[Federal Register Volume 66, Number 219 (Tuesday, November 13, 2001)]
[Rules and Regulations]
[Pages 56904-56931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27720]



[[Page 56903]]

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Part II





Environmental Protection Agency





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40 CFR Part 52



Approval and Promulgation of Implementation Plans; Illinois, Wisconsin, 
and Indiana, Ozone; Final Rules

  Federal Register / Vol. 66, No. 219 / Tuesday, November 13, 2001 / 
Rules and Regulations  

[[Page 56904]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IL200-2; FRL-7088-8]


Approval and Promulgation of Implementation Plans; Illinois; 
Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving State Implementation Plan (SIP) revisions 
submitted by the State of Illinois to meet certain requirements of the 
Clean Air Act (CAA) regarding attainment of the ozone standard in the 
Chicago-Gary-Lake County ozone nonattainment area. These SIP revisions 
are primarily required by section 182 of the CAA. This action fully 
approves the following: An ozone attainment demonstration demonstrating 
attainment by November 15, 2007; a post-1999 ozone Rate-Of-Progress 
(ROP) plan with associated ROP mobile source conformity emission 
budgets; a contingency measures plan for both the ozone attainment 
demonstration and the post-1999 ROP plan; a commitment to conduct a 
Mid-Course Review (MCR) of the ozone attainment demonstration; motor 
vehicle emission budgets for Volatile Organic Compounds (VOC) and 
Oxides of Nitrogen ( NOX) for the 2007 attainment year, 
until such time that revised budgets are submitted and found to be 
adequate for conformity purposes as called for by the State in its 
commitment to recalculate and apply revised emissions budgets for 
conformity within two years of the formal release of MOBILE6; and, a 
demonstration that the State has fully implemented Reasonably Available 
Control Measures (RACM). The EPA is also revising the existing 
NOX emissions control waiver for the Illinois portion of the 
Chicago-Gary-Lake County ozone nonattainment area to exclude from the 
waiver NOX emission controls for certain Electrical 
Generating Units (EGUs), major non-EGU boilers and turbines, and major 
cement kilns in the ozone nonattainment area relied on by the State to 
attain the ozone standard, as noted in the State's ozone attainment 
demonstration. The existing NOX emissions control waiver 
remains in place for Reasonably Available Control Technology (RACT), 
New Source Review (NSR), and certain requirements of vehicle Inspection 
and Maintenance (I/M) and transportation and general conformity. The 
EPA is denying a related citizen petition for the termination of the 
NSR portion of the NOX waiver.

EFFECTIVE DATE: This rule becomes effective on December 13, 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. Central Time at the offices of the Air Programs Branch, U.S. 
Environmental Protection Agency, 77 West Jackson Boulevard, 18th floor, 
Chicago, Illinois; Air and Radiation Docket and Information Center, 
U.S. Environmental Protection Agency, Room M-1500, 401 M Street (Mail 
Code 6102), SW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Edward Doty, Regulation Development 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, 
Telephone Number: (312) 886-6057, E-mail Address: [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.
    This supplementary information section is organized as follows:

I. What Is EPA Approving Or Disapproving In This Action?
II. What Previous Action Has Been Taken Or Proposed On This SIP 
Revision?
III. What Are The Requirements For Full Approval Of This SIP 
Revision?
IV. How Did Illinois Fulfill These Requirements For Full Approval?
V. What Other SIP Elements Did EPA Need To Approve Before It Could 
Give Full Approval To This SIP Revision?
VI. What Comments Were Received On The Proposed Approval Of This SIP 
Revision, And What Are EPA's Responses To These Comments?
VII. Final EPA Action
VIII. Administrative Requirements

I. What Is EPA Approving or Disapproving in This Action?

    The EPA is approving SIP revisions submitted by the State of 
Illinois for purposes of attainment of the 1-hour ozone standard in the 
Chicago-Gary-Lake County ozone nonattainment area (the Illinois portion 
of which is referred to in this final rule as the ``Chicago 
nonattainment area'' or, more simply, as the ``Chicago area'').\1\ 
These SIP revisions are primarily required by section 182 of the CAA. 
This action approves the following: (1) An ozone attainment 
demonstration; (2) a post-1999 ozone ROP plan with associated ROP 
conformity emission budgets for 2002 and 2007; (3) a contingency 
measures plan for both the ozone attainment demonstration and the post-
1999 ROP plan; (4) a commitment to conduct a MCR of the ozone 
attainment demonstration; (5) motor vehicle emission budgets for VOC 
and NOX for the 2007 attainment year, until such time that 
revised emission budgets are submitted and found to be adequate for 
conformity purposes as called for by the State in its commitment to 
recalculate and apply revised emission budgets for conformity within 
two years of the formal release of MOBILE6; and, (6) a demonstration 
that the State has fully implemented RACM in the Chicago ozone 
nonattainment area. These SIP elements are thoroughly described in a 
July 11, 2001 proposed rule (66 FR 36370).
    The attainment emissions control strategy which we are approving in 
this final rule is summarized in Table I.
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    \1\ The Chicago nonattainment area is classified as a severe 
nonattainment for ozone, and is defined in 40 CFR part 81 to include 
the Counties of Cook, DuPage, Kane, Lake, McHenry, and Will, and the 
Townships of Aux Sable and Goose Lake in Grundy County and Oswego in 
Kendall County.

          Table I.--Ozone Attainment Emission Control Strategy
------------------------------------------------------------------------
                                  emsp;
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 Clean Air Act Title IV Acid Rain Controls for NOX--Phase I.
 Rate-Of-Progress Plans (15 Percent ROP Plan and 9 Percent Post-
 1996 ROP Plan).
 National Low Emission Vehicle Standards.
 Reformulated Gasoline--Phase II (where required).
 Federal Phase II Small Engine Standards.
 Federal Marine Engine Standards.
 Federal Heavy Duty Vehicle ( 50 horsepower)
 Standards--Phase I.
 Federal Locomotive Standards--Including Rebuilds.
 Federal High Compression Engine Standards.
 Federal Tier I Light Duty Vehicle and Heavy Duty Vehicle
 Emission Standards.
 Enhanced Vehicle Inspection and Maintenance (I/M) (where
 required).
 Basic Vehicle I/M (where required).
 Federal Clean Fuel Fleets Requirements (where required).
 Federal Tier II and Low Sulfur Gasoline Standards.
 Utility 0.15 Pounds NOX Per Million Btu of Heat Input Emission
 Limits (20 affected States, including Illinois).
 60 Percent Reduction of NOX Emissions From Large Non-Electric
 Generating Unit (Non-EGU) Boilers and Turbines (20 affected States,
 including Illinois).
 30 Percent Reduction of NOX Emissions From Large Cement Kilns
 (20 affected States, including Illinois).
 Wisconsin--0.28 Pounds NOX Per Million Btu of Heat Input for
 Utilities (EGUs) in 8 Counties.
 Missouri--0.25 Pounds NOX Per Million Btu of Heat Input for
 EGUs in the Eastern One-Third of the State.

[[Page 56905]]

 
 Missouri--0.35 Pounds NOX Per Million Btu of Heat Input for
 EGUs in the Western Two-Thirds of the State.
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    This emissions control strategy has been determined to be adequate 
to achieve attainment of the 1-hour ozone standard by November 15, 
2007, the attainment date EPA is approving for the Chicago 
nonattainment area.
    The post-1999 ROP plan emission control measures are given in Table 
II and III. Note in Comment/Response 39 below that we are not giving 
full VOC reduction credit for Transportation Control Measures as stated 
in Table VIII of our July 11, 2001 proposed rule (66 FR 36370, 36388). 
VOC and NOX emission reduction credits for all other ROP 
emission control measures are as specified in Table VIII and Table IX 
in our July 11, 2001 proposed rule.

  Table II.--Chicago Nonattainment Area VOC Emission Reduction Measures
                           Post-1999 ROP Plan
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 Mobile Source Measures:
   Post-1994 Tier I Vehicle Emission Rates.
   Federal Reformulated Gasoline--Phase I and II.
   Illinois 1992 I/M Improvements.
   Enhanced I/M Program.
   Conventional Transportation Control Measures.
   National Energy Policy Act of 1992.
   Federal Non-Road Small Engine Standards.
   National Low Emissions Vehicle Program.
   Federal Clean Fuel Fleet Vehicle Program.
   Tier II Vehicle Standards/Low Sulfur Fuel Standards.
Point Source Measures:
   Emissions Reduction Market System (ERMS).
Area Source Measures:
   1999 Cold Cleaning Degreaser Limits.
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    Table III.--Illinois Ozone Attainment Area NOX Emission Reduction
                       Measures Post-1999 ROP Plan
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 CAA Tier I Vehicle Emission Standards.
 Tier II Vehicle Standards/Low Sulfur Fuel Standards.
 National Low Emission Vehicle/Heavy Duty Gasoline Vehicle
 Standards.
 Federal Off-Road Engine Standards.
 Title IV Acid Rain Controls on EGUs.
 NOX SIP Call-based Rules for EGUs, Non-EGU Boilers and
 Turbines, and Cement Kilns.
------------------------------------------------------------------------

    These VOC and NOX emission control measures have been 
determined to be adequate to achieve the required ROP by the milestone 
years (2002, 2005, and 2007) in the Chicago nonattainment area. Note 
that the plan depends on the substitution of NOX emission 
controls in the attainment portion of Illinois for VOC emission 
reduction requirements in the Chicago nonattainment area. This 
substitution is more thoroughly discussed in the July 11, 2001 proposed 
rule.
    For contingency measures, the adopted emission control measures and 
their associated VOC emission reduction levels in tons per day (TPD), 
as given in the SIP, are presented in Table IV. These emission 
reductions are in excess of those emission reductions included in the 
ozone attainment demonstration, and, therefore, are creditable as 
contingency measures. These controls are being implemented without the 
need for future rule development by the State.

       Table IV.--Illinois Contingency Measure Emission Reductions
------------------------------------------------------------------------
                                                                 VOC
                                                               emission
                      Control measure                         reduction
                                                                (TPD)
------------------------------------------------------------------------
Mobile Source Measures.....................................         10.8
Tier II/Low Sulfur Fuel Program............................          1.4
On-Board Diagnostics.......................................         23.5
Non-Road Engine Standards..................................         14.0
                                                            ------------
  Total....................................................         49.7
------------------------------------------------------------------------

    We proposed to approve Illinois' Motor Vehicle Emissions Budget 
(MVEB) for the Chicago nonattainment area in the July 11, 2001 proposed 
rule (66 FR 36370), and approve the MVEB in this final rule. The VOC 
emissions budget for 2002 is 183.4 tons per day, and the VOC emissions 
budget for 2005 is 163.4 tons per day. The emissions budgets for the 
2007 attainment year are 154.91 tons per day for VOC and 293.92 tons 
per day for NOX. These emissions budgets were found adequate 
effective May 31, 2000, as posted on the EPA website at www.epa.gov/otaq/traq (once there, click on the ``conformity'' button).
    The EPA is revising the existing NOX emissions control 
waiver for the Chicago nonattainment area to exclude from the waiver 
those NOX emission controls for certain EGUs, major non-EGU 
boilers and turbines, and major cement kilns in the Chicago 
nonattainment area relied on by the State to attain the ozone standard, 
as noted in the State's ozone attainment demonstration. The existing 
NOX emissions control waiver remains in place for RACT, NSR, 
and certain requirements of vehicle I/M and transportation and general 
conformity. The EPA is denying a related citizen petition for the 
termination of the NSR portion of the NOX waiver.
    The basis for the NOX waiver, as retained, is revised 
from that used in the original approval of the NOX 
waiver.\2\ Originally the NOX waiver was based on a 
demonstration that NOX emission controls in the Chicago 
nonattainment area are not beneficial toward the attainment of the 
ozone standard in this area, complying with the waiver criteria based 
on section 182(f)(1)(A) of the CAA. The revised basis is based on 
section 182(f)(2)(A) of the CAA, which provides for a waiver of excess 
NOX emission reductions. The State has demonstrated 
attainment of the 1-hour ozone standard without application of the 
waivered NOX emission controls.
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    \2\ The EPA approved Illinois' original NOX waiver 
petition in a final rule on January 26, 1996 (61 FR 2428), covering 
a waiver from NOX emission control requirements for RACT, 
NSR, and certain I/M and general conformity NOX 
requirements for the Chicago nonattainment area. The EPA also 
granted an exemption from certain transportation conformity 
NOX requirements for the Chicago nonattainment area on 
February 12, 1996 (61 FR 5291).
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    Today's action finalizes EPA's approval of Illinois' 1-hour ozone 
attainment demonstration and post-1999 ROP SIP revisions as meeting the 
requirements of sections 182(c)(2) and (d) of the CAA.

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

    EPA published a Notice of Proposed Rulemaking (NPR) for the 
Illinois ozone attainment demonstration SIP for the Chicago-Gary-Lake 
County ozone nonattainment area on December 16, 1999 (64 FR 70496). In 
that NPR, we proposed to conditionally approve the 1-hour ozone 
attainment demonstration SIP revision submitted by Illinois on April 
30, 1998. This proposed conditional approval was based on the State's 
submitted ozone modeling analysis and the State's commitment to adopt 
and submit a final ozone attainment demonstration and a post-1999 ROP 
plan, including the necessary State air pollution control regulations, 
by December 31, 2000. We proposed, in the alternative, to disapprove 
this attainment demonstration plan, if, by December 31, 1999, the State 
did not select an emissions control strategy associated with its 
submitted ozone modeling analysis and did not submit adequate motor 
vehicle emissions budgets for VOC and NOX for the Chicago 
nonattainment area that complied with EPA's conformity

[[Page 56906]]

regulations and that supported the attainment of the 1-hour ozone 
standard. We also required the State to submit, by December 31, 1999, 
an enforceable commitment to conduct a mid-course review of the ozone 
attainment plan in 2003.
    The State met the submittal requirements of the proposed 
conditional approval, and submitted a final ozone attainment 
demonstration and post-1999 ROP plan on December 26, 2000. We reviewed 
this submittal, along with a related citizens petition requesting 
removal of the NSR portion of the existing NOX emissions 
control waiver for the Chicago ozone nonattainment area, in a NPR on 
July 11, 2001 (66 36370). In this NPR, we proposed to approve the 
State's submittal and to deny the citizen's NOX waiver 
petition.
    Since the State largely replaced the April 30, 1998 ozone 
attainment demonstration with the December 26, 2000 submittal, the July 
11, 2001 NPR primarily focused on the December 2000 ozone attainment 
demonstration. As such, this final rule also focuses on the December 
26, 2000 version of the ozone attainment demonstration and the comments 
received on our July 11, 2001 NPF. This Notice of Final Rulemaking 
(NFR), however, also addresses the public comments received with regard 
to our December 16, 1999 NPR.

III. What Are the Requirements for Full Approval of This SIP 
Revision?

    The ozone attainment demonstration and post-1999 ROP plan must meet 
applicable criteria as detailed in the CAA. The specific requirements 
of the CAA for ozone attainment demonstrations and post-1996 ROP plans 
in serious and severe ozone nonattainment areas are specified in 
sections 182(c)(2) and 182(d) of the CAA. Section 172 of the CAA 
provides the general requirements for air quality plans for 
nonattainment areas. Refer to our July 11, 2001 NPR for further details 
of requirements for ozone attainment demonstrations and ROP plans.

IV. How Did Illinois Fulfill the Requirements for Full Approval?

    On December 26, 2000, as noted elsewhere in this final rule, the 
State of Illinois submitted a SIP revision covering the State's adopted 
ozone attainment demonstration, post-1999 ROP plan, associated motor 
vehicle emission budgets, and adopted emissions control strategy. This 
submittal, along with the submittal of adopted NOX emission 
control regulations as discussed below, meets the requirements of the 
CAA for submission of attainment demonstrations and ROP plans.

V. What Other SIP Elements Did EPA Need To Approve Before It Could 
Give Full Approval to This SIP Revision?

    This SIP revision depends significantly on the new NOX 
emission reductions resulting from the implementation of NOX 
emission control regulations for major EGUs, major non-EGU boilers and 
turbines, and major cement kilns. On September 25, 2001, EPA signed 
final rules approving Illinois' NOX emission control 
regulations for major EGUs, major non-EGU boilers and turbines, and 
major cement kilns. These final rules are being published in separate 
rulemaking actions. In addition, other State emission control 
regulations affecting the attainment of the ozone standard and post-
1999 ROP in the Chicago ozone nonattainment area--such as VOC RACT, I/
M, and Illinois' Emission Reduction Market System, with an associated 
VOC emissions cap for stationary sources--have previously been adopted 
by the State and approved by the EPA.
    All required State emission control regulations and related SIP 
elements needed to support the ozone attainment demonstration and the 
post-1999 ROP plan have been approved by the EPA.
    Other related SIP actions are being acted upon in this final 
notice. These include Illinois' commitments to conduct a Mid-Course 
Review in 2004 and to recalculate the mobile vehicle transportation 
conformity emission budgets within two years after MOBILE6 is 
officially released. Illinois committed to revise within two years 
after the official release of MOBILE6, the 2007 attainment 
demonstration emission budgets and to revise the ROP conformity 
emission budgets. No conformity determinations can be made in the 
second year of the commitment without adequate MOBILE6-based emissions 
budgets. As we proposed on July 28, 2000 (65 FR 46383), the final 
approval action we are taking today on the 2007 attainment 
demonstration emission budgets will be effective for conformity 
purposes only until revised motor vehicle emissions budgets are 
submitted and we have found them to be adequate. In other words, the 
emissions budgets we are approving today as part of the attainment 
demonstration and the post-1999 ROP plan will apply for conformity 
purposes only until there are new, adequate emissions budgets 
consistent with the States commitments to revise the emissions budgets. 
The revised emissions budgets will apply for conformity purposes as 
soon as we find them adequate.
    We are limiting the duration of the approval of the motor vehicle 
emissions budgets in this manner because the State has committed to 
revise them. Therefore, once we have confirmed that the revised motor 
vehicle emissions budgets are adequate, they will be more appropriate 
than the emissions budgets we are approving for conformity purposes 
now. If the revised motor vehicle emissions budgets raise issues about 
the sufficiency of the attainment demonstration or post-1999 ROP plan, 
EPA will work with the State on a case-by-case basis.
    The Mid-Course Review commitment and MOBILE6-based revision 
commitment were discussed in detail in the July 11, 2001 proposed rule. 
In today's action, EPA is approving these State commitments.

VI. What Comments Were Received on the Proposed Approval of These 
SIP Revisions, and What Are EPA's Response to These Comments?

    As noted above, we issued two NPRs, dated December 16, 1999 (64 FR 
70496) and July 11, 2001 (66 FR 36370), related to the SIP revisions 
addressed in this final rule. We received comments on both of these 
NPRs. The following summarizes and addresses those comments.

Comment 1

    A commenter opposes the proposed approval of the Chicago ozone 
attainment demonstration because the State of Illinois has not adopted 
an emissions control strategy. The commenter also stated that the MVEB 
is by definition inadequate because the SIP does not demonstrate timely 
attainment of the ozone standard nor does it include the emissions 
reductions required for all RACM. The commenter claims that EPA may not 
find as adequate a MVEB that is derived from a SIP that is inadequate 
for the purpose for which it is submitted.

