[Federal Register Volume 66, Number 2 (Wednesday, January 3, 2001)]
[Rules and Regulations]
[Pages 634-663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-62]



[[Page 633]]

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Part VI





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 
Greater Connecticut Ozone Nonattainment Area; Final Rule

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

[[Page 634]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CT056-7215b; FRL-6924-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Connecticut; One-Hour Ozone Attainment Demonstration and Attainment 
Date Extension for the Greater Connecticut Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of Connecticut. This action approves 
Connecticut's One-Hour Ozone Attainment Demonstration for the Greater 
Connecticut serious nonattainment area and extends the attainment date 
for this area until November 15, 2007. This approval of the attainment 
demonstration SIP establishes the 2007 volatile organic compound (VOC) 
and nitrogen oxide (NOX) motor vehicle emissions budgets for 
the Greater Connecticut serious ozone nonattainment area for use in 
transportation conformity. A notice of proposed rule making was 
published on this action on December 16, 1999 (64 FR 70332). EPA 
received comments on that proposal as well as other supplemental 
proposals for this action. In this action, EPA responds to those 
comments.

EFFECTIVE DATE: This rule becomes 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, DC; and the Bureau of Air Management, 
Department of Environmental Protection, State Office Building, 79 Elm 
Street, Hartford, CT 06106-1630.

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

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

I. What Connecticut SIP revision is the topic of this action?
II. What previous action has been taken on this SIP revision?
III. What are the requirements for full approval of the attainment 
demonstration?
IV. How did Connecticut fulfill these requirements for full 
approval?
V. What SIP elements did EPA need to take action on before full 
approval of the attainment demonstration could be granted?
VI. What comments were received on the proposed approvals and how 
has EPA responded to those?
VII. EPA action
VIII. Administrative requirements

I. What Connecticut SIP Revision is the Topic of This Action?

    An attainment demonstration SIP was submitted on September 16, 1998 
by the Connecticut Department of Environmental Protection for the 
Greater Connecticut one-hour serious ozone nonattainment area. The SIP 
revision was subject to public notice and comment by the State and a 
hearing was held in May 1998. Connecticut also requested an attainment 
date extension for this area in its September 1998 submittal. The State 
requested a new attainment date of November 15, 2007. On February 8, 
2000, Connecticut DEP submitted an addendum to the ozone attainment 
demonstration for the Greater Connecticut nonattainment area. The 
addendum was submitted in response to requirements EPA articulated as 
necessary for full approval in its proposed rulemaking on the September 
16, 1998 attainment demonstration SIP.

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

    EPA published a Notice of Proposed Rulemaking (NPR) for the State 
of Connecticut's Greater Connecticut area's ozone attainment 
demonstration on December 16, 1999 (64 FR 70332). In that action, EPA 
proposed to approve the ozone attainment demonstration submitted by the 
State, and proposed to approve an attainment date extension for the 
Greater Connecticut nonattainment area to November 15, 2007. EPA also 
proposed, in the alternative, to disapprove the attainment 
demonstration if Connecticut did not submit an adequate motor vehicle 
emissions budget consistent with attainment. Also, on December 16, 
1999, EPA proposed to approve and/or conditionally approve or 
disapprove in the alternative the attainment demonstration SIPs for 
nine other areas in the eastern United States (64 FR 70317).
    On February 22, 2000 (65 FR 8703), EPA published a notice of 
availability announcing two guidance memoranda relating to the ten one-
hour ozone attainment demonstrations (including Greater Connecticut) 
proposed for approval or conditional approval on December 16, 1999. The 
guidance memoranda are entitled: ``Guidance on Motor Vehicle Emissions 
Budgets in One-Hour Ozone Attainment Demonstrations,'' dated November 
3, 1999, and ``Guidance on the Reasonably Available Control Measures 
(RACM) Requirement and Attainment Demonstration Submissions for Ozone 
Nonattainment Areas,'' dated November 30, 1999.
    On June 16, 2000 (65 FR 37778), EPA notified the public that we had 
found the 2007 VOC and NOX motor vehicle emission budgets 
submitted by Connecticut on February 8, 2000 adequate for conformity 
purposes. A public comment period was held on these budgets when they 
were posted at www.epa.gov/oms/transp/conform/currsips.htm. The public 
comment period began on February 14, 2000, and closed on March 20, 
2000. No public comments were received by EPA during the public comment 
period offered by EPA on the specific transportation conformity budgets 
submitted by Connecticut DEP on February 8, 2000. EPA did, however, 
receive comments that opposed EPA determining budgets submitted by 
Connecticut adequate for transportation conformity purposes when we 
originally proposed approval of the Greater Connecticut attainment 
demonstration on December 16, 1999. EPA responded to all of those 
comments before determining the 2007 budgets adequate. A copy of the 
response to comments is available at http://www.epa.gov/oms/transp/
conform/resp__ct.pdf.
    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 Greater Connecticut) 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

[[Page 635]]

ozone nonattainment areas (which includes Greater Connecticut). In this 
supplemental notice, EPA made available an analysis it had performed to 
evaluate emission levels of oxides of nitrogen (NOX) 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 or Act) required measures in the four serious ozone nonattainment 
areas (i.e., Greater Connecticut; Western Massachusetts; Washington, 
D.C.; and Atlanta, Georgia).
    As explained in the supplemental notice, EPA performed this 
analysis in response to comments that were submitted on the proposals 
for 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 Greater Connecticut attainment demonstration 
and attainment date extension are discussed in section VI below.

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

    In the NPR for the Greater Connecticut attainment demonstration SIP 
published on December 16, 1999, EPA proposed, in the alternative, to 
disapprove the attainment demonstration if Connecticut did not submit 
an adequate motor vehicle emissions budget consistent with attainment. 
EPA also said it will require Connecticut to incorporate the Tier 2/
Sulfur requirements into the attainment demonstration in order to fully 
approve the attainment demonstration. This was based on the view that 
the Tier 2/Sulfur program benefits were needed to improve the state's 
weight-of-evidence analysis. EPA stated that it expected Connecticut to 
revise and submit its motor vehicle emissions budgets to account for 
Tier 2 reductions before final approval of the attainment 
demonstration, and to commit to further revise those motor vehicle 
emissions budgets within one year of when EPA issues the MOBILE6 model 
for estimating mobile source emissions. Lastly, EPA required 
Connecticut DEP to amend the enforceable commitment it submitted with 
its attainment demonstration to submit a mid-course review (MCR). EPA 
said that in order for EPA to move forward to approve the Greater 
Connecticut attainment demonstration, Connecticut will have to agree to 
perform the MCR immediately following the 2003 ozone season and to 
submit the results to EPA by December 31, 2003.
    As discussed in section IV below, Connecticut has met all of the 
above requirements for full approval of its attainment demonstration 
for the Greater Connecticut area.

IV. How Did Connecticut Fulfill These Requirements for Full 
Approval?

    On February 8, 2000, Connecticut DEP submitted an addendum to the 
ozone attainment demonstrations for the Greater Connecticut serious 
nonattainment area and for Connecticut portion of the New York-Northern 
New Jersey-Long Island severe ozone nonattainment area. The addendum 
was submitted in response to requirements EPA articulated as necessary 
for full approval in its proposed rulemakings on the two attainment 
demonstration SIPs. A public hearing on the addendum was held by the 
Connecticut DEP in January 2000. This addendum to the SIP, as it 
pertains to the Greater Connecticut serious nonattainment area, is 
being approved in this final action. The addendum to the SIP, as it 
pertains to the Connecticut portion of the New York-Northern New 
Jersey-Long Island severe ozone nonattainment area, will be dealt with 
in a future rulemaking action.
    The February 8, 2000 addendum contained 2007 VOC and NOX 
motor vehicle emissions budgets for the Greater Connecticut serious 
nonattainment area. The motor vehicle emissions budgets were calculated 
to be consistent with requirements Connecticut is relying on in its 
attainment demonstration for the Greater Connecticut area. Connecticut 
also incorporated credit for the Tier 2/sulfur program in calculating 
the emissions budgets consistent with the issued November 8, 1999 
memorandum entitled ``1-Hour Ozone Attainment Demonstrations and Tier 
2/Sulfur Rulemaking'' from Lydia Wegman, Office of Air Quality Planning 
and Standards and Merrylin Zaw-Mon, Office of Mobile Sources. The motor 
vehicle emissions budgets for 2007 for VOC and NOX submitted 
by Connecticut are shown in Table 1.

