)(A) provides that 
``[t]his attainment demonstration must be based on photochemical grid 
modeling or any other analytical method determined by the 
Administrator, in the Administrator's discretion, to be at least as 
effective.'' As described in more detail below, the EPA allows states 
to supplement their photochemical modeling results, with additional 
evidence designed to account for uncertainties in the photochemical 
modeling, to demonstrate attainment. This approach is consistent with 
the requirement of section 182(c)(2)(A) that the attainment 
demonstration ``be based on photochemical grid modeling,'' because the 
modeling results constitute the principal component of EPA's analysis, 
with supplemental information designed to account for uncertainties in 
the model. This interpretation and application of the photochemical 
modeling requirement of section 182(c)(2)(A) finds further 
justification in the broad deference Congress granted EPA to develop 
appropriate methods for determining attainment, as indicated in the 
last phrase of section 182(c)(2)(A).
    The flexibility granted to EPA under section 182(c)(2)(A) is 
reflected in the regulations EPA promulgated for modeled attainment 
demonstrations. These regulations provide, ``The adequacy of a control 
strategy shall be demonstrated by means of applicable air quality 
models, data bases, and other requirements specified in [40 CFR part 51 
Appendix W] (Guideline on Air Quality Models).'' \3\ 40 CFR 
51.112(a)(1). However, the regulations further provide, ``Where an air 
quality model specified in appendix W . . . is inappropriate, the model 
may be modified or another model substituted [with approval by EPA, and 
after] notice and opportunity for public comment. . . .'' Appendix W, 
in turn, provides that, ``The Urban Airshed Model (UAM) is recommended 
for photochemical or reactive pollutant modeling applications involving 
entire urban areas,'' but further refers to EPA's modeling guidance for 
data requirements and procedures for operating the model. 40 CFR 51 
App. W section 6.2.1.a. The modeling guidance discusses the data 
requirements and operating procedures, as well as interpretation of 
model 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.
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    \3\ The August 12, 1996 version of ``Appendix W to Part 51--
Guideline on Air Quality Models'' was the rule in effect for these 
attainment demonstrations. EPA is proposing updates to this rule 
which will not be in effect until the new rule is promulgated.
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    The modeled attainment test compares model predicted 1-hour daily 
maximum ozone concentrations in all grid cells for the attainment year 
to the level of the NAAQS. The results may be interpreted through 
either of two modeled attainment or exceedance tests: a deterministic 
test or a statistical test. Under the deterministic test, a predicted 
concentration above 0.124 parts per million (ppm) ozone indicates that 
the area is expected to exceed the standard in the attainment year and 
a prediction at or below 0.124 ppm indicates that the area is expected 
to not exceed the standard. Under the statistical test, attainment is 
demonstrated when all predicted (i.e., modeled) 1-hour ozone 
concentrations inside the modeling domain are at, or below, an 
acceptable upper limit above the NAAQS permitted under certain 
conditions (depending on the severity of the episode modeled).\4\
---------------------------------------------------------------------------

    \4\ Guidance on the Use Of Modeled Results to Demonstrate 
Attainment of the Ozone NAAQS. EPA-454/B-95-007, June 1996.
---------------------------------------------------------------------------

    In 1996, EPA issued guidance \5\ to update the 1991 guidance 
referenced in 40 CFR 50 App. W, to make the modeled attainment test 
more closely reflect the form of the NAAQS (i.e., the statistical test 
described above), to consider the area's ozone design value and the 
meteorological conditions accompanying observed exceedances, and to 
allow consideration of other evidence to address uncertainties in the 
modeling databases and application. When the modeling does not 
conclusively demonstrate attainment, EPA has concluded that additional 
analyses may be presented to help determine whether the area will 
attain the standard. As with other predictive tools, there are inherent 
uncertainties associated with air quality modeling and its results. The 
inherent imprecision of the model means that it may be inappropriate to 
view the specific numerical result of the model as the only determinant 
of whether the SIP controls are likely to lead to attainment. The EPA's 
guidance recognizes these limitations, and provides a means for 
considering other evidence to help assess whether attainment of the 
NAAQS is likely to be achieved. The process by which this is done is 
called a weight of evidence (WOE) determination. Under a WOE 
determination, the state can rely on, and EPA will consider in addition 
to the results of the modeled attainment test, other factors such as 
other modeled output (e.g., changes in the predicted frequency and 
pervasiveness of 1-hour ozone NAAQS exceedances, and predicted change 
in the ozone design value); actual observed air quality trends (i.e. 
analyses of monitored air quality data); estimated emissions trends; 
and the responsiveness of the model predictions to further controls.
---------------------------------------------------------------------------

    \5\ Ibid.
---------------------------------------------------------------------------

    In 1999, EPA issued additional guidance \6\ that makes further use 
of model results for base case and future emission estimates to predict 
a future design value. This guidance describes the use of an additional 
component of the WOE determination, which requires, under certain 
circumstances, additional emission reductions that are or will be 
approved into the SIP, but that were not included in the modeling 
analysis, that will further reduce the modeled design value. An area is 
considered to monitor attainment if each monitor site has air quality 
observed ozone design values (4th highest daily maximum ozone using the 
three most recent consecutive years of data) at or below the level of 
the standard. Therefore, it is appropriate for EPA, when making a 
determination that a control strategy will provide for attainment, to 
determine whether or not the model predicted future design value is 
expected to be at or below the level of the standard. Since the form of 
the 1-hour NAAQS allows exceedances, it did not seem appropriate for 
EPA to require the test for attainment to be ``no exceedances'' in the 
future model predictions. The method outlined in EPA's 1999 guidance 
uses the highest measured design value from all sites in the 
nonattainment area for each of three years.\7\ The three year ``design 
value''

[[Page 681]]

represents the air quality observed during the time period used to 
predict ozone for the base emissions. This is appropriate because the 
model is predicting the change in ozone from the base period to the 
future attainment date. The three yearly design values (highest across 
the area) are averaged to account for annual fluctuations in 
meteorology. The result is an estimate of an area's base year design 
value. The base year design value is multiplied by a ratio of the peak 
model predicted ozone concentrations in the attainment year (i.e., 
average of daily maximum concentrations from all days modeled) to the 
peak model predicted ozone concentrations in the base year (i.e., 
average of daily maximum concentrations from all days modeled). The 
result is an attainment year design value based on the relative change 
in peak model predicted ozone concentrations from the base year to the 
attainment year. Modeling results also show that emission control 
strategies designed to reduce areas of peak ozone concentrations 
generally result in similar ozone reductions in all core areas of the 
modeling domain, thereby providing some assurance of attainment at all 
monitors.
---------------------------------------------------------------------------

    \6\ ``Guidance for Improving Weight of Evidence Through 
Identification of Additional Emission Reductions, Not Modeled.'' 
U.S. Environmental Protection Agency, Office of Air Quality Planning 
and Standards, Emissions, Monitoring, and Analysis Division, Air 
Quality Modeling Group, Research Triangle Park, NC 27711. November 
1999. Web site: http://www.epa.gov/ttn/scram.
    \7\ A commenter criticized the 1999 guidance as flawed on 
grounds that it allows the averaging of the three highest air 
quality sites across a region, whereas EPA's 1991 and 1996 modeling 
guidance requires that attainment be demonstrated at each site. This 
has the effect of allowing lower air quality concentrations to be 
averaged against higher concentrations thus reducing the total 
emission reduction needed to attain at the higher site. The 
commenter's concern is misplaced. EPA relies on this averaging only 
for purposes of determining one component, the amount of additional 
emission reductions not modeled, of the WOE determination. The WOE 
determination, in turn, is intended to be a qualitative assessment 
of whether additional factors (including the additional emissions 
reductions not modeled), taken as a whole, indicate that the area is 
more likely than not to attain.
---------------------------------------------------------------------------

    In the event that the attainment year design value is above the 
standard, the 1999 guidance provides a method for identifying 
additional emission reductions, not modeled, which at a minimum provide 
an estimated attainment year design value at the level of the standard. 
This step uses a locally derived factor which assumes a linear 
relationship between ozone and the precursors. Although a commenter 
criticized this technique for estimating ambient improvement because it 
does not incorporate complete modeling of the additional emissions 
reductions, the regulations do not mandate or nor does EPA guidance 
suggest that States must model all control measures being implemented. 
Moreover, a component of this technique-the estimation of future design 
value, should be considered a model predicted estimate. Therefore, 
results from this technique are an extension of ``photochemical grid'' 
modeling and are consistent with Section 182(c)(2)(A). Also, a 
commenter believes EPA has not provided sufficient opportunity to 
evaluate the calculations used to estimate additional emission 
reductions. EPA provided a full 60-day period for comment on all 
aspects of the proposed rule. EPA has received several comments on the 
technical aspects of the approach and the results of its application, 
as discussed above and in the responses to the individual SIP's.
    A commenter states that, application of the method of attainment 
analysis in the December 16, 1999 guidance will yield a lower control 
estimate than if we relied entirely on reducing maximum predictions in 
every grid cell to less than or equal to 124 ppb on every modeled day. 
However, this approach may overestimate needed controls (e.g., the form 
of the standard allows up to 3 exceedances in 3 years in every grid 
cell; and if the model over predicts observed concentrations, predicted 
controls may also be overestimated, etc.). In recognition of this EPA 
has considered other evidence to make these determinations, as 
described above through the weight of evidence determination.
    When reviewing a SIP, the EPA must make a reasonable determination 
that the control measures adopted more likely than not will lead to 
attainment. Under the WOE determination, EPA has made these 
determinations based on all of the information presented by the States 
and available to EPA. The information considered includes model results 
for the majority of the control measures. Though all measures were not 
modeled, EPA reviewed the model's response to changes in emissions as 
well as observed air quality changes to evaluate the impact of a few 
additional measures, not modeled. EPA's decision was further 
strengthened by each State's commitment to check progress towards 
attainment in 2003 and to adopt additional measures, if the anticipated 
progress is not being made.
    A commenter further criticized EPA's technique for estimating the 
ambient impact of additional emissions reductions not modeled on 
grounds that EPA employed a rollback modeling technique that, according 
to the commenter, is precluded under EPA regulations. The commenter 
explained that 40 CFR 51 App. W section 6.2.1.e. provides, 
``Proportional (rollback/forward) modeling is not an acceptable 
procedure for evaluating ozone control strategies.'' Section 14.0 of 
appendix W defines ``rollback'' as ``a simple model that assumes that 
if emissions from each source affecting a given receptor are decreased 
by the same percentage, ambient air quality concentrations decrease 
proportionately.'' Under this approach if 20% improvement in ozone is 
needed for the area to reach attainment, it is assumed a 20% reduction 
in VOC would be required. There was no approach for identifying 
NO<INF>X</INF> reductions. The ``proportional rollback'' approach is a 
purely empirically/mathematically derived relationship, and is not what 
EPA did. The prohibition in Appendix W applies to the use of a rollback 
method which is empirically/mathematically derived and independent of 
model estimates or observed air quality and emissions changes as the 
sole method for evaluating control strategies. For the demonstrations 
under proposal, EPA used a locally derived (as determined by the model 
and/or observed changes in air quality) ratio of change in emissions to 
change in ozone to estimate additional emission reductions to achieve 
an additional increment of ambient improvement in ozone. This did 
assume a linear relationship between the precursors and ozone for a 
small amount of ozone improvement. EPA has generally relied on 
photochemical modeling to evaluate the attainment demonstrations and 
their control strategies, and has used locally derived adjustment 
factors as a component to estimate the extent to which additional 
emissions reductions--not the core control strategies--would reduce 
ozone levels and thereby strengthen the weight of evidence test. This 
limited use of adjustment factors is more technically sound than the 
unacceptable use of proportional rollback. The limited use of 
adjustment factors is more practical in light of the uncertainty in the 
modeling, the resources and time required to perform additional 
modeling, and the requirement that areas perform a progress check by 
the end of 2003.
    Contrary to concerns expressed by a commenter, EPA did not err by 
modifying the modeling requirements without first proposing to do so. 
Section 3.0 of appendix W states, ``It should not be construed that the 
preferred models identified here are the only models available for 
relating emissions to air quality.'' Section 3.2.2 of Appendix W 
further provides that the ``determination of acceptability of a model 
is a Regional Office responsibility. Where the Regional Administrator 
finds that an alternative model is more appropriate than a preferred 
model, that model may be used subject to the recommendations in 
appendix W. This finding will normally result from a determination that 
(1) a preferred air quality model is not appropriate for the particular 
application; or (2) a more appropriate model or analytical procedure is 
available and is applicable.'' Therefore, EPA does have the discretion 
to identify a more appropriate analytical procedure without undergoing 
rulemaking on

