[Federal Register Volume 64, Number 57 (Thursday, March 25, 1999)]
[Notices]
[Pages 14441-14444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7332]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6315-1]


Extension of Attainment Dates for Downwind Transport Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; proposed interpretation; request for comments.

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SUMMARY: Today's document announces EPA's interpretation of the Clean 
Air Act (Act) regarding the possibility of extending attainment dates 
for ozone nonattainment areas that have been classified as moderate or 
serious for the 1-hour standard and which are downwind of areas that 
have interfered with their ability to demonstrate attainment by dates 
prescribed in the Act. The guidance memorandum that is being printed in 
today's notice is entitled ``Extension of Attainment Dates for Downwind 
Transport Areas'' and was signed by Richard D. Wilson, Acting Assistant 
Administrator for Air and Radiation, on July 16, 1998. This notice 
follows up on the statement made in the guidance memorandum that EPA 
would request comments on its interpretation.
    A number of areas may find themselves facing the prospect of being 
reclassified or ``bumped up'' to a higher classification in spite of 
the fact that pollution beyond their control contributes to the levels 
of ozone they experience. The notice addresses the problem by providing 
an avenue to extend the attainment dates for areas affected by 
transported pollution. The EPA intends to finalize the interpretation 
in this guidance only when it applies in the appropriate context of 
individual rulemakings addressing specific attainment demonstrations 
and requests for attainment date extensions. If EPA approves an area's 
attainment demonstration and attainment date extension request, the 
area would no longer be subject to bump up for failure to attain by its 
original attainment date.

DATES: The EPA is establishing an informal 30-day comment period for 
today's notice, ending on April 26, 1999.


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ADDRESSES: Documents relevant to this action are available for 
inspection at the Air and Radiation Docket and Information Center 
(6101), Attention: Docket No. A-98-47, U.S. Environmental Protection 
Agency, 401 M Street, SW, Room M-1500, Washington, DC 20460, telephone 
(202) 260-7548, between 8:00 a.m. and 4:00 p.m., Monday through Friday, 
excluding legal holidays. A reasonable fee may be charged for copying. 
Written comments should be submitted to this address.

FOR FURTHER INFORMATION CONTACT: Denise Gerth, Air Quality Strategies 
and Standards Division, Office of Air Quality Planning and Standards, 
U.S. Environmental Protection Agency, MD-15, Research Triangle Park, NC 
27711, telephone (919) 541-5550.

SUPPLEMENTARY INFORMATION: On July 16, 1998, the following guidance was 
issued by Richard Wilson, Acting Assistant Administrator for Air and 
Radiation. It should be noted that the July 16, 1998 memorandum 
reprinted in this notice refers to EPA's proposed NOX SIP 
call. After the memorandum was signed, EPA took final action on the SIP 
call and promulgated a final rule. See 63 FR 57356 (October 27, 1998).

Guidance on Extension of Attainment Dates for Downwind Transport 
Areas

Preface

    The purpose of this guidance is to set forth EPA's current views on 
the issues discussed herein. EPA intends soon to set out its 
interpretation in an advance notice of proposed rulemaking on which the 
Agency will take comment.
    While EPA intends to proceed under the guidance that it is setting 
out today, the Agency will finalize this interpretation only when it 
applies in the appropriate context of individual rulemakings addressing 
specific attainment demonstrations. At that time and in that context, 
judicial review of EPA's interpretation would be available.

Introductory Summary

    A number of areas in the country that have been classified as 
moderate or serious nonattainment areas for the 1-hour ozone standard 
are affected by pollution transported from upwind areas. For these 
downwind areas, transport from upwind areas has interfered with their 
ability to demonstrate attainment by the dates prescribed in the Clean 
Air Act (Act). As a result, many of these areas find themselves facing 
the prospect of being reclassified, or ``bumped up,'' to a higher 
nonattainment classification in spite of the fact that pollution that 
is beyond their control contributes to the levels of ozone they 
experience. In the policy being issued today, EPA is addressing this 
problem by planning to extend the attainment date for an area that is 
affected by transport from either an upwind area with a later 
attainment date or an upwind area in another State that significantly 
contributes to downwind nonattainment, as long as the downwind area has 
adopted all necessary local measures, and has submitted an approvable 
attainment plan to EPA which includes those local measures. (By 
``affected by transport,'' EPA means an area whose air quality is 
affected by transport from an upwind area to a degree that affects the 
area's ability to attain.) EPA intends to initiate rulemaking for each 
area seeking such relief and contemplates providing such relief to 
those who qualify. If after consideration of public comments EPA acts 
to approve an area's attainment demonstration and extend its attainment 
date, the area will no longer be subject to reclassification or ``bump-
up'' for failure to attain by its otherwise applicable attainment date.