             Table 1--2007 Transportation Conformity Budgets
------------------------------------------------------------------------
                                                       VOC        NOX
         One-hour ozone nonattainment area            (tons/     (tons/
                                                       day)       day)
------------------------------------------------------------------------
Greater Connecticut...............................       30.0       79.6
------------------------------------------------------------------------

    EPA sent a letter to Connecticut DEP on May 31, 2000 finding these 
budgets adequate for use in transportation conformity determinations. 
Our adequacy determination was done subsequent to EPA offering an 
opportunity for public comment on the Connecticut budgets and 
addressing all relevant comments received. The public comment period 
began on these budgets when they were posted on EPA's web site at 
www.epa.gov/oms/transp/conform/currsips.htm. The public comment period 
began on February 14, 2000, and closed on March 20, 2000, and no public 
comments were received by EPA during this period. As explained 
previously, EPA did receive comments that opposed EPA determining 
adequate the budgets submitted by Connecticut for transportation 
conformity purposes during the original comment period on the proposed 
approval of the Greater Connecticut attainment demonstration. EPA 
responded to all of those comments before determining the 2007 budgets 
adequate. A copy of the response to comments is available at http://
www.epa.gov/oms/transp/conform/resp__ct.pdf.
    On June 16, 2000 (65 FR 37778), EPA notified the public that we had 
found the 2007 VOC and NOX motor vehicle emission budgets 
submitted by Connecticut on February 8, 2000 adequate for conformity 
purposes. These budgets became effective on July 3, 2000. In today's 
action, EPA is approving these budgets into the SIP.
    The budgets that we are approving into the SIP in today's action 
should be used for transportation conformity purposes until revised 
motor vehicle emissions budgets are submitted and EPA has found them 
adequate. The budgets we are approving today as part of the attainment 
demonstration will apply for conformity purposes until there are new, 
adequate budgets consistent with the commitments to revise the budgets. 
Connecticut has committed in its February 8, 2000 addendum to the 
attainment demonstration to revise their VOC and NOX 
transportation conformity budgets within one year of the release of 
MOBILE6. These revised budgets will apply for conformity purposes as 
soon

[[Page 636]]

as we find them adequate. EPA is approving that commitment in today's 
action. If the State fails to meet its commitment to submit revised 
budgets using MOBILE6, EPA could make a finding of failure to implement 
the SIP, which would start a sanctions clock under Clean Air Act 
section 179. Once we have confirmed that the revised budgets are 
adequate, they will be more appropriate than the budgets we are 
approving for conformity purposes now.
    If the revised budgets raise issues about the sufficiency of the 
attainment demonstration, EPA will work with States on a case-by-case 
basis. If the revised budgets show that motor vehicle emissions are 
lower than the budgets we are approving today, a reassessment of the 
attainment demonstration's analysis will be necessary before 
reallocating the emission reductions or assigning them to the motor 
vehicle emissions budget as a safety margin. In other words, the area 
must assess how its original attainment demonstration is impacted by 
using MOBILE6 vs. MOBILE5 before it reallocates any apparent motor 
vehicle emission reductions resulting from the use of MOBILE6.
    The Addendum also includes Connecticut's analysis of the future air 
quality design value for the Greater Connecticut serious nonattainment 
area, which is identical to the EPA analysis found in the Technical 
Support Document to the notice of proposed rulemaking published 
December 16, 1999. This analysis supports the contention outlined in 
the notice of proposed rulemaking that additional emission controls 
beyond the benefits of the Tier 2/Sulfur program are not expected to be 
needed for the Greater Connecticut area to demonstrate attainment.
    Lastly, the February 8, 2000 addendum contains a commitment by 
Connecticut to conduct a mid-course review to assess modeling and 
monitoring progress achieved towards the goal of attainment by 2007. 
Connecticut has committed to perform the review and submit the results 
to EPA by December 31, 2003. EPA is approving that commitment in 
today's action.

V. 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 Connecticut attainment demonstration SIP 
published on December 16, 1999, EPA stated that it intended to publish 
final rulemaking on VOC RACT pursuant to sections 182(b)(2)(A) and (C) 
of Clean Air Act, the 9% rate of progress plan through 1999, the State 
opt-in to the National Low Emission Vehicle program, and the 
NOX SIP call SIP for the Greater Connecticut area either 
before or at the same time as publication of final approval of the 
attainment demonstration. These measures are needed to fully approve 
the attainment demonstration and the attainment date extension request.
    EPA approved the Connecticut VOC RACT rules pursuant to sections 
182(b)(2)(A) and (C) of Clean Air Act on October 19, 2000 (65 FR 
62620). EPA approved the Connecticut area's 9% rate of progress plan on 
October 19, 2000 (65 FR 62624). EPA approved Connecticut's opt in the 
National Low Emission Vehicle (NLEV) program on March 9, 2000 (65 FR 
12476). Lastly, the final approval of Connecticut's NOX SIP 
call SIP was granted by EPA Region I's Regional Administrator on 
October 20, 2000. As of December 15, 2000, this approval was awaiting 
publication. The approved SIP Call rule will be promulgated at 40 CFR 
52.370(c)(86).
    Additionally, subsequent to the December 16, 1999 proposal, EPA 
granted full approval to two other SIP elements in Connecticut. On 
March 9, 2000 (65 FR 12474), EPA approved Connecticut's Clean Fuel 
Fleets Substitute Plan as meeting the requirements of section 182(c)(4) 
of the Clean Air Act. On October 27, 2000 (65 FR 64357), EPA approved 
the Connecticut Enhanced Inspection and Maintenance program SIP 
converting it from a limited approval under the Clean Air Act to a full 
approval.

VI. 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 (NPR) published on December 16, 1999 (64 FR 70332) for the 
Greater Connecticut area's ozone attainment demonstration. Comments 
were received from the Conservation Law Foundation; Robert E. Yuhnke 
(Attorney for Environmental Defense and Natural Resources Defense 
Council); the Midwest Ozone Group; and ELM Packaging Company. The 
following discussion summarizes and responds to the comments received 
on the December 16, 1999 proposal. For convenience, the comments have 
been grouped into categories.
    EPA also received comments from the public 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 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 (NOX) 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. 
Comments applicable to the Greater Connecticut nonattainment area were 
received from the Midwest Ozone Group. The following discussion 
summarizes and responds to the 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 FR12221 (March 25, 1999), insofar as here relevant. This 
includes responses to comments filed by EarthJustice and incorporated 
by reference in later comments filed on proposed EPA actions 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 NOX 
reductions occur from upwind States in response to the NOX 
SIP call and/or section 126 actions. Such an extension is not 
authorized by any provision of the statute. It is not within EPA's 
discretion to extend the attainment dates for downwind areas classified 
as moderate or serious. The Act does not authorize EPA to extend 
attainment deadlines. 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

[[Page 637]]

one exceedance in the attainment year. In section 181(a)(5), Congress 
provided other authority for extending attainment dates, but not to 
address effects of transport. See sections 181(a)(5).
    Section 181(b)(2)(A) requires reclassification for failure to 
attain by the attainment date. Section 182 requires submissions 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 Act to permit such an 
extension. Nor do the specific attainment date extension provisions in 
the statute preclude EPA's interpreting the statute to allow for an 
extension to account for upwind transport that has interfered with 
downwind attainment. This interpretation is necessary to prevent the 
thwarting of Congressional intent not to unfairly burden downwind 
areas. In various parts of the statute, Congress expressed an intent to 
accomplish this through provisions prohibiting transport, but these 
provisions failed to achieve the Congressional goal in time to allow 
the downwind areas to meet their originally prescribed attainment 
dates.
    The provisions of section 182 governing reclassification also do 
not prohibit EPA from interpreting the Act to provide for an attainment 
date extension based on transport. EPA's policy of extending attainment 
dates for ozone nonattainment areas affected by transport of ozone and 
ozone precursors represents a reasonable effort to avoid the 
frustration of Congressional intent to which a literal application 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 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 Act 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 NOX 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, DC, Greater Connecticut 
and Springfield, MA. Nor could Congress intend that the upwind areas 
with later attainment dates

[[Page 638]]