[[Page 682]]

updates to Appendix W. Also, as discussed above, by reference to the 
modeling guidance, Appendix W was designed to allow changes in the 
predictive tools and data bases without undergoing additional 
rulemaking. In any event, the EPA is taking comment during the SIP 
rulemaking process on the application of its guidance.
    A commenter also expressed concern than EPA applied unacceptably 
broad discretion in fashioning and applying the WOE determinations. EPA 
disagrees. The WOE determinations are made on a case-by-case basis. EPA 
has approved attainment demonstrations based on WOE determinations, 
generally with a requirement for additional reductions not modeled, 
only when the photochemical modeling provides a basis for believing 
that the SIP controls will achieve substantial ozone reductions, if not 
attainment levels. The fact that the WOE factors are incremental and 
differ between demonstrations, leads EPA to conclude these 
determinations may be made on a case-by-case basis, without hard-and-
fast guidelines. Moreover, EPA believes that the WOE approach is 
bounded by the strength of the various factors that may be applied. The 
commenter added, as an example, EPA's application of the WOE approach 
to the Washington, D.C. attainment demonstration where modeling showing 
an ozone level (as adjusted) of 142 ppb was compared to the acceptable 
upper limit of 137 ppb. The commenter observed that EPA adjusted the 
modeled prediction on average by a factor of 19% to account for model 
over prediction, and stated that such an adjustment was not 
appropriate. In EPA's view, the 19% over prediction that underlies the 
142 ppb level is only a rough approximation of the extent of modeling 
uncertainty. In EPA's view, consideration of model performance 
(specifically, a bias to under- or over-predict ozone levels) is one 
way to assess modeling uncertainty. To further address uncertainty, EPA 
applied the 1999 guidance to estimate the future design, in the same 
manner as applied to all of the other attainment demonstrations 
received. Both the assessment of model performance and the estimated 
future design value were used in the WOE determination.\8\
---------------------------------------------------------------------------

    \8\ Observing that for the attainment demonstration for the 
Washington, D.C. area, EPA reduced modeled ozone values by 19% to 
account for model overprediction, a commenter criticized this 
technique as lacking technical justification. EPA guidance 
recommends assessment of model performance (both over- and under-
prediction) as one of the factors affecting the model results. In 
general performance measures that fall within EPA recommended ranges 
are considered as an indication that the model is performing 
acceptably. For the Washington, D.C. area, EPA explained how 
performance was more closely reviewed and used as part of the WOE. 
The technique is described in ``Technical Support Document for the 
One-Hour Ozone Attainment Demonstrations submitted by the State of 
Maryland, Commonwealth of Virginia and the District of Columbia for 
the Metropolitan Washington, D.C. Ozone Nonattainment Area,'' 
November 30, 1999. The modeled peak ozone results generally 
correlated (in geographic proximity) with the monitored peak ozone 
emissions (and the modeled plume generally correlated (in geographic 
proximity) with the observed ozone plume), except that the peak 
modeled ozone levels averaged approximately 19-20% higher than the 
peak monitored levels. Modeling uncertainties (including, for 
example, the non-linearity of the modeling) lead EPA to conclude 
that adjusting each modeled peak by the 19% average over-prediction 
was at least as sensible as adjusting each modeled peak by an amount 
that corresponds to that modeled peak's relationship to the 
monitored ozone value in the same vicinity.
---------------------------------------------------------------------------

    The commenter also complained that EPA has applied the WOE 
determinations to adjust modeling results only when those results 
indicate nonattainment, and not when they indicate attainment. WOE is 
not used to adjust model results. WOE is additional analysis that is 
reviewed when there is reason to question the attainment demonstration. 
For the current demonstrations under proposal, EPA's decision to 
approve the demonstrations relied not only on the modeling, but other 
WOE, as well. For example, EPA considered current air quality, model 
performance (over-as well as under-prediction), number of episode days, 
model predicted future design values, and results from the regional 
modeling for the NO<INF>X</INF> SIP call, where applicable. For a given 
attainment demonstration any one of these elements could have indicated 
the area may not attain. But collectively the information supported 
EPA's decision. EPA has applied WOE determinations to all of the 
current demonstrations under proposal, although except for the Chicago 
and Milwaukee attainment demonstrations, the modeling results submitted 
do not pass the recommended ``modeled attainment test.'' Reference the 
individual proposals for how WOE was applied in each case. These 
determinations were made based on EPA's best understanding of the 
problem and relied on a qualitative assessment as well as quantitative 
assessments of the available information. In some cases, EPA believed 
the demonstration of attainment was not conclusive, and in these cases 
EPA made the determination that additional emission reductions were 
needed to strengthen the demonstration.
    The commenter further criticized EPA's application of the WOE 
determination on grounds that EPA ignores evidence indicating that 
continued nonattainment is likely, such as, according to the commenter, 
monitoring data indicate that ozone levels in many cities during 1999 
continue to exceed the NAAQS by margins as wide or wider than those 
predicted by the UAM model. EPA did consider the monitoring data along 
with other information in these determinations. When reviewing the 
monitoring data, EPA considered other factors. For example, high 
monitoring values may have occurred for many reasons including, 
fluctuations due to changes in meteorology and lack of emission 
reductions. The 1999 monitor values do not reflect several control 
programs, both local and the regional which are scheduled for 
implementation in the next several years. And the 1999 meteorology in 
the Northeast was such that July 1999 was one of the warmest (ranked 
9th) ever experienced since 1895. \9\ In addition to the heat, the 
middle and southern portions of the Northeast were also drier than 
average during this month. This information supports EPA's belief that 
the high exceedances observed in 1999 are not likely to reoccur 
frequent enough to cause a violation, once the controls adopted in 
these SIP's are implemented. There is little evidence to support the 
statement that ozone levels in many cities during 1999 continue to 
exceed the NAAQS by margins as wide or wider than those predicted by 
the UAM. Since areas did not model 1999 ozone levels using 1999 
meteorology and 1999 emissions which reflect reductions anticipated by 
control measures, that are or will be approved into the SIP, there is 
no way to determine how the UAM predictions for 1999 compare to the 
1999 air quality. Therefore, we can not determine whether or not the 
monitor values exceed the NAAQS by a wider margin than the UAM 
predictions for 1999. In summary, there is little evidence to support 
the conclusion that high exceedances in 1999 will continue to occur 
after adopted control measures are implemented.
---------------------------------------------------------------------------

    \9\ http://www.ncdc.noaa.gov/ol/climate/research/1999/perspectives.html and ``Regional Haze and Visibility in the 
Northeast U.S.,'' NESCAUM at http://www.nescaum.org/pdf/pubslist.pdf
---------------------------------------------------------------------------

    In addition, the commenter argued that in applying the WOE 
determinations, EPA ignored factors showing that the SIPs under-predict 
future emissions, and the commenter included as examples certain mobile 
source emissions sub-inventories. EPA did not ignore possible under-
prediction in mobile emissions. EPA is presently

[[Page 683]]

evaluating mobile source emissions data as part of an effort to update 
the computer model for estimating mobile source emissions. EPA is 
considering various changes to the model, and is not prepared to 
conclude at this time that the net effect of all these various changes 
would be to increase or decrease emissions estimates. For attainment 
demonstration SIPs that rely on the Tier 2/Sulfur program for 
attainment or otherwise (i.e., reflect these programs in their motor 
vehicle emissions budgets), States have committed to revise their motor 
vehicle emissions budgets after the MOBILE6 model is released. EPA will 
work with States on a case-by-case basis if the new emission estimates 
raise issues about the sufficiency of the attainment demonstration. 
Corrections, if needed, will be made in time for the progress check in 
2003 and if the analysis indicates additional measures are needed, EPA 
will take the appropriate action.
    Comment 2: Commenters state that even with the upwind 
NO<INF>X</INF> reductions anticipated by EPA's NO<INF>X</INF> SIP Call 
Rule, neither photochemical grid modeling conducted by MA and other New 
England states, nor the so-called ``weight -of-evidence'' approach 
demonstrates that MA will achieve attainment by 1999, by 2003 or by any 
other date.
    Response 2: The Springfield, Massachusetts 1-hour ozone attainment 
demonstration is based on photochemical grid modeling and weight of 
evidence analyses as recommended in the guidance.\10\ Comments on the 
use of this approach and its consistency with Section 182(c)(2)(A) of 
the CAA are discussed in response 1 above of section VII.B. This 
guidance allows the use of a WOE analysis to support a modeled control 
strategy that does not predict concentrations that are at or below the 
1-hour ozone NAAQS compliance level of 124 ppb.
---------------------------------------------------------------------------