Response 1

    With regard to the adoption of an ozone attainment demonstration, 
as noted in the July 11, 2001 proposed rule (66 FR 36370), this problem 
has been resolved. The State has completed the adoption of the ozone 
attainment demonstration and its associated emissions control strategy. 
The State has revised its MVEB to reflect the adopted ozone attainment 
demonstration. It is also noted that the SIP does now demonstrate 
timely attainment of the 1-hour ozone standard by the November 15, 2007 
deadline for the Chicago-Gary-

[[Page 56907]]

Lake County ozone nonattainment area as noted in the July 11, 2001 
proposed rule.
    The EPA reviewed the initial Illinois SIP submittal (the April 30, 
1998 submittal) for the Chicago-Gary-Lake County ozone nonattainment 
area and determined that it did not include sufficient documentation 
concerning available RACM measures. For all of the severe nonattainment 
areas for which EPA proposed approvals in December 1999, EPA 
consequently issued a policy guidance memorandum \3\ to have these 
States address the RACM requirements through an additional SIP 
submittal. (Memorandum of December 14, 2000, from John S. Seitz, 
Director, Office of Air Quality Planning and Standards, regarding: 
``Additional Submission on RACM from States with Severe 1-hour Ozone 
Nonattainment Area SIP.'')
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    \3\ Memorandum of December 14, 2000 from John S. Seitz, 
Director, Office of Air Quality Planning and Standards, Subject: 
``Additional Submission on RACM from States with Severe 1-hour Ozone 
Nonattainment SIPs.''
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    We conducted a review of Illinois' December 2000 submittal to 
determine whether it demonstrated that Illinois had implemented RACM in 
the Chicago nonattainment area. As noted in the July 11, 2001 proposed 
rule (66 FR 36370), we have proposed to approve the December 2000 
submittal as demonstrating that Illinois has implemented RACM in the 
Chicago nonattainment area.
    Section 172(c)(1) of the CAA requires SIPs to contain RACM and 
provides for areas to attain as expeditiously as practicable. EPA has 
previously provided guidance interpreting the requirements of section 
172(c)(1). See 57 FR 13498, 13560. In that guidance, EPA indicated its 
interpretation of section 172(c)(1) that potentially available measures 
that would not advance the attainment date for an area would not be 
considered to be RACM. EPA also indicated in that guidance that States 
should consider all potentially available emission control measures to 
determine whether they are potentially available for implementation in 
an area and whether they would advance the attainment date. Further, 
States should indicate in their SIPs whether emission control measures 
considered were reasonably available or not, and, if measures are 
reasonably available, they must be adopted by the States as RACM. 
Finally, EPA indicated that States could reject emission control 
measures as not being RACM because they 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. The newer memorandum 
is titled, ``Guidance on the Reasonably Available Control Measures 
(RACM) Requirement and Attainment Demonstration Submissions for Ozone 
Nonattainment Areas,'' from John S. Seitz, Director, Office of Air 
Quality Planning and Standards (OAQPS). November 30, 1999. Web site: 
http://www.epa.gov/ttn/oarpg/tlpgm.html.
    As noted in the July 11, 2001 proposed rule (66 FR 36370, 36398), 
the State's SIP has addressed the implementation of RACM, and we have 
determined that the SIP adequately meets the RACM requirements of the 
CAA. We addressed the implementation of emission control measures in 
the Chicago area for both mobile and stationary sources. We determined 
that the State could not significantly advance the 1-hour ozone 
standard attainment date through the implementation of emission 
controls not already adopted by the State. In addition, as we noted in 
the July 11, 2001 proposed rule (66 FR 36370, 36400), although we 
encourage areas to implement available RACM as potentially cost-
effective methods to achieve emission reductions in the short term, we 
do not believe that section 172(c)(1) of the CAA requires 
implementation of potential RACM measures that either needlessly 
require costly implementation efforts or produce relatively small 
emissions reductions that will not be sufficient to allow an area to 
achieve attainment in advance of full implementation of all other 
required measures.
    In addition to emission control measures already implemented 
locally, Illinois relies in large part on emission reductions from 
outside of the Chicago area resulting from EPA's NOX SIP 
Call rule or section 126 NOX rule (65 FR 2674, January 18, 
2000) to reach attainment of the ozone standard. In the NOX 
SIP Call (63 FR 57356), we concluded that NOX emission 
reductions from various upwind States were necessary to provide for 
timely attainment of the 1-hour ozone standard in nonattainment areas 
in various downwind States, including Illinois on both counts. The 
NOX SIP Call established requirements for control of sources 
of significant NOX emissions in the relevant upwind States. 
These NOX emission reductions are not expected to be fully 
implemented until May 2004.
    The ozone attainment demonstration for Illinois indicates that the 
ozone reduction benefit expected to be achieved from the regional 
NOX emission reductions is significant. We have seen no 
evidence for similar ozone benefits resulting from Illinois-specific 
emission controls not already adopted by the State that would also 
significantly advance the attainment date for the Chicago-Gary-Lake 
County ozone nonattainment area. Therefore, EPA concludes, based on the 
available documentation, that the emission reductions from additional 
emission control measures will not advance attainment, and, thus, none 
of the possible additional emission control measure can be considered 
to be RACM for the purposes of section 172(c)(1) of the CCA.
    Although EPA does not believe that section 172(c)(1) requires 
implementation of additional measures for the Chicago nonattainment 
area, this conclusion is not necessarily valid for other areas. Thus, a 
determination of RACM is necessary on a case-by-case basis and will 
depend on the circumstances for the individual area. 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.
    EPA has also long advocated that States consider the kinds of 
emission 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 emission control 
measures--including the kind that Illinois itself evaluated in its RACM 
analysis--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.
    We previously responded to comments concerning the adequacy of 
Illinois' MVEB when we took final

[[Page 56908]]

action determining the MVEB to be adequate and do not address those 
issues again here. Our findings of adequacy for the MVEB and responses 
to comments can be accessed at www.epa.gov/otaq/traq (once there, click 
on the ``conformity'' button).

Comment 2

    A commenter notes that EPA has been working toward promulgation of 
a revised 8-hour ozone National Ambient Air Quality Standard (NAAQS) 
because the Administrator deemed attaining the 1-hour ozone NAAQS is 
not adequate to protect public health. Therefore, EPA must ensure that 
measures be implemented now that will be sufficient to meet the 1-hour 
standard and that make as much progress toward implementing the 8-hour 
ozone standard as the requirements of the CAA and implementing 
regulations allow.

Response 2

    The 1-hour standard remains in effect for all of 1-hour ozone 
nonattainment areas, and the SIPs that have been submitted are for the 
purpose of achieving that NAAQS. Congress has provided the States with 
the authority to choose the measures necessary to attain the NAAQS and 
EPA cannot second guess the States' choice if it determines that the 
SIPs meet the requirements of the CAA. EPA believes that the SIPs for 
the severe areas meet the requirements for attainment demonstrations 
for the 1-hour standard and thus, could not disapprove them even if EPA 
believed other emission controls might be more effective for attaining 
the 8-hour ozone standard. EPA, however, generally believes that 
emission controls implemented to attain the 1-hour ozone standard will 
be beneficial toward attainment of the 8-hour ozone standard as well. 
This is particularly true regarding the implementation of 
NOX emission controls resulting from EPA's NOX 
SIP Call.
    Finally, EPA notes that although the 8-hour ozone standard has been 
adopted by the EPA, implementation of the standard has been delayed 
while certain aspects of the standard remain before the United States 
Circuit Court of Appeals. The States and EPA have yet to define the 8-
hour ozone nonattainment areas and the EPA has yet to issue guidance 
and requirements for the implementation of the 8-hour ozone standard.

Comment 3

    A commenter asks that EPA require full compliance with regulatory 
requirements now in place that govern the development of attainment 
strategies, and rigorous implementation of statutory requirements for 
RACT and RACM.

Response 3

    As noted in responses to other comments in this final rule and in 
the July 11, 2001 (66 FR 36370) NPR, the Illinois SIP meets the CAA 
requirements for the implementation of RACM. In addition, it is noted 
that the State of Illinois has implemented RACT controls for VOC 
sources in the ozone nonattainment areas in Illinois in full compliance 
with CAA requirements. As noted elsewhere in this final rule and in the 
July 11, 2001 proposed rule, the Chicago nonattainment area is 
currently covered by a waiver from NOX RACT controls.
    Given the above, it is concluded that Illinois has met the 
requirements for RACT and RACM as requested by the commenter.

Comment 4

    A commenter urges EPA to reject the dilatory approaches embodied in 
the proposed approvals, and to instead disapprove the SIP revisions 
until they demonstrate, using the approved Urban Airshed Model (UAM), 
that the areas will attain the 1-hour standard at the earliest possible 
date.

Response 4

    As noted in the July 11, 2001 NPR (66 FR 36370), Illinois has 
demonstrated attainment of the 1-hour ozone standard using the UAM. 
Illinois used UAM data and a statistical approach, as defined in EPA's 
June 1996 Guidance on Use of Modeled Results to Demonstrate Attainment 
of the Ozone NAAQS (EPA-454/B-95-007), to demonstrate attainment of the 
1-hour ozone standard in the Chicago nonattainment area by November 15, 
2007.
    The commenter is objecting to States demonstrating attainment of 
the 1-hour ozone standard via procedures differing from the 
deterministic test as discussed in the June 1996 guidance. However, as 
discussed in more detail in the June 1996 guidance and elsewhere in 
this final rule, the deterministic test is not the only attainment 
demonstration test supported by the attainment demonstration 
requirements of the CAA. The CAA is not prescriptive as to the specific 
nature of the attainment demonstration, other than that the use of a 
photochemical dispersion model, such as UAM, is required for serious 
and above ozone nonattainment areas. The CAA does not prevent the 
consideration of additional data to support the attainment 
demonstration. In addition, the EPA has found that the simple use of 
the photochemical dispersion model through only the deterministic test 
may not be appropriate for some areas.
    See the next comment and our response to that comment.

Comment 5

    A commenter states that none of the air quality plans for severe 
ozone nonattainment areas demonstrate attainment in the manner required 
by section 182(c)(2)(A) of the CAA. Each State's photochemical grid 
modeling clearly predicts continued nonattainment of the 1-hour ozone 
standard, with predicted ozone peak concentrations well above the 
NAAQS. The Weight-Of-Evidence (WOE) approach does not satisfy the CAA's 
mandate to assure attainment of the ozone standard by the deadline, nor 
does it comply with the requirement of a modeled demonstration of 
attainment. EPA may not lawfully approve SIPs based on modeling that 
has been expressly prohibited by the rule.
    Note that a number of commenters made related comments on the ozone 
attainment demonstrations (including those from states other than 
Illinois) reviewed in the December 16, 1999 proposed rules. These 
related comments are also addressed here.

Response 5

    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 ozone standard. 
Section 182(c)(2)(A) of the CAA 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) of the CAA that the attainment demonstration ``be based on 
photochemical grid modeling,'' because the modeling results constitute 
the principal component of EPA's analysis, with supplemental 
information designed to account for uncertainties in the model. This 
interpretation and application of the photochemical modeling 
requirement of section 182(c)(2)(A) finds further justification in

[[Page 56909]]

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) of the 
CAA is reflected in the regulations EPA promulgated for modeled 
attainment demonstrations. These regulations provide, ``The adequacy of 
a control strategy shall be demonstrated by means of applicable air 
quality models, data bases, and other requirements specified in [40 CFR 
part 51 Appendix W] (Guideline on Air Quality Models).'' \4\ 40 CFR 
51.112(a)(1). However, the regulations further provide, ``Where an air 
quality model specified in appendix W * * * is inappropriate, the model 
may be modified or another model substituted [with approval by EPA, and 
after] notice and opportunity for public comment * * *.'' Appendix W, 
in turn, provides that, ``The Urban Airshed Model (UAM) is recommended 
for photochemical or reactive pollutant modeling applications involving 
entire urban areas,'' but further refers to EPA's modeling guidance for 
data requirements and procedures for operating the model. 40 CFR 51 
App. W section 6.2.1.a. The modeling guidance discusses the data 
requirements and operating procedures, as well as interpretation of 
model results as they relate to the attainment demonstration. This 
provision references guidance published in 1991, but EPA envisioned the 
guidance would change as we gained experience with model applications, 
which is why the guidance is referenced, but does not appear, in 
Appendix W. With updates in 1996 and 1999, the evolution of EPA's 
guidance has led us to use both the photochemical grid model, and 
additional analytical methods approved by EPA.
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    \4\ The August 12, 1996 version of ``Appendix W to Part 51--
Guideline on Air Quality Models'' was the rule in effect for these 
attainment demonstrations. EPA is proposing updates to this rule, 
that will not take effect until the rulemaking process for them is 
complete.
---------------------------------------------------------------------------

    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: The deterministic 
test or the statistical test. Under the deterministic test, a predicted 
(attainment year, 2007 for the Chicago nonattainment area) 1-hour ozone 
concentration above 0.124 parts per million (ppm) indicates that the 
area is expected to exceed the standard in the attainment year and a 
prediction at or below 0.124 ppm indicates that the area is expected to 
not exceed the standard. Under the statistical test, attainment is 
demonstrated when all predicted (i.e., modeled) 1-hour ozone 
concentrations inside the modeling domain are at, or below, an 
acceptable upper limit above the NAAQS permitted under certain 
conditions (depending on the severity of the episode modeled).\5\
---------------------------------------------------------------------------

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

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

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

    In 1999, EPA issued additional guidance \7\ that makes further use 
of model results for base case and future emission estimates to predict 
a future design value. This guidance describes the use of an additional 
component of the WOE determination, which requires, under certain 
circumstances, additional emission reductions that are or will be 
approved into the SIP, but that were not included in the modeling 
analysis, that will further reduce the modeled ozone 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 across all 
sites in the nonattainment area for each of three years. These three 
``design values'' represent the air quality observed during the time 
period used to predict ozone for the base emissions. This is 
appropriate because the model predicts the change in ozone from the 
base period to the future attainment date. The three yearly design 
values (highest across the area) are averaged to account for annual 
fluctuations in meteorology. The result is an estimate of an area's 
base year design value. The base year design value is multiplied by a 
ratio of the peak model predicted ozone concentrations in the 
attainment year (i.e., average of daily maximum concentrations from all 
days modeled) to the peak model predicted ozone concentrations in the 
base year (i.e., average of daily maximum concentrations from all days 
modeled). The result is an attainment year design value based on the 
relative change in peak model predicted ozone concentrations from the 
base year to the attainment year. Modeling results also show that 
emission control strategies designed to reduce areas of peak ozone 
concentrations generally result in similar ozone reductions in all core 
areas of the modeling domain, thereby

[[Page 56910]]

providing some assurance of attainment at all monitors.
---------------------------------------------------------------------------

    \7\ ``Guidance for Improving Weight of Evidence Through 
Identification of Additional Emission Reductions, Not Modeled.'' 
U.S. Environmental Protection Agency, Office of Air Quality Planning 
and Standards, Emissions, Monitoring, and Analysis Division, Air 
Quality Modeling Group, Research Triangle Park, NC 27711. November 
1999. Web site: http://www.epa.gov/ttn/scram.
---------------------------------------------------------------------------

    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.
    A commenter on our December 1999 proposed ozone rules criticized 
the 1999 guidance as flawed on grounds that it allows the averaging of 
the three highest air quality sites across a region, whereas EPA's 1991 
and 1996 modeling guidance requires that attainment be demonstrated at 
each site. This has the effect of allowing lower air quality 
concentrations to be averaged against higher concentrations thus 
reducing the total emission reduction needed to attain at the higher 
site. The commenter does not appear to have described the guidance 
accurately. The guidance does not recommend averaging across a region 
or spatial averaging of observed data. The guidance does recommend 
determination of the highest site in the region for each of the three-
year periods, determined by the base year modeled. For example, if the 
base year is 1990, it is the amount of emissions in 1990 that must be 
adjusted or evaluated (by accounting for growth and controls) to 
determine whether attainment results. These 1990 emissions contributed 
to three ozone design value periods (1988-90, 1989-91 and 1990-92). 
Under the approach of the guidance document, EPA determined the design 
value for each of those three-year periods, and then averaged those 
three design values, to determine the area's base ozone design value. 
This approach is appropriate because, as just noted, the 1990 emissions 
contributed to each of those periods, and there is no reason to believe 
the 1990 (episodic) emissions resulted in the highest or lowest of the 
three design values. Averaging the three years is beneficial for 
another reason: It allows consideration of a broader range of 
meteorological conditions--those that occurred throughout the 1988-1992 
period, rather than the meteorology that occurs in one particular year 
or even one particular ozone episode within that year. Furthermore, EPA 
relied on three-year averaging only for purposes of determining one 
component, i.e.--the small amount of additional emission reductions not 
modeled--of the WOE determination. The WOE determination, in turn, is 
intended to be part of 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.
    A commenter on our December 1999 proposed ozone rules criticized 
the component of this WOE factor that estimates ambient improvement 
because it does not incorporate complete modeling of the additional 
emissions reductions. However, the regulations do not mandate, nor does 
EPA guidance suggest, that States must model all control measures being 
implemented. Moreover, a component of this technique--the estimation of 
the future ozone 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 rules. 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 SIPs.
    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, the commenter's approach may overestimate needed emission 
controls because the form of the standard allows up to 3 exceedances in 
3 years at every monitoring site, and, therefore, in every grid cell. 
If the model over-predicts observed concentrations, predicted controls 
may be further overestimated. EPA has considered other evidence, as 
described above through the weight of evidence determination.
    When reviewing a SIP, the EPA must make a determination that the 
control measures adopted are reasonably likely to lead to attainment. 
Reliance on the WOE factors allows EPA to make this determination based 
on a greater body of information presented by the States and available 
to EPA. EPA's decision was further strengthened by each State's 
commitment to check progress towards attainment in a mid-course review 
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 percent improvement in 
ozone is needed for the area to reach attainment, it is assumed a 20 
percent reduction in VOC emissions would be required. There was no 
approach for identifying NOX reductions. The ``proportional 
rollback'' approach is based on a purely empirically/mathematically 
derived relationship. EPA did not rely on this approach in its 
evaluation of the attainment demonstrations. 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. For example, if monitoring 
or modeling results indicate that ozone was reduced by 25 ppb during a 
particular period, and that VOC and NOX emissions fell by 20 
tons per day and 10 tons per day respectively during that period, EPA 
developed a ratio of ozone improvement related to reductions in VOC and 
NOX. This formula assumes a linear relationship between the 
precursors and ozone for a small amount of ozone improvement, but it is 
not a ``proportional rollback'' technique. Further, EPA uses these 
locally derived adjustment factors as a component to estimate the 
extent to which additional emissions reductions \8\--not the core 
control strategies--would reduce ozone levels and thereby strengthen 
the weight of evidence test. EPA uses the UAM to evaluate the core 
control strategies. This