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 Act and pollution that will soon be eliminated as 
a result of the NOX SIP call and by emissions reductions in 
upwind States with later attainment dates. Imposing on downwind areas 
the burden of controlling for pollution attributable to upwind sources 
would compound the inequities that Congress was seeking to avoid with 
the enactment of sections 110(a)(2)(D) and 126, thereby frustrating 
Congressional intent. Moreover, such a result would be 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 
NOX rules and a NOX exemption request under 
section 182(f). Although the Court did not use the theory advanced by 
EPA, the court did find that the Agency had authority under the CAA to 
extend the deadline. EPA had found that additional time would be needed 
for States to conduct photochemical grid modeling in order to document 
the effects of NOX reductions on an area. EPA had found that 
``the time needed to establish and implement a modeling protocol and to 
interpret the model results will, in a variety of cases, extend beyond 
the November 15, 1992 deadline for submission of NOX 
rules.''
    EPA thus extended the submission deadline, provided the States 
could show that modeling was not available or did not consider effects 
of NOX reductions and that the States submit progress 
reports on the modeling. The D.C. Circuit upheld EPA's extension of the 
deadline and of EPA's time to review the submissions and make an 
exemption determination. The Court found that ``because only a single 
NOX RACT submission is required under the statute, it is 
logical to infer that Congress intended data supporting exemptions to 
be included in that submittal and that the EPA have the full 14-18 
months to review them and to make an exemption determination.'' Even in 
the absence of explicit statutory authority, the Court held that ``had 
Congress foreseen the exemption timing problem, a matter outside the 
EPA's control, it would have elected to accord the EPA the full 
statutory review time.'' 22 F.3d at 1136. The court ruled that ``under 
the circumstances here the NOX RACT deadlines were properly 
extended to further the Clean Air Act's purposes.'' Id. At 1137.
    Here, similarly, EPA's and the States' inability, until the OTAG 
and NOX 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 
NOX submissions at issue in NRDC v. EPA, EPA has shown that 
the ability to document and analyze ozone transport was delayed. And as 
with the criteria imposed on areas seeking NOX submission 
extensions in NRDC, EPA has required analogous showings by the States, 
limiting the extensions to those areas that document a transport 
problem and that submit attainment demonstrations and adopt local 
measures to address the pollution that is within local control.
    As for section 182(i), it has no bearing on the authority of the 
Administrator with respect to the attainment date extensions at issue 
here. Section 182(i) applies to the authority of the Administrator 
after an area has been reclassified, and relates to the setting of an 
attainment date for the reclassified area. It does not apply to an area 
that is not being reclassified, but rather is being granted an 
extension of its attainment date that effectively defers the 
applicability of the reclassification provisions. Here, EPA is 
authorizing an attainment date extension to relieve an area from 
reclassification requirements, and thus 182(i) does not apply. The 
section explicitly applies to an area that has already been 
reclassified, and indicates nothing about the authority of the 
Administrator to extend an area's attainment date prior to a 
determination that the area must be reclassified. Nor does section 
182(i) indicate Congressional intent to deny EPA authority to interpret 
the Act consistently with provisions designed to prevent downwind areas 
from being forced to compensate for upwind pollution.

    Comment 2: The Act does not authorize EPA to extend the time for 
implementation of adopted local control measures. EPA's approach allows 
downwind areas to defer implementation of local measures until the 
extended attainment deadline, thereby precluding any determination that 
the local measures have achieved the degree of emission reduction 
necessary to provide for attainment when the upwind sources are 
controlled. EPA unlawfully proposes to allow attainment date extensions 
for downwind areas to implement local control measures. Under sections 
182(b)(1), 182(c)(2)(A), and 172(c)(1), downwind areas must provide for 
attainment of the NAAQS, and EPA

[[Page 639]]

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 NOX SIP call and/or the 
upwind area's attainment date.
    Thus both the upwind and downwind areas are held accountable for 
their respective shares 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 NOX SIP call lends support to 
extending attainment deadlines in these circumstances, even without 
express statutory permission. See NRDC versus 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 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 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 Act. EPA's interpretation 
resolves the problem that arose when the express statutory tools failed 
to function as Congress had envisioned. It also, as EPA pointed out in 
its guidance, 61 FR 14441 (March 25, 1999), provides a means to 
reconcile the attainment demonstrations and attainment date 
requirements for downwind areas with the graduated attainment date 
scheme and schedule for achieving reductions in the upwind areas. 
Although Congress intended that upwind areas be responsible for 
preventing interference with downwind areas' attainment dates, it also 
expressly allotted more time for certain upwind areas to reduce their 
emissions so as to attain the standard.
    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

[[Page 640]]

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) 
(NOX 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 NOX 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 NOX SIP call rulemaking was complete, it 
was temporarily placed in doubt when the Court stayed the SIP call rule 
pending judicial review. The court has ordered NOX SIP call 
SIPS 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 Act, 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 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 Act read as a whole, 
Congressional intent supports EPA's interpretation of an attainment 
date extension in the circumstances presented here.
    Commenters argue that the fact that Congress formulated various 
provisions addressing certain specific types of issues concerning 
transported pollution, but did not provide for an explicit attainment 
date extension based on transport, should be taken as proof that 
Congress meant to preclude such relief. But each of the provisions 
cited by commenters--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

[[Page 641]]

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 NOX SIP call 
effectively accelerates their attainment dates. The OTC was to 
recommend measures to bring about attainment by the deadlines ``in this 
subpart.''
    Response 5: As pointed out in EPA's Response 4, above, an awareness 
that transport was occurring is not equivalent to an ability to 
identify, analyze, and control the emissions that cause it. This 
ability, which grew out of years of study and joint effort, did not 
coalesce until 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 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 NOX reductions on individual areas, an effort that 
took more time than Congress anticipated. Here, the effort to document, 
model, and analyze regional ozone transport issues and assess 
responsibility for relative contributions is, if anything, more complex 
than the NOX exemption showings for which the Court upheld 
deadline extensions in NRDC 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

[[Page 642]]

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 
Act. 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 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 Act. The statute 
requires SIPs to provide for attainment as expeditiously as practicable 
and for reasonable further progress as necessary to provide for 
attainment. The motor vehicle and RACM measures the commenter is 
apparently referring to are not specific measures 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 Act does not require that 
these budgets be set for any specific year, but rather contemplates 
that they will be established for the attainment year. Where EPA has 
properly determined that an attainment date extension should be 
granted, conformity budgets are required for the extended attainment 
year; they are no longer required for the superseded attainment year. 
The requirement that transportation activities not delay timely 
attainment is a duty imposed on transportation planning agencies to 
insure that their activities will not interfere with attainment of the 
standard by the applicable attainment date. This duty is irrelevant to 
establishing the appropriate attainment date in the first instance. 
Once an applicable attainment date is established, transportation 
planners must insure that their activities will not delay attainment by 
that date.

    Comment 9: A commenter argues that under the terms of section 
188(e), an extension of the PM attainment date may not be granted 
unless the State demonstrates that the area's SIP contains ``the most 
stringent measures that are included in the implementation plan of any 
State or are achieved in practice in any Sate, and can feasibly be 
implemented in the area.'' Moreover, section 188(e) provides for 
consideration of transboundary emissions from ``foreign countries,'' 
not from U.S. sources. EPA's proposed ozone nonattainment extension 
policy includes neither of these limitations.
    Response 9: The provision cited by commenters applies the PM-10 
standard, and is not applicable to attainment dates for ozone. 
Moreover, the regulatory regimes applicable to ozone and PM-10 are 
quite different, as are the types of transport issues that arise with 
respect to these two different pollutants. The issues EPA and the 
States confront with respect to long-range regional transport of ozone 
do not apply to PM-10. Beyond that, section 188(e) embodies a standard 
of `` impracticability'' as a basis for seeking an extension for a PM-
10 attainment deadline. With respect to the ozone attainment deadlines 
at issue here, EPA is not granting extensions solely on the grounds of 
impracticability of attaining the standard, but rather, that Congress 
intended both upwind and downwind areas to have an opportunity to bear 
the responsibility for their respective contributions to an area's 
attainment problems.

    Comment 10: EPA's effort to ``manufacture a conflict'' between the 
statutory deadlines and transport provisions fails, since these 
provisions must be read together so that the upwind area's ``obligation 
to control pollution affecting the downwind area--be it interstate or 
intrastate--falls due no later than the downwind area's attainment 
date.'' EPA's argument that areas with longer attainment dates be given 
additional time ignores the statutory requirement that areas attain as 
expeditiously as practicable, even if that results in attainment before 
section 181(a)(1)'s outer deadlines. The section 181 attainment 
deadlines are ``outside limits.'' A commenter argues that section 
181(a) does not prevent upwind areas from abating pollution in downwind 
areas in time to meet the downwind area's attainment date. EPA's policy 
cannot be defended as necessary to reconcile 181(a) with the Act's 
anti-transport provisions. Upwind areas should be able to control 
pollution contributing to downwind area's nonattainment even before 
reaching their own later-prescribed attainment dates.
    A commenter disputes EPA's interpretation of the language in 
section 110(a)(2)(D)(1) that SIP provisions prohibiting emissions which 
cause transport be ``consistent with the provisions of this 
subchapter.'' EPA should interpret the provisions to respect the 
attainment schedules of sections 181 and 182, and address transport 
separately. No reference is made to any legislative history that would 
legitimize EPA's reading. An upwind area's obligation to control 
transported pollution does not depend on its own timetable for 
attainment. EPA's policy excuses upwind area's responsibility from 
their obligations under sections 110, 176A and 184,