    \10\ ``Guideline for Regulatory Application of the Urban Airshed 
Model'', EPA-450/4-91-013, July 1991; ``Guidance on the Use Of 
Modeled Results to Demonstrate Attainment of the ozone NAAQS,'' EPA-
454/B-95-007, June 1996; and ``Guidance for Improving Weight of 
Evidence Through Identification of Additional Emission Reductions, 
Not Modeled,'' EPA, November 1999, Web site: http://www.epa.gov/ttn/scram.
---------------------------------------------------------------------------

    Using estimated emissions for 1999 the model predicts a maximum 1-
hour concentration of 168 ppb. However, based on 1997-1999 observations 
the area's design value is 128 ppb. It thus appears that the area's air 
quality is improving at a faster rate than what the model predicts. Or 
the differences between model predictions and observations may be due 
to model inputs such as emission estimates and/or meteorology 
assumptions. This example highlights why use of a single model 
prediction as the determining factor may not be appropriate. To further 
address this issue, EPA used the model predictions before and after 
controls to estimate the expected change in ozone and predict a future 
design value, as described in the guidance, ``Guidance for Improving 
Weight of Evidence Through Identification of Additional Emission 
Reductions, Not Modeled.'' The predicted future design value from this 
analysis indicates the area will attain through implementation of the 
control measures modeled.
    There are five ozone air quality monitors in the Springfield, 
Massachusetts nonattainment area. They are in the towns of Chicopee, 
Agawam, Ware, Adams and Amherst. The monitor in Adams is in a remote 
mountaintop location and has only recorded two exceedances of the 1-
hour ozone standard since 1989 and is clearly in attainment with the 
ozone standard and therefore is not an issue vis-a-vis attainment/
nonattainment. The other four monitors were all recording violations of 
the 1-hour ozone standard when the area was classified as serious in 
1991 (based on ozone data from (1987 to 1989). Since the original 
classification, all of these sites have shown a substantial decrease in 
ozone due to emission reductions, both within Massachusetts and also 
upwind from Massachusetts. The Ware site with a 1999 design value of 
128 ppb, is the only site in western Massachusetts that recorded 
violations of the ozone standard based on 1997-1999 data. A linear fit 
of those two design values (167 ppb in 1989 and 128 ppb in 1999) shows 
a drop of over 3 ppb per year of ozone. This observed rate of 
improvement in air quality per reduction in emissions is consistent 
with the analyses of the modeling results for the NO<INF>X</INF> SIP 
call and the local control measures and supports the expectation that a 
4 ppb improvement in ozone will occur by 2003, and very likely sooner.
    It must be noted that the year-to-year decline in ozone levels is 
rarely linear and year-to-year variations do occur, but, since these 
four ozone sites all show a substantial downward trend in one-hour 
ozone concentrations, and precursor emissions are projected to keep 
falling, both within the nonattainment area and upwind from it, there 
is no reason to believe that this downward trend will not continue. The 
emission reductions will be a result of the following: the mobile fleet 
(i.e. cars) turnover, reductions from large point sources due to the 
OTC NO<INF>X</INF> Memorandum of Understanding (MOU) and additional 
reductions from the NO<INF>X</INF> SIP call. In addition, Phase II 
reformulated gasoline, and ultimately Tier 2 automobile standards and 
low sulphur gasoline, along with other federal control measures (i.e. 
controls on non-road engines) should maintain the downward trend in 
both emissions and ambient concentrations. Also, Massachusetts started 
an enhanced I/M program in Oct. 1999 which will yield additional 
emission reductions.
    When reviewing a SIP, the EPA must make a reasonable determination 
that the control measures adopted more likely than not will lead to 
attainment. Under the WOE determination, EPA has made this 
determination based on all of the information presented by the State 
and available to EPA. This includes model results for the local control 
measures and the regional NO<INF>X</INF> SIP call along with additional 
analyses of air quality data and estimates of future design values. 
Therefore, EPA believes that western Massachusetts will attain the 
standard, as expeditiously as practicable, through implementation of 
adopted local controls and regional NO<INF>X</INF> reductions.

C. Reliance on NO<INF>X</INF> SIP Call and Tier II Modeling

    Comment: Given the uncertainty surrounding the NO<INF>X</INF> SIP 
Call at the time of EPA's proposals on the attainment demonstrations, 
there is no basis for the conclusion reached by EPA that states should 
assume implementation of the NO<INF>X</INF> SIP Call, or rely on it as 
a part of their demonstrations. The commenter references modeling data 
which demonstrates that the benefits of imposing NO<INF>X</INF> SIP 
Call controls are limited to areas near the sources controlled.
    The commenter adds that there are errors in the emissions used for 
the NO<INF>X</INF> SIP Call Supplemental Notice (SNPR). The commenter 
believes that because of inaccurate inventories the modeling analyses, 
estimates of air quality based on that modeling, and estimates of EPA's 
Tier II tailpipe emissions reduction program not modeled in the 
demonstrations, are also flawed.
    Response: In Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), the 
court upheld the NO<INF>X</INF> SIP Call on most issues, although a 
subsequent order of the court delays the implementation date to no 
later than May 31, 2004. EPA is moving forward to implement those 
portions of the rule that have been upheld, ensuring

[[Page 684]]

that most--if not all--of the emission reductions from the 
NO<INF>X</INF> SIP call assumed by the States in their 1-hour ozone 
NAAQS attainment demonstrations will occur. EPA's modeling to determine 
the region-wide impacts of the NO<INF>X</INF> SIP call clearly shows 
that regional transport of ozone and its precursors is impacting 
nonattainment areas several states away, and this analysis was upheld 
by the court. Therefore, it is appropriate for States to assume 
implementation of the NO<INF>X</INF> SIP Call.
    The EPA considered many factors when making these determinations. 
No single piece of information was determinant. It is important to 
recognize that the regional modeling for the Tier II rule was not used 
in the 1-hour attainment demonstrations and that the SNPR modeling was 
only one of several factors considered. EPA's decision was based on a 
qualitative assessment of the information presented. Information 
reviewed included results of the modeled attainment test, along with 
other supplemental information such as other modeled outputs (e.g., 
changes in the predicted frequency and pervasiveness of 1-hour ozone 
NAAQS exceedances and predicted changes in the ozone design value); 
actual observed air quality trends (i.e. analyses of monitored air 
quality data); estimated emissions trends; base year model performance; 
SNPR derived future design values; the responsiveness of the model 
predictions to further controls; and for some of the demonstrations 
estimates of additional emission reductions. EPA recognizes that any 
and all of this information has some degree of uncertainty, including 
the SNPR modeling. EPA recognizes that these uncertainties should be 
considered when making these determinations and that is why EPA 
considered other factors. EPA's weight of evidence determinations are 
not affected by error in any one piece of the information.

D. Impact of the NO<INF>X</INF> SIP Call on Attainment of the 1-Hour 
NAAQS

    Comment: One commenter states that Massachusetts's NO<INF>X</INF> 
emissions interfere with attainment in downwind areas of New Hampshire 
and Maine and that Connecticut's NO<INF>X</INF> emissions interfere 
with attainment in downwind areas of Massachusetts, New Hampshire and 
Maine. Therefore, the commenter states that significant additional 
NO<INF>X</INF> reductions are needed for these areas to attain the 1-
hour ozone NAAQS. The commenter also remarked that neither 
Massachusetts nor Connecticut has committed to adequate emission 
control strategies.
    Response: In the final rule for the NO<INF>X</INF> SIP Call (63 FR 
57394, October 27, 1998), EPA indicated that Massachusetts contains 
sources that contribute significantly to 1-hour nonattainment in Maine 
and New Hampshire, and that Connecticut contains sources that 
contribute significantly to 1-hour nonattainment in Massachusetts, 
Maine and New Hampshire. The NO<INF>X</INF> SIP Call rule specified the 
emissions that Connecticut and Massachusetts were required to regulate 
to address their significant contribution to nonattainment in these 
downwind States. Massachusetts submitted a rule meeting the 
NO<INF>X</INF> SIP call on November 19, 1999, and EPA proposed approval 
of this rule on July 12, 2000 (65 FR 42907). Similarly, Connecticut 
submitted a rule in response to the NO<INF>X</INF> SIP call on October 
1, 1999, and EPA proposed approval on July 12, 2000 (65 FR 42900). On 
October 20, 2000, the Regional Administrator signed notices fully 
approving these rules. As of December 21, 2000, this approval was 
awaiting publication. These rules have addressed Massachusetts's and 
Connecticut's contribution to ozone nonattainment in downwind areas. In 
addition, recent air quality monitoring data for 1998-2000, which have 
been quality assured, indicate that the Portland, ME, and Portsmouth-
Dover-Rochester, NH, ozone nonattainment areas no longer violate the 1-
hour ozone NAAQS.

E. RACM (Including Transportation Control Measures)

1. Comments on December 16, 1999 Proposal
    Comment: Several commenters have stated that there is no evidence 
in several states that they have adopted reasonably available control 
measures (RACM) or that the SIPs have provided for attainment as 
expeditiously as practicable. Specifically, the lack of Transportation 
Control Measures (TCMs) was cited in several comments, but potential 
stationary source controls were also covered. One commenter stated that 
mobile source emission budgets in the plans are by definition 
inadequate because the SIPs do not demonstrate timely attainment or 
contain the emissions reductions required for all RACM. That commenter 
claims that EPA may not find adequate a motor vehicle emission budget 
(MVEB) that is derived from a SIP that is inadequate for the purpose 
for which it is submitted. The commenter alleges that none of the MVEBs 
submitted by the states that EPA is considering for adequacy is 
consistent with either the level of emissions achieved by 
implementation of all RACM; nor are they derived from SIPs that provide 
for attainment. Some commenters stated that for measures that are not 
adopted into the SIP, the State must provide a justification for why 
they were determined to not be RACM.
    Response: The EPA reviewed the SIP submittals for the four serious 
areas (Greater Connecticut, Western Massachusetts (Springfield); 
Washington, D.C.-Virginia-Maryland; and Atlanta, Georgia \11\) and 
determined that they did not include sufficient documentation 
concerning available RACM measures. Therefore, EPA reviewed numerous 
potential RACM measures. As part of this review, EPA developed an 
analysis, which has been placed in the dockets for the SIPs for the 
serious areas to help address this issue: ``RACM Analysis for Four 
Serious Areas Designated Nonattainment for 1-hr Ozone NAAQS.'' U.S. 
Environmental Protection Agency; Office of Air Quality Planning and 
Standards, Research Triangle Park, NC 27711; and Office of 
Transportation and Air Quality, Ann Arbor, MI 48105. October 12, 2000. 
An electronic version of EPA's RACM analysis cited above can be 
downloaded at www.epa.gov/ttn/rto under ``What's New.'' The EPA 
published a notice of availability of this material on October 16, 2000 
(65 FR 61134) and provided initially a 15 day public comment period on 
the material. The EPA extended the public comment period on this 
supplemental material for an additional 15 days in a notice published 
November 2, 2000 (65 FR 65818) and corrected on November 9, 2000 (65 FR 
67319).
---------------------------------------------------------------------------