[[Page 56911]]

limited use of adjustment factors is more technically sound than the 
unacceptable use of proportional rollback to determine the ambient 
impact of the entire set of emissions reductions required under the 
attainment SIP. The limited use of adjustment factors is acceptable for 
practical reasons: it obviates the need to expend more time and 
resources to perform additional modeling. In addition, the adjustment 
factor is a locally derived relationship between ozone and its 
precursors based on air quality observations and/or modeling which is 
more consistent with recommendations referenced to in Appendix W and 
does not assume a direct proportional relationship between ozone and 
its precursors. In addition, the requirement that areas perform a mid-
course review (a check of progress toward attainment) provides a margin 
of safety.
---------------------------------------------------------------------------

    \8\ Not applicable to the Chicago area ozone attainment 
demonstration addressed in this final rule, but applicable for other 
ozone nonattainment areas for which EPA is also publishing final 
rules.
---------------------------------------------------------------------------

    A commenter expressed concerns that EPA used a modeling technique 
(proportional rollback) that was expressly prohibited by 40 CFR part 51 
Appendix W without expressly proposing to do so in a notice of proposed 
rulemaking. However, the commenter is mistaken. As explained above, EPA 
did not use or rely on a proportional rollback technique in the 
relevant rulemaking \9\ but used UAM to evaluate the core control 
strategies and then applied its WOE guidance. Therefore, because EPA 
did not use an ``alternative model'' to UAM, it did not trigger an 
obligation to modify Appendix W. Furthermore, EPA did propose to use 
the November 1999 guidance, ``Guidance for Improving Weight of Evidence 
Through Identification of Additional Emission Reductions, Not 
Modeled,'' in the December 16, 1999 NPR and has responded to all 
comments received on that guidance elsewhere in this final rule.
---------------------------------------------------------------------------

    \9\ The rulemaking referred to here is not a proposed rule 
covering the ozone attainment demonstration for the Chicago 
nonattainment area. Rather, the rulemaking referred to here is a 
proposed rule for an area found to have a shortfall in a state's 
ozone attainment demonstration. This type of proposed rule generally 
applied to one of the Northeastern States. This paragraph of the 
response is not applicable to the Illinois ozone attainment 
demonstration.
---------------------------------------------------------------------------

    A commenter also expressed concern that EPA applied unacceptably 
broad discretion in fashioning and applying the WOE determinations. For 
all of the attainment submittals proposed for approval in December 1999 
concerning serious and severe ozone nonattainment areas, EPA first 
reviewed the UAM results. In all cases, the UAM results did not pass 
the deterministic test. In two cases--Milwaukee and Chicago--the UAM 
results passed the statistical test; in the rest of the cases, the UAM 
results failed the statistical test. The UAM has inherent limitations 
that, in EPA's view, were manifest in all these cases. These 
limitations include: Only selected time periods were modeled, not the 
entire three-year period used as the definitive means for determining 
an area's attainment status. Also, there are inherent uncertainties in 
the model formulation and model inputs such as hourly emission 
estimates, emissions growth projections, biogenic emission estimates, 
and derived wind speeds and directions. As a result, for all areas, 
even Milwaukee and Chicago, EPA examined additional analyses to 
indicate whether additional SIP controls would yield meaningful 
reductions in ozone values. These analyses did not point to the need 
for additional emission reductions for Springfield, Greater 
Connecticut, Metropolitan Washington DC, Chicago and Milwaukee, but did 
point to the need for additional reductions, in varying amounts, in the 
other areas. As a result, the other areas submitted control 
requirements to provide the indicated level of emissions reductions. 
EPA applied the same methodology in these areas, but because of 
differences in the application of the model to the circumstances of 
each individual area, the results differed on a case-by-case basis.
    As another WOE factor, for areas within the NOX SIP Call 
domain, results from the EPA regional modeling for NOX 
controls as well as the Tier2/Low Sulfur program were considered. Also, 
for all of the areas, EPA considered recent changes in air quality and 
emissions. For some areas, this was helpful because there were emission 
reductions in the most recent years that could be related to observed 
changes in air quality, while for other areas there appeared to be 
little change in either air quality or emissions. For areas in which 
air quality trends, associated with changes in emissions levels, could 
be discerned, these observed changes were used to help decide whether 
or not the emission controls in the plan would provide progress towards 
attainment.
    A 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. First, 
we disagree with the premise of this comment: EPA does not apply the 
WOE factors to adjust model results. EPA applies the WOE factors as 
additional analysis to compensate for uncertainty in the air quality 
modeling. Second, EPA has applied WOE determinations to all of the 
attainment demonstrations proposed for approval in December 1999. 
Although for most of them, the air quality modeling results by 
themselves indicated nonattainment, for two metropolitan areas--Chicago 
and Milwaukee, including parts of the States of Illinois, Indiana, and 
Wisconsin, the air quality modeling did indicate attainment on the 
basis of the statistical test.
    A 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 indicating 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. EPA has reviewed the evidence provided by the 
commenter. The 1999 monitor values do not constitute substantial 
evidence indicating that the SIPs will not provide for attainment. 
These values do not reflect either the local or regional control 
programs which are scheduled for implementation in the next several 
years. Once implemented, these controls are expected to lower emissions 
and thereby lower ozone values. Moreover, 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 emission reductions 
anticipated for 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 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.
    In addition, a 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

[[Page 56912]]

prepared to conclude at this time that the net effect of all these 
various changes would be to increase or decrease emissions estimates. 
For attainment demonstration SIPs that rely on the Tier 2/Sulfur 
program for attainment or otherwise (i.e., reflect these programs in 
their motor vehicle emissions budgets), States have committed to revise 
their motor vehicle emissions budgets after the MOBILE6 model is 
released. EPA will work with States on a case-by-case basis if the new 
emission estimates raise issues about the sufficiency of the attainment 
demonstration. If analysis indicates additional measures are needed, 
EPA will take the appropriate action.

Comment 6

    A commenter notes that the SIP revisions addressed in the December 
16, 1999 proposed rules claim emission reduction credits from 
relatively recent national EPA rulemakings for surface coatings and 
consumer products. In most cases, the emission reduction credit claimed 
is based on EPA estimates of emission reductions from proposed versions 
of these rules. The final versions of these rules, however, are weaker 
than the proposed rules in a number of key respects. Therefore, the 
emission credits claimed for these national rules must be recalculated 
to reflect only the actual emission reductions that can be expected 
under the EPA rules as finally adopted.

Response 6

    We respond to this comment by addressing each of EPA's rules for 
surface coatings and consumer products.
Architectural and Industrial Maintenance (AIM) Coatings
    On March 22, 1995, EPA issued a memorandum \10\ that provided that 
States could claim a 20 percent 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 a 20 percent 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 percent 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 with full reductions to be achieved by September 2000 
and that it was appropriate for the States to take credit for a 20 
percent VOC emission reduction in their SIPs.
---------------------------------------------------------------------------

    \10\ ``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.
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Autobody Refinish Coatings Rule
    Consistent with a November 27, 1994 EPA policy,\11\ to many States 
claimed a 37 percent VOC emission 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 VOC emission 
reduction of around 33 percent overall nationwide. The 37 percent VOC 
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 prior to the implementation of the national rule. 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 implementation of the national rule was about 40 
percent. However, as a result of the lacquer topcoat exemption added 
between proposal and final rule, the VOC reduction is now estimated to 
be 36 percent for previously unregulated areas. Thus, most previously 
unregulated areas will need to make up the approximately 1 percent 
difference between the 37 percent estimate of VOC emission reductions 
assumed by States, following EPA guidance based on the proposal, and 
the 36 percent VOC emission reduction actually achieved by the final 
rule for previously unregulated areas. EPA's best estimate of the 
reduction potential of the final rule was spelled out in a September 
19, 1996 memorandum entitled ``Emissions Calculations for the 
Automobile Refinish Coatings Final Rule'' from Mark Morris to Docket 
No. A-95-18.
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    \11\ ``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.
---------------------------------------------------------------------------

    Note that the 1 percent shortfall in VOC emission reductions in 
this case is limited to automobile refinishing operations only. The 1 
percent shortfall does not apply to the State's VOC emission reduction 
estimates, as a whole. The State's ozone attainment demonstrations and 
ROP plan rely on VOC emission reductions from many emission source 
categories. Therefore, the actual shortfall in the SIP's VOC emission 
reduction strategy, as a whole and on a percentage basis, is 
significantly less than 1 percent, only a small fraction of 1 percent. 
Considering the ROP plan, this small shortfall is more than compensated 
for through an excess in NOX emission reductions, which go 
well beyond what is required to achieve ROP for each milestone year. 
Considering the ozone attainment demonstration, a review of modeled 
ozone concentration changes against predicted changes in VOC and 
NOX emissions shows that a very small change in emissions of 
well less than 1 percent should produce an undetectable impact on the 
modeled ozone concentrations. Therefore, this small shortfall is not a 
basis for disapproving either the ROP plan or the ozone attainment 
demonstration.
Consumer Products Rule
    Consistent with a June 22, 1995 EPA guidance,\12\ States claimed a 
20 percent

[[Page 56913]]

VOC emission 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 percent VOC emission reduction 
after the December 10, 1998 compliance date. Moreover, these reductions 
largely occurred by the Fall of 1999. In the consumer products rule, 
EPA determined and the consumer products industry concurred, that a 
significant proportion of subject products have been reformulated in 
response to State regulations and in anticipation of the final rule. 63 
FR 48819. That is, industry reformulated the products covered by the 
consumer products rule in advance of the final rule. Therefore, EPA 
believes that complying products in accordance with the rule were in 
use by the Fall of 1999. It is appropriate for the States to take 
credit for a 20 percent VOC emission reduction for the consumer 
products rule in their SIPs.
---------------------------------------------------------------------------

    \12\ ``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.
---------------------------------------------------------------------------

Comment 7

    A commenter states that the attainment and ROP demonstrations in 
most States are flawed because they assume a vehicle fleet mix that 
does not accurately reflect the growing proportion of sport utility 
vehicles (SUVs) and gasoline trucks, which pollute more than 
conventional cars. EPA and the States have not followed a consistent 
practice in updating ozone modeling to account for changes in vehicle 
fleets. The underestimation of emissions from this can be significant. 
Therefore, if the motor vehicle emissions inventory has not been 
updated to prepare the current SIP submission, the SIP should be 
disapproved.

Response 7

    All of the SIPs on which we are taking final action are based on 
the most recent vehicle registration data available at the time the SIP 
was submitted. The SIPs use the same vehicle fleet characteristics that 
were used in the most recent periodic inventory update. The MVEB for 
the Illinois ozone attainment demonstration SIP revision is based on 
vehicle registration data from 1996, which was the most recent data 
available at the time the SIP revision was submitted. EPA requires the 
most recent available data to be used, but we do not require it to be 
updated on a specific schedule. Therefore, different SIPs base their 
fleet mix on different years of data. Our guidance does not suggest 
that SIPs should be disapproved on this basis. Nevertheless, we do 
expect that revisions to these SIPs that are submitted using MOBILE6 
(as required in those cases where the SIP is relying on emissions 
reductions from the Tier 2 standards) will use updated vehicle 
registration data appropriate for use with MOBILE6, whether it is 
updated local data or the updated national default data that will be 
part of MOBILE6.

Comment 8

    Several commenters note that the CAA requires nonattainment plans 
to provide for implementation of all RACM as expeditiously as 
practicable. The SIPs at issue in the December 16, 1999 proposed rules 
do not meet these requirements. The plans contain only a limited set of 
emission control measures, and fail to offer any justification for the 
States' failure to adopt numerous available measures that were 
specifically identified by EPA and others. In addition, the SIPs 
contain no demonstration or claim that the emission control schedules 
are the earliest practicable ones.
    These commenters note that the Phase II NOX limits 
agreed to by the Ozone Transport Commission States are clearly RACM, as 
they are widely in effect. States that have adopted such measures have 
not adopted enforceable NOX RACT limits for all relevant 
facilities within their jurisdiction. It is not sufficient for States 
to assert that they will adopt additional NOX emission 
controls if needed. The CAA requires each SIP to include all RACM now, 
and to show that such measures have been adopted in legally enforceable 
forms.

Response 8

    EPA has previously provided guidance interpreting the RACM 
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 concluded that a measure would not be reasonably 
available if it would not advance attainment. 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 potential RACM 
measures either because they would not advance the attainment date, 
would cause substantial widespread and long-term adverse impacts, or 
for various reasons related to local conditions, such as economics or 
implementation concerns. The EPA also issued a recent memorandum on 
this topic, ``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.
    More specifically with respect to the Chicago nonattainment area, 
as noted elsewhere in this final rule and in the July 11, 2001 proposed 
rule (66 FR 36370), we have determined that the Illinois SIP does 
provide for the implementation of RACM. In addition, the State has been 
granted a waiver from adopting and implementing NOX RACT 
requirements in the Chicago nonattainment area. Therefore, these 
emission controls are not RACM for this area. Finally, the State has 
adopted and is implementing regional NOX controls, which 
have been demonstrated to support the attainment of the ozone standard.
    Although EPA encourages areas to implement available RACM measures 
as potentially cost-effective methods to achieve emissions reductions 
in the short term, EPA does not believe that section 172(c)(1) requires 
implementation of potential RACM measures that either require costly 
implementation efforts or produce relatively small emissions reductions 
that will not be sufficient to allow any of the four areas to achieve 
attainment in advance of full implementation of all other required 
measures. Because we believe that additional control measures are not 
reasonably available for the Chicago nonattainment area, EPA believes 
that the attainment date proposed for approval is as expeditious as 
practicable.

Comment 9

    A commenter states that the air quality plans are deficient with 
respect to Transportation Control Measures (TCMs). The plans contain no 
or few serious new measures to reduce growth in vehicle travel. Most 
plans do not seriously consider the possibility of major expansion of 
transit service, reduced or zero transit fares, pricing strategies, 
etc. There is also substantial evidence that significant air quality

[[Page 56914]]

benefits can be achieved by modifying land development patterns to 
limit urban sprawl and to facilitate transit use. The commenter cites 
several examples that would apply to this issue. The States have 
generally not included any of these types of measures in their SIPs, 
and have offered no justification for the failure to do so.

Response 9

    EPA has long advocated that States consider the kinds of emission 
control measures that the commenter has suggested, and EPA has indeed 
provided guidance on those measures. See, for example, 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 of measures that EPA itself evaluated in the RACM analysis for 
three serious ozone nonattainment areas--that even collectively do not 
result in many emission reductions. Further more, 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 emissions control technology as they make progress 
toward attainment and consider new emissions control technologies that 
may in fact result in more expeditious improvement in air quality.
    Our approach toward TCMs as RACM and the RACM requirement is 
grounded in the language of the CAA. 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.'' 
The EPA interprets this language as tying the RACM requirement to the 
requirement for attainment of the primary air quality standards. The 
CAA provides that the attainment date shall be ``as expeditiously as 
practicable but no later than * * *.'' the deadlines specified in the 
CAA. EPA believes that the use of the same terminology in conjunction 
with the RACM requirement serves the purpose of specifying RACM as the 
way of expediting attainment of the NAAQS in advance of the attainment 
deadline(s) specified in the CAA. As stated in the ``General Preamble'' 
(57 FR 13498 at 13560, April 16, 1992), ``The EPA interprets this 
requirement to impose a duty on all nonattainment areas to consider all 
available control measures and to adopt and implement such measures as 
are reasonably available for implementation in the area as components 
of the area's attainment demonstration.'' In other words, because of 
the construction of the RACM language in the CAA, EPA does not view the 
RACM requirement as separate from the attainment demonstration 
requirement. Therefore, EPA believes that the CAA supports its 
interpretation that measures may be determined to not be RACM if they 
do not advance the attainment date. In addition, EPA believes that it 
would not be reasonable to require implementation of measures that 
would not in fact advance attainment. See 57 FR 13560.
    The term ``reasonably available control measure'' is not actually 
defined in the definitions contained in the CAA. Therefore, the EPA 
interpretation that potential emission control measures may be 
determined not to be RACM if they require an intensive and costly 
implementation 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 emission 
reductions from 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 
emission control measures based on local conditions, including costs. 
See 57 FR 13561.
    As noted in our July 11, 2001 proposed rule (66 FR 36370, 36398), 
Illinois has addressed the adoption and implementation of TCMs through 
an ongoing and continuous evaluation and implementation of TCMs in the 
Chicago nonattainment area and through including reasonably available 
TCMs in the SIP. The IEPA has worked extensively with the Chicago Area 
Transportation Study (CATS), which is the Metropolitan Planning 
Organization (MPO) for Chicago nonattainment area, to evaluate and 
implement TCMs which are reasonably available. The IEPA has been an 
active participant in the evaluation of TCMs for funding with the 
Congestion Mitigation and Air Quality (CMAQ) Program.
    The Illinois SIP has approved TCMs which are credited in both the 
15 percent ROP plan (62 FR 66279) and the post-1996 ROP plan (65 FR 
78961). The first TCMs to be approved into the Illinois SIP were 
approved in 1995 as part of the Vehicle Miles Travelled (VMT) offset 
SIP (60 FR 48896). The 127 TCMs which were approved included commuter 
parking, a rideshare program, new rapid transit service, traffic signal 
coordination projects, an improved vanpool program, and new 
transportation centers and train station reconstruction. Since that 
time, additional TCMs have been implemented and added to the SIP. 
Additional TCMs were approved into the SIP when the 9 percent post-1996 
ROP plan was approved on December 18, 2000. The additional TCMs 
included improved public transit, such as fixed guideway transit and 
rail station improvements, traffic flow improvements, increased park 
and ride service, increased parking at transit stations, and bicycle 
and pedestrian programs.
    CATS has prepared a series of reports which evaluated emissions 
control benefits for various TCMs and has reported on the 
implementation of TCMs in the Chicago area. The CATS reports are listed 
in our July 11, 2001 proposed rule (66 FR 36370, 36398). These reports 
have been submitted by the IEPA as part of the documentation of the SIP 
and are contained in the docket for this action.
    We have concluded that, through the IEPA and CATS process of TCM 
evaluation and selection, Illinois has considered and implemented all 
reasonably available TCMs. As explained in the July 11, 2001 proposed 
rule (66 36370), any measures that have not been included in the SIP 
would provide only marginal air quality improvements at significantly 
greater expense or with other significant implementation barriers and 
would not advance attainment of the 1-hour ozone standard.

Comment 10

    A commenter notes that a 1993 State and Territorial Air Pollution 
Program Administrators (STAPPA) report recommended adoption of a 
California or South Coast Air Quality Management

[[Page 56915]]

District (SCAQMD) controls or emission limits for various source 
categories. The commenter mentions further possible control measures as 
well, and notes that none of the States offered consideration of these 
emission control measures accompanied by reasoned explanations for 
their rejection.