[[Page 643]]

exempting them via granting extensions to downwind areas. The policy 
defers downwind action until the upwind area attains.
    EPA improperly assumes that it would not be practicable for upwind 
sources to reduce emissions contributing to downwind nonattainment 
prior to the time such reductions would be required to attain in the 
upwind area. The presumption should be precisely the opposite: unless 
the upwind state can show that such reductions are impracticable, EPA 
should assume such reductions can be made at times to eliminate the 
upwind state's contribution to nonattainment downwind by the downwind 
area's attainment date. EPA's rule eliminates the Act's requirement 
that attainment be accomplished as expeditiously as possible. Section 
184 indicates Congressional intent that upwind areas make reductions if 
necessary to permit downwind areas to attain by their statutory 
deadlines.
    Response 10: EPA disagrees with the commenter's contention that it 
has ``manufactured a conflict.'' Rather, EPA believes that it 
recognizes and resolves the real tension between the statutory 
deadlines and the transport provisions. EPA explained this tension in 
its guidance on the attainment date extension policy. See also EPA's 
response to Comment 4. Congress did not intend that areas with more 
severe pollution problems, 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 deadlines would be 
beneficial to downwind areas, Congress did not indicate that this 
criterion should override the criterion of ``practicability'' for the 
upwind area.
    In administering the Clean Air Act and the NOX SIP call, 
EPA has interpreted section 110(a)(2)(d)'s significant contribution 
test as requiring reductions as expeditiously as practicable without 
requiring upwind areas to impose draconian measures. The United States 
Court of Appeals for the District of Columbia Circuit recently upheld 
EPA's use of a cost component in applying that section's significant 
contribution test. Michigan v. EPA, 213 F.3d 663, 674-679 (D.C. Cir. 
2000). EPA decided that the States that were ``significant 
contributors'' under section 110(a)(2)(D) need only reduce their 
emissions by the amount achievable with ``highly cost-effective 
controls.'' 63 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 Act in a way that 
limits the upwind area's responsibility to control pollution so as to 
mitigate its responsibility under section 110(a)(2)(D). The upwind area 
should not have to impose draconian controls. As the court in Michigan 
v. EPA, concluded, ``there is nothing in the text, structure, or 
history of section 110(a)(2)(D) that bars EPA from considering cost in 
its application.'' 213 F.3d 679. The Court's discussion makes clear 
that EPA, in interpreting the responsibilities of upwind states under 
section 110(a)(2)(D), may consider differences in cutback costs in 
determining what constitutes a significant contribution, and that EPA's 
inquiry is based on balancing a number of considerations to balance 
health effects and cost-effectiveness.
    EPA's policy does not excuse the upwind areas from fulfilling their 
obligations under section 110. 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 by 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

[[Page 644]]

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 Act. Why does EPA believe so strongly 
that its approach is consistent with Congressional intent, given 
Congress's refusal to consider transport in establishing the initial 
classifications and in light of sections 181(b)(2) and 182(i)?
    Response 12: 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 1. By 
providing for an extension of the attainment date, EPA is effectuating 
Congressional intent that the transport relief provisions have a chance 
to take effect before EPA has an obligation to determine whether the 
area has attained for purposes of triggering the reclassification 
provisions.

    Comment 13: EPA has previously concluded that reclassification is 
not a means of penalizing an area, but a means of providing additional 
reductions that will benefit public health. EPA rejected the notion 
that bump-up is a penalty when it reclassified the Phoenix, Arizona 
area from moderate to serious. There, EPA said:

    The classification structure of the Act is a clear statement of 
Congress's belief that the later attainment deadlines afforded 
higher-classified and reclassified areas require compensating 
increases in the stringency of controls. The reclassification 
provisions of the Clean Air Act are a reasonable mechanism to assure 
continued progress toward attainment of the health-based ambient air 
quality standards when areas miss their attainment deadlines and are 
not punitive.

    Final Rule, 62 FR 60001, 60003 (Nov. 6, 1997). Why has EPA changed 
its mind about the functions of reclassification?
    Response 13: EPA has not changed its mind about the function of the 
reclassification provision where the issue of transport is not 
presented. In the context of Phoenix, a reclassification not involving 
transport, EPA made the response cited by commenter, and noted that the 
reclassification provision was not intended to be punitive. This view 
is consistent with the position that EPA takes here, where the 
circumstances are quite different from the non-transport 
reclassification context. In the absence of transport, an area that 
fails to attain by its attainment date, may still fairly be held 
accountable for controlling local pollution, and be granted a longer 
attainment deadline in return for more stringent controls. Under these 
circumstances, applying the reclassification provisions is not 
punitive. But in the circumstances EPA and 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 Act to authorize an attainment date extension.

    Comment 14: Congress directly considered and rejected EPA's 
interpretation of its attainment date extension authority during the 
Clean Air Act Amendments of 1990. During debate, Senator Kasten 
expressed concern about the proposed legislation's provisions 
concerning the ``issue of downwind ozone nonattainment.'' He noted that 
pollution from Chicago affected southeastern Wisconsin, but described 
``the difficulty this poses is that the Nation's most polluted urban 
areas are given a much more generous timetable for meeting air-quality 
standards. Chicago will have 5 more years to meet air-quality standards 
than these Wisconsin counties will have.'' Senator Kasten then noted 
that because of Chicago's longer attainment date, it was likely that 
the Wisconsin counties ``will be found in violation of the Clean Air 
Act because of actions taking place outside of their jurisdiction in an 
upwind State.''
    The commenter claims that Senator Kasten introduced an amendment 
which provided, among other things, for an attainment date extension 
for the downwind area until the upwind nonattainment area achieved 
emission reductions. S. Comm. On Envt. And Pub. Works, A Legislative 
History of the Clean Air Act Amendments of 1990, pp. 4954-55 (1993). 
The commenter claims that ``the amendment, was, of course, rejected.'' 
Thus the commenter argues that Congress, although it addressed ozone 
transport in sections 176A and 184, declined to alter the requirements 
of section 181, even though it was aware of the problem that EPA seeks 
to solve with its attainment date extension policy.
    Response 14: There is no evidence that the amendment discussed by 
Senator Kasten was ever debated, considered, or voted upon. Commenter 
cites no support for the proposition that it was considered and 
rejected. Thus no inferences can be drawn from the fact that the 
amendment was not embodied in the statute. Moreover, even if the 
amendment had been considered and rejected, it differed from and went 
so far beyond the attainment date extension EPA is applying here as to 
not be probative of Congressional intent with respect to EPA's current 
interpretation of the Act. Among other things, it would have provided 
for a new and separate Ozone Transport Region, and would have provided 
for different obligations and consequences for downwind areas than what 
is contained in EPA's current interpretation of the attainment date 
extension policy. Legislative History at 4954-56.

    Comment 15: The EPA 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 NOX SIP call reductions is later. Where

[[Page 645]]

the upwind area is in attainment or where its attainment date is 
earlier than the NOX 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 Act independently 
requires all areas to ``implement all reasonably available control 
measures as expeditiously as practicable,'' 172(c)(1), regardless of 
what reductions are expected from upwind areas. EPA should not allow 
downwind areas to postpone implementing local measures until upwind 
reductions are achieved. This extension is unlawful, and, because 
unexplained, arbitrary and capricious.
    Response 17: EPA disagrees with the commenter's characterization of 
EPA's actions. EPA is in fact requiring downwind areas to implement the 
local control measures required under the classification as 
expeditiously as practicable, but no later than the time the upwind 
reductions are achieved. See EPA's Guidance, supra. To obtain an 
extension the area must have provided that it will implement all 
adopted measures as expeditiously as practicable, but no later than the 
date by which the upwind reductions needed for attainment will be 
achieved. See also response to Comment 16, above. No measures are being 
postponed as a result of the 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 Act's anti-transport provisions. Under a proper 
interpretation of the Act: (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 Act, 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 Act and to avoid imposing on the downwind area 
a burden Congress did not intend, EPA

[[Page 646]]

proposed interpreting the Act to adjust the downwind attainment 
deadlines, the very interpretation that the commenter rejects as 
unnecessary. By adjusting the attainment date to allow the upwind and 
downwind areas to carry out the statutory allocation of responsibility 
that is acknowledged by the commenter, EPA indeed is reconciling the 
Act and rendering a proper interpretation.

    Comment 20: No extension should be granted unless the area is as 
small as possible. The basis for transport should not be OTAG modeling, 
since better data is available.
    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 can 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 NOX SIP Call; we only know that the 
NOX 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 CAAs 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 VI.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 VI.A. and 
section VI.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 VI.L for each of the 
attainment date extension areas contained in Responses to Comments.