    \11\ This response to comment document will not address Atlanta; 
that will be addressed in the future when EPA takes final rulemaking 
action on the Atlanta SIP.
---------------------------------------------------------------------------

    Section 172(c)(1) of the CAA requires SIPs to contain RACM and 
provides for areas to attain as expeditiously as practicable. EPA has 
previously provided guidance interpreting the requirements of 
172(c)(1). See 57 FR 13498, 13560. In that guidance, EPA indicated its 
interpretation that potentially available measures that would not 
advance the attainment date for an area would not be considered RACM. 
EPA also indicated in that guidance that states should consider all 
potentially available measures to determine whether they were 
reasonably available for implementation in the area, and whether they 
would advance the attainment date. Further, states should indicate in 
their SIP submittals whether measures

[[Page 685]]

considered were reasonably available or not, and if measures are 
reasonably available they must be adopted as RACM. Finally, EPA 
indicated that states could reject measures as not being RACM because 
they would not advance the attainment date, would cause substantial 
widespread and long-term adverse impacts, or would be economically or 
technologically infeasible. The EPA also issued a recent memorandum re-
confirming the principles in the earlier guidance, entitled, ``Guidance 
on the Reasonably Available Control Measures (RACM) Requirement and 
Attainment Demonstration Submissions for Ozone Nonattainment Areas.'' 
John S. Seitz, Director, Office of Air Quality Planning and Standards. 
November 30, 1999. Web site: http://www.epa.gov/ttn/oarpg/t1pgm.html.
    The EPA's RACM analysis cited above evaluated emission levels of 
oxides of nitrogen and volatile organic compounds and their 
relationship to the application of current and anticipated control 
measures expected to be implemented in four serious one-hour ozone 
nonattainment areas. This analysis was done to determine if additional 
RACM are available after adoption of Clean Air Act required measures 
for the four serious ozone nonattainment areas. The analysis 
supplemented the December 16, 1999 proposals to approve the 1-hour O3 
NAAQS attainment demonstrations in these areas.
    Based on this analysis and other information discussed below, EPA 
concluded that additional emission control measures would not advance 
the attainment date and therefore do not constitute RACM in three 
nonattainment areas: Greater Connecticut; Springfield, Massachusetts; 
and Metropolitan Washington. The EPA therefore concludes that the SIPs 
for these areas meet the requirement for adopting RACM.
    In addition to control measures already implemented locally, each 
of the three areas relies in large part on reductions from outside the 
nonattainment areas from EPA's NO<INF>X</INF> SIP call rule or section 
126 rule (65 FR 2674, January 18, 2000) to reach attainment. In the 
NO<INF>X</INF> SIP call, 63 FR 57356, EPA concluded that reductions 
from various upwind states were necessary to provide for timely 
attainment in nonattainment areas in various downwind states, including 
all four of the nonattainment areas that were the subject of this 
analysis. The NO<INF>X</INF> SIP call therefore established 
requirements for control of sources of significant emissions in all 
upwind states. However, these reductions were not slated for full 
implementation until May 2003. Further, the United States Court of 
Appeals for the District of Columbia Circuit recently ordered that EPA 
could not require SIPs to provide for full implementation of the 
NO<INF>X</INF> SIP call prior to May 2004. Michigan, et al., v. EPA, 
D.C. Cir. No. 98-1497, Order of Aug. 30, 2000.\12\
---------------------------------------------------------------------------

    \12\ Several States (DE, PA, CT, MA, RI, MD, NY, NJ) have 
submitted plans providing for reductions by 2003. EPA has fully 
approved three of these plans (CT, MA, RI).
---------------------------------------------------------------------------

    The attainment demonstrations for these three serious areas 
indicate that the ozone benefit expected to be achieved from regional 
NO<INF>X</INF> reductions (such as the NO<INF>X</INF> SIP call) are 
substantial. (See the individual attainment demonstrations in the 
docket for each of these areas.)
    EPA had proposed to approve an attainment date extension beyond the 
original attainment date specified in the Clean Air Act (November 1999) 
for each of the three serious areas: to 2007 for Greater Connecticut; 
to 2003 for Western Massachusetts; and to 2005 for Metropolitan 
Washington. The rationale for such extensions is discussed in detail 
extensions elsewhere in this response to comments document. See section 
VII.A. Briefly, however, the extensions are being given mainly due to 
the fact that these areas will have to rely on emission reductions from 
upwind areas. Some of those upwind reductions will be provided under 
the NO<INF>X</INF> SIP call rule with compliance in 2004, and from the 
section 126 rule, with compliance in 2003.
    In Western Massachusetts, some of the measures designed to achieve 
emissions reductions from within the nonattainment area--in particular, 
the regional NO<INF>X</INF> reductions--will also not be fully 
implemented until just prior to each area's respective attainment date. 
One could argue that the local measures needed for attainment in this 
area could be implemented earlier and advance attainment. Additional 
reductions beyond those already provided for in the SIP for this area 
could potentially be implemented in the interim period prior to the 
reductions from these upwind controls; however, they would only be 
needed for an interim period of time, after which the State could 
actually replace them if the State submits a new attainment 
demonstration showing they were no longer necessary. The interim 
implementation of such measures could likely result in cases where 
sources would have to install controls, and then would be relieved of 
such responsibility, which could be disruptive. Thus, EPA believes this 
situation--where the local controls would only marginally advance 
attainment--supports a finding that the additional controls would not 
be considered RACM.
    Also, the development of rules for sources in the Springfield, 
Massachusetts nonattainment area for which little control information 
may exist--especially a large number of very different source 
categories of small sources--will likely take much longer than 
development of rules for source categories for which control 
information exists or that comprise a smaller number of larger sources. 
The longer the time frame for development of rules by the State would 
decrease the possibility that the emission reductions from the rules 
would advance the attainment date earlier than would be achieved from 
the larger amount of reductions expected from upwind controls, such as 
the NO<INF>X</INF> SIP call rule and the section 126 rule.
    One could also argue that the measures needed in the upwind area 
that is affecting the area in question could be implemented earlier and 
therefore could result in earlier attainment. The EPA recognizes that 
it has not taken final rulemaking on the severe areas that affect the 
three serious areas in question (New York for the Greater Connecticut 
and Springfield, Massachusetts nonattainment areas, and Baltimore for 
the Metropolitan Washington nonattainment area). However, since EPA 
must take rulemaking action on the three serious areas at this time, 
and because it does not have information to the contrary at this point, 
EPA must presume the attainment dates submitted by the States and for 
which EPA proposed approval on December 16, 1999, and therefore presume 
that emission controls for those severe areas will be implemented as 
expeditiously as practicable on a schedule to achieve those reductions. 
Because EPA proposed to approve the attainment dates for the severe 
areas in question, it is reasonable to assume that the severe areas 
cannot implement their measures to achieve attainment any more 
expeditiously.
    Thus, EPA believes that implementation of additional measures in 
the Springfield, Massachusetts area will not advance the attainment 
date, prior to the time of full implementation of the SIP call and/or 
the section 126 rule.
    Therefore, EPA concludes, based on the available documentation, 
that the reductions from additional control measures will not advance 
attainment, and thus none of these potential

[[Page 686]]