Response 10

    The State has completed the adoption of the ozone attainment 
demonstration and its associated emissions control strategy. We have 
determined that the SIP, as currently adopted by the State, addresses 
the implementation of RACM. Section 172(c)(1) of the CAA requires SIPs 
to contain RACM and provides for areas to attain as expeditiously as 
practicable. EPA has previously provided guidance interpreting the 
requirements of section 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 to be RACM. EPA also indicated in that guidance that 
States should consider all potentially available emission control 
measures to determine whether they are potentially available for 
implementation in an area and whether they would advance the attainment 
date. Further, States should indicate in their SIPs whether emission 
control measures considered were reasonably available or not, and, if 
measures are reasonably available, they must be adopted by the States 
as RACM. Finally, EPA indicated that States could reject emission 
control measures as not being RACM because they would cause substantial 
widespread and long-term adverse impacts, or would be economically or 
technologically infeasible. This policy has been detailed in other 
comments addressing RACM and comments suggesting other measures that 
could have been considered for implementation.
    As stated in the July 11, 2001 proposed rule (66 FR 36370), the 
State of Illinois, along with the other Lake Michigan Air Director 
Consortium (LADCO) states,\13\ considered a wide range of measures for 
their reduction potential, cost, and ease of implementation. The State 
of Illinois has implemented measures which have met the required ROP 
reductions and have also been modeled in the attainment demonstration 
modeling which demonstrates that the Lake Michigan area can show 
attainment of the 1-hour ozone standard by the 2007 attainment date. 
Illinois relies in large part on emission reductions from outside of 
the Chicago nonattainment area resulting from EPA's NOX SIP 
Call rule or section 126 NOX rule (65 FR 2674, January 18, 
2000) to reach attainment of the ozone standard. In the NOX 
SIP Call (63 FR 57356), we concluded that NOX emission 
reductions from various upwind States were necessary to provide for 
timely attainment of the 1-hour ozone standard in nonattainment areas 
in various downwind States, including Illinois on both counts. The 
NOX SIP Call established requirements for control of sources 
of significant NOX emissions in the relevant upwind States. 
These NOX emission reductions are not expected to be fully 
implemented until May 2004. The ozone attainment demonstration for 
Illinois indicates that the ozone reduction benefit expected to be 
achieved from the regional NOX emission reductions is 
substantial. We have seen no evidence for similar ozone benefits 
resulting from Illinois-specific emission controls not already adopted 
by the State that would significantly advance the attainment date for 
the Chicago-Gary-Lake County ozone nonattainment area. Therefore, EPA 
concludes, based on the available documentation, that the emission 
reductions from additional emission control measures will not advance 
attainment, and, thus, none of the possible additional emission control 
measure can be considered to be RACM for the purposes of section 
172(c)(1) of the CAA.
---------------------------------------------------------------------------

    \13\ The Lake Michigan Air Directors Consortium was formed to 
seek solutions to ongoing ozone air quality problems in the Lake 
Michigan region, and is made up of representatives of the State of 
Illinois, Indiana, Michigan, and Wisconsin.
---------------------------------------------------------------------------

    It should be noted that Illinois, along with the other LADCO 
States, has considered a wide range of possible emission controls as 
part of the Lake Michigan Ozone Control Program. The States reviewed 
the emission controls being implemented elsewhere in the United States 
and considered possible source controls for source categories with 
significant VOC and NOX emissions. This included emission 
controls recommended by STAPPA and implemented by SCAQMD and other 
States. Possible emission controls were evaluated in terms of ease of 
implementation and cost-effectiveness, possible timing for 
implementation, and public and industrial acceptability. This analysis 
led the individual LADCO States to give additional consideration to 
possible emission controls specifically applicable to their individual 
States (few possible emission controls had generally applicability to 
all LADCO States). The emission controls given favorable further 
consideration generally became parts of the States' ROP plans. The 
rejected emission controls would not be considered to be RACM under EPA 
policy as discussed above.

Comment 11

    A commenter states that MVEBs in the state plans are by definition 
inadequate because the plans do not demonstrate timely attainment or 
contain the emission reductions required for all RACM. The commenter 
asserts that the EPA may not find as adequate a MVEB that is derived 
from a SIP that is inadequate for the purposes for which it is 
submitted. The commenter believes that none of the MVEBs in the state 
plans addressed in the December 16, 1999 proposed rules are consistent 
with either the level of emissions achieved by implementation of all 
RACM, nor are they derived from SIPs that provide for attainment.

Response 11

    As noted above and in the July 11, 2001 proposed rule (66 FR 
36370), we have determined that the State's air quality plan, as 
submitted in December 2000, does reflect the adoption and 
implementation of RACM. The plan also contains MVEBs based on the 
plan's ozone attainment demonstration. Therefore, we disagree with the 
commenters assertion that we cannot approve the plan's MVEBs.
    See the response to Comment 1 above.

Comment 12

    A commenter notes that the CAA requires the SIPs to include a 
program to provide for the enforcement of the adopted control measures. 
Most plans address this requirement, however, none of the plans clearly 
set out programs to provide for enforcement of the various emission 
control strategies relied on for emission reduction credit.

Response 12

    In general, state enforcement, personnel and funding program 
elements are contained in SIP revisions previously approved by EPA 
under obligations set forth in section 110(a)(2)(c) of the CAA. Once 
approved by the EPA, there is no need for states to readopt and 
resubmit these programs with each and every SIP revision generally 
required by other sections of the CAA. In addition, emission control 
regulations will also contain specific enforcement mechanisms, such as 
record keeping and reporting requirements, and may also provide for 
periodic state inspections and reviews of the affected sources. EPA's 
review of

[[Page 56916]]

these regulations includes review of the enforceability of the 
regulations. Rules that are not enforceable are generally not approved 
by the EPA. To the extent that the ozone attainment demonstration and 
ROP plan depend on specific state emission control regulations, these 
individual regulations have undergone review by the EPA in past or 
separate approval actions. Note that the Chicago attainment 
demonstration and post-1999 ROP plan do not depend on the 
implementation of State emission control regulations that have not 
already been approved by the EPA or that need further review by the EPA 
(the State's NOX rules, as discussed elsewhere in this final 
rule, have been approved through sign-off by the EPA and are undergoing 
separate rulemaking).

Comment 13

    A commenter notes that the States were required by the CAA to have 
SIPs in place by 1994 containing all RACM and providing for attainment 
as expeditiously as practicable. If additional control measures are 
required, those measures must be adopted and included in the SIP now. 
Deferred adoption and submittal of these control measures is not 
consistent with the statutory mandates and is not consistent with the 
CAA's demand that all SIPs contain enforceable measures, and approval 
of this approach exceeds EPA's authority to approve a SIP if a portion 
of the SIP is not adequate to meet all tests for approval. Therefore, 
for all of the forgoing reasons, EPA must disapprove the attainment 
demonstrations for serious and severe nonattainment area ozone SIPs.

Response 13

    See the response to Comment 1 above. We have determined that the 
Illinois SIP provides for the implementation of RACM. In addition, the 
attainment demonstration and post-1999 ROP plan are supported by State-
adopted emission control measures as well as Federal emission control 
measures.

Comment 14

    A commenter alleges that the April 1998 Illinois SIP submittal and 
the changes proposed by the State at the January 18, 2000 hearing fall 
short of completing the attainment demonstration SIP for the 1-hour 
ozone standard.

Response 14

    As noted in the July 11, 2001 proposed rule (66 FR 36370), Illinois 
has completed the adoption and submittal of the ozone attainment 
demonstration for the Chicago nonattainment area.

Comment 15

    A commenter believes that Illinois has not selected or adopted a 
final emissions control strategy that is consistent with a modeled 
attainment demonstration, as required by the CAA.

Response 15

    We agree that, at the time of the preparation of the December 16, 
1999 proposed rule, Illinois had not completed adoption of an emissions 
control strategy supported by an ozone attainment demonstration. This 
was stated in that proposed rule. This problem has been corrected with 
Illinois' submittal of the attainment demonstration supplement in 
December 2000. The final attainment demonstration and its associated 
emissions control strategy were addressed in the July 11, 2000 proposed 
rule (66 FR 36370). It is noted that Illinois has adopted the emissions 
control strategy that supports the ozone attainment demonstration and 
has adopted all emission control rules required to implement this 
emissions control strategy.

Comment 16

    A commenter believes that the IEPA relied on numerous assumptions 
about boundary conditions with regard to future NOX emission 
reductions and inaccurate WOE analyses to rationalize an acceptable 
ozone attainment demonstration. After submittal of the plan in April 
1998, IEPA subsequently learned that the 1999 VOC emission reductions 
in the Chicago area were overestimated due to mistakes and deferred 
emission control strategies. Thus, the modeling on which the State 
relied is inaccurate and ozone improvements are overestimated. 
Additionally, the State has taken advantage of EPA's flawed 
NOX substitution policy to hide shortfalls in VOC emission 
reductions.

Response 16

    When the IEPA prepared the ozone attainment demonstration reviewed 
in the December 16, 1999 proposed rule (64 FR 70496), the State 
followed EPA's guidance, as outlined in that proposed rule, in making 
certain assumptions about future boundary conditions expected to be 
impacted by EPA's NOX SIP Call. The State of Illinois (and 
the other LADCO States) tested a number of different scenarios for 
future reductions in regional NOX emissions. Since the State 
could not select and adopt a specific scenario for future 
NOX emission reductions at that time (at the time of the 
April 1998 submittal), the State elected to submit the modeling results 
for the range of regional NOX emission reduction scenarios 
considered without adopting a specific emissions control strategy.
    The State realized that additional analyses would have to be 
conducted after EPA and the courts had resolved legal challenges to 
EPA's NOX SIP Call. As part of the followup to the April 
1998 submittal and to meet EPA's requirements for approval of the ozone 
attainment demonstration (see 64 FR 70496), Illinois and the other 
LADCO States reassessed the projected local and regional VOC and 
NOX emission reductions. The subsequent December 2000 ozone 
attainment demonstration modeling reflects the corrected VOC and 
NOX emission reduction estimates. Therefore, the problems 
identified by the commenter have been corrected in the subsequent SIP 
submittal.
    With regard to substitution of NOX emission controls for 
VOC emission controls, this is an issue relevant to ROP plans and not 
to ozone attainment demonstrations. The CAA authorizes the States to 
select a mixture of VOC and NOX emission controls to attain 
the ozone standard (see section 182(b)(1)(A)(i) of the CAA). The CAA 
does not restrict the State to only VOC emission controls to attain the 
ozone standard. The use of the photochemical dispersion models can 
address the relative merits of VOC versus NOX emission 
controls and the relative merits of local versus regional emission 
controls for both categories of these pollutants.
    With regard to the substitution of NOX emission controls 
for VOC emission control to achieve ROP requirements, you are referred 
to Comment 29 and our response to that comment below.

Comment 17

    A commenter notes that the proposed conditional approval of 
Illinois' ozone attainment demonstration allows Illinois to submit a 
completely different emissions control strategy, motor vehicle 
emissions budget, and photochemical modeling by December 2000 to 
demonstrate attainment and avoid disapproval of the ozone attainment 
demonstration. EPA, however, wants the emissions controls strategy and 
motor vehicle emissions budget that is consistent with the attainment 
demonstration to make an adequacy decision by May 31, 2000. In the 
commenter's opinion, Illinois is not in a position to provide an MVEB 
with its current modeling (at the time the commenter prepared this 
comment in

[[Page 56917]]

February 2000), and promises to create these products and/or emissions 
reductions in the future are not acceptable. Final conditional approval 
of the attainment SIP is not warranted, nor is an adequacy finding for 
the emissions control strategy or motor vehicle emissions budget 
without significant improvements.

Response 17

    The States of Illinois, Indiana, and Wisconsin submitted attainment 
demonstration SIP revisions in April 1998 in response to EPA 
requirements. At the time, there was no final EPA decision on the level 
of NOX SIP Call emission reductions that EPA would require 
these States to achieve. The April 1998 Illinois submittals reflected 
this uncertainty by demonstrating that various levels of local emission 
controls could provide for attainment of the 1-hour ozone standard 
depending on the amount of upwind NOX emission reductions 
assumed to result from the NOX SIP Call. Although no 
specific emissions control strategy was selected, the submittals did 
provide for attainment of the 1-hour ozone standard in the Lake 
Michigan area given the available information. Consequently, EPA 
determined that the 1998 Illinois submittal could be approved, but only 
on the condition that it be supplemented by updated ozone modeling and 
additional emission control rules supporting and implementing an 
adopted emissions control strategy, all to be submitted by December 
2000. In the meantime (until the submittal of the final ozone 
attainment demonstration in December 2000), the emissions control 
strategy and the MVEB conistent with the 1998 submittal were assumed to 
be adequate on an interim basis for purposes of making conformity 
determinations. The EPA recognized that the State was obligated to 
submit a final attainment demonstration and associated MVEB by December 
2000 (December 16, 1999 proposed rule (64 FR 70496)). The commenter 
provides no convincing basis for concluding that the EPA erred in its 
December 16, 1999 proposed conditional approval. The proposed 
conditional approval correctly recognized that the State had not 
completed the emission control strategy adoption process due to 
uncertainty over regional NOX emission reduction 
requirements, the selection and adoption of which was affected by an 
uncertain situation beyond the control of the State.
    Note that the December 2000 submittal included a final, adopted 
emissions control strategy and a revised adopted MVEB which replaced 
the interim versions. This submittal moots the commenter's prior 
concern.

Comment 18

    The State notes (in response to the December 16, 1999 proposed 
rule) that it has committed on several occasions to adopt the control 
measures, including NOX emission reductions, necessary to 
attain the 1-hour ozone standard.

Response 18

    The State has satisfied its commitment to adopt the emission 
control measures in the December 2000 attainment demonstration and 
post-1999 ROP plan submittal and through the adoption of NOX 
emission control regulations for major Electrcial Generating Units 
(EGUs), major non-EGU boilers and turbines, and major cement kilns.

Comment 19

    The State notes that it has committed to perform a MCR as necessary 
and appropriate as part of a recent amendment to the SIP, but believes 
that the timing of the MCR is incompatible with the ozone standard and 
with EPA's rules regarding the submission of quality assured data. The 
State observes that a MCR following the ozone season in 2003 will 
reflect only one season where regional controls of NOX 
emissions have been implemented. One season's ozone levels are 
insufficient to provide a trend analysis. Review of the impacts of the 
implementation of the emissions control strategy would be heavily 
reliant on the weather conditions of that particular ozone season.
    The State notes that a MCR following the 2003 ozone season does not 
reflect the form of the ozone standard, which is essentially a 3-year 
standard. The State will not be able to credibly determine whether 
additional emissions control measures are necessary after only one 
season during which the control measures identified in the ozone 
attainment demonstration have been implemented.
    The State believes that the EPA determined that the MCR should be 
performed in 2003 to accommodate ozone nonattainment areas classified 
as serious, whose attainment dates are 2005. The State has no opinion 
regarding the appropriateness of a MCR in 2003 for those areas. The 
State, however, believes that there is available time for nonattainment 
areas with attainment dates of 2007 to perform a more meaningful MCR in 
2004 or 2005, after emission controls identified in the SIP supplement 
to be submitted at the end of 2000 have been in place for two or three 
ozone seasons. (This comment and other State comments on the timing of 
the MCR discussed here were submitted in response to the December 16, 
1999 proposed rule. Even though the EPA subsequently changed its policy 
regarding the timing of the MCR and the State subsequently revised the 
committed timing for the MCR to 2004 making these comments generally 
moot, they are addressed for purposes of completeness.)
    The State believes that EPA's ozone draft guidance recognizes that 
a MCR in 2004 or 2005 would be more robust and would require fewer 
manipulations of data and much less speculation regarding the future 
impact of the emission control measures implemented in 2003 (the 
NOX SIP Call rules) as well as the need for additional 
emission control measures.
    The State asserts that, for the purposes of the MCR, it is not 
realistic for EPA to expect states to provide quality assured ozone 
data between the end of the ozone season and the end of the calendar 
year. EPA's rules allow 90 days for a state to quality assure and 
submit data to the Aerometric Information Retrieval System (AIRS), but 
EPA is requiring a submittal of the data and an analysis of the data 
before the end of the 90 day period. This could significantly impact 
the States' approaches to attainment within that same 90 day period. 
Although the IEPA does not believe that emission reductions beyond 
those that will be included in the final SIP will be necessary for 
Illinois to attain the 1-hour ozone standard, IEPA believes that they 
can provide EPA with an analysis, if not by December 31, 2003, then 
shortly thereafter. Nevertheless, the timing of EPA's requirement for a 
MCR is contrary to its own rules regarding submission of quality 
assured data, and, therefore, is inappropriate.

Response 19

    EPA understands the issue of timing. However, the timing issue 
involves balancing two critical factors. On the one hand, for a MCR to 
be useful in flagging the need to make changes to an emissions control 
strategy in time to affect attainment by the attainment date (by 
November 15, 2007 for the Chicago nonattainment area), it needs to be 
done sufficiently in advance of the attainment date. On the other hand, 
the MCR would be able to discern more accurately whether progress is 
being made if there were sufficient emission reductions that occurred 
in the time period between the attainment demonstration modeling and 
the time the MCR is performed. Thus, in

[[Page 56918]]

reviewing a state's commitment regarding the performance of a MCR for 
any specific area, EPA must appropriately accommodate these two 
factors. In general, EPA believes that the states should perform the 
MCR for ozone nonattainment areas within the NOX SIP Call 
region (which includes Illinois) immediately following the first ozone 
season (April 15 through October 15 for the Chicago nonattainment area) 
during which sources are required to comply with the state's 
NOX SIP. Because the Court extended the source compliance 
deadline for the NOX SIP Call until May 31, 2004, EPA 
generally believes that for areas in the Eastern United States, the 
most appropriate time to perform the MCR would be following the 2004 
ozone season.
    The December 16, 1999 NPRs for the ten serious and severe ozone 
nonattainment areas noted that, for serious areas with an attainment 
date extension to 2005 or earlier, it would be impracticable to perform 
a mid-course review per se. The NPRs asked the states to commit instead 
to an early assessment of whether attainment will be achieved. See for 
example 64 FR 70319 at 70325 (NPR for the Western Massachusetts ozone 
nonattainment area). Thus, EPA did not base its recommendation for the 
MCR in 2003 on the assumption that the 18 to 24 month period between 
completion of the MCR and November 2005 would be a sufficient period to 
ensure attainment for serious nonattainment areas by 2005. EPA, 
however, continues to believe that for areas with an attainment date of 
2007, the best balance in terms of timing for the MCR is to ensure that 
the area has several years between completion of the MCR and its 
attainment date in order for the state and EPA to assess the need for 
the state (or perhaps upwind states) to adopt and implement additional 
controls. Due to the court-ordered delay in the mandatory source 
compliance date under the NOX SIP Call, EPA believes that 
performing the MCR by the end of 2004 best accommodates the need for 
emission controls to be implemented and the need for EPA and states to 
have time to take action in response to the MCR.
    With regard to the timing of the MCR for severe nonattainment areas 
versus serious nonattainment areas, as noted above, we conceptually 
agree with the commenter. Performing the MCR after the implementation 
of significant emission controls and after assessing the ozone data for 
the time period following the implementation of these emission controls 
would provide a more robust MCR with fewer assumptions regarding the 
impacts of the emission controls on ozone levels. Nonetheless, to allow 
for sufficient time to prepare and implement supplemental emission 
controls, if needed, prior to the ozone standard attainment deadline, 
the MCR must be conducted several years prior to the attainment 
deadline. A sufficient lead time of 2 to 3 years is believed to be 
reasonable. Therefore, for a severe ozone nonattainment area with a 
2007 attainment deadline, the MCR should be conducted no later than 
late 2004. Illinois' commitment to conduct the MCR by the end of 2004 
meets this recommendation.
    Please note from the July 11, 2001 proposed rule (66 FR 36370) that 
we are proposing to approve Illinois' commitment to conduct the MCR by 
the end of 2004, after the implementation of the State's NOX 
emission control rules in compliance with EPA's NOX SIP 
Call. This timing may not allow the State to collect and quality assure 
ozone data from the entire 2004 ozone season (the State is allowed up 
to 90 days following a calendar quarter to quality assure the ozone 
data and submit the data to the EPA) following ``normal'' quality 
assurance schedules and to include all of these data in the 2004 MCR. 
The State may have to expedite the quality assurance of the 2004 ozone 
data to include as many of the 2004 ozone data as possible in the MCR. 
On the other hand, the State should be able to project the impacts of 
the NOX emission control rules using new or available ozone 
modeling and the 2001-2003 ozone data to draw some MCR conclusions.
    Conducting a MCR by the end of 2004 will make it difficult for the 
State to fully quality assure and incorporate the ozone season ozone 
data for 2004 into the MCR while still allowing time for preparation of 
the MCR and public review and input into this process. Nonetheless, as 
noted above, the use of current ozone data is only one metric that may 
be taken into consideration in this process. In addition, the State 
will be able to take into consideration ozone data through 2003 which 
should be quality assured well before the production of the MCR. The 
State may also choose to pursue expedited quality assurance of the 2004 
data if the State considers that to be an overwhelming need for the 
purposes of preparing the MCR, although such data use is not required 
by the EPA.
    We assume that the State will use all available data in the 
preparation of the MCR. To the extent 2004 data are available, the 
state is encouraged to make use of such data.