    Comment 3: Even assuming the Transport Guidance is consistent with 
the Act, 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 
NOX 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 
VI.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 VI.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

[[Page 647]]

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. EPA has further found that the States have 
or will implement required local measures as expeditiously as 
practicable. With respect to Connecticut, the State has adopted and EPA 
has approved all measures required under its current classification 
except with respect to certain aspects of its new source review (NSR) 
program. Connecticut's nonattainment area NSR program is the one Clean 
Air Act measure required under the State's classification that EPA has 
not yet approved as meeting all the requirements of the Act. 
Nevertheless, EPA has determined that Connecticut's NSR program 
substantially addresses the Act's requirements and provides a 
sufficient basis for EPA to apply its attainment date extension policy. 
The Connecticut NSR program imposes all the Act's requirements on new 
and modified sources of air pollution for those sources covered by the 
State's program, including the lowest achievable emissions rate 
technology standard and emissions offsets consistent with the 
classification under the Act of the State's two ozone nonattainment 
areas. In addition, the State's NSR program captures the correct 
universe of new sources covered by the Act's requirements. The reason 
Connecticut's program does fully meet all the Act's requirements is 
that the State's formula for capturing modified sources of air 
pollution in the program differs from the federal requirements in one 
respect. EPA's federal NSR regulations generally require that 
modifications be measured by comparing the actual emissions of the 
existing facility with the potential emissions of the modified 
facility. Connecticut's regulations compare the potential emissions of 
the existing facility with the potential emissions of the modified 
facility. On the other hand, Connecticut's program is more rigorous 
than EPA's regulations in measuring a modification in so far as the 
State's program does not allow for ``netting'' at a source to avoid 
being treated as a modification. Federal regulations would allow an 
increase in emissions at an existing source to be balanced against 
contemporaneous emissions decreases elsewhere at the source to avoid 
NSR, while Connecticut's NSR program does not. On balance, EPA has 
concluded that the State's NSR program substantially addresses this 
Clean Air Act requirement for the purposes of granting an attainment 
date extension under EPA's policy.
    EPA thus concludes that substantial compliance with the NSR program 
and approval of all remaining required measures constitutes substantial 
compliance with the criterion that the State adopt all measures 
required under Connecticut's current classification. EPA has further 
found that it will implement these 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 Act 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. 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: EPA shows in its other Responses, the SIPs provide for 
attainment as expeditiously as practicable, and the States have shown 
that they qualify for an attainment date extension due to transport. 
EPA evaluated the reductions required for attainment from both the 
upwind and downwind areas, and determined that the attainment dates 
were as expeditious as practicable. See also Response 11 below.
    Comment 10: This is not a situation where the States have adopted 
all available measures and still show

[[Page 648]]

nonattainment due solely to transport. The States have refused to even 
identify the levels of VOC and NOX emissions that would be 
consistent with attainment in the absence of NOX reductions 
that would be required by the NOX 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 NOX 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 NOX SIP call, EPA concluded that ``EPA 
believes that available modeling analyses demonstrate that upwind 
reductions are necessary to help downwind areas come into attainment.'' 
63 FR 57404 (October 27, 1998). These downwind areas included the areas 
being granted attainment date extensions here. The D.C. Circuit upheld 
EPA's conclusion in Michigan versus EPA, 213 F.3d 663 (D.C. Cir. 2000). 
The SIP call and the modeling done by the States support the conclusion 
that the affected areas cannot attain without upwind reductions. 
Congress intended that upwind areas be responsible for pollution that 
interferes with downwind nonattainment, while at the same time 
requiring 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: EPA has not shown that the attainment date extension 
for Connecticut is justified due to transport.
    Response 11: There is strong evidence to support the premise that 
the Greater Connecticut nonattainment area is impacted by transport 
from outside the State, especially New York; and cannot attain without 
upwind reductions. Sensitivity modeling which removes all emissions 
from Connecticut indicate transported levels of ozone and its 
precursors alone generate exceedances in the State of Connecticut. A 
more focused analysis of days when exceedances occur in Connecticut 
shows that the majority of these days occur when winds are coming from 
the southwest and thus carry NOX and ozone from the New York 
City metropolitan area and points further west and south. 
NOX SIP call and local attainment modeling for the New York 
and Greater Connecticut nonattainment areas show that the Greater 
Connecticut nonattainment area will need controls not only local to the 
Greater Connecticut nonattainment area but from upwind States, 
especially New York. Local modeling for 2007 relies heavily on the 
NOX SIP call reductions (upwind and within the modeling 
domain) as well as controls being implemented in the New York 
nonattainment area. It has been clearly demonstrated that, until the 
New York nonattainment area implements local controls and comes into 
attainment, high ozone and precursor emissions from the New York 
nonattainment area have the potential to cause exceedances in the 
Greater Connecticut nonattainment area.

    Comment 12: The Plan fails to demonstrate emission reductions of 3 
percent per year over each three-year period after 1999 until 
attainment. Assuming a 2005 attainment date, the plan must provide for 
a nine percent reduction in VOC and/or NOX remissions by 
2002 and another 9 percent between 2002 and 2005. The States have not 
attempted to demonstrate compliance with these requirements, and EPA 
has not proposed to 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 12: 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 13: 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 Act, 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 13: 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 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,''

[[Page 649]]

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).''\2\ 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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    \2\ The August 12, 1996 version of ``Appendix W to Part 51--
Guideline on Air Quality Models'' was the rule in effect for these 
attainment dmeonstrations. EPA is proposing updates to this rule 
which will not be in effect until the new rule is promulgated.
---------------------------------------------------------------------------

    The modeled attainment test compares model predicted 1-hour daily 
maximum ozone concentrations in all grid cells for the attainment year 
to the level of the NAAQS. The results may be interpreted through 
either of two modeled attainment or exceedance tests: a deterministic 
test or a statistical test. Under the deterministic test, a predicted 
concentration above 0.124 parts per million (ppm) ozone indicates that 
the area is expected to exceed the standard in the attainment year and 
a prediction at or below 0.124 ppm indicates that the area is expected 
to not exceed the standard. Under the statistical test, attainment is 
demonstrated when all predicted (i.e., modeled) 1-hour ozone 
concentrations inside the modeling domain are at, or below, an 
acceptable upper limit above the NAAQS permitted under certain 
conditions (depending on the severity of the episode modeled).\3\
---------------------------------------------------------------------------

    \3\ 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 \4\ 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.
---------------------------------------------------------------------------

    \4\ Ibid.
---------------------------------------------------------------------------

    In 1999, EPA issued additional guidance \5\ 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.\6\ The three year ``design 
value'' represents the air quality observed during the time period used 
to predict ozone for the base emissions. This is appropriate because 
the model is predicting the change in ozone from the base period to the 
future attainment date. The three yearly design values (highest across 
the area) are averaged to account for annual fluctuations in 
meteorology. The result is an estimate of an area's base year design 
value. The base year design value is multiplied by a ratio of the peak 
model predicted

[[Page 650]]

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.
---------------------------------------------------------------------------

    \5\ ``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.
    \6\ 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 thetotal 
emissions 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 
NOX 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 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

[[Page 651]]

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.\7\
---------------------------------------------------------------------------

    \7\ Observing that for the attainment demonstration for the 
Washington, D.C. area, EPA reduced modeled ozone values by 19% to 
account for model overproduction, a commenter criticized this 
technique as lacking technical justification. EPA guidance 
recommends assessment 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 NOX 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.\8\ 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.
---------------------------------------------------------------------------

    \8\ 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 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

[[Page 652]]

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: A commenter states that even with the upwind 
NOX reductions anticipated by EPA's proposed NOX 
SIP Call, neither photochemical grid modeling conducted by CT and other 
New England States, nor the so-called ``weight-of-evidence'' approach 
demonstrates that CT will achieve attainment by 1999, by 2007 or by any 
other date. The commenter also states that the ``weight of evidence/
design value rollback'' approach is inconsistent with section 
182(c)(2)(A) of the CAA and with EPA guidance and is concerned that the 
analysis relies on use of air quality design values that are heavily 
dependent on meteorology and can easily increase.
    Response 2: The Connecticut 1-hour ozone attainment demonstration 
is based on photochemical grid modeling and weight of evidence analyses 
as recommended in the guidance \9\. 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 VI.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.
---------------------------------------------------------------------------

    \9\ Guidance on the Use of Modeled Results to Demonstrate 
Attainment of the Ozone NAAQS. EPA-454/B-95-007, June 1996.
---------------------------------------------------------------------------

    EPA agrees that meteorology of any given summer can dictate the 
ozone design value, because of the unique relationship between elevated 
ambient ground-level ozone and hot, sunny weather, and in Connecticut, 
between hot, sunny weather and ozone transported into Connecticut at 
the surface by southwesterly winds from the major metropolitan areas of 
New York City, Philadelphia, Baltimore and Washington, plus winds aloft 
from the NOX laden Midwest. June and July of 1999 were 
particularly hot for Connecticut and the ambient ozone levels reflect 
this. In 1999 the ozone design value for Greater Connecticut, based on 
1997-1999 data, is 147 ppb, which reverses a long-term decline in ozone 
levels dating back to the early 1980's and demonstrates a somewhat 
extreme increase from 139 ppb in 1998. However, this does not mean 
attainment predictions of the earlier ``weight of evidence'' contained 
in the submittal are reversed. High monitoring readings may have 
occurred for many reasons including, fluctuations due to changes in 
meteorology or lack of additional emission reductions in more recent 
years.
    The 1999 monitor readings do not reflect several control programs 
relied on for attainment, including both local measures and the 
regional NOX SIP call measures which are scheduled for 
implementation in the future. Therefore assumptions about future air 
quality based solely on 1999 data are not valid. However, analysis of 
recent air quality trends predicts that the peak ozone values will be 
less than 125 ppb and the number of exceedances of the air quality 
standard will be less than one per year by the year 2005. Since a 
number of emission control programs, such as the NOX SIP 
Call, and Tier 2 car standards are still to be implemented and others, 
like the OTC NOX agreement and vehicle inspection and 
maintenance programs, are still being implemented (i.e., not yet 
achieving full emissions reduction benefit), emissions of ozone 
precursors will continue to decrease from now through 2007, producing 
attainment of the one-hour ozone standard predicted by 2007.
    When reviewing a SIP, the EPA must make a reasonable determination 
that the control measures adopted more likely than not will lead to 
attainment. Under 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 NOX SIP call along with additional 
analyses of air quality data and estimates of future design values. 
Therefore, EPA believes Connecticut will attain the standard, as 
expeditiously as practicable, through implementation of adopted local 
controls and regional NOX reductions.