measures analyzed can be considered RACM for purposes of section 
172(c)(1) for western Massachusetts for its 1-hour ozone standard 
attainment demonstration.
    Although EPA does not believe that section 172(c)(1) requires 
implementation of additional measures for these three serious areas, 
this conclusion is not necessarily valid for other areas. For 1-hour 
ozone nonattainment areas classified as severe, for instance, some of 
which are the ``upwind'' areas referred to in the above responses for 
serious areas, such measures may in fact be RACM, and the States in 
which such areas are located have a responsibility to perform an 
analysis of whether additional measures are RACM. EPA is about to issue 
additional guidance concerning the RACM requirement for the severe 
areas. In addition, if in the future EPA moves forward to implement 
another ozone standard, this RACM analysis would not control what is 
RACM for these or any other areas for that other ozone standard.
    Also, EPA has long advocated that States consider the kinds of 
control measures that the commenters have suggested, and EPA has indeed 
provided guidance on those measures. See, e.g., http://www.epa.gov/otaq/transp.htm. In order to demonstrate that they will attain the 1-
hour ozone NAAQS as expeditiously as practicable, some areas may need 
to consider and adopt a number of measures--including the kind that EPA 
itself evaluated in the RACM analysis for the three serious areas--that 
even collectively do not result in many emission reductions. 
Furthermore, EPA encourages areas to implement technically available 
and economically feasible measures to achieve emissions reductions in 
the short term--even if such measures do not advance the attainment 
date--since such measures will likely improve air quality. Also, over 
time, emission control measures that may not be RACM now for an area 
may ultimately become feasible for the same area due to advances in 
control technology or more cost-effective implementation techniques. 
Thus, areas should continue to assess the state of control technology 
as they make progress toward attainment and consider new control 
technologies that may in fact result in more expeditious improvement in 
air quality.
    Discussion of other factors related to RACM, such as economic and 
technological feasibility, are discussed below in responses to comments 
on EPA's RACM analysis.
    Elsewhere in this response to comments, EPA addresses the issue of 
whether the attainment dates are as expeditious as practicable and that 
discussion is not repeated here.
    EPA previously responded to comments concerning the adequacy of 
MVEBs when EPA took final action determining the budgets adequate and 
does not address those issues again here. The responses are found at 
http://www.epa.gov/oms/transp/conform/pastsips.htm.
    Comments on the supplemental material were received from several 
commenters and are addressed below.
    Note that the response to the comment related to severe areas will 
be provided at the time EPA takes final rulemaking action on those 
areas.
2. Comments on October 16, 2000 Notice of Availability
    Comment 1: EPA cannot invent rationales for the states: EPA's role 
is limited to reviewing what the states have submitted, and approving 
or disapproving it. 42 U.S.C. 7410(k)(3); Riverside Cement Co. v. 
Thomas, 843 F.2d 1246 (9th Cir. 1988). EPA ``may either accept or 
reject what the state proposes; but EPA may not take a portion of what 
the state proposes and amend the proposal ad libitum.'' Id. If states 
are going to reject control measures, their decision to do so and the 
rationale therefore must be subject to notice and hearing at the state 
and local level.
    Response 1: The SIP submittals from the States for the Metropolitan 
Washington, Springfield, Massachusetts, and the Greater Connecticut 
nonattainment areas contained no measures adopted for the sole purpose 
of satisfying the RACM requirement. The public did have a chance to 
comment at the State level on the fact that there were no additional 
measures. The EPA interpreted this lack of additional measures as an 
indication that the State did not identify any additional measures as 
meeting the RACM requirement under section 172(c)(1). The EPA did not 
amend the SIP; EPA supplemented the rationale and approved the SIP with 
an explanation of why it was acceptable for the State to identify no 
additional measures to meet the RACM requirement of the Clean Air Act.
    The commenter cites Riverside Cement for the proposition that EPA 
cannot perform an analysis of whether the State's plan complies with 
the CAA's RACM requirement. The EPA believes that the holding of that 
case is inapplicable to these facts. In Riverside Cement, EPA approved 
a control requirement establishing an emission limit into the SIP and 
disregarded a contemporaneously-submitted contingency that would allow 
the State to modify the emission limit. Thus, the court concluded that 
EPA ``amended'' the State proposal by approving into the SIP something 
different than what the State had intended. 843 F.2d at 1248. In the 
present circumstances, EPA did not attempt to modify a substantive 
control requirement of the submitted plan. Rather, EPA performed 
additional analyses to determine if the plan, as submitted, fulfilled 
the substantive RACM requirement of the CAA. As a general matter, EPA 
believes that States should perform their own analyses of RACM (as well 
as submitting other supporting documents for the choices they make). 
The statute places primary responsibility on the States to submit plans 
that meet the CAA's requirements. However, nothing in the CAA precludes 
EPA from performing those analyses, and the CAA clearly provides that 
EPA must determine whether the State's submission meets the CAA'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 CAA. 
The EPA has not attempted to modify the State's submission by either 
adding or deleting a substantive element of the submitted plan. By 
virtue of the supplemental RACM analysis, EPA has concluded that the 
State's initial submission contains control measures sufficient to meet 
the RACM requirement.
    Comment 2 (a): Inappropriate grounds for rejecting RACM. The 
commenter claims that EPA's bases for rejecting measures as RACM are 
inappropriate considerations: (a) The measures are ``likely to require 
an intensive and costly effort for numerous small area sources''; or 
(b) the measures ``do not advance the attainment dates'' for the four 
areas. 65 FR at 61134. Neither of these grounds are legally or 
rationally sufficient bases for rejecting control measures.
    Response 2(a): The EPA's approach toward the RACM requirement is 
grounded in the language of the Clean Air Act. Section 172(c)(1) states 
that a SIP for a nonattainment area must meet the following 
requirement, ``In general.--Such plan provisions shall provide for the 
implementation of all reasonably available control measures as 
expeditiously as practicable (including such reductions in emissions 
from existing sources in the area as may be obtained through the 
adoption, at a minimum, of reasonably available

[[Page 687]]

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 CAA provides that the attainment date shall be ``as 
expeditiously as practicable but no later than * * *'' the deadlines 
specified in the CAA. 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 CAA. 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 CAA 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 CAA. 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 three nonattainment areas 
would advance the attainment date earlier than would be achieved from 
the larger amount of reductions expected from upwind controls, such as 
from the NO<INF>X</INF> SIP call and controls from severe areas with 
later statutory attainment dates.
    Comment 2(b): EPA's approach also illegally assumes that the 
attainment dates for these areas can be extended beyond November 15, 
1999 via the Agency's downwind transport policy.
    Response 2(b): As noted above, EPA concluded that RACM is linked in 
the language of the Clean Air Act to the attainment date. We elsewhere 
respond to comments that object to EPA's approval of attainment date 
extensions and do not restate those responses here. See Section VII.A. 
Once an attainment date is set for an area, an analysis can then be 
made to determine whether any additional measures that may potentially 
be RACM would advance that attainment date.
    Comment 3: Failure to quantify reductions needed to attain sooner: 
Even if advancement of the attainment date were a relevant test for 
RACM, EPA has failed to rationally justify its claim that additional 
control measures would not meet that test. To begin with, neither the 
Agency nor the states have quantified in a manner consistent with EPA 
rules and guidance the emission reductions that would be needed to 
attain the standard prior to achievement of emission reductions 
required under the NO<INF>X</INF> SIP call.
    Response 3: Elsewhere in this response to comments on the proposed 
approval of the 1-hour ozone SIPs, EPA addresses the issue of the 
attainment date extension. See Section VII.A. EPA has therein justified 
the position that areas affected by transport may need additional time 
to attain--and in some cases may need an extension out to either the 
date the NO<INF>X</INF> SIP call will be implemented or the attainment 
date of an upwind area if it cannot attain without the reductions from 
the upwind area. In the case of Springfield, Massachusetts, all local 
measures needed for attainment, except the rule Massachusetts adopted 
to meet the NO<INF>X</INF> SIP call, are already being implemented. EPA 
considers this implementation as expeditious as practicable.
    The regulation Massachusetts adopted to meet EPA's NO<INF>X</INF> 
SIP call requires compliance with covered emission reductions in 2003, 
which EPA considers as expeditiously as practicable for those sources.
    Comment 4: Inadequate RACM analysis: EPA's RACM analysis is grossly 
inadequate in several key respects.
    Comment 4(a): EPA's analysis fails to provide the technical basis 
and calculations by which it developed its emission reduction estimates 
for various measures. EPA failed to provide citations to the literature 
regarding estimates of emission reductions for various TCMs. EPA failed 
to specify the level of implementation assumed for some of the TCMs in 
the analysis.
    Response 4(a): EPA's RACM analysis (found at www.epa.gov/ttn/rto) 
did provide the technical basis and calculations for its emission 
reduction estimates for controls possible for the source categories in 
the emission inventory. The commenter apparently believes EPA's 
analysis is insufficient, however. The technical basis for the analyses 
and the assumptions used in the calculation of estimated emission 
reductions were derived from a review of the literature on the 
implementation and effectiveness of TCM's.\13\ 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.
---------------------------------------------------------------------------

    \13\ Transportation Control Measures: State Implementation Plan 
Guidance, US EPA 1992; Transportation Control Measure Information 
Documents, US EPA 1992; Costs and Effectiveness of Transportation 
Control Measures: A Review and Analysis of the Literature, National 
Association of Regional Councils 1994.
---------------------------------------------------------------------------

    Comment 4(b): EPA's analysis looks at only a small universe of 
potential measures, and does not evaluate all of the measures 
identified in public comment and other sources.
    Response 4(b): EPA's RACM analysis was intended to address all 
potential categories of stationary and mobile sources that could 
provide additional emission reductions that might be considered RACM. 
The EPA believes that all identified measures were included in the 
categories addressed in the analysis.

[[Page 688]]

    Comment 4(c): EPA's analysis also completely fails to consider the 
additional benefits likely from combined implementation of 
complementary TCMs e.g., parking management along with transit 
improvements. It is arbitrary and irrational for EPA to assume that 
these measures can and will be implemented in complete isolation from 
one another.
    Response 4(c): EPA recognizes that many control measures--
particularly TCMs--are more effective if done in conjunction with 
others. EPA maintains, however, that it would be impossible to analyze 
a seeming infinite set of combinations of measures for possible 
benefits. The EPA's analysis did look at all measures in various 
categories and concluded that as a whole these categories of measures 
would not advance attainment or would otherwise not be reasonably 
available.
    Comment 5: Stationary sources: The analysis of potential emission 
reductions from additional stationary source measures is flawed in 
several key respects.
    Comment 5(a): First, EPA arbitrarily excluded from any 
consideration the bottom 20% of the stationary source categories.
    Response 5(a): EPA does not consider this exclusion arbitrary, 
since it was designed to eliminate from consideration controls on a 
number of source categories that were not expected to yield many 
emission reductions. The EPA believed that controls on categories with 
very low emission reduction potential would not constitute RACM. The 
fact that none of the top 80 percent of the categories considered for 
additional controls yielded measures that EPA considered RACM for the 
areas in question validates EPA's decision not to analyze separately 
the bottom 20 percent of the categories, which would cumulatively have 
achieved fewer emission reductions. Therefore, EPA concludes that 
control measures applied to the bottom 20 percent of the categories are 
also not RACM.
    Comment 5(b): Second, EPA did not consider potential additional 
controls on electric generating units and point source combustion 
sources.
    Response 5(b): Undoubtedly there are additional controls that could 
be placed on electric generating units and point source combustion 
sources. However, EPA believes that the implementation of the RACT 
requirements in nonattainment areas and, more importantly, the 
implementation of the NO<INF>X</INF> SIP call in all areas affecting 
the nonattainment areas in general provide a level of control that 
represents all reasonably available controls for these sources in the 
areas in question. The EPA believes that generally, the level of 
NO<INF>X</INF> emissions control required under the NO<INF>X</INF> SIP 
call for larger sources, including electric generating units and point 
source combustion sources, is greater than the level of control 
presumed by EPA under the NO<INF>X</INF> RACT requirement. The 
NO<INF>X</INF> SIP call is based on a level of highly cost effective 
controls, characterized as having a $2000 per ton cost effectiveness or 
less (63 FR 57400, October 27, 1998). The presumptive level of RACT 
provided in EPA guidance is based on cost effectiveness up to $1300 per 
ton (Memorandum of March 16, 1994, from D. Kent Berry re: ``Cost-
Effective Nitrogen Oxides (NO<INF>X</INF>) Reasonably Available Control 
Technology (RACT)''). EPA acknowledges that controls with costs higher 
than $2000 per ton are available and may be cost-effective. However, 
the control costs do not reflect other concerns regarding 
reasonableness of control. EPA received comments that predicted 
problems with availability of electrical generation even at the 
NO<INF>X</INF> SIP call level of control; therefore, in its final 
NO<INF>X</INF> SIP call rule, EPA included provisions for a 
NO<INF>X</INF> supplement pool to allow more time for some units to 
come into compliance and thus minimize potential power availability 
problems. At control levels greater than those in the NO<INF>X</INF> 
SIP call rule, EPA believes the time States would need to provide for 
sources to come into compliance while avoiding power availability 
problems would be more than the current amount of time for Western 
Massachusetts and Metropolitan Washington to attain. Therefore, EPA had 
determined that such additional controls do not constitute RACM.
    Comment 5(c): Third, EPA assumes that only a 50% level of control 
is achievable for the uncontrolled emissions. This completely 
unsupported claim is hard to fathom.
    Response 5(c): EPA's long-standing guidance on the RACT requirement 
for stationary sources of VOC has generally assumed a presumptive norm 
of 81 percent control efficiency; this efficiency was based on the 
assumption of a 90 percent capture efficiency and 90 percent control 
efficiency of the captured emissions (0.9  x  0.9 = 0.81). However, the 
specific VOC RACT control techniques guidelines were developed for 
emission sources for which much information about emissions and 
controls was available. The RACT rules often apply to smaller sources 
as well as to major sources. There is not nearly as much information 
available concerning source categories for which RACT guidelines have 
not been developed; nor is there information regarding what controls 
are appropriate for the smaller sources that are not already subject to 
RACT. Therefore, without further information, EPA was hesitant to 
assume an 81 percent level of control. EPA therefore chose a 50 percent 
level of control for VOC control, which EPA believes is reasonable in 
light of our limited knowledge on available controls.
    The EPA established guidance to States in complying with the Clean 
Air Act's requirements for NO<INF>X</INF> RACT in the NO<INF>X</INF> 
Supplement to the General Preamble (57 FR 55620, November 25, 1992). 
That guidance addressed RACT for major stationary sources of 
NO<INF>X</INF>. Under section 182(b)(2) of the CAA, moderate and higher 
ozone nonattainment area SIPs--and also SIPs for all areas in the Ozone 
Transport Region--were already required to contain provisions for 
applying a reasonably available level of control for NO<INF>X</INF> for 
major stationary sources. For NO<INF>X</INF> emission control for other 
sources, when EPA published the NO<INF>X</INF> SIP call (63 FR 57402, 
October 27, 1998), EPA evaluated other levels of control for categories 
of stationary sources that were not included in the highly cost-
effective controls assumed for establishing the level of control 
reflected in the Statewide NO<INF>X</INF> emission budgets in that 
rule. The EPA determined that for area sources, additional controls 
that were technologically feasible and highly cost-effective could not 
be identified. The EPA determined that for small point sources, their 
collective emissions were relatively small and the administrative 
burden, to the States and regulated entities, of controlling such 
sources was likely to be considerable. Nonetheless, for the purpose of 
the RACM analysis, EPA did assume a level of control for sources with 
potential for control. In light of the lower level of confidence in 
information concerning NO<INF>X</INF> controls on these sources, and 
the conclusion concerning cost effectiveness, however, EPA believed it 
had to take a more conservative approach, and thus chose a lower level 
of control, namely 50 percent. The EPA believes this level is 
reasonable in light of these facts.
    Comment 6: Transportation Control Measures as RACM: EPA gives 
virtually no consideration to the emission reduction benefits of 
transportation programs, projects and services contained in adopted 
regional transportation plans (RTPs), or that are clearly available for 
adoption as part of RTPs adopted for a nonattainment area. In addition, 
it is arbitrary and capricious