Comment 20

    A commenter notes that a majority of the States that belong to the 
Ozone Transport Region (OTR) were given until October 31, 2001 to 
submit their regional NOX strategy that demonstrates 
attainment of the 1-hour ozone standard, while Illinois is required to 
submit a fully adopted attainment strategy, including any regional 
emission reductions, by December 2000. Equity requires that EPA grant 
Illinois and other Lake Michigan States the same amount of time to 
submit a regional strategy as has been granted the OTR States.
    The commenter notes that the EPA states that the basis for 
extending the deadline for the OTR States is section 184 of the CAA, 
which creates a Congressionally recognized ozone transport region, and 
that the OTR needs additional time to make the necessary agreements to 
adopt a regional strategy. Section 184 of the CAA, however, does not 
explicitly extend for States in the OTR any attainment deadlines.
    The commenter believes that the OTR being recognized by Congress 
has no bearing on the ability of multiple states to address regional 
NOX controls. States not located in the OTR may encounter 
more barriers in arriving at a regional approach, yet the resulting 
product will be as beneficial to air quality as the product of the OTR.
    EPA's call for NOX SIPs, calling for regional 
NOX emission reductions, explicitly recognized that Illinois 
needs reductions in its boundary conditions in order to attain the 1-
hour ozone standard, as do the States of Indiana, Michigan, and 
Wisconsin. To this end, Illinois and the other Lake Michigan States, as 
well as the upwind neighboring States of Missouri, Kentucky, Iowa, and 
Tennessee, are currently working cooperatively to model and to develop 
a regional ozone strategy. Hence, the same or greater complexities that 
apply to the OTR States also apply to the efforts of these Midwestern 
States to develop a regional control strategy.
    The commenter notes that Illinois has the same or later 1-hour 
ozone standard attainment date as the ozone nonattainment areas 
included in the OTR, and should, therefore be granted until October 31, 
2001 to develop the regional portion of the ozone attainment strategy.

Response 20

    As an initial matter, this issue is moot. Illinois, along with 
Indiana and Wisconsin, submitted SIP revisions with

[[Page 56919]]

fully adopted rules, and EPA is fully approving those SIP revisions 
today. Thus, there is no shortfall (as exists for many of the OTR 
States) for either the Chicago or Milwaukee areas, and these States do 
not need additional time to submit more SIP revisions relative to 
attainment of the 1-hour ozone standard.
    Moreover, the circumstances that existed at the time of the 
proposed actions in December 1999 differed substantially between the 
States in the Northeast and those in the Midwest. At the time of EPA's 
proposals in December 1999, the States in the Northeast submitted SIP 
revisions that they believed fully complied with what was required to 
be submitted by December 2000--i.e., completed ozone modeling and fully 
adopted emission control measures. In contrast, at the same time the 
Midwestern States encompassing the Chicago-Gary-Lake County and 
Milwaukee-Racine ozone nonattainment areas had not yet identified a 
specific emission control strategy to attain the ozone standard and had 
not yet submitted SIP revisions with fully adopted emission control 
measures, and had existing commitments to submit the adopted measures 
by December 2000. Upon review of the SIP revisions for the Northeastern 
ozone nonattainment areas, EPA concluded that each area needed 
additional emission reductions in order to have a fully approvable SIP 
(to eliminate shortfalls in their adopted emission control strategies). 
At the time of the proposed actions, EPA was unable to determine if 
there would be shortfalls for the Midwest areas because they had not 
identified final emission control strategies to attain the ozone NAAQS.
    In considering how EPA should allow the States to adopt emission 
control measures to fill the shortfalls, EPA considered that these 
areas (the Northeastern nonattainment areas) were located in the Ozone 
Transport Region (OTR) and that EPA should provide the OTR States with 
time to develop recommended emission control measures to achieve 
emission reductions to fill the shortfalls. Thus, EPA provided in the 
proposed actions to give these areas until October 31, 2001 to complete 
the OTR process and to adopt measures sufficient to fill the 
shortfalls. Because the Midwest States were on track to identify a 
final emissions control strategy and to submit adopted measures by 
December 2000, EPA saw no need--and neither the States nor any other 
interested party identified a need--to extend the time period for 
submission of the final plans.
    The commenter claims that the Northeast States were given a longer 
time to adopt ``regional'' emission control measures. EPA notes that, 
with respect to EPA's regional NOX SIP Call, all States were 
required to submit NOX emission control rules by October 30, 
2000 and to implement the rules by May 31, 2004. The Northeast States 
were not provided a longer time than the Midwest States to either 
submit or implement these rules.

Comment 21

    For States that need additional VOC emission reductions, a 
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 the manufacture of polystyrene products, such as 
food trays and egg cartons. HFC-152a could be used instead of 
hydrocarbons as a blowing agent. Use of HFC-152a, which is classified 
as a non-VOC (VOC exempt), would eliminate nationwide the entire 25,000 
tons per year of VOC emissions from this industry.

Response 21

    EPA met with the commenter and discussed the technology described 
in the comment. Since the HFC-152a is VOC exempt, its use would give a 
VOC reduction compared to the use of VOCs, such a pentane or butane, as 
blowing agents. EPA, however, has not studied this technology 
exhaustively. It is each State's prerogative to specify which measures 
it will adopt in order to achieve the additional VOC reductions it 
needs. In evaluating the use of HFC-152a, States may want to consider 
claims that products made with this blowing agent are comparable in 
quality to products made with other blowing agents. Also, the question 
of the over-all long term environmental effect of encouraging emissions 
of fluorine compounds would be relevant to consider. This is a 
technology which States may want to consider, but ultimately, the 
decision of whether to require this particular technology to achieve 
the necessary VOC emissions reductions must be made by each affected 
State. Finally, EPA notes that under the Significant New Alternatives 
Policy (SNAP) program, created under CAA section 612, EPA has 
identified acceptable foam blowing agents, many of which are not VOCs 
(http://www.epa.gov/ozone/title6/snap/).

Comment 22

    The State generally supports the proposed rule, and concurs with 
the EPA that the NOX waiver should remain in place for RACT, 
NSR, and certain requirements of I/M and transportation and general 
conformity.

Response 22

    No response is required for this concurrence with the proposed 
rule.

Comment 23

    A commenter asserts that the State's air quality modeling based on 
additional NOX emissions from 10 peaker\14\ facilities in 
the Chicago area and 30 peaker facilities in the State of Illinois, as 
addressed in the State's December 2000 submittal, significantly 
underestimates the potential number of peaker units and their resulting 
NOX emissions and ozone impacts in these areas. The 
commenter supports this comment by listing the additional peakers (not 
considered in the State's analysis) seeking source permits in Illinois. 
In addition, due to the existing NOX waiver in the Chicago 
ozone nonattainment area, there is nothing to prevent the unchecked 
proliferation of new NOX sources in this source category. 
Therefore, the commenter believes that IEPA's ozone modeling and ozone 
projections are inadequate, and do not form a credible basis for the 
proposed approval of the State's ozone attainment demonstration and our 
proposed rule on the NOX waiver petition.
---------------------------------------------------------------------------

    \14\ A peaker is a en electrical generating unit designed for 
rapid startup and use on a limited number of days with a high demand 
for electricity generation.
---------------------------------------------------------------------------

    The commenter notes that the State's analysis failed to include a 
number of peaker units now under consideration for source permitting by 
the State. This conclusion is based on a review of publicly available 
Illinois permit records for natural gas-fired electrical generating 
units in the Chicago ozone nonattainment area, which shows potential 
NOX sources not included in Illinois' prior ozone modeling. 
Illinois' inability to correctly project NOX emissions from 
new permitted peaker units is a direct consequence of the proliferation 
of this new generation of NOX sources. This is a direct 
consequence of maintaining the NOX waiver for new sources.

Response 23

    It is true that Illinois' modeling directly considered only the 
additional NOX and VOC emissions from newly permitted 
peakers (permitted prior to the December 2000 SIP revision submittal), 
and did not estimate the emissions and ozone impacts resulting from 
other sources seeking permits or that may seek permits prior to 2007.

[[Page 56920]]

However, potential emissions from new facilities were considered in two 
ways. First, Illinois, along with the other LADCO States, made 
reasonable projections of source growth in the core attainment 
demonstration (the attainment demonstration supported by the LADCO 
technical support documentation). The SIP makes assumptions that new 
sources will be constructed and that existing sources may be modified 
resulting in increased NOX emissions. Under the 
NOX SIP Call, which was modeled by the LADCO States, these 
sources would fall under a statewide NOX emissions cap 
established for the State in the NOX SIP Call rule. Thus, 
the State has adequately demonstrated attainment of the ozone standard 
given the data available at the time of the SIP revision submittal. 
Second, the State, as a test of the modeling/attainment demonstration 
sensitivity to increased NOX emissions, added the 
NOX emissions from newly permitted peakers to the 
NOX emissions already projected for 2007 in the ozone 
attainment demonstration and conducted supplemental ozone modeling. 
This supplemental modeling showed increased peak ozone levels, but 
within acceptable limits still demonstrating future attainment of the 
ozone standard.
    The commenter's concerns over undocumented/unmodeled new 
NOX sources are inconsequential or unfounded for the 
following reasons. First, the modeled 2007 NOX emissions, 
documented in the LADCO September 27, 2000 report ``Technical Support 
Document--Midwest Subregional Modeling: Emissions Inventory,'' (the 
main technical support document for the State's ozone attainment 
demonstration) included NOX emission growth estimates 
reflecting the assumed source growth in Illinois' NOX 
emissions budget established under EPA's NOX SIP Call. In 
adding the NOX emissions from permitted peakers explicitly 
to the future (2007) NOX emissions as a test of source 
growth impacts conducted for the December 2000 submittal, Illinois 
effectively ``double counted'' NOX emissions growth 
resulting from new peakers since some of the NOX emissions 
growth had already been accounted for in the modeling reflected in the 
September 27, 2000 report. Therefore, the State took a conservative 
approach to modeling new source impacts.
    Second, any utility seeking a new source permit will be required to 
comply with Illinois' Electrical Generating Unit (EGU) NOX 
rule developed and adopted by the State to comply with EPA's 
NOX SIP Call. Review of the NOX source data 
supplied by the Chicago Legal Clinic (CLC) and the American Lung 
Association (ALA) coupled with a review of the State's EGU 
NOX rule (signed by the EPA for final approval on September 
25, 2001 and undergoing separate rulemaking) shows that all of the new 
generating units undergoing permit review will be subject to the 
requirements of the State's EGU NOX rule. The NOX 
emission totals from these new sources will not increase unconstrained, 
and Illinois' statewide NOX emissions, following the 2004 
implementation of the State's EGU NOX rule, will not be 
allowed to increase above the NOX emissions budget level 
specified in EPA's NOX SIP Call.\15\ The new peaker units 
will be given a limited number of emission allowances compatible with 
the State's NOX emissions budget, and will have to further 
control their emissions or will have to purchase available emission 
allowances from other sources, thus reducing NOX emissions 
from existing sources.
---------------------------------------------------------------------------

    \15\ Although interstate NOX emissions allowance 
trading is allowed under the NOX SIP Call, most 
NOX SIP Call States will need to seek significant 
NOX emission reductions from their own sources. 
Interstate NOX emission allowance trades will probably be 
kept to a minimum because available emission reduction allowances 
are expected to be in short supply and most States are expected to 
encourage intra-state trades.
---------------------------------------------------------------------------

    Third, it is not clear that Illinois' approach has significantly 
underestimated the additional NOX emissions resulting from 
the ``new'' utilities. Several of the new utilities considered by the 
IEPA have dropped plans for construction. A number of other utilities 
given permits and considered by Illinois have yet to initiate 
construction. It is quite possible that some of these facilities will 
be replaced by other facilities that are now pursuing source permits 
and that were not considered in the IEPA analysis. In addition, 
Illinois made the assumption that all of the modeled new utilities 
would be operating simultaneously at 100 percent capacity. This 
assumption is overly conservative since these units would not actually 
be operating at 100 percent capacity all of the time, leading to an 
overestimation of the modeled NOX emissions.
    Given the current flux in electrical power generation and the 
changes in electricity demand, it is generally impossible for the State 
to project the growth in NOX emissions resulting from the 
new utilities with complete certainty. One way to mitigate this problem 
is to occasionally reassess the projected NOX emissions 
against changing historical source emission records. This is the 
function of the MCR, that the State has committed to perform in 2004 
after the implementation of the rules required by EPA's NOX 
SIP Call. Projections of 2007 emissions can be reassessed with up-to-
date information at that time and any adjustments that are necessary 
can be made to the SIP. However, based on the information now available 
to the State, EPA believes that potential growth in emissions from 
these peaker units was adequately accounted for in the submitted 
attainment demonstration.

Comment 24

    A commenter states that Illinois' ozone modeling fails to address 
serious and substantial omissions in Illinois-issued source permits for 
peaker startup periods, when the NOX emission rates for the 
peakers are at their highest levels. Consequently, the commenter 
asserts that IEPA's ozone modeling is inadequate and cannot form a 
credible basis for the proposed SIP revisions. The commenter further 
points out that startup emissions from peakers are inadequately 
regulated under Illinois' permit process and existing emission control 
regulations. Therefore, peaker emission rates and peak ozone 
projections are underestimated. Review of the source permit records 
shows that startup emissions have not been included in the source 
emissions to be permitted and are not expected to be monitored for a 
number of the NOX sources undergoing permit review for the 
Chicago area. Thirteen out of the eighteen construction permit records 
reviewed did not contain language providing for startup emissions to be 
included in the sources' annual emission totals.
    The commenter notes that IEPA's handling of permits for peakers is 
inconsistent in the treatment of startup emissions. Some sources have 
been given permits regulating startup emissions and other sources have 
been given permits not addressing startup emissions. This inconsistent 
treatment of startup emissions is of particular concern with respect to 
``synthetic minor'' sources, which are held to less stringent emissions 
control standards based on emissions estimates in individual permits. 
These factors, combined with the NOX waiver, indicate that 
IEPA's current permitting procedures may not be sufficient to ensure 
attainment of the ozone standard in the Chicago area.
    The commenter cites the case of Michigan v. Browner, 230 F.3d 181 
(6th Cir. 2000) as providing insight on whether the IEPA must require 
enforceable standards regarding excess

[[Page 56921]]

startup emissions in peaker plant permits. In that case, the Court 
upheld EPA's rejection of revisions to Michigan's SIP based, in part, 
on a February 15, 1983 EPA memorandum by Kathleen Bennett, then 
Assistant Administrator for Air, Noise, and Radiation at the EPA (a 
copy of this memorandum was attached to the commenter's letter). The 
memorandum clarified EPA's position on excess emissions during startup, 
shutdown, maintenance, and malfunctions.
    The commenter notes that the construction permits reviewed for the 
Chicago nonattainment area reveal gaps in regulating peaker plants. 
Specific provisions in the permits regarding startup emissions are 
inconsistent, and reflect no clear standard for ensuring that peaker 
plants are permitted according to current law. The language used by the 
IEPA for regulating startup emissions appears to violate the law 
according to Michigan v. Browner, which requires regulatory agencies to 
maintain enforcement discretion regarding excess emissions at startup 
and shutdown. The commenter notes that this fact, combined with the 
NOX waiver, shows that IEPA's current permitting procedures 
may not be sufficient to ensure that attainment of the ozone standard 
will occur in the Chicago area.