C. Reliance on NOX SIP Call and Tier II Modeling

    Comment: Given the uncertainty surrounding the NOX 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 NOX SIP Call, or rely on it as 
a part of their demonstrations. The commenter references modeling data 
which demonstrates that the benefits of imposing NOX SIP 
Call controls are limited to areas near the sources controlled.
    The commenter adds that there are errors in the emissions used for 
the NOX 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 NOX 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 that most--if not 
all--of the emission reductions from the NOX 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 NOX 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 
NOX 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.

[[Page 653]]

D. Impact of the NOX SIP Call on Attainment of the 1-Hour 
NAAQS

    Comment: One commenter states that Massachusetts's NOX 
emissions interfere with attainment in downwind areas of New Hampshire 
and Maine and that Connecticut's NOX emissions interfere 
with attainment in downwind areas of Massachusetts, New Hampshire and 
Maine. Therefore, the commenter states that significant additional 
NOX 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 NOX SIP Call (63 FR 
57394, October 27, 1998), EPA indicated that Massachusetts contains 
sources that contribute significantly to 1-hour nonattainment in Maine 
and New Hampshire, and that Connecticut contains sources that 
contribute significantly to 1-hour nonattainment in Massachusetts, 
Maine and New Hampshire. The NOX SIP Call rule specified the 
emissions that Connecticut and Massachusetts were required to regulate 
to address their significant contribution to nonattainment in these 
downwind States. Massachusetts submitted a rule meeting the 
NOX SIP call on November 19, 1999, and EPA proposed approval 
of this rule on July 12, 2000 (65 FR 42907). Similarly, Connecticut 
submitted a rule in response to the NOX SIP call on October 
1, 1999, and EPA proposed approval on July 12, 2000 (65 FR 42900). On 
October 20, 2000, the Regional Administrator signed notices fully 
approving these rules. As of December 15, 2000, this approval was 
awaiting publication. These rules have addressed Massachusetts's and 
Connecticut's contribution to ozone nonattainment in downwind areas. In 
addition, recent air quality monitoring 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 \10\) 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).
---------------------------------------------------------------------------

    \10\ 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 Act 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 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 ( NOX) and volatile organic compounds 
(VOC) 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 (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.

[[Page 654]]

    In addition to control measures already implemented locally, each 
of the three areas relies in large part on reductions from outside the 
nonattainment areas from EPA's NOX SIP call rule or section 
126 rule (65 FR 2674, January 18, 2000) to reach attainment. In the 
NOX 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 NOX 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 
NOX SIP call prior to May 2004. Michigan, et al., v. EPA, D. 
C. Cir. No. 98-1497, Order of Aug. 30, 2000.\11\
---------------------------------------------------------------------------

    \11\ 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 
NOX reductions (such as the NOX 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 
VI.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 NOX SIP call rule with compliance in 2004, and from the 
section 126 rule, with compliance in 2003. Additional reductions from 
other nonattainment areas are relied on by the Greater Connecticut 
area.
    Greater Connecticut must rely on reductions from the New York City 
nonattainment area to reach attainment. The New York nonattainment 
area--classified severe--has a statutory attainment date of as late as 
2007. The SIP submitted for New York City, which EPA has proposed to 
approve, establishes a 2007 attainment date. It is unlikely that all 
the emission reductions necessary to reduce sufficiently upwind 
emissions to bring Greater Connecticut into attainment will be obtained 
until the attainment year for New York City and the best available 
evidence indicates that date will be 2007. EPA's zero out modeling 
analyses conducted in support of EPA's NOX SIP call show 
that even eliminating all of Connecticut's emissions does not help 
Connecticut attain prior to the time New York City reaches attainment, 
since the effects of transport are so significant. (See 64 FR 70343.) 
Therefore, EPA concludes that additional emission reductions within 
Connecticut would not advance the attainment date for the Greater 
Connecticut area, and thus that no additional measures are considered 
RACM.
    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 Western 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 Greater Connecticut area will not advance the attainment date, 
prior to implementation by the upwind area of all local measures needed 
to attain by the area's attainment date.
    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 measures analyzed can be 
considered RACM for purposes of section 172(c)(1) for Greater 
Connecticut for its 1-hour ozone standard attainment demonstration.
    Although EPA does not believe that section 172(c)(1) requires 
implementation of additional measures for these three serious areas, 
this conclusion is not necessarily valid for other areas. For 1-hour 
ozone nonattainment areas classified as severe, for instance, some 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

[[Page 655]]

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, Western 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 Act. 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 Act's requirements. However, nothing in the Act precludes 
EPA from performing those analyses, and the Act clearly provides that 
EPA must determine whether the State's submission meets the Act's 
requirements. Under that authority, EPA believes that it is 
appropriate, though not mandated, that EPA perform independent analyses 
to determine whether a submission meets the requirements of the Act. 
The EPA has not attempted to modify the State's submission by either 
adding or deleting a substantive element of the submitted plan. By 
virtue of the supplemental RACM analysis, EPA has concluded that the 
State's 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 Fed. Reg. 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 control technology) and 
shall provide for attainment of the national primary ambient air 
quality standards.'' [Emphasis added.] The EPA interprets this language 
as tying the RACM requirement to the requirement for attainment of the 
national primary ambient air quality standard. The Act provides that 
the attainment date shall be ``as expeditiously as practicable but no 
later than * * *'' the deadlines specified in the Act. EPA believes 
that the use of the same terminology in conjunction with the RACM 
requirement serves the purpose of specifying RACM as the way of 
expediting attainment of the NAAQS in advance of the deadline specified 
in the Act. As stated in the ``General Preamble'' (57 FR 13498 at 
13560, April 16, 1992), ``The EPA interprets this requirement to impose 
a duty on all nonattainment areas to consider all available control 
measures and to adopt and implement such measures as are reasonably 
available for implementation in the area as components of the area's 
attainment demonstration.'' [Emphasis added.] In other words, because 
of the construction of the RACM language in the CAA, EPA does not view 
the RACM requirement as separate from the attainment demonstration 
requirement. Therefore, EPA believes that the Act supports its 
interpretation that measures may be determined to not be RACM if they 
do not advance the attainment date. In addition, EPA believes that it 
would not be reasonable to require implementation of measures that 
would not in fact advance attainment. See 57 FR 13560.
    The term ``reasonably available control measure'' is not actually 
defined in the definitions in the Act. Therefore, the EPA 
interpretation that potential measures may be determined not to be RACM 
if they require an intensive and costly effort for numerous small area 
sources is based on the common sense meaning of the phrase, 
``reasonably available.'' A measure that is reasonably available is one 
that is technologically and economically feasible and that can be 
readily implemented. Ready implementation also includes consideration 
of whether emissions from small sources are relatively small and 
whether the administrative burden, to the States and regulated 
entities, of controlling such sources was likely to be considerable. As 
stated in the General Preamble, EPA believes that States can reject 
potential measures based on local conditions including cost. 57 FR 
13561.
    Also, the development of rules for a large number of very different 
source categories of small sources for which little control information 
may exist will likely take much longer than

[[Page 656]]

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 NOX 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 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 NOX 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 VI.A. EPA has therein justified 
the position that areas affected by transport may need additional time 
to attain--and in some cases may need an extension out to either the 
date the NOX SIP call will be implemented or the attainment 
date of an upwind area if it cannot attain without the reductions from 
the upwind area. In the case of Greater Connecticut, it would be futile 
to perform analyses of whether additional emission reductions in the 
nonattainment area--whether RACM or beyond RACM--would advance the 
attainment date when it is already demonstrated through modeling that 
the area cannot attain sooner than the upwind New York City 
nonattainment area that needs to control. In addition, all local 
measures needed for attainment are already being implemented. EPA 
considers this implementation as expeditious as practicable. Issues 
concerned with timing of implementation of additional measures are also 
discussed above.
    The regulation Connecticut adopted to meet EPA's NOX 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.\12\ 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.
---------------------------------------------------------------------------

    \12\ 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.
    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

[[Page 657]]

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 
NOX 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 NOX emissions control 
required under the NOX SIP call for larger sources, 
including electric generating units and point source combustion 
sources, is greater than the level of control presumed by EPA under the 
NOX RACT requirement. The NOX 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 ( 
NOX) 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 NOX SIP call level of 
control; therefore, in its final NOX SIP call rule, EPA 
included provisions for a NOX supplement pool to allow more 
time for some units to come into compliance and thus minimize potential 
power availability problems. At control levels greater than those in 
the NOX SIP call rule, EPA believes the time States would 
need to provide for sources to come into compliance while avoiding 
power availability problems would be more than the current amount 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 NOX RACT in the NOX 
Supplement to the General Preamble (57 FR 55620, November 25, 1992). 
That guidance addressed RACT for major stationary sources of 
NOX. Under section 182(b)(2) of the Act, moderate and higher 
ozone nonattainment area SIPs--and also SIPs for all areas in the Ozone 
Transport Region--were already required to contain provisions for 
applying a reasonably available level of control for NOX for 
major stationary sources. For NOX emission control for other 
sources, when EPA published the NOX SIP call (63 FR 57402, 
October 27, 1998), EPA evaluated other levels of control for categories 
of stationary sources that were not included in the highly cost-
effective controls assumed for establishing the level of control 
reflected in the Statewide NOX emission budgets in that 
rule. The EPA determined that for area sources, additional 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 NOX 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 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 (RTP) 
and Transportation Improvement Program (TIP). The RACM analysis 
includes seven broad categories and twenty-seven subcategories of 
Transportation Control Measures (TCMs) 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 Greater Connecticut 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.