[[Page 689]]

for EPA not to require as RACM economic incentive measures that are 
generally available to reduce motor vehicle emissions in every 
nonattainment area.
    Response 6: EPA's notice of availability of the RACM analysis (65 
FR 61134, October 16, 2000) does consider transportation programs, 
projects and services that are generally adopted, or available for 
inclusion in a nonattainment area's regional transportation plan and 
Transportation Improvement Program. The RACM analysis includes seven 
broad categories and twenty-seven subcategories of Transportation 
Control Measures that represent a range of programs, projects and 
services that can be included in RTP's and TIP's. The inclusion of a 
TCM in an RTP or TIP does not necessarily mean that it meets EPA's 
criteria for RACM and must be included in the SIP. EPA has concluded 
that implementation of these TCM's would not advance the attainment 
date for the Springfield, Massachusetts area, and therefore are not 
considered RACM for purposes of the attainment SIPs for that area .
    Some of these TCM's, such as parking cashout, transit subsidies, 
and parking pricing, are explicitly economic incentive programs. 
Furthermore, these categories of TCMs, as well as most of the others, 
could be infinitely differentiated according to criteria, such as the 
method of implementation, level of promotional effort or market 
penetration, stringency of enforcement, etc. The application of 
economic incentives to increase the effectiveness of a TCM is one such 
criterion. These implementation variables, representing levels of 
implementation effort, are implicit in the range of effectiveness for 
each category of TCM. EPA does not believe it is necessary, or even 
possible, to evaluate every explicit variation of TCM's in order to 
adequately determine if it is reasonably available. EPA believes that 
using the midpoint level of effectiveness represents a level of 
implementation effort that is not so high as to be economically 
infeasible, nor so low as to be ineffective.
    Also, there are many important reasons why a state, regional, or 
local planning agency might implement TCMs in an integrated traffic 
management plan beyond whatever air quality benefits the TCMs might 
generate, including preserving open space, water shed protection, 
avoiding sprawl, mitigating congestion, and ``smart growth'' planning 
generally. So the fact that TCMs are being implemented in certain ozone 
nonattainment areas does not necessarily lead one to the conclusion 
that those TCMs represent mandatory RACM measures when they are 
analyzed primarily for the purpose of determining whether they would 
advance the ozone attainment date.
    Comment 7: EPA did not provide sufficient notice and time to permit 
adequate comment.
    Response 7: In its initial notice of availability of the RACM 
analysis (65 FR 61134, October 16, 2000) EPA offered a 15 day comment 
period (to October 31, 2000). On November 2, 2000 (65 FR 65818), EPA 
extended the comment period an additional 15 days, specifically stating 
that this would provide a total of 30 days for public comment. 
Unfortunately, that notice was published with a typographical error 
that appeared to extend the comment period an additional year and 15 
days. Therefore, on November 9, 2000 (65 FR 67319), EPA published a 
correction to clearly extend the comment period 15 days from October 
31, 2000, to November 15, 2000. EPA believes 30 days is an adequate 
period for public comment. The first notice to extend the public 
comment period (the November 2, 2000 notice) made it quite clear that 
the extension was for only 15 days to provide a total of 30 days for 
comment; EPA believes no possible confusion should have resulted from 
the fact that the end date of the comment period contained a 
typographical error.
    Comment 8: EPA is trying to circumvent obligations under 2 Consent 
Decrees (MOG v. EPA and NRDC v. Browner).
    Response 8: This comment refers to consent decrees filed in two 
cases: NRDC v. Browner, No. 99-2976 (D.D.C.) and Midwest Ozone Group v. 
EPA, No. 00-1047 (D.D.C.). In NRDC, the consent decree provides that by 
November 15, 2000, EPA shall propose a federal implementation plan 
(FIP) for the Springfield, Massachusetts; Greater Connecticut; and 
Metropolitan Washington D.C. nonattainment areas if EPA has not 
approved full attainment demonstration SIP for that area. The consent 
decree for Midwest Ozone Group is similar, but not identical. It 
provides that EPA shall propose federal implementation plans (FIPs) for 
two of the three nonattainment areas--Springfield, Massachusetts and 
Greater Connecticut--if EPA has not proposed approval of a full 
attainment demonstration SIP for that area. The EPA met its obligation 
under the Midwest Ozone Group decree when it proposed approval of the 
full attainment demonstration SIPs for those two areas on Dec. 16, 
1999. 64 FR 70319 and 64 FR 70332. On November 6, 2000, the District 
Court granted EPA's unopposed motion to extend the deadline for action 
under the NRDC decree until December 15, 2000 for each of the three 
areas. On December 7, 2000, the court further extended the date for EPA 
action with respect to Springfield until December 22, 2000. The EPA has 
complied with the NRDC consent decree with respect to the Greater 
Connecticut and Metropolitan Washington D.C. areas. The appropriate 
Regional Administrator signed a final rulemaking action approving the 
full attainment demonstration SIPs for those two areas on December 15, 
2000. The EPA has complied with the NRDC consent decree with respect to 
the Springfield, Massachusetts because the Regional Administrator 
signed a final rulemaking action approving the full attainment 
demonstration SIP by December 22, 2000.
    Comment 9: Since EPA found that MA and CT failed to conduct an 
adequate RACM analysis, EPA must disapprove the SIPs and propose a FIP.
    Response 9: Although EPA found that MA and CT failed to conduct an 
adequate RACM analysis, EPA believes it does have authority to 
supplement the record and conclude that the SIPs for these two areas 
meet the RACM requirement of the CAA. See above the response to 
comment.

F. Reliance on Commitments and State Rules Not Yet Adopted

    Comment: Several commenters disagreed with the EPA's proposal to 
approve attainment demonstrations and rate-of-progress plans for the 
Springfield, Massachusetts, Greater Connecticut, and Metropolitan 
Washington, DC ozone nonattainment areas because not all of the 
emissions reductions credited in the demonstrations or plans are 
supported by legally enforceable limitations adopted and approved by 
the state or District and approved by the EPA as part of the SIP. 
Commenters also objected to accepting enforceable state commitments to 
adopt emission reduction control measures in the future in lieu of 
current adopted measures.
    Response: The EPA has approved previously, or is approving together 
with the attainment demonstrations, all outstanding emission reduction 
limitations relied on for attainment for these three areas. Thus, none 
of the three areas on which the EPA is approving have commitments to 
adopt emission reduction measures in the future and all emission 
reductions rules relied on for attainment have been fully approved by 
the EPA.

[[Page 690]]

G. Adequacy of Motor Vehicle Emissions Budgets

    Comment: On our December 16, 1999 proposed approval of the 
Springfield area attainment demonstration, we received comments about 
the process and substance of EPA's review of the adequacy of motor 
vehicle emissions budgets for transportation conformity purposes. 
Specifically, one commenter stated that they opposed any action to 
determine adequate motor vehicle emissions budgets that are derived 
from attainment demonstrations that do not provide for attainment. The 
commenter listed a number of reasons why the submitted SIP contains an 
inadequate attainment demonstration. The commenter stated that EPA 
cannot find the motor vehicle emissions budgets adequate based on the 
record before EPA.
    Response: At the time this comment was received, EPA's adequacy 
process for the Springfield, Massachusetts area had already been 
completed. EPA sent a letter to Massachusetts on February 19, 1999 
finding the motor vehicle budgets submitted by the state on October 1, 
1998 adequate for use in transportation conformity determinations. On 
June 10, 1999 (64 FR 31217), EPA notified the public that we had found 
the 2003 VOC and NO<INF>X</INF> motor vehicle emission budgets 
submitted by Massachusetts on October 1, 1998 adequate for conformity 
purposes. These budgets became effective on February 19, 1999. 
Elsewhere in the Response to Comments, we have addressed all of the 
comments received on whether the submitted SIP contains an adequate 
attainment demonstration. Those include comments on the weight of 
evidence approach; the attainment date extension policy; the 
implementation of the 9% rate of progress requirements; credit for 
unapproved and unenforceable measures; credit from national rules; the 
acceptability of the fleet mix used in establishing budgets; and 
whether all reasonably available control measures have been 
implemented.