Background

    The Act may be interpreted to allow a later attainment date than 
generally applicable to a particular ozone nonattainment area if 
transport of ozone or its precursors (nitrogen oxides (NOX) 
and volatile organic compounds (VOCs)) prevents timely attainment. This 
principle has already been advanced in EPA's Overwhelming Transport 
Policy, which allowed a downwind area to assume the later attainment 
date if it could meet certain criteria, including a demonstration that 
it would have attained ``but for'' transport from an upwind 
nonattainment area with a later attainment date. See Memorandum from 
Mary D. Nichols, Assistant Administrator for Air and Radiation, 
entitled, ``Ozone Attainment Dates for Areas Affected by Overwhelming 
Transport,'' September 1, 1994. In the four years since the issuance of 
that memorandum, the history of the efforts to analyze and control 
ozone transport has led EPA to believe that it should expand the 
policy's reach to ensure that downwind areas are not unjustly penalized 
as a result of transport.
    In March 1995, EPA called for a collaborative, Federal-State 
process for assessing the regional ozone transport problem and 
developing solutions, and the Ozone Transport Assessment Group (OTAG) 
was subsequently formed. See Memorandum from Mary D. Nichols, Assistant 
Administrator for Air and Radiation, entitled ``Ozone Attainment 
Demonstrations,'' March 2, 1995. The OTAG was an informal advisory 
committee with representatives from EPA, thirty-seven states in the 
Midwestern and eastern portions of the country, and industry and 
environmental groups. OTAG's major functions included developing 
computerized modeling analyses of the impact of various control 
measures on air quality levels throughout the region and making 
recommendations as to the appropriate ozone control strategy. Based on 
OTAG's modeling analyses, it developed recommendations concerning 
control strategies. These recommendations, issued in mid-1997, called 
upon EPA to calculate the specific reductions needed from upwind areas.
    In November 1997, using OTAG's technical work, EPA issued a 
proposed NOX State implementation plan (SIP) call, directing 
certain States to revise their SIPs in order to satisfy section 
110(a)(2)(D) by reducing emissions of NOX to specified 
levels, which in turn will reduce the amounts of ozone being 
transported into nonattainment areas from upwind areas. 62 FR 60318 
(November 7, 1997). In July 1997, the EPA promulgated a revised 8-hour 
ozone NAAQS. 62 FR 38856 (July 18, 1997). That promulgation included 
regulations providing that the 1-hour NAAQS would be phased out, and 
would no longer apply to an area once EPA determined that the area had 
air quality meeting the 1-hour standard. 40 CFR 50.9(b). Until the 1-
hour standard is revoked for a particular area, the area must continue 
to implement the requirements aimed at attaining that standard.

The Current Problem

    The Act called on areas classified as moderate ozone nonattainment 
areas to submit SIPs that demonstrate attainment by 1996 (unless they 
receive an extension), and called on serious nonattainment areas to 
demonstrate attainment by November 1999 (unless they receive an 
extension). Section 181 and 182(b) and (c). For many of these areas, 
EPA has preliminarily determined in the proposed SIP call that 
transport from upwind areas is contributing to their nonattainment 
problems. Such transport also appears to be interfering with their 
ability to demonstrate attainment by the statutory attainment dates.
    The graduated control scheme in sections 181 and 182 of the Act 
expressed Congress's intent that areas be assigned varying attainment 
dates, depending upon the severity of the air quality problem they 
confront. Sections 181 and 182 provide for attainment ``as 
expeditiously as practicable,'' but