[[Page 658]]

    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 by December 15, 
2000. The EPA is on track to comply with the NRDC consent decree for 
the Springfield, Massachusetts nonattainment area 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 Act. 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.

G. Adequacy of Motor Vehicle Emissions Budgets

    Comment: We received a number of comments about the process and 
substance of EPA's review of the adequacy of motor vehicle emissions 
budgets for transportation conformity purposes.
    Response: EPA's adequacy process for the Greater Connecticut area 
has been completed, and we have found the motor vehicle emissions 
budgets in the SIPs to be adequate. We have already responded to any 
comments related to adequacy when we issued our adequacy finding, and 
therefore we are not listing the individual comments or responding to 
them here. Our finding of adequacy for the Greater Connecticut 
transportation conformity budgets can be found at http://www.epa.gov/oms/transp/conform/ct-resp.wpd. A copy of the response to comments is 
available at http://www.epa.gov/oms/transp/conform/resp_ct.pdf.

H. 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 Connecticut 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 Connecticut 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 March 13, 2000. EPA requires the most recent 
available data

[[Page 659]]

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 Sec. 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 \13\ 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 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.
---------------------------------------------------------------------------

    \13\ ``Credit for the 15 Percent Rate-of-Progress Plans for 
Reductions from the Architectural and Industrial Maintenance (AIM) 
Coating Rules,'' March 22, 1995, from John S. Seitz, Director, 
Office of Air Quality Planning and Standards to Air Division 
Directors, Regions I-X.
---------------------------------------------------------------------------

    Autobody Refinish Coatings Rule: Consistent with a November 27, 
1994 EPA policy,\14\ many States have claimed a 37% reduction from this 
source category based on a proposed rule. However, EPA's final rule, 
``National Volatile Organic Compound Emission Standards for Automobile 
Refinish Coatings,'' published on September 11, 1998 (63 FR 48806), did 
not regulate lacquer topcoats and will result in a smaller emission 
reduction of around 33% overall nationwide. The 37% emission reduction 
from EPA's proposed rule was an estimate of the total nationwide 
emission reduction. Since this number is an overall national average, 
the actual reduction achieved in any particular area could vary 
depending on the level of control which already existed in the area. 
For example, in California the reduction from the national rule is zero 
because California's rules are more stringent than the national rule. 
In the proposed rule, the estimated percentage reduction for areas that 
were unregulated before the national rule was about 40%. However as a 
result of the lacquer topcoat exemption added between proposal and 
final rule, the reduction is now estimated to be 36% for previously 
unregulated areas. Thus, most previously unregulated areas will need to 
make up the approximately 1% difference between the 37% estimate of 
reductions assumed by States, following EPA guidance based on the 
proposal, and the 36% reduction actually achieved by the final rule for 
previously unregulated areas.
---------------------------------------------------------------------------

    \14\ ``Credit for the 15 Percent Rate-of-Progress Plans for 
Reductions from the Architectural and Industrial Maintenance (AIM) 
Coating Rule and the Autobody Refinishing Rule,'' November 27, 1994, 
John S. Seitz, Director OAQPS, to Air Division Directors, Regions I-
X.
---------------------------------------------------------------------------

    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,

[[Page 660]]

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 Act.

L. Contingency Measures

    Comment: The SIP for the Greater Connecticut designated ozone 
nonattainment area does not provide contingency measures to make up for 
any emission reduction shortfall, either in achievement 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 Secs. 172(c)(1) and 
182(c)(2)(A) and the rate-of-progress (ROP) requirements under Sections 
172(c)(2) and 182(c)(2)(B). The contingency measure requirements are to 
address the event that an area fails to meet a ROP milestone 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 VI.A.
    The EPA has, however, examined the ROP and attainment SIPs for 
Greater Connecticut nonattainment area. The following summarizes the 
EPA's findings for the Greater Connecticut area.
    The Greater Connecticut post-1996 ROP plan, contains contingency 
measures for purposes of meeting missed ROP milestones. The EPA 
approved this plan on October 19, 2000. 65 FR 62624. The attainment 
demonstration SIP for this area does not specify any specific measures 
as contingency measures. After 2007, the attainment date that EPA is 
approving for the area, there are a number of EPA measures that will 
achieve significant emission reductions that the SIP does not rely on 
or take credit for. These include continuing reductions from EPA's Tier 
2 tailpipe standards and EPA's standards for a variety of non-road 
sources. The EPA has analyzed the Greater Connecticut SIP and has 
estimated that the contingency obligation would be approximately 10.5 
tons per summer day (tpsd) in ozone precursor emission reductions. 
Reductions from the federal non-road and the Tier 2 tailpipe standards 
during the time frame contingency measures would need to be implemented 
for failure to attain (i.e., by May 2009) \16\ are estimated to be at 
least 12.1 tpsd, which would cover the contingency obligation for this 
area. More details on EPA's contingency measure analysis are included 
in the docket for the rulemaking action. While there is not an approved 
SIP contingency measure that would apply 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. Motor Vehicle Emission Budgets and MOBILE6

    Comment 1: In their August 28, 2000 letter, Environmental Defense 
(ED) generally supports a policy of requiring motor vehicle emissions 
budgets to be recalculated when revised MOBILE models are released.
    Response 1: The Greater Connecticut attainment demonstration, which 
relies on Tier 2 emission reduction credit, contains a commitment to 
revise the motor vehicle emissions budgets after MOBILE6 is released.

    Comment 2: The revised budgets calculated using MOBILE6 will likely 
be submitted after the MOBILE5 budgets have already been approved. 
EPA's policy is that submitted SIPs may not replace approved SIPs.
    Response 2: This is the reason that EPA proposed in the SNPR (65 FR 
46383) that the approval of the MOBILE5 budgets for conformity purposes 
would last only until MOBILE6 budgets had been submitted and found 
adequate. In this way, the MOBILE6 budgets can apply for conformity 
purposes as soon as they are found adequate.

    Comment 3: If a State submits additional control measures that 
affect the motor vehicle emissions budget but does not submit a revised 
motor vehicle emissions budget, EPA should not approve the attainment 
demonstration.
    Response 3: EPA agrees. The motor vehicle emissions budgets in the 
Greater Connecticut attainment demonstration reflect the motor vehicle 
control measures in the attainment demonstration.

    Comment 4: EPA should make it clear that the motor vehicle 
emissions budgets to be used for conformity purposes will be determined 
from the total motor vehicle emissions reductions required in the SIP, 
even if the SIP does not explicitly quantify a revised motor vehicle 
emissions budget.
    Response 4: EPA will not approve SIPs without motor vehicle 
emissions budgets that are explicitly quantified for conformity 
purposes. The Greater Connecticut attainment demonstration contains 
explicitly quantified motor vehicle emissions budgets which EPA has 
found adequate (65 FR 37778).


    Comment 5: If a state fails to follow through on its commitment to 
submit the revised motor vehicle emissions budgets using MOBILE6, EPA 
could make a finding of failure to submit a portion of a SIP, which 
would trigger a sanctions clock under section 179.
    Response 5: EPA agrees that if a state fails to meet its 
commitment, EPA could make a finding of failure to implement the SIP, 
which would start a sanctions clock under section 179 of the Clean Air 
Act.

    Comment 6: If the budgets recalculated using MOBILE6 are larger 
than the MOBILE5 budgets, then attainment should be demonstrated again.
    Response 6: As EPA proposed in its December 16, 1999 notices, we 
will

[[Page 661]]

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

    Comment 7: If the MOBILE6 budgets are smaller than the MOBILE5 
budgets, the difference between the budgets should not be available for 
reallocation to other sources unless air quality data show that the 
area is attaining, and a revised attainment demonstration is submitted 
that demonstrates that the increased emissions are consistent with 
attainment and maintenance. Similarly, the MOBILE5 budgets should not 
be retained (while MOBILE6 is being used for conformity demonstrations) 
unless the above conditions are met.
    Response 7: EPA agrees that if recalculation using MOBILE6 shows 
lower motor vehicle emissions than MOBILE5, then these motor vehicle 
emission reductions cannot be reallocated to other sources or assigned 
to the motor vehicle emissions budget as a safety margin unless the 
area reassesses the analysis in its attainment demonstration and shows 
that it will still attain. In other words, the area must assess how its 
original attainment demonstration is impacted by using MOBILE6 vs. 
MOBILE5 before it reallocates any apparent motor vehicle emission 
reductions resulting from the use of MOBILE6. However, if the state is 
not required to remodel with MOBILE6 because the attainment 
demonstration does not rely on Tier II reductions, the conformity rules 
do require the use of MOBILE6 for conformity after any established 
grace period even if the SIP is based on MOBILE5. The state is not 
required to revise the SIP merely because a new mobile model becomes 
available.