H. Rate of Progress Motor Vehicle Emissions Inventory

    Comment: Several commenters stated that the motor vehicle emissions 
inventory is not current, particularly with respect to the fleet mix. 
Commenters stated that the fleet mix does not accurately reflect the 
growing proportion of sport utility vehicles and gasoline trucks, which 
pollute more than conventional cars. Also, a commenter stated that EPA 
and states have not followed a consistent practice in updating SIP 
modeling to account for changes in vehicle fleets. For these reasons, 
commenters recommend disapproving the SIPs.
    Response: The Massachusetts SIP we are taking final action on is 
based on the most recent vehicle registration data available at the 
time the SIP was submitted. The Massachusetts SIP is based on vehicle 
registration data from 1996, which is the most recent data available at 
the time the SIP was submitted. The SIP also contains vehicle fleet 
characteristics that are in the most recent periodic inventory update, 
which was submitted on November 9, 2000. EPA requires the most recent 
available data to be used, but we do not require it to be updated on a 
specific schedule. Therefore, different SIPs base their fleet mix on 
different years of data. Our guidance does not suggest that SIPs should 
be disapproved on this basis. Nevertheless, we do expect that revisions 
to these SIPs that are submitted using MOBILE6 (as required in those 
cases where the SIP is relying on emissions reductions from the Tier 2 
standards) will use updated vehicle registration data appropriate for 
use with MOBILE6, whether it is updated local data or the updated 
national default data that will be part of MOBILE6.

I. VOC Emission Reductions

    Comment: For States that need additional VOC reductions, this 
commenter recommends a process to achieve these VOC emission 
reductions, which involves the use of HFC-152a (1,1 difluoroethane) as 
the blowing agent in manufacturing of polystyrene foam products such as 
food trays and egg cartons. HFC-152a could be used instead of 
hydrocarbons, a known pollutant, as a blowing agent. Use of HFC-152a, 
which is classified as VOC exempt, would eliminate nationwide the 
entire 25,000 tons/year of VOC emissions from this industry.
    Response: EPA has met with the commenter and has discussed the 
technology described by the company to reduce VOC emissions from 
polystyrene foam blowing through the use of HFC-152a (1,1 
difluoroethane), which is a VOC exempt compound, as a blowing agent. 
Since the HFC-152a is VOC exempt, its use would give a VOC reduction 
compared to the use of VOCs such as pentane or butane as a blowing 
agent. However, EPA has not studied this technology exhaustively. It is 
each State's prerogative to specify which measures it will adopt in 
order to achieve the additional VOC reductions it needs. In evaluating 
the use of HFC-152a, States may want to consider claims that products 
made with this blowing agent are comparable in quality to products made 
with other blowing agents. Also the question of the over-all long term 
environmental effect of encouraging emissions of fluorine compounds 
would be relevant to consider. This is a technology which States may 
want to consider, but ultimately, the decision of whether to require 
this particular technology to achieve the necessary VOC emissions 
reductions must be made by each affected State. Finally, EPA notes that 
under the significant new alternatives policy (SNAP) program, created 
under CAA section 612, EPA has identified acceptable foam blowing 
agents many of which are not VOCs (http://www.epa.gov/ozone/title6/snap/).

J. Credit for Measures Not Fully Implemented

    Comment: States should not be given credit for measures that are 
not fully implemented. For example, the States are being given full 
credit for Federal coating, refinishing and consumer product rules that 
have been delayed or weakened.
    Response: Architectural and Industrial Maintenance (AIM) Coatings: 
On March 22, 1995 EPA issued a memorandum \14\ that provided that 
States could claim a 20% reduction in VOC emissions from the AIM 
coatings category in ROP and attainment plans based on the anticipated 
promulgation of a national AIM coatings rule. In developing the 
attainment and ROP SIPs for their nonattainment areas, States relied on 
this memorandum to estimate emission reductions from the anticipated 
national AIM rule. EPA promulgated the final AIM rule in September 
1998, codified at 40 CFR Part 59 Subpart D. In the preamble to EPA's 
final AIM coatings regulation, EPA estimated that the regulation will 
result in 20% reduction of nationwide VOC emissions from AIM coatings 
categories (63 FR 48855). The estimated VOC reductions from the final 
AIM rule resulted in the same level as those estimated in the March 
1995 EPA policy memorandum. In accordance with EPA's final regulation, 
States have assumed a 20% reduction from AIM coatings source categories 
in their attainment and ROP plans. AIM coatings manufacturers were 
required to be in compliance with the final

[[Page 691]]

regulation within one year of promulgation, except for certain 
pesticide formulations which were given an additional year to comply. 
Thus all manufacturers were required to comply, at the latest, by 
September 2000. Industry confirmed in comments on the proposed AIM rule 
that 12 months between the issuance of the final rule and the 
compliance deadline would be sufficient to ``use up existing label 
stock'' and ``adjust inventories'' to conform to the rule. 63 FR 48848 
(September 11, 1998). In addition, EPA determined that, after the 
compliance date, the volume of nonconforming products would be very low 
(less than one percent) and would be withdrawn from retail shelves 
anyway. Therefore, EPA believes that compliant coatings were in use by 
the Fall of 1999 and that it was appropriate for the States to take 
credit for those reductions in their SIPs.
---------------------------------------------------------------------------

    \14\ ``Credit for the 15 Percent Rate-of-Progress Plans for 
Reductions from the Architectural and Industrial Maintenance (AIM) 
Coating Rules,'' March 22, 1995, from John S. Seitz, Director, 
Office of Air Quality Planning and Standards to Air Division 
Directors, Regions I-X.
---------------------------------------------------------------------------

    Autobody Refinish Coatings Rule: Massachusetts has adopted its own 
regulation for Autobody Refinish Coatings and is not relying on the 
federal rule for this category. EPA approved Massachusetts' automotive 
refinishing rule on February 14, 1996 (61 FR 5696). The state assumed a 
40% control efficiency would be achieved from this rule. This is 
slightly higher than the amount of reduction estimated from EPA's final 
rule, ``National Volatile Organic Compound Emission Standards for 
Automobile Refinish Coatings,'' published on September 11, 1998 (63 FR 
48806). EPA is now estimating a 36% reduction from the national rule 
for previously unregulated areas.
    The slightly higher control efficiency for Massachusetts' rule is 
justified for two reasons. First, the Massachusetts rule contains 
standards requiring higher transfer efficiency for application 
equipment. These standards are not contained in the national rule, and 
will generate emission reductions not expected from the national rule. 
Second, the Massachusetts autobody rule does not include an exemption 
for laquer topcoats, like the national rule does. The Massachusetts 
rule includes an emission limit of 5.0 lbs VOC per gallon of coating 
for topcoats, generally, and a 5.2 lbs VOC per gallon of coating for 
three or four stage topcoats.
    Consumer Products Rule: Consistent with a June 22, 1995 EPA 
guidance,\15\ States have claimed a 20% reduction from this source 
category based on EPA's proposed rule. The final rule, ``National 
Volatile Organic Compound Emission Standards for Consumer Products,'' 
(63 FR 48819), published on September 11, 1998, has resulted in a 20% 
reduction after the December 10, 1998 compliance date. In the consumer 
products rule, EPA determined and the consumer products industry 
concurred, that a significant proportion of subject products have been 
reformulated in response to State regulations and in anticipation of 
the final rule. 63 FR 48819. That is, industry reformulated the 
products covered by the consumer products rule in advance of the final 
rule. Therefore, EPA believes that complying products in accordance 
with the rule were in use by the Fall of 1999 and that it was 
appropriate for the States to take credit for those reductions in their 
SIPs.
---------------------------------------------------------------------------

    \15\ ``Regulatory Schedule for Consumer and Commercial Products 
under Section 183(e) of the Clean Air Act,'' June 22, 1995, John S. 
Seitz, Director OAQPS, to Air Division Directors, Regions I-X.
---------------------------------------------------------------------------

K. Enforcement of Control Programs

    Comment: The attainment demonstrations do not clearly set out 
programs for enforcement of the various control strategies relied on 
for emission reduction credit.
    Response: State enforcement program elements are contained in SIP 
revisions previously approved by EPA under obligations for enforceable 
emission limitations set out in section 110 of the Clean Air Act. Once 
approved by the EPA, there is no need for states to readopt and 
resubmit their enforcement programs with each and every SIP revision 
generally required by other sections of the CAA.