[[Page 14443]]

establish later deadlines for attainment in more polluted areas, and 
additional control measures that the more polluted areas must 
accomplish over the longer time frame. Thus, many of the upwind areas 
have later attainment dates than the downwind areas which are affected 
by emissions from the upwind States. On the other hand, section 
110(a)(2)(D)(i)(I) of the Act requires SIPs to prohibit ``consistent 
with the other provisions of [title I],'' emissions which will 
``contribute significantly to nonattainment in * * * any other State.'' 
The EPA interprets section 110(a)(2)(A) to incorporate the same 
requirement in the case of intrastate transport. Sections 176A and 184 
provide for regional ozone transport commissions that may recommend 
that EPA mandate additional regional control measures to allow areas to 
reach timely attainment in accordance with section 110(a)(2)(D)(i)(I).
    These provisions demonstrate Congressional intent that upwind areas 
be responsible for preventing interference with timely downwind 
attainment. They must be reconciled with express Congressional intent 
that more polluted areas be allotted additional time to attain. As EPA 
pointed out in its overwhelming transport policy, Congress does not 
explicitly address how these provisions are to be read together to 
resolve the circumstance where more polluted upwind areas interfere 
with timely attainment downwind, during the time provided for those 
upwind areas to reduce their own emissions.
    In the 1994 overwhelming transport policy, EPA stated that it would 
harmonize these provisions to avoid arguably absurd or odd results and 
to give effect to as much of Congress' manifest intent as possible. The 
EPA struck a balance in the overwhelming transport policy by requiring 
that the upwind and downwind areas reduce their contribution to the 
nonattainment problem while avoiding penalizing the downwind areas for 
failure to do the impossible.
    In the 1994 policy, EPA reasoned that Congress did not intend the 
section 110(a)(2)(D)(i)(I) obligation to supersede the practicable 
attainment deadlines and graduated control scheme in sections 181 and 
182, especially since section 110(a)(2)(D)(i)(I) specifically applies 
only ``to the extent consistent with the provisions of [title I].'' The 
same rationale applies in the intrastate context under section 
110(a)(2)(A).
    Developments since the issuance of the overwhelming transport 
policy in 1994 have prompted EPA once again to interpret these 
provisions so that they can be reconciled in light of existing 
circumstances. Since the issuance of that policy, EPA and the States, 
through OTAG, have made significant progress in addressing interstate 
transport in the eastern United States, and have worked to analyze the 
flow of transport and to allocate among the States their respective 
responsibilities for control. During the period required for this 
effort, which took longer than was anticipated, the resolution of the 
regional transport issue was held in abeyance. The effort to address 
regional transport recently resulted in EPA's proposed NOx 
SIP call, expected to be finalized in the next few months. For areas in 
the OTAG region affected by transport, the conclusion of the OTAG and 
SIP call processes in September 1998 will result in assignments of 
responsibility that will assist in the design of SIPs and the formation 
and implementation of attainment demonstrations.
    Because EPA had not previously determined how much to require 
upwind States in the OTAG region to reduce transport, downwind areas 
were handicapped in their ability to determine the amounts of emissions 
reductions needed to bring about attainment. While operating in this 
environment of uncertainty, many of these downwind areas confronted 
near-term attainment dates. Moreover, as described in the 
NOX SIP call proposal, the reductions from the proposed 
NOX SIP call will not likely be achieved until at least 
2002, well after the attainment dates for many of the downwind 
nonattainment areas that depend on those reductions to help reach 
attainment.

The Solution

    The EPA believes that a fair reading of the Act would allow it to 
take these circumstances into account to harmonize the attainment 
demonstration and attainment date requirements for downwind areas 
affected by transport both with the graduated attainment date scheme 
and the schedule for achieving reductions in emissions from upwind 
areas. Thus, EPA will consider extending the attainment date for an 
area that:
    (1) Has been identified as a downwind area affected by transport 
from either an upwind area in the same State with a later attainment 
date or an upwind area in another State that significantly contributes 
to downwind nonattainment. (By ``affected by transport,'' EPA means an 
area whose air quality is affected by transport from an upwind area to 
a degree that affects the area's ability to attain);
    (2) Has submitted an approvable attainment demonstration with any 
necessary, adopted local measures and with an attainment date that 
shows that it will attain the 1-hour standard no later than the date 
that the reductions are expected from upwind areas under the final 
NOX SIP call and/or the statutory attainment date for upwind 
nonattainment areas, i.e., assuming the boundary conditions reflecting 
those upwind reductions;
    (3) Has adopted all applicable local measures required under the 
area's current classification and any additional measures necessary to 
demonstrate attainment, assuming the reductions occur as required in 
the upwind areas. (To meet section 182(c)(2)(B), serious areas would 
only need to achieve progress requirements until their original 
attainment date of November 15, 1999);
    (4) Has 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.
    EPA contemplates that when it acts to approve such an area's 
attainment demonstration, it will, as necessary, extend that area's 
attainment date to a date appropriate for that area in light of the 
schedule for achieving the necessary upwind reductions. The area would 
no longer be subject to reclassification or ``bump-up'' for failure to 
attain by its original attainment date under section 181(b)(2).