Response 24

    The commenter appears to make three general points. First, the 
commenter raises the concern that the ozone modeling does not account 
for emissions from peaker units during start-up. Second, the commenter 
raises the concern that the State is treating different peaker units in 
different manners during the permitting process--placing limits on some 
source regarding start-up emissions, but not on others. Finally, the 
commenter claims that, under EPA policy, it is improper to allow start-
up emissions to exceed the otherwise applicable emission limits.
    It seems appropriate to first address the commenter's second 
concern about the State's implementation of its new source permitting 
rules. This comment is outside of the scope of EPA's current action. 
EPA has previously approved the permitting program that the State is 
operating under and has not re-opened that approval here. The commenter 
seems concerned either that there is a flaw in the approved program or 
that the State is implementing the permitting program in a manner which 
is inconsistent with the approved SIP. In either case, the commenter 
should work with the State and/or EPA outside the context of this 
rulemaking to ensure that the program is either appropriately modified 
or implemented in a manner consistent with the approved plan. However, 
EPA notes that review of the data supplied by the commenter shows that 
the State has generally regulated startup emissions from larger units 
and units that generally use fuels other than natural gas. Because 
these types of units would have significantly and proportionately 
higher startup emissions occurring over larger time periods than 
natural gas-fired peaker units, the State's different treatment of 
these sources does not seem inappropriate.
    With respect to the commenter's third concern, including its 
analysis of EPA's policy on startup emissions and its summary of the 
Michigan case, EPA disagrees with the commenter. In the Michigan case, 
the Court upheld EPA's disapproval of a SIP rule which provided ``broad 
exclusions from compliance with emission limitations during [startup, 
shutdowns, and malfunction] periods * * *'' 230 F.3d at 185. In so 
doing, the Court ratified EPA's interpretation of section 110 of the 
CAA, as expressed in the Agency's long-standing policy (which we 
reiterated in 1999).\16\ The commenter does not assert that the 
Illinois SIP contains such a provision. EPA's policy further provides 
that, as an enforcement matter, emissions in excess of otherwise 
applicable SIP limits should be considered violations, unless (as is 
relevant here) such emissions are provided for in the SIP and their 
impact on attainment is considered. To the extent that this policy is 
relevant to EPA's action on Illinois' ozone attainment demonstration, 
the commenter's first concern will be addressed--did the State consider 
whether these excess emissions would impair the area's ability to 
attain the ozone standard? We believe that the State did consider these 
emissions.
---------------------------------------------------------------------------

    \16\ On September 20, 1999, EPA issued a policy updating and 
clarifying the 1983 Bennett memoranda referenced by the commenter, 
entitled ``State Implementation Plans (SIPs): Policy Regarding 
Excess Emissions During Malfunctions, Start-up, and Shutdown.''
---------------------------------------------------------------------------

    In order to provide a better explanation of the analysis performed 
by the State, we held a conference call with representatives of the 
IEPA on August 23, 2000. Discussed below are several important factors 
that were identified during the call and that demonstrate the State 
considered the potential significance of these excess emissions. 
Furthermore, as explained in the previous response, the State generally 
considered both new source growth--which would include new or modified 
peaker units--and modeled NOX emissions consistent with an 
emissions ``cap'' that would apply to these and other sources.
    (1) The startup periods for natural gas-fired peakers are 
relatively short, ranging from 6 to 30 minutes and typically on the 
order of 15 minutes. During the startups, NOX emissions are 
somewhat higher because fuels are typically heated before combustion. 
Nonetheless, increases in NOX emissions during startups for 
peakers using natural gas (most peakers are fired using natural gas, 
but some combined cycle systems do use other fuels) are proportionately 
smaller and of shorter duration than those for utility boilers fired 
with other fuels also undergoing startup.
    (2) Peakers undergoing startup are not operating at peak loads; 
they generally are operating at 60 percent or lower loads versus higher 
loads during stable operation periods.
    (3) Not all peakers would be undergoing startup at the same time, 
minimizing simultaneous buildups of NOX emissions resulting 
from startup at many peakers.
    (4) Although the NOX emissions may be higher in 
concentration within stack emission plumes (higher in parts per million 
concentration [ppm]) during startup, the NOX emissions, when 
viewed as an hourly emissions rate, are not significantly higher during 
startup than during stable operation, particularly when compared to 
hourly NOX emission rates during peak loads at stable 
operation.\17\
---------------------------------------------------------------------------

    \17\ Based on information addressed in ``In the Matter of: 
Natural Gas-Fired Peak-Load Electrical Power Generating Faciliites 
(Peaker Plants) Docket No. R01-10: Companion Report to the Illinois 
Pollution Control Board's Informational Order of December 21, 2000'' 
(incorporated into the docket for this final rule), pages 12 through 
14, peaker NOX emissions during startup can reach a 
concentration of 200 ppm (when the peakers operate at less than 50 
percent load capacity). Compare this to NOX emission 
concentrations of 10 to 30 ppm during full-load stable operation. 
The IEPA, however, notes that, in terms of hourly emission rates, 
the startup NOX emissions are not significantly higher 
than stable operation NOX emissions due to lower heat 
input during startups (due to lower system loads). For example, 
Continuous Emissions Monitoring Systems (CEMS) data for the Elwood 
Energy peaker unit show NOX emissions of 0.05 to 0.055 
pounds per million Btu of heat input during stable operation versus 
0.1 to 0.115 pounds per million Btu of heat input during startups 
and shutdowns. Due to the lower heat input rate during startups (the 
hourly Btu input rate during startups are half of that during full 
load under stable operations), the hourly NOX emission 
rates are virtually identical for both startups and stable operation 
modes for this facility.
---------------------------------------------------------------------------

    (5) Excess emissions during startup are factored into each source's 
seasonal NOX emissions allowances under the NOX 
SIP Call emission control regulations (during the high ozone

[[Page 56922]]

season, June through August, emissions are capped). The modeled 
NOX emissions rates took these NOX emissions 
allowances into account, and, therefore, have incorporated the effects 
of excess startup emissions.
    (6) Through permit provisions, IEPA requires peaker plants to 
implement measures to minimize emissions associated with the startup 
and shutdown.\18\
---------------------------------------------------------------------------

    \18\ ``In the Matter of: Natural Gas-Fired, Peak-Load Electrical 
Power Generating Facilities (Peaker Plants) Docket No. R01-10: 
Companion Report to the Illinois Pollution Control Board's 
Informational Order of December 21, 2000,'' page 14.
---------------------------------------------------------------------------

    The suggestion that the State needs to model these emissions is not 
supported by EPA policy and available ozone modeling data. EPA's policy 
does not provide that a State needs to model startup emissions in order 
to consider their effect on attainment of the ozone standard. The 
modeling information available to the State and EPA indicates that it 
is not likely that the ozone modeling would recognize the impacts of 
short-term, localized startup emissions. Reviewing the available 
modeling data supplied by LADCO and the States, it is clear that the 
spatially graphed formats show very few recognizable ``ozone plumes'' 
despite the existence of a number of localized large NOX 
sources, such as major utilities. If these large sources fail to cause 
a recognizable ``ozone signature,'' it is highly unlikely that 
localized, temporary excess NOX emissions would produce a 
significant ozone signature. Thus, because startup emissions are not 
expected to produce discernable ozone signatures relative to the 
cumulative impacts of local and regional NOX emissions from 
all utilities, it was appropriate to conclude that modeling would not 
reliably indicate the effect of these startup emissions on attainment 
of the standard.
    The State did consider the peaker emissions as part of its 
attainment analysis in two ways. As provided in more detail in the 
previous response, startup emissions must be factored in the sources' 
compliance with the State's NOX emission control regulations 
in compliance with the NOX SIP Call, i.e., the seasonal 
emission allowances under the State's NOX emissions cap. 
Startup emissions that cause the source to exceed its emission cap must 
be compensated for and mitigated by the source through the purchase of 
additional emission allowances from other sources or through additional 
emission controls at the sources themselves. Statewide emissions during 
the ozone season will not be allowed to exceed the emissions cap. The 
modeling system correctly reflects the existence of this emissions cap, 
and translates this emissions limit into typical weekday NOX 
emission rates.
    Also, new source growth was considered as part of the attainment 
analysis. To estimate future, attainment year emissions, the LADCO 
States included estimated source growth factors based on available 
source forecasting data along with estimated source control factors to 
calculate future emissions. This included growth estimates for 
NOX sources, including source growth for electrical 
generating units. In addition, Illinois modeled the NOX 
emission impacts of peakers already granted emission permits at the 
time of the preparation of the December 2000 attainment demonstration 
submittal. As noted elsewhere in this final rule, this approach 
provided a conservative estimate of the ozone impacts resulting from 
source growth in this source sector.
    All of these observations together lead us to the conclusion that 
startup emissions from peakers will not result in a failure of the 
State to attain the 1-hour ozone standard by the attainment date. The 
State has not significantly underestimated future NOX 
emissions based on a failure to specifically consider peaker startup 
emissions.

Comment 25

    A commenter notes that IEPA's permitting practices are of 
particular concern with respect to ``synthetic minor'' sources, which 
are held to lower emission control standards based on emissions 
estimates in individual permits. IEPA's current permitting procedures 
may not be sufficient to ensure that attainment of the ozone standard 
will be met in the Chicago area.

Response 25

    As an initial matter, the State's emission growth estimates, which 
are considered in the ozone attainment demonstration, consider emission 
growth from all sources, not just those subject to nonattainment NSR 
review, major new sources or major modifications. Moreover, since all 
of these ``synthetic minor'' sources are, nonetheless, subject to the 
NOX emission control requirements of Illinois' EGU 
NOX rule, and since the total NOX emissions in 
Illinois are capped by EPA's NOX SIP Call, the fact that 
these sources are treated as ``synthetic minors'' is of no consequence 
for the ozone attainment demonstration. The attainment demonstration 
assumed that the NOX emissions in Illinois would be at the 
cap-allowed levels under the NOX SIP Call. Assuming that 
future NOX emissions are at these levels, even the new 
``synthetic minor'' NOX sources subject to the State's 
NOX rules would have to obtain NOX emission 
allowances from existing sources through trades, and NOX 
emissions in total in Illinois would not increase. Therefore, emissions 
from these smaller sources do not jeopardize the ozone attainment 
demonstration.

Comment 26

    A commenter believes that the Illinois Pollution Control Board 
(IPCB) agrees that peaker plants in Illinois are inadequately 
regulated. The commenter asserts that, even if the NOX 
waiver is not revised to remove the NSR exemption, it should be amended 
to incorporate the IPCB's recommendations for NOX emission 
controls on peaker units. To support this comment, the commenter notes 
that, in December 2000, the IPCB issued an informational order in which 
it described its findings with respect to the regulation of peaker 
plants (the commenter attached a copy of the IPCB informational Order 
to their comment letter). The commenter requests the incorporation of 
the entire IPCB docket for this December 2000 informational order into 
the record for this rulemaking.
    The commenter notes that the IPCB found that peaker plants are 
unique. They emit most of their permitted annual amount of emissions 
during a concentrated period of time, which generally coincides with 
the summer months when the ozone risk is the greatest. The IPCB 
recommended the development of Best Available Control Technology (BACT) 
standards for all new peaking units. The IPCB noted that this level of 
emissions control was appropriate to prevent violations of the air 
quality standards. The IPCB also concluded that new gas turbines with 
readily available, reliable emission control technology can routinely 
achieve very low emission rates. These emission rates are much lower 
than the applicable technology-based emission limitation now in effect 
for most new peakers in Illinois, which the IPCB characterized as 
``potentially outdated NSPS'' (New Source Performance Standards). The 
IPCB recommended that IEPA develop a rulemaking proposal to implement 
BACT for peaker plants in Illinois. To date, this recommendation has 
been ignored by the IEPA.
    Based on these and other observations, the commenter asserts that 
the revocation of the NOX waiver for all new sources (or for 
peaking units

[[Page 56923]]

specifically) is the best means to accomplish attainment of the NAAQS. 
As an alternative, however, the commenter requests the EPA to require 
Illinois to take any and all steps necessary to fulfill the 
recommendations of the IPCB for BACT emission controls on peaking 
units. This can be accomplished by changing EPA's proposed revision to 
the NOX waiver to incorporate the IPCB's BACT 
recommendation.

Response 26

    The IPCB peaker hearing docket website referenced by the commenter 
was reviewed for relevant documents. Many documents referenced on this 
website have no bearing on the issue at hand, the approvability of 
Illinois' ozone attainment demonstration and the validity of the 
existing NOX waiver. Therefore, we are not including all of 
the IPCB hearing record documents in the docket for this final rule as 
requested by the commenter. Two documents, however, are relevant to 
this final rule and are incorporated into the docket for this final 
rule. These two documents have been downloaded from the IPCB website, 
and are the following: (1) The December 21, 2000 Informational Order of 
the Board In the Matter Of: Natural Gas-Fired, Peak-Load Electrical 
Power Generating Facilities (Peaker Plants), IPCB Docket No. R01-10; 
and (2) the ``Companion Report to the Illinois Pollution Control 
Board's Informational Order of December 21, 2000: In the Matter Of: 
Natural Gas-Fired, Peak-Load Electrical Power Generating Facilities 
(Peaker Plants) Docket No. R01-10.'' The first document specifies the 
IPCB's conclusions regarding peakers, and the second document 
summarizes public comments and IEPA responses collected during a series 
of State hearings concerning peakers.
    As noted by the commenter, the IPCB has recommended that the IEPA 
pursue new source permitting regulation variations to require BACT 
emission controls for all peakers seeking new source permits. In 
addition, the IPCB found that peakers do emit most of their ozone 
precursor (VOC and NOX) emissions during relatively short 
periods that coincide with the high ozone periods of each year. With 
regard to peaker air emissions, only NOX emissions are 
considered to be significant. Most peaker plants are being sited as 
``minor'' sources, with annual NOX below 250 tons per year. 
Information contained in the Companion Document supports the IPCB's 
conclusions.
    The information provided in these documents may support a revision 
of permitting requirements for these sources. This information, 
however, is generally not relevant to a decision on the State's ozone 
attainment demonstration, at issue here, or is not of a sufficient 
nature to cause us to reverse our approval of the ozone attainment 
demonstration. The information provided in the IPCB documents do not 
support a case that future NOX emissions will increase above 
projected attainment levels contained in the State's ozone attainment 
demonstration. It is again noted here, as elsewhere in this final rule, 
that the peakers at issue here will be subject to the State's EGU 
NOX rule. Therefore, the total NOX emissions from 
these sources will be constrained by source-specific NOX 
emission limits specified by the State under the State's NOX 
emissions cap. Since this emissions cap has been factored into the 
State's ozone attainment demonstration, the State's current source 
permitting practices for peakers does not jeopardize the State's ozone 
attainment demonstration as approved in this final rule.
    With regard to the NOX waiver, based on the State's cap 
on NOX emissions and the incorporation of this emissions cap 
in the modeled emissions in the ozone attainment demonstration, it must 
be concluded that the NOX waiver, as it currently stands, 
should be continued based on section 182(f)(2) of the CAA. As noted 
elsewhere in this final rule, this section of the CAA provides for a 
NOX waiver based on a prevention of ``excess'' 
NOX emission controls. The conclusion that the current 
permitting practices for peakers does not threaten the ozone attainment 
demonstration approved here supports the continuance of the existing 
NOX waiver, and we see no basis, given the information 
provided in the IPCB hearing documents reviewed here, that the NSR 
portion of the NOX waiver should be discontinued.

Comment 27

    A commenter notes that the EPA proposed rule never directly 
addressed the scientific credibility of the NOX waiver in 
light of the subsequently issued Ozone Transport Assessment Group 
(OTAG) findings. (OTAG, made up of representatives of the States in the 
eastern half of the United States, EPA, industry, academia, and 
environmental organizations, was created to consider the causes of 
ozone transport. EPA relied on many of the OTAG findings in issuing the 
NOX SIP Call.) The OTAG findings appear to discredit the 
scientific basis for the NOX waiver. More specifically, 
among the conclusions reached by OTAG are that:
    1. Regional NOX reductions are effective in producing 
ozone benefits;
    2. The more NOX emissions reduced the greater the ozone 
benefit;
    3. Ozone benefits are greatest in the subregions where emissions 
reductions are made;
    4. Although decreased with distance, there are also ozone benefits 
outside of the subregions where emission reductions are made;
    5. Both tall stack and low-level NOX emission reductions 
are effective;
    6. Air quality data indicate that ozone is pervasive, is 
transported and, once aloft, is carried over and transported from one 
day to the next;
    7. The range of transport is generally longer in the North; and
    8. NOX controls on utilities are recommended for states 
in much of the OTAG region (which includes the Chicago-Gary-Lake County 
ozone nonattainment area).
    As EPA itself acknowledged in the framing of the NOX SIP 
Call, the OTAG findings are especially critical in analyzing the 
regional impacts of NOX transport. Both the NOX 
SIP Call and the OTAG findings underscore the importance and cost-
effectiveness of NOX emission reductions as an attainment 
strategy, especially when compared and contrasted to VOC-based 
strategies, which tend to be more expensive and local in their impact. 
Both the OTAG findings and the NOX SIP Call were made 
without the reference to the unchecked proliferation of the new 
NOX sources. Therefore, there is a compelling basis for the 
EPA to reconsider the NOX waiver it conditionally granted in 
1996.
    The commenter asserts that, in light of the OTAG findings, the 
NOX waiver cannot survive any good faith effort by the EPA 
to measure the scientific basis of the NOX waiver. The 
commenter requests the EPA to conduct this analysis as part of its 
final review of the NOX waiver petition and its SIP 
revisions.

Response 27

    OTAG concluded that reduction of regional NOX emissions 
would reduce downwind ozone concentrations on a regional basis. The 
OTAG results, however, also noted that NOX emission 
reductions have a mixed impact on local ozone concentrations. They 
concluded that, due to ozone scavenging by NOX, controlling 
NOX emissions can be locally beneficial or dis-beneficial. 
Review of the available OTAG data shows the lower Lake Michigan area as 
having the most significant ozone dis-

[[Page 56924]]

benefits as a result of possible NOX emission reductions 
(ozone benefits were modeled on some days under some NOX 
reduction scenarios, but greater ozone dis-benefits were noted on 
locally higher ozone days).
    Nonetheless, it should be noted that the July 11, 2001 proposed 
rule (66 FR 36396) proposed to change the basis for the continuance of 
the NOX waiver from an ozone benefit/dis-benefit basis to an 
avoidance of excess NOX emissions reduction basis under 
section 182(f)(2) of the CAA. Since the State has demonstrated 
attainment of the 1-hour ozone standard without the use of all possible 
NOX emission controls, the State, under section 182(f)(2) of 
the CAA, qualifies for a NOX emissions control waiver for 
those NOX controls not relied on in the ozone attainment 
demonstration. Since the State does not rely on NOX emission 
reductions from NOX RACT, NOX NSR, and certain 
mobile source emission controls under I/M and conformity in the ozone 
attainment demonstration (assuming the attainment demonstration is 
approved, as discussed below) for the Chicago-Gary-Lake County ozone 
nonattainment area, the area qualifies for a waiver of these 
NOX emission controls. A NOX emissions control 
waiver under this basis is independent of the ozone impacts of these 
controls provided that the State can demonstrate attainment of the 
ozone standard without the use of these emission controls. Therefore, 
even if ozone control benefits are achievable from some of these 
NOX controls, this is not a basis for denying or withdrawing 
the NOX waiver for these emission control measures.

Comment 28

    A commenter asserts that the Clean Air Act specifically designates 
the EPA Administrator as being responsible to respond to NOX 
waiver petitions. The commenter questions what authority, if any, the 
Regional Administrator has to issue a decision on the NOX 
waiver petition? The commenter requests the EPA to identify the 
authority by which the section 182(f)(3) NOX waiver petition 
is being decided by anyone other the Administrator. In the absence of 
this authority, the commenter contends that the decision of the 
Regional Administrator on the NOX waiver petition is invalid 
on its face.

Response 28

    On October 10, 2001, Administrator, Christine Todd Whitman, 
delegated authority to Deputy Regional Administrator David A. Ullrich, 
Region 5 of the EPA, to sign final rulemakings concerning revision of 
NOX waivers and responding to NOX waiver 
petitions for Illinois, Indiana, and Wisconsin in today's actions.

Comment 29

    A commenter expresses concerns about substitution of NOX 
emission reductions to meet VOC emission reduction requirements in 
Rate-Of-Progress (ROP) plans. The commenter asserts that the CAA 
expressly forbids the use of NOX substitution for ROP VOC 
emission reduction requirements. The commenter references an April 3, 
2000 letter sent by the commenter to the EPA regarding this issue.