L. Contingency Measures

    Comment: The SIP for the Springfield, Massachusetts ozone 
nonattainment area does not provide contingency measures to make up for 
any emission reduction shortfall, either in achievement of ROP 
milestones or for failure to attain, as required by sections 172(c)(9) 
and 182(c)(9)of the Clean Air Act.
    Response: The EPA believes the contingency measure requirements of 
Sections 172(c)(9) and 182(c)(9) are independent requirements from the 
attainment demonstration requirements under Sections 172(c)(1) and 
182(c)(2)(A) and the rate-of-progress (ROP) requirements under 
Secs. 172(c)(2) and 182(c)(2)(B). The contingency measure requirements 
are to address the event that an area fails to meet a ROP milestone or 
fails to attain the ozone NAAQS by the attainment date established in 
the SIP. The contingency measure requirements have no bearing on 
whether a state has submitted a SIP that projects attainment of the 
ozone NAAQS or the required ROP reductions toward attainment. The 
attainment or ROP SIP provides a demonstration that attainment or ROP 
requirements ought to be fulfilled, but the contingency measure SIP 
requirements concern what is to happen only if attainment or ROP is not 
actually achieved. The EPA acknowledges that contingency measures are 
an independently required SIP revision, but does not believe that 
submission of contingency measures is necessary before EPA may approve 
an attainment or ROP SIP. Also see the discussion of contingency 
measures in the extension of the attainment date policy section VII.A.
    The EPA has, however, examined the ROP and attainment SIPs for the 
Springfield Massachusetts nonattainment area. The following summarizes 
the EPA's findings for the Springfield Massachusetts area.
    The post-1996 ROP and attainment demonstration SIP for Springfield, 
Massachusetts does not specify any specific measures as contingency 
measures. The EPA approved the post-1996 ROP plan on November 15, 2000. 
65 FR 68896. Approval of the plan without contingency measures is 
appropriate as stated above. The EPA notes that there are surplus 
emission reductions from a number of programs which accrue reductions 
after 1999 and are beyond the 3 percent contingency measure requirement 
for ROP. The programs include: (1) The second phase of reformulated 
gasoline program, which started January 1, 2000: (2) continued 
implementation of the enhanced inspection and maintenance program, 
which started October 1, 1999 and isn't fully effective until four 
years later when two full cycles of vehicle testing have been 
completed; (3) continuing reductions from the California low emissions 
vehicle (LEV) program being implemented by Massachusetts; (4) 
continuing reductions from EPA's standards for a variety of off-road 
sources; and, (5) the NO<INF>X</INF> SIP call adopted by Massachusetts, 
which has a May 1, 2003 compliance date.
    The EPA notes that there are emission reduction measures that are 
not relied on or credited in the SIP for attainment which will continue 
to provide reductions after December 2003, the attainment date that EPA 
is approving for the area. They include the California low emissions 
vehicle 2 program adopted by Massachusetts which commences with 
reductions from medium-duty trucks in 2003 and from light-duty vehicles 
in 2004. Additionally, there are continuing reductions from EPA's 
standards for non-road sources.
    The EPA has analyzed the SIP for Springfield, Massachusetts and has

[[Page 692]]

estimated that the area's attainment demonstration contingency 
obligation would be approximately 2.2 tpsd NO<INF>X</INF>, and 1.5 tpsd 
VOC. Reductions from the federal non-road engine control program and 
the California LEV 2 program standards in 2004 are estimated to be at 
least 2.37 tpsd NO<INF>X</INF> and 1.65 tpsd VOC which would cover the 
contingency obligation for this area by May 2005 (the year following 
the time by which EPA must determine whether the area has 
attained).\16\ More details on EPA's contingency measure analysis are 
included in the docket for the rulemaking action. While there is not an 
approved SIP contingency measure that would apply if the state failed 
to attain, EPA believes that existing federally enforceable measures 
would provide the necessary substantive relief.
---------------------------------------------------------------------------

    \16\ EPA policy provides that contingency measures should 
achieve a 3 percent reduction in emissions in the year following an 
EPA determination of a failure to attain or to meet a progress 
requirement.
---------------------------------------------------------------------------

M. NO<INF>X</INF> Emissions Budget

    Comment: Since Connecticut and Massachusetts are significant 
contributors to other States' ozone nonattainment, EPA should require 
Connecticut and Massachusetts to make necessary reductions to attain 
the ozone standard within their States and neighboring States. The 
commenter objected to allowing Connecticut to increase its 
NO<INF>X</INF> emissions budget.
    Response: The states of Connecticut, Massachusetts and Rhode Island 
all submitted their SIPs in response to the NO<INF>X</INF> SIP call in 
late 1999, and EPA proposed approval of them all on July 12, 2000 (at 
65 FR 42900, 65 FR 42907, and 65 FR 42913 for CT, MA and RI, 
respectively). No public comments were received on those proposals. On 
October 20, 2000, final approval of Connecticut, Massachusetts and 
Rhode Island NO<INF>X</INF> SIP call SIPs was granted by EPA Region I's 
Regional Administrator. Approval of the SIPs will be codified at 40 CFR 
52.370(c)(86) for Connecticut, 40 CFR 52.1120(c)(124) for 
Massachusetts, and Table C of 40 CFR 52.2070 for Rhode Island. In our 
final approval, we said that we have determined the SIP revisions for 
these three states meet the air quality objectives of the 
NO<INF>X</INF> SIP call requirements EPA has published to date. Thus, 
we believe that Connecticut and Massachusetts have already adopted 
adequate emission control strategies to address 1-hour ozone transport 
for downwind areas. Furthermore, EPA has previously determined each of 
the 1-hour ozone nonattainment areas in eastern New England (i.e., 
Providence, Rhode Island; Boston-Lawrence-Worcester, Massachusetts-New 
Hampshire; Portsmouth-Dover-Rochester, New Hampshire; Manchester, New 
Hampshire; Cheshire County, New Hampshire; Portland, Maine; Lewiston-
Auburn, Maine, and Knox and Lincoln Counties, Maine) to have air 
quality meeting the 1-hour ozone standard. (See final actions published 
on June 5, 1998 (63 FR 31014), and June 9, 1999 (64 FR 30911).) Based 
on final data for some areas and preliminary data for others, EPA 
expects each of these areas to continue to be meeting the 1-hour ozone 
standard for the years 1998 through 2000.
    Furthermore, in February 1999, CT, MA, RI, and EPA signed a 
memorandum of understanding (i.e., ``the Three State MOU'') agreeing to 
redistribute the EGU portions of the three states' budgets, as well as 
the compliance supplement pool allocations, amongst themselves. Under 
the MOU, the combined 2007 controlled emission level and compliance 
supplement pool did not change for the three states, only the 
individual state EGU allocations and supplement pools were 
redistributed to provide additional flexibility among these three 
states. EPA supports this concept because such a redistribution is no 
different than the effects of trading.
    When EPA reviewed whether each state was meeting the objectives of 
the NO<INF>X</INF> SIP call, we considered the adopted 2007 emission 
budgets and adopted NO<INF>X</INF> reducing measures in CT, MA and RI 
together and found them as meeting the air quality objectives of the 
NO<INF>X</INF> SIP Call. The issue of whether the redistribution was 
appropriate was considered and decided during the rulemaking approving 
the NO<INF>X</INF> SIPs.

N. Lack of Fully Approved Rules

    Comment: Springfield, MA, does not have final full approval of 
Stage II vapor recovery rules or enhanced I/M.
    Response: EPA approved the Massachusetts enhanced inspection and 
maintenance SIP on November 16, 2000 (65 FR 69254). EPA approved the 
revised Stage II regulations on December 18, 2000 (65 FR 78974).
    Other information and rationale for EPA's action are explained in 
the NPR and will not be restated here.

VIII. EPA Action

    As described above, EPA does not believe any of the comments 
received on the proposals published for the attainment demonstration 
and attainment date extension for the Springfield, Massachusetts area 
change the basis for our proposed approval. Thus, EPA is approving the 
ground-level one-hour ozone attainment demonstration SIP for the 
Springfield, Massachusetts ozone nonattainment area. EPA is also 
approving the attainment date extension for this area until December 
31, 2003. This revision also approves the 2003 volatile organic 
compound and nitrogen oxide motor vehicle emissions budgets for the 
Springfield, Massachusetts serious ozone nonattainment area for use in 
transportation conformity.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any State implementation plan. Each request for revision to 
the State implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

IX. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this 
rule also does not significantly or uniquely affect the communities of 
tribal governments, as specified by Executive Order 13084 (63 FR 27655, 
May 10, 1998). This rule will not have substantial direct effects on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it is not economically significant.

[[Page 693]]

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

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: December 21, 2000.
Mindy S. Lubber,
Regional Administrator, EPA-New England.

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

PART 52--[AMENDED]

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

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

Subpart W--Massachusetts

    2. Section 52.1127 is amended by revising the table to read as 
follows:


Sec. 52.1127  Attainment dates for national standards.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                                                           Pollutant
                                             -------------------------------------------------------------------
         Air quality control region                       SO<INF>2</INF>
                                             ----------------------------   PM<INF>10</INF>       NO<INF>2</INF>       CO        O<INF>3</INF>
                                                 Primary      Secondary
----------------------------------------------------------------------------------------------------------------
AQCR 42: Hartford-New Haven-Springfield
 Interstate Area (See 40 CFR 81.26)
    All portions except City of Springfield.          (a)           (b)       (a)       (a)       (a)       (e)
    City of Springfield.....................          (a)           (b)       (a)       (a)       (c)       (e)
AQCR 117: Berkshire Intrastate Area (See 40           (a)           (b)       (a)       (a)       (a)       (e)
 CFR 81.141)................................
AQCR 118: Central Mass Intrastate Area (See
 40 CFR 81.142)
    All portions except City of Worcester...          (a)           (b)       (a)       (a)       (a)       (d)
    City of Worcester.......................          (a)           (b)       (a)       (a)       (c)       (d)
AQCR 119: Metropolitan Boston Intrastate
 Area (See 40 CFR 81.19)
    All portions except City of Waltham.....          (a)           (b)       (a)       (a)       (a)       (d)
    City of Waltham.........................          (a)           (b)       (a)       (a)       (c)       (d)
AQCR 120: Metropolitan Providence Interstate          (a)           (b)       (a)       (a)       (a)       (d)
 Area (See 40 CFR 81.31)....................
AQCR 121: Merrimack Valley-Southern NH
 Interstate Area (See 40 CFR 81.81)
    All portions except City of Lowell......          (a)           (b)       (a)       (a)       (a)       (d)
    City of Lowell..........................          (a)           (b)       (a)       (a)       (c)      (d)
----------------------------------------------------------------------------------------------------------------
a. Air quality levels presently below primary standards or area is unclassifiable.
b. Air quality levels presently below secondary standards or area is unclassifiable.
c. December 31, 1995.
d. November 15, 1999.
e. December 31, 2003.


    3. Section 52.1129 of subpart W is amended by designating the 
existing text as paragraph (a) and by adding paragraph (b) to read as 
follows:


Sec. 52.1129  Control strategy: Ozone.

* * * * *
    (b) Approval--Revisions to the State Implementation Plan submitted 
by the Massachusetts Department of Environmental Protection on July 27, 
1998, October 1, 1998 and August 13, 1999. The revisions are for the 
purpose of satisfying the attainment demonstration requirements of 
section 182(c)(2)(A) of the Clean Air Act, for the Springfield (Western 
Massachusetts) serious ozone nonattainment area. The revision 
establishes an attainment date

[[Page 694]]

of December 31, 2003 for the Springfield, Massachusetts serious ozone 
nonattainment area. This revision establishes motor vehicle emissions 
budgets for 2003 of 23.77 tons per day of volatile organic compounds 
(VOC) and 49.11 tons per day of nitrogen oxides ( NO<INF>X</INF>) to be 
used in transportation conformity in the Springfield, Massachusetts 
serious ozone nonattainment area.
[FR Doc. 01-38 Filed 1-2-01; 8:45 am]
BILLING CODE 6560-50-P