Legal Rationale

    The legal basis for EPA's interpretation of the attainment date 
requirements employs and updates the rationale invoked in the Agency's 
overwhelming transport policy. By filling a gap in the statutory 
framework, EPA's interpretation harmonizes the requirements of sections 
181 and 182 with the Act's requirements (sections 110(a)(2)(D)(i)(I), 
110(a)(2)(A), 176A and 184) on inter-area transport. It reconciles the 
principle that upwind areas are responsible for preventing interference 
with downwind attainment with the Congressional intent to provide 
longer attainment periods for areas with more intractable air pollution 
problems. It also takes into account the amount of time it will take to 
achieve emission reductions in upwind areas under the NOX 
SIP call, which EPA expects to finalize in September 1998.
    The EPA's resolution respects the intent of sections 181 and 182 to 
provide longer attainment dates for areas burdened with more onerous 
air pollution problems, while allowing

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reductions from upwind areas to benefit the downwind areas. Under EPA's 
interpretation, upwind areas will be required to reduce emissions to 
control transport, but should not find that the requirements imposed 
upon them amount to an acceleration of the time frames Congress 
envisioned for these areas in sections 181 and 182. Downwind areas will 
be provided additional time to accommodate the delayed control 
contributions from upwind areas, while at the same time being held 
accountable for all measures required to control local sources of 
pollution.
    The EPA's interpretation of the Act allows it to extend attainment 
dates only for those areas which are prevented from achieving timely 
attainment due to a demonstrated transport problem from upwind areas, 
and which submit attainment demonstrations and adopt local measures to 
address the pollution that is within local control. The EPA believes 
that Congress, had it addressed this issue, would not have intended 
downwind areas to be penalized by being forced to compensate for 
transported pollution by adopting measures that are more costly and 
onerous and/or which will become superfluous once upwind areas reduce 
their contribution to the pollution problem.
    This interpretation also recognizes that downwind areas in the OTAG 
region have been operating in a climate of uncertainty as to the 
allocation of responsibility for controlling transported pollution. 
Section 110(a)(2)(D) is not self-executing and, until the 
NOX SIP call rulemaking, 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. By allowing these areas to 
assume the boundary conditions reflecting reductions set forth in the 
NOX SIP call and/or reductions from the requirements 
prescribed for upwind nonattainment areas under the Act, EPA will hold 
upwind areas responsible for reducing emissions of transported 
pollution, and downwind areas will be obliged to adopt and implement 
local controls that would bring about attainment but for the 
transported pollution.
    The EPA's interpretation harmonizes the disparate provisions of the 
Act. It avoids accelerating the obligations of the upwind States so 
that downwind States can meet earlier attainment dates, which would 
subvert Congressional intent to allow upwind areas with more severe 
pollution longer attainment time frames to attain the ozone standards. 
In addition, EPA's interpretation of the Act takes into account the 
fact that, under the SIP call, upwind area reductions will not be 
achieved until after the attainment dates for moderate and serious 
ozone nonattainment areas. To refuse to interpret the Act to accomplish 
this would unduly penalize downwind areas by requiring them to 
compensate for the transported pollution that will be dealt with by 
controls adopted in response to the requirements of the NOX 
SIP call or to achieve attainment in an upwind area. The EPA is thus 
interpreting the requirements to allow the Agency to grant an 
attainment date extension to areas that submit their attainment 
demonstrations and all adopted measures necessary locally to show 
attainment. This solution preserves the responsibility of these 
downwind areas to prepare attainment demonstrations and adopt measures, 
but does not penalize them for failing to achieve timely attainment by 
reclassifying them upwards, since such attainment was foreclosed by 
transport beyond their control.
    Under this policy, once EPA has acted to approve the attainment 
demonstration and extend the area's attainment date, the area would no 
longer be subject to reclassification or ``bump-up'' for failure to 
attain by its original attainment date under section 181(b)(2).
    The EPA requests comment on the interpretation in the guidance 
memorandum reprinted above.

    Dated: March 18, 1999.
Robert D. Brenner,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 99-7332 Filed 3-24-99; 8:45 am]
BILLING CODE 6560-50-P