Response 29

    On March 3, 2000, we published a proposed rule (65 FR 11525) 
regarding Illinois' post-1996 ROP plan for the Chicago portion of the 
Chicago-Gary-Lake County ozone nonattainment area. The April 3, 2000 
letter referenced by the commenter was submitted as a response to the 
March 3, 2000 proposed rule. We addressed the commenter's comments in a 
December 18, 2000 final rule (65 FR 78961) on the post-1996 ROP plan. 
To elaborate on the new comment summarized here and for the purpose of 
interpreting and responding to the commenter's concerns, some of the 
commenter's prior arguments regarding this issue are summarized and 
again responded to here (the commenter did not elaborate on the exact 
basis for their comment in the more current comment letter addressed 
here).
    In their April 3, 2000 comment letter, the commenter noted that 
they believe that the CAA prohibits NOX reductions from 
outside of the Chicago ozone nonattainment area from being claimed as 
creditable ROP emission reductions under the post-1996 ROP plan.\19\ 
The commenter notes that section 182(c)(2)(B) of the CAA states that 
the post-1996 ROP plan shall reduce by 9 percent ``baseline 
emissions,'' as described in section 182(b)(1)(B) of the CAA. Section 
182(b)(1)(B) of the CAA, in turn, defines ``baseline emissions'' to 
mean the total amount of actual VOC or NOX emissions from 
all anthropogenic sources in the nonattainment area during 1990, 
excluding emissions reduced by pre-1990 vehicle emissions regulations 
and 1990 gasoline volatility regulations. Based on section 
182(b)(1)(B), the commenter asserts that, since baseline emissions 
under the CAA's definition reflect only VOC or NOX emissions 
within the ozone nonattainment area, and an ROP plan is to reduce 
emissions relative to the emission baseline, Illinois is prohibited 
from claiming NOX emission reductions from outside of the 
nonattainment area. We assume that the commenter is trying to express 
this same concern with regard to the post-1999 ROP plan, which also 
relies on NOX emission reductions from outside of the 
Chicago ozone nonattainment area.
---------------------------------------------------------------------------

    \19\ Since the post-1999 ROP plan addressed in the July 11, 2001 
proposed rule (66 FR 36370) was developed under the same CAA 
requirements and EPA policy covering the post-1996 ROP plan as 
addressed in the March 3, 2000 proposed rule, it is assumed that the 
commenter is trying to extend their prior comments on the post-1996 
ROP plan and the associated March 3, 2000 proposed rule to the post-
1999 ROP plan and the associated July 11, 2001 proposed rule. Both 
the post-1996 ROP plan and the post-1999 ROP plan rely on the 
substitution of NOX emission reductions from outside of 
the Chicago ozone nonattainment area, but within Illinois, to meet 
part of the VOC emission reduction requirements for the ROP plans. 
It is this substitution to which the commenter refers.
---------------------------------------------------------------------------

    As noted in the December 18, 2000 final rule (65 FR 78970), we 
disagree with the commenter. Claiming credit for NOX 
emission reductions occurring outside of the Chicago ozone 
nonattainment area is consistent with the CAA's requirements concerning 
ROP plans and NOX substitution.
    The CAA's provision for NOX substitution in ROP plans is 
separate from the sections of the CAA focused on by the commenter. 
Section 182(c)(2)(B) of the CAA discusses the reduction of VOC 
emissions by a post-1996 ROP plan (and a post-1999 ROP plan). Section 
182(c)(2)(C) of the CAA provides that NOX emission 
reductions can be substituted for or combined with VOC emission 
reductions to meet the ROP requirements under section 182(c)(2)(B). 
Section 182(c)(2)(C) does not state that such NOX emission 
reductions must come from ``baseline emissions'' as defined under 
section 182(b)(1)(B). Rather, section 182(c)(2)(C) defers to the EPA 
Administrator to determine ``the conditions under which NOX 
emissions control may be substituted for VOC emissions control or may 
be combined with VOC emissions control in order to maximize the 
reduction in ozone air pollution.'' The only caveat to NOX 
substitution under section 182(c)(2)(C) is that NOX emission 
reductions claimed in the ROP plan, in combination with VOC emission 
reductions, ``would result in a reduction in ozone concentrations at 
least equivalent to that which would result from the amount of VOC 
emission reduction required under section 182(c)(2)(B).'' Accordingly, 
the CAA directs us to use our technical judgment to determine what 
types of NOX emissions control would be suitable for 
NOX substitution strategies under section 182(c)(2)(C).
    As discussed in the December 18, 2000 (65 FR 78970) final rule on 
the

[[Page 56925]]

post-1996 ROP plan, we have made the technical determination that, for 
areas within the Ozone Transport Assessment Group (OTAG) fine grid 
modeling domain, which includes the Chicago ozone nonattainment area, 
upwind NOX emission reductions can result in reductions in 
ozone concentrations that are equivalent to results achievable from 
local VOC emission reductions. As discussed in the December 18, 2000 
(65 FR 78970) final rule, we provided Illinois with guidance on how to 
establish VOC/ NOX emission reduction equivalency with 
respect to upwind NOX emission reductions, and the State 
appropriately followed that guidance in the preparation of both the 
post-1996 ROP plan and the post-1999 ROP plan. The State ozone 
modeling, reviewed in the July 11, 2001 proposed rule (66 FR 36370), 
shows that upwind NOX emissions significantly contribute to 
high ozone concentrations in the Chicago area. The available modeling 
supporting the attainment demonstration shows that, even if the Chicago 
area reduces VOC emissions significantly beyond current levels, the 
area would not achieve modeled attainment of the 1-hour ozone standard 
without reduction of upwind NOX emissions. These findings 
are consistent with the results of OTAG's study of the impact of 
regional NOX emissions on ozone nonattainment areas. 
Moreover, the State submitted, in conjunction with the post-1999 ROP 
plan and the associated ozone attainment demonstration, modeling 
results from LADCO and from OTAG to demonstrate that upwind 
NOX emission reductions do reduce ozone concentrations in 
the Chicago area. All of this is consistent with guidance in an EPA 
December 29, 1997 policy, which explains the conditions under which a 
NOX waivered area may claim ROP credit for upwind 
NOX emission reductions. Therefore, ROP credit for upwind 
NOX emission reductions is consistent with section 
182(c)(2)(C) of the CAA.
    Furthermore, where, as here, EPA is also approving a modeled 
attainment demonstration as providing for attainment of the ozone 
standard as expeditiously as practicable and is determining that the 
State has met its obligation to include in its SIP submittal all 
reasonably available control measures, the mix of NOX and 
VOC controls relied upon to satisfy the ROP obligation is appropriate. 
With this action today, EPA is determining that there are no additional 
VOC controls that satisfy the criteria of RACM and that the plan 
submitted by the State provides for attainment as expeditiously as 
practicable. Consequently, the mix of NOX and VOC measures 
relied upon by the State in its submittal will result in the reduction 
in ozone concentrations needed to attain the standard as expeditiously 
as practicable and is at least equivalent to any other mix of 
NOX and VOC emission controls in terms of meeting that 
objective.

Comment 30

    A commenter disagrees with the EPA assertion (in the July 11, 2001 
proposed rule) that the Illinois submission adequately demonstrates 
attainment of the 1-hour ozone standard by November 15, 2007 within the 
Chicago ozone nonattainment area.

Response 30

    This comment is indirectly responded to through our responses to 
the comments below. We find that none of the following comments or 
those from other commenters responded to in this final rule are 
sufficient in nature to cause us to reverse our decision to approve 
Illinois' ozone attainment demonstration for the Chicago ozone 
nonattainment area.

Comment 31

    A commenter notes that EPA stated in the proposed rule that the 
ozone modeling system used by Illinois and other LADCO States seems to 
over-predict nighttime ozone concentrations and to under-predict 
daytime ozone concentrations, but performs within acceptable limits. At 
the monitoring sites with high measured ozone concentrations, the mid-
afternoon modeled ozone concentrations are ``low.'' This means that the 
modeling system is under-predicting ozone levels precisely when public 
activity and actual exposure to ozone is at its greatest. The commenter 
notes that even LADCO has indicated that ``Given the model's tendency 
to underestimate peak concentrations, however, it should be understood 
that the modeled attainment demonstration provides no margin of 
safety.''
    The fact that EPA recognizes that peak modeled ozone concentrations 
over Lake Michigan are underestimated should also be of concern.

Response 31

    LADCO and EPA acknowledge that the modeling system does 
underestimate peak observed ozone concentrations on some selected 
episode days. It should be noted, however, that the modeling system 
also overestimates peak ozone concentrations on some of the modeled 
episode days. Review of Table 2 of LADCO's September 27, 2000 
attainment demonstration documentation, titled ``Technical Support 
Document--Midwest Subregional Modeling: 1-Hour Attainment Demonstration 
for Lake Michigan Area,'' which is the main support document for 
Illinois' submitted attainment demonstration, shows that the modeling 
system's performance varies from day-to-day. This table clearly 
indicates the model's underestimation of peak ozone concentrations on 
certain days, but also shows that the model overestimates peak ozone 
concentrations on other days, including days with monitored ozone 
standard exceedances. For example, on July 20, 1991 (one of the 
critical days in the ozone attainment demonstration driving the 
selection of emission control measures), the modeling system 
overpredicts the peak ozone concentration by 20.9 percent.
    Although the modeling system is not perfect in modeling observed 
ozone concentrations, the model is performing acceptably within EPA's 
recommended performance limits (also shown in Table 2 of LADCO's 
September 27, 2000 technical support document). As noted in the July 
11, 2001 proposed rule (cite), the ozone modeling system passed EPA's 
recommended system performance statistics on the modeled episode days 
selected by LADCO, and, therefore, the modeling system is acceptable 
for use in demonstrating attainment of the ozone standard.

Comment 32

    A commenter notes that Illinois failed to demonstrate attainment of 
the ozone standard based on the deterministic test, and had to rely on 
the statistical test to demonstrate attainment of the 1-hour ozone 
standard. The State modeled the ozone impacts of additional 
NOX emissions to consider the possible ozone impacts of new 
EGUs already granted source permits. This pushed the predicted peak 
ozone concentrations to 130 parts per billion (ppb), the maximum 
allowed under the statistical test criteria for the modeled worst-case 
period. Given that the modeling system is likely to underestimate the 
peak ozone concentrations, this raises serious questions about the 
validity of the modeled attainment demonstration.

Response 32

    As noted above, the modeling system has been determined to be 
performing acceptably based on EPA's recommended criteria. The modeling 
system, therefore, is acceptable for testing the impacts of various 
emission control strategies and the demonstration

[[Page 56926]]

of attainment. The model may be used without further adjustment or use 
of calibration factors.
    As noted elsewhere in this final rule, the IEPA took a very 
conservative approach in adding the NOX emissions for the 
newly permitted EGUs. Since these EGUs must meet the requirements of 
the State's EGU NOX rule and the State must meet the 
requirements of EPA's NOX SIP Call, the NOX 
emissions from these new EGUs can not cause the NOX 
emissions in Illinois to exceed the NOX emissions budget 
assigned to Illinois under the NOX SIP Call. The ozone 
attainment demonstration, prior to the addition of the NOX 
emissions from the new EGUs, included the modeling of NOX 
emissions meeting the NOX SIP Call and included 
NOX emission growth estimates through 2007. The addition of 
NOX emissions for the new EGUs to the modeled NOX 
emissions is conservative because some of the new NOX 
emissions were already accounted for in the modeled emissions growth 
estimates. Despite this conservative approach, the State continued to 
model peak ozone concentrations within the acceptable limits of the 
statistical test. Therefore, attainment of the ozone standard continues 
to be modeled by the State. In addition, note that other WOE tests also 
support the adequacy of the modeled attainment demonstration.
    Although the deterministic test was not passed by the selected 
emissions control strategy, the same control strategy did pass the 
statistical test. If either test is passed, the attainment 
demonstration is found to be acceptable based on EPA's current policy 
(discussed in detail in the July 11, 2001 proposed rule (66 FR 36370). 
Therefore, we continue to find Illinois' modeled attainment 
demonstration to be acceptable.

Comment 33

    A commenter notes that the IEPA has failed to keep the EPA abreast 
of additional NOX emissions not included in the submitted 
attainment ozone modeling that should be considered in evaluating 
whether the Chicago area will actually attain the ozone standard in 
2007. The additional NOX emissions from new sources will 
produce higher peak ozone levels than have already been predicted. To 
not include the additional known Illinois-permitted facilities, as well 
as emissions sources reasonably foreseen by the attainment year, 
provides a deliberate under-representation of expected attainment year 
emissions, and consequently, ozone levels.

Response 33

    As noted elsewhere in this final rule, the new EGUs referred to by 
the commenter must comply with the requirements of the State's EGU 
NOX rule and with the NOX emissions budget 
specified for Illinois under EPA's NOX SIP Call. By 2004 and 
later, these new sources will have to obtain sufficient NOX 
emissions allowances, from the State's New Source Set Aside (NSSA) or 
from allowance trades from existing sources, to operate under Illinois' 
NOX emissions budget.
    Since the ozone attainment demonstration was developed to reflect 
the impacts of the NOX SIP Call and the new sources must not 
cause Illinois NOX emissions to exceed the State's 
NOX emissions budget, it is concluded that the new EGUs will 
not cause total NOX emissions in Illinois to exceed future 
NOX emission levels supported in the State's modeled ozone 
attainment demonstration.
    Also as noted elsewhere in this final rule, concerns about the 
impacts of new EGUs will be addressed to some extent when the State 
performs an MCR in 2004. By that time, the State will have a better 
idea about the likely NOX emissions in 2007 and will be able 
to better address the impacts of the NOX SIP Call. At that 
time, the State will be in a better position to assess the probable 
impact of new source growth on the attainment of the 1-hour standard by 
the attainment deadline of 2007, and will be able to take corrective 
actions if found to be necessary.

Comment 34

    A commenter notes that EPA's conclusion that IEPA's modeling of 
additional NOX emissions due to new permitted EGUs is 
conservative is contradicted by the IEPA's response to the public 
during hearings on the ozone attainment demonstration. The attainment 
demonstration implies that NOX emission allocations to new 
sources will significantly exceed the NOX allocations to be 
granted to new sources under the State's NOX SIP Call 
emission control regulations. This implies that new sources will have 
to buy NOX emission reduction credits from other States, 
leaving in-State NOX emissions higher than anticipated in 
the modeling. The State has admitted during the public hearings that 
some electrical generators will have to purchase NOX 
emission allowances from out-of-state sources.
    To the commenter, it appears that the combination of Illinois 
deregulation of the electrical generating sector, the ease of siting 
new generation facilities relative to neighboring states, and the 
constraints on new generators based on the minimization of the NSSA 
component in the Illinois NOX EGU rule is setting up a 
situation where significant numbers of NOX emission 
allocations will be imported into the State.

Response 34

    The premise of this comment is that new EGUs will be forced to seek 
traded NOX emission allowances to comply with Illinois' EGU 
NOX rule and that these sources will predominantly be forced 
to obtain these traded NOX emission allowances from sources 
outside of the State of Illinois. We disagree with portions of this 
premise. Although some new EGUs may be forced to obtain NOX 
emission allowances from existing sources, assuming that the NSSA is 
inadequate to accommodate all new EGU NOX emissions, it is 
not clear that these sources will be forced to obtain all of these 
emission credits from outside of Illinois. It is just as likely that 
they will be able to obtain some of the needed NOX emission 
allowances from sources within Illinois itself. To that extent, 
Illinois NOX emissions will not rise above levels 
anticipated in the ozone attainment demonstration. In addition, if the 
sources obtain the NOX emission allowances from States 
surrounding Illinois and upwind of Illinois (Alabama, Indiana, 
Kentucky, and Tennessee NOX emissions were found to 
contribute to high ozone concentrations in the Chicago area in analyses 
supporting EPA's NOX SIP Call), this will lead to lowered 
background ozone concentrations in the Chicago area. Note that it is a 
key conclusion of EPA's NOX SIP Call that the lowering of 
regional, statewide NOX emissions in certain States will 
lower ozone and precursor transport into downwind ozone nonattainment 
areas. Therefore, emission reduction trading between States may support 
attainment of the ozone standard in the Chicago area and in other ozone 
nonattainment areas.
    It is difficult for Illinois or any other State to model the 
impacts of emissions allowance trading in the advance of the 
implementation of such trading, but there is no indication that 
emissions trading will significantly alter the modeled results. This 
problem will be resolved to some extent when the State conducts the MCR 
in 2004, after the implementation of the NOX control rules 
under EPA's NOX SIP Call. By that time, the State will be 
able to assess the impacts of NOX allowance trading on 
emissions in Illinois and in surrounding States.

[[Page 56927]]

    With regard to the ease of siting of new EGUs in Illinois versus in 
surrounding States, it is unclear what basis the commenter has to make 
such an assertion. Under the NOX waiver, Illinois may apply 
the same major source NOX emission cutoff (the new source 
emission level above which BACT is required) for new source review as 
applied in surrounding areas that are classified as attainment for 
ozone. Based on the ozone designations and classifications only, it is 
not clear that Illinois would present an easier placement area for new 
NOX sources. The new source NOX emissions cutoffs 
in Illinois and in the surrounding States, with the exception of the 
Metro East/St. Louis ozone nonattainment area, which has a tighter new 
source NOX emissions cutoff, are identical since most of 
these surrounding areas are designated as attaining the 1-hour ozone 
standard. Therefore, on an air quality basis, Illinois is not 
necessarily an easier area for siting new sources.
    It should also be noted that other States are also subject to the 
requirements of the NOX SIP Call. NOX sources in 
these States will also be subject to significant NOX 
emission reduction requirements and may be allowed to meet these 
requirements by purchasing NOX emission allowances from 
other sources. Some of these sources may seek out NOX 
emission allowances from sources in Illinois, reducing NOX 
emissions in Illinois itself.

Comment 35

    A commenter notes that a number of EGUs not included in the 
submitted ozone modeling have been or may soon be granted emission 
permits. The potential additional generating capacity, excluding 
generating capacity for sources previously modeled that have dropped 
construction plans or have lost previously granted permits, is 13,238.6 
megawatts (MW). This additional generating capacity within Illinois is 
equivalent to the 16,276 MW generating capacity that was modeled for 
potential new sources by Illinois in the submitted attainment 
demonstration, and that increased modeled peak ozone concentrations by 
1 to 2 ppb during the worst-case modeled ozone period. In addition, it 
should be noted that the NOX emissions from these sources, 
peaking units, are expected to occur during the ozone season, when 
electrical demand and wholesale electrical prices are the greatest.
    The commenter concludes that the potential extra NOX 
emissions from the expected new sources are sufficient to cause a 
failure of Benchmark 2 of the ozone attainment demonstration's 
statistical test. The expected peak ozone concentrations for July 20, 
1991, a ``severe'' ozone day, would be 131 to 132 ppb, above the 130 
ppb that has been determined to be allowable for this day under the 
statistical test.