N. MOBILE6

    Comment 1: We received a comment on whether the grace period before 
MOBILE6 is required in conformity determinations will be consistent 
with the schedules for revising SIP motor vehicle emissions budgets 
(``budgets'') within 1 or 2 years of MOBILE6's release. This commenter 
was concerned that MOBILE6 could be required for conformity before new 
budgets were submitted based on MOBILE6.
    Response 1: The MOBILE6 grace period for conformity determinations 
is a separate requirement that is not explicitly tied to EPA's SIP 
policy and approvals. However, it is important to note that the 
transportation conformity rule requires EPA to consider many factors in 
establishing the length of the grace period before MOBILE6 is required 
in conformity, including the degree of change in emissions models and 
scope of re-planning likely to be necessary by transportation agencies 
(40 CFR 93.111). The grace period must be between 3-24 months, and EPA 
understands that a longer grace period would allow some areas to better 
transition to new MOBILE6 budgets. EPA will be taking the 1-2 year 
period provided for in the SIP approvals into account in establishing 
an appropriate grace period for conformity.

    Comment 2: One commenter asked EPA to clarify in the final rule 
whether MOBILE6 will be required for conformity determinations once new 
MOBILE6 budgets are submitted and found adequate. The commenter wanted 
clarification on the case where the MOBILE6 conformity grace period 
ends before new budgets are submitted based on MOBILE6. The commenter 
thought that this situation could necessitate the use of the emission 
reduction tests (e.g., build/no-build test) for conformity analyses, 
instead of using the budgets based on MOBILE5b. The commenter stated 
that using the build/no-build test instead of existing budgets that are 
based on MOBILE5b is less appropriate for air quality planning 
purposes.
    Response 2: The transportation conformity rule requires adequate 
budgets to be used in regional emissions analysis, when they exist, 
regardless of what emissions model was used to establish the budgets. 
In the example highlighted by the commenter, the MOBILE5b budgets would 
be required for conformity purposes if they were the only applicable 
budgets at the end of the MOBILE6 grace period. Thus, the conformity 
analysis would compare future reductions under a proposed 
transportation plan or TIP calculated with MOBILE6 against the SIP 
budgets developed with MOBILE5. This has always been required by the 
conformity rule once the grace period for a new model has passed. Once 
budgets have been established, the build/no-build test is no longer 
applicable. See 40 CFR 93.111 of the transportation conformity rule. 
During the grace period, areas should use the consultation process to 
address any future conformity impacts of using the new emissions model.

    Comment 3: One commenter did not prefer the additional option for a 
second year before the state has to revise the conformity budgets with 
MOBILE6, due to several concerns. The commenter cited that the air 
agency did not select this option and had already submitted a 
commitment to revise the conformity budgets with MOBILE6.
    Response 3: EPA proposed the additional option to provide further 
flexibility in managing MOBILE6 budget revisions. The supplemental 
proposal did not change the original option to revise budgets within 
one year of MOBILE6's release. State and local governments can continue 
to use the 1-year option, if desired, or submit a new commitment 
consistent with the alternative 2-year option.

O. NOX 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 
NOX emissions budget.
    Response: The states of Connecticut, Massachusetts and Rhode Island 
all submitted their SIPs in response to the NOX 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 NOX 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 
NOX SIP call requirements EPA has published to date. Thus, 
we believe that Connecticut and Massachusetts have already adopted 
adequate emission control strategies to address 1-hour ozone 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 meet the 1-hour ozone 
standard for the years 1998 through 2000.

[[Page 662]]

    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 NOX SIP call, we considered the adopted 2007 emission 
budgets and adopted NOX reducing measures in CT, MA and RI 
together and found them as meeting the air quality objectives of the 
NOX SIP Call. The issue of whether the redistribution was 
appropriate was considered and decided during the rulemaking approving 
the NOX SIPs.

P. Lack of Fully Approved Rules

    Comment: Connecticut only has conditional approval of VOC RACT 
rules for VOC for non-CTG categories, and Connecticut does not have 
fully approved post-1996 ROP plans.
    Response: That is no longer true. EPA fully approved the 
Connecticut VOC RACT rules pursuant to sections 182(b)(2)(A) and (C) of 
Clean Air Act on October 19, 2000 (65 FR 62620). EPA fully approved the 
9 percent rate of progress plans for both of Connecticut's ozone 
nonattainment areas on October 19, 2000 (65 FR 62624).
    Other information and rationale for EPA's action are explained in 
the NPR and will not be restated here.
    Final Action: As described above, EPA does not believe any of the 
comments received on the proposals published for the attainment 
demonstration and attainment date extension for the Greater Connecticut 
area change the basis for our proposed approval. Thus, EPA is approving 
the ground-level one-hour ozone attainment demonstration SIP for the 
Greater Connecticut area. EPA is also approving the attainment date 
extension for this area until November 15, 2007. This revision also 
approves the 2007 volatile organic compound (VOC) and nitrogen oxide 
(NOX) motor vehicle emissions budgets for the Greater 
Connecticut serious ozone nonattainment area for use in transportation 
conformity. Lastly, EPA is approving the commitment made by Connecticut 
to revise their VOC and NOX transportation conformity 
budgets within one year of the release of MOBILE6, and the commitment 
to conduct a mid-course review to assess modeling and monitoring 
progress achieved towards the goal of attainment by 2007, and submit 
the results to EPA by December 31, 2003.
    Nothing in this action should be construed as permitting or 
allowing or establishing 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.

III. 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.
    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).)

[[Page 663]]

List of Subjects in 40 CFR Part 52

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

    Dated: December 15, 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 H--Connecticut

    2. Section 52.374 is amended by revising the table to read as 
follows:


Sec. 52.374  Attainment dates for national standards.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                                                      Pollutant
                                   -----------------------------------------------------------------------------
    Air quality control region                 SO2
                                   --------------------------     PM10         NO2           CO           O3
                                      Primary     Secondary
----------------------------------------------------------------------------------------------------------------
AQCR 41: Eastern Connecticut              (\a\)        (\b\)        (\a\)        (\a\)        (\a\)        (\d\)
 Intrastate (See 40 CFR 81.183)...
AQCR 42: Hartford-New Haven-
 Springfield Interstate Area (See
 40 CFR 81.26)....................
    All portions except City of           (\a\)        (\b\)        (\a\)        (\a\)        (\a\)        (\d\)
     New Haven....................
    City of New Haven.............        (\a\)        (\b\)        (\c\)        (\a\)        (\a\)        (\d\)
AQCR 43: New Jersey-New York-             (\a\)        (\a\)        (\a\)        (\a\)        (\a\)        (\d\)
 Connecticut Interstate Area (See
 40 CFR 81.13)....................
AQCR 44: Northwestern Connecticut         (\a\)        (\b\)        (\a\)        (\a\)        (\a\)       (\d\)
 Intrastate (See 40 CFR 81.184)...
----------------------------------------------------------------------------------------------------------------
a. Air quality levels presently below primary standards or area is unclassifiable.
b. Air quality levels presently below secondary standards or area is unclassifiable.
c. December 31, 1996 (two 1-year extensions granted).
d. November 15, 2007.


    3. Section 52.377 is amended by designating the existing text as 
paragraph (a) and by adding paragraph (b) to read as follows:


Sec. 52.377  Control strategy: Ozone.

* * * * *
    (b) Approval--Revisions to the State Implementation Plan submitted 
by the Connecticut Department of Environmental Protection on September 
16, 1998 and February 8, 2000. The revisions are for the purpose of 
satisfying the attainment demonstration requirements of section 
182(c)(2)(A) of the Clean Air Act for the Greater Connecticut serious 
ozone nonattainment area. The revision establishes an attainment date 
of November 15, 2007 for the Greater Connecticut serious ozone 
nonattainment area. This revision establishes motor vehicle emissions 
budgets for 2007 of 30.0 tons per day of volatile organic compounds 
(VOC) and 79.6 tons per day of nitrogen oxides (NOX) to be 
used in transportation conformity in the Greater Connecticut serious 
ozone nonattainment area, until revised budgets pursuant to MOBILE6 are 
submitted and found adequate. In the revision, Connecticut commits to 
revise their VOC and NOX transportation conformity budgets 
within one year of the release of MOBILE6. Connecticut also commits to 
conduct a mid-course review to assess modeling and monitoring progress 
achieved towards the goal of attainment by 2007, and submit the results 
to EPA by December 31, 2003.

[FR Doc. 01-62 Filed 1-2-01; 8:45 am]
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