Response 35

    As noted elsewhere in this final rule, the State must comply with 
the NOX emissions budget provided in EPA's NOX 
SIP Call. This means that new NOX sources required to comply 
with Illinois' NOX rules must obtain sufficient 
NOX emission allowances to allow the State to stay within 
the prescribed NOX emissions budget. Provided that these new 
sources will have to comply with Illinois' NOX EGU rule, 
their new emissions should not force statewide NOX emissions 
to go above levels supported by the State's ozone attainment 
demonstration.
    In addition, it has also been noted elsewhere in this final rule 
and in the July 11, 2001 proposed rule that the State took a 
conservative approach in assessing the ozone impacts of new EGUs. The 
State modeled the impacts of new NOX emissions from the 
permitted EGUs that were already included to some extent in the source 
growth estimates of LADCO's ozone attainment demonstration modeling.

Comment 36

    A commenter notes that, in the discussion of WOE, EPA notes that 
LADCO's additional test using the relative reduction factor approach 
finds a receptor with a derived ozone design value of 122 ppb. 
Considering that the UAM tends to underestimate 1-hour ozone 
concentrations, that, as EPA notes, the peak modeled ozone 
concentrations over Lake Michigan are underestimated on some days, and 
that there is significantly more electrical generating capacity and 
potential NOX emissions than previously modeled should lead 
EPA to discount this example as a component of a WOE argument.

Response 36

    The bases for concern about this WOE argument have been addressed 
in responses to other comments in this final rule. Because these 
concerns appear to not be founded given the current facts, we do not 
agree that we should discount this WOE factor.

Comment 37

    A commenter states that, although EPA notes (in the proposed rule) 
that the State appears to have taken emissions growth into 
consideration in the post-1999 ROP plan, it is not at all clear that 
this has been done. The fact that more new source permits have been 
granted by the State would likely make the submission of additional 
documentation moot, as the increase in emissions would have increased 
the milestone emission totals. The fact that 17 permits for additional 
EGUs are in the permitting process by the State should be accounted for 
in future emissions growth estimates.

Response 37

    The commenter is addressing the impacts of NOX growth 
from new EGUs, primarily peakers. It is noted that Illinois has 
addressed such source growth in the ozone attainment demonstration as 
noted elsewhere in this final rule.
    With regard to the post-1999 ROP plan, it is noted that the State 
has considered the impacts of the NOX SIP Call 
NOX regulations in the projected statewide NOX 
emissions considered in the calculations for the substitution of 
NOX emission reductions to satisfy part of the VOC emission 
reduction requirements. The State has primarily accounted for 
NOX emissions that will meet the NOX emissions 
cap under the State's NOX regulations. Since new 
NOX emisssions will not be allowed to cause the statewide 
NOX emissions to exceed this cap, new source growth not 
already characterized will not be such that this emissions cap will be 
exceeded. The post-1999 ROP plan already accounts for all of the 
NOX emissions that will be allowed for 2004 and later. 
Therefore, NOX emission increases due to EGU growth after 
this time period is not an issue.

Comment 38

    A commenter believes that a MCR should be conducted now rather than 
waiting for several years. EPA should also request that Illinois commit 
to adopt additional emission controls for the purposes of attainment if 
the results of the MCR show that more NOX will be emitted in 
Illinois than the State NOX emissions budget allows.

Response 38

    As noted elsewhere in this final rule, the MCR will be more robust 
if the State waits for additional years to better assess the impacts of 
emission controls on ozone levels. This can only be carried out to the 
extent that the timing of the MCR does not jeopardize the possibility 
for implementing corrective emission controls prior to the ozone 
attainment date if such are determined to be necessary through the 
preparation or review of the MCR. Conducting an

[[Page 56928]]

MCR for the Chicago area now would be premature and of little value for 
correcting future shortfalls in the States emissions control strategy.
    At this time, the EPA is only requesting the States to commit to 
conduct a MCR and not to include in this MCR specific corrective 
emission controls. It is impossible at this time to anticipate the 
shortfalls in the State's emissions control strategy and to determine 
the specific emission controls needed to eliminate these shortfalls. 
The State and the EPA will consider possible emission control measures 
after the State has prepared the MCR and the EPA has reviewed the 
submitted MCR and found that additional emission controls are needed to 
attain the 1-hour ozone standard by the attainment date.

Comment 39

    Although the State has reduced emissions claimed from 
Transportation Control Measures (TCMs) in future years, the commenter 
fails to understand how TCM emission reduction credits can be claimed 
prospectively. Enforceable rules to ensure that the TCM-based emission 
reductions claimed are actually achieved are not in place. The State is 
asking the EPA to trust it to find and document the needed emission 
reductions at some later date. This approach is not acceptable.

Response 39

    EPA agrees with the commenter that credit cannot be given for TCMs 
which are not specifically identified and adopted and are, thus, not 
enforceable. Illinois currently has a number of TCMs approved into the 
SIP. These TCMs were approved into the SIP in two separate rulemaking 
actions (see 62 FR 66279 and 65 FR 78961). In each case, the TCMs 
submitted by Illinois met the required elements for approval of TCMs. 
These elements are: (1) A complete description of each measure, and, if 
possible, its estimated emissions reduction benefits; (2) evidence that 
each measure was properly adopted by a jurisdiction with legal 
authority to execute the measure; (3) evidence that funding will be 
available to implement each measure; (4) evidence that all necessary 
approvals have been obtained from all appropriate government offices; 
(5) evidence that a complete schedule to plan, implement, and enforce 
each measure has been adopted by the implementing agencies; and (6) a 
description of any monitoring program to evaluate each measure's 
effectiveness and to allow for necessary in-place corrections and 
alterations.
    The approved TCMs already in the SIP are credited with a total VOC 
emission reduction of 4 tons per day in 2002. These TCMs have already 
been implemented, and, thus, are already achieving the credited VOC 
emission reductions.
    However, the projections of VOC emission reductions from ``future'' 
TCMs which are not yet selected cannot be approved as part of the SIP. 
Illinois has estimated that TCMs will continue to be implemented and 
that new TCMs will generate additional VOC emission reductions. In 
their December 2000 submittal, Illinois estimates these future VOC 
emission reductions as 1 ton per day in 2005 and 2 tons per day in 
2007. These projected VOC emission reductions from future TCMs are not 
being approved into the SIP in this action and cannot be approved until 
Illinois meets all of the requirements for approval of the associated 
TCMs into the SIP.
    The fact that EPA is not approving the TCM emission reduction 
credits estimated by Illinois for 2005 and 2007 in the ROP plan does 
not change or reverse our approval of the post-1999 ROP plan and the 
ozone attainment demonstration for the Chicago nonattainment area. 
Tables VI and VIII in our July 11, 2001 proposed rule (66 FR 36370, 
36388) demonstrate the ROP emission target levels and emission 
reductions for VOC that Illinois has achieved, indicating an excess of 
VOC emissions reductions in 2005 and 2007 greater than the 1 ton per 
day and 2 tons per day shortfalls resulting from not crediting the non-
adopted TCMs. Also, Figure II-2 in Illinois' December 2000 ozone 
attainment demonstration and ROP plan submittal demonstrates that 
Illinois has excess VOC emission reductions in all ROP milestone years 
(2002, 2005, and 2007), sometimes in excess of 100 tons per day. The 1 
ton per day and 2 ton per day of VOC emission reductions estimated for 
future, non-adopted TCMs which are not being credited for the SIP are 
more than compensated for by the ``excess'' of VOC emission reductions 
expected to occur by the milestone years. It should also be noted that 
the implementation of TCMs was not included in the adopted ozone 
attainment strategy, implying that future TCMs were not included in the 
attainment demonstration modeling. Thus, both the Illinois post-1999 
ROP plan and the ozone attainment dmonstration can be approved without 
these additional VOC emission reduction credits.

Comment 40

    A commenter believes that there is double counting of TCM emission 
reduction credits in past ROP submissions. The State has claimed the 
same emission reductions as off-model credits and as modeled credits. 
As part of the transportation modeling, rail improvements would 
displace automobile traffic and improve traffic flow, hence reducing 
emissions from mobile sources within the transportation model. These 
emissions reductions have also been credited as off-model credits from 
implemented projects.

Response 40

    In the ROP, Illinois does not double count the TCM reduction 
credits. This is because the vehicle miles of travel are estimated in 
the ROP submittal based on historical trends and ground counts from the 
Illinois highway monitoring system. The transportation model does, as 
the commenter noted, include the effects of new and improved rail 
travel and, thus some of the TCMs are included in the transportation 
network model. However, because the transportation network model is not 
used for the ROP estimates, the TCM emission reduction credits are not 
included in the ROP calculations and it is appropriate to deduct the 
TCM reduction credits as Illinois has done in the ROP plan.

Comment 41

    A commenter asserts that, although the ethanol industry claims that 
the oxygen in ethanol helps reduce emissions from older vehicles and 
off-road engines, the data are ambiguous regarding this benefit. The 
commenter opposes the 0.3 pounds per square inch (psi) vapor pressure 
waiver for reformulated gasoline (RFG) containing ethanol and believes 
that this waiver is not based on sound science.

Response 41

    Overall, we continue to believe that the 2.0 percentage point 
adjustment to the VOC performance standard is appropriate for RFG with 
10 volume percent ethanol sold in the Chicago-Gary-Lake County and 
Milwaukee-Racine ozone nonattainment areas. Because ethanol RFG 
constitutes virtually 100 percent of the RFG market in these areas, 
they are significantly different from other RFG areas. Accordingly, we 
are confident that, in the Chicago and Milwaukee areas, the adjusted 
VOC rule will not adversely impact air quality.
    Regardless of whether the vapor pressure waiver for ethanol-based 
fuel is

[[Page 56929]]

based on sound science, this comment is moot with regard to the issue 
at hand, the approvability of Illinois' ozone attainment demonstration. 
It is noted that the State followed EPA guidance in establishing VOC 
emissions for this fuel type. Mobile source emissions, including fuel 
evaporative emissions were derived by the IEPA using EPA-supplied 
guidance and the MOBILE 5 emissions factor model. The State used this 
model with the reformulated gasoline flags set to true, thus 
acknowledging the use of ethanol gasoline blends. It is true that the 
MOBILE 5 model fails to estimate the extra VOC emissions resulting from 
the use of ethanol-based fuels. It also true, however, that the model 
also fails to account for the decreased carbon monoxide emissions 
resulting from the use of these fuel blends. Decreased carbon monoxide 
emissions lead to lower peak ozone concentrations downwind. Therefore, 
compensating errors have occurred in the modeling results, nullifying 
each other's effects on predicted ozone concentrations. Whether the 
scientific basis for the vapor pressure waiver is good or bad has no or 
little bearing on the validity of the ozone attainment demonstration.

Comment 42

    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 42

    We have completed our review of the adequacy of these SIPs, and we 
have found the motor vehicle emissions budgets in all of these SIPs to 
be adequate. We responded to all comments related to adequacy when we 
issued our adequacy findings, and therefore we are not listing the 
individual comments or responding to them here. You may access our 
findings of adequacy and responses to comments at www.epa.gov/otaq/traq 
(once there, click on the ``conformity'' button). EPA regional contacts 
are identified on the web site.

Comment 43

    One commentor generally supports a policy of requiring motor 
vehicle emissions budgets to be recalculated when revised MOBILE models 
are released.

Response 43

    The Phase II attainment demonstrations that rely on Tier 2 emission 
reduction credit contain commitments to revise the motor vehicle 
emissions budgets after MOBILE6 is released. As noted elsewhere in this 
final rule, Illinois has committed to revising the motor vehicle 
emission budgets within two years after EPA releases the MOBILE6 
emission factor model.

Comment 44

    The revised budgets calculated using MOBILE6 will likely be 
submitted after EPA has approved the MOBILE5 budgets. EPA's policy is 
that submitted SIPs may not replace approved SIPs.

Response 44

    This is the reason that EPA proposed in the July 28, 2000, 
Supplemental Notice of Proposed Rulemaking (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 45

    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 45

    EPA agrees. The motor vehicle emissions budgets in the Chicago 
nonattainment area attainment demonstration reflect the motor vehicle 
control measures in the attainment demonstration.

Comment 46

    A commenter states that EPA should make it clear that the motor 
vehicle emissions budgets 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 46

    EPA will not approve SIPs without motor vehicle emissions budgets 
that are explicitly quantified for conformity purposes. The Chicago 
area attainment demonstration contains explicitly quantified motor 
vehicle emissions budgets.

Comment 47

    If a state fails to follow through on its commitment to submit the 
revised motor vehicle emissions budgets using MOBILE6, EPA could find a 
failure to submit a portion of a SIP, which would trigger a sanctions 
clock under section 179.

Response 47

    If a state fails to meet its commitment, EPA could find a failure 
to implement the SIP, which would start a sanctions clock under section 
179 of the Act.

Comment 48

    If the budgets recalculated using MOBILE6 are larger than the 
MOBILE5 budgets, then attainment should be demonstrated again.

Response 48

    As EPA proposed in its December 16, 1999 notices, we will work with 
states on a case-by-case basis if the new emissions estimates raise 
issues about the sufficiency of the attainment demonstration.

Comment 49

    If the MOBILE6 emission budgets are smaller than the MOBILE5 
emission budgets, the difference between the budgets should not be 
available for reallocation to other sources, unless air quality data 
show that the area is in attainment of the standard 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 (when MOBILE6 is 
used for conformity demonstrations) unless the above conditions are 
met.

Response 49

    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 versus 
MOBILE5 before it reallocates any apparent motor vehicle emission 
reductions resulting from the use of MOBILE6. Since Illinois has 
committed to submit MOBILE6 budgets within two years of the model's 
release and EPA's approval of the MOBILE5 budgets is limited, the 
MOBILE5 budgets will not be retained once the MOBILE6 budgets have been 
found adequate.

Comment 50

    We received a comment on whether the grace period before MOBILE6 is 
required in conformity determinations

[[Page 56930]]

will be consistent with the schedules for revising SIP motor vehicle 
emissions budgets (``budgets'') within one or two years of MOBILE6's 
release.

Response 50

    This comment is not germane to this rulemaking, since the MOBILE6 
grace period for conformity determinations is not explicitly tied to 
EPA's SIP policy and approvals. However, EPA understands that a longer 
grace period would allow some areas to better transition to new MOBILE6 
budgets. EPA is considering the maximum two year grace period allowed 
by the conformity rule, and EPA will address this in the future when we 
release the final MOBILE6 emissions model and policy guidance.

Comment 51

    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.

Response 51

    This comment is not germane to this rulemaking. However, it is 
important to note that EPA intends to clarify its policy for 
implementing MOBILE6 in conformity determinations when we release the 
final MOBILE6 model. EPA believes that MOBILE6 should be used in 
conformity determinations once new MOBILE6 budgets are found adequate.

Comment 52

    One commenter did not prefer the additional option for a second 
year before the state has to revise the conformity budgets with 
MOBILE6, since new conformity determinations and new transportation 
projects could be delayed in the second year.

Response 52

    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 may continue to use the 
one-year option, if desired, or submit a new commitment consistent with 
the alternative two-year option. EPA expects state and local agencies 
to consult on which option is appropriate, and consider the impact on 
future conformity determinations. Illinois has committed to revise its 
budgets within two years of MOBILE6's release.

VII. Final EPA Action

    Consideration of the public comments on the December 16, 1999 and 
July 11, 2001 leads us to the conclusion that there are insufficient 
bases to reverse our proposed actions in the July 11, 2001 proposed 
rule. Therefore, we are taking the final actions as discussed below.

A. Ozone Attainment Demonstration

    EPA is approving Illinois' ozone attainment demonstration SIP 
revision for the Chicago-Gary-Lake County ozone nonattainment area, 
which was submitted on December 26, 2000.

B. Post-1999 ROP Plan

    EPA is approving Illinois' post-1999 ROP SIP revision for the 
Illinois portion of the Chicago-Gary-Lake County ozone nonattainment 
area as submitted by the State on December 26, 2000.

C. Contingency Measure Plan

    EPA is approving Illinois' contingency measure plan for the ozone 
attainment demonstration and post-1999 ROP plan as submitted by the 
State on December 26, 2000.

D. Commitment to Conduct a Mid-Course Review

    EPA is approving Illinois' commitment to conduct a mid-course 
review of the ozone attainment demonstration for the Chicago-Gary-Lake 
County ozone nonattainment area by the end of 2004.

E. Motor Vehicle Emission Budgets for VOC and NOX

    EPA is approving Illinois' motor vehicle VOC and NOX 
emissions budgets for 2002, 2005, and 2007. EPA is also approving the 
State's commitments to revise the motor vehicle emission budgets within 
two years after EPA releases the MOBILE6 emission factor model.

F. RACM Analysis

    EPA approves the Illinois SIP as demonstrating that the State has 
implemented RACM in the Chicago nonattainment area.

G. NOX Emissions Control Waiver

    EPA is revising the existing NOX waiver for the Illinois 
portion of the Chicago-Gary-Lake County ozone nonattainment area to 
remove from the waiver NOX emission controls for major EGUs, 
major non-EGU boilers and turbines, and major cement kilns as adopted 
by the State to comply with EPA's NOX SIP Call and to 
achieve attainment of the ozone standard in this ozone nonattainment 
area. EPA is leaving the NOX waiver in place in this ozone 
nonattainment area for NOX emission controls due to the 
implementation of RACT, NSR, and certain requirements of I/M and 
transportation and general conformity. EPA is denying a related citizen 
petition for the termination of the NSR portion of the NOX 
waiver.

VIII. 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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not 
have a substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence

[[Page 56931]]

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. 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. 
804(2). This rule will be effective December 13, 2001.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 14, 2002. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Integovernmental 
relations, Nitrogen Oxides, Ozone, Volatile Organic Compounds.

    Dated: October 15, 2001.
David A. Ullrich,
Deputy Regional Administrator, Region 5.


    For the reasons stated in the preamble, part 52, chapter I, title 
40 of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

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

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

Subpart O--Illinois

    2. Section 52.726 is amended by adding paragraph (dd) to read as 
follows:


Sec. 52.726  Control Strategy: Ozone

* * * * *
    (dd) Chicago Ozone Attainment Demonstration Approval--On December 
26, 2000, Illinois submitted a one-hour ozone attainment demonstration 
plan as a requested revision to the Illinois State Implementation Plan. 
This plan includes: A modeled demonstration of attainment and 
associated attainment year conformity emission budgets; a plan to 
reduce ozone precursor emissions by 3 percent per year from 2000 to 
2007 (a post-1999 rate-of-progress plan), and associated conformity 
emission budgets; a contingency measures plan for both the ozone 
attainment demonstration and the post-1999 rate-of-progress plan; a 
commitment to conduct a Mid-Course Review of the ozone attainment 
demonstration by the end of 2004; a demonstration that Illinois has 
implemented all reasonably available control measures; and a commitment 
to revise motor vehicle emission budgets within two years after the 
U.S. Environmental Protection Agency officially releases the MOBILE6 
emission factor model.

[FR Doc. 01-27720 Filed 11-9-01; 8:45 am]
BILLING CODE 6560-50-P